Writ petition filed in High Court of Odisha with a prayer that the Superintendent of Central Excise and Customs may be given grade pay of Rs 5400 in PB-3 w.e.f. 1.01.06 and grade pay Rs. 6600 in PB-3 w.e.f. 01.01.06 to those Superintendent of Central Excise and Customs who have completed 4 years of Service in the grade and grade pay of Rs. 7600 in PB-3 w.e.f. 01.01.06 to those Superintendent of Central Excise & Customs who have been awarded with 2nd Financial upgradation in ACP Scheme and further a grade pay of Rs. 8700 to such officers on completion of 2 years.

IN THE HIGH COURT OF ORISSA; CUTTACK

WP(C) NO  __8821_________/2018

IN THE MATTER OF :

An application under Article 226 and 227 of the Constitution of India.

AND

IN THE MATTER OF :

Judgment dated 06.12.2017 of the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No – 624 of 2011.

AND

IN THE MATTER OF :

1.       All India Association of Central Excise Gazetted Executive Officers, Odisha Unit Bhubaneswar, represented by its General Secretary, Rabi Narayan Mohapatra, aged about 50 years S/o Baidya Nath Mohaptra, residing at NR-9, Khandagiri Plaza, Kolathia, PO. Aiginia, Bhubaneswar- 751019

2.                  All India Association of Central Excise Gazetted Executive Officers represented by Secretary General Ravi Malik aged about 57 years S/O Mahavir Singh, residing at   240, Razapur, Ghaziabad, Dist. Ghaziabad, Pin -201001 (U.P.)

   3.           Gouranga Chandra Roul, aged about 66 years S/o Padma Charan Roul, residing at Gajapati Nagar, PO. Sainik School, Bhubaneswar- 751005.

4.                 Niranjan Pradhan, aged about 62 years S/o Late Ananta Pradhan, residing at VIM-526, Saila Shree Vihar, Bhubaneswar-751021.

5.                 Lokanath Mishra aged about 62 years S/O Babaji Mishra residing at Jena Math Lane Near Panchu Chaura, Puri - 752001

…….  PETITIONERS 

-VRS-.        

1.       Union of India, represented by its Secretary, Ministry of Finance and Company Affairs, Department of Revenue, North Block, New Delhi, PIN – 110001.

2.       Chairman. Central Board of Indirect Tax and Customs (Previously Central Board of Excise and Customs), North Block, New Delhi, PIN – 110001.

3.       The Chief Commissioner, CGST, Central Excise and Customs           ( previously  Central Excise, Customs & Service Tax), Bhubaneswar Zone, C.R.Building, Bhubaneswar - 751007

                                                                             …. OPPOSITE PARTIES

The subject matter of this petition was never before this Hon’ble Court as per the instruction of the petitioners.

To,

The Hon’ble Shri Justice Vineet Saran, LLB, the Chief Justice of the High Court of Orissa and his Lordship’s companion Justices of the said Hon’ble Court.

The humble petition of the petitioner above named

MOST RESPECTFULLY SHOWETH:

1.            That in this Writ Petition, Petitioners have challenged the Judgement dated 06.12.2017 of the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No – 624 of 2011 filed by the Petitioners praying therein for quashing order dated 06.10.2010 of Govt. of India, Ministry of Finance, Department of Revenue, CBEC, rejecting the claim of the Petitioners for grant of pay scale of Rs. 8,000/- - Rs.13,500/- to Superintendent, Central Excise w.e.f 01.01.1996 at par with the Deputy Superintendent of Police, CBI and for the pay scale of Rs. 10,000/- - 325 – Rs. 15,200/- w.e.f 09.08.1999 to those Superintendents who had been granted the secured financial upgradation under ACP Scheme etc. Petitioners prayed for appropriate grade pays with effect from 01.01.2006 and to remove the anomaly retrospectively with effect from 01.01.1986. Petitioners have prayed for appropriate directions to the Opposite Parties to allow the Petitioner the above scale of pay for the Central Excise Superintendents with consequential Financial benefits and for quashing the impugned order dated 06.10.2010 of Government of India, Ministry of Finance, Department of Revenue, CBEC.

2.            That the cause of action arose within the territorial jurisdiction of this Hon’ble Court and such constitutes the cause of action is briefly stated as hereunder.

3.            That the Petitioner is the All India Association of Central Excise Gazetted Executive Officers Bhubaneswar Unit formerly known as All India Federation of Central Excise Gazetted Executive Officers, Bhubaneswar Unit. The Petitioners No.2 is the All India Association of Central Excise Gazetted Executive Officers.  The Petitioner No.3, is the retired Superintendent (Group-B), Central Excise and Customs. The Petitioners 4 & 5 are retired Asst. Commissioner (promoted from the grade of Superintendent) of Central Excise and Customs and have joined as Petitioners as they were also applicants before the Tribunal (petitioner No.5 was the General Secretary of the Association).

