# B.S. MURTHY & ORS v. A. RAVINDER SINGH & ORS

- **Citation:** [2022] 19 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2022-03-15
- **Case number:** Civil Appeal No. 3968 of 2009
- **Bench:** Uday Umesh Lalit, Hemant Gupta, S. Ravindra Bhat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-s-murthy-ors-v-a-ravinder-singh-ors-36223
- **Pages:** 41

## Headnote

Service Law - Central Excise and Land Customs Group-C
Recruitment Rules, 1979 - Determination of inter-se seniority -
Recruitment to the post of Inspectors of Central Excise was from
two channels : Direct recruitments and promotion from in service
candidates - The ratio between direct recruit inspectors (DRI) and
promoted inspector (PRI) was 3:1 - The inter se seniority was
governed by an office memo dated 22.12.1959 - In view of the
experience, the 1959 OM was changed, another OM was issued,
on 07.02.1986 - Five promoters promoted in 1983-1984 filed an
application challenging the inter se seniority list dated 08.07.1985
on the ground that the length of their continuous service was not
taken into consideration while fixing seniority - CAT directed the
department to recast seniority in accordance with the 1986 OM -
CAT referred the batch of matters to a Full Bench, on the issue as to
whether 1986 OM was prospective or retrospective - Full Bench by
its order clarified that 1986 OM only operated prospectively from
1.3.1986 - Based on the findings of tribunal seniority list of 1993
was quashed - The cadre controlling authority circulated a tentative
seniority list on 01.01.2022 which was finally published on 7.8.2002
- The list was challenged by PRI and the CAT allowed the
applications and set aside the seniority list - Central government
and DRI filed writ petition before the High Court - High court held
that the vacancy register had no relevance for the purpose of
promotion of in-service candidates and such promotions could be
only in proportion to the quota, based on indents placed by the
department with staff selection Board for direct recruitment - Length
of continuous service cannot be counted for the purpose of seniority
- It upheld the impugned seniority list dated 22.07.2002 - In appeal
by PRIs, the main issue was regarding the application of Clauses 4
and 5 of the OM of 1986, whether the ratio of the PRIs has to be
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[2022] 19 S.C.R.
drawn with respect to the indented vacancies for DRIs - Held: No
appointee from any one channel (direct recruits or promotees) can
lay claim to seniority from a date before her or his appointment -
Para 5 of the 1986 OM was meant to cater to a contingency that is
of underreporting direct recruit vacancies to the public service
commission which resulted in an unfair advantage to promotees
who would "steal a march" over such direct recruits, appointed
later - It was in such contingencies, that is, of under-reporting
vacancies, that the consequence of deeming promotions to be adhoc could be resorted to - Materials on record indicate that
promotional vacancies did exist, at the relevant period, there was a
ban on direct recruitment - During that period, no requisitions were
made to the SSC for filling direct recruit vacancies - However, High
Court was wrong in concluding that by virtue of Para 5 of the 1986
OM the promotion made during the same period has to be treated
as in excess of the quota, because they were not in proportions to
the requisition for direct recruitment - This view taken by the High
Court is fallacious and it equates executive policy of not filling
vacancies, due to financial or other compulsions with deliberate
underreporting - In the Instant case, the direct recruitment through
the SSC was not resorted to because of a ban, and not due to underreporting - Thus the contingency envisaged under Para 5 never
arose - Not only the were promotions made within the quota, and
were regular, there were regular vacancies, within the promote quota
- No excess promotions took place during the period 1983 and
1991 - Indents/requisitions placed with, the SSC for the recruitment
of DRIs were for a part of the vacancies and not for the exact 75%
of the actual vacancies available in each year - The date of
appointment of direct recruits the date for counting seniority - It is
not from the date of receipt of the dossiers from the recruiting
authorities or

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[2022] 19 S.C.R. 1
1
B.S. MURTHY & ORS.
v.
A. RAVINDER SINGH & ORS.
(Civil Appeal No. 3968 of 2009)
MARCH 15, 2022
[UDAY UMESH LALIT, HEMANT GUPTA AND
S. RAVINDRA BHAT, JJ.]
Service Law - Central Excise and Land Customs Group-C
Recruitment Rules, 1979 - Determination of inter-se seniority -
Recruitment to the post of Inspectors of Central Excise was from
two channels : Direct recruitments and promotion from in service
candidates - The ratio between direct recruit inspectors (DRI) and
promoted inspector (PRI) was 3:1 - The inter se seniority was
governed by an office memo dated 22.12.1959 - In view of the
experience, the 1959 OM was changed, another OM was issued,
on 07.02.1986 - Five promoters promoted in 1983-1984 filed an
application challenging the inter se seniority list dated 08.07.1985
on the ground that the length of their continuous service was not
taken into consideration while fixing seniority - CAT directed the
department to recast seniority in accordance with the 1986 OM -
CAT referred the batch of matters to a Full Bench, on the issue as to
whether 1986 OM was prospective or retrospective - Full Bench by
its order clarified that 1986 OM only operated prospectively from
1.3.1986 - Based on the findings of tribunal seniority list of 1993
was quashed - The cadre controlling authority circulated a tentative
seniority list on 01.01.2022 which was finally published on 7.8.2002
- The list was challenged by PRI and the CAT allowed the
applications and set aside the seniority list - Central government
and DRI filed writ petition before the High Court - High court held
that the vacancy register had no relevance for the purpose of
promotion of in-service candidates and such promotions could be
only in proportion to the quota, based on indents placed by the
department with staff selection Board for direct recruitment - Length
of continuous service cannot be counted for the purpose of seniority
- It upheld the impugned seniority list dated 22.07.2002 - In appeal
by PRIs, the main issue was regarding the application of Clauses 4
and 5 of the OM of 1986, whether the ratio of the PRIs has to be
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[2022] 19 S.C.R.
