HISTORIC OPPORTUNITY - LOST?

    

    The cadres of Inspectors and Superintendents have lost another historic opportunity this August.

    When the Draft All India Seniority List was issued by the CBIC, as anticipated, it evidenced the gapping zonal inequalities. I had circulated the message below, to the cadre:

"THE MIRROR OF MISMANAGEMENT AND DISCRIMINATION '

At long last, the CBIC issued the draft All India Seniority list for Superintendents of Central Excise and CGST with effect from 1.1.2007 to 31.12.2011 on 28.07.2022.

As anticipated, the Board has not carried out any of the Court judgments in respect of fixation of inter-se seniority in rem.

Hence, the injustice for the cadre continues to be perpetuated, in the name of an RR which is grossly unconstitutional for the reasons we will be seeing in the coming paras.

The NR Parmar judgment of the Apex Court which was to be implemented in all zones without discrimination as per the judgment of the Madras High Court judgment in P. Bharathan case has not been carried out.

Nor has the judgment of the Apex Court in BS Murthy case of Hyderabad been carried out.

We have a situation where the Inspectors who joined in 1992 in Vadodara found from Sl.No 1 onwards of the present Draft AISL are waiting for their promotion even as an Inspector who joined in 1985 in Shillong can get promoted only as the 1844th in the list.

Can there be a more disgraceful situation for a single cadre which aspires to get into the Group A of the same department, having been recruited by the very same SSC exam?

While the list consisting of 4092 officers starts with1992 Inspector of Vadodara and ends with 1992 Inspector of Kolkata zone.

If 1987 joined Inspectors of Mumbai and Bhopal are to be covered, the promotion order has to cover upto 3213 in the list

For 1988 to be covered 4064 have to be covered in the list (Mumbai, Bhopal, Cochin and Koklata)

Last number for 1989 batch is 3866; 4083 for 1990 batch; 4066 for 1991 batch; 4015 for 1992 batch; 4092 for 1993; 4069 for 1994; 4023 for 1995 and 3770 for 1996.

These distortions are not new. But it is these distortions in the earlier AISL which lead to a spate of litigations.

There is no logic or rationale for the 1985 joined Inspector of Mumbai, Bhopal and Shillong to be kept below a rank junior who joined in 1992 in Vadodara or Hyderabad.

After the judgment in the Subramaniam case and after the implementation of the MACP scheme, every person who has completed 26 years from joining as Inspector has attained the pay scale equivalent to that of an AC and hence is eligible to be treated equally and therefore only seniority of that criterion can be proper. Allowances have to be made only for reservation and all the promotees who were not granted MACP but are seniors to the DRs who have gained it should be placed above their juniors by grant of equivalent pay, as repeatedly stressed by the Apex Court.

Any artificial truncation in the name of zone is against the Fundamental Right to Equality enshrined in the Constitution. Any Rule framed in violation of the same is to be questioned and got struck down.

Suffering such discriminative yardstick is uncalled for by a cadre which has been bearing the entire structure on its shoulders.

For an All India Association representing the entire cadre, to remain mute spectator to such a humiliating discrimination is against its very grain.

The Board should be asked to recast the AISL urgently by appropriate amendment to the RRs which are even otherwise called for, as required by the Apex Court ruling in the Dudeja case."

    The Central Executive Committee (CEC) of the AIASCT (Association for short) met on 06.08.2022 online during which I reiterated my stand as below:

    

"The Draft AISL circulated by CBIC is not meeting the demand of this Association that all judgments on Seniority which have attained finality should be implemented in rem. This Association has been all along been against the RRs and the ratio because it has caused a lot of imbalances between the zones. This is on record already. Every individual who is finding place in this AISL and those who have not been included have now a cause of action to challenge the AISLm RRs and ratio. There is no difference between Inspector and Superintendent in field work now. With Subramaniam case decision, that artificial boundary has been lifted in pay scale also. When someone who joined as Inspector in 1992 has every right to demand promotion as AC, those who joined prior to that in the same cadre have a higher right to demand so. Only considering all the above issues, to cover all those who have got a right to be promoted by virtue of their pay scale and service this Association proposed re-designation. That can be done at one go or in phases. That is the only way to ensure parity between zones and to have Branch B RRs be issued as proposed by us to achieve fairness and equity between the different feeder zones. Association's responsibility is not only to ensure promotions, but to ensure that is done properly. Otherwise, the very purpose of an All India Association to represent the entire cadre is defeated."

