TMI Blog1966 (2) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The petition therefore will have to be allowed. with respect to the method by which seniority is fixed in the grade. of Principal Appraisers. That method denies equality of oppor- tunity of employment to the Appraisers who are the only source of' recruitment to the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one. Appraisers is concerned but allow it so far as the seniority of Principal Appraisers is concerned and the method used by the respondent in that connection must be struck down, and we further direct the determination of their seniority in the manner we have stated above. Appeal allowed in part. - W.P.(C) 97 OF 1964 - - - Dated:- 14-2-1966 - K.N. WANCHOO, P. B. GAJENDRAGADKAR, J.C. SHAH, S.M. SIKRI AND V. RAMASWAMI, JJ. JUDGMENT This petition under Art. 32 of the Constitution by certain Appraisers in the Customs Department of the Government of India is directed against the seniority list prepared in 1963 under the order of the Central Board of Revenue (hereina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the Union is that these posts are selection posts and selection is made from the cadre of Appraisers. For this purpose Appraisers with a minimum service of five years are eligible for promotion and there is a probation of two years before they are confirmed. The Union further contends that by the system of rotation which is being followed in the cadre of Principal Appraisers also what happens is that the seniority of a direct recruit in the cadre of Appraisers is restored as on account of five years qualification, a direct recruit cannot be promoted to the post of Principal Appraiser while his junior promotee in the post of Appraiser gets such promotion. According to the Union, therefore, this system which is given effect to in the cadre of Principal Appraisers merely restores the seniority which a direct recruit had in the cadre of Appraisers. This is the ,only justification for the system in the matter of seniority in the cadre of Principal Appraisers. We shall first consider the question of Appraisers. As far back as 1936, an order was passed by the Board which laid down that recruitment to the Customs Appraisers' Service would be from two sources, i.e. 50 per cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grade was defined as service on a rate of pay higher than the minimum of the time scale of the grade concerned. The principle of this circular was also applied to ex-Government servants of Burma appointed under the Central Government and employees of the former Part B States taken over by the Centre as a result of federal financial integration. Naturally as this change could not be applied only to displaced persons etc., it was applied to the existing government servants of the Government of India also from January 1, 1944. But there is nothing in the circular to show that the seniority of the existing government servants inter se was to be disturbed on the basis of this circular. The real purpose of this circular appears to be to fix seniority for displaced persons etc., in accordance with it and for that purpose it applied the same principle to the existing central government servants from January 1, 1944. It appears that by 1959, the circular of 1949 for absorption of displaced government servants etc., had worked itself out. Therefore, on December 12, 1959, the Government of India issued another circular containing general principles for determining seniority of various ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do with the question of fixing of seniority as between direct recruits and promotees. Its main value is that it emphasises that the proportion fixed for direct recruits and promotees should be rigidly maintained. It also directs that promotion to higher grades should be made on the basis of a combined seniority list of both direct recruits and promotees. Then there is another circular of 1955. That circular again emphasises the rotational system and says that it has been decided that inter se seniority of direct recruits and promotees in the grade of Appraisers should be determined in the order in which the vacancy in that grade is filled by a direct recruit or by a promotee according to the quota fixed for such appointments . Stress has been laid on behalf of the petitioners on the words is filled in this circular, and it is urged that this means that until the direct recruit is actually recruited and fills the vacancy meant for a direct recruit he cannot get seniority from before the date he fills the vacancy merely on the ground of rotational system of fixing seniority. We do not think that this is the meaning of the words is filled used in this circular. We have already sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent service. Any anomalies which may have resulted on account of insufficient recruitment of direct recruits in the past cannot in our opinion be a ground for striking down the rotational system, which, as we have said, does not itself amount to denial of equality of opportunity in the matter of employment in government service. It is regrettable that some anomalies have appeared because of insufficient recruitment of direct recruits in the past in this particular service. But that in our opinion can be no reason for striking down the seniority list prepared in 1963 which is undoubtedly in strict accordance with the rotational system based on the fixed quotas for recruitment of direct recruits and pro motees. The order of the Board of 1963 on the basis of which the impugned seniority list of Appraisers has been prepared clearly lays down that the principle of determination of seniority of the direct recruits and the promotees inter se in the prescribed ratio of I : I should be worked out . This order is in accordance with the circular of 1959 and as we have said already, there is no inherent vice in the principle of fixing seniority by rotation in a case where a service is compose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Principal Appraisers' grade, it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers' grade. There is only one source from which the Principal Appraisers are drawn, namely, Appraisers, the promotion being by selection and five years' experience as Appraiser is the minimum qualification. Subject to the above all Appraisers selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers' grade subject of course to the right of government to revert any of them who have not been found fit during the period of probation. But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits. The present method by which the respondent puts a direct recruit from the grade of Appraiser, though he is promoted later, above a promote who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Prin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
