judgement:
Civil Appeal No. 1709 of 1988.
From the Judgment and Order dated 9.10.1987 of t he Central Administrative Tribunal Chandigarh in Appln.
T. 1055 of 1986.
WITH (SLP (Civil) No. 6998 of 1988) V.C. Mahajan, Mrs. Indu Goswami, C.V. Subba Rao, P. Parmeshwaran for the Appellant in C.A. No. 1709 of 1988.
M.K.D. Namboodary for the Petitioner in SLP (Civil) N o. 6998 of 1988.
S.M. Ashri and Mahabir Singh for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
The civil appeal, by speci al leave, and the connected SLP raise an important issue as to the power of the Central Administration Tribun al ("Tribunal") to examine the adequacy of penalty awarded by the competent authority to a Government servant in discipl i nary proceedings.
Short factual background is this: Parmanand Respondent in the appeal was a Time Keeper in Beas Sutlej Link Project, Sundernagar.
He was incharge of preparing the pay bills and other bills of the work charg ed employees of the project.
It was alleged that he maSte r minded and prepared the pay roll pertaining to 'T ' Token of Central Survey Division, Sundernagar for the month of M ay 1969 and entered the name of one Shri Ashok Kumar, Token N o. 59 T at serial No. 10 on page 2 of the relevant pay roll.
He made this entry with ulterior motive to withdraw the pay of Ashok Kumar for the month of May 1969, even though Ash ok Kumar was not working in that Division.
A bogus identi ty card in the name of Ashok Kumar T.No.
59 T with the sign a tures of the issuing officer was also prepared by the r e spondent although it was not his duty to prepare the ident i ty card.
The said fictitious identity card was used by o ne Suraj Singh, cleaner T. No. 210 K of Beggi Tunnelling Div i sion for the purpose of withdrawing the pay of Ashok Kuma r.
While Suraj Singh by impersonation was receiving the pay of Ashok Kumar, he was recognised by the Cashier since he kn ew him personally.
There then started an enquiry followed by departmental proceedings against three persons includi ng the respondent herein.
The Personnel Officer of the 23 BSL Project was appointed as Inquiry Officer.
The enqui ry was conducted under the Punjab Government Servants Condu ct Rules, 1966.
The Inquiry Officer framed charge against the responde nt in the following terms: "That the said Shri Parma Nand, while working as Time Keeper in Time Keeping Sub Division of Beas Sutlej Li nk Project, Sundernagar during the month of May 1969 failed to maintain absolute integrity and devotion to duty in as mu ch as he falsely marked the attendance of Shri Ashok Kuma r, Token No. 59 T in the Pay Roll of Control Survey Divisi on for the month of May 1969, which resulted in fictitio us drawal of Rs.238 90 as pay of the said Shri Ashok Kumar.
He also prepared a bogus identity card in the name of the abo ve Shri Ashok Kumar and initiated it below the signatures of issuing officer and this identity card Was used by Sh ri Suraj Singh, Cleaner (Token No. 210 K), Boggi Tunnelli ng Division, at the time of attempting to receive the pay of Shri Ashok Kumar from the Cashier.
" After a detailed enquiry against the respondent and t wo others, the Inquiry Officer found all the three guilty of the charge framed against each of them.
The report of e n quiry was forwarded to the competent authority who aft er giving an opportunity of being heard dismissed the respon d ent from service.
The other two persons were let off wi th minor punishments of withholding two or three future incr e ments in their pay scales.
The respondent moved the High Court of Himachal Prade sh under Article 226 challenging the findings of Inquiry off i cer as well as the order of dismissal passed by the comp e tent authority.
During the pendency of the writ petition, a Bench of the Central Tribunal at Chandigarh was constitut ed under the Administrative Tribunal Act, 1985.
Consequentl y, the said writ petition stood transferred to the Tribunal by operation of section 29 of that Act.
The Tribunal upon consideration of the matter agre ed with the findings recorded by the Inquiry Officer that t he respondent was the master mind behind the scheme to defra ud the project.
The Tribunal observed: "Since the applicant had.
access to the records which 24 were fabricated at the relevant time the Inquiry Officer h ad come to the conclusion that the applicant was the mast er mind behind the scheme to defraud the Project.
In view of the foregoing, it cannot be termed th at the finding returned by the Inquiry Officer is without a ny evidence.
" It was also observed that there was no denial of a reasonable opportunity for the respondent to set up prop er defence.
