PETITIONER: PALURU RAMKRISHNAIAH & ORS. ETC. Vs. RESPONDENT: UNION OF INDIA & ANR. DATE OF JUDGMENT28/03/1989 BENCH: OJHA, N.D. (J) BENCH: OJHA, N.D. (J) PATHAK, R.S. (CJ) SHARMA, L.M. (J) CITATION: 1990 AIR 166 1989 SCR (2) 92 1989 SCC (2) 541 JT 1989 (1) 595 1989 SCALE (1)830 ACT: Administrative Law: Executive instructions---cann ot override any provision of the Statutory Rules. Civil Services: Indian Ordnance Factories (Recruitme nt and Conditions of Service of Class III Personnel) Rule s, 1956: Rules 8, 12 and circular dated November 6, 1962--Supervisors Grade 'A'promotion to Chargeman II on completion of two years satisfactory service--Whether the re is discrimination and any condition of service of Supervis or 'A' affected. HEADNOTE: The petitioners in the writ petitions were appointed as Supervisors Grade 'A' in various ordnance factories betwe en 1962 and 1966, in pursuance of circular dated 6th Novembe r, 1962 issued by the Director General of Ordnance Factorie s. The circular further provided for promotion from Supervis or 'A' to Chargeman I1, on completion of two years' satisfact o- ry service. 75 Supervisors Grade 'A' had moved a writ petition in the Allahabad High Court in 1972. Their grievance was th at even though quite a large number of Supervisors Grade ' A' had been promoted to the post of Chargeman Grade II on completion of two years' satisfactory work, in pursuance of the circular dated 6th November, 1962, they had been di s- criminated against and had not been so promoted immediate ly on the expiry of two years' service. The writ petition was contested on the ground that t he promotion from Supervisor Grade 'A' to Chargeman II we re governed by the Indian Ordnance Factories (Recruitment a nd Conditions of Service of Grade III Personnel) Rules, 19 56 and such promotions could be made only in accordance wi th the procedure prescribed by Rule 8 of these Rules. The learned Single Judge dismissed the writ petition on the ground of unexplained laches. The Division Bench did n ot find any substance in the submission made on behalf of t he petitioners and dis- 93 missed their special appeal. According to the Divisi on Bench, it was difficult to read in the circular that aft er two years of satisfactory service there would be automat ic promotion from Supervisor Grade 'A' to Chargeman II as su ch a view would militate against Rule 12 of the Rules, whi ch provided that no appointment shall be made otherwise than as specified in the Rules. It was further held by the Divisi on Bench that even assuming that some Supervisors Grade 'A' h ad been automatically promoted on completion of two year s' service, without the recommendation after screening by t he Promotion Committee, as provided in Rule 8, no right wou ld accrue in favour of the appellants inasmuch as such prom o- tions would be in the teeth of Rule 12. Against the judgment of the Division Bench, Civil Appe al No. 441 of 1981 (Virendra Kumar and Others v. Union of Ind ia and Others, [1981] 3 SCC 30) was preferred and this Court by its order dated 2.2.1981 directed that the cases of the 75 appellants in Civil Appeal No. 441 of 1981 be considered f or promotion as Chargeman Grade II and they be so promot ed unless found to be unfit. Another group of 125 Supervisors Grade 'A' got t he benefit of the Circular dated 6.11.1962 in pursuance of an order passed by the Madhya Pradesh High Court on 4th Apr il 1983 on the basis of the judgment of this Court in Civ il Appeal No. 441 of 1981. Special Leave Petitions against t he judgment of the Madhya Pradesh High Court were dismissed by this Court. The petitioners in the present writ petitions pray th at the same relief may be granted to them as had been grant ed in Civil Appeal No. 441 of 1981. In the Civil Miscellaneous petitions now filed in Civ il Appeal No. 441 of 1981, the petitioners, apart from t he prayer for initiating proceedings for contempt against t he respondents for disobedience of the order of this Cou rt dated-2.2.1981, have prayed for orders directing the r e- spondents to implement in true letter and spirit the sa id order and to promote the petitioners to the next high er posts after giving them the benefit of the directions of that order. Their grievance is that their promotion tant a- mounts to implementation of the order of this Court dat ed 2.2.1981 only on paper inasmuch as they have not been gran t- ed the difference of back wages and promotion to high er posts on the basis of their back-date promotion as Chargem an II. Before this Court it has been urged on behalf of the r e- spondents 94 that (i) promotions of employees including Supervisor ' A' were governed by the Rules and in view of Rule 12 no a p- pointment could be made otherwise than as specified therei n; (ii) appointments by promotion were to be made according to Rule 8 on the basis of selection list prepared in the mann er provided there in and there was no scope for automat ic promotion merely after expiry of 2 years of continuo us service on the basis of the circular dated 6th Novembe r, 1962; (iii) the circular which was in the nature of an executive instruction prescribed 2 years' service as Supe r- visor 'A' to make them only eligible for promotion; and (i v) after the issue of the subsequent order dated 28th Decembe r, 1965 and circular dated 20th January, 1966 no Supervis or could claim to have become eligible for promotion merely on completion