Full Judgment Text
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PETITIONER:
R.K. SETHI & ANR.
Vs.
RESPONDENT:
OIL & NATURAL GAS COMMISSION & ORS.
DATE OF JUDGMENT: 28/01/1997
BENCH:
S.C. AGRAWAL, FAIZAN UDDIN
ACT:
HEADNOTE:
JUDGMENT:
[WITH CIVIL APPEALS NOS. 525 OF 1987 AND 527 OF 1987]
J U D G M E N T
S.C. AGRAWAL, J:-
These appeals and the writ petition raise common
questions relating to seniority in the cadre of Assistant
Grade-ii (For short ’AG-II’) and promotion to the higher
posts of Assistant Grade-I (for short ’Ag-I’) and
superintendent in the Oil and Natural Gas Commission
(hereinafter referred to as ’the commission’).
In the Commission recruitment and promotion up to a
certain level is on regional basis and thereafter it is
centralised. in the personnel and Administration (P & A )
Assistant Grade -III (for short ’AG-III’), AG-II and AG-i
are made on regional basis and appointment and promotion to
the higher posts of superintendent and above are made on
centralised basis. There was separate seniority in the
cadres of AG-III, AG-II and AG-I for each region while in
the higher cadres it was on all India basis. We are
concerned with the Central western and Headquarters regions.
In early 1960s the commission fell the need of Telex
Operators and employees working as AG-III were picked up to
work as Telex operators. With effect from April 1, 1969 a
separate cadre of Telex operators having separate seniority
was created. The Telex operators were earlier having a pay
scale which was higher than that of AG -III but lower than
that of AG-II. With effect from April 1, 1979 the Telex
operators as well as AG-II were place at the same pay scale
of Rs. 431-880. The Telex operators did not have any
promotional channel. Under the Recruitment and promotion
Regulations, 1980 (hereinafter referred to as ’the 1980
Regulations’), which came into force on April 24,1980, the
designations of many posts under the Recruitment and
promotion Regulation , 1974 were changed the 1980 regulation
did not contain the post of Telex operator. In order to
implement the 1980 regulations executive instruction were
issued vide office order No 2(22)/80-RP-I dated April
25,1980, (hereinafter referred to as ’the Executive
Instructions’) with regard to placement at appropriate level
and other connected matters for different categories of
employees. In paragraph 5 of the said order fitment
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principles for categories in other disciplines were set out.
sub-paragraph (iii) of the said paragraph related to Telex
operators and it read as under:-
"(iii) Telex operator - Rs. 370-700
(Rs. 430-880)
All existing employees in the
category of Telex operator will be
redesignated as Assistant Grade-II
in the pay scale of Rs. 370-700-/
(rs. 430-880). Total service
rendered by the employee in the pay
scale of Rs. 360-640/- and Rs. 370-
700 (Rs. 430-880)/-) will be
counted for purpose of promotion to
the pay scale of Rs. 470-880/- (Rs.
530-1060)".
In paragraph 1 the said order general instructions were
given in respect of all the categories of employees. Sub
paragraph (viii) of paragraph 1 related to fixation of inter
se seniority consequent upon merger of two categories. It
contained the following provision:-
"(viii) fixation of interse
seniority consequent upon merger of
two categories:-
Where under R & P regulations,
1980, two or more categories have
been merged, for purposes of
promotions to the nest higher pay
scale, interse seniority of the
employee considered for promotion
will be fixed on the basis of
length of service put in by the
individual in the respective pay
scale with those in the higher
erstwhile scale, being treated as
senior to those in the lower
erstwhile scale enbloc. Existing
interse seniority will not be
disturbed."
