Inter-Commissionerate Transfers - CAT's Order and implications

Pune, the 23rd May, 2011

Dear friends in service,

The seniority protection granted by the Board to the officers proceeding on Inter-Commissionerate Transfer on spouse/ compassionate/ physical handicapped grounds was under challenge in the Hon'ble Central Administrative Tribunal, Ernakulam Bench for quite a long time. 

Finally, the OA's challenging the seniority protection alongwith a batch of other related O.A's has been decided by the Hon'ble Tribunal, much against the decision of the Board.
Judgement of the Tribunal 

 

All along, this Association has been requesting the Board to re-consider the issue relating to grant of seniority protection to the ICT transferees, as the said transfers are granted on Compassionate grounds and protecting seniority would open a Pandora's box and unsettle the settled seniority in various zones across the country.  However, nothing positive has come out from the Board owing to a stalemate situation prevailing with regard to the disputed Executive Instructions issued from time to time.

Moreover, it is once again highlighted that had the Board observed the lacunae in the Recruitment Rules of Superintendent as regards the absence of "Senior Junior" clause, the seniority disputes in the Central Excise Delhi Commissionerates would never have cropped up and there would have been no reason for the Board to ban Inter-Commissionerate Transfers which was unconsciously done during 19th of February, 2004 inorder to please the then Administrators serving in the Central Excise, Delhi Commissionerates.

Vide this message, it is once again requested that those officers serving the Department in the various Group 'B' and 'C' cadres need to come together, identify the lop-sided decision of the Board in imposing ban on Inter-Commissionerate Transfers, which system has been successfully working for decades and has withstood the test of judicial scrutiny and to take up the issue relating to lifting of Ban on ICT through their respective Associations, thereby ensuring that the officers requiring to proceed on ICT from one zone to another are not stranded in alien places and subjected to the mercy of individuals trying to take undue benefit of such situations.

Hope this Associations long pending request for lifting of Ban on Inter-Commissionerate Transfers is giving due cognizance by the Board and it is also expected from the concerned Office Bearers of Inspector Association that at a time when the Recruitment Rules are getting framed in DG, HRD and views are being called for, the Note of "Senior-Junior" clause may be got incorporated in the Recruitment Rule of Superintendent, thereby bringing the said RR in consonance with the requirements of DOP&T and thus avoiding litigations on ICT.

Awaiting valuable feedback from interested members/readers, I remain,

Yours Sincerely,

Thomas Mony.
Secretary General

Letter to Revenue Secretary requesting to lift the Ban on ICT

ALL INDIA CENTRAL EXCISE AND SERVICE TAX MINISTERIAL OFFICERS’ FEDERATION

Pune, 08.09.2010

Dear Members,

Placed hereunder is a copy of the letter submitted to the Revenue Secretary, requesting for relaxation of the ban imposed on ICT for all as was available prior to 2004, for information.

* * * *

Ref No. AICESTMOA/10-26.
New Delhi, the 15th Sept. 2010

To,
Shri. Sunil Mitra, IAS,
The Hon’ble Revenue Secretary,
Government of India, Ministry of Finance,
Department of Revenue,
North Block, New Delhi.

Respected Sir,

Sub : Lifting of Ban on Inter-Commissionerate Transfers –

Reducing the series of litigations related /VIP references  – reg.

* * * * *

Being given to understand that based upon the Hon’ble Finance Minister’s orders a Committee is being constituted by the Central Board of Excise & Customs, this Association wishes to highlight a decision taken by the Central Board of Excise & Customs that has triggered off a series of fresh litigations, which decision, if reconsidered, would definitely reduce ample pending litigations as well as tackle the numerous VIP references pending consideration by the Board in the matter relating to grant of Inter-Commissionerate Transfers, which was prevailing in CBEC from 1980 onwards and had withstood judicial scrutiny for more than 2 decades & attained finality.