of 2 years' satisfactory service and his prom o- tion thereafter could be effected only in accordance wi th the normal Rules. Dismissing the writ petitions and disposing of t he miscellaneous petitions, it was, HELD: (1) An executive instruction could make a prov i- sion only with regard to a matter which was not covered by the Rules and such executive instruction could not overri de any provision of the Rule. [103E] B.N. Nagarajan v. State of Mysore, [1966] 3 SCR 68 2; Sant Ram Sharma v. State of Rajasthan, [1968] 1 SCR 11 1; Ramchandra Shenkar Deoghar v. The State of Maharashtr a, [1974] 1 SCC 317; Union of India v. Somasundaram Viswanat h, [1988] 3 SC. Judgments Today 724, referred to. (2) Notwithstanding the issue of instructions dated 6 th November, 1962 the procedure for making promotion as la id down in Rule 8 of the Rules had to be followed, and the sa id procedure could not be abrogated by the executive instru c- tions dated 6th November 1962. [103F] (3) The only effect of the circular dated 6th Novemb er 1962 was that Supervisors 'A' on completion of 2 year s' satisfactory service could be promoted by following t he procedure contemplated by Rule 8. This circular had inde ed the effect of accelerating the chance of promotion. T he right to promotion on the other hand was to be governed by the Rules. This right of promotion as provided by the Rul es was neither affected nor could be affected by the circula r. [103F-G] 95 (4) After the coming into force of the order dated 28 th December, 1965 and the circular dated 20th January, 19 66 promotions could not be made just on completion of 2 year s' satisfactory service under the earlier circular dated 6 th November, 1962, the same having been superseded by the lat er circular. [106H; 107A-B] (5) Circular dated 20th January, 1966 could not be treated to be one affecting adversely any condition of service of Supervisors 'A'. Its only effect was that t he chance of promotion which had been accelerated by the circ u- lar dated 6th November, 1962 was deferred and made depende nt on selection according to the Rules. Though a right to be considered for promotion was a condition of service, me re chances of promotion were not. [106G-H] Ramchandra Shankar Deodhar v. The State of Maharashtr a, (supra) and Mohammad Shujat Ali & Ors. v. Union of India JUDGMENT:
Ors., [1975] 3 SCC 76, referred to.
(6) Supervisors ‘A’ who had been promoted before t
he
coming into force of the order dated 28th December, 1965 a
nd
the circular dated 20th January, 1966 stood in a cla
ss
separate from those whose promotions were to be made ther
e-
after. The fact that some Supervisors ‘A’ had been promot
ed
before the coming into force of the order dated 20th Jan
u-
ary, 1966 could not, therefore, constitute the basis for
an
argument that those Supervisors ‘A’ whose cases came up f
or
consideration thereafter and who were promoted in due cour
se
in accordance with the Rules, were discriminated agains
t.
[107B-C]
(7) There were sufficient indications that when Civ
il
Appeal No. 441 of 1981 was heard by this Court either t
he
subsequent order dated 28th December, 1965 as well as t
he
circular dated 20th January, 1966 and the legal consequenc
es
flowing therefrom were not brought to the notice of t
he
learned Judges by the learned counsel for the respondent
s,
or the same was not properly emphasized. [105E-F]
(8) The findings of the Madhya Pradesh High Court in i
ts
judgment dated 4th April stood approved by this Court wh
en
the Court dismissed the special leave petition against th
at
judgment. The appellants in Civil Appeal No. 441 of 19
81
therefore deserved to be granted the same benefit as regar
ds
back wages and further promotion as were given by the Madh
ya
Pradesh High Court to such of the petitioners before th
at
Court who were Supervisors ‘A’ and were granted promotion
as
Chargeman I1 by its judgment dated 4th April, 1983. [108
H;
109D]
96
(9) This was not a fit case for initiating any procee
d-
ings for contempt against the respondents. [109F]
&
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 530
of
1983 etc.
(Under Article 32 of the Constitution of India).
V.A. Bobde, Shyam Mudaliar, V.M. Tarkunde, G.L. Sangh
i,
A.K. Sanghi, Mrs. R. Karanjawala, Mrs. Meenakshi Karanjawa
la
N.M. Popli and V.J. Francis for the Petitioners.
Ms. A. Subhashini, D.N. Dwivedi, Girish Chandra, C.V.
S.
Rao, M.C. Dhingra and N.K. Sharma for the Respondents.
The Judgment of the Court was delivered by
OJHA, J. The petitioners in the aforementioned wr
it
petitions claim to have been appointed as Supervisors Gra
de
‘A’ in various ordnance factories between 1962 to 1966 a
nd
have filed these writ petitions with the prayer that t
he
same relief may be granted to them also as was granted
by
this Court to 75 appellants in Civil Appeal No. 441 of 19
81
vide its order dated 2nd February, 1981. The three civ
il
miscellaneous petitions referred to above on the other ha
nd
have been made by the appellants of Civil Appeal No. 441
of
1981 asserting that the direction given by this Court on 2
nd
February, 1981 has not been complied with in the manner
as
it ought to have been by the respondents and they should
be
consequently required to comply with the said direction. T
he
exact nature of the prayer made in these miscellaneo
us
applications shall be indicated after referring to t
he
relief granted on 2nd February, 1981 in Civil Appeal No. 4
41
of 1981.
