(-1-) MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.179 OF 2007 All India Association of Non- Gazetted Officers of the Ordinance & Equipment Factory & Quality Assurance Organization ..Petitioner Vs. Union of India & Ors. ..Respondents Mr. Harihar Bhave i/b. M/s. Bhave & Co., for the Petitioners Mr. Rajiv Chavan with Ms. Rutuja Ambekar for respondent Nos. 1, 2 and 4 to 6. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & R.S.MOHITE, JJ. R.S.MOHITE, JJ. R.S.MOHITE, JJ. DATED: 10th December, 2008 DATED: 10th December, 2008 DATED: 10th December, 2008 P.C.: P.C.: P.C.: . Rule. Heard forthwith. Petitioner had approached this Court and has sought the following prayers:- (a) Issue a Writ of Mandamus or a Writ, Order or direction in the nature of Mandamus or any other appropriate Writ Order or direction under Article 226 of Constitution of India directing the Respondents to implement the Four Tier Structure for the technical supervisors of the Indian Navy as per the directives dated 30th September, 1997 and 26th December, 2001 and as per the recommendations of Fifth Central Pay Commission. (b) Issue a Writ of Mandamus or a Writ, (-2-) Order or direction in the nature of Mandamus or any other appropriate Writ Order or directions under Article 226 of Constitution of India, directing the Respondents to implement the Restructuring of the technical supervisors of Indian Navy in order to implement Four Tier Structure. (c) Issue a Writ of Mandamus or a Writ, Order or direction in the nature of Mandamus or any other appropriate Writ Order or directions under Article 226 of Constitution of India, directing the Respondents to frame the necessary rules of recruitment for implementation of the Four Tier Structure in respect to the technical supervisors of Indian Navy. 2. Various orders came to be passed by this Court from time to time. An additional affidavit has been filed on behalf of Respondent Nos. 5 and 6 by Cdr. R. Rajagopal. In the said affidavit it is set out as under:- (a) Recruitment rules in respect of assistant foreman in accordance with 4 tier structure of technical supervisory staff on NAI cadre has been approved by UPSC after vigorous pursuit be Navy Headquarters. (b) Consequent to the above a total 24 (-3-) eligible chargemen-I (M) were promoted to assistant foreman in mechanical discipline and 17 eligible chargemen-I (A) were promoted to Assistant Foreman in Ammunition discipline on 14th August, 2008. (c) New Recruitment rules (SRO 85/2007 dated 16th September 2008) have been published in the Gazette. Hereto Annexed and marked as Exhibit "A" a copy of the Notification." 3. On behalf of the petitioner learned Counsel points out that for Technical Supervisory staff in defence establishment the respondent No.5 was informed by communication of 26th December, 2001 that the Government has accepted the recommendations to introduce four grade structure for the "Technical Supervisory" category in Defence Establishments and accordingly the President had sanctioned revised pay scales and the grade structure. For that purpose the Recruitment Rules for the new grades had to be framed. A communication of 21st August, 2003 addressed by Under Secretary to the Government of India to the Chief of the Naval staff intimating the sanction of the President for the restructuring of Technical Supervisor Cadre in the Navy. . The Rules made under Article 309 of the Constitution have been gazetted only on 11th (-4-) October, 2008 thereby entitling the persons for consideration for promotion from the year 2008. Normally in the absence of Rules made under Article 309 of the Constitution it was always open to the respondents to issue administrative instructions and make promotions. This did not happen and large number of employees have been denied their legitimate right for considering for promotion in the four tier system. The arbitrariness of the same can be felt as since the 6th Pay Commission recommendations have already been accepted and implemented as of 1st January, 2006. 4. In terms of the Recruitment Rules as notified there is a requirement of having regular service in the feeder cadre from which the candidate has to be considered for the promotional post. Rule 5 of the Integrated Headquarters of Ministry of Defence (Navy), Naval Armament Inspection Organisation, Technical Supervisory Staff and Examiner Mechanic and Ammunition and Explosives Group "B" and "C" posts Recruitment Rules, 2008 provides the power to relax. This power no doubt is conferred in the Central Government to be exercised in consultation with the Union Public Service Commission. We find from the affidavit of the respondents themselves that Recruitments Rules were before the U.P.S.C. for a considerable period of (-5-) time for their approval. Considering the long delay between 2001 and 2008, can the provisions for requiring experience in the feeder post be relaxed or waived. In our opinion considering that there is a power to relax, the ends of justice would require that this Court in the exercise of its powers under Article 226 issue a direction that the requirement of experience in the feeder grade is dispensed with for the purpose of considering the candidate for promotion to the next higher promotional grade in the four tier system. This is to obviate undue hardship to the employees who for no fault have been denied regular promotional opportunities for the last eight years. . The relaxation is justifiable as the initial three tier pursuant to the Fifth Pay Commission have been made into four tire. Most of the employees have experience in the three tier system. We, however, make it clear that other requirement including passing of test, if there be any, will be applicable. The only relaxation is in the matter of experience in the feeder cadre as provided in the Rules. 5. Considering the above and as prayers (a), (b) and (c) have been substantially complied with, in our opinion, the petition can be disposed of by (-6-) issuing direction to the respondents to complete the entire exercise of promotion in the available vacancies available under the four tier system within two months from today by waiving the requirement of experience in the feeder post. 6. Rule made absolute accordingly. There shall be no order as to costs. under Art (R.S.MOHITE, J.) (R.S.MOHITE, J.) (R.S.MOHITE, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)