(DRAFT OF PETITION TO BE FILED BY THE ALL INDIA CX SUPDT. ASSO. IN THE APEX COURT FOR APPLICATION OF SC ORDER DATED 03.08.2011 SINCE 97)
APPLICATION FOR CLARIFICATION OF THE ORDER DATED 03.08.2011 PASSED BY THIS HON’BLE COURT
To
The Chief Justice of India and
His Lordships Companion Judges of
Supreme Court of India
MOST RESPECTFULLY SHOWETH
1. That the petitioners had filed the writ petition seeking redressal of their grievances regarding the disparity meted out to them in their career advancement. There has been a consistent dispute going on since decades, regarding the impractical ratio of quota being fixed between three feeder classes of Group B officers for promotion to Group A services. The three feeder classes pertains to three groups namely Central Excise, Customs and Appraises. The petitioners are the Central Excise Superintendents. Admittedly, there has been all time high stagnation in this feeder cadre and the disparity is prominently visible amongst the three feeder classes. Officers of 1972-1975 batches (of Inspector grade) from Central Excise group are still awaiting their second promotion in the entire career; whereas officers of 1992 batch (of Inspector grade) from the Appraiser Group have already been promoted twice. Though the entry level recruitment of all the three class is exactly same, rather for inspector Central Excise additional physical fitness test is mandatory in addition to written and viva-voice test.
The aforesaid grievances were highlighted in the writ petition (385/2010) which was heard with a connected appeal being CA No. 1198 of 2005. It is a matter of fact, however that though the Writ Petition was a substantial petition with many more issues; the Central Board of Excise & Customs filed a counter only in 1198/2005 admitting inter-alia the stagnation in the feeder categories and expressed a desire to change the Recruitment Rules. At this point of time, this Hon’ble Court appreciated the desire of the administrative department viz. the Central Board of Excise & Customs as had been solemnly affirmed in the affidavit and directed all the feeder cadres to co-operate with the administrative department in the exercise of formation of new Recruitment Rules. Further without going into the merits of the Writ Petition as well as the Civil Appeal; the Hon’ble Court had been pleased to pass the following order in substance:-
1. All the 3 groups of officers in the feeder categories i.e. (i) Superintendents of Central Excise; (ii) Superintendents of customs (Preventive); and (iii) Customs Appraisers, may make representations to the Union of India suggesting the changes which according to them should be made in the Recruitment Rules for their promotion to Group-A post of Assistant Commissioner (Central Excise & Customs).
2. The Union of India shall duly consider all such representations including those made before it in the light of the subsequent development in the cadre strength of the 3 feeder categories of group-B services and amend/revise the Recruitment Rules including altering the existing ratio to secure just and fair representation of all the 3 feeder categories.
3. Union of India shall try to complete the entire process by 31st December, 2011, uninfluenced by the observations made in the previous judgment of this Court in All India Federation of Central Excise vs. Union of India & Ors. [(1997) 1 SSCC 520], in which the existing ratio was approved as also the observations in the impugned judgment dated 19th December, 2003 of the High Court in Writ Petition (Civil) No. 1324 of 2002 with regard to the jurisdiction of the Central Administrative Tribunal.
4. Having perused one of the Office Orders (No. 51/2011 dated 18th March, 2011), whereby some officers were promoted from Group ‘B’ to the grade of Assistant Commissioner of Customs & Central Excise in the Pay Band 3 with Grade Pay of Rs.5400/- on purely ad hoc basis, we direct that all such ad hoc promotions shall abide by the final decision to be taken by the Department in terms of this order.
The civil appeal and the writ petition are disposed of in the above terms. All other applications are disposed of as having been rendered infructuous.
Perusal of the above order eminently makes it clear that there are three directions made by this Hon’ble Court:
I. All three feeder categories shall make representations to the Union of India viz. the Central Board of Excise & Customs; and the CBEC shall consider all such representations including all such representations which were made earlier also;
II. Amend the Recruitment Rules including, the ratio for promotion mentioned at Rule 18(2) of the Indian Customs & Central Excise Group ‘A’ Rules as amended in 1998 in the light of the revision in the Strengths of the three feeder categories.
III. Regularize all the ad-hoc promotions from 1997 onwards by taking into considerations the new Recruitment Rules
2 That in pursuance to the direction of this Hon’ble Court, the applicants submitted their detailed representation on 20th/ 23rd August, 2011. Since the contents of the representations are self explanatory the details are not set out in this application, however, the contents of the same are relied upon for the purposes of present application. The copies of the representations submitted by the applicant are enclosed and marked as Annexure A1 (Colly).
3. As per the direction of this Hon’ble Court the respondent conducted a board meeting on 16.09.2011. The minutes of the Board resolution is filed as Annexure A2.
