1. With the advent of the proposal to restructure the possibilities of achieving the parity in the matters of promotion is the highest. However, the proposals talk of distributing the additional posts available in terms of the present ratio of 6:1:2 and therefore instead of parity they are only talking different progressions to the three cadres.
2. In another petition made by fellow unit of the Association and also in respect of various depositions in the Supreme Court the Government admits of the need for change of ratio from the present one, to the ratio 15:2:1. Hence, we are 50% thru in respect of the main prayer of declaring the Recruitment Rules ultra virous of the Constitution.
3. The question of parity was raised in special communications to the CBEC by the petitioner units. The proposals have been discussed in the Board meeting dated 4th Jan, 12th Jan, 4th Feb and 18th Feb all of 2011. The reading of one of the documents i.e. the minutes of the meeting dt. 12th Jan 2011, gives the impression that the CBEC does not want to accede to the request directly; but is engaging itself in the process of confusing the cadre and its leadership by creating in-situ positions, which is really immaterial and irrelevant to the process of restructuring.
4. That the parity in the most simplistic manner was suggested by us, but the CBEC has been deliberating this over so many marathon meetings. This itself goes to suggest that the parity as per the dictionary meaning shall not be the conceived decision of the CBEC.
5. The CBEC at this juncture, has raised the question of base cadre seniority. Base cadre seniority would be the best thing to happen. We have asked for it in one of the prayers in the petition. But after following different policies over the year especially ‘Commissionerate load based’ distribution of posts in the restructuring of 2001; - has resulted in irreconcilable anomalies. In every likelihood, the different regions of the formations under Central Excise would take up different positions. This would result in multiple petitions thus delaying the promotions in the Central Excise wing in spite of the fact that around 4000 plus officers are to retire before 2013 – who in the circumstances would retire without any promotions.
6. In the course of discussions with the Commissioner DoPM on the 7th January 2011 at the instance of the Chairman, an impression was given which again is confirmed in the thoughts reflected in the minutes of the meeting dated 12th Jan 2011. They have shown an interest to favour some of their assistants who would other-wise not find favours in the formulation of a general policy to attain parity. In fact, due to this consideration only, there is a talk of creating in-situ posts - with laudable objectives of it being given to officers completing 20 years and 25 years of service.
7. In the circumstances, we feel that as promotions have been given to the appraiser’s upto 31.12.2001, we should press for promotions to all Superintendents both from the Central Excise and the Customs upto 31.12.2001. The following position emerges
Officers remaining in service as on 1/1/2011 waiting for promotion
Supdt of CE Supdt of Cus(P) Appraiser
1992 173 0 0
1993 411 0 0
1994 353 1 0
1995 337 1 0
1996 784 192 0
1997 1012 113 0
1998 155 70 0
1999 37 5 0
2000 124 4 0
2001 335 4 2
TOTAL 3721 390 2
Thus the total number of Officers joined/promoted up to 31/12/2001 in all the three feeder cadres, waiting for promotion as Assistant Commissioners, works out to 4113.Therefore, in order to bring parity among the three feeder cadres all the 4113 Officers as per the above table may be promoted as Assistant Commissioners in one go as a onetime measure without applying the existing ratio. This can bring parity with respect to date of joining in the feeder cadre (i.e.; up to 31/12/2001). This fits into the scheme of things envisaged in the current restructuring where new posts and the consequential vacancies number about 4245 posts.
8. The matter of parity cannot stop here as there is disparity throughout the rank and file of the Central Excise cadre, which has officers completing 10 years to 39 years of service both as Group B non-Gazetted and group B Gazetted. The above proposal shall take care of the senior rung of officers but shall not have any consideration for the medium and junior rung of officers. This consideration is necessary as the unconstitutional ratio of 6:1:2 has disturbed the entire fibre of the cadre from top to bottom.
