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PETITIONER: MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY.

       Vs.

RESPONDENT: A. GEETHA & ORS.

DATE OF JUDGMENT:       12/09/1997

BENCH: S.C. AGRAWAL, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                             WITH           CIVIL APPEALS NOS 6263 & 6264   OF 1997        (@ S.L.P (c) Nos. 10744 of 1995 & 510 of 1996                       J U D G M E N T S.C. AGRAWAL, J. :-      pecial leave granted.      hese appeals  are directed  against December 20,1994 in Writ Appeals  Nos.349/1994, 351/1994, 357/1994 and 362/1994. Writ Appeals  Nos. 349/1994, 350/1994, 351/1994 and 357/1994 were filed  by Marine Products Exports Development Authority (hereinafter referred  to as  ’MPEDA’) against the judgement of the  learned Single  judgement of  the high  Court  dated February 18,  1994 in  O.P.No.2058/91, 9205/90,  7539/90 and 321/91.   Writ Appeals  No.362/94 was  filed by  respondents nos. 3,4 and 5 in O.P. No.7539/90.  O.P.No.2058/91 was filed by K.Sasidharan  Nair and  V.I.George, O.P.9205/90 was filed by K.J.Authony, O.P.No.7539/90 was filed by A. Geetha and  O.P.No.   321/91  was   filed  by  K.S.Sreedevi.    The petitioners in  the said  petitions, who  are respondent  in these appeals  , shall  hereinafter be  referred to  as ’the petitioners’.      PEDA is  an authority  established under the provisions of the  Marine Products  Export Development  Authority  Act, 1972.   Section 7(4)  of the  said empowers MPEDA to appoint officers and  employees as  may be  necessary for  efficient performance of  its function  and pay them such salaries and allowances as it may determine from time to time, subject to rules prescribed  by the  Central Government.   The  Central Government  has  not  prescribed  any  rules  governing  the service conditions,  MPEDA issued  Standing Instruction  for that purpose which came into force with effect from December 15, 1979.  By clause 9 of the Standing Instruction read with Schedule I  the employee  have  been  classified  into  four categories in the following manner:-      1.GROUP A  [Class  I]  consists  of      Joint Director,  Project  Director,      Deputy   Director   and   Assistant      Director.   [Pre-revised pay scales      of Rs. 700-1300 to Rs.1500-1800].      2. GROUP  B [Class  II] consists of

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    Accounts   Officer    and   Quality      Supervisors[Pre-revised  scale   of      Rs. 550-990].      3. GROUP  C [Class  I] consists  of      Accounts, Assistants,  Senior Clerk      and Junior Clerk[Pre-revised scales      of Rs.260-400 to 420-700].      4. GROUP  D [Class  I] consists  of      Watchmen, peons,  etc. [Pre-revised      scale of Rs. 196-232].      Clause  10  of  the  standing  Instruction,  under  the caption ’channels of promotion’, provides as under:-      1.  The   following  shall  be  the      channel of promotions:      Channel I. Administration.      Channel   II.   Regional   Offices,      Marketing   Service,   development,      Economics,      publicity       and      Statistics.      Channel  III.   Quality  control  &      Inspection      Channel IV. Frozen Storage.      Channel V. Shrimp farming.      The posts  under each  channel  are      given in schedule II.      2.    For     the    purpose     of      Implementation of these channels of      promotion,  option   of  individual      employees   concerned    shall   be      obtained.      3. employees  presently working  in      the posts  in the  scale of  pay of      Rs.  425-700   shall  excise  their      option of  various channels  within      60  days  of  completion  of  their      probation in  the post.   Employees      not so  option shall  be placed  in      such channel  as may be directed by      the executive Committee.      4. Options  once exercised shall be      final."      The  petitioners   were  all   appointed   as   quality Supervisors  by  direct  recruitment.    K.S.  Sreedevi  was appointed on  July 28,  1978 and  the rest were appointed in 1981-82, i.e.,  after the  coming into force of the Standing Instructions  on   December  15,1979.     The  post  quality Supervisors falls  in Channel III.  In Channel III there are 2 posts  of Assistants  Directors, while  the number of such posts are  three in  Channel I,  seventeen in Channel II and twelve  in   Channel  V.     The   petitioners  submitted  a representations wherein  they sought  to exercise the option regarding change of Channel III to other channels.  The said representation  of  the  petitioners  was  referred  to  the Executive Committee  of MPEDA.   The Executive Committee, in it meeting held on August 13, 1989, decided as follows:      "The    committee     noted     the      implications of  the interpretation      of  Standing   Instruction   clause      10(2)   and    (3)   of    Standing      Instructions that  the facility  to      opt for  a particular  channel will      be  available   only  to  employees      working in posts below the grade of      Rs.  1640-2900  and  that  too  for      promotion to the grade of Rs. 1640-

