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Sharath Kumar Rath vs The Central Administrative … on 21 April, 2006

Madras High Court
Sharath Kumar Rath vs The Central Administrative … on 21 April, 2006
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS           

DATED: 21/04/2006  

CORAM   

THE HONOURABLE MR. JUSTICE P.K. MISRA         
AND  
THE HONOURABLE MRS. JUSTICE CHITRA VENKATARAMAN               

W.P.NO.26975 of 2005  
and 
W.P.Nos.39564, 39583 of 2005  
and 
W.P.No.15158 of 2002  
and 
WPMP.Nos.29393 to 29396, 42049,42416 and 42432 of 2005     

W.P.No.26975 of 2005  

1. Sharath Kumar Rath 
   No.94, Lakshmana Salai,
   K.K. Nagar, Chennai 78.

2. Saroj Kumar Sadangi, 
   A29/3, Anna Nagar East,
   Chennai 102.

3. Parameswaran Satyam   
   No.97/G, (MB Flats)
   Lakshmana Salai, K.K. Nagar,
   Chennai 78.                  ..  Petitioners

-Vs-

1. The Central Administrative Tribunal
   rep. by its Registrar,
   City Civil Court Buildings,
   Chennai 104.

2. The Union of India,
   rep. by the Secretary to Government,
   Department of Revenue, North Block,
   New Delhi.

3. The Chairman, 
   Central Board of Excise and Customs
   Department of Revenue,
   Ministry of Finance, New Delhi 1.

4. The Chief Commissioner of Customs, 
   Custom House, Chennai.               ..  Respondents

W.P.No.39564 of 2005  

T.S. Jayachandar, 
Deputy Commissioner of Customs   
  and Central Excise,
11, 51th Street, Ashok Nagar,
Chennai 600 083.                        ..  Petitioners

        Vs.




1. The Central Administrative Tribunal
   rep. by its Registrar,
   City Civil Court Buildings,
   Chennai 104.

2. The Union of India,
   rep. by the Secretary to Government,
   Department of Revenue, North Block,
   New Delhi.

3. The Chief Commissioner of Customs, 
   Custom House, Chennai. 

4. C. Ramkumar  
   Deputy Commissioner of Customs,  
   Custom House, Chennai. 

5. K.M. Nagarajan,
   Deputy Commissioner of Customs,  
   Vallalar Road, Manchakuppam, 
   Cuddalore.

6. M. Chandra Bose, 
   Deputy Director of Customs and
     Central Excise,
   Directorate of Systems, SRU,
   Nungambakkam, Chennai 34.   

7. K. Venkata Ram Reddy  
   Deputy Commissioner of Central Excise,
   Vinayaga Marga Siddartham Nagar, 
   Mysore 570 011.                      ..  Respondents

W.P.No.39583 of 2005  
1. The Chennai Customs Appraising  
     Officers Association,
   Rep. by its Secretary,
   R. Prakash, Appraiser,
   Custom House, Chennai. 

2. Parvathi Kailasam,
   Deputy Commissioner of Customs,  
   Custom House, Chennai. 

3. T.H. Rao,
   Deputy Commissioner of Customs,  
   Custom House, Chennai. 

4. Bertsie Sundaram, 
   Deputy Commissioner of Central
     Excise, Chennai 90.                ..  Petitioners

                Vs.
1. The Central Administrative Tribunal
   rep. by its Registrar,
   City Civil Court Buildings,
   Chennai 104.

2. The Union of India,
   rep. by the Secretary to Government,
   Department of Revenue, North Block,
   New Delhi.

3. The Chief Commissioner of Customs, 
   Custom House, Chennai. 

4. C. Ramkumar  
   Deputy Commissioner of Customs,  
   Custom House, Chennai. 

5. K.M. Nagarajan,
   Deputy Commissioner of Customs,  
   Vallalar Road, Manchakuppam, 
   Cuddalore.

6. M. Chandra Bose, 
   Deputy Director of Customs and
     Central Excise,
   Directorate of Systems, SRU,
   Nungambakkam, Chennai 34.   
7. K. Venkata Ram Reddy  
   Deputy Commissioner of Central Excise,
   Vinayaga Marga Siddartham Nagar, 
   Mysore 570 011.                      ..  Respondents

W.P.No.15158 of 2002  
A. Cletus                               ..  Petitioners

                Vs.

1. The Union of India,
   rep. by the Secretary,
   Department of Revenue,
   Ministry of Finance,
   North Block, New Delhi 1.

2. The Commissioner of Customs,  
   Custom House, 33, Rajaji Salai,
   Chennai 1.

3. V.B. Yuvaraj
4. Mrs. Bertsie Sundaram 
5. Mrs. Tamilmani Sriram
6. K. Ramesh, 
7. B. Ramesh Kumar  
8. P.S. Uma Mahesh  
9. A.M. Madhusudara Rao  
10. M.J. Baby Rao 
11. O.P. Phalgunan, 
12. P. Shantharam 
13. N. Ravichandra
14. V. Sukumar 
15. The Registrar,
    Central Administrative Tribunal,
    Madras Bench,
    Chennai 104.                        ..  Respondents


        W.P.No.26975 of 2005 is filed under Article 226 of the Constitution of
India for the issuance of Certiorarified Mandamus to call for the  proceedings
of  the  Central  Administrative  Tribunal,  Madras  Bench, the 1st respondent
herein in O.A.No.566/2005 dated 9.8.2005 and quash the same  and  consequently  
direct  the respondents 2 to 4 to finalise and circulate the seniority list of
Appraisers in the light of the  objections  made  by  the  petitioners  before
making promotions to the post of Assistant Commissioner of Customs and Central 
Excise (Group A) Post. 
        W.P.No.39564 of 2005 is filed under Article 226 of the Constitution of
India  for  the  issuance of Certiorari to call for the proceedings of the 1st
respondent Tribunal in O.A.No.408/2005 dated 9.8.2005 upholding  the  validity
of    the    impugned    seniority   list   of   Appraisers   circulating   in
F.No.23011/1/2004-AD.II A dated 16.12.2004 of the 2nd respondent and quash the 
same. 

        W.P.No.39583 of 2005 is filed under Article 226 of the Constitution of
India for the issuance of Certiorari to call for the proceedings  of  the  1st
respondent  Tribunal  in O.A.No.419/2005 dated 9.8.2005 upholding the validity
of   the   impugned   seniority   list   of    Appraisers    circulating    in
F.No.23011/1/2004-AD.II A dated 16.12.2004 of the 2nd respondent and quash the 
same. 

        W.P.No.15158 of 2002 is filed under Article 226 of the Constitution of
India  for  the  issuance  of  Certiorari  to  call for the proceedings of the
respondent Tribunal in O.A.No.833/1999 dated 17.10.2000 and consequentially to
quash the seniority list issued by  the  1st  respondent  in  his  proceedings
F.A.23011/1/96 AdII(A) dated 12.11.1997 in so far as the fixation of seniority
of Respondents 3 to 14 and to direct the 1st respondent to refit the seniority
of  the  respondents  3  to 14 taking into account of the actual date of their
regularisation in the grade of Appraiser and  consequentially  to  direct  the
first  respondent  to  promote  the  petitioner  to  the  grade  of  Assistant
Commissioner with effect from the date on which his junior  respondents  4,8,9
and 10 were promoted as Assistant Commissioners and quash the same.    

!For Petitioner :  Mr.R.  Thiagarajan,
                   in WP.Nos.26975, Senior Counsel for
                39564 & 39583/2005      Mr.V.  Vijay Shankar

For Petitioner  :  Mr.Sathish Parasaran for
                in WP.No.15158/02 Mr.N.  Kannan

For Respondents 2to4:  Mr.V.T.  Gopalan 
                in WP.No.26975/05 & Addl.Solicitor General for
                Respondents 2 & 3 in Mr.S.  Udhaya Kumar, SCGSC
                WPs.39564 & 39583/05

For Respondents 4 to7:  Mr.J.  Srinivasa Mohan
                in WPs.39564 &39583/05

For Respondents 1-2     :  Mr.R.  Santhanam
                in WP.No.15158/02
Respondents 4 &10 :  Mr.V.  Parthiban for
                                M/s.Paul & Paul

Respondents 5,7,13 &15:  No Appearance   
Respondent-8    :  Mr.  Ashok Menon for
                                M/s.  Menon & Goklaney

Respondents 3,6,9,11, Notice Dispensed with 
                        12 & 14 :  vide order dt.23.1.2006
                        - - -
:COMMON JUDGMENT       

