Reserve Bank of India, Bombay Vs. C.T.
Dighe & Ors [1981] INSC 128 (27 July 1981)
GUPTA, A.C.
GUPTA, A.C.
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
CITATION: 1981 AIR 1699 1982 SCR (1) 107 1981
SCC (3) 545 1981 SCALE (3)1105
CITATOR INFO :
R 1986 SC1830 (39)
ACT:
Labour dispute-Changes made by the employer
in the existing scheme of promotion during the pendency of a reference before
the Tribunal-Whether such a change contravened the provisions of section 33 (1)
(a) of the Industrial Disputes Act, 1947 giving rise to complaint will depend
on the nexus of the changes made and the nature of the reference pending before
the Tribunal.
HEADNOTE:
On May 13, 1972 the Reserve Bank of India, Bombay
issued Administration Circular No. 8 introducing a revised scheme for promotion
of employees as staff officers Grade A.
Feeling that the aforesaid Circular adversely
affected them, the stenographers filed a writ petition in the Andhra Pradesh
High Court challenging its validity, Their grievance was that by the said
circular No. 8 they were placed en-bloc below the clerks which made their
chances of promotion illusory. On March 5, 1973 the Andhra Pradesh High Court
dismissed the writ petition, but made certain recommendations to avoid
frustration and dissatisfaction among the stenographers. In 1973 charters of
demands were submitted to the Reserve Bank of India by the employees'
associations. On January 23, 1976 the Bank issued Administration Circular No. 5
modifying Circular No. 8 to remedy the alleged adverse effect suffered by
stenographers as a result of Circular No. 8.
On June 16, 1979, the Central Government in
exercise of powers conferred by section 7B of the Industrial Disputes Act, 1947
constituted a National Industrial Tribunal with head-quarters at Bombay and
referred to it for adjudication an industrial dispute existing between the
Reserve Bank of India and their Class III workmen. The dispute as described in
the Schedule to the order of reference related to "specific matters..
...... ....pertaining to Class-III workmen" enumerated in the Schedule.
The Schedule listed 35 matters in all, item No. 12 of which is described as
"promotion". During the pendency of the reference, on October 10,
1979 the Reserve Bank of India issued Administration Circular No. 6 introducing
certain change in the scheme of promotion set out in circular No. 8 by relaxing
certain conditions of eligibility for the personal assistants, stenographers,
tellers and the clerical staff.
Feeling aggrieved, some clerks (Grade I) who
were empanelled for promotion to the post of Staff Officer Grade A after
passing the test, filed two complaints before the National Tribunal under
section 33A of the Industrial Dispute Act alleging (i) that as a result of
Circular No. 6 many who could not have been considered for promotion in
preference to the complainants had Circular No. 8 been in force, would now be
entitled to a higher preference, 108 and (ii) that the alterations made during
the pendency of the reference before the National Tribunal amounted to changing
their conditions of service to their prejudice in violation of section 33 (1)
(a) of the Industrial Disputes Act inasmuch as their chances of promotion would
recede. The National Tribunal by its award dated September 3, 1980 disposed of
these two complaints holding that the Reserve Bank of India had changed to the
prejudice of the complainants their conditions of service by modifying the
existing scheme of promotion during the pendency of a reference before the
Tribunal and thereby contravened the provisions of section 33 (1) (a). Hence
the appeals by special leave.
