UOI & ANR v. SUNIL UKE

Judgment

1. The litigating parties are directly appointed officers in the 50% quota allocable to posts in Grade VI Group A Service under f the Customs and Excise Department of the Government of India. The inter-se battle being fought by them pertains to promotions to the post of Deputy Collector now renamed Commissioner. For a better understanding, the cadre structure of posts in Group A of the 'Indian Customs & Central Excise Group A Services' may be noted in a tabular form. The same is as under:- WP(C) No.1762/08,1824/08,4718/08&7419/08 Page 2 of24 k } 9^ Grade Previous nomenclature Present nomenclature Grade VI (Junior Time Scale) Grade V (Senior Time Scale) Grade IV (Junior Administrative Scale) Grade III (Non-functional Selection Grade of Junior Administrative Grade) Grade II (Senior Administrative Grade) Assistant Collector Assistant Commissioner Assistant Collector • Deputy Commissioner Deputy Collector Joint Commissioner Additional Collector Additional Commissioner of Customs & Central Excise Collector Commissioner of Customs & Central Excise Grade 1 Principal Collector Ctiief Commissioner of Customs St Central Excise

2. It may be noted that appointnrient within Group A Sen/ices is 100% by promotion and to the lowest post in Group A i.e. the post of Assistant Collector now redesignated. as Assistant Commissioner the method of appointment is 50% by promotion and 50% by direct recruitment. Senior-most officers in Group B Superintendents eligible for promotion as Assistant Commissioner of Central Excise Group. B, Superintendents Customs Group B and Customs Appraisers Group B from the feeder channel.

3. Three Original Applications being OA No.2456/2003, OA No.2072/2004 and OA No. 362/2005 filed by Shrl Sunil Uke, Shrl P.R.Chandrasekharan

and Shrl C.P.Srivastava, respectively have allowed by the Central Administrative Tribunal vide Impugned 29'*^ March, 2007, holding in the concluding paragraph 19 of the order as under:- "19. After considering the rival contentions of parties In view of and on perusal of discussion made records as well as above, we do herein WP(C) No.1762/08,1824/08,4718/08&7419/08 Page 3 of24 I justification in respondents' On the other hand, we find weighty justification Accordingly, OAs are allowed and we hold as follows: stand taken in their reply. by applicants. in the contention reasons raised Vide

13.08.1990, respondents the Hon'ble (a) Supreme Court directed to fill up 157 posts of Deputy Collectors on the basis of "selection on merit" by constituting appropriate DPC from the list of officers within the zone of consideration and further observed that promotions so effected would be subject to such further or final to "review as a sequel orders that may be made in these matters." of the said writ petitions (b) While disposing 22.11.1996, M\ India Federation of Central Excise vs. Union of India & Ors. (1997) 1 SCC 520, the aforesaid interim order was neither varied nor modified. On the other hand, para 19 of said judgment would show that Government was directed to "rearrange their inter- se seniority and promotions of respective direct recruits and promotees within their quota and consequential higher services." in further promotions (c) The Government was directed only to rearrange their inter-se seniority and not to disturb the. manner in which promotions of promotion and sequence recruit orders were Assistant Collectors, as Assistant Commissioners. re-designated particularly of direct issued . (d) The vacancies against which the applicants were promotedwere priorto the year 2002. Paragraph5 of the DOP&T OM dated 08.02.2002 states that the said 0ivi "shall come into force from the date of its issue". In the circumstance, DPC held later while considering the officials was not justified to implement and follow the said Oivi. specifically ^ Impugned orders vide which respondents issued (e) notification rejecting applicants' representation are quashed and set aside. dated 03.05.2002 as well as (f) Respondents are directed to re-convene the DPC particularly for the next higher posts for which earlier the date DPCs had been held after 22.11.1996 when the Hon'ble Supreme Court pronounced Page 4 of24 i.e. WP(C) No.1762/08,1824/08,4718/08&7419/08 case, without in Ail India Federation of Central aforesaid judgment Excise to OM dated taking 08.02.2002 and as per the DOPT's OM of 10.04.1989 and regulate consequential benefits." accordingly with promotions recourse

4. The Union of India has filed the three out of four captioned petitions challenging the said connmon decisions of the Tribunal disposing of three Original Applications. The aggrieved private respondents have filed the fourth Writ Petition being WP(C) No.7419/2008. For convenience we would be referring to the pertaining the Original Application P.R.Chandrasel<haran and for purposes of illustration would be referring to P.S.Pruthi first writ petitioner of WP(C) No.7419/2008, as agreed to by learned counsel for the parties; and needless to state the said facts are common to the Original Applications filed by Sunil Ul<e and C.P.Srivastava.