drawn with respect to the indented vacancies for DRIs - Held: No
appointee from any one channel (direct recruits or promotees) can
lay claim to seniority from a date before her or his appointment -
Para 5 of the 1986 OM was meant to cater to a contingency that is
of underreporting direct recruit vacancies to the public service
commission which resulted in an unfair advantage to promotees
who would "steal a march" over such direct recruits, appointed
later - It was in such contingencies, that is, of under-reporting
vacancies, that the consequence of deeming promotions to be adhoc could be resorted to - Materials on record indicate that
promotional vacancies did exist, at the relevant period, there was a
ban on direct recruitment - During that period, no requisitions were
made to the SSC for filling direct recruit vacancies - However, High
Court was wrong in concluding that by virtue of Para 5 of the 1986
OM the promotion made during the same period has to be treated
as in excess of the quota, because they were not in proportions to
the requisition for direct recruitment - This view taken by the High
Court is fallacious and it equates executive policy of not filling
vacancies, due to financial or other compulsions with deliberate
underreporting - In the Instant case, the direct recruitment through
the SSC was not resorted to because of a ban, and not due to underreporting - Thus the contingency envisaged under Para 5 never
arose - Not only the were promotions made within the quota, and
were regular, there were regular vacancies, within the promote quota
- No excess promotions took place during the period 1983 and
1991 - Indents/requisitions placed with, the SSC for the recruitment
of DRIs were for a part of the vacancies and not for the exact 75%
of the actual vacancies available in each year - The date of
appointment of direct recruits the date for counting seniority - It is
not from the date of receipt of the dossiers from the recruiting
authorities or the date of recommendation - Resultantly seniority
of direct recruits appointed after 01.03.86 has to be revised only
from the date of their respective appointments but not earlier to
01.03.1986 as was done in the impugned seniority list - Those
promoted ad hoc basis in any year in the vacancies available to
them were eligible for seniority from the date of their continuous
officiation, if - they were promoted within their eligible quota of
that year under the Recruitment Rules - The consequential action,
by way of drawing and publishing a final seniority list, in
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accordance with the present findings, shall be completed within three
months.
Allowing the appeals by PRIs, the Court
Held: 1. The main issue before this Court is regarding
application of Clause 4 and 5 of the OM of 1986 in the background
of the 1979 Rules, which provide for 75% by direct recruitment
and 25% by promotion. The 1986 OM introduced the principle
of rotation of quota along with bunching rule. The question in
this case is whether the ratio of the PRIs has to be drawn with
respect to the indented vacancies for the DRIs. The fall out of
this mode of drawing the list is that if in a particular year there
are less number of indented vacancies for DRIs or the vacancies
are under reported the PRIs lose their right of seniority as given
under 1979 Rules. [Paras 33, 34 and 35][25-B-D, F-G]
2. In two judgments (Aghore Nath Dey and Suraj Prakash
Gupta) the promotions were made in disregard of the rules; even
in excess of their quota, and against direct recruit quota. In
Aghore Nath Dey, the promotee's claim was to seniority prior to
their regularization - which was achieved through a special rule,
inserted by way of amendment. The claim was that seniority should
be given to the promotees, over the direct recruits, who had
been appointed earlier. In Suraj Prakash Gupta, promotions were
made in excess of the quota and as against posts that should
have fallen due to direct recruits, in their quota. The ratio in these
decisions is inapplicable, because there is nothing to indicate
that the promotees (who were regularized in 1988) exceeded their
quota. Furthermore, the department's pleading, specifically
admits that the promotees were appointed against vacancies
available to the PRI quota. [Para 51][31-B-D]
3. The court, in K.V. Subba Rao & Ors. v. Government of
Andhra Pradesh held that, promotion and seniority shall be
reckoned from the date of appointment, not retrospectively from
the date when the vacancy arose. The court, in M. Subba Reddy v
A.P. State Road Transport Corporation considered a situation
where departmental candidates were given ad-hoc promotions
against direct recruit vacancies when a ban on direct recruitment
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
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was in force. Upon later regularization (of such promotions) it
was contended that the regularizations related back and that the
promotees were to be accorded seniority over direct recruits,
who entered the service. The court rejected this argument. State
of Uttaranchal & Ors. v Dinesh Kumar Sharma was a decision,
where this court held that the seniority is to be reckoned not
from the date when the vacancy arose, but from the date on which
the appointment is made to the post. [Paras 52, 53 and 54][31-DE; 32-D, F-G]
4. No appointee from any one channel (direct recruits or
promotees) can lay claim to seniority from a date before her or
his appointment. Para 5, (which has been the basis of the High
Court judgment, to hold that the PRIs were in excess of their
quota) was meant to cater to a contingency that is of under