As a result of the merger of the cadre of Telex
operators with AG-II, the Telex operator in each region were
placed enbloc below AG-II in the said region. On April
25,1980 an office order No. 2/24/80-RP-I was issued to make
provision for promotion on time bound basis (hereinafter
referred to as ’the 12 years policy") In the said order it
was stated that for employees in class III and IV
equivalent, every employee will have at least two promotions
if otherwise suitable and that in order to achieve this in
the scale of pay between Rs. 230-308(old) [290-400
(revised)] to Rs. 650-1200 in each cadre of discipline
number of higher posts will be operated in the next
promotional step in the pattern of a selection grade if
required and that employees in the scale of Rs. 370-700(old)
[Rs. 430-880(revised)] who have completed 12 years service
in the concerned region would be qualified for consideration
for promotion to the scale if Rs. 470-880(old) [Rs. 530-1060
(revised)] and their fitness for promotion would be judged
on the basis of procedure laid down for departmental
promotion. by office Memorandum No. 2(50)/80-RP-I dated may
27 1982 the commission adopted a policy whereunder as a
special one time exception. All class III employees who as
on April 1 1982, had put in at least 18 years service in the
present grade and in the grade immediately below in class
III post were to be considered bu appropriate DPCS for
promotion form April, 1982 by suitable upgradation of posts
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provided they had spent at least three years in their
present grade and provided further that they had not been
superseded on grounds of merit for promotion earlier. this
concession was not to be given for the purpose of such of
class III employees who had already been promoted as class
III officers. It was found that certain senior employees
were left out of consideration for promotion because they
did not fulfill conditions Nos. (i) and (ii) of the office
Memorandum dated may 27 , 1982 aforementioned while their
juniors had been promoted because they fulfilled those
criteria and, therefore by office memorandum no. 2(50)/80-
RP-I dated February 3 1983 it was decided that such senior
employees would be promoted with effect from April 1,1982.
By another office memorandum no 2(50)/80-RP-I dated February
3 1983 it was decided that as a special one time exception,
all class III employees who as on April 1 1982, had put in
at least 18 years service in the present grade immediately
below in class III posts would be considered for promotion
by an appropriate DPC by suitable upgradation of posts and
if they were found suitable for such a promotion the
promotion will be with effect from April 1 1982 The
aforementioned office Memoranda dated may 27,1982 and
February 3,1983 will hereinafter be collectively referred to
as ’the 18 years policy’. On the basis of the 12 years
policy the Telex operators in the central and Headquarters
regions who had been placed in the cadre of AG-II as a
result of the Executive instruction regarding fitment of
existing employees and who had completed 12 years’ service
were promoted as AG-I with effect from may 17,1980.
Thereafter, on the basis of the 18 years policy the Telex
operators, who had completed 18 years service were promoted
as superintendent with effect from April 1, 1982. Regular
employees who were functioning as AG-II and who were senior
to the Telex operators in the cadre of AG-II and who were
senior to the Telex operators were however promoted as AG-I
with effect from April 1 1982,. since they were senior to
telex operators who had been promoted as AG-i earlier to
them by order dated February 2, 1984 the regular employee in
AG-II cadre did not have 12 years service to their credit
and did not fulfil the criterion laid down in the 12 years
policy. Those regular employees in AG-II cadre who were thus
promoted as AG-i with effect from may 17 1980 were along
given the benefit of the 18 years policy and were promoted
as superintendent (P & A) with effect from April 1, 1982 by
order dated February 2, 1984 for the reason that Telex
operators junior to them in the cadre of AG-II had been
promoted as Superintendent with effect from April 1,1982.
Such promotions of regular employees in AG-II cadre as AG-I
with effect from may 17 1980 and as superintendent with
effect from April 1, 1982 could not be given effect to in
the western region for the reason that the Telex operators
in the western region who were offered promotion as AG-I,
did not accept such promotion and since no Telex operator
junior to regular employees in AG-II cadre was promoted as
AG-I with effect from a date earlier than April 1, 1982 no
regular employee in AG-II cadre in the western region was
promoted as AG-I with effect from a date earlier than April
1,1982 and for the same reason they could not be promoted as
superintendent with effect from April 1, 1982.