5. . The challenge before the Tribunal was to an order dated

3.5.2002 as also an order dated 17.10.2002; the first being a Presidential Order pertaining to 'Indian Customs & Central Excise Service' officers who were officiating on ad-hoc basis as Joint Commissioner of Customs and Central Excise (Junior they stood regularly Administrative Grade) notifying that appointed as Joint Commissioners on regular basis with effect i t %• from the date of commencement of the panel year; Shri.P.R.Chandrasekharan regarding seniority the second in the grade of representation rejecting Joint Commissioner as notified in the order dated 03.05.2002. The origin of to a the instant dispute 6. seemingly unrelated event of the past. The seniority of the its source of Central Excise Group B, feeder cadre i.e. Superintendents Superintendents of Customs Group B and Custom Appraisers impacted the Group B was in dispute and as a result WP(C) No.1762/08,1824/08,4718/08&7419/08 Page 5of24 2p promotions to be effected from the three feeder cadre posts; and in turn the seniority in Group A - Grade VI posts was affected.

7. The issue of seniority on promotion of the Officers in the three feeder cadre posts was the subject matter of various writ petitions,which were pending in the Supreme Court and the first one being WP(C) No.4532-33/1978. Thereafter two writ petitions filed in the year 1988 and one in the year 1990 got tagged on to the said writ petition. WP(C) No.4532-33/1978 challenged the existing rule for promotion and the two writ petitions which were V filed in the year 1988 questioned the new rules which were promulgated in the year 1987.

8. As a result of non-finalization of the seniority list of the cadre services and the same having three feeder resultant impact as noted hereinabove, promotions to the post of Joint called Commissioner Deputy Collector could not be effected due to interim orders passed by the Supreme Court. Two Interim Applicationsbeing in Group A hitherto-fore (Grade IV) lA No.6/1990 and lA No.7/1990 were filed in WP(C) 4532- 33/1978 praying for modification of the interim orders, which appear to have been passed from time to time, were filed in which Union of India informed the Court that 157 posts of Deputy Collector i.e. in Grade IV of Group A were vacant having ^ effect on the collection serious it was prayed that the Union of India be permitted to fill up the said posts and for which the Supreme Court was beseeched to pass appropriate directions. Moved by the pathetic cries of the Union of revenue and thus India, interim applications vide order dated 13.8.1990; noting in para 3 that Supreme Court disposed the learned Additional Solicitor General submitted that some reasonable basis though ad-hoc and subject required to to the final result be evolved to fill-up these posts in the larger WP(C) No.1762/08,1824/08,4718/08&7419/08 Page 6 of24 interest of administration. Vide order dated 13.8.1990, Supreme Court permitted filling up of 157 posts of Deputy Collectors by effecting promotions on the basis of selections on merit after constituting appropriate Departmental Promotion Committee, so however, that out of the said 157 posts, 57 posts are filled up by officers who are promotees from the feeder line in Group B posts and 100 by directly recruited officers. It was further directed that while so doing it would be ensured that no promotee to the cadre of Assistant Collector (Grade VI post Group A) will find a place in the list higher than that of an officer directly recruited as Assistant Collector before the promotee and that the promotions would be purely ad-hoc and shall be subject to review as a sequel to such further or final orders as may be made in this regard. This was followed by another order dated

06.08.1991 in which the Supreme Court noted that though DPCs' were constituted , and recommendations received, promotions were not made to fill-up 157 posts of Deputy Collectors on ad-hoc basis and finding no justification for the Union of India in not effecting ad-hoc promotions directed needful to be done within 15 days. In the concluding para of the order dated 6.08.1991 the Supreme Court clarified; 'since by the DPC is oniy to facilitate the ad-hoc the assessment promotion and these promotions themselves are liable to be reviewed pursuant to the final decision on the merits of the the deliberations of the DPCs' shall not be held pending case, conclusive against any person in the event of such review of to the promotions and that all the promotions will be subject final result of the pending cases'.