P.K.  MISRA, J 

                W.P.Nos.39564,  39583  & 26975 of 2005 have been filed against
the common order dated 9.8.2005 passed by the Central Administrative Tribunal,
(hereinafter referred to as the Tribunal) in O.A.Nos.408,  419  and  566  of
2005 respectively.  O.A.No.408  of  2005 was filed by one T.  S.  Jayachander,
presently working as Deputy Commissioner of Customs.  O.A.No.419 of  2005  was  
filed  by the Chennai Customs Appraising Officers Association, represented by
its Secretary along with three other applicants,  namely,  Parvathi  Kailasam,
T.H.   Rao,  Bertsie  Sundaram,  who  are  also  working  presently  as Deputy
Commissioner of Customs, Chennai.  O.A.No.566 of  2005  was  filed  by  Sharat
Kumar  Rath,  Saroj  Kumar Sadangi and Parameswaram Satyam, who are working as     
appraisers.  In O.A.Nos.408 & 419 of 2005, the Union of India  and  the  Chief
Commissioner of Customs were arrayed as Respondents 1 & 2 and in O.A.No.566 of    
2 005  they  were arrayed as Respondents 1 & 3.  The Chairman of Central Board
of Excise and Customs was not arrayed as Respondent in O.A.Nos.408  &  419  of  
2005, but was arrayed as Respondent No.2 in O.A.No.566 of 2005.  In such O.A., 
there was no other private respondent, whereas in O.A.Nos.408 and 419 of 2005,
four  Deputy  Commissioners  of Customs were arrayed as Respondent Nos.3 to 7.  
All such applicants, who are the writ petitioners  in  three  writ  petitions,
namely,  W.P.Nos.39564,  39583  & 26975 of 2005, are promotee appraisers under  
the Customs Department, whereas Respondents 3 to 7 in  O.A.Nos.408  &  419  of  
2005 are  the direct recruit appraisers.  For convenience, the applicants/writ
petitioners in three Writ Petitions, namely, W.P.Nos.26975, 39564 & 3 9583  of
2005  are  referred  to  as  the  promotees  and  the private respondents in
O.A.Nos.408 & 419 of 2005 are referred to as  the direct  recruits,  whereas
Union  of  India  and  other  subordinate  officials  are  referred to as the
official respondents.
        W.P.No.15158  of  2002  arises  out  of  order  dated  17.10.2000   in
O.A.No.833 of  1999.   Such Original Application was filed by direct recruits.
The applicant /  Petitioner  No.4  in  O.A.No.419  of  2005  corresponding  to
W.P.No.39583 of  2005,  was  Respondent No.4 in O.A.No.833 of 1999.  The other 
respondents in the said O.A.  / writ petitions are not parties in  the  matter
relating to O.A.Nos.408, 419 & 566 of 2005.  However, they are the respondents
in W.P.No.15158 of 2002. 

                2.   The  main  question  in all the writ petitions relates to
question of seniority in the cadre of Appraisers  in  Custom  House,  Chennai.
The perennial  fight  is between direct recruits and the promotees.  The fight
for the first time reached the Supreme Court about four  decades  back.    The
Supreme  Court  at  that  stage  was  concerned  with  the Rules and Procedure
relating to recruitment and seniority of direct recruits and promotees on  the
basis of  executive  instructions.  The question related to seniority of those
appraisers who are appointed from 15.8 .1947.  Ultimately, the  Supreme  Court
in the  decision  reported in AIR 1967 SC 52 (MERVYN COUTINHO v.  COLLECTOR OF       
CUSTOMS), held that quota system  was  operating  rotationally  and  seniority
should  be  followed  on  the  basis  of  quota  and rotation, irrespective of
continuous length of service of the promotees.  In  the  meantime,  the  Rules
framed  under  Article 309 of the Constitution known as the Customs Appraisers
Service, Class II Recruitment Rules, 1961, came into effect.  Rules 3 &  4  of
1961 Rules, being relevant, are extracted hereunder :-

        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 other  method  mentioned
in rule 3.

                3.   The  salient  feature  of  the  said  Rules  is  that  no
particular quota was fixed for the promotees but, as  per  Rule  4(c)  of  the
Rules,  at  least  50%  of  the  vacancies  are  to be filled up by the direct
recruits and the  rest  could  be  filled  up  from  other  sources  including
promotion.  The effect of 1961 Rules on the question of seniority was directly
in issue  in GAYA BAKSH YADAV v.  UNION OF INDIA AND OTHERS [(1996) 4 SCC 23].         
Since such decision is the basis of the contention (or  rather,  the  bone  of
contention)  for  both  the  parties,  it  is  more appropriate to extract the
relevant portion of the judgment :-
        14.  Having travelled thus far let us take stock  of  the  situation,
try to grasp it and smoothen its rough edges:

        (iii)  As per mandate of Rule 4-C of the above Rules the percentage of
posts to be filled by direct recruitment, either by competitive examination or
by selection otherwise than by competitive examination, could not be less than
50% of the total cadre of Appraisers and the remaining posts could  be  filled
up by any other method mentioned in Rule 3.  50% allocation is thus assured to
direct recruits in the total cadre.  They may get even more; there is no limit
to it.


        (iv)  The  above  Rules  expressly  do not provide a fixed unalterable
quota for the promotees (remaining sources), which can keep fluctuating.

        (v) In the absence of specific quotas being  fixed  in  the  Rules  it
becomes evident  that the quota rule stands discarded.  When there is no quota
provided in the Rules the rotational system cannot function.

        (xiii) The Direct Recruit case is the amalgamation of all  streams  of
thought, confluencing the entire case-law on the subject and given appropriate
placement.   Individual reference of each case as cited therein and at the bar
need not be made herein.  Reference may be had with advantage to the report in
the Direct Recruit case.
        (Other sub-paras are omitted as not necessary for the present case)

        15.  We are not expected to unsettle the principle of Mervyn  Coutinho
or  to  discover  instances of the breaking down of the rotational rule on the
basis of some anomalies having  arisen,  because  of  direct  recruitment  not
keeping pace  with  the  situations arising from time to time.  We are equally
not  expected  to  discover  any  deemed  relaxation  of  the  Rule  on  the
supposition of  the quota rule having been broken down.  We have to proceed on
the supposition that in the respective Customs Houses, termed as cadres, there
is no inter se dispute of  seniority  amongst  the  allocated  direct  recruit
Appraisers and  departmentally promoted Appraisers.  The dispute is narrow and
centres on the need to prepare an All-India seniority list.  On every occasion
when the Government of India has made an effort to draw one,  its  effort  was
thwarted  by decisions in succession by the Bombay High Court, the Madras High 
Court and the Central Administrative Tribunal.  The matter has again been left
to the Government of India to devise a proper principle for drawing a combined
seniority

list and the placement of the respective personnel on that list.

        16.  We must bear in  mind  and  strive  that  there  should,  in  the
interests of  justice,  be  an  end to litigation.  It has also to be borne in
mind that the attempt herein 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 Coutinhos 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  Coutinhos
case.   But  after the Rules of 1961, when the quota system has been discarded
Mervyn Coutinhos rule cannot apply.  As per Rule 4-C 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 promotee Appraisers, since coming from feeder sources of

Customs Houses, from the date of their promotion, would present no difficulty.
Both  would  be entitled to placement in the joint seniority list on the basis
of their continuous officiation.

        17.  We thus go to uphold the orders of the Tribunal  to  this  extent
that  a  fresh  All  India  Combined  List  of  Appraisers  be prepared by the
respondents on the basis of continuous officiation of  the  incumbent  in  the
post  of  Appraiser  appointed  on and from the date of the Customs Appraisers
Service, Class II Recruitment Rules 1961.  But for appraisers appointed  prior
to  that  date  the rule of Mervyn Coutinho would be the basis to work out the
inter se seniority of the incumbents  to  operate  the  quota  and  rotational
rule.          (emphasis supplied)

                4.   Such  1961  Rules  remained in force till such rules were
superseded by Department of Revenue (Customs Appraiser) Recruitment Rules, 19   
88, with effect from 1.5.1988.  1988 Recruitment Rules provide for recruitment
of 50% through direct recruitment and 50% by promotion.  However, the Rules do
not contain any specific provision relating to fixation of seniority and there
is nothing specifically contained in such rules that seniority has to be fixed
by adopting the principle of quota as well as rotation.

                5.  At this stage, it  is  necessary  to  notice  the  various
developments  including  decisions  of the Central Administrative Tribunal, in
short the Tribunal.  It appears that after introduction of 1988  Recruitment
Rules, some of  the  promotees, namely, V.B.  Yuvaraj, Mrs.  Bertsie Sundaram,
Mrs.  Tamilmani Sriram, K.  Ramesh and B.  Ramesh Kumar, who are  respectively  
opposite  party Nos.3,4,5,6 & 7 in O.A.No.833 of 1999 (present W.P.No.15158 of
2002) filed O.A.No.39 of  1988  before  the  Madras  Bench  of  the  Tribunal.
Similarly, P.S.   Uma Mahesh, opposite party No.8 in O.A.No.833 of 1999, filed
O.A.No.162 of 1988 and A.  Madhusudana Rao and M.J.  Babu Rao, opposite  party   
Nos.9  &  10 in O.A.No.833 of 1999 against Union of India and other officials.
The specific prayer was to  the  effect  that  Order  No.B12014/4/87  Ad.II(A)
should  be  quashed  and  the  Union  of  India  and other officials should be
directed not to revert the applicants on the basis of  new  recruitment  Rules
for Customs  Appraisers.   The common contention in such Original Applications
was to the effect that even though such applicants had been promoted on ad hoc
basis they were in  fact  regular  promotees  because  they  were  allowed  to
officiate  in  the higher post and the promotion had been made on the basis of
the recommendation of the duly constituted recommendation committee, which had  
gone into qualification, seniority as well as merit  of  such  applicants  and
such  promotions were apparently made on the vacancies which were in existence 
prior to 1987 i.e., before coming into force of  the  new  recruitment  rules.
The  further contention was to the effect that new recruitment rules were only
prospective and were effective from 1.1.1988.  The stand of the department  at
that  stage  was  that  the  applicants had not been promoted on regular basis
under the old Rules, namely, 1961 Rules.  It was specifically pointed  out  as
per  the  said Rules at least 50% of the posts of Appraisers were to be filled
up by direct recruitment and the balance could be filled up  by  promotion  or
other  sources  as  there was a shortfall in the direct recruitment quota, the
applicants  had  been  promoted  on   ad   hoc   basis   on   the   basis   of
seniority-cum-fitness   and  in  the  promotional  order  itself  was  it  was
specifically stated that promotion was on ad hoc basis, which would not confer
right on such appointees, and such ad hoc promotion should not be equated with
regular appointment and such ad hoc service would not count for seniority  and
such  promotions  were  made  in  order to meet the urgent requirements of the
administration and the instructions contained in  the  Department  of  Revenue
Circular dated  16.10.1980  had been followed.  It was indicated that they had
not been promoted against any vacancy post existing prior to  1.1.1988  within
the  permissible  limit for the promotees and they had been merely promoted on
ad hoc basis.

