By TIOL News Service

NEW DELHI, MAY 17, 2008 : SENIORITY and Promotion are touchy topics for the babus. Human tendency is, once you rush into a crowded bus, you will thank the stars, if you get a foothold. But after sometime you will not be happy unless you get a comfortable seat.

The Recruitment and Seniority in the cadre of appraisers of customs had been in dispute for about fifty years. There were no statutory rules for the service conditions including seniority.  

There is a story doing the rounds, that initially un-educated Anglo Indian Boys, whose paternity could be traced to senior British Customs Officers, were appointed as examiners in customs. Only qualification was that he should be literate. Once you appoint an employee, you have to eventually promote him. These examiners got promoted as appraisers, but they had no idea of what the Customs Act was all about. So the Government hit upon the idea of Direct Recruitment.

In 1936, The Central Board of Revenue passed an order that Customs Appraisers posts would be filled up, fifty percent by promotion, Twenty Five percent by selection from experts and Twenty Five percent by a competitive examination.  Now you have officers from three streams in the cadre of appraisers. Now how to fix the seniority among three streams? In 1959, The Board issued a circular which stipulated that the seniority should be fixed as per rotation of vacancies based on the quota of reservations for each stream.

In 1961, The Board issued The Customs Appraisers Recruitment Rules. And disputes started pouring in with some reaching even the Supreme Court.

There was heavy distortion in the ratio between Direct and Promote Appraisers. In 1961, when the rules came into existence, there were 58 Promotees and 14 direct recruits. In 1976, there were 198 direct recruits against 195 promotees, In 1987, there were 269 direct recruits against 181 promotees. Nobody seems to have a clue as to the position between 1988 and 2003. In 2005, there were 163 direct recruits against 539 promotees.

One of the seniority cases reached the Supreme Court and in the year 1996 the Supreme Court in the Gaya Baksh Yadav case directed Union of India to prepare a fresh seniority list on the basis of the date of continuous officiation as appraiser.  Pursuant to this decision of the Supreme Court, Board published a new seniority list on 12.11.1997. This list was challenged before the CAT and High Courts. Bombay Bench of the CAT quashed the list and directed the Board to review the position of those promoted beyond their 50% quota. Based on this, the Government issued a new seniority list on 30.06.2004 and a year-wise list on 16.12.2004, and there seems to be another list dated 28.02.2005. All these were challenged in CAT and the Madras High Court which dismissed the appeal.

The matter has once again reached the Apex Court .

To start with the Supreme Court expressed great concerned on the singular failure of the Government in not trying to settle the issue. The Supreme Court observed,

It is a matter of grave concern that although the parties have filed a large number of original applications and writ applications and the matter had at least once been taken up upto this Court, the Union of India has singularly failed to lay down a proper legal framework for the purpose of determination of inter se seniority between the direct recruits and promotees. Correct facts and figures have also not been placed by the Union of India before the learned Tribunal. It furthermore appears that even they are not in possession of all the relevant documents. If anybody is to be blamed for the messy situation, the Union of India , must take upon it the major chunk of the blame.

Before us also, some documents have been filed only when we insisted as to what was the total cadre strength. We were given to understand that the total cadre strength at present is 809. Before us a chart has also been filed showing total sanctioned and working strength in the three groups of Appraisers from the years 1961 to 1987 and for the years 2004 to 2008.

We may notice that when the 1961 Rules came into force, there were 131 total posts in total. Out of total posts of 131, 46 were in Bombay, 19 were in Madras and 66 were in Calcutta, out of which the number of direct recruits in Bombay, Madras and Calcutta were 2, 4 and 8 (totalling 14) and those of the promotees were 37, 12 and 9 (totalling 58). Since then, the percentage of appointments through direct recruitment went up considerably and only in or about 1976 when the sanctioned strength was 418, 198 direct recruits were functioning as against 195 promotees. Yet again the percentage of appointments through direct recruitments went up and as in 1987, out of the total sanctioned strength of 456, 269 direct recruits were working as against 181 promotees.

We have noticed hereinbefore that we do not have any figure as to how things proceeded from the year 1988 to 2003. It is, however, of some significance to note that in the year 2004, 164 direct recruits were working as against 520 promotees, and in the year 2005, 163 direct recruits were working as against 539 promotees; the total cadre strength being 809.

We have noticed hereinbefore that the situation had undergone a sea change from 2002 onwards as no direct recruitment has taken place at all. Rules have also not been amended.

The Supreme Court held that the promotees had no quota and even if more than 50% posts were filled up by direct recruitment, the same cannot be questioned. The practice followed by the Board cannot be set at naught by a stroke of pen.

The Supreme Court finally held,

Whereas all appointments in the direct recruitment quota being regular in nature, their seniority was to be counted from the date of their appointment, but so far as the promotees who had been promoted on ad hoc basis are concerned, they could not, in terms of the Rules, rank senior to the direct recruits.

(See 2008-TIOL-109-SC-SERVICE in 'Legal Corner')