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PETITIONER:

K.K.M. NAIR AND ORS.

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT31/03/1993

BENCH:

KULDIP SINGH (J)

BENCH:

KULDIP SINGH (J)

KASLIWAL, N.M. (J)

SAHAI, R.M. (J)

CITATION:

1994 AIR 244 1993 SCR (2) 906

1993 SCC Supl. (2) 506 JT 1993 (2) 715

1993 SCALE (2)469

ACT:

Civil Services:

Indian Ordnance Factories (Recruitment and Conditions of

Service of Class III Personnel) Rules, 1956:

Rules 3(1), 8 and 12--Seniority--Promotional cadre--Circular

giving benefit of accelerated chances of promotion--Later

withdrawn by subsequent circular--Benefits of first circular

restored by High Court--Consequential orders giving

antedated seniority and promotions--Persons adversely

affected but were not parties to the earlier litigation

approaching Tribunal--Tribunal setting aside the

order--Validity of.

HEADNOTE:

The Director-General, Ordnance Factories (D.G.) issued a

Circular dated 6.11.1962 to the effect that the Diploma

holders who have been appointed-as Supervisor Grade 'B'

(technical) or in equivalent grades, should on completion of

one year's satisfactory service be promoted the post of

Supervisor Grade 'A' (Tech.) and the Diploma holders who

worked satisfactorily as Supervisor 'A' (Tech.) or in

equivalent grades for 2 years should be promoted as

Chargeman. Subsequently the D.G. issued another Circular

dated 20.1.1966 according to which promotions were to be in

accordance with normal rules,i.e. on the basis of their

listing by the relevant Departmental Promotion' Committee

and not merely on satisfactory completition of 2 years

continuous service as Supervisor 'A' Grade or equivalent

grades. In effect, the first Circular was withdrawn by the

second Circular.

In 1973 some Supervisors Grade 'Al riled a Writ Petition

before the High Court claiming benefit of the first

circular. Without going into the merits of the controvery,

a Single Judge of the High Court dismissed the Writ Petition

on the ground of delay. On appeal, a Division Bench of the

High Court dismissed the Writ Petition on merits. On

further appeal this Court directed that the cases of those

appellants be considered for promo906

907

tion as Chargeman Gr.II and they promoted them, unless they

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were found unfit, from the dates on which they ought to have

been promoted. (Virendra Kumar & Ors. v. U.O.I, C.A. No.

441/1981 decided on 2.2.81). Thereafter the present

appellants riled Writ Petitions before the High Court

praying for the same relief as was granted by this Court in

Virendra Kumar's case. The High Court allowed the Writ

Petitions. The Special Leave Petitions filed by the Union

of India against the Judgment came to be dismissed.

Consequently. the D.G. issued an order giving antedated

seniority to the appellants for the purposes of promotion.

The appellants were also given deemed dates of promotion to

post of chargeman Gr.11 from the dates when they completed

two years of service as Supervisor Gr. 'A' and consequent

seniority in the other higher grades. This resulted in some

employees who were senior to the appellants in the cadre of

Chargeman Gr.II and other higher grades becoming junior to

the appellants. These employees who were 'adversely

affected by the order of the D.G. giving ante-dated

seniority to the appellants and were not impleaded as

parties at any stage of the litigation, challenged the DG's

order before the Central Administrative Tribunal. The

Tribunal allowed the application and set aside the DG's

order giving ante-dated seniority to the appellants.

Aggrieved by the Judgment of the Tribunal, the appellants

preferred the present appeal.

Dismissing the appeal, this Court,

HELD: 1. This Court has authoritatively laid down in

Paluru's case that Civil Appeal No. 441/81 Virendra Kumar v.

U.O.I, was not correctly decided. The appellants have

throughout been basing their claim on Virendra Kumar's case.

Once the base is knocked out by the judgment of this Court

in Paluru's case the appellants are left with no ground to

sustain the order dated February 20/25, 1987 issued by the

D.G. by which they were given ante-dated seniority. [917 B-

C]

1.2. Even if it is assumed that the High Court judgment had

become final with the dismissal of the SLP against it, and

could Rot have been reviewed by the High Court or the

Tribunal, it became final only between the parties inter-se.

