Holding

Post‑1961 recruitment rules discard the quota‑rotation system; seniority for all appraisers must be based on continuous officiation, while the pre‑1961 seniority is governed by the Mervyn Continho rule.

Summary

The case concerned the method of preparing an All‑India seniority list for officers of the Customs Appraisers Service, Class II. The Government had issued a circular in 1986 that placed promotee appraisers together based on continuous service and direct recruits based on UPSC ranking, then merged the two lists in a 1:1 rotational ratio. The Central Administrative Tribunal struck down the circular and ordered a fresh list to be prepared on the basis of continuous officiation. The appellants challenged this order. The Supreme Court held that after the Customs Appraisers Service Class II Recruitment Rules, 1961 came into force, the quota‑rotation system from the Mervyn Continho case no longer applied; seniority for both direct recruits and promotees must be determined by continuous service from the date of appointment or promotion. For appraisers appointed before the 1961 rules, the Mervyn Continho rotational rule continues to apply. Consequently, the Tribunal’s direction to prepare a combined list on the basis of continuous officiation was upheld, and the appeal was dismissed.

Issues considered

The validity of the 1986 circular that merged direct recruits and promotees using a 1:1 rotational system after the 1961 recruitment rules came into force.
Whether the Central Administrative Tribunal erred in quashing the circular and directing preparation of a seniority list based on continuous officiation.
The appropriate principle for determining seniority of Customs Appraisers appointed before and after the 1961 recruitment rules.
Whether the Mervyn Continho rotational rule continues to apply post‑1961.

Legislation cited

Constitution of Indias. Article 16
Customs Appraisers Service Class II Recruitment Rules, 1961s. Rule 4A, s. Rule 4C

Subjects

service lawsenioritycustoms appraisersrecruitment rulesrotational quotaMervyn ContinhoAll India ServiceCentral Administrative TribunalequalityArticle 16

Judgment

A GAYA BAKSH YADAV
v.
UNION OF INDIA AND ORS. '

MAY 8, 1996 \
B [A.M. AHMADI, C.J., M.M. PUNCHHI AND K. RAMASWAMY, JJ.]

Service Law :

Customs Appraisers Se1vice, Class II recndtment Rules, 1961 : Rule 4A.
c Direct recruits and pro111otees-lnter se seniority betwee1t-Detennina-
tion of-Before and after Rules of 1961-Held: pre 1961 Rules-Their inter
se seniority would be detennined by rotating quota system as per Mervyn
Coutinho Case-Post 1961 Rules-Both direct recrnits and promotees would
be entitled to seniority on basis of their continuous officiation--fnter se
D seniority-Among direct recruits-Same as fixed by UPSC-Among
promotees-From date of their promotion.

The Government of India, Ministry of finance (Department of
Revenue) issued a circular to the effect that the promotee Officers belong·
E ing to the .Customs Appraisers Service Class II would be placed together
c'
on the basis of their continuous length of service and the direct recruits
correspondingly on the basis of their inter se ranking assigned by the
U.P.S.C. and then an all India list be prepared by rotating the officers in
the two lists in the ratio of 1 : 1. The Central Administrative Tribunal
quashed the aforesaid circular and directed the respondents to prepare
F afresh an All India combined list of Appraisers on the basis of continuous
olliciation of the incumbent in the post of Appraisers. The Tribunal
expressed no opinion as to on what principle the combined eligibility list
should be prepared in such a contingency. Aggrieved by the Tribunal's
judgment the appellants preferred the present appeal.
G Disposing of the appeal, this Court