4.            That the members of the Petitioner No – 1 Association have been working as Superintendent and Assistant Commissioner including other promotee group A officers from Central Excise/CGST executive stream working in Central Excise and Customs in Odisha. The members of the Petitioners No.2 i.e.  the All India Association of Central Excise Gazetted Executive Officers have been working as Superintendent and Assistant Commissioner of Central Excise and Customs including the promotee group A officers from Central Excise/CGST executive stream throughout India. The petitioner No.1 is one of the affiliated units of Petitioner No.2.  Petitioners 3 to 5 were working as Superintendent of Central Excise and Customs in Odisha. Petitioners 1, 3 & 4 had filed O.A. No – 624 / 2011 before the Hon’ble Central Administrative Tribunal, Cuttack Bench for directing to the respondent for allowing the enhanced pay scale for Rs. 8,000 – 13,500/- (without ACP) w.e.f. 01.01.1996, allow the pay scale of Rs. 10,000 – Rs. 15,200/- to those Superintendents who have been awarded second financial up gradation under ACP Scheme w.e.f 09.08.1999, GP of Rs. 5400 in PB-3 w.e.f 01.01.2006, GP of Rs. 6600 in PB-3  on completion of 4 years as NFGP w.e.f 01.01.2006, GP of Rs. 7600 in PB-3 to IInd ACP holders as on 01.01.2006 and Grant of consequential releifs with arrears of pay  w.e.f 01.01.86 and interest with all consequential service benefits. Petitioners prayed for appropriate grade pays with effect from 01.01.2006 and to remove the anomaly retrospectively with effect from 01.01.1986.  The Petitioners also had prayed to give appropriate grade pay to the Superintendent of Central Excise and Customs at par with their counterparts in CBI/IB w.e.f 01.01.2006 and for consequential benefits.

5.            That the feeder grade for promotion to the post of Superintendent group-B in the department of Central Excise & Customs is "Inspector" and the feeder grade for Promotion   to   the   post of Dy.   Superintendent in the Central Bureau of Investigation is also Inspector CBI. The Respondents    also    admitted    that    the    duties    and responsibilities of Inspectors or Central Excise & Customs arc much more Arduous and Hazardous in comparison to the   Executive   Officers   of   Delhi   Police, CBI   etc.   and recommended strongly for enhancement of pay scale of Inspectors of Central Excise & Customs at par with the Inspectors of IB, CBI etc. Two OAs were disposed of by Jabalpur Bench of CAT with the observation to retain the parity   between   the   Inspectors   of   Central   Excise   & Customs and CBI/IB etc.

6.                  That all along the Inspectors of Central Excise & Customs and that of IB/CBI etc. were treated at par having equal scale of pay throughout and the 4th.Pay Commission also "recommended the equal scale of pay of Rs.1640-2900/- for the Inspectors of all the above Departments. However, this parity was disturbed by issuing the order of Central Govt. dated 22.09.1986 and the pay scale of Inspectors of CBI/IB were enhanced to Rs. 2000-320O/-. Since the date of enhancement of the scale of pay relating to inspectors of CBI/IB, representations were filed by the Federation as well as individual officers and the matter was under consideration by the Govt. on the question of maintaining parity between the Inspectors of all the above Departments. The matter was placed before the 5^th pay Commission at a later stage and the Commission observed to retain the parity by reducing the pay scale of Inspectors, CBI/IB from Rs.2000 – 3200/- to Rs. Rs.1640- 2900/- (pre - revised). But the Govt. did not accept the above recommendations of the Expert Committee and allowed the enhanced scale of Rs. 6500 – 10,500/- to all inspectors of CBI/IB.

The copy of the judgment passed in O.A. No.541/94 is annexed here unto and marked as ANNEXURE – 1

And Copy of O.A.No. 45/2000 by Hon’ble Jabalpur Bench of CAT are annexed herewith as ANNEXURE -2.

7.            That the 5^th Pay Commission considered the demand for revision of pay scale of Superintendent of Central Excise and Customs from the pre-revised scale of Rs.200O-3500/-to Rs.2375-3500/- made by the All India Federation of Central Excise and Customs Gazetted Officers but it was not accepted solely on the ground that it will disturb the horizontal relativities.

The Central 5^th Pay Commission was of the opinion that the Inspectors of CBI/IB as well as the Inspectors of Central Excise & Customs should be placed in a common pay scale of Rs.1640-2900/- as recommended by the 4^th Pay Commission. On the basis of the above observation, the Commission further observed in the matter of the Superintendent of Central Excise. that the enhancement of the pay scale of the Superintendent. Grade is not acceptable on the similar analogy. As the back-ground history relating to the claim for enhancement of pay scale of Inspector as well as Superintendent of Central Excise & Customs are having certain common elements for consideration, the applicants have explained relating to the case of the Inspectors and consideration of the same by the 5^th pay Commission.

This is further submitted that the horizontal hierarchical structure relating to Central Excise & Customs, CBI/IB and the pay scale as per the 4^th Pay Commission recommendations are extracted here under for ready reference.

Name of the Department                                              Scale

          C.B.I. Inspector                                                    Rs.1640-2900/-

        Dy.S.P.                                                           Rs. 2000-3500/-

I.B.     Asst. Central Intelligence Officer.                   Rs.1640-2900/-

Dy. Central Intelligence Officer.                     Rs. 2000-3500/-

Central Excise & Customs.

Inspector                                                               Rs.1640-2900/-

Superintendent                                                       Rs.20003500/-

8.            That after implementation of the recommendations of the 3rd. pay Commission, the Central Govt. fixed the equal pay scale of Rs. 650-1200/- for Superintendent of Central Excise & Customs and Dy. Supdt. of Police of CBI as well as Dy. Central Intelligence Officer in the IB with-effect from 01.01.73. The post of Dy.S.P. in the CBI was created in the year, 1963 and since the creation of the post the pay scales relating to Dy.S.P. in CBI and Supdt. of Central Excise & Customs were provided a common scale of pay. The above parity was also maintained in the 4th. Pay Commission having replacement scale of Rs. 2000-3500/-.

