{"id":19696,"date":"1989-03-28T00:00:00","date_gmt":"1989-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/paluru-ramkrishnaiah-ors-etc-vs-union-of-india-anr-on-28-march-1989"},"modified":"2016-06-22T18:21:07","modified_gmt":"2016-06-22T12:51:07","slug":"paluru-ramkrishnaiah-ors-etc-vs-union-of-india-anr-on-28-march-1989","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/paluru-ramkrishnaiah-ors-etc-vs-union-of-india-anr-on-28-march-1989","title":{"rendered":"Paluru Ramkrishnaiah & Ors. Etc vs Union Of India & Anr on 28 March, 1989"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Paluru Ramkrishnaiah & Ors. Etc vs Union Of India & Anr on 28 March, 1989<\/div>\n
Equivalent citations: 1990 AIR 166, \t\t 1989 SCR (2)\t 92<\/div>\n
Author: N Ojha<\/div>\n
Bench: Ojha, N.D. (J)<\/div>\n
           PETITIONER:\nPALURU RAMKRISHNAIAH & ORS. ETC.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ANR.\n\nDATE OF JUDGMENT28\/03\/1989\n\nBENCH:\nOJHA, N.D. (J)\nBENCH:\nOJHA, N.D. (J)\nPATHAK, R.S. (CJ)\nSHARMA, L.M. (J)\n\nCITATION:\n 1990 AIR  166\t\t  1989 SCR  (2)\t 92\n 1989 SCC  (2) 541\t  JT 1989 (1)\t595\n 1989 SCALE  (1)830\n\n\nACT:\n\t    Administrative   Law:  Executive   instructions---cann\not\n\toverride any provision of the Statutory Rules.\n\t    Civil  Services: Indian Ordnance Factories\t(Recruitme\nnt\n\tand  Conditions\t of Service of Class III  Personnel)  Rule\ns,\n\t1956:\tRules\t8,  12\tand  circular  dated   November\n6,\n\t1962--Supervisors  Grade  'A'promotion to  Chargeman  II\non\n\tcompletion of two years satisfactory service--Whether  the\nre\n\tis discrimination and any condition of service of Supervis\nor\n\t'A' affected.\n\n\n\nHEADNOTE:\n\t    The petitioners in the writ petitions were appointed\nas\n\tSupervisors Grade 'A' in various ordnance factories  betwe\nen\n\t1962 and 1966, in pursuance of circular dated 6th  Novembe\nr,\n\t1962  issued by the Director General of Ordnance  Factorie\ns.\n\tThe circular further provided for promotion from  Supervis\nor\n\t'A' to Chargeman I1, on completion of two years' satisfact\no-\n\try service.\n\t    75\tSupervisors Grade 'A' had moved a writ\tpetition\nin\n\tthe  Allahabad High Court in 1972. Their grievance was\tth\nat\n\teven  though quite a large number of Supervisors  Grade\t '\nA'\n\thad  been  promoted  to the post of Chargeman  Grade  II\non\n\tcompletion of two years' satisfactory work, in pursuance\nof\n\tthe  circular dated 6th November, 1962, they had  been\tdi\ns-\n\tcriminated against and had not been so promoted\t immediate\nly\n\ton the expiry of two years' service.\n\t    The\t writ petition was contested on the ground that\t t\nhe\n\tpromotion  from\t Supervisor Grade 'A' to Chargeman  II\twe\nre\n\tgoverned  by the Indian Ordnance Factories (Recruitment\t a\nnd\n\tConditions  of Service of Grade III Personnel)\tRules,\t19\n56\n\tand  such promotions could be made only in  accordance\twi\nth\n\tthe procedure prescribed by Rule 8 of these Rules.\n\t    The learned Single Judge dismissed the writ petition\non\n\tthe ground of unexplained laches. The Division Bench did n\not\n\tfind  any substance in the submission made on behalf of\t t\nhe\n\tpetitioners and dis-\n\t93\n\tmissed\ttheir  special\tappeal. According  to  the  Divisi\non\n\tBench,\tit was difficult to read in the circular that  aft\ner\n\ttwo  years of satisfactory service there would be  automat\nic\n\tpromotion from Supervisor Grade 'A' to Chargeman II as\tsu\nch\n\ta  view would militate against Rule 12 of the  Rules,  whi\nch\n\tprovided that no appointment shall be made otherwise than\nas\n\tspecified in the Rules. It was further held by the  Divisi\non\n\tBench that even assuming that some Supervisors Grade 'A' h\nad\n\tbeen  automatically  promoted on completion  of\t two  year\ns'\n\tservice,  without the recommendation after screening by\t t\nhe\n\tPromotion  Committee, as provided in Rule 8, no right  wou\nld\n\taccrue\tin favour of the appellants inasmuch as such  prom\no-\n\ttions would be in the teeth of Rule 12.\n\t    Against the judgment of the Division Bench, Civil Appe\nal\n\tNo. 441 of 1981 (Virendra Kumar and Others v. Union of Ind\nia\n\tand Others, [1981] 3 SCC 30) was preferred and this Court\nby\n\tits  order dated 2.2.1981 directed that the cases of the\n75\n\tappellants in Civil Appeal No. 441 of 1981 be considered f\nor\n\tpromotion  as  Chargeman Grade II and they  be\tso  promot\ned\n\tunless found to be unfit.\n\t    Another  group  of\t125 Supervisors Grade  'A'  got\t t\nhe\n\tbenefit\t of the Circular dated 6.11.1962 in pursuance of\nan\n\torder  passed by the Madhya Pradesh High Court on 4th  Apr\nil\n\t1983  on  the basis of the judgment of this Court  in  Civ\nil\n\tAppeal No. 441 of 1981. Special Leave Petitions against\t t\nhe\n\tjudgment of the Madhya Pradesh High Court were dismissed\nby\n\tthis Court.\n\t    The petitioners in the present writ petitions pray\tth\nat\n\tthe  same relief may be granted to them as had been  grant\ned\n\tin Civil Appeal No. 441 of 1981.\n\t    In the Civil Miscellaneous petitions now filed in  Civ\nil\n\tAppeal\tNo.  441 of 1981, the petitioners,  apart  from\t t\nhe\n\tprayer\tfor initiating proceedings for contempt against\t t\nhe\n\trespondents  for  disobedience of the order  of\t this  Cou\nrt\n\tdated-2.2.1981,\t have  prayed for orders directing  the\t r\ne-\n\tspondents  to implement in true letter and spirit  the\tsa\nid\n\torder  and  to promote the petitioners to  the\tnext  high\ner\n\tposts  after  giving them the benefit of the  directions\nof\n\tthat  order. Their grievance is that their promotion  tant\na-\n\tmounts\tto implementation of the order of this\tCourt  dat\ned\n\t2.2.1981 only on paper inasmuch as they have not been gran\nt-\n\ted  the\t difference of back wages and  promotion  to  high\ner\n\tposts on the basis of their back-date promotion as Chargem\nan\n\tII.\n\tBefore\tthis  Court it has been urged on behalf of  the\t r\ne-\n\tspondents\n\t94\n\tthat  (i) promotions of employees including  Supervisor\t '\nA'\n\twere  governed\tby the Rules and in view of Rule 12  no\t a\np-\n\tpointment could be made otherwise than as specified therei\nn;\n\t(ii) appointments by promotion were to be made according\nto\n\tRule 8 on the basis of selection list prepared in the mann\ner\n\tprovided  there\t in  and there was no  scope  for  automat\nic\n\tpromotion  merely  after  expiry of 2  years  of  continuo\nus\n\tservice\t on  the basis of the circular dated  6th  Novembe\nr,\n\t1962;  (iii)  the  circular which was in the  nature  of\nan\n\texecutive instruction prescribed 2 years' service as  Supe\nr-\n\tvisor 'A' to make them only eligible for promotion; and (i\nv)\n\tafter the issue of the subsequent order dated 28th Decembe\nr,\n\t1965  and  circular dated 20th January, 1966  no  Supervis\nor\n\tcould claim to have become eligible for promotion merely\non\n\tcompletion  of 2 years' satisfactory service and his  prom\no-\n\ttion  thereafter could be effected only in  accordance\twi\nth\n\tthe normal Rules.