2. Kind reference is invited to a copy of Circular issued by the Central Board of Excise & Customs vide F.No.A.22015/3/2004-Ad.III A dated 19.02.2004 by which the Inter-Commissionerate Transfers of Group ‘B’, ‘C’ and ‘D’ officers were banned. The very reason for imposing ban on Inter-Commissionerate Transfers of Group ‘B’, ‘C’ and ‘D’ posts was issuance of a judgment delivered by the Central Administrative Tribunal, Principal Bench in O.A.No.2475/2002 dt.11th Nov, 2003 filed by Shri.Ghasi Ram Meena and others V/s. Union of India (copy enclosed) and its All India Ramifications post implementation of the same.

3. The issue raised before the Principal Bench of Central Administrative Tribunal, New Delhi was regarding the eligibility of transferee Inspectors, who had joined the Central Excise, Delhi Commissionerate on Inter-Commissionerate basis from other Commissionerates as per Board’s instructions dated 20.05.1980 and were placed at the bottom of the seniority list of Inspector, for promotion to the grade of Superintendent, which is a Group ‘B’ Gazetted post. The eligibility of Inter-Commissionerate Transferees possessing the desired qualifying service as incorporated in the respective Recruitment Rule was already decided in a catena of cases by the legal body and the Board has been well aware of the same w.e.f. 23rd May, 1997 i.e. the date of acceptance & issuance of instructions vide F.No.C-18012/4/97-Ad. II B clarifying that “the service rendered by an Inspector in his parent Commissionerate will count only for the purpose of determining his eligibility service for promotion to the next higher post in the transferred Commissionerate”. The DOP&T (which is the nodal Ministry) vide its O.M.No.AB.14017/12/87-Estt(RR) dated 18th March, 1988 had suggested to all Ministries/Departments that a suitable ‘Note’ may be inserted in the Recruitment Rules to the effect that senior who have completed the probation period may also be considered for promotion when their juniors who have completed the requisite service are being considered. The DOP&T had empowered all the Administrative Ministries/Departments to amend all the service rules/Recruitment Rules to incorporate the ‘Note’ as mentioned above. Unfortunately, the Recruitment Rule of Superintendent, Central Excise drafted and Notified by the CBEC suffers from non-incorporation of this ‘Note’ owing to which the junior most Inspectors who had come on Inter-Commissionerate Transfer basis and who possessed 8 years qualifying service were required to be promoted as Superintendent, Central Excise, ignoring the seniors who were short of the requisite qualifying service thus leading to a ban on ICT in all the Group ‘B’, ‘C’ and ‘D’ posts.

4. The implication of the said Principal Bench judgment was that a junior officer from the reserved category, who came in the zone of consideration of 5 times was considered eligible for promotion to the grade of Superintendent, Central Excise and promoted whereas all the seniors who had not completed the prescribed qualifying period of service i.e. 8 years were not considered for promotion. The said situation is an isolated one and is applicable only to Group ‘B’ posts owing to non-inclusion of the said ‘Note’ as proposed by DOP&T in the Recruitment Rule of Superintendent and the ramifications of the Principal Bench of Central Administrative Tribunal, New Delhi is not applicable to those posts wherein the Recruitment Rules prescribe the provision of considering seniors alongwith juniors owing to the incorporation of “Note” vide GSR. 1248 of 1984 and hence the ban on Inter-Commissionerate Transfers of Group ‘C’ and ‘D’ posts is bad in law.

5. Further, the said ban has been imposed in violation of the provisions incorporated in the Recruitment Rules of Inspector, Central Excise as well as that of Tax Assistant, thereby violating Article 14 & 16 of the Constitution of India. Subsequent upon the ban imposed, litigations were on the rise, challenging the arbitrary action of the Central Board of Excise and Customs. While the said situation continued till 2009, the CBEC vide F.No.A.22015/19/2006-Ad.III A dated 27th March, 2009 issued directives to partially relax the earlier instruction dt. 19.02.2004 by allowing Transfers in Group ‘B’, ‘C’ and ‘D’ posts from one Cadre Controlling Authority to another on spouse grounds, without any loss of seniority. Ironically it is to add that the said directive dated 27.03.2009 does not supersede the earlier instructions issued vide letter dated 20.05.1980 nor does it have any mention about a retrospective or prospective applicability thereby leading to utter chaos in the various field formations under Central Board of Excise & Customs. This decision has also triggered off a series of fresh litigations, and the Tribunal, Ernakulam Bench has quashed the operation of the seniority clause in the said order. There has been a considerable increase in the number of Court cases on Inter-Commissionerate Transfers which could have been avoided, incase the Central Board of Excise & Customs maintained the earlier settled stand taken during the year 1980 in effecting Inter-Commissionerate Transfers, by placing the transferred official in the bottom of seniority list. The said decision of placing transferred officials in the bottom of the seniority list has been a matter of protracted litigation ever since 1980 and the Hon’ble Supreme Court of India has also upheld the principles laid down by the CBEC in a catena of decisions.