9.            That in the OM. No. 14017 /27/75-Estt(D)(pt) dated 7.3.84 issued by the Ministry of Home Affairs, the criteria for determining analogous post have been clarified. Keeping in view the guidelines, it is seen that the Superintendent. of Central Excise & Customs is analogous post to Dy.S.P. of CBI. The Superintendent of Central Excise are eligible to join the post of Dy.S.P. of CBI on deputation and the concerned Recruitment Rules also prescribe such posting on deputation, considering over all duties and responsibilities/ qualification and mode of recruitment etc. The 4th.Pay Commission also fixed equal pay scale of Rs.2000-3500/- for Supdt. of Central Excise & Customs and Dy.S.P. of CB/ as well as Dy. Central Intelligence officer in IB with effect from 01.01.86.

The Copy of the above OM dated 07.03.84 is annexed herewith as ANNEXURE- 3.

10.         That without accepting the recommendation of the Pay Commission, the Central Govt., on its own increased the pay scale of Dy.S.P. in CBI from existing pay scale of Rs.2000-3500/-to Rs. 2200-4000/- with effect from 01.01.1986 retrospectively vide its notification dated 8.2.1996 without recommendations of pay commission and also without any increase in their responsibilities. However, the Central Govt. did not revise the pay scale of Supdt.  of  Central   Excise   &  Customs   and Dy. Central Intelligence Officer of IB at par with Dy SP of  CBI w.e.f 01.01.1986. After implementation of the 5th. Pay Commission recommendations, the Central Govt. fixed the pay scale of Rs.6500-10,500/- for Supdt or Central Excise & Customs,  but gave the scale of Rs.8000-13,500/- to Dy.S.P. in CBI as well as Dy. Central Intelligence Officer in IB with effect from 01.01.96. Not only it, they are also being paid 25% extra salary per month and also one month extra salary in the year. 

The Notification dated 08.02.1996 enhancing the pay scale of Dy.S.P.in C.B.I. is annexed-herewith as ANNEXURE - 4.

11.         That it is respectfully submitted that CBI Recruitment Rules, 1987 considered the Central Excise and Customs Department. as a Central Police Organization and the post of Superintendent of Central Excise and Customs has been treated as analogous post to the post of Dy.S.P. in CBI and accordingly Superintendents of Central Excise and Customs are joining in CBI as Dy.S.P. on deputation
basis. One Shri P. Rosi Reddy, Supdt, Central Excise &
Customs Hyderabad (whose name is appearing at serial
no. 3560 of all India seniority list of Superintendent of Central
Excise & Customs Group-B issued as on 31.12.1992 by
CBEC) joined as Dy.S.P. in CBI on deputation basis as per
the notification and after joining as Dy.S.P. CBI, his pay
was fixed at Rs. 2575/- with effect from 15.2.91 in the
scale of Rs.2200-75-2800-EB-IOO-4000/-.

The Notification dated 08.03.1991 issued by the CBI Appointing Sri P .Rosi Reddy on deputation is annexed herewith as ANNEXURE - 5.

12.       That as explained above as per the recommendations of the 4^th pay Commission, the Central Govt. had fixed equal pay scale of Rs. 2000-3500/- for Superintendent of Central Excise and Dy.S.P. of CBI and Dy. Central Intelligence Officer in IB with effect from 01.01.1986.

            It is respectfully submitted here that certain Dy.
S.P. of CBI filed one O.A. before the Hon'ble CAT,
Principal Bench, New Delhi for enhancement of their pay
scale and the Hon'ble CAT passed one interim order and
the Central Govt. by accepting above interlocutory order
enhanced the pay scale of Dy. S.P., CBI from Rs.2000-
3500/- to Rs.2200-4000/-. However, in the      final judgment the Hon'ble CAT did not approve such enhancement of pay scale and directed to maintain the pay of Dy.S.P./CBI at Rs.2000-3500/-. After the judgment has been passed by the Hon'ble CAT, the Central Govt., did not follow the observation passed in the judgment and continued to pay the higher scale of pay of Rs.2200-4000/- under its notification dated 08.02.96. Central Govt. did not take any step for maintaining the parity in the pay scale of Supdt. Central Excise and Customs as well as Dy. Central Intelligence Officer/IB and allowed the disruption in the parity resulting in various grievances and agitations by the concerned officers in the Department of Central Excise and Customs as well as IB. After the implementation of the 5th. CPC, the Central Govt. fixed replacement scale of Rs.8000/-Rs. 13,500/- for Dy.S.P. of Police in CBI. However, to retain the parity the scale of pay of Dy. Central Intelligence Officer in IB was fixed in the above higher scale of pay of Rs. 8000-13,500/- but the same scale was not allowed to the Supdt. Central Excise and Customs and they were given replacement scale of pay Rs. 6500-10,500/-.

13.         That in the above background, on the demand of the coordination Committee of Federations in the Department of Revenue the Respondents constituted a High level committee consisting of the Chairman, CBEC, Chairman CBDT and Member P & V of both the Boards to go into the representations and demands of the Group ‘B’ and ‘C’ (executive) staff of Customs, Central Excise and Income Tax Services relating to their pay scale disparity and other grievances arising out of the recommendations of the 5^th Central Pay Commission and make appropriate recommendations to the Government.

