DOS of Central Excise & Customs, Pl. represent against the merger and creation of new post Executive Assistant

Dear DOS of Central Excise & Customs,

Pl. represent against the merger of DOS with STA and creation of new post Executive Assistant by stripping off the 3% Increment already available to DOS on promotion from STA.

 

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:-    Request for revoking merger of DOS & STA post into Executive Assistant in PB-2 with

                        Grade Pay of Rs.4200 & for maintaining separate identity of DOS with Grade pay

of Rs.4600 being supervisory post (Group B Non-Gazetted) in the CBEC Cadre

Restructure – Regarding.

                                                                                    ---

            With due respect I, the undersigned, would like to invite your kind attention to the letters F.No.A-11019/08/2013-Ad.IV dated: 18^th December, 2013 and 1^st August, 2014 of CBEC, New Delhi  notifying the existing posts and posts approved for creation & re-organization of field formations under CBEC alongwith revised cadre strength respectively.

2.         In this regard, we submit that it is unfortunate that a new post has been created in the name of Executive Assistant in PB-2 with Grade Pay of Rs.4200 by way of  merger of two posts i.e., (i) Dy. Office Superintendent in supervisory cadre (Gr. B-Non Gazetted) with that of its feeder cadre i.e., (ii) Senior Tax Assistant (Gr. C ) working in the subordinate offices under CBEC (Recruitment Rules, 2009 for DOS & Senior Tax Assistant, 2003 refers).   

3.1       It is submitted that the Senior Tax Assistant (known as STA) is a subordinate post governed by Senior Tax Assistant Recruitment Rules 2003 with the Grade Pay of Rs.4200 in Pay Band-2.   The nature of duties and responsibilities of Senior Tax Assistant is clerical in nature and it is Subordinate Group `C’ post.

3.2       The Deputy Office Superintendent (known as DOS) is a Supervisory post (Group `B’ Non-Gazetted)  governed by Recruitment Rules 2009 the Grade Pay of Rs.4200 plus 3% Increment in Basic Pay in the Pay Band-2.   The duties & responsibilities discharged by the Dy. Office Superintendent carry greater responsibilities we well as supervisory and administrative control of Lower Division Clerk, Tax Assistant and Senior Tax Assistant for all purposes and also acts as Report Officer for all these subordinate posts.   The Deputy Office Superintendnet shoulders higher supervisory responsibilities and also initiate the Annual Performance Appraisal Reports (APARs) 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.   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 Grade pay criterion.

4.         Merger posts of DOS with STA into a new post of Executive Assistant of this kind is devoid of rationale in view of the following:-

4.1       Drawal of higher Pay (Rs.4200 plus 3% Increment):        Senior Tax Assistant is given Rs.4200 Grade pay and on promotion to DOS, he is given 3% Increment in the pay band plus Rs.4200 Grade pay as per OM No.10/02/2011-EIII(A) dated: 7^th January, 2013.   The  conditions for grant of 3% Increment for posts carrying same Grade pay has been stated in Para-2 & 3 of the Order dated: 7^th January, 2013 states as under:-

            “2. In terms of this Ministry’s OM No. 169/2/2000-IC dated 24.11.2000, dealing with the situation whereby both the feeder and the promotional grades were placed in the identical revised pay scales based on the recommendations of the 5^th Central Pay Commission, it was provided, inter-alia, that only in cases where it was not found feasible to appropriately restructure cadres in question on functional, operational and administrative considerations, extension of the benefit of fixation of pay under FR 22(I)(a)(1) could be considered on the merits of each case, provided all the conditions precedent for the grant of this benefit were fully satisfied and promotion to the post in question actually involved assumption of higher responsibilities.

            3. In view of the provisions which existed prior to 1.12006., the matter has been considered and the President is pleased to decide that in cases of promotion from one post to another where the promotional post carries the same Grade Pay as the feeder post, the fixation of pay in such cases will be done in the manner as prescribed in Rule 13(i) of the CCS(RP) Rules, 2008, provided fixation of pay in such cases was done prior to 1.1.2006 in terms of this Ministry’s aforesaid OM No.169/2/2000-IC dated 24 11.2000.”

From this, it can be seen that DOS is drawing more pay than STA by way of 3% Increment alongwith Grade pay of Rs.4200 being supervisory promotional post carrying higher responsibilities.     Usually any merger/upgradation will only place the higher scale post in the higher scale of pay or Higher Grade pay.    Here in the instant case, by merger of DOS  with STA and creation of new Executive Assistant, the DOS post is virtually downgraded and suffers degradation in as much as the only primacy of the only Supervisory post in ministerial cadre gets extinguished and even financial benefit given on promotion is stripped off and resulting in the ignominy of erstwhile supervisory personnel to work shoulder to shoulder with its feeder cadre personnel, which is really agonizing and causing excruciating mental agony that has been created by resorting to downgradation and degradation  ignoring the fact that DOS gets 3% Increment plus Rs.4200 Grade pay on promotion from STA.   