    After detailed discussions, the CEC passed a resolution to take up the matter of zonal inequality with the Board and sought redressing it by amendment to the Recruitment Rules to the post of AC, by adopting base cadre seniority or continuous length of service from the grade of Inspector. A letter was accordingly addressed by the SG of the Association on 08.08.2022. CLICK HERE TO SEE THE LETTER Though some of the units like Hyderabad and Delhi which stood to benefit by the present system of calculating seniority only from the grade of Superintendent were obviously for maintaining status quo, and even when the Bangalore unit was also for that, the SG who himself hailed from Bangalore and is likely to be promoted as per the present Draft AISL, stood strongly by the letter dated 08.08.2022 based on democratic standards and in the quest of equity for the cadre. He also explained the background of the letter and the demand in the Association blog: Blog

    But a sudden surprise came when 8 units (Mumbai, Pune, Aurangabad, Nashik, Chennai, Madurai, Tuticorin and Salem) filed an OA before the Principal CAT. CLICK HERE FOR THE OA The OA was felt to be ill-timed and flawed for more than one reason. It appeared to deflect issues away from the resolution communicated on 08.08.2022. 

    An emergency meeting of the CEC was convened on 20.08.2022. Many units gave their opinions. Delhi and Hyderabad insisted that the Association clearly distance itself from the OA since it was filed without consultation in the CEC or with the approval of the CEC. It was noted that even though the then SG had himself been actively involved in preparation of the OA, the CEC was kept in the dark. I gave my view on the issue as below:

"My brief views on the OAs filed by 8 Units:

1. Without going into the entire contents and merits of the OA, I could say in brief, that the basic issue of zonal disparities cannot be disputed and the concerns are genuine. In fact this Association has sought to correct the above problem by proposing a Draft RR for the Group B Services in the CR, during 2019 itself because the 1996 decision for merger of base cadres have not been carried out by the Board.

2. But these OAs do not appear to be proper due to the following reasons:

(a) Units cannot file OA on issues affecting other Units of the same Association. Association means All India Association only and Units can function only as organs of the said Association. Since recognition is granted only to the All India Association as 'the Association', only the All India Body can be a legal entity.

(b) When the Association itself has taken a stand on the issues, right from Draft RRs for the Group B Services, submitted along with the final proposals for the CR there was no requirement for OAs to be filed on the issue by Units, without any concurrence from the CEC.

(c) Even if the then SG has also been party to this in his individual capacity or as GS of his Unit, when the CEC has not permitted such an OA, it amounts only to transgression of Association discipline.

3. The OAs may have been conceived before the CEC decision of 6.8.2022. But now that the decision the CEC meeting of 6.8.2022,has been communicated to the Board, by the SG on 8.8.2022, no Unit should undermine the dignity and bargaining power of the Association by separately taking up the issue by sending direct communications to any authority or filing cases. Hence, in the light of the CEC resolution dated 6.8.2022, communicated vide letter dated 8.8.2022, the OAs should be withdrawn by the 8 Units.

4. The present OA appears to be borne out of a feeling among the 8 units and also perhaps some others also that the Association is not able to do enough in the matter. But we have to bear in mind that the Association has been reinvigorated and this issue is getting its due consideration only in the past 4 - 5 years.

5. Sustained organisational pressure can alone yield results. As a matter of organisational principle, it is not good for an Association to enter into litigation on policy matters. It will disable the Association from agitating on the issue or from negotiations. Protracted litigation by Association will spoil the chances of getting Rules amended through negotiation.

6. However, if the Board is not ready to engage with us on the issues, and/or we are not able to create organisational pressure to create such an atmosphere, then the AIB has no other option but to approach the judicial forums, whether to set right disparities among zones, or for restricting the Temporary Posts only to Central Excise/CGST or for getting the Branch B Service RRs adopted as suggested by us for Group B Services. The attempt of the Board to get our concurrence for their Branch B is clearly because the RRs suggested by them is only to perpetuate the present zonal inequalities and is not as per the Group B Service Recruitment Rules proposed by us.

7. In future, no Unit should file any OA or send any communication which has any bearing on members of any other unit and if any issues are to be raised by the Units, it should be raised only in the CEC or Convention and any decision taken there should be binding on all Units. This should not however be seen as interfering with any right of individual members from seeking redressal for their own cause."

    Com. Ajit, the GS of Vidharbha (Nagpur) placed his view as below:

"Since I'm in a somewhat remote location in Kerala, have not been able to join the EC meeting today effectively. Apologies.

Would therefore want to make the following points on behalf of the Vidarbha Unit:

1. The merits of the OA and whether it addresses all issues in the best way possible to protect the interests of the cadre, particularly the units who have filed it, may be debatable - the spirit underlying the effort cannot, however, be questioned by anyone.

2. The then SG and GS Mumbai Unit (who has signed the Resolution) were the same person. So the allegation that the OA was moved keeping the AIB in the dark does not hold water.