The 75 appellants of Civil Appeal No. 441 of 1981 fil
ed
a writ petition in the Allahabad High Court in 1972 asser
t-
ing that they had been appointed as Supervisors Grade ‘A’
on
various dates in pursuance of a circular dated 6th Novembe
r,
1962 issued by the Director General of Ordnance Factorie
s,
the relevant portion whereof reads as hereunder:-
“Subject: NON-INDUSTRIAL ESTABLISHMENT PROMOTION
D.G.O.F. has decided that Diploma holders serving as
97
Supervisor ‘A’ (Tech)/Supervisor ‘B’/(Tech) and in equiv
a-
lent grades should be treated as follows
(i) All those Diploma holders who have been appointed
as
Supervisor ‘B’ (Tech) (and in equivalent grades) should
on
completion of one year’s satisfactory service in ordnan
ce
factories be promoted to Supervisor ‘A’ (Tech) and in equi
v-
alent grades.)
(ii) All those Diploma holders who work satisfactorily
as
Supervisor ‘A’ (Tech) or in equivalent grades for 2 years
in
Ordnance Factory should be promoted to Chargeman.
Kindly acknowledge receipt.
Sd/-K.G. Bijlani
ADGOF/Est. for D.G.O.F.
Their grievance in the writ petition was that ev
en
though quite a large number of Supervisors Grade ‘A’ h
ad
been promoted to the post of Chargeman grade II on compl
e-
tion of two years’ satisfactory work they had been discrim
i-
nated against and had not been so promoted immediately
on
the expiry of two years’ in pursuance of the aforesa
id
circular even though their work was satisfactory. The reli
ef
prayed for in the said writ petition was for the issue of
a
writ of mandamus directing the Union of India through t
he
Director General of Ordnance Factories to promote the appe
l-
lants to the post of Chargeman II. The writ petition w
as
contested by the respondents thereto inter alia on t
he
ground that under the rules of promotion from Supervisor ‘
A’
to Chargeman II first Departmental Promotion Commit.tee
at
the factory level and then a Departmental Committee at t
he
Central level screens the service record of each of t
he
Supervisors ‘A’ who comes within the range of eligibili
ty
and then finally the Director General of Ordnance Factori
es
draws up a list and sanctions promotions. It was furth
er
asserted that in accordance with the said rule the cases
of
all the appellants were screened by the Promotion Committ
ee
at the factory level and then at the Central level and th
ey
not having been found fit were not promoted. It appears th
at
the criterion of promotion is seniority-cum-merit. T
he
learned Single Judge, however, did not go into the merits
of
the controversy and dismissed the writ petition on t
he
ground of unexplained laches and also on the ground that
a
previous petition for similar relief had not been presse
d.
Against the
98
judgment of the learned Single Judge the appellants pr
e-
ferred a special appeal before a Division Bench of th
at
Court. The learned Judges who decided the special appeal d
id
not consider it appropriate to uphold the dismissal of t
he
writ petition on the technical ground which found favo
ur
with the learned Single Judge and they went into the meri
ts
of the respective contentions of the parties. They, howeve
r,
did not find any substance in the submission made on beha
lf
of the appellants and accordingly dismissed the speci
al
appeal on 8th February, 1977. The learned Judges pointed o
ut
that it was admitted that the conditions of service applic
a-
ble to the case of the appellants were governed by t
he
Indian Ordnance Factories (Recruitment and Conditions
of
Service of Class III Personnel) Rules, 1956 (hereinaft
er
referred to as the Rules) framed by the President of Ind
ia
under Article 309 of the Constitution. It was further poin
t-
ed out that Rule 8 contemplated that appointments by prom
o-
tion were to be made on the basis of a selection list pr
e-
pared for the different grades by duly constituted Depar
t-
mental Promotion Committees laid down in the said ru
le
whereas Rule 12 provided that no appointment to the posts
to
which these rules apply shall be made otherwise than
as
specified therein. With regard to the circular dated 6
th
November, 1962 the learned Judges took the view that it w
as
difficult to read in that circular any intention or delibe
r-
ation on the part of the Director General of Ordnance Fact
o-
ries that as soon as two years were completed by a diplo
ma
holder in the Grade of Supervisor ‘A’ there would be
an
automatic promotion to the post of Chargeman Il. Accordi
ng
to the learned Judges such a view would militate again
st
Rule 12 of the Rules mentioned above. It was further he
ld
that even if it was to be assumed that the Director Gener
al
of Ordnance Factories automatically promoted some Superv
i-
sors ‘A’ immediately on the completion of 2 years of servi
ce
to the post of Chargeman II without the recommendation aft
er
screening by the Promotion Committee no right would accr
ue
in favour of the appellants inasmuch as such promotio
ns
would be in the teeth of Rule 12 and could not confer
a
legal right on the appellants to be likewise promoted
in
breach of Rule 12. With regard to the plea based on Artic
le
16 of the Constitution. it was held “A half-hearted argume
nt
was raised at the end of the hearing on behalf of the appe
l-
lant-petitioners that they have been discriminated again
st
by depriving them the benefit of automatic promotion
in
violation of constitutional guarantee under Article 16
of
the Constitution. This was an argument, neither pleaded as
a
ground for the petition nor was raised before the learn
ed
Single Judge. Moreover, we do not think any case, on t
he
basis of violation of Article 16 of the Constitution can
be
found in favour of the appellant-petitioners only becau
se
some
99
supervisors, equally placed, were promoted against the rul
es
of service. No formal foundation has been raised in t
he
pleadings in the writ petition in support of the grou
nd
based on Article 16 of the Constitution.”