The first circular was issued in the year 1962. The

appellants riled writ petitions in the High Court twenty

years thereafter seeking enforcement of the first circular.

The petitioners wanted the clock to be put back by two

decades through the process of the Court. All those

908

persons who were promoted in accordance with the rules

during that long period and were not parties before the High

Court could not be made to suffer for no fault of theirs.

On the other hand some employees challenged the order dated

February 20/25, 1987 which affected them adversely within

the period of limitation before the Central Administrative

Tribunal. In any case the judgment of this Court in

Virendra Kumar having been over-ruled in Paluru's case, the

appellants have neither the law nor the equity on their

side. The judgment of the Tribunal being in conformity with

the law laid down by this Court in Paluru's case there is no

ground to interfere with the same. [918 A-D]

Paluru Ramkrishnaiah & Ors. etc. v. Union of India & Anr.,

[1989] 2 SCR 92, followed.

Virendra Kumar & Ors. v. Union of India & Ors., Civil Appeal

No. 441/81 decided on 2.2.1981, referred to.

JUDGMENT:

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1690 of 1993.

From the Judgment and Order dated 14.2.1991 of the Central

Administrative Tribunal Jabalpur in O.A. No. 217 of 1987.

M.K. Ramamurthi and V.J. Francis for the Appellants.

Narayan B. Shetye, K. Lahiri, Vineet Kumar, Ms. Sushma Suri,

Ms. Kitty Kumar Mangalam, S.N. Terdo and B.K. Prasad for the

Respondents.

The Judgment of the Court was delivered by

KULDIP SINGH, J.

Special leave granted.

This appeal is a sequel to the checkered litigation, over a

period of two decades, between members of the Indian

Ordnance Factories Class III Service (the Service). The

first round of litigation was concluded in favour of K.K.M.

Nair and others, the appellants, on July 28,1986 when the

special leave petitions filed by the Union of India, against

the judgment of Madhya Pradesh High Court, were dismissed by

this court. As a consequence the Director General Ordnance

Factories (DG) issued an order dated February 20/25, 1987

granting benefits to the appellants towards seniority

909

in different grades of the Service. S.K Chattopadhyay and

others, the respondents, who were not parties to the earlier

litigation, challenged the order dated February 20/25, 1987

before the Central Administrative Tribunal. The Tribunal by

its judgment dated February 14,1991 allowed the application

of S.K Chattopadhyay and others and set aside the order

dated February 20/25, 1987. This appeal by K.K.M. Nair and

others is against the judgment of the Central Administrative

Tribunal Jabalpur.

The recruitment and seniority of the members of the Service

are governed by the statutory rules called 'Indian Ordnance

Factories (Recruitment and Conditions of Service of Class

III Personnel) Rules, 1956" (the rules). Rules 3(1), 8 and

12 of the rules which are relevant are reproduced hereunder:

"3(1). The Class III personnel service in the Indian

Ordnance Factories to which these rules shall apply consists

of the posts of the following grades, namely:

Foreman (including Foreman/Design).

Storeholder

Assistant Foreman

Assistant Storeholder

Chargeman, Grade I (including Chargeman, Grade I/Design)

Chargeman, Grade II

Supervisor, Grade 'A'

Supervisor, Grade 'B'.

8(1) Appointments by promotion shall be made by the

Director-General on the basis of selection lists prepared

for the different grades by the duly constituted Depart-

mental Promotion Committees.

(2) Such Selection lists shall be prepared:-

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(a) In respect of appointment to the grade of

Foreman, Storeholder, Assistant Foreman,

Assistant Storeholder by the Departmental

Promotion Committee 11 consisting of the

Director-General and two officers of the

Directorate General, Ordnance Factories

nominated by the Director-General;

(b) In respect of appointments to the grade of

Chargeman, Grade I, and Chargeman, Grade 11,

by the Departmental Promotion Committee III

(Central) consisting of the Deputy Director-

General, Ordnance Factories and two officers

of the Directorate-General, Ordnance Factories

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nominated by the Director-General after

perusal of the recommendations of the

Departmental Promotion Committee III

(Factories) which shall be set up in each

Factory and shall consist of the

Superintendent of the Factory and two other

gazetted officers of the Factory nominated by

the Director-General; and

(c) In respect of appointments to the grades

of Supervisor 'A' and 'B' Grades by the

Departmental Promotion Committee III

(Factories) consisting of the Superintendent

of the Factory and two other gazetted officers

of the Factory nominated by the Director-

General.

