Pune, the 5th October, 2010
Dear Comrades, The Association is pursuing various issues affecting the cadre with the Board vigorously. A series of correspondences/ communications have been made thereon, a copy of which is being placed below for the information of all the Members.
Yours sincerely,
Thomas Mony,
Secretary General.
ALL INDIA CENTRAL EXCISE AND SERVICE TAX MINISTERIAL OFFICERS’ ASSOCIATION
Ref No. AICESTMOA/10-27
The Hon’ble Member (L&J), I.R.S
Central Board of Excise & Customs,
Government of India, Ministry of Finance,
Department of Revenue, North Block,
New Delhi.
Respected Madam,
Sub : Re-designation of UDC (Special Pay) as STA – Withdrawal of
Board’s instruction dated 09.10.2007 - regarding.
Board’s instruction dated 09.10.2007 - regarding.
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Most respectfully, kind attention is invited to Board’s letter F.No.A.32018/1/2007-Ad.III A dated 09.10.2007, on the above mentioned subject, whereby all the Cadre Controlling Authorities were requested to review all such cases and initiate consequential action keeping in view the order passed by the Hon’ble Tribunal, Mumbai Bench in the case of Smt. Rashmi Arolkar.
2. Prior to proceeding further, this Association is being given to understand that the original file being dealt with in CBEC has been caught in the fire that took place in Hudco Vishala and hence wishes to place on record the basic reasons for which the UDCs (Special Pay) were placed in the higher pay scale of Rs.5000-8000, during the Cadre Restructuring exercise, the various litigations which were pending/decided in Hon’ble Central Administrative Tribunal/High Court and the concerned Sections in Board’s office which were dealing with the subject matter at different times.
i. The Fifth Pay Commission had identified 10% of UDCs (Special Pay) as a cadre performing complex nature of duties and had recommended its upgradation in the grade of Assistant with the pay scale of Rs.5000-8000 w.e.f. 01.01.1996. Based on the recommendations, the implementation cell of Department of Expenditure had vide its letter under F.No.6/31/99-IC dated 19th March, 1999 communicated the manner in which the upgradation was to be done.
ii. The Ad.II A Section under Central Board of Excise & Customs was considering implemention of the said recommendations of the Fifth Pay Commission which was accepted by the Government and for which implementation order was also issued. However, vide Diary No. 1667/99-Ad.II (A) dated 14/10/1999 it is evident that the matter relating to grant of Rs.5000-8000 pay scale for Special Pay UDCs was referred to Ad.IV Section for incorporating the same in the proposal of Cadre Restructuring. Main file bearing No.A.26011/4/97 Ad.II(A) was also submitted to Ad.IV branch for considering grant of upgraded pay scale to 10% of the UDCs in the field formations of CBEC by making it a part of cadre review proposal. (copies of relevant notes enclosed)
iii. On the 28th and 29th of January, 2002 i.e. during the course of discussion with this Association for implementation of Cadre Restructuring, the Board had given an assurance regarding retrospective upgradation of UDCs(Special Pay) in the pay scale of Rs.5000-8000. However, approval was sought from the Union Cabinet by the Ad.IV Section/DOPM for upgradation of UDC (Spl. Pay) to the level of Senior Tax Assistant prospectively only. Based on the said approval of the Cabinet, the U. D. C. (Special Pay) post was made one of the initial constituents in the STA grade.
iv. The Ad.III B Section thereafter framed and notified Senior Tax Assistant Recruitment Rule vide GSR NO. 39(E) dated 20.01.2003, wherein at Rule 5(i) it is clearly mentioned that ‘a UDC (Spl Pay) shall be deemed to have been appointed as Senior Tax Assistant and the service rendered by them before commencement of these rules shall be taken into account for deciding the eligibility for promotion to the next higher grade’ and as per Rule 5(iv) of the Senior Tax Assistant Recruitment Rule, 2003 a Upper Division Clerk(Spl Pay) shall be placed below Assistant, DEO Gr. ‘C’, DEO Gr. ‘B’ and Tax Assistants.
v. The matter relating to retrospective grant of Rs.5000-8000 pay scale to UDCs (Spl. Pay) was a subject matter before Hon’ble CAT, Madras Bench in O.A.No.564/2003 wherein it was contested by the applicants that inspite of the Government’s acceptance of granting Rs.5000-8000 pay scale to the 10% Upper Division Clerks involved in complex duties, the monetary benefits have not been accorded to them. As can be seen from Para 2 of the Hon’ble CAT, Madras Bench order dated 19th Jan, 2003 it is mentioned that “the respondents did not deny the right of the applicant to get the benefit pursuant to acceptance by the Government. What remained was only the issue relating to giving retrospective effect to the recommendation of the Fifth Pay Commission which is under consideration”. It is also relevant to note in Para 3 of the said judgment that quotes Para 6 of the counter reply of the Department which states that “the posts have been upgraded as a result of cadre restructuring approved by the Government”. This judgment of the CAT, Madras bench had attained finality since then as it was not appealed against by anyone.
vi. Further, the Department has defended O.A.No.1150/2003 in the Hon’ble CAT, Madras Bench by mentioning in Para 9 of the Counter reply that the recommendations of the Vth Pay Commission with regard to upgradation of the UDCs (Special Pay) was made a part of Cadre Restructuring proposal and it is after the approval of the Cabinet that the UDC (Spl Pay) posts have been placed in the new cadre of Senior Tax Assistant in the pay scale of Rs.5000-8000. Most important is the fact that the Union of India has preferred a Writ Petition No.38622/2004 in the Hon’ble Madras High Court against the Hon’ble CAT judgment passed in O.A.1150/2003 on 2nd August, 2004 on the grounds that (i) According to Cadre Restructuring the Spl. Pay UDCs are placed in the cadre of Senior Tax Assistant in the higher pay scale of Rs.5000-8000 (Para ‘e’ of Grounds in the said Writ Petition) thereby defending the placement of the Upper Division Clerk (Spl. Pay) in Rule 5(iv) of the Senior Tax Assistant, that was subsequently dismissed by the Hon’ble High Court vide common order dated 13.04.2007 and presently pending decision in the Supreme Court.