Respondents Nos. 4 to 8 in civil Appeals No. 527 of
1987 (hereinafter referred to as ’the petitioners’) were
regular employees in AG-II cadre in the western region who
were promoted as AG-I with effect from April 1, 1982 but did
not get promotion as AG-I with effect from may 17,1980 and
as superintendent with effect from April 1,1982 as granted
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to regular employees in AG-II cadre in the central and
Headquarters regions. Since seniority in the cadre of AG-I
has a bearing on promotion to the higher post of
superintendent which is a centralised cadre the petitioners,
feeling aggrieved by their non-promotion as AG-I with effect
from may 17,1980 filed a writ petition (special civil
Application No. 4811 of 1984) in the Gujarat High Court
wherein they sought a writ order or direction directing the
commission to give retrospective promotion to them on the
post of AG-I with effect from may 17, 1980 and on the post
of superintendent (P & A) with effect from April 1, 1982 on
the same lines as applied to AG-II of central region
Headquarters region who were also promoted initially as AG-I
with effect from April 1,1982 and alternatively they prayed
for quashing of the order dated February 2,1984 for
promotion of regular employees in AG-II cadre in central and
Headquarters regions and/or adjusting the promotions of the
petitioners in accordance with the correct principle of
seniority and correct application of promotion policy to
the petitioners. The said write petition of the petitioned
has been allowed by the High Court by the impugned judgment
dated December 23,1985. The high court has held that
promotions that were granted to the regular employees in AG-
II cadre in the central and Headquarters regions were not in
accordance with law but since the persons who are likely to
be effected had not been joined as parties the relief could
only be granted as against the parties who were on record.
The High has, therefore, set aside the orders of promotion
of respondents Nos. 4, 5, 7, 8, and 9 in the writ petition
respondents Nos. 9,10,12,13 and 14 in civil Appeal No. 525
of 1987. The High court has however directed that if the
said respondents are entitled for promotion of account of
their original seniority as AG-II they will be entitled for
the promotion if available. The high court has also
restrained the commission from granting further promotion to
the then regular employees in the cadre of AG-II on April 25
1980 of the central and Headquarters regions on the basis of
their higher promotion, i.e. , being senior to the Telex
operators on that date till a consolidated list of all
regions is prepared in accordance with law and they are
found eligible for promotion in the light of the observation
made in the judgment.
R.K. Sethi and B.P. Arya were regular employees in the
cadre of AG-II in the Headquarters region. They were
promoted as AG-I with effect from may 17, 1980 and as
Superintendent (P & A ) with effect from April 1, 1982
respectively on the basis of promotions given to the Telex
operators in that region. Even though their promotions were
not quashed by the impugned judgment of the High court but
in order to give effect to the said decision the commission
has passed orders dated may 21, 1986 revoking their
promotion as AG-I with effect from may 17, 1980 and as
superintendent (P & A) with effect from April 1,1982. They
have filed civil Appeal no. 525 of 1987 to challenge the
said judgment of the high court. They have also filed writ
petition No. 870 of 1986 under Article 32 of the
constitution wherein they have challenged the correctness of
the said judgment and have prayed for quashing of the
commission on the basis of the impugned judgment of the
Gujarat High court. Civil Appeal No. 527 of 1987 has been
filled by the commission against the judgment of High court.
The High court has dealt with the matter by posing the
following two questions:-
(1) what should be the seniority of the Telex operators when
they are redesignated ?
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(2) If the Telex operators are placed below the regular
AG-II, can the regular AG-II in the central and Headquarters
region be promoted under the policies of 12 years and 18
years so as to prejudice the chances of promotion to the
petitioners ?
While Dealing with the first question the High court
has observed that if the Telex-operators are placed below
the existing regular employees it will amount to wiping out
their service completely. The high court has considered the
principles of seniority contained in annexure II to the
O.N.G.C.(Terms and conditions of Appointment and service )
Regulations 1975 (hereinafter referred to as the 1975
Regulations") more particularly clauses b and H of the said
principles. The High court has held that clause H could not
be applied and that the Telex operators must be either
continued as a separate cadre or merged with the original
cadre bu length of service in accordance with the principles
contained in clause B.
As regards the second question, the High court was of
the view that merely because the Telex operators had got the
benefit of promotion policy which was in relaxation of the
statutory regulations it could not be said that the persons
who are above the Telex operators in the seniority in the
cadre of AG-II could also get the same benefit. In view of
the High court, the employees who are not qualified under
the 12 years policy had to stand in the queue for promotion
under the statutory regulations and their seniority could
not help them and it could help them only in respect of the
vacancies which were to be filled in by regular promotion .