6. In view of the above factual circumstances of the case and considering the fact that there is an increasing number of VIP references too alongwith your Honour’s keenness in reducing litigations/avoiding fresh litigations, the following relief is hereby being sought for, so that litigations filed in various legal forums throughout the country challenging the ban on ICT & the partial lifting of ban with seniority protection on spouse grounds are put to an end in CBEC.

RELIEF SOUGHT FOR :-

a) The Board’s letter F.No.A.22015/3/2004-Ad.III A dated 19.02.2004 may kindly be superceded by lifting the ban imposed on Inter-Commissionerate Transfers in the various Group ‘B’, ‘C’ and ‘D’ posts, & may be brought in consonance with Board’s instructions dated 20.05.1980 in respect of those posts the Recruitment Rules of which have the ‘Note’ of senior-junior clause incorporated in it.

b) The Board’s letter F.No.A.22015/19/2006-Ad.III A dated 27th March, 2009 may be amended partially by withdrawing the seniority protection clause and the same be brought in consonance with Board’s earlier instructions dated 20.05.1980 thereby ending the conflict prevailing in Inter-Commissionerate Transfers from one zone to another.

c) The CBEC may consider incorporating the said junior-senior ‘Note’ in the Recruitment Rule of Superintendent thus avoiding supercession in matters of promotion.

8. Anticipating your Honour’s personal intervention in the matter and seeking directives for an early re-consideration of the matter for which the entire Group ‘B’, ‘C’ & ‘D’ employees under Central Board of Excise & Customs would be ever grateful.

Yours faithfully,

(THOMAS MONY)

SECRETARY GENERAL

BRIEF LIST OF ISSUES BEING PURSUED BY THE FEDERATION

Dear Comrades,

The undersigned has been receiving request from various members seeking an update regarding the issues being pursued by the Federation in the Board's Office. Therefore, it was felt to update the same on the website. The issues in brief, as communicated to the Board, is placed hereunder for information of the members.

With regards,

Thomas Mony,

Secretary General.

REDESIGNATION OF UDC (SPECIAL PAY) AS STA

Ref No. AICESTMOA/10-06.
Pune, the 22nd Feb, 2010.

To,
The Hon’ble Member(P&A),
Central Board of Excise & Customs,
Ministry of Finance, Deptt., of Revenue,
North Block, NEW DELHI.

(Kind Attn : Deputy Secretary, Ad.III A)

Respected Sir,

Sub : Re-designation of UDC (Special Pay) as STA – Withdrawal of Board’s instruction dated 09.10.2007 - regarding.
************************************

Kind reference is invited to the numerous correspondences made on the subject matter which is pending decision till date. (copies enclosed for ready reference please)

2. Consequent upon issuing implementation orders in the case of Rashmi Arolkar V/s. UOI issued vide F.No.A.32018/1/2007-Ad.III A dated 09.10.2007, the Board had preferred a Special Leave Petition in the Hon’ble Supreme Court of India against the Hon’ble Chennai High Court order which came up for hearing on 04.04.2008 and directions were given by the Hon’ble Supreme Court to operate the disputed Recruitment Rules, under the condition that there would be no reversions.

3. The Board had further issued directions vide F.NO.A-23020/07/2007-Ad.III A dated 7th April, 2008 and 10th Sept’ 2008 to take necessary action to fill up the vacancies available in the promotion quota in the cadre of STA and Inspector as per the existing Recruitment Rules. Since no Executive Instruction can whittle down a statutory Recruitment Rule in force and considering the fact that the Recruitment Rules are being defended by the Central Board of Excise and Customs in the Hon’ble Supreme Court of India with the condition that there would be no reversions, it is once again requested that the interim orders of the Hon’ble Apex Court be followed in the right spirit, by withdrawing Board’s order dated 09.10.2007 till a decision is arrived at in the Seniority case.

