IRS (INDIRECT TAXES)
OFFICERS’ASSOCIATION
PRESIDENT: Address for
communication:
SECRETARY GENERAL:
AK SHARMA CR Building, Bhubaneswar-751007. LOKANATH MISHRA.
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To,
Dr. Jitendra Singh
Hon’able Minister of States,
Govt. of India, North Block,
New Delhi.
Respected Sir,
Sub: Non framing of Recruitment Rules by Central
Board of Excise and Customs as per DOPT Guidelines & Hon’able Supreme Court directions -
regarding.
………………
We beg
to state that during the year 1978, Appraisers of Customs (A. K. Chatterjee and
others) filed a writ petition before the Apex Court for the reason
that some of their counterparts from Central Excise (Superintendents of Central
Excise) junior to them by 1 or 1½ half years in the service have been promoted
ahead of them. They wanted that Recruitment Rules should be framed &
promotions should be done on the basis of length of service in the feeder
cadre. As per the directions of Apex Court, Govt.
framed Indian Customs and Central Excise (Group-A) Recruitment Rules in
1987 based on length of service in the feeder cadre (i.e., to allow promotions
to the post of Asstt. Commissioner based on a common seniority list on the
basis of length of service of the officers belonging to three feeder
categories). This was challenged by the then office bearers of
AIFCEGEO (now AIACEGEO) & AIFCEEO (now AICEIA) in the Supreme Court
jointly under WP(C) No. 306/1988. While the matter was pending in the
Supreme Court for decision, the CBEC made a deceptive proposal dt.
08.10.1988 in total disregard of the facts by distributing the posts within the
Customs and Central Excise on the basis of the number of Custom
Service posts and Central Excise Service posts of Asstt. Commissioner at group
A entry level. Whereas the fact is that the Customs Service Group ‘A’ and
Central Excise Service Group ‘A’ were merged w.e.f. 15th August,
1959 into a single service of Customs and Central Excise Service Group
‘A’. The Apex Court vide WP No 306/1988 without any judicial
determination accepted the proposal of CBEC of 6:1:2 ratio for promotion to
Group-A to amend the Group-A RRs in 1998.
The Superintendents of Customs Preventive filed O.A. No. 489/1999
in Hon’able CAT Mumbai Bench . The Hon’able
CAT directed in July, 2001 to consider the grievances of the
Superintendents of Customs. Against this decision of hon’able CAT, the Appraisers of Customs filed
Appeal before the Hon’able High Court
of Bombay. The Hon’able
Bombay High Court decided that Bombay CAT didn’t have
any jurisdiction of passing the orders of July,
2001. Superintendents of Customs filed an Appeal against the orders
of the Hon’able Bombay High Court
in the Hon’able Supreme Court of
India. While
the matter was pending before Hon’able Apex Court WP(C) No. 385/2010 was also filed by AIACEGEO in the Hon’able Apex
Court. The Hon.able Supreme Court delivered the following judgment on 03.08.11 by consensus in the Writ
Petition (Civil) No. 385 of 2010:-
“We
have heard learned
counsels for the parties in Civil Appeal No. 1198
of 2005 and Writ Petition (Civil) No. 385 of 2010.
It has been brought to our notice that the Union
of India in terms of our previous order/directions dated 22nd
November, 2010 and 06th December, 2010, has filed an affidavit
in Civil Appeal No. 1198 of 2005, inter alia, stating, that it
has initiated the process of reviewing the
Recruitment Rules, 1987 for promotion from Group 'B' posts to Group 'A'
posts. The entire scheme is being re-looked and worked out at the
departmental level in consultation with an expert body including the Department
of Personnel and the entire process is likely to be completed by 31st December,
2011.
In the aforesaid background, we deem
it proper and in the interest of all parties concerned to dispose of both the
Civil Appeal as also the Writ Petition without expressing any opinion on the
merits of the impugned judgment or the writ petition
but with the following directions:
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 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 any observations made in the previous judgment of this Court in
All India Federation of Central Excise vs. Union of India &Ors. [(1997) 1
SCC 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”.
As
per Hon’able Apex
court decision dt. 3.8.2011, CBEC in its board
meeting held on dt.16.9.2011
took the decision for preparation of
RRs by altering existing ratio for 3 feeder
cadres to 13:2:1 and also
decided to make regularization of all adhoc promotions pending since
97 in old ratio under the provisions of previous RRs. The
new RRs were notified on 13.9.2012. The prayer of CBEC for amendment
of Supreme Court order dated 03.08.11 seeking clarification to make
regularisation of all adhoc promotions pending since 1997 in old ratio was
rejected by Apex Court on 30.3.2012. In the old Recruitment Rules, the
ratio of 6:1:2 was fixed very unscientifically and the same was not fixed
considering the sanctioned strength of three feeder categories for which during
the period of 1987 to 2011 one of the feeder categories namely Appraiser took the undue benefit in getting early
promotion than the seniors of other two feeder categories. The Recruitment
Rules, therefore, are required to be framed to grant promotion on the basis of
common seniority list of feeder categories instead of any ratio system. The
ratio system is also against the DOPT guidelines because the number of
promotional posts is too less. Further, the promotional
prospects of Superintendents of Central Excise were adversely affected due to
the fixation of 6:1:2 ratio in old Recruitment Rules giving undue benefit to
one of the feeder categories namely Appraisers of Customs. However, the said
ratio has been revised to 13:2:1but the adhoc promotions have not been
regularised based on the new ratio, i.e., the rules existing on the date of
regularisation. It is also pertinent to resubmit that no ratio system for
promotion to Group ‘A’ is mandated in our case as per DOPT guidelines on
account of the number of promotional posts being too less. Therefore, the
promotions should be affected on the basis of length of service in Group B
gazetted cadre instead of any ratio. As per DOPT Handbook on
Recruitment Rules, the Recruitment Rules (RRs) should be reviewed once in 5
years vide para 3.1.5 with a view to
affect such changes as are necessary to bring them in conformity with the
changed position including additions to or reductions in the strength of the
lower and higher level posts but CBEC never implemented such instructions of
DOPT. The Group-A RRs framed during 1987 were revised during 2012 instead of
every 5 years.
