Full Judgment Text
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PETITIONER:
NATWARBHAI MAGAINBHAI PATEL
Vs.
RESPONDENT:
COLLECTOR & ORS.
DATE OF JUDGMENT: 10/05/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
FAIZAN UDDIN (J)
G.B. PATTANAIK (J)
CITATION:
JT 1996 (6) 217 1996 SCALE (5)63
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Delay condoned.
Counsel for the petitioner admits that a notification
under Section 10 [5] of the Urban Ceiling Act was published
pursuant to which the excess vacant land was surrendered and
taken possession of by the Government. Consequently, the
land stands vested in the State free from all the
encumbrances. In what manner the lands require to be
utilized has been regulated under the provisions of the Act.
It is not a condition, under the Act, that payment of
Compensation be made before utilization of the land of which
the petitioner was erstwhile owner. under these
circumstances, we do not find any illegality in the order
passed by the High Court in Special Civil Appeal No 4093/93
on May 15,1995.
The Special Leave Petition is accordingly dismissed.
Gaya Baksh Yadav
V.
Union of India & Ors.
W I T H
CIVIL APPEAL NOS.4004-07 OF 1987
Kishori Lal Bablani & Ors.
V.
Union of India & Ors.
J U D G M E N T
Punchhi,J.
This is another manifestation of the never-ending
dispute Between direct recruits and promotees, arising in
this bitch of 5 appeals, directed against the judgment and
under dated 28.5.1987 of the Central Administrative
Tribunal, Principal Bench, New Delhi.
A representative petition, representing the interests
of the promotee officers, belonging to the Customs
Appraisers Service Class II, was filed before the Central
Administrative Tribunal, Principal Bench, New Delhi,
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challenging Circular No. A, 23011/86-AD.II (A) dated the 2nd
May, 1986 issued by the Ministry of Finance (Department of
Revenue), Government of India, containing principles
regarding "Promotion of Appraisers of Customs to the India
Customs and Central Excise Service, Group A", for quashing
of the pursuant "All India combined List of Appraisers"
circulated therewith, and for a direction to the Government
of India to prepare a fresh seniority list in accordance
with law, on the basis of length of service, quashing
promotions of some of the respondents therein to the post of
Assistant Collector of Customs and Central Excise as also
for a corresponding direction to promote the promotee-
applicants to such posts, giving them the benefit of revised
seniority with retrospective effect.
A glimpse of the service related history would be
useful for a thorough grasp of the problem. There existed
Customs Houses in the metropolitan cities of Bombay, Madras
and Calcutta at a given point of time, established by the
Government of India, and manned by members of the Customs
Appraisers Service. As far back in 1936, the Central Board
of Revenue, by order, had established the manner of
recruitment to the Customs Appraisers Service to be done
from two sources, i.e., 50 per cent by departmental
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 provided in the said
order that the percentages laid down denoted the maximum and
the Collector of Customs would not be bound to recruit
uptill the maximum is reached, particularly in the case of
recruitment by promotion In actual practice, however, this
order had been acted upon as if providing 50 per cent posts
for promotees and 50 per cent for direct recruits, whether
they be experts or coming by competitive examination or
selection by the Public Service Commission.
In 1940, the Government of India issued a General
Circular for determination of relative seniority of
candidates appointed by direct recruitment and by promotion
In that Circular, it was demonstrated that "Where in a
department two permanent or quasi-permanent vacancies occur,
even simultaneously, and the first vacancy in accordance
with the rotation is for direct recruit, the direct recruit
will rank in seniority above the promotee, even though he
joined his post after the promotee who had been promoted and
confirmed." On December 12, 1959, the Government of India
issued another Circular containing amongst others, some
general principles for determining the seniority of various
categories of persons employed in Central Services. Those
were effective from the date of their issue and not
retrospectively. One of the principles projected in this
Circular of 1959 was with respect to relative seniority of
direct recruits and promotees providing that relative
seniority of direct recruits and promotees shall be
determined according to the rotation of the vacancies
between direct recruits and promotees, which shall be based
respectively on the quota of reservation for each given in
the recruitment rules. It was further explained that a
roster shall be maintained based on the reservation for
direct recruits and promotees for promotion in the
recruitment rules. Where, for example, the reservation for
each is 50 per cent, the roster will run as i) promotion,
ii) direct recruitment, iii) promotion, (iv) direct
recruitment and so on. Appointments were thus required to be
made in accordance with the aforesaid roster and seniority
determined accordingly. It is thus deducible that whether it
be by the Circular of Government of India of the year 1940
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or that of year 1959, seniority was to be determined by
working the rotational system depending upon the respective
quota reserved for direct recruits and promotees.
