1966 (2) TMI 74 - SC - Customs

Whether 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? Held that - The present method by which the respondent puts a direct recruit from the grade of Appraiser though he is promoted later above a promote 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 oppor- tunity 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. Appeal allowed in part.

Issues Involved:
1. Seniority list of Appraisers.
2. Seniority list of Principal Appraisers.
3. Alleged violation of Article 16(1) of the Constitution.

Issue-wise Detailed Analysis:

1. Seniority List of Appraisers:
The petitioners, Appraisers in the Customs Department, challenged the 1963 seniority list prepared by the Central Board of Revenue, claiming it violated Article 16(1) of the Constitution, which guarantees equality of opportunity in matters of public employment. The recruitment system for Appraisers is divided equally between direct recruits and promotees, with seniority determined by a rotational system. The petitioners argued that this system resulted in discriminatory treatment, placing promotees with longer service below direct recruits with shorter service.

The Union defended the rotational system, asserting it is a common practice in various services and does not constitute discrimination. The Union referenced a 1940 circular which established that direct recruits would rank above promotees even if they joined later, provided the vacancy was designated for a direct recruit. The petitioners countered with a 1949 circular, which they argued provided for seniority based on length of service, but the Court clarified that this circular was meant for displaced government servants and did not alter the seniority of existing government servants inter se.

The Court examined subsequent circulars, including the 1959 circular, which reaffirmed the rotational system for determining seniority based on the quota of direct recruits and promotees. The Court concluded that the rotational system, when properly implemented, does not violate Article 16(1). The anomalies cited by the petitioners were attributed to insufficient direct recruitment rather than an inherent flaw in the system. The Court upheld the 1963 seniority list, stating it adhered to the rotational system and did not deny equality of opportunity.

2. Seniority List of Principal Appraisers:
The petitioners also contested the seniority system for Principal Appraisers, who are promoted exclusively from the Appraisers' cadre. The Union applied the same rotational system used for Appraisers, claiming it restored the seniority of direct recruits. The Court found this unjustifiable, as there is only one source of recruitment for Principal Appraisers, making the rotational system inapplicable.

The Court ruled that seniority in the Principal Appraisers' grade should be based on the date of continuous appointment, subject to confirmation after a probationary period. The current method, which placed direct recruits above promotees regardless of their promotion dates, was deemed a denial of equality of opportunity. The Court directed that seniority should be determined by continuous service in the Principal Appraisers' grade, irrespective of whether the individual was a direct recruit or promotee in the Appraisers' grade.

3. Alleged Violation of Article 16(1):
The petitioners argued that the rotational system violated Article 16(1) by creating inequality in employment opportunities. The Court differentiated between the rotational system and the carry-forward rule struck down in T. Devadasan v. Union of India, noting that the rotational system does not carry forward quotas annually but divides the cadre into fixed proportions. The Court concluded that the rotational system, when correctly applied, does not inherently violate Article 16(1). However, it found the application of this system to the Principal Appraisers' grade inappropriate and discriminatory.

Conclusion:
The Court dismissed the petition regarding the seniority list of Appraisers, upholding the rotational system as compliant with Article 16(1). However, it allowed the petition concerning the seniority of Principal Appraisers, striking down the current method as discriminatory and directing a new seniority determination based on continuous service in the grade. The petition was thus allowed in part, with no order as to costs.

← Previous Next →