HELD : 1. In the present case, the service was and is one i.e. All India
Service 6f Appraisers. Prior to the Customs Appraisers Service Class II
Recruitment Rules, 1961, 50% posts in the service were filled by direct
H recruitment and the seniority of the selectees was fixed by the U.P.S.C. in
540

l
GAYABAKSHYADAV v. U.0.1. [PUNCHHI,J.] 541

the order of selection. Inter se seniority amongst direct recruits was thus A
a sealed event. That was the foundation. Entry into service by promotion
was fortuitous dependent on the exercise by the departmental committees
in the respective Customs Houses and the outcome thereof. Mervyn
Continho's case tells the way to work it out. In their respective quotas direct
recruits as well as promotees rotate the quota system as 1 : 1 as mentioned
in Me1vyn Continho's case. But after the Rules of 1961, when the quota
B
system has been discarded Meivyn continho's rule cannot apply. As per
Rule 4-C of the 1961 rules, the allocation of at least 50% posts in favour
of direct recruits, allocated to Customs Houses on the basis of their
selection, would obviously present no difficulty. Equally enlistment of
promotee Appraisers, since coming from feeder sources of Customs C
Houses, from the date of their promotion, would present no difficulty. Both
would be entitled to placement in the joint seniority list on the basis of
their continuous officiation. [552-B-F]

-#' Mervyn Continlw and Ors. v. Collector of Customs, Bombay and Ors.,
[1963] SCR 600 and Direct Rccmit Class II Engineering Officen·' Association D
v. State of Maharashtra and Others, [1990] 2 SCC 715, followed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 257 of
1988 Etc.
E
From the Judgment and Order dated 28.5.87 of the Central Ad-
ministrative Tribunal, Delhi in 0.A. No. 1089 of 1986.

Rajinder Sachar, M.K. Ramamurthi, Kapil Sibal, Ms. Shyamla
Pappu, S:P. Goyal, K.K. Mohan, M.A. Krishnamoorthi, M.A. Chinnas-
wamy, Ms. C. Ramarnurthi, H. Subrarnaniarn, Ashok K. Srivastava, R.R. F
Bharti, C.V.S. Rao, P. Parmeswaran, KT. Ananthararnan, L.R. Singh, R.F.
Nariman, C.S.S. Rao, R. Vasudevan, Ms. Rachna Gupta, (Sudershan
Wadia), In-per.sons, A.S. Sun<ler Rajan, - in-person, Rajinder Kumar-in
person, N.K. Muthu Krishnan-in-person and R.R. Bharti for the appearing
parties.
G
The Judgment of the Court was delivered by :

PUNCHHI, J. This is another manifestation of the never-ending
dispute between direct recruits and prornotees, arising in this Batch of 5
appeals, directed against the judgment and order dated 28.5.1987 of the H
542 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A Central Administrative Tribunal, Principal Bench, New Delhi.

A representative petition, representing the interests of the promotee
officers, belonging to the Customs Appraisers Service Class II, was filed
before the Central Administrative Tribunal, Principal Bench, New Delhi,
challenging Circular No. A. 23011/86-AD.ll(A) dated the 2nd May, 1986
B issued by the Ministry of Finance (Department of Revenue), Government
of India, containing principles regarding "Promotion of Appraisers of
customs to the India Customs and Central Excise Service, Group A" for
quashing of the pursuant "All India Combined List of Appraisers" circu-
lated therewith, and for a direction to the Gtivernment of India to prepare
c a fresh seniority list in accordance with law, on the basis of length of
service, quashing promotions of some of the respondents therein to the
post of Assistant Collector of Customs and Central Excise as also for a
corresponding direction to promote the promotee-applicants lo such posts,
giving them the benefit of revised seniority with retrospective effect. .
D
A glimpse of the service related history would be useful for a
thorough grasp of the problem. There existed Customs Houses in the
metropolitan cities of Bombay, Madras and Calcutta at a given point of
time, established by the Government of India, and manned by members of
the Customs Appraisers Seniee. As far back in 1936, the Central Board of
E Revenue, by order, had established the manner of recruitment to the
Customs Appraisers Service to be done from two sources, i.e., 50 per cent
by departmental promotion, 25 per cent directly from experts and 25 per
cent by means of a competitive examination or selection by the Public
Service Commission. It was also provided in the said order that the
percentages laid down denoted the maximum and the Collector of Customs
F
would not be bound to recruit uptill the maximum is reached, particularly
in the case of recruitment by promotion. In actual practice, however, this
order had been acted upon as if providing 50 per cent for promotees and
50 per cent for direct recruits, whether they be experts or coming by
competitive examination or selection by the Public Service Commission.
G
In 1940, the Government of India issued a General Circular for
determination of relative seniority of candidates appointed by direct
recruitment and by promotion. In that Circular, it was demonstrated that
"Where in a department two permanent or quasi-permanent vacancies
H occur, even simultaneously, and the first vacancy in accordance with the
GAYA BAKSH YADAV v. U.0.1. [PUNCHHl,J.] 543

