* THE HONOURABLE SRI JUSTICE GODA RAGHURAM + WRIT PETITIONS NOs. 26203 OF 1999 & 21106 OF 2000 % MONDAY, THE TWENTYFIRST DAY OF MARCH, TWO THOUSAND FIVE # A.Venkateshwara Rao S/o Sri Rama Sastrulu, aged: Major, Resident of Buttaiahpet, Machilipatnam, Krishna District & Others Petitioners Versus $ Bharat Electronics Limited, Machilipatnam Unit, P.B.NO.26, Rabindranath Tagore Road, Machilipatnam rep. by its General Manager. Respondent ! Counsel for the petitioners : Mr. M.Ramesh Ranganathan, Senior Advocate with Mr. R.PAMPAPATI REDDY, Advocate ^ Counsel for the respondents: Mr. E. Manohar, Senior Advocate instructed by Mr. P. Kamalakar, Advocate < Gist : >Head Note: ? 1) AIR 1964 SC 1260 2) AIR 1997 SC 1125 3)(2004)4 SCC 268 4) (1976)1 SCC 496 5) AIR 1971 SC 33 6) AIR 1985 SC 1147 7) (1998)8 SCC 1 8) (2003)2 SCC 107 9) AIR 1967 SC 1889 10) AIR 1955 SC 19 11) AIR 1958 SC 538 12) AIR 1974 SC 1 13) AIR 1974 SC 1631 14) AIR 1970 SC 21 15) AIR 1961 SC 552 16) AIR 1971 SC 1801 17) (1991)2 SCC 48 18) (1994)6 SCC 349 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIRST DAY OF MARCH TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM WRIT PETITION NOs : 26203 of 1999 & 21106 of 2000 W.P.NO. 26203/99:- Between: 1. A.Venkateshwara Rao S/o Sri Rama Sastrulu, aged: Major, Resident of Buttaiahpet, Machilipatnam, Krishna District. 2. Y.Venkata Ramana, s/o Sri Satyanarayana Rao, aged: Major, Resident of 15-551, Edepalli, Machilipatnam, Krishna District. 3. T.Umamaheshwara Reddy s/o Sri Krishna Reddy, aged: Major, Resident of MIG-28, APHB Colony, Machilipatnam, Krishna District. 4. Z.Panduranga Reddy, s/o Rami Reddy, aged: Major, Resident of 15-554/2, Edepalli, Machilipatnam, Krishna District. 5. M.A.P.Hanumantha Rao so late Sri Bhanu Murthy, aged: Major, Resident of Marripati Home, Khojjilipet, Machilipatnam, Krishna District. 6. G.Adisesha Rao s/o late Sri Dharma Rao, aged: Major, Resident of Khalekhanpet, Machilipatnam, Krishna District. 7. K.Balachandravara Prasad s/o Sri Nagannaidu, aged: Major, Resident of Bhaskarapuram, Chilakalapudi Post, Machilipatnam, Krishna District. 8. B.Venkateswara Rao s/o late Sri Bhujanga Rao, aged: Major, Resident of Batchupet, Machilipatnam, Krishna District. 9. G.Venkateswara Rao s/o late Sri Veera Raghavulu, aged: Major, Resident of MIG-29, APHB Colony, Machilipatnam, Krishna District. 10. D.Srinivasa Saastry, s/o Sri Narayana Sastry, aged: Major, Resident of Buttaiahpet, Machilipatnam, Krishna District. 11. B.S.V.Prabhakara Rao s/o Sri B.S.L.N.M.Naidu, aged: Major, Resident of MIG-182, APHB Colony, Machilipatnam, Krishna District. 12. Y.Uma Bala s/o Sri Y.V.Raghava Rao, aged: Major, Resident of Balaramunipet, Machilipatnam, Krishna District. 13. V.Pullayya Sastry s/o Sri Ramakrishna Rao, aged: Major, Resident of Behind NCC Office, Brahmapuram, Machilipatnam, Krishna District. 14. Somasekhar s/o Late Sri Venkateshwara Rao, aged: Major, Resident of Edepalli, Sringarajuvari street, Machilipatnam, Krishna District. 15. M.Durga Rao s/o Appa Rao, aged: Major, Resident of Buttaiahpet, Machilipatnam, Krishna District. 16. M.V.Sita Pathi Rao s/o Kameswara Rao, aged: Major, resident of Edepalli, Machilipatnam, Krishna District. 17. P.Harinadh s/o Sri P.V.Suryanarayana Rao, aged: Major, Resident of Narasimha Nagar, Chilakalapudi post, Machilipatnam, Krishna District. 18. T.S.S.R.Prasad s/o late Sri Jagga Rao, aged: Major, Resident of Englishpalem, Machilipatnam, Krishna District. 19. A.Vijayasekhar Rao S/o Sri Venkateshwarlu, aged: Major, Resident of Jagannadhapuram, Machilipatnam, Krishna District. ..... PETITIONERS AND Bharat Electronics Limited, Machilipatnam Unit, P.B.NO.26, Rabindranath Tagore Road, Machilipatnam – 521 001. Rep. by its General Manager. ....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent in placing the petitioners who are all B.Sc.(M.P.C.) Graduates in Career Path-V of the Career Path scheme of the Machilipatnam Unit of Bharat Electronics Limited, as arbitrary, discriminatory, illegal, contrary to the 1993 career path scheme and in violation of Articles 14 and 16 of the Constitution of India and for a consequential direction to the respondent to treat the petitioners herein on par with diploma holders in Engineering with regards all terms and conditions of service and place them in Career Path-VI for promotion to the next higher grades. For the Petitioner: Mr. M.Ramesh Ranganathan, Senior Advocate For the Respondent : Mr. E. Manohar, Senior Advocate instructed by Mr. P. Kamalakar, Advocate W.P.NO. 26203/99:- 1. A.Venkateshwara Rao S/o Sri Rama Sastrulu, aged: Major, Resident of Buttaiahpet, Machilipatnam, Krishna District. 