Judgment Case ID: 3368

Judgment:
ition No. 469 of 1971. Under article 32 of the Constitution af India. V. M. Tarkund	 V. N. Ganpule and P. C. Kapoor for the petitioners. G. L. Sanghi and section P. Nayar for respondents 1 4	 respondents S to 16 not represented. The Judgment of the Court was delivered by BEG	 J. Twenty two petitioners under Article 32 of the Constitution have come to this Court with the following assertion: (1) They are employed as civilian non gazetted Officers holding posts of Chargemen Grade II (Chemists) in high explosives ' Factory	 Kirkee	 which is one of the 28 ordnance Factories	 located all over India	 controlled by opposite party No. 2	 the Director General of ordnance Factories	 with his Head office at Calcutta. (2) The Factory has four cadres of officers: (i) Gazetted officers; (ii) Non Gazetted officers; (iii) Non Industrial employees; (iv) lndustrial employees. The petitioners belong to the second cadre which has four grades: (a) Foremen; (b) Assistant Foremen; (c) Chargemen Gr. I; (d) Chargemen Grade II. The 3rd cadre of nonindustrial employees has two grades (i) Supervisor 'A ' Grade; and (ii) Supervisor 'B ' grade. The employees of the 3rd cadre are classified as Class III employees in the general scheme of classification of Govt. servants who are governed by India ordnance Factories (Recruitment and Conditions of Service of Class II personnel) Rules. (3) The seniority rules of Gazetted and Non Gazetted officers of the ordnance Factories are laid down in office Memorandum dated 4th January	 1956	 amended in 1961 (Annexure 'B '). (4) The Director General of ordnance Factories	 Respondent No. 2	 issued an advertisement	 dated 14th November	 1962 for direct recruitment to the grade of Foremen	 Assistant Foremen	 Chargemen Grade I and Ghargemen Grade II. At the time of this advertisement	 all the petitioners	 except petitioner No. 12	 were already serving as officiating Supervisors of 'A ' Grade of Class IIl: employees. In answer to the advertisement for appointment to temporary posts with prospects of being "considered for permanent appointment in due course"	 the petitioners	 who possessed the minimum qualification prescribed	 applied for direct recruitment which was open to them also. The petitioners were for interview by a letter issued by the General Manager	 High explosives ' I Factory	 Kirkee	 on 7th February	 1963	 but	 after the interviews	 no letters of appointment were received by the petitioners other than petitioner No. 12. 760 (5) They were promoted between April	 1963	 and November	 1963	 from their substantive grade of Supervisor 'A ' to Chargemen Grade II by the General Manager of their factory	 on short term basis	 by virtue of powers delegated to him. Petitioner No. 12	 who was not in service at all before	 was appointed a temporary chargemen	 Grade II	 in April	 1963	 as a result of his selection after interview. Respondents 5 to 16	 however	 entered ' the ' grade of Chargemen Grade II between 1st December	 1963 and 4th February	 1965	 and were also shown as temporary Chargemen Grade II	 but	 they were not holding any post in the grade of Supervisors. The respondents were apprentices before entering into the Grade II of Chargemen. r (6) The promotions of the petitioners were given ' retrospective effect	 by an order dated 11th June	 1965	 passed by the Director General ordnance Factories. In December	 1967	 however	 the petitioners were superseded by others who were alleged to be their juniors. The petitioners made representations and sent reminders which were not replied to. Respondents S to 16 were promoted from Chargemen Grade II to the grade of Assistant Foremen by an order of the respondent No. 2 Director General ordnance Factories dated l 7th September	 1971. This order according to the petitioners amounted to another supersession of the petitioners who were shown as holding permanent posts only as Supervisors of 'A ' grade in 1971. The petitioners	 therefore called to this Court on 14th December	 1971 against the orders dated 17th September	 1971	 Which amounted to their supersession. The petitioners also alleged that as no orders were communicated to them showing that they were considered direct recruits by the ordnance Depot by the Ministry of Defence Production in the Govt of India or anyone on its behalf	 they came to know	 for the first time	 as a result of the replies filed by the respondents to the Writ Petition that they were being treated as direct recruits so that they could only be confirmed when their turn came in the 20% quota of direct recruits and not in the 80% quota of the promotees. The petitioners	 therefore	 applied for the amendment of the petition and were permitted by this Court	 under an order dated 16th November	 1973	 to do so. They alleged	 by means of this amendment that their classification as direct recruits instead of as Promotees was Seniority fanciful	 arbitrary	 and even capricious". They also alleged that the seniority list filed in reply to their petition had been kept concealed from them and that it was prepared in utter disregard to statutory rules 10(1) to 10 to (4) contained in S.R.O. 4. These rules are 10(1) The Director General will prepare a seniority list of all the officers in their own categories according to the following procedure: (i) As between two officers