\n\t    Dismissing\tthe  writ  petitions and  disposing  of\t t\nhe\n\tmiscellaneous petitions, it was,\n\t    HELD:  (1) An executive instruction could make a  prov\ni-\n\tsion  only with regard to a matter which was not covered\nby\n\tthe Rules and such executive instruction could not  overri\nde\n\tany provision of the Rule. [103E]\n\t    B.N.  Nagarajan  v. State of Mysore,<\/a> [1966] 3  SCR\t68\n2;\n\tSant  Ram  Sharma v. State of Rajasthan, [1968] 1  SCR\t11\n1;\n\tRamchandra  Shenkar  Deoghar v. The  State  of\tMaharashtr\na,\n\t[1974] 1 SCC 317; Union of India v. Somasundaram  Viswanat\nh,\n\t[1988] 3 SC. Judgments Today 724, referred to.\n\t    (2) Notwithstanding the issue of instructions dated\t 6\nth\n\tNovember,  1962 the procedure for making promotion  as\tla\nid\n\tdown in Rule 8 of the Rules had to be followed, and the sa\nid\n\tprocedure  could not be abrogated by the executive  instru\nc-\n\ttions dated 6th November 1962. [103F]\n\t    (3)\t The only effect of the circular dated 6th  Novemb\ner\n\t1962  was  that Supervisors 'A' on completion  of  2  year\ns'\n\tsatisfactory  service  could be promoted  by  following\t t\nhe\n\tprocedure  contemplated by Rule 8. This circular had  inde\ned\n\tthe  effect  of accelerating the chance\t of  promotion.\t T\nhe\n\tright  to promotion on the other hand was to be governed\nby\n\tthe Rules. This right of promotion as provided by the  Rul\nes\n\twas neither affected nor could be affected by the  circula\nr.\n\t[103F-G]\n\t95\n\t    (4) After the coming into force of the order dated\t28\nth\n\tDecember,  1965\t and the circular dated 20th  January,\t19\n66\n\tpromotions could not be made just on completion of 2  year\ns'\n\tsatisfactory  service under the earlier circular  dated\t 6\nth\n\tNovember, 1962, the same having been superseded by the lat\ner\n\tcircular. [106H; 107A-B]\n\t    (5)\t Circular  dated  20th January, 1966  could  not\nbe\n\ttreated\t to  be\t one affecting adversely  any  condition\nof\n\tservice\t of  Supervisors 'A'. Its only effect was  that\t t\nhe\n\tchance of promotion which had been accelerated by the circ\nu-\n\tlar dated 6th November, 1962 was deferred and made depende\nnt\n\ton  selection according to the Rules. Though a right  to\nbe\n\tconsidered  for promotion was a condition of  service,\tme\nre\n\tchances of promotion were not. [106G-H]\n\t    Ramchandra Shankar Deodhar v. The State of\tMaharashtr\na,\n\t(supra)\t and Mohammad Shujat Ali & Ors. v. Union of India\n\n\n\nJUDGMENT<\/a>:\n<\/pre>\n
\tOrs., [1975] 3 SCC 76, referred to.
\n\t    (6)\t Supervisors  ‘A’ who had been promoted\t before\t t
\nhe
\n\tcoming into force of the order dated 28th December, 1965 a
\nnd
\n\tthe  circular  dated  20th January, 1966 stood\tin  a  cla
\nss
\n\tseparate from those whose promotions were to be made  ther
\ne-\n<\/p>\n
\tafter. The fact that some Supervisors ‘A’ had been  promot
\ned
\n\tbefore\tthe coming into force of the order dated 20th  Jan
\nu-\n<\/p>\n
\tary, 1966 could not, therefore, constitute the basis for
\nan
\n\targument that those Supervisors ‘A’ whose cases came up\t f
\nor
\n\tconsideration thereafter and who were promoted in due cour
\nse
\n\tin  accordance with the Rules, were  discriminated  agains
\nt.\n<\/p>\n
\t[107B-C]
\n\t    (7)\t There were sufficient indications that\t when  Civ
\nil
\n\tAppeal\tNo. 441 of 1981 was heard by this Court\t either\t t
\nhe
\n\tsubsequent  order dated 28th December, 1965 as well  as\t t
\nhe
\n\tcircular dated 20th January, 1966 and the legal consequenc
\nes
\n\tflowing\t therefrom  were not brought to the  notice  of\t t
\nhe
\n\tlearned\t Judges by the learned counsel for the\trespondent
\ns,
\n\tor the same was not properly emphasized. [105E-F]
\n\t    (8) The findings of the Madhya Pradesh High Court in i
\nts
\n\tjudgment  dated 4th April stood approved by this Court\twh
\nen
\n\tthe Court dismissed the special leave petition against\tth
\nat
\n\tjudgment.  The\tappellants in Civil Appeal No. 441  of\t19
\n81<\/span>
\n\ttherefore deserved to be granted the same benefit as regar
\nds
\n\tback wages and further promotion as were given by the Madh
\nya
\n\tPradesh\t High Court to such of the petitioners\tbefore\tth
\nat
\n\tCourt who were Supervisors ‘A’ and were granted promotion
\nas
\n\tChargeman  I1 by its judgment dated 4th April, 1983.  [108
\nH;\n<\/p>\n
\t109D]
\n\t96<\/span>
\n\t    (9) This was not a fit case for initiating any  procee
\nd-\n<\/p>\n
\tings for contempt against the respondents. [109F]
\n&
\n\t    ORIGINAL JURISDICTION: Writ Petition (Civil) No. 530
\nof
\n\t1983 etc.
\n\t(Under Article 32 of the Constitution of India).
\n\t    V.A. Bobde, Shyam Mudaliar, V.M. Tarkunde, G.L.  Sangh
\ni,
\n\tA.K. Sanghi, Mrs. R. Karanjawala, Mrs. Meenakshi Karanjawa
\nla
\n\tN.M. Popli and V.J. Francis for the Petitioners.
\n\t    Ms. A. Subhashini, D.N. Dwivedi, Girish Chandra,  C.V.
\nS.\n<\/p>\n
\tRao, M.C. Dhingra and N.K. Sharma for the Respondents.
\n\tThe Judgment of the Court was delivered by
\n\t    OJHA,  J.  The petitioners in  the\taforementioned\twr
\nit
\n\tpetitions claim to have been appointed as Supervisors  Gra
\nde
\n\t‘A’  in various ordnance factories between 1962 to 1966\t a
\nnd
\n\thave  filed  these writ petitions with the prayer  that\t t
\nhe
\n\tsame  relief may be granted to them also as was\t granted
\nby
\n\tthis Court to 75 appellants in Civil Appeal No. 441 of\t19
\n81<\/span>
\n\tvide  its  order dated 2nd February, 1981. The\tthree  civ
\nil
\n\tmiscellaneous petitions referred to above on the other\tha
\nnd
\n\thave been made by the appellants of Civil Appeal No. 441
\nof
\n\t1981 asserting that the direction given by this Court on 2
\nnd
\n\tFebruary,  1981 has not been complied with in the manner
\nas
\n\tit ought to have been by the respondents and they should
\nbe
\n\tconsequently required to comply with the said direction. T
\nhe
\n\texact  nature  of  the prayer made  in\tthese  miscellaneo
\nus
\n\tapplications  shall  be\t indicated after  referring  to\t t
\nhe
\n\trelief granted on 2nd February, 1981 in Civil Appeal No. 4
\n41<\/span>
\n\tof 1981.\n<\/p>\n
\t    The 75 appellants of Civil Appeal No. 441 of 1981  fil
\ned
\n\ta writ petition in the Allahabad High Court in 1972  asser
\nt-\n<\/p>\n
\ting that they had been appointed as Supervisors Grade ‘A’
\non
\n\tvarious dates in pursuance of a circular dated 6th Novembe
\nr,
\n\t1962  issued by the Director General of Ordnance  Factorie
\ns,
\n\tthe relevant portion whereof reads as hereunder:-
\n\t“Subject: NON-INDUSTRIAL     ESTABLISHMENT PROMOTION
\n\tD.G.O.F. has decided that Diploma holders serving as
\n\t97<\/span>
\n\tSupervisor  ‘A’ (Tech)\/Supervisor ‘B’\/(Tech) and in  equiv
\na-\n<\/p>\n
\tlent grades should be treated as follows\n<\/p>\n
\t(i)  All  those Diploma holders who have been  appointed
\nas
\n\tSupervisor  ‘B’ (Tech) (and in equivalent grades) should
\non
\n\tcompletion  of one year’s satisfactory service\tin  ordnan
\nce
\n\tfactories be promoted to Supervisor ‘A’ (Tech) and in equi
\nv-\n<\/p>\n
\talent grades.)\n<\/p>\n
\t(ii)  All those Diploma holders who work  satisfactorily
\nas
\n\tSupervisor ‘A’ (Tech) or in equivalent grades for 2 years
\nin
\n\tOrdnance Factory should be promoted to Chargeman.