2. Y.Venkata Ramana, s/o Sri Satyanarayana Rao, aged: Major, Resident of 15-551, Edepalli, Machilipatnam, Krishna District. 3. T.Umamaheshwara Reddy s/o Sri Krishna Reddy, aged: Major, Resident of MIG-28, APHB Colony, Machilipatnam, Krishna District. 4. Z.Panduranga Reddy, s/o Rami Reddy, aged: Major, Resident of 15-554/2, Edepalli, Machilipatnam, Krishna District. 5. M.A.P.Hanumantha Rao so late Sri Bhanu Murthy, aged: Major, Resident of Marripati Home, Khojjilipet, Machilipatnam, Krishna District. 6. G.Adisesha Rao s/o late Sri Dharma Rao, aged: Major, Resident of Khalekhanpet, Machilipatnam, Krishna District. 7. K.Balachandravara Prasad s/o Sri Nagannaidu, aged: Major, Resident of Bhaskarapuram, Chilakalapudi Post, Machilipatnam, Krishna District. 8. B.Venkateswara Rao s/o late Sri Bhujanga Rao, aged: Major, Resident of Batchupet, Machilipatnam, Krishna District. 9. G.Venkateswara Rao s/o late Sri Veera Raghavulu, aged: Major, Resident of MIG-29, APHB Colony, Machilipatnam, Krishna District. 10. D.Srinivasa Saastry, s/o Sri Narayana Sastry, aged: Major, Resident of Buttaiahpet, Machilipatnam, Krishna District. 11. B.S.V.Prabhakara Rao s/o Sri B.S.L.N.M.Naidu, aged: Major, Resident of MIG-182, APHB Colony, Machilipatnam, Krishna District. 12. Y.Uma Bala s/o Sri Y.V.Raghava Rao, aged: Major, Resident of Balaramunipet, Machilipatnam, Krishna District. 13. V.Pullayya Sastry s/o Sri Ramakrishna Rao, aged: Major, Resident of Behind NCC Office, Brahmapuram, Machilipatnam, Krishna District. 14. Somasekhar s/o Late Sri Venkateshwara Rao, aged: Major, Resident of Edepalli, Sringarajuvari street, Machilipatnam, Krishna District. 15. M.Durga Rao s/o Appa Rao, aged: Major, Resident of Buttaiahpet, Machilipatnam, Krishna District. 16. M.V.Sita Pathi Rao s/o Kameswara Rao, aged: Major, resident of Edepalli, Machilipatnam, Krishna District. 17. P.Harinadh s/o Sri P.V.Suryanarayana Rao, aged: Major, Resident of Narasimha Nagar, Chilakalapudi post, Machilipatnam, Krishna District. 18. T.S.S.R.Prasad s/o late Sri Jagga Rao, aged: Major, Resident of Englishpalem, Machilipatnam, Krishna District. 19. A.Vijayasekhar Rao S/o Sri Venkateshwarlu, aged: Major, Resident of Jagannadhapuram, Machilipatnam, Krishna District. ..... PETITIONERS AND Bharat Electronics Limited, Machilipatnam Unit, P.B.NO.26, Rabindranath Tagore Road, Machilipatnam – 521 001. Rep. by its General Manager. ....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent in placing the petitioners [who are all B.Sc.(M.P.C.) Graduates recruited along with Diploma holders in the same grade, same pay scale], in Career Path-V of Memorandum of Settlement dated 28-04-2000 i.e., Modified Career Plan scheme of the Machilipatnam unit of Bharat Electronics Ltd., as arbitrary, discriminatory and in violation of Articles 14 and 16 of the Constitution of India and for a consequential direction to the respondent to treat the petitioners on par with Diploma holders in Engineering with regards to all terms and conditions of service and place them in Career Path-VI for promotion to next higher grades. For the Petitioner: Mr. R. Pampapati Reddy, Advocate For the Respondent : Mr. E. Manohar, Senior Advocate instructed by Mr. P. Kamalakar, Advocate The Court Made the Following : :: COMMON ORDER :: The petitioners (19) in number are all working as Junior Laboratory Officers earlier designated as Technical Assistants, in the Machilipatnam Unit of Bharat Electronics Limited, (for short ‘the BEL’) a public sector undertaking and an instrumentality of the State. A Brief History :- A company in the private sector by name “The Andhra Scientific Company Limited” was established in 1926 in Machilipatnam, Krishna district in the State of Andhra Pradesh, for the manufacture of laboratory and educational equipment. The company was engaged in the manufacture of optical instruments required for medical, survey and industrial