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PETITIONER: PALURU RAMKRISHNAIAH & ORS. ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT28/03/1989

BENCH: OJHA, N.D. (J) BENCH: OJHA, N.D. (J) PATHAK, R.S. (CJ) SHARMA, L.M. (J)

CITATION:  1990 AIR  166            1989 SCR  (2)  92  1989 SCC  (2) 541        JT 1989 (1)   595  1989 SCALE  (1)830

ACT:             Administrative   Law:  Executive   instructions---cann ot         override any provision of the Statutory Rules.             Civil  Services: Indian Ordnance Factories  (Recruitme nt         and  Conditions  of Service of Class III  Personnel)  Rule s,         1956:   Rules   8,  12  and  circular  dated   November 6,         1962--Supervisors  Grade  ’A’promotion to  Chargeman  II on         completion of two years satisfactory service--Whether  the re         is discrimination and any condition of service of Supervis or         ’A’ affected.

HEADNOTE:             The petitioners in the writ petitions were appointed as         Supervisors Grade ’A’ in various ordnance factories  betwe en         1962 and 1966, in pursuance of circular dated 6th  Novembe r,         1962  issued by the Director General of Ordnance  Factorie s.         The circular further provided for promotion from  Supervis or         ’A’ to Chargeman I1, on completion of two years’ satisfact o-         ry service.             75  Supervisors Grade ’A’ had moved a writ  petition in         the  Allahabad High Court in 1972. Their grievance was  th at         even  though quite a large number of Supervisors  Grade  ’ A’         had  been  promoted  to the post of Chargeman  Grade  II on

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       completion of two years’ satisfactory work, in pursuance of         the  circular dated 6th November, 1962, they had  been  di s-         criminated against and had not been so promoted  immediate ly         on the expiry of two years’ service.             The  writ petition was contested on the ground that  t he         promotion  from  Supervisor Grade ’A’ to Chargeman  II  we re         governed  by the Indian Ordnance Factories (Recruitment  a nd         Conditions  of Service of Grade III Personnel)  Rules,  19 56         and  such promotions could be made only in  accordance  wi th         the procedure prescribed by Rule 8 of these Rules.             The learned Single Judge dismissed the writ petition on         the ground of unexplained laches. The Division Bench did n ot         find  any substance in the submission made on behalf of  t he         petitioners and dis-         93         missed  their  special  appeal. According  to  the  Divisi on         Bench,  it was difficult to read in the circular that  aft er         two  years of satisfactory service there would be  automat ic         promotion from Supervisor Grade ’A’ to Chargeman II as  su ch         a  view would militate against Rule 12 of the  Rules,  whi ch         provided that no appointment shall be made otherwise than as         specified in the Rules. It was further held by the  Divisi on         Bench that even assuming that some Supervisors Grade ’A’ h ad         been  automatically  promoted on completion  of  two  year s’         service,  without the recommendation after screening by  t he         Promotion  Committee, as provided in Rule 8, no right  wou ld         accrue  in favour of the appellants inasmuch as such  prom o-         tions would be in the teeth of Rule 12.             Against the judgment of the Division Bench, Civil Appe al         No. 441 of 1981 (Virendra Kumar and Others v. Union of Ind ia         and Others, [1981] 3 SCC 30) was preferred and this Court by         its  order dated 2.2.1981 directed that the cases of the 75         appellants in Civil Appeal No. 441 of 1981 be considered f or         promotion  as  Chargeman Grade II and they  be  so  promot ed         unless found to be unfit.             Another  group  of  125 Supervisors Grade  ’A’  got  t

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he         benefit  of the Circular dated 6.11.1962 in pursuance of an         order  passed by the Madhya Pradesh High Court on 4th  Apr il         1983  on  the basis of the judgment of this Court  in  Civ il         Appeal No. 441 of 1981. Special Leave Petitions against  t he         judgment of the Madhya Pradesh High Court were dismissed by         this Court.             The petitioners in the present writ petitions pray  th at         the  same relief may be granted to them as had been  grant ed         in Civil Appeal No. 441 of 1981.             In the Civil Miscellaneous petitions now filed in  Civ il         Appeal  No.  441 of 1981, the petitioners,  apart  from  t he         prayer  for initiating proceedings for contempt against  t he         respondents  for  disobedience of the order  of  this  Cou rt         dated-2.2.1981,  have  prayed for orders directing  the  r e-         spondents  to implement in true letter and spirit  the  sa id         order  and  to promote the petitioners to  the  next  high er         posts  after  giving them the benefit of the  directions of         that  order. Their grievance is that their promotion  tant a-         mounts  to implementation of the order of this  Court  dat ed         2.2.1981 only on paper inasmuch as they have not been gran t-         ed  the  difference of back wages and  promotion  to  high er         posts on the basis of their back-date promotion as Chargem an         II.         Before  this  Court it has been urged on behalf of  the  r e-         spondents         94         that  (i) promotions of employees including  Supervisor  ’ A’         were  governed  by the Rules and in view of Rule 12  no  a p-         pointment could be made otherwise than as specified therei n;         (ii) appointments by promotion were to be made according to         Rule 8 on the basis of selection list prepared in the mann er         provided  there  in  and there was no  scope  for  automat ic         promotion  merely  after  expiry of 2  years  of  continuo us         service  on  the basis of the circular dated  6th  Novembe r,         1962;  (iii)  the  circular which was in the  nature  of

