F.No.
AICEIA/Surat/1/2015-16 Dated
: 22.06-2015
To,
The
Hon’ble Chief Commissioner,
Central
Excise, Customs & Service Tax,
Vadodara
Zone, Vadodara.
Respected Sir,
Subject : Request
to rescind/revise the Establishment Order No. 31/2015 dated 19.06.2015 issued under F.No. II/03-05/CCO/2015 by the Additional Commissioner (CCO), O/o the Chief
Commissioner, Vadodara Zone – reg.
Kindly refer to the captioned
matter. Our letter of even no. dated 17.06.2015 (copy enclosed) on this matter
may also be referred to.
2. In this connection, we would submit
that the aforesaid AGT orders have been issued in gross violation of the “Policy
for Transfer/Posting/ Rotation for Group “B” Executive Officers of Vadodara
Zone” and appears to be totally arbitrary, unreasonable and issued in an autocratic
manner. None of the provisions of the Transfer Policy-2015 have been followed
in totality, in the said orders and appears
to be based on pick and chose principle. We have reasons to believe that, with
a view to totally deviate from the Policy, no due list of Inspectors for
AGT-2015, was displayed on the website as per the prevalent practice in the
past. Even the Board, itself displays due list of officers before issuing AGT
orders. This too, has happened, despite the fact that we had submitted our
apprehensions, in writing, regarding possible deviation from Transfer Policy
vide our letter dated 17.06.2015. The authority appears to be working on “Favourism
Policy” in place of “Transfer Policy”.
3. A list of representations against the
transfer orders, are separately bunched and being submitted to your kind honour
for consideration. However, we wish to inform your honour that the following
major deviations in the transfer orders are noticed :-
(i)
As per policy (Para 2), the normal tenure in a Commissionerate shall be three
years, but a number of Inspectors who have already completed 3 years in a
Commissionerate, have not been considered for change of Commissionerate.
(ii)
As per Policy (Para 4.3), earlier Commissionerate of the officers was required
to be taken into account, which has not been considering in the AGT orders.
(iii)
In the Transfer Policy, there is no defined tenure in CCO/CCE(TAR)/CCE(A), but
as per DGHRD Guidelines, these are non-sensitive charges and hence the officers
posted in such formations should have been transferred out on completion of one
year, unless they are willing to work further, since normal tenure as in
non-sensitive charges in Surat Cluster is one year only, as on date. But none
of the officers have been transferred out/in from Appeals-II.
(iv)
As per Para 7.1 of Transfer Policy, as far as possible, the offices has to
serve 3 years in the Audit Commissionerate and a mandatory posting in Surat-I
Commissionerate, but how can it be possible, when the officers already
completed 3 years and in some cases even after completion of 5 years in one
Commissionerate, have not been transferred.
(v)
The schedule of transfers has been grossly ignored as laid down in Para 13 of
the Policy.
4. In view of such major deviations, we
have apprehensions that the transfer orders have been issued in a hurry,
without properly considering the facts regarding history of postings, without
display of Due list and blind-folded signing of the transfer orders prepared at
the lower levels and even without considering the government revenue
realisation in the field formations.
5. Your honour, had held a meeting with
all the Associations, while forming the transfer policy, and the policy was
prepared in a much adorable manner. But the transfer orders have spoiled all
the expectations of transparency and fairness, owing to such transfer policy
and it clearly appears that the AGT-2015 has been made in an arbitrary and
unfair manner and to make it happen, unopposed, no Due list of the officers was
put on the official website or circulated in any manner, despite the written
request of the association. This has brought widespread disgrace to our members
and we strongly condemn such transfer orders. 19th June is a
BLACK DAY in the history of Vadodara Zone for such oppressive orders have been
imposed upon our members.
6. Hon’ble Supreme Court of India in R.V. Raveendran,
J. in Sanchit Bansal V. Joint Admission Board, (2012)-1-SCC-157, Para 28, held
as under :
“ An action is said to be arbitrary and
capricious, where a person, in particular, a person in authority does any
action based on individual discretion by ignoring prescribed rules, procedure
or law and the action or decision is founded on prejudice or preference rather
than reason or fact.
In an earlier
case of Jaisinghani Vs. Union of India [1967(2)SCR903 at 718], the Supreme
Court quoting from Diecy’s “Law of the Constitution (10th Edition) has held, “…
The rule of law from this point of view means that decisions should be made by
the application of known principles and rules and in general such decisions
should be predictable and the citizen should know where he is.”
The view was that any governmental action should be on the basis of
pre-determined rules. Discretion is not necessarily the anti-thesis of the Rule
of law. Justice Mathur said, “If it is contrary to the Rule of law
that discretionary authority should be given to government departments or
public officers, then there is no rule in any modern state.”
In N. Nagendra Rao & Co. versus State of A.P. (1994)6-SCC-205, it was
held by the hon’ble Supreme Court that, “But with the
conceptual change in statutory power being statutory duty for sake of society
and the people the claim of a common man or ordinary citizen can not be thrown
out merely because it was done by an officer of the state even though it was
against law and negligent”.
In Brij Mohan Lal Vs. Union of India (2012)6SCC 502, at Para 9, it has
been held that :-
“Where the rule of law prevails,
there can be nothing like unfettered discretion or unaccountable action.”
In Ramlila Maidan Incident In Re. (2012)5SCC1, Para 16, Hon’ble Supreme
Court has held that,
“Any action taken by a public
authority which is entrusted with the statutory power has, therefore, to be
tested by the application of two standards; first, the action must be within
the scope of the authority conferred by law and, second, it must be reasonable.
If any action, within the scope of the authority conferred by law is found to
be unreasonable, it means that the procedure established under which that
action is taken is itself unreasonable.”
7. In view of the above, our association
requests your honour, to kindly rescind the aforesaid AGT-2015 orders and
kindly revise it after duly publishing the due list and after considering the
representations arising due to these orders.
8. As per Para Q of the Revised
Transfer/Place Guidelines for Group “B” Gazetted and Non-Gazetted Executive
Officers (Posted to Central Excise & Service Tax formations) issued by the DGHRD,
“Chief Commissioners have the discretion
to deviate from the transfer guidelines, subject to recording the reasons for
deviation in file”. By prescribing so, the DGHRD has made it clear that
there is no unfettered discretion given to the Hon’ble Chief Commissioner in
Transfer/Posting matters and the orders or Transfer/Posting, though an
Administrative one, are liable to be appealed against in the Administrative
Tribunals.
8. The Aggrieved members of our association
wish to move to the Hon’ble CAT against such unjust Transfer Orders and it is
therefore requested to provide the reasons behind deviation from the transfer
guidelines, to our association.
9. An opportunity to be heard in person
and to bring to your kind notice, the anomalies occurred in the Transfer order,
is sought from your honour.
Yours
faithfully,
(M.S.
Prabhat)
General Secretary, AICEIA, Surat
Copy
to :
1.
The Commissioner, Central Excise, Customs and Service Tax, Surat-I
2.
The Commissioner, Central Excise, Customs and Service Tax, Surat-II
3.
The Commissioner, Central Excise, Customs and Service Tax, Bharuch.
4.
The Commissioner, Central Excise, Customs and Service Tax, Audit-II
5.
The Commissioner, Central Excise, Customs and Service Tax, Appeals-II
6. The President, All India Central Excise Inspector’s
Association to bring the issue in the kind notice of DGHRD, Ministry of
Finance, New Delhi and the Member (P&V), CBEC, Ministry of Finance, New
Delhi.
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