Having been grossly aggrieved after grave
suffering for thousands of silent, frustrated, depressed, disappointed,
humiliated, demoralised and anguished Superintendents of Central Excise &
Superintendents Cus(Prev), we would like to express the disillusionment and
heartburn of such a large number of officers due to the malaise prevailing in
their hearts affecting their morale and work culture. The main cause of this
state of deterioration is that the Superintendents of Central Excise , and
Superintendents , Cus (Prev) are getting just one promotion in their entire
service span of about 35 to 40 years after joining the job as Inspector/ PO,
whereas other officers like Examiners of Customs having joined in the same
service and selected through the same all India combined competitive
examination on merit and option basis conducted by the selection body, i.e.,
Staff Selection Commission, are getting 4 to 5 promotions in the similar
duration of service. More condemnable is the reason that the Central Excise
Inspectors and Preventive Officers of Customs (General, Scheduled Castes &
Scheduled Tribe all) are compelled to work under the Examiners of Customs even
having lower merit or selected through a later examination (upto 20 years
afterwards) despite of all Central Excise Inspectors, Preventive Officers of
Customs and Examiners of Customs having been selected through the same all
India combined competitive annual examination and appointed in the same service
of same organisation in same Department under same Ministry to the same level
of post (Promotions are made as mere simple promotion and not on selection
basis or selection post but to the cadre posts at different levels in the same
service). We have been fighting for justice as per Rule of Law and Constitution
of India for the last over three decades with no tangible results so far due to
the malafide acts of commissions & omissions by the concerned officials.
The right to live with dignity & respect has been snatched from us.
Hon'ble Apex court in the case of Radhey Shyam
Singh upheld that "Direct Recruitment" made on the basis of
"Zonal Examination" conducted by SSC is contrary to Fundamental
Rights. Thereby, it was struck down and the examination on all India basis
started since 1996 as per the directions of the Hon’ble Apex Court. In the year 1999, the then Director/Commissioner of DOPM made a
self speaking elaborate noting in the concerned file that it is unfair &
unjust and also unconstitutional to have separate cadres of (a) Inspector of
Central Excise (b) Preventive Officer of Customs &( c) Examiner of Customs
and also of (d)Superintendent of Central Excise (e) Superintendent of Customs Preventive
and ( f) Appraiser of Customs in the same service and should be merged in one
single cadre at each such level (just like in Income Tax). Subsequently after
his transfer however, no efforts were made though shown to have been made (with
dilatory tactics, pre-planned motives & conclusions) without any tangible,
legal and justified results by the CBEC as obvious from the factual position
submitted under forthcoming paras:
Present
Hierarchy of executive Posts in CBEC:
Level (I) Group ‘B’ – Non Gazzetted
(i) Inspector (Central Excise).
(ii) Inspector (Preventive Officer of
Customs).
(iii) Inspector
(Examiner of Customs).
All recruited through one and same process.
Level (II) Group ‘B’ Gazzetted
(i) Superintendent of
Central Excise
(ii) Superintendent of
Customs
(iii) Appraiser of
Customs
Respective promotional post for the Level (I)
posts.
Level (III) Group ‘A’ entry JTS
Asstt. Commissioner of Central Excise, Customs
& Service Tax.
Single promotional
post for all Level (II) posts (filled-up based on ratio formula against DOPT
provisions because number of promotional posts is too less).
Level (IV) Group ‘A’ STS
Deputy Commissioner of
Central Excise, Customs & Service Tax.
Time scale promotional
post for Group ‘A’ Asstt. Commissioner.
Level (V) Group ‘A’
Joint Commissioner of Central Excise, Customs
& Service Tax.
Promotional post for
Group ‘A’ Deputy Commissioner.
Level (VI) Group ‘A’
Addl. Commissioner of Central Excise, Customs
& Service Tax.
Time scale promotional
post for Group ‘A’ Joint Commissioner.
Level (VII) Group ‘A’
Commissioner of Central Excise, Customs &
Service Tax.
Promotional post for Group ‘A’ Addl. Commissioner.
Level (VIII) Group ‘A’
Chief Commissioner of Central Excise, Customs
& Service Tax.