 It is to be mentioned here that the post of Dy. Office Superintendent is filled up by way of promotion from the Senior Tax Assistant on completion of 3 years of qualifying service.     Though DPCs were conducted and Senior Tax Assistants were promoted as Deputy office Superintendents (post with higher responsibilities), the financial benefit granted was mere Zero.   Only after issue of letter F.No.A-23011/27/2012-Ad.IIA dated: 21^st June, 2013, 3% Increment is being granted to Senior Tax Assistants on their promotion to DOS post referring the Department of Expenditure, New Delhi's OM No.10/02/2011-EIII(A) dated: 7^th January, 2013.   

Further, it is to be mentioned even this OM dated: 7^th January, 2013 cannot be squarely applied to the case of STA on promotion to DOS as posts of STA and DOS remained in different Pay Scales of  Rs.5000-150-8000 and Rs.5500-175-9000 respectively with effect from 20.9.2005 and were not in identical pay scale prior to 1.1.2006 (effective date of 6^th Pay Commission) and hence pay fixation was not done in terms of this Ministry’s aforesaid OM No.169/2/2000-IC dated 24 11.2000.   Hence, when the posts which are now in same grade pay and which were in similar identical pay scale prior to 1.1.2006 are given 3% increment, the post of DOS which was in Rs.5500-175-9000 and STA in Rs.5000-150-8000 prior to 1.1.2006, should be given something in addition to or higher than 3% Increment which in this case can only be change of Grade pay i.e., Rs.4600.

4.2       Even MACP is assures Rs.4600 Grade pay to STA than promotion to DOS (Rs.4200 Gpay + 3% Increment)

            It is to be mentioned here that even a Senior Tax Assistant who remains without promotion for 10 years in the same post/grade pay is granted Rs.4600 Grade pay on MACP which is a fall back option.    MACP is granted to the next immediate higher grade pay and not in promotional grade pay except in the case of Rs.5400 Grade pay which exist in both Pay Band-2 & Pay Band-3 as per Para-8.1 of MACP Order of DOPT, New Delhi's OM No.35034/3/2008-Estt(D) dated: 19^th May 2009.      It appears irrational and illogical that a person who gets promotion to the post of DOS gets mere 3% Increment and remains in Rs.4200 Grade pay whereas STA who does not get promotion is able to get Rs.4600 Grade Pay on MACP.     It is irrational and illogical that promotion benefit is not even matching the MACP benefit (which merely grants fixation in the next immediate higher Grade pay in the hierarchical scale of pay).

4.3       Hon`ble Superme Court’s ruling:

            The following principles were enunciated by the Hon`ble Supreme Court of India where different cadres are proposed to be merged in the case of State Of Maharashtra & Anr vs Chandrakant Anant Kulkarni & Ors on 8 September, 1981(4SCC 130) in the matter of equation of posts:-

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

(ii) Where, however, there were no such similar cadres the following factors will be taken into consideration in determining the equation of posts:-

(a) nature and duties of a post;

(b) powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged; (c) the minimum qualifications, if any, prescribed for recruitment to the post.

(d) the salary of the post.

All the above guidelines and principles appear to have not been followed in the Cadre Restructure order dated: 1.8.2014 and the functionally unfeasible merger of the promotional & supervisory cadre of DOS with that of its feeder and subordinate cadre of STA has been made by placing posts having same grade pay of Rs.4200.   Merger has been done solely on account of Grade pay parity alone ignoring 3% Increment which is given in addition to Grade pay to DOS, the nature of functions, duties & responsibilities discharged by the functionaries in the cadre of Dy Office Supdt., a position that carries greater responsibilities of  supervisory and administrative control over their subordinate posts i.e., STA, TA and LDC.   Hence, the two different posts of STA and DOS therefore cannot be compared which have been merged solely on Grade pay criterion.  

4.4.      Pending cases in Legal Forums:

Further 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 Hon`ble Central Administrative Tribunal Benches at Chennai and Mumbai.  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.   When the matter relating to dispute in Grade pay is still pending before the legal Forums which is sub judice and the matter relating to Pay is still to be resolved since 1.1.2006 to the date of Notification of Cadre Restructure i.e., 1.8.2014, resorting to merger of the posts of DOS and STA into Executive Assistant is hasty, arbitrary, unfair and unjust as the matter relating to grant of benefit on promotion benefit which is not even matching the MACP benefit from 1.1.2006 to 1.8.2014 is still to be resolved.

5.         The action taken by CBEC 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.   By this merger, the supervisory cadre personnel who are supervising their feeder cadre personnel have been brought on the same horizontal plane is nothing but travesty of justice.

           

6.         In view of the above submissions, it is humbly prayed that this anomaly may please be rectified and the separate identity of DOS post may please be maintained with Grade pay of Rs.4600.

                                                                                                                        Yours faithfully,