According to the High court the 18 years policy for
stagnated relief could not be made available to a person
who has not stagnated at all and that by resorting to this
type of promotion policy the commission had committed an
error prejudicial to the petitioners who were also borne on
the cadre of Ag-II and were aspiring for promotion to the
post of superintendent and have longer experience than the
regular employees of Central and Headquarters regions. The
High court has also observed that if the Telex operators in
the western region refused to avail promotion under the 12
years policy and under the 18 years policy the right of the
regular employees in AG-II cadre could not be whittled down
and the fortuitous circumstance that some in the way of the
rightful claimants and that if the commission intends to
give promotions to the regular employees of AG-II in other
regions, it should consider the case of the persons in the
western region also on the basis that the petitioners were
senior to the Telex operators in the lower cadre and were
entitled to further promotion in the same way as their
counter parts in other regions.
We may, at this stage refer to the relevant provisions
of the principles of seniority laid down as per Regulation
19 of the 1975 Regulations :-
"PRINCIPLES OF SENIORITY.
The following principles will be
followed for regulating the
seniority of the employees in the
oil and natural gas commission:
B. Departmental Promotees:
(i) x x x
(ii) x x x
(iii) Where promotions to a grade
are made either from more than one
grade or from the same grade
divided in to different cadres on
regional project or Directorate
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basis eligible persons shall be
placed in separate lists in order
of their inter seniority in the
respective grades or cadres.
(a) x x x x
(b) If, however the promotion is to
be made on the basis of seniority
cum-fitness i.e. seniority subject
to the rejection of unfit the
Departmental promotion committee
shall place the candidates from the
various lists based on the total
length of service rendered in that
grade or cadre and make
recommendations for promotion on
the basis of this "consolidated
list" The inter se seniority of the
candidates in their respective
lists will not be disturbed in the
"consolidated list".
H. Fixation of seniority on
absorption of employees from one
cadre to another .
The fixation criteria shall be
taken into account in fixing
seniority of employees absorbed in
a cadre other than the one to which
they belong:
(i) The commission will be free to
transfer employees from one cadre
to another temporarily on
administrative grounds , e.g.
transfer of work non availability
of suitable men.
(ii) such employees will retain
their line and seniority in the
parents cadres and will have no
right for absorption in the cadres
to which they are transferred
temporarily.
(iii) If, as a very special case
they are to be considered for
absorption in the cadres it which
they are temporarily transferred
their seniority will count only
from the date of their transfer to
the cadre in which they are
actually working (at the time of
their absorption right and
seniority of the personnel already
recruited or promoted to these
cadres; even those recruited and
promoted to these cadres on the day
the personnel from other cadres are
transferred will all rank senior to
the personnel transferred from the
other cadres".
On behalf of the commission Shri Ashwini Kumar has
urged that as a result of fitment under paragraph 5(iii) of
the Executive Instructions the cadre of Telex operators was
merged in the existing cadre of AG-II and the seniority of
Telex operators had to be fixed in accordance with paragraph
1(iii) of the Executive Instructions read with clause H(iii)
of the principles of seniority. We find considerable force
in this contention. As a result of the fitment policy
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mentained in paragraph 5(iii) of the Executive Instructions
the cadre of Telex operators had been merged in the cadre of
AG-II. The word "redesignated" in paragraph 5(iii) has to be
read with the words "two or more categories have been
merged" contained in paragraph 1 (viii) and it can only be
construed to mean that as a result of redesignation there
was merger of the cadre of Telex operators into the cadre of
AG-II. The statement in paragraph 5(iii) that the total
service rendered by the employee in the pay scale of Rs.
