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TMI Blog1999 (2) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of India wants to off-set the said advantage, such an action cannot be said to be unfair. Appeal dismissed. - 306 of 1998 [I. A. Nos. 4, 6-8] - - - Dated:- 22-2-1999 - K. Venkataswami, G.B. Pattanaik and M. Jagannadha Rao, JJ. REPRESENTED BY : Ms. Shyamala Pappu, M.N. Krishnamani, A.K. Ganguli, P.P. Rao, Rakesh Diwedi, Dr. Rajiv Dhawan, Anoop Choudhary, Sr. Advocates, Suman J. Khaitan, Advocate for M/s. Khaitan Co., M.R. Krishnamurthy, G. Dewansi, Ashok K. Mahajan, Ms. Chandan Ramamurthi, S.C. Parija, Debasish Mohanty, J.R. Das, Amitesh Kumar, Ms. Vimla Sinha, L.R. Singh, Dev H. Sobhani, (in person), Ashok K. Srivastava, P. Parameshwaran, V.K. Verma, Advocates with them for the appearing parties. [Judgment per : M. Jagannadha Rao, J.]. We have before us writ petition - W.P. 651 of 1997 and certain Interlocutory Applications bearing Nos. IA 4, 6 to 8 filed in an earlier Writ Petition No. 306 of 1988. The said W.P. No. 306 of 1988 was disposed of by this Court by Judgment dated 22-11-1996 All India Federation of Central Excise v. Union of India - 1997 (1) SCC 520. Aggrieved by certain subsequent events, various parties have filed the writ petitions and I.As. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently, the All India seniority List of Superintendents of Customs (P) and Superintendents of Central Excise in Group A on the basis of their continuous length of service in Group B was issued. The seniority list of Customs Appraisers was also revised from 1961 and a final seniority list was published. In addition, a proposal for review of 1979 promotions was also started by requesting the UPSC to convene a meeting of the DPC for reviewing the ad hoc promotees from 1980 onwards. Various other stages of review of the promotions at the level of Assistant Commissioner (Group A) and Deputy Commissioner were referred to in the counter affidavit of the Government of India. After the review of all promotions is completed, it was proposed to bring about a final list of Assistant Commissioners by interpolating the Direct Recruit Officers in Group A and the promotees from Group B, as promoted from the three feeder categories. But meantime, in view of the delay in the review to be done by the UPSC, it had become necessary to make further `ad hoc promotions to Group A posts. As the bulk of these ad hoc promotions had not come from the feeder category of Superintendents, Central Excise Group B, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Union of India [1995 (2) SCC 745] by the learned Senior Counsel for the petitioners. 7.This contention is opposed by almost all the learned Senior Counsel for the respondents, namely Shri Anoop Chowdhury for the Union of India, Sri Rajeev Dhawan and by Shri P.P. Rao for the other feeder categories. Respondents Counsel rely on para 6.3 of the proposals dated 8-6-1989 where the procedure for filing the vacancies has been set out and also on State of Punjab v. Dr. R.N. Bhatnagar [1998 (6) SCALE 642] to contend that in a quota rule like the one before us dealing with promotions, there is no question of filling up the vacancy in the higher cadre caused by retirement of a Excise Superintendent Group A promoted from the cadre of Excise Superintendent Group B, by another officer from the same feeder group in Group B. 8.The point therefore turns upon the true intention behind the proposals of the Union Government dated 8-6-1989, the text of which has been incorporated in the earlier judgment of this Court and also upon an interpretation of the Rules as amended in 1998, pursuant to the judgment. As the question primarily depends upon the interpretation of the various paragraphs of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ped that, given the goodwill and a sense of reason on the part of all the concerned parties, it should be possible to find a solution which is just and fair to find a solution from both the streams - namely Customs and Central Excise. 4. With this object in view, the Board have taken stock of the nature of Group `A entry grade posts (Senior Superintendents/Assistant Collectors) which are the subject-matter of dispute. For this purpose, the total number of posts in the entry grade of Group `A Service have been divided as (i) Central Excise posts and (ii) Customs posts, on the basis of functions which each post is required to perform. Posts required to perform wholly or predominantly functions under the Central Excise posts. Similarly posts required to perform wholly or predominantly functions under the Customs Act have been treated as Customs posts. The ratio so arrived at has been applied for dividing the common posts in the Directorates and CEGAT. This calculation gives the ratio of 65:36 as between Central Excise and Customs posts. Since the posts and persons manning them cannot be divided into fractions, the figures have been rounded to 67:33 so as to give the workable ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rade of Deputy Collector. 6.2By and large, similar position would be there in the case of Customs (P) Superintendents vis-a-vis Direct Recruit Customs Appraisers. Therefore, a reasonable placement in the combined all-India seniority list may be in the following order: (i) Superintendents of Central Excise, Group `B ; (ii) Superintendents of Customs (P) Group `B ; (iii)Customs Appraisers. 