Promotional post for
Group ‘A’ Commissioner.
Level (IX) Group ‘A’
Member of CBEC-Promotional post for Group ‘A’
Chief Commissioner.
Level (X) Group ‘A’
Chairman of CBEC-Promotional post for Member
of CBEC.
4.
Two more levels with new pay scales have been created between Level (VIII) and
Level (IX) for Group ‘A’ officers in the current cadre restructuring.
The rule in conformity
with the Law as well as Constitution of India is that any person lower in rank
& merit and selected through the same all India combined competitive
examination conducted on the basis of same qualification for the same level
posts and having been appointed in the same organisation/service can never
become superior to the other officer higher in rank & merit and selected through the same all India combined competitive
examination for same service in the same organisation. But the situation in the
CBEC is very astounding as the Inspectors of Central Excise of 1982 batch have
yet not been promoted to Group-A while the Preventive Officers of 1990 batch
and Examiners of 2002batch have already
been promoted to Group-A. Also the Examiners of 1984 batch are at present
Additional Commissioner whereas the 1982 batch Inspectors of Central Excise are
still Superintendent. Thus by the wrong acts of the concerned authorities, the
Superintendents/Inspectors of Central Excise are forced to work under the
junior officers recruited as Examiner.
The most of group ‘B’ gazetted officers in the Central as well
as State governments are being promoted directly to a Senior Time
Scale (STS) post with Grade Pay of Rs. 6600/- in PB-3 including CSS, CPWD, Railway Board,
CSSS, AFHQ, Rajya Sabha Secretariat, Forest services, Police services, Foreign
Services, Engineering services, State services etc., the Group ‘B’ gazetted
officers are being promoted while
Central Excise Superintendents are being promoted (if any) merely to a Junior
Time Scale (JTS) post with Grade Pay of Rs. 5400/- in PB-3. The Superintendents
of Central Excise (Group ‘B’ Gazetted post) should also be granted promotion
directly to a Senior Time Scale post with Grade Pay of Rs. 6600/- in PB-3 to
maintain parity with similarly placed employees of other departments.
Not only the promotion directly to STS post,
the counterparts of Central Excise Superintendents are also given benefit of
seniority in group ‘A’ at many places in lieu of the service rendered by them
in group ‘B’. At many places like various services in Railways, Administrative
Services, Police Services, State Services etc., the group ‘B’ gazetted officers
are allowed the weightage of minimum of 4 years at the time of entry into group
‘A’ also giving them the due benefit of seniority in lieu of the service
rendered by them in the group ‘B’. For example, the officers of Provincial
Services in Southern States enter into IAS in a grade pay of Rs. 6600/- within
8 years with 4 years of seniority benefit while the Central Excise
Superintendents are unable to enter into IRS in a lower grade pay of Rs. 5400/
even after serving for 35-40 years. They enter (if any) into IRS in a grade pay
of Rs. 5400/- only and retire at same level without any weightage for seniority
in group ‘A’. The rationale behind such
a provision of weightage or direct promotion to STS group ‘A’ is based on the
fact of the promotee officers having gained rich job experience at the time of
working as group ‘B’ officer as compared to direct recruit group ‘A’ officers.
But very unfortunately, the Central Excise Superintendents are not being given
the said benefit despite of being served for the longest period in group ‘B’ as
compared to any other category of the group ‘B’ employees of the Govt. of
India. They are not allowed the benefit of their rich experience even despite
of the Adjudication Orders also being prepared by them for the Commissioner
level officers. Before the enactment of
Indian Customs & Central Excise Service Group ‘A’ Rules, 1987, the group
‘B’ gazetted executive officers in CBEC were allowed five increments in their
group ‘A’ pay scale on promotion to group ‘A’ since senior time scale was not
available at that point of time. It is
also worth to mention that the common entry counterparts of CSS are not only
being promoted directly to a STS post after Section Officer (analogous to
Superintendent) but also reaching the level of Joint Secretary (GP-Rs.
10000/-). The position in CPWD is even more interesting where an officer with a
grade pay of Rs. 4600/- is directly being promoted to a post with a grade pay
of Rs. 6600/- (STS) and further directly to a post with the grade pay of Rs.
8700/- from a post with a grade pay of Rs. 6600/-. Thus, they don’t need to
serve on a post with a grade pay of Rs. 4800/-, 5400/- and 7600/- for promotion
to the post with a grade pay of 8700/- after entry into a post with merely a
grade pay of Rs. 4200/-. The very
purpose in framing the Human Resource Management policy through RR’s has not
been followed by the CBEC. Article 309 of the Constitution of India has been
violated on account of failure to maintain equity, fairness and justice in
recruitment/placement/promotions and all service related matters of Group ‘B’
Executive Cadres. Equality is the basic concept of Indian Constitution and,
hence, it is required to frame the Group ‘A’ Recruitment Rules to maintain
parity in promotions amongst the three base level Inspectors (i.e., Central
Excise Inspector, Preventive Officer and Examiner)
Recently
Central Board of Excise has forwarded a draft Recruitment Rules for Gr-A
services to DOPT without considering the grievance raised by our Association
which is pending with DOPT for concurrence. The suggestions of
our Association with reference to such draft Recruitment Rules is enclosed here
with for your kind perusal.