holding a particular class of appointment	 in a substantive capacity	 seniority in that 761 class of appointment as well as in the officiating appointments held by them in the same rank or different ranks shall be determined with reference to the date of the substantive appointment. (ii) Subject to the provisions of clause (iii)	 an officer holding an appointment in a particular class in a substantive capacity will he normally senior to an officer holding an appointment in the same class in a non substantive capacity. (iii) Seniority of persons holding temporary appointments which are made on agreement or on probationary basis and which are expected to be continued after the expiry of the initial period	 will be reckoned vis a vis others holding permanent appointments in the same grade in the ordnance Factories from the date from which the officer concerned have been holding appointments of the same grade continuously. The seniority so assigned to such per sons shall not be disturbed on their confirmation at a later stage. Note: This clause applies only to persons recruited through the Union Public Service Commission and to those recruited directly	 otherwise than through the Union Public Service Commission prior to 1st April 1947. (iv) Temporary seniority in a given grade will be reckoned from the date from which the officer concerned has been occupying it continuously	 irrespective of whether he has a substantive appointment in some lower grade" The reply of the respondents is that the so called promotion orders	 of which the petitioners want to take advantage	 were really the result of a mistake or misunderstanding in not realising the actual legal position of the petitioners as direct recruits. It was pointed out that	 in the letters issued calling them for interviews as direct recruits	 it was made clear to them that their appointments did not carry with them any decision about their fitness for the post applied for and that they could be considered for any lower post to which they might he so entitled. In other words	 this clearly meant that they were on trial. It was also pointed out that promotions are only made under Rule 6 of the Indian Ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules	 1956	 as amended in 1961 to Chargemen Grade II	 on the basis of "a selection list prepared by the appropriate Departmental Promotion Committee". rt was asserted that	 in the minutes of the Departmental Promotions ' Committee held in the month of April 1963	 prior to the appointment of petitioners as Chargemen Grade II	 the Committee had prescribed a normal minimum qualification of three years ' service in the post of Grade 'A ' for promotion barring exceptional cases of ex apprentices. It was asserted that	 as the Petitioners had not satisfied this condition	 they could not be considered for promotion to the posts of Chargemen Grade II. They did not belong to the class 762 which had any exceptional qualifications. Hence	 their names did not appear in the list of persons to be promoted prepared by the Departmental Promotions ' Committee for the post of Chargemen Grade II. It was asserted that they were being treated as direct recruits and not promotees despite their wrong description and even wrong orders conveying the impression that they were promotees. The condition precedent to promotion not having been satisfied they could only be considered as direct recruits and get the appointments reserved for the class of direct recruits as and when their turns arrived in this quota. It was conceded on behalf of the respondents that much larger number of appointments had been made in the class of direct recruits than the vacancies available. It was	 however	 explained that this was due to the sudden and exceptional demands for these appointments as a result of the pressure on our ordnance Factories due to the war with China and other defence requirements. It was urged that the petitioners could not take advantage of erroneous orders made by the Manager of their ordnance Factory even if the error had been repeated by the Director General Ordnance Factories. If the petitioners had not satisfied the condition precedent to promotion	 they could not get the appointments reserved for the 80% quota of promotees whose work was watched by the Promotions ' Committee so that they could be declared fit for promotion. The promotions were on the basis of a selection on merit	 the tests of which had not been satisfied by the petitioners In fact	 the petitioners were considered with others	 and were not selected. It was not necessary to give them opportunities of being heard on comparative merits	 as they claimed	 just as candidates at an examination are not entitled to any such opportunities as these are not disciplinary proceedings. Counsel for the petitioners was	 in our opinion	 not able to meet the objections put forward to petitioners ' claims as promotees. He could not show that they satisfied the conditions precedent to promotions. Hence	 the so called orders of promotion could not cure the defect. It was immaterial that the petitioners were wrongly shown as Promotees in their service records or that they had not received intimations or their appointments as direct recruits. There was a justifiable ground for a distinction between them and the class to which the respondents