12
Before The Hon'ble Central Administrative Tribunal Ernakulam Bench
O.A. No. OF 2009
Applicant: -
S. Asoka Narayanan, aged 42 years,
S/o N. Subramonian Potti, Superintendent of Central Excise,
Audit Section, O/o the Commissioner of Central Excise & Customs, I.S.Press Road, Cochin – 18, permanently residing at
“Thalayattumala Narayanam”, K.V. Nagar, Peyad.P.O.,
Thiruvananthapuram.
-VS-
Respondents: -
1. Union of India,
represented by Secretary, Department of Revenue
Ministry of Finance, New Delhi.
2. The Chairman,
Central Board of Excise & Customs,
North Block, New Delhi.
3. The Chief Commissioner of Central Excise, Customs
& Service Tax, Kerala Zone, Central Revenue Building,
I.S. Press Road, Cochin-682 018.
4. The Commissioner of Central Excise, Customs
& Service Tax, Central Revenue Building,
I.S. Press Road, Cochin-682 018.
Address for service of the Applicant is that of their counsel M/S. Shafik. M.Abdulkhadir, K.M.Anthru, R. Sreeraj, Shameena Salahudheen, Safiya Shafik, P.C. Kunjappan, Advocates, Shafik Abdulkhadir Associates, Lisie Hospital Road, Cochin 682 018 and Address for service of the respondents is that of their respective address as shown above.
Original Application filed under Section 19 of the Administrative Tribunal’s Act 1985
DETAILS OF THE APPLICATION.
1. Particulars of the Order Against Which The Application Is Made:-
(1) Order C.No.II/24/A-7/2008 Accts. I dated 25.2.209 issued by the IVth Respondent. (Annexure A-1)
(2) Letter F. No. 26017/98/2008-Ad.II.A dated 11.2.2009 issued on behalf of the IInd Respondent. (Annexure A-2)
2. Jurisdiction of the Tribunal: -
The Applicant declares that the Subject matter of the application is with in the jurisdiction of this Tribunal.
3. Limitation
The Applicant further declares that the application is within the limitation period prescribed in Sec. 21 of the Administrative Tribunals Act, 1985.
4. Facts of the Case
1. The Applicant is aggrieved by the Order C.No.II/24/A-7/2008 Accts.I dated 25.2.209 issued by the IVth Respondent, canceling the pay fixation of the applicant in the scale of Rs. 7500-250-12000 with grade Pay of Rs.5400/- on implementation of the upgradation of the Pay scale as per the ACP Scheme of the Government of India and reducing and re-fixing his pay without even issuing a notice. The truecopy of the said order is produced herewith and marked as Annexure A-1. The applicant is further aggrieved by the Letter F. No. 26017/98/2008-Ad.II.A dated 11.2.2009 issued on behalf of the IInd Respondent as per which the scale of pay of non Functional grade in the cadre of Superintendents of Central excise, is directed, not to be given to the Inspectors of Central excise on upgradation of pay, as per ACP Scheme. The truecopy of the said letter is also produced herewith and marked as Annexure A-2.
2. The Applicant is presently working as a Superintendent of Central Excise in the office of the Commissioner of Central Excise & Customs, Cochin Commissionerate. The Applicant joined the department as an Inspector of Central Excise on 15.01.1992. He was promoted as Superintendent of Central Excise on 30.06.2008. It is submitted that Inspectors of Central Excise are the cutting edge of the executive arm of the Department deployed for the collection of Central Excise & Customs duties and Service Tax, for prevention of evasion of taxes and smuggling activities, for patrolling of frontiers and coastline; for prevention of trafficking in narcotic drugs and psychotropic substances, and various other allied functions. The Inspectors of Central Excise also work in agencies like Directorate of Revenue Intelligence, Directorate of Central Excise Intelligence, Economic Intelligence Bureau and Narcotic Control Bureau.
3. It is respectfully submitted that the Inspector of Central Excise was in the pre-revised pay scale of Rs. 6500-10500 and the Superintendent of Central Excise was in the pre-revised scale of Rs. 7500-12000. Consequent to the implementation of the 6th Central pay Commission report, Inspectors of Central Excise has been placed in pay band 2 with a grade pay of Rs. 4200/- and the Superintendent of Central Excise in pay band 2 with a grade pay of Rs. 4800/- and a grade pay of Rs. 5400/- after a period of 4 years. As per the present hierarchy of cadres, Superintendent of Central Excise is the immediate promotion post of Inspector of Central Excise.
