S. K. BHATE & ORS. versus UNION OF INDIA & ORS.

S. K. BHATE & ORS.

UNION OF INDIA & ORS.

November 20, 1975

[A. N. RAY, C.J., M. H. BEG, R. s. SARKARIA AND P. N. SHINGHAL, JJ.]

Indian Ordnance Fcctories (Recruitment and Conditions of Servic1• of Class Ill Personnel) Rules, 1956-Appointment to various cadres and )ntcr se seniority-Principles.

The Ordnance Factory in which the petiti~ers were employed hold four cadres. In the 2nd cadrn of non-gazettc;,d officers there were four grades-Foremen. Assistant Foremen, Chargeµren Grade I and Chargemen Grade Jl, The 3rd cadre of non-industrial empioyees had 2 grades Supervisor 'A' Grade and 'B' Grade, and were governed by the Jndian Ordnanc-e Factories (Recruit-ment and Conditions of Service of Class III Personnel) Rules, 1956. Appoint-ment was on 1he basis oi' 20% of. the qnota for direct recruits and 80% for promotees.

In answer to an advertisem.ent for appointment by direct recruitment to the 4 grades of the 2nd cadre, the petitioners, all of whom except petitioner No. 12, were serving as Supervisors 'A' Grade, applied. Petitioner No. 12 was not in ~rvice. They were _interviewed but no_ne of the petitioners, except peti-tioner No. 12, received orders of appointment. Petitioner No. 12 was appOinted Chargeman Grade II. Between April, 1963, and November, 1963, the other petitioners were promoted as Chargemen Grade II. Respondents 5 to 16 who were apprentices, were also promoted as Chargemen Grade II, and were later promoted to the grade of Assistant Fore=n. Treating this order as an order of supersession, the petitioners filed writ petition under Art. 32 claiming to be promotees, and seniority on the basis of statutory rules 10( 1) (i) to (iv) contained in S.R.O. 4.

Dismissing the petition,

HELD: (1) There was justifiable ground for distinction between the peti-tioners, who were direct recruits, and the respondents who were promotees, and hence, there was no violation of Arl 16. [762-G]

The petitioners were really direct recruits and not promotees despite the wrong description in thefr service records and even wrong orders conveying the impression that they were promotees, even though they had not teceived intimation of their appointments as direct recruits. Promotions are only made under i;. 8 of the Indian Ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956, as amended in 1961, to Charge-men Grade II, on tlie basis of selection list prepared by the appropriate Departmental Promotion Commit~e. The Committee had prescribed normal minimum qualification oj 3 years' service in the post of Supervisor Grade 'A' before promotion except in exceptional cases of ex-apprentices. The petitioners did not belong to the class which had any exceptional qualification, and, since they had not satisfied the 3 years' condftion, they could not be considered for prdmotion in the (10% quota reserved for promotees, to the post of Charge-men, Grade IT. [762 B, C, 761 E-H]

(2) The petitioners have no.t established that they have been denied their seniority in violation of any right under Art. 16 nor that the seniority Ji~t bad been nrep.ared in violation of an,y fU]e or principle of justice. The aue~tion of inter se seniority is also based upon the 4: 1 (80% : 20%) ratio and it was for the ·petitioners to satisfy the Court that they were not given the ~enior

orade altbough they satisfied all the required conditions, and that others, who ~vere promoted, were given unjustifiable preference over them. [763C)

1t111rit Lal Berry v. Collector of Cemral Excise Central Revenue & Ors., AIR 1975 S.C. 538 @ 546, followed.

ORIGINAL JURISDiCTION: Writ Petition No. 469 of 1971.

Under article 32 of the Constitution of India.

V. M. Tarkunde, V. N. Ganpu/e and P. C. Kapoor for the peti-tioners.

G. L. Sa11ghi and S. P. Nayar for respondents 1-4, respondents 5 to 16 not .represented .

The Judgment of the Court was delivered by

BEG, J.-Twenty two petitioners under Article 32 of the Constitu-tion, have come to this Court with the following assertion : ( 1) They are employed as civilian non-gazetted 0fficers holding posts of Chargeme;n Grade-II (Chemists) in high explosives' Factory, Kirkee, which is one of the 28 Ordnance Factories, located all over India, con.trolled by Opposite party No. 2, the Director General of Ord-nance Factories, with his Head Office at Calcutta .. (2) The Factory has four cadres of officers: (i) Gazetted officers; (ii) Non-Gazetted Offiders; (iii) Non-Industrial employees; (iv) Industrial employees. The petitioners belong to the seconfl cadre which has four grades: (a) Foremen; (b) Assistant Foremen; (c) Chargemen Gr. I; ( d) Chargemen Grade II. The 3rd cadre of non-industrial employees has two grades : (i) Supervisor 'A' Grade; and (ii) Supervisor 'B' grade. The employees of the 3rd cadre are classified as Class III employees in the general scheme of classifica-tion of Govt. servants who are governed by India Ordance Factori-es (Recruitment and Conditions of Service of Class III personnel) Rules. . ,

(3) The seniority rules of Gazetted and Non-Gazetted officers of the Ordnance Factories are laid down in Office Memorandum dated 4th January, 1956, amended m 1961 (Annexure 'B').