Allowing the appeals and dismissing the
complaints, the Court
HELD: 1: 1. The order of reference did not
require the Tribunal to adjudicate on all possible matters relating to
promotion. The Tribunal should have defined the area of the dispute referred to
it for adjudication before proceeding to consider whether the promotional
scheme set out in Circular No. 6 could be said to be connected with that
dispute. [117 G-H] 1 : 2. Item No. 12 of the Schedule annexed to the order of
reference is described as "promotion". Demand No. 19 in the Charter
of Demands presented by the All India Reserve Bank Employees Association
mentions "promotional avenues", but the matters specified under the
head "promotional avenues" relate to the creation of more promotional
posts and the upgrading of certain posts. Demand No. 19 does not thus relate to
the promotional scheme in question. Demand No. 27 of the Charter of Demands
submitted by the All India Reserve Bank Workers Organisation is described as
"promotional policy" and all that is said in the charter of demands
is that the matters "should be discussed and finalised on the basis of
prerequisites of promotional policy submitted in 1969". Demand No. 27
could, therefore, have no connection with the promotional scheme set out in
Circular No. 6 issued in 1979. [116 C-E] 1: 3. Under section 10 (1A) the
Central Government could refer to the National Tribunal an existing or an
apprehended dispute; the order or reference in this case shows that it was not
an apprehended dispute but an industrial dispute that "exists between the
employers in relation to the Reserve Bank of India and their class III workmen
in respect of the matters specified in the schedule" annexed to the order
which was referred to the Tribunal for adjudication. As section 10 (1A)
expressly says, any matter appearing to be connected or relevant to the existing
or apprehended dispute can also be referred to the National Tribunal for
adjudication, but obviously unless it is determined what the dispute was that
has been referred for adjudication, it is not possible to say whether a
particular matter is connected with it. [117 C-E] 2: 1. What circular No. 6 did
was to relax for stenographers and personal assistants the conditions they had
to satisfy to be able to sit for the test. It they passed the test, they would
get into the panel along with employees belonging to the clerical cadre who
also had passed the test. Vacancies in the posts of staff officer Grade A are
filled by recruiting employees from the panel.
The panel is a permanent one. Alterations of
the conditions of the eligibility governing employees belonging to a particular
cadre can amount to changing the conditions of service of employees who
belonged another cadre, assuming for the present 109 that the said conditions
were conditions of service. The changes introduced in respect of the
stenographers and personal assistants may have an impact on the promotional
prospects of employees from another cadre who are already in the panel or even
of those who were expecting to be included in the panel, but this would not
amount to changing their conditions of service. The conditions of service of an
employee cannot include an implied right to prevent the employer from altering
the conditions of service of other employees. In a given case such alteration
may be inequitable, and a way may be found in the Industrial Disputes Act to
redress the grievance of the employees affected thereby. [118 B-F] 2: 2. It was
competent for the Bank to introduce a combined promotional scheme for the
clerical staff, stenographers, and personal assistants and the Bank was not
bound to wait until all employees belonging to the clerical cadre whose names
were already in the panel when Circular No. 6 was introduced had been promoted
as staff officers Grade A. There was no such assurance given by the Bank when
it introduced Circular No. 8. The Bank did not undertake that it would not take
any step to change the conditions of the stenographers and the personal
assistants were required to satisfy to be able to appear in the test until all
the clerks already empanelled were promoted. Circular No. 6 cannot therefore be
assailed on the ground that it was introduced when some employees belonging to
the clerical grade whose names were already in the panel remained to be
promoted. [121 B-E] Being in the panel in any particular year does not ensure a
fixed place in the panel for an employee until he is promoted. The right the
complainants now claim is based on the change in the conditions of service of
the stenographers made to their detriment earlier. [121 E-F] Reserve Bank of
India v. N.C. Paliwal [1977] 1 SCR 377, followed.
3. It is well settled that a rule which
affects the promotion of a person relates to his condition of service but this
is not so if what is affected is a chance of promotion only. Though a right to
be considered for promotion is a condition of service, mere chances of
promotion are not and that a rule which merely affects chances of promotion cannot
be regarded as varying a condition of service. [121 G-H, 122 A, C-D] The fact
that as a result of the changes made by Circular No. 6 the complainants lost a
few places in the panel affects their chances of promotion but not the right to
be considered for promotion. That being so, it cannot be said that the
alterations made by Circular No. 6 amount to changing the conditions of service
of the complainants; the grievance made by the complainants does not therefore
appear to have any basis. [122 G-H, 123 A-B] Mohd. Shujat Ali and others etc.
v. Union of India & Ors. etc., [1975] 1 SCR 449; State of Mysore v. G.B. Purohit,
C.A. 2281 of 1965 decided on 25-1-1967 (S.C.) unreported, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeals
No. 2815 & 2816 of 1980.
110 Appeals by special leave from the Award
dated the 3rd September, 1980 of the National Industrial Tribunal at Bombay in
Complaint No. NTB 2 and NTB 3 of 1980 arising out of Reference No. NTB 1 of
1979.
