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Madras HC Holds Promotees Cannot Get Seniority on Basis of Continuous Officiation from Date of Ad-hoc Promotion, Over Direct Recruit Appraisers Appointed Subsequently

CHENNAI, JUNE 1, 2006: THE issue of seniority has been plagued with litigations and continues to walk the corridors of judiciary!!! This time around the venue being the Madras High Court with the question of seniority in the cadre of Appraisers in Custom House, Chennai.

Before proceeding any further, let us rummage a bit of interesting history of this perennial fight between direct recruits and the promotees which dates back four decades and more -

The Supreme Court in MERVYN COUTINHO v. COLLECTOR OF CUSTOMS (2005-HRIOL-02-SC-Service) had held that the quota system was operating rotationally and seniority should be followed on the basis of quota and rotation, irrespective of continuous length of service of the promotees. The Apex Court at such stage was concerned with the Rules and Procedure relating to recruitment and seniority of direct recruits and promotees on the basis of executive instructions.

Then came the Customs Appraisers Service, Class II Recruitment Rules, 1961. No particular quota was fixed for the promotees therein but the rules provided that at least 50% of the vacancies were to be filled up by the direct recruits and the rest could be filled up from other sources including promotion. As expected, the effect of 1961 Rules on the question of seniority was litigated right upto the Apex Court paving way for the judgment in GAYA BAKSH YADAV v. UNION OF INDIA AND OTHERS (2005-HRIOL-01-SC-Service) directing that a fresh All India Combined List of Appraisers be prepared on the basis of continuous officiation in the post of Appraiser appointed on and from the date of the said 1961 Rules It was also categorically held therein that for the appraisers appointed prior to that date, the rule of MERVYN COUTINHO (supra ) would be the basis to work out the inter se seniority of the incumbents to operate the quota and rotational rule.

The 1961 Rules were superseded in 1988 by the Department of Revenue (Customs Appraiser) Recruitment Rules, 1988. The said 1988 Recruitment Rules, which is still in force as on date, provides for recruitment of 50% through direct recruitment and 50% by promotion. However, the said Rules does not contain any specific provision relating to fixation of seniority and does the address the issue as to whether seniority has to be fixed by adopting the principle of quota as well as rotation.

The issue of appraisers not promoted on a regular basis against the promotion quota, but holding posts as Customs Appraisers in the quota meant for direct recruits, on ad hoc basis came up for litigation before the Madras Bench of the CAT. It was held therein that such promotions cannot be equated with regular promotions made under the 1961 recruitment rules; that such promotion would not confer on them any right to be regularly promoted as Customs Appraisers under the 1961 Recruitment Rules and that all ad hoc promotions would be subject to periodical reviews. Expectedly, the said order of Tribunal was challenged before the Apex Court. However, the said Order of Madras Bench of CAT was not interfered by the Supreme Court especially in light of the following observations of the Tribunal therein:

"However, we make it clear that on the basis of a review which may be conducted by the respondents, if at all it comes to notice of the respondents that the applicants had in fact been functioning on ad hoc basis against posts not meant for direct recruitment quota, but meant as promotion quota, their cases will have to be considered as per the 1961 Recruitment rules, which were applicable to vacancies which existed upto 31.12.1987."

What next!!! The Union of India purported to issue a seniority list of direct recruits and promotees appointed / promoted upto 31.12.1 987 vide letter dated 2.11.1997. In such letter, it was also indicated that All India Seniority list of Direct Recruit and Promotee Customs Appraiser appointed / promoted after coming into force of Customs Appraiser Recruitment Rule, 1988 with effect from 1.1.1988 will follow. In All India Combined seniority/consideration list of Customs Appraiser relating to period prior to 31.12.1987, Serial Nos.1 to 72 were apparently the persons who had been appointed/promoted as Customs Appraisers prior to coming into force of Customs Appraiser Service, Class-II Recruitment Rule, 1961 and such seniority of those 72 Appraisers had been fixed on quota-rota basis as per Mervyn Coutinhos case. Serial Nos.73 to 1043 purported to indicate seniority of promotees and direct recruits, apparently on the basis of the directions contained in the decision of the Supreme Court in Yadav’s case. The direct recruits who were appointed between the period 1987 and 1994 and were shown junior to such promotees, who were promoted on ad hoc basis in March, 1987 but made regular only after 1994 and 1995 by fixing their seniority from the date of their ad hoc promotion filed representations to the effect that such ad hoc promotees should not be treated as senior to the direct recruits. The Madras Bench of CAT by its judgment dated 17.10.2000 concluded that the original application filed by the direct recruits was barred by limitation and also rejected the contention of the direct recruits by relying upon the decision of the Supreme Court in Gaya Baksh Yadavs case. The said decision of the Madras CAT was challenged by the direct recruits before Hon'ble Madras High Court.

Not to be left behind, similar dispute was raised by the direct recruits posted in Bombay Custom House before the Bombay Bench of the Tribunal. Referring to the observation of the Supreme Court in Gaya Baksh Yadavs case to the effect that allocation of at least 50% posts in favour of the direct recruits must be ensured at all times and direct recruits and promotee Appraisers will be entitled to placement in the joint seniority list on the basis of their continuous officiation, Bombay Bench of CAT relied upon the decision of the Supreme Court in the case of All India Federation of Central Excise V. Union of India [(1997 SCC (L & S) 159] and held that the promotees cannot take advantage of any promotion beyond the percentage applicable to them as per 1961 Rules and such promotion beyond the prescribed limit should be considered as promotion de hors the Rules. It was further concluded that the persons promoted on ad hoc basis cannot claim the benefit of seniority. Ultimately, the seniority list dated 12.11.1997 was quashed and Union of India was directed to review positions of those who had been promoted beyond 50% of their quota on ad hoc basis.

