3g HIGH COURT OF CHHATTISGARH AT BILASPUR W.P.(5) NO. 5044 OF 2008 Wri‘l' pe‘rifion under Af‘ticle 226 of the Consfifufion of India Presen 7‘ : Mr‘. v.6. Tamaskar', learned counsel for' fhe pe‘l'i‘l'ioners. Mr. P. Diwakar, learned 5r. Advoca’re wiTh Mr. K. Shakeel, l counsel for The respondenfs. ORDER (Passed on 5"“ January, 2009) Dhirendra Mishra J The pe’ril’ioner's are non-execufive employees of Bhilai Sfeel Plam‘, a subsidiary of S‘reel Au’rhorify of India L‘rd. (in shorf ‘SAIL') -respondenf No.1. Wrif Pe‘li‘rion Nos.-559/96, 1749/96 and PETITIONERS 1. Alok Agrawal (P. No.150291) S/o Mahendm Pmsad AgraWal 2. Hrishikesh Prasad (P.No.149950) S/o Shr‘i SM. Pmsad 3. SanTosh Agrawal (P.No.149157) S/o La‘re Ram Dos Agrawal All employees of Bhilai Steel Plan’r, Sfeel Aufhorify of India Limifed Bhilcu' Nagar', Tah. & Disf’r. Dur'g (CG) VERSUS RESPONDENTS 1. Sfeel AuThoriTy of India Limi‘red Through : Chairman Sfeel AuThor‘i’ry of India L’rd. Ispa’r Bhawan, Lodhi Road, New Delhi. 2. Managing Direc‘l‘or‘, Bhilai Sfeel Plam‘, Sfeel Aufhor'i’ry of India Lid. Ispa‘l Bhawan, Bhilai Nagar, Tah. 6i Disl‘f. Dur'g (CG) 4269/96 were disposed of by ‘rhis Courtf by common order do‘l‘ed 16m July, 2007 wi‘rh a direc’rion To fhe respondenfs ’ro consider the cases of The pe’rifioners for promo’rion, who have nof been promofed Till doTe, from non-execuTive cadre To executive cadre wi’rhin one mom‘h by a speaking order. Vide order dated 215* September, 2007, the respondents were allowed further time of one month for compliance of the order dated 16.7.2007. Vb 2. By the instant petition, the petitioners have impugned the Circular dated 18.7.2008 (Annexure P/12), whereby applications have been invited from eligible non-executive employees for consideration for promotion to the posts of Junior Officers at all Plants/Units of SAIL, and as per selection procedure, the eligible candidates are required to appear in written test followed by interview. 3. Mr. V.G. Tamaskar, learned counsel appearing for the petitioners submits that contention of the petitioners in this writ petition is that as per existing promotion policy for promotion from non—executive to executive cadre, no written examination was prescribed, the same would be eVident from various orders (Annexures P/4 to P/9) passed inthe writ petitions filed by the non—executives in this regard. In compliance of the order dated 16.7.2007 (Annexure P/1), which was passed on the basis of consent given by learned counsel for the respondents, the respondents were duty bound to consider the cases for promotion of the petitioners as per existing promotion policy. Circular of Annexure P/12 amounts to change in service conditions of the employees of the respondent-company. Service conditions can be altered only by resolution of Boardr of Directors of the, 3k? responden’r—company and fhe same cannof be altered wifhouf pre— decisional hearing. 4. Reliance is placed on ’rhe judgmenl‘s in lhe maflers of éavemmem‘ of Andhra Pradesh and anafher Vs. Dr. R. Mum/i Babu Raa and anafher1, H.L. Trehan and afhers Vs. Union of India and arhersz, and in fhe ma’r’rer-s of Hemani Mal/Infra Vs. H/y/I Courf of De/hla. 5. On The olher‘ hand, Mr. Diwakar, learned Sr‘. Advoca‘re with Mr‘. Kasif Shakeel, Advocate appearing for the respondents contended that the respondent No.1 has five Integrated Steel Plants including Bhilai Steel Plant. It has three Special Steel Plants, Iron Ore Mines and other quarries and collieries and Central Marketing Organization. More than'1.2 lac employees work under the above establishment. It has common policy for promotion from non—executive cadre to executive cadre for all its units. Promotion policy was in force since 1988., Board of Directors of SAIL, in its meeting dated 30’“ October, 2007 approved the promotion policy, which was circulated vide document of Annexure R/1 dated 30”‘ January, 2008. Subsequently, rules were framed for promotion from non-executives to execLItive cadre and the same was circulated on 21“ February, 2008 vide Annexure R/Z. After due consideration of the proposals received from various units and after incorporating amendments, the amendments in the policy and rules were circulated vide document of Annexure R/3 dated 6.5.2008. In response to the impugned Circular dated 18.7.2008, 12,500 non-executive employees applied for written test. Two contempt petitions arising out of order dated 16.7.2007 2 1 (1938) 2 SCC 386 3 (1989) 1 SCC 764 (2008) 7 SCC 11 (Annexur'e P/1) are pending before fheHon'ble High ourt The policy for promo‘fion from non—execufive ’ro execufive cadre has been changed wi‘rh ’rhe approval of Board of Direc‘rors of SAIL. The above order nowhere men‘rions Tha‘r cases of The pe‘rifioners for promotion should be considered as per promofion policy of 1996 and in Wri’r PeTi’rion No.4123/87 and 506/81, fhe pefifioners had prayed for quashing of promo‘rion policy, however, The Hon’ble High Cour? did no’r in’rerfere wi‘rh ’rhe promo‘rion policy. 