reporting direct recruit vacancies to the public service commission
(in this case, the SSC) which resulted in an unfair advantage to
promotees who would "steal a march" over such direct recruits,
appointed later. It was in such contingencies, that is, of underreporting vacancies, that the consequence of deeming promotions
to be ad-hoc could be resorted to. The materials on record indicate
that promotional vacancies did exist, at the relevant period. There
was a ban on direct recruitment. The reasons for the ban are now
obscure; but the fact remains that it was in force for six years
(1984-90). During this period, undoubtedly, no requisitions were
made to the SSC for filling direct recruit vacancies. However,
the linear logic, applied by the High Court, to conclude that by
virtue of Para 5 of the OM of 1986, the promotions made during
the same period had to be treated as in excess of the quota,
because they were not in proportion to the requisitions for direct
recruitment. This view is plainly fallacious, because it equates
executive policy -of not filling vacancies, due to financial or
other compulsions with deliberate underreporting, meant to
result in unfair advantage to the PRIs. In the present case,
direct recruitment through the SSC was not resorted to
because of a ban, and not due to under-reporting. Thus, the
contingency visualized in Para 5 never arose. Not only were
promotions made within the quota, and were regular (as they
were preceded by proceedings of the Departmental Promotion
Committee, and culminated in regularization, in 1988), there were
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in fact regular vacancies, within the promotee quota. [Paras 56,
58 and 59][37-C; 38-C-D, G-H; 39-A-C]
5. The existence of PRI vacancies is a matter of objective
fact - as can be seen from the replies to the RTI queries. Those
vacancies fell to the share of PRIs, in terms of the 25% quota
earmarked for them, under statutory rules. In such circumstances,
to say that those promoted, by resort to DPCs and regularized
later, should be treated as ad-hoc promotees, would be contrary
to express rules. In other words, by giving effect to Para 5 of the
1986 OM, (and treating the promotions as ad-hoc for purposes
of inter se seniority), the statutory rules are virtually given a go
bye. It is also contrary to the stated objective sought to be
achieved by Para 3 of the 1986 OM, which is to "present practice
of keeping vacant slots for being filled up by direct recruits of later
years, thereby giving them unintended seniority over promotees who
are already in position, would be dispensed with." The promotions
of the PRIs before the court therefore, have to be treated as
regular. The court is of the opinion, that the reasoning of the
High Court, in overlooking these aspects, is clearly in error. [Para
60][39-D-F]
6. The other aspect - which the High Court ignored, is that
a number of vacancies were filled from amongst the quota for
compassionate appointment, and the sports quota. They were
not reported to the SSC. In such circumstances, to treat the
promotees as exceeding the quota set apart for them (though as
a matter of fact, they were accommodated within the quota) is not
warranted. Furthermore, the materials on record also show that
though there was a ban on direct recruitment, it did not apply to
vacancies which were to be filled up by way of promotion in terms
of the Recruitment Rules. [Para 61][39-G-H; 40-A]
7. High Court fell into error in setting aside the order of
the CAT, which is restored. It is held that (i) No excess promotions
took place during the period 1983 and 1991. 25% of the actual
vacancies arising every year during that period were for the
promotees. No direct recruit vacancy for any year was filled by
promotees. (ii) Indents/requisitions placed with, the SSC for the
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
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recruitment of DRIs were for a part of the vacancies and not for
the exact 75% of the actual vacancies available in each year. (iii)
The record does not bear out instances of suppression or underreporting of vacancies available for direct recruits out of the
permanent cadre strength in any year, to help the promotees. As
a result, there is no justification for invoking para 5 of the O.M.
of 1986. The department erroneously proceeded as if there were
excess promotions by wrongly estimating the promotee quota
on the basis of the indents placed for direct recruitment; (iv)(a)
The date of appointment of direct recruits the date for counting
seniority- it is not from the date of receipt of the dossiers from
the recruiting authorities or the date of recommendation.
Resultantly seniority of direct recruits appointed after 01.03.86
has to be revised only from the date of their respective
appointments but not earlier to 01.03.1986 as was done in the
impugned seniority list, (b) Direct recruits of 1992 could be given
seniority only in that year but not earlier, or in 1991 as was
erroneously done in the impugned seniority list; (vi)Those
promoted ad hoc basis in any year in the vacancies available to
them were eligible for seniority from the date of their continuous
officiation, if -they were promoted within their eligible quota of
that year under the Recruitment Rules. The impugned judgment
and order is set aside accordingly; the appeals by the PRIs are
allowed in the terms of the findings of the Court. The
consequential action, by way of drawing and publishing a final
seniority list, in accordance with the findings, shall be completed
within three months. [Paras 62 and 63][40-B-H; 41-A, D]
State of West Bengal & Ors v Aghore Nath Dey & Ors.