It is against this judgment that Civil Appeal No. 441
of
1981 was preferred in this Court. Since the order dated 2
nd
February, 1981 passed in Civil Appeal No. 441 of 1981, so
to
speak, constitutes the basis for the writ petitions me
n-
tioned above, it is in our opinion expedient to reprodu
ce
the said order. It reads:–
“Heard counsel. Special leave granted.
“Our attention has been invited by learned counsel for bo
th
the sides to the relevant rules which govern promotion
to
the post of Chargeman Grade II. It appears that a lar
ge
number of persons have been promoted to those posts thou
gh
they have completed only two years of service. The Gover
n-
ment now appears to insist that in so far as the appellan
ts
are concerned they cannot be considered for promotion unle
ss
they complete three years of service. We see no justific
a-
tion for any such differential treatment being given to t
he
appellants. If a large number of other persons similar
ly
situated have been promoted as Chargeman Grade II aft
er
completing two years of service, there is no reason why t
he
appellants should also not be similarly promoted aft
er
completing the same period of service. We are not suggesti
ng
that the appellants are entitled to be promoted to t
he
aforesaid posts even if they are found unfit to be promote
d.
We Therefore direct that the concerned authoriti
es
will consider the cases of the appellants for promotion
as
Chargeman Grade II and promote them to the said posts unle
ss
they are found to be unfit. If the appellants are promote
d,
they will naturally have to be promoted with effect from t
he
date on which they ought to have been promoted.
This order will dispose of the appeal. There will be
no
order as to costs.”
As already pointed above the petitioners in the writ pet
i-
tions refer-
100
red to above have prayed for the same relief which w
as
granted in Civil Appeal No. 441 of 1981. Now we shall rev
rt
to the exact prayers made in the three miscellaneous pet
i-
tions aforesaid. The prayer made in Civil Miscellaneo
us
Petition No. 3325 of 1987 is for the issue of an inter
im
order restraining the respondents from making any furth
er
promotions during the pendency and final heating of t
he
miscellaneous petition and for initiating contempt procee
d-
ings. Almost analogous prayer had been made in Miscellaneo
us
Petition No. 9357 of 1983 also namely that the responden
ts
may be restrained from promoting officers to the next high
er
posts on the basis of recommendations of certain Departme
n-
tal Promotion Committees without complying with the dire
c-
tions of this Court in its order dated 2nd February, 198
1.
The reliefs prayed for in the above two civil miscellaneo
us
petitions are thus of an interim nature. The main relie
fs
which have been prayed for apart from for initiating pr
o-
ceedings for contempt for disobedience of the order of th
is
Court dated 2nd February, 1981 are reliefs (i), (ii) a
nd
(iii) contained in Civil Miscellaneous Petition No. 9356
of
1983. They are as hereunder:–
“(i) pass appropriate orders directing the respondents
to
implement in true letter and spirit, the judgment of th
is
Hon’ble Court dated 2.2.1981 in Civil Appeal No. 441 of 1
98
1;
(ii) issue appropriate directions commanding the responden
ts
to promote the appellants to the next higher posts
of
Chargeman Grade I, Assistant Foreman, and Foreman, wi
th
effect from the date they are entitled to, after giving th
em
the benefit of the directions of this Hon’ble Court dat
ed
2.2.1981;
(iii) issue appropriate directions to the respondents
to
give all consequential benefits to the appellants, includi
ng
payment of arrears.”
The aforesaid writ petitions came up for hearing befo
re
a bench of two learned Judges of this Court on 9th Septe
m-
ber, 1987. On the view that the judgment of this Court dat
ed
2nd February, 1981 in Civil Appeal No. 441 of 1981 in t
he
case of Virendra Kumar and Others v. Union of India & Ors
.,
[1981] 3 SCC Page 30 may require reconsideration, the pet
i-
tions were directed to be placed before a three Judge Ben
ch
“where inter alia the correctness of the judgment could
be
looked into and the nature of relief available to the pet
i-
tioners on the
101
facts now stated would also be considered.” It is in view
of
this order that these matters have been listed before us.
Learned counsel for the petitioners contended that t
he
reason which weighed with this Court in allowing Civ
il
Appeal No. 441 of 1981 applies to these writ petitions al
so
and the same relief may accordingly be granted to the pet
i-
tioners. It was also brought to our notice that similar
ly
placed 125 employees got the benefit of the circular dat
ed
6th November, 1962 in pursuance of an order passed by t
he
Madhya Pradesh High Court on 4th April, 1983 in writ pet
i-
tions filed by them. It was urged that in case the sa
me
relief is not granted to the petitioners they are likely
to
become juniors to some of the appellants in Civil Appeal N
o.
441 of 1981 and the petitioners in the writ petitions deci
d-
ed by the Madhya Pradesh High Court on 4th April, 1983.