In view of the above, it is requested
that kindly direct the Central Board of Excise and Customs to make necessary
amendments in the RR’s retrospectively
for regularizations of all adhoc promotions since 1997 and framing of new Gr-A
RRs as per our suggestions in consonance of the Hon’able Apex Court decision
dated 03.08.11 and the provisions of Article 309 of the Constitution of India
and the provisions of DOPT guidelines.
Thanking you,
Enclosed- as above.
Yours faithfully,
( A.K.SHARMA)
ANNEXURE
Suggestions
by the Associations to amend Indian Revenue Service (Customs and Central Excise) Group A
Recruitment Rules 2014 as circulated by CBEC
1.Suggested amendment for sub-Rule 4(1)
For the words, 'The authorised permanent strength in all
grades of service and temporary strength in the grade IX of the service', the
words, ‘The authorised strength in all
grades of service’ shall be substituted.
Reason
Under Rule 2(g) of the RRs, the
‘Post’ includes permanent as well as temporary strength in all grades.
Accordingly, authorised strength constitutes
appointment made to any post under Indian Revenue Service (Customs and Central
Excise) Group A as defined under Rule 2(g). Besides, the temporary posts are
authorised posts created by virtue of cadre restructuring, for functional
necessity. So use of the words ‘temporary’ or ‘permanent’ is superfluous.
As far as the proposed
‘Grade IX’ is concerned, it may be pointed out that creation of a separate
Grade (grade IX) for the Assistant Commissioner (Junior Time Scale) Customs and
Central Excise, appointed against temporary posts, lower than the Grade (VIII)
of Assistant Commissioner of Customs and Central Excise (Junior Time Scale), is
against the basic tenets of devising any RRs. This arbitrary gradation is a
result of misconception in understanding the distinction between the term ‘posts’
and expression ‘an officer appointed in a grade to such posts’.
Appointment in a grade may take place through different modes of selection
(i.e. by direct recruitment or by promotion) and through different nature of
posts (i.e., permanent or temporary). The grade, however, does not change
because of such variations in manner of selection and nature of posts and
remains same. Therefore, an officer shall be treated to have been appointed in
a single grade, say Assistant Commissioner, grade, irrespective of nature of
Post or nature of selection. Creation of separate grade by way of linking it to
the nature of posts (permanent or temporary) or mode of selection (either
direct recruitment or by promotion) is grossly anomalous and is unfair with
regard to framing RRs. Besides,
the Central Excise Act, 1944 or Customs Act 1962 or Finance Act 1994 makes no
distinction between temporary and regular posts of Assistant Commissioner with
regards to functions and powers.
Furthermore, there is no
precedence of creating different grades in the same ranks with the same grade
pay. So such a sub-division in the grade of Assistant Commissioner is
untenable. It is to be kept in mind that the officers working as Assistant
commissioner in the temporary posts are already permanent /regular employees of
Govt. of India with even more than 30 years of service behind them.
So, any reference to
‘Grade IX’, wherever it appears in RRs, needs to be omitted.
2. Suggested Amendment for sub-Rule 4(2)
The words ' permanent and
temporary ' in this sub-Rule should be deleted.
Reason
That in terms of definition under Rule 2(g)
of the RRs, the authorised strength itself indicates and includes permanent as
well as temporary posts. Accordingly, the words ‘permanent and temporary ' are
superfluous.
3.Suggested Amendment for sub-Rule 4(3)(i)
This sub-Rule shall be substituted in the
following manner:
‘The continuation of the posts in temporary strength, as specified
in Schedule-I, beyond the period, for
which these are initially created, shall be reviewed by the Govt based on the
factors like workload, stagnation etc. However, as
long as an officer after appointment in the grade of Assistant commissioner against
such posts in temporary strength remains in that grade, such posts in temporary
strength against which the said officer is appointed shall not be declared
as abolished.’
Reasons:
The first line is
superfluous as it is already mentioned in sub-Rules 4(1) and 4(2) of this
Recruitment Rules that any post, be it
permanent or temporary shall be specified in Schedule-I. It is also not
necessary to mention the trifling details like date on which any post has been
created or likely to be terminated, be it permanent or temporary. The
Recruitment Rules should be confined to
recruitment modalities and not details of creation of posts.
The first part of the
second line regarding continuation of the posts in temporary strength is
contrary to the provision of the sub-Rule 4(2) of this RRs itself where it is
provided that the continuation of the posts, be it temporary and permanent,
shall be determined by the Govt. from time to time depending on the workload.
Accordingly, the provision regarding continuity of the posts in temporary posts
should be in conformity with the said provision in the manner as proposed. This
will also ensure the functional justification of creation of any post.
The second part of the second line is
based on complete misunderstanding between the term ‘post’ and the expression
‘an officer appointed in a grade through such post’ either by way of promotion
or direct recruitment or through permanent post or temporary post. Once the
officer is appointed in a particular grade, he or she will be regarded as
belonging to the service under which the posts exist and in this respect, no
distinction can be made between officers appointed either to a permanent post
or a temporary post, by direct recruitment or by way of promotion. The
continuation of the service of that officer in that grade is in no way
dependent on the fate or tenure of the post. So the incorporation made above to
this effect linking the tenure of post and continuation of service is
outrageous and beyond the purview of law. As long as an officer, after
appointment in a particular grade against a post (permanent or temporary),
remains in that grade in conformity with the service conditions, the post
(permanent or temporary) against which the said officer is appointed cannot be
declared as abolished.