rotation is for direct recruit, the direct recruit will rank in seniority above A
the promotee, even though he joined his post after the promotee who had
been promoted and confirmed. " On December 12, 1959, the Government
of India issued another Circular containing amongst others, son1e general
principles for determining the seniority of various categories of persons
employed in Central Services. Those were effective from the date of their
issue and not retrospectively. One of the principles projected in thi.s
B
Circular of 1959 was with respect to relative seniority of direct recruits and
promotees providing that relative seniority of direct recruits and promotces
shall be determined according to the rotation of the vacancies between
direct recruits and promotees, which shall be based respectively on the
quota of reservation for each given in the recruitment rules. It was further c
explained that a roster shall be maintained based on the reservation for
direct recruits and promotees for promotion in the recruitment rules.
Where, for example, the reservation for each is 50 per cent, the roster will
run ·.as (i) promotion, (ii) direct recruitment, (iii) promotion, (iv) direct
rccri1itment and so on. AppointmcnL' were thus required to be made in
D
accordance with the aforesaid roster and seniority determined accordingly.
It is thus deducible that whether it be by the Circular of Government of
India of the year 1940 or that of year 1959 seniority was to be determined
by working the rotational system depending upon the respective quota
reserved for direct recruits and promotees.
E
In accordance with the 1959 Circular, the Collectorate of Bombay
Customs House, under orders of the Central Bank of Revenue, prepared
a seniority list in the year 1963. Certain promotee Appraisers of the
Customs Department of the Government of India challenged the seniority
list of 1963 by means of a petition under Article 32 of the Constitution F
before this Court contending that the rotational system had resulted in
discriminatory treatment against them with the consequence that
promotees of much longer service in the cadre of Appraisers were put in
the seniority list below direct recruits with much shorter service, which
offended the Equality Rule with respect to opportunity guaranteed under
Article 16(1) of the Constitution. The dispute focussed and resolved can G
be seen in Mervyn Cantin/Jo and Ors. v. Collector of Customs, Bombay and
01'., [1963] SCR 600, a decision by a five judge bench. The contention of
the Union of India in response was that in a ·service where ff'.cruitment is
partly by promotion and partly by direct recruitment, the system of flXing
seniority by rotation has been adopted and that this pattern was being H
544 SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.

A followed in a number of services under the Union. It was al'o urged that
there is nothing discriminatory in such a system and no denial of equality
of opportunity by following the rotational system, for determining seniority
in such circumstances. This Court in Mervyn Continho's case agreed with
the Union of India and the theme of the 1959 Circular. This Court held
that where recruitment to a cadre is from two sources, namely, direct
B recruits and promotees and rotational system is in force, seniority is to be
fixed as provided in the Explanation by alternatively fixing a promotee and
direct recruit in the seniority list. By the adoption of the rotational system
this Court did not see any violation of the principles of equality of oppor-
tunity enshrined in Article 16(1) of the Constitution. The argument that
C the system resulted in anomalies was rejected and it was viewed that such
situation had developed since direct recruitments had not kept pace with
the quota fixed and had they kept pace, there would have been no
anomalies in fixing the seniority. This Court then handling the question
observed as follows :

D
'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
E Government service. Any anomalies which may have resulted on
account of insufficient recruitment of direct recruits in the post
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 Govern-
F ment 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 and
G promotees. The order 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 1 : 1 should be worked out.' This order is in accordance \vith
H the circular of 1959 and as we have said already, there is no
•
GAYA BAKSH YADAV v. U.0.1. [PUNCHHI, J.] 545

inherent vice in the principle of fixing seniority by rotation in a A
case where a service is composed in fixed proportion of direct
11
recruits and promotees.

