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KENDRIYA UTPAD SHULK BHAWAN, 180, SHANTIPALLY, RAJDANGA MAIN ROAD, KOLKATA - 700107, WEST BENGAL

AICESTMOA

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RUNNING MESSAGE

The emergency executive committee meeting of all India Central Excise and Service Tax Ministerial Officers Association and convention of the Gujarat Unit were held jointy on 23rd January, 2016 at Ahmedabad, Gujarat. In the very beginning Shri Vikas Kumar Gupta, National Organising Secretary, on behalf of the host unit, welcomed the Hon’ble Chief Guest Dr. Manoj Kumar Rajak, Additional Commissioner, Central Excise, Ahmedabad; Guests of honour Dr. Arvind Kumar, Deputy Commissioner, Central Excise, Ahmedabad, Shri Rajesh Kumar, Deputy Commissioner, Central Excise, Ahmedabad; and all the participating delegates from different parts of the country. The name of Shri Ashim Pramanick, the national President of the association was proposed to preside over the meeting. It was seconded by Shri Sankar Kumar Saha, Shri Vikash Kumar Gupta and Shri Indramohan Chaudhury. Everyone sang the national anthem in unison to mark the beginning of the proceedings. Shri (Dr.) Manoj Kumar Rajak, IRS was requested to inaugurate the programme by kindling the lamp and declaring the session open. The President initiated the discussions and gave his inaugural address. He pointed out the fact that it was a great privilege for all of us to assemble on the land of Father of the nation Mahatma Gandhi Ji and that too, on the birthday of another great soul of this country Shri Netaji Subhash Chandra Bose. We should show our respect to the great patriots through our actions as public servant in nation building in our own capacity and at our own level. The Chief Guest and the special guests also expressed happiness for organizing such a meeting at the national level in Ahmedabad. They urged to consider the need of the department and also assured to take forward our issues to the appropriate echelon for suitable disposal. Then the Secretary General thanked the Chief Guest and the Guests of honour for attending the convention and providing the encouragement and impetus to this association. Subsequently, the proceeding of the meeting of the Gujarat committee began. The representatives from various parts of the state of Gujarat posted at different Commissionerates attended the meeting (Link list). The all India association was receiving repeated requests from various Commissionerates and units of the state of Gujarat to give separate affiliations to their local units. It was impressed upon them that an all Gujarat committee be formed because that is expected to strengthen the organization and in that case the number of members would be sizable and in the event of any organizational activity this will help. A small organization cannot take strong step at the time of necessity. So they have to remain united and strengthen the organization. Accordingly, it was decided to hold a meeting at Ahmedabad to form a committee for the entire state of Gujarat. Representatives offered their opinions and after long deliberation and under the supervision of the all India committee, an all Gujarat Committee was constituted unanimously (Link list). Shri Chetan Shah, former Vice-President of the all India Association and now a Superintendent, contributed positively towards formation of an all Gujarat Committee. The committee will represent the ministerial officers posted in the state of Gujarat and they will be affiliated with the All India body and they will provide the assistance to the all India association and also abide by the call of the all India body. The all India leaders expressed satisfaction over the formation of an all Gujarat Committee by full consensus and it was also assured to the Gujarat committee that all assistance will be provided by the all India body whenever required. In the post lunch session, the discussion on all India issues were taken up. The Secretary General initiated the discussion and briefed the delegates about the development of the following burning issues: 1. Recruitment Rules of Executive Assistant and the action taken by the association and their developments. 2. Developments on our efforts on one time relaxation in the Recruitment Rules. 3. Promotion to the post of Chief Accounts Officer. 4. Issues related to pay to be decided following the recommendations of the 7th Central Pay Commission. The Secretary General explained in details as to how this association has taken steps in every moment to protect the interest of the members of this association. All representations were made in time and authorities were approached. Shri Ram Lalit, Liaison Secretary, then briefed the latest status on each of the issues. In fact, Shri Ram Lalit visited Delhi enroute Ahmedabad to take stock of the issues and pursued all the issues at appropriate levels. It was informed that Board is not at all positive and responsive to our requests. The Member (P&V) has given assurances on several occasions on the issues of OTR, EA and CAO DPC. But from the experience, it is found that none of the assurances have been realized. In fact, it was noted with great concern that even the file on One Time Relaxation (OTR) has been kept unattended and nothing is moving and even on the RR of EA board is not taking any action to either amend or give any dispensation to our members. Then the members from different zones deliberated upon the issues (Link name list). They took part in the discussion. They explained the problems being faced by the