In accordance with the 1959 Circular, the Collectorate
of Bombay Customs House, under orders of the Central Board
of Revenue, prepared a seniority list in the year 1963.
Certain promotee Appraisers of the Customs Department of the
Government of India challenged the seniority list of 1963 by
means of a petition under Article 32 of the Constitution
before this Court contending that the rotational system had
resulted in discriminatory treatment against them with the
consequence that promotees of much longer service in the
cadre of Appraisers were put in the seniority list below
direct recruits with much shorter service, which offended
the Equality Rule with respect to opportunity guaranteed
under Article 16(1) of the Constitution. The dispute
focussed and resolved can be seen in Mervyn Continho and
Ors. Vs. Collector of Customs, Bombay and Ors., 1963 SCR
600, a decision by a five judge bench. The contention of the
Union of India in response was that in a service where
recruitment is partly by promotion and partly by direct
recruitment, the system of fixing seniority by rotation has
been adopted and that this pattern was being followed in a
number of services under the Union. It was also urged that
there is nothing discriminatory in such a system and no
denial of equality of opportunity by following the
rotational system, for determining seniority in such
circumstances. This Court in Mervyn Continho’s case agreed
with the Union of India and the theme of the 1959 Circular.
This Court held that where recruitment to a cadre is from
two sources, namely, direct recruits and promotees and
rotational system is in force, seniority is to be fixed as
provided in the Explanation by alternatively fixing a
promotee and direct recruit in the seniority list. By the
adoption of the rotational system this Court did not see any
violation of the principles of equality of opportunity
enshrined in Article 16(1) of the Constitution. The argument
that the system resulted in anomalies was rejected and it
was viewed that such situation had developed since direct
recruitments had not kept pace with the quota fixed and had
they kept pace, there would have been no anomalies in fixing
the seniority. This Court then handling the question
observed as follows :
"The question, therefore, narrows
down to this : Can it be said that
there is denial of equality of
opportunity which arises out of the
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
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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 promotees. 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 1 : 1 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."
The other grievance of the promotees in Mervyn
Continho’s case was in relation to the promotional cadre of
Principal Appraisers. There was only one source of
recruitment thereto, i.e., by promotion from the cadre of
Appraisers. It was therefore ruled that when the source of
recruitment of Principal Appraiser is one, namely, from the
grade of Appraisers, there is, therefore, no question of any
quota being reserved for the two original sources and in
their cases the rotational system could therefore not apply,
and rather the normal rule would apply; i.e., 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 was
continuous appointment in the-higher grade which determined
seniority because the source of recruitment being one. The
departmental method by which seniority in the grade of
Principal Appraisers was contrarily fixed was struck down as
it denied equality of opportunity.