3. No one, absolutely NO ONE, can hold this Association or any of its units (more so the worst stagnating units ) to ransom in the name of a sham unity. Unity cannot be for the purpose of maintaining satus quo alone which may suit only a section of members of the Association.

4. If at all the OA is to be withdrawn, it has to be on a firm and final commitment of the CEC to the applicant units that in letter and in spirit, the AIB will not deviate even an inch from our letter dtd 08. 08.2022 to the Board on the AISL, and in the event of the Board not relenting, the AIB will instead file an OA for achieving the objectives listed in the 8th letter WITHOUT DELAY.

5.Finally we, the stagnated units, do not need lessons on unity and restraint from anyone trying to be too clever by half - covertly pursuing quick DPC on same old unjust yardsticks, using the numbers and hard won status of this organisation, and meanwhile mouthing meaningless homilies to hoodwink us. We have exercised remarkable restraint so far. Can't say if we will not act on this if the status quoists try to force us."

    Even those who stood to be promoted as things stand, like Com. Nettikadan of Kerala, Com. Thirthankar Pyne of Kolkata, Com. K.R.Dinesh Kumar of Coimbatore, supported the view that in the larger interest of the cadre, the OA by 8 Units should be withdrawn and the Association (AIB) should file an OA after rectifying the flaws in the OA filed by the Units, if the CBIC could not be convinced within a reasonable time.

    After eliciting the opinion of all units, the SG, gave the following message:

"Dear All,

In the CEC meeting held virtually on 20th August 2022 it was decided by the CEC that, since OAs pertaining to regional disparity has been filed by the units separately and not by the AIB, the Units are requested to withdraw the OA in the light of the decision of this Association dated 6.8.2022 and if the Board does not address the issues raised by us in our letter dated 8.8.2022 , this Association will be compelled to seek remedy including judicial remedy at the appropriate time and forum.

Regards

Jithendra

Secretary General

AIASCT"

    But the 8 Units did not withdraw the OA or communicate anything to the SG, in spite of repeated requests and reminders in the CEC.

    When a draft letter was circulated by the SG on the subject, I had proposed a slightly different draft as below:

"To,

Shri Vivek Johri,

Chairman,

CBIC, North Block,

New Delhi,

Sir,

Sub: Objections to the Integrated All India Seniority List of Superintendents of Central Tax 2007 to 2011 -Reg

Please refer to this association letter on the above subject dated 08.08.2022 bringing to focus the need to immediately act on the ever-increasing regional disparities in promotions to Assistant Commissioner. This Association has been constantly bringing to the knowledge of the Board the severe discontentment of the cadre due to the acute stagnation and large- scale zonal imbalances. We have also been suggesting various measures to contain these maladies. However, even though we had been requesting for a discussion on the above issues to arrive at measures to contain the problems, we have not got any opportunity for the same, even after the formal recognition of this Association. Apprehensive of board not taking any positive action on the issues raised by this association and it’s efforts, eightamong our affected Units have jointly filed an Application in Principal CAT, New Delhi seeking amendment of the Recruitment Rules.

The CEC of AIASCT met on 20.8.2022 and requested the units to withdraw the application so that the issue can be resolved by taking it up with CBIC for redressal rather than approaching Judiciary. However, these Units are very hesitant and concerned as they feel that CBIC may not attempt to resolve the regional disparities and that this is the last opportunity for them to salvage the situation.

The AIB of AIASCT is not an applicant in this OA, though mistakenly Applicant No. 5 is mentioned as AIASCT without mentioning the Unit name. The CEC of AIASCT has also not authorised anyone to file as an applicant on its behalf in the instant OA. However, we still feel that if the Board takes steps to start a discussion with us on these issues and is able to bring up certain measures to address the issues, we will be able to persuade these applicants to withdraw from the said Application.

However, if there is no concrete effort on the side of the Board to resolve these issues, as resolved in our CEC on 20.08.2022, we reserve our right to take any further necessary action in this matter as deemed fit."

    But the pressure from Hyderabad and Delhi Units appear to have prevailed and as a result the SG issued a letter on 29.08.2022, distancing from the OA filed by the 8 Units. CLICK HERE FOR THE LETTER DATED 29.08.2022

    Organisational indiscipline, under the garb of 'rebellion', perpetuated by no less a person who was the SG of the Association at the relevant point of time, and the adamant attitude of the 8 unists not to heed to the resolution of the CEC, has thus snatched away a historic opportunity for the cadres of Superintendents and Inspectors.

    I am constrained to record the above proceedings for the knowledge of the ordinary members of the cadre, and also for posterity who will not come to know them in the normal course.

    I do not know if History will pardon or redeem these 8 rebel units.

-R. Manimohan

30.08.2022