High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 22..4..2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 1629 of 20021.Union of IndiaRep. by the ChairmanOrdnance Factory Board10-A Shahid Khudiram Bose RoadCalcutta2.Engine Factory AvadiRep. by the General ManagerAvadiChennai... Petitioners-vs-1.S. Ram Mohan Unnithan2.Girija Rajaskharan3.V. Ramani4.A. Raman5.N. Pushpachandran6.M. Muthurangam7.The Registrar Central Administrative Tribunal Chennai ... RespondentsPetition under Article 226 of the Constitution of India praying toissue a writ of Certiorari calling for the records pertaining to theorder passed by the Tribunal dated 26.9.2001 passed in O.A. No. 1249 of2000 as confirmed in R.A. No. 37 of 2001 dated 23.11.2001 and quash thesame.For Petitioner : Mr. T.S. Sivagnanam, ACGSCFor Respondents 1-5 : Mr. Karthik Rajan https://hcservices.ecourts.gov.in/hcservices/ ORDERK. CHANDRU, J.Heard the arguments of Mr. T.S. Sivagnanam, learned AdditionalCentral Government Standing Counsel representing the petitioners and Mr.Karthik Rajan, learned counsel for the respondents 1 to 5 and haveperused the records.2.Aggrieved by the order of the Central Administrative Tribunal[for short, 'CAT'] dated 26.9.2001 made in O.A. No. 1249 of 2000, theUnion of India, represented by the Chairman, Ordnance Factory Board, andthe General Manager of the Engine Factory, Avadi, have filed the presentwrit petition.3.Respondents 1 to 5 moved the CAT seeking for a direction toset aside the order dated 30.3.2000 passed by the second petitionerwherein and by which their junior 6th respondent herein (M. Muthurangam)was given promotion from the post of Supervisor (NT/Stores) to that ofChargeman Grade II. 4.The respondents 1 and 2 are working as Supervisors in thesecond petitioner's Factory and the respondents 3 to 5 are working asUpper Division Clerks in the same factory. Their next higher post isthat of Chargeman Grade II (Non-Technical / Stores). The promotion tothe said post is governed by Indian Ordnance Factory Group 'C'Supervisory and Non-Gazetted Cadre (Recruitment and Conditions ofService) Rules, 1989. The said Rules framed under Article 309 of theConstitution came into operation with effect from 04.5.1989. Under theRules, ratio for recruitment is fixed as 2:1, the direct recruitment andpromotees respectively. 5.As per the order, promotions will have to be made from thepost of Supervisor Grade or UDC or equivalent and also TelephoneOperator Grade I with three years regular service. Subsequently, byan amendment dated 28.11.1994, the ratio among the feeder categories wasamended. By the said amendment, 25% was to be made by directrecruitment, 25% by limited Departmental Examination from among the LDCor equivalent post and 50% by promotion. Though as per the RecruitmentRules, only the post of Chargeman Grade II (Non-Technical / Stores) wasavailable, it was contended that by administrative instructions, thesaid post was bifurcated into two posts, viz., Chargeman Grade II (Non-Technical / Stores) and Chargeman Grade II (Non-Technical other thanStores). 6.By virtue of these instructions, whenever any post ofChargeman Grade II (Non-technical) post arose out of the employeesperforming the duty in the Stores Department, the said post was filled https://hcservices.ecourts.gov.in/hcservices/ up from the post of Supervisor (Stores). Even though the post of UDCwas equivalent to Supervisor (Stores), the post of Chargeman Grade IIwas continued to be filled up by Supervisor (Stores). Theseadministrative instructions were challenged before the CAT (BombayBench) and the said instructions were struck down by the CAT. The saidjudgment was delivered on 25.7.2000. 7.But even before that judgment, the sixth respondent, who wasworking as a Supervisor, was promoted as Chargeman Grade II. The sixthrespondent was originally appointed as Store Keeper on 28.10.1985 andpromoted as Supervisor on 13.9.1995 whereas the respondents 1 to 5 wereholding the equivalent posts even earlier. It is in this view of thematter, the O.A. was filed.8.A reply statement was filed by the petitioners justifying theoffice instructions by placing reliance upon OFB Note 15 of SRO 13-E of1989. It was contended that the posts of Chargeman Grade II (Non-Technical) and Chargeman Grade II (Stores) have not been made as per theexecutive instructions.9.The CAT held that in the absence of the amendment to theService Rules, the administrative instructions cannot be relied upon.The