Shyama
Charan Dash & Ors Vs. State of Orissa & Anr [2003] Insc 161 (11 March 2003)
Doraiswamy
Raju & D.M. Dharmadhikari D. Raju, J.
The
above appeal has been filed against the Order dated 26.8.1996 of the Orissa
Administrative Tribunal, Bhubaneswar, in O.A. No.777/91, whereunder the claim
of the appellants before this Court and some others seeking to quash the
amendments introduced in 1991, notified on 24.5.1991, which had the consequence
of bringing all the Industries Promotion Officers (IPOs) within the zone of
consideration for promotion to Class-II service and their further claim to
declare that only Rs.500-930 grade employees alone are eligible for promotion
to Class-II post and that those in Rs.400-750 grade are ineligible to such
Class-II promotions, came to be rejected.
Prior
to coming into force of the Orissa Industries Service Rules, 1985 on 12.9.1985,
officers of different categories in the Industries Department under the
Directorate of Industries were performing duties and functions of the same
nature at different levels in varied fields, appointed to posts with the
different nomenclature carrying different scales of pay. Not only there seem to
have been periodical revision of scales of pay but changes in their promotional
prospects, and their status and position in the hierarchical set up also
appears to have been made from time depending upon the exigencies of the
situation and necessities of smooth administration on the basis of
recommendations of the Pay Commissions or Committees specially constituted for
the purpose.
The
Tribunal below rejected the challenge holding that the impugned notification
was not vitiated on account of any malafide exercise of power and that despite
the fact the posts of Sub-Assistant Registrar was a promotional post for Block
Level Extension Officers, having regard to the similarity in the nature of
their functions, the cadre of IPOs came to be formed by merging and redesignating
them both SAR, Industries and BLEO, Industries as Industries Promotion
Officers. Reliance was placed in this regard on the decision of the Government
made on 27.5.1980 a conscious decision to merge them into one as IPOs though
with a classification among them as Seniors and Juniors depending upon
differences in the scales of their pay which was necessitated for the reason
that the merged posts were carrying different scales of pay, initially.
Reference
also seems to have been made to the subsequent decision on 17.2.1982 to do away
with the said difference and the abolition of the selection grade in respect of
all cadres of posts in the State, resulting in denial of the only avenue of
promotion to IPOs in the grade of Rs.400-750. Support was drawn by the Tribunal
for its conclusions also from the fact that the Government Orders dated
11.6.1986 declaring 17 posts equivalent to that of Industrial Supervisors
remained unchallenged and that really the equities stood adjusted in providing
promotional opportunities to the cadre of IPOs, irrespective of the scales of
pay, on par with Industrial Supervisors.
Shri
A.T.M. Sampath, learned counsel appearing for the appellants, sought to assail
the decision of the Tribunal mainly on the ground that the Government could not
have attempted to equate unequals by making eligible all grades of IPOs dehors
the intrinsic differences in their scales of pay and placing them on par with
Industrial Supervisors, who were of higher grade with higher scales of pay. It
was also contended that by throwing open the avenues of promotion to Class-II
posts to IPOs, who are in large numbers treating them on par with Industrial
Supervisors with comparatively small numerical strength, the prospects of
promotion of the Industrial Supervisors have been completely denied with
slender or even no chances during their tenure of office. In order to highlight
the grievance of the appellants, the learned counsel vehemently contended that
the experience gained by IPOs in the lower grade of posts cannot be treated on
par with those service of Industrial Supervisors in higher grades for purposes
of further promotion to Class-II posts and this anomaly brought about by the
amendment with effect from 24.5.1991 works great hardship and constitutes gross
violation of Articles 14 and 16 of the Constitution of India. Shri R.K. Mehta,
appearing for the non-official respondent and Shri R.S. Jena for the State,
adopted the reasons assigned by the Tribunal in their support and contended
that they are quite in accordance with law and do not call for any
interference. We have carefully considered the submissions of the learned
counsel appearing on either side and, in our view, the challenge to the order
of the Tribunal rejecting the challenge made by the appellants, do not merit
our acceptance.
It is
appropriate at this stage to make reference to some of the decisions relied
upon by the learned counsel on either side. Y.V. Rangaiah & Ors., etc.
there was omission to prepare the promotion panel in time as per rules then in
force but the amended rules dispensed with the original provision for
considering LDCs along with UDCs for promotion, adversely affecting their
promotional prospects, has no application to the case on hand. The decision in
R.S. Ajara & that has accrued or crystallized under the existing rules
cannot be taken away by an amendment with retrospective effect.