(1993) 3 SCC 371 : [1993] SCR 2 919 ; Suraj Parkash
Gupta v State of J& K (2000) 7 SCC 561 : [2000] 3
SCR 807 - held inapplicable.
Pawan Pratap Singh v. Reevan Singh (2011) 3 SCC
267 : [2011] 2 SCR 831; P. Sudhakar Rao & Ors. v U.
Govinda Rao & Ors (2013) 8 SCC 693 : [2013] 13
SCR 540 - relied on.
Devindra Prasad Sharma v State of Mizoram (1997) 4
SCC 422 : [1997] 2 SCR 930 ; K.V. Subba Rao & Ors.
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v. Government of Andhra Pradesh (1988) 2 SCC 201 :
[1988] 2 SCR 1118 ; M. Nirmala v. State of AP (1986) 3
SCC 647 : [1986] 3 SCR 507 ; M. Subba Reddy v. A.P.
State Road Transport Corporation (2004) 6 SCC 729 :
[2004] Supp 2 SCR 7 ; State of Uttaranchal & Ors. v
Dinesh Kumar Sharma (2007)1 SCC 683 : [2006] Supp
10 SCR 1 ; AFHQ/ISOs SOs (DP) Association & Ors.
V. Union of India (UOI) & Ors (2008) 3 SCC 331 :
[2008] 2 SCR 1183 ; State of U.P. v. Ashok Kumar
Srivastava, (2014) 14 SCC 720 : [2013] 11 SCR 846;
K. Meghachandra Singh v. Ningam Siro (2020) 5 SCC
689 : [2019] 16 SCR 651; Dinesh Kumar Gupta & Ots
v High Court of Judicature, Rajasthan 2020 SCC
OnLine (SC) 420 : [2020] 10 SCR 497 ; Direct Recruit
Class II Engg. Officers' Assn. v. State of Maharashtra
(1990) 2 SCC 715 : [1990] 2 SCR 900 - referred to.
Case Law Reference
[1997] 2 SCR 930
held inapplicable
Para 27
[2000] 3 SCR 807
held inapplicable
Para 27
[1988] 2 SCR 1118
referred to
Para 52
[1986] 3 SCR 507
referred to
Para 52
[2004] Supp 2 SCR 7
referred to
Para 53
[2006] Supp 10 SCR 1
referred to
Para 54
[2008] 2 SCR 1183
referred to
Para 54
[2011] 2 SCR 831
relied on
Para 54
[1990] 2 SCR 900
referred to
Para 54
[2013] 13 SCR 540
relied on
Para 55
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3968
of 2009.
From the Judgment and Order dated 16.03.2005 of the High Court
of Judicature of Andhra Pradesh at Hyderabad in W.P. No. 11620 of
2004.
With
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
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Civil Appeal Nos. 3967, 3969-3982 of 2009 and Writ Petition (C)
No.1380 of 2020.
R. Basant, Sr. Adv., Dhruv Kapur, Yash Pal Dhingra, Vijinder
Kumar, Maharishi Kaler, Ms. Ritika Sethi, Nithin Pavuluri, Rama Krishna
Meka, Dashrath Singh, Ms. Kirti Khangarot, Ms. Celesty Agarwal, Ms.
Ameya Thanvi, Dhruv Kapoor, Ms. Chitrangda Rashtrav, Manvendra
Singh Rathore, Gp. Capt. Karan Singh Bhati, Advs. for the Appellants.
Ms. Madhavi Divan, ASG, V. Giri, R. Bala, A. K. Srivastava, Sr.
Advs., Vadlamani Seshagiri, Adhish Rajvanshi, Siddharth Sachar,
Shreyuss Shankar Joshi, Mrs. Bela Maheshwari, Ms. Sunita Rani Singh,
Ms. Rekha Pandey, B. Krishna Prasad, B. V. Balaramdas, Advs. for
the Respondents.
The Order of the Court was passed by
S. RAVINDRA BHAT, J.
1. The appellants are aggrieved by a common judgment and order
of the erstwhile unified High Court of Andhra Pradesh in several writ
petitions.1 The High Court allowed those writ petitions and set aside the
order2 of the Central Administrative Tribunal (CAT) in a batch of ten
original applications. The CAT's order had allowed those applications
and directed proper fixation of inter se seniority of Inspectors of Central
Excise, as between direct recruits and promotees. The promotee
inspectors are aggrieved, and are appellants before this court.