9. As discovered after detailed study, the Appraisers of 2001 have been the Examiners of 1992. Viewing the position of Preventive officers (Group B non-Gazetted), the facts emerge that they have all been promoted in the Group B Gazetted in the year 2006. However, in respect of the Central Excise, there are many officers recruited in 1992 - have been promoted between the period 2002 and upto date. However, there are about 1476 no. of officers still remaining as Group B non-Gazetted in the various Zones as mentioned here-under:-
Sr.No. Zone Number
1 Maharashtra 611
2 Bhopal 146
3 Tamil Nadu 17
4 North East 178
5 West Bengal 151
6 Rajasthan 85
7 Patna 39
8 Chandigarh 68
9 Lucknow 181
10. In the present scheme of things as in the restructuring proposal, it may be appreciated that all new posts created and the consequential vacancies in Group B Gazetted would result in all Group B non Gazetted officers having completed qualifying service at present, getting promoted at the stroke of restructuring. At the same time, the officers of recruitment year 1992 who are Superintendents would not be promoted immediately – not before the vacancies from retirements start arising subsequent to restructuring. It is suggested that the base cadre seniority should be implemented in the grade of Superintendents at the stroke of restructuring with definite machinations such as weightage etc. to see that the base cadres match in the feeder cadre also.
11. The ultra-virous Recruitment Rules have affected the entire cadres of Central Excise. Whereas the officers from Customs went on getting the promotions un-hindered there was an illegal and unconstitutional estoppels for the Central Excise cadres. As a result, it shall be found that the officers of the Customs are at the highest rungs of the department – whereas the officers from the Central Excise were stuck up at the Group A entry levels without any progressions afforded to them. There will have to be some efforts required in this direction, in order to match up these levels by giving consideration of coevals. In other words, keeping recruitment rules aside for one time the coevals will have to be equated in terms of the specific rung of the cadre in which the Customs cadres have progressed. As seen from the tables of such Superintendents deserving up-heavel from the Central Excise cadres, they would stand to match the number of new posts proposed in the restructuring. As these officers do not have much balance service, if the posts are not available, super- numeric posts may have to be created to accommodate the deserving officers
12. All the above suggestions shall form the basis of parity which becomes logical on implementation of erroneous Recruitment Rules
13. Further to the parity obtained as above, the Recruitment Rules should be changed and a common seniority of all the three cadres be made. It shall not be difficult as many small groups like the Narcotics Officers etc. are a part of the seniority list of the Central Excise and the minority cadres of Appraisers and Customs Superintendents (P.O) are having separate seniority list. They are totally less than 1800 as compared to 12000 officers in the seniority lists of Central Excise.
14. The CBEC had agreed in the note for approval of Cabinet in 2001 that in order to curtail the legal wrangles, all the three cadres shall be combined into one seniority list with feeder cadre seniority i.e. date of officiation as the criteria. But the zeal to provide benefit to selected few, the system has been maintained unchanged in spite of assurances to the highest administrative authority.
15. The reasons why a new changed ratio etc. cannot be acceptable to the Central Excise cadre has been more elucidated in the Annexure to this note.
16. There are many disparities in respect to the qualifying services for promotion from Group B (non-Gazetted) to Group B Gazetted in the three feeder cadres. Whereas the Examiners have 3 years as the qualifying service, the Customs (P.O) and the Central Excise Inspectors have 8 years as the qualifying service. Obviously three analogous cadres under the same department cannot have different qualifying service. This needs to be made one. It seems the CBEC would only act at the instance of the Supreme Court.
All these considerations could never have come in the earlier petition.
As the proposal to restructure the department has just been declared. As there are continued efforts of the CBEC in evolving in-situ promotions in conjunction to the restructuring exercise, it is pertinent to guard the interests of the cadre through the interjection through the Supreme Court. The prayers in the new petition are expected to be modified with respect to the above note keeping the basic prayers similar.
In the WRIT PETITION © NO.306 OF 1987 ETC i.e. All India Federation of Central Excise etc.(Petitioners) Versus the Union of India & Ors (Respondents) the then Chairman CBEC had come up with an affidavit in which the present proposal of ratio of 6:1:2 was laid down in the Court. The Court also said that “We have gone through the above-mentioned proposal carefully and applied our mind and we find that the said proposal is fair, just and equitable in the facts and circumstances of the case. We also find that well-founded reasons are given for the ultimate solution given in the proposal”. Inspite of the proclamations of the then Chairman and the opinion of the Supreme Court expressed as above, here we are after 15 years of the implementation of the said proposal where the positions of the three cadres is as under :-
1. Superintendents of Central Excise February 1992
2. Superintendents of Customs September, 1996
3. Appraisers of Customs December 2001
It may be noted that this ratio was not a judiciously derived ratio and the suggested new ratio of 15:2:1 in the Courts recently is also not a scientific one. Both the ratios find its bearings on a DOPT ruling which specifies a ratio depending on the relative cadre strengths of the feeder cadres. We do not know whether this DOPT ruling has survived the test of time.