Moreover, the 2nd
line is also contrary to the Cabinet approval under CBEC F.No. A. 11019/08/2013- Ad.IV, dated 18.12.2013, para 7 of which states
that " wherever the posts recommended for abolition are filled up
at present, such abolition will be effective on such posts being relinquished
by the existing incumbents by way of promotion, transfer, retirement,
resignation etc".
Similar amendment
regarding continuation of temporary posts has also been suggested through
insertion of ‘Note’ in Schedule-I of the RRs.
4. Suggested Amendment for sub-Rule 4(3)(ii)
This sub-Rule shall be substituted in the
following manner:
‘As and when the vacancies arise against
posts in temporary strength, as specified in sl. No. 8 of Schedule-I, the same
shall be filled up by promotion only in accordance with the procedure
prescribed in sub-Rule 5(3)(b) read with relevant entries of Schedule-III(sl.
No. 8) and Schedule-IV(sl. No. 8)
Reasons:
The amendments proposed are in conformity
with the amendments proposed in sub-Rule 4(1), Schedule-I, III and IV of the
RRs opposing arbitrary, discriminatory and unfair creation of separate grade IX
for Assistant Commissioners promoted in temporary strength of posts defined and
accordingly proposing deletion of sl. No.9 of all the Schedules mentioned.
5. Suggested Amendment for sub-Rule 5(2)
1)
The sub-Rule 5(2) shall be renumbered as sub-Rule
5(2)((i) and The words ‘fifty percent’ shall
be substituted by ‘ not more than ten per cent’.
2)
A new sub-Rule 5(2)(ii) shall be inserted after sub-Rule 5(2)(i)
in the following manner:
‘A post-based roster
shall be maintained earmarking the posts meant for direct recruits and the
posts meant for promotion in the ratio mentioned in sub-Rule 5(2) (i) and
sub-Rule 5(3)(a) respectively of the RR.’
Reasons for amendment (1)
In view of the highly adverse
ratio (1: 15 approx) existing between the consolidated Gr B Executive officers
and their immediate promotion grade of Assistant Commissioner, even after
restructuring, whatever has been done in the Cadre restructuring shall be
diluted and the stagnation is bound to return in short span of 1 or 2 years
until and unless, immediate other measures like promotion to STS, granting
'weightage' and parity with counterparts are taken. Otherwise, the next
lot will continue to stagnate. Therefore, as an important measure, the ratio of
50:50 between the posts meant for direct recruit Assistant Commissioner and that of the promotee Assistant
Commissioner should be changed to 10 (maximum) :90 (minimum). Besides promotee
Assistant Commissioners can immediately be put to functional utility as they are adequately trained with long
real-time experience.
Reasons for amendment (2)
The provision of maintenance of post-based
roster should be incorporated here without which there will always be a
possibility of erosion in promotion quota or direct recruit quota at any point
of time. The provision of maintenance of post-based roster should be incorporated
as there will always be an erosion in promotion / direct recruit quota at any
point of time. To give an example -
The IC&CE Gr-A Recruitment Rules
2012 (earlier of 1987, 1998), stipulates the entry-level Group-A post of
AC(also termed as JTS -Junior Time Scale) in the ratio of 50% DR(UPSC) & 50% by Promotion(amongst 3 feeder categories).
The then sanctioned strength of JTS
post(Assistant Commissioner) is '949', while that of STS(Deputy Commissioner)
is '601'. The promotions are given to the JTS level 50% posts i.e. against
'475'.
The Civil List published by CBEC on official
website "http :// www.
cbec.gov.in/deptt_offcr/civil-list2014-part2.pdf", for 01.01.2014, gives
in Part-2, the list of Gr-A officers in the grade of AC/DC. This list consists
of total '1284' Names['950' Direct-UPSC(DC:291+AC:439+AC-Probationer:220), and
'334' Promotees(Cust Appraiser:198+Supdt Cus-P:18+Supdt CX: 118 )].
This indicates that against the '949' JTS
strength(even leaving aside the DR officers who have been promoted by now,
strength of whom is also required to be added); the DR are 'more than
659(439+220+higher group A)', while promotees are just '334'. This
is unjustified. The DR should not be more than '475'.
6. Suggested Amendment for sub-Rule 5(3)(a)
1) The sub-Rule 5(3)(a) shall be renumbered
as sub-Rule 5(3)(a)(i) and
the words ‘fifty percent’ shall be
substituted by ‘ninety per cent or more’.
2) A new sub-Rule 5(3)(a)(ii) shall be
inserted after sub-Rule 5(3)(a)(i) in the following manner:
‘A post-based roster
shall be maintained earmarking the posts meant for direct recruits and the
posts meant for promotion in the ratio mentioned in sub-Rule 5(2)(i) and
sub-Rule 5(3)(a)(i) respectively of the RR.’
