Tuesday, November 29, 2011

Attention DOS of Central Excise - Representation against proposed merger of DOS with STA

Pl. find enclosed herewith representation received from our colleague.   I have posted it here for all Deputy Office Supdts. of Central Excise to download and send the same thro proper channel to the concerned higher ups. 

From
Dy. Office Superintendent Central Excise : .
________Commissionerate.

To

The Chairman,
Central Board of Excise & Customs,
North Block, New Delhi – 110001.


(Through proper channel)

Respected Sir,


Sub:- Promotion from the feeder grade posts in PB-1 with grade pay of s.4200/- to promotional post in PB-2 with grade pay of Rs4200 in Ministerial cadres under the administrative control of field formations of CBEC
********
With due respect I, the undersigned, would like to invite your kind attention to the letter F.No.C.12034/16/20111-ADIII B dated 02.11.2011 issued by Under Secretary, AD. IIIB on the above subject. Copy is enclosed for ready reference please.

2. In this context, I request you to consider the following points before any action, detrimental to the career prospects of all officers in the cadre of Dy. Office Superintendent working under the field formations of CBEC, is taken in the haphazard way as proposed by the Chairman, CBEC, for merger of the promotional posts of Dy. Office Superintendent in supervisory cadre (Gr. B-Non Gazetted) with that of their feeder cadre of Sr. T.A. (Gr. C ) working in the subordinate offices under CBEC (RRs of DOS, 2009 & Sr. T.A., 2003 refers).

3. Consequent to the implementation of the Sixth CPC, vide part C, Section II, First Schedule to the Central Civil Services (Revised Pay) Rules 2008 regarding Revised Pay Structure For Certain Posts in Ministries, Departments and Union Territories, the pre-revised pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 were merged in the pay band of PB2 – Rs. 9300-34800 with grade pay of Rs.4200/- in the revised pay structure. However, vide Ministry’s F.No. 1/1/2008-IC dated 13.11.2009, it was decided that the posts, which were in the pre-revised scale of Rs. 6500-10500 as on 01.01.2006 and which were granted the normal replacement pay structure of grade pay of Rs. 4200 in the pay band PB-2, will be granted grade pay of Rs. 4600 in the PB-2 corresponding to the pre-revised scale of Rs. 7450-11500 w.e.f. 01.01.2006.

4. In this regard, kind attention is invited to the hierarchy of the posts in the Ministerial cadre in the subordinate offices under the Central Board of Excise & Customs. The post of Sr. Tax Assistant with pre-revised scale of Rs.5000-8000, which is the feeder cadre for the promotion to the post of Dy. Office Superintendent, and the post of Dy. Office Superintendent with pre-revised scale of Rs.5500-9000 have been merged and placed in the same pay band and grade pay of Rs. 9300-34800+4200 (grade pay). The said merger is not functionally feasible as the feeder and promotion grades both have been placed in the same pay band and grade pay. Thus it can be concluded that a grave error had already crept in by creation of artificial pay parity between the supervisory and promotional cadre of Dy Office Supdt(Gr B Non Gazetted) and its feeder and subordinate cadre of Sr Tax Asstt (Gr C ). These circumstances have already resulted in filing of Original Applications by many officers in the cadre of Dy. Office Supdts. in the Hon’ble CAT Benches of Mumbai, Chennai and Kolkatta.
5. The post of Dy. Office Superintendent is a supervisory post (Gr B- NG) having responsibility for and controlling the subordinate staff and also acts as Reporting Officer for the said subordinate post viz. Sr. Tax Asstt. The level of the responsibilities and duties of the two cadres are not at all comparable and these two cadres cannot be merged to form a newly formed merged cadre, as proposed.

6. Sir, in this context I would like to bring to your kind attention that I have been promoted as Dy. Office Supdt. w.e.f. and am working in supervisory capacity controlling the subordinate staff and also acting as Reporting Officer for the subordinate staff of LDC, Tax Asstt, and Sr.Tax Asstt. The so called merger of the posts of DOS –STA as proposed vide letter F.No.C.12034/16/20111-ADIII B dated 02.11.2011 of Board in the guise of downgrading is definitely a degrading step which will destroy my career prospects.