6.3 To sum up, according to the above formula, each bunch of 9 vacancies in the promotion quota for Group `B feeder cadres will be apportioned in the ratio 6:1:2 consisting of Central Excise Superintendents, Customs (P) Superintendents and Customs Appraisers respectively. To illustrate, if 9 vacancies exist for the promotee quota in Group `A entry point, the first six vacancies would go to Superintendents of Central Excise, the seventh vacancy to Customs (P) Superintendents and the eighth and ninth to Appraisers; further vacancies to be filled up on the basis of a `cycle in the above order. 7. For the purpose of making promotions to Group `A separate consideration lists of Superintendents of Central Excise on the one hand, and Appraisers (both direct recruits and promotees) and Prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the three feeder groups. Therefore, introduction of a quota system was found to be necessary. Then the next question before the Department was as to what was to be the quota between the various groups. Obviously it was to be one providing an equitable distribution of Group A posts between the three feeder groups. For that purpose the department went into the question as to the posts having distinctive functions in the two main groups, the Excise and the Customs Departments and then it went into the same question in the two sub-groups of the Customs officers. After finding out the number of posts in the two main groups of Excise and Customs, it was obviously decided that a quota of 2 : 1 or 6 : 3 would be fair as between Excise Customs groups and that a further sub-quota of 1 : 2 would be just as between the two sub-categories in the Customs Department. That was how the quota of 6 : 1 : 2 appears to have been arrived at. We are clear in our mind that, on a fair reading of the whole of para 4, that was all the purport of para 4 and it was never intended in the said para 4 that in the promoted category of Group A officers, there should always be 6 promotees from Excise Superintende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it between direct recruits and promotees or promotion by a quota between different feeder groups (as in the case before us), the relevant precedents, are Paramjit Singh Others v. Ram Rakha Others - 1982 (3) SCC 191 and State of Punjab Others v. Dr. R.N. Bhatnagar Another - 1998 (6) Scale 642. In Paramjit Singh s case which related to recruitment from among promotees and direct recruits, D.A. Desai, J. Pointed out that if a quota rule between direct recruits and promotees were treated as a rule of reservation, then because of the frequent retirements of the promotees who were generally closer to retirement, most vacancies in the promotional posts would repeatedly go to the aged promotees leaving little scope for direct recruitment. At page 196, the learned Judge clarified as follows : What this Court meant while saying that when a quota rule is prescribed for recruitment to a cadre, it meant that quota should be co-related to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant because retirement from service may not follow the quota rule. The learned Judge further pointed out : Promotees who come to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 652) as follows : The quota of percentage of departmental promotees and direct recruits has to be worked out on the basis of the roster points taking into consideration vacancies that fall due at a given point of time. As stated earlier, as the roster for 3 promotees and one direct recruit moves forward, there is no question of filling up the vacancy created by the retirement of a direct recruit by a direct recruit or the vacancy created by a promotee. Irrespective of the identity of the person retiring, the post is to be filled by the onward motion of 3 promotees and one direct recruit. 17.The position in regard to the quota of 6 : 1 : 2 in the case before us is no different. 18. For the aforesaid reasons, we are unable to agree with the contention of learned Senior Counsel for the writ petitioners Smt. Shyamala Pappu. 19.Learned Senior Counsel for writ petitioners furnished some data by way of tabular statements to show that those in Group A promoted from Superintendents of Excise Group B are a diminishing number and are never 6 out of 9 in the promoted post. But, in our view, that is not the way of looking at the problem in a case of ordinary quota as distinct from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 22-11-1996 and directs preparation of an inter se seniority list of direct recruits Assistant Collectors and promotee Assistant Collectors within their quota and also for review of all promotions. There can be no objection for fixing some reasonable time limit. 23. I.A. No. 6 and I.A. No. 7 are connected. I.A. No. 7 is filed for permission to file I.A. No. 6. I.A. No. 6 is filed by the Customs Superintendents (P) and their learned Senior Counsel Shri P.P. Rao contended that the ratio of 6 : 1 : 2 was based upon the cadre strength of 1989 and that the said ratio was liable to be altered going by the cadre strength or posts now available. The learned Counsel contended that such a principle was already imbedded in the proposals dated 8-6-1989 of the Government of India as extracted in the earlier judgment. According to him the department could not be permitted to proceed on the assumption that the ratio of 6 : 1 : 2 was to be followed for all time. 24. It may be noted that as long as a particular quota is fixed by a rule, it will have to be followed till the quota fixed therein is altered by appropriate amendment of the relevant rules. As held in V.B. Badami v. State of Mys ..... X X X X Extracts X X X X X X X X Extracts X X X X
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