TMI Blog1989 (3) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court on 2nd 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. The exact nature of the prayer made in these miscellaneous applications shall be indicated after referring to the relief granted on 2nd February, 1981 in Civil Appeal No. 4 of 1981. The 75 appellants of Civil Appeal No. 441 of 1981 filed a writ petition in the Allahabad High Court in 1972 asserting that they had been appointed as Supervisors Grade 'A' on various dates in pursuance of a circular dated 6th November, 1962 issued by the Director General of Ordnance Factories, the relevant portion whereof reads as hereunder:- Subject: NON-INDUSTRIAL ESTABLISHMENT PROMOTION D.G.O.F. has decided that Diploma holders serving as Supervisor 'A' (Tech)/Supervisor 'B'/(Tech) and in equivalent 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 ordnance factories be promoted to Supervisor 'A' (Tech) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made on behalf of the appellants and accordingly dismissed the special appeal on 8th February, 1977. The learned Judges pointed out that it was admitted that the conditions of service applicable to the case of the appellants were governed by the Indian Ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956 (hereinafter referred to as the Rules) framed by the President of India under Article 309 of the Constitution. It was further pointed out that Rule 8 contemplated that appointments by promotion were to be made on the basis of a selection list prepared for the different grades by duly constituted Departmental Promotion Committees laid down in the said rule 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 6th November, 1962 the learned Judges took the view that it was difficult to read in that circular any intention or deliberation on the part of the Director General of Ordnance Factories that as soon as two years were completed by a diplo ma holder in the Grade of Supervisor 'A' there would be an automatic promotio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants. 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 the aforesaid posts even if they are found unfit to be promoted. We Therefore direct that the concerned authorities will consider the cases of the appellants for promotion as Charge man Grade II and promote them to the said posts unless they are found to be unfit. If the appellants are promote d, they will naturally have to be promoted with effect from t he 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 petitions refer- 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 petitions aforesaid. The prayer made in Civil Miscellaneous Petition No. 3325 of 1987 is for the issue of an interim order rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly be granted to the petitioners. It was also brought to our notice that similarly placed 125 employees got the benefit of the circular dated 6th November, 1962 in pursuance of an order passed by t he Madhya Pradesh High Court on 4th April, 1983 in writ petitions 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 No. 441 of 1981 and the petitioners in the writ petitions decided by the Madhya Pradesh High Court on 4th April, 1983. For the respondents on the other hand it was urged that service conditions including promotion of employees including Supervisors 'A' in the Indian Ordnance Factories were governed by the Rules and in view of Rule 12 no appointment to the various posts to which the Rules applied could be made otherwise than as specified therein; According to learned counsel since Rule 8 of the Rules contemplated that appointments by promotion were to be made on the basis of selection list prepared in the manner provided therein, there was no scope for automatic promotion merely after expiry of 2 years of continuous service on the basis of t he circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A' Gr. or in equivalent grades has received further consideration of the D.G.O.F. who has decided that in future promotions of all such individuals will be effected in accordance with the normal rules i.e. on the basis of their listing by the relevant D.P.C. and not merely on completion 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 20th January, 1966 no Supervisor 'A' could claim to have become eligible for promotion merely on completion of 2 years' 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 and Sant Ram Sharma v. State of Rajasthan Anr., [1968] SCR 111 it was held by a Constitution Bench of this Court in Ramachandra Shankar Deodhar and Ors. v. The State of Maharashtra Ors., [1974] 1 SCC 317 that in the absence of legislative Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll normally be filled by promotion of employees in the grade immediately below in accordance with the provisions of Rule 8. The requirements of rule 8 in brief have already been indicated above. Rule 12 provides that no appointment to the posts to which these rules apply shall be made otherwise than, as specified in these rules. This right of promotion as provided by the Rules was neither affected nor could be affected by the circular. The order 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 January 1966 which provided that promotions in future will be effected 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 from ex-Hyderabad State had under the Notification of the Raj Pramukh dated September 15, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 59, 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 and Ors. v. Union of India Ors., [1975] 3 SCC 76. In the brief written submission filed on behalf of the petitioners in Writ Petition Nos. 9522-27 of 1983 it has been pointed out that employees who had joined much later than 20th January, 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 got benefit under the orders of this Court dated 2nd February, 1981 aforesaid as also under the orders of the Madhya Pradesh High Court dated 4th April, 1983 in the writ petition 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 order dated 28th December, 1965 as well as the circular dated 20th January, 1966 and the legal consequences flowing therefrom were not brought to the notice of the learned Judges by t he learned counsel for the respondents, or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of service. It appears that the remaining 50 diploma holders recruited in 1963 and those who had been recruited in the begning of 1964 or thereafter could not be promoted inasmuch as by the time their cases could be considered for promotion the subsequent order dated 28th December, 1965 had come in to force and had also come into force the circular dated 20th January, 1966 which had superseded the circular dated 6th 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 years satisfactory continuous service. It cannot be disputed that the Director General of Ordnance Factories who had issued the circular dated 6th November, 1962 had the power to issue the subsequent circular dated 20th January, 1966 also. In view of. the leg al position pointed out above the aforesaid circular could not 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 circular dated 6th November, 1962 was deferred and made dependent on selection according to the Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the wake of Chinese aggression a large number of posts of Chargeman 11 and other posts 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 has further been stated therein that after the newly created posts were thus filled by promotion, chances of promotion of those who were appointed subsequently diminished and f or want of sufficient number of vacancies as Chargeman II they could not be promoted to that post soon after the completion of 2 years' service. There is a further averment in the said counter affidavit that petitioners were duly considered in their turn and their names were brought on the approved panel. They were thereafter promoted as soon as vacancies became available and that 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 behalf of the petitioners on the basis of which the aforesaid statements made in the counter affidavit may be doubted. In view of the foregoing discussion, we find it difficult to grant th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation he was given a proper place in the gradation list having deemed to be promoted to the higher post with effect from the date his junior was promoted. So the petitioners are not entitled to claim any financial benefit retrospectively. At the most they would be entitled to refixation of their present salary on the basis of the notional seniority granted to them in different grades so that their present salary 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 given by the Madhya Pradesh High Court in its judgment dated 4th April, 1983 aforesaid:-- All these petitioners are also entitled to be treated as Chargeman Grade II on completion of two years satisfactory service as Supervisor Grade-A. Consequently, notional seniority of these persons have to be refixed in Supervisor Grade A, Chargeman Grade-II, Grade-I and Assistant Foreman in cases of those who are holding that post ..... The petitioners are also entitled to get their present salary re-fixed after giving them notional seniority so that the same is not lower than those who are immediately below them. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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