All India Federation of Central Excise Vs. Union of India and Others
EmailAppeal: Writ Petitions (C) No. 306 of 1988 with Nos. 1200 of 1988, 1093 of 1990, C.M.P. No. 9014 of 1988 in W.Ps. (C) Nos. 4532-33 of 1978, C.M.P. No. 16033 of 1989, I.A. No. 10 of 1991.)
(Under Article 32 of the Constitution of India)
(Under Article 32 of the Constitution of India)
Petitioner: All India Federation of Central Excise
Respondent: Union of India and Others
Apeal: Writ Petitions (C) No. 306 of 1988 with Nos. 1200 of 1988, 1093 of 1990, C.M.P. No. 9014 of 1988 in W.Ps. (C) Nos. 4532-33 of 1978, C.M.P. No. 16033 of 1989, I.A. No. 10 of 1991.)
(Under Article 32 of the Constitution of India)
(Under Article 32 of the Constitution of India)
Judges: K.RAMASWAMY, K.VENKATASWAMI & G.B.PATTANAIK, JJ.
Date of Judgment: Nov 22, 1996
Appearances:
Yogeshwar Prasad, P.P.Malhotra and K.Madhava Reddy, Senior Advo-cates (K.T.Anantharaman,) Advocate, for Khaitan & Co., Advo-cates, Ms. Rachna Gupta, P.K. Bajaj, R.Vasudevan, A.K.Srivastava, P.Parameswaran, V.J.Francis, Ms C. Ramamurthi, L.R.Singh, Ms Anu Mohla, K.K.Mohan, S.K.Mehta, Probir Mitra, M.A. Krishnamoorthy and V.Balachandran, Advocates, with them) for the appearing parties.
Head Note:
SERVICE AND LABOUR LAW
Indian Customs and Central Excise Service Group ‘A’ Rules, 1987 Rules 18, 19(2), 20 – Promotions – Statutory Rules for promo-tion to Group ‘A’ service – Numerous feeder cadres – Challange to Rules due to cadre strength and time taken to reach Group ‘B’ status which forms feeder cadre – Promotee quota – Distribution amongst feeder cadres – Govt’s proposal for promotion from feeder cadre of Group ‘B’ comprising of Excise Superintendents, Customs Superintendents and Appraisers in ratio of 6:1:2 – No consensus in last several years – Held that the proposal was just, fair and equitable – Suitable directions given – Proposal partly modified.
Indian Customs and Central Excise Service Group ‘A’ Rules, 1987 Rules 18, 19(2), 20 – Promotions – Statutory Rules for promo-tion to Group ‘A’ service – Numerous feeder cadres – Challange to Rules due to cadre strength and time taken to reach Group ‘B’ status which forms feeder cadre – Promotee quota – Distribution amongst feeder cadres – Govt’s proposal for promotion from feeder cadre of Group ‘B’ comprising of Excise Superintendents, Customs Superintendents and Appraisers in ratio of 6:1:2 – No consensus in last several years – Held that the proposal was just, fair and equitable – Suitable directions given – Proposal partly modified.
Held:
The question of determination of seniority of Group ‘B’ Officers of the different feeder cadres in their quota of promo-tion to the entry grade of Assistant Collector/Senior Superin-tendent in the Indian Customs and Central Excise Service Group ‘A’ has been the subject-matter of dispute for quite some time.
On the last occasion, the learned counsel appearing for the Union of India placed before us a communication from the Govern-ment of India, Ministry of Finance, Department of Revenue dated 8-6-1989 addressed to the first petitioner in WP (C) No. 306 of 1988 in his capacity as Secretary to the Federation and copies were marked to other similar Federations/Associations of officers concerned. Enclosed with the said communication, we find certain proposals for resolving the disputes pending for a long time suggested by the Central Board of Revenue.
The above modified proposal is just, fair and equitable and accordingly we direct the Union of India to amend the impugned Rules so far as Group ‘A’ Service is concerned. Review all post-1979 ad hoc promotions to the post of Senior Superintendent/Assistant Collector in the promotee quota in the light of the present proposal, redetermine the respective place-ment of the promotee officers in the combined Group ‘A’ seniority list and regularise accordingly the posts of ad hoc promotions.
