Tuesday, January 25, 2011
LETTER TO CHAIRMAN ON OS TO AO ISSUE
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.
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.
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.
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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.
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)
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.