4. It is also pertinent to mention here that some Commissionerates have reverted UDC (Special Pay) re-designated as Senior Tax Assistant to the grade of Tax Assistant whereas many Commissionerates have not reverted similarly placed officers owing to the relief granted by the Hon’ble Supreme Court of India and hence Board’s uniform directions in this regard is solicited please.

Anticipating positive response on the above mentioned request, I remain,

Yours faithfully,

Sd/-

(THOMAS MONY)

SECRETARY GENERAL

* * * *

REQUEST FOR LIFTING OF BAN ON INTER-COMMISSIONERATE TRANSFER

Ref No. AICESTMOA/10-08.
Pune, the 22nd Feb, 2010.

To,
The Hon’ble Member(P&A),
Central Board of Excise & Customs,
Ministry of Finance, Deptt., of Revenue,
North Block, NEW DELHI.

(Kind Attn : Deputy Secretary, Ad.III A)

Respected Sir,

Sub : Lifting the ban on Inter-Commissionerate Transfers - request thereof.
************************************

A settled decision of allowing Inter-Commissionerate Transfers in the various Group ‘C’ and ‘D’ posts based upon Board’s instructions dated 1980 has been unsettled by the Board by issue instructions to ban ICT w.e.f. 19.02.2004.

2. Inter-Commissionerate Transfers till 19.02.2004 were governed by Board’s earlier instructions contained in F.NO.A.22015/34/80-Ad.III B dated 20.05.1980 which clearly stipulated that the seniority of the transferred official would be fixed at the bottom of the respective seniority list. In other words, there was no protection of seniority and this instruction of the Board has stood the test of time and has been upheld by the Hon’ble Apex Court in a catena of decisions. However, the said consistent stand of the Department till 19.02.2004 has been changed owing to some Tribunal decision, which might not have been defended properly at the relevant point of time, because of which a haphazard decision was arrived at, to ban Inter-Commissionerate Transfers, though statutory provisions in the Recruitment Rules does provide for permanent absorption. Executive instructions cannot whittle down statutory provisions and therefore expecting legal relief on the unwarranted decision would prove futile.

3. More agonizing is the fact that the Board in its own wisdom chose to relax ICT ban on spouse grounds and portrayed its bounteousness by granting seniority to the officers who are getting transferred on spouse grounds without any mention whatsoever as to whether the said instruction superseded the Board’s earlier instruction dated 20.05.1980 or otherwise. While the said instruction is contradictory to earlier instruction dated 20.05.1980 as regards seniority is concerned and is also very silent about its retrospective or prospective application, the same has put the Board in a tight spot and would trigger fresh litigations which would be difficult to defend.

4. Considering the fact that there is a huge imbalance prevailing in the various Group ‘B’, ‘C’ and ‘D’ cadres, post restructuring, in the respective zones under Central Board of Excise and Customs and the fact that ICT terms and conditions stipulated vide Board’s instructions contained in F.NO.A.22015/34/80-Ad.III B dated 20.05.1980 has stood the test of time, a request is once again made to the Board to lift the ban imposed on effecting Inter-Commissionerate Transfers on Compassionate grounds, with the condition that the provisions incorporated by the Board in its instructions dated 20.05.1080 would prevail.

5. Hoping that the Board would consider the above mentioned request wisely rather than ignoring the same, time and again, as this would be in the overall interest of the Board.

Yours faithfully,

Sd/-

(THOMAS MONY)

SECRETARY GENERAL

* * * * *

REQUEST FOR RELAXATION FOR PROMOTION TO THE GRADE OF INSPECTOR

Ref No. AICESTMOA/10-09.
Pune, the 22nd Feb, 2010.

To,
The Hon’ble Member(P&A),
Central Board of Excise & Customs,
Ministry of Finance, Deptt., of Revenue,
North Block, NEW DELHI.

