S N KARKHANIS Vs. UNION OF INDIA

JUDGEMENT

(1.) Six petitioners, of whom the 4th petitioner has since died, challenge the decision of the first respondent, the Union of India, fixing the principles of seniority of members of the Customs and Central Excise Service Class I as if the combined Service came into existence on April 1, 1959. instead of August 15, 1959 - the date on which the Presidential Resolution dated August 12, 1959 said that the combined Service would come into effect Petitioners 2,3,4, and 6 were appointed as probationary Superintendents of Central Excise Class I in the Central Excise Service Class I with effect from July 13, 1959 on the result of the combined competitive examination held by the second respondent, the Union Public Service Commission, in 1958:(vide notification of the Government of India (Central Excise Establishment) dated August 4, 1959). Similarly, petitioners 1 and 5 were appointed on the same date namely from July 13, 1959, as probationary Assistant Collectors of Customs in the Indian Customs Service Class I on the result of the combined competitive examination held by the second respondent in 1958:(vide notification of the Government of India (Customs establishment) dated August 4, 1959). The petitioners say that contrary to the Presidential Resolution of August 12, 1959, creating the combined Service Customs and Central Excise, Class I, comprising of all the existing members of both the Service as from August 15, 1959, the impugned decision of the Government which prescribed the principles of seniority of members of the two individual Services as if the combined Services came into existence on April 1, 1959, would affect their seniority as they would be considered to be appointed only after the constitution of the combined Service, when in fact they were members of one or other of the two Services on the date when the combined Service was created. As the combined list of seniority of Officers in the Service was prepared with reference to April 1, 1959 as being the date of the merger, the petitioners complain that they were excluded from the list of Officers appointed to the initial constitution of the Indian Customs and Central Excise Services Class I, even though they had joined the two separate Services on July 13, 1959, as consequence of which persons who would be juniors, if the principles of seniority were made applicable to them, have become senior and have been promoted by over looking their claims. When the impugned letter dated April 7, 1970 gave time till May 15, 1970 calling on any member of the Service to point out any factual mistakes or errors in the application of the principles enunciated in the said letter, it appears all the petitioners made representations in which they asserted that the integration of the two Services having taken place on August 15, 1959, and not on April 1, 1959, they were entitled to be included in the initial constitution of the combined Service and on the application of the principles enunciated in the said letter no distinction could be made between the direct recruits appointed to the Indian Customs Service Class I and the Central Excise Service Class I in the years 1955 to 1958 and the direct recruits appointed to the said two Services in the year 1959. In their representation the petitioners had claimed that they be placed above respondent 3 and requested that till this matter was decided promotions from the combined seniority list below Serial No. 73 should not be made, but in spite of this request, even before the date calling for representation expired, some Officers were promoted on May 11, 1970, without considering their claims.

(2.) The first respondent in its counter affidavit stated that the idea of having a separate Class I Service for the Central Excise Department was mooted for the first time in 1944, but the final constitution of the Central Excise Service Class I took place only with effect from July 1, 1955; that after the idea of constituting a Central Excise Service was mooted in 1944 the first respondent says that training in central excise work was given to Officers recruited to the Indian Customs Service and even right from 1950 the notification issued by the second respondent for the combined I.A.S. Examination stated that the direct recruitment was to the Indian Customs and Excise Service even though there was no such service in existence upto July 1, 1955 and that even after the formation of the Service with effect from July 1, 1955, and up to its subsequent integration with the Indian Customs Service in 1959 the notification issued by the second respondent stated that the recruitment was to the Indian Customs and Central Excise Service Class I and not to the Indian Customs Service and the Central Excise Service separately though the actual allocation of the candidates between the two Services was made by the Department of Revenue. It was also stated that the order constituting the Central Exercise Service Class I with effect from July 1. 1955, provided that future vacancies in the grade of superintendent of Central Excise Class I will be filled up by direct recruitment and promotion in the ratio of 1:1 and that when the final decision to merge the Indian Customs Service Class I and the Central Excise Service Class I was taken by the Government in March 1959, an Official Committee was set up to make recommendations regarding the determination of inter se seniority in the merged service of the officers in position in the two constituent Services at the time of integration. As the finalisation of the seniority list was expected to take some time it was felt desirable to freeze the position of officers in the two departments as on a particular point of time so that change introduced thereafter in one Service did not affect the members of the other Service on a lasting and irretrievable basis. Accordingly the date April 1, 1959, was chosen though the formal resolution to merge the two Services was published only on August 12, 1959. The counter of the Union of India further stated that as the seniority principles enunciated by the Government in their letter of January 6, 1960 had raised a controversy, the Government referred the matter to the second respondent under Art. 320 (3) (b) of the Constitution, and ultimately the letter of April 7, 1970 was issued accepting not only the principles evolved by the second respondent, but also the date April, 1959, as the date on which the integration of Services were to come into effect as previously were to come into effect as previously indicated in the first respondent's letter of January 6, 1960.

(3.) An objection was sought to be taken on the ground that there was an inordinate delay in the prtitioners' presenting the writ petition after over ten years even though the letter of January 6, 1960, stated that the decision taken by the Government was final. The petitioners countered this objection by pointing out, firstly, that the letter of January 6, 1960 was addressed to the Heads of Departments who were asked to communicate the decision to those officers whose names figured in the list and since the petitioners were appointed after April 1, 1959, their names did not appear and the decision was not communicated to them, secondly the letter of April 7, 1970 itself clearly stated that everything done earlier by the Government was provisional. It is therefore urged that as right from the beginning objection had been taken by the Service Association regarding the principles enunciated in the letter of January 6, 1969, and the Government itself had called upon the Service Associations by its letter of June 20, 1961 , to enunciate the principles they considered fair in fixing the seniority, in compliance to which objection were being urged, the petitioners cannot be held to have committed any laches. Taking into consideration the respective contention it appears to us that having regard to the stand taken by the Government and the admission made by it in the letters subsequently written that the proposals set out in the letter of January 6,1960, were to be treated as provisional, the petitioners could not have come to this Court earlier till a final decision was made on April 7, 1970. Accordingly the preliminary objection is not sustainable.