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1994 Supreme(Guj) 336
Gujarat High Court
Judgename :A.N.Divecha, B.N.KIRPAL
SUNIL KUMAR - Appellant
Versus
OIL AND NATURAL GAS COMMISSION - Respondent
L.P.A. 182 of 1994
Decided On : 12/02/1994
Headnote:Service Law - Promotion - ONGC - Seniority - Belated charge - Seniority fixed in 1984 and promotion granted accordingly - Change in seniority after a considerable lapse of time would adversely affect the vested seniority of appellant - Laches.
A provisional seniority list was issued on 1st January, 1983 and it is after objections had been invited and had been considered that a final seniority list was issued with effect from 1st September 1984. In the earlier provisional list, the said respondents names were not included but when the list was finalised in September 1984 the said respondents had already been in service for one year and their names were included at appropriate place in the seniority list below the appellants. Furthermore, it is on the basis of this seniority list that promotions were granted. In addition thereto, at least on two occasions, once before the Civil Court at Mehsana and secondly before the Civil Court at Dehradun, the categorical stand of the Commission was that the said seniority has rightly been fixed. The Commission having thus assured the appellants and other similarly placed officers about its stand with regard to the finality of the seniority list, cannot be permitted to change its opinion after a considerable lapse of time.
[Para 20]
Service Law - Promotion - Antedating - Respondent promoted in 1992 alongwith appellants - Respondents promotion subsequently regularised w.e f. 1990 - Held, not permissible - It is arbitrary and unjust - Constitution of India, 1950 - Art. 14.
The effect of antedating the promotion of respondents Nos. 4 to 6 and 8 is that they have been given promotion with retrospective effect. They were actually promoted in 1992 along with the appellants but their promotion is now sought to be regularised with effect from 1st January 1990. Promotion with retrospective effect which adversely affects others is impermissible.
[Para 21]
Service Law - Appointment - Selection - Regularisation - ONGC - Respondents voluntarily accepted appointment in one cadre lower - Commission after a lapse of 10 years regularised their appointment into higher Cadre - Held, impugned regularisation illogical and unjust.
The incumbents willingly and voluntarily accepted the offers of appointment and were appointed on probation. The pay scales to which they were appointed were less than the pay scales of E-1 officers whereas the E-1 posts are Class-I posts E-0 posts are Class-II posts. The Commission now sought to deem or record the said E-0 officers who were so appointed more than a decade ago as having been validly appointed to E1 post. Such a decision is clearly arbitrary and illogical. The question of there being any anomalies, as has been contended by the respondents, does not arise in view of the fact that the parties have acted voluntarily and had accepted a lower post than what they had appeared for.
[Para 22]
Service Law - Regularisation - ONGC - Contrary to the ruling of court in which the Commission itself was a party - Held, practice denied.
The Civil Judge at Mehsana as well as the Civil Judge at Dehradun had decided that the appointments of E-0 officers have been validly made and the seniority has rightly been determined. The Commission was a party to these proceedings. By passing the impugned resolution the Commission has shown scant respect to a judicial order. If the decision of the two Courts were not correct, it was open to the Commission to challenge the same by way of appropriate proceedings. But the Commission could not do so for the simple reason that the written statements filed by them in those cases were in support of the appellants herein. The Commission has now shown volte face and reversed its earlier stand and completely ignored the decisions of the Civil Courts. The decree which was passed by the Civil Court at Dehradun is by way of mandatory injunction and the impugned decision is clearly contrary to the said mandatory injunction.
[Para 23]]
Service Law - Promotion - Quota rule - En bloc promotion to E-0 officers in ONGC to E-1 Cadre - Held, it amount to violation of quota rule.