applications. It also entered the defense field and manufactured optics based components for the defense requirements. The company had fallen sick and was closed during 1971-72. In 1972, the Ministry of Defence, in the public interest, took over the management of the Company and ran it for about a decade. The Andhra Scientific Company Limited (Acquisition and Transfer of Undertakings) Act 1983 was enacted by the Parliament whereby inter alia the assets and liabilities of the Company were taken over by the Union. By another order of the Union Government, the unit of the erstwhile Andhra Scientific Company Limited was vested with an existing public sector undertaking, Bharat Electronics Limited, Bangalore, in the year 1983. As a result, the Machilipatnam establishment became one of the 9 units of the BEL. The petitioners, graduates in Science B.Sc., (MPC) were recruited at the non- worker – supervisory level as Technical Assistant Trainees II on various dates, during 1983-88. On recruitment, they underwent on-job training for a period of one year and on completion were confirmed in wage group VII in the Machilipatnam Unit of the BEL. The relevance of absorption in Wage group-VII will be dealt with during the course of this judgment, as it is relevant to the lis presented herein. Suffice it to record, at this stage, that the petitioners on recruitment into service were placed in Wage group VII along with Diploma Holders who were also recruited as Technical Assistant Trainees. The Diploma Holders were also recruited in the Machilipatnam unit as Technical Assistants II after a one year on-job training, as were the petitioners. Technical Assistants both Science graduates and Diploma holders, were working in integrated and complimentary operations in the optical instrumentation area. There was no diploma in Optics offered by any educational institution in the country, either at the time of recruitment of the petitioners and the other Diploma holders during the year 1983-88 or even till date. These are undisputed facts. During the period of the initial management of the Machilipatnam unit by the B.E.L., there was no defined promotion policy formally expressed in any instrument either by way of Rules or administrative instructions. The Technical Assistants of the Machilipatnam unit of the BEL were being promoted from one wage group to the next without any clear cut policy on promotions or distinction between the science graduates and diploma holders or those with I.T.I. qualifications. It also requires to be noticed that the Machilipatnam Unit is the only optical instrumentation unit in the country among the nine (9) units administered by the B.E.L. As no specialized qualification in optics at the diploma level was imparted in the country in any educational institution, in the Machilipatnam unit Diploma Holders in other disciplines like Mechanical Engineering and science graduates with M.P.C qualifications were recruited as ‘Technical Assistants’ and imparted in-employment training and then employed in the optical engineering departments. On account of the specialized operations of the Machilipatnam unit of the B.E.L. in the optical engineering area, the recruitment policy in effect was always distinct from other units of the B.E.L. At the Machilipatnam unit, in the Technical Cadre at the initial level, candidates with 10th class qualification are recruited and given three years on-job training on a monthly stipend and thereafter placed in Wage group-4 on par with I.T.I. certificate holders. At the supervisory level, B.Sc., (M.P.C.) graduates and candidates possessing diploma in Mechanical Engineering were being recruited and inducted in Wage group-VII. They were initially designated as Technical Assistant Trainees after providing them one year ‘on job’ training common for both science graduates and diploma holders. On induction into Wage group-VII, it is axiomatic that both Diploma Holders and science graduates were entitled to and paid identical scales of pay and other emoluments. The grievance of the petitioners is as regards the accelerated career opportunities provided to the class of Diploma Holders, while denying similar treatment to their class i.e., Science Graduates, a situation brought about by a