Mervyn Countindo & Ors. v. Collector of Customs, Bombay & Ors.

In this landmark judgement, the 5-judge bench ruled on the constitutional validity of rotational system of seniority of Appraisers and Principal Appraisers in the Customs Department.
CITATIONAIR 1967 SC 52
COURTSupreme Court of India
JUDGES/CORAMChief Justice Gajendragadkar, Justice K.N. Wanchoo, Justice J.C. Shah, Justice Sikri and Justice Ramaswami
DATE OF JUDGEMENT14.02.1966

Introduction

In the landmark decision in Mervyn Coutindo v. Collector of Customs, the Constitution Bench of Hon’ble Supreme Court expounded the true notion of Article 16(1) of the Constitution which guarantees to the citizens of India ‘equality of opportunity’ and opined that mere anomalies arising out of a fortuitous circumstance cannot by itself be a ground for striking down the rotational system as it is not a vice inherent in the impugned system.

Facts

The facts of the case are as follows: In the instant case, certain Appraisers in the Customs Department of the Government of India invoked the extraordinary writ jurisdiction of the Hon’ble Supreme Court under Article 32 of the Constitution of India assailing the constitutional validity of the rotational system for determining seniority to the post of Appraisers and Principal Appraisers in view of Article 16(1) of the Constitution.

The system that prevailed for recruitment to the post of Appraisers was that 50 percent was reserved for direct recruits while the remaining 50 percent was to be filled by promotion from subordinates in the Customs Department. By virtue of circular dated 12.12.1959, the Government of India stipulated that relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which was based upon the quota of reservation for direct recruitment and promotion respectively in the Recruitment Rules. It was further provided that a roster had to be maintained based on the reservation for direct recruitment and promotion in the recruitment Rules and appointments were to be made in accordance with this roster and seniority determined accordingly. Considering, that the said 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, it was pleaded that the seniority list prepared in 1963 should be struck down as violative of Article 16(1) and directions are issued to prepare a fresh seniority list for the cadre of Appraisers.  Since the same method was adopted in the matter of appointment of Principal Appraisers, the petitioners prayed for striking down the same as being violative of the fundamental freedom of equality of opportunity guaranteed under Article 16(1) of the Constitution.

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Issues

The main issue in the case was: Whether or not the rotational system of seniority to the post of Appraisers and Principal Appraisers in the Customs Department was against the letter and spirit of Article 16(1) of the Constitution and ergo, ultra vires.

Summary of court decision and judgment

K.N. Wanchoo, J., speaking for the Constitution Bench of Hon’ble Apex Court opined that the anomalies referred to in the petition arise not on account of there being anything opposed to equality of opportunity in government service by the use of the rotational system but out of the fortuitous circumstance that in the particular service of Appraisers, for one reason or another, direct recruitment had fallen short of the quota fixed for it and these anomalies, the Hon’ble Court held cannot be made the sole ground for striking down the rotational system, which, in itself does not amount to denial of equality of opportunity in the matter of employment in government service engrafted in Article 16(1) of the Constitution. In doing so, it was further clarified that carry-forward Rule which had already been struck down in T. Devadasan v. Union of India[1] had no application to the facts of the present petition as the whole cadre of service i.e., appraisers were divided in certain fixed proportions between promotees and direct recruits. Accepting the second grievance raised by the petitioners, it was held that since there was only one source of recruitment namely appraisers as opposed to two sources of recruitment in the case of appraisers, the impugned system was not consistent with the fundamental freedom of equality of opportunity and the seniority had to be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from the Appraisers’ grade is a direct recruit or a promotee. Ergo, while dismissing the petitioners as regards seniority of appraisers, the grievance concerning the seniority of Principal Appraisers was allowed.

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Analysis

The judgment delivered by the five-judge bench of the Hon’ble Apex Court lays down the correct proposition of law as the grievance of the petitioners who joined service earlier assailed the validity of the impugned rule in view of Article 16(1) of the Constitution could not be accepted as mere anomalies arising on account of a fortuitous circumstance whereby direct recruitment had fallen short of quota fixed for it, cannot be made the basis of striking down the rotational system for ascertaining seniority for the post of Appraiser which otherwise suffered from no inherent vice and withstood the scrutiny of Article 16(1) of the Constitution which guarantees to the citizens of India the intransgressible right to equality of opportunity in matters of public employment. As far as the seniority list was prepared following the impugned system for the post of principal appraisers, it was opined as being violative of the tenets of Constitution as there was only once a source of recruitment i.e. appraisers and it was rightly held that it is on the basis of date of promotion that the seniority of the officers had to be counted from irrespective of their birthmarks.

Conclusion

The dicta of the Hon’ble Court in the present case has heralded the true notion and scope of Article 16(1) of the Constitution and has rightly upheld the vires of the rotational system of seniority vis-à-vis the post of appraisers.


[1] (1964) 4 SCR 680.