After reaching this conclusion, the Tribunal pr o ceeded to examine the adequacy of penalty awarded to t he respondent.
This is how the Tribunal dealt with that que s tion: "Lastly, it was argued on behalf of the applicant that t he punishment awarded to him is disproportionate to the gravi ty of the charge proved against him and is in stark contrast to the punishment awarded to his other three colleagues in whose cases, only future increments were stopped, the max i mum being for three years in respect of Shri Sain Ditt a, Clerk.
The finding regarding the applicant being t he master mind behind the attempt to defraud the Project a p pears to have weighed.
with the disciplinary authority whi le dismissing the applicant from service.
An appreciation of the evidence, as done in the preceding pages, would sh ow that the applicant had entered the name of Shri Ashok Kum ar in the pay roll for May 1969 and so far as other eviden ce against him is concerned, it is mostly of a circumstanti al nature.
There is no direct or expert evidence that it was he who had marked the attendance of Shri Ashok Kumar in the p ay roll for May 1969 or that it was he who had initiated t he identity card.
The evidence against him is circumstantial in as much as the pay roll was under his custody and he cou ld have access to the identity cards.
Under these circu m stances, the evidence that the applicant was the only mast er mind who sought to defraud the project of the funds cann ot be termed to be direct.
" The Tribunal concluded: "As such it is a case where the applicant shou ld not be measured with a different yardstick than the other s, who have been punished along with applicant.
In the intere st of 25 justice, it is necessary to modify the punishment awarded to the applicant.
We, therefore, direct that the punishment of dismissal awarded to the applicant be reduced to that of stopping of his five increments which he had earned for a period of five years, in terms of clause (iv) of Rule 11 of the Central Civil Services (Classification, Control a nd Appeal) Rules, 1965.
There will be no order as to costs.
T he respondents shah comply with this order within four mont hs from its receipt and pay all consequential benefits to t he applicant.
" The Tribunal seems to suggest that the respondent w as not the only master mind to commit the fraudulent act a nd there were others too, and as such, he should not be mea s ured with a different yardstick.
The Tribunal however, h as held that the respondent was guilty of entering the name of Ashok Kumar in the pay roll of May 4969.
Yet it modified t he punishment to fall in line with that of others whose pa rt inthe fraudulent act was evidently not similar in nature.
Being aggrieved by the reduction of penalty, the Uni on of India has preferred the Civil Appeal No. 1709 of 198 8.
Parma Nanda seeking a complete exoneration from the char ge has preferred the SLP No. 6998 of 1988.
The question which has to be decided, therefore, is whether the Tribunal has power to modify the penalty award ed to the respondent when the findings recorded as to h is misdemeanour is supported by legal evidence.
To put in oth er words, whether the Tribunal could interfere with the penal ty awarded by the Competent authority on the ground that it is excessive or disproportionate to the misconduct proved? T he answer to the question cannot be determined without refe r ence to the scope of judicial review in the pre Tribun al period.
It is also necessary to remember the purpose f or which the Tribunal came to be established.
Before the Trib u nal was constituted, the Courts were exercising judici al review of administrative decisions in public services.
Th is judicial review was sought to be taken awary by the Const i tution (42nd Amendment Act, 1976).
By this amendment, Art i cles 323A and 323B were introduced in the Constitutio n, thereby opening altogether a new chapter in our Administr a tive law.
Article 323A(1) which is relevant for our purpo se is confined to matters relating to the public services.
It provides power to Parliament to enact law for establishme nt of Administrative Tribunals for adjudication of disput es with regard to service matters.
The service matters are of 26 persons appointed to the public service and posts.
T he public service and posts may be in connection with t he affairs of the union or of any State.
The law to be enact ed by Parliament may also cover persons appointed in the loc al or other authority or of any corporation owned or controll ed by the Government.
There should be only one Tribunal for t he Union of India and one for each State or for two or mo re States put together.
The law cannot provide for hierarchy of Tribunals.
In pursuance of Articles 323A(1) the Parliame nt enacted the Administrative Tribunal Act, 1985 ("The Act").
We may briefly examine the statutory framework.
Secti on 4 of the Act provides for establishment of Central Admini s trative Tribunal as well as State Administrative Tribuna l.
It also provides power to constitute Benches of the Centr al Administrative Tribunal.
Sections 5 to 11 deal with t he composition of Tribunals and Benches thereof and terms of office of the Chairman, Vice Chairman and other member section Section 14 provides powers and authority to the Centr al Administrative Tribunal.
