Pay anomaly, 5400, Paramar and more on Deepavali

Dear friends and comrades,

          Wishing one and all and their families, a very happy year of lights ahead.

          To travel from darkness to light is the essence to sustain life.

          To transverse to truth from falsehood, is an additional task assigned only to humans.

          This year, the day of lights did not fall on the same day throughout India.  But that does not deter us from celebrating it all the same.

          This has a message for all of us too.  Strength does not lie merely in unity.  It is the unity of purpose that is important.  The one who seeks to find light cannot afford to continue to hold the hands of the minions of darkness.

          Some important issues require our attention and dissemination among members.

5400 case:

          There is a letter in circulation, issued by Ad. II A to the Commissioner of Salem, in response to their letter dated 8.11.2013, with regard to the Subramaniam case, stating that the benefit of the judgment may be given to the individual in personam.

This has led to wide speculation that the entire issue has been decided to be implemented only in personam.  I have got several messages in whatsapp and other social media seeking clarification regarding what other members have to do to get the benefit of the judgment.

It may be noted that the above letter is issued only to the Commissioner of Salem in response to their letter dated 2013.  Though the benefit of the High Court Order had been granted to Com. Subramaniam, after the UOI failed to get a stay when the SLP was admitted, it was with a rider that it would be recovered if the SLP/CA succeeds and was only subject to its outcome.  Now, after the CA and subsequent Review Petition got dismissed, they have finalized the issue in respect of Com. Subramaniam.  That is all.

It is very reliably learnt that the CBIC has recommended the implementation of the judgment in rem, considering the numerous cases in various Tribunals and High Courts.  The file has been sent to the Expenditure for approval.  We sincerely feel that the Board is pursuing it and would get the approval of the Expenditure considering that this only a small benefit that the CBIC would be able to get for this cadre.

Parmar/Bharathan case:

                The case is supposed to come up for hearing again on 14.11.2018.

          We have already submitted our final affidavit well before the last hearing.  We have sought early disposal of the issue so that posts of ACs lying vacant could be filled up early. The department has not filed any counter for the same till date.

Pay scale matter /anomaly:

          The anomaly committee proceedings dated 4.10.2018 indicated that there was some confusion on the part of the CBIC regarding placing Superintendents on GP 5400.  The concerned officials who had attended the said meeting have been met and the issues explained.  Copy of our letters dated 17.1.18 and 18.1.18 have been once again handed over to them for reference.  A separate letter has also been issued again explaining the entire back ground and justifications. The contents of the letter are reproduced below. It is expected that a favourable note will proceed from the CBIC to the anomaly committee on this issue.

Recognition issue:

          It has been intimated to us that the CBIC is actively finalizing the DDO certificates submitted by the other group and once it is done, they will finalise the recognition issue.  We see light at the end of the tunnel.

Let us hope for the best.

With fraternal greetings,

R. Manimohan,

SG, AIACEGEO

Extract of letter issued on pay anomaly:

Ref. No: CBIC/47/2018                                            Date: 07.11.2018

To

Shri. S. Ramesh,

Chairman,

CBIC, North Block, New Delhi.

Respected Sir,

Sub: Pay anomaly with regard to Superintendents of CBIC – reg.

          Kind reference is invited to the minutes of the 3^rd Meeting of the Departmental Anomaly committee held on 04.10.2018, issued vide F. No. O.21036/1/2017-Coord of the Department of Revenue.  It is observed from the minutes that there was some confusion regarding placing the Superintendents of Central Excise and other analogous cadres in the Department of Revenue on the pay scale of 5400 PB-2.  The relevant para is extracted below for ease of reference:

“3.1 Issue No. 1: Pay Parity of Inspectors of Income Tax at par with Inspectors of IB (ACIO-I) and CBI.

3.1.3. The Special Secretary (Revenue) enquired from the representative of CBIC, whether this demand has any bearing on CBIC.  It was informed by CBIC that, if the proposal of upgradation of Grade pay of Inspectors of Customs/Central Excise/Income tax from Grade pay Rs. 4600 to Rs. 4800 (presently held by Superintendents/ITOs) is acceded to, it will disturb vertical hierarchy.  If this demand is acceded to, both the posts of Inspectors as well as Superintendents/ ITOs will be in the same scale. Any such proposal could not be considered without upgrading pay scale of promotional post i.e. Grade Pay Rs. 5400  (Pay Band 2), which is non-functional scale, applicable to similar posts in other Minsteries/departments too. It would require conversion from Non-functional pay scale of Rs. 5400 (Pay Band 2) to functional pay scale, which would not be in scope and ambit of Departmental Anomaly Committee, constituted for examination of the issues arising out of the recommendations of 7^th CPC.”