No points for guessing, what happens next - As always, writ petition before Bombay High Court!!!

Meanwhile, in exercise of the directions so issued by the Bombay Bench of the Tribunal, another draft list of seniority was brought out wherein the position of some of the ad hoc promotees was pushed down and some of the direct recruits were shown as senior. The principle of seniority on the basis of rotation was apparently followed. On the issuance of such draft seniority list, apprehending that further promotion to the next promotional post from the Appraiser would take place on the basis of such draft seniority list, two of the ad hoc promotees who have been regularised subsequently and the one promoted for the first time on regular basis approached the Madras Bench of the Tribunal with the prayer that no promotion should be effected on the basis of the draft seniority list and promotion, if any, should be done on the basis of seniority list dated 12.11.1997.

The applications filed by these three promotees were disposed by the Madras Bench of the Tribunal by observing that the Madras Bench of the Tribunal is bound by the decision of the Bombay Bench of the Tribunal and since the matter was pending in the Bombay High Court, the promotees have to pursue their remedy either in the Bombay High Court or await for the final outcome of the litigation.

Next scene - Three writ petitions against the said Order of Madras Bench of CAT before the Madras High Court. The writ petition filed by direct recruits against the Order dated 17.10.2000 of Madras Bench of CAT was also simultaneously taken up by Madras High Court.

And thus, we are back to the present!!! The main contention raised by the promotees before the Madras High Court was that in view of the decision of the Supreme Court in Gaya Baksh Yadavs case, seniority had been rightly counted from the date of continuous officiation and the seniority list thus finalised in November, 1997 was correct and, therefore, there was no occasion to issue a further draft seniority list. It was further contended that at any rate no promotion should be effected on the basis of the draft seniority list by ignoring the earlier seniority list, which was final.

In a detailed and well reasoned order, Madras High Court in 2006-HRIOL-04-HC-Mad-Service has held that:-

• Promotees who had been regularised by December, 1987 should be in the seniority list on the basis of continuous officiation.

• Ad hoc promotees within permissible 50%, who were regularised after 1988 Rules came into force can claim seniority from the date of their ad hoc promotion, provided their selection was otherwise in accordance with the 1961 Rules. However, ad hoc promotees promoted before December, 1987 in excess of maximum permissible 50% of the post, on their subsequent regularisation after 1988 Rules came into force can claim seniority from the date of regular promotion and not from the date of their ad hoc promotion.

• The seniority of a direct recruit can be counted from the date of appointment.

• There is nothing in 1988 Rules to indicate that seniority has to be fixed on the basis of principle of rotation. Therefore, to the extent, a particular appointment is within the quota earmarked in 1988 Rules seniority has to be counted from the date of the substantive appointment and if there has been any appointment in excess of the quota for a particular year, for a particular category, obviously such a person must be pushed down and should be adjusted against the quota of the category concerned during the subsequent years.

• Seniority need not be on the basis of rotation unless there is any specific instruction to that effect validly issued after coming into force of 1988 Rules and the Department cannot fall back on the instructions which had been issued before 1961 or before 1987 as it cannot be said that such instructions are in vogue even after new Rules have come into force.

The main contention of the promotees in the Writ Petitions before Hon'ble Madras High Court was that on the basis of continuous officiation from the date of ad hoc promotion they should be considered as seniors to the direct recruits who have been appointed subsequently. This contention has been held to be not acceptable to the extent, any promotee who had been promoted before December, 1987 within the maximum 50% available for the promotees, his seniority can be counted from the date of continuous officiation, whereas, a promotee promoted on ad hoc basis before December, 1987 in excess of 50% and regularised against a regular vacancy after 1988 Rules came into force, cannot claim seniority. Hon'ble High Court has also categorically held that in view of the specific stand of the Union of India that it is only contemplating to give ad hoc promotion on the basis of the draft seniority list, the promotees cannot be said to be aggrieved as the question of regular promotion would obviously depend upon subsequent finalisation of the seniority list. It was further held that while giving any such promotion, the Union of India should make it clear that the promotion is ad hoc subject to finalisation of the seniority list. Subject to these observations, the three writ petitions were disposed off. Writ Petition filed by the direct recruits was allowed.

So finally is it the end of the saga? - May be, not yet - Too early to hazard a guess, one may say!!!

Or put up in another manner, can the Apex Court be left unvisited this time around, in this perennial fight between the colonial cousins??

Before parting - Peer's Law states “The solution to a problem changes the nature of the problem ... “. How right in the instant case!!! Every solution to this problem has only managed to change the nature of the problem - the problem continues!!!

One may be compelled to ask "Is this Seniority issue worth such a tug of war after all???" Ask the Inspectors of Mumbai Central Excise Commissionerate of the 85 batch still haplessly and hopelessly dreaming for promotion to be Superintendent for name sake atleast !!!! And what about the 1993-94 batch of Inspectors - Once an Inspector, always so!!!