The other grievance of the promotces in Mervyn Continho's case was
in relation to the promotional cadre of Principal Appraisers. There was
only one source of recruitment thereto, i.e., by promo.lion from the cadre
B
of Appraisers. It was therefore ruled that when the source of recruitment
of Principal Appraiser is one, namely, from the grade of Appraisers, there
is, therefore, no question of any quota being reserved for the two original
sources and in their cases the rotational system could therefore not apply,
and rather the normal rule would apply, i.e., that a person promoted to a c
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 was
continuous appointment in the higher grade which determined seniority
because the source of recruitment being one. The departmental method by
D
which seniority in the grade of Principal Appraisers was contrarily fixed
was struck down as it denied equality of opportunity.

It would not only be relevant but pertinent to note here that even
thougb Me1vyn Continho's case was. not fought and defended by the
promotees and direct recruits respectively in a representative capacity, .or E
even relating to any particular Customs House, it was a decision plainly
rendered in relation to the 'Service' as established and governed under the
orders of "the Government of India, issued from time to time, when there
were no statutory rules governing the subject till 1961, when for the first
time, the Customs Appraisers Service Class II recruitment Rules, 1961 F
appeared on the scene. This Court in Me1vyn Continho's case was see1n-
ingly aware of the existence of those rules, since those had been referred
to in the counter then filed, by the Union of India, but those apparently
were not employed in determining the spectrum of the seniority dispute
then existing. There is, therefore no reference to them at all in that
judgment. One of the reasons perhaps could be that in the 1961 rules, there G
is no specific rule .for determination of seniority. Though Rule 3 thereof
lays down four methods for recruitment to the service, Rule 4 mandates
that no appointment shall be made to the service, or to any post borne on
the cadre of the service, by any method not specified under Rule 3.
Additionally, clause 3 of Rule 4 provides that the percentage of posts to H
546 SUPREME COURT REPORTS [1996) SUPP. 2 S.C.R.

A be filled by direct recruitment by competitive examination, or by selection
othenvise than by competitive examination, shall not be Jess than 50 per
cent of the total cadre of Appraisers and the remaining posts may be filled
by any other method mentioned in Rule 3. The rule having forbidden direct
recruitment getting. Jess than 50 per cent, necessarily direct recruitment
could, in some event, be even more than 50 per cent. The rule castes a
B preference an.d leaning towards direct rccruitn1ent and guarantees 50%
allocation. The promotees have to remain content with the remainder, if
any, left after satisfying the 50% allocation or more to the direct recruits.
Here discernibly lies the shift and the discardence of the rotational rule,
the rule accepted in Meriyn Cvntinho's case, in the given event, valid from
C August 15, 1947 (earlier confirmed Appraisers being left undisturbed)
uptill the coming into force of the 1961 Rules and questionably afterwards.

It is not disputed that on the basis of the orders of the Central Board
D of Revenue of the year 1963, as approved by this Court in Meriyn
Continho's case, seniority lists were drawn by the respective custom houses
established in the country. The next promotional avenue then respectively
available to Appraisers was the post of Principal Appraiser which was a
Grade D post, promotion to which was made on regional basis by the
respective Customs Houses. The Grade of Principal Appraiser however
E was abolished on 14.9.1970. The Appraisers thenceforth were made eligible
for promotion directly to the post of Assistant Collector of Customs, a
Group A post, in the Indian Customs and Central Excise Service. Since
the said service was an All India Service need arose to prepare an All India
list of Appraisers working in the Customs Houses. A decision in that
direction was made by the Ministry of Finance, Department of Revenue &
F
Insurance, vide Circular dated 28.2.1973. The following principles were laid
down for the preparation of an All India list of Appraisers for promotion
to the Class I service:

L Direct recruitment Appraisers belonging to three different cadres
G were arranged in the order of their rank in the Select List prepared by the
Union Public Service Commission. This was done taking into consideration
that direct recruits list is made on All India basis.

2. The name of promotee Appraisers belonging to the different
H cadres were so placed in the All India list of direct recruits that their
GAYABAKSHYADAV v. U.0.1. [PUNCHHl,J.] 547

relative seniority vis-a-vis the direct recruits, as obtaining in their respective ·A
cadres, to which the promottees and the direct recruits, belonging to the
year, were maintained.