WITH CIVIL APPEAL NO. 2607 of 1980 Appeal by
special leave from the Award dated the 3rd Sept. 1980 passed by the National
Industrial Tribunal, Bombay in Complaints Nos. NTB 2 & 3 of 1980 in
Reference No. NTB 1 of 1979.
AND CIVIL APPEAL NO. 3150 of 1980 Appeal by
Special leave from the Award dated 3rd September, 1980 passed by the National
Industrial Tribunal, Bombay in Complaints Nos. NTB 2 & 3 of 1980 in
Reference No. NTB 1 of 1979.
F.S. Nariman R.A. Shroff, H.S. Parihar and
Shradul S. Shroff, for the Appellant in CAS 2815-16/80, for Respondent No. 2 in
CA. 2607/80 & for Respondent No. 1 in C.A. 3150/80.
C. N. Murthy and P. P. Mittal for Respondent
No. 1 in CA. 2815-16/80.
M.K. Ramamurthy, P.S. Khera and S.K. Dawar,
for RR 2-70 in CAS. 2815-16/80, for Respondent No. 3 in CA 2607/80 & for
Respondent Nos. 3 & 40-67 in CA. 3150/80.
K.K. Venugopal, C.N. Murthy and P.P. Mittal
1980 for the Appellants.
A.K. Sen, A.K. Gupta, Brij Bhushan, N.P.
Mahendra and Miss Renu Gupta, for the Appellants in CA. 3150/80.
S.K. Bisaria for RR. 2-4 and 6-39 in CA. 3150/80.
The Judgment of the Court was delivered by
GUPTA, J. These are four appeals by special leave from an Award of the National
Industrial Tribunal, Bombay, made on September 3, 1980 disposing of two
complaints under section 33-A of the Industrial Disputes Act, 1947 holding that
the employer, 111 Reserve Bank of India, Bombay had changed to the prejudice of
the complainants their conditions of service by modifying the existing scheme
of promotion during the pendency of a reference before the Tribunal and had
thereby contravened the provisions of section 33 (1) (a) of the Act. Civil
Appeals 2815 and 2816 of 1980 have been preferred by the Reserve Bank of India,
Bombay. In civil appeal 2607 of 1980 the appellants are some of the
stenographers employed in the Bombay office of the Reserve Bank of India. The
four appellants in civil appeal 3150 of 1980 are also employees of the Reserve
Bank of India, Bombay, one of whom is a clerk grade I and the other three are
officiating as staff officers grade A. How the appellants in Civil Appeals 2607
and 3150 are affected by the Award will appear from the facts stated below.
The facts leading to the making of the
complaints under section 33-A are as follows. On June 16, 1979 the Government
of India, Ministry of Labour, in exercise of powers conferred by section 7B of
the Industrial Disputes Act, 1947 constituted a National Industrial Tribunal
with headquarters at Bombay and referred to it for adjudication an industrial
dispute existing between the Reserve Bank of India and their class III workmen.
The dispute as described in the schedule to the order of reference related to
"specific matters pertaining to class III workmen" enumerated in the
schedule.
The schedule listed 35 matters in all, item
No. 12 of which is described as 'Promotion'.
On May 13, 1972 appellant Reserve Bank of
India, Bombay, had issued Administration Circular No. 8 introducing a revised
scheme for promotion of employees as Staff Officers Grade A. This Circular No.
8 prescribed as a condition for promotion passing a test consisting of three
papers on the following subjects: noting, drafting, precis & essay writing,
(ii) Reserve Bank of India Act, and (iii) functions and working of the Reserve
Bank of India.
Candidates with less than 15 years' service
in class III cadre at the time of the test and who had not passed in the
subjects 'Practice and Law of Banking' and 'Book-keeping and Accounts' in Part
I of the Institute of Bankers Examination were to appear and pass in an extra
paper divided into two parts on the aforesaid two subjects. Candidates who had
passed in either or both these subjects in part I of the Institute of Bankers
Examination were exempted from appearing in the corresponding part or both
parts of this paper. The circular further provided that an estimate of the
vacancies anticipated to occur in each office during a 'panel year' i. e. from
September 1 to 112 August 31, was to be declared by the Bank in advance and the
number of candidates in that office to be called for the test to fill the
vacancies in that office was not to exceed twice the number of such vacancies.
