Mervyn Coutindo & Ors Vs.
Collector of Customs, Bombay & Ors [1966] INSC 46 (14 February 1966)
14/02/1966 WANCHOO, K.N.
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ) SHAH, J.C.
SIKRI, S.M.
RAMASWAMI, V.
CITATION: 1967 AIR 52 1966 SCR (3) 600
CITATOR INFO:
F 1967 SC 839 (15,17) F 1967 SC1889 (5) F
1968 SC 507 (8) RF 1970 SC2178 (4) R 1972 SC 252 (4) R 1972 SC 670 (12) D 1974
SC 1 (48,54) R 1974 SC 259 (12) D 1974 SC1618 (14) R 1975 SC 483 (28) RF 1975
SC 538 (9) D 1977 SC 251 (33,34) R 1979 SC1073 (4,14,15) E 1980 SC 115 (38) RF
1980 SC2056 (73) RF 1981 SC2181 (25) R 1984 SC1291 (29) D 1984 SC1595 (24,62) R
1985 SC 781 (13) D 1987 SC2348 (3)
ACT:
Constitution of India, Arts. 16(1),
14-'Rotational system' applied in filling vacancies in the cadres of Appraisers
and Principal Appraisers in Customs Department-Fixation of Seniority-validity.
HEADNOTE:
The petitioners who were Appraisers in the
Customs Department filed a writ petition under Art. 32, challenging the
validity of the 'rotational system as applied in fixing the seniority of
Appraisers and Principal appraisers. The system, as laid down in the relevant
departmental circulars was that vacancies occurring in the cadre of Appraisers
were to go alternatively to 'promotees' and 'direct recruits'.
According to the petitioners this resulted in
inequality, especially in view of the fact that the number of direct recruits
over the years was very low. Promotion to the grade of Principal Appraisers was
from the cadre of Appraisers; only those who had served as Appraisers for five
years were entitled to be promoted to the higher grade Since the direct
recruits had to wait for five years before they could become Principal
Appraiser the promotees below them who had put in five years as Appriasers
became' Principal Appraiser,%. In order to restore the seniority of the direct
recruits thus-lost, -the rotational system was applied to the cadre of
Principal Appraisers also Ie. one vacancy was to go to a promotee and the other
to a direct recruit. The plea of inequality in violation of Art. 16(1) of the
Constitution was raised by the petitioners in respect of this also.
HELD : (i) There is no inherent vice in the
principle of fixing seniority by rotation in a case when a service is composed
in fixed proportion of direct recruits and promotees. Any anomalies that may
have resulted on account of insufficient recruitment of direct recruits in the
past could not be a ground for striking down the system itself.
[605 B-C, G] T. Devadasan v. Union of India
and Ors. [1964] 4 S.C.R.
680 distinguished.
(ii) The same however, cannot be said when
the rotational system is applied to the recruitment of Principal Appraisers.
The source of recruitment for these is one only, namely, the grade of
Appraisers. There is no question of any quota being reserved from two sources
in their case.
In so far therefore as the Government was
doing what it called restoration of seniority of direct recruits in Appraisers
grade on their promotion to the higher grade it was clearly denying equality of
opportunity. [605 C-G]
ORIGINAL JURISDICTION : Writ Petition No. 97
of 1964.
Petition under Art. 32 of the Constitution of
India for the ,;enforcement of fundamental rights.
Ved Vyasa, J. R. Gagrat, B. R. Agarwala and
N. K. Puri, for the petitioners.
C. K. Daphtary, Attorney-General, R.
Ganapathy lyer and R. N. Sachthey, for respondent no. 1.
601 B. R. L. Iyengar and S. K. Mehta, for
respondents Nos. 6 to23.
I. M. Lal, S. K. Mehta and K. L. Mehta, for
respondents Nos 25 and 27 to 34.
Respondent No. 24 appeared in person.
The Judgment of the Court was delivered by
Wanchoo, J. This petition under Art. 32 of the Constitution by certain
Appraisers in the Customs Department of the Government of India is directed
against the seniority list prepared in 1963 under the order of the Central
Board of Revenue (hereinafter referred to as the Board). The petitioners
contend that the list in question denies them equality of opportunity in
matters relating to employment under the State enshrined in Art. 16(1) of the
Constitution.
The system that prevails for recruitment to
the post of Appraisers is that 50 per cent is reserved for direct recruits
while the remaining 50 per cent is filled up by promotion from subordinates in
the Customs Department. It further appears that seniority is determined in the
cadre by the system of rotation, i.e., the list is arranged in such a way that
there is one person from the direct recruits and one from the promotees
alternately. The contention of the petitioners is that this system has resulted
in discriminatory treatment against them with the consequence that promotees of
much longer service in the cadre of Appraisers are put in the seniority list
below direct recruits with much shorter service. This, according to the
petitioners, offends against equality of opportunity guaranteed under Art.