It would not only be relevant but pertinent to note
here that even though Mervyn Continho’s case was not fought
and defended by the promotees and direct recruits
respectively in a representative capacity, or even relating
to any particular Customs House, lt was a decision plainly
rendered in relation to the ’Service’ as established and
governed under the orders of the Government of India, issued
from time to time, when there were no statutory rules
governing the subject till 1961 when for the first time, the
Customs Appraisers Service Class II Recruitment Rules, 1961
appeared on the scene. This Court in Mervyn Continho’s case
was seemingly aware of the existence of those rules, since
those had been referred to in the counter then filed by the
Union of India, but those apparently were not employed in
determining the spectrum of the seniority dispute then
existing. There is, therefore no reference to them at all in
that judgment. One of the reasons perhaps could be that in
the 1961 rules, there is no specific rule for determination
of seniority. Though Rule 3 thereof lays down four methods
for recruitment to the service, Rule 4 mandates that no
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appointment shall be made to the service, or to any post
borne on the cadre of the service, by any method not
specified under Rule 3. Additionally, clause 3 of Rule 4
provides that 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 and the
remaining posts may be filled by any other method mentioned
in Rule 3. The rule having forbidden direct recruitment
getting less than 50 per cent, necessarily direct
recruitment could, in some event, be even more than 50 per
cent. The rule castes a preference and leaning towards
direct recruitment and guarantees 50% allocation. The
promotees have to remain content with the remainder, if any,
left after satisfying the 50% allocation or more to the
direct recruits, here discernibly lies the shift and the
discardence of the rotational rule, the rule accepted in
Mervyn Continho’s case, in the given event, valid from
August 15, 1947 (earlier confirmed Appraisers being left
undisturbed) uptill the coming into force of the 1961 Rules
and questionably afterwards.
It is not disputed that on the basis of the orders of
the Central Board of Revenue of the year 1963, as approved
by this Court in Mervyn Continho’s case, seniority lists
were drawn by the respective custom houses established in
the country. The next promotional avenue then respectively
available to appraisers was the post of Principal Appraiser
which was a Grade D post, promotion to which was made on
regional basis by the respective Customs Houses. The Grade
of Principal Appraiser however was abolished on 14-9-1970.
The Appraisers thenceforth were made eligible for promotion
directly to the post of Assistant Collector of Customs, a
Group A post, in the Indian Customs and Central Excise
Service. Since the said service was an All India Service
need arose to prepare an All India list of Appraisers
working in the Customs Houses, A decision in that direction
was made by the Ministry of Finance, Department of Revenue &
Insurance, vide Circular dated 28-2-1973, The following
principles were laid down for the Preparation of an All
India list of Appraisers for promotion to the Class I
service:
1. Direct recruitment Appraisers belonging to three
different cadres were arranged in the order of their rank in
the Select List prepared by the Union Public Service
Commission. This was done taking into consideration that
direct recruits list is made on All India basis.
2. The name of promotee appraisers belonging to the
different cadres were so placed in the ALL India list of
direct recruits that their relative seniority vis-a-vis the
direct recruits, as obtaining in their respective cadres, to
which the promottees and the direct recruits, belonging to
the year, were maintained.
3. In case more than one promottee officer belonging to
different cadres got placement between two direct recruits,
names of such promottees were arranged in the order of their
length of continuous service as Appraiser.
The basic principle employed for preparing the All
India list was in preserving the inter se seniority of
Appraisers in each Customs Houses or in other words in the
original cadre. The employment of such calculation became a
disquieting factor. Some promottee Appraisers belonging to
the Bombay Customs House cadre found themselves to have
become junior to the promottee Appraisers of Calcutta and
Madras Custom Houses cadres The seniority list thus prepared
on this principle was challenged before the Bombay High
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Court by some promottee Appraisers of Bombay Custom house
vide Writ Petition No.2699 of 1972 which was allowed on
October 18, 1979 setting aside the promotions made on the
basis of All India Service prepared in pursuance of the
principles contained in the Circular dated 28-2-1973.
Direction was issued to the Government to prepare a combined
seniority list of Appraisers all over India on the basis of
continuous length of service rendered by them as Appraisers
or any other legal or valid principle. No opinion was
however expressed by the Bombay High Court with regard to
the validity of the principle set out in the Circular dated
28-2-1973. Rather in so many words the High Court left the
validity of these principles expressly open conceding that
if occasion arose the principles reflected in decision dated
28-2-1973 might have to be fully considered and adjudicated
upon. The Government was left to its own to device any other
legal and valid principle, if not the principle of
continuous length of service rendered. The Special leave
petition of the Union of India, so as to challenge the
judgment and order of the Bombay High Court was rejected on
22-2-1982.