In Group ‘A’ Service of the Customs and Excise Department, 50% of the cadre strength are filled by direct recruitment through Union Public Service Commission and the balance 50% are filled through promotion from Group ‘B’ cadres. Group ‘B’ Offic-ers when promoted to Group ‘A’ Service, obviously have no right to occupy more than 50% of their prescribed quota. It would, therefore, be incumbent upon the Government to rearrange or regu-larise the seniority list in Group ‘A’ Service keeping the inter se quota of the direct recruits and promotees intact and should not allow either to get any promotion in excess of their quota. The ad hoc promotions given to Group ‘B’ Officers in Group ‘A’ Service, pursuant to interim orders of his Court, would not, therefore, have any effect or prejudice the interests of right of the direct recruits of Group ‘A’ Service while rearranging the seniority in Group ‘A’ Service as indicated in the judgment. (Para 11, 13, 18 & 19)
Cases Reffered:
Gaya Baksh Yadav v. Union of India. JT (1996) 5 SC 118 = 1996 (4) SCC 23 (Para 11)
JUDGEMENT:
VENKATASWAMI, J.:
1. The petitioners in WPs (C) Nos. 306 and 1200 of 1988 chal-lenge the constitutionality of Rule 18(2) of the Indian Customs and Central Excise Service Group ‘A’ Rules, 1987 (hereinafter referred to as “the Rule”). The petitioners in WP (C) No. 1200 of 1988 additionally challenge the list of seniority published on 22-8-1988 pending disposal of WP (C) No. 306 of 1988. The peti-tioners in WP (C) No. 1093 of 1990 have prayed for the issue of writ of mandamus directing the respondents to make promotions strictly in accordance with law, namely, following Rules 19(2) and 20 of the 1987 Rules and based on the seniority list dated 12-7-1984 and also for certain other connected reliefs.
2. Common arguments were addressed by counsel on both sides and, therefore, these writ petitions and connected interlocutory applications are being disposed of by this common judgment.
3. Let us briefly state the background facts leading to the filing of these petitions.
4. The feeder cadre for promotion to Indian Customs and Central Excise, Group ‘A’ Service are:
(a) Superintendents of Central Excise, Group ‘B’;
(b) Superintendents of Customs (P),
Group ‘B’; and
(c) Customs Appraisers, Group ‘B’ –
(i) Recruited directly through UPSC, as
(a) Non-experts on the basis of All-India Civil Services Exam., and
(b) Experts on the basis of specific requisitions placed with the UPSC, and;
(ii) Promoted from the feeder cadres of Customs Examiner.
5. The Group ‘B’ posts in the feeder cadres (a) and (b) above (i.e. Superintendents of Central Excise and Superintendents of Customs (P)) are filled 100 per cent by promotion. Those in the feeder cadre (c) above (i.e. Customs Appraisers) are filled 50 per cent by direct recruitment consisting of (c)(i) above and 50 per cent by promotion consisting of (c)(ii) above.
6. Prior to the coming into force of the 1987 Rules, promotions to Group ‘A’ posts were given on the basis of the respective cadre strength of feeder categories. This manner of filling up the vacancies was challenged by a group of officers by filing Writ Petitions (Civil) Nos. 4532-33 of 1978 in this Court. Inter alia in the said writ petitions, the petitioners challenged promotions of 174 Superintendents of Central Excise and 10 Super-intendents of Customs (Preventive) on the basis of panel prepared by the DPC held in 1978. One of the main contentions raised in those writ petitions was that for promotion to Group ‘A’ Service, all eligible officers belonging to three Group ‘B’ feeder catego-ries should be arranged in one common consideration list based on their continued length of service in ‘B’ Group. It may be noted that when those writ petitions were pending, statutory rules were under contemplation and factually were not there. This Court gave directions in those writ petitions fixing a time for framing the statutory rules. When this Court was informed about the framing of the Rules, those writ petitions were disposed of on 23-9-1987 observing “the promotions now in dispute, will also be looked into with reference to the Rules and redisposed of in accordance with law”.
7. The petitioners in WP (C) No. 306 of 1988 were aggrieved by Rule 18 and hence they have challenged that Rule. Rule 18 is set out below:
“18. Appointment by promotion to Grade VI of service. –
(1) Appointment to the vacancies in Grade VI of the Service required to be filled by promotion under sub-rule 2(ii) of Rule 5 shall be by promotion of the following categories of Group ‘B’ Officers in the Central Excise, Customs and Narcotics Department who have completed three years’ regular Service in the Group ‘B’ posts of –
(a) Superintendents of Central Excise in the Central Excise Department and District Opium Officer or Intelligence Offi-cers or Superintendents (Executive) in the Narcotics Depart-ment.
(b) Appraisers of Customs in the Customs Department.