In
Chairman, Railway Board & Ors. this Court held that a rule which operates
in futuro so as to govern future rights of those already in service cannot be
assailed on the ground of retrospectivity as being violative of Articles 14 and
16 of the Constitution of India, but a rule which seeks to reverse from an
anterior date, a benefit which has been granted or availed, e.g., promotion or
pay scale, can be assailed as being violative of Articles 14 and 16 to the
extent it operates retrospectively. This observation came to be made in the
context of a challenge to the notification, which, by the language employed
therein, applied to the detriment of the pensionary rights of those who had
already retired and no longer in service and deprived the retired persons of
their entitlement to be reckoned as on the date of retirement, when they
acquired a right to a particular pension, as per rules in force on the date of
is a case wherein this Court held that the mere fact that a person was
empanelled for promotion does not entitle him for valid appointment if by the
time the vacancies for his appointment actually arose, the eligibility criteria
was altered by the amendment to the rules, emphasizing the position that the
preparation of the panel alone does not freeze the criteria to be satisfied in
respect of the subsequent vacancies arising thereafter, so as to dispense with
the need to satisfy the requirements of rules, which came into force thereafter
by way of amendment. Those observations cannot be drawn out of their context to
be extended to the case on hand which should be guided by the fact that the
amendments in this case never had any effect of rendering ineligible an already
eligible person. A mere enlargement of the area or zone of consideration by enabling
some more category of posts also to be considered for promotion, if at all
could be claimed to have merely affected chances of promotion only and not
either right to be considered for promotion or deprive any vested or accrued
Ors. [(1989) Supp. (1) SCC 34], this Court held that an eligibility criterion
is Chandrakant Anant Kulkarni & Ors. [(1981) 4 SCC 130], this Court
observed that mere chances of promotion are not conditions of service, and the
fact that there was reduction in the chances of promotion did not tantamount to
a change in the conditions of service while reiterating the settled principle
that a right to be considered for promotion is a term of service, but mere
reduction in chances of promotion are not.
The
grievance sought to be made as to the equation of posts for purposes of further
avenues of promotion or the right and powers of the State to do so also, does
not merit our acceptance, in the peculiar facts and circumstances of the case
as well, besides the relevant principles of law governing the same. This Court
in S. B. Mathur's case (supra) observed as follows:- "11. The first
submission of Mr. Thakur, learned counsel for the petitioners is that there is
a violation of Article 14 of the Constitution in treating the posts of Superintendents,
Court Masters or Readers and Private Secretaries to the Judges as equal status
posts. It was urged by him that the sources of recruitment to these posts were
not identical and so also the qualification required for appointments to these
posts. He also pointed out that the duties of the incumbents of these posts
were different. It was submitted by him that in treating these posts as equal
status posts unequals were treated equally and hence the rule of equality was
violated. In appreciating this submission, it must be borne in mind that it is
an accepted principle that where there is an employer who has a large number of
employees in his service performing diverse duties, he must enjoy a certain
measure of discretion in treating different categories of his employees as
holding equal status posts or equated posts, as questions of promotion or
transfer of employees inter se will necessarily arise for the purpose of
maintaining the efficiency of the organization. There is, therefore, nothing
inherently wrong in an employer treating certain posts as equated posts or
equal status posts provided that, in doing so, he exercises his discretion
reasonably and does not violate the principles of equality enshrined in
Articles 14 and 16 of the Constitution. It is also clear that for treating
certain posts as equated posts or equal status posts, it is not necessary that
the holders of these posts must perform completely the same functions or that
the sources of recruitment to the posts must be the same nor is it essential
that qualifications for appointments to the posts must be identical. All that
is reasonably required is that there must not be such difference in the pay
scales or qualifications of the incumbents of the posts concerned or in their
duties or responsibilities or regarding any other relevant factor that it would
be unjust to treat the posts alike or, in other words, that posts having
substantially higher pay scales or status in service or carrying substantially
heavier responsibilities and duties or otherwise distinctly superior are not
equated with posts carrying much lower pay scales or substantially lower
responsibilities and duties or enjoying much lower status in service."
court observed that the matter of equation of posts is entirely within the
domain of the rule-making authority and unless the rule is shown to be wholly
unreasonable and irrational, the Court will not interfere with the same. In Md.