( 4) The Director General of Ordnance Factories, Respondent No. 2, issued an advertisement, dated 14th November, 1962 for direct recruitment to the grade of Foremen, Assistant Foremen, Chargemen Grade I and Chargemen Grade II. At the time of this advertisement, all the petitioners, except petitioner No. 12, were already serving as officiating Supervisors of 'A' Grade of Class III employees. In answer to the advertisement for appointment to temporary posts with prospects of being "considered for permanent appointment in due course", the petitioners, who possessed the mini-mum qualifications prescribed, applied for direct recruitment which was open to them also. The petitioners were called for inter-view by letter issued by the General Manager, High Explosives' Factory, Kirkee, on 7th February, 1963, but, after the interviews, no letters of appointment were received by the petitioners other than petitioner No. 12.

(5) They were promoted between April, 1963, and November, 1963, from their substantive grade of Supervisor 'A' to Clrargemen Grade II by the Gell/Cral Manager of their factory, on short term basis, by virtue of powers delegated to him. Petitioner No. 12, who was not in service at all before, was appointed temporary chargemen, Grade II, in April, 1963, as result of his selection after interview. Respondents 5 to 16, however, entered the grade of Chargemen Gra<Je II between 1st December, 1963 and 4th February, 1965, and were also shown as temporary Chargemcn Grade II, but, they were not holding any post in the grade of Supervisors. The respondents were apprentices before entering into the Grade JI of Chargemen.

( 6) The promotions of the petitioners were given retrospective effect, by an order dated 11th June, 1965, passed by the Director General Ordnance Factories. In December, 1967, however, the petitioners were superseded by others who were alleged to be their juniors. The petitioners made representations and sent reminders which were n9t replied to. Respondents 5 to 16 were promoted from Chargemen Grade II to the grade of Assistant Foremen by an order of the respondent No. 2 Director General Ordnance Factories dated 17th September, l 971. This order according to the petitioners amounted to another supersession of the petitioners who were shown as holding permanent posts only as Supervisors of 'A' Grade in 1971. The petitioners, therefore came to this Court on 14th December, 1971 against the orders dated 17th September, 1971, which amounted to their supersession.

The petitioners also alleged that as no orders were communicated to them showing that they were conside1:Cd direct recruits by the Ordnance Depot by the Ministry of Defence Production in the Govt. of India or anyone on its behalf, they came to know, for the first time, as result of the replies filed by the respondents to the Writ Petition that they were bei~g treated as direct recruits so that they could o•aly be confirmed when their turn came in the 20% quota ol' direct recruits and not in the 80% quota of the promotees. The petitioners, therefore, applied for the amendment of the petition and were permitted by this Court, under an order dated 16th November, 1973, to do so. They alleged, by means of this amendment, that their classification as direct recruits instead of as promotees was "entirely fanciful, arbitrary, and even capricious". They also alleged that the seniority list filed in reply to their petition had been kept concealed from them and that it was prepared in utter disregard to statutory rules 10(1) to 10(4) contained in S.R.O. 4 .. These rules are

10(1) The Director Genl;:ral will prepare seniority list of all the officers in their own categories according to the following procedure :-

(i) As between two officers holding particular.. class ef appointment, in substantive capacity, seniority in that

class of appointment as well as in the officiating appoint-ments held by them in the same rank or different ranks shall be determined with reference• to the date of the subs-tantive appointment.

(ii) Subject to the provisions of clause (iii), an officer holding an appointment in particular class in substantive capacity will he normally senior to an officer holding an appointment in the same class in non-substantive capacity.