The reservation about the success of the formula applied in the DOPT rulings is that at no point of time the recruitments in the feeder cadres was done in the said ratio, Therefore reasonably speaking it will always happen that at a point of time some one cadre shall be leading the other two cadres in the promotional matters. And therefore the role of the department implementing.
As per the records of the Court, it is a fact that - it is after greatest persuasion and pressures from the Courts, that the CBEC now proposes to bring in a change of ratio. Again, the CBEC feels that by merely changing the ratio – it will be a magic wand and all problems will be settled. This will certainly not be.
So, in substance, the earlier formula was nothing more than an experiment and the next formula shall be one more such experiment where the department and the Courts shall probably guarantee its success as in the earlier case.
The consequences of the first experiment were experienced by this cadre only. What has the first experiment given to this cadre is
1. The stagnation of un-imaginable quantity and unacceptable levels with juniors of more than a decade ruling over more than 40% of the cadre;
2. Totally irresponsible and insensitive administration – insensitive to the needs of normal administration as well stoically unaware to the basic tenets of service jurisprudence.
3. Unconstitutional short circuit of the careers of about 4000 officers of caliber- as at a point of time when the juniors were being promoted it was only this ratio which precluded the administration from promoting them- and they retired without a second most deserving promotion; 4. And one more case in the Supreme Court; which itself was a colossal job in 1987 and it remains an equally arduous task even today.
We do not know where the second exercise shall take us. At the end of the first experiment, we find ourselves totally enslavened to the king-class of the combined Customs. This conclusion is based on facts which are laid on the tables of this forum. viz. primary amongst them all being that – Being analogous posts, the officer from the Customs is at least four pedestals higher than his co-evil Central Excise man. In fact, they would have been still higher had the overlords of CBEC the IRS cadre not stopped their advance.
As we do not know where the next exercise shall take us, we have to cause initialization. Hence, our first prayer that the Rule 18 of the Recruitment Rules as amended be struck down so that the next Recruitment Rules could be formulated for the future experimentation; i. e. the parity has to be established between the three cadres at the feeder cadre level as it existed at the commencement of the present Recruitment Rules which are being declared ultra-virous to the constitution of India..
That apart, even after so much of loss, since we comprise of a really disciplined cadre, we would like to consider the changes, as we believe in positive thinking. But that cannot be done before bringing the administrative miseries the department has thrust upon the Central Excise cadres to this august house.
The Central Excise cadre is fed up with this ratio business – not because of the ratio as such but because of the mannerism in which the same is implemented by the CBEC. The ratio has been implemented by the department always to the disadvantage of this biggest and most disciplined cadre under the aegis of CBEC. Every part of the order issued by the Supreme Court were used against us to the core. We now proceed to explain the vagaries shown by the department during the last decade and a half which goes as follows:- 1. In the decision of 306/1996 the SC had ordered the confirmation of all the promotions to the post of Assistant Collectors then - from 1987 to 1996 (until the date of the decision of the Supreme Court). The SC ordered the confirmations in the new ratio then of 6:1:2. As is well known, the promotions in the stipulated period had been made in the ratio of the three feeder cadres and more specifically in the ratio 4(Central Excise):1(Combined Customs). Naturally, as the regularisations were not to be made in the same ratio as the ratio in which the promotions were given; the department proceeded to work out the posts which were given in excess of the new quota to the Central Excise cadre. 2. Uptil that time the promotions between 1987 and 1996 were ad-hoc The confirmations came up belatedly in the August 2000. In the meantime, the department proceeded with further ad-hoc promotions. Except for the first order which was in the ratio 6:1:2; no other order, even for names sake was issued in this ratio 6:1:2. The explanation given by the department was that they had to allot certain posts of the Central Excise to the Customs in order to adjust the excess. 3. In such cases where the promotions are made in one ratio and are regularised in another due to certain facts or otherwise, the regularisations can be done only until the same procedure does not hurt the other feeder cadres. In fact the process of hurt started with the second order issued with inappropriate quota issued in 1997 -98. 4. In that order already the seniors of Central Excise department had been supersede by a junior from the Customs. The administration carried on issuing the orders unabated in their fancied ratio. So much so was the insensitivity towards the seniors working under their juniors that by 2007 25% of the cadre was compelled to work under their natural juniors (not just junior but juniors by about one and a half decade) started working under the analogous cadres of the Customs.