Bare reading of the minutes/resolution would make it apparently clear that the issues raised by the applicants in their representation have been conveniently given a go-by. Hence, the contentious issues, due to which the feeder category of Superintendent Central Excise had been relegated into all this high stagnation was given a go-by. As the things stand, the CBEC should have considered the effect of the implementation of the earlier RR’s, which was that as on date of reporting the first officer to be promoted from the three feeder categories were factually as under:-
Superintendent of Central Excise 1991
Superintendent of Customs (P.O.) 1996
Customs (Appraisers) 2001
The consideration of the effects of the earlier RR’s would have naturally brought the lackadaisical treatment meted out to the three feeder categories and hence, the future action to repair this situation could have been well defined. This was just not done in said board meeting. The conduct of the respondent is not only detrimental to the interest of the applicants but also militates against the intents of the direction of this Hon’ble Court to solve the long drawn problems for all times to come. The applicants are seriously aggrieved by the steps being taken by the respondent in the pretext of compliance of the order of this Hon’ble Court.
1. Just after the Board meeting dated on 16.09.2011, this group of officers immediately submitted a memorandum to the Chairman CBEC briefing the grievances to him and the copies of this memorandum was sent to all the officers who participated in the said meeting of the CBEC on 16.09.2011. Briefly after the copies were received an office bearer of this Association also met almost all the concerned. In the Memorandum it was specifically requested that the CBEC may call for another meeting and repair the logistics formulated on 16.09.2011. But nothing was done.
2. Further to the meeting of the CBEC on 16.09.2011 the draft Recruitment Rules were exhibited on the site of CBEC on or around 9th October 2011. Though the draft Rules were exhibited, there was no mention as regards time for responses from the feeder categories. However, taking reasonable time, our reactions to the draft Recruitment Rules were sent. The reactions are self explanatory and hence the same is placed at Annexure A3.
3. One more aspect of the minutes of the meeting dated 16.09.2011 is that it spells out the intent of the Central Board of Excise & Customs to deviate from the order of this Court. In as much as they have said that they shall not regularise the ad-hoc promotions in the new ratio and new RR’s, as directed by this Hon’ble Court. The board apparently has misconstrued the order of this Hon’ble Court in so far as regularization of the Ad-hoc promotion since 1997 is concern, therefore, the Board has decided to approach this Hon’ble Court for clarification of the order dated 3.8.2011. This decision would be found mentioned in para 2.4 of the resolution dated 16.9.2011 ( Annexure A2)
In this matter it is submitted as follows:-
• Similar circumstances existed when the decision in 306/88 was given on 22.11.1996 by this Hon’ble Court, directing regularizations of all promotions from 1980 to 1996 in a new ratio viz.6:1:2 which was not the ratio in which the actual promotions were carried out since 1980. The CBEC had gladly accepted the decision and also completed the regularisations in July 2000 as issued by office order no.30/2000 on 31.08.2000.
• Most importantly, it is reversal of a policy which then was only beneficial to Appraisers that are 4% of the total Group B cadres; whereas now beneficiaries shall be the other two feeder categories which constitute 96% of the Group B and who are the feeder categories which have suffered worst stagnation for 14 long years since 1997. In this regularization, some of the anomalies created shall stand automatically rectified.
7. In the meantime it is also learnt that the CBEC had failed to report about the ad-hoc promotions in respect of Group B to Group A to the nodal agencies of UPSC and the DoPT for the last 14 years; Being disturbed by the fact that the CBEC had not informed about the ad-hoc promotions for the last 14 years which was illegal in terms of the basic tenets of service jurisprudence; the UPSC in its wisdom had ordered that the CBEC shall not make any ad-hoc or regular promotions until all the earlier promotions given from 1997 were regularized. The applicants obtained this information from the web site namely Taxindia online.com.
On the basis of the above submissions the applicants humbly seek indulgence of this Hon’ble Court for a clarificatory order directing the respondents to regularize all ad-hoc promotions since 1997 on the strength of the revised ratio of 13:2:1.
a) Clarify the order dated 13.08.2011 passed by this Hon’ble Court in WP(C) No. 385 of 2010 and /or
b) direct the respondent to regularize all ad-hoc promotions from 1997 taking into consideration the revised ratio.
c) pass such other and further order(s) as may deem fit and proper in the facts of the present case.
New Delhi
(SIBO SANKAR MISHRA)
UPDATE This petition was filed on 28.11.11 but due to some minor technical problem, number was not allotted. today (i.e. on 15.12.2011) number has been allotted after rectification..