Section 15 deals with the simil ar power and authority of the State Administrative Tribuna l. Section 16 refers to the powers of a Joint Administrati ve Tribunal.
Section 22 states that the Tribunal shall not be bound by the procedure laid down in Code of Civil Procedur e, 1908, but shall be guided by the principles of natur al justice and subject to other provisions of the Act and of any Rules made thereunder.
The Tribunal could also regula te its own procedure including the fixing of places and time of enquiry and deciding whether to sit in public or in privat e. Sub section 2 of sec.
22 requires the Tribunal to deci de every application made to it as expeditiously as possibl e. Ordinarily, the Tribunal shall decide every application on a perusal of documents and written representations and aft er heating such oral arguments as may be advanced.
Section 27 provides for execution of orders.
Section 28 excludes t he jurisdiction of all Courts except the Supreme Court.
Secti on 29 directs transfer of cases pending in courts to the Trib u nal for adjudication.
In pursuance of the provisions of the Act, the Centr al Government has established the Central Administrative Trib u nal with a Bench at Chandigarh whose order has been cha l lenged before us.
It is now necessary to examine in detail the amplitu de of powers of the Tribunal.
Section 14, so far materia l, provides: "14.
Jurisdiction, powers and authority of t he Central Administrative Tribunal: 27 (1) Save as otherwise expressly provided in th is Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers a nd authority exercisable immediately before that day by a ll courts (except Supreme Court) in relation to: (a) recruitment, and matters concerning recrui t ment, to any All India Service or to any civil service of the Union or a civil post under the Union or to a po st connected with defence or in the defence services, being in either case, a post filled by a civilian; (b) all service matters concerning Similar are the powers and authority of the State Ser v ice Tribunal under sec.
15 and Joint Administrative Tribun al under sec.
16. ' The expression "all courts" in this connection includ es civil courts and High Court but not the Supreme Court.
T he powers of the Supreme Court for obvious reasons have be en expressly kept undisturbed.
The powers of the High Cour ts under Article 226, in so far as they are exercisable in relation to service matters stand conferred on the Tribun al established under the Act.
The powers of other ordina ry civil courts in relation to service matters to try all sui ts of a civil nature excepting suits of which their cognizan ce either expressly or impliedly barred also stand conferred on the Tribunal.
This position becomes further clear by secs.
27, 28 a nd 29 of the Act.
Section 27 provides for finality of t he orders of the Tribunal.
Section 28 excludes the jurisdicti on of courts except the Supreme Court, or any Industrial Trib u nal, Labour Court, concerning service matters.
Section 29 provides for automatic transfer of all pending proceedin gs in the High Court under Articles 226 and 227, relating to service matters (except appeals) to the Tribunal for adjud i cation.
Likewise, suits and other proceedings pending befo re a Court or other authority relating to service matters al so stand transferred to the Tribunal for determination.
The Act thus excludes the jurisdiction, power and a u thority of all Courts except the Supreme Court and confe rs the same on the Tribunal in relation to recruitment a nd service matters.
Section 3(2) 28 comprehensively defines 'service matters ' to mean all ma t ters relating to conditions of service including the disc i plinary matters.
From an analysis of secs.
14, 15, 16, 27, 28 and 29, it becomes apparent that in the case of proceedings transferr ed to the Tribunal from a civil court or High Court, the Trib u nal has the jurisdiction to exercise all the powers whi ch the civil court could in a suit or the High Court in a wr it proceeding could have respectively exercised.
In an origin al proceedings instituted before the Tribunal under sec.
1 9, the Tribunal can exercise any of the powers of a civ il court, or High Court.
The Tribunal thus could exercise on ly such powers which the Civil Court or the High Court cou ld have exercised by way of judicial review.
It is neither le ss nor more.
Because, the Tribunal is just a substitute to t he civil court and High Court.
That has been put beyond t he pale of controversy by this Court while upholding constit u tional validity of the Act in S.P. Sampat Kumar vs Union of India & Ors., ; In this backdrop, we may consider the main question th at we have set out at the beginning of the judgment.
Mr. Mah a jan, learned counsel for the Central Government urged th at the Tribunal has no powers to interfere with the punishme nt imposed by the disciplinary authority on the ground that it is disproportionate to the proved misdemeanour.
He al so urged that if the enquiry held against the delinquent off i cer was proper with the findings supported by evidence the n, the Tribunal cannot substitute its own judgment to modi fy the punishment awarded.
