{"id":154514,"date":"1997-01-28T00:00:00","date_gmt":"1997-01-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-k-sethi-anr-vs-oil-natural-gas-commission-ors-on-28-january-1997"},"modified":"2015-06-24T21:29:58","modified_gmt":"2015-06-24T15:59:58","slug":"r-k-sethi-anr-vs-oil-natural-gas-commission-ors-on-28-january-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-k-sethi-anr-vs-oil-natural-gas-commission-ors-on-28-january-1997","title":{"rendered":"R.K. Sethi & Anr vs Oil & Natural Gas Commission & Ors on 28 January, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
R.K. Sethi & Anr vs Oil & Natural Gas Commission & Ors on 28 January, 1997<\/div>\n
Bench: S.C. Agrawal, Faizan Uddin<\/div>\n
           PETITIONER:\nR.K. SETHI & ANR.\n\n\tVs.\n\nRESPONDENT:\nOIL & NATURAL GAS COMMISSION & ORS.\n\nDATE OF JUDGMENT:\t28\/01\/1997\n\nBENCH:\nS.C. AGRAWAL, FAIZAN UDDIN\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
[WITH CIVIL APPEALS NOS. 525 OF 1987 AND 527 OF 1987]
\n\t\t      J U D G M E N T
\nS.C. AGRAWAL, J:-\n<\/p>\n
     These  appeals  and  the  writ  petition  raise  common
\nquestions relating  to seniority  in the  cadre of Assistant
\nGrade-ii (For  short ‘AG-II’)  and promotion  to the  higher
\nposts  of   Assistant  Grade-I\t (for  short   ‘Ag-I’)\t and
\nsuperintendent\tin   the  Oil  and  Natural  Gas  Commission
\n(hereinafter referred to as ‘the commission’).\n<\/p>\n
     In the  Commission recruitment  and promotion  up to  a
\ncertain level  is on  regional basis  and thereafter  it  is
\ncentralised. in\t the personnel\tand Administration  (P & A )
\nAssistant Grade\t -III (for  short ‘AG-III’),  AG-II and AG-i
\nare made  on regional basis and appointment and promotion to
\nthe higher  posts of  superintendent and  above are  made on
\ncentralised basis.  There  was\tseparate  seniority  in\t the
\ncadres of  AG-III, AG-II  and AG-I  for each region while in
\nthe higher  cadres  it\twas  on\t all  India  basis.  We\t are
\nconcerned with the Central western and Headquarters regions.
\nIn early  1960s\t the  commission  fell\tthe  need  of  Telex
\nOperators and  employees working as AG-III were picked up to
\nwork as\t Telex operators.  With effect\tfrom April 1, 1969 a
\nseparate cadre\tof Telex operators having separate seniority
\nwas created.  The Telex\t operators were earlier having a pay
\nscale which  was higher\t than that of AG -III but lower than
\nthat of\t AG-II. With  effect from  April 1,  1979 the  Telex
\noperators as  well as AG-II were place at the same pay scale
\nof Rs.\t431-880.  The  Telex  operators\t did  not  have\t any
\npromotional channel.  Under the\t Recruitment  and  promotion
\nRegulations, 1980  (hereinafter referred  to  as  ‘the\t1980
\nRegulations’), which  came into\t force on April 24,1980, the
\ndesignations  of   many\t posts\tunder  the  Recruitment\t and
\npromotion Regulation , 1974 were changed the 1980 regulation
\ndid not\t contain the  post of  Telex operator.\tIn order  to
\nimplement the  1980 regulations\t executive instruction\twere
\nissued\tvide  office  order  No\t 2(22)\/80-RP-I\tdated  April
\n25,1980,  (hereinafter\t referred  to\tas  ‘the   Executive
\nInstructions’) with regard to placement at appropriate level
\nand other  connected matters  for  different  categories  of
\nemployees.  In\t paragraph  5  of  the\tsaid  order  fitment
\nprinciples for categories in other disciplines were set out.
\nsub-paragraph (iii)  of the  said paragraph related to Telex
\noperators and it read as under:-\n<\/p>\n
     “(iii) Telex operator – Rs. 370-700
\n     (Rs. 430-880)
\n     All  existing   employees\tin   the
\n     category of  Telex operator will be
\n     redesignated as  Assistant Grade-II
\n     in the  pay scale\tof Rs. 370-700-\/
\n     (rs.   430-880).\t Total\t service
\n     rendered by the employee in the pay
\n     scale of Rs. 360-640\/- and Rs. 370-
\n     700  (Rs.\t 430-880)\/-)   will   be
\n     counted for purpose of promotion to
\n     the pay scale of Rs. 470-880\/- (Rs.