2.       In this context, we would like to submit that the 7^th CPC, has unsettled the horizontal relativity in respect of pay scale that existed between

(a) the Superintendents of Central Excise (and analogous cadres in the Department of Revenue) and that of

(b) the Superintendents of Posts and Section Officers in CSS,

by placing the officers in category (a) on Level 8 only with Level 9 to be obtained on completion of a regular service of 4 years in Level 8, while the officers in category (b) have been placed in Level 9 straightaway.  All the above category of officers were on the pay scale of 4800 P.B-2 with 5400 PB-2 to be obtained on completion of 4 years regular service in 4800 PB-2. This has been pointed out vide our letter dated 17.01.2018 in the meeting with the Member (Admn), CBEC.  Thus, not only that the functional scale on 5400 PB-2 already exists, this is squarely within the ambit of the 7^th CPC anomaly.

3.       Further another anomaly has been created by the 7^th CPC by recommending Level 10 to the Deputy Superintendents of CBI, but not recommending the same for the Superintendents of Central Excise and analogous cadres, based on an erroneous understanding of the recommendations of the 5^th CPC in the matter.  This has also been stated by us in our letter dated 17.1.18 and amplified in our letter dated 18.1.18 addressed to the Member (Admn) with reference to the meeting held by the Member (Admn) on 17.1.18. The paras of the 7^th CPC where the error has crept in, are reproduced below:

“11.18.61: It has been demanded that the post of Superintendents and Appraisers may be upgraded from GP 4800 to GP 5400 (PB-3) on the grounds of historical parity between the gazetted executive officers of CBI, IB, Central Police Organisations, Enforcement Directorate, Customs, Income Tax and Central Excise.”

11.18.62: As reflected earlier, the V CPC had specifically noted that no relativity could be established between executive posts in Income Tax and Customs vis-à-vis those existing in CBI/IB.”

4.       To understand the error in the above recommendations of the 7^th CPC, the details of the 5^th CPC recommendations and their back ground would be required to be noted.  They are narrated below for ease of reference:

4.1.    After the implementation of the 4^th CPC, on 22.09.1986, by a separate order, the GOI upgraded the pay scales of Inspectors of CBI, IB, Andaman & Nicobar Police, Delhi Police, etc.

4.2.    Since this unsettled the horizontal relativity that existed between the said cadres and that of the Inspectors of Central Excise, etc, an Original Application was filed before the Jabalpur Bench of the Central Administrative Tribunal by the Central Excise Executive Officers’ Association (Gr. C), Indore and others.

4.3.    After detailed hearings in the said matter in O.A. No. 541 of 1994 in Central Excise Executive Officers’ Association (Gr. C), Indore and others Vs. UOI, the Hon’ble Tribunal vide judgment dated 24.02.1995 ordered interalia as follows:

“3……A reading of the report of the IVth Pay Commission does provide an inkling that the Inspectors Customs and Central Excise were intended to be brought at par with the Inspectors, Central Bureau of Investigation.  However since IVth Pay Commission has not expressly evaluated the job contents of the above said two category of employees, we consider proper to withhold our hands in regard to any comparative assessment.  All the same, we do not find any justification for the Govt. of India not to specifically refer the issue to the Vth Pay Commission with full justification as to why the recommendations of the IVth Pay Commission for parity of pay of the above two categories of Inspectors was not adhered to.  It is still unfortunate that reasons have not been disclosed to us at any stage during the proceedings pending for the last six months.  We have therefore every reason to assume that there does not exist cogent reasons for creating a disparity in the pay scale of the above categories of Inspectors.  We were therefore inclined to grant the relief prayed for but taking into account the fact that equalization of pay is the domain of an Expert body, we are restraining ourselves to adjudicate the matter.  In the circumstances, we are of the opinion that the applicants have a strong case for consideration of parity of pay by the Vth Pay Commission.  Since the Govt. of India has failed to refer the matter to the Pay Commission despite the grievance ventilated by the applicants, we consider it proper to issue a mandamus.

