IN THE HIGH COURT OF JUDICATURE AT MADRAS.

(Special Original Jurisdiction)

W.P.No 13225 of 2010.

M.Subramaniam,
Inspector of Central Excise,
O/o the Commissioner of Central Excise,
Anaimedu, Salem -636 001.
Residing at No.369, Pudu Erikarai Road,
Ayyanar Nagar, Reddiyur,
Salem -636 004. ……Petitioner.

1. Union of India,
Rep. by Secretary, Department of Revenue,
Ministry of Finance, New Delhi.

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

3. The Chief Commissioner of Central Excise, Customs

& Service Tax, TamilNadu Zone,
121, Mahatma Gandhi Road, Nungambakkam,
Chennai- 600 034.

4. The Commissioner of Central Excise.

No.1, Foulkes Compound, Anaimedu,
Salem-636 001.

5. The Registrar,
Central Administrative Tribunal, Madras Bench,
City Civil Court Buildings, Chennai-600 104. …….Respondents.

AFFIDAVIT OF M.SUBRAMANAM

I, M.Subramaniam, son of D.Mani, hindu aged about 41 years residing at No.369,

Pudu Erikarai Road, Ayyanar Nagar, Reddiyur, Salem-636 004 and having now come
down temporarily to Chennai do hereby solemnly affirm and sincerely state as follows:
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1. I state that I am the Petitioner herein and as such I am well acquainted with the
facts of the case.
2. I state that I am presently working as an Inspector of Central Excise in the office
of the Commissioner of Central Excise, Salem Commissionerate. I state that I
joined the department as an Inspector of Central Excise on 16.01.1992. I state that
I have put in seventeen eighteen years of service in the same cadre and is yet to be
promoted as Superintendent of Central Excise due to stagnation in the cadre of
Inspector of Central Excise.

3. I state that the cadre of Inspector of Central Excise was in the pre-revised pay
scale of Rs.6500-1500 and the cadre of the Superintendent of Central Excise was
in the pre-revised pay scale of Rs.7500-12000. I state that on the implementation
of the sixth Central Pay Commission report, the Inspectors of Central Excise have
been placed in pay band 2 with a grade pay of Rs.4200/- and the Superintendents
of Central Excise have been placed in pay band 2 with a grade pay of Rs.4800/-
and a grade pay of Rs.5400/- after a period of four years in the grade pay of
Rs.4800. I state that the post of Superintendent of Central Excise is the
immediate promotional avenue for the Inspectors of Central Excise.

4. I state that two third of the posts of Inspector of Central Excise is filled up
through direct recruitment process of the Staff Selection Commission and
physical fitness tests conducted by the department. The post of Preventive
Officer and Examiner under the Customs Department is also filled up in the same
process. I state that all these three posts of Inspectors of Central Excise,
Preventive officers, Examiners under the Customs carry the same scale and more
or less the same level of responsibilities. The persons in the post of Inspector of
Central Excise who is a direct recruit gets his first promotion after long period of
sixteen to twenty years of service in the post of Inspector of Central Excise. On
the other hand the persons in the cadre of Preventive Officers, Examiners under
the Customs department get their promotions within six to ten years of service in
their respective cadres.

5. I state that pursuant to the recommendations of the Fifth Central Pay Commission
the Assured Career Progression Scheme ACP in short was conceived and
introduced with the intention to alleviate the grievances of those employees who
are stagnating in service without promotions for a long period. The said scheme
contemplates providing a minimum of two promotions to each Group B, Group C,
Group D employee and three promotions to each Group A employee in their
entire career span after appointment in a grade on recruitment basis. The said
scheme contemplates to extend non-functional promotion in that only financial
upgradations is granted to employees equal to the scale of pay of the immediate
grade which is higher in hierarchy. I state that under the said scheme the full
benefit of pay fixation in the higher scale as in case of promotion in a higher
grade shall be given and on promotion in the higher scale on occurrence of
vacancy, no further financial benefits will accrue on the employee. The said
scheme has been issued by the Ministry of Personnel, Public Grievances and
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Pensions, Government of India as per Office Memorandum No.35034/1/97-

Estt(D) dated 9.8.1999. In terms of the said Office Memorandum, the employees
are entitled to two financial upgradations in the 12th and 24th year of service
respectively.

6. I state that on the basis of the said scheme, the second respondent as per Letter
C.No.II/3/136/99-Estt dated 9.9.2003 issued order No.116/2003 granting first
financial upgradation to the petitioner and was granted the pay scale of the
Superintendent of Central Excise with effect from 1.01.2004 in the pay scale of
Rs.7500-250-12000 vide Assistant Commissioner of Central Excise, Salem II
Division C.No.II/24/01/2003 dated 11.08.2004.

7. I state that in the meanwhile there was deliberations with respect to the
recommendations of the Sixth Pay Commission Report with respect to Group B
Officers of the Department of Posts, Revenue etc. The Department of
Expenditure, Ministry of Finance, Government of India after a careful
consideration issued a resolution dated 29.08.2008 vide No.1/1/2008 accepting
the recommendations of the Sixth Central Pay Commission. According to the
said resolution Group B Officers of the Department of Posts, Revenue etc.will be
granted grade pay of Rs.5400 in Pay Band 2 on non-functional basis after four
years of regular service in the grade pay of Rs.4800 in Pay Band 2. The Union
Government has also accepted the said recommendations and has notified in the
Gazette the said recommendations incorporating them in the Central Civil service
(Revised Pay) Rules, 2008 with effect from 1.01.2006.

