Judgment

SUBBA RAO, CJI. : This writ petition raises the question of the constitutional validity of the appointment of respondents 4 to 74 by direct recruitment as Assistant Controllers of Imports and Exports.

2. The relevant facts may briefly be stated. The Imports and Exports organization came into existence during the Second World War. It was expected to be a temporary organization and, therefore, appointments to the various categories in the said organization were made on an ad hoc basis. In the year 1949 it comprised the following posts: Chief Controller, Joint Chief Controller, Deputy Chief Controller, Assistant Chief Controller of Imports and Exports, Executive Officers, Licensing Officers and Junior Licensing Officers. Of these the last 3 were Class II posts and the rest were Class I posts. Subsequently, the posts of Assistant Chief Controllers were redesignated as "Controllers" and the posts of Executive Officers, Licensing Officers and Junior Licensing Officers were converted into one category, namely, Assistant Controllers, Class II. In the year 1949 the appointment of the said officers and their promotions were governed by the principles enunciated in the memorandum No. 30/44-48-Appts, dated June 22, 1949 issued by the Government of India (Ministry of Home Affairs). But, as no rules were prescribed and the appointments were made on ad hoc basis, the Union Public Service Commission rightly raised objections; and after protracted correspondence it was agreed in 1955 that the appointments made by the Ministry during 1947-1951 should be regularized on the basis of the record of work and that in regard to subsequent appointments there should be a ratio of 25 per cent for the departmental promoters and 75 per cent for direct recruits. Ultimately, on June 13 1962, the said arrangement was embodied in the recruitment rules made by the Government of India under Article 309 of the Constitution.

3. There are three main categories of employees in the said department, namely, (i) those appointed prior to January 1, 1952; (ii) those appointed between January 1, 1952 and November 30, 1955, and (iii) those appointed after November 30, 1955. We are now concerned in this petition with those appointed after November 30, 1955. Assistant Controllers, Class II, are appointed from two sources, namely, by promotion from the lower cadre and by direct recruitment. Nothing need be said in this case about the first category, for their appointments are not in question. In the second category there were 76 posts available for recruitment. On the agreed formula of 25 per cent for the department and 75 per cent for direct recruitment 19 posts would go to the departmental candidates and 57 posts to the direct recruits.

4. In December, 1955, pursuant to an advertisement issued by the Union :Public Service Commission, 57 Assistant Controllers were appointed by direct recruitment. After consulting the said Commission, the Government of India fixed the seniority of the Assistant Controllers and prepared a seniority list dated November 30, 1961.

5. At this stage it may be mentioned that 76 posts to which recruitment was made were temporarily manned by departmental promotees. The effect of the new recruitment was that their position of seniority was disturbed by reason of the application of the said ratio of 25 per cent for the departmental candidates and 75 per cent for the direct recruits and by reason of the fact that the direct recruits took precedence over some of them. On November 30, 1961, the Government of India prepared a new seniority list and the said seniority list is given as Annexure F to the petition. The said list comprises three categories of officers: the first category of 47 officers were those that were appointed before January 1, 1952, and whose appointments had been regularized by the Union Public Service Commission; the second category of officers are 76 in number comprising of departmental promotees and the nominees of the Union Pub