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PETITIONER: I.C.A.R. & ANR.

       Vs.

RESPONDENT: T.K. SURYANARAYAN & ORS.

DATE OF JUDGMENT:       05/08/1997

BENCH: G. N. RAY, G. B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT: (WITH S.L.P. [C] Nos 18567 of 1995 and 19103 of 1995 Present:                 Hon’ble Mr. Justice G.N. Ray                 Hon’ble Mr. Justice G.B. Pattanaik A.K. Sikri,  V.K. Rao,  Piyush Sharma  and Ms.  Madhu Sikri, Advs. for the appellants. Sanjeev Malhotra and U.U. Lalit, Advs. for the Respondents                          O R D E R The following Order for the Court was delivered :      Leave granted.      Heard learned counsel for the parties.      Appeal arising  out of in SLP [C] No. 16873 of 1995 the order  passed   by  the   Central  Administrative  Tribunal, Hyderabad Bench on 25th November, 1993 in O.A. No. 992/91 is under challenge.  The Tribunal  by the impugned judgment has allowed the  application filed by the respondent Nos. 1 to 3 in view  of the  fact the  Indian  Council  of  Agricultural Research having  allowed large  number of  employees to  get promotion in  different units  on the  basis of  educational qualification and  the said  respondents  having  also  been given  promotion   on  the   basis  of   higher  educational qualification should  not suffer  any prejudice  by  denying such promotions  on the  ground that  the Technical  Service Rules of  Indian Council  of Agriculture  Research  enforced with effect  from 1.10.1975 do no permit such promotion. The Tribunal has  also proceed  on the  footing that if the said respondents had  reached the  grade of T-1-3 category I even on  promotion,   the  said   respondent,  having   requisite qualification  for  holding  the  post  in  Grade  T-2-3  of category 2,  was entitled  to accelerated  promotion to  the said T-2-3 grade.      It may  be indicated that in a similar case, the Indian Council  of  Agricultural  Research  and  Director,  Central Tobacoo  Research   Institute,  Rajamundry   challenged  the decision  of   the  Central   Tobacco   Research   Institute Rajamundry  challenged   the   decision   of   the   Central Administrative Tribunal,  Cuttack Bench against the judgment of the said Tribunal in favour of one Shri Khetra Mohan Das.      A three  Judge’s Bench of this Court has considered the import of  Rule 5-1 and 7-2 of the said Service Rules coming

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into  force  on  1st  October  1975.  It  has  been  clearly indicated in  the said  decision of  this Court  reported in 1994 (6)  J.T. 482  (SC) =  1994 Suppl  (3) SCC 595 that the question of  fitment in  grade T-1-3  in category  No. 1 and consequential  accelerated   promotion  to  grade  T-2-3  in category No.  2 on the basis of educational qualification of such employee on the date of enforcement of the said service Rules in  an one  time exercise. If an employee does not get fitment on  the date of enforcement of the said Rules in the grade T-1-3  of category  I,  the  question  of  accelerated promotion to  Grade T-2-3  of category  2 on  the  basis  of educational qualification can not arise. It has been clearly indicated  that  despite  higher  educational  qualification required for holding the post in Grade T-2-3, if the initial fitment has  not been  made in  Grade T-1-3 such employee is not entitled  to claim  accelerated promotion to Grade T-2-3 of category  2. Such  employee can  come to the higher grade only on  the basis  of promotion  as envisaged in Rule 7. It may however  be indicated  at this stage that later on there has  been   some  relaxation  in  the  matter  of  requisite educational qualification for holding the post in grade T-2- 3. It  has been  held in  the case  Khetra  Mohan  Das  that promotion cannot  be given  contrary  to  the  said  Service Rules. Precisely  for the  said reason,  the decision of the Central Administrative  Tribunal, Cuttack  Bench  in  Khetra Mohan’s case was set aside.      Mr.  De,   the  learned   counsel  appearing   for  the respondent in  SLP [C]  No.  16873  of  1995  has,  however, submitted that  the decision rendered in Khetra Mohan’s case should not  be taken  into consideration  for  deciding  the correctness of the impugned judgment of the Tribunal. In the case of  Khetra Mohan  the claim  of promotion  of a  direct recruit was  involved and  the claim  of  promotion  of  in- service employees  in view of long experience over the years did not  come up for consideration in the said case. Mr. De, has also submitted that the respondents in this case were in the pay  scale of  Rs. 425-700  before  1st  January,  1977. Therefore  their   cases  were  required  to  be  considered differently. Mr.  De has  also submitted  that in any event, hostile discrimination  has been  made to  these respondent. Large number  of employees  similarly circumstanced have got promotion but  the institute  for inexplicable reasons chose not to  challenge such  order for promotion even though such promotion directed  to be  given were  contrary to  the said Service Rules.  Such discriminatory stand has resulted in an unfortunate situation  where number  of  employees  who  are similar circumstanced  ar holding  superior post. But in the case of  these respondent,  the institute appears to be keen in enforcing  the Service Rules by ignoring the fat that the respondent has  qualification to  hold superior  grades when the said  Service Rules  were introduced.  Mr. De has lastly contended that out of the three respondent, two have already attained the  age of  superannuation and  only  one  of  the respondents is still in service but is the impugned judgment of the tribunal is interfered is still in service but if the impugned judgment  of the  tribunal is  interfered with  the said respondent  will suffer  serious prejudice.  Mr. De has submitted   that in  the special  facts of  this case,  this Court should  not inclined  to interfere  in exercise of its discretionary power under Article 136 of the Constitution.      Mr.  Lalit,  the  learned  counsel  appearing  for  the respondent in  SLP [C]  No. 19103 of 1995 has also supported Mr. De  bay contending that the management of Indian Council of Agricultural Research and its constituent units intend to take different stands resulting in hostile discrimination to