4. It is submitted that 2/3rd of the posts of Inspectors of Central Excise is filled up through direct recruitment on the basis of examinations and personality test conducted by the Staff Selection Commission and the physical tests conducted by the Department. The post of Preventive Officer of Customs and Examiner of Customs in the Custom Houses of the Department are also filled by the same examination. All the three posts carry the same pay scale and same level of responsibilities. The post of Inspector of Central Excise is highly stagnating cadre and a direct recruit Inspector, gets his 1st and in most cases the last promotion after a period of 16 to 22 years. This has caused large-scale resentment and frustration among the cadres. This is compounded by the fact that the equally placed cadres of Preventive Officer and Examiner of the Customs Department get their promotion within 6 to 10 years.
5. While so the 5th Central pay Commission observed in paragraph 22.31 of the report that the recommended ACP scheme aims at providing a minimum of two promotions to each Group ‘B’, ‘C’ and ‘D’ employee and three promotions to each Group ‘A’ employee in the entire career span, after appointment in a grade on direct recruitment basis. The proposed promotion under the scheme shall however be restricted to financial upgradation in the pay scale alone and shall not be linked to the availability of a post in the higher grade on functional basis. The salient features of the scheme recommended by the Commission were that Financial Up gradation will be in the next higher grade in accordance with the existing hierarchy in a cadre/category of posts and that on promotion to the next higher grade under the Assured Career Progression Scheme, the full benefit of pay fixation in the higher scale as in case of promotion in a higher grade shall be given and on promotion in the higher scale on occurrence of a vacancy, no further financial benefit shall accrue. The stagnating cadre of Inspectors of Central Excise received some respite on the introduction of the Assured Career Progression Scheme as per the recommendations of the 5th Central pay Commission. The truecopy of the ACP Scheme issued as per OM No. 35034/1/97-Estt(D) dated 9.8.99 by the Ministry of Personnel, Public Grievances and Pensions, Government of India is produced herewith and marked as Annexure A-3. In terms of the A-3 OM, the employees are entitled to two financial up gradations in the 12th and 24th year of service.
6. Consequentially a circular was issued by the Ist Respondent as per Letter F. No. A.32011/8/98 – Ad III A dated 23.08.1999 specifying that the 1st Financial Up gradation under the ACP Scheme to the Inspectors of Central Excise would be to the pay scale of Superintendent of Central Excise. The truecopy of the said letter is also produced herewith and marked as Annexure A-4. Accordingly the applicant was granted the pay scale of Superintendent of Central Excise under the ACP scheme with effect from 01.01.2004.
7. Whileso the Government of India vide Resolution No. 1/1/2008 IC dated 29.08.2008 of the Department of Expenditure, Ministry of Finance accepted the recommendations of the 6th Central pay Commission with the modification inter alia that Group B Officers of the Department of Post, Revenue Etc will be granted Grade Pay of Rs. 5400/- in PB2 on non-functional basis after 4 years of regular service in the grade pay of Rs. 4800/- in PB-2. The truecopy of the said resolution No. 1/1/2008-I C. dated 29.8.2008 published in the Gazette of India is also produced herewith and marked as Annexure A-5. The Central Civil Service (Revised Pay) Rules 2008 was also notified by the Government with effect from 01.01.2006 and as per Section II of Part C of the First Schedule of the Rules the Income Tax Officer, Superintendent, Appraiser etc. (Customs & Central Excise) under the Department of Revenue has been granted a grade pay of Rs. 4800/- and a grade pay of Rs. 5400/-, after 4 years.
8. Hence the Inspector of Central Excise, a Group B officer under the Department of Revenue placed in the grade pay of Rs. 4800/- corresponding to the pre-revised scale of Rs. 7500-12000, on the first financial upgradation under the 1999 ACP scheme became entitled for the grade pay of Rs. 5400/- after a period of 4 years. When a doubt arose as to how the 4 year period is to be counted for the purpose of granting non-functional up gradation to Group B officers, the Central Board of Excise & Customs, in consultation with the Department of Expenditure examined the question and clarified that the 4 year period is to be counted with effect from the date on which an officer is placed in the pay scale of Rs. 7500-12000 (pre-revised). Thus if an officer has completed 4 years on 01.01.2006 or earlier, he will be given the nonfunctional upgradation with effect from 01.01.2006. The truecopy of the said clarification issued as per Letter F. No. A.26017/98/2008-Ad II A dated 21.11.2008 issued on behalf of the IInd Respondent is also produced herewith and marked as Annexure A-6.