\n     530-1060)”.<\/p><\/blockquote>\n
     In paragraph 1 the said order general instructions were
\ngiven in  respect of  all the  categories of  employees. Sub
\nparagraph (viii) of paragraph 1 related to fixation of inter
\nse seniority  consequent upon  merger of  two categories. It
\ncontained the following provision:-\n<\/p>\n
     “(viii)   fixation\t   of\t interse
\n     seniority consequent upon merger of
\n     two categories:-\n<\/p>\n
     Where  under  R  &\t P  regulations,
\n     1980, two\tor more\t categories have
\n     been  merged,   for   purposes   of
\n     promotions to  the nest  higher pay
\n     scale,  interse  seniority\t of  the
\n     employee considered  for  promotion
\n     will  be  fixed  on  the  basis  of
\n     length of\tservice put  in\t by  the
\n     individual in  the\t respective  pay
\n     scale  with  those\t in  the  higher
\n     erstwhile scale,  being treated  as
\n     senior  to\t  those\t in   the  lower
\n     erstwhile\tscale  enbloc.\tExisting
\n     interse  seniority\t  will\tnot   be
\n     disturbed.”\n<\/p>\n
     As a  result of  the  merger  of  the  cadre  of  Telex
\noperators with AG-II, the Telex operator in each region were
\nplaced enbloc  below AG-II  in the  said  region.  On  April
\n25,1980 an  office order No. 2\/24\/80-RP-I was issued to make
\nprovision for  promotion on  time bound\t basis\t(hereinafter
\nreferred to  as ‘the  12 years policy”) In the said order it
\nwas  stated   that  for\t  employees  in\t class\tIII  and  IV
\nequivalent, every employee will have at least two promotions
\nif otherwise  suitable and  that in order to achieve this in
\nthe  scale   of\t pay   between\tRs.   230-308(old)  [290-400
\n(revised)] to  Rs. 650-1200  in\t each  cadre  of  discipline
\nnumber\tof  higher  posts  will\t be  operated  in  the\tnext
\npromotional step  in the  pattern of  a selection  grade  if
\nrequired and that employees in the scale of Rs. 370-700(old)
\n[Rs. 430-880(revised)]\twho have  completed 12 years service
\nin the concerned region would be qualified for consideration
\nfor promotion to the scale if Rs. 470-880(old) [Rs. 530-1060
\n(revised)] and\ttheir fitness  for promotion would be judged
\non  the\t basis\tof  procedure  laid  down  for\tdepartmental
\npromotion. by  office Memorandum No. 2(50)\/80-RP-I dated may
\n27 1982\t the commission\t adopted a  policy whereunder  as  a
\nspecial one  time exception.  All class III employees who as
\non April 1 1982, had put in at least 18 years service in the
\npresent grade  and in  the grade  immediately below in class
\nIII post  were to  be considered  bu  appropriate  DPCS\t for
\npromotion form\tApril, 1982 by suitable upgradation of posts
\nprovided they  had spent  at  least  three  years  in  their
\npresent grade  and provided  further that  they had not been
\nsuperseded on  grounds of  merit for promotion earlier. this
\nconcession was\tnot to\tbe given  for the purpose of such of
\nclass III  employees who  had already been promoted as class
\nIII officers.  It was  found that  certain senior  employees
\nwere left  out of  consideration for  promotion because they
\ndid not\t fulfill conditions  Nos. (i) and (ii) of the office
\nMemorandum dated  may 27  , 1982  aforementioned while their
\njuniors had  been  promoted  because  they  fulfilled  those
\ncriteria and,  therefore by  office memorandum no. 2(50)\/80-
\nRP-I dated  February 3\t1983 it was decided that such senior
\nemployees would\t be promoted  with effect from April 1,1982.
\nBy another office memorandum no 2(50)\/80-RP-I dated February
\n3 1983\tit was decided that as a special one time exception,
\nall class  III employees  who as on April 1 1982, had put in
\nat least  18 years  service in the present grade immediately
\nbelow in  class III  posts would be considered for promotion
\nby an  appropriate DPC\tby suitable upgradation of posts and
\nif they\t were  found  suitable\tfor  such  a  promotion\t the
\npromotion  will\t be  with  effect  from\t April\t1  1982\t The
\naforementioned\toffice\t Memoranda  dated  may\t27,1982\t and
\nFebruary 3,1983 will hereinafter be collectively referred to
\nas ‘the\t 18 years  policy’. On\tthe basis  of the  12  years
\npolicy the  Telex operators  in the central and Headquarters
\nregions who  had been  placed in  the cadre  of AG-II  as  a
\nresult of  the Executive  instruction regarding\t fitment  of
\nexisting employees  and who  had completed 12 years’ service
\nwere  promoted\t as  AG-I  with\t effect\t from  may  17,1980.