\n\tKindly acknowledge receipt.
\n\tSd\/-K.G. Bijlani
\n\t\t\t\t       ADGOF\/Est. for D.G.O.F.
\n\t    Their  grievance  in  the writ petition  was  that\tev
\nen
\n\tthough\tquite  a large number of Supervisors Grade  ‘A’\t h
\nad
\n\tbeen  promoted to the post of Chargeman grade II on  compl
\ne-\n<\/p>\n
\ttion of two years’ satisfactory work they had been discrim
\ni-\n<\/p>\n
\tnated  against and had not been so promoted  immediately
\non
\n\tthe  expiry  of\t two years’ in pursuance  of  the  aforesa
\nid
\n\tcircular even though their work was satisfactory. The reli
\nef
\n\tprayed for in the said writ petition was for the issue of
\n a
\n\twrit  of mandamus directing the Union of India\tthrough\t t
\nhe
\n\tDirector General of Ordnance Factories to promote the appe
\nl-\n<\/p>\n
\tlants  to  the post of Chargeman II. The writ  petition\t w
\nas
\n\tcontested  by  the  respondents thereto inter  alia  on\t t
\nhe
\n\tground that under the rules of promotion from Supervisor ‘
\nA’
\n\tto  Chargeman II first Departmental Promotion Commit.tee
\nat
\n\tthe  factory level and then a Departmental Committee at\t t
\nhe
\n\tCentral\t level\tscreens the service record of  each  of\t t
\nhe
\n\tSupervisors  ‘A’ who comes within the range  of\t eligibili
\nty
\n\tand then finally the Director General of Ordnance  Factori
\nes
\n\tdraws  up  a list and sanctions promotions. It\twas  furth
\ner
\n\tasserted that in accordance with the said rule the cases
\nof
\n\tall the appellants were screened by the Promotion  Committ
\nee
\n\tat the factory level and then at the Central level and\tth
\ney
\n\tnot having been found fit were not promoted. It appears th
\nat
\n\tthe  criterion\tof  promotion  is  seniority-cum-merit.\t T
\nhe
\n\tlearned Single Judge, however, did not go into the merits
\nof
\n\tthe  controversy  and  dismissed the writ  petition  on\t t
\nhe
\n\tground\tof unexplained laches and also on the ground that
\n a
\n\tprevious  petition for similar relief had not been  presse
\nd.\n<\/p>\n
\tAgainst the
\n\t98<\/span>
\n\tjudgment  of  the learned Single Judge the  appellants\tpr
\ne-\n<\/p>\n
\tferred\ta  special appeal before a Division  Bench  of\tth
\nat
\n\tCourt. The learned Judges who decided the special appeal d
\nid
\n\tnot  consider it appropriate to uphold the dismissal of\t t
\nhe
\n\twrit  petition\ton the technical ground which  found  favo
\nur
\n\twith the learned Single Judge and they went into the  meri
\nts
\n\tof the respective contentions of the parties. They, howeve
\nr,
\n\tdid not find any substance in the submission made on  beha
\nlf
\n\tof  the\t appellants and accordingly  dismissed\tthe  speci
\nal
\n\tappeal on 8th February, 1977. The learned Judges pointed o
\nut
\n\tthat it was admitted that the conditions of service applic
\na-\n<\/p>\n
\tble  to\t the  case of the appellants were  governed  by\t t
\nhe
\n\tIndian\tOrdnance  Factories (Recruitment and  Conditions
\nof
\n\tService\t of  Class III Personnel) Rules,  1956\t(hereinaft
\ner
\n\treferred  to as the Rules) framed by the President of  Ind
\nia
\n\tunder Article 309 of the Constitution. It was further poin
\nt-\n<\/p>\n
\ted out that Rule 8 contemplated that appointments by  prom
\no-\n<\/p>\n
\ttion  were to be made on the basis of a selection list\tpr
\ne-\n<\/p>\n
\tpared  for the different grades by duly constituted  Depar
\nt-\n<\/p>\n
\tmental\tPromotion  Committees  laid down in  the  said\tru
\nle
\n\twhereas Rule 12 provided that no appointment to the posts
\nto
\n\twhich  these  rules apply shall be made\t otherwise  than
\nas
\n\tspecified  therein.  With regard to the circular  dated\t 6
\nth
\n\tNovember, 1962 the learned Judges took the view that it\t w
\nas
\n\tdifficult to read in that circular any intention or delibe
\nr-\n<\/p>\n
\tation on the part of the Director General of Ordnance Fact
\no-\n<\/p>\n
\tries  that as soon as two years were completed by a  diplo
\nma
\n\tholder\tin  the Grade of Supervisor ‘A’ there  would  be
\nan
\n\tautomatic  promotion to the post of Chargeman Il.  Accordi
\nng
\n\tto  the\t learned Judges such a view would  militate  again
\nst
\n\tRule  12 of the Rules mentioned above. It was  further\the
\nld
\n\tthat even if it was to be assumed that the Director  Gener
\nal
\n\tof  Ordnance Factories automatically promoted some  Superv
\ni-\n<\/p>\n
\tsors ‘A’ immediately on the completion of 2 years of servi
\nce
\n\tto the post of Chargeman II without the recommendation aft
\ner
\n\tscreening  by the Promotion Committee no right would  accr
\nue
\n\tin  favour  of the appellants inasmuch\tas  such  promotio
\nns
\n\twould  be  in the teeth of Rule 12 and could  not  confer
\n a
\n\tlegal  right  on the appellants to be likewise\tpromoted
\nin
\n\tbreach of Rule 12. With regard to the plea based on  Artic
\nle
\n\t16 of the Constitution. it was held “A half-hearted argume
\nnt
\n\twas raised at the end of the hearing on behalf of the appe
\nl-\n<\/p>\n
\tlant-petitioners  that they have been discriminated  again
\nst
\n\tby  depriving  them the benefit of  automatic  promotion
\nin
\n\tviolation  of constitutional guarantee under Article  16
\nof
\n\tthe Constitution. This was an argument, neither pleaded as
\n a
\n\tground\tfor the petition nor was raised before\tthe  learn
\ned
\n\tSingle\tJudge.\tMoreover, we do not think any case,  on\t t
\nhe
\n\tbasis of violation of Article 16 of the Constitution can
\nbe
\n\tfound  in favour of the appellant-petitioners  only  becau
\nse
\n\tsome
\n\t99<\/span>
\n\tsupervisors, equally placed, were promoted against the rul
\nes
\n\tof  service.  No formal foundation has been  raised  in\t t
\nhe
\n\tpleadings  in  the writ petition in support  of\t the  grou
\nnd
\n\tbased on Article 16 of the Constitution.”\n<\/p>\n
\t    It is against this judgment that Civil Appeal No. 441
\nof
\n\t1981 was preferred in this Court. Since the order dated\t 2
\nnd
\n\tFebruary, 1981 passed in Civil Appeal No. 441 of 1981, so
\nto
\n\tspeak,\tconstitutes  the basis for the writ  petitions\tme
\nn-\n<\/p>\n
\ttioned\tabove, it is in our opinion expedient  to  reprodu
\nce
\n\tthe said order. It reads:–
\n\t“Heard counsel. Special leave granted.
