TMI Blog2008 (5) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... with them, for the Appearing Parties. [Judgment per: S. B. Sinha, J.] - Leave granted. 2. Interpretation of the Customs Appraisers' Service, Class II Recruitment Rules, 1961 (for short "the 1961 Rules") and the Department of Revenue (Customs Appraisers) Recruitment Rules, 1988 (for short "the 1988 Rules") vis-a-vis application of the decisions of this Court in Mervyn Coutindo Ors. v. Collector of Customs, Bombay Ors. [(1966) 3 SCR 600] and Gaya Baksh Yadav v. Union of India 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 Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Appraisers". On the basis of the said list, orders of promotions were issued in favour of the incumbents of the post of Appraisers to the post of Assistant Collector of Customs of Central Excise. The said circular dated 22.05.1986 was initially challenged before this Court through a petition under Article 32 of the Constitution of India by the 'Direct Recruits'. The said petition was permitted to be withdrawn by an order dated 28.10.1986 granting liberty to the petitioners therein to approach the Central Administrative Tribunal (CAT), pursuant whereto an original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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 9.08.2005, the said original applications were dismissed. A writ petition was preferred thereagainst by the appellants, which by reason of the impugned judgment dated 21.04.2006 has been dismissed. 15. Mr. J.L. Gupta, learned Senior Counsel appearing on behalf of the appellants, in support of these appeals would raise the following contentions: (i) In terms of the 1961 Rules, the promotees could be appointed upto 50% of the total cadre strength and their seniority in terms of Gaya Baksh Yadav (supra), was required to be determined 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alised having been laid down in Sub-Rules (b) and (c) of Rule 4 of the 1961 Rules, must be held to be referable only to the existing vacancies and not the cadre strength which was required to be determined on a year to year basis. 19. Mr. B. Kumar, learned senior counsel appearing on behalf of the respondent no. 3, supplementing the submission of the Additional Solicitor General and Mr. Ganguly urged that the basis for the judgment of the Tribunal as also the High Court being Exhibit L having not been the subject matter of challenge either before the CAT or the High Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have any figure as to how things proceeded from the year 1988 to 2003. It is, however, of some significance to note that in the year 2004, 164 direct recruits were working as against 520 promotees, and in the year 2005, 163 direct recruits were working as against 539 promotees; the total cadre strength being 809. 26. We have noticed hereinbefore that the situation had undergone a sea change from 2002 onwards as no direct recruitment has taken place at all. Rules have also not been amended. 27. It is in the aforementioned background we may notice the relevant statutory rules. Rules 3 and 4 of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be from two sources; one by competitive examination and other by promotion. So far as direct recruitment is concerned, it could be made if competitive examination is held as envisaged under Part III of the 1961 Rules, i.e., Rule 6 or by selection otherwise than by competitive examination in accordance with Part VI, i.e., Rule 16 thereof. 31. So far as filling up of the posts by promotion is concerned, the same could be done by way of promotion in accordance with Part IV thereof, viz., Rule 14 or by transfer of an officer in Government Service in accordance with Part V of the 1961 Rules, viz., Rule 15. All appointments were to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacancy. Rule 4 provides for the method to be adopted therefor. Clause (c) of Rule 4 of the 1961 Rules puts a rider thereupon, namely, how to do it. The mandate being that the percentage of direct recruitment shall not be less than 50%. On year to year basis, a requisition has to be made to the Union Public Service Commission intimating them the number of vacancies available. Keeping in view the nature of competitive examination, some posts may still remain vacant. Even in a case where there are, for example, one hundred vacancies, the number of direct recruits available may be much less. Other exercises for recruitment then have to be resorted 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., cadr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), (C) (E) of the directions issued by this Court, which have some bearing on the controversy, which are in the following terms: "(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (c) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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