7. Sir, I would like to bring to the attention of the Board that in the case of STATE OF MAHARASHTRA Vs. CHANDRAKANT ANANT KULKARNI 1981(4SCC 130), the following principles were enunciated by the Supreme Court where different cadres are proposed to be merged :

“ In the Equation of posts :

(1) where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis ; but

(2) where there are no such similar cadres, the following factors will be taken into consideration in determining the equation of posts ;

nature & duties of the posts, Powers exercised by the officers holding a post, the extent of territorial or other charges held or responsibilities discharged ;

The maximum qualifications, if any prescribed for recruitment to the post ; and

Salary of the posts”

8. However, in the instant case, as proposed by the Chairman, CBEC vide letter dtd.02.11.2011, the functionally unfeasible merger of the promotional & supervisory cadre of DOS with that of its feeder and subordinate cadre of STA is being taken only on account of pay parity, ignoring the nature of functions, duties & responsibilities discharged by the functionaries in the cadre of Dy Office Supdt., a position that carries greater responsibilities as well as supervisory and administrative control of “L.D.C.,Tax Assistant and Sr. Tax Assistant” for all purposes and also acts as Reporting Officer for all these subordinate posts.

9. The promotion of Sr. T.A. to the grade of D.O.S. is to a post carrying duties and responsibilities of greater importance and higher responsibility than those attached to the post of Sr. Tax Asstt. The DOS shoulders higher supervisory responsibilities and also initiate the CRs for the LDCs, Tax Asstts.and Sr.Tax.Asstts. working under them as per Board’s F.No.A-28011/2/75-Ad.III A dt.16th December 1975 (Copy encl.). In view of such a requirement, the DOS are cast with the responsibility of overseeing, monitoring and reporting of Group-C staff working under them and thus they have supervisory responsibility which is not tagged to STAs. STAs as such do not have any supervisory responsibilities in the department and they need not oversee the work of any one. Thus the level of responsibility and nature of duties of the two cadres are not at all comparable and therefore the two different posts of STA and DOS therefore cannot be compared and merged only on pay criterion.

10. Sir, here I would like to invite your kind attention to the Board’s letter F.No.A11013/4/2002-Ad IV dtd.14.11.2002 (copy enclosed) wherein it had been directed by the Board that promotion in the grade of DOS L-II from eligible candidates in the grade of STA may be made only after the new recruitment rules are circulated by the Ministry. However, it took the Board 7 long years to issue the recruitment rules for the post of DOS. During this period, no STAs were promoted to the post of the then DOS L-II inspite of the vacancies and availability of eligible candidates in the grade of STA.

11. Respected Sir, I would further like to bring to your kind notice that the Competent Authority of Board finally approved and issued the Recruitment Rules in respect of the post of Dy. Office Superintendent i.e. Department of Revenue, Central Excise And Customs, Deputy Office Superintendent Group B Rules, 2009 on 20.07.2009 which has come into force w.e.f. 20.09.2005 (copy enclosed). The RR prescribes that the method of recruitment to the post of Dy. Office Supdt. is by functional promotion from the post of Sr. Tax Assistant which is the feeder cadre for promotion to the post of Dy. Office Superintendent, subject to eligibility as per the Recruitment Rule i.e. three years of regular service in the grade of STA. The said criterion for recruitment of DOS has been approved by UPSC as clarified by the Board vide letter F.No.A-32018/14-A/2007-Ad.III-A dated 29th July, 2008 (copy enclosed). Accordingly, the Board itself directed all cadre control authorities vide their aforesaid letter dated 29th July, 2008 to promote the STAs fulfilling the eligibility criteria.

12. As per Recruitment Rules, for earning a promotion to the post of DOS, an STA has to put in 3 years of service in the said cadre. A Departmental Committee has to be nominated to choose the eligible incumbents from the Group of STAs. The benchmark levels/parameters set are to be met by the STA incumbent. The number of promotional posts of DOS is restricted as per cadre strength. Point Based Roster is also maintained for such promotion to the post of DOSs. A promotion to the higher post thus has been earned by all the officers working as DOS as of now. Further, the classification of these posts also vary as the post of Dy. Office Supdt. is classified as Gr. B Non Gazetted while the post of STA is classified as Gr. C under their respective RRs.

13. Therefore the two posts cannot be merged to form a common cadre at a later date, thus negating the historical background of the post of DOS and down grading the supervisory and promotion post of DOS as also disturbing the vertical relativity hitherto prevalent in the Department. The “merger “as designed by the Board now will take away the promotion of all such STAs who have been promoted as DOS after stagnation of 8-9 long years for no fault of their own.
14. The order and course of action proposed by the Chairman, CBEC, vide letter F.No.C.12034/16/20111-ADIII B dated 02.11.2011 thus does not pass the test of constitutionality which particularly implies that the equation/merger of different posts must be based on fair, just and rational principles.