belonged. There was no challenge to the fairness of the 20% quota reserved for direct recruits as against that of promotees. Hence	 we do not think that the petitioners can complain of violation of any fundamental rights under Article 16 of the Constitution. Petitioners cannot also claim any benefit resulting from being treated as persons belonging to the same class as respondents 5 to 16 whose places on the seniority list are questioned by them as 763 amounting to illegal supersessions of the petitioners. We may mention here that Mr. Sanghi	 Counsel appearing for the Union of India	 Respondent No. 1	 and the Director General ordnance Factory	 Respondent No. 2	 and other officials	 has fairly conceded that so far as the case af Petitioner No. 11 is concerned	 it stands on a special footing and that his clients are considering it on that footing. Counsel for the petitioners has also conceded that so far as 3 of the petitioners are concerned	 they have been rightly treated as direct recruits. We find no error in treating the others also as direct recruits. It may also be mentioned here that Mr. Sanghi	 Counsel for the Union of India and its officials	 has stated to the Court that none of the petitioners will be reverted to his substantive post merely on the ground that he was treated as a direct recruit. The question of inter se seniority is a different matter. The petitioners have been unable to establish that they have been denied their seniority in violation of any right under Article 16 of the Constitution. Collector of Central Excise Central Revenue & Ors this Court laid down (at p. 546): "It was for the petitioner to satisfy the Court that he was not given the senior grade although he satisfied all the required conditions of it and that others	 who were promoted into it were given unjustifiable preference over him". As we are not satisfied that the seniority list has been prepared in violation of any rule or principle of justice	 we are unable to accept the petition before us. We therefore	 dismiss this petition. The parties will bear their own costs. V.P.S Petition dismissed.

Summary:
The Ordinance Factory in which the petitioners were employed hold four cadres. In the 2nd cadre of non gazetted officers there were four grades Foremen. Assistant Foremen	 Chargemen Grade I and Chargemen Grade II. The 3rd cadre of non industrial employees had 2 grades Supervisor 'A ' Grade and 'B ' Grade	 and were governed by the Indian ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules	1956. Appointment was on the basis of 20% of the quota for direct recruits and 80% for promotees. In answer to an advertisement for appointment by direct recruitment to the 4 grades of the 2nd cadre	 the petitioners	 all of whom except petitioner No. 12	 were serving as Supervisors 'A ' Grade	 applied. Petitioner No. 12 was not in service. They were interviewed but none of the petitioners	 except Petitioner No. 12	 received orders of appointment. Petitioner No. 12 was appointed Chargeman Grade II. Between April	 1963	 and November	 1963	 The other petitioners were promoted as Chargemen Grade II. Respondents 5 to 16 who were apprentices	 were also promoted as Chargemen Grade II	 and were later promoted to the grade of Assistant Foremen. Treating this order as an order of supersession	 the petitioners filed a writ petition under article 32 claiming to be promotees	 and seniority on the basis of statutory rules 10(1)(i) to (iv) contained in S.R.O. 4. Dismissing the petition	 ^ HELD. (I) There was a justifiable ground for distinction between the petitioners	 who were direct recruits	 and the respondents who were promotees	 and hence	 there was no violation of article 16. 1762 G] The petitioners were really direct recruits and not promotees despite the wrong description in their service records and even wrong orders conveying the impression that they were promoters. even though they had not received intimation of their appointment as direct recruits. Promotions arc only made under section 8 of the Indian ordnance Factories (Recruitment and Conditions of service of Class III Personnel) Rules	 1956	 as amended in 1961	 to Charge men Grade II	 on the basis Of a selection list prepared by the appropriate Departmental Promotion Committee. The Committee had prescribed a normal minimum qualification of 3 years ' service in the post of Supervisor Grade 'A ' before promotion except in exceptional cases of ex apprentices. The petitioners did not belong to the class which had any exceptional qualification	 and	 since they had not satisfied tho 3 years ' condition	 they could not be considered for promotion in the 80% quota reserved for promotees	 to the post of Chargemen	 Grade Ir. E Hl (2) The petitioners have not established that they have been denied their seniority in violation of any right under article 16 nor that the seniority list had been prepared in violation of any rule or principle of justice. The question of inter se seniority is also based upon the 4:1 (80%: 20%) ratio and it was for the petitioners to satisfy the Court that they were not given the senior 759 grade although they satisfied all the required conditions	 and that others	 who A were promoted	 were given unjustifiable preference over them. [763C] Amrit Lal Berry vs Collector of Central Excise Central Revenue & ors.	 AIK @ 546	 followed.