The Government then went into another exercise to untie
the knot. It made a decision on October 29, 1982 that the
direct recruits and the promottee Appraisers would be
brought on two different lists on All India Service basis
and the promotional posts of Assistant Collector of
Customs/Central Excise falling in the share of Appraisers
will be divided equally between the direct recruits and the
promottees. The circular inter alia provided that promottee
Appraisers of all the custom houses could be brought on one
list on the basis of their continuous length of service,
subject to the order on which they were included in the
panel, prepared by the departmental promotion committees in
the respective customs houses. Further it was provided that
vacancies in the Group A meant for Appraisers would be
filled up from the two panels i.e. One meant for direct
recruits and the other for the promottee Appraisers, in the
ratio of 1:1, alternative vacancies going to the promottees
and direct recruits. This principle too was unacceptable to
some. This time challenge came in the Madras region. The
circular was challenged in the Madras High Court in two writ
petitions Nos.,9925/82 and 3-77 of 1983 which were allowed
on 12-9-1985 quashing the circular dated October 29, 1982
giving a direction to the Union of India to fix the
seniority of the promottees and direct recruits Appraisers
on some fair and just principle without causing serious
prejudice to either of them. The court took the view that
the Appraisers as a class stood integrated and thus no
distinction could be kept alive between direct recruits and
the promottees. Letters Patent Appeal in that Court filed by
the Government was withdrawn but, statedly one letters
patent appeal at the instance of the direct recruits was
pending in the Madras High Court when the Central
Administrative Tribunal became seisen of the matter.
Final venture was made by the Government by issuing a
circular dated May 22, 1986 deciding that the promotees of
all the three cadres/regions/custom houses may be placed
together on the basis of their continuous length of service
and the direct recruits correspondingly on the basis of
their inter se ranking assigned by the U.P.S.C. and then an
471 India list be prepared by rotating the officers in the
two lists in the ratio of 1:1. The basis of the decision
apart, the circular provided that this method would be
applicable only to those Appraisers who were in position on
September 15, 1970 and were recruited/promoted to the Grade
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on regular basis upto February 28, 1986. The circular
further provided that suitable modifications will be made in
respect of those promoted/recruited to the Grade on or after
March 1, 1986, keeping in view the principles contained in
the earlier circular of February 7, 1986. The said circular
dated 7-2-1986, amongst others, provided that the practice
of keeping vacant posts for being filled up by direct
recruits of later years, thereby giving them intended
seniority over promotees, already in position would be
dispensed with. It was conceded that when the direct
recruits are not available, the promotees would be bunched
together at the bottom of the seniority list below the last
position upto which it is possible to determine seniority,
on the basis of rotation of quotas with reference to actual
direct recruits who become available. Further the unfilled
direct recruits quota vacancies were to be carried forward
and added to the Corresponding direct recruit vacancies of
the next year (to subsequent years where necessary) for
taking action for direst recruitment for the total number
according to the usual practice.
The circular of May 22, 1986 made two different
provisions/basis for two cadres. One commenced for those
Appraisers who were in position from 15 September, 1970 and
were promoted to the Grade on regular basis upto February
28,1986 and the other in respect of those promoted/recruited
to the Grade on or after March 1, 1986. This circular too
was put to challenge in this Court by means of a writ
petition under Article 32 of the Constitution but the same
was allowed to be withdrawn on October 28, 1986 giving
liberty to the writ petitioners to move the Central
Administrative Tribunal declaring that the Tribunal had
authority to entertain petitions in a representative
capacity. Thus the matter before the Tribunal was projected
as also defended in a representative way in order to
determine whether the impugned circular of May 22, 1986 was
fair and reasonable, not violating the equality rule and if
so to ascertain what could be the basis to settle this
otherwise never-ending dispute.