(3) The Departmental Promotion Committee shall

meet periodically at least once a year and as

more often as may be necessary and shall

prepare for each grade and category in order

of merit a list of names of persons considered

at for promotion.

(4) A vacancy to be filled by promotion shall

be filled by persons on the approved list

strictly in the order in which names are

arranged in that list provided that:-

(i) appointments to the grade of Supervisors,

Grade 'A' shall normally be confined to

employees in the particular Factory in which

the Vacancy has arisen; and

(ii) in respect of appointment to other posts

the next

911

person on the list working in the Factory in

which the vacancy has arisen may be appointed

out of turn if the vacancy is not likely to

last for more than nine months.

12. No appointment to the posts to which

these rules apply shall be made otherwise than

as specified in these rules".

Appellants 1, 6, 11 and 12 were appointed Supervisor Grade

'B' during the years 1961/62. The remaining appellants were

appointed Supervisor Grade 'A' during the period 1964/65.

Appellants 1 to 11 were promoted as Chargeman, Grade II on

different dates during 1972/77. They were promoted to

Chargeman Grade I during the years 1979/80. They were

further promoted to the post of Assistant Foreman during the

period 1981 to 1984. S.K. Chattopadhyay and others are

respondents 4 to 9 in this appeal. Respondents 4 and 5

joined as Chargeman Grade II in the year 1966, respondent 9

in the year 1967, respondent 6 in the year 1971 and

respondents 7 and 8 in the year 1974. They were promoted to

Chargeman Grade I during the years 1978/1979. Respondents 4

to 9 were further promoted to the post of Assistant Foreman

during the period from 1980 to 1984. It is not disputed

that the recruitment and promotions of the appellants and

respondents were made in accordance with the rules.

It is necessary to lay down the factual matrix which led to

the passing of the order dated February 20/25, 1987 by the

DG.

The DG issued circular dated November 6, 1962 (first

circular) which is reproduced hereunder:

"D.G.O.F. has decided that Diploma holders

serving as Supervisor 'A' (Tech)/Supervisor

'B'/(Tech) and in equivalent grades should be

treated as follows:

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(i) All those Diploma holders who have been

appointed as Supervisor'B' (Tech) (and in

equivalent grades) should on completion of one

year's satisfactory service in ordnance

factories be promoted to Supervisor 'A' (Tech)

and in equivalent grades.)

(ii) All those Diploma holders who work

satisfactorily as

Supervisor 'A' (Tech) or in equivalent grades

for 2 years

in Ordnance Factory should be promoted to

Chargeman."

912

Subsequently the D.G. issued circular dated January 20, 1966

(second circular). The operative part of the second

circular is as under:

"The question of promotion of Diploma holders

in Mech/Elec. Engineering and Ex-apprentices

serving as Supr. 'A' Gr. or in equivalent

grades has received further consideration of

the D.G.O.F. who has decided that in future

promotions of all such individuals will be

effected in accordance with the normal rules

i.e. on the basis of their listing by the

relevant D.P.C. and not merely on completion

of 2 years satisfactory continuous service as

Super. A Gr. or equivalent grades.'

It is, thus, obvious that after the issue of second circular

no Supervisor Grade 'A' could claim to have become eligible

for promotion merely on completion of two years satisfactory

service and his promotion thereafter could be effected only

in accordance with the rules. In a nut-shell the first

circular was withdrawn by the second circular.