3. In case more than one promotee officer belonging to different
cadres go placement between two direct recruits, names of such promotees
were arranged in the order of their length of continuous service as Ap- B
praiser.

The basic principle employed for preparing the All India list was in
preserving the inter se seniority of Appraisers in each Customs Houses or
in other words in the original cadre. The employment of such calculation C
became a disquieting factor. Some promotee Appraisers belonging to the
Bombay Customs House cadre found themselves to have become junior to
the promotee Appraisers of Calcutta and Madras Custom Houses cadres.
The seniority list thus prepared on this principle was challenged before the
Bombay High Court by some promottee Appraisers of Bombay Custom D
house vide Writ petition no. 2699 of 1972 which was allowed on October
18, 1979 setting aside the promotions made on the basis of All India Service
prepared in pursuance of the principles contained in the Circular dated
28.2.1973. Direction was issued to the Government to prepare a combined
seniority list of Appraisers all over India on the basis of continuous length
of service rendered by them as Appraisers or any other legal or valid E
principle. No opinion was however expressed by the Bombay High Court
with regard to the validity of the principle set out in the Circular dated
28.2.1973. Rather in so many words the High Court left the validity of these
principles expressly open conceding that if occasion arose the principles
reflected in the decision dated 28.2.1973 might have to be fully considered F
and adjudicated upon. The Government was left to its own to device any
other legal and valid principle, if not the principle of continuous length of
service rendered. The special leave petition of the Union of India, so as to
challenge the judgment and order of the Bombay High Court was rejected
on 22.2.1982.
G
The Government then went into another exercise to untie the knot.
I( made a decision on October 29, 1982 that the direct recruits and the
promottee Appraisers would be brought on two different list on All India
Service basis and the promotional posts of Assistant Collector of Cus-
toms/Central Excise falling in the share of Appraisers will be divided H
548 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A equally between the direct recruits and the promotees. The circular inter
alia provided that promotce Appraisers of all the custom houses could be
brought on one list on the basis of their continuous length of service,
subject to the order on which they wne included in the panel prepared by
the departmental promotion committees in the respective customs houses.
B Further it was provided that vacancies in the Group A meant for Ap-
praisers would be filled up from the two panels i.e. one meant for direct
recruits and the other for the promottee Appraisers, in the ratio of 1:1,
alternative vacancies going to the promottees and direct recruits. This
principle too was unacceptable to some. This time challenge came in the
Madras region. The circular was challenged in the Madras High Court in
C two writ petitions Nos. 9925/82 and 3-77 of 1983 which were allowed on
12-9-1985 quashing the circular dated October 29, 1982 giving a direction
to the Union of India to fix the seniority of the promotees and direct
recruits Appraisers on some fair and just principle without causing serious
prejudice to either of them. The court look the view that the Appraisers
D as a class stood integrated and thus no distinction could be kept alive
between direct recruits and the promotees. Letters Patent Appeal in that
Court filed by the Government was withdrawn but, statedly one letters
patent appeal at the instance of the direct recruits was pending in the
Madras High Court when the Central Administrative Tribunal became
seisen of the matter.
E
Final venture was made by the Government by issuing a circular
dated May 22, 1986 deciding that the promotees of all the three
cadres/regions/custom houses may be placed together on the basis of their
continuous length of service and the direct recruits correspondingly on the
F basis of their inter se ranking assigned by the U.P.S.C. and then an All India
list be prepared by rotating the officers in the two lists in the ratio of 1:1.
The basis of the decision apart, the circular provided that this method
would be applicable only to those Appraisers who were in position on
September 15, 1970 and were recruited/promoted to the Grade on regular
basis upto February 28, 1986. The circular further provided that suitable
G modifications will be made in respect of those promoted/recruited to the
Grade on or after March 1, 1986. Keeping in view the principles contained
in the earlier circular of February 7, 1986. The said circular dated 7.2.1986,
amongst others, provided that the practice of keeping vacant posts for_
being filled up by direct recruits of later years. thereby• giving them in-
H tended seniority over promotees, already in position would be dispensed '
GAYABAKSHYADAV v. U.0.1.[PUNCHHJ,J.] 549

with. It was conceded that when the direct recruits are not available, the A
promotees would be bunched together at the bottom of the seniority list
below the last position upto which it is possible to determine seniority, on
the basis of rotation of quotas with reference to actual direct recruits who
become available. Further the unfilled direct recruits quota vacancies were
to be carried forward and added to the corresponding direct recruit
B
vacancies of the next year (to subsequent years where necessary) for taking
action for 'direct recruitment for the total number according to the usual
practice.