(c) Superintendents of Customs (Preventive) in the Customs Department.
(2)(a) The vacancies to be filled by promotion shall be fiiled in accordance with the common seniority list of the three Group ‘B’ categories of the officers mentioned in sub-rule (i) above.
(b) The seniority of the officers in Group ‘B’ feeder catego-ries of service for eligibility for promotion to Group ‘A’ shall be determined on the basis of their regular length of service in their respective Group ‘B’ categories, subject to the condition that the inter se seniority in each feeder cate-gory of service shall be maintained.
(3)(a) The promotion shall be made on the principle of selec-tion on merit basis.
(b) The Commission shall be consulted for making promotions to Grade VI.
8. The grievance of the petitioners in WPs (C) Nos. 306 and 1200 of 1988 is that having regard to their cadre strength and the time taken by them to reach Group ‘B’ status, they may not get their due share if Rule 18(2) is allowed to hold the field.
9. The petitioners in WPs (C) Nos. 4532-33 of 1978, moved this Court again by filing application for contempt for not complying with the order of this Court in not preparing a seniority list within the stipulated time. This Court extended the time and thereafter a common seniority list was prepared. Challenging that, WP (C) No. 1200 of 1988 came to be filed.
10. Thereafter, certain directions were given pending disposal of these writ petition. The petitioners in WP (C) Nos. 1093 of 1990 felt that unless they move this Court and project their point of view, their interests may be jeopardised. Hence they have filed WP (C) No. 1093 of 1990.
11. We have heard counsel on both sides. The question of deter-mination of seniority of Group ‘B’ Officers of the different feeder cadres in their quota of promotion to the entry grade of Assistant Collector/Senior Superintendent in the Indian Customs and Central Excise Service Group ‘A’ has been the subject-matter of dispute for quite some time. As noticed above, apart from moving this Court, a number of cases were pending before various High Courts and Central Administrative Tribunals. Fortunately, one aspect of the dispute was given a quietus by this Court recently by a judgment in Gaya Baksh Yadav v. Union of India. JT (1996) 5 SC 118 = 1996 (4) SCC 23 That was a dispute between directly recruited Appraisers of Customs and promotees belonging to that category.
12. Generally speaking, the cause for all these litigations appears to be that an impression has gained ground, unfortunate-ly, both among the Customs Officers and Central Excise Officers of the feeder cadre that the other side is encroaching upon its legitimate chances of promotion to Group ‘A’ posts. In other words, a feeling has come to stay that the other side is trying to benefit at its cost. This feeling, in the absence of statu-tory rules, has got complicated on account of the claims and counter-claims on both sides and also on account of its having been unresolved for quite a number of years. In this background unless there exists a spirit of accommodation and goodwill on the part of all concerned coupled with a sense of appreciation of the other party’s point of view a solution to satisfactory settlement of disputes may not be possible.
13. It is obvious that these matters are pending in this Court since 1988. When we heard the matter on the last occasion, the learned counsel appearing for the Union of India placed before us a communication from the Government of India, Ministry of Finance, Department of Revenue dated 8-6-1989 addressed to the first petitioner in WP (C) No. 306 of 1988 in his capacity as Secretary to the Federation and copies were marked to other similar Federations/Associations of officers concerned. Enclosed with the said communication, we find certain proposals for re-solving the disputes pending for a long time suggested by the Central Board of Revenue. While finalising the proposal, they have taken into account various aspects including the long pend-ency of the cases at various levels. The proposal, according to them, is equitable and fair and it takes care of legitimate interest of officers of all the three feeder categories.
14. We have gone through the above-mentioned proposal carefully and applied our mind and we find that the said proposal is fair, just and equitable in the facts and circumstances of the case. We also find that well-founded reasons are given for the ultimate solution given in the proposal. In order to further justify/strengthen the proposal and the ultimate ratio suggested, we made the chart given at the time of hearing by the learned counsel for the petitioners in WP (C) No. 306 of 1988 as an annexure to this judgment. A look at the chart will give a panoramic view of both the streams and would help for easy under-standing of the issues. None of the learned counsel appearing for the respondents in WP (C) No. 306 of 1988 pointed out any mistake in the chart. We, therefore, accept the said proposal.
15. It is seen from the communication dated 8-6-1989 that the proposal was forwarded to Federation/Associations concerned in order to enable them to arrive at a consensus and on arriving at such a consensus to report to this Court for disposal of these matters on that basis. Unfortunately, even after lapse of seven years, the parties could not arrive at a consensus and conse-quently, we have to step in to settle the issue. We may also point out that when the learned counsel for the Union of India handed over the proposal, none of the counsel appearing for the parties seriously objected to the terms of the proposal.
