Appeal No 1690 of 1993
From the Judgment and Order dated 1421991 of the Central Administrative Tribunal Jabalpur in OA No 217 of 1987
MK Ramamurthi and VJ Francis for the Appellants
Narayan B Shetye K Lahiri Vineet Kumar Ms Sushma Suri Ms Kitty Kumar Mangalam SN Terdo and BK 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 KKM Nair and others the appellants on July 281986 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 2025 1987 granting benefits to the appellants towards seniority 909 in different grades of the Service
SK Chattopadhyay and others the respondents who were not parties to the earlier litigation challenged the order dated February 2025 1987 before the Central Administrative Tribunal
The Tribunal by its judgment dated February 141991 allowed the application of SK Chattopadhyay and others and set aside the order dated February 2025 1987
This appeal by KKM 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 31 8 and 12 of the rules which are relevant are reproduced hereunder 31
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 ForemanDesign
Storeholder Assistant Foreman Assistant Storeholder Chargeman Grade I including Chargeman Grade IDesign Chargeman Grade II Supervisor Grade A  Supervisor Grade B 
81 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 910 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 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
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 196162
The remaining appellants were appointed Supervisor Grade A  during the period 196465
Appellants 1 to 11 were promoted as Chargeman Grade II on different dates during 197277
They were promoted to Chargeman Grade I during the years 197980
They were further promoted to the post of Assistant Foreman during the period 1981 to 1984
SK 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 19781979
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 2025 1987 by the DG
The DG issued circular dated November 6 1962 first circular which is reproduced hereunder DGOF has decided that Diploma holders serving as Supervisor A  TechSupervisor B Tech and in equivalent grades should be treated as follows 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 DG 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 MechElec
Engineering and Ex apprentices serving as Supr A  Gr or in equivalent grades has received further consideration of the DGOF who has decided that in future promotions of all such individuals will be effected in accordance with the normal rules ie on the basis of their listing by the relevant DPC and not merely on completion of 2 years satisfactory continuous service as Super
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 913 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 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
vs Union of India and Ors
Civil Appeal No 44181 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 KKM 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 44181 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 44181 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 9286 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 1983 the DG issued the order dated February 2025 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
SK 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 2025 1987
At this stage we may notice the judgment of this Court in Palun Ramkrishnaiah  Others etc
vs Union of India  Anr  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 44181 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
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
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
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
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
There are sufficient indications that when Civil Appeal No 44181 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 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 44181
Since the judgment of this Court in Civil Appeal No 44181 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 44181 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 44181
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 2025 1987 giving ante dated seniority to the appellants in various grades of the service
As mentioned above SK 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 2025 1987
SK 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 SK Chattopadhyay and others and set aside the order dated February 2025 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 44181 was not correctly decided by this Court
The appellants have through out been basing their claim on the order dated February 21981 in Civil Appeal No 44181
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 2025 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 MK Ramamurthy learned counsel for the appellants has vehemently argued that the judgment dated April 4 1983 by 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 judgmentorder 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
SK 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 SK Chattopadhyay and others challenged the order dated February 2025 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
GN Appeal dismissed


Summary:
There were two parallel Services of Engineers in the Indian Railways
One was the Indian Railways Service of Engineers Class I who were subjected to competitive written and personality tests and appointed by the President of India
The other Service was the temporary Assistant Engineers later known as Temporary Assistant Officers appointed by the Railway Board on selection based on interview alone
In addition to the minimum educational qualifications which was the same for both the services three years experience as Civil Engineer was required for the Railway Service of Engineers
The temporary Assistant Officers were gradually absorbed into the Indian Railway Service of Engineers and the Railway Board took a decision that they would be given weightage in seniority on the basis of half the total length of continuous service in working posts in Railways prior to their permanent absorption into Class I subject to a maximum weightage of five years
Writ Petitions were filed in this Court by the Federation of Temporary Officers Association in a representative capacity seeking relief in their seniority status
This Court dismissed the Writ Petitions holding that the classification of temporary Assistant Officers separate from the Indian Railway Service 1019 Engineers Class I was neither discriminatory nor violative of Articles 14 and 16 of the Constitution and that the object of recruitment methods of recruitment appointing authority and training imparted being different no question of their entitlement to equal rights arose fill they were absorbed into the Indian Railway Service of Engineers Class 1
This Court also approved the measures of the Railway Board in regard to giving weightage of half the length of service as temporary Assistant Officers subject to a maximum of five years
Their claim for equal status for equal pay and equal work was also rejected
Katyani Dayal  Ors
vs U01
 In the present Writ Petitions and Civil Appeals filed in a representative capacity the relief claimed were on the same lines as in Katyani Dayals case
As directed by this Court the affected parties were impleaded in their representative capacity so that the decision of this
Court would he binding on every member of both the classes of employees
On behalf of the PetitionersAppellants it was contended that equal pay for equal work with equality in all other conditions of service including avenues of confirmation absorption promotion pension and security have become inflexible postulates of service jurisprudence
The respondents contended that what was being asked was a virtual review of Katyani Dayal s case which could not be permitted
It was also contended that principles of constructive res judicata would bar the re agitation of the issues decided in Katyani Dayal s case if not the strict principles of res judicata  and that when the matter has been settled in this particular service its unsettling by means of a petition under Article 32 of the Constitution was impermissible
Dismissing the matters this Court HELD 1
The distinction between the two services was well marked in Katyani Dayal s case and the important question of equality was once for all settled
To find fault with it at this juncture again on the touch stone of equality dimension would be to unsettle a settled position
That venture is neither in the interest of justice nor in the interest of service
When there has been complete absorption of the personnel of one service into the other and the seniority of the absorbers is to he reckoned from their date of absorption as stipulated in their appointment letters with weightage of half the length of 1020 service subject to a maximum of give years it would otherwise be imprudent now
at this point of time to dig up old issues The rule or weightage also appears to be reasonable and this is a pattern which has been noticed and approved In many a Service
Similarly when the dispute raised between the Officers in a representative capacity and Engineers riot so represented still it was a dispute raised before this Court which has been decided finally
1026 B D Katyani Dayal Ors
vs Union of India  Ors1980 3 SCR 139 referred to
The dispute now sought to he raised under Article 32 of the Constitution between the Officers in a representative capacity and Engineer across also in a representative capacity is barred by principles of res judicata as also by the rule of Constructive res judicata
1026 D E 3
It cannot he said that the State is prohibited from creating separate channels of service
Equally when absorption had been made possible and its pace quickened with weight age it is difficult to find fault with the scheme at this point of time to look for a substitution as that would unsettle a settled position established more than a decade ago
1026 E F Direct Recruit Class II Engineering Officers Association vs State of Maharashtra  Others   followed
Raghunandan Prasad Singh vs Secretary Home Police Department Government of Bihar and Ors  Dr OZ Hussain vs Union of India1990 Supp
SCC 688 referred to