For the respondents on the other hand it was urged th
at
service conditions including promotion of employees inclu
d-
ing Supervisors ‘A’ in the Indian Ordnance Factories we
re
governed by the Rules and in view of Rule 12 no appointme
nt
to the various posts to which the Rules applied could
be
made otherwise than as specified therein; According
to
learned counsel since Rule 8 of the Rules contemplated th
at
appointments by promotion were to be made on the basis
of
selection list prepared in the manner provided therei
n,
there was no scope for automatic promotion merely aft
er
expiry of 2 years of continuous service on the basis of t
he
circular dated 6th November, 1962. According to learn
ed
counsel the Rules did not prescribe the minimum number
of
years of service as Supervisors ‘A’ which would make th
em
eligible for promotion as Chargeman II and the circul
ar
dated 6th November, 1962 which was in the nature of
an
executive instruction prescribed 2 years’ service as Supe
r-
visor ‘A’ to make him eligible for promotion. Howeve
r,
merely on completion of two years’ service a Supervisor ‘
A’
could not claim automatic promotion. On the other han
d,
promotion depended, inter alia, on availability of posts a
nd
the incumbent being found fit by the Departmental Promoti
on
Committee for being included in the selection list. It w
as
only such a Supervisor Grade ‘A’ whose name found place
in
the selection list who could be promoted to the post
of
Chargeman II as and when vacancies were available. It w
as
further urged that the petitioners of these writ petitio
ns
were on the basis of the Rules considered for promotion a
nd
it is not disputed that all of them have in due course be
en
promoted as Chargeman II and some of them have even be
en
promoted to higher posts. Our attention was further invit
ed
by learned counsel for the respondents to an order commun
i-
cated among others to the Director
102
General of Ordnance Factories, vide letter dated 28th Dece
m-
ber, 1965 of the Government of India, Ministry of Defenc
e,
saying inter alia that a minimum period of service of thr
ee
years in the lower grade should be fixed for promotion
to
the next higher grade. It was pointed out that this had be
en
found necessary not only because it would be in conformi
ty
with the practice obtaining in other Ministries but al
so
because on merits this period is necessary to judge t
he
performance in the lower post and the potentialities f
or
promotion to a higher post. He also brought to our notice
a
subsequent circular dated 20th January, 1966 by the Direct
or
General of Ordnance Factories who had issued. the earli
er
circular dated 6th November, 1962 which provides:–
“Sub: N.G. Establishment–Treatment of Diplo
ma
Holders and ex-apprentices serving as Supr. A Gr. or
in
equivalent grades in the matter of promotion.
Ref: This office confidential No. 673/A/NG dt. 6.11.
62
and 4416/A/NG dt. 29.6.65.
The question of promotion of Diploma holders
in
Mech/Elec. Engineering and Ex-apprentices serving as Sup
r.
‘A’ Gr. or in equivalent grades has received further consi
d-
eration of the D.G.O.F. who has decided that in futu
re
promotions of all such individuals will be effected
in
accordance with the normal rules i.e. on the basis of the
ir
listing by the relevant D.P.C. and not merely on completi
on
of 2 years satisfactory continuous service as Supr. A Gr.
or
equivalent grades.”
It was urged that after the issue of the subseque
nt
order dated 28th December, 1965 and circular dated 20
th
January, 1966 no Supervisor ‘A’ could claim to have beco
me
eligible for promotion merely on completion of 2 year
s’
satisfactory service and his promotion thereafter could
be
effected only in accordance with the normal Rules.
Having heard learned counsel for the parties we fi
nd
substance in the submission made by the learned counsel f
or
the respondents. Relying on two earlier decisions in B.
N.
Nagarajan & Ors. v. State of Mysore & Ors., [1966] 3 SCR 6
82
and Sant Ram Sharma v. State of Rajasthan & Anr., [1968]
1
SCR 111 it was held by a Constitution Bench of this Court
in
Ramachandra Shankar Deodhar and Ors. v. The State of Mah
a-
rashtra & Ors., [1974] 1 SCC 317 that in the absence
of
legislative Rules it was competent to the State Governme
nt
to take a
103
decision in the exercise of its executive power under Art
i-
cle 162 of the Constitution. The matter has been consider
ed
in a recent decision of this Court in the case of Union
of
India & Ors. v. Sh. Soraasundararn Viswanath & Ors., [198
8]
3 S.C. Judgments Today 724 wherein it has been held:–
“It is well settled that the norms regarding recruitment a
nd
promotion of officers belonging to the Civil Services can
be
laid down either by a law made by the appropriate Legisl
a-
ture or by rules made under the proviso to Article 309
of
the Constitution of India or by means of executive instru
c-
tions issued under Article 73 of the Constitution of Ind
ia
in the case of Civil Services under the Union of India a
nd
under Article 162 of the Constitution of India in the ca
se
of Civil Services under the State Governments. If there is
a
conflict between the executive instructions and the rul
es
made under the proviso to Article 309 of the Constitution
of
India, the rules made under the proviso to Article 309
of
the Constitution of India prevail, and if there is a co
n-
flict between the rules made under the proviso to Artic
le
309 of the Constitution of India and the law made by t
he
appropriate Legislature, the law made by the appropria
te
Legislature prevails.”
It is thus apparent that an executive instruction cou
ld
make a provision only with regard to a matter which was n
ot
covered by the Rules and that such executive instructi
on
could not override any provision of the Rule. Notwithstan
d-
ing the issue of instruction dated 6th November, 1962 ther
e-
fore, the procedure for making promotion as laid down
in
Rule 8 of the Rules had to be followed. Since Rule 8 in t
he
instant case prescribed a procedure for making promotion t
he
said procedure could not be abrogated by the executi
ve
instruction dated 6th November, 1962. The only effect of t
he
circular dated 6th November, 1962 was that Supervisors ‘
A’
on completion of 2 years’ satisfactory service could
be
promoted by following the procedure contemplated by Rule
8.