The HPC after going into all the aspects of the matter came to the conclusion that the Dy. Central Intelligence Officer in IB, Dy.S.P. in CBI are comparable to the post of Supdt, Central Excise and Customs and they have recommended to retain the parity as was existing earlier.

The Report of the HPC is annexed herewith as ANNEXURE - 6

14.         That it is respectfully submitted here that the HPC came to the conclusion that the post of Supdt., Central Excise is comparable with the post of Dy.S.P. in CBI and Dy. Intelligence Officer in IB but a lower scale of Rs.7500-12,000/- was recommended for the Supdt., Central Excise and Customs on the ground that 'Customs Appraisers' are recruited through the same Civil Service Examination through which Group-A, IC &CES officers are recruited and giving pay scale of Rs.8000-13,500/- to them along with the Supdt., Central Excise and Customs will create difficulty from the operational point of view and in the matter of fitting them into the overall structure of the department.

This is respectfully submitted here in the above context that the provisions of direct recruitment of Appraisers in the department of Central Excise and Customs have been abolished by the Respondents in the year 2002 and intimated under C.No. 1(10) (4) 4 / Law/ BBSR-I /2002/8193A dated 17.4.03 i.e after submission of the HPC report.

This is further submitted here that the Group-A IPS officers and DSP/CBI are also recruited through the same Civil Service Examination but the above method of recruitment was not treated as any impediment for giving higher scale of pay of Rs.8000-13,500/- to the DSP/CBI and Deputy Central Intelligence Officer / I.B.. This is further submitted here-that as the direct recruitment of Appraiser has been abolished, there is no difficulty in retaining the parity or giving pay scale of Rs.8000-13,500/- to the Supdt. of Central Excise and Customs and the overall spirit of the HPC is also to retain such parity.

True Copy of letter dated 17.04.03 communicated by the department is annexed herewith as ANNEXURE-7.

15.         That in the circumstances, the Petitioners approached the Hon'ble Central Administrative Tribunal, Cuttack by filing O.A. No.  373/03 to direct the respondents to grant pay scale of Rs. 8,000 – 13,500/- to the cadre of Superintendent of Central Excise and Customs with effect, from 1.1.96 and the pay scales of Rs. 10000-15200/- to those Superintendent, who have been awarded with the 2nd. Financial up gradation under ACP scheme with effect from 9.8.99 alongwith prayer for other reliefs. Although the Respondents filed their counter and contested the matter on merits, during the pendency of the O.A. granted the higher scale of pay of Rs.7500-12000/- with effect from 21.04.2004 by issuing the office memorandum F.No.6/37/98-IC dated 21.04.04.

True copy of the O.M. dated 21.04.2004 is annexed herewith as ANNEXURE - 8.

16.         That the above upgradation was allowed as per the recommendations of the HPC which considered all other factors like the entitlement of the Superintendent of Central Excise and Customs to retain their parity with the Dy.S.P., C.B.I. and Central Intelligence Officer of IB. But the prayer of the applicants to give the pay scale of Rs.8000-13,500/- remained un-adjudicated in the facts and circumstances of the case. The applicants filed a memo for withdrawal of the O.A. to settle the grievances with the department and liberty was granted to approach the Hon’ble Tribunal again if Petitioners feel aggrieved by the action of the respondents.

17.         That in the circumstances Petitioners submitted a representation dated 27.04.2005 to the Opposite Party praying for enhancement of pay scales of Superintendent of Central Excise to Rs.8000-13,500/- with effect from 1.1.96 raising several grounds.

The copy of the order passed in O.A. No. 373/03 dated 19.01.2005 is annexed as ANNEXURE – 9.

And the copy of the representation dated 27.04.2005 is annexed herewith as ANNEXURE - 10.

18.         That earlier O.A. No. 181/06 was filed to direct the respondents to grant the pay scale of Rs. 8000-13500/-to the cadre of the Supdt. Central Excise and Customs w.e.f. 1.1.96 and the pay scale of Rs. 10,000-15,200/- to those Supdt. who have been awarded 2^nd Financial up gradation under A.C.P. Scheme w.e.f. 09.08.99 along with other reliefs. The departmental authorities also filed the Counter in the above case. After hearing the parties the above O.A. was disposed off on 25.1.2010. The Hon'ble Tribunal without going through the points raised in the O.A. directed the Respondent No.3 to consider and dispose of the representation under annexure – A/10 by March 2010 and communicate the result thereof accordingly.

The   copy   order dated 25.01.2010 is   annexed herewith as ANNEXURE - 11.

19.         That without answering the points raised in the O.A. or the representations made in this regard, the Respondents disposed off the representation by rejecting the claim of the Petitioners by issuing order dated 06.10.2010.

The copy of the above order dated 06.10.2010 is annexed herewith as ANNEXURE - 12.

