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TMI Blog2008 (5) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia and Others [(1996) 4 SCC 23] is in question in these appeals which arise out of a judgment and order dated 21.04.2006 passed by the High Court of Judicature at Madras. 3. Appellant is the Custom Appraisers Officers Association representing promotee `Appraisers' who were appointed in the post of `Examiner' on various dates. Customs Department of the Government of India (Department) appoints Appraisers. There was no statutory rule governing the terms and conditions of their services including seniority. 4. There were two sources of recruitment in the post of Appraisers; one by way of promotion and, the second by direct recruitment. In the year 1936, an order was passed by the Central Board of Revenue (Board) laying down that recruitment to the Customs Appraisers' Service would be from two sources, i.e., 50% by promotion, 25% directly from amongst the experts and 25% by way of a competitive examination or selection by Public Service Commission. Circulars were issued from time to time in regard to inter se seniority between the promotees and the direct recruits. 5. On or about 12.12.1959, the Government of India issued a circular containing general principles for determining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rative Tribunal (CAT), pursuant whereto an original application was filed before the Principal Bench of the CAT, Madras. The said circular was quashed. The orders of promotions passed in terms thereof were also quashed. The Union of India was directed to prepare a fresh seniority list on the basis of the date of continuous officiation as Appraiser. An appeal thereagainst was filed before this Court leading to pronouncement of the judgment in Gaya Baksh Yadav (supra). 8. These appeals raise a question of interpretation of the said decision. We would, however, deal with the said question a little later. 9. The Central Government issued the 1988 Rules on or about 1.01.1988. Pursuant to or in furtherance of the decision of this Court in Gaya Baksh Yadav (supra), a seniority list of Appraisers was published upto 31.12.1987 on 12.11.1997. The said seniority list again was challenged by the direct recruits before the Bombay Bench of CAT as also before the Madras Bench. The Madras Bench dismissed the said application being barred by limitation. Despite the same, merit of the matter was gone into by it holding that the ad hoc promotions having been made on the recommendations of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined on the basis of the doctrine of continuous officiation and not otherwise. (ii) Gaya Baksh Yadav (supra) having clearly interpreted the 1961 Rules and having laid down the law that quota and rota rule would not apply and only the principles of continuous officiation would, no seniority list could have been published in contravention thereof. (iii) The impugned seniority list should have been issued directly in terms of the 1961 Rules as the same did not contemplate any year-wise seniority list. (iv) The seniority list would clearly show that whereas the names of persons stated in Serial No. 1 to 72 were mentioned in terms of the 1961 Rules, from Serial No. 73 onwards they have been prepared on year-wise basis which is not postulated under the 1961 Rules. (v) 171 persons whose names appeared in the said list and who had been officiating in the said posts on the basis of the orders of promotion issued pursuant to the recommendations made by the DPC, could not have been excluded therefrom. (vi) Serial No. 235 onwards having been based on year-wise seniority is clearly violative of the dicta laid down in Gaya Baksh Yadav (supra) which would clearly go to show that they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also before this Court, it is incorrect to contend that the appellants were entitled to figure in the All India Seniority List only on the basis of their continuous officiation. Properly read, it was urged, Gaya Baksh Yadav (supra) suggests that the ad hoc promotees who were appointed in violation of Rule 4(C) of the 1961 Rules could not have been considered for reckoning their seniority. 20. Mr. Venkataramani, learned senior counsel appearing on behalf of the impleaded Association would urge that Gaya Baksh Yadav (supra) suggests that continuous officiation theory should be applied in cases of promotees irrespective of the manner in which they were promoted. On a proper reading of the 1961 Rules, it would contend that there did not exist any dichotomy between post and vacancy as number of vacancies can only be taken into consideration in terms of the Rules. 21. Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the Group 'A' Appraisers (Intervenors), would contend that this Court should not interfere with the impugned judgments as the matter is pending before the Bombay High Court. 22. It is a matter of grave concern that although the parties have filed a large ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 Rules read as under: "Rule 3. Recruitment to the Service shall be made by any of the following methods :- (a) By competitive examination in India in accordance with Part III of these rules. (b) By promotion in accordance with Part IV of these rules. (c) By transfer of an Officer in Government Service in accordance with Part V of these rules. (d) By direct recruitment by selection otherwise than by competitive examination in accordance with Part VI of these rules. Rule 4 (a) No appointment shall be made to the Service or to any post borne on the cadre of the Service by any method not specified in Rule 3. (b) Subject to the provisions of Sub-rule (a), the Board shall determine the method or methods of recruitment to be employed for the purpose of filling in particular vacancies in the Service, as may be required to be filled during any particular period and the number of candidates to be recruited by each method. (c) The percentage of posts to be filled by direct recruitment by competitive examination or by selection otherwise than by competitive examination shall not be less than 50 per cent of the total cadre of Appraisers. The remaining posts may be filled by any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made strictly in terms of the method specified in Rule 3. 32. In terms of the 1961 Rules, separate quotas for different categories of employees have not been fixed. If there is to be no 'quota', indisputably, the principles of 'rota' will have no application. Rule 4 of the 1961 Rules empowered the Board to determine the method of recruitment to be employed. Appointment was to be made for the purpose of filling up of vacancies in the services. It will depend upon the requirements for any particular period. The number of candidates required to be appointed by applying the methods envisaged under Rule 3 of the 1961 Rules is again a matter which was within the domain of the Board. Otherwise unguided jurisdiction of the Board, however, was sought to be controlled by clause (c) of Rule 4 providing that the percentage of posts to be filled by direct recruitment shall not be less than 50 per cent of the total cadre of appraisers. 33. The 1961 Rules, therefore, seek to maintain a distinction between 'cadre' and 'vacancy'. The cadre indicates the strength in the service which in turn would depend upon the determination by a competent authority on a periodical basis including the vacanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to for filling up of the rest of the vacancies. It is only for that purpose, the Government takes the yearly vacancy position. For the said purpose, the quota has to be kept flexible. As the number of requisitions may exceed the number of posts which could be filled up through direct recruits, indisputably, the remaining vacancies must be filled up in terms of the Rules. Determination of the mode and manner therefor being flexible, the essential features of the recruitment process cannot solely depend upon the sanctioned strength, i.e., cadre strength. For the said purpose, determining working strength will have some relevance. We have noticed hereinbefore that the said system has been followed for a number of years. The exigibility of the said method is not in question. The exercises undertaken year after year remained unchallenged. 35. Submission of Mr. Gupta, that at no point of time, the promotees have exceeded 50 per cent of the cadre strength must be considered keeping in view the aforementioned statutory provisions. Promotees did not have any fixed quota. Had there been a quota fixed for the promotees, the matter might have been different. Various decisions of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date." 38. As the ratio fixed for recruitment from different sources was not fixed, strict adherence to the principles enunciated therein was not possible to implement the same in a case of this nature. Similarly, no quota rule having been fixed, the question of breaking down thereof shall not apply. 39. Therefore, promotions may have to be continued whether on an ad hoc basis or otherwise so as to enable the Department to function effectively and efficiently. The promotees may continue in their service but when a question arises in regard to determination of seniority, the statutory rules must be given effect to. 40. In Gaya Baksh Yadav (supra), this Court opined: "...Both would be entitled to placement in the joint seniority list on the basis of their continuo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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