Case: Govind Dattatray Kelkar &amp; Ors Vs. Chief Controller Of Imports &amp; Exports&amp; Ors

2. The relevant facts may briefly be stated. The Imports and Exports organization came into existence during the Second World War. It was expected to be a temporary organization and, therefore, appointments to the various categories in the said organization were made on an ad hoc basis. In the year 1949 it comprised the following posts: Chief Controller, Joint Chief Controller, Deputy Chief Controller, Assistant Chief Controller of Imports and Exports, Executive Officers, Licensing Officers and Junior Licensing Officers. Of these the last 3 were Class II posts and the rest were Class I posts. Subsequently, the posts of Assistant Chief Controllers were redesignated as "Controllers" and the posts of Executive Officers, Licensing Officers and Junior Licensing Officers were converted into one category, namely, Assistant Controllers, Class II. In the year 1949 the appointment of the said officers and their promotions were governed by the principles enunciated in the memorandum No. 30/44-48-Appts, dated June 22, 1949 issued by the Government of India (Ministry of Home Affairs). But, as no rules were prescribed and the appointments were made on ad hoc basis, the Union Public Service Commission rightly raised objections; and after protracted correspondence it was agreed in 1955 that the appointments made by the Ministry during 1947-1951 should be regularized on the basis of the record of work and that in regard to subsequent appointments there should be a ratio of 25 per cent for the departmental promoters and 75 per cent for direct recruits. Ultimately, on June 13 1962, the said arrangement was embodied in the recruitment rules made by the Government of India under Article 309 of the Constitution3. There are three main categories of employees in the said department, namely, (i) those appointed prior to January 1, 1952; (ii) those appointed between January 1, 1952 and November 30, 1955, and (iii) those appointed after November 30, 1955. We are now concerned in this petition with those appointed after November 30, 1955. Assistant Controllers, Class II, are appointed from two sources, namely, by promotion from the lower cadre and by direct recruitment. Nothing need be said in this case about the first category, for their appointments are not in question. In the second category there were 76 posts available for recruitment. On the agreed formula of 25 per cent for the department and 75 per cent for direct recruitment 19 posts would go to the departmental candidates and 57 posts to the direct recruits4. In December, 1955, pursuant to an advertisement issued by the Union: Public Service Commission, 57 Assistant Controllers were appointed by direct recruitment. After consulting the said Commission, the Government of India fixed the seniority of the Assistant Controllers and prepared a seniority list dated November 30, 19615. At this stage it may be mentioned that 76 posts to which recruitment was made were temporarily manned by departmental promotees. The effect of the new recruitment was that their position of seniority was disturbed by reason of the application of the said ratio of 25 per cent for the departmental candidates and 75 per cent for the direct recruits and by reason of the fact that the direct recruits took precedence over some of them. On November 30, 1961, the Government of India prepared a new seniority list and the said seniority list is given as Annexure F to the petition. The said list comprises three categories of officers: the first category of 47 officers were those that were appointed before January 1, 1952, and whose appointments had been regularized by the Union Public Service Commission; the second category of officers are 76 in number comprising of departmental promotees and the nominees of the Union Public Service Commission in the ratio of 25: 75 respectively as laid down in the recruitment rules, and the third category are departmental promotees and the nominees of the Union Public Service Commission arranged on the principle of rotation in the ratio of 1: 3. But, in the second category with which we are now concerned, it appears that the Departmental Promotion Committee considered the cases of Assistant Controllers who were working on an ad hoc basis and selected, on the basis of merit 25 officers out of whom 19 were adjusted against the said quota of 25 per cent; and these 19 officers were placed above the direct recruits. Serial Nos. 48 to 66 in the list are promotees so selected by the Departmental Promotion Committee, and serial Nos. 68 to 123 in the said list are direct recruits6. The first petitioner joined the office of the 3rd respondent, the Joint Controller of Imports and Exports, Bombay, on April 29, 1946, as an Appraiser. He was promoted to the post of Assistant Controller with effect from March 31, 1956: that is to say, he has been holding the post for a period of about 9 years at the time he filed the petition7. The second petitioner joined the said office on March 5, 1941 and in due course he was promoted to the post of Assistant Controller with effect from April 1, 1956. He was also holding the said post for a period of about 9 years at the time of filing the petition8. The third petitioner joined the said office on May 8,1945 as a B Grade Clerk and was promoted to the post of Assistant Controller with effect from September 4, 1956. He had been holding the said post for about 81/2 years at the time of filing the petition9. The 4th petitioner joined the said office on July 28, 1943 as a lower division clerk and in due course he was promoted as Assistant Controller with effect from November 1, 1961. But he was reverted to the post of Section Head on June 14, 196310. The effect of the new seniority list prepared on November 30, 1961 is that, as the said ratio was applied and as the direct recruits were put above the petitioners and others similarly situated, the 1st petitioner, who should have been shown at No. 67 in the list but for the new recruitment, was shown at No. 124; the 2nd petitioner, who should have been shown at No. 69, was put at No. 132; the 3rd petitioner, who should have been above all direct recruits, was not shown in the seniority list at all, and the 4th petitioner, who should have been above all direct recruits appointed after November 1, 1961 and below the departmental promotees appointed prior to November 1, 1961, was not shown in the seniority list at all. The petitioners allege that the said order dated November 30, 1961 fixing the seniority violated Article 16 of the Constitution and that they should have been placed above the direct recruits.

Reasoning:
As regards costs, we do not think that this is a fit case for awarding costs to the State, for, as no rules under Article 309 of the Constitution were made in time and as appointments were made on an ad hoc basis without consulting the Union Public Service Commission, a lot of confusion was introduced in the administrative set up, with the result that persons who acted as Assistant Controllers for a number of years had to he superseded by direct recruits. Whether another formula could have been more equitably evolved is not for us to say, but the fact remains that the petitioners cannot he blamed for coming to court for getting their rights settled one way or other.