\nThereafter, on\tthe basis  of the  18 years policy the Telex
\noperators, who\thad completed 18 years service were promoted
\nas superintendent  with effect\tfrom April  1, 1982. Regular
\nemployees who  were functioning as AG-II and who were senior
\nto the\tTelex operators\t in the\t cadre of AG-II and who were
\nsenior to the Telex operators  were however promoted as AG-I
\nwith effect  from April\t 1 1982,.  since they were senior to
\ntelex operators\t who had  been promoted\t as AG-i  earlier to
\nthem by order dated February 2, 1984 the regular employee in
\nAG-II cadre  did not  have 12  years service to their credit
\nand did\t not fulfil  the criterion laid down in the 12 years
\npolicy. Those regular employees in AG-II cadre who were thus
\npromoted as  AG-i with\teffect from  may 17  1980 were along
\ngiven the  benefit of  the 18 years policy and were promoted
\nas superintendent  (P & A) with effect from April 1, 1982 by
\norder dated  February 2,  1984 for  the\t reason\t that  Telex
\noperators junior  to them  in the  cadre of  AG-II had\tbeen
\npromoted as  Superintendent with  effect from  April 1,1982.
\nSuch promotions\t of regular employees in AG-II cadre as AG-I
\nwith effect  from may  17 1980\tand as\tsuperintendent\twith
\neffect from  April 1,  1982 could  not be given effect to in
\nthe western  region for\t the reason that the Telex operators
\nin the\twestern region\twho were  offered promotion as AG-I,
\ndid not\t accept such  promotion and  since no Telex operator
\njunior to  regular employees  in AG-II cadre was promoted as
\nAG-I with  effect from\ta date earlier than April 1, 1982 no
\nregular employee  in AG-II  cadre in  the western region was
\npromoted as  AG-I with effect from a date earlier than April
\n1,1982 and for the same reason they could not be promoted as
\nsuperintendent with effect from April 1, 1982.\n<\/p>\n
     Respondents Nos.  4 to  8 in  civil Appeals  No. 527 of
\n1987 (hereinafter  referred to\tas   ‘the petitioners’) were
\nregular employees  in AG-II  cadre in the western region who
\nwere promoted as AG-I with effect from April 1, 1982 but did
\nnot get\t promotion as  AG-I with effect from may 17,1980 and
\nas superintendent  with effect\tfrom April 1,1982 as granted
\nto regular  employees in  AG-II cadre  in  the\tcentral\t and
\nHeadquarters regions.  Since seniority\tin the cadre of AG-I
\nhas  a\t bearing  on   promotion  to   the  higher  post  of
\nsuperintendent which is a centralised cadre the petitioners,
\nfeeling aggrieved by their non-promotion as AG-I with effect
\nfrom may  17,1980  filed  a  writ  petition  (special  civil
\nApplication No.\t 4811 of  1984) in  the Gujarat\t High  Court
\nwherein they  sought a writ order or direction directing the
\ncommission to  give retrospective  promotion to\t them on the
\npost of\t AG-I with  effect from may 17, 1980 and on the post
\nof superintendent  (P & A) with effect from April 1, 1982 on
\nthe same  lines\t as  applied  to  AG-II\t of  central  region
\nHeadquarters region who were also promoted initially as AG-I
\nwith effect  from April 1,1982 and alternatively they prayed
\nfor  quashing\tof  the\t order\tdated  February\t 2,1984\t for
\npromotion of regular employees in AG-II cadre in central and
\nHeadquarters regions  and\/or adjusting the promotions of the
\npetitioners in\taccordance with\t the  correct  principle  of
\nseniority and  correct application  of promotion  policy  to
\nthe petitioners.  The said  write petition of the petitioned
\nhas been  allowed by the High Court by the impugned judgment
\ndated  December\t 23,1985.  The\thigh  court  has  held\tthat
\npromotions that were granted to the regular employees in AG-
\nII cadre in the central and Headquarters regions were not in
\naccordance with\t law but since the persons who are likely to
\nbe effected  had not been joined as parties the relief could
\nonly be\t granted as  against the parties who were on record.