8. I state that I am drawing the pay scale of Rs.7500-250-12000 being the pay scale
of Superintendent of Central Excise which is Group B Post under the Department
of Revenue with effect from 1.01.2004 and as such I am entitled to the benefits of
the resolution of Ministry of Finance dated 29.08.2008 and therefore entitled to a
grade pay of Rs.5400/- with effect from 1.01.2008. I state that an Inspector of
Central Excise, a Group B Officer under the Department of Revenue placed in
the grade pay of Rs.4800/-corresponding to the pre-revised scale of Rs.7500-
12000 on the first financial upgradation under the Assured Career Progression
Scheme becomes entitled for the grade pay of Rs.5400/- after a period of four
years of drawing a grade pay of Rs.4800/-. The Central Board of Excise and
Customs has also issued a clarification per Letter F.No.A.26017/98/2008-AdIIA
dated 21.11.2008 clarifying that the four year period is to be counted with effect
from the date on which an officer is placed in the pay scale of Rs.7500-12000.

9. I state that the fourth respondent had issued an order dated 16.09.2008 fixing a
lesser grade pay of Rs.4800/- instead of Rs.5400/- to which I am entitled to with
effect from 1.01.2008. I state the Central Board of Excise and Customs has
issued another clarification on 11.2.2009 stating that grade pay of Rs.5400 need
not be given to those who are drawing the salary of Superintendents by way
financial upgradation under ACP. The said clarification is contradictory to the
ACP Scheme and the resolution of the Government of India. I state that
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aggrieved by the arbitrary fixation of the pay scale and the clarification dated
11.2.2009 issued by the Central Board of Excise and Customs I filed
O.A.No.167/2009 before the Hon’ble Central Administrative Tribunal, Madras
Bench and the Hon’ble Tribunal was pleased to dismiss the Original Application
on 19th April, 2010. In the said circumstances I am having no other efficacious
alternative remedy except to approach this Hon’ble Court invoking Article 226 of
the Constitution of India challenging the order dated 19.04.2010 of the Hon’ble
Central Administrative Tribunal, Madras Bench made in O.A.167/2009 on the
following among other

GROUNDS

a) The order passed by the Learned Central Administrative Tribunal is against law,
weight of evidence and probabilities of the case.

b) The Learned Tribunal failed to appreciate the scope of the Assured Career
Progression Scheme.

c) The Tribunal ought to have taken cognizance of the fact that the petitioner is
stagnating in the cadre of the Inspector of Central Excise for seventeen eighteen
years from 16.01.1992, the date of initial appointment as Inspector of Central
Excise without any promotion.

d) The Learned Tribunal ought to have appreciated the fact that the petitioner was
granted the pay scale of Superintendent of Central Excise eligible for all
financial benefits of the pay scale with effect from 1.01.2004 on the basis of the
Assured Career Progression Scheme of the Government of India.

e) The Learned Tribunal failed to appreciate the scope of the Resolution

No.1/1/2008 IC dated 29.08.2008 issued by the Ministry of Finance,
Departmnet of Expenditure, Government of India wherein the Government has
accepted to grant grade pay of Rs.5400/- in Pay Band 2 to Group B Officers of
the Department of Posts, Revenue etc after four years of regular service in
Grade pay of Rs.4800/-.

f) The Learned Tribunal ought to have held that the order dated 16.09.2008 passed
by the fourth respondent is null and void in the light of the resolution of the
Government of India dated 29.08.2008 and the clarification issued by the
Central Board of Excise and Customs dated 21.11.2008.

g) The Learned Tribunal ought to have held that the order dated 16.09.2008 passed
by the fourth respondent is null and void in the light of the provisions of the
Central Civil Service (Revised Pay) Rules, 2008.
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h) The Learned Tribunal failed to consider the fact that the financial Upgradation
under the Assured Career Progression Scheme has been formulated by the
Ministry of Personnel, Public grievances and Pensions, Department of
Personnel and any clarification with respect to the implementation of the said
scheme should be done by the Ministry of Personnel, Public grievances and
Pensions.

i) The Learned Tribunal failed to consider that the Central Board of Excise and
Customs, Ministry of Finance, Department of Expenditure has issued the
clarification dated 11.2.2009 without consulting the Ministry of Personnel.

j) The Learned Tribunal failed to appreciate the scope of the Assured Career
Progression Scheme in that the upgradation of the pay of an official to that of
higher promotional post when there is a defined hierarchy is inclusive of all
financial benefits attached to that higher post.

k) The Learned Tribunal failed to appreciate that when an Official gets financial
Upgradation equivalent to a higher post then when owing to a vacancy in that
higher post the same official is promoted to that higher post , the said official
will not be entitled to any fixation benefits of that higher post.

In these circumstances it is therefore prayed that this Hon’ble Court may be pleased to
issue a Writ order or direction in the nature of Writ of certiorarified Mandamus to call for
the records of the Hon’ble Central Administrative Tribunal’s order dated 19.04.2010
made in O.A.167/2009 and quash the same and direct the respondents 1to 4 to grant the
grade pay of Rs.5400/- and consequential benefits with effect from 1.01.2008 as per the
Orders of the Government of India accepting the recommendations of the sixth Central
Pay Commission and pass such further or other orders in the circumstances of this case
and thus render justice.

Solemnly affirmed at Chennai on this

Day of June,2010 and signed his
Name in my presence. BEFORE ME

ADVOCATE MADRAS.