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PETITIONER: S.K.BHATE & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT20/11/1975

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH RAY, A.N. (CJ) SARKARIA, RANJIT SINGH SHINGAL, P.N.

CITATION:  1976 AIR  363            1976 SCR  (2) 758  1976 SCC  (1) 369

ACT:      Indian ordnance  Factories (Recruitment  and Conditions of Service  of Class  11 Personnel)  Rules, 1956-Appointment various cadres and inter se seniority - Principles.

HEADNOTE:      The Ordinance  Factory in  which the  petitioners  were employed hold  four cadres. In the 2nd cadre of non-gazetted officers there  were four grades-Foremen. Assistant Foremen, Chargemen Grade  I and  Chargemen Grade II. The 3rd cadre of non-industrial employees  had 2  grades Supervisor ’A’ Grade and ’B’  Grade, and  were governed  by the  Indian  ordnance Factories (Recruitment  and Conditions  of Service  of Class III Personnel)  Rules,1956. Appointment  was on the basis of 20% of the quota for direct recruits and 80% for promotees.      In answer to an advertisement for appointment by direct recruitment  to   the  4   grades  of  the  2nd  cadre,  the petitioners, all  of whom  except petitioner  No.  12,  were serving as Supervisors ’A’ Grade, applied. Petitioner No. 12 was not  in service.  They were  interviewed but none of the petitioners, except  Petitioner No.  12, received  orders of appointment. Petitioner No. 12 was appointed Chargeman Grade II. Between  April, 1963,  and  November,  1963,  The  other petitioners were promoted as Chargemen Grade II. Respondents 5  to  16  who  were  apprentices,  were  also  promoted  as Chargemen Grade  II, and were later promoted to the grade of Assistant Foremen.  Treating  this  order  as  an  order  of supersession, the  petitioners filed  a writ  petition under Art. 32 claiming to be promotees, and seniority on the basis of statutory rules 10(1)(i) to (iv) contained in S.R.O. 4.      Dismissing the petition, ^      HELD.  (I)   There  was   a  justifiable   ground   for distinction  between   the  petitioners,   who  were  direct recruits, and the respondents who were promotees, and hence, there was no violation of Art. 16. 1762-G]      The petitioners  were really  direct recruits  and  not promotees despite  the wrong  description in  their  service records and  even wrong orders conveying the impression that they were  promoters. even  though  they  had  not  received

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intimation  of   their  appointment   as  direct   recruits. Promotions arc  only made  under s. 8 of the Indian ordnance Factories (Recruitment  and Conditions  of service  of Class III Personnel)  Rules, 1956,  as amended  in 1961, to Charge men Grade  II, on  the basis Of a selection list prepared by the  appropriate   Departmental  Promotion   Committee.  The Committee had prescribed a normal minimum qualification of 3 years’ service  in the  post of  Supervisor Grade ’A’ before promotion except in exceptional cases of ex-apprentices. The petitioners did  not belong  to  the  class  which  had  any exceptional qualification, and, since they had not satisfied tho 3  years’ condition,  they could  not be  considered for promotion in  the 80%  quota reserved  for promotees, to the post of Chargemen, Grade Ir. [762 B, C, 761 E-Hl      (2) The petitioners have not established that they have been denied  their seniority in violation of any right under Art. 16  nor that  the seniority  list had  been prepared in violation of  any rule or principle of justice. The question of inter  se seniority is also based upon the 4:1 (80%: 20%) ratio and  it was  for the  petitioners to satisfy the Court that they were not given the senior 759 grade although  they satisfied  all the required conditions, and  that   others,  who   A  were   promoted,  were   given unjustifiable preference over them. [763C]      Amrit Lal  Berry v. Collector of Central Excise Central Revenue & ors., AIK 1975 S.C. 538 @ 546, followed.