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an         executive instruction prescribed 2 years’ service as  Supe r-         visor ’A’ to make them only eligible for promotion; and (i v)         after the issue of the subsequent order dated 28th Decembe r,         1965  and  circular dated 20th January, 1966  no  Supervis or         could claim to have become eligible for promotion merely on         completion  of 2 years’ satisfactory service and his  prom o-         tion  thereafter could be effected only in  accordance  wi th         the normal Rules.             Dismissing  the  writ  petitions and  disposing  of  t he         miscellaneous petitions, it was,             HELD:  (1) An executive instruction could make a  prov i-         sion  only with regard to a matter which was not covered by         the Rules and such executive instruction could not  overri de         any provision of the Rule. [103E]             B.N.  Nagarajan  v. State of Mysore, [1966] 3  SCR  68 2;         Sant  Ram  Sharma v. State of Rajasthan, [1968] 1  SCR  11 1;         Ramchandra  Shenkar  Deoghar v. The  State  of  Maharashtr a,         [1974] 1 SCC 317; Union of India v. Somasundaram  Viswanat h,         [1988] 3 SC. Judgments Today 724, referred to.             (2) Notwithstanding the issue of instructions dated  6 th         November,  1962 the procedure for making promotion  as  la id         down in Rule 8 of the Rules had to be followed, and the sa id         procedure  could not be abrogated by the executive  instru c-         tions dated 6th November 1962. [103F]             (3)  The only effect of the circular dated 6th  Novemb er         1962  was  that Supervisors ’A’ on completion  of  2  year s’         satisfactory  service  could be promoted  by  following  t he         procedure  contemplated by Rule 8. This circular had  inde ed         the  effect  of accelerating the chance  of  promotion.  T he         right  to promotion on the other hand was to be governed by         the Rules. This right of promotion as provided by the  Rul es         was neither affected nor could be affected by the  circula r.         [103F-G]         95             (4) After the coming into force of the order dated  28 th         December,  1965  and the circular dated 20th  January,  19

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66         promotions could not be made just on completion of 2  year s’         satisfactory  service under the earlier circular  dated  6 th         November, 1962, the same having been superseded by the lat er         circular. [106H; 107A-B]             (5)  Circular  dated  20th January, 1966  could  not be         treated  to  be  one affecting adversely  any  condition of         service  of  Supervisors ’A’. Its only effect was  that  t he         chance of promotion which had been accelerated by the circ u-         lar dated 6th November, 1962 was deferred and made depende nt         on  selection according to the Rules. Though a right  to be         considered  for promotion was a condition of  service,  me re         chances of promotion were not. [106G-H]             Ramchandra Shankar Deodhar v. The State of  Maharashtr a,         (supra)  and Mohammad Shujat Ali & Ors. v. Union of India

JUDGMENT:         Ors., [1975] 3 SCC 76, referred to.             (6)  Supervisors  ’A’ who had been promoted  before  t he         coming into force of the order dated 28th December, 1965 a nd         the  circular  dated  20th January, 1966 stood  in  a  cla ss         separate from those whose promotions were to be made  ther e-         after. The fact that some Supervisors ’A’ had been  promot ed         before  the coming into force of the order dated 20th  Jan u-         ary, 1966 could not, therefore, constitute the basis for an         argument that those Supervisors ’A’ whose cases came up  f or         consideration thereafter and who were promoted in due cour se         in  accordance with the Rules, were  discriminated  agains t.         [107B-C]             (7)  There were sufficient indications that  when  Civ il         Appeal  No. 441 of 1981 was heard by this Court  either  t he         subsequent  order dated 28th December, 1965 as well  as  t he         circular dated 20th January, 1966 and the legal consequenc es         flowing  therefrom  were not brought to the  notice  of  t he         learned  Judges by the learned counsel for the  respondent s,         or the same was not properly emphasized. [105E-F]

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           (8) The findings of the Madhya Pradesh High Court in i ts         judgment  dated 4th April stood approved by this Court  wh en         the Court dismissed the special leave petition against  th at         judgment.  The  appellants in Civil Appeal No. 441  of  19 81         therefore deserved to be granted the same benefit as regar ds         back wages and further promotion as were given by the Madh ya         Pradesh  High Court to such of the petitioners  before  th at         Court who were Supervisors ’A’ and were granted promotion as         Chargeman  I1 by its judgment dated 4th April, 1983.  [108 H;         109D]         96             (9) This was not a fit case for initiating any  procee d-         ings for contempt against the respondents. [109F] &             ORIGINAL JURISDICTION: Writ Petition (Civil) No. 530 of         1983 etc.         (Under Article 32 of the Constitution of India).             V.A. Bobde, Shyam Mudaliar, V.M. Tarkunde, G.L.  Sangh i,         A.K. Sanghi, Mrs. R. Karanjawala, Mrs. Meenakshi Karanjawa la         N.M. Popli and V.J. Francis for the Petitioners.             Ms. A. Subhashini, D.N. Dwivedi, Girish Chandra,  C.V. S.         Rao, M.C. Dhingra and N.K. Sharma for the Respondents.         The Judgment of the Court was delivered by             OJHA,  J.  The petitioners in  the  aforementioned  wr it         petitions claim to have been appointed as Supervisors  Gra de         ’A’  in various ordnance factories between 1962 to 1966  a nd         have  filed  these writ petitions with the prayer  that  t he         same  relief may be granted to them also as was  granted by         this Court to 75 appellants in Civil Appeal No. 441 of  19 81         vide  its  order dated 2nd February, 1981. The  three  civ il         miscellaneous petitions referred to above on the other  ha nd         have been made by the appellants of Civil Appeal No. 441 of         1981 asserting that the direction given by this Court on 2 nd         February,  1981 has not been complied with in the manner as         it ought to have been by the respondents and they should be         consequently required to comply with the said direction. T he         exact  nature  of  the prayer made  in  these  miscellaneo us