16. The relevant portions of the proposal are set out below:
“2.2 The seniority list of each of the above three feeder cadres is local and is maintained by each Collectorate/Custom House-wise. The all-India lists of the first two feeder cadres are prepared on the basis of continuous length of regular service in the grade, subject to maintenance of inter se sen-iority of each local cadre. The inter se ranking in the 3rd feeder cadre (that is, Customs Appraisers) was as per the ‘General Principles of determining seniority of various catego-ries of persons employed in Central Service’ (generally known as quota-rota principles) stipulated in the Ministry of Home Affairs OM No. 9/11/55-RPS dated 22-12-1959 (which were modi-fied by the Department of Personnel and Training OM No. 35014/2/80-Estt. (D) dated 7-9-1986), prior to the framing of the Indian Customs and Central Excise Service Group ‘A’ Rules, 1987. In these Rules of 1987, it has been provided vide sub-rule (2) of Rule 18 that –
(a) The vacancies to be filled by promotion shall be filled in accordance with the common seniority list of the three Group ‘B’ categories of the officers mentioned in sub-rule (1) above.
(b) The seniority of the Officers in Group ‘B’ feeder categories of service for elibility for promotion to group ‘A’ shall be determined on the basis of their regular length of service in their respective group ‘B’ categories, subject to the condition that the inter se seniority in each feeder category of service shall be maintained.
3.1 The question of determining the seniority of the Group ‘B’ Officers of the different feeder cadres in the quota for promotion to the grade of Assistant Collector/Senior Superin-tendent group ‘A’ has been the subject-matter of dispute in a number of cases, and thus, unfortunately, remained unresolved so far. There have been claims and counter-claims by the officers of the different feeder cadres.
Even at present, this dispute is the subject-matter of a number of writ petitions,
inter alia before the Hon’ble Supreme
Court.
3.2 Careful thought has once again been given to find a just and fair solution with a view to resolving this long outstanding dispute taking into account the reasonable pros-pects of promotion of officers of different feeder cadres. It is expected and hoped 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 be-tween Central Excise and Customs posts. Since the posts and persons manning them cannot be divided into fraction, the figures have been rounded to 67.33 so as to give the workable ratio of 2:1.
5.1 The proposal is that the promotee quota vacancies in the Group ‘A’ grade of Senior Superintendent/Assistant Collector may be filled from Central Excise and Customs Group ‘B’ Offic-ers in the ratio of 2:1, the number of vacancies falling to the share of Customs Group ‘B’ Officers being further apportioned between the two feeder cadres of customs – namely, Customs Appraisers and Customs (preventive) Superintendents in the ratio of their respective sanctioned strength (which, rounded off to workable ratio, comes to 2:1).
5.2 The need to further sub-divide the number of vacancies in the share of the Customs Group ‘B’ Officers between the Customs Appraisers and Customs (P) Superintendents arises because: (a) the two feeder cadres of Customs Appraisers and Customs (P) Superintendents are different and separate, (b) their seniority lists are separate, (c) whereas recruitment to Customs (P) Superintendents’ Grade is 100% by promotion, in the case of Customs Appraisers, it is 50% by direct recruitment and 50% by promotion, and (d) in terms of the General Principles governing determination of seniority laid down by the M.H.A./DOP&T, where there are more than one feeder cadres, the inter se seniority of each feeder cadre is required to be maintained while preparing the seniority list in the higher grade to which promotions are to be made, which is also the promotion in the 1987 Recruitment Rules of IC & CES Group ‘A’.
6.1 It is noticed that Central Excise group ‘B’ Officers get their promotion to Group ‘B’ after having put in, by and large, very long years of service in Group ‘C’ and, consequently, they are of much older age group as compared to Customs Appraisers. Therefore, placing the Superintendents of Central Excise first and placing Customs Officers thereafter, in the promotion panel would not present any material disadvantage to Customs Offic-ers. The age group of Superintendents of Central Excise is, by and large, such that they would retire before their turn for next promotion to the grade of Deputy Collector comes. As of now, there is hardly any Deputy Collector of Central Excise anywhere in India who is a promotee from Group ‘B’ in the Central Excise; Central Excise Officers would generally retire as Assistant Collectors, thereby increasing the chances of officers of younger age group from the Customs stream for their next promotion to the grade of Deputy Collector.