6. As per policy for promofion of The non—executives ’ro execufive cadre of 1988,"rhe candidafes, clearing fhe in’rerview for the posf of E-O, are also required fo clear The PosT SelecTion ExaminaTion and five opporTuniTies are given To such candidaTes for clearing The same. The wriT peTiTions, in which The order of Annexure P/1 was passed, were noT filed for The relief of promoTion and The same were filed for The relief of appoinTmenT. In compliance of The direcTions of The, Hon’ble High CourT, Their cases for promoTion were considered vide order daTed 8.12.2007 (Annexure A/l, filed along wiTh reply To The applicaTion for inTerim relief). As per provisions of The promoTion policy prevailing in The year 2007, promoTion was To be made effecTive w.e.f. 30m June, 2008 as lasT promoTions were made w.e.f. 30*“ June, 2006 and The promoTion could be made once in Two years. This provision subsisTs in The presenT promoTion policy also. The peTiTioners have noT challenged The promoTion policy and Therefore, in The absence of challenge To The promoTion policy, relief claimed by The peTiTioners cannoT be granTed. Under The promoTion policy due weighTage has been assigned To The aspecTs of qualificaTion, experience and performance. so (We C 7. Mr'. Diwakar further argued Tha’r in compliance of fhe order daTed 16.7.2007 a special committee was consfi‘rufed fo consider ’rhe promoTion ca5es of eligible non-execu’rive candidafe§ To execu‘rive cadre as on 16.7.2007. Petitioners No.1 and 3 were no‘r found eligible for promotion whereas pe’rifioner No.2 was found eligible as on 16.7.2007 and The same was communica‘red lo ’rhem vide Annexure A/1. All The ‘rhree pe’ri’rioners have already par’ricipafed in The selecTion process for promoTion and as such, They are esTopped from challenging The selecTion process. In any caSe, deTerminaTion of condiTions of Service including policy for promoTion perTains To The field of policy and in such caSes, normally judicial review is noT permissible. The rules in force aT The Time of promoTion would be applicable for granTing promoTion and noT The earlier rules. $9 8. Reliance is placed on The judgmenTs in The maTTers of P.U. Jashi and afher's l/s. Accounfanf 6eneral, Ahmedabad and ofhers4, and srafe of Jam/nu and Kashmir Vs. Shiv Ram Sharma and ofners5. 9. I have heard learned counsel for The parTies and gone Through The maTerial available on record. 10m While disposing of Three wriT peTiTions, vide order daTed 16.7.2007, This CourT direcTed The respondenTs To consider The cases of The peTiTioners for promoTion, who have noT been promoTed Till daTe from non-execuTive cadre To execuTive cadre. The respondenTs, vide order daTed 8m December, 2007 (Annexure A/1), considered The cases of The peTiTioners for promoTion from 4 (2003) 2 scc 632 5 AIR 1999 sc 2012 é"r,. J": a v 1/“ The pefi‘rioner's for' promotion, fhere wos.no promo‘l'ion policy which required conducfing of wr'i‘r‘ren examina’rion. Subsequen‘r change in The policy, vide Annexur'e P/l, was made wi’rhou’r affording any opporiruni’ry of hearing fo The pefi’rioner‘s, whereas service condifions of The employees of an indusfr'iai undertaking cannof be ai’rered wifhou’r a pre-decisi’onal hearing and the defect cannof be cured by posf-decisionai hearing. 13. In the case of 60W. of And/7m Pradeshl, it has been held that in the matters of promotion, eligibiiity of a candidate at the time of preparation of panel of eiigible candidates, is to be determined in accordance with the qualification and experience as provided under the rules prevailing at the time of preparing the panel and the eligibility shall not be affected by subsequent amendment of the rules. i\ 14. In the matter of H. L. Trehanz, after the take over of the Caltex (India) Ltd. by the government, the Board of Directors of the Government Company, issued a circular prejudicially affecting the terms and conditions of service of its employees, which resulted in civil consequences and the above circular was issued without pre-decisional hearing to the employees. In these circumstances, it was held that the impugned circular cannot be sustained as it offends against the rules of natural justice and the post—decisional hearing does not serve the rules of natural justice. 