(Kind Attn : Director, Ad.III B)

Respected Sir,

Sub : Granting Height relaxation for promotion to the grade of Inspector – reg.
************************************

Kind reference is invited to Board’s recent letter whereby information was called for from the field formations to ascertain the number of officers who have been awaiting relaxation in Height parameter inorder to be considered for promotion to the grade of Inspector.

2. The Recruitment Rule for Inspector, Central Excise has been notified vide GSR No.494 dated 07.12.2002 which has been classified as General Central Service, Group ‘C’ Non-Gazetted, Non-Ministerial and the said Recruitment Rule has not been superseded and still in existence. As per DOP&T’s instructions issued vide CD.14017/10/85-Estt.(RR) dated 21.03.1985 and 05.06.1985, the respective Ministries/Departments have been delegated powers to frame/amend/relax provisions in the Recruitment Rules for Group ‘C’ and ‘D’ posts.

3. Considering the fact that numerous promotee quota vacancies in the post of Inspector are lying unfilled in many zones throughout the country, it would be in the interest of the Department that the relaxation proposed to be granted is done so at the earliest, which is a positive step initiated by the Department, thereby facilitating filling up of vacancies prior to embarking upon massive exercises like reorganization, GST etc. Moreover, the age old requirement to fulfill the said physical parameters as laid down in the Inspector Recruitment Rule is found to be obsolete, as the Department is more or less audit related and physical control is minimized to the maximum possible, thereby creating the need to re-look into the said issue with a broader perspective.

4. Anticipating grant of an early relaxation, I remain,

Yours faithfully,

Sd/-

(THOMAS MONY)

SECRETARY GENERAL

* * * * *

REQUEST FOR RELAXATION IN QUALIFYING SERVICE FOR PROMOTION TO THE GRADE OF INSPECTORS

Ref No. AICESTMOA/10-10.
Pune, the 22nd Feb, 2010.

To,
The Hon’ble Member(P&A),
Central Board of Excise & Customs,
Ministry of Finance, Deptt., of Revenue,
North Block, NEW DELHI.

(Kind Attn : Deputy Secretary, Ad.III A)

Respected Sir,

Sub : Granting relaxation in qualifying service for promotion to the grade of Inspector..
************************************

The Recruitment Rule for Inspector, Central Excise notified vide GSR No.494 dated 07.12.2002 and classified as General Central Service, Group ‘C’ Non-Gazetted, Non-Ministerial has not been superseded and is still in existence. As per DOP&T’s instructions issued vide CD.14017/10/85-Estt.(RR) dated 21.03.1985 and 05.06.1985, the respective Ministries/Departments have been delegated powers to frame/amend/relax provisions in the Recruitment Rules for Group ‘C’ and ‘D’ posts.

2. Based upon the said DOP&T’s delegation of powers to the respective Department, this Association takes the opportunity to put forth the following facts for your kind information and suitable orders in this regard.

a. Prior to Cadre restructuring, the cadre of Tax Assistant, Upper Division Clerk and Lower Division Clerks were eligible to be considered for promotion to the grade of Inspector.
b. Post Cadre restructuring, all the stagnating Lower Division Clerks had to forego their numerous years of dedicated service put in the Department, only to get an alleviation to the grade of Tax Assistant and face the second round of stagnation owing to the mandatory 10 years eligibility condition laid down in the Inspector Recruitment Rule.
c. Owing to the deemed promotion, all the Lower Division Clerks, irrespective of the years of service put in, were either notionally promoted as Upper Division Clerks w.e.f. 2001 or 2002 and thereafter re-designated on 05.05.2003 or promoted as Tax Assistant during the year 2003.
d. As per Clause (c) under Column 12 of the Schedule to Recruitment Rule of Inspector, Central Excise, eligibility of Tax Assistants is not less than 10 years service including he service to be included for this purpose under the provisions of the rules regulating the method of recruitment to the post of Tax Assistant.
e. The Lower Division Clerks who had put in ample years of service were granted deemed promotion as Tax Assistant in 2003 and they put in only more than 6 years of service owing to which they are not eligible for promotion to the grade of Inspector.
f. Further, as per Clause (b) under Column 12 of the Schedule to Recruitment Rule of Inspector, Central Excise, eligibility of Senior Tax Assistant to the grade of Inspector is two years of regular service. Since numerous Tax Assistants throughout the country have been promoted as Senior Tax Assistants during the past two years, and as they have not completed 2 years of service as STA, they too are not eligible to be considered for promotion to the grade of Inspector.