20.         That the Committee constituted to look into the representation and demands of the Group-B and Group -C of executive staff of Customs, Central Excise and Income Tax service relating to their pay scale disparity has specifically observed in its report that the job contents and nature of duties of the post of Superintendent of Central Excise and Customs are similar to the post of Chief Enforcement Officer of Enforcement Directorate. Superintendent of NCB, UT Civil and Police Services (DANICS and DANIPS and NCT of Delhi) Dy. Central Intelligence Officer in IB and DSP in CBI are having similar Job Contents and nature of duties are comparable with the post of Superintendent of Central Excise & Customs. Despite such recommendation the Respondent enhanced the pay scale of Chief Enforcement Officers of ED from 7500-12000 to 8000-13500/- w.e.f. 4.10.2005 vide Order F.No. 1612612004-Ad.IC dated 4.10.2005 without recommendations of pay commission. Not only it, they are also being paid 25% extra salary per month again without the recommendations of pay commission.

This is further submitted here that 6^th Central Pay Commission in its report Para-7.15.24 has specifically stated as follows:

The posts of Asst. Enforcement Officer and Chief Enforcement Officer have traditionally been at par with the posts of Inspector & Superintendent analogous posts in CBDT and CBEC.  Subsequent to up gradation of posts of Inspectors ITOs/ analogous posts in CBDT and CBEC, the Govt. also upgraded the posts of Enforcement Directorate, Since the parity between these posts is well established the commission recommends that the same should be maintained in future.         

Moreover, the 6^th Central Pay Commission has also recommended to maintain the parity between the headquarters organization and the field officers vide chapter 3.1.

21.         That unfortunately violating the settled principle of law and
the recommendations of the 6^th Central Pay Commission, the grade pay of Superintendent of Central Excise and Customs has been fixed to Rs. 4800- in PB-2 and grade pay of Rs. 5400/- in PB - 2 for those Supdts who have completed more than 4 years w.e.f. 01.01.2006.

            The grade pay of Rs 5400/- in PB-2 has been fixed w.e.f. 01,01.2006 in case of Chief Enforcement officer in Enforcement Directorate. The Grade Pay of GP 5400 in PB-3 has been fixed to Dy. Central Intelligence Officer in IB and DSP in CBI, w.e.f. 01.01.2006.

                The competent authority in the Govt. of India (Department of Expenditure) has, however, approved an initial grade pay of Rs. 5400/- in PB2 for Central Excise Superintendents on 21.11.14 considering para 7.15.24 of the report of 6th CPC but it was communicated finally to CBEC vide UO No. 6/37/98-IC Dt. 24.11.14 to send the case to 7^th CPC by the Under Secretary level officer. It is really unfortunate and totally unjustified that the matter duly recommended by the 6^th CPC and duly accepted by the competent authority was again asked to be sent to 7^th CPC. It was, however, neither sent to the 7^th CPC nor implemented till date. Even if it was sent to the 7^th CPC and was again recommended, who knows that it would have not again been asked to be sent to the next CPC/s under an unending process.

 The above action of the Govt. is not only discriminatory but the same has resulted in grave injustice to the cadre of Superintendent of Central Excise & Customs. It is highly unjustified to create disparity between the 2 sets of employees whose job contents and nature of duties are similar as held by the pay commission as well as the High-Power Committee confuted by the Govt. itself and the above action is also unsustainable because the same is violative of the guidelines issued in the matter of compulsory arbitration by the Department of Personnel and Training Govt, of India. It is also worth to mention that in S. Balakrishnan & Ors. (WP 11535/2014 decided by the High Court of Madras on 16.10.14), the High Court decided that the Grade Pay of Rs. 5400/- in PB-3 is not a higher Grade Pay than the Grade Pay of Rs.5400/- in PB-2 and the immediate next higher Grade Pay to the Grade Pay of Rs.5400/- is Rs.6600/-. The SLP No.15396/2015 filed by the UOI in the Supreme Court against the above judgement was dismissed on 31.08.15. Thus, the judgement dated 16.10.14 of the Madras High Court has attained finality.

22.     That it appears while rejecting the grievances of the applicant the Respondents have not applied its mind relating to the various factors as narrated above and the grounds raised in the representation annexure- A/11 has also not been answered while passing the impugned order although the Hon'ble CAT has directed to consider the matter judiciously.

That in the circumstances, Petitioners were constrained to file the aforesaid Original Application in the Central Administrative Tribunal, Cuttack Bench, Cuttack praying for quashing the order date 06.10.2010 of the Opposite Parties and to direct to allow the scale of pay of Rs. 8,000 – 13,500/- to Superintendent Central Excise w.e.f.01.01.96 at par with DSP of CBI /CB and the pay scale of Rs. 10,000 – 325 – Rs. 15,200 to those Superintendents who had got financial up gradation under ACP Scheme alongwith other reliefs.

True copy of the said Original Application filed in O.A. No 624 of 2011 is annexed here unto and marked as ANNEXURE – 13.

Since all the annexures of the O.A. is already annexed as Annexures 1 to 13 of this petition, Petitioners filed annexure – 14 without annexures.

23.     That the Hon’ble Tribunal was pleased to admit the Original Application and directed noticed to Opposite Parties and the Opposite Parties filed their Counter affidavit denying the claim of the Petitioners.

True Copy of the Counter affidavit by the Respondents before the Tribunal is annexed and hereunto marked as ANNEXURE – 14 SERIES.

24.     That as there were misrepresentation of facts and misleading submissions made by the Opposite Parties in their counter affidavit, Petitioners were compelled to file a rejoinder to the said counter affidavit.

True Copy of the said rejoinder with annexures is annexed as ANNEXURE – 15 SERIES.