15. The Board itself has stated in Para 3.0 of Chapter 16 of their Cadre Review Proposal that since the post of STA is feeder cadre to the post of DOS, it is proposed not to merge these two posts. Thus the merger under question is not a part of Cadre Review. Therefore I request the Board not to turn around on their own conscious decision above and adversely affect the career prospects of the officers currently working in the grade of DOS under the pretext of facilitating removal of stagnation in the grade of TA in some zones and provide promotional opportunities to the feeder grade posts in PB-1 with grade pay of Rs. 2400/- to promotional post in PB-2 with grade pay of Rs. 4200.
16. Further as mentioned in the earlier part of my representation, the Original Applications against unjustified pay-parity between these two posts that carry distinctly different duties and responsibilities has already been filed and admitted before the CAT Benches. By filing these applications, the applicants (DOS) in these OAs have sought to raise a substantial question of law as to whether such artificial parity between two posts for the only purpose of “pay” and by ignoring the “higher” and “superior” duties of one post over the other is in breach of public policy and public interest and whether the same violates the settled position in law that equal pay is meant only for equal positions. The matter is under litigation till date.

17. It may not be out of turn to mention here another example of sheer apathy of the Ministry/Board in respect of the cadre of DOS. The Ministry, vide letter F.No. A.11013/16/2002 Ad.IV dt. 20.09.2005 merged the cadres of DOS L-I with DOS L-II into one cadre known as ‘DOS’. To date, the Central Excise Collectorate AO/ACAO/EAO Recruitment Rules, 1987 have not been modified to include the merged cadre of DOS vis-à-vis the qualifying service. The Ministry, vide F.No. A-26017/55/2008-Ad.IIA dated 28.08.2008, in consultation with DOPT, had informed that DOS (DOS L-I/II) who have put in not less than three years’ of regular service are eligible for consideration for ad-hoc promotion to the grade of A.O.

18. There are large number of officers (erstwhile DOS L-II) in the cadre of DOS who have already completed minimum 6 years and maximum 17 years regular service in the grade. However, in the absence of amended Recruitment Rules specifying the minimum qualifying service required in the merged cadre of DOS for promotion to the grade of A.O., such officers are being considered for promotion on ad-hoc basis only in the light of Ministry’s instructions vide letter dated 28.08.2008, as mentioned above, leading to great financial and seniority loss.

19. In view of the above, I request you to review Board’s speedy, rather hasty and arbitrary decision vide letter dtd 02.11.2011 for the unfair & unjust merger of posts of DOS & STA which will give rise to increase in filing O.As against the injustice or does the Board need to be reminded of the positive attempts being put in by the Hon'ble Finance Minister in directing all concerned to reduce/avoid litigations on service matters by giving due cognizance to the aspirations of every cadres, thereby ensuring that the proposed Cadre Restructuring is free of litigations.

20. I hope that my representation will be considered by applying the fair, just and rational principles in determining as to why these two different cadres viz. Dy. Office Superintendent, a promotion post which is “higher” and “superior” than the other post of Sr. Tax
Assistant which is its feeder cadre in the hierarchical structure should not be merged. I stress here that a definite guideline/clarification is needed to be issued in the matter so that if required I may be able to seek redressal for my grievance through proper channel in CAT.



Yours faithfully,




Encl : As above.
Copy to :-

1) The Member (P&V), CBEC, North Block, New Delhi - 110001
2) Joint Secretary (Admn), Department of Revenue, Ministry of Finance, CBEC,
North Block, New Delhi - 110001
3) Director General, Dte General of HRD, Customs & Central Excise, Drum Shaped Building,
I.P. Bhavan, New Delhi - 110002
4) Under Secretary, Ad. V, Government of India, Ministry of Finance, Department of Revenue,
CBEC, Hudco Vishala Building, B-Wing, Bhikaji Cama Place, R.K. Puram,
New Delhi - 110066
5) S.O., Personnel Section, Department of Revenue, Ministry of Finance, CBEC,
North Block, New Delhi - 110001
6) Under Secretary, Ad. II A, Department of Revenue, Ministry of Finance, CBEC,
North Block, New Delhi - 110001
7) Under Secretary, Ad. IIIA / Ad III B, Hudco Vishala Building, B-Wing, Bhikaji Cama Place,
R.K. Puram, New Delhi - 110066

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