Judgment

WANCHOO, J. : This petition under Art. 32 of the Constitution by certain Appraisers in the Customs Department of the Government of India is directed against the seniority list prepared in 1963 under the order of the Central Board of Revenue (hereinafter referred to as the Board). The petitioners contend that the list in question denies them equality of opportunity in matters relating to employment under the State enshrined in Art. 16 (1) of the Constitution. The system that prevails for recruitment to the post of Appraisers is that 50 per cent is reserved for direct recruits while the remaining 50 per cent is filled up by promotion from subordinates in the Customs Department. It further appears that seniority is determined in the cadre by the system of rotation, i.e. the list is arranged in such a way that there is one person from the direct recruits and one from the promotees alternately. The contention of the petitioners is that this system has resulted in discriminatory treatment against them with the consequence that promotees of much longer service in the cadre of Appraisers are put in the seniority list below direct recruits with much shorter service. This, according to the petitioners, offends against equality of opportunity guaranteed under Art 16 (1) of the Constitution. That is one grievance of the petitioners. The other grievance of the petitioners is that in the cadre of Principal Appraisers who are all promoted from Appraisers, there is again discrimination and violation of equality of opportunity inasmuch as the same method is followed in the matter of fixation of seniority of Principal Appraisers, though in this case there is only one source of recruitment, i.e., by promotion from the cadre of Appraisers. The petitioners, therefore, pray that the seniority list prepared in 1963 should be struck down as violative of Art. l6 (1) and directions be issued to prepare a fresh seniority list for the cadre of Appraisers They further pray that in the matter of appointment of Principal Appraisers, the system at present being followed in the matter of seniority should be struck down.

2. The petition has been opposed on behalf of the Union. It is contended that in a service where recruitment is partly by promotion and partly by direct recruitment, the system of fixing seniority by rotation is followed and that this is being done in a number of services under the Union. It is urged that there is nothing discriminatory in such a system and there is no denial of equality of opportunity by following the rotational system for determining seniority in such circumstances. As to the Principal Appraisers, the case of the Union is that these posts are selection posts and selection is made from the cadre of Appraisers. For this purpose Appraisers with a minimum service of five years are eligible for promotion and there is a probation of two years before they are confirmed. The Union further contends that by the system of rotation which is being followed in the cadre of Principal Appraisers also what happens is that the seniority of a direct recruit in the cadre of Appraisers is restored as on account of five years qualifications. a direct recruit cannot he promoted to the post of Principal Appraiser while his junior promotee in the post of Appraiser gets such promotion. According to the Union, therefore this system which is given effect to in the cadre of Principal Appraisers merely restores the seniority which a direct recruit had in the cadre of Appraisers. This is the only justification for the system in the matter of seniority in the cadre of Principal Appraisers.

3. We shall first consider the question of Appraisers. As far back as 1936 an order was passed by the Board which laid down that recruitment to the Customs Appraisers Service would he from two sources. i.e., 50 per cent by promotion, 25 per cent directly from experts and 25 per cent by means of a competitive examination or selection by the Public Service Commissi