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       applications  shall  be  indicated after  referring  to  t he         relief granted on 2nd February, 1981 in Civil Appeal No. 4 41         of 1981.             The 75 appellants of Civil Appeal No. 441 of 1981  fil ed         a writ petition in the Allahabad High Court in 1972  asser t-         ing that they had been appointed as Supervisors Grade ’A’ on         various dates in pursuance of a circular dated 6th Novembe r,         1962  issued by the Director General of Ordnance  Factorie s,         the relevant portion whereof reads as hereunder:-         "Subject: NON-INDUSTRIAL     ESTABLISHMENT PROMOTION         D.G.O.F. has decided that Diploma holders serving as         97         Supervisor  ’A’ (Tech)/Supervisor ’B’/(Tech) and in  equiv a-         lent grades should be treated as follows         (i)  All  those Diploma holders who have been  appointed as         Supervisor  ’B’ (Tech) (and in equivalent grades) should on         completion  of one year’s satisfactory service  in  ordnan ce         factories be promoted to Supervisor ’A’ (Tech) and in equi v-         alent grades.)         (ii)  All those Diploma holders who work  satisfactorily as         Supervisor ’A’ (Tech) or in equivalent grades for 2 years in         Ordnance Factory should be promoted to Chargeman.         Kindly acknowledge receipt.         Sd/-K.G. Bijlani                                        ADGOF/Est. for D.G.O.F.             Their  grievance  in  the writ petition  was  that  ev en         though  quite  a large number of Supervisors Grade  ’A’  h ad         been  promoted to the post of Chargeman grade II on  compl e-         tion of two years’ satisfactory work they had been discrim i-         nated  against and had not been so promoted  immediately on         the  expiry  of  two years’ in pursuance  of  the  aforesa id         circular even though their work was satisfactory. The reli ef         prayed for in the said writ petition was for the issue of  a         writ  of mandamus directing the Union of India  through  t he         Director General of Ordnance Factories to promote the appe l-         lants  to  the post of Chargeman II. The writ  petition  w as         contested  by  the  respondents thereto inter  alia  on  t he         ground that under the rules of promotion from Supervisor ’ A’

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       to  Chargeman II first Departmental Promotion Commit.tee at         the  factory level and then a Departmental Committee at  t he         Central  level  screens the service record of  each  of  t he         Supervisors  ’A’ who comes within the range  of  eligibili ty         and then finally the Director General of Ordnance  Factori es         draws  up  a list and sanctions promotions. It  was  furth er         asserted that in accordance with the said rule the cases of         all the appellants were screened by the Promotion  Committ ee         at the factory level and then at the Central level and  th ey         not having been found fit were not promoted. It appears th at         the  criterion  of  promotion  is  seniority-cum-merit.  T he         learned Single Judge, however, did not go into the merits of         the  controversy  and  dismissed the writ  petition  on  t he         ground  of unexplained laches and also on the ground that  a         previous  petition for similar relief had not been  presse d.         Against the         98         judgment  of  the learned Single Judge the  appellants  pr e-         ferred  a  special appeal before a Division  Bench  of  th at         Court. The learned Judges who decided the special appeal d id         not  consider it appropriate to uphold the dismissal of  t he         writ  petition  on the technical ground which  found  favo ur         with the learned Single Judge and they went into the  meri ts         of the respective contentions of the parties. They, howeve r,         did not find any substance in the submission made on  beha lf         of  the  appellants and accordingly  dismissed  the  speci al         appeal on 8th February, 1977. The learned Judges pointed o ut         that it was admitted that the conditions of service applic a-         ble  to  the  case of the appellants were  governed  by  t he         Indian  Ordnance  Factories (Recruitment and  Conditions of         Service  of  Class III Personnel) Rules,  1956  (hereinaft er         referred  to as the Rules) framed by the President of  Ind ia         under Article 309 of the Constitution. It was further poin t-         ed out that Rule 8 contemplated that appointments by  prom

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o-         tion  were to be made on the basis of a selection list  pr e-         pared  for the different grades by duly constituted  Depar t-         mental  Promotion  Committees  laid down in  the  said  ru le         whereas Rule 12 provided that no appointment to the posts to         which  these  rules apply shall be made  otherwise  than as         specified  therein.  With regard to the circular  dated  6 th         November, 1962 the learned Judges took the view that it  w as         difficult to read in that circular any intention or delibe r-         ation on the part of the Director General of Ordnance Fact o-         ries  that as soon as two years were completed by a  diplo ma         holder  in  the Grade of Supervisor ’A’ there  would  be an         automatic  promotion to the post of Chargeman Il.  Accordi ng         to  the  learned Judges such a view would  militate  again st         Rule  12 of the Rules mentioned above. It was  further  he ld         that even if it was to be assumed that the Director  Gener al         of  Ordnance Factories automatically promoted some  Superv i-         sors ’A’ immediately on the completion of 2 years of servi ce         to the post of Chargeman II without the recommendation aft er         screening  by the Promotion Committee no right would  accr ue         in  favour  of the appellants inasmuch  as  such  promotio ns         would  be  in the teeth of Rule 12 and could  not  confer  a         legal  right  on the appellants to be likewise  promoted in         breach of Rule 12. With regard to the plea based on  Artic le         16 of the Constitution. it was held "A half-hearted argume nt         was raised at the end of the hearing on behalf of the appe l-         lant-petitioners  that they have been discriminated  again st         by  depriving  them the benefit of  automatic  promotion in         violation  of constitutional guarantee under Article  16 of         the Constitution. This was an argument, neither pleaded as  a         ground  for the petition nor was raised before  the  learn ed         Single  Judge.  Moreover, we do not think any case,  on  t he         basis of violation of Article 16 of the Constitution can be