25.     That after hearing the Parties by judgment dated 06.12.2017 the Learned Tribunal dismissed the said Original Application due to erroneous application of fact and law and misplaced reliance on some judicial pronouncements and by committing serious illegality while passing the judgment.

                   True Copy of the judgment dated 06.12.2017 of the CAT, Cuttack Bench is annexed as ANNEXURE – 16.

Since the petitioners No – 1 and 2 represent quite a number of members and some of them have retired from service in the meanwhile and decision of the Association is required authorising to the office bearers to file the writ petition, Petitioners could not file this writ petition immediately after the judgment of the Tribunal.

26.     That in the circumstances, Petitioners are constrained to file this writ petition under Article 226 and 227 of the Constitution of India for quashing the impugned Judgment dated 06.12.2017 of Tribunal in O.A. 624 of 2011 on the following amongst other grounds;

GROUNDS

A.   For that, the judgment dated 06.12.2017 of the learned Central Administrative Tribunal, Cuttack bench is bad in law, shows total non-application of mind to the settled position of law laid down by the Hon’ble Supreme Court and different High Courts relating to parity/disparity in scale of pay of employees similarly situated.

B.   For that the scale of pay claimed by the Superintendent on the ground of disparity cannot be negatived only by stating that the above scale is admissible to the Asst. Commissioner in the hierarchy. Further, when the high power committee recommended for a lower scale to the Supdt. of Central Excise i.e. Rs. 7500 - 12000/- to keep intact a horizontal and vertical structure in the department, it is not known as to why the above scale cannot be made applicable to the Supdt. of Central Excise and Customs w.e.f. 01.01.1996 i.e. the date when the disparity arose.

C.   For that the Respondent while passing the impugned order has only relied upon in piecemeal way a portion of the 6^th Central Pay Commission Report so far, it's introspective Operation is concerned. It has not kept in mind the detail history of the case as narrated in the O.A. and the order dated 21.04.2004 under annexure-A/9 which has been passed giving higher pay scale of Rs. 7,500-12,000/- to the Supdt. Central Excise & Customs. the Respondents are not alive to the notifications, the judgment passed by the different Benches of the CAT, undertaking given specifically by the respondents before the CAT Mumbai Bench, the report of the high power committee who recommended specifically to remove the disparity after examining to nature of duties, responsibility, and job Contents of two analogous posts and illegality has been committed in not giving appropriate scale of pay as claimed by the Applicants w.e.f. 01.01.1996.

D.   For that although higher scale of pay of Rs. 7500-12000/- was given to the Superintendent of Central Excise and Customs by issuing the office memorandum dated 21.4.04, no reason has been assigned by the respondents as to why the higher scale of pay Rs.8000-13,500/- was NOT given with effect from 01.01.96 i.e. from the date of disruption of parity between two sets of similarly placed employees whose nature of duties, responsibility and the recruitment procedure are comparable.

E.   For that law has been well settled by the Hon'ble Supreme Court as well as by different Benches of the Hon'ble High Court and the Hon'ble CAT that where
the appropriate authorities came to the conclusion that
the higher scale of pay has to be granted to remove the
disparity then there is no reason for allowing  two different
dates to give effect and the higher scale of pay should be given from the same date as in the case of categories of employees relating to which it is proposed to remove the disparity.

F.   For that it is submitted here that as the provisions of direct recruitment of Appraisers has been abolished as communicated by the Respondents in CNo.(10)(4)/Law/BBSR-I/2002/8193A dated 17.4.03 i.e. after submission of the report of the HPC, there is no difficulty in implementing equal pay scale of Rs.8000-13,500/- to the Supdt. of Central Excise and Customs as Principally agreed by the HPC and the Central Govt. after abolition of the direct recruitment, procedure relating to Appraisers, have categorically admitted before the Hon'ble CAT, Mumbai Bench that they will examine the issues and take up the matter again independently but no action has been taken so far by the respondents for allowing the equal scale of pay of Rs.8OOO-13,500/- as yet.

G.   For that 3^rd, 4^th,5^th and 6^th Central PAY Commissions had recommended to award the pay scale of Dy. SP/CBI and Chief Enforcement Officer of the Enforcement Directorate to the post of Superintendent of Central Excise. The Respondents had accepted all the recommendations of 3^rd, 4^th,5^th and 6^th Central Pay Commissions but arbitrarily could not grant the same pay scale of Dy SP/CBI/ Chief Enforcement Officer to the post of Superintendent of Central Excise w.e.f 01.01.1986/ 01.01.1996/01.01.2006 reasons best known to them without any logic, rationale and therefore the Respondents had shown hostile discrimination between the two sets of employees having been treated alike by the 3^rd,4^th,5^th and 6^th Central pay Commissions.

H.   For that the level of responsibility, the duties, qualification, made of recruitment/promotion, volume/quality of work and reliability of the posts of Superintendent of Central Excise and Dy. SP/CBI/ Chief Enforcement Officer of ED are same under the provisions of OM dated 07.03.1984 (annexure A/3) for which the Superintendents of Central Excise are being considered to join in the post of Dy. SP/CBI/ Chief Enforcement Officer in ED  on deputation basis in accordance with the Dy. SP/CBI, Recruitment Rules/ Chief Enforcement Officer( now redesignated as AD) Recruitment Rules framed under the provisions of Article 309 of Constitution of India.