\n\t“Our attention has been invited by learned counsel for\tbo
\nth
\n\tthe  sides to the relevant rules which govern  promotion
\nto
\n\tthe  post  of Chargeman Grade II. It appears  that  a  lar
\nge
\n\tnumber\tof persons have been promoted to those posts  thou
\ngh
\n\tthey  have completed only two years of service. The  Gover
\nn-\n<\/p>\n
\tment now appears to insist that in so far as the  appellan
\nts
\n\tare concerned they cannot be considered for promotion unle
\nss
\n\tthey  complete three years of service. We see no  justific
\na-\n<\/p>\n
\ttion for any such differential treatment being given to\t t
\nhe
\n\tappellants.  If\t a large number of other  persons  similar
\nly
\n\tsituated  have\tbeen promoted as Chargeman  Grade  II  aft
\ner
\n\tcompleting two years of service, there is no reason why\t t
\nhe
\n\tappellants  should  also  not be  similarly  promoted  aft
\ner
\n\tcompleting the same period of service. We are not suggesti
\nng
\n\tthat  the  appellants  are entitled to be  promoted  to\t t
\nhe
\n\taforesaid posts even if they are found unfit to be promote
\nd.\n<\/p>\n
\t\t  We Therefore direct that the concerned authoriti
\nes
\n\twill  consider the cases of the appellants for promotion
\nas
\n\tChargeman Grade II and promote them to the said posts unle
\nss
\n\tthey are found to be unfit. If the appellants are  promote
\nd,
\n\tthey will naturally have to be promoted with effect from t
\nhe
\n\tdate on which they ought to have been promoted.
\n\tThis  order  will dispose of the appeal. There\twill  be
\nno
\n\torder as to costs.”\n<\/p>\n
\tAs  already pointed above the petitioners in the writ  pet
\ni-\n<\/p>\n
\ttions refer-\n<\/p>\n
\t100<\/span><\/p>\n
\tred  to\t above\thave prayed for the same  relief  which\t w
\nas
\n\tgranted in Civil Appeal No. 441 of 1981. Now we shall  rev
\nrt
\n\tto  the exact prayers made in the three miscellaneous  pet
\ni-\n<\/p>\n
\ttions  aforesaid.  The prayer made  in\tCivil  Miscellaneo
\nus
\n\tPetition  No.  3325 of 1987 is for the issue of\t an  inter
\nim
\n\torder  restraining the respondents from making\tany  furth
\ner
\n\tpromotions  during  the pendency and final  heating  of\t t
\nhe
\n\tmiscellaneous petition and for initiating contempt  procee
\nd-\n<\/p>\n
\tings. Almost analogous prayer had been made in Miscellaneo
\nus
\n\tPetition  No. 9357 of 1983 also namely that the\t responden
\nts
\n\tmay be restrained from promoting officers to the next high
\ner
\n\tposts on the basis of recommendations of certain  Departme
\nn-\n<\/p>\n
\ttal  Promotion Committees without complying with the  dire
\nc-\n<\/p>\n
\ttions  of this Court in its order dated 2nd February,  198\n<\/p>\n
1.
\n\tThe reliefs prayed for in the above two civil  miscellaneo
\nus
\n\tpetitions  are thus of an interim nature. The  main  relie
\nfs
\n\twhich  have been prayed for apart from for  initiating\tpr
\no-\n<\/p>\n
\tceedings for contempt for disobedience of the order of\tth
\nis
\n\tCourt  dated  2nd February, 1981 are reliefs (i),  (ii)\t a
\nnd\n<\/p>\n
\t(iii) contained in Civil Miscellaneous Petition No. 9356
\nof
\n\t1983. They are as hereunder:–
\n\t“(i)  pass appropriate orders directing the  respondents
\nto
\n\timplement  in true letter and spirit, the judgment  of\tth
\nis
\n\tHon’ble Court dated 2.2.1981 in Civil Appeal No. 441 of\t 1
\n98<\/span>
\n\t1;\n<\/p>\n
\t(ii) issue appropriate directions commanding the responden
\nts
\n\tto  promote  the  appellants to the  next  higher  posts
\nof
\n\tChargeman  Grade  I, Assistant Foreman,\t and  Foreman,\twi
\nth
\n\teffect from the date they are entitled to, after giving th
\nem
\n\tthe  benefit of the directions of this Hon’ble\tCourt  dat
\ned
\n\t2.2.1981;\n<\/p>\n
\t(iii)  issue  appropriate directions to the  respondents
\nto
\n\tgive all consequential benefits to the appellants, includi
\nng
\n\tpayment of arrears.”\n<\/p>\n
\t    The aforesaid writ petitions came up for hearing  befo
\nre
\n\ta  bench of two learned Judges of this Court on 9th  Septe
\nm-\n<\/p>\n
\tber, 1987. On the view that the judgment of this Court dat
\ned
\n\t2nd  February, 1981 in Civil Appeal No. 441 of 1981  in\t t
\nhe
\n\tcase of Virendra Kumar and Others v. Union of India &  Ors
\n.,
\n\t[1981] 3 SCC Page 30 may require reconsideration, the  pet
\ni-\n<\/p>\n
\ttions were directed to be placed before a three Judge  Ben
\nch
\n\t“where\tinter alia the correctness of the judgment could
\nbe
\n\tlooked into and the nature of relief available to the  pet
\ni-\n<\/p>\n
\ttioners on the
\n\t101<\/span>
\n\tfacts now stated would also be considered.” It is in view
\nof
\n\tthis order that these matters have been listed before us.
\n\t    Learned  counsel for the petitioners contended that\t t
\nhe
\n\treason\twhich  weighed\twith this Court\t in  allowing  Civ
\nil
\n\tAppeal No. 441 of 1981 applies to these writ petitions\tal
\nso
\n\tand the same relief may accordingly be granted to the  pet
\ni-\n<\/p>\n
\ttioners.  It was also brought to our notice  that  similar
\nly
\n\tplaced\t125 employees got the benefit of the circular  dat
\ned
\n\t6th  November, 1962 in pursuance of an order passed  by\t t
\nhe
\n\tMadhya\tPradesh High Court on 4th April, 1983 in writ  pet
\ni-\n<\/p>\n
\ttions  filed  by them. It was urged that in  case  the\tsa
\nme
\n\trelief is not granted to the petitioners they are likely
\nto
\n\tbecome juniors to some of the appellants in Civil Appeal N
\no.\n<\/p>\n
\t441 of 1981 and the petitioners in the writ petitions deci
\nd-\n<\/p>\n
\ted by the Madhya Pradesh High Court on 4th April, 1983.