The Central Administrative Tribunal by an elaborate
judgment dated 28-5-1987 quashed the circular dated 22-5-
1986 setting aside any promotions made to the posts of
Assistant Collector of Customs and Excise Group A on the
basis of the said list. The Union of India was directed to
prepare afresh an All India combined list of Appraisers on
the basis of continuous officiation of the incumbent in tie
post of Appraisers leaving a niche that should the Madras
High Court reverse the decision of the single Bench in the
Letters Patent Appeal, the Union of India would no longer be
under an obligation to prepare a combined list. The Tribunal
recorded that the debate had proceeded on the footing that
the combined eligibility list of Appraises on All India
basis has necessarily to be prepared. The Tribunal expressed
no opinion as to on That principle the combined eligibility
list should be prepared in such a contingency. It is this
decision of the Tribunal which is the subject matter of
challenge in this bunch of appeals.
Having travelled thus far let us take stock of the
situation, try to grasp it and smoothen its rough edges:
(i) The Rule of Mervyn Continho does not touch those
Appraisers who were appointed prior to 15-8-1947.
(ii) As and from 15-8-1947 the Rule of Mervyn Continho
applied till such date from which the Customs Appraisers
Service, Class II Recruitment Rules, 1961, came into force.
In accordance therewith there was a quota system operating
rotationally. The anomolies pointed out by the promotees in
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working the quota system were ordered to be tolerated.
(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 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.
(vi) Mervyn Continho’s case could have kept applied to
the post Rules period had the quota and rotational rule been
preserved. Since earlier to the rules the quota and rota
principles were dn vogue, this Court in the light of the
Government’s Orders’ then existing, and in particular that
of the year 1959, gave its approval.
(vii) That the service knit up under the Rules is an All
India Service.
(viii) Inter se seniority in the said Rules between the
direct recruits inter-se is determinable in the order of
selection prepared by the Union Public Service Commission
from time to time. Direct recruits on selection are
allocable to any of the Customs Houses functioning in the
country.
(ix) Promotees Appraisers get to the service by
promotion on selection by the Regional Departmental
Promotion Committees, becoming members of the All India
Service from the date of promotion.
(x) Within the Regional Customs Houses, seniority
inter se between promotees and direct recruits, as also on
All India basis, prior to the coming into the force of the
Rules had to be regulated by the rotational principles in
accordance With Mervyn Continho’s case irrespective of the
length of continuous officiation.
(xi) In view of the five-judge bench decision of this
Court in Direct Recruit Class II Engineering Officers’
Association Vs. State of Maharashtra and others 1990 (2) SCC
715, no argument can be entertained merely on a ground of
unfairness and unreasonableness to question the ratio in
Mervyn Continho’s case as that is a binding service
precedent. The Rule of Mervyn Continho’s case, however,
would apply up to w.e.f. date when the Rules came into
force.
(xii) Mervyn Continho’s case would thus hold the field
to regulate inter se seniority between the direct recruits
and promottee Appraisers on the basis of quota and rotation,
irrespective of continuous length of service of the
promottee. This rule would have, however, to stop w.e.f.
date when the Rule of 1961 came into force.
(xiii) The Direct Recruit’s 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’s case.
We are not expected to unsettle the principle of Mervyn
Continho 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
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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 no 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 recruits
Appraisers and departmentally promoted Appraisers. The
dispute is narrow and centers 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, it’s effort was
thwarted by decisions in succession by the Bombay High
Court, 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.
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 Continho’s case tells the way to work it out. In
their respective quotas direct recruits as well as
promottees rotate the quota system as 1:1 as mentioned in
Mervyn Continho’s case. But after the Rules of 1961, when
the quota system has been discarded Mervyn Continho’s 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 promottee 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.
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 Continho
would be the basis to work out the inter seniority of the
incumbents to operate the quota and rotational rule.
The appeals stand disposed of accordingly. No costs.