A candidate who had been unsuccessful in more than one test was to be treated
as a repeater and the number of such repeaters sitting for a test would be in
addition to the aforesaid number of candidates.
An employee in the substantive rank of
teller, stenographer grade II, stenographer grade I or personal assistant was
eligible to appear in the test under this circular provided he had put in a
minimum period of 15 years' service in class III cadre. A further condition
relating to these three types of employees, tellers, stenographers and personal
assistants, was that they could be called to appear in the test only if a
clerical candidate of the same length of service found a place within twice the
number in the combined seniority list. The said three types of employees were
required to pass both parts I and II of the Institute of Bankers examination,
or if they were graduates, in part I only. Those of them who would pass the
test were to be posted on the clerical desk for one year for acquiring
experience and thereafter they were to be absorbed in the next list to be
prepared on the result of the test succeeding the one in which they had passed.
They were to rank in seniority below the juniormost successful candidate in the
test in which they qualified. A further requirement was that the stenographers
and personal assistants should have worked for at least 5 years as such; this
condition was thought necessary because it was possible that some of them may
have been employed as typists for some time.
Feeling that the aforesaid circular No. 8
adversely affected them, the Stenographers filed a writ petition in the Andhra
Pradesh High Court challenging the validity of the circular. The main grievance
seems to have been that by the said Circular No. 8 they were placed en bloc
below the clerks which made the chances of promotion so far as they were
concerned illusory. The Andhra Pradesh High Court dismissed the writ petition
with the following observations:
".....the clerks and the stenographers
who have passed at the qualifying written examination do not acquire any right
to promotion by merely being put in a panel. As observed by the Supreme Court
in the case cited in Gangaram v. Union of India, A.I.R. 1970 S.C.
2178, the effect of passing at the qualifying
examination is only 113 to remove a hurdle in their way for further promotions
to the posts of staff officers, grade II. In the matter of actual promotion
there is nothing illegal in the department promoting the clerks as a group in
the first instance and postponing the promotions of the stenographers to a
later stage.....It is urged on behalf of the petitioners that previous to the
new scheme, the stenographers were placed at the top of the clerks en bloc and
that they have now been brought to the bottom.
This argument is based upon a misconception that
the panel creates any rights. Hence nothing turns upon the place fixed in the
panel".
The High Court however made certain
recommendations "to avoid frustration and dissatisfaction among the
stenographers". It was suggested that "the Reserve Bank may frame
suitable rules for fixing the seniority among the staff officers, grade II, on
some rational and equitable principles, i.e., by length of service or marks
obtained at the qualifying examination or by adopting a reasonable ratio
between the two classes, so that the chances of further promotions for the
stenographers may not be illusory". This judgment was delivered on March
5,1973. In the months of March and November, 1973 charters of demand were
submitted respectively by the All India Reserve Bank Workers Organisation and
the All India Reserve Bank Employees Association. The latter Association is the
one which is recognised by the Bank. On January 23, 1976 by Administration
Circular No. 5 the Bank modified Circular No. 8 to remedy the alleged adverse effect
suffered by the stenographers as a result of Circular No. 8. On June 16, 1979
the order referring to the National Tribunal at Bombay the dispute between the
Bank and the class III workmen was made. The All India Reserve Bank Employees
Association filed a writ petition in the Calcutta High Court in July 1979
challenging this order of reference. The High Court at Calcutta issued an
injunction restraining the National Tribunal from adjudicating on the reference
until the writ petition was disposed of. A settlement was thereafter reached
between the Bank and the All India Reserve Bank Employees Association and the
injunction was vacated. On November 21, 1979 the Bank and the Association
applied to the Tribunal jointly for making an award on the basis of the
settlement.
In the meantime on October, 10, 1979 the
impugned Circular No. 6 was issued. The following changes were introduced by
Circular 114 No. 6 in the scheme of promotion set out in Circular No. 8
relating to personal assistants, stenographers, tellers and the clerical staff:
(1) The eligibility period so far as these
three types are concerned was reduced from 15 years to 10 years service.