                6.  After hearing both sides, Madras  Bench  of  the  Tribunal
ultimately concluded :-
        ...  Accordingly we are clear in our view that the applicants had not
been  promoted  on  a regular basis against the promotion quota, in accordance
with the 1961 recruitment rules.  They  have  been  merely  holding  posts  as
Customs  Appraisers  in  the quota meant for direct recruits, purely on ad hoc
basis and that such promotions cannot be equated with regular promotions  made 
under the  1961  recruitment rules.  The promotion of the applicants would not
confer on them any right to be regularly promoted as Customs Appraisers  under
the 1961  recruitment  rules.    Further, all ad hoc promotions are subject to
periodical reviews.  The first respondent is therefore within  his  rights  to
direct  the other two respondents to conduct a review of the ad hoc promotions
made earlier under the direct recruitment quota.  Therefore the prayer of  the
applicants  that  the  impugned order of the first respondent directing such a
review should be set aside, cannot be granted nor can any direction be  issued
to the  respondents  not  to revert the applicants.  However, we make it clear
that on the basis of a review which may be conducted by the respondents, if at
all it comes to notice of the respondents that the applicants had in fact been
functioning on ad hoc basis against posts not  meant  for  direct  recruitment
quota, but meant as promotion quota, their cases will have to be considered as
per  the  1961  Recruitment  rules,  which  were applicable to vacancies which
existed up to 31.12.1987.  In such an event the applicants are at  liberty  to
approach  this  Tribunal if they are aggrieved by any order that may be passed
after a review by the respondents.

                7.  Such order of  the  Tribunal  was  challenged  before  the
Supreme Court and the following order was passed by the Supreme Court in Civil
Appeal No.1194 of 1990 :-
          After  hearing  learned  counsel  for  the parties, we find no good
ground  to  interfere  with  the  order  of   the   Administrative   Tribunal,
specifically in view of the following observations:
        However,  we make it clear that on the basis of a review which may be
conducted by the respondents, if at all it comes to notice of the  respondents
that the applicants had in fact been functioning on ad hoc basis against posts
not  meant  for  direct recruitment quota, but meant as promotion quota, their
cases will have to be considered as per the 1961 Recruitment rules, which were
applicable to vacancies which existed upto 31.12.1987.
                        (Emphasis supplied)

                8.   Subsequently,  by  Office  Order  No.470  of  1994,  Smt.
Bertsie Sundaram, Smt.   Tamilmani  Sriraman,  Smt.S.   Kousalya and P.S.  Uma  
Mahesh were regularly promoted as Appraisers.  It is relevant to  extract  the
actual order of one such promotion :-
          The  promotion  of  the following Officers who were promoted to the
grade of Appraiser purely on  ad  hoc  basis  vide  this  Custom  House  Order
Nos.147/86 dt.08.07.1986,  58/87,  dt.    13.03.87  and 407/82 dt.28.12.92 are
regularised in the scale of pay of Rs.2000-60-2300-eb-75-3200-10 0-3500.  They
are assigned date of promotion with effect from the date they assume charge as
Appraisers (on regular basis).

                9.  Under paragraph 2 of the very same order, the  petitioners
1  and 2 in W.P.No.26975 of 2005 and one Mathias Dung Dung were also promoted.   
(It may be emphasised that these three persons were  promoted  for  the  first
time  on  regular  basis,  but  in their case they were not promoted on ad hoc
basis earlier).  Similar orders relating to  promotion  on  regular  basis  in
respect  of  many other ad hoc Appraisers were issued by Order Nos.554 of 1995
and 284 of 1996.   However,  the  orders  being  almost  similar,  it  is  not
necessary to extract each such order in extenso.

                10.   Thereafter  the  Union  of  India  purported  to issue a
seniority list of direct recruits and  promotees  appointed  /  promoted  upto
31.12.1 987  vide  letter  dated  2.11.1997.    In  such  letter,  it was also
indicated that All India Seniority list of Direct Recruit and Promotee Customs
Appraiser appointed / promoted after coming into force  of  Customs  Appraiser
Recruitment Rule,  1988  with  effect from 1.1.1988 will follow.  In All India
combined seniority/consideration list of Customs Appraiser relating to  period
prior  to  31.12.1987,  Serial Nos.1 to 72 were apparently the persons who had
been appointed/promoted as Customs Appraisers prior to coming  into  force  of
Customs  Appraiser Service, Class-II Recruitment Rule, 1961 and such seniority
of those 72 Appraisers had been  fixed  on  quota-rota  basis  as  per  Mervyn
Coutinhos case.    Serial  Nos.73  to 1043 purported to indicate seniority of
promotees and direct recruits, apparently  on  the  basis  of  the  directions
contained in  the  decision  of  the  Supreme  Court in Yadavs case.  At that
stage, the name of Mrs.  Bertsie Sundaram, Tamilmani Sriram, K.  Ramesh,  M.J. 
Babu Rao, A.    Madhusudhana  Rao and P.S.  Uma Mahesh were included at Serial   
Nos.1015 to 1020 respectively  indicating  the  date/deemed  date  of  joining
Customs Appraisers  as  13/12.3.1987.   It is obvious that such seniority list
was on the basis of the date of ad hoc promotion rather than on the  basis  of
the subsequent regular promotion.

                11.  The direct recruits who were appointed between the period
1987 and 1994 and were shown junior to such promotees, who were promoted on ad   
hoc  basis in March, 1987 but made regular only after 1994 and 19 95 by fixing
their seniority from the date of their ad hoc promotion filed  representations
to  the  effect  that such ad hoc promotees should not be treated as senior to
the direct recruits.  However, when no specific order was passed and
it was found that some of the promotees had been further promoted  on  ad  hoc
basis as Assistant Commissioners, the direct recruits filed O.A.No.833 of 1999
before the Madras Bench of the Tribunal.  At that stage, a reply statement was
filed on  behalf  of  the  official respondents.  In such reply statement, the
official respondents  raised  the  question  of  limitation.    The   official
respondents  took the stand that between 1987 and 1994 at no point of time the
requirement of direct recruit Appraisers had been met in  full  and  vacancies
always  existed  against  direct  recruit  quota, which necessitated giving of
promotion to the post of Appraisers.  It was further indicated :-
         9.  ...  The Supreme Court judgment did not give  any  direction  to
the  effect  that  on  joining  of  one  Direct  Recruit Appraiser, one of the
Promotee Appraiser who is officiating on ad-hoc basis against a Direct Recruit
vacancy should be reverted.  The Supreme Court judgment is not to  the  effect
that  once a Direct Recruit is available for appointment, the Respondents 3 to
14 in the O.A.No.39 of 1988, 162 of 1988 and 168 of 1988 ought  to  have  been
reverted to  the  lower  post.    The very idea of effecting promotion against
Direct Recruit vacancies is to make the working  strength  equivalent  to  the
sanctioned strength.    If  there  were  vacancies  inspite  of Direct recruit
joining, then going by the idea of filling all the vacancies had  to  continue
for the  reasons  mentioned earlier.  This has resulted in adjusting the adhoc
promotees against the vacancies, allowing them to continue and not  to  revert
them.   This  was  necessitated  out  of public interest and not to favour the
promotees.  Further at no point of  time  any  Direct  Recruit  Appraiser  was
turned away for want to Direct Recruit vacancy.

                12.   At  that  stage, the official respondents took the stand
that seniority given to  the  promotees  from  the  date  of  initial  ad  hoc
promotion  was  correct in the light of the subsequent decision of the Supreme
Court in Gaya Baksh Yadavs case as such seniority had been counted  from  the 
date of continuous officiation.

                13.   The  Madras  Bench of the Tribunal by its judgment dated
17.10.20 00, dismissed O.A.No.833 of 1998 filed by the direct recruits.    The
first  conclusion  of  the  Tribunal  is  to  the  effect  that  the  Original
Application filed by the direct  recruits  was  barred  by  limitation.    The
Tribunal  also  rejected the contention of the direct recruits by relying upon
the decision of the Supreme Court in Gaya Baksh Yadavs case.   Such  decision
of  the  Tribunal  is the subject matter of challenge in W.P.No.15158 of 2002,
which had been filed by the direct recruits.

                14.  While the dispute relating to  seniority  of  the  direct
recruits  vis-a-vis  the  promotees  in  the  Custom  House of Madras was thus
pending before the Madras Bench of the Tribunal or the High Court  at  Madras,
similar  dispute  was  raised  by  the direct recruits posted in Bombay Custom
House before the Bombay Bench of the Tribunal in O.A.No.855  of  1998.    Such
application  was  filed  by  All  India  Customs  Officers  (  Direct  Recruit
Appraisers) Association along with two other direct recruits.  Apart from  the
Union  of  India  and  the  Chairman, Central Board of Excise and Customs, All
India Customs Appraising Officers Federation,  purportedly  representing  the
promotees, was impleaded as Respondent No.3.  The Bombay Bench of the Tribunal   
referred to the observation of the Supreme Court in Gaya Baksh Yadavs case to
the  effect  that  allocation  of  at  least 50% posts in favour of the direct
recruits must be ensured  at  all  times  and  direct  recruits  and  promotee
Appraisers will be
entitled  to  placement  in  the  joint  seniority  list on the basis of their
continuous officiation and observed :-
        4.  Applicants case is that Direct Recruits for all times,  entitled
to 50%  of the post of Appraisers.  After the promulgation of 1961 Recruitment
Rules, which were in force on 31.12.1987, every year the  intake  of  promotee
Appraisers has  been  far  in  excess  of  their entitlement of 50%.  As such,
promotion of persons which  were  made  beyond  50%  has  to  be  reckoned  as
promotions  contrary  to  the  Recruitment  Rules  and  general  principles of
Seniority, 1959.