members. They also suggested to take strong action. The option of agitation was also mooted in the meeting. It was discussed at length. The advantages and disadvantages were also discussed. The option for going for legal battle for Recruitment Rules of EA was also mooted after prolonged discussion. It was decided to adopt a too pronged approach on the issue of RR of EA and TA. We will approach at senior level such as the Secretary, Revenue, Govt. of India and above to apprise of our grievances and particularly the disparity that exists between CBDT and CBEC in the matter of RR of EA and TA. If such efforts fail, then we shall go for agitation. Simultaneously, it was also decided to approach the Principal CAT, Delhi at an appropriate time and after further consultations to redress our grievances on RR. Again on the question on one time relaxation, it was decided to follow the sections as well as at the higher levels. If those efforts fail, then similarly on this issue also the all India association will go for agitation with the assistance of all affiliated units. It was also informed that the association is trying its level best to get the CAO DPC done at the earliest. The efforts put in by Shri V Gurukumar and other Comrades of Hyderabad Unit to do the ground work are remarkable. It was again urged upon to all the delegates present, to see that the reports on VC/IC of the concerned officers of their zone are sent immediately, so that the DPC can take place in a month or two. It was also decided to press hard for publication of the next Seniority List of Administrative Officer and Secretary General explained the efforts taken by this association in this regard. Regarding Pay disparity between the CBDT and CBEC, it was decided to approach Secretary, Revenue and if that fails, other action would also be initiated. Some zones, particularly Mumbai zone reported that the instructions of the Board are not being followed in their zone. They specifically pointed out that the Board’s instruction dated 3rd Nov 2014, clarifying the fact that any officer who has qualified the examination within the age of 50 can be considered even after the age of 50, has not been implemented in Mumbai zone despite several requests even after clarification from the Board. The zone was assured that any assistance required would be extended by the all India body. It was also decided to refer the matter to the Board. The Vizag zone also expressed their problems in details. The zone has given a very vivid picture about the problems being faced by the ministerial officers and also given suggestions to redress such problems. Patna zone highlighted the fact that the order of Hon’ble High Court of Andhra Pradesh in the matter of promotion from erstwhile Group-D to LDC has not been implemented in their zone while that has been implemented in other zones. The zone was also advised to take up the issue appropriately with the zonal authority. They should first get all information on this issue and take up the matter with the concerned authority. All India association will extend the support as and when it is required. It was a real show of strength and unity. On organizational front the following important decisions were taken: 1. Shri Sankar Kumar Saha who was officiating as Secretary General, after the promotion of G. Samdani Khan to the post of Inspector, has been unanimously elected as Secretary General for the complete tenure till the next convention. 2. Shri Ram Lalit shall hold both the portfolio of Assistant Secretary General and Liaison Secretary. 3. Shri Prosenjit Pandey and Shri Suman Sarkar have been appointment as Treasurer and Office Secretary respectively, as they both are stationed at Kolkata, the place where the Secretary General belongs to. 4. The Bank Account of the association lying in the Bank of Maharastra in Pune will be transferred to Kolkata and will now be operated by any two of the following three office bearers: (a) Shri Ashim Pramanick, President (b) Shri Sankar Kumar Saha, Secretary General (c) Shri Prosenjit Pandey, Treasurer. Shri Shivaji Valu, General Secretary of the Pune zone assured to take all action to transfer the Bank Account of the Association from Pune to Kolkata. 5. All the federating units shall furnish the list of members of their respective units along with the DDO’s certificate (Annexure-II), showing the number of members, contributing the subscriptions. Such list may be prepared as on 01.04.2016 as the all India Body is required to initiate the process of renewal of recognition and submit the necessary documents to the board – action Organization Secretary. 6. Upon operation of the Bank Account of the all India body all the federating units shall contribute their due subscriptions to the all India body. The share of contribution has been revised from Rs. 5/- per member per month to Rs. 10/- per member per month - action Treasurer. Every one vowed to stay together and fight together and at the end of the meeting everybody noted the efforts taken by Shri Vikash Kumar Gupta, Shri Indramohan Choudhary, Shri Kishor Parmar and other leaders of Ahmedabad Unit. They made this meeting a grand success. This meeting has provided the opportunity to the delegates of this association from all over the country to share their anxiety and pain together to look for the solutions. It was agreed by one and all to fight for the cause of the ministerial association and to go to any extent to protect the interest of our members. The President thanked everybody for their participation and contribution and concluded the proceedings.