6.2 By 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 appointed 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’ sepa-rate consideration lists of Superintendents of Central Excise on the one hand, and Appraisers (both direct recruits and promotees) and Preventive Superintendents of Customs on the other hand, would be drawn up first on all-India basis. While Group ‘B’ Officers of the two feeder cadres – namely, Superin-tendents of Central Excise and Superintendents of Customs (P) – may be placed in their respective consideration lists on the basis of their continuous length of service in Group ‘B’, the Group ‘B’ Officers of the feeder cadre of Appraisers may be placed in their list on the basis of the principles of quota-rota as in the General Principles laid down from time to time in the instructions of MHA/DOP&T applicable to all the Services under the Union of India, circulated on 22-12-1959 and 7-2-1986.”
17. So far as inter se senority between direct recruit Apprais-ers and promotees is concerned, that should be finalised in the light of judgment of this Court in Gaya Baksh Yadav case(supra). To that extent, last portion in para 7 (underlined portion) in the above proposal stands modified.
18. As stated above, we find that the above modified proposal is just, fair and equitable and accordingly we direct the Union of India to amend the impugned Rules so far as Group ‘A’ Service is concerned. Review all post-1979 ad hoc promotions to the post of Senior Superintendent/Assistant Collector in the promotee quota in the light of the present proposal, redetermine the respective placement of the promotee officers in the combined Group ‘A’ seniority list and regularise accordingly the posts of ad hoc promotions.
19. In Group ‘A’ Service of the Customs and Excise Department, 50% of the cadre strength are filled by direct recruitment through Union Public Service Commission and the balance 50% are filled through promotion from Group ‘B’ cadres. Group ‘B’ Offic-ers when promoted to Group ‘A’ Service, obviously have no right to occupy more than 50% of their prescribed quota. It would, therefore, be incumbent upon the Government to rearrange or regu-larise the seniority list in Group ‘A’ Service keeping the inter se quota of the direct recruits and promotees intact and should not allow either to get any promotion in excess of their quota. The ad hoc promotions given to Group ‘B’ Officers in Group ‘A’ Service, pursuant to interim orders of his Court, would not, therefore, have any effect or prejudice the interests of right of the direct recruits of Group ‘A’ Service while rearranging the seniority in Group ‘A’ Service as indicated in the judgment. It would, therefore, be of necessity that the Government should rearrange their inter se seniority and promotions of the respec-tive direct recruits and promotees within their quota and conse-quential promotions in further higher services. Their seniority be arranged accordingly.
20. The writ petitions are accordingly disposed of.
21. In view of the disposal of main writ petitions, no further orders are necessary in the interlocutory applications including the contempt petition and they stand disposed of accordingly. There will be no order as to costs.
1. The petitioners in WPs (C) Nos. 306 and 1200 of 1988 chal-lenge the constitutionality of Rule 18(2) of the Indian Customs and Central Excise Service Group ‘A’ Rules, 1987 (hereinafter referred to as “the Rule”). The petitioners in WP (C) No. 1200 of 1988 additionally challenge the list of seniority published on 22-8-1988 pending disposal of WP (C) No. 306 of 1988. The peti-tioners in WP (C) No. 1093 of 1990 have prayed for the issue of writ of mandamus directing the respondents to make promotions strictly in accordance with law, namely, following Rules 19(2) and 20 of the 1987 Rules and based on the seniority list dated 12-7-1984 and also for certain other connected reliefs.
2. Common arguments were addressed by counsel on both sides and, therefore, these writ petitions and connected interlocutory applications are being disposed of by this common judgment.
3. Let us briefly state the background facts leading to the filing of these petitions.
4. The feeder cadre for promotion to Indian Customs and Central Excise, Group ‘A’ Service are:
(a) Superintendents of Central Excise, Group ‘B’;
(b) Superintendents of Customs (P),
Group ‘B’; and
(c) Customs Appraisers, Group ‘B’ –
(i) Recruited directly through UPSC, as
(a) Non-experts on the basis of All-India Civil Services Exam., and
(b) Experts on the basis of specific requisitions placed with the UPSC, and;
(ii) Promoted from the feeder cadres of Customs Examiner.
5. The Group ‘B’ posts in the feeder cadres (a) and (b) above (i.e. Superintendents of Central Excise and Superintendents of Customs (P)) are filled 100 per cent by promotion. Those in the feeder cadre (c) above (i.e. Customs Appraisers) are filled 50 per cent by direct recruitment consisting of (c)(i) above and 50 per cent by promotion consisting of (c)(ii) above.