The circular of May 22, 1986 made two different provisions/basis for
two cadres. One commenced for those Appraisers who were in position c
from 15 September, 1970 and were promoted to the Grade on regular basis
upto February 28, 1986 and the other in respect of those
promoted/recruited to the Grade on or after March 1, 1986. This circular
too was put to challenge in this Court by means of a writ petition under
Article 32 of the Constitution but the same was allowed to be withdrawn
D
on October 28, 1986 giving liberty to the writ petitioners lo move the
Central Administrative Tribunal declaring that the Tribunal had authority
tci entertain petitions in a representative capacity. Thus the matter before
the Tribunal was projected as also defended in a representative way in
order to determine whether the impugned circular of May 22, 1986 was fair
and reasonable, not violating the equality rule and if so to ascertain what E
could be the basis to settle this otherwise never-ending dispute.

The Central Administrative Tribunal by an elaborate judgment dated
28.5.1987 quashed the circular dated 22.5.1986 setting aside any promotions
made to the posts of Assistant Collector of Customs and Excise Group A F
on the basis of the said list. The Union of India was directed to prepare
afresh an All India combined list of Appraisers on the basis of continuous
officiation of the incu1nbent in the post of Appraisers leaving a niche that ·
should the Madras High Court reverse the decision of the single Bench in
the Letters Patent Appeal, the Union of India would no longer be under
an obligation to prepare a combined list. The Tribunal recorded that the G
debate had proceeded on the footing that the combined eligibility list of
Appraisers on All India basis has necessarily to be prepared. The Tribunal
expressed no opinion as to on what principle the combined eligibility list
should be prepared in such a contingency. It is this decision of the Tribunal
which is the subject matter of challenge in this bunch of appeals. H
550 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A Having travelled thus far let us take stock of the situation, try to grasp
it and smoothen its rough edges :

(i) The Rule of Mervyn Continho does not touch those Appraisers
who were appointed prior to 15.15.1947.

B (ii) As and from 15.8.1947 the Rule of Mervyn Continho applied till
such date from which the Customs Appraisers Service, Class II Recruit-
ment Rules, 1961, came into force. In accordance therewith there was a
quota system operating rotationally. The anomalies pointed out by the
promotees in working the quota system were ordered to be tolerated.
c (iii) As per mandate of Rule 4-C of the above Rules the percentage
of posts to be filed by direct recruitment, either by competitive examination
or by selection otherwise than by competitive examination, could not be
less than 50% of the total cadre of Appraisers and the remaining posts
could be filled by any other method mentioned in Rule 3. 50% allocation
D is thus assured to direct recruits in the total cadre. They may get even
more; there is no limit to it.

(iv) The above Rules expressly do not provide a fixed unalterable
quota for the promotees (remaining sources), which can keep fluctuating.

E (v) In the absence of specific quotas being fixed in the rules it
becomes evident that the quota rule stands discarded. When there is no
quota provided in the Rules the rotational system cannot function.

(vi) Mervyn Continho's case could have kept applied to the post
Rules period had the quota and rotational rule been preserved. Since
F earlier to the rules the quota and rota principles were in vogue, this Court
in the light of the Government's Orders' then existing, and in particular
that of the year 1959, gave its approval.

(vii) That the service knit up under the Rules is an All India Service.
G (viii) Inter se seniority in the said Rules between the direct recruits
inter-se is determinable in the order of selection prepared by the Union
Public Service Commission from time to time. Direct recruits in selection
are allocable to any of the Customs Houses functioning in the country.

H (ix) Promotees Appraisers get to the service by promotion on selec-
GAYABAKSHYADAV v. U.0.1.[PUNCHHI,J.] 551

tion by the Regional Departmental Promotion Committees, becoming A
members of the All India Service from the date of promotion.