16(1) of the Constitution. That is one grievance of the petitioners. The other
grievance of the petitioners is that in the cadre of Principal Appraisers who
are all promoted from Appraisers, there is again discrimination and violation
of equality of opportunity inasmuch as the same method is followed in the
matter of fixation of seniority of Principal Appraisers, though in this case
there is only one source of recruitment i.e., by promotion from the cadre of
Appraisers. The petitioners therefore pray that the seniority list prepared in
1963 should be struck down as violative of Art. 16(1) and directions be issued
to prepare a fresh seniority list for the cadre of Appraisers. They further
pray that in the matter of appointment of Principal Appraisers, the system at
present being followed in the matter of seniority should be struck down.
The petition has been opposed on behalf of
the Union. It is, contended that in a service where recruitment is partly by
promotion and partly by direct recruitment, the system of fixing seniority by
rotation is followed and that this is being done in a number of services under
the Union. It is urged that there is nothing discriminatory in such a system
and there is no denial of equality of opportunity by following the rotational
system for determining seniority602 in such circumstances. As to the Principal
Appraisers, the case of the Union is that these posts are selection posts and
selection is made from the cadre of Appraisers. For this purpose Appraisers
with a minimum service of five years are eligible for promotion and there is a
probation of two years before they are confirmed. The Union further contends
that by the system of rotation which is being followed in the cadre of
Principal Appraisers also what happens is that the seniority of a direct
recruit in the cadre of Appraisers is restored as on account of five years
qualification, a direct recruit cannot be promoted to the post of Principal
Appraiser while his junior promotee in the post of Appraiser gets such
promotion. According to the Union, therefore, this system which is given effect
to in the cadre of Principal Appraisers merely restores the seniority which a
direct recruit had in the cadre of Appraisers. This is the ,only justification
for the system in the matter of seniority in the cadre of Principal Appraisers.
We shall first consider the question of
Appraisers. As far back as 1936, an order was passed by the Board which laid
down that recruitment to the Customs Appraisers' Service would be from two
sources, i.e. 50 per cent by promotion, 25 per cent directly from ,experts and
25 per cent by means of a competitive examination or ,selection by the Public
Service Commission. It was also said in the said order that those percentages
would be the maximum and the Collectors of Customs would not be bound to
recruit upto the maximum particularly in the case of recruitment by promotion.
In actual practice however this order has been acted upon as if it provides 50
per cent for promotees and 50 per cent for direct recruits, whether they are
experts or come by competitive examination or selection by the Public Service
Commission. In 1940, the Government of India issued a circular for the
determination of relative seniority of candidates appointed by direct
recruitment and by promotion.
In that circular it was stated that
"where in a department two permanent or quasi permanent vacancies occur,
even simultaneously, and the first vacancy is in accordance with the rotation
meant for a direct recruit, the direct recruit will rank in seniority above the
promotee even though he joined his post after the promotee had been promoted
and confirmed". Reliance has been placed on behalf of the Union on this
circular in the matter of fixation of seniority between direct recruits and
promotees in a cadre in which rotational system prevails. The petitioners
however rely in reply on a circular issued in June 1949. That circular dealt
with the seniority of displaced government servants who had been absorbed
temporarily in service under the Central Government. The occasion for that
circular was the division of India, and the creation of Pakistan resulting in
displacement of a large number of public servants from the area which went to Pakistan.
'That circular provided for a change in the system due to displaced 603
government servants having in most cases lost all their property and having to
migrate in difficult circumstances.
It was therefore thought fit to give some weight
age in the matter of seniority to such persons on compassionate grounds. It was
therefore decided that the seniority of persons appointed on permanent or quasi
permanent basis before January 1, 1944 should not be disturbed, but thereafter
displaced persons should be given consideration and their seniority counted on
the basis of length of service in the particular grade as well as service in an
equivalent grade. "Service in an equivalent grade" was defined as
service on a rate of pay higher than the minimum of the time scale of the grade
concerned. The principle of this circular was also applied to ex-Government
servants of Burma appointed under the Central Government and employees of the
former Part B States taken over by the Centre as a result of federal financial integration.
Naturally as this change could not be applied only to displaced persons etc.,
it was applied to the existing government servants of the Government of India
also from January 1, 1944. But there is nothing in the circular to show that
the seniority of the existing government servants inter se was to be disturbed
on the basis of this circular. The real purpose of this circular appears to be
to fix seniority for displaced persons etc., in accordance with it and for that
purpose it applied the same principle to the existing central government
servants from January 1, 1944.
It appears that by 1959, the circular of 1949
for absorption of displaced government servants etc., had worked itself out.