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    2900.   For this  purpose employees      working in next below feeder grades      identified for  promotion as feeder      category in  the recruitment  rules      shall  exercise   their  option  of      channel   within    60   days    of      completion of  their  probation  in      the post.   The provision of option      therefore  will   be  available  to      employees  appointed   or  promoted      into the  grade  of  Rs.  1640-2900      revised."      Feeling aggrieved by the said decision of the Executive Committee the  petitioners which  have given  rise to  these appeals.   The said  writ petitions  were heard  by  learned dingle judge  of the  High Court.   By  his judgement  dated February 18, 1994, the learned single Judge (G.H. Guttal J.) allowed the  said petitions and held that the channel system of promotion  laid down  in  the  Standing  Instruction  was violative of  the right to equality guaranteed under Article 14  of   the  Constitution   of  India   inasmuch   as   the channelisation of  promotion under  the standing Instruction confines the petitioners to channel 111 where there are only two posts of Assistants Directors in other channels are more and as  a result officers in those channels have accelerated promotions even  if are  junior to  the petitioners and have lesser experience.   The  learned single  Judge further held that the petitioners were wrongly denied he option to choose the channel  on the view that such option was available only to employees  falling under  sub-clause (3)  of clause 10 of the Standing  Instructions.  The learned Single Judge was of the view  that sub-clause  (2) of  clause 10  applies to all employees who have a desire to exercise the option to choose a  channel   of  promotion   and  sub-clause(3)   cannot  be interpreted to  mean that  the application  of  the  general provision of  sub-clause (2)  is executed.    Appeals  filed against the  said judgement  of the  learned single judge by MPEDA as  well as  by respondents Nos. 3,4 and 5 in O.P. No. 7539/90 have  been dismissed  by the  Division Bench  of the High Court  by the impugned judgment.  The learned Judges on the Division  Bench have construed the Standing Instructions to mean  that under sub-clause(2) of clause 10 the employees who are already in any of the channels have a legal right to exercise their  option to  be considered  in the  matter  of promotion to  the post  of Assistant Director in a different channel and  that sub-clause  (3) of clause 10 employees who are outside  the channels and are required to exercise their option within a specified time, in the absence of which they are to  be dealt  with by  the  Executive  Committee.    The learned Judges  have, however,  held to  be  discriminatory. Feeling aggrieved by the said decision of the Division Bench of the Court the appellants have filed these appeals.      Dr. Rajiv  Dhavan, the learned senior counsel appearing for MPEDA,  has urged  that the  High Court  was in error in construing sub-clauses  (2) and  (3) of  clause  10  of  the Standing  instructions.    The  submission  of  the  learned counsel is  that the  channels  of  promotion  are  only  in respect of different posts falling in Groups A and B and the right to  exercise the option for the channel has been given to employees  falling in  Group C  who would  be promoted to Group B  and for  the purpose  of such  promotion they could exercise their  option for the channel in which they want to be considered  for promotion to a group b post.  It has been urged that  sub-clauses(2) and  (3) of  clause 10 have to be read together  and if,  so read,  the said clauses mean that