\n\t    For the respondents on the other hand it was urged\tth
\nat
\n\tservice conditions including promotion of employees  inclu
\nd-\n<\/p>\n
\ting  Supervisors ‘A’ in the Indian Ordnance  Factories\twe
\nre
\n\tgoverned by the Rules and in view of Rule 12 no\t appointme
\nnt
\n\tto  the\t various posts to which the Rules applied  could
\nbe
\n\tmade  otherwise\t than  as specified  therein;  According
\nto
\n\tlearned counsel since Rule 8 of the Rules contemplated\tth
\nat
\n\tappointments  by promotion were to be made on the  basis
\nof
\n\tselection  list\t prepared in the  manner  provided  therei
\nn,
\n\tthere  was  no scope for automatic  promotion  merely  aft
\ner
\n\texpiry of 2 years of continuous service on the basis of\t t
\nhe
\n\tcircular  dated\t 6th November, 1962.  According\t to  learn
\ned
\n\tcounsel\t the Rules did not prescribe the minimum  number
\nof
\n\tyears  of service as Supervisors ‘A’ which would  make\tth
\nem
\n\teligible  for  promotion as Chargeman II  and  the  circul
\nar
\n\tdated  6th  November,  1962 which was in the  nature  of
\nan
\n\texecutive instruction prescribed 2 years’ service as  Supe
\nr-\n<\/p>\n
\tvisor  ‘A’  to\tmake him eligible  for\tpromotion.  Howeve
\nr,
\n\tmerely on completion of two years’ service a Supervisor\t ‘
\nA’
\n\tcould  not  claim automatic promotion. On  the\tother  han
\nd,
\n\tpromotion depended, inter alia, on availability of posts a
\nnd
\n\tthe incumbent being found fit by the Departmental  Promoti
\non
\n\tCommittee  for being included in the selection list. It\t w
\nas
\n\tonly  such a Supervisor Grade ‘A’ whose name found place
\nin
\n\tthe  selection\tlist who could be promoted to  the  post
\nof
\n\tChargeman  II as and when vacancies were available.  It\t w
\nas
\n\tfurther\t urged that the petitioners of these writ  petitio
\nns
\n\twere on the basis of the Rules considered for promotion\t a
\nnd
\n\tit is not disputed that all of them have in due course\tbe
\nen
\n\tpromoted  as  Chargeman II and some of them have  even\tbe
\nen
\n\tpromoted to higher posts. Our attention was further  invit
\ned
\n\tby learned counsel for the respondents to an order  commun
\ni-\n<\/p>\n
\tcated among others to the Director
\n\t102<\/span>
\n\tGeneral of Ordnance Factories, vide letter dated 28th Dece
\nm-\n<\/p>\n
\tber,  1965 of the Government of India, Ministry of  Defenc
\ne,
\n\tsaying inter alia that a minimum period of service of  thr
\nee
\n\tyears  in the lower grade should be fixed for  promotion
\nto
\n\tthe next higher grade. It was pointed out that this had be
\nen
\n\tfound  necessary not only because it would be in  conformi
\nty
\n\twith  the  practice obtaining in other Ministries  but\tal
\nso
\n\tbecause\t on  merits this period is necessary  to  judge\t t
\nhe
\n\tperformance  in\t the lower post and the\t potentialities\t f
\nor
\n\tpromotion to a higher post. He also brought to our notice
\n a
\n\tsubsequent circular dated 20th January, 1966 by the Direct
\nor
\n\tGeneral\t of Ordnance Factories who had issued.\tthe  earli
\ner
\n\tcircular dated 6th November, 1962 which provides:–\n<\/p>\n
\t      “Sub:  N.G.   Establishment–Treatment   of    Diplo
\nma
\n\tHolders\t and  ex-apprentices serving as Supr. A\t Gr.  or
\nin
\n\tequivalent grades in the matter of promotion.\n<\/p>\n
\t      Ref: This office confidential No. 673\/A\/NG dt. 6.11.\n<\/p>\n
62<\/span><\/p>\n
\tand 4416\/A\/NG dt. 29.6.65.
\n\t\t  The  question of promotion of Diploma\t holders
\nin
\n\tMech\/Elec.  Engineering and Ex-apprentices serving as  Sup
\nr.\n<\/p>\n
\t‘A’ Gr. or in equivalent grades has received further consi
\nd-\n<\/p>\n
\teration\t of  the  D.G.O.F. who has decided  that  in  futu
\nre
\n\tpromotions  of\tall  such individuals will  be\teffected
\nin
\n\taccordance with the normal rules i.e. on the basis of  the
\nir
\n\tlisting by the relevant D.P.C. and not merely on  completi
\non
\n\tof 2 years satisfactory continuous service as Supr. A Gr.
\nor
\n\tequivalent grades.”\n<\/p>\n
\t    It\twas  urged that after the issue\t of  the  subseque
\nnt
\n\torder  dated  28th December, 1965 and  circular\t dated\t20
\nth
\n\tJanuary,  1966 no Supervisor ‘A’ could claim to have  beco
\nme
\n\teligible  for  promotion merely on completion  of  2  year
\ns’
\n\tsatisfactory  service and his promotion thereafter could
\nbe
\n\teffected only in accordance with the normal Rules.
\n\t    Having  heard  learned counsel for the parties  we\tfi
\nnd
\n\tsubstance in the submission made by the learned counsel\t f
\nor
\n\tthe  respondents. Relying on two earlier decisions  in\tB.
\nN.\n<\/p>\n
\tNagarajan & Ors. v. State of Mysore & Ors., [1966] 3 SCR 6
\n82<\/span>
\n\tand  Sant Ram Sharma v. State of Rajasthan & Anr.,<\/a> [1968]
\n 1<\/span>
\n\tSCR 111 it was held by a Constitution Bench of this Court
\nin
\n\tRamachandra  Shankar Deodhar and Ors. v. The State of  Mah
\na-\n<\/p>\n
\trashtra\t &  Ors., [1974] 1 SCC 317 that in  the\t absence
\nof
\n\tlegislative  Rules it was competent to the State  Governme
\nnt
\n\tto take a
\n\t103<\/span>
\n\tdecision in the exercise of its executive power under  Art
\ni-\n<\/p>\n
\tcle 162 of the Constitution. The matter has been  consider
\ned
\n\tin  a recent decision of this Court in the case of Union
\nof
\n\tIndia & Ors. v. Sh. Soraasundararn Viswanath & Ors.,<\/a>  [198
\n8]
\n\t3 S.C. Judgments Today 724 wherein it has been held:–
\n\t“It is well settled that the norms regarding recruitment a
\nnd
\n\tpromotion of officers belonging to the Civil Services can
\nbe
\n\tlaid  down either by a law made by the appropriate  Legisl
\na-\n<\/p>\n
\tture  or by rules made under the proviso to Article  309
\nof
\n\tthe Constitution of India or by means of executive  instru
\nc-\n<\/p>\n
\ttions  issued under Article 73 of the Constitution of  Ind
\nia
\n\tin  the case of Civil Services under the Union of India\t a
\nnd
\n\tunder  Article 162 of the Constitution of India in the\tca
\nse
\n\tof Civil Services under the State Governments. If there is
\n a
\n\tconflict  between the executive instructions and  the  rul
\nes
\n\tmade under the proviso to Article 309 of the Constitution
\nof
\n\tIndia,\tthe rules made under the proviso to Article  309
\nof
\n\tthe  Constitution of India prevail, and if there is  a\tco
\nn-\n<\/p>\n
\tflict  between the rules made under the proviso\t to  Artic
\nle
\n\t309  of\t the Constitution of India and the law made  by\t t
\nhe
\n\tappropriate  Legislature,  the law made by  the\t appropria
\nte
\n\tLegislature prevails.”\n<\/p>\n
\t    It is thus apparent that an executive instruction  cou
\nld
\n\tmake a provision only with regard to a matter which was\t n
\not
\n\tcovered\t by  the Rules and that such  executive\t instructi
\non
\n\tcould not override any provision of the Rule.  Notwithstan
\nd-\n<\/p>\n
\ting the issue of instruction dated 6th November, 1962 ther
\ne-\n<\/p>\n
\tfore,  the  procedure for making promotion as laid  down
\nin
\n\tRule 8 of the Rules had to be followed. Since Rule 8 in\t t
\nhe
\n\tinstant case prescribed a procedure for making promotion t
\nhe
\n\tsaid  procedure\t could\tnot be abrogated  by  the  executi
\nve
\n\tinstruction dated 6th November, 1962. The only effect of t
\nhe
\n\tcircular  dated 6th November, 1962 was that Supervisors\t ‘
\nA’
\n\ton  completion\tof 2 years’ satisfactory  service  could
\nbe
\n\tpromoted by following the procedure contemplated by Rule\n<\/p>\n
8.
