Civil Appeal No 699 of 1985
From the Judgment and Order dated 1751984 of the Orissa High Court in O J C No 936 of 1979
GL Sanghi Adv RK Mehta Ms Uma Jain MA Firoz and PN Misra for the appearing parties
The Judgment of the Court was delivered by K RAMASWAMY J
These three appeals are against the judgment of the Orissa High Court in OJC No 936 of 1979
The Division Bench allowed the writ petition and quashed the gradation lists of sub Asstt
Engineers Electrical and Sub Asstt Engineer Mechanical Annexures 5  6 before the High Court and the promotions given to the respondents Nos 4 and 5 therein Annexure 7
The Government and the Corporation were directed to consider the question of promotion treating the writ petitioner and the respondents as belonging to two cadres of Sub Asstt
Engineer Electrical And Mechanical
These three appeals were filed one by the Corporation another by the State Government and the third one by the aggrieved employees
344 The facts are simple
Shri Bidura Charan Mohapatra the 6th respondentfirst appellant in the third appeal a diploma holder in Mechanical and Electrical Engineering was appointed as Mechanical Supervisor on August 24 1962 in the pay scale of Rs215 396
Shri Parijat Ray the 7th respondent2nd appellant equally possessed of diploma in Electrical and Mechanical Engineering was appointed in the same scale of pay as a Mechanical Supervisor on November 5 1962
Shri PK Mohanty the writ petitioner in the High Court and the respondent in these appeals holds diploma in Electrical Engineering and was appointed as Hand Driller in the pay scale of Rs 100 155 on October 23 1963 and Sub Assistant Engineer Electrical in the payscale of Rs 185 325 on September 1 1965
The Lift Irrigation Corporation Ltd a part of the Government Organisation was carved out separately and the three persons alongwith others were drawn on deputation from the Government service to the Corporation in the year 1963
Three categories of services were existing in the Corporation namely Mechanical Electrical and Mechanical Electrical Composite unit
In the year 1971 three tentative gradation lists were prepared for classification purpose of those three divisions as Sub Assistant Engineer Mechanical Sub Assistant Engineer Electrical Supervisors Electrical and Mechanical which includes Electrical Supervisors Mechanical Supervisors Drilling Supervisors and Foreman cum Instructors
In 1977 the Corporation decided to reorganise its set up and to classify the employees into two categories namely Sub Assistant Engineer Electrical Sub Assistant Engineer Mechanical to attend to the respective works namely mechanical and electrical
The Corporation invited objections to amalgamate Composite Electrical and Mechanical Engineering Diploma Holders either in Electrical or Mechanical Wing
Options were called for from the persons holding only the composite diploma namely Mechanical and Electrical Engineering Supervisors
The respondent writ petitioner did not file any objection to the scheme
On consideration of the objections filed by others two gradation lists were prepared in the order of seniority from the respective dates of appointment to the posts and higher scale of pay held by respective persons and fitted them in the respective lists as per options
As stated earlier the respondent questioned their gradation in the Electrical Wing in the High Court and the High Court quashed it and the appellants obtained leave of this Court under article 136
The contention of the appellants is that the respondent has no right to be kept in a particular wing
The Corporation with a view to H create two categories namely Mechanical and Electrical sought to 345 amalgamate the third Composite MechanicalElectrical Wing and sought for options from the persons holding the composite posts
This was taken due to administrative exigency
The Corporation has power to carve out by amalgamating three sections into two divisions and to prepare the seniority lists from the respective date of their initial appointment etc
The High Court therefore was unjustified to quash the gradation lists
It was contended for the respondent by Sri Misra his learned counsel that the persons from the three wings are only deputationists holding lien on Government posts
The Corporation did not frame any scheme of its own to appoint its own employees nor given options to all the deputationists for confirmation as its employees
So long as the employees are continuing on deputation they are entitled to have seniority in the respective wings
The writ petitioner admittedly has been working on the Electrical Wing and was No 2 in the order of seniority as Sub Assistant Engineer Electrical
His right to seniority cannot be disturbed by taking Mechanical Supervisor into the Electrical Wing offending his right to promotion enshrined under articles 14 and 16 of the Constitution
The writ petitioner holds only Diploma in Electrical Engineering
SShri Bidura Charan Mohapatra and Parijat Ray hold double diploma of Mechanical and Electrical Engineering
It is settled law that the Government or the Corporation due to administrative exigencies is entitled to and has power to reorganise the existing cadres of amalgamate some or carve out separate cadres
The pre existing three separate cadres namely Electrical Mechanical and the composite cadre namely Electrical Mechanical were sought to be amalgamated into two cadres by absorbing the personnel working in the composite cadre namely Electrical Mechanical in either Electrical cadre or Mechanical cadre
Options have been called for in that regard from all the persons working in the Electrical Mechanical cadre and the appellants exercised their options for absorption in Electrical cadre
The employees working in the Electrical and Mechanical cadres were also aware of the same
It was therefore open to the respondent to raise any objection to the policy at that stage
But he failed to so
The decision to amalgamate the existing cadres by reorganising into two cadres was a policy decision taken on administrative exigencies
The policy decision is not open to judicial review unless it is mala fide arbitrary or bereft of any descernable principle