3. It would be pertinent to mention here that though ample vacancies are existing in the promotee quota of Inspector, the same cannot be filled up for want of eligible officers as per the provisions incorporated in the Recruitment Rule of Inspector.

4. As per Rule 6 of GSR 494 notified on 07.12.2002, the Central Government is competent to relax any of the provisions of the rules with respect to any class or category of persons. Prior to cadre restructuring, Lower Division Clerks with 11 years service in the grade and 2 years as UDC were eligible for promotion to the grade of Inspector. On a similar analogy, Lower Division Clerks who have put in nearly 10 years service were granted deemed promotion to the grade of Tax Assistant during the year 2003, consequent upon which they have been working as Tax Assistant for more than 6 years, thus taking the total span of service to 16 years.

5. Considering the fact that the Department is required to meet the growing demands of the user-clients for much higher levels of facilitation, reliance on technology and having a motivated, committed and trained workforce, for which massive exercise of reorganization is being embarked upon by the Board, the said objectives obviously cannot be met with, by having a workforce which is low in morale and deprived of opportunities for a proper career building.

6. In view of the facts narrated above, the Board may like to grant a one time relaxation of 4 years in the qualifying service of Tax Assistants for being considered eligible for promotion to the grade of Inspector, including 2 years relaxation in the grade of Senior Tax Assistants, thereby ensuring that all the seniors i.e. Senior Tax Assistants with 1 ½ years or 6 months etc., etc., as the case may be, but who are senior to the Tax Assistants are also considered for promotion alongwith their juniors, who would be availing of the benefit likely to be granted by the Board, thus boosting their morale.

7. This Association is seeking the above mentioned relief for a majority of its members as a one time measure for the crucial fact that once the new Inspector Recruitment Rule is notified as a Group ‘B’ post, the Board would not be competent to relax the provisions of the said Recruitment Rule, once notified as it would fall in the jurisdiction of external Departments like DOP&T, UPSC etc., etc. and thereafter obtaining relaxations immediately on notification of new RRs would be next to impossible thereby resulting in non-filling of Inspectors vacancies and leaving behind frustrated and depressed officers to cater to the Departmental requirements.

8. Hoping that the Board would consider the genuine submissions put forth by this Association and anticipating a one time relaxation for its members before the advent of reorganization and introduction of GST, thereby boosting the morale of many officers in the Department.

Yours faithfully,

Sd/-

(THOMAS MONY)

SECRETARY GENERAL

* * * * *

Inter-Commissionerate Transfers

Dear Friends,

As a matter of interest, the attached file is being forwarded to all of you so as to enable the Federation in pursuing this issue vigorously and getting a favourable direction from the Board.The issue involved though complex is very simple to solve. As we all are aware, Inter Commissionerate Transfers were allowed in CBEC till 19.02.2004 after which it was banned and "Transfer on Deputation" allowed to the aggrieved officers on temporary basis.However, a permanent solution to this issue is desired.

The recruitment Rules of STA, TA, Inspector etc., are under litigation and there cannot be any amendment done for the time being. It is a settled law that executive instructions cannot override a statutory rule in force. As per the RRs there is a Special Provision for absorption of officers belonging to the same cadre but working in different commissionerates. As per the said Rule, Inter Commissionerate Transfer ought to be allowed. Moreover as per the RR, there are only two means of recruitment i.e. Direct, Promotion or either of them. However, absorption is the third and the Board has to be made aware of it.

I have a simple request to all of you reading this message. Kindly approach your Commissioner, copy and past the matter on your local letter head and get the same forwarded to the Board for Consideration duly recommending the same positively. We all are a witness to the tremendous benefit drawn by our cadre owing to the ICT cases which was in existence in the pre-restructured grades of UDC and Inspector. Hope to see some proposals reaching the Board office by the end of this week.

Thanks and Regards,

Thomas Mony,

Secretary General.