\nThe High  has, therefore,  set aside the orders of promotion
\nof respondents\tNos. 4,\t 5, 7, 8, and 9 in the writ petition
\nrespondents Nos.  9,10,12,13 and  14 in civil Appeal No. 525
\nof 1987.  The High  court has  however directed\t that if the
\nsaid respondents  are entitled\tfor promotion  of account of
\ntheir original\tseniority as AG-II they will be entitled for
\nthe  promotion\t if  available.\t The  high  court  has\talso
\nrestrained the commission from granting further promotion to
\nthe then regular employees in the cadre of AG-II on April 25
\n1980 of the central and Headquarters regions on the basis of
\ntheir higher  promotion, i.e.  , being\tsenior to  the Telex
\noperators on  that date\t till a\t consolidated  list  of\t all
\nregions is  prepared   in accordance  with law\tand they are
\nfound eligible for promotion in the light of the observation
\nmade in the judgment.\n<\/p>\n
     R.K. Sethi\t and B.P. Arya were regular employees in the
\ncadre  of  AG-II  in  the  Headquarters\t region.  They\twere
\npromoted as   AG-I  with effect\t from may  17, 1980  and  as
\nSuperintendent\t (P &  A )  with effect\t from  April 1, 1982
\nrespectively on\t the basis  of promotions given to the Telex
\noperators in  that region. Even though their promotions were
\nnot quashed  by the  impugned judgment of the High court but
\nin order  to give effect to the said decision the commission
\nhas  passed   orders  dated  may  21,  1986  revoking  their
\npromotion as  AG-I with\t effect from  may 17,  1980  and  as
\nsuperintendent (P  & A)\t with effect from April 1,1982. They
\nhave filed  civil Appeal  no. 525  of 1987  to challenge the
\nsaid judgment  of the  high court. They have also filed writ
\npetition  No.\t870  of\t  1986\tunder\tArticle\t 32  of\t the
\nconstitution wherein they have challenged the correctness of
\nthe said  judgment and\thave  prayed  for  quashing  of\t the
\ncommission on  the basis  of the  impugned judgment  of\t the
\nGujarat High  court. Civil  Appeal No.\t527 of 1987 has been
\nfilled by the commission against the judgment of High court.\n<\/p>\n
     The High  court has dealt with the matter by posing the
\nfollowing two questions:-\n<\/p>\n
(1) what should be the seniority of the Telex operators when
\nthey are redesignated ?\n<\/p>\n
     (2) If the Telex operators are placed below the regular
\nAG-II, can the regular AG-II in the central and Headquarters
\nregion be  promoted under  the policies\t of 12\tyears and 18
\nyears so  as to\t prejudice the\tchances of  promotion to the
\npetitioners ?\n<\/p>\n
     While Dealing  with the  first question  the High court
\nhas observed  that if  the Telex-operators  are placed below
\nthe existing  regular employees it will amount to wiping out
\ntheir service  completely. The high court has considered the
\nprinciples of  seniority contained  in annexure\t II  to\t the
\nO.N.G.C.(Terms and  conditions of  Appointment and service )
\nRegulations  1975  (hereinafter\t referred  to  as  the\t1975
\nRegulations”) more  particularly clauses b and H of the said
\nprinciples. The\t High court has held that clause H could not
\nbe applied  and that  the Telex\t operators  must  be  either
\ncontinued as  a separate  cadre or  merged with the original
\ncadre bu length of service in accordance with the principles
\ncontained in clause B.\n<\/p>\n
     As regards\t the second  question, the High court was of
\nthe view that merely because the Telex operators had got the
\nbenefit of  promotion policy  which was in relaxation of the
\nstatutory regulations  it could not be said that the persons
\nwho are\t above the  Telex operators  in the seniority in the
\ncadre of  AG-II could  also get the same benefit. In view of
\nthe High  court, the  employees who  are not qualified under
\nthe 12\tyears policy had to stand in the queue for promotion
\nunder the  statutory regulations  and their  seniority could
\nnot help  them and it could help them only in respect of the
\nvacancies which\t were to be filled in by regular promotion .