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the right  o option  is available only to employees referred to in  sub-clause (3)  and there  is no independent right of option given  to   employees other than those referred to in sub-clause (3).  Shri M.J.  Vellapally, the  learned  senior counsel appearing  for the  petitioners, has,  on the  other hand, urged that the High Court has rightly constructed sub- clauses (2) and (3) of clause 10 of the standing Instruction to mean  that under  sub-clause (2) a general right has been conferred on  all employees  while under  sub-clause  (3)  a special provision  is made with regard to employees who were working on the posts in the pay scale of Rs. 425-700.      On a  careful consideration  of the submission urged by the learned  counsel  we  find  considerable  merit  in  the submission of  Dr. Dhavan.   In  our opinion, sub-clause (2) and (3)  of clause 10 of the Standing Instructions cannot be read  disjunctively   as  dealing  with  different  sets  of employees, while  sub-clause(3) deals  with certain specific categories of  employees mentioned therein.  Sub-clauses (1) to (4)  of clause 10 have to be read as part of a scheme and if, they  are thus  read, it  would be  evident that in sub- clause(1) the five channel of promotion have been enumerated and reference  is made  to Schedule  11 which enumerates the posts under  each channel.   In  sub-clause(2) provision  is made for obtaining option of individual employees considered for the  purpose of implementation of channels of promotion. Sub-clause(3) prescribes  the  conditions  for  exercise  of option by  the employees  who have  been conferred  the said right.   It lays down that the said option will be available only to  employees regularly working in the pay scale of Rs. 425-500 and  such employees  should exercise their option to various channels  within 60  days  of  completion  of  their probation in  the post  and that the employees not so option shall be  placed in  such channels  as may be decided by the Executive Committee.   In  sub-clause (4)  it is  prescribed that the  option once  exercised shall  be final.   If it is held that  in sub-clause  (2) a  general right of option has been conferred on all the employees irrespective of the post held by  them, sub-clause(3) would be rendered otiose.  Such a construction would defeat the object underlying sub-clause (3) which  in specific  terms indicates  that the  right  to exercise the option is available only if the conditions laid down in  the said  sub-clause are fulfilled.  In view of the language used  in sub-clause (3) an employee falling in that sub-clause can  exercise the  option only in accordance with the requirements of that sub-clause.  He cannot fall back on sub-clause (2).   It is also not possible to hold that while sub-clause(3) deals  with the category of employees referred to in  that sub-clause,  the rest of the employees are dealt with in sub-clause(2).  there is no reason why the employees referred to  in sub-clause(3)  should be treated differently from the  rest of the employees in the matter of exercise of the right of option.  We are, therefor, unable to agree with the view  of the  Division bench if the High Court that sub- clause(2) of  clause of  the Standing Instructions confers a general right  of option  to  all  the  employees  and  sub- clause(3)  confers  such  right  to  certain  categories  of employees only.   Having  regard to  the scheme of clause 10 which deals  with promotion  from Group C to Group B and the fact that  ’Channels of  Promotion’  only  relate  to  posts falling in Group A and B,  it must be held that the right of option that  has been conferred under clause 10 is available only at  the stage  of promotion  from Group  C to a post in Group  B.    On  that  view  it  cannot  be  said  that  the petitioners who  were holding a post in Group B, having been directly appointed  on the  post of Quality Supervisors, can