Reasons for amendment (1) & (2)
Same as given against sub-rule 5(2) above.
7. Suggested Amendment for sub-Rule 5(3) (b)
The entire sub-rule shall be substituted in the
following manner:
‘One hundred percent of the vacancies in Grade VIII
(Junior Time Scale) of the service specified in sl. No. 8 of the Schedule-I
i.e., Assistant Commissioner of Customs and Central Excise in the temporary
strength shall be filled by promotion from amongst the officers mentioned in
the sub-rule 5(3)(a)(i) above’.
Reasons
The amendments proposed are in conformity
with the amendments proposed in sub-Rule 4(1), Schedule-I, III and IV of the
RRs opposing arbitrary, discriminatory and unfair creation of separate grade IX
for Assistant Commissioners, promoted in temporary strength of posts defined
and accordingly proposing deletion of sl. No.9 of all the Schedules mentioned.
8. Suggested Amendment for the ‘Note’
appended to after sub-Rule 5(3) (b) and the sub-Rule 5(4)
Both the ‘Note’ appended to after sub-Rule 5(3) (b) and the sub-Rule 5(4) shall be substituted by one new sub-Rule 5(4)
in the following manner:
‘The promotion to the vacancies in Grade VIII
(Junior Time Scale), i.e., Assistant Commissioner of Customs and Central Excise
from amongst the all categories of officers, mentioned in the sub-Rule 5(3) (a)
(i), on the basis of a combined eligibility list of all those categories of
officers shall be prepared to maintain parity
in promotions to Gr-A amongst all three base level Executive grades (
i.e Inspector of Central Excise/Preventive Officer of Customs /Examiner of
Customs)’. Before preparing this list, all of the base level executive
grades belonging to same year shall be brought at par in the matter of
promotions as also promised by the CBEC during the presentation on cadre
restructuring made on 18.01.12.
Reasons
(A)
The disparity in promotional opportunity amongst the 3 feeder
streams of Supdt. Central Excise, Supdt.
Customs Preventive and Appraiser as well as basis feeder (feeder to feeder)
streams (i.e., Inspector of Central Excise, Preventive Officer and Examiner of
Customs) is well known and has been categorically acknowledged by the Board
in the Minutes of the meeting dated 11.02.2011. In the said Minutes, it was
also pointed out that promotion on the basis of ratio (even after revision) is
not enough to redress the disparity and that
the promotion to JTS level on the basis of base cadre parity is a much
better redress under the present dispensation. Considering the acute stagnation in the grade of
Superintendent of Central Excise, relaxation of Recruitment Rules can be
resorted to in respect of a class or category of persons as per provision of
Para 4.3, of PART IV on AMENDMENTS
AND RELAXATIONS,
of 'the Guidelines on Framing/Amendment/Relaxation of RRs' issued by DoP&T
in 2010. This is also in conformity with
the Article 309 of the Constitution of India which is primarily designed
to obtain fairness and equity in recruitment, promotions and other service
related matters. As the Superintendents of Central Excise are getting just
one promotion unlike the officers of other Department, RRs should be framed
accordingly to bring justice, fairness and parity.
(B)The
separate provision for ‘Note’ after sub-Rule 5(3)
(b) is not necessary as a combined eligibility list for all categories of Group
B officers after bringing them year wise at par in the matter of promotion,
mentioned in the sub-Rule 5(3) (a) (i), have been proposed to be prepared in the
amended consolidated sub-Rule 5(4) which includes the categories mentioned in
the said ‘Note’.
9. Suggested Amendment for Rule 5(4)
It should be substituted as below:
The vacancies to be filled by promotion shall
be filled from the categories mentioned in 5 3 (a) (i) after bringing them year wise at
par in the matter of promotion.
Suggested Amendment by way of insertion
of of ‘Note’ after the amended sub-Rule
5(4)
The following ‘Note’
shall be inserted after the sub-Rule 5(4) in the following manner:
“Note : It must be ensured that at all
points of time, the parity in promotion in respect all the 3 feeder cadres to
Grade VIII, i.e., amongst the cadres of Supdt.
Central Excise, Supdt. Customs Preventive and Appraiser as well as basis
feeder (feeder to feeder) streams (i.e., Inspector of Central Excise,
Preventive Officer and Examiner of Customs), is maintained with
reference to such eligibility list (to maintain
base cadre parity in promotions to Gr-A.) .
Reasons
10. Suggested Amendment for sub-Rule 5(5) (i)
The entire sub-Rule shall be substituted in the
following manner:
‘Appointments in the grade VII of Deputy Commissioner of
Customs and Central Excise (Senior Time Scale) shall be made by promotion from
amongst the officers in the lower grades in the following manner:
i)
Officers
who have either completed 4 years of regular service in the grade VIII or grade
pay of Rs.5400/-,
or
ii)
Officers
who have completed 6 years of combined regular service in the feeder grade to
Grade VIII and feeder grade to feeder grade of Grade VIII, taken together,
whichever is earlier, shall be
eligible for promotion in the Grade of Deputy Commissioner(Senior time Scale)
in Grade VII.