\nAccording  to  the  High  court\t the  18  years\t policy\t for
\nstagnated   relief could  not be  made available to a person
\nwho has\t not stagnated\tat all and that by resorting to this
\ntype of\t promotion policy  the commission  had committed  an
\nerror prejudicial  to the petitioners who were also borne on
\nthe cadre  of Ag-II  and were  aspiring for promotion to the
\npost of\t superintendent and  have longer experience than the
\nregular employees  of Central  and Headquarters regions. The
\nHigh court  has also observed that if the Telex operators in
\nthe western  region refused  to avail promotion under the 12
\nyears policy  and under the 18 years policy the right of the
\nregular employees  in AG-II cadre could not be whittled down
\nand the\t fortuitous circumstance that some in the way of the
\nrightful claimants  and that  if the  commission intends  to
\ngive promotions\t to the\t regular employees of AG-II in other
\nregions, it  should consider  the case of the persons in the
\nwestern region\talso on\t the basis that the petitioners were
\nsenior to  the Telex  operators in  the lower cadre and were
\nentitled to  further promotion\tin the\tsame  way  as  their
\ncounter parts in other regions.\n<\/p>\n
     We may,  at this stage refer to the relevant provisions
\nof the\tprinciples of  seniority laid down as per Regulation
\n19 of the 1975 Regulations :-\n<\/p>\n
     “PRINCIPLES OF SENIORITY.<\/p>\n
     The following  principles\twill  be
\n     followed\tfor    regulating    the
\n     seniority of  the employees  in the
\n     oil and natural gas commission:
\n     B. Departmental Promotees:\n<\/p><\/blockquote>\n
     (i)  x\t     x\t\t      x\n<\/p><\/blockquote>\n
     (ii) x\t     x\t\t      x\n<\/p><\/blockquote>\n
     (iii) Where  promotions to\t a grade
\n     are made  either from more than one
\n     grade  or\t  from\tthe  same  grade
\n     divided in\t to different  cadres on
\n     regional  project\t or  Directorate
\n     basis  eligible  persons  shall  be
\n     placed in\tseparate lists\tin order
\n     of their  inter  seniority\t in  the
\n     respective grades or cadres.\n<\/p><\/blockquote>\n
     (a) x\tx\t   x\t   x\n<\/p><\/blockquote>\n
     (b) If, however the promotion is to
\n     be made  on the  basis of seniority
\n     cum-fitness i.e.  seniority subject
\n     to\t the   rejection  of  unfit  the
\n     Departmental  promotion   committee
\n     shall place the candidates from the
\n     various lists   based  on the total
\n     length of\tservice rendered in that
\n     grade    or    cadre    and    make
\n     recommendations  for  promotion  on
\n     the  basis\t of  this  “consolidated
\n     list” The inter se seniority of the
\n     candidates\t in   their   respective
\n     lists will\t not be disturbed in the
\n     “consolidated list”.\n<\/p><\/blockquote>\n
     H.\t  Fixation   of\t  seniority   on
\n     absorption of  employees  from  one
\n     cadre to another .\n<\/p><\/blockquote>\n
     The  fixation   criteria  shall  be
\n     taken  into   account   in\t  fixing
\n     seniority of  employees absorbed in
\n     a cadre other than the one to which
\n     they belong:\n<\/p><\/blockquote>\n
     (i) The  commission will be free to
\n     transfer employees\t from one  cadre
\n     to\t   another     temporarily    on
\n     administrative   grounds\t,   e.g.
\n     transfer of  work non  availability
\n     of suitable  men.\n<\/p><\/blockquote>\n
     (ii)  such\t employees  will  retain
\n     their line\t and  seniority\t in  the
\n     parents cadres  and  will\thave  no
\n     right for\tabsorption in the cadres
\n     to\t which\t they  are   transferred
\n     temporarily.\n<\/p><\/blockquote>\n
     (iii) If,\tas a  very special  case
\n     they  are\t to  be\t considered  for
\n     absorption in  the cadres\tit which
\n     they  are\ttemporarily  transferred
\n     their  seniority  will  count  only
\n     from the  date of their transfer to
\n     the  cadre\t  in  which   they   are
\n     actually working  (at the\ttime  of
\n     their    absorption    right    and
\n     seniority of  the personnel already
\n     recruited\tor   promoted  to  these
\n     cadres; even  those  recruited  and
\n     promoted to these cadres on the day
\n     the personnel from other cadres are
\n     transferred will all rank senior to
\n     the personnel  transferred from the
\n     other cadres”.<\/p><\/blockquote>\n
     On behalf\tof the\tcommission Shri\t Ashwini  Kumar\t has
\nurged that  as a result of fitment under paragraph 5(iii) of
\nthe Executive  Instructions the cadre of Telex operators was
\nmerged in  the existing\t cadre of AG-II and the seniority of
\nTelex operators had to be fixed in accordance with paragraph
\n1(iii) of the Executive Instructions read with clause H(iii)
\nof the\tprinciples of  seniority. We find considerable force
\nin this\t contention. As\t a  result  of\tthe  fitment  policy
\nmentained in  paragraph 5(iii) of the Executive Instructions
\nthe cadre of Telex operators had been merged in the cadre of
\nAG-II. The word “redesignated” in paragraph 5(iii) has to be
\nread with  the words  “two  or\tmore  categories  have\tbeen
\nmerged” contained  in paragraph\t 1 (viii) and it can only be
\nconstrued to  mean that\t as a  result of redesignation there
\nwas merger of the cadre of Telex operators into the cadre of
\nAG-II. The  statement in  paragraph 5(iii)  that  the  total
\nservice rendered  by the  employee in  the pay\tscale of Rs.