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       found  in favour of the appellant-petitioners  only  becau se         some         99         supervisors, equally placed, were promoted against the rul es         of  service.  No formal foundation has been  raised  in  t he         pleadings  in  the writ petition in support  of  the  grou nd         based on Article 16 of the Constitution."             It is against this judgment that Civil Appeal No. 441 of         1981 was preferred in this Court. Since the order dated  2 nd         February, 1981 passed in Civil Appeal No. 441 of 1981, so to         speak,  constitutes  the basis for the writ  petitions  me n-         tioned  above, it is in our opinion expedient  to  reprodu ce         the said order. It reads:--         "Heard counsel. Special leave granted.         "Our attention has been invited by learned counsel for  bo th         the  sides to the relevant rules which govern  promotion to         the  post  of Chargeman Grade II. It appears  that  a  lar ge         number  of persons have been promoted to those posts  thou gh         they  have completed only two years of service. The  Gover n-         ment now appears to insist that in so far as the  appellan ts         are concerned they cannot be considered for promotion unle ss         they  complete three years of service. We see no  justific a-         tion for any such differential treatment being given to  t he         appellants.  If  a large number of other  persons  similar ly         situated  have  been promoted as Chargeman  Grade  II  aft er         completing two years of service, there is no reason why  t he         appellants  should  also  not be  similarly  promoted  aft er         completing the same period of service. We are not suggesti ng         that  the  appellants  are entitled to be  promoted  to  t he         aforesaid posts even if they are found unfit to be promote d.                   We Therefore direct that the concerned authoriti es         will  consider the cases of the appellants for promotion as         Chargeman Grade II and promote them to the said posts unle ss         they are found to be unfit. If the appellants are  promote d,         they will naturally have to be promoted with effect from t he

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       date on which they ought to have been promoted.         This  order  will dispose of the appeal. There  will  be no         order as to costs."         As  already pointed above the petitioners in the writ  pet i-         tions refer-         100         red  to  above  have prayed for the same  relief  which  w as         granted in Civil Appeal No. 441 of 1981. Now we shall  rev rt         to  the exact prayers made in the three miscellaneous  pet i-         tions  aforesaid.  The prayer made  in  Civil  Miscellaneo us         Petition  No.  3325 of 1987 is for the issue of  an  inter im         order  restraining the respondents from making  any  furth er         promotions  during  the pendency and final  heating  of  t he         miscellaneous petition and for initiating contempt  procee d-         ings. Almost analogous prayer had been made in Miscellaneo us         Petition  No. 9357 of 1983 also namely that the  responden ts         may be restrained from promoting officers to the next high er         posts on the basis of recommendations of certain  Departme n-         tal  Promotion Committees without complying with the  dire c-         tions  of this Court in its order dated 2nd February,  198 1.         The reliefs prayed for in the above two civil  miscellaneo us         petitions  are thus of an interim nature. The  main  relie fs         which  have been prayed for apart from for  initiating  pr o-         ceedings for contempt for disobedience of the order of  th is         Court  dated  2nd February, 1981 are reliefs (i),  (ii)  a nd         (iii) contained in Civil Miscellaneous Petition No. 9356 of         1983. They are as hereunder:--         "(i)  pass appropriate orders directing the  respondents to         implement  in true letter and spirit, the judgment  of  th is         Hon’ble Court dated 2.2.1981 in Civil Appeal No. 441 of  1 98         1;         (ii) issue appropriate directions commanding the responden ts         to  promote  the  appellants to the  next  higher  posts of         Chargeman  Grade  I, Assistant Foreman,  and  Foreman,  wi th         effect from the date they are entitled to, after giving th em         the  benefit of the directions of this Hon’ble  Court  dat

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ed         2.2.1981;         (iii)  issue  appropriate directions to the  respondents to         give all consequential benefits to the appellants, includi ng         payment of arrears."             The aforesaid writ petitions came up for hearing  befo re         a  bench of two learned Judges of this Court on 9th  Septe m-         ber, 1987. On the view that the judgment of this Court dat ed         2nd  February, 1981 in Civil Appeal No. 441 of 1981  in  t he         case of Virendra Kumar and Others v. Union of India &  Ors .,         [1981] 3 SCC Page 30 may require reconsideration, the  pet i-         tions were directed to be placed before a three Judge  Ben ch         "where  inter alia the correctness of the judgment could be         looked into and the nature of relief available to the  pet i-         tioners on the         101         facts now stated would also be considered." It is in view of         this order that these matters have been listed before us.             Learned  counsel for the petitioners contended that  t he         reason  which  weighed  with this Court  in  allowing  Civ il         Appeal No. 441 of 1981 applies to these writ petitions  al so         and the same relief may accordingly be granted to the  pet i-         tioners.  It was also brought to our notice  that  similar ly         placed  125 employees got the benefit of the circular  dat ed         6th  November, 1962 in pursuance of an order passed  by  t he         Madhya  Pradesh High Court on 4th April, 1983 in writ  pet i-         tions  filed  by them. It was urged that in  case  the  sa me         relief is not granted to the petitioners they are likely to         become juniors to some of the appellants in Civil Appeal N o.         441 of 1981 and the petitioners in the writ petitions deci d-         ed by the Madhya Pradesh High Court on 4th April, 1983.             For the respondents on the other hand it was urged  th at         service conditions including promotion of employees  inclu d-         ing  Supervisors ’A’ in the Indian Ordnance  Factories  we re         governed by the Rules and in view of Rule 12 no  appointme nt         to  the  various posts to which the Rules applied  could be