                15.  The Bombay Bench of Central Administrative Tribunal  also
referred  to  the  decision  of  the  Supreme  Court  in the case of All India
Federation of Central Excise V.  Union of India [(1997 SCC (L &  S)  159]  and
ultimately  held  that  the  promotees  cannot take advantage of any promotion
beyond the percentage applicable to them as per 1961 Rules and such  promotion 
beyond  the  prescribed  limit  should  be considered as promotion de hors the
Rules.  It was further concluded that the persons promoted  on  ad  hoc  basis
cannot claim  the  benefit of seniority.  Ultimately, the seniority list dated
12.11.1997 was quashed and the official respondents were  directed  to  review
positions  of  those who had been promoted beyond 50% of their quota on ad hoc
basis which is violative of the terms of Rule 4(c) of 1961  Recruitment  Rules
and General  Principles  of Seniority, 1959.  It is not in dispute that a writ
petition has been filed against the aforesaid decision and is  pending  before
the Bombay High Court. 

                16.   In purported exercise of the directions so issued by the
Bombay  Bench  of  the  Tribunal,  the  Union  Government  and  the   official
respondents  have issued another draft list of seniority, wherein the position
of some of the ad hoc promotees has been pushed down and some  of  the  direct 
recruits have  been  shown as senior.  The official respondents have purported
to follow the principle of seniority  on  the  basis  of  rotation.    On  the
issuance  of such draft seniority list, apprehending that further promotion to
the next promotional post from the Appraiser would take place on the basis  of
such  draft  seniority  list,  two  of  the  ad  hoc  promotees  who have been
regularised subsequently have filed O.A.Nos.408 and 419 and of  2005  and  the
one  promoted for the first time on regular basis has filed O.A.No.566 of 2005
before the Madras Bench of the Tribunal.
                17.  The main prayer in such Original Applications is  to  the
effect  that  no  promotion  should  be  effected  on  the  basis of the draft
seniority list and promotion, if any, should be done on the basis of seniority
list dated 12.11.1997.

                18.  Such Original  Applications  have  been  disposed  of  by
common  order  dated 9.8.2005 by the Madras Bench of the Tribunal by observing
that the Madras Bench of the Tribunal is bound by the decision of  the  Bombay
Bench  of  the  Tribunal  and  since the matter was pending in the Bombay High
Court, the promotees have to pursue their remedy either  in  the  Bombay  High
Court or  await  for  the  final  outcome  of  the litigation.  The three writ
petitions, namely, W.P.Nos.39564, 39583 and 26975 of 2005  are  filed  by  the
promotees against such order of the Tribunal.

                19.   In the above backdrop, stage is now set to advert to the
thorny issue.  The main contention raised by the promotees is  to  the  effect
that  in view of the decision of the Supreme Court in Gaya Baksh Yadavs case,
seniority had been rightly counted from the date of continuous officiation and
the seniority list  thus  finalised  in  November,  19  97  was  correct  and,
therefore, there  was no occasion to issue a further draft seniority list.  It
is further contended that at any rate no promotion should be effected  on  the
basis  of  the  draft  seniority  list by ignoring the earlier seniority list,
which was final.



                20.  The stand of the direct recruits is to  the  effect  that
those  promotees, who had been promoted on ad hoc basis prior to 31.12.1987 or
even after 1.1.1988, in excess of 50%  available  to  the  promotees  must  be
considered  as purely ad hoc promotees and cannot claim any seniority on their
subsequent regularisation from the date of initial ad hoc promotion and  their
seniority  should  be  counted  only  from  the  date when they were regularly
promoted within 50% available to them.


                21.  So far as the official respondents are  concerned,  there
has been  a  discernible  shift  in  their  stand  like  shifting  sand.   The
contention of the Union Government and the official respondents at present  is
to  the effect that the promotees had no right to get any promotion beyond the
maximum of 50%, as envisaged under Rule 4(c) of 1961 Rules, and giving them ad 
hoc promotion did not clothe them with any right to claim seniority  from  the
date of  their ad hoc promotion.  It is their further stand that seniority has
to be now fixed after 1.1.1988 by following quota as well as rotation rule and
accordingly the draft seniority list has been prepared.

                22.  In the three writ petitions, namely, W.P.Nos.39564, 39583
and 2 6975 of 2005, filed by the promotees, the specific stand of the official
Respondents is to  the  effect  that  ad  hoc  seniority  list  has  not  been
finalised,  but  since  many  promotional posts are available, steps are being
taken to fill up the promotional post in the rank of Assistant Commissioner on
ad hoc basis, subject to finalisation of seniority list and subject to various
litigations pending before different courts and if the  position  relating  to
seniority would subsequently change, obviously, there would be a review of the
situation even relating to the question of promotion.

                23.  Learned counsels appearing for the promotees have pointed
out  that  in  view of the specific stand taken by the Union Government during
earlier litigations before Madras Bench and even before Bombay  Bench  of  the
Tribunal,  the  Union  Government  should not be permitted to take a different
stand at this stage.  However, we are  not  inclined  to  consider  the  above
submission as even assuming that the Union of India should not be permitted to
take  a  different stand, it is obvious that the direct recruits are not bound
by any stand taken by the Union of India at different  times  and,  therefore,
the  matter  has to be decided on the basis of interpretation of the Rules and
the relevant decisions.

                24.  The O.A.No.833 of 1996 filed by the direct  recruits  has
been rejected  on  two  counts.    Firstly,  on  the ground of limitation and,
secondly, on merit.  So far as the question of limitation  is  concerned,  the
Tribunal  has  observed  that the draft seniority list had been circulated and
some of the applicants knew of  such  draft  seniority  list  and  even  after
finalisation  of  the  seniority  list, the Original Application was not filed
within the prescribed period of limitation and, therefore, such application is
barred by limitation.

                25.  In Section 21 of the Administrative Tribunals  Act,  1985
the  period  of  limitation  is  prescribed, but simultaneously power has been
conferred on the Tribunal to condone delay, if any.  In the present case, even
assuming that the application was barred by limitation, it can be said without
fear of any contradiction that in the peculiar facts and circumstances of  the
case, delay,  if  any,  was required to be condoned.  Apart from the fact that
some representations had  been  made,  the  question  raised  was  of  seminal
importance  not  only  to  the  Appraisers of Custom House of Madras, but also
throughout India and, therefore, it was required of the Tribunal to gloss over
the question of limitation if any.  Apart from  the  above,  the  question  of
limitation has no significant bearing as the matter has now come to High Court
not  only  from  the  very  same  litigation  but  also from other litigations
involving similar question.  Moreover, as rightly pointed out by  the  learned
counsels  for  the direct recruits as well as the Union Government, the Bombay
Bench of the Tribunal has quashed the seniority list on all  India  basis  and
such  decision  is not confined merely to Bombay Custom House and the Union of 
India  has  been  directed  to  reconsider  the  question  of  seniority  and,
therefore, the technical bar raised by the Madras Bench of the Tribunal has no
significance.  To be fair to the learned counsels appearing for the promotees,
it  must  be  said that such learned counsels have stated that the question of
limitation, has no significance because of the subsequent events including the
setting aside of the seniority list by the Bombay Bench of  the  Tribunal  and
they have rightly submitted that the matter has to be decided on its own merit
by the High Court.

                26.   The first contention raised in the three writ petitions,
namely, W.P.Nos.26975, 39564 and 39583 of 2005, is the propriety of the action
of the Government in issuing a further draft seniority list when  a  seniority
list  had  already  been  prepared  and  finalised  in  1997  and  moreover in
contemplating promotion to the next higher post on the  basis  of  such  draft
seniority list without finalising the question of seniority.

                27.   This  question  raised by the learned counsels appearing
for the promotees can be met with a short answer.  In view of the decision  of
the Bombay Bench of the Tribunal it cannot be said that final seniority list
circulated in  the  year  1997 is any longer final.  As rightly pointed out by
the learned counsel appearing for Union of India, in the absence of  any  stay
by  the  Bombay  High  Court, the Union Government has sought to implement the 
directions without prejudice to the contentions raised in the  writ  petition.
It  is  also  made  clear  in the counter affidavit that the Union of India is
contemplating to give promotion only on ad hoc basis without prejudice to  the
claim  of  any of the Appraiser to be ultimately decided after finalisation of
the seniority list at the end of the myriad of litigations.

                28.  Learned Additional Solicitor General has  submitted  that
even in the absence of finalisation of formal seniority list the Government is
not  precluded  from acting upon the provisions contained in the draft rule or
on the basis of the draft seniority list in exigencies of  service.    In  our
opinion,  the  stand  taken  by the Union of India cannot be found fault with.
The decision of the Bombay Bench of the Tribunal has obviously opened the door
for re-drawing the seniority list and the Central Government has  taken  steps
in that  regard  by  circulating  a draft seniority list.  Since the seniority
list of 1997 can no longer be said to be the final list, it  is  open  to  the
Union  of  India  to consider the question of promotion purely on ad hoc basis
including the draft seniority list without conferring any substantive right on
such ad hoc promotee. 