\n360-640\/- and  Rs. 370-700 (Rs. 430-880) will be counted for
\nthe purpose  of promotion  to the  pay scale  of Rs. 470-880
\n(Rs.530-1060) only enables the Telex operators who have been
\nmerged in  the cadre of AG-II to avail the period of service
\nrendered bu  them as  Telex operators  for  the\t purpose  of
\npromotion. But\tthe seniority  in the cadre of AG-II will be
\ngoverned by  the provisions  contained in paragraph 1 (viii)
\nwhich lays  down the  principles of  fixation  of  inter  se
\nseniority consequent  upon  merger  of\ttwo  categories.  In
\nparagraph 1  (viii) it is specified that for the purposes of
\npromotion to  the next\thigher scale,  inter se seniority of
\nthe imployees  considered or promotion will be fixed on that
\nbasis of  length of  service put in by the individual in the
\nrespective pay\tscale with  those in  higher erstwhile scale
\nbeing treated  as senior  to those  in the  lower  erstwhile
\nscale enbloc.  This principle  is  in  consonance  with\t the
\nprinciple laid\tdown in\t clause H(iii)\tof the principles of
\nseniority  prescribed\tunder  Regulation  19  of  the\t1975
\nRegulations. The  said provisions  deals with the absorption
\nof the\temployees in the cadre to which they are temporarily
\ntransferred and\t lays down  that  their\t seniority  will  be
\ncounted only  from the date their transfer to the cadre. The
\nmerger of  the cadre  of the Telex operators to the cadre of
\nAG-II  and   their  absorption\tin  the\t said  cadre.  Their
\nseniority will\ttherefor have to be determined in accordance
\nwith clause  H(iii). We\t are unable to appreciate how clause
\nB(iii) (b)  can be  made  applicable.  The  said  matter  of
\ndepartmental promotees\twhere promotions to a grade are made
\neither from  more than\tone grade  or from  the\t same  grade
\ndivided\t into\tdifferent  cadres  on  regional\t project  or
\ndirectorate basis. The induction of Telex Operators into the
\nexisting cadre\tof AG-II  within the  same  region  did\t not
\ninvolve any  promotion from  more than one grade or from the
\nsame grade divided into different cadres on regional project
\nor  directorate\t  basis.  The\tsaid  provision\t would\thave
\napplication in\tthe matter  of\tpromotion  of  AG-I  from  a
\nregional  cadre\t  to  the   post  of   Superintendent  in  a
\ncentralised cadre.  In this context it may also be mentioned
\nthat till  April 1,  1979 the  pay scale  of Telex operators
\nwere lower  than those\tof AG-II and it was only with effect
\nfrom April  1, 1979  that both are placed on the same scale.