9. Relevant would it be to note; and this fact is germane to the Supreme the controversy which we need to decide, Court had permitted, though as an ad-hoc measure, promotions to be effected and had made it clear the same was an WP(C) No.1762/08,1824/08,4718/08&7419/08 Page 7 of24 •> interim arrangement, clearly directed promotions should be on the basis of selections on merit and the reason for this appears to be that the Recruitment Rule in question which was in vogue when the interim orders were passed, vide Serial No.20, clearly mandated that appointment Grade IV posts shall be made by promotion on the principle of in Grade IV of the service and the Selection on Merit of officers 10.03.1989 contemporaneous stipulated the benchmark 'Good' with further clarification that officers graded as 'Outstanding' would rank en-block senior to Office Memorandum dated those who were graded as 'Very good' and officers graded as 'Very good' would rank en-block senior to those who are graded as 'Good' and within same grading would maintain their inter-se seniority as per the feeder post. The result was that ad-hoc promotions made were upon the DPCs' assessing the directly recruited officers as also the promotee officers with reference to merit and with those who achieved 'Outstanding' being placed above those who achieved 'Very good', who in turn were placed achieved 'Good'. Though recommendations of the DPC are not before us, but evidenced from the P.R.Chandrasekharan, Sunil Uke C.P.Srivasatava are litigating being aggrieved by the Presidential Order dated 3'"'' May, 2002, though junior to the writ petitioners of W.P.(C) 7419/2008, in the Promotional Order issued

23.5.1991 were placed higher in ranking.

10. On 23'"^ May, 1991 an order was Assistant Collectors to the post of Deputy Collector, issued promoting clearly the promotions were on officiating basis. informing that 100 directly recruited officers holding the post of Assistant Collector were listed at seriatim and 36 promotee officersholdingthe post Collector were of Assistant promotion. WP(C) No.1762/08,1824/08,4718/08&7419/08 further The names of Shri C.P.Srivastava, Shri seriatim for listed Page 8 of24 P.R.Chandrasekharan and Shri Sunil Like were shown at Serial No.19, 22 and 62 respectively in the list of 100 directly recruited officers. That of Shri P.S.Pruthi is at Serial No.29. 11, The inter-se seniority dispute amongst the officers of the three feeder services i.e. Superintendents of Central Excise Group B, Superintendents of Customs Group B and Customs Appraisers Group B, pending since 1978 was decided by the Supreme Court on 22.11.1996; the decision reported as All India Federation of Central Excise vs. UOI & Ors. (1997) 1 see 520 in which the Supreme Court upheld the V' decision of the Competent Authority to allocate posts in the combined seniority to the persons holding posts in the three cadre posts in the ratio 6:1:2 for Superintendents of Central Excise Group B, Superintendents of Customs Group B and Customs Appraisers, respectively. The proposal that the rotation would be first six vacancies to Superintendents of Central Excise, the seventh to Superintendents of Customs and the eighth and ninth to the Customs Appraisers was also accepted. Rule 18(2) of the Indian Customs & Central Excise Service Group A Rules 1987 which was under challenge and pertained to the induction in Grade VI posts of Group AServiceswas directed to ad-hoc promotions made from time to time were directed to be incorporate aforenoted. amended All reviewed. In para 18 and 19 of the decision the Supreme Court observed as under:- "18. As stated above, we find that the above modified proposal is just, fair and equitable and accordingly we direct the Union of India to amend the impugned Rules so far as Group 'A' Service is concerned. Review all post 1979 ad hoc promotions to the post of Senior Superintendent/Assistant promote quota in the light of the present proposal, redetermine the respective placement of the promotee officers in the combined Group 'A' seniority list and regularize accordingly the posts of ad hoc promotions. Collector in the WP(C) No,1762/08,1824/08,4718/08&7419/08 Page 9 of24 / ;2 u -J Public through recruits therefore, recruitment be Incumbent In Group 'A' Service of tlie Customs and Excise 19. 50% of tine cadre strength are filled by Department, Service Union direct Commission and the balance 50% are filled through promotion from Group 'B' cadres. Group 'B' Officers when promoted to Group 'A' Service, obviously have to occupy more than 50% of their prescribed no right upon the quota. It would, Government the seniority to rearrange or regularize list in Group 'A' Service keeping the inter-se quota of intact and should and promotees the direct not allow either to get any promotion in excess of their The ad hoc promotions given to Group 'B' quota. Officers in Group 'A' Service, to interim have any orders of this Court, would not, effect or prejudice the interests or rights of the direct recruits seniority in the It would, therefore, be of necessity that the judgment. seniority Government and promotions of the respective direct recruits and promotees within their consequential promotions in further higher services. Their seniority be arranged accordingly." of Group 'A' Service while rearranging in Group 'A' Service pursuant therefore, should rearrange indicated inter-se