Therefore, on December 12, 1959, the Government of India issued another
circular containing general principles for determining seniority of various
categories of persons employed in central services. By this circular, the
circular of 1949 and certain other circulars issued to deal with special types
of recruitment like war service candidates were cancelled, and thereafter
seniority was to be determined by the circular of 1959, which states that
instructions contained in the said circulars had achieved their object and
there was no longer any reason to apply those instructions in preference to the
normal principles for determining seniority in future. For the future certain
general principles were laid down for fixing the seniority in the circular of
1959. These principles were not to apply retrospectively but were given effect
to from the date of their issue, subject to certain reservations with which we
are not concerned.
One of the principles in this circular of
1959 is with respect to relative seniority of direct recruits and promotees. It
provides that relative seniority of direct recruits and promotees shall be
determined according to the rotation of vacancies between direct recruits and
promotees which shall be based on the quota of reservation for direct
recruitment and promotion respectively in the recruitment rules. It was further
explained that a roster should be maintained based on the reservation for
direct recruitment and promotion in the recruitment rules. Where, for example,
the reservation for each method is 50 per cent, the roster will run as follows-(1)
promotion, (2) direct recruitment, (3) promotion, (4) direct recruitment, and
so on. Appointments should be made in accordance with this roster and seniority
determined accordingly. A question has been raised whether the circular of 1940
to which we have already referred survived after this circular of 1959; but in
our opinion it is unnecessary to decide that question, for the circular of 1959
itself lays down that seniority shall be determined accordingly, i.e. in
accordance with the rotational system, depending upon the quota reserved for
direct recruitment and promotion respectively. It is this circular which
according to the respondent has been followed in determining the seniority of
Appraisers in 1963.
Before we come to what has been done in 1963
in the matter of fixing seniority of Appraisers, we may refer to two other
circulars. The first is a circular of the Board issued in 1953. That circular
in our opinion has nothing to do with the question of fixing of seniority as
between direct recruits and promotees. Its main value is that it emphasises
that the proportion fixed for direct recruits and promotees should be rigidly
maintained. It also directs that promotion to higher grades should be made on
the basis of a combined seniority list of both direct recruits and promotees.
Then there is another circular of 1955. That circular again emphasises the
rotational system and says that it has been decided that "inter se
seniority of direct recruits and promotees in the grade of Appraisers should be
determined in the order in which the vacancy in that grade is filled by a
direct recruit or by a promotee according to the quota fixed for such
appointments". Stress has been laid on behalf of the petitioners on the
words "is filled" in this circular, and it is urged that this means
that until the direct recruit is actually recruited and fills the vacancy meant
for a direct recruit he cannot get seniority from before the date he fills the
vacancy merely on the ground of rotational system of fixing seniority. We do
not think that this is the meaning of the words "is filled" used in
this circular. We have already said that this circular also emphasises the
rotational system in the matter of fixing of seniority and all that it means is
that vacancies should be filled either by direct recruits or by promotees
according to the quota fixed for such appointments.
This brings us back to the circular of 1959,
and the main question in that connection is the meaning to be assigned to the
words "'seniority determined accordingly", in the explanation to
principle 6 relating to relative seniority of direct recruits and promotees. As
we read these words, their plain meaning is that seniority as between direct
recruits and promotees should be determined in accordance with the roster,
which has also been specified, namely, one promotee followed by one direct
recruit and so on. Where therefore recruitment to a cadre is from two sources,
namely, 605 direct recruits and promotees and rotational system is in force,
seniority has to be fixed as provided in the explanation by alternately fixing
a promotee and a direct recruit in the seniority list. We do not see any
violation of the principle of equality of opportunity enshrined in Art. 16(1)
by following the rotational system of fixing seniority in a cadre half of which
consists of direct recruits and the other half of promotees, and the rotational
system by itself working in this way cannot be said to deny equality of
opportunity in government service. The anomalies which have been referred to in
the petition arise not on account of there being anything opposed to equality
of opportunity in government service by the use of the rotational system; they
arise out of the fortuitous circumstance that in this particular service of
Appraisers, for one reason or another, direct recruitment has fallen short of
the quota fixed for it. It is merely because of this fortuitous circumstance
that anomalies to which reference has been made in the petition have arisen.