This circular had indeed the effect of accelerating t
he
chance of promotion. The right to promotion on the oth
er
hand was to be governed by the Rules. This right was co
n-
ferred by Rule 7 which inter alia provides that subject
to
the exception contained in Rule 11, vacancies in the pos
ts
enumerated therein will normally be filled by promotion
of
employees in the grade immediately below in accordance wi
th
the provisions of Rule 8. The requirements of rule 8
in
brief have already been indicated above. Rule 12 provides
104
that no appointment to the posts to which these rules app
ly
shall be made otherwise than, as specified in these rule
s.
This right of promotion as provided by the Rules was neith
er
affected nor could be affected by the circular. The ord
er
dated 28th December, 1965 which provided a minimum period
of
service of three years in the lower grade for promotion
to
the next higher grade and the circular dated 20th Janua
ry
1966 which provided that promotions in future will be e
f-
fected in accordance with the normal rules and not merely
on
completion of 2 years’ satisfactory continuous service h
ad
the effect of doing away with the accelerated chance
of
promotion and relegating Supervisors ‘A’ in the matter
of
promotion to the normal position as it obtained under t
he
Rules.
In the case of Ramchandra Shankar Deodhar & Ors
.,
(supra) the petitioners and other allocated Tehsildars fr
om
ex-Hyderabad State had under the Notification of the R
aj
Pramukh dated September 15, 1955 all the vacancies in t
he
posts of Deputy Collector in the ex-Hyderabad State avai
l-
able to them for promotion but under subsequent rules
of
July 30, 1959 fifty per cent of the vacancies were to
be
filled by direct recruitment and only the remaining fif
ty
per cent were available for promotion and that too on div
i-
sional basis. The effect of this change obviously was th
at
now only fifty per cent vacancis in the post of Depu
ty
Collector being available in place of all the vacancies
it
was to take almost double the time for many other allocat
ed
Tehsildars to get promoted as Deputy Collectors. In oth
er
words it resulted in delayed chance of promotion. It wa
s,
inter alia, urged on behalf of the petitioners that t
he
situation brought about by the rules of July 30, 1959 co
n-
stituted variation to their prejudice in the conditions
of
service applicable to them immediately prior to the reorga
n-
isation of the State and the Rules were consequently i
n-
valid. While repelling this submission the Constituti
on
Bench held:–
“All that happened as a result of making promotions to t
he
posts of Deputy Collectors divisionwise and limiting su
ch
promotions to 50 per cent of the total number of vacanci
es
in the posts of Deputy Collector was to reduce the chanc
es
of promotion available to the petitioners. It is now we
ll
settled by the decision of this Court in State of Mysore
v.
G.B. Purohit that though a right to be considered for prom
o-
tion is a condition of service, mere chances of promoti
on
are not. A rule which merely affects chances of promoti
on
cannot be regarded as varying a condition of service.
In
Purohit’s case the districtwise seniority of sanitary in-
105
spectors was changed to Statewise seniority, and as a resu
lt
of this change the respondents went down in seniority a
nd
became very junior. This, it was urged, affected the
ir
chances of promotion which were protected under the provi
so
to Section 115, sub-section (7). This contention was neg
a-
tived and Wanchoo, J., (as he then was), speaking on beha
lf
of this Court observed: “It is said on behalf of the r
e-
spondents that as their chances of promotion have be
en
affected their conditions of service have been changed
to
their disadvantage. We see no force in this argument becau
se
chances of promotion are not conditions or service.” It i
s,
therefore, clear that neither the Rules of July ’30, 195
9,
nor the procedure for making promotions to the posts
of
Deputy Collector divisionwise varies the conditions
of
service of the petitioners to their disadvantage.”
The same view was reiterated in Mohammad Shujat Ali a
nd
Ors. v. Union of India & Ors., [1975] 3 SCC 76. In the bri
ef
written submission filed on behalf of the petitioners
in
Writ Petition Nos. 9522-27 of 1983 it has been pointed o
ut
that employees who had joined much later than 20th Januar
y,
1966, namely, the date of the subsequent circular of t
he
Director General of Ordnance Factories superseding h
is
earlier circular dated 6th November, 1962, have also g
ot
benefit under the orders of this Court dated 2nd Februar
y,
1981 aforesaid as also under the orders of the Madhya Pr
a-
desh High Court dated 4th April, 1983 in the writ petiti
on
filed before that Court. This circumstance by itself
is
sufficient to indicate that when Civil Appeal No. 441
of
1981 was heard by this Court either the subsequent ord
er
dated 28th December, 1965 as well as the circular dated 20
th
January, 1966 and the legal consequences flowing therefr
om
were not brought to the notice of the learned Judges by t
he
learned counsel for the respondents, or the same was n
ot
properly emphasised, the judgment dated 2nd February, 19
81
being completely silent on the point and the appeal w
as
allowed only on the ground that some Supervisors having be
en
promoted as Chargeman II on expiry of 2 years of the
ir
service in view of the circular dated 6th November, 1962 t
he
non-promotion of the appellants was discriminatory being
in
violation of Article 16. As regards the order of the Madh
ya
Pradesh High Court dated 4th April, 1983 .it may be point
ed
out that the said High Court in an earlier writ petiti
on
being Misc. Petition No. 596 of 1978 had disallowed t
he
relief for the petitioners of that writ petition bei
ng
treated as Chargeman II on completion of two years’ servi
ce
as Supervisor ‘A’ by its order dated 16th April, 1979 as
is
apparent from the said judgment dated 4th April, 1983 b
ut
the subse-
106
quent writ petitions which seem to have been filed after t
he
decision of this Court dated 2nd February, 1981 in Civ
il
Appeal No. 441 of 1981 were allowed in view of the aforesa
id
decision of this Court.