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a large number of employees. He has also drawn our attention to two  letters issued by the Indian Council of Agricultural Research dated 27th January, 1979 and 28th January, 1980 Mr. Lalit has submitted that the said two letters indicates that the Indian Council of Agricultural Research was alive to the unfortunate situation  created by  the introduction  of  the said Service  Rule and  unmerited hardship  meted out  to  a number of  employees. It  therefore, directed  the concerned units  not   to  implement  the  said  Rules  until  various representations received  by the  institute were considered. Mr. Lalit  has submitted  that the  respondent in these SLPs has requisite  qualification to get promotion because of the relaxation of  the educational qualification and all of them had long  experience in  service. He has therefore submitted that if  the promotion  claimed by them since allowed by the Central Administrative  Tribunal is  interfered with at this stage such  decision is  bound to bring complete frustration to these  respondents. In the facts and circumstances of the case, this  Court should  refrain from  interfering with the impugned decision of the Tribunal of ends of justice.      We are, however unable to accept the submission made by the learned counsel appearing in both these SLPs. Even if in some cases  erroneous promotions  had been given contrary to the said  Service Rules and consequently such employees have been allowed  to enjoy  the fruits of improper promotion, an employee can  not base  him claim  for promotion contrary to the  statutory   Service  Rules  in  law  courts.  Incorrect promotion either  given erroneously  by  the  department  by misreading the  said Service  Rules or  such promotion given pursuant to  judicial order contrary to Service Rules cannot be a  ground to  claim erroneous  promotion by  perpetrating infringement of  statutory Service Rules. In a court of law, employee cannot  be permitted  to contend  that the  Service Rules made  effective on  1st October,  1975 should  not  be adhered to  because in  some case  erroneous promotions  had been given.  The statutory  Service Rules  must  be  applied strictly  in   terms  of  the  interpretation  of  Rules  as indicated in  the decision  of Three  Judges Bench  of  this Court in  Khetra Mohan’s  case. When  the said Service Rules were introduced  w.e.f. 1st October, 1975, one time exercise was required  to be  made  to  decide  the  fitment  of  the employment in different grades. Except in case of fitment in grade T-1-3  of Category  1  and  consequential  accelerated promotion to  grade T-2-3  of Category  2, on  the basis  of education in  no other  case accelerated  promotion  on  the basis  of   educational  qualification  is  permissible.  If relaxation of educational qualification is made effective on the date  of enforcement of the said service Rule it will be a case  of review  of initial  fitment. In  all other  cases promotion is to be given in accordance with the said Service Rules and  not otherwise.  The respondents  in these appeals were not  entitled to get initial fitment in grade T-1-3. As a matter  of fact,  they got  initial fitment in grade lower than Grade  T-1-3 of  Category 1.  Therefore, they  are  not entitled  to   accelerated  promotion   on  the   basis   of educational  qualification   consequent  upon   the  initial fitment in Grade T-1-3 of Category 1. The impugned decisions of the Tribunal therefore cannot be sustained.      It may  however  be  indicated  that  the  question  of unmerited hardship  if any  and need  for amendment  of  the Rules to  remove such hardship are matters for consideration of the Rule making authority. It is reasonably expected that the concerned  authority  will  be  sensitive  to  unmerited hardship to  large number of its employees, if occasioned by introduction of  Service Rules  so that appropriate remedial

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measures may  be taken.  Since the  impugned  order  of  the Tribunal cannot  be sustained in law, the impugned judgments in both the appeals are set aside.         SPECIAL LEAVE PETITION [C] NO. 18567 OF 1995      No one  has appeared  for the respondent in SLP [C] No. 18567 of  1995. The  respondent has informed the Registry of this Court  that the  is not  in a position to appear at the hearing of  the matter.  Since the impugned decision in this special leave  petition  cannot  be  sustained  for  reasons indicated in the other two matters, the impugned judgment in this S.L.P.  is also  set aside.  The appeals and the S.L.P. are accordingly disposed of without any order as to cost.