promotion policy introduced for the first time in the Machilipatnam unit in the year 1993 and with effect from 1.11.1991 (for short ‘the 1991 career plan’). By a Memorandum of Understanding dated 11.2.1993, arrived at between the management of the Machilipatnam Unit of the B.E.L and its workmen represented by the Andhra Scientific Company Employees Union (a recognized union), a career plan scheme was evolved to provide equitable opportunities for career growth to employees. The MOU noted the existence of an earlier career plan providing promotional opportunities to non-executive employees of the Machilipatnam Unit, which was introduced by an office order dated 16.5.1986 and the need for its review. The effective date of implementation of the revised career plan is specified in the MOU to be 1.11.1991. Paragraph-5 of the MOU recorded an agreement between the parties to the settlement, that some of the aspects raised by the recognized union could be referred to the Corporate Office for consideration. Among the aspects to be so referred, is the question whether “existing Technical Assistants with B.Sc. qualification inducted in wage group VII be considered for career path VI on par with Three Year Diploma Holders because of the nature of the work of this unit.” (Para-5b). Annexure-A to the MOU dated 11.2.1993 set out the career plan scheme for non-executives. Paragraph-4 of this scheme specified the several career paths into which the employees engaged in various disciplines/trades in the Machlipatnam Unit are to be categorized depending upon educational qualifications and skills at the relevant induction points. Six career paths are enumerated. A note to Paragraph-4 enumerates a modified spectrum of career paths for existing employees of the Machilipatnam Unit. This modified enumeration is set out in Annexure-II of the 1991 career plan. According to the Annexure-II, Sl.No.1 is the career path No.I for unskilled employees having a qualification of less than 8th standard; career path No.II for semi-skilled employees having 8th standard; career path No.III for semi-skilled employees having a qualification higher than 8th standard but less than SSLC or equivalent; career path No.IV for skilled category-II employees who had a qualification of SSLC + in Company training in a specified Trade; career path No.V for skilled category-I employees with qualifications of less than SSLC + ITI/3 years Company Training/Graduate with specific skills and career path No.VI for employees categorized as technician having diploma in Engineering or equivalent/Post Graduation. Annexure-I to the 1991 career plan sets out details of classification of jobs in respect of the above six career paths. According to Annexure-I posts fitted in career path V i.e., those with qualifications of SSLC+ITI/Graduation+Proficiency in Trade, include the post of Technician and entitled to wage groups 4 to 10 whereas the posts fitted into career path No.VI i.e., those with qualification of diploma in Engineering or equivalent/Post Graduation are entitled to wage groups 7 to 10 and thereafter to further career prospects to the technical cadres 1,2 and 3. As a consequence of the 1991 career plan, the diploma holders and the B.Sc. MPC Graduates (the petitioner’s class), who were together recruited in the Machilipatnam Unit as Technical Assistant Trainees, who had undergone a common one year on job training and were placed in wage group-7 in identical scales of pay, were nevertheless subjected to differential treatment in the matter of career advancement opportunities. Technical Assistants having diploma qualification were treated on par with PG Degree holders and for this class the promotional avenues commenced from wage groups 7 to 10 and therefrom to TC-I, in the Executive cadre by reason of inclusion in career path- V I . Further those inducted in career path-VI (including diploma holding Technical Assistants) on completion of 5 years service are automatically entitled for promotion to wage group 8 from wage group 7 and on completion of 5 years service in wage group 8 and on passing the prescribed test to automatic promotion to wage group 9. On completion of 5 years service in wage group 9 employees in the career path-VI are entitled to further promotion