Tuesday, January 25, 2011

LETTER TO CHAIRMAN ON OS TO AO ISSUE


Dear Members,

A copy of the letter submitted to the Chairman, requesting to extend the benefit of pay fixation for the Officers who were promoted to the Grade of Administrative Officers from the erstwhile cadre of Office Superintendents is placed below for information.

AICESTMOA


ALL INDIA CENTRAL EXCISE AND SERVICE TAX MINISTERIAL OFFICERS' ASSOCIATION

Ref. No. AICESTMOA/11-01.To,
New Delhi, the 20th Jan’ 2011


Hon’ble Shri. S. Dutt Majumder, IRS,
Chairman, Central Board of Excise & Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi.

Respected Sir,

Sub:- Non-Adherence to directives of the Hon’ble Finance Minister in reducing litigations by Deptt. Of Expenditure - Request for extending benefit of Pay fixation under FR 22 (I)(a) (1) to all Administrative Officers promoted from the cadre of Office Superintendent during the period 01.01.1996 till restructuring of the cadres as per settled legal position – reg.
* * * *

This Association has been time and again taking up the cause of those officers in the cadre of Administrative Officer who have been promoted from the cadre of Office Superintendent prior to Cadre Restructuring and granted the pay fixation benefit as per FR 22 (I) (a) (1) and who stood deprived of the pay fixation benefit granted to them owing to issuance of Board’s s F.No.A-26014/7/2001-Ad.II.A dated 24.07.2006.

2. Apart from the previous references made on the subject issue, various documents and correspondences related to the issue involved has now become available through RTI, whereby it appears that either the facts of the particular issue have not been appreciated properly, or have been overlooked, consequent to which the issue is not being considered favorably, despite strong grounds and reasons thereto. Therefore, at the cost of repetition, the brief facts are narrated hereunder with a request to emphasize upon the Department of Expenditure to re-consider the issue and concede settlement of the same in consonance with the settled legal position.

Brief Facts:-

a. Prior to the Cadre restructuring in CBEC, the promotions to the grade of Administrative Officer, a Gazetted Group ‘B’ post were being made from the grade of Office Superintendent, Non-Gazetted Group ‘C’ post. Consequent to implementation of the recommendations of Fifth CPC vide resolution dated 30.09.1997, the pay scales of both, the feeder grade i.e. Office Superintendent and the promotional grade i.e. Administrative Officer came to lie in the same pay scale i.e., 6500-200-10500. Therefore, a question arose as to whether the benefit of pay fixation can be extended in cases where an Officer is promoted from the grade of Office Superintendent to Administrative Officer after 01.01.96, as both the grades are having identical scales of pay. As the promotional grade is carrying higher duties and responsibilities the benefit of pay fixation was extended in many field formations. Subsequently after a lapse of 9 Years, the Board had vide letter F.No.A-26014/7/2001-Ad.II.A dated 24.07.2006, clarified that “since the pay scale of Office Superintendent and Accounts Officer (Administrative Officer/Assistant Chief Accounts Officer) were merged into one pay scale of Rs.6500-10500 by the Fifth Central Pay Commission, w.e.f. 01.01.96, the benefit of pay fixation under FR 22 (I) (a) (1) cannot be granted.”

The said clarification is silent on the situation prevailing before the merger of both grades and has only considered the situation post merger of both these cadres. (kindly refer to Department of Expenditure’s advice on N/s. 43 of Board’s F.No.A.26014/7/2001-Ad.II A wherein it is mentioned that “the issue has been reconsidered by this Department. It is observed that the posts were merged and as such benefit under FR 22(1)(a)(i) is not possible as per extant instructions” Copy enclosed for ready reference), which advice specifically answers situation post merger and not for the period from 01.01.1996 till the date officers holding both these posts & performing different functions stood merged.

b. Consequent to issuance of Board’s clarification dated 24.07.2006, some of the Cadre Controlling Authorities in the field formations, issued orders modifying the earlier promotion orders (even those issued prior to 05.06.2002) and sought to deny the benefit of pay fixation to those Officers who were promoted to the grade of Administrative Officers from the pre-restructured post of Office Superintendent. Being aggrieved with the said decision, some officers approached the Hon’ble Tribunal, Bangalore Bench. The Hon’ble CAT, Bangalore in O.A. No. 117/07 dated 13.02.2008 and a series of other cases had held that the clarification dated 24.07.06, is bad in law stating that “the applicants were promoted to the post of AO long before the date of merger, i.e., 05.06.2002.” Further it also ordered that “the impugned order dated 24.07.06 is quashed and set aside” apart from setting aside the orders issued pursuance to the said Board’s order dated 24.07.06.