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exercise the  right of  option after  they have already been appointed on a post in a particular channel.      Shri Vallapally  has pointed  out that  while the order dated July 26, 2978 relating to appointment of K.S. Sreedevi contains a specific clause to the effect that her channel of promotion shall  be "Channel  III  to  Quality  Control  and Inspection", there  is no  such condition  in the  orders of appointment of K.Sadasivan Nair and V.I.George.  It has been pointed out  that though  his appointment was on the post of Quality Supervisor, K. Sadasivan Nair was working in the Sub Regional Office,  Goa and  thereafter in  the  Research  and Product Development  Section,  he  has  transferred  to  the Appraisal and  Investment Section, which does not come under any of  the channels  of promotion.   it is, further, stated that V.I.  George was  also not posted as quality Supervisor at any  time but  was posted  to the  Sub Regional Office at Mangalore for  three years and thereafter he was transferred and posted to the Head Office at Cochin in the Economics and Marketing Service  and he  was transferred and posted to the Appraisal and  Investment Section  which does not come under any of  the existing channels of promotion and after service in the  said section  for seven years, he was transferred to the Research  and product  Development Section  which  comes under Channel  11 of promotion.  It is no doubt true that in the case  of K.S.  Sreedevi there is specific mention in the order of  appointment that her channel of promotion shall be "Channel 111  to quality  Control and  Inspection  "  and  a similar provision  is not found in the orders of appointment of both  K. Sadasivan  Nair and  V.I. George, but in view of the fact  that the  appointment of both of these petitioners was made  on the  post of  quality Supervisor which falls in Channel 111  under schedule  11 referred to in sub-clause(1) of clause  10 of  the Standing  Instruction, It must be held that the  appointment of  both these petitioners was made in channel 111.   The  fact that  after their  appointment both these petitioners  worked on posts falling in other channels would not,  by itself,  mean that there has been a change in their channel  for the  purpose  of  promotion.    There  is nothing in he Standing Instruction which may lend support to the view  that if  a person  is posted on a posted on a post which falls in another channel, there is an automatic change in the  channel of  promotion.   On the  other hand, we find that MPEDA  in its  meeting held  on June 27, 1985 has taken the following decision:-      "Mobility within the Channel      1. Chairman  may transfer  officers      within    channels     periodically      whenever  found  necessary  in  the      interests   of    efficiency    and      exigencies of work      2. Chairman  may transfer  officers      outside  the  channels  on  working      arrangement  in   the  interest  of      efficiency   and    exigencies   of      works."      This would  show that  the Chairman  of MPEDA  has been empowered to  transfer the  officers within  channels in the interest of efficiency and exigencies of work.  Such posting and  transfer  would  not  result  in  automatic  change  of channels for the purpose of promotion.      Shri S. Balakrishnan, the learned counsel appearing for A. Geetha  has submitted  that clause  10  of  the  Standing Instructions is  violate of the right to equality guaranteed under Article 14 of the Constitution as found by the learned single Judge.   It  is submitted  that there  is no relation

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basis for  denying the  right of  option to personas who are directly recruited  to a post falling in Group B though such a right  is available  to a  person  promoted  from  a  post falling in Group C to a post falling in Group B.  We find no merit in  this contention.   A person who is promoted from a post in  Group C  to a  post in  Group B  has been given the right to  exercise the  option  to  choose  the  channel  of promotion for the reason that channels of promotion that are available in  respect of  posts in  Group B and Group A only and since  as person  holding a  post  in  group  C  can  be promoted to a post falling in Group B, he has been given the right to  choose  a  channel  for  promotion  before  he  is promoted to  Group B.   no  right to  choose  a  channel  is available after  his promotion  to a  person  who  has  been promoted to a Group B.  There is thus no distinction between a person  who is directly recruited to a post in Group B and a person  who is promoted to a post in Group b in the matter of exercise  of option  after their  appointment to Group b. When a  person in  directly appointed  on a  post falling in Group B  in one  of the  channels he  exercise his option by applying  for   that  particular   channel   of   promotion. Similarly  person holding a Group C post is given the option to choose the channel of promotion at the stage of promotion to Group  B.   It cannot,  therefore  ,  be  said  that  the conferment of right to exercise the option in respect of the channel  of  promotion  under  clause  10  of  the  Standing Instructions suffers  from the  vice of discrimination.  The contention urged by the Shri Balakrishnan cannot, therefore, be accepted.      For the reasons aforementioned, we are unable to uphold the impugned  judgement of  the Division  Bench of  the High Court.   The appeals  are, therefore,  allowed, the impugned judgment of  the Division  Bench of  the  high  Court  dated December 20,1994  in W.A. Nos. 349/1994, 350/1994, 351/1994/ 357/1994 and 362/1994 as well as the judgment of the learned single judge dated February 18,1994 in O.P.Nos. 7539/1990-Y, 9209/1990-U, O.P.  Nos. 321/1991-L  and 2058/1991-T  are set aside and the said writ petitions are dismissed. No order as to costs.