R.K. Sethi
& ANR Vs. Oil & Natural Gas Commission & Ors [1997] INSC 86 (28 January 1997)
S.C.
AGRAWAL, FAIZAN UDDIN
ACT:
HEAD NOTE:
[WITH
CIVIL APPEALS NOS. 525 OF 1987 AND 527 OF 1987]
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 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
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 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
? (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 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 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 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 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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