                29.  The main question, of course, relates to the principle on
which seniority is to be fixed.  In view of the decision of the Supreme  Court
in Coutinhos case (AIR 1967 SC 52), obviously there is no dispute relating to
seniority of the Appraisers (either direct recruits or promotees) who had been
recruited  on  the  basis  of  the  instructions  which were applicable before
introduction of 1961 Rules.  There is no dispute that  after  introduction  of
1961  Rules, the question of seniority has to be fixed in accordance with such
rules which were interpreted by the Supreme  Court  in  Yadavs  case.    Even
though  Yadavs  case purported to bring all disputes to an end, unfortunately
the litigations have not come to an end.  As per the learned counsels for  the
promotees,  in  view  of  the  specific  observation  of  the Supreme Court as
contained in paragraph 16 and the direction contained in paragraph 17 of  such
decision, seniority has to be reckoned from the date of continuous officiation
of  the  promotees  and  on that basis the promotees had been rightly shown as
seniors in the seniority list, which was finalised on 12.11.1997.

                30.  Learned counsels appearing for the direct  recruits  (and
even  the  learned  counsels  appearing for the Union of India by adopting an
improved and new model stand) different stand have contended  that  paragraph
16 of such decision makes it very clear that at least 50% of the vacancies are
ensured  at  all  times  in favour of the direct recruits and, therefore, such
observation of the Supreme Court obviously means to the  extent  any  promotee
had  been  promoted by exceeding the balance 50% available to other appointees
including the promotees, is thus an encroachment on the allocation of at least
50% posts for the direct recruits and any such promotee who has been  promoted 
in  excess  of  50%  would  obviously  be  considered as an ad hoc promotee in
fortuitous circumstance and  such  promotee  cannot  claim  any  advantage  of
seniority  from  the  date  of  such  ad  hoc  appointment  on  his subsequent
regularisation.  In this context, it is also further submitted by the  learned
counsels appearing for the direct recruits as well as Union of India that in a
long  line of decisions it has been held that the persons being promoted on ad
hoc basis cannot claim any right of seniority unless  the  rules  so  envisage
specifically.   In  this  context,  it  is also pointed out that in the orders
relating to promotion of various claimants now before the Court, it  had  been
specifically  indicated  that promotion was purely on ad hoc basis which would
not give them any right of regular promotion and subsequently at the  time  of
regular  promotion  also  it  was  so  indicated  that  their service shall be
regularly counted from the date when they assumed charge.    It  is  therefore
contended  that  in  view of the specific terms of the appointment, in view of
the settled principle of law and in view of the fact that direct recruits  are
ensured  allocation of 50% of posts at all times, the contention raised by the
promotees cannot be accepted.  

                31.  Learned  counsels  for  both  sides  have  placed  strong
reliance  upon the decision of the Supreme Court reported in 1990(2) SCC 715 (
DIRECT RECRUIT CLASS  II  ENGINEERING  OFFICERS  ASSOCIATION  v.    STATE  OF           
MAHARASHTRA AND OTHERS), which is also apparently the basis of the decision in     
Yadavs  case,  and  it  is therefore necessary to extract in extenso from the
said decision, where the Constitution  Bench  summarised  its  conclusions  as
follows :-


        47.  To sum up, we hold that :

        (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.
        (B)  If the initial appointment is not made by following the procedure
laid down by the rules but the appointee continues in the post uninterruptedly
till the regularisation of his service  in  accordance  with  the  rules,  the
period of officiating service will be counted.
        (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.
        (D)  If it becomes impossible to adhere to the existing quota rule, it
should be substituted by  an  appropriate  rule  to  meet  the  needs  of  the
situation.   In case, however, the quota rule is not followed continuously for
a number of years because it was impossible  to  do  so  the  interference  is
irresistible that the quota rule had broken down.
        (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.
        (F) Where the rules permit the authorities  to  relax  the  provisions
relating  to  the  quota, ordinarily a presumption should be raised that there
was such relaxation when there is a deviation from the quota rule.
        (G) The quota for  recruitment  from  the  different  sources  may  be
prescribed by executive instructions, if the rules are silent on the subject.
        (H)  If  the quota rule is prescribed by an executive instruction, and
is not followed continuously for a number of years, the inference is that  the
executive instruction has ceased to remain operative.
        (I)  The  posts  held by the permanent Deputy Engineers as well as the
officiating Deputy Engineers under the State of Maharashtra  belonged  to  the
single cadre of Deputy Engineers.
        (J)  The  decision  dealing  with  important  questions  concerning  a


particular service given  after  careful  consideration  should  be  respected
rather than  scrutinised for finding out any possible error.  It is not in the
interest of Service to unsettle a settled position.

        With respect to Writ Petition No.1327 of 1982, we further hold:

        (K) That a dispute raised by an application under Article  32  of  the
Constitution must be held to be barred by principles of res judicata including
the  rule of constructive res judicata if the same has been earlier decided by
a competent court by a j ent which became final.

In view of the above and the other findings recorded earlier, we do  not  find
any  merit  in  any  of  the  civil  appeals, writ petitions and special leave
petitions which are accordingly dismissed.

                32.  The learned counsels appearing  for  the  promotees  have
submitted  that in view of ratio of the aforesaid decision as reflected in 47(
B), the seniority of the promotees should be counted from the  date  of  adhoc
promotion,  whereas  according to the counsels for the Direct Recruits and the
Union of  India,  para  47(A)  is  applicable.    In  order  to  resolve   the
controversy,  it  is necessary to consider some of the decisions touching upon
the question rendered before and after the decision in Direct Recruits  case.
It  is  significant  to  observe that in all the cases the ratio of the Direct
Recruits case has been clarified and followed.

                33.  In (1976) 2 SCC 901 (V.B.  BADAMI AND OTHERS v.  STATE OF 
MYSORE AND OTHERS), it was observed that where appointment was made in  excess       
of quota, such temporary promotion would not give any benefit in the matter of
seniority.

                34.  In (1977)  1  SCC 308 (N.K.  CHAUHAN AND OTHERS v.  STATE
OF GUJARAT AND OTHERS), the question  of  seniority  was  in  dispute  between  
direct  recruits  and  the  promotees  to the post of Deputy Collectors in the
State of Gujarat.  It was observed inter alia :-
        40.   This  brief  and  quick  survey  of  decided  cases   and   the
submissions,  considered  by  us in the judicial crucible, yield the following
conclusions, leaving aside the question of confirmation in service which, in
the Gujarat set-up, leaves our controversy untouched;
        (a) The  quota  system  does  not  necessitate  the  adoption  of  the
rotational rule  in  practical  application.  Many ways of working out quota
prescription can be devised of which rota is certainly one.
        ...

(e) Promotees who have been fitted into vacancies beyond their quota
during the period B the year being regarded as the unit must suffer
survival as invalid appointees acquiring new life when vacancies in their
quota fall to be filled up. To that extent they will step down, rather be
pushed down as against direct recruits who were later but regularly appointed
within their quota. (Emphasis supplied)

35. In (1992) Supp(1) SCC 272(KESHAV CHANDRA JOSHI AND OTHERS
v. UNION OF INDIA AND OTHERS
), Justice K. Ramaswamy, speaking for the Bench,
after referring to the propositions A and B in paragraph 47 of Direct Recruits
case, observed :-

26. As stated, the counsel for the promotees placed strong reliance
on proposition B while the counsel for the Direct Recruits relied on
proposition A. The controversy is as to which of the propositions would
apply to the facts of this case. The proposition A lays down that once an
incumbent is appointed to a post according to rules, his seniority has to be
counted from the date of his appointment and not according to the date of his
confirmation. The latter part thereof amplifies that where the initial
appointment is only ad hoc and not according to rules and is made as a stop
gap arrangement, the period of officiation in such post cannot be taken into
account for reckoning seniority. The quintessence of the propositions is that
the appointment to a post must be according to rules and not by way of ad hoc
or stop gap arrangement made due to administrative exigencies. If the initial
appointment thus made was de hors the rules, the entire length of such service
cannot be counted for seniority. In other words the appointee would become a
member of the service in the substantive capacity from the date of his
appointment only if the appointment was made according to rules and seniority
would be counted only from that date. Propositions A and B cover
different aspects of one situation. One must discern the difference
critically. Proposition B must, therefore, be read along with para 13 of
the judgment wherein the ratio decidendi of Narender Chadha was held to have
considerable force. The latter postulated that if the initial appointment to
a substantive post or vacancy was made deliberately, in disregard of the rule
and allowed the incumbent to continue on the post for well over 15 to 20 years
without reversion and till the date of regularisation of the service in
accordance with the rules, the period of officiating service has to be counted
towards seniority. This Court in Narender Chadha case was cognizant of the
fact that the rules empower the government to relax the rule of appointment.
Without reading paragraph 13 and Proposition B and Narender Chadha ratio
together the true import of the proposition would not be appreciated. We
would deal with the exercise of power of relaxing the rule later. After
giving anxious consideration, we are of the view that the latter half of
Proposition A would apply to the facts of the case and the rule laid down in
that half is to be followed. If the concerned rules provide the procedure to
fix inter se seniority between direct recruits and promotees, the seniority
has to be determined in that manner.

34. Accordingly we have no hesitation to hold that the promotees have
admittedly been appointed on ad hoc basis as a stop gap arrangement, though in
substantive posts, and till the regular recruits are appointed in accordance
with the rules. Their appointments are de hors the rules and until they are
appointed by the Governor according to rules, they do not become the members
of the service in a substantive capacity. Continuous length of ad hoc service
from the date of initial appointment cannot be counted towards seniority.

(Emphasis supplied)

36. In (1993) 3 SCC 371 (STATE OF WEST BENGAL v. AGHORE NATH
DEY
), it was observed :-

21. We shall now deal with the conclusions (A) and (B) of the
Constitution Bench in the Maharashtra Engineers case quoted above.