2. Recruitment to the posts of Inspectors of Central Excise is
from amongst two channels- one, direct recruitment and the other, by
promotion from in-service candidates: in accordance with the provisions
of the Central Excise and Land Customs Group-C Recruitment Rules,
1979 (hereafter the "1979 Rules" or "the Rules") framed by the President
of India under proviso to Article 309 of Constitution of India. The ratio
between the direct recruits and the promotions -from amongst various
in-service cadres on the ministerial line- was fixed under the Rules at
75%:25% (or 3:1). The Rules however, did not provide guidance for
1 W.P.Nos.11620/2004, 10601/2004; 13525/ 2004, 12970/ 2004, 21863/2004, 1834/
2005, 1836/2005, 1838 of 2005, 1858/ 2005, 1861/ 2005, 2011/2005, 1348/ 2005,
18149/ 2004, W.P. No.6098/2005, 6099/2005; 6100/ 2005, & 6097/ 2005; all were
decided on 16.03.2005.
2 Dated 29.12.2003
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determination of inter seseniority of direct recruit inspectors (DRIs)
and promotee inspectors (PRIs). Seniority lists were prepared on the
basis of executive instructions issued by the Government of India from
time to time. It is an undisputed fact that inter se seniority was governed
by an office memo3 dated 22.12.1959 (hereafter "1959 OM") stipulating
general guidelines to determine the seniority of various category of
employees in the Central Secretariat. The Central Excise Department
too followed it. The 1959 OM stipulated that seniority was determinable
by the order indicated at the time of initial appointment (and not date of
confirmation). Permanent Officers of each grade were to be ranked
seniors to those officiating to that grade. The inter se seniority of the
direct recruits was to be determined by the order of merit in which they
are selected for such appointment on the recommendations of the
U.P.S.C. or such selecting authority. Paras 2-5 of the 1959 OM provided
the principles for determining inter se seniority of direct recruits and
promotees. In the light of experience, the 1959 OM was changed, and
another OM was issued, on 07.02.19864 (hereafter "1986 OM").
3. Five Revenue Inspectors, from the promotion cadre (hereafter
called generically also- apart from PRIs as "promotees"), promoted in
1983-1984 filed an application5, challenging the inter se seniority list
dated 08.07.1985 (hereafter "the 1985 list") issued by the department
on the ground that the length of their continuous service was not taken
into consideration while fixing seniority. This application however did
not implead the direct recruit employees; it was allowed on 05.07.1988
(hereafter "CAT 1988 order"). CAT directed the department to recast
seniority in accordance with the 1986 OM after giving notice to the
affected parties. A revised list was thereafter issued. DRIs, whose
seniority was affected by the revised seniority list filed review
applications6 in the disposed of applications. The CAT reiterated its main
order, dated 05.07.1998 (hereafter "CAT review order"). The department
then issued a final seniority list (as on 1.1.1992) on 30.4.1993 (hereafter
"1993 final list"). Those promoted before 1986 also requested the
department to fix their seniority in terms of the CAT's 1998 order.
3 Office Memo No. 9/11/55 RSP dated: 22.12.1959
4 OM No. 35014/2/80- Estt.(D), dated: 7.2.1986
5 O.A.NO. 156/1986
6 R.A. No. 29/1994 etc.
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
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4. CAT's 1998 order was in the context of the 1986 OM, which
was in-applicable to pre-1986 PRIs. Thereafter, the matter was referred
to the Central Board of Excise and Customs ("CBEC"), which apparently
clarified that the procedure of fixation of seniority notified in 1986 OM
was to be applied to pre-1986 promotees too. A seniority list was then
prepared in respect of the officers appointed prior to 1986 on the lines of
1986 OM. At this point, the DRIs filed Review application in R.A. No.
103/1993 against the 1993 final list.
5. The CAT, in an order doubted the basis of its previous decision
and referred the batch of matters to a Full Bench- on the issue as to
whether 1986 OM was prospective or retrospective. The Full Bench by
its order clarified that the 1986 OM only operated prospectively from
1.3.1986. On the basis of the finding of the Full Bench, the tribunal
heard the review applications along with O.A. Nos. 1323/ 1993, 285/
1994 and OA 906/1994. It is noteworthy that the Central Government
preferred a Special Leave Petition to this court, against the CAT's order
in O.A.NO. 156/1986 which was dismissed as time-barred.
6. The tribunal considered the matter and the cases were disposed
of by a common order dated13.2.1997 recording the following
conclusions:
(i)
The O.M dated: 07.02.1986 was prospective;
(ii)
Pre- 07.02.1986 inter-se seniority was to be regulated in
accordance with 1959 OM;
(iii)
There was no break-down of the quota rule:The 1959 O.M.
was to be followed.
(iv)
Cases of those who officiating as Inspectors prior to
01.03.1986 but regularised after that date had to be
individually decided after determining the nature of
officiation, nature of the post, (to which officiation related)
and the provisions of OM of 1959 and could not be
generalised.
(v)
Pre 01.03.1986 cases where the selection process -for direct
recruitment- but where appointment was made after that
date werecovered by the OM dated: 7.2.1986.