to wage group 10 and on completion of 7 years service in this wage group and on passing the prescribed test, to further promotion to the Executive cadre TC- I. The petitioners who were recruited similarly, were identically circumstanced, were performing identical functions and were along with diploma holders categorized as Technical Assistants and inducted into wage group-VII initially, were however placed in career path-V in the 1991 career plan, they were entitled for promotion only up to the non-executive cadre – wage group 10, but not to the executive grade i.e., TC-I and beyond. Even in the number of years of service required for promotion from wage group 9 to 10 a distinction is made between those in career path-V and those in career path- VI. In career path-VI employees who have completed 5 years of service in wage group 9 are entitled for promotion to wage group 10, whereas 6 years is required to be put in wage group 9 for those included in career path V before they become eligible and entitled for promotion to wage group 10. Further for the first time in the 1991 career plan, three Executive Cadres– TC-I, II and III (Technical Cadre), were introduced as an extension of the non-executive career channel to avoid stagnation of employees in the non-executive cadre. As a result, on completion of the required service and passing of the test, employees in the non-executive cadre would be entitled for promotion to the executive cadres. This facility is however available only to employees included in career path VI but not to the petitioners who are placed in career path-V, by the 1991 career plan. As the 1991 career plan facially discriminated between the petitioners’ class and the diploma holders both of whom were recruited as Technical Assistants with identical on job training, similar functions and responsibilities in the Machilipatnam Unit of BEL, the petitioners filed W.P. No. 26203/99 seeking a declaration that their placement in career path V is arbitrary and discriminatory, and a consequential direction to the respondents to treat them on par with diploma holders in Engineering as regards the terms and conditions of service and to place them in career path VI for promotion to higher grades. During the pendency of the above writ petition another Memorandum of Settlement was entered into between the respondent-Management and the Workmen of the Machilipatnam Unit of BEL, u/Sec.12(3) and 18(3) of the Industrial Disputes Act, 1947. This Memorandum of Settlement incorporated a modified career plan. Paragraph 9.1 of the Memorandum of Settlement dated 28.4.2000 specifically recorded that the objections (claims) raised by the petitioners (in W.P. No.26203/99) would be decided as per the order of this court. It must therefore be considered that the grievance of the petitioners in W.P. No.26203/99 was not extinguished by the Memorandum of Settlement dated 28.4.2000. By an office order dated 17.7.2000 of the respondent-Management, the modified career plan pursuant to the settlement dated 28.4.2000, was directed to be implemented, w.e.f. 1.5.2000. This modified career plan is referred to herein as the career plan 2000. Paragraph-4 of Annexure-A of the career plan 2000 sets out six career paths which are identical to those specified in the 1991 career plan. Annexure-II of the career plan 2000 sets out six career paths for the existing employees which are identical to those specified for existing employees in the 1991 career plan. Even in the career plan 2000, the petitioners class is fitted into career path-V while the diploma holders into career path-VI. The only benefit now conferred to those inducted into career path-V, is that after advancement into wage group-10, employees in career path-V who have put in 5 years and have a satisfactory record of service would be entitled for promotion to TC-I. Annexure-III to the career plan 2000 has specified the equivalence of qualifications. According to this annexure, Graduates include those having B.A., B.Com. or B.Sc. (Science, Mathematics and Computer Science) qualifications; Diploma Holders include holders of Diploma in Engineering of a recognized institution of at least 3 years duration in the relevant subject and Post-Graduation includes M.A., M.Com. and