12. Providence had ordained that litigation would continue and indeed It has. The Union of India took excessive time to re- workout the promotions in the 50% promotee quota in Group A Service after amending Rule 18(2) of the Indian Customs & Central Excise Service Group A Rules 1987 to bring the Rule in conformity with the ratio to be maintained, as per the decision of the Supreme Court, inter-se the three feeder cadre posts and seniority to be re-drawn as accepted by the Supreme Court. The list could be re-drawn somewhere in the year 2002 and by then an Office Memorandum dated 08.02.2002 came into existence superseding the Office Memorandum dated 10.03.1989. In regard to posts where mode of promotion was 'selection' (selection-cum-seniority and selection by merit) the guidelines prescribed were that for Group A posts the benchmark shall be WP(C) No.1762/08,1824/08,4718/08&7419/08 Page 10 of24 'Very Good' and for the lower grades it would be 'Good'. The Office Memorandunn in question, is but apparent, made a significant departure from the previous. Those who were 'Outstanding' and 'Very Good' came at par and all of them had to be clubbed together with inter-se seniority being the same as per the seniority in the feeder post. The ones who achieved the benchmark 'Good' could earn no promotion. Relevant would it be to note, we say so for the reason an argument was advanced, that the Office Memorandum dated 08.02.2002 was prospective and contemplated amendment to the Service Rules, evidenced by para 5 and 6 of the Office Memorandum, which two paragraphs read as under: The instructions "5. Office Memorandum shall coriie into force from the date of its issue. contained . / circulation instruction so that are requested revised to these in the matter Rules to give 6. Ministries/Departments general guidance immediate Service Rules/Recruitment various services/post/grades appropriately incorporate the mode of promotion as 'selection' (in accordance by merit' and 'selection-cum-seniority' 'selection (as was hitherto by the aforementioned OM The dated March 27, 1997) as the case may be. powers to amend Service Rules/Recruitment Rules in Ministries/Departments, DOPT need not be consulted to carry, out the required amendments." instructions) delegated prescribed regard

13. Treating pursuant promotions effected to the Office Order dated on officiating basis 23.05.1991 as an interim measure and for Superintendents the reason the seniority in the Customs, Excise and Custom Appraisers (integrated) was revised and promotions allocable to their 50% quota in the promotional post in Group A WP(C) No.1762/08,1824/Q8,4718/08&7419/08 in the lowest rung i.e. Grade VI Page 11of24 were effected and thereafter a revised seniority list of promotees and direct recruits in Grade VI posts in Group A was up, Departnient reconstituted Departnnental Promotion Committee and with reference to the year-wise vacancies for the panel year 1986-87 till the panel year 1991-92 and drew up fresh panel and since by then the Office Memorandum dated 08.02.2002 had come into force, at •PCs', the benchmark for promotion considered was 'Very Good' those who achieved and all the benchmark were promoted retaining their seniority in the feeder post. Relevant would it be to note that the panel was re-drawn from amongst the eligible promotee and direct recruit officers and zone of consideration V to the vacancies was restricted with reference in each panel year. The result was that Shri P.S.Pruthiearned a promotionto the post of Deputy Collectorfor the panel year 1987-88 and was Shri C.P.Srivastava and Shri placed at Serial No.ll. P.R.Chandrasekharan could earn the promotion pertaining to the panel year 1989-90 and were placed at Serial No.8 and 40, respectively. Shri Sunil Like could earn a promotion for the panel year 1990-91and found a place at Serial No!43. Aforesaid notifying stands appointment on regular basis as Joint Conimissioners. 14. It is thus apparentthat Shri P.S.Pruthibecameseniorto Shri C.P.Srivastava, Shri

3.5.2002 reflected became senior P.R.Chandrasekharan and in turn who became senior to Shri Sunil Uke.

15. It may be noted that for the various panel years, vacancies filled up were as under:- ^ ) Panel Year 1986-87 1987-88 1988-89^ 1989-90 1990-91 No. of vacancies. 11 11 10 57 67 Page 12of24 WP{C)No.l762/08,1824/08,4718/08&7419/08 i 1991-92 35

16. Shri P.R.Chandrasekharan filed a representation questioning liis seniority being affected. In a nutshell he claimed that the promotions effected vide order dated 23rd May 1991 were on the basis of scrutiny by a DPC with selection being the criteria followed as per the then existing Office Memorandum dated