In this connection it is also of significance to noti
ce
that it does not seem to have been the case of the appe
l-
lants in Civil Appeal No. 44 1 of 198 1 that those w
ho
according to them had been promoted in pursuance of t
he
circular dated 6th/November, 1962 on completing two year
s’
service were junior to them. At this place it will be usef
ul
to refer to an affidavit dated 19th November, 1983 of D.
P.
Gupta, who is one of the appellants in Civil Appeal No. 4
41
of 1981, filed in C.M.P. Nos. 9356-57 of 1983. Annexure I
to
the said affidavit gives a break-up of the total diplo
ma
holders recruited in the Department due to acute need
of
Ordnance Department following the chinese aggression.
It
indicates that approximately 125 diploma holders were r
e-
cruited in 1962, 550 in 1963, 250 in 1964, 150 in 1965 a
nd
100 in 1966, the total number of such recruits being appro
x-
imately 1175. The said Annexure further indicates that o
ut
of the 1175 recruits about 625 were promoted to the post
of
Chargeman II in 1965-66 under the 2 year policy contained
in
circular dated 6th November, 1962 and that approximately 5
50
diploma holders were denied promotion which resulted
in
discrimination. From this break-up it is apparent that a
ll
the diploma holders recruited in 1962 whereas 500 out of 5
50
recruited in 1963 were promoted on expiry of 2 years
of
service. It appears that the remaining 50 diploma holde
rs
recruited in 1963 and those who had been recruited in t
he
begning of 1964 or thereafter could not be promoted inasmu
ch
as by the time their cases could be considered for promoti
on
the subsequent order dated 28th December, 1965 had come in
to
force and had also come into force the circular dated 20
th
January, 1966 which had superseded the circular dated 6
th
November, 1962 and had provided that in future promotions
of
all such individuals will be effected in accordance with t
he
normal rules and not merely on the completion of two yea
rs
satisfactory continuous service.
It cannot be disputed that the Director General
of
Ordnance Factories who had issued the circular dated 6
th
November, 1962 had the power to issue the subsequent circ
u-
lar dated 20th January, 1966 also. In view of. the leg
al
position pointed out above the aforesaid circular could n
ot
be treated to be one affecting adversely any condition
of
service of the Supervisors ‘A’. Its only effect was that t
he
chance of promotion which had been accelerated by the circ
u-
lar dated 6th November, 1962 was deferred and made depende
nt
on selection according to the Rules. Apparently, after t
he
coming into force of the
107
order dated 28th December, 1965 and the circular dated 20
th
January, 1966 promotions could not be made just on compl
e-
tion of 2 years’ satisfactory service under the earli
er
circular dated 6th November, 1962 the same having be
en
superseded by the later circular. It is further obvious th
at
in this view of the matter Supervisors ‘A’ who had be
en
promoted before the coming into force of the order dat
ed
28th December, 1965 and the circular dated 20th Januar
y,
1966 stood in a class separate from those whose promotio
ns
were to be made thereafter. The fact that some Superviso
rs
‘A’ had been promoted before the coming into force of t
he
order dated 28th December, 1965 and the circular dated 20
th
January, 1966 could not, therefore, constitute the basis f
or
an argument that those Supervisors ‘A’ whose cases came
up
for consideration for promotion thereafter and who we
re
promoted in due course in accordance with the rules we
re
discriminated against. They apparently did not fall in t
he
same category.
It may also be noticed that even though the petitione
rs
on their completion of 2 years’ service as Supervisor ‘
A’
were not promoted as Chargeman 11 in or about the year 19
66
they chose to wait for about 17 years to file these wr
it
petitions which were filed in 1983, and nearly 2 years ev
en
after the decision dated 2nd February, 1981 in Civil Appe
al
No. 441 of 1981, which indicates that but for the decisi
on
in Civil Appeal No. 441 of 1981 they would perhaps not ha
ve
even thought of filing these writ petitions inasmuch as
in
the meantime they had not only been promoted in the norm
al
course as Chargeman 1I but some of them had been promot
ed
even to higher posts in the hierarchy.
For aught we know if the effect of the order dated 28
th
December, 1965 and the circular dated 20th January, 1966 h
ad
been properly emphasised at the time of hearing of Civ
il
Appeal No. 441 of 198 1 its result may have been differen
t.