(x) Within the Regional Customs Houses, seniority inter se between
promotees and direct recruits, as also on All India basis, prior to the
coming into the force ·of the Rules had to be regulated by the rotational
principles in accordance with Meryyn Continho's case irrespective of the B
length of continuous officiation.

(xi) In view of the five-judge bench decision of this Court in Direct
Recmit Class II Engineering Officers' Association v. State of Maharashtra
and Others, (1990] 2 SCC 715, no argument can be entertained merely on
a ground of unfairness and unreasonableness to question the ratio in
c
Mervyn Continho's case as that is a binding service precedent. The Rule
of Mervyn Continho's case, however, would apply up to the date when the
Rules came into force.

(xii) Me1vyn Colllinho's case would thus hold the field to regulate D
illler se seniority between the direct recruits and promotee Appraisers on
the basis of quota and rotation, irrespective of continuous length of service
of the promottee. This rule would have, however, to stop w.e.f. date when
the Rule of 1961 came into force.

(xiii) The Direct Recruit's case is the amalgamation of all streams E
of thought, confluencing the entire case law on the subject and given
appropriate placement. Individual reference of each case as cited therein
and at the bar need not be made herein. Reference may be had with
advantage to the report in the Direct Recruit's case.
F
We are not expected to unsettle the principle of Mervyn Coutinho
or to discover instances of the breaking down of the rotational rule on the
basis of some anomalies having arisen, because of direct recruitment not
keeping pace with the situations arising from time lo time. We are equ"lly
not expected to discover any "deemed relaxation" of the Rule on the
supposition of the quota rule having been broken down. We have to G
proceed on the supposition that in the respective Customs Houses, termed
as cadres, there is no inter se dispute of seniority amongst the allocated
direct recruits Appraisers and departmentally promoted Appraisers. The
dispute is narrow and centres on the need to prepare an All India Seniority
List. On every occasion when· the Government of India has made an effort H
552 SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A to draw one, it's effort was thwarted by decisions in succession by the
Bombay High Court, Madras High Court and the Central Administrative
Tribunal. The matter has again been left to the Government of India to
devise a proper principle for drawing a combined seniority list and the
placement of the respective personnel on that list.

B We must bear in mind and strive that there should, in the interests
of justice, be an end to litigation. It has also to be borne in mind that the
attempt herein is not lo amalgamate separate services. Here the service
was and is one i.e. an All India Service of Appraisers. Prior to the Rules
50% posts in the service were filled by direct recruitment and the seniority
C of the selectees was fixed by the U.P.S.C. in the order of selection. Inter se
seniority amongst direct recruits was thus a sealed event. That was the
foundation. Entry into service by promotion was fortuitous dependent on
the exercise by the departmental committees in the respective Customs
Houses and the outcome. l'-'le11i;n Continho's case tells the way to work it
out. In their respective quotas direct recruits as well as promotees rotate
D the quota system as 1:1 as mentioned in Menyn Continho's ca,e. But after
the Rules of 1%1, when the quota system has been discarded Mervyn
Continho's rule cannot apply. As per Rule 4-C of the 1961 rules, the
allocation of at leasl 5or;r po~ts in favour of direct recruits is ensured at all
times. The enlistment of the direct recruits, allocated to Customs Houses
E on the basis of their selection, would obviously present no difficulty.
Equally enlistment of promottee Appraisers, since coming from feeder
sources of Customs Houses, from the date of their promotion, would
present no difficulty. Both would be entitled to placement in the joint
seniority list on the basis of their continuous officiation.

F We thus go to uphold the orders of the Tribunal to this extent that
a fresh All India Combined List of Appraisers be prepared by the respon-
dents on the basis of continuous officiation of the incumbent in the post of
Appraiser appointed on and from the date of the Customs Appraisers
Service, Class II Recruitment Rules 1961. But for Appraisers appointed
G prior to that date the rule of Mervyn Continho would be the basis to work
out the inter seniority of the incun1bents to operate the quota and rotation-
al rule.

The appeals stand disposed of accordingly, No costs.

v'.S.S. Appeals disposed of.