5. More specifically about 3000 plus (25%) officers have been working under the juniors from the Customs Appraisers (Total working strength.414 nos.) and Customs (P.O.) (Total working strength 1450 nos or thereabouts). The situation mentioned above could have been avoided by creating super numeric posts on promotion as AC’s on the Central Excise cadre who had shortest time of service left before retirement on super-annuation after promotion. The relevant period was after 1997. In fact after August 1999 the realm of ACP came when the officers under consideration were even otherwise drawing salary of the next post in the hierarchy i.e. AC’s salary and therefore the permissions required to be procured for proceeding on issues of creating super-numeric posts would have been procured quite easily, as generally payment is the routine reason of denials. (Copy of the DOPT order is attached).
6. Though the department had finalised the Recruitment Rules in 1998 and had completed the confirmations for the period 1987 to 1996 in August 2000; they continued to issue ad-hoc promotion orders for the said period. By doing this the Central Excise Officers were put in a quandary. If questioned, the authorities would come up with the plea that the orders were ad-hoc and would be regularised in six months when error if any could be corrected.
7. The person who would otherwise be promoted would not go to the Court due to firstly fear of lengthy proceedings covering a larger period of time and also for the fear of being transferred to far flung places. The placement policy is that they became liable for transfer and to distant placed unless the period before retirement was less than 2 years. The CBEC like-wise carried on issuing orders in respect of Customs personals unabatedly. It is discretely questionable at this point of time, whether the orders were issued with malafide? However, until they did the confirmation nothing could be said.
8. There after the department kept on giving promotions in a skewed ratio other than the prescribed one under the pretext that they had detected a shortfall in the allotted posts to the Customs during the period 1987 to 1996. The department never came up with the figure of shortfall and went on giving promotions rampantly and in different trances as and when the occasion for giving promotions arose. The promotions have been kept ad-hoc even after 15 years These orders have till date not been regularised. Reasons for not regularizing are best known to the CBEC. Again this was a ploy to keep the Central Excise officers out of promotion.
9. In 2007 or thereabouts, one Chairman stopped issuing promotion orders under some pretext. However, the CBEC for the reasons best known to them stopped at that and curiously issued that so called drawback order in respect of Appraisers on 19.11.2010; promoting these officers. This petition carried a request for stay.
10. So the Customs personnel went on to become the big bosses in the department, while their co-evils in Central Excise languished in the lower echelons. Naturally, there was a chain reaction and as there were less promotions from Group B to Group A on the Central Excise side, officers remained stagnated in Group B non-gazetted. As a result by way of generalizations, the Central Excise which constitutes almost 50% of the department was totally stagnated whereas the Customs which is less than one tenth of the strength went on getting promotions
11. To top up this injustice, in the proposed restructuring of the department, the administration no more treats the cadre as analogous to Customs. Many posts are being created in the Group A as well as in Group B Gazetted during this restructuring but the opportunity of using this creation of many new posts in the latest restructuring to bring in parity amongst the three cadres is not spelt out at all. Instead of considering it as an opportunity to make parity between the cadres, the CBEC has proposed different progressions for the three cadres taking it for granted that the cadre of Central Excise was a slave cadre and only the two Customs cadre had the rights of better progression. (Chapter 16 para __ of the proposal).
12. The process of confirmations imbibed in August 2000 is also questionable – on which a separate note is attached as Annexure.
13. Again to recapitulate - the ratio stipulated at that time in 1989-90 was based on very un-natural parameters viz. Group A Officers i.e. Assistant Collectors at that point working under the Customs Act and those working under the Central Excise Act. The posts of officers working under the Preventive Customs formations / Commissionerates were taken into the quota of the Customs though the actual personnel from Central Excise manned the said posts. In spite of several representations in the 14 years from 1997 to upto date the administration never thought of changing the said quota, though it was well known fact that all the while the Central Excise cadres were suffering badly in terms of promotion etc.