Seventy Five supervisors Grade 'A' (other than the

appellants and the respondents before us) filed a writ

petition in the Allahabad High Court in the year 1972

claiming benefit of the first circular. Their grievance was

that they were not being promoted to the post of Chargeman

Grade 11 on completion of two years satisfactory service

even though large number of Supervisors Grade 'A' had

already been promoted in terms of the first circular. The

writ petition was contested by the Union of India, inter

alia, on the ground that under rule 8 of the rules promotion

from Supervisor Grade 'A' to Chargeman Grade II was to be

made on the basis of selection. In the first instance the

selection was to be made by the Departmental Promotion

Committee at the Factory level and thereafter by the

Departmental Committee at the central level. The promotions

were to be made by the DG on the basis of the select list

prepared as a result of the selections made by the two

committees. It was further asserted that all the writ

petitioners were considered for promotion in accordance with

the rules but they were not found fit for promotion. The

learned Single Judge of the Allahabad High Court, however,

did not go into the merits of the controversy and dismissed

the writ petition on the ground of delay. Against the

judgment of the learned Single Judge appeal was preferred

before a Division Bench of the High Court. The Division

Bench went into the merits

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of the controversy and came to the conclusion that promotion

from Supervisor Grade 'A' to Chargeman Grade II could only

be made in accordance with the procedure laid down under the

rules. The learned Judges further took the view that the

first circular was to be interpreted in conformity with the

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rules. It was further held that even if it was to be

assumed that the DG promoted some Supervisors Grade 'A' to

the post of Chargeman Grade II immediately on the completion

of two years service, without following rule 8 of the rules,

no right would accrue in favour of the writ petitioners

inasmuch as such promotions would be contrary to the rules

and would confer no legal right on the writ petitioners for

likewise promotion in breach of the rules. The argument

based on Article 16 was also rejected. The Division Bench

of the Allahabad High Court, thus, dismissed the writ

petition on merits. Against the judgment of the Allahabad

High Court Civil Appeal No. 441 of 1981 was preferred in

this Court. Since the order dated February 2, 1981 passed

in Virendra Kumar & Ors. v. Union of India and Ors. Civil

Appeal No. 441/81 is the backbone of the appellants claim we

reproduce the said order hereunder:

"Heard counsel. Special leave granted.

Our attention has been invited by learned

counsel for both the sides to the relevant

rules which govern promotion to the post of

Chargeman Grade 11. It appears that a large

number of persons have been promoted to those

posts though they have completed only two

years of service. The Government now appears

to insist that in so far as the appellants are

concerned they cannot be considered for

promotion unless they complete three years of

service. We see no justification for any such

differential treatment being given to the

appellants. If a large number of other

persons similarly situated have been promoted

as Chargeman Grade 11 after completing two

years of service, there is no reason why the

appellants should also not be similarly

promoted after completing the same period of

service. We are not suggesting that the

appellants are entitled to be promoted to the

aforesaid posts even if they are found unfit

to be promoted.

We therefore direct that the concerned

authorities will

914

consider the cases of the appellants for

promotion as Chargeman Grade 11 and promote

them to the said posts unless they are found

to be unfit. If the appellants are promoted,

they will naturally have to be promoted with

effect from the date on which they ought to

have been promoted.

This order will dispose of the appeal.

There will be no order as to costs."

Thereafter K.K.M. Nair and 124 others, the appellants, filed

six writ petitions before the Madhya Pradesh High Court

during the period 1981-82. It was contended before the High

Court that the reasons which weighed with this Court in

allowing Civil Appeal No. 441/81 applied to the six writ

petitions also and it was prayed that the same relief be

granted to the petitioners. The Madhya Pradesh High Court,

relying upon the judgment of this Court in Civil Appeal No.

441/81, allowed the writ petitions by its judgment dated

April 4, 1983. Against the aforesaid judgment of the Madhya

Pradesh High Court special leave petitions (Civil)-'Nos.

5987-92/86 were filed in this Court by the Union of India

and were dismissed on July 28, 1986. Pursuant to the

judgment of the Madhya Pradesh High Court dated April 4,

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1983 the DG issued the order dated February 20/25, 1987

giving ante-dated seniority to the appellants for the

purposes of promotion to the next higher grades. The

appellants were, thus, given deemed dates of promotion to

the post of Chargeman, Grade 11 from the date when they

completed two years of service as Grade A and consequent

seniority in the other higher grades. S.K. Chattopadhyay

and others who were senior to the appellants in the cadre of

Chargeman, Grade 11 and other higher grades in the service

were made junior to the appellants as a consequence of the

order dated February 20/25, 1987.