I.     For that the Respondents had accepted the High Power Committee report prospectively w.e.f. 21.04.2004 without stating any reason as to why the pay scale should not be effective on a date prior to 01.01.1996 as per recommendations of High Power Committee Report to awarded the pre – revised scale of pay operative during 01.01.86 to 31.12.1995 (during the operation of 4^th Central Pay Commission). The Hon’ble CAT, Mumbai Bench in OA No 86/2008 (Annexure – R/1) had interalia held that in the absence of any material to justify different date of implementation, rejection of the case of the Applicants for uniform date of implementation, rejection of the case of the Applicants for uniform date of implementation cannot be held to be legally valid.

J.    For that Respondents vide order dated 04.10.2005 (Annexure – R/5) had upgraded the pay scale of 8000 – 13500 at par with the pay scale of Dy. SP/CBI, arbitrary without upgrading the pay scale of Superintendents of Central Excise at par with the post of Dy. SP/CBI and Chief Enforcement Officer of Enforcement Directorate violating the recommendations of High Power Committee as contemplated vide paragraph 6 to the report (Annexure – A/7).

K.   That the feeder cadre of Inspector in CBEC/CBIC and CBI was placed at par in the matter of pay scale on 21.04.04 but the promotional cadre of Central Excise/CGST Superintendent is still awaited to be placed at par with the DSP of CBI (promotional cadre for Inspector in CBI).

L.    That the responsibilities of Central Excise/CGST Superintendents are on regular increase whereas there is no increase in the responsibilities of Dy. SP of CBI. For example, new higher responsibilities of judicial nature were conferred upon Central Excise Superintendents vide Circular No.  922/12/ 2010-CX issued vide F. No. 208/2/2009-CX-6 Dt. 18.05.10 and 130/12/2010–ST issued vide F. No. 137/68/2010-CX. 4 Dt. 20.05.10. Their responsibilities were again increased 10 times by enhancing the adjudication limit to Rs. 10 lac vide circular No. 1049/37/2016-CX issued vide F. No. 267/40/2016-CX.8 Dt. 29.09.16 of CBEC. No need to say that increased/higher responsibilities are always directly linked with the increased/higher pay scales. But very unfortunately, there is no increase in the pay scale of Central Excise Superintendents despite of the responsibilities of these officers being on regular increase even in every Budget of Govt. of India. Their adjudicating responsibilities have further been increased to Rs. 20 lac vide Circular No. 31/05/2018 – GST under GST issued vide F. No. 349/75/2017-GST Dt. 09.02.18. That the Central Excise/CGST Superintendents have also been conferred with new higher technical/scientific responsibilities of ACES since 2008 and now GSTN under GST. The claim of these Superintendents becomes even stronger on account of recording statements like a Magistrate under Section 14 of Central Excise Act & Section 108 of Customs Act having validity even before the Hon’ble Supreme Court. Not only it, the Adjudication Orders are also being prepared by them for Commissioner level officers. No need to submit that none of their counterparts including the Dy. SP of CBI has been conferred with such responsibilities.

M.  That despite of the admission by Expenditure Department Under RTI vide OM No. 1148/Dir(A)/2008 Dt. 08.12.08 that the pay scale of Central Excise Superintendent was enhanced on 21.04.04 to grant them parity with DSP of CBI/DCIO of IB (analogous counterparts of Central Excise Superintendent), Central Excise Superintendent was not given the said parity and was granted merely a lower pay scale of Rs. 7500-12000/- w.e.f. 21.04.04 instead of Rs. 8000-13500/- or equivalent (pay scale of DSP of CBI/DCIO of IB).

N.   That the Central Excise personnel are also deployed on International Airports, International Sea Ports and International borders side by side with IB, CBI, Army, BSF, CRPF and ITBP etc. These personnel have suffered heavy casualties while dealing with trans-border criminals and countering with the dreaded smugglers.  Also as per the OM issued vide F. No. 8/B/90/HRD (HRM)/2011 (Part-I)/4853 Dt. 21.10.14 and No.C.30013/11/2011-Ad.IV.A Dt.02.08.13 of CBEC/the Govt. of India, the Central Excise Superintendents perform their duties in the nature and style of ‘Military’ and ‘Navy’ being uniformed officers bearing “Ashoka Emblem”. Thus, Central Excise/CGST Superintendents are required to be placed under a pay scale even higher than the DSP of CBI on the lines of Military and Navy.

O.   That the Special Police Establishment (Executive Staff) Recruitment Rules and CBI Recruitment Rules, 1987 consider department of Central Excise as a Police Organisation. Section 21 of Central Excise Act and Section 53 of NDPS Act also confer powers of Officer-in-Charge of Police Station on Central Excise officers.

P.   That the plea by Central Excise Superintendents for grant of GP of Rs. 5400/- in PB3 has been turned down stating that it is the group ‘A’ entry scale belonging to the promotional post of Asstt. Commissioner, to which Superintendent is a feeder post. That being the case, the feeder post of Assistant and promotional post of Section Officer were placed in the same pay scale in CSS once upon a time just before the implementation of 6^th CPC report. Likewise, feeder and promotional posts were being placed in the same pay scale in Audit and Accounts services. Also Group ‘B’ officers in the Sate Governments and Group ‘A’ All India Service Officers are recruited in the same grade pay of Rs. 5400/- in PB3 and get next promotion to the same post in grade pay of Rs. 6600/-. Further, it is also a fact that the pay of any Assistant Commissioner (direct) will always be less than a Superintendent on account of acute stagnation at Inspector and Superintendent levels. Accordingly, there should not be any problem to place the Central Excise Superintendent in the Grade Pay of Rs. 5400/- in PB3 (Level 10). This problem may, however, also be solved by promoting the Superintendent directly to STS (Level 11) post like most of the other counterparts or even making the group ‘A’ entry into Grade Pay of Rs. 6600/- (Level 11).