10.03.1989 and that the issue of promotion the direct recruited officers in Grade VI of Group A posts could not be undone. He questioned the seniority of directly recruited officers who had been promoted under said Office Order being now undone. Additionally he pleaded the year-wise vacancy had to be filled up as per the Rules and executive instructions in vogue for the panel year in question and thus he questioned the criteria for promotion being adopted as per the Office Memorandum dated S'*" February 2002. He highlighted the vacancy panel were for the panel years 1986-87 till 1991-92. Lastly, he submitted the Office Memorandum dated 8'^ February 2002, vide paragraph 5 thereof, was clearly and demonstratively prospective in its operation and in the alternative he pleaded, with reference to para 6 of the Office Memorandum dated 08.02.2002, the same required the Recruitment Rule to be amended for which he highlighted that the existing Rule 20 of the Indian Customs and Central Excise Service Group A Rules 1987, which provided the principle of 'selection on merit' to be adopted for promotion to Group A posts in the service was not amended even till when the DPC met in the year 2002. He thus pleaded seniority of the directly recruited officers who were promoted as Deputy Collectors to be re-drawn with reference to the merit position as drawn by the DPC which met in the year 1991 pursuant to the recommendations whereof Promotional Order

23.05.1991 was issued. WP(C) No.1762/08,1824/08,4718/08 &7419/08 The representation was rejected vide Page13 of 24 order dated 17.10.2002 informing liim tlnat the DPC which met in iViarch 2002 was bound to follow the instructions issued by DOPT.

17., It may be noted that the Rejection Order dated 17.10.2002 does not highlight by the writ petitioners of W.P.(C)7419/2008 in para 4(xi), with reference to the issue, but as pleaded its Office Memorandum dated 08.02.2002, DOPT had clarified as under: . is clarified the hianner of assessment "It prescribed in this Department's Office Memorandum dated 8.2.2002 will be required to be observed by all original DPCs held on or after 8.2.2002 (including for preparation year-wise panels, where the DPCs could not meet in the relevant years). It is further clarified that ad-hoc promotions made due to non-finalization to be of seniority list in the feeder grade, are not compared with promotions ordered pursuant of an original DPC. Normally a DPC is held to make regular promotions after finalization of. the seniority list and in such a case DOPT Instruction 8.2.2002 will apply." (emphasis supplied)

18. Being aggrieved by the fact that the promotion order rejection representations and the

3.5.2002 resulted loosing seniority, C.P.Srivastava, P.R.Chandrasekharan and Sunil Uke approached the Central Administrative Tribunal praying that the order dated 3.5.2002 by quashed as also the various communications issued to them rejecting their representation be quashed and directions \ \ I ' issued to the Union of India to maintain seniority in terms of the ^promotional order dated 23.5.1991. Needless to state the submissions which they urged were the same which they had stated in their respective representation against the promotion order dated 3.5.2002 and which contentions have been noted by us briefly in para 16 above, save and except a further submission urged, being that the promotions effected in the year 1991 were pursuant WP(C) No.1762/08,1824/08,4718/08&7419/08 to interim orders passed by the " Page 14 of24 Supreme Court and that while disposing of the writ petition the in para 19 of its decision, had only permitted, Supreme Court, the department promotees to re-arrange the inter-se seniority of the recruits and thus within the direct and the direct recruits the department could not have re-drawn the seniority.

19. The Tribunal allowed the three Original Applications the crystallized reasons of the Tribunal are as to be noted in (a) to (d) of Para 19 of the decision dated 29.3.2007, sub-paras contents whereof have been noted by us in para 2 above.

20. Of the 4 reasons given by. the Tribunal it is apparent the first Supreme Court and the final directions petitions, three pertain to the interim orders passed by the issued in the writ lead matter being the writ petition filed by the 'All India Federation of Central Excise'.

21. Before dealing with the reasons given by the Tribunal it would be useful if we highlight a very important circumstance which has escaped the attention of the Tribunal. Though, the facts enwombing the circumstance have been noted by the Tribunal, but the circumstance has unfortunately being ignored.

22. The fact, as noted by the Tribunal, is that the integrated the post of seniority list of Superintendent Central Excise, Superintendent of Customs and the three feeder posts i.e. Customs Appraiser was unsettled, when by way of an interim (/ order dated department

13.8.1990, to fill up 157 posts of Deputy Collectors but clearly the Supreme Court permitted stated that the same would be ad-hoc and subject to final result. It is no doubt true that the Supreme Court directed that the ad- hoc promotions would be based on selection by merit and thus the persons who were promoted on ad-hoc basis earned the ad- hoc promotion on the basis of the process of selection and since the . office memorandum