15. In Hemam'Ma/hofrf case, the selection process for filling 16 vacant posts by direct recruitment to Delhi Higher Judicial Service was commenced and it consisted of written examination and interview/viva voce examination. After conducting written examination, the candidates were called to appear for interview. / However, resul‘rs of the wr‘i’r’ren examinah'on were no‘l‘ declared and no merif lisf of fhe successful candidates was prepared. The candidafes, who appeared for inferview/viva voce examinafion,‘ were informed fha'r The inferview has been postponed. In fhe meanwhile, The selecfion commif’ree re50lved Tha‘l‘ i‘r Was desirable To prescribe minimum pass marks for viva voce and The maTTer be placed before The Full CourT and accordingly, The Full CourT resolved To prescribe minimum qualifying marks in viva voce examinaTion also. In The aforesaid facTual background, iT has been held ThaT changing rules of The game during selecTion process or when iT is over, is noT permissible. 16. In The maTTer of RU. Josh/4, The Hon’ble Supreme CourT, in para 10 of iTs judgmenT, has held ThaT quesTions relaTing To The consTiTuTion, paTTern, nomenclaTure of posTs, cadres, caTegories, Their creaTion/aboliTion, prescripTion of qualificaTions and oTher condiTions of service including avenues of promoTions and criTeria To be fulfilled for such promoTions perTaih To The field of policy, The same is wiThin The exclusive discreTion and jurisdicTion of The STaTe, subjecT, of course, To The limiTaTions or resTricTions envisaged in The ConsTiTuTion of India and iT is noT for The sTaTuTory Tribunals, aT any raTe, To‘direcT The GovernmenT To have a parTicular meThod of recruiTmenT or eligibiliTy criTeria or avenues of promoTion or impose iTself by subsTiTuTing iTs views for ThaT of The STaTe. IT has been furTher held ThaT iT is well open and wiThin The compeTency of The STaTe To change The rules relaTing To a service and alTer or amend and vary by addiTion/subsTracTion The qualificaTions, eligibiliTy criTeria and oTher condiTions of service including avenues of promoTion, from Time To Time, as The adminisTraTive exigencies may need or necessiTaTe. There is no' / ;4. Ji‘., ' "v. x (U3 righ‘r in any employee of fhe STa‘re To claim ’rha‘r rules governing condi'rions of his service should be forever ’rhe same as fhe one when he enTered service for all purposas. 17. In The ma’r’rer of Sfafe of Jammu and Kashmitf’, respondenfs joined fhe service long before fhe rules in quesfion were promulga’red. There was no prescrip’rion of qualificafion of mafriculafion for promofion. Subsequently, fhe S’ra’re promulgafed rules prescribing qualifica’rion of mafricula‘rion for promotion and because of Thaf reason The respondents were deprived of promotion. The High Courf direcfed fo relax fhe relevanf rules resul’ring in benefif To The respondenTs. In appeal preferred by The SfaTe, The Hon’ble Supreme CourT held ThaT There is no indefeasible righT in The respondenfs To claim for promoTion To a higher grade To which qualificaTion could be prescribed and There is no guaranTee ThaT Those rules framed by The GovernmenT in ThaT behalf would always be favourable To Them. e w Referring To iTs earlier judgmenT in The maTTer of Ros/Ian La/ Tandon Vs. Um'on of Ind/a, AL? 1967 56' 1889, iT has been held by The Hon'ble Supreme Cour'T ThaT once‘appoinTed an employee has no vesTed righT in regard To The'Terms of Service buT acquires a sTaTUs and, Therefore, The righTs and obligaTions ThereTo are no longer deTermined by consenT of parTies, buT by ‘sTaTuTe or sTaTuTory rules which may be framed and alTered uniIaTerally by The Government 18. In The insTanT case, The peTiTioners have impugned The Circular of Annexure P/12, whereby a policy decision Taken by The respondenTs has been circulaTed, requiring The eligible non— execuTive employees To appear in The wriTTen examinaTioJn for *W promotion to executive cadre As per direcfions of this Coum‘ vude order dated 16 7 2007 The respondenfs duly conSIdered The cases of ‘rhe pehhoners for promotion from non~execuhve To execu’nve cadre and pom-loner No.2 was found eligible for consideration for promofion. Since 1900 ofher employees were found eiigible for The above promofion, The pe’rifioners were direcfed fo participafe in ‘rhe seiecfion process as per existing promofion policy. There is no change in fhe eligibiiify criferiaof a candidate for promofion from non—execufive fo executive cadre Since the number of eligible candidates for promotion is high (more than 12 500 in all units and more than 1900 in Bhilai Steel Plant) the respondents have taken a policy deCIswn to conduct written examination for short listing the eligible candidates In my conSidered opinion the above policy deciSion which is applicable uniformly to all the eligible candidates including the petitioners, cannot be termed to be a policy decision of such a nature which adversely affects the service conditions of the petitioners. 19. For the aforesaid reasons, this Court does not see any substance in this petition, the same deserves to be dismissed and is accordingly, dismissed.‘ 20. No order as to costs. \ Sdf- Dhirendra Mishra‘ Judge ‘ brim .éooé