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.