Mr. Ashri, learned counsel for t he respondent, however, justified the discretion exercised by the Tribunal in awarding the lesser punishment.
We do n ot think that we could accept so bold a submission made for t he respondent, nor can it be sustained by other consideratio n.
Indeed, the contention for the respondent is unsustainab le in view of the decisions of this Court.
In State of Orissa vs Bidyabhushan, [1963] Suppl 1 S CR 648 the enquiry was conducted against the petitioner on several charges and eventually he was dismissed from ser v ice.
The Orissa High Court found that the findings on two of the charges were bad being in violation of the principles of natural justice.
The findings on the remaining charges we re however, found to be justified.
The High Court remitted t he matter to the Government for fresh consideration for awar d ing a proper punishment.
The High Court observed: "That the findings in respect of charges l(a) and l(e) 29 should be set aside as being opposed to the rules of natur al justice, but the findings in respect of charges l(c) a nd l(d) and charge 2 need not be disturbed.
It will be th en left to Government to decide whether, on the basis of the se charges, the punishment of dismissal should be maintain ed 'or else whether a lesser punishment would suffice." The Supreme Court reversed this order on the ground th at if the dismissal could be supported on any finding as to substantial misdemeanour for which the punishment cou ld lawfully be imposed, it was not for the.
Court to consid er whether that ground alone would have weighed with the a u thority dismissing the public servant.
Shah, J. observed ( at 665 666): " . . in our view the High Court had no pow er to direct the Governor of Orissa to reconsider the order of dismissal.
The constitutional guarantee afforded to a publ ic servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, a nd that he shall not be dismissed or removed or reduced in ra nk until he has been given a reasonable opportunity of showi ng cause against the action proposed to be taken in regard to him.
The reasonable opportunity contemplated has manifest ly to be in accordance with the rules framed under Article 3 09 of the Constitution.
But the Court in a case in which an order of dismissal of a public servant is impugned, is n ot concerned to decide whether the sentence imposed, provid ed it is justified by the rules, is appropriate having rega rd to the gravity of misdemeanour established.
The reaso ns which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, is not just i fiable; nor is the penalty open to review by the court.
If the High Court is satisfied that if some but not all of t he findings of the Tribunal were "unreasonable", the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, w as final, and the High Court had no jursidiction to direct t he Governor to review the penalty, for as we have alrea dy observed the order of dismissal passed by a competent a u thority on a public servant, if the conditions of the co n stitutional protection have been complied with, is n ot justifiable.
Therefore if the order may be supported on a ny finding as to substantial misdemeanour for which the 30 punishment can lawfully be imposed, it is not for the cou rt to consider whether that ground alone would have weigh ed with the authority in dismissing the public servant.
T he court has no jurisdiction if the findings of the enqui ry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider th at order because in respect of some of the findings but not a ll it appears that there had been violation of the rules of natural justice.
The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider t he question." In Dhirajlal Girdharilal vs Commissioner of Income ta x, AIR 1956 SC 271, Mehar Chand Mahajan, C.J., while deali ng with a reference application against an order of Income T ax Tribunal under the Indian Income Tax Act had struck slight ly a different note (at 273): "The learned Attorney General frankly conced ed that it could not be denied that to a certain extent t he Tribunal had drawn upon its own imagination and had made u se of a number of surmises and conjectures in reaching i ts result.
He however, contended that eliminating the irrel e vant material employed by the Tribunal in arriving at i ts conclusion, there was sufficient material on which t he finding of fact could be supported.
In our opinion, th is contention is not well founded.
It is well established th at when a court of facts acts on material, partly relevant a nd partly irrelevant, it is impossible to say to what exte nt the mind of the court was affected by the irrelevant mater i al used by it in arriving at its finding.
Such a finding is vitiated because of the use of inadmissible material a nd thereby an issue of law arises.
" This proposition in Dhirajlal 's case was explained a nd the statement of law in Bidyabhushan 's case was affirmed in State of Maharashtra vs B.K. Takkamore & Ors., ; It was case of supersession of the Corporation.
T he show cause notice issued to the corporation mentioned t wo grounds for supersession.
One of the grounds was held to be irrelevant.
This Court, however, upheld the order of supe r session stating that the order cannot be set aside f or reason that one of the grounds is found to be non existe nt or irrelevant if another ground by itself was serious enou gh to supersede the Corporation.
Bachawat, J., said (at 594): 31 "The principle underlying these decisions appea rs to be this.