9. Consequently based on the A-5 resolution, A-3 ACP scheme and A-6 clarification the Applicant was granted a Grade Pay of Rs. 5400/- from 01.07.2009. The true copy of the said Pay fixation memo issued to the applicant is produced herewith and marked as Annexure A-7. The applicant has been drawing his salary based A-7 thereafter. Whileso it would appear that A-2 clarification has been issued by the same authority directing that the grade Pay of Rs.5400 need not be given to those who are drawing the salary of Superintendents by ACP. A-1 order is thus issued without giving any notice to the applicant canceling A-7 fixation resulting in reduction of his pay. The action of the Respondents is highly arbitrary and is against the aim of the ACP scheme and the resolution of the Government of India as evidenced by A-5.
The applicant is highly prejudiced by Annexure A-1 order reducing his pay without notice, in spite of his clear entitlement, as per A-3, A-5 and A-6 clarification. Under the above circumstances, the applicant is having no other efficacious alternative remedy other than to approach this Honourable Tribunal in the interest of justice.
5. Grounds For Reliefs With Legal Provisions
A. The action of the respondent in issuing A-1 order canceling A-7 order and ordering re-fixation and recovery without issuing any notice, that too based on a incorrect clarification, is highly irregular, illegal and arbitrary and is violative of all canons of law of natural justice. The action of the 4th respondent in issuing A-1 order is highly arbitrary and unbecoming of a premier department of the Government of India like the Central excise Department.
5. B. As can be seen from A-3 Scheme, due to the delay in granting promotions, an upgradation to the pay scale of the next higher post, in the instant case to the level of the Superintendent of Central excise, is granted by the Government of India as per the recommendations of the Vth CPC. The provisions of the A-3 scheme has been formulated by the Department of Personnel of the Ministry of Personnel, Public grievances and Pensions, ad any clarifications relating to the same is to be issued by the Said Ministry and not by the Department. As per the Scheme and as can be seen from A-4 letter the financial upgradation granted on the basis of the A-3 scheme to an Inspector is to the pay scale of Superintendents. As per A-5 resolution of the Government of India, 2 pay scales are attached to the post of Superintendents and both are applicable to an Inspector on functional promotion. In fact it is pertinent here to point out here that the ACP benefits itself are granted due to the lack of promotional avenues and to avoid stagnation in the cadres. The idea behind the orders of the Government of India, in issuing the ACP scheme itself is to alleviate the difficulties faced by the employees due to stagnation and as the opening sentence of the said scheme;
“ The ACP scheme needs to be viewed as a ‘Safety net’ to deal with the problem of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues.”
The present interpretation as per A-2 without even consulting the concerned ministry which issued A-3 Scheme defeats the very purpose and intention of the scheme itself. Moreover as can be seen from para 3.1 of the OM;
“Keeping in view of all relevant factors, it has, therefore, been decided to grant two financial upgradations as recommended by the fifth Central Pay Commission and also on accordance with the Agreed Settlement dated September 11,1997(in relation to group ’C’ and ‘D’ employees) entered into with the staff side of the National Council (JCM) under the ACP scheme to Group ‘ B’ ‘C’ and ‘D’ employees on completion of 12 years and 24 years (subject to condition no.4 in Annexure I) of regular service respectively.”
The idea is to upgrade the pay of an official to that of the higher promotional post when there is a defined hierarchy and to grant all financial benefits attached to the post irrespective of the availability of vacancy in that cadre and not to restrict a portion of the benefits attached to the posts. The present action is highly objectionable, as it is without any notice or consultation with the issuing ministry but to the convenience of the Department, that too without benefiting anyone. The action of the Respondents is highly irregular and is to be interfered by this Hon'ble Tribunal in the interest of justice. It is respectfully submitted that the IInd Respondent is exercising jurisdiction over an issue where he doesn’t have any and is presumably directing the IVth Respondent, who is empowered to issue orders in pay fixation without any proper analysis of the issue. It is respectfully submitted that the impugned order thus is issued in excess of the powers of the IInd Respondent, on extraneous considerations and thus is liable to set aside by this Hon'ble Tribunal in the interest of justice.