There is no doubt that if direct recruitment had kept pace with the quota fixed
therefor there would have been no anomalies in fixing the seniority list. The
question therefore narrows down to this: Can it be said that there is denial of
equality of opportunity which arises out of this fortuitous circumstance and
which is not a vice inherent in the rotational system? We are not prepared to
say that the rotational system of fixing seniority itself offends equality of
opportunity in government service. Any anomalies which may have resulted on
account of insufficient recruitment of direct recruits in the past cannot in
our opinion be a ground for striking down the rotational system, which, as we
have said, does not itself amount to denial of equality of opportunity in the
matter of employment in government service. It is regrettable that some
anomalies have appeared because of insufficient recruitment of direct recruits
in the past in this particular service. But that in our opinion can be no
reason for striking down the seniority list prepared in 1963 which is
undoubtedly in strict accordance with the rotational system based on the fixed
quotas for recruitment of direct recruits and pro motees. The order of the
Board of 1963 on the basis of which the impugned seniority list of Appraisers has
been prepared clearly lays down that "the principle of determination of
seniority of the direct recruits and the promotees inter se in the prescribed
ratio of I : I should be worked out". This order is in accordance with the
circular of 1959 and as we have said already, there is no inherent vice in the
principle of fixing seniority by rotation in a case where a service is composed
in fixed proportion of direct recruits and promotees. Nor do we think that this
system is on a par with the carry-forward rule which was struck down by this
Court in T. Devadasan v. Union of India and others(1) and on which strong
reliance is placed on behalf of the petitioners. In the case of the
carry-forward rule certain quota is fixed annually for a certain class of
persons and it is carried forward 1. [1964] 4 S. C. R. 680.
M11Sup CI/66-7 606 from year to year. This is
very different from a case where a service is divided into two parts and there
are two sources of recruitment, one of promotion and the other by direct recruitment.
In such a case, the whole cadre of a particular service is divided into two
parts and there is no question of carrying anything forward from year to year
in the matter of annual intake. The basis on which the carryforward rule was
struck down by this Court does not therefore apply to a case where the whole
cadre of a service is divided in certain fixed proportions between promotees
and direct recruits. The petitioners therefore can get no assistance from
Devdasan's case.(1) The petition must therefore fail so far as seniority of
Appraisers is concerned.
This brings us to the question of Principal
Appraisers. We are of opinion that the petitioners have a legitimate grievance
in this respect. The source of recruitment of Principal Appraisers is one, namely,
from the grade of Appraisers. There is therefore no question of any quota being
reserved from two sources in their cases. The rotational system cannot
therefore apply when there is only one source of recruitment and not two
sources of recruitment. In a case therefore where there is only one source of
recruitment, the normal rule will apply, namely, that a person promoted to a
higher grade gets his seniority in that grade according to the date of
promotion subject always to his being found fit and being confirmed, in the
higher grade after the period of probation is over. In such a case it is
continuous appointment in the higher grade which determines seniority for the
source of recruitment is one.
There is no question in such a case of
reflecting in the higher grade the seniority of the grade from which promotion
is made to the higher grade. In so far therefore as the respondent is doing
what it calls restoration of seniority of direct recruits in Appraisers' grade
when they are promoted to the Principal Appraisers' grade, it is clearly
denying equality of opportunity to Appraisers which is the only source of
recruitment to the Principal Appraisers' grade. There is only one source from
which the Principal Appraisers are drawn, namely, Appraisers, the promotion
being by selection and five years' "experience as Appraiser is the minimum
qualification. Subject to the above all Appraisers selected for the post of
Principal Appraisers must be treated equally. That means they will rank in
seniority from the date of their continuous acting in the Principal Appraisers'
grade subject of course to the right of government to revert any of them who
have not been found fit during the period of probation. But if they are found
fit after the period of probation they rank in seniority from the date they
have acted continuously as Principal Appraisers whether they are promotees or
direct recruits.
The present method by which the respondent
puts a direct recruit from the grade of Appraiser, though he is promoted later,
above a promotee 607 who is promoted to the grade of Principal Appraiser on an
earlier date clearly denies equality of opportunity where the grade of
Principal Appraiser has only one source of recruitment, namely, from the grade
of Appraisers. In such a case the seniority in the grade of Principal
Appraisers most be determined according to the. date of continuous appointment
in that grade irrespective of whether the person promoted to that grade from
the Appraisers' grade is a direct recruit or a promotee. This will as we have
already said be subject to the government's right to revert any one promoted as
a Principal Appraiser if he is not found fit for the post during the period of
probation. The petition therefore will have to be allowed. with respect to the method
by which seniority is fixed in the grade. of Principal Appraisers. That method
denies equality of opportunity of employment to the Appraisers who are the only
source of' recruitment to the grade of Principal Appraisers.
What the impugned method seeks to do is to
introduce a kind of reservation in respect of the two categories of Appraisers
from which the promotions are made, and that cannot be done when the source of
promotion is one.
Appraisers is concerned but allow it so far
as the seniority of Principal Appraisers is concerned and the method used by
the respondent in that connection must be struck down, and we further direct
the determination of their seniority in the manner we have stated above. In the
circumstances we pass no order as to costs.
Petition allowed in part.
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