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       made  otherwise  than  as specified  therein;  According to         learned counsel since Rule 8 of the Rules contemplated  th at         appointments  by promotion were to be made on the  basis of         selection  list  prepared in the  manner  provided  therei n,         there  was  no scope for automatic  promotion  merely  aft er         expiry of 2 years of continuous service on the basis of  t he         circular  dated  6th November, 1962.  According  to  learn ed         counsel  the Rules did not prescribe the minimum  number of         years  of service as Supervisors ’A’ which would  make  th em         eligible  for  promotion as Chargeman II  and  the  circul ar         dated  6th  November,  1962 which was in the  nature  of an         executive instruction prescribed 2 years’ service as  Supe r-         visor  ’A’  to  make him eligible  for  promotion.  Howeve r,         merely on completion of two years’ service a Supervisor  ’ A’         could  not  claim automatic promotion. On  the  other  han d,         promotion depended, inter alia, on availability of posts a nd         the incumbent being found fit by the Departmental  Promoti on         Committee  for being included in the selection list. It  w as         only  such a Supervisor Grade ’A’ whose name found place in         the  selection  list who could be promoted to  the  post of         Chargeman  II as and when vacancies were available.  It  w as         further  urged that the petitioners of these writ  petitio ns         were on the basis of the Rules considered for promotion  a nd         it is not disputed that all of them have in due course  be en         promoted  as  Chargeman II and some of them have  even  be en         promoted to higher posts. Our attention was further  invit ed         by learned counsel for the respondents to an order  commun i-         cated among others to the Director         102         General of Ordnance Factories, vide letter dated 28th Dece m-         ber,  1965 of the Government of India, Ministry of  Defenc e,         saying inter alia that a minimum period of service of  thr ee         years  in the lower grade should be fixed for  promotion to         the next higher grade. It was pointed out that this had be

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en         found  necessary not only because it would be in  conformi ty         with  the  practice obtaining in other Ministries  but  al so         because  on  merits this period is necessary  to  judge  t he         performance  in  the lower post and the  potentialities  f or         promotion to a higher post. He also brought to our notice  a         subsequent circular dated 20th January, 1966 by the Direct or         General  of Ordnance Factories who had issued.  the  earli er         circular dated 6th November, 1962 which provides:--               "Sub:  N.G.   Establishment--Treatment   of    Diplo ma         Holders  and  ex-apprentices serving as Supr. A  Gr.  or in         equivalent grades in the matter of promotion.               Ref: This office confidential No. 673/A/NG dt. 6.11. 62         and 4416/A/NG dt. 29.6.65.                   The  question of promotion of Diploma  holders in         Mech/Elec.  Engineering and Ex-apprentices serving as  Sup r.         ’A’ Gr. or in equivalent grades has received further consi d-         eration  of  the  D.G.O.F. who has decided  that  in  futu re         promotions  of  all  such individuals will  be  effected in         accordance with the normal rules i.e. on the basis of  the ir         listing by the relevant D.P.C. and not merely on  completi on         of 2 years satisfactory continuous service as Supr. A Gr. or         equivalent grades."             It  was  urged that after the issue  of  the  subseque nt         order  dated  28th December, 1965 and  circular  dated  20 th         January,  1966 no Supervisor ’A’ could claim to have  beco me         eligible  for  promotion merely on completion  of  2  year s’         satisfactory  service and his promotion thereafter could be         effected only in accordance with the normal Rules.             Having  heard  learned counsel for the parties  we  fi nd         substance in the submission made by the learned counsel  f or         the  respondents. Relying on two earlier decisions  in  B. N.         Nagarajan & Ors. v. State of Mysore & Ors., [1966] 3 SCR 6 82         and  Sant Ram Sharma v. State of Rajasthan & Anr., [1968]  1         SCR 111 it was held by a Constitution Bench of this Court in         Ramachandra  Shankar Deodhar and Ors. v. The State of  Mah

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a-         rashtra  &  Ors., [1974] 1 SCC 317 that in  the  absence of         legislative  Rules it was competent to the State  Governme nt         to take a         103         decision in the exercise of its executive power under  Art i-         cle 162 of the Constitution. The matter has been  consider ed         in  a recent decision of this Court in the case of Union of         India & Ors. v. Sh. Soraasundararn Viswanath & Ors.,  [198 8]         3 S.C. Judgments Today 724 wherein it has been held:--         "It is well settled that the norms regarding recruitment a nd         promotion of officers belonging to the Civil Services can be         laid  down either by a law made by the appropriate  Legisl a-         ture  or by rules made under the proviso to Article  309 of         the Constitution of India or by means of executive  instru c-         tions  issued under Article 73 of the Constitution of  Ind ia         in  the case of Civil Services under the Union of India  a nd         under  Article 162 of the Constitution of India in the  ca se         of Civil Services under the State Governments. If there is  a         conflict  between the executive instructions and  the  rul es         made under the proviso to Article 309 of the Constitution of         India,  the rules made under the proviso to Article  309 of         the  Constitution of India prevail, and if there is  a  co n-         flict  between the rules made under the proviso  to  Artic le         309  of  the Constitution of India and the law made  by  t he         appropriate  Legislature,  the law made by  the  appropria te         Legislature prevails."             It is thus apparent that an executive instruction  cou ld         make a provision only with regard to a matter which was  n ot         covered  by  the Rules and that such  executive  instructi on         could not override any provision of the Rule.  Notwithstan d-         ing the issue of instruction dated 6th November, 1962 ther e-         fore,  the  procedure for making promotion as laid  down in         Rule 8 of the Rules had to be followed. Since Rule 8 in  t he         instant case prescribed a procedure for making promotion t he