3. That being the situation, directions were issued vide F.No.A.32018/1/2007-Ad.III A dated 09.10.2007 intimating that action be initiated for implementation of Hon’ble Central Administrative Tribunal, Mumbai Bench judgment passed in Rashmi Arolkar V/s. U.O.I though the matter stood decided by the Hon’ble Madras High Court on 13.04.2007and the stand of the Department was consistent throughout that the post of Upper Division Clerk has been upgraded to the cadre of Senior Tax Assistant in the pay scale of Rs.5000-8000 w.e.f. 20.01.2003.
4. The Board has vide its order dated 07.04.2008 directed all the Cadre Controlling Authorities to fill up vacancies existing in the grade of Inspector and Senior Tax Assistant as per the existing Recruitment Rules. This contrary stand of the Department in defending the STA Recruitment Rules in the Hon’ble Apex Court on one hand and simultaneously implementing the Hon’ble CAT judgment in Rashmi Arolkar and others V/s. Union of India on the other does leave room for a series of fresh litigations and more so it proves the existence of inconsistency. Also it is pertinent to mention here that the settled stand of the Department before the Hon’ble CAT, Madras bench and the Hon’ble Madras High Court cannot be nullified by accepting the Mumbai CAT order. It is also submitted that only some Cadre Controlling Authorities have wrongly implemented the said CAT order whereas many Cadre Controlling Authorities have maintained restraint and waited patiently for the outcome of the SLP filed by CBEC in Supreme Court, wherein a relief was granted by the Hon’ble Apex Court that all promotions would be subject to outcome of SLP and there would be no reversions in the meantime.
5. In view of the above mentioned facts, this Association urges upon your Honour to kindly re-consider Board’s decision of implementing the Hon’ble CAT order, Mumbai Bench passed in Rashmi Arolkar V/s. UOI and requests for immediate withdrawal of Board’s instructions issued vide F.No.A.32018/1/2007-Ad.III A dated 09.10.2007, in the light of the fact that the Hon’ble Chennai High Court order was prevailing prior to issue of the said directions dated 09.10.2007, and the same is being contested by the Department itself before the Hon’ble Supreme Court of India claiming that the Rules have been framed properly.
6. Anticipating a judicious decision on the above request, which is affecting the career prospects of a large number of Ministerial officers, I remain,
Yours faithfully,
(THOMAS MONY)
SECRETARY GENERAL
* * * * *
ALL INDIA CENTRAL EXCISE AND SERVICE TAX MINISTERIAL OFFICERS’ ASSOCIATION
Ref No. AICESTMOA/10-31
New Delhi, the 15th Sept’ 2010
To,The Hon’ble Member(L&J),
The Hon’ble Member(P&V),
Commissioner (Directorate of Legal Affair),
Commissioner (Legal),
Central Board of Excise & Customs,
Ministry of Finance, Department of Revenue,
North Block, New Delhi.
Respected Sir/Madam,
Sub:- Request for extending benefit of Pay fixation under FR 22 (I)
(a) (1) to Officers promoted to the grade of Administrative
Officer, from the erstwhile cadre of Office Superintendent –
post cadre restructure – reg.
* * * *
In continuation to this Association’s letter Ref. No. AICESTMOA/10-20 dated 27.04.2010 & 15.09.2010 on the above subject, this Association wishes to highlight the following facts for your kind information and favourable consideration.
2. The Board/Ministry 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.”
3. Consequent to issue of the above clarification, the Cadre Controlling Authorities in the field formations, issued orders modifying the earlier promotion orders and sought to deny the benefit of pay fixation to Officers who were promoted to the grade of Administrative Officers from the erstwhile (pre-cadre restructure) post of Office superintendent. Some of the affected officers approached the Hon’ble Tribunal against the said clarification dated 24.07.06 and related executive instructions issued thereafter. The Hon’ble CAT, Bangalore in O.A. No. 117/07 dated 13.02.2008 and a series of 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 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 order dated 24.07.06.
4. The Writ Petition No.10261/2008 filed by the department against the said order of the Hon’ble Tribunal was dismissed by the High Court, vide an 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 vide its order and judgement dated 21.08.2009. In conclusion, the order passed by the Hon’ble Tribunal, Bangalore attained finality and thus became law of the land.
5. However, instead of issuing fresh orders on the subject matter, the Ministry 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, in respect of only those Officers who have filed Application before the Hon’ble Tribunal restrictively. Subsequent to the above, a few Officers had approached the Hon’ble Tribunal at Ernakulam which has also extended the benefit of pay fixation to the applicants.
6. It is an undisputed fact that Tribunal Hon’ble 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 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. Instead of issuing uniform instructions, the Board is keen on forwarding files again and again to the Department of Expenditure and taking contradictory stand to the one already taken, thereby creating chaos and 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.
7. In view of the above facts it is requested that 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, thereby granting some relief to the deprived Officers, many of whom are on the verge of retirement and also avoiding filing of fresh litigations etc.
Awaiting issuance of suitable directives at the earliest, I remain,
Yours faithfully,
(THOMAS MONY)
SECRETARY GENERAL
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