22. there can be no doubt that these two conclusions have to be read
harmoniously, and conclusion (B) cannot cover cases which are expressly
excluded by conclusion (A). We may, therefore, first refer to conclusion (A).
It is clear from conclusion (a) that to enable seniority to be counted from
the date of initial appointment and not according to the date of confirmation,
the incumbent of the post has to be initially appointed according to rules.
The corollary set out in conclusion (A), then is, that where the initial
appointment is only ad hoc and not according to rules and made as a stopgap
arrangement, the officiation in such posts cannot be taken into account for
considering the seniority. Thus, the corollary in conclusion (A) expressly
excludes the category of cases where the initial appointment is only ad hoc
and not according to rules, being made only as a stopgap arrangement. The
case of the writ petitioners squarely falls within this corollary in
conclusion (A), which says that the officiation in such posts cannot be taken
into account for counting the seniority.

23. This being the obvious inference from conclusion (A), the
question is whether the present case can also fall within conclusion (B) which
deals with cases in which period of officiating service will be counted for
seniority. We have no doubt that conclusion (B) cannot include, within its
ambit, those cases which are expressly covered by the corollary in conclusion
(A), since the two conclusions cannot be read in conflict with each other.

24. The question, therefore, is of the category which would be
covered by conclusion (B) excluding therefrom the cases covered by the
corollary in conclusion (A).

25. In our opinion, the conclusion (B) was added to cover a different
kind of situation, wherein the appointments are otherwise regular, except for
the deficiency of certain procedural requirements laid down by the rules.
This is clear from the opening words of the conclusion (B), namely, if the
initial appointment is not made by following the procedure laid down by the
rules and the latter expression till the regularisation of his service in
accordance with the rules. We read conclusion (B), and it must be so read to
reconcile with conclusion (A), to cover the cases where the initial
appointment is made against an existing vacancy, not limited to a fixed period
of time or purpose by the appointment order itself, and is made subject to the
deficiency in the procedural requirements prescribed by the rules for
adjudging suitability of the appointee for the post being cured at the time of
regularisation, the appointee being eligible and qualified in every manner for
a regular appointment on the date of initial appointment in such cases.
Decision about the nature of the appointment, for determining whether it falls
in this category, has to be made on the basis of the terms of the initial
appointment itself and the provisions in the rules. In such cases, the
deficiency in the procedural requirements laid down by the rules has to be
cured at the first available opportunity, without any default of the employee,
and the appointee must continue in the post uninterruptedly till the
regularisation of his service, in accordance with the rules. In such cases,
the appointee is not to blame for the deficiency in the procedural
requirements of the rules being fulfilled at the earliest. In such cases
also, if there be any delay in curing the defects on account of any fault of
the appointee, the appointee would not get the full benefit of the earlier
period on account of his default, the benefit being confined only to the
period for which he is not to blame. This category of cases is different from
those covered by the corollary in conclusion (A) which relates to appointment
only on ad hoc basis as a stopgap arrangement and not according to rules. It
is, therefore, not correct to say that the present cases can fall within the
ambit of conclusion (B), even though they are squarely covered by the
corollary in conclusion (A). (Emphasis supplied)

37. In (1995) Supp.(2) SCC 407 (STATE OF MAHARASHTA AND
ANOTHER A. W. DHOPE AND OTHERS v. SANJAY THAKRE AND OTHERS
), it was
observed :-

6. Insofar as in the second aspect of the case is concerned, Shri
Bhandare, appearing for the State, is at pains to urge that in view of what
was held by a three-Judge Bench of this Court in State of W.P. v. Aghore
Nath Dey the present was pre-eminently a fit case where the service rendered
by the promotees, even though ad hoc, was required to be counted for the
purpose of seniority. We have two observations to make regarding this
submission. The first is that Aghore Nath was not a case of claim by the
promotees for seniority over direct recruits; as was in the cases of
Janardhana and Narender Chadha, ratio of which cases was not applied in Aghore
Nath case for the reason that the cases did not deal with inter se seniority
between direct recruits and promotees. So the ratio of Aghore Nath case
cannot apply to the facts of the present case as here we are concerned with
inter se seniority. This apart, a perusal of Aghore Nath decision shows that
benefit of ad hoc service would not be admissible if appointment be in
violation of rules. Now, if the quota rule had not broken down as held by the
Tribunal which view we have affirmed, the appointment of promotes has to be
regarded as in violation of rules.

8. For the aforesaid reason, what was stated by the Constitution
Bench in Direct Recruit Class II Engineering Officers Assn. case would not
also apply because to get benefit of what was stated in subpara (B) of para 44
[(1990)2 SCC p.745, para 47(B)], which is strongly pressed into service by
Shri Dholakia, the appointment has to be as per the rules, which was not so in
the present case so far as the promotees are concerned.

38. In (1996) 7 SCC 759 (V.P. SHRIVASTAVA AND OTHERS v.
STATE OF M.P. AND OTHERS
), after referring to Direct Recruits case in para 9,
the Supreme Court observed:-

10. We are not concerned with the other propositions laid down by
this Court in the present case. In the case in hand the initial appointment
of the respondents on promotion not having been made following the procedure
laid down by the Recruitment Rules of 1965 and even though they are continuing
in the post uninterruptedly but the Public Service Commission having not
approved their appointments as yet, proposition B above will have no
application. Consequently, applying proposition A above, the
appellants-direct recruits must be held senior to the respondents private
respondents ad hoc promotees. The Tribunal obviously erred in law in not
following the aforesaid authoritative pronouncement of this Court for
determination of the inter se seniority between direct recruits and the
promotees.

11. In the three-Judge Bench decision of this Court in the case of
State of W.B. v. Aghore Nath Dey, this Court held: (SCC p.382, para 22 )
… that to enable seniority to be counted from the date of initial
appointment and not according to the date of confirmation, the incumbent of
the post has to be initially appointed according to rules. The corollary
set out in conclusion (A), then is, that where the initial appointment is
only ad hoc and not according to rules and made as a stopgap arrangement, the
officiation in such posts cannot be taken into account for considering the
seniority.

12. It was thus held that conclusions A and B of the Constitution
Bench in Direct Recruits case have to be read harmoniously and conclusion B
cannot cover cases which are expressly excluded by conclusion A.

13. In a more recent case of V. Sreenivasa Reddy v. Govt. of A.P.,
where one of us (brother Ramaswamy, J.) was a member, all the decisions of
this Court on the point have been considered and it has been laid down that
temporary or ad hoc appointments are not appointments in accordance with the
rules and the temporary service cannot be counted towards the seniority.

39. In (1998) 5 SCC 293 (Dr. ANURADHA BODI AND OTHERS v.
MUNICIPAL CORPORATION OF DELHI AND OTHERS
), while considering the question of
seniority of ad hoc appointees, the Direct Recruits case and Aghore Nath
Deys case were referred to and it was observed that Paragraph ( A) sub para
would be applicable. It was further observed:

12. If the facts of these two cases are analysed in the light of the
aforesaid decisions, there can be no doubt whatever that the petitioners fall
within the corollary in Conclusion (A). The orders of appointment issued to
the petitioners are very specific in their terms. Though the recruitment
rules came into force on 6-8-1982, the appointments were not made in
accordance therewith. They were ad hoc and made as a stopgap arrangement.
The orders themselves indicated that for the purpose of regular appointment
the petitioners were bound to pass the UPSC examination in the normal course
in the direct competition. Hence the petitioners will not fall under the main
part of Conclusion (A) or Conclusion (B) as contended by the learned counsel
for the petitioners.

40. In (2000) 7 SCC 561 (SURAJ PARKASH GUPTA AND OTHERS v.
STATE OF JAMMU AND KASHMIR AND OTHERS
), the Supreme Court distinguished (1985
) 2 SCC 604 (G.S. LAMBA v. UNION OF INDIA AND OTHERS) and (1986) 2 SCC 157
(NARENDER CHADHA v. UNION OF INDIA AND OTHERS) (latter case had been noticed
in Direct Recruits case (1990) 2 SCC 715) by observing that recent trend of
cases in this Court is entirely different.

28. The decisions of this Court have recently been requiring strict
conformity with the Recruitment Rules for both direct recruits and promotees.
The view is that there can be no relaxation of the basic or fundamental rules
of recruitment. In Keshav Chandra Joshi v. Union of India the Rule permitted
relaxation of the conditions of service and it was held by the three-Judge
Bench that the Rule did not permit relaxation of Recruitment Rules. The words
may consult PSC were, it was observed, to be read as shall consult PSC and
the Rule was treated as mandatory. In Syed Khalid Rizvi v. Union of India
(1993 Supp(3)SCC 575 at p.603) decided by a three-Judge Bench, a similar
strict principle was laid down. The relevant Rule Rule 3 of the Residuary
Rules (see p.603, para 33) in that case did permit relaxation of the Rules.
Even so, this Court refused to imply relaxation of Recruitment Rule and
observed : (SCC pp.603-04, para 33)

The condition precedent, therefore, is that there should be an
appointment to the service in accordance with rules and by operation of the
rule, undue hardship has been caused, … It is already held that conditions
of recruitment and conditions of service are distinct and the latter is
preceded by an appointment according to rules. The former cannot be relaxed.
(emphasis added)

29. Similarly, in State of Orissa v. Sukanti Mohapatra it was held
that though the power of relaxation stated in the rule was in regard to any
of the provisions of the rules, this did not permit relaxation of the rule of
direct recruitment without consulting the Commission and the entire ad hoc
service of a direct recruit could not be treated as regular service.
Similarly, in M.A. Haque (Dr) v. Union of India it was held that for direct
recruitment, the rules relating to recruitment through the Public Service
Commission could not be relaxed. In J&K Pubic Service Commission v. Dr.
Narinder Mohan
it was held that the provisions of the J&K Medical Recruitment
Rules could not be relaxed for direct recruitment. The backdoor direct
recruitments, could not be permitted. (See also Arundhati Ajit Pargaonkar
(Dr) v. State of Maharashtra
). In Surinder Singh Jamwal (Dr) v. State of
J&K
this Court directed the direct recruits to go before the Public Service
Commission.