14. At that point of time only Assistant Collectors were rampantly found in the implementation of tax statutes. In the course of time the IRS cadres have made at least 4-5 ladders viz. Deputy Commissioners, Joint Commissioners, Additional Commissioners, Commissioners and Chief Commissioners. Should their count not matter? But the administration has a pro-Customs flavour and they do not want a deviation and tilt slightly also to the Central Excise cadres.
15. Service Tax has come to be implemented by the Central Excise officers since July 1994 i.e. almost about 2 decades ago. Though a timely improvement on this score would have helped the tottering cadres of Central Excise in which scores of officers were retiring by the day. As the ratio was made dependant on the posts manned at group A level working on Customs Act and Central Excise Act this was a very crucial moment to bring in the requisite change in the policy. But the department slept on this important issue and now Service Tax is administered almost for two decades but no change has come over in respect of promotion quota etc. Again since it would have been an action in favour of the majority Central Excise cadres – so no changes have been implemented.
16. Another well known fact is that almost all officers of Central Excise especially in the hinterlands have to implement Customs Act in their day to day routine. The implementation of the Act is no more a prerogative of Customs. In the normal working of the Central Excise cadres, the work under the Customs Act and the Central Excise Act are so much integrated that it is impossible to segregate the same. However, the vice-versa is not true. The Customs officers only implement the Customs Act. The Associations have been representing for several years on this count to have one cadre which it is indeed and discontinue the division. Yet this factor is beyond getting factored into the policies of promotion especially to the discontent of the majority cadre - the Central Excise officers.
17. In the first restructuring of the department which took place in the year 2001/2002, the department went to the Cabinet with the proposal of a unified cadre at all levels. The Cabinet gave an approval to the said proposal wherein this was a very important administrative reform. It was announced that all the multiple cadres would be done away with in order to curb the legal fights in the Courts etc between different cadres etc. and there would be one cadre in the Group B non-Gazetted and one cadre in the Group B Gazetted officers. It was cherished by the Central Excise cadre. With trainings being provided to all concerned to combine all cadres in developing multi-skilled officers. In fact the multiple cadres only exist at the Group B Gazetted and non-Gazetted levels. But there was no effort on the part of the department in this direction in-spite of the promise to the highest administrative body viz. the Union Cabinet.
18. On the contrary as the Associations from Central Excise started pressuring at the Revenue Secretary level, in 2003 the then Chairman in the CBEC constituted a committee under his own leadership and brought out a report saying that the merger of the cadres could not be possible at least for the next twenty years.
19. Be it the current ratio or be it the new one, unfortunately the CBEC carries out the dictum issued ratio by the Supreme Court inspite of the fact that now 40% of the majority cadre – Central Excise (total cadre 12000 or thereabouts) works under the natural juniors from the Customs (total combined strength less than 2000). In spite of representations over the last decade and a half it has been found that there is no change forthcoming. It will not be possible for the cadre to come to the Supreme Court every now and then. Hence we abhorn any special conditionalities to the matters of advancement of career progression. We find that we have been unconstitutionally barred from getting most natural benefits in the career and are made to tolerate most innocuous situations. Hence we request that the matters be kept simple and need not be made complicated by introducing quota. Quota is a tool given in the hands of the corrupt Secretarial staff who seldom misguide the IRS cadres on issues of career management and human resource development. Unfortunately, the IRS cadre does not have any experience of any worth until they come to the highest ramparts of power and hence the situation dwindles down to a series of mistakes committed. As such officers remain in the situation of power for a few months or at the most a year, they are found to be lacking courage to change the course of events and are seldom found to be having their own selfish agenda.
Every sin in the annals of administrative practices have been committed by the administration of CBEC in the history of 15 years of time when the quota system is being followed. Remembering this history, there is not a thing which enthuses the Central Excise cadre to try out the system once again with the proclaimed change in ratio. Instead we proceed to describe a more pro-employee arrangement which would be fair to all cadres. After all the differences in the feeder cadres only appear at the entry Group A level of CBEC. Neither do they exist at the lower levels nor the distinction so made carries out at the higher levels other then the entry grade level of Group A. Hence it is felt that it should be treated as one analogous cadre with proper career advancement to all.