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 469 of 1971.      Under article 32 of the Constitution af India.      V. M.  Tarkund, V.  N. Ganpule and P. C. Kapoor for the petitioners.      G. L.  Sanghi and  S. P.  Nayar  for  respondents  1-4, respondents S to 16 not represented.      The Judgment of the Court was delivered by       BEG, J.-Twenty two petitioners under Article 32 of the Constitution   have come  to this  Court with  the following assertion: (1)  They are  employed as  civilian non-gazetted Officers holding  posts of  Chargemen Grade-II (Chemists) in high explosives’  Factory, Kirkee,  which is  one of  the 28 ordnance Factories,  located all  over India,  controlled by opposite party  No. 2,  the  Director  General  of  ordnance Factories, with his Head office at Calcutta.      (2) The  Factory  has  four  cadres  of  officers:  (i) Gazetted officers;  (ii) Non-Gazetted  officers; (iii)  Non- Industrial  employees;   (iv)  lndustrial   employees.   The petitioners belong  to  the  second  cadre  which  has  four grades: (a)  Foremen; (b)  Assistant Foremen;  (c) Chargemen Gr.  I;   (d)  Chargemen   Grade  II.   The  3rd   cadre  of nonindustrial employees  has two  grades (i)  Supervisor ’A’ Grade; and  (ii) Supervisor  ’B’ grade. The employees of the 3rd cadre  are classified  as- Class  III employees  in  the general scheme  of classification  of Govt. servants who are governed  by   India  ordnance  Factories  (Recruitment  and Conditions of Service of Class II personnel) Rules.      (3) The  seniority rules  of Gazetted  and Non-Gazetted officers of  the ordnance  Factories are laid down in office Memorandum  dated   4th  January,   1956,  amended  in  1961 (Annexure ’B’).      (4)  The   Director  General   of  ordnance  Factories, Respondent  No.  2,  issued  an  advertisement,  dated  14th November, 1962  for  direct  recruitment  to  the  grade  of

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Foremen, Assistant  Foremen, Chargemen Grade I and Ghargemen Grade II.  At  the  time  of  this  advertisement,  all  the petitioners, except  petitioner No. 12, were already serving as officiating  Supervisors  of  ’A’  Grade  of  Class  IIl: employees. In answer to the advertisement for appointment to temporary posts  with prospects  of  being  "considered  for permanent appointment  in due  course", the petitioners, who possessed the  minimum qualification prescribed, applied for direct  recruitment   which  was  open  to  them  also.  The petitioners were   for  interview by  a letter issued by the General Manager,  High explosives’ I Factory, Kirkee, on 7th February, 1963,  but, after  the interviews,  no letters  of appointment were  received by  the  petitioners  other  than petitioner No. 12. 760      (5)  They   were  promoted  between  April,  1963,  and November, 1963,  from their  substantive grade of Supervisor ’A’ to  Chargemen Grade  II by  the General Manager of their factory, on  short term basis, by virtue of powers delegated to him.  Petitioner No.  12, who  was not  in service at all before, was  appointed a  temporary chargemen,  Grade II, in April, 1963,  as a  result of his selection after interview. Respondents 5  to 16,  however, entered  ’ the  ’  grade  of Chargemen Grade  II  between  1st  December,  1963  and  4th February, 1965,  and were  also shown as temporary Chargemen Grade II,  but, they  were not holding any post in the grade of Supervisors.  The  respondents  were  apprentices  before entering into the Grade II of Chargemen. r      (6) The  promotions of  the petitioners  were  given  ’ retrospective effect,  by an  order dated  11th June,  1965, passed  by  the  Director  General  ordnance  Factories.  In December, 1967,  however, the petitioners were superseded by others who were alleged to be their juniors. The petitioners made representations  and  sent  reminders  which  were  not replied to. Respondents S to 16 were promoted from Chargemen Grade II  to the  grade of  Assistant Foremen by an order of the respondent  No. 2  Director General  ordnance  Factories dated l  7th September,  1971. This  order according  to the petitioners  amounted   to  another   supersession  of   the petitioners who  were shown  as holding permanent posts only as Supervisors  of  ’A’  grade  in  1971.  The  petitioners, therefore called  to  this  Court  on  14th  December,  1971 against  the   orders  dated  17th  September,  1971,  Which amounted to their supersession.      The petitioners  also alleged  that as  no orders  were communicated to  them  showing  that  they  were  considered direct recruits  by the  ordnance Depot  by the  Ministry of Defence Production  in the  Govt of  India or  anyone on its behalf, they  came to  know, for the first time, as a result of the replies filed by the respondents to the Writ Petition that they were being treated as direct recruits so that they could only  be confirmed  when their  turn came  in the  20% quota of  direct recruits  and not  in the  80% quota of the promotees.  The  petitioners,  therefore,  applied  for  the amendment of  the petition and were permitted by this Court, under an  order dated  16th November,  1973, to  do so. They alleged,   by   means   of   this   amendment   that   their classification as  direct recruits  instead of  as Promotees was Seniority  fanciful, arbitrary,  and  even  capricious". They also  alleged that the seniority list filed in reply to their petition had been kept concealed from them and that it was prepared  in utter disregard to statutory rules 10(1) to 10 to (4) contained in S.R.O. 4.. These rules are           10(1)  The   Director  General   will  prepare   a      seniority  list  of  all  the  officers  in  their  own