(iii) Seniority of persons holding temporary appoint-. mcnts which are made on agreement or on probationary basis and which are expected to be continued after the expiry of the initial period, will be reckoned vis vis others holding permanent appointments in the same grade in the Ordnance Factories from the date from which the officer concerned have been holding appointments of the same grade continuously. The seniority so assigned to such per-sons shall not be disturbed on their confirmation at later stage.Note : This clause applies only to persons recruited through the Union Public Service Commission and to those recruited directly, otherwise than through the Union Public Service Commission prfor to 1st April 1947. (iv) Temporary seniority in given grade will be re-ckoned from the date from which the officer concerned has been occupying it continuously, irrespective of whether he has substantive appointment i!ll some lower grade". The reply of the respondents is that the so called promotion orders, of which the petitioners want to take advantage,. were really the result of mistake or misunderstanding in not realising the actual legal position of the petitioners as direct recruits. It was pointed out that, ill the letters issued calling them for interviews as direct recruits, it was made clear to them thoat their appointments did not carry with them any decision about their fitness- for the post applied for and that they could be considered for any lowe1· post to which they mi!!ht be so entitled. In other words, this clearly meant that they were on trial. It was also pointed out that promotions are only made under Rule 6 of the Indian Ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956, as amend-ed in 1961 to Chargemen Grade II, on the basis of "a selection list prepared by the appropriate Departmental Promotion Committee". Jt was asserted that, in the minutes of the Departmental Promotions• Committee held in the month of April 1963, prior to the appoint-ment of petitioners as Chargemen Grade II, the Committee bad prescribed ·a normal minimum qualification of three years' service in the post of Grade 'A' for promotion barring exceptional cases of ex-aoorentices. It was asserted that, as the petitioners had not satis-fied this con<ljtion, they could not be considered for promotion to the posts of Chargemen Grade IT. They did not belong to the class

which had any exceptional qualifications. Hence, their names did not appear in the list of persons to be promoted prepared by the Departmental Promotions' Committee for the post of Chargemcn Grade II.

• It was asserted that they were being treated as direct recruits and not promotees despite their wrong description and even wrong orders conveying the impression that they were promotees. The con-dition precedent to promotion not having been satisfied they could only be considered as direct recruits and get the appointments reserved for the class of direct recruits as and when their turns arrived in this quota. It was conceded on behalf of the respondents that much larger number of appointments had been made in the class of direct recruits than the vacancies available. It was, how-ever, explained that this was due to the sudden anid exceptional demands for these appointments as result of the pressure on our Ordnance Factories due to the war with China and other defence requirements. It was urged that the petitioners could not take advantage of erroneous orders made by the Manager of their Ordnance Factory even if the error had been repeated by the Director General Ordnance Factories. If the petitioners had not satisfied the condition precedent to promotion, they could not get the appointments reserv-ed for the 80% quota of promotees whose work was watched by the Promotions' Committee so that they could be declared fit for promotion. The promotions were on the basis of selection on merit, the tests of which had not been satisfied by the petitioners. In fact, the petitioners were considered. with others, and were not selected. It was not necessary to give them opportunities of being .heard onl comparative merits, as they claimed, just as candidates at an examination are not entitled to any srich opportunities as these are not disciplinary proceedings. Counsel for the petitioners was, in our opinion, not able to meet the objectionls put forward to petitioners' claims as promotees. He could not show that they satisfied the conditions precedent to promo-tions. Hence, the so called orders of promotion could not cure the defect. It was immaterial that the petitioners were wrongly shown as promotees in their service records or that they had not received intimations ot their appointmetits as direct recruits. There was justifiable ground for distinction between them and the class to which the respondents belonged. There was no challenge to the fairness of the 20% quota reserved for direct recruits as agai!nst that of promotees. Hence, we do rrot think that the petitioners can complain of violation of any fundamental rights under Article 16 of the Constitution.

Petitioners cannot alw claim any benefit resulting from being treated as persons belonging to the s•ame class as respondents 5 to 16 whose places on the seniority list are questioned by them as

being as

amounting to illegal supersessions of the petitioners. We may men-tion here that Mr. Sanghi, Counsel appearing for the Union of India, Respondent No. 1, and the Director General Ordnance Factory, Res-pondent No. 2, and other officials, has fairly conceded that so far as the case of Petitioner No. 11 is co,ncemed, it stands on special footing and that his clients are considering it on that footing. Counr sel for the petitioners has also conceded that so far as 3 of the petitioners are concerned, they have been rightly treated as direct recruits. We find no error i,n treating the others also as direct recruits.

It may also be mentioned here that Mr. Sanghi, Counsel for the Union of India and its officials, has stated to the Court tllat none of the petitioners will be reverted to his substantive post merely on the ground that he was treated as direct recruit. The question of inter-se seniority is different matter. The petitioners have been unable to establish that they have been denied their seniority in violation of any right under Article 16 of the CO'astitution.

It may be mentioned here tlmt, in Amrit Lal Berry Vs. Collector of Centfol Excise Central Revenue & Ors. (1) this Court laid down (at p. 546) :

"It was for the petitioner to satisfy the Court that he was not given the senior grade although he satisfied all the required con<litions of it and that others, who were promoted into it, were given unjustifiable preference over him".

As we are not satisfied that the seniority list has been prepared in violation of any rule or principle of justice, we are unable to accept the petition before us.

We therefore, dismiss this petition. The parties will bear their own costs.

V.P.S .

Petition dismissed.