M.Sc. (Science, Mathematics and Computer Science). Employees included in career path-VI, (including the diploma holding Technical Assistants) are however entitled to growth from wage group 10 directly to TC-II on completion of 5 years service and satisfactory performance in tests and service record. As the petitioners (Graduate Technical Assistants) continued to be treated distinctly and unfavorably vis-à-vis diploma qualified Technical Assistants and were subjected to restricted career opportunities, even under the career plan 2000, they filed W.P. No. 21106 of 2000, in substance assailing the Memorandum of Settlement dated 28.4.2000 and seeking a direction to the respondents to treat them on par with Diploma Holders as regards the terms and conditions of service and to place them in career path-VI for promotion to higher grades. The Challenge :- The grievance of the petitioners set out in the two writ petitions, though directed against two separate career plans (promotional policy) is however substantially the same and may be summarized as under: A) The Science Graduates and Diploma qualified technical assistant trainees were recruited under a common policy in the Machilipatnam Unit, were subjected to an identical in-service training, the merit was commonly evaluated for recruitment, on completion of training they were identically put in wage group VI and thereafter together upgraded to wage group VII during 1987 and on successful completion of trade test and interview they were absorbed into the permanent cadre on an assessment of their interse merit without distinction between Science Graduates and Diploma holders. (B) In the main departments in the Mechanical and Optical work areas connected with production and production related work Science Graduate Technical Assistants were employed. The petitioners have filed a “flow chart” (pleaded in para-11 in WP 21106 of 2000) showing the Diploma holders and Science Graduates’ participation in various departments relating to production of optical instruments. According to this flow chart (not contested in the counter affidavit) while Diploma Holders were employed in mechanical areas such as production control, component fabrication shops, inspection, testing and the like, Science Graduate Technical Assistants work in optical areas of identical nature. The flow chart also shows that these several operations of the optical and mechanical areas are integrated processes. (C) In the Machilipatnam Unit alone 10th Class qualified candidates are imparted 3 year in-service training and are treated as equivalent to ITI certificate holders during recruitment; B.Sc. (MPC) graduates were factually treated as equivalent to Diploma Holders in Engineering for recruitment as Technical Assistant Trainees and for absorption in the permanent cadre as Technical Assistants; and candidates possessing M.Sc. (Tech) PG Degree in Optics are treated on par with the Graduates in Engineering. (D) The Machilipatnam unit is the only unit of BEL which is optic based and its operations are distinct from other units of BEL. The B.Sc. (MPC) Graduates in the Machilipatnam unit have always been distinctly treated vis-à- vis other graduates who are recruited to work as Laboratory Assistants and in the clerical cadre. These other graduates were never posted in production departments nor were imparted training at the time of recruitment. (E) Though in principle, employees of the BEL are liable to be transferred from one unit to the other, since 1984 till date transfer of non-executives of the Machilipatnam unit to the other units of the BEL was only made on the employee’s request or on medical grounds. Following of a distinct career plan for the Machilipatnam Unit vis-à-vis other units of BEL would not therefore result in any administrative inconvenience. One Mrs. Renuka Devi, recruited in the Machilipatnam unit with a 10th class qualification and imparted 3 years training was placed in career path-V along with ITI candidates, pursuant to the 1991 career plan. She was transferred to the Hyderabad unit of BEL and continued in career path V, though the 3 year training imparted to a 10th class candidate and placement in career path V is peculiar only to the Machilipatnam unit (vide ground-H para-11 in WP