Case: Mervyn Continho &amp; Others Vs. Collector of Customs, Bombay &amp; Others

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.

Reasoning:
6. Before we come to what has been done in 1963 in the matter of fixing seniority of Appraisers we may refer to two other circulars. The first is a circular of the Board issued in 1953. That circular in our opinion has nothing to do with the question of fixing of seniority as between direct recruits and promotees. Its main value is that it emphasises that the proportion fixed for direct recruits and promotees should be rigidly maintained. It also directs that promotion to higher grades should be made on the basis of a combined seniority list of both direct recruits and promotees. Then there is another circular of 1955. That circular again emphasises the rotational system and says that it has been decided that inter se seniority of direct recruits and promotees in the grade of Appraisers should be determined in the order in which the vacancy in that grade is filled by a direct recruit or by a promotee according to the quota fixed for such appointments. Stress has been laid on behalf of the petitioners on the words is filled in this circular and it is urged that this means that until the direct recruit is actually recruited and fills the vacancy meant for a direct recruit he cannot get seniority from before the date he fills the vacancy merely on the ground of rotational system of fixing seniority. We do not think that this is the meaning of the words "is filled" used in this circular. We have already said that this circular also emphasises the rotational system in the matter of fixing of seniority and all that it means is that vacancies should be filled either by direct recruits or by promotees according to the quota fixed for such appointments.7. This brings us back to the circular of 1959 and the main question in that connection is the meaning to be assigned to the words "seniority determined accordingly" in the explanation to principle 6 relating to relative seniority of direct recruits and promotees. As we read these words their plain meaning is that seniority as between direct recruits and promotees should be determined in accordance with the roster which has also been specified namely, one promotee followed by one direct recruit and so on. Where therefore recruitment to a cadre is from two sources namely direct recruits and promotees and rotational system is in force, seniority has to be fixed as provided in the explanation by alternately fixing a promotee and a direct recruit in the seniority list. We do not see any violation of the principle of equality of opportunity enshrined in Art. 16 (1) by following the rotational system of fixing seniority in a cadre half of which consists of direct recruits and the other half of promotees, and the rotational system by itself working in this way cannot be said to deny equality of opportunity in Government service. The anomalies which have been referred to in the petition arise not on account of there being anything opposed to equality of opportunity in Government service by the use of the rotational system, they arise out of the fortuitous circumstance that in this particular service of Appraisers, for one reason or another, direct recruitment has fallen short of the quota fixed for it. It is merely because of this fortuitous circumstance that anomalies to which reference has been made in the petition have arisen. There is no doubt that if direct recruitment had kept pace with the quota fixed therefor there would have been no anomalies in fixing the seniority list.The question, therefore, narrows down to this: Can it be said that there is denial of equality of opportunity which arises out of the fortuitous circumstance and which is not a vice inherent in the rotational system? We are not prepared to say that the rotational system of fixing seniority itself offends equality of opportunity in Government service. Any anomalies which may have resulted on account of insufficient recruitment of direct recruits in the past cannot in our opinion be a ground for striking down the rotational system, which, as we have said, does not itself amount to denial of equality of opportunity in the matter of employment in Government service. It is regrettable that some anomalies have appeared because of insufficient recruitment of direct recruits in the past in this particular service. But that in our opinion can be no reason for striking down the seniority list prepared in 1963 which is undoubtedly in strict accordance with the rotational system based on the fixed quotas for recruitment of direct recruits andorder of the Board of 1963 on the basis of which the impugned seniority list of Appraisers has been prepared clearly lays down that "the principle of determination of seniority of the direct recruits and the promotees inter se in the prescribed ratio of l: l should be worked out." This order is in accordance with the circular of 1959 and as we have said already there is no inherent vice in the principle of fixing seniority by rotation in a case where a service is composed in fixed proportion of direct recruits anddo we think that this system is on a par with the carry forward rule which was struck down by this Court in T. Devadasan v. Union of India, AIR 1964 SC 179 , and on which strong reliance is placed on behalf of the petitioners. In the case of the carry forward rule certain quota is fixed annually for a certain class of persons and it is carried forward from year to year This is very different from a case where a service is divided into two parts and there are two sources of recruitment, one of promotion and the other by direct recruitment. In such a case, the whole cadre of a particular service is divided into two parts and there is no question of carrying anything forward from year to year in the matter of annual intake. The basis on which the carry-forward rule was struck down by this Court does not, therefore, apply to a case where the whole cadre of a service is divided in certain fixed proportions between promotees and direct recruits. The petitioners, therefore, can get no assistance from Devadasans case, AIR 1964 SC 179 . The petition must, therefore, fail so far as seniority of appraisers isare of opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is, therefore, no question of any quota being reserved from two sources in their cases.The rotational system cannot, therefore, apply when there is only one source of recruitment and not two sources of recruitment. In a case, therefore, where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. In so far, therefore, as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers grade when they are promoted to the Principal Appraisers grade, it is clearly denying equality of opportunity to Appraisers which is the only source of recruitment to the Principal Appraisers grade. There is only one source from which the Principal Appraiser are drawn, namely, Appraisers, the promotion being by selection and five years experience as Appraiser is the minimum qualification. Subject to the above all Appraiser selected for the post of Principal Appraisers must be treated equally. That means they will rank in seniority from the date of their continuous acting in the Principal Appraisers grade subject of course to the right of Government to revert any of them who have not been found fit during the period of probation. But if they are found fit after the period of probation they rank in seniority from the date they have acted continuously as Principal Appraisers whether they are promotees or direct recruits.The present method by which the respondent puts a direct recruit from the grade of Appraiser though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment, namely, from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraiser must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers grade is a direct recruit or a promotee. This will as we have already said be subject to the Government right to revert any one promoted as a Principal Appraiser if he is not found fit for the post during the period of probation. The petition therefore, will have to be allowed with respect to the method by which seniority is fixed in the grade of Principal Appraisers. That method denies equality of opportunity of employment to the Appraisers who are the only source of recruitment to the grade of Principal Appraisers. What the impugned method seeks to do is to introduce a kind of reservation in respect of the two categories of Appraisers from which the promotions are made, and that cannot be done when the source of promotion is one.