10.3.1989 assessment of merit was on the basis of the said office WP(C) No.1762/08,1824/08,4718/08&7419/08 Page 15 of24 •J memorandum. It Is also a fact that 100 directly recruited officers to the post of Assistant Collector and 36 officers promoted to the said post were promoted, on ad-hoc basis. But there is no the circumstance ignored by the Tribunal is that material to show that the said 136 persons were subjected to the selection process with reference to year wise vacancies in the panel year, which as noted in para 15 above were 11 vacancies each for the panel years 1986-87 and 1987-88; 10, 57 and 67 vacancies pertaining to the panel years 1988-89 till It may be highlighted that 11+11+10-1-57+67 = 156 1990-91. s j i.e. the vacancies which the Supreme Court permitted to be filled up by ad-hoc promotion. There is no material to show that the individuals were considered with persons eligible to be considered for promotion. is a very vital circunistance circumstance to a list of This, the reason a reference settled seniority list is the sine qua non before a list of eligible persons to be considered for promotion can be drawn up and thereafter the select list prepared; and indeed this is the ethos of the clarificatory memorandum contents whereof have been noted in para 17 above.

23. What is the relevance of the aforenoted circumstance? Rather than being verbose, let us illustrate on the facts of the instant case.

24. For the panel year 1986-87 there were only 11 vacancies to be filled up by promotion from the Assistant Collectors to the post of Deputy Collector. If the panel was drawn as per the requirement of law in the year preceding the panel year 1986- 87, law requires a panel to be. ready for the anticipated vacancies in the ensuing year, the department had to list 33 persons who were eligible to be considered for promotion; reason required 3 times the number vacancies to be the number of persons who were eligible to be . WP{C) No.1762/08,1824/08, 4718/08 &7419/08 31 considered for promotion. Needless to state, the said 33 persons would be the integrated lot "of directly recruited Assistant Collectors and those who had earned promotion to the post of Assistant Collector. These 33 persons had to be picked up with reference to their seniority position in the integrated list of Assistant Collectors, subject to they being eligible to be considered for promotion. Applying the norms to determine merit, select panel would have been prepared in which 11 out of 33 would have earned promotion. The remaining 22 would have to await further consideration the next year. As noted hereinabove for the panel year 1987-88, 11 vacancies existed and thus the process followed for the preceding year would have been re-run; and likewise when 10, 57 and 67 vacancies were filled up in the next 3 years. Relevant would it be to note that while so doing, the integrated seniority list of Assistant Collectors; having within its integrity the directly recruited Assistant Collectors and the promotee Assistant Collectors had to form the basis for drawing up the panel of the eligible candidates falling within the zone of consideration and further •the select panel.