Q.   That it is also worth to submit that only a negligible amount of merely around 80 paise is being incurred to collect Rs. 100/- by these officers despite of being faced the worst pay packages and also the worst career prospects. No need to say that the revenue collection and efficiency in the indirect tax administration would increase multifold, if these officers are made job-satisfied regarding their pay matters and career prospects.

R.   That the CBEC/CBIC has also recommended for the grant of a Grade Pay of Rs. 5400/- in PB3 (Level-10) for the Central Excise Superintendents at par with the DSP of CBI and also to give them next promotion in STS vide OM F. No.A-26017/154//2015-Ad.IIA Dt. 22.02.16  . But the matter is yet to reach the finality.

S.   For that the Hon’ble Tribunal failed to appreciate that the administrative Tribunal has been created as a Special Tribunal to take decisions in such matter relating to employment which are/were being decided by the Hon’ble High Court and Supreme Court in matter relating to State Govt. and Central Govt. under Art.226 and 227 of Constitution of India.

T.    For that, the Hon’ble Tribunal erred in fact and law by accepting that the Opp. Parties  have rightly came to the conclusion that the demand raised by the applicants for retrospective implementations of  parity in pay scale at par with Inspectors of CBI/IB is un reasonable and is like to set up as a wrong precedent.

U.    For that the Hon'ble CAT, Jabalpur Bench categorically observed while deciding O.A. No. 541/94 that the Inspectors of Central Excise & Customs are entitled to receive the enhanced scale of pay which was allowed to the Inspectors of CBI/IB from 01.01.86 i.e., the date from which their counterparts in CBI/IB were allowed the higher scale of  pay. The respondents also as a matter of principle agreed with the observation given in two judgments passed by the Hon'ble CAT, Jabalpur Bench and the Law Deptt. has also principally accepted that there is nothing wrong in the judgment passed by the Hon'ble CAT, Jabalpur Bench and the Inspectors of Central Excise Customs are entitled to the higher scale of pay at per with the Inspectors of CBI/IB.

V.   For that law has been well settled by the Hon'ble Supreme Court and various High Courts that once the appropriate authority comes to the conclusion that the claim of parity has to be granted then there is no reason for showing different dates for its effect and the revised pay scale should be given from the same date as in the case of other categories of employees relating to which it is proposed to remove the disparity. By not allowing the higher scale of pay from the date, the similarly situated employees were given, amounts to discrimination and cannot sustain in the eye of Law.

W. For that, in these circumstances the Judgment dated. 06.12.2017 of the Hon’ble Central Administrative Tribunal, Cuttack Bench in O.A No. 624 of 2011 is bad in law and liable to be set aside.

PRAYER

It is therefore humbly prayed that the facts and circumstances stated above and interest of justice, this Hon’ble Court be graciously pleased to admit the writ petition and after hearing the parties be pleased to issue appropriate writ/directions/declarations;

i.              Quashing the judgment dated 06.12.2017 of the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No 624 of 2011.

ii.            Quashing the order dated 06.10.2010 of Govt. of India, Ministry of Finance, Revenue Department (CBEC) rejecting the claim of the petitioners,

iii.           Directing the opposite parties to grant the pay scale of Rs. 8000-275-13500/- to the cadre of Superintendent of Central Excise Customs w.e.f, 01.01,1996 alongwith all perks & amenities etc. as being granted to the Dy.SP of CBI including 25% extra salary in month as well as one month extra salary in the year and the pay scale of Rs. 10,000-325-15200 to those Superintendents who have been awarded 2^nd Financial upgradation under ACP Scheme w.e.f.   09.08.1999 and consequently the corresponding grade pay scale/be allowed after 6^th Central Pay Commission recommendations.

iv.           Declaring that the disparity in the pay scale is required to be removed from the date when such disparity arose and direction be given to the respondents to effect the appropriate higher scale of pay to the Superintendent of Central Excise and Customs retrospectively i.e. from 01.01.1986.

v.             Declaring that Apart from the above scale consequent to 6^th Central Pay Commission the Superintendent of Central Excise and Customs may be given grade pay of Rs 5400 in PB-3 w.e.f. 1.01.06 and grade pay Rs. 6600 in PB-3 w.e.f. 01.01.06 to those Superintendent of Central Excise and Customs who have completed 4 years of Service in the grade and grade pay of Rs. 7600 in PB-3 w.e.f. 01.01.06 to those Superintendent of Central Excise & Customs who have been awarded with 2^nd Financial upgradation in ACP Scheme and further a grade pay of Rs. 8700 to such officers on completion of 2 years.

vi.           Direct the Opposite Parties to grant the consequential reliefs including re fixation of higher pay/pension w.e.f 01.01.1986 with arrear of pay and interest.

And pass any other order/orders as the Hon’ble Court may deem fit and proper.

And for this act of kindness, the petitioner shall, as in duty bound, ever pray.

CUTTACK                                          BY THE PETITIONER THROUGH

DATE:                                                                                                                                                                                               ADVOCATE