(2) The condition requiring stenographers and
personal assistants to put in 5 years service as such was dispensed with.
(3) Their period of training on clerical desk
was reduced from 1 year to six months.
(4) They were to be fitted according to the
length of their service in the panel for the year in which they passed the test
and not in the next panel as before.
(5) Those who are graduates among these three
groups, even if they had not passed in all the subjects in part I of Indian
Institute of Bankers examination, would be eligible for exemption from
appearing in the additional paper on 'Practice and Law of Banking' and
'Book-keeping and accounts' if they had passed in these two subjects in the
said examination.
(6) This benefit of exemption which was
available to the clerical staff of 15 years' standing previously was extended
to those of them who had put in only 10 years service.
The two complaints (complaint Nos. 2 and 3 of
1980) on which the impugned award has been made were filed respectively on July
22, 1980 and August 1, 1980. The complainants who were clerks grade I had
passed the test in the panel year 1978-79 and were empanelled for promotion to
the post of staff officer grade A. The grievance made in the two complaints is
that the result of the changes introduced in the promotional scheme by Circular
No. 6 relaxing for the stenographers and personal assistants the conditions
they were required to satisfy to be able to sit for the test and permitting
them to be fitted according to the length of their service in the panel for the
year in which they had passed the test, was that many who could not have been
considered for promotion in preference to the complainants had circular No. 8
been in force, would 115 now be entitled to a higher preference. According to
the complainants the alterations made during the pendency of the reference
before the National Tribunal amounted to changing their conditions of service
to their prejudice in violation of section 33 (1) (a) of the Industrial
Disputes Act. The complainants in complaint No. 2 of 1980 stated that if the
alterations introduced by Circular No. 6 were allowed to continue "the
chances of promotion would become bleak for them'; complainants in complaint
No. 3 of 1980 also expressed a similar apprehension that as a result of the changes
introduced "their chances of promotion would recede further and
further".
The appellants in civil appeal 2607 of 1980
who are stenographers acquired eligibility to appear in the qualifying test
because of the modifications introduced in the existing scheme by Circular No.
6. All the four appellants in civil appeal 3150 of 1980 are from clerical
cadre, three of whom are officiating as staff officers grade A; they are also
beneficiaries of the relaxations made in the existing scheme by circular No. 6.
The appellants in both these appeals are obviously affected by the Award
allowing the complaints and declaring circular No. 6 as invalid.
Section 33 (1) (a) prohibits the employer
during the pendency of a proceeding in respect of an industrial dispute before
a Labour Court or Tribunal or National Tribunal from altering to the prejudice
of the workmen concerned in the dispute their existing conditions of service.
Sub-section (2) of section 33, however, permits the employer to alter the
conditions of service in regard to any matter not connected with the dispute in
accordance with the standing orders applicable to the workman concerned or in
accordance with the terms of the contract between the employer and the workman.
The right given to the employer under sub-section (2) is subject to the
condition laid down in sub-section (3) of section 33 that the right can be
exercised only with the express permission in writing of the authority before
which the proceeding is pending. Section 33-A of the Act provides that where an
employer contravenes the provisions of section 33 during the pendency of
proceedings before a Labour Court, Tribunal or National Tribunal any employee
aggrieved by such contravention may make complaint in writing to such Labour
Court, Tribunal or National Tribunal, and on receipt of such complaint the
Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint
as if it were a dispute referred to it or pending before it in accordance with
the provisions of the Act and submit its award to the appropriate government.
Section 31 (1) of the Act provides for penalty for contravention of the
provisions of section 33; an 116 employer found guilty of such contravention is
punishable with imprisonment for a term which may extend to six months, or with
fine which may extend to one thousand rupees or with both.
In this case circular No. 6 was not
introduced with the permission of the National Tribunal, Bombay, before which
the reference was pending; to determine whether thereby the provisions of section
33 have been contravened, the question that requires to be answered is whether
the alterations introduced by Circular No. 6 are connected with the dispute
pending in reference before the National Tribunal. This again leads to the
question, what was the dispute that was referred to the National Tribunal for
adjudication? According to the complainants their promotional prospects were
adversely affected by the impugned circular. Item 12 of the schedule annexed to
the order of reference is described as 'Promotion'. Demand No. 19 in the
charter of demands presented by the All India Reserve Bank Employees
Association mentions 'Promotional avenues' but, as the National Tribunal itself
noticed, the matters specified under the head 'promotional avenues' relate to
the creation of more promotional posts and the upgrading of certain posts.