360-640/- and Rs. 370-700 (Rs. 430-880) will be counted for
the purpose of promotion to the pay scale of Rs. 470-880
(Rs.530-1060) only enables the Telex operators who have been
merged in the cadre of AG-II to avail the period of service
rendered bu them as Telex operators for the purpose of
promotion. But the seniority in the cadre of AG-II will be
governed by the provisions contained in paragraph 1 (viii)
which lays down the principles of fixation of inter se
seniority consequent upon merger of two categories. In
paragraph 1 (viii) it is specified that for the purposes of
promotion to the next higher scale, inter se seniority of
the imployees considered or promotion will be fixed on that
basis of length of service put in by the individual in the
respective pay scale with those in higher erstwhile scale
being treated as senior to those in the lower erstwhile
scale enbloc. This principle is in consonance with the
principle laid down in clause H(iii) of the principles of
seniority prescribed under Regulation 19 of the 1975
Regulations. The said provisions deals with the absorption
of the employees in the cadre to which they are temporarily
transferred and lays down that their seniority will be
counted only from the date their transfer to the cadre. The
merger of the cadre of the Telex operators to the cadre of
AG-II and their absorption in the said cadre. Their
seniority will therefor have to be determined in accordance
with clause H(iii). We are unable to appreciate how clause
B(iii) (b) can be made applicable. The said matter of
departmental promotees where promotions to a grade are made
either from more than one grade or from the same grade
divided into different cadres on regional project or
directorate basis. The induction of Telex Operators into the
existing cadre of AG-II within the same region did not
involve any promotion from more than one grade or from the
same grade divided into different cadres on regional project
or directorate basis. The said provision would have
application in the matter of promotion of AG-I from a
regional cadre to the post of Superintendent in a
centralised cadre. In this context it may also be mentioned
that till April 1, 1979 the pay scale of Telex operators
were lower than those of AG-II and it was only with effect
from April 1, 1979 that both are placed on the same scale.
The earlier service of the Telex operators in a lower pay
scale could not be equated with the service of regular
employee in AG-I cadre in higher pay scale. The Telex
operators were therefore rightly placed below the regular
employees in AG-II cadre at the time of merger of the cadre
of Telex operators in the cadre of AG-II. The High court in
our opinion was not right in holding that the commission had
committed an error in placing the Telex operators enbloc
below regular employees in AG-II cadre when Telex operators
were brought in the cadre of AG-II.
Once it is held that Telex operators have been rightly
placed enbloc below regular employees in AG-II cadre as
result of the merger of the said cadre in the cadre of AG-II
on April 25, 1980 regular employees in AG-II cadre who were
senior to the Telex operators could rightly feel aggrieved
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if they are denied promotion while their juniors were
promoted as AG-I. The "nest below rule" in service
jurisprudence seeks to ensure that if a junior employees is
given promotion without considering his senior then the
senior then the senior employee can claim the right to be
considered for such promotion with effect from the date on
which the junior was so promoted. The action if the
commission in extending the benefit of promotion toe regular
employees in AG-II cadre as AG-I. with effect from the date
the Telex Operators were so promoted on account of the 12
years policy being in consonance with this principle cannot
therefore held to be arbitrary of unreasonable. So also the
further promotion from AG-I to the post of superintendent (P
& A) under the 18 years policy. We are unable to endorse the
view of the High court that since regular employees in AG-II
cadre did not fulfil the criteria laid down in those
policies they could not be extended the benefit of the said
policies. The High court has failed to note that when it was
found that certain senior employees were left out of
consideration for promotion because they did not fulfil the
conditions regarding 18 years service contained in the
office memorandum dated may 27, 1982 the commission modified
the policy contained in the said office memorandum by
issuing office Memorandum dated February 3, 1983 whereby it
was decided that such senior employees would be considered
for promotion and if found suitable would be promoted with
effect from April 1, 1982. In view of the said modification
in the 18 years policy it cannot be said that regular
employees in AG-II cadre could not be considered for
promotion since they did not fulfil the criterion of 18
years service.
