2008 (5) TMI 85 - SC - Customs

Recruitment in post of Appraisers - no statutory rule governing the terms & conditions of their services including seniority - As the ratio fixed for recruitment from different sources wasn t fixed, strict adherence to the principles enunciated therein was not possible - Similarly, no quota rule having been fixed, the question of breaking down thereof shall not apply - promotees may continue in their service but in regard to determination of seniority, the statutory rules must be given effect

Issues Involved:
1. Interpretation of the Customs Appraisers' Service, Class II Recruitment Rules, 1961 and the Department of Revenue (Customs Appraisers) Recruitment Rules, 1988.
2. Application of the decisions in Mervyn Coutindo v. Collector of Customs and Gaya Baksh Yadav v. Union of India.
3. Determination of inter se seniority between direct recruits and promotees.
4. Validity of seniority lists and promotions.

Detailed Analysis:

1. Interpretation of the 1961 and 1988 Rules:
The primary issue is the interpretation of the Customs Appraisers' Service, Class II Recruitment Rules, 1961 ("the 1961 Rules") and the Department of Revenue (Customs Appraisers) Recruitment Rules, 1988 ("the 1988 Rules"). The 1961 Rules and the 1988 Rules differ in their terminologies, with the 1961 Rules referring to 'Cadre' and the 1988 Rules referring to 'Vacancies'. Rule 3 of the 1961 Rules provides for recruitment by competitive examination, promotion, transfer, and direct recruitment by selection. Rule 4(c) mandates that at least 50% of the posts be filled by direct recruitment. The 1988 Rules specify that 50% of recruitment would be by promotion and 50% by direct recruitment.

2. Application of the Decisions in Mervyn Coutindo and Gaya Baksh Yadav:
The court examined the application of its previous decisions in Mervyn Coutindo and Gaya Baksh Yadav. The dispute regarding seniority between direct recruits and promotees was considered in Mervyn Coutindo, which pertained to the 1961 Rules. The judgment in Gaya Baksh Yadav mandated that seniority be determined on the basis of continuous officiation, not the quota and rota rule. The appellants argued that the seniority list should be issued directly in terms of the 1961 Rules, without a year-wise basis, and that the continuous officiation doctrine should apply.

3. Determination of Inter Se Seniority:
The court addressed the dispute over inter se seniority between direct recruits and promotees. The promotees argued that their seniority should be based on continuous officiation as per Gaya Baksh Yadav. However, the court noted that promotions were made on a zonal basis and that the direct recruits entered Class II services through competitive examination or direct recruitment by selection. The court emphasized that seniority must be counted from the date of appointment for direct recruits, while ad hoc promotees could not rank senior to direct recruits. The court also highlighted the distinction between 'cadre' and 'vacancy', and the need to follow statutory rules for determining seniority.

4. Validity of Seniority Lists and Promotions:
The court examined the validity of various seniority lists and promotions. The seniority list dated 12.11.1997 was quashed by the Bombay Bench of the Central Administrative Tribunal (CAT) for violating Rule 4(c) of the 1961 Rules. The government was directed to review positions of those promoted beyond their quota on an ad hoc basis. Subsequent seniority lists were also challenged, leading to further litigation. The court noted that the Union of India failed to establish a proper legal framework for determining inter se seniority and did not provide accurate facts and figures. The court observed that the promotions made on an ad hoc basis were necessary for the department's effective functioning but emphasized that statutory rules must be followed for determining seniority.

Conclusion:
The court dismissed the appeals, finding no apparent illegality in the High Court's judgment. It interpreted the 1961 Rules in light of the decision in Gaya Baksh Yadav, emphasizing the importance of following statutory rules for determining seniority. The court did not address the merits of the matter pending before the Bombay High Court and noted that the Union of India bore significant responsibility for the confusion and lack of proper documentation. The appeals were dismissed with no costs.

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