c. The Writ Petition No.10261/2008 filed by the department against the said order of the Hon’ble Tribunal was dismissed by the Hon’ble High Court of Karnataka, vide a detailed order dated 26.11.08. Thereafter a Special Leave Petition was preferred by the Department against the said order, which came to be dismissed by the Hon’ble Apex Court after condoning the delay, vide its order and judgement dated 21.08.2009. In conclusion, the order passed by the Hon’ble Tribunal, Bangalore quashing the circular/clarification dated 24.07.06, attained finality and thus became a settled law of the land. Consequently, the Board had vide its letter F.No.A-26017/31/2007-Ad.II-A dated 01.02.2010, directed the Commissioner, Central Excise, Bangalore –I, Bangalore to implement the orders and judgement of the Hon’ble CAT, Bangalore Bench, restrictively in respect of only those Officers who have filed Application before the Hon’ble Tribunal.

d. Ironically, it is submitted that the clarification issued by the Board was restricted to the litigants only, instead of issuing fresh instructions superseding the earlier orders issued on 24.07.2006 which stood quashed and was set aside by the legal body. It is owing to this restricted implementation of the Court judgment which has an All India ramification, that another set of affected Officers from Central Excise, Cochin approached the Central Administrative Tribunal seeking similar relief. It is apprehended that some aggrieved Officers from other Zones are also contemplating similar course of action. In this context, the CBEC, has in consultation with the Department of Expenditure decided to defend the OA now filed before the CAT, Ernakulam, much against the principles laid down by a judicial verdict of a High Court and approved by the Hon’ble Apex Court, which as explained above has been accepted and implemented for similarly placed Officers. By doing so the Board is indirectly forcing all the similarly placed Officers to approach the legal forums, much against the principles laid down in Article 14 of the Constitution. More so, in a situation when the Hon’ble Finance Minister has ordered constitution of a Committee to prepare a roadmap for reducing existing litigation and also to avoid litigation in future, such a stand being taken by the Board is surely against the spirit and directions of the Hon’ble Finance Minister.

Settled Legal Position :-

1. It is an undisputed fact that the Hon’ble Tribunal has categorically held that the Ministry’s order dated 24.07.06 is bad in law, and quashed the same and also the subsequent order of the Cadre Controlling Authority in totality. The Ministry has sought to implement the order of the Tribunal, affirmed by the Hon’ble High Court and the Apex Court, restrictively to the applicants only, which action is discriminatory and against all the basic tenants of law as the order passed by the Hon’ble Tribunal is an order in rem and not an order in persona. It is pertinent to mention here that the Hon’ble Supreme Court of India has in Amrit Lal Berry V/s. CCE, (1975) 4 SCC 714 held that “when a citizen aggrieved by the action of the Government Department has approached the Court and obtained a declaration of law in his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the Department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to Court”. Even the Expert Body like the Fifth Pay Commission has in its recommendation with regard to extension of benefit of Court judgment to similarly situated held in Para 126.5 that “Extending judicial decisions in matters of general nature to all similarly placed employees – We have observed that frequently, in cases of service litigation involving many similarly placed employees, the benefit of judgment is only extended to those employees who had agitated the matter before the Tribunal/Court. This generates a lot of needless litigation. It also runs contrary to the judgment given by the Full Bench of Central Administrative Tribunal, Bangalore in the case of C.S.Elias Ahmed and others V/s. Union of India and others (O.A.NOs 451 and 541 of 1991), wherein it was held that the entire class of employees who are similarly situated are required to be given the benefit of the decision whether or not they were parties to the original Writ. Incidentally, this principle has been upheld by the Hon’ble Supreme Court in this case as well as in numerous other judgments like G.C.Ghosh V/s. Union of India, (1992) 19 ATC 94 SC dated 20.07.1998, K.I.Shepherd V/s. Union of India (JT 1987 (3) SC 600), Abid Hussain V/s. Union of India (JT 1987 (1) SC 147 etc. Accordingly, we recommend that decisions taken in one specific case either by the Judiciary or the Government should be applied to all other identical cases without forcing the other employees to approach the Court of Law for an identical remedy or relief. We clarify that this decision will apply only in cases where a principle or common issue of general nature applicable to a group or category of Government employees is concerned and not to matters relating to a specific grievance or anomaly of an individual employee. It is in this background that this Association had requested the Ministry/ Board to extend this benefit to all similarly placed Officers.”