25. Admittedly, this did not happen when the promotion list dated 23.5.1991 was issued. It could not have so happened because the inter-se integrated seniority of the three feeder cadre posts who would have filled up 50% of the reservoir of Assistant Collectors was in litigation. Further, after the Supreme Court decided the pending matters on 22.11;1996, the position of the seniority of the persons from the three feeder cadre posts / got settled and re-working the integrated seniority at the feeder in the promotional post of Assistant Collector (re-designated level, persons respective earned Assistant Commissioner) persons integrated with their directly recruited brothers. Thus, WP(C) No.1762/08,1824/08,4718/08&7419/08 Page 17of24 effect of the aforesaid circumstance noted by us would be as illustrated by us and we feel the illustration would be sufficient to bring home the effect of the circumstance and we need not theorize any further save and except to reiterate that the select panel for the year-wise vacancies could not have been worked upon till the inter-se seniority dispute of the Superintendents Excise, Superintendents Customs and Customs Appraisers was settled and which came to be settled only in the year 1996 and thus obviously whatever happened prior thereto pursuant to the interim orders passed by the Supreme Court ad-hoc arrangement. The ad-hoc arrangement could not have lasted beyond when the dispute got settled before the Supreme Court and as a result thereof the seniority in the feeder cadre was redrawn and resultantly the jDersons who came to be promoted as Assistant Collectors were known and thereafter these promoted officers were integrated with the directly recruited officers. The current events which took place in the year 1996 required a reflection back; to make the past conform to the present and the present to be the basis ' J? ^ for the future. future with the past would not be acceptable. 26. by the Tribunal, the reference Thus, Ignoring the present and directly connecting the in the first reasons advanced by the Tribunal, to the language of the interim orders and the final order passed by the Supreme Court is out of context and additionally for the reason, decisions by a Court are never treated as theorems or as statutes. Further, is settled that a ratio of a decision is what is decided by a Court and not what can be logically, deduced. In this connection we may highlight that nobody informed the Supreme Court that the ad-hoc promotions were affected not on the basis of a year wise vacancy panel and indeed there was no need to inform said fact to the Supreme Court because the ad-hoc promotions were by WP(C) No.1762,/08,1824/08,4718/08&7419/08 Page18 of 24 3:r way of an ad-hoc interim arrangement. It is true that in the interim order dated 13.8.1990 the Supreme Court had observed that the interim arrangement would be reviewed as a sequel such further or final orders that may be made by the Supreme Court and that while finally deciding the writ petitions Supreme Court directed to re-arrange the inter-se seniority of the promotees and direct recruits, within their quota, for further promotion. But the said observations and directions have to be understood in the context in which they were made. The context before the Supreme Court was the inter-se dispute between Superintendent Central Excise, Superintendent Customs and Customs Appraisers. Their inter-se dispute was having a resultant impact on the directly recruited Assistant Collectors reason two streams i.e. the stream of promotees and the stream of direct recruits were filling up the common reservoir of Assistant Collectors. The reservoir had to be filled up by water flowing from the two streams in the same proportion and then it had to flow ahead. It was not that the reservoir could be half filled by the direct recruits and made to flow ahead and then filled up half by the promotees and made to flow ahead. The further flow was hand in hand. It is in this context the observations/directions of the Supreme Court which have been extracted by the Tribunal in. sub-para (b) of Para 19 of its decision have to be understood and not as if the the inter-se seniority of Supreme Court had in its mind that persons promoted on ad-hoc basis as Deputy Collector/Joint Commissioner from amongst the direct recruits stood settled. We re-emphasize that the issue which confronted the Tribunal was not even born when the Supreme Court adjudicated pending matter decided by it on 22.11.1996 and thus the decision of the Supreme Court could not be the foundation of any right in favour of any person, save and except the right WP(C) No.1762/08,1824/08,4718/08&7419/08 • Page 19 of24 u } which Supreme Court settled Inter-se the Superintendents of Excise, Superintendents of Customs and Customs Appraisers. 27. Dealing with the fourth reason given by the Tribunal in sub-para (d) of para 19 of its decision,it is no doubt true that till 01^ dated 8.2.2002 was issued, the field was occupied by the OM dated 10.3.1989 and it is no doubt true that the applicable Recruitment Rule lists the basis of selection to be merit promotion to the post of Deputy Collector/JointCommissioner and that merit had to be recl<oned as per the Oi^I dated 10.3.1989 and as extracted by us in para 9 above. Further undoubtedly it is settled law that vacancies have to be filled up as per the applicable Recruitment Rule or an office instruction or an office memorandum in force in the year when the vacancy accrued and unless a rule is amended with retrospective effect instruction or an office on an office memorandum is made applicable retrospectively, the vacancies have to be filled up from amongst the eligible persons and applying the law in force in the year of the vacancy. The legal position being settled, we simply learned counsel Sh.P.R.Chandrasekharan had cited numerous decisions of the in respect whereof Supreme Court which hold so and Sh.J.L.Gupta learned Senior Counsel and Sh.Amarjit Singh Chandhiol< learned Additional Solicitor General conceded that the law is as noted by us and thus we do not note the said decisions. It is also correct that the OM dated 8.2.2002, far from being retrospective, vide para 5 thereof, clearly states that has to apply prospectively and it is also true that Rule 20 of the Indian Customs & Central Excise Services Group A Rules 1987 has not been amended and the Rule continues to list the post of Deputy Collector/Joint Commissioner as requiring to be filled up by promotion on the principle of selection on merit.

28. Now, principle selection on merit is not a WP(C) No.1762/08,1824/08,4718/08&7419/08 Page 20of24 C /' / jurisprudential concept, office memorandums issued by the Government from time to time and we highlight this with reference to the office memorandum dated 10.3.1989, which deals with criteria to be followed determine merit for posts where promotion is made by the method of selection. In other words, what should be the to determine merit principle is a matter of policy and the Government/Executiveis free to lay down a criteria subject of course to the same being reasonable and reasonableness understood on the well-known 'Wednesbury's' principle. Thus, hardly matters whether the applicable Recruitment Rule was amended, notwithstanding paragraph 6 office memorandum dated 8.2.2002. .29. But the last limb of the argument needs to be dealt with for which we advanced by Shri C.Harishankar, learned counsel who very ably espoused the cause of Shri P.R.Chandrasekharan and Shri C.P.Srivastava, with Shri Sunil Uke getting free benefit of good counsel. The in any case the vacancy panel had to be submission was that redrawn with reference to the law in force in,,the panel years and that 157 vacancies pertaining to the panel year 1990-91 and prior, up to the. year 1986-87 had to be filled up on the criteria for selection as per the office memorandum dated

10.3.1989.