In this connection, reference may also be made to the cou
n-
ter affidavit of Sobha Ramanand, Deputy Director, Ordnan
ce
Factory Cells G. Block, Ministry of Defence, filed in Wr
it
Petition (Civil) Nos. 3812-19 of 1983 with regard to
a
matter relevant for promotion. In paragraph 2(i) it has be
en
stated that during 1962-63 due to sudden expansion of Or
d-
nance Factories Organisation in the wake of Chinese aggre
s-
sion a large number of posts of Chargeman 11 and other pos
ts
were created and as a result thereof persons already
in
service as Supervisors ‘A’ were promoted to the posts
of
Chargeman II on completion of 2 years’ service. It h
as
further been stated therein that after the newly creat
ed
posts were thus filled by promotion, chances of promotion
of
those who were appointed subsequently diminished and f
or
want of sufficient number of
108
vacancies as Chargeman II they could not be promoted to th
at
post soon after the completion of 2 years’ service.There
is
a further averment in the said counter affidavit that pet
i-
tioners were duly considered in their turn and their nam
es
were brought on the approved panel. They were thereaft
er
promoted as soon as vacancies became available and th
at
during the period that they were on the approved panel
no
person junior to them or of equal seniority superseded the
m.
Nothing substantial has been brought to our notice on beha
lf
of the petitioners on the basis of which the aforesa
id
statements made in the counter affidavit may be doubted.
In view of the foregoing discussion, we find it diff
i-
cult to grant the reliefs prayed for in the aforesaid’wr
it
petitions simply on the basis of the judgment of this Cou
rt
dated 2nd February, 1981 in Civil Appeal No. 441 of 198
1.
These writ petitions, therefore, deserve to be dismissed.
Since, however, the judgment of this Court dated 2
nd
February, 1981 in Civil Appeal No. 441 of 1981 has not be
en
challenged and has become final, the next question whi
ch
falls for consideration is as to what further relief,
if
any, are the appellants in Civil Appeal No. 44 1 of 19
81
entitled in pursuance of the Civil Miscellaneous Petitio
ns
referred to above filed by them. The reliefs which they ha
ve
claimed have already been indicated above. It is now n
ot
disputed that the appellants of this appeal have in purs
u-
ance of the order of this Court dated 2nd February, 19
81
been given a back date promotion to the post of Chargeman
II
synchronising with the dates of completion of their 2 yea
rs
of service as Supervisor ‘A’. The grievance of the petitio
n-
ers, however, is that this promotion tantamounts to impl
e-
mentation of the order of this Court dated 2nd Februar
y,
1981 only on paper inasmuch as they have not been grant
ed
the difference of back wages and promotion to higher pos
ts
on the basis of their back date promotion as Chargeman I
I.
As already noticed earlier certain writ petitions filed
in
Madhya Pradesh High Court were allowed by that Court on 4
th
April, 1983 relying on the judgment of this Court dated 2
nd
February, 1981 in Civil Appeal No. 441 of 1981. Against t
he
aforesaid judgment of the Madhya Pradesh High Court dat
ed
4th April, 1983 Special Leave Petitions (Civil) Nos. 5987-
92
of 1986 were filed in this Court by the Union of India a
nd
were dismissed on 28th July, 1986. The findings of t
he
Madhya Pradesh High Court in its judgment dated 4th Apri
l,
1983 thus stand approved by this Court. In this view of t
he
matter to put them at par it would be appropriate that t
he
appellants in Civil Appeal No. 441 of 1981 may also
be
granted the same relief which was granted to the
109
petitioners in the writ petitions before the Madhya Prade
sh
High Court. As regards back wages the Madhya Pradesh Hi
gh
Court held:
“It is the settled service rule that there has to be no p
ay
for no work i.e. a person will not be entitled to any p
ay
and allowance during the period for which he did not perfo
rm
the duties of a higher post although after due considerati
on
he was given a proper place in the gradation list havi
ng
deemed to be promoted to the higher post with effect fr
om
the date his junior was promoted. So the petitioners are n
ot
entitled to claim any financial benefit retrospectively.
At
the most they would be entitled to refixation of the
ir
present salary on the basis of the notional seniority gran
t-
ed to them in different grades so that their present sala
ry
is not less than those who are immediately below them.”
In so far as Supervisors ‘A’ who claimed promotion
as
Chargeman 11 the following direction was accordingly giv
en
by the Madhya Pradesh High Court in its judgment dated 4
th
April, 1983 aforesaid:–
“All these petitioners are also entitled to be treated
as
Chargeman Grade II on completion of two years satisfacto
ry
service as Supervisor Grade-A. Consequently, notion
al
seniority of these persons have to be refixed in Supervis
or
Grade A, Chargeman Grade-II, Grade-I and Assistant Forem
an
in cases of those who are holding that post ….. T
he
petitioners are also entitled to get their present sala
ry
re-fixed after giving them notional seniority so that t
he
same is not lower than those who are immediately bel
ow
them.”
In our opinion, therefore, the appellants in Civ
il
Appeal No. 441 of 1981 deserve to be granted the same limi
t-
ed relief. We are further of the opinion that it is not
a
fit case for initiating any proceedings for contempt again
st
the respondents.
In the result, the writ petitions fail and are di
s-
missed. The Civil Miscellaneous Petitions in Civil Appe
al
No. 441 of 1981 are disposed of by issuing a direction
to
the respondents to give the appellants in the said Civ
il
Appeal the same benefits as were given by the Madhya Prade
sh
High Court to such of the petitioners before that Court w
ho
were Supervisors ‘A’ and were granted promotion as Chargem
an
II by its judgment dated 4th April, 1983. In the circu
m-
stances of the case, however, there shall be no order as
to
costs.
R.S.S. Petitions dismissed.
110