Demand No. 19 does not thus relate to the promotional scheme in question. The
impugned award also refers to demand No. 27 of the charter of demands submitted
by the All India Reserve Bank Workers organisation. Demand No. 27 is described
as 'Promotional Policy' and all that is said in the charter of demands under
this head is that the matter "should be discussed and finalised on the
basis of pre- requisites of promotional policy submitted in 1969". It is
not therefore clear how demand No. 27 could have a connection with the
promotional scheme set out in circular No. 6 issued in 1979. The award does not
refer to the statements of claim filed on behalf of the workmen; it is likely
that because of the order of injunction issued by the Calcutta High Court to
which we have earlier referred, the unions representing the workmen were not
able to file their statements of claim before the National Tribunal disposed of
the complaints under section 33A. The Tribunal however held:
"Industrial Disputes Act contemplates
reference in wider terms than the actual item in dispute. Section 10 (IA) of
the Industrial Disputes Act which provides for the appointment of the National
Tribunal shows that the Central Government could form its opinion not only on
the existing dispute but also on the apprehended dispute and the order of
reference can cover not only the dispute but any matter appearing to be
connected with or relevant to the dispute.
In view of it, it cannot be said that when
the item 'Promotion' has been referred to 117 the Tribunal, it has the
limitation of remaining in the frame work of the demand.. the Tribunal has the
jurisdiction to decide on the natural meaning of the words used in the item of
reference.. The item seems to have been deliberately stated in terms.. it looks
to be referring to the process involving promotions." Having said so the
Tribunal added:
"The extent of such process will have to
be carefully defined because there is no dispute with the axiomatic principle
that promotion is a matter in the discretion of the employer".
It is difficult to follow the steps of
reasoning in the extract from the award quoted above; it is also not clear how
the view expressed therein helps in ascertaining what was the dispute referred
to the Tribunal for adjudication.
No one can deny that under section 10 (IA)
the Central Government could refer to the National Tribunal an existing or an
apprehended dispute; the order or reference in this case however shows that it
was not an apprehended dispute but an industrial dispute that "exists
between the employers in relation to the Reserve Bank of India and their class
III workmen in respect of the matters specified in the schedule" annexed
to the order which was referred to the Tribunal for adjudication. As section 10
(IA) expressly says, any matter appearing to be connected or relevant to the
existing or apprehended dispute can also be referred to the National Tribunal
for adjudication, but obviously unless it is determined what the dispute was
that has been referred for adjudication, it is not possible to say whether a
particular matter is connected with it. The Tribunal thought it unjust to
restrict the meaning of the word 'promotion' to what was suggested by the
charters of demand and decided to give it its "natural meaning" which
according to the Tribunal includes "the process involving promotion".
The question however remains how did the Tribunal satisfy itself that when by
the order of reference a specific matter, namely, 'promotion' was referred to
it for adjudication, it was implied that the word should be given a
"natural meaning" in the sense in which the Tribunal understood it.
We do not think it reasonable to suppose that the order of reference required
the Tribunal to adjudicate on all possible matters relating to promotion. We
therefore accept the contention of the appellants that the Tribunal should have
defined the area of the dispute referred to it for adjudication before
proceeding to consider whether the promotional scheme set out in Circular No. 6
could be said to be connected with that dispute.
118 Having reached this conclusion we should
have sent the matter back to the National Tribunal for ascertaining the scope
of the dispute referred to it for adjudication, if the assumption were correct
that the alterations in the promotional scheme introduced by Circular No. 6
amounted to changing the conditions of service of the complainants; if not,
remitting the matter to the Tribunal will be unnecessary. What Circular No. 6
did was to relax for stenographers and personal assistants the conditions they
had to satisfy to be able to sit for the test. If they passed the test, they
would get into the penal along with employees belonging to the clerical cadre
who also had passed the test. Vacancies in the post of staff officer Grade A
are filled by recruiting employees from the panel.