Reason
(A)
The Deputy Commissioner of Customs and Central excise (Senior Time
Scale) in Grade VII is not a distinct functional grade with any higher level of
responsibilities or any change of command than those associated with the grade
of Assistant Commissioner of Customs and Central Excise (Junior Time Scale) in
Grade VIII. The creation of such grade is essentially mitigatory and intended
to alleviate the stagnation. It is akin to grant of the scale of pay in the
mode of prevalent non-functional selection grade (NFSG).
(B)
Most
of the Group ‘B’ gazetted officers in the Central as well as State governments
are being promoted directly to a Senior Time Scale (STS) posts with Grade
Pay of Rs. 6600/- in PB-3 including CSS, CPWD, Railway Board, CSSS, AFHQ,
Rajya Sabha Secretariat, Forest services, Police services, Foreign Services,
Engineering services, State services etc., whereas the Group ‘B’ gazetted
officers of CBEC are being promoted merely to a Junior
Time Scale (JTS) post with Grade Pay of Rs. 5400/- in PB-3. These Gr-A officers should also be
granted promotion directly to a Senior Time Scale post with Grade Pay of Rs.
6600/- in PB-3 to maintain parity with similarly placed employees of CSS
& other Central Ministries/Departments.
Apart from the promotion directly to
STS post, the counterparts of Gazetted Gr-B officers of CBEC are
also given benefit of seniority in group ‘A’ at many places in lieu of the
service rendered by them in group ‘B’ in various services in Railways,
Administrative Services, Police Services, State Services etc., these group ‘B’
gazetted officers are also allowed the weightage of minimum of four years at
the time of entry into group ‘A’, giving them the due benefit of seniority in
lieu of the service rendered by them in the group ‘B’.
The
position in CPWD is even more encouraging where an officer with a grade pay of
Rs. 4600/- is being directly promoted to a post with a grade pay of Rs. 6600/-
(STS) and further directly to a post with the grade pay of Rs. 8700/- . Thus,
they don’t need to serve on a post with a grade pay of Rs. 4800/-, 5400/- and
7600/- for promotion to the post with a grade pay of 8700/- after entry into a
post with grade pay of Rs. 4200/-. Whereas in CBEC the Inspector Central Excise
who is recruited at Grade Pay of Rs.4600/- is not allowed to move beyond the
Rs.5400/- grade pay.
It is known fact that, the Group-B
non Gazetted officers of CBEC and Assistants of the Central Secretariat
Services (CSS), being analogous posts, are recruited through a common entrance
examination conducted by the Staff Selection Commission, with common scale of
pay.
(C) The condition, given in
the last line of the sub-Rule 5(5)(i) of the draft circulated by the
Board, that “the service rendered by the officers in temporary post in
Junior Time scale shall not be counted as ‘regular service’ for the purpose of
promotion to higher grade(s)” is in conflict with the definition of
‘regular service’ given in sub-rule 2(h) ibid. It flows from complete
misunderstanding between the term ‘post’ and the expression ‘an officer
appointed in a grade through such post’ either by way of promotion or
direct recruitment or through permanent post or temporary post. Once the
officer is appointed in a particular grade, he or she will be regarded as
belonging to the service under which the posts exist and in this respect, no
difference can be made between officers appointed either through permanent post
or through temporary post, by direct recruit or by way of promotion. The
continuation or counting of the regular service of that officer in that grade
is in no way dependent on the fate or tenure of the post. So the service
rendered by an officer in the grade of Assistant Commissioner (junior time
scale) has to be regarded as ‘regular service’ irrespective of appointment by
way of promotion or direct recruitment or to a permanent post or temporary
post. Therefore, the above provision which seeks to preclude any further
elevation of the Assistant Commissioners promoted against temporary posts is
wholly arbitrary and legally untenable.
11. Suggested Amendment for
sub-rule 5(5)(iii)
The entire sub-rule 5(5)(iii) shall be deleted.
Reason
The Rule is clearly violative of Article 14
of the Constitution of India. It has emanated from the complete
misunderstanding and misconception of creating separate grade for Assistant
commissioner appointed through temporary strength. The fact, that the same is
completely anomalous and unjust, has already been elaborated in the ‘reasons’
given under the proposed amendment of sub-Rule 4(1) of the draft RR circulated
by the Board. The contention that the service rendered by the Assistant Commissioners
appointed through temporary strength cannot be treated as regular service is
also equally unjust and bad in law for the reasons elaborated in the ‘reasons’
(B) given under sub-Rule 5(5)(i) above. Accordingly, this sub-Rule 5(5)(iii)
deserves to be deleted in its entirety. The manner of appointment in the grade
of Deputy Commissioner of Customs and
Central Excise (Senior Time Scale) (Grade VII) is already incorporated
exhaustively in the sub-Rule 5(5)(i) of the proposed amendment.
12. Suggested Amendment for sub-Rule 6
The words ‘by promotion in Junior scale’ shall be deleted.
Reason
This clause is essentially meant for new entrants. The
officers on promotion after more than 25 years of service and endowed with
vast experience should be given due
weightage and be exempted from such probation/confirmation.
