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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.

J U D G M E N T

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

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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.

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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

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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,

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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,

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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

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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.

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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.