We also find it difficult to appreciate the view of the
High Court that even if the Telex operators who had been
offered promotion as AG-I and further promotion as
superintendent in the western region had refused to avail
the same regular employees in the AG-II cadre in that region
including the petitioners who were senior to them in the
western region should have been considered for such
promotion and the failure to do so would result in dental
of their rights. Regular employees in AG-II cadre in the
western region could claim promotion as AG-I from a date
earlier than April 1, 1982 only if a Telex operator junior
to them had been promoted as AG-I from a date earlier than
April 1,1982 the petitioners could not claim a right to be
promoted with effect from an earlier date. So also in the
matter of promotion from AG-I to the post of superintendent
because the right to be promoted with effect from April
1,1982 could accrue to them only if a Telex operator junior
to them had been so promoted from that date. Since no Telex
operator junior to regular employee in AG-II cadre in the
western region was so promoted the said advantage could not
be extended to the petitioners we are unable to agree with
the view of the High court that if the petitioners cannot be
given retrospective promotion as AG-I with effect from may
17, 1980 and as superintendent with effect from April 1,1982
the grant of such promotion to regular employees in AG-II
cadre in the central and Headquarters regions was also
impermissible in law. The said promotions were given to
regular employees in AG-II cadre in the central and
headquarters regions in view of Telex Operators junior to
them having been promoted in those regions. As indicated
earlier there was no infirmity in the said action of the
commission.
In this context it may be mentioned that during the
course of his arguments Shri Venkataramani the learned
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counsel appearing for the petitioners stated that in the
western region the principle of " next below rule" was not
followed and that some telex operators who had accepted
promotions under the 12 years policy were granted promotion
while regular employees in AG-II cadre who were senior to
them have not been given promotion from the date from which
such Telex operators were so promoted. Although there is
nothing on the record to support the said submission of the
learned counsel by order dated December 10 1996, we
permitted the petitioners to file an affidavit in this
regard. An affidavit in this regard. An affidavit dated
January 6 1997 has been filed by Ram Chand Talreja on behalf
of the petitioners In the said affidavit it is stated that
by order dated December 28 1983 Telex operators of western
region were promoted as AG-I with effect from January 1
1983 and that the Telex Operators of western region have
raised a dispute seeking promotion as AG-I with effect from
may 17 1980 like their counter parts in the central and
headquarters regions and that the conciliation proceeding
ended in failure and thereafter they have a filed a writ
petition No. 2353 of 1996 in the Gujarat High court which is
still pending. This shows that no Telex operators in western
region was promoted as AG-i prior to April 1 1982 and the
question whether they are entitled to be promoted with
effect from may 17 1980 is pending consideration before the
Gujarat High court in writ petition No.2353 of 1996. In case
the Telex operators of western region succeed in their writ
Petition that is pending in the Gujarat High Court and are
promoted as AG-i with effect from may 171980 or a date
earlier than April 1 1982 the petitioners as well as other
regular employees in AG-II cadre in the western region can
claim promotion as AG-I with effect from the same date and
on that basis they can also claim promotion to higher posts.
The High Court has expressed the view that the cadres
in the regions should have been integrated in a unified
cadre and the seniority should have been assigned to the
Telex operators in the integrated cadre and has directed
that a consolidated list be prepared of all regions and
promotions should be made on that basis. In other words the
High court has directed that AG-II cadre could be converted
from a regional cadre to centralised cadre. Such a direction
could not be given be the High court. It is for the
commission to decide how to organise its administrative
services in order to achieve efficiency in the
administration. The Commission has taken a decision that
cadres up to AG-I should be maintained on regional level.
There is nothing to show that the said decision of the
commission suffers from the vice of arbitrariness. In the
circumstances the High court could not give a direction for
the integration of the cadres in the regions and for
preparing a consolidated list of all regions.
For the reasons aforementioned we are unable to uphold
the impugned judgment of the High court and the same is
liable to be set aside consequently the orders dated may 21
1986 passed by the commission revoking the promotions
granted to the appellants in civil Appeal No. 525 of 1987 on
the basis of the impugned judgment of the High court are
also liable to be set aside.
In the result civil Appeals Nos. 525 of 1987 and 527 of
1987 are allowed the judgment of the Gujarat High court
dated December 23 1985 in special civil Application No. 4811
of 1984 is set aside and the said special civil Application
is dismissed. Writ petition No. 870 of 1986 is also allowed
and the orders dated may 21 1986 are set aside. In the
circumstances there is no order as to costs.
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