6. Prior to the coming into force of the 1987 Rules, promotions to Group ‘A’ posts were given on the basis of the respective cadre strength of feeder categories. This manner of filling up the vacancies was challenged by a group of officers by filing Writ Petitions (Civil) Nos. 4532-33 of 1978 in this Court. Inter alia in the said writ petitions, the petitioners challenged promotions of 174 Superintendents of Central Excise and 10 Super-intendents of Customs (Preventive) on the basis of panel prepared by the DPC held in 1978. One of the main contentions raised in those writ petitions was that for promotion to Group ‘A’ Service, all eligible officers belonging to three Group ‘B’ feeder catego-ries should be arranged in one common consideration list based on their continued length of service in ‘B’ Group. It may be noted that when those writ petitions were pending, statutory rules were under contemplation and factually were not there. This Court gave directions in those writ petitions fixing a time for framing the statutory rules. When this Court was informed about the framing of the Rules, those writ petitions were disposed of on 23-9-1987 observing “the promotions now in dispute, will also be looked into with reference to the Rules and redisposed of in accordance with law”.
7. The petitioners in WP (C) No. 306 of 1988 were aggrieved by Rule 18 and hence they have challenged that Rule. Rule 18 is set out below:
“18. Appointment by promotion to Grade VI of service. –
(1) Appointment to the vacancies in Grade VI of the Service required to be filled by promotion under sub-rule 2(ii) of Rule 5 shall be by promotion of the following categories of Group ‘B’ Officers in the Central Excise, Customs and Narcotics Department who have completed three years’ regular Service in the Group ‘B’ posts of –
(a) Superintendents of Central Excise in the Central Excise Department and District Opium Officer or Intelligence Offi-cers or Superintendents (Executive) in the Narcotics Depart-ment.
(b) Appraisers of Customs in the Customs Department.
(c) Superintendents of Customs (Preventive) in the Customs Department.
(2)(a) The vacancies to be filled by promotion shall be fiiled in accordance with the common seniority list of the three Group ‘B’ categories of the officers mentioned in sub-rule (i) above.
(b) The seniority of the officers in Group ‘B’ feeder catego-ries of service for eligibility for promotion to Group ‘A’ shall be determined on the basis of their regular length of service in their respective Group ‘B’ categories, subject to the condition that the inter se seniority in each feeder cate-gory of service shall be maintained.
(3)(a) The promotion shall be made on the principle of selec-tion on merit basis.
(b) The Commission shall be consulted for making promotions to Grade VI.
8. The grievance of the petitioners in WPs (C) Nos. 306 and 1200 of 1988 is that having regard to their cadre strength and the time taken by them to reach Group ‘B’ status, they may not get their due share if Rule 18(2) is allowed to hold the field.
9. The petitioners in WPs (C) Nos. 4532-33 of 1978, moved this Court again by filing application for contempt for not complying with the order of this Court in not preparing a seniority list within the stipulated time. This Court extended the time and thereafter a common seniority list was prepared. Challenging that, WP (C) No. 1200 of 1988 came to be filed.
10. Thereafter, certain directions were given pending disposal of these writ petition. The petitioners in WP (C) Nos. 1093 of 1990 felt that unless they move this Court and project their point of view, their interests may be jeopardised. Hence they have filed WP (C) No. 1093 of 1990.
11. We have heard counsel on both sides. The question of deter-mination of seniority of Group ‘B’ Officers of the different feeder cadres in their quota of promotion to the entry grade of Assistant Collector/Senior Superintendent in the Indian Customs and Central Excise Service Group ‘A’ has been the subject-matter of dispute for quite some time. As noticed above, apart from moving this Court, a number of cases were pending before various High Courts and Central Administrative Tribunals. Fortunately, one aspect of the dispute was given a quietus by this Court recently by a judgment in Gaya Baksh Yadav v. Union of India. JT (1996) 5 SC 118 = 1996 (4) SCC 23 That was a dispute between directly recruited Appraisers of Customs and promotees belonging to that category.
12. Generally speaking, the cause for all these litigations appears to be that an impression has gained ground, unfortunate-ly, both among the Customs Officers and Central Excise Officers of the feeder cadre that the other side is encroaching upon its legitimate chances of promotion to Group ‘A’ posts. In other words, a feeling has come to stay that the other side is trying to benefit at its cost. This feeling, in the absence of statu-tory rules, has got complicated on account of the claims and counter-claims on both sides and also on account of its having been unresolved for quite a number of years. In this background unless there exists a spirit of accommodation and goodwill on the part of all concerned coupled with a sense of appreciation of the other party’s point of view a solution to satisfactory settlement of disputes may not be possible.