40.1 After concluding that quota rule had not broken down, regarding
applicability on the basis of rotation, it was observed :-

40. We shall next refer to the contention for the direct recruits
that rota quota rule is to be applied. Before us, it is not disputed by the
learned counsel for the direct recruits that in the Recruitment Rules, 1978,
there is only a quota rule and that no rota rule has been expressly
prescribed.

Question is whether rota can be implied

41. The direct recruits contend that rota is to be implied or read
into the quota rule. It is also argued that there has been a previous
practice of applying a rota and that this fact stands conceded in the
counter-affidavit filed by the Government in SWP No.824-B of 1994 . Reliance
is also placed on the Cabinet note of December 1997 where the view of the Law
Department that quota-rota rule is to be applied, is referred to.

42. In our opinion, in view of the admission before us by all parties
that there is no express rota rule, the decision of the High Court that rota
principle applied cannot be upheld. As held in N.K. Chauhan v. State of
Gujarat
by Krishna Iyer, J. there is no question of a quota being necessarily
interlocked with rota. It is not necessarily inscribed within every quota
rule. Again in B.S. Yadav v. State of Haryana Chandrachud, C.J. held that
a quota does not imply a rota. The first part of the contention of the
direct recruits is without any substance.

Rota cannot be brought in only because of past
practice

43. So far as the second part of the contention that there has been
previous practice, we may refer to L. Chandrakishore Singh v. State of
Manipur
((1999) 8 SCC 287 at p.302 : JT at p.593). There it was held that a
practice must be consistent with rules and that a practice not consistent with
rules is not acceptable. In that case, the practice of not considering for
promotion probationers and considering only confirmed candidates was held not
consistent with the Rules and could not be permitted. Similarly, in D.
Stephen Joseph v. Union of India
it was held that a past practice which was
de hors a rule could be of no help. The question in that case was as to
whether the requirement of particular years of service with graduation for
promotion meant service after graduation or service during which a degree
qualification was acquired. A practice of counting three years after
obtaining qualification was not accepted. In that view of the matter, the
second part of this contention also goes.

44. Hence, it must be held that there is no rota coupled with quota
but that there is only a quota rule. Point 2 is decided accordingly.

40.2 In para 72, (1988) Supp. SCC 225 (K. SIVA REDDY v. STATE OF
ANDHRA PRADESH AND OTHERS
) was distinguished as the service rendered on ad hoc
basis was against the quota and the post was within the direct recruit quota.
It was observed :

77. We shall next refer to another set of cases relied upon by the
direct recruits where, on facts, the promotees were not given the benefit of
ad hoc/stopgap service. Here the service rendered by the promotees was either
outside quota or the candidates were not eligible by the date the order of
regularisation was passed or were not having the required experience. C.K.
Antony v. B. Muraleedharan
arising from Kerala State has some special
features. There was a rule similar to Rule 23 of the J&K Rules and Rule 23(a)
of the Andhra Pradesh Rules. The said Rule permitted retrospective
regularisation of the promotees from anterior dates but this Rule stated that
the said regularisation should be without prejudice to seniority. It was no
doubt interpreted that the Rule meant that the seniority of direct recruits
could not be affected. The question as to when it could be said that the
seniority of a direct recruit would be prejudiced, was not elaborated.
Whether the case of direct recruits would be prejudiced even if the promotees
were given seniority from an anterior date upon a post within their quota, was
not decided. Further, on facts, the earlier ad hoc promotion of the promotees
was not against cadre posts but was in excess of the quota. Obviously, it
could not count for seniority in view of Direct Recruit case. Any
regularisation of such service in a direct recruitment post would definitely
prejudice the seniority of direct recruits. In view of the above peculiar
features, the case is clearly distinguishable.

79. Summarising the position, we therefore hold that the ad hoc/
stopgap service of the promotees cannot be treated as non est merely because
PSC was not consulted in respect of continuance of the ad hoc/ stopgap service
beyond six months. Such service is capable of being regularised under Rule 23
of the J&K (CCA) Rules, 1956 and rectified with retrospective effect from the
date of occurrence of a clear vacancy in the promotion quota, subject to
eligibility, fitness and other relevant factors. There is no rota rule
applicable. The quota rule has not broken down. Excess promotees occupying
direct recruitment posts have to be pushed down and adjusted in later
vacancies within their quota, after due regularisation. Such service outside
the promotee quota cannot count for seniority. Service of the promotees which
is regularised with retrospective effect from the date of vacancies within the
quota counts for seniority. However, any part of such ad hoc/stopgap or even
regular service rendered while occupying the direct recruitment quota cannot
be counted. Seniority of the promotees or transferees is to be fixed as per
quota and from the date of commencement of probation/regular appointment as
stated above. Seniority of direct recruits is from the date of substantive
appointment. Seniority has to be worked out between direct recruits and
promotees for each year. We decide Point 3 accordingly.
(Emphasis added)

40.3 In paragraphs 80 and 81, it was observed that direct recruits
cannot claim appointment from the date of vacancy within quota before their
selection. It was further observed :

… in service jurisprudence, a direct recruit can claim seniority
only from the date of his regular appointment. He cannot claim seniority from
a date when he was not borne in service. This principle is well settled.
(For the aforesaid purpose, reliance was placed upon (1977) 1 SCC 30 8 (cited
above), (1983) 3 SCC 601(Janardhana V. Union of India), (198 7) Suppl. SCC
763 (A.N. Pathak v. Secretary to the Government).

42. In (2003) 4 SCC 65 (A.G. SAINATH REDDY v. GOVERNMENT OF
ANDHRA PRADESH AND OTHERS
), the Department had considered the question of
seniority for the promotee from the date of ad hoc promotion, which was

challenged by the direct recruits before the Tribunal which allowed such
application. In appeal, the Supreme Court upheld such decision of the
Tribunal by following the ratio of Aghore Nath Deys case.

43. In (2004) 6 SCC 729 (M. SUBBA REDDY AND ANOTHER v. A.P.
STATE ROAD TRANSPORT CORPORATION AND OTHERS
) by distinguishing the Direct
Recruits case and by following the subsequent decision in (1993) 3 SCC 371
(STATE OF WEST BENGAL v. AGHORE NATH DEY), the majority observed :-

8. The appellants have relied upon the judgment of this Court in
Direct Recruit Class II Engg. Officers Assn. Case. In that matter, an
unusual situation had developed under which the rota-and-quota system had
broken down. The promotees had worked for twenty years without being reverted
and in view of that fact, the Constitution Bench of this Court confirmed the
principles of counting towards seniority, the period of continuous
officiation. The said judgment has no application to the facts of this case.
In the present case, the argument of the appellants is that on the date when
the appellants were regularised, there were no direct recruits available and
consequently they cannot be pushed down in the integrated seniority list.
Hence, the judgment of this Court in the case of Direct Recruit Class II Engg.
Officers Assn. has no application to the present case. In fact, in the
later judgment of this Court in the case of State of W.B. v. Aghore Nath Dey
it has been held, relying on the judgment in the case of Direct Recruit Class
II Engg. Officers Assn. that seniority has to be counted from the date of
initial appointment and not from the date of confirmation provided the initial
appointment is

according to the rules. But the corollary to the above proposition is that
where initial appointment is only ad hoc and not according to the rules, the
officiation cannot be taken into account for considering the seniority. The
ratio of the judgment of this Court in the case of Aghore Nath Dey is that the
benefit of ad hoc or temporary service is not admissible, if appointment was
outside the rules. Applying the ratio of the said judgment to the facts of
this case,the benefit of temporary promotion to the appellants under
Regulation 30 was not admissible to them for computation of seniority.

9. It was, however, urged on behalf of the appellants that the
position changed when vacancies became available in the promotion quota and
the appellants came to be regularised vide order dated 9-9-1988. By the said
order, according to the appellants, regularisation took place with
retrospective effect from the dates indicated against their names and against
the post earmarked for promotion and consequently in the integrated seniority
list, they were not liable to be pushed down below direct recruits. We do not
find any merit in this argument. Under Regulation 30 read with Regulation 34,
temporary promotees were liable to be reverted as and when approved direct
recruits became available. The promotees were liable to be replaced by direct
recruits. Under Regulation 34, the said revertees were to be considered for
repromotion only against the quota of vacancies reserved for promotees. This
is clear from the terms of the order dated 9-9-1988. In the case of U.P.
Secretariat U.D.A. Assn. v. State of U.P
. it has been held that a direct
recruit is to be treated as in service from the date he joins it, whereas the
promotee has to be fitted into service from the date when he becomes entitled
to fitment in accordance with the quota-and-rota rule prescribed under the
rules. In the case of A.N. Sehgal v. Raje Ram Sheoran one of the arguments
advanced on behalf of the promotees was that they were promoted as Executive
Engineers against regular vacancies and they continued in service without
break from the respective dates of

