RAJAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioners are Preventive Officers of the Customs department. THEy entered the service as Preventive Officers Grade II on various dates from 26-10-1959 to 4-7-1961. THEy were promoted as Preventive Officers grade I on various dates from 13-6-1968 and were confirmed in the post on various dates from 14-10-1969 to 9-7-1971. Respondents 3, 4 and 5 entered service as Preventive Officers Grade II on 8-5-1963,12-2-1963 and 28-8-1970 respectively. THE 6th respondent was directly recruited as Grade I Preventive officer on 28-9-1974 and the 7th respondent was promoted as Preventive Officer grade I on 27-7-1974. THE five petitioners were ranked as Nos. 32, 33, 34, 35 and 36 respectively, in the seniority list of Preventive Officers Grade I as on 1-3-1978. In that list respondents 3 to 7 were ranked as Nos. 38, 45, 56, 64 and 67 respectively. THE 4th respondent, however, was assigned rank between the 4th and 5th petitioners pursuant to a judgment of this court dated 8-2-1973 in o. P. No. 6386 of 1970. THE next promotion post of Preventive Officers Grade I is that of Superintendent.

(2.) IT is common ground that the chances of promotion for preventive Officers Grade as Superintendents in the Customs Department were not very impressive. According to the Second Pay Commission Report, the proportion of Promotion posts in the Preventive Branch of the Customs Department was only 10 per cent as against 83 per cent of the post of Examiners. In view of the stagnation consequent on the lesser number of promotion posts in the category of Superintendents, the system of upgrading 10 per cent of the posts of preventive Officers Grade I as Selection Grade Posts with a higher salary was introduced. This proportion of selection grade posts was enhanced to 20 per cent of the permanent posts and still later, on the recommendations of the Second pay Commission, to 25 per cent. The appointment to these posts were directed to be made on seniority-cum-fitness by a non-selection DPC consisting of the Head of the Department. Consequently, 25 per cent of the permanent posts in the category of Preventive Officers Grade I in each of the Customs Houses were being upgraded as Selection Grade posts, which have been subsequently redesignated as Senior Grade posts. The question arising for determination in this case is as to whether the posting of Preventive Officers Grade I as Senior grade Preventive Officers is promotion and whether reservation in favour of scheduled castes and scheduled tribes, which as at present is 15 per cent and 71/2 per cent respectively, should be made for purposes of such posting of preventive Officers Grade I as Senior Grade Preventive Officers.

(3.) THE position taken uy by the respondents that posting as Selection Grade/senior Grade Preventive Officers is a promotion and in that case, reservation as is provided in O. M. No. 27/2/71-Estt. (SCT) dated 27-11-1972 should be observed does not seem to be justified in view of the facts and circumstances mentioned above. It is of course true that in Ext. Rl it has been clarified by the Department of Personnel and Administrative Reforms in o. M. No. 8/11/73-Estt. (SCT), that "since appointment to Selection Grade also constitutes promotion, the appropriate orders relating to reservation concessions for Scheduled Castes and Scheduled Tribes in promotions made by'selection'or on the basis of 'seniority subject to fitness' would apply to appointments to the Selection Grade, according as such appointments are made on the basis of 'selection' or 'seniority-cum-fitness'. It is difficult to accept this clarification, since, if the clarification be correct, Senior Grade preventive Officers alone would be the feeder category for the purpose of promotion to posts of Superintendents. As long as the recruitment rules have not been amended by providing that Selection Grade Preventive Officers are intermediary category between Preventive Officers Grade land Superintendents, the posting of Officers in higher salary which were accorded for purposes of avoiding stagnation among Preventive Officers Grade I, cannot be considered as promotion. If that be so, the rules of reservation in the O. M. dated 27-11-1972 would not be applicable and the postings may have to be in the order of seniority from among Preventive Officers Grade I, subject of course to fitness of the Officers in accordance with the provisions contained in the relevant rules.