2. It is understood that the matter was once again referred by the CBEC to the Department of Expenditure so that the Officers who stood promoted from the grade of Office Superintendent to the grade of Administrative Officers from the period 01.01.1996 till the date of merger of posts, are eligible for benefit of pay fixation as the post of Administrative Officer carries both higher duties and responsibilities compared to that of an Office Superintendent. The Board also felt that the advice given by the Department of Expenditure needs re-consideration. Since it was reiterated again and again, in the course of consultation with the Department of Expenditure, this particular issue stood referred to the Ministry of Law and Justice for its advice/ opinion regarding implementation of the order and defending the present OA. The Ministry of Law and Justice has vide Dy.No.3136/2010-B dated, 04.08.2010, categorically stated as under:-

“In this connection it is pertinent to note that Article 14 of the constitution guarantees equality and equal protection of laws within the territory of India. Equal protection means right to equal treatment in similar circumstances both in the privilege conferred and in the liabilities imposed. In the light of the principle enshrined under Article 14 of the constitution granting benefit to some employees and denying the same to other similarly situated persons may go against the spirit of the constitution and may not with stand to the judicial scrutiny. Since the matter being sub-judice and it is not practice in this department to tender any advice in sub judice matters it is for the administrative department to take a policy decision as per their policy and precedent and defend the pending cases accordingly in consultation with the Govt. Standing Counsel.”

3. Instead of accepting the said advice and allowing the benefit by issue of uniform instructions, the Department of Expenditure had once again mechanically reiterated its earlier stand taken, which is religiously being followed by the CBEC without taking into consideration the correctness of the matter and the prevailing legal position. It is an admitted fact that when the issue was first referred to the Department of Expenditure for opinion/ advice regarding the situation prevailing before cadre restructuring i.e., for the promotions effected during the limited period between 01.01.96 and 05.06.2002 whereas the advice given by the Department of Expenditure was that the same need not be granted, as both the posts have since been merged (relevant copies of notesheet of F.No.A-26014/7/2001-Ad.II A are enclosed). The Department of Expenditure has overlooked the vital fact that Officers who stood promoted from the period 01.01.1996 till the date of restructuring were already availing of the Pay Fixation benefits as per rules in force. Needless to mention, though the Law Ministry has opined that the stand taken by the Department of Expenditure is untenable and will not withstand judicial scrutiny, no positive decision has been arrived to in the issue concerned, thereby leading to fresh litigations in the matter. It is ironical that so much of time, energy and money is being spent by the Government to defend these cases, whereas the litigants have to incur unnecessary expenditure to get their legitimate benefits for no fault of theirs.

4. Further it is submitted that the number of affected Officers are far and few and spread out in various Commissionerates throughout the country, who have been availing of the said legitimate benefit till 24.07.2006. It is also pertinent to bring to your notice that some of them who are in the last lap of their service are either facing the threat of recovery from their pensionary benefits or are forced to approach the court for relief at this stage of their career, especially in a situation wherein the entire case has already been decided & settled by the judiciary.

5. In view of the compelling facts and legal position explained above, it is humbly requested that :-

(i) a policy decision may kindly be taken to extend the benefit of pay fixation to similarly placed officers as per the Hon’ble Tribunal’s order which is an order in rem & not restricted to the applicants only, &

(ii) suitable directions may kindly be issued to all the Cadre Controlling Authorities under CBEC, for uniform application of the Court’s order to all similarly placed Officers under CBEC at the earliest, with copies to the respective Pay and Accounts Offices thereby granting relief to those officers who are under the threat of recovery from their service benefits, thus putting an end to the unwarranted injustice and related litigations thereto.

Awaiting a judicious re-consideration of the above matter and an early issuance of revised directives to the concerned authorities, I remain,

Yours faithfully,
(THOMAS MONY)

Sd/-
SECRETARY GENERAL

Encl : As above.

Copy submitted for kind information to :-

1. The Joint Secretary (Personnel), Department of Expenditure, North Block, New Delhi.

2. Smt. Renu Jain, Deputy Secretary, Department of Expenditure, w.r.t the meeting held on 28.10.2010, on the subject matter with a request for re-consideration of the matter.

3. The Deputy Secretary, Ad.II A, CBEC, North Block, New Delhi with a kind request to re-examine the entire matter in the light of the judgment delivered and for an early issuance of revised instructions to the field formations in the matter.

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