LAWS(SC)-1966-2-32

MERVYN CONTINHO Vs. COLLECTOR OF CUSTOMS BOMBAY

Decided On February 14, 1966
MERVYN CONTINHO Appellant
V/S
COLLECTOR OF CUSTOMS,BOMBAY Respondents

JUDGEMENT

(1.) This petition under Art. 32 of the Constitution by certain Appraisers in the Customs Department of the Government of India is directed against the seniority list prepared in 1963 under the order of the Central Board of Revenue (hereinafter referred to as the Board). The petitioners contend that the list in question denies them equality of opportunity in matters relating to employment under the State enshrined in Art. 16 (1) of the Constitution. The system that prevails for recruitment to the post of Appraisers is that 50 per cent is reserved for direct recruits while the remaining 50 per cent is filled up by promotion from subordinates in the Customs Department. It further appears that seniority is determined in the cadre by the system of rotation, i.e. the list is arranged in such a way that there is one person from the direct recruits and one from the promotees alternately. The contention of the petitioners is that this system has resulted in discriminatory treatment against them with the consequence that promotees of much longer service in the cadre of Appraisers are put in the seniority list below direct recruits with much shorter service. This, according to the petitioners, offends against equality of opportunity guaranteed under Art 16 (1) of the Constitution. That is one grievance of the petitioners. The other grievance of the petitioners is that in the cadre of Principal Appraisers who are all promoted from Appraisers, there is again discrimination and violation of equality of opportunity inasmuch as the same method is followed in the matter of fixation of seniority of Principal Appraisers, though in this case there is only one source of recruitment, i.e., by promotion from the cadre of Appraisers. The petitioners, therefore, pray that the seniority list prepared in 1963 should be struck down as violative of Art. l6 (1) and directions be issued to prepare a fresh seniority list for the cadre of Appraisers They further pray that in the matter of appointment of Principal Appraisers, the system at present being followed in the matter of seniority should be struck down.

(2.) The petition has been opposed on behalf of the Union. It is contended that 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. It is urged that there is nothing discriminatory in such a system and there is no denial of equality of opportunity by following the rotational system for determining seniority in such circumstances. As to the Principal Appraisers, the case of the Union is that these posts are selection posts and selection is made from the cadre of Appraisers. For this purpose Appraisers with a minimum service of five years are eligible for promotion and there is a probation of two years before they are confirmed. The Union further contends that by the system of rotation which is being followed in the cadre of Principal Appraisers also what happens is that the seniority of a direct recruit in the cadre of Appraisers is restored as on account of five years qualifications. a direct recruit cannot he promoted to the post of Principal Appraiser while his junior promotee in the post of Appraiser gets such promotion. According to the Union, therefore' this system which is given effect to in the cadre of Principal Appraisers merely restores the seniority which a direct recruit had in the cadre of Appraisers. This is the only justification for the system in the matter of seniority in the cadre of Principal Appraisers.

(3.) We shall first consider the question of Appraisers. As far back as 1936 an order was passed by the Board which laid down that recruitment to the Customs Appraisers' Service would he from two sources. i.e., 50 per cent by 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 said in the said order that those percentages would be the maximum and the Collectors of Customs would not be bound to recruit up to the maximum particularly in the case of recruitment by promotion In actual practice, however, this order has been acted upon as if it provides 50 per cent for promotees and 50 per cent for direct recruits, whether they are experts or come by competitive examination or selection by the Pubic Service Commission. In 1940, the Government of India issued a circular for the determination of relative seniority of candidates appointed by direct recruitment and by promotion. In that circular it was stated that "where in a department two permanent or quasi permanent vacancies occur, even simultaneously, and the first vacancy is in accordance with the rotation meant for a direct recruit, the direct recruit will rank in seniority above the promotee even though he joined his post after the promotee had been promoted and confirmed". Reliance has been placed on behalf of the Union on this circular in the matter of fixation of seniority between direct recruits and promotees in a cadre in which rotational system prevails. The petitioners however, rely in reply on a circular issued in June 1949. That circular dealt with the seniority of displaced Government servants who had been absorbed temporarily in service under the Central Government. The occasion for that circular was the division of India, and the creation of Pakistan resulting in displacement of a large number of public servants from the area which went to Pakistan. That circular provided for a change in the system due to displaced Government servants having in most cases lost all their property and having to migrate in difficult circumstances. It was, therefore, thought fit to give some weightage in the matter of seniority to such persons on compassionate grounds. It was, therefore, decided that the seniority of persons appointed on permanent or quasi permanent basis before January l, 1944 should not be disturbed but thereafter displaced persons should be given consideration and their seniority counted on the basis of length of service in the particular grade as well as service in an equivalent grade. "Service in an equivalent grade" was defined as service on a rate of pay higher than the minimum of the time scale of the grade concerned. The principle of this circular was also applied to ex-Government servants of Burma appointed under the Central Government and employees of the former Part B States taken over by the Centre as a result of federal financial integration. Naturally as this change could not be applied only to displaced persons, etc., it was applied to the existing Government servants of the Government of India also from January 1 1944. But there is nothing in the circular to show that the seniority of the existing Government servants inter se was to be disturbed on the basis of this circular. The real purpose of this circular appears to be to fix seniority for displaced persons etc. in accordance with it and for that purpose it applied the same principle to the existing Central Government servants from January 1, 1944.