As yet another illegality which has been committed in regularising the E-0 officers at E1 level is that the said decision is clearly in violation of the quota rule. According to the recruitment regulations, appointment to E1 level post can be made from two sources, namely, by promotion from E-0 officers and by direct recruitment by open competition. The petitioners and said respondents had sought induction into the service through direct recruitment. In 1980 there were only 49 vacancies in the quota of direct recruits to E1 level to which appointments were made. By now regularising those E-0 officers who were appointed in September/October 1980 in E1 post can only by deeming them to be direct recruits and their induction at this late stage is in violation of quota rule.
[Para 24]
( 1 ) THIS is an appeal against the judgment of the learned single Judge who had dismissed the writ petition filed by the appellants who were challenging the decision of respondent No. 1 in regarding the respondents No. 4, 5, 6 and 8 as being senior to the appellants.
( 2 ) BRIEFLY stated, the facts are that in ONGC (respondent No. 1), there are 15 different disciplines categorised under three main headings of engineering, geoscience and administrative and other support services. In each such discipline, there are sub-divisions of Class-I, Class-II, Class-III and Class-IV. In the present case, we are concerned with the discipline of chemistry which falls under the category of geo-physics. The hierarchy of the post in chemistry department as per the recruitment and Promotion Regulations, 1980, is as under :e-5 Chief Chemist 3 years selection Post e-4 Supdt. Chemist 4 years Merit-3 years seniority-cum-Fitness 25% 50% 25% induction e-3 Dy. Supdt. Chemist seniority-cum-Fitness 5 years Merit-3 years 75% 25% e-2 Senior Chemist seniority-cum-Fitness 6 years Merit-4 years 75% 25% e-1 Chemist seniority-cum-Fitness 2 years 50% Induction q-1 50% Promotion q-2 4 years e-0 Asst. Chemist (Class-II)
( 3 ) THESE regulations came into effect on 25 April 1980. Prior to that date an advertisement for recruitment of direct recruits for the post of Chemists (E-1) has been issued in the year 1979. After the promulgation of the Rules of 1980, the candidates for the post of E-1 were selected and the selection committee recommended 74 persons to be suitable for appointment to E-1 post and 71 persons suitable for appointment to E-0 post. Out of the said 74 persons, those at serial No. 1 to 49 were appointed as Chemists. Due to non-availability of E-1 posts, the other persons on the select list could not be appointed. At that time, there were large number of vacant posts in E-0 category and the department candidates who were duly qualified for a promotion were not available. The Commission accordingly decided, apparently in exercise of the power to relax the recruitment rules, to fill-up the vacant E-0 posts from amongst these candidates who had been selected. Accordingly, 25 persons from the E-1 select list (from serial No. 50 to 74) and 71 persons (including respondents no. 4 to 6 and 8) were appointed to E-0 post. The appointments were made after these candidates had been offered that they could be appointed at E- 0 level and it is only after they had accepted this offer that their appointments were notified.
( 4 ) AT the time when the aforesaid appointments of E-0 officers were made in September/october 1980, the pay scale of Chemist (E-1) was Rs. 820-1680 and the pay scale of E-0 was Rs. 750-1500.
( 5 ) ON August 10, 1981, posts of E-1 were advertised. It is not in dispute that according to the R. and P. regulations, 50% of the posts of Chemist (E-1) were to be filled in by promotion from E-0 posts and 50% of the vacancies were to be filled in by direct recruitment. It is these advertised posts which were in direct recruitment quota for which the petitioners applied. An all India written test was held and after the interviews, 62 persons including the petitioners, were selected for appointment as Chemists (E-1 ). It appears that some of the E-0 officers who had been recruited in the year 1980 also took part in this competitive examination and two of them, namely, Dr. V. Tripathi and Shri A. K. Mittal were selected in direct recruitment and were placed above 60 fresh recruits in the select list for appointment as chemists. The direct recruits, so selected, including the petitioners, joined the service as chemists in July-August, 1982.
( 6 ) IN May 1983, a Departmental Promotion Committee was held for making selection for promotion to E-1 level and that all the eligible candidates existing in E-0 level were considered and were promoted to E-1 post w. e. f. 1983. No eligible departmental E-0 officer was left without promotion. Inasmuch