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    categories according to the following procedure:-           (i) As  between two  officers holding a particular      class  of   appointment,  in  a  substantive  capacity,      seniority in that 761      class of  appointment as  well as  in  the  officiating      appointments held by them in the same rank or different      ranks shall be determined with reference to the date of      the substantive appointment.           (ii) Subject to the provisions of clause (iii), an      officer holding an appointment in a particular class in      a substantive  capacity will  he normally  senior to an      officer holding  an appointment  in the same class in a      non-substantive capacity.           (iii)  Seniority   of  persons  holding  temporary      appointments  which   are  made   on  agreement  or  on      probationary  basis   and  which  are  expected  to  be      continued after  the expiry of the initial period, will      be  reckoned   vis  a   vis  others  holding  permanent      appointments  in   the  same   grade  in  the  ordnance      Factories  from   the  date   from  which  the  officer      concerned have  been holding  appointments of  the same      grade continuously.  The seniority  so assigned to such      per sons  shall not  be disturbed on their confirmation      at a later stage.           Note:  This   clause  applies   only  to   persons      recruited through  the Union  Public Service Commission      and to those recruited directly, otherwise than through      the Union  Public Service Commission prior to 1st April      1947.           (iv) Temporary  seniority in a given grade will be      reckoned from the date from which the officer concerned      has been  occupying it  continuously,  irrespective  of      whether he  has a substantive appointment in some lower      grade"      The reply  of the  respondents is  that the  so  called promotion orders,  of which  the petitioners  want  to  take advantage,  were   really  the   result  of   a  mistake  or misunderstanding in  not realising the actual legal position of the  petitioners as  direct recruits.  It was pointed out that, in  the letters  issued calling them for interviews as direct recruits,  it was  made  clear  to  them  that  their appointments did  not carry  with them  any  decision  about their fitness  for the  post applied for and that they could be considered  for any  lower post to which they might he so entitled. In  other words, this clearly meant that they were on trial.  It was  also pointed out that promotions are only made  under   Rule  6   of  the  Indian  Ordnance  Factories (Recruitment  and   Conditions  of   Service  of  Class  III Personnel) Rules,  1956, as  amended in  1961  to  Chargemen Grade II,  on the basis of "a selection list prepared by the appropriate  Departmental   Promotion  Committee".   rt  was asserted  that,   in  the   minutes  of   the   Departmental Promotions’ Committee held in the month of April 1963, prior to the appointment of petitioners as Chargemen Grade II, the Committee had  prescribed a  normal minimum qualification of three years’  service in the post of Grade ’A’ for promotion barring  exceptional   cases  of  ex-  apprentices.  It  was asserted that,  as the  Petitioners had  not satisfied  this condition, they could not be considered for promotion to the posts of  Chargemen Grade  II. They  did not  belong to  the class 762 which had any exceptional qualifications. Hence, their names did not  appear in  the  list  of  persons  to  be  promoted

