PETITIONER:
ALL INDIA FEDERATION OF CENTRAL EXCISE ETC.
Vs.
RESPONDENT:
THE UNION OF INDIA & ORS.
DATE OF JUDGMENT: 22/11/1996
BENCH:
K. RAMASWAMY, K, VENKATASWAMY, G.B. PATTANAIK
ACT
HEADNOTE
JUDGMENT
THE 22ND DAY OF NOVEMBER, 1996 Present:
Hon’ble Mr. Justice K. Ramaswamy
Hon’ble Mr. Justice M. Venkataswami
Hon’ble Mr. Justice G.B. Pattanaik
Yogeshwar Prasad, P.P. Malhotra, K. Madhaya Reddy, Sr. Advs., (K.T. Anantharaman) Adv. for Khaitan & Co., ms. Rachna Gupta, P.K. Bajaj, (R. Vasudevan) Adv. (NP), A.K. Srivastava, P. Parmeshwaran, V.J. Francis, Ms. C. Ramamurthy, L.R. Singh, Ms. Anu Mohla, K.K. Mohan, S.K. Mehta, Probir Mitra, M.A. Krishnamoorthy, V. Balachandran, Advs. with them for the appearing parties.
JUDGMENT
The following Judgment of the Court was delivered:
The Group ‘B’ posts in the feeder-cadres (a) and (b) above (i.e. Superintendents of Central Excise and Superintendents of Customs (P) are filed 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.
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 Petition (Civil) Nos.4532-33/78 in this Court. Inter alia in the said Writ Petitions, the petitioner challenged promotions of 174 Superintendents of Central Excise and 10 Superintendents 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 categories 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 re-disposed of in accordance with law‘.
The petitioners in W.P.(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 filed by promotion under sub-
rule 2(ii) of rules 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 of Intelligence Officers of
Superintendents (Executive) in the
Narcotics Department.
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 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 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
category service shall be
maintained.
(3) (a) The promotion shall be made
on the principle of selection on
merit basis.
(b) The Commission shall be
consulted for making promotions to
Grade VI.
The arrevance of the petitioners in W.P.(C) No.306 and 1200/83 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 and field.
The petitioners in W.P.(C) Nos.4532-33/78, 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, W.P.(C) No.1200/83 came to be filed.
Thereafter, certain directions were given pending disposal of these writ petitions. The petitioners in W.P.(C) No.1093/90 felt that unless they move this court and project their point of view, their interests may be jeopardised. Hence they have filed W.P.(C) No.1093/90.
We have heard counsel on both sides. The question of determination 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 sometime. 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 quietous by this Court recently by a judgment dated 8.5.1996 in Gaya Baksh Yadav vs. Union of India and Others (JT (1996) 5 SC 118). That was a dispute between directly recruited Appraisers of Customs and promotees belonging to that category.
Generally speaking, the cause for all these litigations appears to be that an impression has gained ground, unfortunately, 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 statutory 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.
It is obvious that these matters are pending in this Court since 1988. When we heard the matter on the last occasion, 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 W.P.(C) No.306/88 in his capacity as Secretary to the Federation and copies were marked to other similar Federations/Associations of concerned officers. Enclosed with the said communication, we find certain proposals for resolving the disputes pending for a long time suggested by the Central Board or Revenue. While finalising the proposal, they have taken into account various aspects including the long pendency 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.
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 make the chart given at the time of hearing by the learned counsel for the petitioners in W.P. (C) No.306/88 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 understanding of the issues. None of the learned counsel appearing for the respondents in W.P. (C) No.306/88 pointed out any mistake in the chart. We, therefor, accept the said proposal.
It is seen from the communication dated 8.6.1989 that the proposal was forwarded to Federations/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 consequently, 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.
The relevant portions of the proposal are set out below :-
"2.2 The seniority list of each of
the above three feder-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
seniority 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
categories of persons employed in
Central Service (generally known as
quota-rota principles) stipulated
in the Ministry of Home Affairs
O.M. No.9/11/55-RPS dated
22.12.1959 (which were modified by
the Department of Personnel and
Training O.M. 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 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
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
Superintendent 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 a fair
solution with a view to resolving
this long outstanding dispute
taking into account the reasonable
prospects 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 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 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’ Officers 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
Appraiser 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% 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 Officers. 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 promote
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 Directed recruit Customs
Appraisers. Therefore, a reasonable
placement in the combined all-India
seniority list way 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)
Superintendent 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 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, Superintendents 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 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"
So far as inter se seniority between direct recruit Appraisers and promotees is concerned, that should be finalised in the light of judgment of this Court in Gaya Baksh Yadav’s case (supra). To that extent, last portion in para 7 (underlined portion) in the above proposal stands modified.
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.
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’ officers 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 re-arrange or regularise 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 this Court, would not, therefore, have any effect or prejudice the interests or rights of the direct recruits of Group ‘A’ Service while re-arranging the seniority in Group ‘A’ Service as indicated in the judgment. It would, therefore, be of necessity that the Government should re-arrange their inter-se seniority and promotions of the respective direct recruits and promotees within their quota and consequential promotions in further higher services. Their seniority arranged accordingly.
The Writ Petitions are accordingly disposed of.
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.