\n\tThis  circular\thad indeed the effect  of  accelerating\t t
\nhe
\n\tchance\tof  promotion. The right to promotion on  the  oth
\ner
\n\thand  was to be governed by the Rules. This right  was\tco
\nn-\n<\/p>\n
\tferred\tby Rule 7 which inter alia provides that subject
\nto
\n\tthe  exception contained in Rule 11, vacancies in the  pos
\nts
\n\tenumerated  therein will normally be filled by promotion
\nof
\n\temployees in the grade immediately below in accordance\twi
\nth
\n\tthe  provisions\t of Rule 8. The requirements of\t rule  8
\nin
\n\tbrief have already been indicated above. Rule 12 provides
\n\t104<\/span>
\n\tthat no appointment to the posts to which these rules  app
\nly
\n\tshall  be made otherwise than, as specified in these  rule
\ns.\n<\/p>\n
\tThis right of promotion as provided by the Rules was neith
\ner
\n\taffected  nor could be affected by the circular.  The  ord
\ner
\n\tdated 28th December, 1965 which provided a minimum period
\nof
\n\tservice\t of three years in the lower grade for promotion
\nto
\n\tthe  next higher grade and the circular dated  20th  Janua
\nry
\n\t1966  which provided that promotions in future will  be\t e
\nf-\n<\/p>\n
\tfected in accordance with the normal rules and not merely
\non
\n\tcompletion  of 2 years’ satisfactory continuous service\t h
\nad
\n\tthe  effect  of doing away with the  accelerated  chance
\nof
\n\tpromotion  and relegating Supervisors ‘A’ in the  matter
\nof
\n\tpromotion  to the normal position as it obtained  under\t t
\nhe
\n\tRules.\n<\/p>\n
\t    In\tthe  case  of Ramchandra  Shankar  Deodhar  &  Ors
\n.,
\n\t(supra) the petitioners and other allocated Tehsildars\tfr
\nom
\n\tex-Hyderabad  State  had under the Notification of  the\t R
\naj
\n\tPramukh\t dated September 15, 1955 all the vacancies  in\t t
\nhe
\n\tposts  of Deputy Collector in the ex-Hyderabad State  avai
\nl-\n<\/p>\n
\table  to  them for promotion but under subsequent  rules
\nof
\n\tJuly  30,  1959 fifty per cent of the vacancies were  to
\nbe
\n\tfilled\tby direct recruitment and only the  remaining  fif
\nty
\n\tper cent were available for promotion and that too on  div
\ni-\n<\/p>\n
\tsional\tbasis. The effect of this change obviously was\tth
\nat
\n\tnow  only  fifty  per cent vacancis in the  post  of  Depu
\nty
\n\tCollector  being available in place of all the vacancies
\nit
\n\twas to take almost double the time for many other  allocat
\ned
\n\tTehsildars  to get promoted as Deputy Collectors.  In  oth
\ner
\n\twords  it resulted in delayed chance of promotion.  It\twa
\ns,
\n\tinter  alia,  urged on behalf of the  petitioners  that\t t
\nhe
\n\tsituation  brought about by the rules of July 30, 1959\tco
\nn-\n<\/p>\n
\tstituted  variation to their prejudice in the conditions
\nof
\n\tservice applicable to them immediately prior to the reorga
\nn-\n<\/p>\n
\tisation\t of  the State and the Rules were  consequently\t i
\nn-\n<\/p>\n
\tvalid.\tWhile  repelling this  submission  the\tConstituti
\non
\n\tBench held:–\n<\/p>\n
\t“All  that happened as a result of making promotions to\t t
\nhe
\n\tposts  of Deputy Collectors divisionwise and  limiting\tsu
\nch
\n\tpromotions  to 50 per cent of the total number of  vacanci
\nes
\n\tin  the posts of Deputy Collector was to reduce the  chanc
\nes
\n\tof  promotion available to the petitioners. It is  now\twe
\nll
\n\tsettled by the decision of this Court in State of Mysore
\nv.\n<\/p>\n
\tG.B. Purohit that though a right to be considered for prom
\no-\n<\/p>\n
\ttion  is a condition of service, mere chances  of  promoti
\non
\n\tare  not. A rule which merely affects chances  of  promoti
\non
\n\tcannot\tbe  regarded as varying a condition of\tservice.
\nIn
\n\tPurohit’s case the districtwise seniority of sanitary in-\n<\/p>\n
\t105<\/span><\/p>\n
\tspectors was changed to Statewise seniority, and as a resu
\nlt
\n\tof  this change the respondents went down in  seniority\t a
\nnd
\n\tbecame\tvery  junior.  This, it was  urged,  affected  the
\nir
\n\tchances of promotion which were protected under the  provi
\nso
\n\tto  Section 115, sub-section (7). This contention was  neg
\na-\n<\/p>\n
\ttived and Wanchoo, J., (as he then was), speaking on  beha
\nlf
\n\tof  this  Court observed: “It is said on behalf of  the\t r
\ne-\n<\/p>\n
\tspondents  that\t as  their chances of  promotion  have\tbe
\nen
\n\taffected  their conditions of service have been\t changed
\nto
\n\ttheir disadvantage. We see no force in this argument becau
\nse
\n\tchances of promotion are not conditions or service.” It\t i
\ns,
\n\ttherefore,  clear that neither the Rules of July ’30,  195
\n9,
\n\tnor  the  procedure for making promotions to  the  posts
\nof
\n\tDeputy\tCollector  divisionwise\t varies\t the  conditions
\nof
\n\tservice of the petitioners to their disadvantage.”\n<\/p>\n
\t    The same view was reiterated in Mohammad Shujat Ali\t a
\nnd
\n\tOrs. v. Union of India & Ors., [1975] 3 SCC 76. In the bri
\nef
\n\twritten\t submission  filed on behalf of the  petitioners
\nin
\n\tWrit  Petition Nos. 9522-27 of 1983 it has been pointed\t o
\nut
\n\tthat employees who had joined much later than 20th  Januar
\ny,
\n\t1966,  namely,\tthe date of the subsequent circular  of\t t
\nhe
\n\tDirector  General  of  Ordnance\t Factories  superseding\t h
\nis
\n\tearlier\t circular  dated 6th November, 1962, have  also\t g
\not
\n\tbenefit\t under the orders of this Court dated 2nd  Februar
\ny,
\n\t1981  aforesaid as also under the orders of the Madhya\tPr
\na-\n<\/p>\n
\tdesh  High Court dated 4th April, 1983 in the writ  petiti
\non
\n\tfiled  before  that Court. This circumstance  by  itself
\nis
\n\tsufficient  to\tindicate that when Civil Appeal No.  441
\nof
\n\t1981  was  heard by this Court either the  subsequent  ord
\ner
\n\tdated 28th December, 1965 as well as the circular dated 20
\nth
\n\tJanuary,  1966 and the legal consequences flowing  therefr
\nom
\n\twere not brought to the notice of the learned Judges by\t t
\nhe
\n\tlearned\t counsel  for the respondents, or the same  was\t n
\not
\n\tproperly  emphasised, the judgment dated 2nd February,\t19
\n81<\/span>
\n\tbeing  completely  silent on the point and  the\t appeal\t w
\nas
\n\tallowed only on the ground that some Supervisors having be
\nen
\n\tpromoted  as  Chargeman\t II on expiry of 2  years  of  the
\nir
\n\tservice in view of the circular dated 6th November, 1962 t
\nhe
\n\tnon-promotion of the appellants was discriminatory being
\nin
\n\tviolation of Article 16. As regards the order of the  Madh
\nya
\n\tPradesh High Court dated 4th April, 1983 .it may be  point
\ned
\n\tout  that  the said High Court in an earlier  writ  petiti
\non
\n\tbeing  Misc.  Petition No. 596 of 1978\thad  disallowed\t t
\nhe
\n\trelief\tfor  the  petitioners of that  writ  petition  bei
\nng
\n\ttreated as Chargeman II on completion of two years’  servi
\nce
\n\tas Supervisor ‘A’ by its order dated 16th April, 1979 as
\nis
\n\tapparent  from the said judgment dated 4th April,  1983\t b
\nut
\n\tthe subse-\n<\/p>\n
\t106<\/span><\/p>\n
\tquent writ petitions which seem to have been filed after t
\nhe
\n\tdecision  of  this Court dated 2nd February, 1981  in  Civ
\nil
\n\tAppeal No. 441 of 1981 were allowed in view of the aforesa
\nid
\n\tdecision of this Court.