At this stage we may notice the judgment of this Court in

Palun Ramkrishnaiah & Others etc. v. Union of India & Anr.,

[1989] 2 SCR 92 delivered by a Three-Judge Bench of this

Court dismissing a bunch of nineteen writ petitions under

Article 32 of the Constitution of, India. The petitioners

in the aforementioned writ petitions claimed to have been

appointed as Supervisors, Grade 'A' in various ordnance

factories between 1962 to 1966 and had filed the writ

petitions with the prayer that the same relief be granted to

them as was given by this Court to seventy five

915

Supervisors, Grade A in Civil Appeal No. 441 of 1981. This

Court in Paluru's case considered the rules, the first

circular, the second circular and the order of this court in

Civil Appeal No. 441/81 dated February 2, 1981. Dismissing

the writ petitions this Court held as under:-

1. The executive instruction could make a provision only

with regard to a matter which was not covered by the rules

and such executive instruction could not over-ride any

provisions of the rules.

2. Notwithstanding the issue of the instructions dated

November 6, 1962 the procedure for making promotion as laid

down in rule 8 of the Rules had to be followed, and the said

procedure could not be abrogated by the executive

instructions dated November 6, 1962.

3. The only effect of the circular dated November 6, 1962

was that Supervisors Grade 'A' on completion of two years

satisfactory service could be promoted by following the

procedure contemplated by rule 8 of the Rules. This

circular had indeed the effect of accelerating the chance of

promotion. The right to promotion on the other hand, was to

be governed by the rules. This right of promotion as

provided by the rules was neither affected nor could be

affected by the circular.

4. After coming into force of the circular dated January 20,

1966 promotions could not be made just on completion of two

years satisfactory service tinder the earlier circular dated

November 6, 1962, the same having been superseded by the

latter circular.

5. Supervisor, Grade A who had been promoted before the

coming into force of the circular dated January 20, 1966

stood in a class separate from those whose promotions were

to be made thereafter. The fact that some Supervisors,

Grade A had been promoted before the coming into force of

the circular dated January 20, 1966 could not, therefore,

constitute the basis for an argument that those Supervisors

Grade A whose cases came up for consideration thereafter and

who were promoted in due course in accordance with the rules

were discriminated against.

6. There are sufficient indications that when Civil Appeal

No. 441/81 was heard by this Court the circular dated

January 20, 1966 and the legal consequences flowing

therefrom were not brought to the notice of this Court by

the learned counsel for the respondents or the same were not

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916

properly emphasised.

It is thus obvious that the Three-Judge Bench of this Court

in Paluru's case did not approve the order dated February 2,

1981 of Two Judge Bench in Civil Appeal No. 441/81.

Since the judgment of this Court in Civil Appeal No. 441/81

had become final inter-partes, it had to be implemented.

While considering the extent of the relief to be given to

the appellants in Civil Appeal No. 441/81 this Court in

Paluru's case observed as under:-

"As already noticed earlier certain writ

petitions filed in Madhya Pradesh High Court

were allowed by that Court were allowed by

that Court on 4th April, 1983 relying on the

judgment of this Court dated 2nd February,

1981 in Civil Appeal No. 441/81. Against th

e

aforesaid judgment of the Madhya Pradesh High

Court dated 4th April, 1983 Special Leave

Petitions (Civil) Nos. 5987-92 of 1986 were

filed in this Court by the Union of India and

were dismissed on 28th July, 1986. The

findings of the Madhya Pradesh High Court in

its judgment dated 4th April, 1983 thus stand

approved by this Court. In this view of the

matter to put them at par it would be

appropriate that the appellants in Civil

Appeal No. 441 of 1981 may also be granted the

same relief which was granted to the

petitioners in the writ petitions before the

Madhya Pradesh High Court."

The appellants have raised an argument based on the above

quoted observations of this Court in Paluru's case which we

shall consider at a later stage in this judgment.

We may come back to the point of time when the Director

General issued the order dated February 20/25, 1987 giving

ante-dated seniority to the appellants in various grades of

the service. As mentioned above S.K. Chattopadhyay and

others were not impleaded as parties at any stage of the

litigation earlier to the issue of the said orders. They

were adversely affected in the matter of seniority for the

first time by the order dated February 20/25, 1987. S.K.