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       said  procedure  could  not be abrogated  by  the  executi ve         instruction dated 6th November, 1962. The only effect of t he         circular  dated 6th November, 1962 was that Supervisors  ’ A’         on  completion  of 2 years’ satisfactory  service  could be         promoted by following the procedure contemplated by Rule 8.         This  circular  had indeed the effect  of  accelerating  t he         chance  of  promotion. The right to promotion on  the  oth er         hand  was to be governed by the Rules. This right  was  co n-         ferred  by Rule 7 which inter alia provides that subject to         the  exception contained in Rule 11, vacancies in the  pos ts         enumerated  therein will normally be filled by promotion of         employees in the grade immediately below in accordance  wi th         the  provisions  of Rule 8. The requirements of  rule  8 in         brief have already been indicated above. Rule 12 provides         104         that no appointment to the posts to which these rules  app ly         shall  be made otherwise than, as specified in these  rule s.         This right of promotion as provided by the Rules was neith er         affected  nor could be affected by the circular.  The  ord er         dated 28th December, 1965 which provided a minimum period of         service  of three years in the lower grade for promotion to         the  next higher grade and the circular dated  20th  Janua ry         1966  which provided that promotions in future will  be  e f-         fected in accordance with the normal rules and not merely on         completion  of 2 years’ satisfactory continuous service  h ad         the  effect  of doing away with the  accelerated  chance of         promotion  and relegating Supervisors ’A’ in the  matter of         promotion  to the normal position as it obtained  under  t he         Rules.             In  the  case  of Ramchandra  Shankar  Deodhar  &  Ors .,         (supra) the petitioners and other allocated Tehsildars  fr om         ex-Hyderabad  State  had under the Notification of  the  R aj         Pramukh  dated September 15, 1955 all the vacancies  in  t he         posts  of Deputy Collector in the ex-Hyderabad State  avai l-

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       able  to  them for promotion but under subsequent  rules of         July  30,  1959 fifty per cent of the vacancies were  to be         filled  by direct recruitment and only the  remaining  fif ty         per cent were available for promotion and that too on  div i-         sional  basis. The effect of this change obviously was  th at         now  only  fifty  per cent vacancis in the  post  of  Depu ty         Collector  being available in place of all the vacancies it         was to take almost double the time for many other  allocat ed         Tehsildars  to get promoted as Deputy Collectors.  In  oth er         words  it resulted in delayed chance of promotion.  It  wa s,         inter  alia,  urged on behalf of the  petitioners  that  t he         situation  brought about by the rules of July 30, 1959  co n-         stituted  variation to their prejudice in the conditions of         service applicable to them immediately prior to the reorga n-         isation  of  the State and the Rules were  consequently  i n-         valid.  While  repelling this  submission  the  Constituti on         Bench held:--         "All  that happened as a result of making promotions to  t he         posts  of Deputy Collectors divisionwise and  limiting  su ch         promotions  to 50 per cent of the total number of  vacanci es         in  the posts of Deputy Collector was to reduce the  chanc es         of  promotion available to the petitioners. It is  now  we ll         settled by the decision of this Court in State of Mysore v.         G.B. Purohit that though a right to be considered for prom o-         tion  is a condition of service, mere chances  of  promoti on         are  not. A rule which merely affects chances  of  promoti on         cannot  be  regarded as varying a condition of  service. In         Purohit’s case the districtwise seniority of sanitary in-         105         spectors was changed to Statewise seniority, and as a resu lt         of  this change the respondents went down in  seniority  a nd         became  very  junior.  This, it was  urged,  affected  the ir         chances of promotion which were protected under the  provi so         to  Section 115, sub-section (7). This contention was  neg a-

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       tived and Wanchoo, J., (as he then was), speaking on  beha lf         of  this  Court observed: "It is said on behalf of  the  r e-         spondents  that  as  their chances of  promotion  have  be en         affected  their conditions of service have been  changed to         their disadvantage. We see no force in this argument becau se         chances of promotion are not conditions or service." It  i s,         therefore,  clear that neither the Rules of July ’30,  195 9,         nor  the  procedure for making promotions to  the  posts of         Deputy  Collector  divisionwise  varies  the  conditions of         service of the petitioners to their disadvantage."             The same view was reiterated in Mohammad Shujat Ali  a nd         Ors. v. Union of India & Ors., [1975] 3 SCC 76. In the bri ef         written  submission  filed on behalf of the  petitioners in         Writ  Petition Nos. 9522-27 of 1983 it has been pointed  o ut         that employees who had joined much later than 20th  Januar y,         1966,  namely,  the date of the subsequent circular  of  t he         Director  General  of  Ordnance  Factories  superseding  h is         earlier  circular  dated 6th November, 1962, have  also  g ot         benefit  under the orders of this Court dated 2nd  Februar y,         1981  aforesaid as also under the orders of the Madhya  Pr a-         desh  High Court dated 4th April, 1983 in the writ  petiti on         filed  before  that Court. This circumstance  by  itself is         sufficient  to  indicate that when Civil Appeal No.  441 of         1981  was  heard by this Court either the  subsequent  ord er         dated 28th December, 1965 as well as the circular dated 20 th         January,  1966 and the legal consequences flowing  therefr om         were not brought to the notice of the learned Judges by  t he         learned  counsel  for the respondents, or the same  was  n ot         properly  emphasised, the judgment dated 2nd February,  19 81         being  completely  silent on the point and  the  appeal  w as         allowed only on the ground that some Supervisors having be en         promoted  as  Chargeman  II on expiry of 2  years  of  the ir         service in view of the circular dated 6th November, 1962 t he