4. In the result, Union of India is hereby mandated to issue a notification within thirty days of the communication of the judgment referring the matter to the Vth Pay Commission disclosing its stand as to why the Inspectors of Central Bureau of Investigation and Intelligence Bureau etc. have been granted higher pay than the Inspectors, Customs & Central Excise for consideration of the Vth Pay Commission.  The Union of India is further directed to place the Inspectors, Customs & Central Excise in the pay scale of Rs. 2000-3200 with effect from the date of Inspectors of Central Bureau of Investigation were placed in the said scale and pay arrears in the light of the Vth Pay Commission’s findings as a result of the reference made by the Govt….”

4.4.    When the matter was referred to the 5^th CPC, the CBEC vide D.O letter No. DOF A 26011/5/94 Ad.II – A (PC) dated 27.10.95, informed the 5^th CPC that ‘the duties and responsibilities being performed by Inspectors of Customs and Central Excise and Preventive Officers are much more arduous and hazardous than the Inspectors in Delhi Police, CBI etc’ and that ‘having regard to the facts mentioned above, the Department strongly recommend parity in pay scales and other perks of Inspectors of Central Excise/Preventive Officers and Examining Officers of Customs and Inspectors of Narcotics Department with the Inspectors in Delhi Police, CBI, etc”.  After going through all facts and hearing all parties concerned, the 5thCPC came to the following conclusions (paras of the report are given within brackets):

(i) (a) Inspectors of C.B.I to be placed on Rs. 1640-2900 only and those who have already been placed on the higher scale would have them as personal to them (para 79.36(c))

        (b) Asstt Central Intelligence Officer will be placed in the scale of Rs. 1640-2900 and those who are already drawing the scale of pay of Rs. 2000-3200 may continue to draw it as personal to them. (para 70.54 (c)).

 (ii) (a) As a result of the review of the entire situation, we have separately decided to place the Inspectors of C.B.I and I.B. in the pay scale of Rs. 1640-2900 instead of Rs. 2000-3200, because there was no justification to take them to the higher pay scale of Rs. 2000-3200.  As a consequence of this recommendation, the demand relating to the grant of higher pay scale, that too with a retrospective date, to the inspectors of Income Tax, Central Excise etc. have become infructuous. (para 66.107)

        (b) Moreover, in the context of our recommendation that the Inspectors of CBI and IB should be placed only in the replacement scale corresponding to Rs. 1640 – 2900, the analogy no longer holds good. (para 66.119)

 (iii) (a) But for the sake of clearing the record, we would like to state that even otherwise we do not consider the duties of the posts of inspectors of Income Tax, Excise and Customs to have any linkage or parity with the Inspectors of Police.  The two categories are not comparable. (para 66.107).

        (b) After considering the matter in all its aspects we are of the view that Inspectors of Central Excise and Customs are not comparable with Inspectors in Police Organisations. (para 66.119)

(iv)    Our view is that the existing parity between the scales of pay of I.B., C.B.I and Delhi Police is misplaced and has no logical basis.  Delhi Police is like any other State Police Force and has hardly anything in common with I.B and C.B.I or with the Central Police Organisations. (para 70.64)

4.5.    Thus it was evident that the 5^th CPC recommended one scale for the Inspectors of Central Excise, Customs, Income Tax, C.B.I., and I..B and another scale for Police Organisations including the Delhi Police.  To demarcate the difference between investigative agencies and Police Organisations, they had stated about the non-comparable nature of the two, in the chapters pertaining to Central Excise, etc as well as that of Delhi Police.  It was in this context that the Pay Commission recommended to bring down the scales of Inspectors of CBI and IB and noted that the Inspectors of Income Tax, Central Excise and Customs were not comparable to the Inspectors of Police Organisations, just like they had said that no logical basis existed for having the same pay scales for I.B., C.B.I., etc along with that of the Police.

4.6.    However, the GOI did not accept the recommendations of the 5^th CPC to reduce the pay scale of Inspectors of CBI and IB, which had been held by the CPC as having increased without any logical basis. In the Revised Pay Rules, 1997, the Inspectors of CBI and IB continued to be in the replacement scale of Rs. 2000-3200.