IN THE SUPREME COURT OF INDIA
(CIVIL EXTRA ORDINARY JURISDICTION)
WRIT PETITION (CIVIL) NO.385 OF 2010
(CIVIL EXTRA ORDINARY JURISDICTION)
WRIT PETITION (CIVIL) NO.385 OF 2010
IN THE MATTER OF:
VIMAL KUMAR & ANR. … PETITIONERS
VERSUS
UNION OF INDIA & ANR. … RESPONDENTS
VIMAL KUMAR & ANR. … PETITIONERS
VERSUS
UNION OF INDIA & ANR. … RESPONDENTS
APPLICATION FOR CLARIFICATION OF THE ORDER DATED 03.08.2011 PASSED BY THIS HON’BLE COURT
To
The Chief Justice of India and
His Lordships Companion Judges of
Supreme Court of India
MOST RESPECTFULLY SHOWETH
1. That the petitioners had filed the writ petition seeking redressal of their grievances regarding the disparity meted out to them in their career advancement. There has been a consistent dispute going on since decades, regarding the impractical ratio of quota being fixed between three feeder classes of Group B officers for promotion to Group A services. The three feeder classes pertains to three groups namely Central Excise, Customs and Appraises. The petitioners are the Central Excise Superintendents. Admittedly, there has been all time high stagnation in this feeder cadre and the disparity is prominently visible amongst the three feeder classes. Officers of 1972-1975 batches (of Inspector grade) from Central Excise group are still awaiting their second promotion in the entire career; whereas officers of 1992 batch (of Inspector grade) from the Appraiser Group have already been promoted twice. Though the entry level recruitment of all the three class is exactly same, rather for inspector Central Excise additional physical fitness test is mandatory in addition to written and viva-voice test.
The aforesaid grievances were highlighted in the writ petition (385/2010) which was heard with a connected appeal being CA No. 1198 of 2005. It is a matter of fact, however that though the Writ Petition was a substantial petition with many more issues; the Central Board of Excise & Customs filed a counter only in 1198/2005 admitting inter-alia the stagnation in the feeder categories and expressed a desire to change the Recruitment Rules. At this point of time, this Hon’ble Court appreciated the desire of the administrative department viz. the Central Board of Excise & Customs as had been solemnly affirmed in the affidavit and directed all the feeder cadres to co-operate with the administrative department in the exercise of formation of new Recruitment Rules. Further without going into the merits of the Writ Petition as well as the Civil Appeal; the Hon’ble Court had been pleased to pass the following order in substance:-
1. All the 3 groups of officers in the feeder categories i.e. (i) Superintendents of Central Excise; (ii) Superintendents of customs (Preventive); and (iii) Customs Appraisers, may make representations to the Union of India suggesting the changes which according to them should be made in the Recruitment Rules for their promotion to Group-A post of Assistant Commissioner (Central Excise & Customs).
2. The Union of India shall duly consider all such representations including those made before it in the light of the subsequent development in the cadre strength of the 3 feeder categories of group-B services and amend/revise the Recruitment Rules including altering the existing ratio to secure just and fair representation of all the 3 feeder categories.
3. Union of India shall try to complete the entire process by 31st December, 2011, uninfluenced by the observations made in the previous judgment of this Court in All India Federation of Central Excise vs. Union of India & Ors. [(1997) 1 SSCC 520], in which the existing ratio was approved as also the observations in the impugned judgment dated 19th December, 2003 of the High Court in Writ Petition (Civil) No. 1324 of 2002 with regard to the jurisdiction of the Central Administrative Tribunal.
4. Having perused one of the Office Orders (No. 51/2011 dated 18th March, 2011), whereby some officers were promoted from Group ‘B’ to the grade of Assistant Commissioner of Customs & Central Excise in the Pay Band 3 with Grade Pay of Rs.5400/- on purely ad hoc basis, we direct that all such ad hoc promotions shall abide by the final decision to be taken by the Department in terms of this order.
The civil appeal and the writ petition are disposed of in the above terms. All other applications are disposed of as having been rendered infructuous.
(D.K. JAIN, J.)
(ASOK KUMAR GANGULY, J.)
(ASOK KUMAR GANGULY, J.)
Perusal of the above order eminently makes it clear that there are three directions made by this Hon’ble Court:
I. All three feeder categories shall make representations to the Union of India viz. the Central Board of Excise & Customs; and the CBEC shall consider all such representations including all such representations which were made earlier also;
II. Amend the Recruitment Rules including, the ratio for promotion mentioned at Rule 18(2) of the Indian Customs & Central Excise Group ‘A’ Rules as amended in 1998 in the light of the revision in the Strengths of the three feeder categories.
III. Regularize all the ad-hoc promotions from 1997 onwards by taking into considerations the new Recruitment Rules
2 That in pursuance to the direction of this Hon’ble Court, the applicants submitted their detailed representation on 20th/ 23rd August, 2011. Since the contents of the representations are self explanatory the details are not set out in this application, however, the contents of the same are relied upon for the purposes of present application. The copies of the representations submitted by the applicant are enclosed and marked as Annexure A1 (Colly).