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       non-promotion of the appellants was discriminatory being in         violation of Article 16. As regards the order of the  Madh ya         Pradesh High Court dated 4th April, 1983 .it may be  point ed         out  that  the said High Court in an earlier  writ  petiti on         being  Misc.  Petition No. 596 of 1978  had  disallowed  t he         relief  for  the  petitioners of that  writ  petition  bei ng         treated as Chargeman II on completion of two years’  servi ce         as Supervisor ’A’ by its order dated 16th April, 1979 as is         apparent  from the said judgment dated 4th April,  1983  b ut         the subse-         106         quent writ petitions which seem to have been filed after t he         decision  of  this Court dated 2nd February, 1981  in  Civ il         Appeal No. 441 of 1981 were allowed in view of the aforesa id         decision of this Court.             In this connection it is also of significance to  noti ce         that  it does not seem to have been the case of  the  appe l-         lants  in  Civil  Appeal No. 44 1 of 198 1  that  those  w ho         according  to  them had been promoted in  pursuance  of  t he         circular  dated 6th/November, 1962 on completing two  year s’         service were junior to them. At this place it will be usef ul         to  refer to an affidavit dated 19th November, 1983 of  D. P.         Gupta, who is one of the appellants in Civil Appeal No.  4 41         of 1981, filed in C.M.P. Nos. 9356-57 of 1983. Annexure I to         the  said  affidavit gives a break-up of the  total  diplo ma         holders  recruited  in the Department due to acute  need of         Ordnance  Department  following the chinese  aggression. It         indicates  that approximately 125 diploma holders  were  r e-         cruited  in 1962, 550 in 1963, 250 in 1964, 150 in 1965  a nd         100 in 1966, the total number of such recruits being appro x-         imately  1175. The said Annexure further indicates that  o ut         of the 1175 recruits about 625 were promoted to the post of         Chargeman II in 1965-66 under the 2 year policy contained in         circular dated 6th November, 1962 and that approximately 5 50

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       diploma  holders  were denied promotion  which  resulted in         discrimination.  From this break-up it is apparent that  a ll         the diploma holders recruited in 1962 whereas 500 out of 5 50         recruited  in  1963 were promoted on expiry of  2  years of         service.  It appears that the remaining 50  diploma  holde rs         recruited  in 1963 and those who had been recruited  in  t he         begning of 1964 or thereafter could not be promoted inasmu ch         as by the time their cases could be considered for promoti on         the subsequent order dated 28th December, 1965 had come in to         force  and had also come into force the circular dated  20 th         January,  1966 which had superseded the circular  dated  6 th         November, 1962 and had provided that in future promotions of         all such individuals will be effected in accordance with t he         normal  rules and not merely on the completion of two  yea rs         satisfactory continuous service.             It  cannot  be  disputed that the  Director  General of         Ordnance  Factories  who had issued the circular  dated  6 th         November, 1962 had the power to issue the subsequent  circ u-         lar  dated  20th January, 1966 also. In view of.  the  leg al         position pointed out above the aforesaid circular could  n ot         be  treated to be one affecting adversely any  condition of         service of the Supervisors ’A’. Its only effect was that t he         chance of promotion which had been accelerated by the circ u-         lar dated 6th November, 1962 was deferred and made depende nt         on  selection according to the Rules. Apparently, after  t he         coming into force of the         107         order dated 28th December, 1965 and the circular dated  20 th         January,  1966 promotions could not be made just on  compl e-         tion  of  2 years’ satisfactory service  under  the  earli er         circular  dated  6th  November, 1962 the  same  having  be en         superseded by the later circular. It is further obvious th at         in  this  view of the matter Supervisors ’A’  who  had  be en         promoted  before  the coming into force of the  order  dat ed

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       28th  December,  1965 and the circular dated  20th  Januar y,         1966  stood in a class separate from those whose  promotio ns         were  to be made thereafter. The fact that some  Superviso rs         ’A’  had been promoted before the coming into force  of  t he         order dated 28th December, 1965 and the circular dated  20 th         January, 1966 could not, therefore, constitute the basis f or         an  argument that those Supervisors ’A’ whose cases came up         for  consideration  for promotion thereafter  and  who  we re         promoted  in  due course in accordance with the  rules  we re         discriminated  against. They apparently did not fall in  t he         same category.             It may also be noticed that even though the  petitione rs         on  their completion of 2 years’ service as  Supervisor  ’ A’         were not promoted as Chargeman 11 in or about the year  19 66         they  chose  to wait for about 17 years to file  these  wr it         petitions which were filed in 1983, and nearly 2 years  ev en         after the decision dated 2nd February, 1981 in Civil  Appe al         No.  441 of 1981, which indicates that but for the  decisi on         in Civil Appeal No. 441 of 1981 they would perhaps not  ha ve         even  thought of filing these writ petitions inasmuch as in         the  meantime they had not only been promoted in the  norm al         course  as Chargeman 1I but some of them had  been  promot ed         even to higher posts in the hierarchy.             For aught we know if the effect of the order dated  28 th         December, 1965 and the circular dated 20th January, 1966 h ad         been  properly  emphasised at the time of hearing  of  Civ il         Appeal No. 441 of 198 1 its result may have been  differen t.         In this connection, reference may also be made to the  cou n-         ter  affidavit of Sobha Ramanand, Deputy Director,  Ordnan ce         Factory  Cells G. Block, Ministry of Defence, filed in  Wr it         Petition  (Civil)  Nos.  3812-19 of 1983 with  regard  to  a         matter relevant for promotion. In paragraph 2(i) it has be en         stated  that during 1962-63 due to sudden expansion of  Or d-         nance Factories Organisation in the wake of Chinese  aggre