\n\t    In this connection it is also of significance to  noti
\nce
\n\tthat  it does not seem to have been the case of\t the  appe
\nl-\n<\/p>\n
\tlants  in  Civil  Appeal No. 44 1 of 198 1  that  those\t w
\nho
\n\taccording  to  them had been promoted in  pursuance  of\t t
\nhe
\n\tcircular  dated 6th\/November, 1962 on completing two  year
\ns’
\n\tservice were junior to them. At this place it will be usef
\nul
\n\tto  refer to an affidavit dated 19th November, 1983 of\tD.
\nP.\n<\/p>\n
\tGupta, who is one of the appellants in Civil Appeal No.\t 4
\n41<\/span>
\n\tof 1981, filed in C.M.P. Nos. 9356-57 of 1983. Annexure I
\nto
\n\tthe  said  affidavit gives a break-up of the  total  diplo
\nma
\n\tholders\t recruited  in the Department due to acute  need
\nof
\n\tOrdnance  Department  following the chinese  aggression.
\nIt
\n\tindicates  that approximately 125 diploma holders  were\t r
\ne-\n<\/p>\n
\tcruited\t in 1962, 550 in 1963, 250 in 1964, 150 in 1965\t a
\nnd
\n\t100 in 1966, the total number of such recruits being appro
\nx-\n<\/p>\n
\timately\t 1175. The said Annexure further indicates that\t o
\nut
\n\tof the 1175 recruits about 625 were promoted to the post
\nof
\n\tChargeman II in 1965-66 under the 2 year policy contained
\nin
\n\tcircular dated 6th November, 1962 and that approximately 5
\n50<\/span>
\n\tdiploma\t holders  were denied promotion\t which\tresulted
\nin
\n\tdiscrimination.\t From this break-up it is apparent that\t a
\nll
\n\tthe diploma holders recruited in 1962 whereas 500 out of 5
\n50<\/span>
\n\trecruited  in  1963 were promoted on expiry of\t2  years
\nof
\n\tservice.  It appears that the remaining 50  diploma  holde
\nrs
\n\trecruited  in 1963 and those who had been recruited  in\t t
\nhe
\n\tbegning of 1964 or thereafter could not be promoted inasmu
\nch
\n\tas by the time their cases could be considered for promoti
\non
\n\tthe subsequent order dated 28th December, 1965 had come in
\nto
\n\tforce  and had also come into force the circular dated\t20
\nth
\n\tJanuary,  1966 which had superseded the circular  dated\t 6
\nth
\n\tNovember, 1962 and had provided that in future promotions
\nof
\n\tall such individuals will be effected in accordance with t
\nhe
\n\tnormal\trules and not merely on the completion of two  yea
\nrs
\n\tsatisfactory continuous service.
\n\t    It\tcannot\tbe  disputed that the  Director\t General
\nof
\n\tOrdnance  Factories  who had issued the circular  dated\t 6
\nth
\n\tNovember, 1962 had the power to issue the subsequent  circ
\nu-\n<\/p>\n
\tlar  dated  20th January, 1966 also. In view of.  the  leg
\nal
\n\tposition pointed out above the aforesaid circular could\t n
\not
\n\tbe  treated to be one affecting adversely any  condition
\nof
\n\tservice of the Supervisors ‘A’. Its only effect was that t
\nhe
\n\tchance of promotion which had been accelerated by the circ
\nu-\n<\/p>\n
\tlar dated 6th November, 1962 was deferred and made depende
\nnt
\n\ton  selection according to the Rules. Apparently, after\t t
\nhe
\n\tcoming into force of the
\n\t107<\/span>
\n\torder dated 28th December, 1965 and the circular dated\t20
\nth
\n\tJanuary,  1966 promotions could not be made just on  compl
\ne-\n<\/p>\n
\ttion  of  2 years’ satisfactory service\t under\tthe  earli
\ner
\n\tcircular  dated\t 6th  November, 1962 the  same\thaving\tbe
\nen
\n\tsuperseded by the later circular. It is further obvious th
\nat
\n\tin  this  view of the matter Supervisors ‘A’  who  had\tbe
\nen
\n\tpromoted  before  the coming into force of the\torder  dat
\ned
\n\t28th  December,\t 1965 and the circular dated  20th  Januar
\ny,
\n\t1966  stood in a class separate from those whose  promotio
\nns
\n\twere  to be made thereafter. The fact that some\t Superviso
\nrs
\n\t‘A’  had been promoted before the coming into force  of\t t
\nhe
\n\torder dated 28th December, 1965 and the circular dated\t20
\nth
\n\tJanuary, 1966 could not, therefore, constitute the basis f
\nor
\n\tan  argument that those Supervisors ‘A’ whose cases came
\nup
\n\tfor  consideration  for promotion thereafter  and  who\twe
\nre
\n\tpromoted  in  due course in accordance with the\t rules\twe
\nre
\n\tdiscriminated  against. They apparently did not fall in\t t
\nhe
\n\tsame category.\n<\/p>\n
\t    It may also be noticed that even though the\t petitione
\nrs
\n\ton  their completion of 2 years’ service as  Supervisor\t ‘
\nA’
\n\twere not promoted as Chargeman 11 in or about the year\t19
\n66<\/span>
\n\tthey  chose  to wait for about 17 years to file\t these\twr
\nit
\n\tpetitions which were filed in 1983, and nearly 2 years\tev
\nen
\n\tafter the decision dated 2nd February, 1981 in Civil  Appe
\nal
\n\tNo.  441 of 1981, which indicates that but for the  decisi
\non
\n\tin Civil Appeal No. 441 of 1981 they would perhaps not\tha
\nve
\n\teven  thought of filing these writ petitions inasmuch as
\nin
\n\tthe  meantime they had not only been promoted in the  norm
\nal
\n\tcourse\tas Chargeman 1I but some of them had  been  promot
\ned
\n\teven to higher posts in the hierarchy.
\n\t    For aught we know if the effect of the order dated\t28
\nth
\n\tDecember, 1965 and the circular dated 20th January, 1966 h
\nad
\n\tbeen  properly\temphasised at the time of hearing  of  Civ
\nil
\n\tAppeal No. 441 of 198 1 its result may have been  differen
\nt.\n<\/p>\n
\tIn this connection, reference may also be made to the  cou
\nn-\n<\/p>\n
\tter  affidavit of Sobha Ramanand, Deputy Director,  Ordnan
\nce
\n\tFactory\t Cells G. Block, Ministry of Defence, filed in\tWr
\nit
\n\tPetition  (Civil)  Nos.\t 3812-19 of 1983 with  regard  to
\n a
\n\tmatter relevant for promotion. In paragraph 2(i) it has be
\nen
\n\tstated\tthat during 1962-63 due to sudden expansion of\tOr
\nd-\n<\/p>\n
\tnance Factories Organisation in the wake of Chinese  aggre
\ns-\n<\/p>\n
\tsion a large number of posts of Chargeman 11 and other pos
\nts
\n\twere  created  and as a result thereof\tpersons\t already
\nin
\n\tservice\t as  Supervisors ‘A’ were promoted to the  posts
\nof
\n\tChargeman  II  on  completion of 2 years’  service.  It\t h
\nas
\n\tfurther\t been  stated therein that after the  newly  creat
\ned
\n\tposts were thus filled by promotion, chances of promotion
\nof
\n\tthose  who  were appointed subsequently diminished  and\t f
\nor
\n\twant of sufficient number of
\n\t108<\/span>
\n\tvacancies as Chargeman II they could not be promoted to th
\nat
\n\tpost soon after the completion of 2 years’ service.There
\nis
\n\ta further averment in the said counter affidavit that  pet
\ni-\n<\/p>\n
\ttioners\t were duly considered in their turn and their  nam
\nes
\n\twere  brought  on the approved panel. They  were  thereaft
\ner
\n\tpromoted  as  soon as vacancies became\tavailable  and\tth
\nat
\n\tduring\tthe period that they were on the approved  panel
\nno
\n\tperson junior to them or of equal seniority superseded the
\nm.\n<\/p>\n
\tNothing substantial has been brought to our notice on beha
\nlf
\n\tof  the\t petitioners  on the basis of  which  the  aforesa
\nid
\n\tstatements made in the counter affidavit may be doubted.