30. Logically and rationally the argument is correct. But, the lifeline of law is not logic or reason but life's experience commonsense. Rules of law are meant to sub-serve the cause of justice and it is not unknown to judges to be encountering situations where logic and reason have to be abandoned and a practical approach, adopted to resolve an issue.. Problems encountered by Judges as aforenoted are also encountered the Executive and faced with a situation where the logic or the WP(C)No.l762/08,1824/08,4718/08817419/08 Page 21of24 reason of a rule of law leads to a breakdown situation, executive decision to ignore the applicable rule and craft a decision which does justice has been accepted by the Courts.

31. In the decision reported as 1990 (2) SCC 715 Direct in para 23 it was observed: Recruit Class II Engineering Officers' Association \/s. State of Maharashtra & Ors.. if it 'But becomes impractical to act upon it (? The rule) it is no use insisting that the authorities must continue to give effect to it There is no sense in asking the performance of something which has become impossible. Of course, the Government, before departing from the rule, must make eveiy effort to respect, and only when it ceases to be feasible to enforce it, that it has to be In the decision reported as AIR 1977 SC 2051 ignored'. in para S.B.Patwardhan & Anr. \/s. State of Maharashtra & Ors.. 51 the Court observed that judges should not be unmindful of and as long administrative difficulties faced by the executives executive in action, as there is fairness decisions must be respected. We may only add that the decisions of the Courts where quota rota rule have broken down are best illustration of how Courts have accepted the practical reality of life and have ignored strict compliance with the letter of the law. Indeed, no Judge can put himself in a straitjacket, much less apply known If the demand of a and existing formula to remedy all ills. situation is to be rationalist, the Judge must wear the robes of a rationalist and where a situation demands, the Judge has to wear the robes of a situationalist Judge.

32. The extreme, could be the argument that the department should be called upon to re-work the panels commencing from the panel year 1986-87 after the integrated seniority list of the Superintendents Excise, Superintendents Customs and Customs Appraiser and from the three feeder cadre posts, 50% quota to the post of Assistant Collector/Assistant Commissioner be filled WP(C) No.1762/08,1824/08,4718/08&7419/08 Page 22of24 V \ \ \ i 0 I 3 ^ up and further integrated seniority list of promotees and direct recruits as Assistant Gollector be drawn up and then applying the norms as per O.ivi. dated 10.3.1989 fresh select panel be prepared year wise. Thus, it can be urged that In this way the letter as also the spirit of the law can be enforced.

33. But, we have a problem at hand. The three original applicants before the Tribunal questioned promotions given to the promotee Assistant Collectors. In the absence of said persons being impleaded as parties, we cannot grant any relief which would be to their prejudice. We may note is not in dispute the select panel prepared and notified on 3.5.2002 is with reference to the year-wise vacancy and contains the'integrated names of Assistant Commissioners who reach the post by way of promotion and those who were directly recruited. It is also not in dispute that while drawing up the select panel the DPC considered the requisite number of eligible persons and all those who achieved the benchmark 'Very Good' were placed in the panel with reference to their seniority as Assistant Collector. This has happened for 6 successive panel years. It would thus be a contradiction to retain the said select panel vis-a-vis the Promotee Officers and have a different panel for the Direct Recruited Officers. This would run contrary to the Jurisprudence of Service Law which makes it impermissible to segregate a homogenous class with reference to their past. It is in this context, we find full justification in the clarification issued by the DOPT as per its memorandum dated 8.2.2002, contents whereof have been noted by us in para 17 above. The office memorandum correctly highlights that regular promotions can only be made after finalization of the seniority list for the reason only when the persons in the zone of consideration are ascertained with clarity, can the further process of evaluating them on a given WP(C) No.1762/08,1824/08,4718/08&7419/08 Page 23of24 criteria be completed. Under no circumstances can it be that directly recruited officers would earn promotion in the same panel year on a different criteria for merit and the promotee officers would earn promotion in the same panel year on a different criteria.

34. Thus, not on the letter of the law or the logic, but guided by the situation and requiring a situationalist approach to be adopted, we are of the opinion that the promotion order dated 3.5.2002 has to be upheld and maintained.

35. The writ petitions are allowed. The impugned judgment and order dated 29.3.2007 is set aside and OA No.2456/2003, OA No.2072/2004 and OA No.362/2005 filed by Sunil Uke, P.R.Chandrasekharan and C.P.Srivastava are dismissed, without any orders as to costs. Parties shall bear their costs throughout PRADEEP NANDRAJOG, J. DECEMBER 03, 2010 dk/mm SIDDHARTH MRIDUL, J. WP(C) No.1762/08,1824/08, 4718/08 &7419/08