\nThe earlier  service of\t the Telex  operators in a lower pay
\nscale could  not be  equated with  the\tservice\t of  regular
\nemployee in  AG-I cadre\t in  higher  pay  scale.  The  Telex
\noperators were\ttherefore rightly  placed below\t the regular
\nemployees in  AG-II cadre at the time of merger of the cadre
\nof Telex  operators in the cadre of AG-II. The High court in
\nour opinion was not right in holding that the commission had
\ncommitted an  error in\tplacing the  Telex operators  enbloc
\nbelow regular employees in AG-II cadre when Telex operators
\nwere brought in the cadre of AG-II.\n<\/p>\n
     Once it  is held that Telex operators have been rightly
\nplaced enbloc  below regular  employees in  AG-II  cadre  as
\nresult of the merger of the said cadre in the cadre of AG-II
\non April  25, 1980 regular employees in AG-II cadre who were
\nsenior to  the Telex  operators could rightly feel aggrieved
\nif they\t are  denied  promotion\t while\ttheir  juniors\twere
\npromoted  as   AG-I.  The   “nest  below  rule”\t in  service
\njurisprudence seeks  to ensure that if a junior employees is
\ngiven promotion\t without considering  his  senior  then\t the
\nsenior then  the senior\t employee  can claim the right to be
\nconsidered for\tsuch promotion\twith effect from the date on
\nwhich  the  junior  was\t so  promoted.\tThe  action  if\t the
\ncommission in extending the benefit of promotion toe regular
\nemployees in  AG-II cadre as AG-I. with effect from the date
\nthe Telex  Operators were  so promoted\ton account of the 12
\nyears policy  being in consonance with this principle cannot
\ntherefore held\tto be arbitrary of unreasonable. So also the
\nfurther promotion from AG-I to the post of superintendent (P
\n& A) under the 18 years policy. We are unable to endorse the
\nview of the High court that since regular employees in AG-II
\ncadre did  not\tfulfil\tthe  criteria  laid  down  in  those
\npolicies they  could not be extended the benefit of the said
\npolicies. The High court has failed to note that when it was
\nfound  that  certain  senior  employees\t were  left  out  of
\nconsideration for  promotion because they did not fulfil the
\nconditions regarding  18  years\t service  contained  in\t the
\noffice memorandum dated may 27, 1982 the commission modified
\nthe policy  contained  in  the\tsaid  office  memorandum  by
\nissuing office\tMemorandum dated February 3, 1983 whereby it
\nwas decided  that such\tsenior employees would be considered
\nfor promotion  and if  found suitable would be promoted with
\neffect from  April 1, 1982. In view of the said modification
\nin the\t18 years  policy it  cannot  be\t said  that  regular
\nemployees  in  AG-II  cadre  could  not\t be  considered\t for
\npromotion since\t they did  not fulfil  the criterion  of  18
\nyears service.\n<\/p>\n
     We also find it difficult to appreciate the view of the
\nHigh Court  that even  if the  Telex operators\twho had been
\noffered\t promotion     as  AG-I\t and  further  promotion  as
\nsuperintendent in  the western\tregion had  refused to avail
\nthe same regular employees in the AG-II cadre in that region
\nincluding the  petitioners who\twere senior  to them  in the
\nwestern\t region\t  should  have\t been  considered  for\tsuch
\npromotion and  the failure  to do so would result  in dental
\nof their  rights. Regular  employees in\t AG-II cadre  in the
\nwestern region\tcould claim  promotion as  AG-I from  a date
\nearlier than  April 1,\t1982 only if a Telex operator junior
\nto them\t had been  promoted as AG-I from a date earlier than
\nApril 1,1982  the petitioners  could not claim a right to be
\npromoted with  effect from  an earlier\tdate. So also in the
\nmatter of  promotion from AG-I to the post of superintendent
\nbecause the  right to  be promoted  with effect\t from  April
\n1,1982 could  accrue to them only if a Telex operator junior
\nto them\t had been so promoted from that date. Since no Telex
\noperator junior\t to regular  employee in  AG-II cadre in the
\nwestern region\twas so promoted the said advantage could not
\nbe extended  to the  petitioners we are unable to agree with
\nthe view of the High court that if the petitioners cannot be
\ngiven retrospective  promotion as  AG-I with effect from may
\n17, 1980 and as superintendent with effect from April 1,1982
\nthe grant  of such  promotion to  regular employees in AG-II
\ncadre in  the central  and  Headquarters  regions  was\talso
\nimpermissible in  law. The  said promotions  were  given  to
\nregular\t employees   in\t AG-II\tcadre  in  the\tcentral\t and
\nheadquarters regions  in view  of Telex\t Operators junior to
\nthem having  been promoted  in those  regions. As  indicated
\nearlier there  was no  infirmity in  the said  action of the
\ncommission.\n<\/p>\n
     In this  context it  may be  mentioned that  during the