On account of the amalgamation and adjusting the composite Electrical Mechanical cadre in either of the Electrical or Mechanical cadre as per the options given the order of seniority of the employees working in Electrical or Mechanical cadres is likely to be reviewed
When the persons in the 346 composite Electrical Mechanical cadre opted to the Electrical cadre they are entitled to be considered for their fitment to the cadre as per the seniority from the date of their initial appointment vis a vis their scale of pay
This was the procedure adopted by the Corporation in fixing the inter se seniority
The procedure adopted is just fair and reasonable and beneficial to all the employees without effecting their scales of pay or loosing the seniority from the date of initial appointment
Undoubtedly in this process the respondentwrit petitioner lost some place in seniority which is consequential to amalgamation
He has not been deprived of his right to be considered for promotion only his chances of promotion have been receded
It was not the case of the respondent that the action was actuated by mala fide or colourable exercise of power
There is no fundamental right to promotion but an employee has only right to be considered for promotion when it arises in accordance with the relevant rules
From this perspective in our view the conclusion of the High Court that the gradation list prepared by the Corporation is in violation of the right of the respondent writ petitioner to equality enshrined under article 14 read with article 16 of the Constitution and the respondentwrit petitioner was unjustly denied of the same is obviously unjustified
The appeals are accordingly allowed and the writ petition stands dismissed
But in the circumstances parties are directed to bear their respective costs
NPV Appeals allowed


Summary:
The Mysore Silkworm Seed and Cocoon Regulation of Production Supply and Distribution Act 1959 provided for the regulation of production supply and distribution of silk worm seed and cocoon in the State of Mysore
The said Act was amended in 1969 and 1979
The 1979 amendments imposed restrictions on the production distribution and sale of silk yarn and were analogous to the restrictions imposed earlier in respect of silk worm seeds and cocoons
The appellants filed Writ Petitions before the High Court challenging the validity of the provisions of the Act on several grounds Including lack of legislative competence since the Central Silk Boards Act 1948 has already been passed by the Parliament The High Court negatived the contentions and dismissed the Writ Petitions
The present appeals challenged the correctness of the said judgment
The Writ Petitions filed directly in this Court also challenged the validity of the Provisions of the said Act
The main contention raised in these matters was that the Provisions of the Act lack legislative competence after the enactment by Parliament of the Central Silk Boards Act 1948 which contained a declaration contemplated under Entry 52 of List I in the Seventh 306 Schedule to the Constitution of India taking the Silk industry within the purview of Parliamentary legislation
Dismissing the matters this Court HELD 1
Legislation in regard to raw materials would be permissible under Entry 27 of List II notwithstanding a declaration of the industry under Entry 52 to be one within the purview of parliamentary legislation
The process of manufacture or production can be legislated on by States under Entry 24 of List II so long as the industry is not a controlled industry within the meaning of Entry 7 or Entry 52 of List 1
So far as the distribution of the products of the industry is concerned the State Legislature would be quite competent to legislate under Entry 27 of List II
However when the industry is also a controlled industry legislation in regard to the products of the industry would be permissible by both the Central and the State Legislatures by virtue of Entry 33 of List III
314A C Calcutta Gas Co P Ltd vs State 1962 Supp
3 SCR 1 relied on 2
It is true that the Central Silk Boards Act purpots to control the raw silk industry in the territory of India
But the control of the industry vested in Parliament was only restricted to the aspect of production and manufacture of silk yarn or silk
It did not obviously take in the earlier stages of the industry namely the supply of raw materials
Even in regard to the silk industry the reeling production development and distribution of silkworm seeds and cocoons was regulated by the Mysore Silkworm Seed and Cocoon Regulation of Production Supply and Distribution Act 1959
These items can perhaps be legitimately described as the raw materials of the silk industry
The control being vested in Parliament under Entry 52 of silk industry did not affect the control over the raw materials
That is perhaps the reason why the industry did not challenge the provisions of the Act when it was originally enacted on the ground that is now being put forward
The present legislation as a result of the amendments controls the supply and distribution of the goods produced by the industry
Though the production and manufacture of raw silk cannot be legislated upon by the State Legislature in view of the provisions of the Central Act and the declaration in section 2 thereof that declaration and Entry 52 do not in any way limit the powers of the State Legislature to legislate in respect of the goods produced by the silk industry
To interpret Entry 52 otherwise would render Entry 33 in List III of the Seventh Schedule 307 to the Constitution otiose and meaningless
In this view of the matter the limitation contained in Entry 52 does not affect the validity of the present legislation
314H 315A F ITC Ltd  Ors
vs State of Karnataka  Ors
 1985 supp SCC 476 distinguished
The State legislation would be quite valid unless it is repugnant to the provisions of a Central legislation on the subject
A perusal Of the Central Act makes it clear that the pith and substance of the legislation is the constitution of a silk Board for research into the scientific technological and economic aspects of the industry
It does not have anything to do with the aspects covered by Entry 33 in List III
There is therefore no infirmity in the State Legislation
315G H