7. Based on these findings, the 1993 final list was quashed; the
department was directed to prepare another list, afresh. To comply with
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the order, a special cell headed by the Superintendent of Central Excise
was formed. A new final seniority list (dated 15.10.1997-hereafter "1997
list") was issued based on recommendations of the special cell; it was
declared as final on 1.1.1992. This 1997 final seniority list became the
subject of scrutiny in RA 56/ 1998 in O.A.No.1323/1993 filed by the
PRIs. These review applications were dismissed by an order dated
27.8.1999. CAT was however of the opinion that the matter had to attain
a quietus to the long pending issue; it suggested the setting up of
acommittee consisting of senior Commissioner as chairman to arrive at
consensus duly associating the representatives of DRIs and promotees.
Any difference of opinion, was to be recorded in the note and final
decision was to be left to the Chief Commissioner, who is the cadre
controlling authority.
8. In due compliance with the order, a committee was formed.
The CAT, in the meanwhile, disposed of the pending proceedings on
30.3.20007 taking note of the status report by the department, regarding
preparation of the seniority list, based on the submission that the final
decision of the Chief Commissioner was awaited.
9. The cadre controlling authority, considering the seniority list
prepared by the committee circulated a tentative seniority list as on
01.01.2002 calling for objections. These objections were overruled and
the final seniority list was published on 7.8.2002. This list was questioned
by the promotees, who filed O.A. No. 938/ 2002 etc. The PRIs' plea
was that the seniority list finalised was not in conformity with the directions
issued by CAT in O.A.NO. 1323/ 1993 as well as the principles in the
1959 and 1986 OMs. The department as well as the unofficial respondents,
that is, DRIs, resisted the proceedings. The department's position was
that the procedure adopted was valid, in accord with the rules and that
the vacancy position from time to time was taken into consideration.The
DRIs contended that in fact PRIs occupied more than 25% quota and
that the litigation was needlessly continued.
10. CAT, in its order dated 29.12.2000, considered the submissions
and the record, and held that:
(i) The direct recruit/promotion Register of Inspectors,
maintained in the office and forwarded to the Hyderabad-I
Commissionerate was an authentic document which discloses
7 O.A.No. 429/1998, which challenged the final list of 1997
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the actual vacancies that arose in each year during the period
from 1984-1991 and the exact ratio of 3:1 of DR and PR
quota respectively;
(ii) There were no excess promotions during the years 1983
to 1991; 25% of actual vacancies arising every year during
that period were for the promotees. No direct recruit vacancy
for any year was filled by promotees;
(iii) The indents placed with, the Staff Selection Commission
for the recruitment of DRs were only for a part of vacancies
(due to partial, ban etc.) and not for the exact 75% of the
actual vacancies available in each year. There were no
instances of suppression or under-reporting of vacancies
available for direct recruits out of the permanent cadre strength
in any year, to help the promotees. There was consequently
no justification for invoking para 5 of the O.M. of 1986. The
department wrongly inferred that there were excess promotions
by wrongly estimating the promotee quota on the basis of the
indents placed for direct recruitment;
(iv)(a) The date of appointment of direct recruits the date for
counting seniority-it is not from the date of receipt of the
dossiers from the recruiting authorities or the date of
recommendation. Resultantly seniority of direct recruits
appointed after 1.3.86 is to be revised only from the date of
their respective appointments but not earlier to 1.3.1986 as
is wrongly done in the impugned seniority list,
(b) Direct recruits of 1992 were to be given seniority only in
that year but not in 1991 as was wrongly done in the impugned
seniority list;
(v) The seniority of five applicants in O.A.NO. 156/86
originally fixed in terms of the order, had to be restored and
could not be altered.
(vi) Those promoted ad hoc basis in any year in the vacancies
available to them were eligible for seniority from the date of
their continuous officiation, if -they were promoted within their
eligible quota of that year under the Recruitment Rules;
(vii) Those promoted in 1983 against 17 posts diverted from
Shillong, were entitled to seniority in terms of 1959 O.M;
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(viii) Of 137 promotees regularised on 27.10.1988, seniority
of those applicants regularised under the earlier order in 1985
is to be fixed prior to 1.3.1986, on the said earlier date of
their regularisation in 1985;
(ix) Seniority of promotees functioning in temporary posts
not forming part of the cadre, is to be fixed from the date of
promotion/ appointment.
11. Accordingly, the CAT allowed the applications and set aside
the seniority list prepared as on 01.01.2002. The department was directed
to revise and refix the seniority list in the cadre of Inspectors in tune
with the findings and the order dated 13.2.1997 in O.A.NO. 1322/1993.
Another direction to as certain number of vacancies, which arose each
year for working out DRIs and PRIs in the ratio of 3:1 on the basis of
the direct recruit/promotion Register maintained during the 1991-1994
as well as the remaining period subsequent to 1999- on the basis of the
authentic records maintained in the office was issued.