Court,
while repelling a challenge based on equality clause, observed as hereunder:-
"5. On the other hand it was argued on behalf of the contesting
respondents that before considering the vires of Rule 5, we must first
ascertain the reason behind the rule to find out whether in fact there is
discrimination.
The
contesting respondents do not deny that the position of an U.D.C. is superior
to that of a L.D.C. But according to them it became necessary for the State to
pool together U.D.Cs. as well as the L.D.Cs. for the purpose of recruitment in
question for the following reasons.
7. On
the facts before us we are unable to agree that for the purpose of recruitment
with which we are concerned herein the State should have classified the U.D.Cs.
and L..D.Cs. separately. If the State had treated the U.D.Cs. as being superior
to the L.D.Cs. for the purpose of that recruitment it would have resulted in a
great deal of injustice to a large section of the clerks. The fortuitous
circumstance of an officer in a particular district becoming an U.D.C. would
have given him an undue advantage over his seniors who might have been as efficient
or even more efficient than himself, merely because they chanced to serve in
some other district. For the reasons mentioned above, we do not think that in
the present case the State can be said to have treated unequals as equals. The
rule of equality is intended to advance justice by avoiding discrimination. In
our opinion the High Court by overlooking the reason behind Rule 5 came to the
erroneous conclusion that the said rule violated Article 14 of the
Constitution." So far as the case on hand is concerned, Rule 7 of the Orissa
Industries Service Rule, 1985, which came into force with effect from 12.9.1985
deals with promotion to Class-II posts enumerated in Schedule B thereto, and
relevant for the purpose, reads as follows:- "7. Promotion to Class-II.
1) Not
more than 25% of total vacancies in Class-II of the service in any year may be
filled up by promotion from amongst non-gazetted non-Ministerial Class-III
field executive staff, namely :- Industries Promotion Officers, Industrial
Supervisors in grade pay of Rs.500-930 or as revised from time to time and such
other posts as may be created in the equivalent grade or declared equivalent in
status by Government from time to time having completed seven years of service
in the post or posts. The promotion quota of Industries Promotion Officers,
Industrial Supervisors shall be in a ratio according to the strength of
qualified officers in each group as may be decided by Government.".
It is
stated by all the learned counsel on either side that the percentage of 25%
mentioned in Sub-rule (1) stood altered subsequently as 50% from August, 1995.
By a Notification dated 11.6.1986, the State Government, in exercise of its
powers under Rule 7(1) of the Rules, declared about 17 categories of posts to
be equivalent in status with that of the Industries Promotion
Officers/Industrial Supervisors for the purpose of Sub-rule (1) of Rule 7. This
Notification has not been challenged at any point of time and even in the
course of present proceedings. By the impugned amendment which came into force
from 24.5.1991, the words, abbreviation and figures, "in grade pay of
Rs.500-930/- or as revised from time to time" were ordered to be deleted.
Even dehors the reasoning of the Tribunal that those words from the inception
qualified only the class of Industrial Supervisors, we are of the view that no
genuine or serious objection could be either reasonably or lawfully taken to
the move to enable all the Industries Promotion Officers also becoming or
rendered eligible for promotion to Class-II posts. So far as Industries
Promotion Officers among themselves are concerned, the difference in pay scale
among them is due to the differences based on the initial feeder category pay
and not due to any intrinsic or basis differences of essential qualifications
or the nature of duties and obligations. As long as the IPOs, as a class or
category, are rendered eligible even from 1986 and that is not challenged, the
differences, if any, existing and based on the scales of pay among them, when
resolved to be done away with in the undoubted exercise of its power by the
State, as a matter of policy, cannot be legitimately challenged by the
appellants merely because due to the enlargement of the horizon of
consideration resulting therefrom, the chances of consideration for promotion
of Industrial Supervisors become diminished. The reasons, which weighed with
the State Government in doing so, are found to be genuine, real and substantive
and meant to do substantial justice to all categories or grade of posts equated
for purposes of Rule 7 of the Rules. The fact that in different proceedings
where claim for identical scales of pay came to be contested by the Government
or rejected by the Tribunal, is no justification to countenance the claim of
the appellants in these proceedings inasmuch as the criteria to be applied in
dealing with such claims are totally different or, at any rate, may be one only
among several requirements to be satisfied. Consequently, the challenge on
behalf of the appellants has no merit whatsoever and shall stand rejected.
For
all the reasons stated above, the appeal fails and shall stand dismissed. No
costs.
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