their promotion, therefore, they were members of the service in substantive
capacity from respective dates of promotion. It was argued that the direct
recruit Shri Raje Ram was recruited long after the promotion of the appellants
(promotees) and, therefore, the promotees cannot be pushed down and placed
below the direct recruit. On examination of the rules, this Court found that
recruitment to the service was from three sources, namely, direct recruitment,
promotion and by transfer. A ratio was prescribed under Rule 5(2) between the
promotees and direct recruits. The ratio was 1:1. It was held that Rule 5(2)
had restricted the number of posts to promotees at 50%. Under the proviso to
Rule 5(2), it was laid down that the rigour of 50% quota maybe relaxed in
cases where direct recruits were not available. On reading Rule 5, it was
held by this Court that a promotee within his quota under Rule 5 got his
seniority from the date when the vacancy arose in his quota. It was held that
the promotee occupying the post within 50% quota of the direct recruit
acquired no right to the post and should yield to the direct recruit though
promoted later than him. It was held that the seniority of the promotee has
to be reckoned only from the date of availability of the post and, therefore,
he has to be placed below his immediate senior promotee within the said quota.
The officiating period of the promotee between the date of initial promotion
and the date of availability of vacancy would stand excluded. A direct
recruit on promotion within his quota, though later to the promotee is
interposed in between the periods and interjects the promotees seniority; he
snaps the links in the chain of continuity and steals a march over the
promotee. It has been further held that the rule of quota is a statutory rule
and must be strictly implemented. The result of pushing down the promotees
may work hardship but it is unavoidable as it would otherwise nullify the
statutory rules. In the case of U.P. Secretariat U.D.A. Assn. it has been
held by this Court that mere inaction on the part of the Government cannot be
made a ground to contend that the quota rule has broken down. In the present
case, in the absence of direct recruitment, the appellants could not have got
seniority over direct recruits. Where there is inaction on the part of the
Government or employer or imposed ban on direct recruitment in filling up the
posts meant for direct recruits, it cannot be held that the quota has broken
down.
(Emphasis supplied)

44. In (2000) 4 SCC 20 (T. VIJAYAN AND OTHERS v. DIVISIONAL
RAILWAY MANAGER AND OTHERS
), the persons who had been promoted on ad hoc basis
and subsequently regularised were given seniority from the date of initial ad
hoc promotion by referring to Direct Recruits case as well as Aghore Nath
Deys case and by following (1999) 1 SCC 280 ( Keshav Deo v. State of U.P.)
and (1999) 9 SCC 596 (Ajit Kumar Rath v. State of Orissa). However, in the
above case there was no promotion encroaching upon the quota of other category
and this decision is therefore distinguishable.

45. In (2003) 5 SCC 511 (SANTOSH KUMAR v. STATE OF ANDHRA
PRADESH AND OTHERS
), the subsequent regularisation of a temporary promotee
with retrospective effect was found justified by applying the ratio of the
Direct Recruit case. However, in the said case, it was found that promotion
given was within the promotion quota and, therefore, it was observed that
direct recruit, who was recruited later on, could not challenge. This
decision is distinguishable.

46. From the aforesaid decisions, it is apparent that where
the appointment is in excess of the quota, the appointees in excess of such
quota would obviously be held to be recruits de hors to the rules and as such,
would not have any right to claim seniority (more particularly when such
promotion is explicitly on ad hoc basis).

47. It cannot be construed that the Supreme Court in Gaya
Baksh Yadav case intended to depart from the well settled principles relating
to fixation of seniority and it cannot be understood that it was laid down
even if the promotion is purely ad hoc and not within the quota for all
classes, yet such seniority should be counted from the date of ad hoc
promotion. As a matter of fact, the Supreme Court has pointedly referred to
the principles enumerated in Direct Recruits case. The Direct Recruits case
has been consistently interpreted subsequently to mean that where there is an
ad hoc promotion coming within para 47(A), para 47(B) of such decision would
not be applicable. There are several decisions of the Supreme Court wherein
it was observed that when a quota has been fixed by the Rules, any promotion
made contrary to the quota rule should be taken to be ad hoc or fortuitous
giving no right to such person to claim seniority from the date of ad hoc
promotion. This applies with more vigour to a case where promotion order
itself specifically says that promotion is purely ad hoc and does not give any
right to claim promotion on substantive basis as in the present case.

48. Of course, when the court comes to the conclusion that
quota rule has broken down, obviously the appointment made in excess of the
quota can be counted. However, it is evident that before coming to the
conclusion that quota has broken down, the Court has to arrive at a definite
conclusion that consistently for a considerable length of time, the
appropriate authority had consciously departed from the quota.

49. In the present case, it cannot be said that the quota had
broken down. On the other hand, the Supreme Court in Gaya Baksh Yadavs case
categoricaklly observed that at least 50% is preserved for the direct recruits
at all times. So far as ad hoc promotion before December, 1987 is concerned,
to the extent that such appointment had been made within the maximum 50%
available for the promotees, the observation of the Supreme Court in Gaya
Baksh Yadavs case i.e., seniority should be counted from the date of
continuous officiation, is required to be followed. However, it cannot be
said that the Supreme Court also intended to lay down an inexorable principle
that the promotees promoted on ad hoc basis before December, 1987 in excess of
maximum 50% available to the promotees, on their subsequent regularisation
after 1988 Rules came into force, were also to be given seniority from the
date of their ad hoc promotion. Such interpretation would rather militate
against the observation of the Supreme Court that the direct recruits are
ensured 50% of the posts at all times.

50. In view of the discussion, the inevitable conclusion is
as follows :-

(A) Promotees who had been regularised by December, 1987 should be in
the seniority list on the basis of continuous officiation.

(B) Ad hoc promotees within permissible 50%, who were regularised
after 1988 Rules came into force can claim seniority from the date of their ad
hoc promotion, provided their selection was otherwise in accordance with the
1961 Rules. However, ad hoc promotees promoted before December, 1987 in
excess of maximum permissible 50% of the post, on their subsequent
regularisation after 1988 Rules came into force can claim seniority from the
date of regular promotion and not from the date of their ad hoc promotion.

(C) The seniority of a direct recruit can be counted from the date of
appointment.

(D) There is nothing in 1988 Rules to indicate that seniority has to
be fixed on the basis of principle of rotation. Therefore, to the extent, a
particular appointment is within the quota earmarked in 198 8 Rules seniority
has to be counted from the date of the substantive appointment and if there
has been any appointment in excess of the quota for a particular year, for a
particular category, obviously such a person must be pushed down and should be
adjusted against the quota of the category concerned during the subsequent
years.

(E) Seniority need not be on the basis of rotation unless there is any
specific instruction to that effect validly issued after coming into force of
1988 Rules and the Department cannot fall back on the instructions which had
been issued before 1961 or before 1987 as it cannot be said that such
instructions are in vogue even after new Rules have come into force.

51. The Supreme Court has recognised the right of an employer
to give ad hoc promotion notwithstanding that draft rules had not been
finalised or even draft seniority list had not been finalised on some
reasonable basis. However, if any such ad hoc promotion is given, it is
obvious that such ad hoc promotion would not give any substantive right to
such person and such person is liable to be reverted on subsequent
finalisation of the seniority list and regular promotion of any senior
officer. This observation is being made in view of the submission that many
promotional posts are lying vacant. As a matter of fact, in the affidavit it
has been clarified by the Union Government that only ad hoc promotion is
intended to be given.

52. In view of the aforesaid conclusions, the prayer made in
various writ petitions are to be specifically considered.

Prayer in W.P.No.26975 of 2005 is for issuing a writ of Certiorarified
Mandamus for quashing the order dated 9.8.2005 and further directing the
respondents 2 to 4, namely, Union of India and other officials, to finalise
the seniority list in the light of objections made by the petitioner before
making promotion to the post of Assistant Commissioner of Customs and Central
Excise (Group A) Post.

Similarly, in W.P.Nos.39564 of 2005 and 39583 of 2005, prayer has been
made for quashing the common order dated 9.8.2005 passed by the Tribunal and
for quashing the seniority list dated 16.12.2004.

53. The Tribunal has observed that the concerned promotees
have to await the decision of the Bombay High Court or get themselves
impleaded there to pursue their remedy. The stand of the Union of India is
that seniority list is being finalised but the Union of India is keen to
promote persons on the basis of draft seniority list which would be subject to
the finalisation of the seniority list. The main contention of the promotees
is that on the basis of continuous officiation from the date of ad hoc
promotion they should be considered as seniors to the direct recruits who have
been appointed subsequently.

54. This contention is not acceptable in view of the analysis
of position of law made earlier to the extent, any promotee who had been
promoted before December, 1987 within the maximum 50% available for the
promotees, his seniority can be counted from the date of continuous
officiation, whereas, a promotee promoted on ad hoc basis before December,
1987 in excess of 50% and regularised against a regular vacancy after 1988
Rules came into force, cannot claim seniority. In view of the specific stand
of the Union of India that it is only contemplating to give ad hoc promotion
on the basis of the draft seniority list, the promotees cannot be said to be
aggrieved as the question of regular promotion would obviously depend upon
subsequent finalisation of the seniority list. While giving any such
promotion, the Union of India should make it clear that the promotion is ad
hoc subject to finalisation of the seniority list.

Subject to these observations, W.P.Nos.26975, 39564 and 39583 of 200 5
are disposed of.

55. So far as W.P.No.15158 of 2002 is concerned, such writ
petition is to be allowed and the order or the Tribunal cannot be upheld in
view of the position of law analysed earlier.

56. In the result, W.P.Nos.26975, 39564 and 39583 of 2005 are
disposed of subject to the observations made above and W.P.No.15158 of 200 2
is allowed. There would be no order as to costs. Consequently, the connected
miscellaneous petitions are closed.

To

1. The Central Administrative Tribunal
rep. by its Registrar,
City Civil Court Buildings,
Chennai 104.

2. The Union of India,
rep. by the Secretary to Government,
Department of Revenue, North Block, New Delhi.

3. The Chairman,
Central Board of Excise and Customs
Department of Revenue,
Ministry of Finance, New Delhi 1.

4. The Chief Commissioner of Customs,
Custom House, Chennai.

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