3. As per the direction of this Hon’ble Court the respondent conducted a board meeting on 16.09.2011. The minutes of the Board resolution is filed as Annexure A2.
Bare reading of the minutes/resolution would make it apparently clear that the issues raised by the applicants in their representation have been conveniently given a go-by. Hence, the contentious issues, due to which the feeder category of Superintendent Central Excise had been relegated into all this high stagnation was given a go-by. As the things stand, the CBEC should have considered the effect of the implementation of the earlier RR’s, which was that as on date of reporting the first officer to be promoted from the three feeder categories were factually as under:-
Superintendent of Central Excise 1991
Superintendent of Customs (P.O.) 1996
Customs (Appraisers) 2001
The consideration of the effects of the earlier RR’s would have naturally brought the lackadaisical treatment meted out to the three feeder categories and hence, the future action to repair this situation could have been well defined. This was just not done in said board meeting. The conduct of the respondent is not only detrimental to the interest of the applicants but also militates against the intents of the direction of this Hon’ble Court to solve the long drawn problems for all times to come. The applicants are seriously aggrieved by the steps being taken by the respondent in the pretext of compliance of the order of this Hon’ble Court.
1. Just after the Board meeting dated on 16.09.2011, this group of officers immediately submitted a memorandum to the Chairman CBEC briefing the grievances to him and the copies of this memorandum was sent to all the officers who participated in the said meeting of the CBEC on 16.09.2011. Briefly after the copies were received an office bearer of this Association also met almost all the concerned. In the Memorandum it was specifically requested that the CBEC may call for another meeting and repair the logistics formulated on 16.09.2011. But nothing was done.
2. Further to the meeting of the CBEC on 16.09.2011 the draft Recruitment Rules were exhibited on the site of CBEC on or around 9th October 2011. Though the draft Rules were exhibited, there was no mention as regards time for responses from the feeder categories. However, taking reasonable time, our reactions to the draft Recruitment Rules were sent. The reactions are self explanatory and hence the same is placed at Annexure A3.
3. One more aspect of the minutes of the meeting dated 16.09.2011 is that it spells out the intent of the Central Board of Excise & Customs to deviate from the order of this Court. In as much as they have said that they shall not regularise the ad-hoc promotions in the new ratio and new RR’s, as directed by this Hon’ble Court. The board apparently has misconstrued the order of this Hon’ble Court in so far as regularization of the Ad-hoc promotion since 1997 is concern, therefore, the Board has decided to approach this Hon’ble Court for clarification of the order dated 3.8.2011. This decision would be found mentioned in para 2.4 of the resolution dated 16.9.2011 ( Annexure A2)
In this matter it is submitted as follows:-
• Similar circumstances existed when the decision in 306/88 was given on 22.11.1996 by this Hon’ble Court, directing regularizations of all promotions from 1980 to 1996 in a new ratio viz.6:1:2 which was not the ratio in which the actual promotions were carried out since 1980. The CBEC had gladly accepted the decision and also completed the regularisations in July 2000 as issued by office order no.30/2000 on 31.08.2000.
• Most importantly, it is reversal of a policy which then was only beneficial to Appraisers that are 4% of the total Group B cadres; whereas now beneficiaries shall be the other two feeder categories which constitute 96% of the Group B and who are the feeder categories which have suffered worst stagnation for 14 long years since 1997. In this regularization, some of the anomalies created shall stand automatically rectified.
7. In the meantime it is also learnt that the CBEC had failed to report about the ad-hoc promotions in respect of Group B to Group A to the nodal agencies of UPSC and the DoPT for the last 14 years; Being disturbed by the fact that the CBEC had not informed about the ad-hoc promotions for the last 14 years which was illegal in terms of the basic tenets of service jurisprudence; the UPSC in its wisdom had ordered that the CBEC shall not make any ad-hoc or regular promotions until all the earlier promotions given from 1997 were regularized. The applicants obtained this information from the web site namely Taxindia online.com.
On the basis of the above submissions the applicants humbly seek indulgence of this Hon’ble Court for a clarificatory order directing the respondents to regularize all ad-hoc promotions since 1997 on the strength of the revised ratio of 13:2:1.
PRAYER
It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to
It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to
a) Clarify the order dated 13.08.2011 passed by this Hon’ble Court in WP(C) No. 385 of 2010 and /or
b) direct the respondent to regularize all ad-hoc promotions from 1997 taking into consideration the revised ratio.
c) pass such other and further order(s) as may deem fit and proper in the facts of the present case.
New Delhi
Dated Drawn and filed by
(SIBO SANKAR MISHRA)
Advocate for applicant
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