13. Suggested Amendment for
Schedule-I to the RR
The following amendments shall be made in respect
of Schedule- I:
(A) Sl. No. 8 The
entries in Col. (3) showing ‘Number of Posts’, shall be substituted in
the following manner:
(a) Permanent strength- 1249
(b) Temporary strength- 2118*
(B) Sl. No. 9 To be deleted entirely
(C) The
existing ‘Note’ at the end of Schedule_I shall remain as ‘Note 1’
and a ‘Note 2’ shall be inserted after the
‘Note 1’ in the following manner:
Note 2: The
continuation of the temporary post beyond the period for which these are
created shall be reviewed by the Govt based on the factors of workload,
stagnation etc. However, as long as an officer, after
appointment in a particular grade against a post (permanent or temporary),
remains in that grade in conformity with the service conditions, the post
(permanent or temporary) against which the said officer is appointed shall not
be declared as abolished.
Reason
(A) & (B): The creation of separate grade for Assistant commissioner
appointed through temporary strength is a result of complete misunderstanding
and misconception. The fact, that the same is completely anomalous and unjust,
has already been elaborated in the ‘reasons’ given under the proposed amendment
of sub-Rule 4(1) of the draft RRs circulated by the Board. So, there can be
only single grade of Assistant Commissioner irrespective of the nature of post
(temporary or permanent) and irrespective of nature of selection (Direct
recruitment or promotion). So, the clause ‘Grade IX’, wherever it appears,
needs to be omitted.
Now, the definition of the term ‘post’ under Rule 2(g) ibid,
includes permanent as well as temporary
post in all grades. Accordingly, the authorised
strength (Number of Posts) of a particular grade should necessarily indicates
and includes appointment in any post, temporary as well as permanent, under
Indian Revenue Service (Customs and Central Excise) Group A Recruitment Rules.
As there can be only one grade of Assistant Commissioner, the mentioning of
both the permanent and the temporary post in the relevant column against the
sl. No. 8 of the Schedule-I (meant for the grade Assistant Commissioner (junior
time scale) in Grade VIII), therefore, is a necessity.
(C) The insertion of the ‘Note’ regarding
continuation of temporary posts is in conformity with the amendment proposed in
sub-Rule 4(3)(i) and the provision under sub-Rule 4(2). The detailed reason
have already been incorporated along with the amendment proposed for sub-Rule
4(3)(i) of the RR.
14. Suggested
Amendment for Schedule-III of RR
The following amendments shall be made in respect
of Schedule III:
(A) Sl. No. 7 The
entries in Col. (4) showing ‘Field of Selection, Grade and the minimum
qualifying service for promotion’, shall be substituted in the following
manner :
‘Appointments in the grade of Deputy
Commissioner of Customs and Central Excise (Senior Time Scale) (Grade VII)
shall be made by promotion in accordance with sub-Rule 5(5)(i).’
(B) Sl. No. 8 (1) The entries in Col. (3) showing ‘Method
of recruitment’ shall be substituted in the following manner:
(a) For Permanent strength
(i)
Maximum 10% by Direct Recruitment
(ii)
Minimum
90% by Promotion
(b) For Temporary strength
100% by Promotion
(2) In
the entries in Col. (4) showing ‘Field of Selection, Grade and the minimum
qualifying service for promotion’, for the words, ‘Fifty percent of the
vacancies in Grade VIII (Junior Time Scale) shall be filled by promotion in
accordance with Rule 5(3)(a)’, the following words shall be substituted :
‘Minimum Ninety percent of
the vacancies in Grade VIII (Junior Time Scale) shall be filled by promotion in
accordance with sub-Rule 5(3)(a)(i) and sub-Rule 5(4)’
(C) Sl. No. 9 To be deleted entirely.
Reason
(A) : For reasons as already appended to against sub-rule
5(5)(i) above.
(B) & (C): For reasons as already appended to against sub-Rule
5(2)(i), 5(3)(a)(i) and also for reasons appended to against the proposed
amendment of Schedule-I above. As there can be only
one grade of Assistant Commissioner, the mentioning of both the permanent and
the temporary post in the relevant column against the sl. No. 8 of the
Schedule-III (meant for the grade Assistant Commissioner (junior time scale) in
Grade VIII), therefore, is a necessity and that the the sl. No. 9 showing a
different grade of Assistant Commissioner has to be deleted.
15. Suggested
Amendment for Schedule-IV of RR
The following amendments shall be made in
respect of of Schedule-IV of RR:
(A)
Sl. No. 8 The entries in column 3 showing ‘DPC/DSC
for Non-Functional Selection Grade’
shall be substituted in the
following manner.
(B) Sl. No. 9 To be deleted entirely.
Reason
For reasons as already appended to
against Schedule-I and III above and also for the reason that for a single
grade, the constitution of the DPC should be identical. The role of UPSC should
be confined to direct recruitment of officers to Group-A at entry level grade.
It should not be involved for promotion of officers to Group-A level. As there can be only one grade of Assistant Commissioner,
the mentioning of both the permanent and the temporary post in the relevant
column against the sl. No. 8 of the Schedule-IV (meant for the grade Assistant
Commissioner (junior time scale) in Grade VIII), therefore, is a necessity and
that the the sl. No. 9 showing a different grade of Assistant Commissioner has
to be deleted.
(A.K.SHARMA)
PRESIDENT
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