4.7.    Based on the findings of the 5^th CPC and in the light of the Hon’ble CAT Jabalpur order dated 24.02.1995, since the Inspectors of CBI and IB were continuing in the scale of Rs. 2000-3200, the Inspectors of Central Excise, etc also should have been placed in the same scale.  The anomaly was taken up with the CBEC and CBDT.  To study the matter, a High Power Committee was set up by the Finance Minister including the Chairman, CBEC, CBDT, Joint Secretary of both the Boards, etc.  The High Power Committee recommended accord of higher pay scale at par with CBI and IB to the Inspectors of Central Excise, Income Tax, etc and the same was also approved by the Secretary Revenue and Minister of State for Finance.  However, it was not approved by the Department of Expenditure.

4.8.    Hence an OA in No. 45 of 2000 was filed before the Jabalpur bench of the CAT by the All India Federation of Central Excise Executive Officers.  After detailed hearing in the matter, the Hon’ble Tribunal vide their judgment dated 22.03.2002 ordered interalia as below:

“7…….The contention of the respondents by referring to the recommendations in paras 66.118 and 66.119 is that the applicants have not been found comparable with that of Inspectors of Police Organisations.  We find that the same does not inter alia, include the CBI and IB and that has been referred in the Delhi Police and the CBI and IB do not come within the purview of the Police Organisation and cannot be treated as such.  Apart from it by their further recommendation placing the Inspectors in IB/CBI in the replacement scale of Rs. 1640-2900 the anomaly which has been created in the year 1986 has been removed.  In our considered view this recommendation after going into all the aspects and factors for determination of pay scale i.e., eligibility, educational qualification, nature of duties and responsibilities as well as professional skills the applicants Inspectors of Customs and Excise have been found at par with the Inspectors of CBI and IB.  The recommendation of expert body also places these two sets of employees in parity in all respects.  Subsequent decision of the Government by disagreeing with the recommendations of the expert body as far as CBI and IB is concerned and recommending the pay scale of Rs. 2000-3200 to the Inspectors of CBI and IB vide their letter dated 6.10.97 certainly creates an anomaly in the pay scale of two equally placed sets of employees.  This decision of the Government is without any logic, rational and shows hostile discrimination between the two sets of employees having been treated alike by the 5^th CPC.  In our considered view the expert body, i.e., HPC set up by the Ministry of Finance has recommended the revision of pay scale of the applicants at par with the Inspectors of CBI and IB and the same has been accepted by the Ministry of Finance. There was no reason for the Government to have taken a contrary view by rejecting their request without recording any justified reasons.  The stand of the Government to adopt restructuring in no way would be relevant for upgradation of their pay scale at par with their counter-parts in CBI/IB. As per the ratio of P.V. Hariharan’s case (supra) the Tribunal can interfere in the matter of pay scale if there exists a hostile discrimination between the two sets of employees similarly situated, without any justification.

8. In the result, we find the action of the Government to deny the applicants pay scale at par with those of Inspectors of CBI/IB as violative of Articles 14 and 16 of the Constitution of India.  However, we refrain from ordering accord of pay scale to the applicants and in this view of the matter the OA is disposed of with the direction to the respondents to reconsider the claim of the applicants for being accorded the pay scale at par with the Inspectors of CBI and IB and having regard to the observations made above by us and to take a final decision by passing a detailed and speaking order, within a period of three months from the date of receipt of a copy of this order…”

4.9.    The CBEC vide F.No. A-26-17/13/2002-Ad.II(A) dated 17.12.2002 rejected the representation of application in OA No. 45/2000 to place the post of Inspector of Central Excise in the higher pay scale of Rs. 6500-10500 (the replacement scale for Rs. 2000-3200).  The rejection was based on the contention that the 5^th CPC had held that Inspectors of Central Excise, Income Tax, etc are not comparable with Police. 