13. It is obvious that these matters are pending in this Court since 1988. When we heard the matter on the last occasion, the learned counsel appearing for the Union of India placed before us a communication from the Government of India, Ministry of Finance, Department of Revenue dated 8-6-1989 addressed to the first petitioner in WP (C) No. 306 of 1988 in his capacity as Secretary to the Federation and copies were marked to other similar Federations/Associations of officers concerned. Enclosed with the said communication, we find certain proposals for re-solving the disputes pending for a long time suggested by the Central Board of Revenue. While finalising the proposal, they have taken into account various aspects including the long pend-ency of the cases at various levels. The proposal, according to them, is equitable and fair and it takes care of legitimate interest of officers of all the three feeder categories.
14. We have gone through the above-mentioned proposal carefully and applied our mind and we find that the said proposal is fair, just and equitable in the facts and circumstances of the case. We also find that well-founded reasons are given for the ultimate solution given in the proposal. In order to further justify/strengthen the proposal and the ultimate ratio suggested, we made the chart given at the time of hearing by the learned counsel for the petitioners in WP (C) No. 306 of 1988 as an annexure to this judgment. A look at the chart will give a panoramic view of both the streams and would help for easy under-standing of the issues. None of the learned counsel appearing for the respondents in WP (C) No. 306 of 1988 pointed out any mistake in the chart. We, therefore, accept the said proposal.
15. It is seen from the communication dated 8-6-1989 that the proposal was forwarded to Federation/Associations concerned in order to enable them to arrive at a consensus and on arriving at such a consensus to report to this Court for disposal of these matters on that basis. Unfortunately, even after lapse of seven years, the parties could not arrive at a consensus and conse-quently, we have to step in to settle the issue. We may also point out that when the learned counsel for the Union of India handed over the proposal, none of the counsel appearing for the parties seriously objected to the terms of the proposal.
16. The relevant portions of the proposal are set out below:
“2.2 The seniority list of each of the above three feeder cadres is local and is maintained by each Collectorate/Custom House-wise. The all-India lists of the first two feeder cadres are prepared on the basis of continuous length of regular service in the grade, subject to maintenance of inter se sen-iority of each local cadre. The inter se ranking in the 3rd feeder cadre (that is, Customs Appraisers) was as per the ‘General Principles of determining seniority of various catego-ries of persons employed in Central Service’ (generally known as quota-rota principles) stipulated in the Ministry of Home Affairs OM No. 9/11/55-RPS dated 22-12-1959 (which were modi-fied by the Department of Personnel and Training OM No. 35014/2/80-Estt. (D) dated 7-9-1986), prior to the framing of the Indian Customs and Central Excise Service Group ‘A’ Rules, 1987. In these Rules of 1987, it has been provided vide sub-rule (2) of Rule 18 that –
(a) The vacancies to be filled by promotion shall be filled in accordance with the common seniority list of the three Group ‘B’ categories of the officers mentioned in sub-rule (1) above.
(b) The seniority of the Officers in Group ‘B’ feeder categories of service for elibility for promotion to group ‘A’ shall be determined on the basis of their regular length of service in their respective group ‘B’ categories, subject to the condition that the inter se seniority in each feeder category of service shall be maintained.
3.1 The question of determining the seniority of the Group ‘B’ Officers of the different feeder cadres in the quota for promotion to the grade of Assistant Collector/Senior Superin-tendent group ‘A’ has been the subject-matter of dispute in a number of cases, and thus, unfortunately, remained unresolved so far. There have been claims and counter-claims by the officers of the different feeder cadres.
Even at present, this dispute is the subject-matter of a number of writ petitions,
inter alia before the Hon’ble Supreme
Court.
3.2 Careful thought has once again been given to find a just and fair solution with a view to resolving this long outstanding dispute taking into account the reasonable pros-pects of promotion of officers of different feeder cadres. It is expected and hoped 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 be-tween Central Excise and Customs posts. Since the posts and persons manning them cannot be divided into fraction, the figures have been rounded to 67.33 so as to give the workable ratio of 2:1.
5.1 The proposal is that the promotee quota vacancies in the Group ‘A’ grade of Senior Superintendent/Assistant Collector may be filled from Central Excise and Customs Group ‘B’ Offic-ers in the ratio of 2:1, the number of vacancies falling to the share of Customs Group ‘B’ Officers being further apportioned between the two feeder cadres of customs – namely, Customs Appraisers and Customs (preventive) Superintendents in the ratio of their respective sanctioned strength (which, rounded off to workable ratio, comes to 2:1).