\ncourse of  his\targuments  Shri\t Venkataramani\tthe  learned
\ncounsel appearing  for the  petitioners stated\tthat in\t the
\nwestern region\tthe principle  of ” next below rule” was not
\nfollowed and  that some\t telex operators  who  had  accepted
\npromotions under  the 12 years policy were granted promotion
\nwhile regular  employees in  AG-II cadre  who were senior to
\nthem have  not been given promotion from the date from which
\nsuch Telex  operators were  so promoted.  Although there  is
\nnothing on  the record to support the said submission of the
\nlearned\t counsel   by  order  dated  December  10  1996,  we
\npermitted the  petitioners to  file  an\t affidavit  in\tthis
\nregard. An  affidavit in  this regard.\tAn  affidavit  dated
\nJanuary 6 1997 has been filed by Ram Chand Talreja on behalf
\nof the\tpetitioners In\tthe said affidavit it is stated that
\nby order  dated December  28 1983 Telex operators of western
\nregion were  promoted as   AG-I\t with effect  from January 1
\n1983 and  that the  Telex Operators  of western\t region have
\nraised a  dispute seeking promotion as AG-I with effect from
\nmay 17\t1980 like  their counter  parts in  the central\t and
\nheadquarters regions  and that\tthe conciliation  proceeding
\nended in  failure and  thereafter they\thave a\tfiled a writ
\npetition No. 2353 of 1996 in the Gujarat High court which is
\nstill pending. This shows that no Telex operators in western
\nregion was  promoted as\t AG-i prior  to April 1 1982 and the
\nquestion whether  they are  entitled  to  be  promoted\twith
\neffect from  may 17 1980 is pending consideration before the
\nGujarat High court in writ petition No.2353 of 1996. In case
\nthe Telex  operators of western region succeed in their writ
\nPetition that  is pending  in the Gujarat High Court and are
\npromoted as  AG-i with\teffect from  may 171980\t or  a\tdate
\nearlier than  April 1  1982 the petitioners as well as other
\nregular employees  in AG-II  cadre in the western region can
\nclaim promotion\t as AG-I  with effect from the same date and
\non that basis they can also claim promotion to higher posts.\n<\/p>\n
     The High  Court has  expressed the view that the cadres
\nin the\tregions should\thave been  integrated in  a  unified
\ncadre and  the seniority  should have  been assigned  to the
\nTelex operators\t in the\t integrated cadre  and has  directed
\nthat a\tconsolidated list  be prepared\tof all\tregions\t and
\npromotions should  be made on that basis. In other words the
\nHigh court  has directed that AG-II cadre could be converted
\nfrom a regional cadre to centralised cadre. Such a direction
\ncould not  be given  be\t the  High  court.  It\tis  for\t the
\ncommission to  decide how  to  organise\t its  administrative
\nservices   in\torder\tto   achieve   efficiency   in\t the
\nadministration. The  Commission has  taken a  decision\tthat
\ncadres up  to AG-I  should be  maintained on regional level.
\nThere is  nothing to  show that\t the said  decision  of\t the
\ncommission suffers  from the  vice of  arbitrariness. In the
\ncircumstances the  High court could not give a direction for
\nthe integration\t of  the  cadres  in  the  regions  and\t for
\npreparing a consolidated list of all  regions.\n<\/p>\n
     For the  reasons aforementioned we are unable to uphold
\nthe impugned  judgment of  the High  court and\tthe same  is
\nliable to  be set aside consequently the orders dated may 21
\n1986  passed  by  the  commission  revoking  the  promotions
\ngranted to the appellants in civil Appeal No. 525 of 1987 on
\nthe basis  of the  impugned judgment  of the  High court are
\nalso liable to be set aside.\n<\/p>\n
     In the result civil Appeals Nos. 525 of 1987 and 527 of
\n1987 are  allowed the  judgment of  the Gujarat\t High  court
\ndated December 23 1985 in special civil Application No. 4811
\nof 1984\t is set aside and the said special civil Application
\nis dismissed.  Writ petition No. 870 of 1986 is also allowed
\nand the\t orders dated  may 21  1986 are\t set aside.  In\t the
\ncircumstances there is no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India R.K. Sethi & Anr vs Oil & Natural Gas Commission & Ors on 28 January, 1997 Bench: S.C. Agrawal, Faizan Uddin PETITIONER: R.K. SETHI & ANR. Vs. RESPONDENT: OIL & NATURAL GAS COMMISSION & ORS. DATE OF JUDGMENT: 28\/01\/1997 BENCH: S.C. AGRAWAL, FAIZAN UDDIN ACT: HEADNOTE: JUDGMENT: [WITH CIVIL APPEALS NOS. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-154514","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nR.K. Sethi & Anr vs Oil & Natural Gas Commission & Ors on 28 January, 1997 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/r-k-sethi-anr-vs-oil-natural-gas-commission-ors-on-28-january-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.K. 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