TMI Blog1996 (5) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... or a direction to the Government of India to prepare a fresh seniority list in accordance with law, on the basis of length of service, quashing promotions of some of the respondents therein to the post; of Assistant Collector of Customs and Central Excise as also for a corresponding direction to promote the promoteeapplicants to such posts, giving them the benefit .of revised seniority with retrospective effect. A glimpse of the service related history would be useful for a thorough grasp of the problem. There existed Customs Houses in the metropolitan cities of Bombay, Madras and Calcutta at a given point of time, established by the Government of India, .and manned by members of the Customs Appraisers Service. As far back in 1936, the Central Board of Revenue, by order, had established the manner of recruitment to the Customs Appraisers Service to be done from two sources, i.e., 50 per cent by departmental promotion, 25 per cert directly from experts arid 25 percent by means of a competitive examination or selection by the Public Service Commission, It was also provided in the said order that the percentages laid down denoted the maximum and the Collector of Customs would not h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank of Revenue, prepared a seniority list in the year 1963. Certain promotee Appraisers of the Customs Department of the Government of India challenged, the seniority list of 1963 by means of a petition under Article 32 of the Constitution before this Court contending that the rotational system had resulted in discriminatory treatment against them with the consequence that promotees of much longer service in the cadre of Appraisers were put in the seniority list below direct recruits with much shorter service, which offended the Equality Rule with respect to opportunity guaranteed under Article 16(1) of the Constitution. The dispute focussed and resolved can be seen in Mervyn Cominho and Ors, v. Collector of Customs, Bombay and Ors., [1963] SCR 600, a decision by a five judge bench. The contention of the Union of India in response was that in a service where recruitment is partly by promotion and partly by direct, recruitment, the system of fixing seniority by rotation has been adopted and that this pattern was being followed in a number of services under the Union, It was also urged that there is nothing discriminatory in such a system and no denial of equality of opportunity by f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already, there is no inherent vice in the principle of fixing seniority by rotation in a case where a service is composed in fixed proportion of direct recruits and promotees. The other grievance of the promotees in Mervyn Continho's case was in relation to the promotional cadre of Principal Appraisers. There was only one source of recruitment thereto, i.e., by promotion from the cadre of Appraisers. It was therefore ruled that when the source of recruitment of Principal Appraiser is one, namely, from the .grade of Appraisers, there is, therefore, no. question of any quota being reserved for the two original sources and in their cases the rotational system could therefore not apply, and rather the. normal rule Would apply, i.e., that a person promoted to a, higher grade gets his seniority in that, grade according to the date of promotion, subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a ease it was continuous appointment in the higher .grade which determined seniority because the source of recruitment being one. The departmental method by which seniority in the grade of Principal Appraisers was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questionably afterwards. It is not disputed that on the basis of the orders of the Central Board of Revenue of the year 1963, as approved by this Court in Mervyn Continho's case, seniority lists were drawn by the respective custom houses established in the country, The next promotional avenue then respectively available to Appraisers was the post of Principal Appraiser which was a Grade D post, promotion to which was made on regional basis by the respective Customs Houses. The Grade of Principal Appraiser however was abolished on 1.4.9.1970. The Appraisers thenceforth: were made eligible For promotion directly to the post of Assistant Collector of Customs, a Group A post, in the Indian Customs and Central Excise Service. Since the said service was an All India Service need. arose to prepare an All India list of Appraisers working in the Customs Houses. A decision in. that direction was made by the Ministry of Finance, Department of Revenue Insurance, vide Circular dated 28.2.1973. The following principles were laid down for the preparation of an All India, list of Appraisers for promotion to the Class 1 service: 1. Direct recruitment Appraisers belonging to three diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay High Court Was rejected on 22.2.1982. The Government then went into another exercise to untie the knot. It made a decision on October .29, 1982 that the direct recruits and the promottee Appraisers would be brought on two different list on. All India Service basis and the promotional posts of Assistant Collector of Customs/Central Excise. falling in the share, of Appraisers. will be divided equally between the direct recruits and the promotees. The circular inter alia provided that prornotee Appraisers of all the custom houses could be brought on one list on the basis of their continuous length of service, subject to the order on which they wee included in. the panel prepared by the departmental promotion committees in the respective customs houses. Further it was provided that vacancies in the Group A meant for Appraisers would be filled up tram the two panels i.e. one meant for direct recruits and the other for the promottee Appraisers, in the ration of 1:1, alternative vacancies going to the promottees and direct recruits. This principle too was unacceptable to some. This time challenge came in the Madras region. The circular was challenged in the Madras High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequent years where necessary) for taking action for direct recruitment for the total number according to the usual The circular of May 22, 1986 made two different provisions/basis for two cadres. One commenced for those Appraisers who were in position from 15 September, 1970 and were promoted 10 the Grade on regular basis upto February 28, 1986 and the other in respect of those. promoted/recruited to the Grade on or after March 1 1986 This circular too was put to challenge in this Court by means of a writ .petition under Article 32 of the Constitution but the same was allowed to be withdrawn on October 28, 1986 giving liberty to the writ petitioners to move the Central Administrative Tribunal declaring that the Tribunal had authority to entertain petitions. in a representative capacity. Thus the matter before. the Tribunal was projected as also defended in a representative way in order to determine whether the impugned circular of May 22, 1986 wasfair and reasonable, not violating the equality rule and if so to ascertain what could be the basis to settle this otherwise never ending dispute. The Central Administrative Tribunal by an elaborate judgment dated 2.5.1987 quashed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es period had the quota and rotational rule been preserved. Since earlier to the rules the quota and rota principles were in vogue, this Court in the light of the Government's Orders' then existing, and in particular that of the. year 1959, gave its. approval. (vii) That the service knit up under the Rules is an All India Service. (viii) Inter se sertiprity in the said Rules between the direct recruits interse is determinable in. the order of selection prepared by the Union Public Service Commissi n from time to time. Direct recruits in selection are allocable to any of the. Customs. Houses functioning in the country. (ix) Promotees Appraisers. get to the service by promotion on selection by the Regional Departmental Promotion Committees, becoming rnembers of the All India Service from the date of promotion. (x) Within the Regional Customs Houses, seniority inter se between promotees and direct recruits, as also on All India basis, prior to the coming into the force of the Rules had to be regulated by the rotational principles in accordance with Mervyn Continho's case irrespective of the length of continuous officiation. (xi) In view of the five judge ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in is not to amalgamate separate services. Here the service was and is one i.e. an All India Service of Appraisers. Prior to the Rules 50% posts in the service were filled by direct recruitment and the seniority of the selectees was fixed by the U.P.S.C. in the order of selection. Inter se seniority amongst direct recruits was thus a sealed event, that was the foundation. Entry into service by promotion was fortuitous dependent on the exercise by the departmental committees in the respective. Customs Houses and the outcome. Mervyn Continho's case tells the way to work it out. In their respective quotas direct recruits as well as promotees rotate the quota System as 1:1 as mentioned in Mervyn Continho's case. But after the Rules of 1961, when the quota system has been discarded Mervyn Continho's rule cannot apply. As per Rule 4C of the 1961 rules, the allocation of at least 50% posts in favour of direct recruits is ensured at all times. The enlistment of the direct recruits, allocated to Customs Houses on the basis: of their selection, would obviously present no difficulty. Equally enlistment of promottee Appraisers, since coming from feeder sources of Customs: Houses, f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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