\n\t    In\tview of the foregoing discussion, we find it  diff
\ni-\n<\/p>\n
\tcult  to grant the reliefs prayed for in the  aforesaid’wr
\nit
\n\tpetitions simply on the basis of the judgment of this  Cou
\nrt
\n\tdated  2nd February, 1981 in Civil Appeal No. 441  of  198\n<\/p>\n
1.
\n\tThese writ petitions, therefore, deserve to be dismissed.
\n\t    Since,  however,  the judgment of this Court  dated\t 2
\nnd
\n\tFebruary, 1981 in Civil Appeal No. 441 of 1981 has not\tbe
\nen
\n\tchallenged  and\t has become final, the next  question  whi
\nch
\n\tfalls  for  consideration is as to what further\t relief,
\nif
\n\tany,  are  the appellants in Civil Appeal No. 44 1  of\t19
\n81<\/span>
\n\tentitled  in pursuance of the Civil Miscellaneous  Petitio
\nns
\n\treferred to above filed by them. The reliefs which they ha
\nve
\n\tclaimed\t have  already been indicated above. It is  now\t n
\not
\n\tdisputed  that the appellants of this appeal have in  purs
\nu-\n<\/p>\n
\tance  of  the order of this Court dated 2nd  February,\t19
\n81<\/span>
\n\tbeen given a back date promotion to the post of Chargeman
\nII
\n\tsynchronising with the dates of completion of their 2  yea
\nrs
\n\tof service as Supervisor ‘A’. The grievance of the petitio
\nn-\n<\/p>\n
\ters,  however, is that this promotion tantamounts to  impl
\ne-\n<\/p>\n
\tmentation  of  the order of this Court dated  2nd  Februar
\ny,
\n\t1981  only on paper inasmuch as they have not  been  grant
\ned
\n\tthe  difference of back wages and promotion to higher  pos
\nts
\n\ton  the basis of their back date promotion as Chargeman\t I
\nI.\n<\/p>\n
\tAs  already noticed earlier certain writ petitions filed
\nin
\n\tMadhya Pradesh High Court were allowed by that Court on\t 4
\nth
\n\tApril, 1983 relying on the judgment of this Court dated\t 2
\nnd
\n\tFebruary, 1981 in Civil Appeal No. 441 of 1981. Against\t t
\nhe
\n\taforesaid  judgment of the Madhya Pradesh High\tCourt  dat
\ned
\n\t4th April, 1983 Special Leave Petitions (Civil) Nos. 5987-\n<\/p>\n
92<\/span><\/p>\n
\tof  1986 were filed in this Court by the Union of India\t a
\nnd
\n\twere  dismissed\t on  28th July, 1986. The  findings  of\t t
\nhe
\n\tMadhya\tPradesh High Court in its judgment dated 4th  Apri
\nl,
\n\t1983 thus stand approved by this Court. In this view of\t t
\nhe
\n\tmatter\tto put them at par it would be appropriate that\t t
\nhe
\n\tappellants  in\tCivil  Appeal No. 441 of 1981  may  also
\nbe
\n\tgranted the same relief which was granted to the
\n\t109<\/span>
\n\tpetitioners in the writ petitions before the Madhya  Prade
\nsh
\n\tHigh  Court. As regards back wages the Madhya  Pradesh\tHi
\ngh
\n\tCourt held:\n<\/p>\n
\t“It is the settled service rule that there has to be no\t p
\nay
\n\tfor  no work i.e. a person will not be entitled to  any\t p
\nay
\n\tand allowance during the period for which he did not perfo
\nrm
\n\tthe duties of a higher post although after due considerati
\non
\n\the  was\t given a proper place in the gradation\tlist  havi
\nng
\n\tdeemed\tto be promoted to the higher post with\teffect\tfr
\nom
\n\tthe date his junior was promoted. So the petitioners are n
\not
\n\tentitled to claim any financial benefit retrospectively.
\nAt
\n\tthe  most  they\t would be entitled to  refixation  of  the
\nir
\n\tpresent salary on the basis of the notional seniority gran
\nt-\n<\/p>\n
\ted to them in different grades so that their present  sala
\nry
\n\tis not less than those who are immediately below them.”
\n\tIn  so\tfar  as Supervisors ‘A’\t who  claimed  promotion
\nas
\n\tChargeman  11 the following direction was accordingly  giv
\nen
\n\tby  the Madhya Pradesh High Court in its judgment dated\t 4
\nth
\n\tApril, 1983 aforesaid:–
\n\t“All  these petitioners are also entitled to be\t treated
\nas
\n\tChargeman  Grade II on completion of two years\tsatisfacto
\nry
\n\tservice\t  as   Supervisor Grade-A.   Consequently,  notion
\nal
\n\tseniority of these persons have to be refixed in  Supervis
\nor
\n\tGrade  A, Chargeman Grade-II, Grade-I and Assistant  Forem
\nan
\n\tin  cases  of those who are holding that  post\t …..\t T
\nhe
\n\tpetitioners  are also entitled to get their  present  sala
\nry
\n\tre-fixed  after giving them notional seniority so  that\t t
\nhe
\n\tsame  is  not  lower than those who  are  immediately  bel
\now
\n\tthem.”\n<\/p>\n
\t    In\tour  opinion,  therefore, the  appellants  in  Civ
\nil
\n\tAppeal No. 441 of 1981 deserve to be granted the same limi
\nt-\n<\/p>\n
\ted  relief. We are further of the opinion that it is  not
\n a
\n\tfit case for initiating any proceedings for contempt again
\nst
\n\tthe respondents.\n<\/p>\n
\t    In\tthe  result, the writ petitions fail  and  are\tdi
\ns-\n<\/p>\n
\tmissed.\t The Civil Miscellaneous Petitions in  Civil  Appe
\nal
\n\tNo.  441 of 1981 are disposed of by issuing a  direction
\nto
\n\tthe  respondents  to give the appellants in the\t said  Civ
\nil
\n\tAppeal the same benefits as were given by the Madhya Prade
\nsh
\n\tHigh Court to such of the petitioners before that Court\t w
\nho
\n\twere Supervisors ‘A’ and were granted promotion as Chargem
\nan
\n\tII  by\tits judgment dated 4th April, 1983. In\tthe  circu
\nm-\n<\/p>\n
\tstances of the case, however, there shall be no order as
\nto
\n\tcosts.\n<\/p>\n
\tR.S.S.\t\t\t\t  Petitions dismissed.\n<\/p>\n
\t110<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Paluru Ramkrishnaiah & Ors. Etc vs Union Of India & Anr on 28 March, 1989 Equivalent citations: 1990 AIR 166, 1989 SCR (2) 92 Author: N Ojha Bench: Ojha, N.D. (J) PETITIONER: PALURU RAMKRISHNAIAH & ORS. ETC. Vs. RESPONDENT: UNION OF INDIA & ANR. DATE OF JUDGMENT28\/03\/1989 BENCH: OJHA, N.D. (J) […]<\/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-19696","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPaluru Ramkrishnaiah & Ors. 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