4.10.  The above rejection order was contrary to the clear observation of the Hon’ble CAT vide its order dated 22.03.2002 cited above that “The contention of the respondents by referring to the recommendations in paras 66.118 and 66.119 is that the applicants have not been found comparable with that of Inspectors of Police Organisations.  We find that the same does not inter alia, include the CBI and IB and that has been referred in the Delhi Police and the CBI and IB do not come within the purview of the Police Organisation and cannot be treated as such.  Apart from it by their further recommendation placing the Inspectors in IB/CBI in the replacement scale of Rs. 1640-2900 the anomaly which has been created in the year 1986 has been removed.  In our considered view this recommendation after going into all the aspects and factors for determination of pay scale i.e., eligibility, educational qualification, nature of duties and responsibilities as well as professional skills the applicants Inspectors of Customs and Excise have been found at par with the Inspectors of CBI and IB.  The recommendation of expert body also places these two sets of employees in parity in all respects.”

4.11.  Hence, the Co-Ordination Committee of Associations in the Department of Revenue, representing the Organisations of the Inspectors and Superintendents in Central Excise & Customs and their counterparts in Income Tax, approached the Finance Ministry for justice.

4.12.  The issue was dealt with by the Department of Expenditure in their F No. 6/37/98-1C (Note pages 51 to 54).  While concluding the discussion, the Expenditure Ministry stated in the above note thus:

“13. To sum up, it may be mentioned that in no two organizations, the assigned duties of comparable posts can be totally identical and so is the case with the Inspectors of CBI, IB, Central Police Organisations, Customs, Income Tax and Central Excise.  However, the 3^rd, 4^th and the 5^th Pay Commissions by assigning identical pay scales to the Inspectors of CBI, IB, Central Police Organisations, Inspectors of Income Tax, Customs and Central Excise have established the comparable nature of the level of responsibilities assigned to the Inspectors of each of the categories mentioned above.  This was also upheld by the Committee set up by the former Finance Minister on this subject as well as in the judgment dated 22.3.2002 of Jabalpur Bench of CAT. In view of this, it may perhaps be appropriate if the instant proposal of Department of Revenue to upgrade pay scales of the posts of Income Tax Inspectors and Income Tax Officers to Rs. 6500-10500 and Rs. 7500-12000 with prospective effect is approved.  A similar dispensation will also need to be extended to analogous posts in CBEC as the posts in these two departments have a distinct relativity and have always been on par…”

4.13.  The Hon’ble Finance Minister Shri. Jaswant Singh, approved the above note and accordingly upgradation of the pay scales of the Officers of CBEC and CBDT was notified vide Order dated 21.04.2004 in F No. 6/37/98-1C as below:

Post	Existing Pay Scale	Revised Pay Scale
Income Tax Officer	Rs. 6500 - 10500	7500 - 12000
Appraiser (Central Excise)	Rs. 6500 - 10500	7500 - 12000
Superintendent (Central Excise)	Rs. 6500 - 10500	7500 - 12000
Superintendent (Customs Preventive)	Rs. 6500 - 10500	7500 - 12000
Income Tax Inspector	Rs. 5500 - 9000	6500 - 10500
Inspector (Central Excise)	Rs. 5500 - 9000	6500 - 10500
Examiner (Custom)	Rs. 5500 - 9000	6500 - 10500
Preventive Officer (Custom)	Rs. 5500 - 9000	6500 - 10500

5.       From the above, it would be evident that the Superintendents of Central Excise and their analogous cadres are rightly to be placed in Level 10 i.e the replacement scale for 5400 P.B-3 on par with the Deputy Superintendents of CBI, etc. 

6.       Since we are Gazetted Officers, we do not have a seat in the Anomaly Committee, being not part of the Staff Side in the Departmental Council. Hence it is requested that the above issue may kindly be recommended favourably to the Anomaly Committee.

7.       Further, it would not be out of place to mention that though the pay scale matter was fought by Associations in the CBEC from 1994 onwards (The then Inspectors’ Associations), and even though the favourable findings by the 5^th CPC was mainly on account of the favourable recommendation of the CBEC, ultimately when the matter went upto the Expenditure in 2004, the CBEC did not support the issue. Our cadres got the benefit only on the grounds that they were analogous to the cadres in the CBDT.  This would be evident from the note of the Expenditure reproduced in para 4.12 above.  Hence it is our humble prayer that this time around, the CBIC should protect the interests of its cadres by recommending this pay anomaly to the Anomaly Committee.

          Thanking you,

Yours truly,

(R. Manimohan)

Secretary General