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s-         sion a large number of posts of Chargeman 11 and other pos ts         were  created  and as a result thereof  persons  already in         service  as  Supervisors ’A’ were promoted to the  posts of         Chargeman  II  on  completion of 2 years’  service.  It  h as         further  been  stated therein that after the  newly  creat ed         posts were thus filled by promotion, chances of promotion of         those  who  were appointed subsequently diminished  and  f or         want of sufficient number of         108         vacancies as Chargeman II they could not be promoted to th at         post soon after the completion of 2 years’ service.There is         a further averment in the said counter affidavit that  pet i-         tioners  were duly considered in their turn and their  nam es         were  brought  on the approved panel. They  were  thereaft er         promoted  as  soon as vacancies became  available  and  th at         during  the period that they were on the approved  panel no         person junior to them or of equal seniority superseded the m.         Nothing substantial has been brought to our notice on beha lf         of  the  petitioners  on the basis of  which  the  aforesa id         statements made in the counter affidavit may be doubted.             In  view of the foregoing discussion, we find it  diff i-         cult  to grant the reliefs prayed for in the  aforesaid’wr it         petitions simply on the basis of the judgment of this  Cou rt         dated  2nd February, 1981 in Civil Appeal No. 441  of  198 1.         These writ petitions, therefore, deserve to be dismissed.             Since,  however,  the judgment of this Court  dated  2 nd         February, 1981 in Civil Appeal No. 441 of 1981 has not  be en         challenged  and  has become final, the next  question  whi ch         falls  for  consideration is as to what further  relief, if         any,  are  the appellants in Civil Appeal No. 44 1  of  19 81         entitled  in pursuance of the Civil Miscellaneous  Petitio ns         referred to above filed by them. The reliefs which they ha ve         claimed  have  already been indicated above. It is  now  n ot         disputed  that the appellants of this appeal have in  purs u-

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       ance  of  the order of this Court dated 2nd  February,  19 81         been given a back date promotion to the post of Chargeman II         synchronising with the dates of completion of their 2  yea rs         of service as Supervisor ’A’. The grievance of the petitio n-         ers,  however, is that this promotion tantamounts to  impl e-         mentation  of  the order of this Court dated  2nd  Februar y,         1981  only on paper inasmuch as they have not  been  grant ed         the  difference of back wages and promotion to higher  pos ts         on  the basis of their back date promotion as Chargeman  I I.         As  already noticed earlier certain writ petitions filed in         Madhya Pradesh High Court were allowed by that Court on  4 th         April, 1983 relying on the judgment of this Court dated  2 nd         February, 1981 in Civil Appeal No. 441 of 1981. Against  t he         aforesaid  judgment of the Madhya Pradesh High  Court  dat ed         4th April, 1983 Special Leave Petitions (Civil) Nos. 5987- 92         of  1986 were filed in this Court by the Union of India  a nd         were  dismissed  on  28th July, 1986. The  findings  of  t he         Madhya  Pradesh High Court in its judgment dated 4th  Apri l,         1983 thus stand approved by this Court. In this view of  t he         matter  to put them at par it would be appropriate that  t he         appellants  in  Civil  Appeal No. 441 of 1981  may  also be         granted the same relief which was granted to the         109         petitioners in the writ petitions before the Madhya  Prade sh         High  Court. As regards back wages the Madhya  Pradesh  Hi gh         Court held:         "It is the settled service rule that there has to be no  p ay         for  no work i.e. a person will not be entitled to  any  p ay         and allowance during the period for which he did not perfo rm         the duties of a higher post although after due considerati on         he  was  given a proper place in the gradation  list  havi ng         deemed  to be promoted to the higher post with  effect  fr om         the date his junior was promoted. So the petitioners are n ot         entitled to claim any financial benefit retrospectively. At

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       the  most  they  would be entitled to  refixation  of  the ir         present salary on the basis of the notional seniority gran t-         ed to them in different grades so that their present  sala ry         is not less than those who are immediately below them."         In  so  far  as Supervisors ’A’  who  claimed  promotion as         Chargeman  11 the following direction was accordingly  giv en         by  the Madhya Pradesh High Court in its judgment dated  4 th         April, 1983 aforesaid:--         "All  these petitioners are also entitled to be  treated as         Chargeman  Grade II on completion of two years  satisfacto ry         service   as   Supervisor Grade-A.   Consequently,  notion al         seniority of these persons have to be refixed in  Supervis or         Grade  A, Chargeman Grade-II, Grade-I and Assistant  Forem an         in  cases  of those who are holding that  post   .....   T he         petitioners  are also entitled to get their  present  sala ry         re-fixed  after giving them notional seniority so  that  t he         same  is  not  lower than those who  are  immediately  bel ow         them."             In  our  opinion,  therefore, the  appellants  in  Civ il         Appeal No. 441 of 1981 deserve to be granted the same limi t-         ed  relief. We are further of the opinion that it is  not  a         fit case for initiating any proceedings for contempt again st         the respondents.             In  the  result, the writ petitions fail  and  are  di s-         missed.  The Civil Miscellaneous Petitions in  Civil  Appe al         No.  441 of 1981 are disposed of by issuing a  direction to         the  respondents  to give the appellants in the  said  Civ il         Appeal the same benefits as were given by the Madhya Prade sh         High Court to such of the petitioners before that Court  w ho         were Supervisors ’A’ and were granted promotion as Chargem an         II  by  its judgment dated 4th April, 1983. In  the  circu m-         stances of the case, however, there shall be no order as to         costs.         R.S.S.                            Petitions dismissed.         110

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