Chattopadhyay and others challenged the said order before

the Central Administrative Tribunal, Jabalpur Bench. The

917

Tribunal by its judgment dated February 14, 1991 allowed the

application of S.K. Chattopadhyay and others and set aside

the order dated February 20/25, 1987 giving ante-dated

seniority to the appellants.

We agree with the conclusions reached by the Tribunal though

we do not appreciate the reasoning adopted by the Tribunal

in reaching the said conclusions. This Court has

authoritatively laid down in Paluru's case that Civil Appeal

No. 441/81 was not correctly decided by this Court.The

appellants have through-out, been basing their claim on the

order dated February 2,1981 in Civil Appeal No. 441/81.

Once the base is knocked out by the judgment of this court

in Paluru's case the appellants are left with no ground to

sustain the order dated February 20/25, 1987 by which they

were given ante-dated seniority. Following the judgment of

this Court in Paluru's case and the reasoning therein we

uphold the impugned judgment of the Central Administrative

Tribunal, Jabalpur.

Mr. M.K. Ramamurthy, learned counsel for the appellants, has

vehemently argued that the judgment dated April 4, 1983 by

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the Madhya Pradesh High Court in favour of the appellants

having been approved by this Court in Palunt's case the

Tribunal had no jurisdiction to negate the same. We do not

agree with the learned counsel.

We have reproduced above the paragraph from the judgment in

Paluru's case wherein this Court has observed, "findings of

the Madhya Pradesh High Court in its judgment dated 4th

April, 1983 thus stand approved by this Court". It is not

disputed that the said "approval" by this Court was by

dismissing the special leave petitions against the judgment

of the Madhya Pradesh High Court. There is no reasoned

judgment/order by this Court approving the judgment of the

Madhya Pradesh High Court. It is not necessary for us to go

into the question whether in a situation like this any court

below could have reversed the judgment by review or

otherwise, because in this case we are faced with different

situation. S.K. Chattopadhyay and others were not parties

to the proceedings before the Madhya Pradesh High Court

which ended by the dismissal of the special leave petitions

by this Court on July 28, 1986. Till that date no action

adverse to them had been taken by the DG or any other

authority. It was incumbent on the appellants to have

impleaded all the persons who were likely to be adversely

affected in the event of appellants success in the writ

petition before the Madhya Pradesh High Court. Under the

circumstances

918

even if it is assumed that the Madhya Pradesh High Court

judgment had 'become final and could not have been reviewed

by the High Court or the Tribunal, it became final only

between the parties inter-se. The first circular was issued

in the year 1962. The appellants filed writ petitions in

the Madhya Pradesh High Court twenty years thereafter

seeking enforcement of the first circular. The petitioners

wanted the clock to be put back by two decades through the

process of the Court. All those persons who were promoted

in accordance with the rules during that long period and

were not parties before the Madhya Pradesh High Court cannot

be made to suffer for no fault of theirs. On the other

hand, S.K. Chattopadhyay and others challenged the order

dated February 20/25, 1987 which affected them adversely

within the period of limitation before the Central Ad-

ministrative Tribunal. In any case the judgment of this

Court in Civil Appeal No. 441 of 1981 having been over-ruled

by Three-Judge Bench of this Court in Paluru's case, the

appellants have neither the law nor the equity on their

side. The judgment of the Tribunal being in conformity with

the law laid down by this Court in Paluru's case, we see no

ground to interfere with the same.

Before parting with this judgment we may mention that

because of contradictory judgments of various courts and

Central Administrative Tribunals in the country the

seniority position of the members of the service-all over

the country, numbering about twenty thousand could not be

crystallised over a period of two decades. We have been

informed by the Union of India that the Central

Administrative Tribunals all over the country have, by and

large, taken uniform view following the judgment of this

Court in Paluru's case and the seniority lists have been

issued in conformity therewith. It has been a long-drawn-

out battle in the court-corridors causing lot of expense and

suffering to the members of the service. We hope that this

judgment has finally drawn the curtains over the con-

troversy.

The appeal, is therefore, dismissed. No costs.

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G.N. Appeal dismissed.

919