The panel, it appears from the award, is a
permanent one.
How those who come out successful in the test
are to be fitted in the panel has been stated earlier. The panel is made up of
employees belonging to different cadres. It is difficult to see how alteration
of the conditions of eligibility governing employees belonging to a particular
cadre can amount to changing the conditions of service of employees who
belonged to another cadre, assuming for the present that the said conditions
were conditions of service.
The changes introduced in respect of the
stenographers and personal assistants may have an impact on the promotional
prospects of employees from another cadre who are already in the panel or even
of those who were expecting to be included in the panel, but it is not possible
to agree that this would amount to changing their conditions of service. It is
difficult to think of the conditions of service of an employee as including an
implied right to prevent the employer from altering the conditions of service
of other employees. In a given case such alteration may be inequitable, and a
way may be found in the Industrial Disputes Act to redress the grievance of the
employees affected thereby, but in this case the question is whether if amount
to altering the condition of service of the complainants. In Reserve Bank of
India v. N.C. Paliwal this Court upheld the validity of the combined seniority
scheme introduced by the Reserve Bank for the clerical staff. The first
paragraph of the head note to the report summarizes the facts on which
challenge to the scheme was based:
"At every centre of the Reserve Bank of
India there were five departments, the General Department and four Specialised
Departments. There was a separate 119 seniority list for the employees in each
Department at each centre and confirmation and promotion of employees was only
in the vacancies arising within their Department at each centre.
There were two grades of clerks in each
Department, namely, Grade I and Grade II. The pay scales of Grade I and Grade
II clerks in all the departments were the same and their conditions of service
were also identical. There was automatic promotion from Grade II to Grade I and
when a clerk from Grade II was promoted to officiate in Grade I, he got an
additional officiating allowance of Rs. 25/- per month. There were also several
categories of non-clerical posts in the General as well as Specialised
Departments, and their pay scale was the same as that of Grade II clerks. In
view of expanding activities in the Specialised Departments, there were greater
opportunities for confirmation and promotion for employees in the Specialised
Departments than in the General Department. This gave rise to dissatisfaction
amongst employees in the General Department and they claimed equal
opportunities by having a combined seniority list for all the clerks for confirmation
and promotion. The Reserve Bank, sought to justify the separate seniority lists
on the ground that the work in each department was of a special nature and
inter transferability was undesirable and hard to achieve. As a result of the
recommendation of the National Tribunal. however, the Reserve Bank introduced
the Optee Scheme of 1965 as a first step towards equalization of opportunities.
Under the scheme, the option to go over to the Specialised Departments was
confined to confirmed Grade II clerks and officiating Grade I clerks in the
General Department. If he exercised the option, he was eligible to be selected.
If he was selected. he would be entitled to be absorbed only as Grade II clerk
in one of the Specialised Departments with the result that if he was an
officiating Grade I clerk in the General Department at the time of the exercise
of the option, he would lose the benefit of officiation in Grade I in the
General Department as also the monetary benefit of Rs. 25/-. His seniority in
the cadre of Grade II clerks in the Specialised Department in which he was
absorbed would be deter- 120 mined on the basis of his length of service
calculated from the date of his recruitment if he was a graduate when he joined
service, or from the date of his graduation if he became a graduate whilst in
service.
It was argued in Paliwal's case that the
combined list was invalid because it discriminated against the petitioners
vis-a-vis other grade II clerks who had opted under the optee Scheme of 1965.
This Court held:
"The contention of the petitioners was
that some of the Grade II clerks who had opted under the optee Scheme of 1965
were promoted as Grade I Clerks, while the petitioners continued as Grade II
Clerks and before their turn for promotion could arrive, the Combined Seniority
Scheme was brought into force and that prejudicially affected their promotional
opportunities and thus brought about unjust discrimination between persons
belonging to the same class. This contention has no force and must be rejected.
We have already discussed and shown that it was competent to the Reserve Bank
to introduce the Combined Seniority Scheme for the purpose of integrating the
clerical staff in all the departments and the Reserve Bank was not bound to
wait until all the transferee Grade II Clerks under the optee Scheme of 1965
were promoted as Grade I Clerks in their respective Specialised Departments.
