Judgement

JAGANMOHAN REDDY, J. :- Six petitioners, of whom the 4th petitioner has since died, challenge the decision of the first respondent, the Union of India, fixing the principles of seniority of members of the Customs and Central Excise Service Class I as if the combined Service came into existence on April 1, 1959. instead of August 15, 1959 - the date on which the Presidential Resolution dated August 12, 1959 said that the combined Service would come into effect Petitioners 2,3,4,& 6 were appointed as probationary Superintendents of Central Excise Class I in the Central Excise Service Class I with effect from July 13, 1959 on the result of the combined competitive examination held by the second respondent, the Union Public Service Commission, in 1958: (vide notification of the Government of India (Central Excise Establishment) dated August 4, 1959). Similarly, petitioners 1 & 5 were appointed on the same date namely from July 13, 1959, as probationary Assistant Collectors of Customs in the Indian Customs Service Class I on the result of the combined competitive examination held by the second respondent in 1958 : (vide notification of the Government of India (Customs establishment) dated August 4, 1959). The petitioners say that contrary to the Presidential Resolution of August 12, 1959, creating the combined Service Customs and Central Excise, Class I, comprising of all the existing members of both the Service as from August 15, 1959, the impugned decision of the Government which prescribed the principles of seniority of members of the two individual Services as if the combined Services came into existence on April 1, 1959, would affect their seniority as they would be considered to be appointed only after the constitution of the combined Service, when in fact they were members of one or other of the two Services on the date when the combined Service was created. As the combined list of seniority of Officers in the Service was prepared with reference to April 1, 1959 as being the date of the merger, the petitioners complain that they were excluded from the list of Officers appointed to the initial constitution of the Indian Customs and Central Excise Services Class I, even though they had joined the two separate Services on July 13, 1959, as consequence of which persons who would be juniors, if the principles of seniority were made applicable to them, have become senior and have been promoted by over looking their claims. When the impugned letter dated April 7, 1970 gave time till May 15, 1970 calling on any member of the Service to point out any factual mistakes or errors in the application of the principles enunciated in the said letter, it appears all the petitioners made representations in which they asserted that the integration of the two Services having taken place on August 15, 1959, and not on April 1, 1959, they were entitled to be included in the initial constitution of the combined Service and on the application of the principles enunciated in the said letter no distinction could be made between the direct recruits appointed to the Indian Customs Service Class I and the Central Excise Service Class I in the years 1955 to 1958 and the direct recruits appointed to the said two Services in the year 1959. In their representation the petitioners had claimed that they be placed above respondent 3 and requested that till this matter was decided promotions from the combined seniority list below Serial No. 73 should not be made, but in spite of this request, even before the date calling for representation expired, some Officers were promoted on May 11, 1970, without considering their claims.

2. The first respondent in its counter affidavit stated that the idea of having a separate Class I Service for the Central Excise Department was mooted for the first time in 1944, but the final constitution of the Central Excise Service Class I took place only with effect from July 1, 1955; that after the idea of constituting a Cen