12. Aggrieved by CAT's order dated 29.12.2003 the DRIs and
the Central Government filed writ petitions before the High Court, which
resulted in the impugned judgment. The High Court held that the vacancy
register had no relevance for the purpose of promotion of in-service
candidates and such promotions could be only in proportion to the
respective quota, based on indents placed by the department with the
Staff Selection Board for direct recruitment. It also held that length of
continuous service followed by regularisation cannot be counted for the
purpose of seniority since the quota rule had not been infringed. It also
held that validity of 1986 OM was not challenged in the applications by
the promotee inspectors. It therefore, upheld the impugned seniority list
dated 22.07.2002.
Contentions of appellant-PRIs
13. It is urged on behalf of the PRIs by their senior counsel, Mr.
R. Basant, that the High Court overlooked the fact that the Chairperson
of the Committee which was constituted pursuant to the decision of the
Full Bench (of CAT) submitted its first report to the Chief Commissioner
by letter dated 28.3.20008 suggesting that direct recruit/promotee register
of Inspectors maintained from 1884 to 1996 should be taken as the basis
8 C.No.11/39/92/99-Estt., dated 28.3.2000
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to arrive at number of vacancies year-wise to determine the seniority
since in terms of 1986 OM. The method of calculation of vacancies
should be based on vacancy register. The extract of the report reads as
under:
 "I have looked into 'DR/Promotee register of Inspectors'
Hyderabad
which
has
been
forwarded
by
the
Commissionerate. It has been maintained systematically
showing the exact ratio of 3:1 as provided in the O.M. dated
22.12.1959 and O.M. dated 7.2.1986. There is, therefore, little
scope to doubt authenticity of this register though nosignatures
are appended. Moreover, it has been duly certified by the
Joint Commissioner (F&V) of Hyderabad Commissionerate
as having been maintained in the Establishment of Hyderabad
Commissionerate now that this register is available, it would
be better to go by it than on any assumption or principle to
determine the number of vacancies on thebasis of which the
seniority list is to be drawn up."
14. It was submitted that the Chairperson of the Committee
submitted its second report to the Chief Commissioner on 11.10.2000
clarifying that the Special Cell's formula of taking the actual number of
DRIs appointed to arrive at the PRI quota was narrow. Instead, it
suggested to take the indents placed to Staff Selection Commission (SSC)
together with the appointments made on compassionate grounds, inter
Commissionerate transfers, sports quota and surplus cell which were in
the nature of direct recruitment as basis for arriving at number of direct
recruit vacancies and to arrive at PRI quota by arriving the ratio of 3:1.
15. It was urged by Mr. Basant, that the January 2002 seniority
list, completely ignored the previous directions of CAT, which had attained
finality, and proceeded to apply the 1986 OM retrospectively, in regard
to pre-1986 PRIs, as well as ad-hoc PRIs, without considering that most
such PRIs were in fact promoted within the quota available to them, under
the rules. It was submitted that the department ignored two salient facts,
first, that as many as 110 appointments were made, which were adjustable
only against the direct recruit quota (such as sports quota, compassionate
appointments and inter Commissionerate transfers). Secondly, the existence
of a ban-though partial in nature, preventing direct recruitment, was a
completely neutral fact, which could not have operated against the PRIs
while determining the inter se seniority with DRIs.
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16. It was urged by learned senior counsel that the method of
calculation of promotee quota vacancies was flawed. The appellants
urge that the quota is to be worked out, based on the total vacancies
arising each year. This contention is supported by the 1979 Rules as well
as 1986 OM. The department's stand that quota is to be worked out, not
on the total reported vacancies as per the vacancy register as envisaged
in the 1986 OM but on the indents placed with the SSC for DRIs is
unjustified. This position is contrary to the express terms of the OM.
Indents placed with the SSC is only one, (among others) mode of direct
recruitment. It is not the only basis for determination of quota either, for
quotas are fixed by the Recruitment rules. According to the appellants
the restricted interpretation of the 1986 OM by the department would
render it bad and violative of Articles 14 and 16 of the Constitution.
17. It is urged that the 1986 OM is an executive instruction and
hence subordinate to statutory rules formulated under Article 309 of the
Constitution. Rule 7 of the 1979 Rules empowers the department to
relax any of the rules with regard to any class or category of persons. In
this case, the Ministry of Finance, Department of Expenditure imposed
restrictions on filling up of direct recruit vacancies during the years 1984
to 1990 while exempting vacancies to be filled up purely by promotion in
terms of the relevant recruitment rules from the purview of those
restrictions. These amounted to relaxation of the Recruitment Rules in
exercise of the powers conferred under Rule 7 of those Rules. The
appellants also rely on the averments, in Paras 5(1)(c) & (d) of the
department's counter affidavit9, admitting that filling of vacancies by
promotion, was exempt from the instructions relating to ban on
recruitment, to the following effect.
".....Central Board of Excise & Customs has since clarified
that there were restrictions on filling up direct recruit
vacancies during the years 1984 to 1990 and the restrictions
do not apply to vacancies which are to be filled up purely by
way of promotion in terms of the relevant Recruitment Rules."