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prepared by  the Departmental  Promotions’ Committee for the post of Chargemen Grade II.      It was  asserted that they were being treated as direct recruits and  not promotees  despite their wrong description and even  wrong orders  conveying the  impression that  they were promotees.  The condition  precedent to  promotion  not having been  satisfied they  could  only  be  considered  as direct recruits  and get  the appointments  reserved for the class of  direct recruits as and when their turns arrived in this quota.  It was  conceded on  behalf of  the respondents that much larger number of appointments had been made in the  class  of direct  recruits than the vacancies available. It was, however,  explained that this was due to the sudden and exceptional demands  for these  appointments as  a result of the pressure  on our  ordnance Factories due to the war with China and  other defence requirements. It was urged that the petitioners could  not take  advantage of  erroneous  orders made by  the Manager  of their  ordnance Factory even if the error had  been repeated  by the  Director General  Ordnance Factories.  If   the  petitioners   had  not  satisfied  the condition precedent  to promotion,  they could  not get  the appointments reserved  for the  80% quota of promotees whose work was  watched by  the Promotions’ Committee so that they could be  declared fit for promotion. The promotions were on the basis  of a  selection on  merit, the tests of which had not  been   satisfied  by   the  petitioners  In  fact,  the petitioners  were  considered  with  others,  and  were  not selected. It was not necessary to give them opportunities of being heard  on comparative merits, as they claimed, just as candidates at  an examination  are not  entitled to any such opportunities as these are not disciplinary proceedings.      Counsel for  the petitioners  was, in  our opinion, not able to  meet the  objections put  forward  to  petitioners’ claims as  promotees. He  could not show that they satisfied the conditions precedent to promotions. Hence, the so called orders of  promotion could  not  cure  the  defect.  It  was immaterial  that  the  petitioners  were  wrongly  shown  as Promotees in  their service  records or  that they  had  not received  intimations   or  their   appointments  as  direct recruits. There  was a  justifiable ground for a distinction between  them   and  the  class  to  which  the  respondents belonged. There  was no challenge to the fairness of the 20% quota reserved  for  direct  recruits  as  against  that  of promotees. Hence,  we do  not think that the petitioners can complain  of  violation  of  any  fundamental  rights  under Article 16 of the Constitution.      Petitioners cannot  also claim  any  benefit  resulting from being treated as persons belonging to the same class as respondents 5  to 16  whose places on the seniority list are questioned by them as 763 amounting to  illegal supersessions  of the  petitioners. We may mention  here that Mr. Sanghi, Counsel appearing for the Union of  India, Respondent  No. 1, and the Director General ordnance Factory, Respondent No. 2, and other officials, has fairly conceded that so far as the case af Petitioner No. 11 is concerned,  it stands  on a  special footing and that his clients are  considering it on that footing. Counsel for the petitioners has  also conceded  that so  far  as  3  of  the petitioners are concerned, they have been rightly treated as direct recruits.  We find  no error  in treating  the others also as direct recruits.      It may  also be mentioned here that Mr. Sanghi, Counsel for the  Union of India and its officials, has stated to the Court that  none of  the petitioners will be reverted to his

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substantive post merely on the ground that he was treated as a direct  recruit. The  question of  inter-se seniority is a different  matter.  The  petitioners  have  been  unable  to establish that  they have  been denied  their  seniority  in violation of any right under Article 16 of the Constitution.      It may  be mentioned  here that, in Amrit Lal Berry Vs. Collector of Central Excise Central Revenue & Ors this Court laid down (at p. 546):           "It was  for the  petitioner to  satisfy the Court      that he  was not  given the  senior grade  although  he      satisfied all  the required  conditions of  it and that      others,  who   were  promoted   into  it   were   given      unjustifiable preference  over  him".  As  we  are  not      satisfied that  the seniority list has been prepared in      violation of  any rule  or principle of justice, we are      unable to accept the petition before us.      We therefore,  dismiss this  petition. The parties will bear their own costs. V.P.S     Petition dismissed. 764