5.2 The need to further sub-divide the number of vacancies in the share of the Customs Group ‘B’ Officers between the Customs Appraisers and Customs (P) Superintendents arises because: (a) the two feeder cadres of Customs Appraisers and Customs (P) Superintendents are different and separate, (b) their seniority lists are separate, (c) whereas recruitment to Customs (P) Superintendents’ Grade is 100% by promotion, in the case of Customs Appraisers, it is 50% by direct recruitment and 50% by promotion, and (d) in terms of the General Principles governing determination of seniority laid down by the M.H.A./DOP&T, where there are more than one feeder cadres, the inter se seniority of each feeder cadre is required to be maintained while preparing the seniority list in the higher grade to which promotions are to be made, which is also the promotion in the 1987 Recruitment Rules of IC & CES Group ‘A’.
6.1 It is noticed that Central Excise group ‘B’ Officers get their promotion to Group ‘B’ after having put in, by and large, very long years of service in Group ‘C’ and, consequently, they are of much older age group as compared to Customs Appraisers. Therefore, placing the Superintendents of Central Excise first and placing Customs Officers thereafter, in the promotion panel would not present any material disadvantage to Customs Offic-ers. The age group of Superintendents of Central Excise is, by and large, such that they would retire before their turn for next promotion to the grade of Deputy Collector comes. As of now, there is hardly any Deputy Collector of Central Excise anywhere in India who is a promotee from Group ‘B’ in the Central Excise; Central Excise Officers would generally retire as Assistant Collectors, thereby increasing the chances of officers of younger age group from the Customs stream for their next promotion to the grade of Deputy Collector.
6.2 By 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 appointed 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’ sepa-rate consideration lists of Superintendents of Central Excise on the one hand, and Appraisers (both direct recruits and promotees) and Preventive Superintendents of Customs on the other hand, would be drawn up first on all-India basis. While Group ‘B’ Officers of the two feeder cadres – namely, Superin-tendents of Central Excise and Superintendents of Customs (P) – may be placed in their respective consideration lists on the basis of their continuous length of service in Group ‘B’, the Group ‘B’ Officers of the feeder cadre of Appraisers may be placed in their list on the basis of the principles of quota-rota as in the General Principles laid down from time to time in the instructions of MHA/DOP&T applicable to all the Services under the Union of India, circulated on 22-12-1959 and 7-2-1986.”
17. So far as inter se senority between direct recruit Apprais-ers and promotees is concerned, that should be finalised in the light of judgment of this Court in Gaya Baksh Yadav case(supra). To that extent, last portion in para 7 (underlined portion) in the above proposal stands modified.
18. As stated above, we find that the above modified proposal is just, fair and equitable and accordingly we direct the Union of India to amend the impugned Rules so far as Group ‘A’ Service is concerned. Review all post-1979 ad hoc promotions to the post of Senior Superintendent/Assistant Collector in the promotee quota in the light of the present proposal, redetermine the respective placement of the promotee officers in the combined Group ‘A’ seniority list and regularise accordingly the posts of ad hoc promotions.
19. In Group ‘A’ Service of the Customs and Excise Department, 50% of the cadre strength are filled by direct recruitment through Union Public Service Commission and the balance 50% are filled through promotion from Group ‘B’ cadres. Group ‘B’ Offic-ers when promoted to Group ‘A’ Service, obviously have no right to occupy more than 50% of their prescribed quota. It would, therefore, be incumbent upon the Government to rearrange or regu-larise the seniority list in Group ‘A’ Service keeping the inter se quota of the direct recruits and promotees intact and should not allow either to get any promotion in excess of their quota. The ad hoc promotions given to Group ‘B’ Officers in Group ‘A’ Service, pursuant to interim orders of his Court, would not, therefore, have any effect or prejudice the interests of right of the direct recruits of Group ‘A’ Service while rearranging the seniority in Group ‘A’ Service as indicated in the judgment. It would, therefore, be of necessity that the Government should rearrange their inter se seniority and promotions of the respec-tive direct recruits and promotees within their quota and conse-quential promotions in further higher services. Their seniority be arranged accordingly.
20. The writ petitions are accordingly disposed of.
21. In view of the disposal of main writ petitions, no further orders are necessary in the interlocutory applications including the contempt petition and they stand disposed of accordingly. There will be no order as to costs.