18. The appellants then rely on the replies given by the department,
to the replies to queries (dated 29-08-2007, 30-10-2007, 13-11-2007 and
28-11-2007) made under the Right to Information Act ("RTI"). The reply
to the RTI query10
9 Dated 25th August 2008 in CA 3969-3982/2009 arising out of SLP (C) 4784/2007
10 Given on 28-11-2007 (F.No.A.60/31/RTl/2007-Ad.lllB) by Govt of India, Ministry
of Finance, Department of Revenue, Central Board of Excise and Customs
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"the restrictions on filling up of direct recruit vacancies
imposed by the Government do not apply to vacancies which
are filled up purely by way of promotion in terms of recruitment
rules provided the resultant vacancies in the lowest level of
the cadre are not filled up during the period of the ban order".
Likewise, the letter dated 13-11-200711 refers to two earlier letters,
(F.7 (1)-E. Coord/84 dated 20.06.1984, F.7 (1)-E-Coord/86 dated
20.05.1986 and F.7 (1)-E-Coord.186 dated 15.07.1986), issued by the
Govt. of India, department of revenue, alluding to the fact that "there
were restrictions on the filling up of Direct Recruit vacancies during
the year 1984 -1990 in terms of instructions issued by Government
of India." The appellants lastly rely on the reply dated 29.08.200712,
which stated that
"..The 25% promotee quota vacancies of Inspectors were
worked out on the basis of actual vacancies available in each
year....The promotee Inspectors promoted well within 25%
promotee quota."
It is submitted therefore, that the department proceeded on a
misconception that promotions made even within the quota available
for the PRIs were to be treated as excess to the extent that indents
were not (or could not be) made for direct recruitment to the cadre,
through the SSC.
19. It was further argued by the appellants, that the department's
interpretation of the quota rule is untenable, in that for the purpose of
reckoning seniority, the quota for PRIs was taken to be one third of
the total vacancies available and filled by direct recruitment. This
is contrary to the rules, which provide, independently a quota of 25%
of the total vacancies. It was submitted that this interpretation, together
with the fact that existence of a ban on direct recruitment was ignored,
led the department to ignore the directions in the previous orders of
the CAT, as well as the factual report of the commissioner, which
clearly existed that the vacancy register maintained at the relevant
time, did not show that there was any under-reporting of direct recruit
vacancies.
11 F.No.A.60/3 l/RTI/2007.AD.IIl.B by the Govt of India, Ministry of Finance,
Department of Revenue, Central Board of Excise and Customs
12 F. No. I/Admn (22) Misc-42 /R.TIA/CPIO/M-I/2007/49
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Contentions of the respondent DRIs and the department
20. It was urged on behalf of the DRIs, who succeeded before
the High Court, that the impugned judgment does not call for interference.
It is pointed out that the question of inter se seniority has been gone into
on multiple occasions, and the department interpreted the previous rulings
(which had attained finality) correctly while drawing up the seniority list.
21. It was urged that the previous seniority list (as on 01.1.1992)
dated 15.10.1997 was not challenged by the PRIs; it was impugned by
the DRIs. Therefore, PRIs cannot seek better seniority than what their
position was in the list dated 15.10.1997 as on 1.1.1992. It was urged
that the excess PRIs including the applicants were not given any seniority
positions in the seniority list dated 15.10.1997 and the appellants as well
as other excess PRIs did not challenge the said seniority list in which
they were not granted seniority and were shown at the bottom of the
list. Having not challenged the seniority list on 15.10. 1997. It was only
challenged by the DRIs as they were aggrieved by their respective ranking
positions in that list. The PRIs therefore, cannot question the positions
assigned to them in the revised seniority list. It was argued that the CAT
failed to notice this aspect, and held that it was not open for the PRIs
again at a subsequent stage to contend that they ought to have been
fixed in the seniority above 1991 and 1992 DRIs. They cannot be allowed
to do so as the principle ofestoppel would squarely operate against them.
22. It was urged that the impugned judgment correctly appreciated
that the vacancy register at the most indicated the vacancy position in
cadre and was not meant to confer the benefit of promotion on in-service
candidates more especially when the promotions were to be made with
reference to vacancies indented for DRIs. Therefore, CAT's observation
that only in case of detection of under reporting/ suppression the bunching
process had to be adopted and in other cases the vacancies position visa-vis the promotion was to be identified from the vacancy register, was
untenable. It is also relevant that contrary to the premise underlying the
contentions of PRIs, there is no conflict between Para 4 and 5 of the
1986 OM. This too was appreciated by the High Court. The pertinent
issue, submit the DRIs, was whether PRIs can claim seniority over the
DRIs when they occupied the posts beyond the prescribed ratio, subject
to bunching process. Quite possibly some PRI swere promoted on
temporary basis and some were promoted on ad-hoc basis. Assuming
that they were promoted on regular basis, without properly assessing the
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vacancies, that ipso facto could not confer any right to claim seniority
from the date of their appointment, in as much as, the seniority can only
be assigned when the vacancy crystallizes. It is always subject to the
quota rule.