There was no such assurance given by the Reserve Bank when it introduced the
optee Scheme of 1965. What it did was merely to equalise the opportunities of
Grade II Clerks in the General Departments with those of Grade II Clerks in the
Specialised Departments.
The Reserve Bank did not undertake that it
will not take any steps for bringing about total integration of the Clerical services
until all the transferee Grade II Clerks were promoted. The Reserve Bank was
entitled to introduce the Combined Seniority Scheme at any time it thought fit
and the validity of the Combined Seniority Scheme cannot be assailed on the
ground that it was introduced at a time when some of the transferee Grade II
Clerks still remained to be promoted and was discriminatory 121 against them.
It may be that some transferee Grade II Clerks had already obtained promotion
as Grade I Clerks by the time the Combined Seniority Scheme was introduced,
while others like the petitioners had not. But that cannot be helped. It is all
part of the incidence of service and in law, no grievance can be made against
it." These observations in Paliwal's case are equally applicable to the
case before us. It was competent for the Bank to introduce a combined
promotional scheme for the clerical staff, stenographers, and personal
assistants and the Bank was not bound to wait until all employees belonging to
the clerical cadre whose names were already in the panel when circular No. 6
was introduced had been promoted as staff officers Grade A. There was no such
assurance given by the Bank when it introduced circular No. 8 on which the
complainants rely. The Bank did not undertake that it would not take any step
to change the conditions the stenographers and the personal assistants were
required to satisfy to be able to appear in the test until all the clerks
already empanelled were promoted. Circular No. 6 cannot therefore be assailed on
the ground that it was introduced when some employees belonging to the clerical
grade whose names were already in the panel remained to be promoted. That
cannot be helped, and, as observed in Paliwal's case, "it is all part of
the incidence of service and in law no grievance can be made against it".
Being in the panel in any particular year does not ensure a fixed place in the
panel for an employee until he is promoted. It may be recalled that in 1964 and
again by circular No. 8 in 1972 the stenographers conditions of service were
altered to their prejudice. The right the complainants now claim is based on
the change in the conditions of service of the stenographers made to their
detriment earlier.
The grievance of the complainants really
relates to the changes affecting their chances of promotion. We have earlier
quoted from the charters of demand to show that the complainants themselves
looked upon the alterations made by circular No. 6 as affecting their
"chances of promotion". It is well settled that a rule which affects
the promotion of a person relates to his condition of service but this is not
so if what is affected is a chance of 122 promotion only. This Court in Mohd.
Shujat Ali and others etc. v. Union of India & Ors. etc. held:
"But when we speak of a right to be
considered for promotion, we must not confuse it with mere chance of
promotion-the latter would certainly not be a condition of service...that
though a right to be considered for promotion is a condition of service, mere
chances of promotion are not." In Shujat Ali's case the respondents went
down in seniority and it was urged that this affected their chances of
promotion. In Shujat Ali reference was made to earlier decision of this Court,
State of Mysore v. G.B. Purohit were also it was held that though a right to be
considered for promotion is a condition of service, mere chances of promotion
are not and that a rule which merely affects chances of promotion cannot be
regarded as varying a condition of service. The facts of Purohit's case and
what was decided in that case have been summarized in Shujat Ali's case as
follows:
"What happened in State of Mysore v.
G.B. Purohit was that the districtwise seniority of Sanitary Inspectors was
changed to Statewise seniority and as a result of this change, the respondents
went down in seniority and became very junior. This, it was urged, affected
their chances of promotion which were protected...This contention was negatived
and Wanchoo J., as he then was, speaking on behalf of this Court observed: It
is said on behalf of the respondents that as their chances of promotion have
been affected their conditions of service have been changed to their
disadvantage.
We see no force in this argument because
chances of promotion are not conditions of service." The fact that as a
result of the changes made by circular No. 6 the complainants lost a few places
in the panel affects their chances of promotion but not the right to be
considered for promotion.
123 that being so, it cannot be said that the
alterations made by circular No. 6 amounts to changing the conditions of
service of the complainants; the grievance made by the complainants does not
therefore appear to have any basis.
The appeals are accordingly allowed and the
complaints dismissed, in the circumstances of the case the parties will bear
their own costs.
V.D.K. Appeals allowed.
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