CAT, after referring to the decision of the Supreme Court in Dr.Rajinder Singh v. State of Punjab and others [2001 (5) SCC 482], heldthat no Government Order or Notification or Circular can be a substitutefor the Statutory Rules framed in their service and, therefore, heldthat the order dated 30.3.2000 granting promotion to the sixthrespondent was not valid. It also directed the official respondents toconsider the case of the respondents 1 to 5 on the basis of the commonseniority list and corrected by the earlier order of the CAT in O.A. No.1067 of 1993. A Review Application No. 37 of 2001 was filed by thepetitioner and the same was also dismissed by the CAT vide its orderdated 07.12.2001. Aggrieved by the same, the present writ petition hasbeen filed.10.At the time of admission of the writ petition, interim staywas granted by this Court on 29.01.2002 and the same was made absolutevide order dated 30.9.2004 on the ground that the sixth respondent isstill continuing in service.11Mr. T.S. Sivagnanam, learned Additional Central GovernmentStanding Counsel representing the petitioners submitted that bystatutory Rules and Order 13(E) of 1989, the first petitioner wasempowered to sub-divide any post or category of posts. It was only asper that authorisation, the feeder categories to the post of ChargemanGrade I was bifurcated and there was no illegality in the bifurcationand the CAT was wrong in deciding the matter erroneously. Even thoughthis was brought to the notice of the CAT, the same was unfortunatelydismissed. Once the power was conceded, there is no further challenge https://hcservices.ecourts.gov.in/hcservices/ that can be made against the action taken by the petitioners. He alsosubmitted that the vacancies in the Stores Stream and other than Storesstream are independent of each other and the promotions are confinedonly to the persons coming from the respective streams only. 12.In this context, the learned ACGSC brought to the notice ofthis Court the order of a Division Bench of this Court in W.P. No.13290 of 1998 [G.C. Balasubramanian v. Central AdministrativeTribunal, Madras Bench and others]. The following operative portionfound in paragraphs 4 and 5 of the said order may be usefully extractedbelow:Para 4:".... The Tribunal, in T.A. No. 44 of 1988, by order dated08.02.1999, held that it is clear that the Stores Streamand the other than Stores Steam are independentcompartments and have water tight promotional channels.It was further found that both Stores Stream and otherthan Stores Stream are independent of each other and thatpromotion of each Stream was given only to the members ofthat Stream and diversion of Posts between Streams is notcontemplated in the Rules.Para 5:In the earlier considered order in T.A. No. 44 of 1988,after referring to the relevant portion of thecorrespondences and orders as well as the Rules, a clearfinding was given by the Tribunal that both Streams areindependent and water tight compartments. The saidratios will squarely apply to the facts of the presentcase. There is no scope to make a diversion from oneStream to another on the spacious argument of functionalrequirements. Any such deviation will not only affectthe respective employees, but will also lead to arbitraryexercise of power of promotion. In order to maintainuniformity, it is necessary that the respondents shouldfollow the Rules of promotion and appointments madestrictly in accordance with the Rules, orders andprocedures, which had been followed."13.Therefore, in the light of the above, we are of the opinionthat the CAT has misread the order of bifurcating the channel ofpromotion as an executive order. When once the bifurcation has beenmade in the manner known to law and the two wings are kept as separatecompartments for promotion, the claim made by the respondents 1 to 5 isclearly unsustainable and the CAT was wrong in allowing the OriginalApplication. https://hcservices.ecourts.gov.in/hcservices/

14.Hence, the writ petition is allowed and the order of the CATis set aside and the promotion made in favour of the sixth respondent isupheld. However, there will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrargriTo1. The Registrar Central Administrative Tribunal Chennai 2. The ChairmanOrdnance Factory BoardUnion of India10-A Shahid Khudiram Bose RoadCalcutta3.The General ManagerEngine Factory AvadiAvadi, Chennai.1 cc To Mr.T.S.Sivagnanam, SCCG, SR.23146. W. P. No. 1629 of 2002 NG(CO)RVL 30.04.2008