An administrative or quasi judicial order bas ed on several grounds, all taken together, cannot be sustain ed if it be found that some of the grounds are non existent or irrelevant, and there is nothing to show that the authori ty would have passed the order on the basis of the other rel e vant and existing grounds.
On the other hand, an order bas ed on several grounds some of which are found to be non exis t ent or irrelevant, can be sustained if the court is sati s fied that the authority would have passed the order on t he basis of the other relevant and existing grounds, and t he exclusion of the irrelevant or non existent grounds cou ld not have affected the ultimate opinion or decision.
" This principle again receives support from the decisi on of in Zora Singh vs J.M. Tandon, AIR 1971 SC 1537.
The re the Chief Settlement Commissioner cancelled the allotment of land made to a person but the High Court allowed the wr it petition quashing the order of the Chief Settlement Commi s sioner and directing him to proceed to decide the case on merits.
The Commissioner re heard the entire case as direc t ed by the Court but came to the same conclusion as befo re and reaffirmed his earlier decision canceling the allotmen t.
The person unsuccessfully moved the High Court with a wr it petition challenging the order of the Commissioner a nd finally appealed to the Supreme Court.
In dismissing th at appeal, Shalat, J., made inter alia, the following observ a tions (at 1540): "The High Court was right in holding that even if there were amongst the reasons given by the Commissione r, some which were extraneous, if the rest were relevant a nd could be considered sufficient, the Commissioner 's concl u sions would not be vitiated.
The principle that if some of the reasons relied on by a Tribunal for its conclusion tu rn out to be extraneous or otherwise unsustainable, its dec i sion would be vitiated, applies to cases in which the co n clusion is arived at not on assessment of objective sati s faction.
The reason is that whereas in cases where t he decision is based on subjective satisfaction if some of t he reasons turn out to be irrelevant or invalid, it would be impossible for a superior court to find out which of t he reasons, relevant or irrelevant, valid or invalid, h ad brought about such satisfaction.
But in a case where t he conclusion is based on objective facts and evidence, such a difficult 32 would not arise.
If it is found that there was legal ev i dence before the Tribunal even if some of it was irrelevan t, a superior court would not interfere if the finding can be sustained on the rest of the evidence.
The reason is that in a writ petition for certiorari, the superior court does n ot sit in appeal, but exercises only supervisory jurisdictio n, and therefore, does not enter into the question of suff i ciency of evidence.
There was, in our view, legal eviden ce before the Commissioner upon which he was entitled to re st his finding that the copies relied on by the appellant we re not genuine." The view taken in Bidyabhushan case has been repeated ly affirmed and reiterated in Railway Board vs Niranjan Sing h; , at 552; O.P. Gupta case AIR 1970 SC 679 a nd Union of India vs Sardar Bahadur, A ny doubts as to the incapacity of the Court to review t he merits of the penalty must vanish when we read the remar ks of Mathew, J., in Sardar Bahadur 's case (at 225): "A disciplinary proceeding is not a criminal tria l.
The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt.
If t he inference that Nand Kumar was a person likely to have off i cial dealings, with the respondent was one which reasonab le person would draw from the proved facts of the case, t he High Court cannot sit as a court of appeal over a decisi on based on it.
Where there are some relevant materials whi ch the authority has accepted and which materials may reason a bly support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdi c tion under article 226 to review the materials and to arrive at an independent finding on the materials.
If the enquiry h as been properly held the question of adequacy or reliabili ty of the evidence cannot be convassed before the High Court.
" The learned Judge also said (at 227): "Now it is settled by the decision of this Court in State of Orissa vs Bidyabhushan Mohapatra, that if the ord er of a punishing authority can be supported on any finding as to substantial misdemeanour for which the punishment can be imposed, it is not for the Court to consider whether the 33 charge proved alone would have weighed with the authority in imposing the punishment.
The Court is not concerned to decide whether the punishment imposed, provided it is just i fied by the rules, is appropriate having regard to t he misdemeanour established." So much is, we think, established law on the scope of jurisdiction and the amplitude of powers of the Tribuna l.
However, of late we have been receiving a large number of appeals from the orders of Tribunals Central a nd States complaining about the interference with the penal ty awarded in the disciplinary proceedings.
The Tribunals se em to take it within their discretion to interfere with t he penalty on the ground that it is not commensurate with t he delinquency of the official.
The law already declared by this Court, which we reiterate, makes it clear that t he Tribunals have no such discretion or power.
We must unequivocally state that the jurisdiction of t he Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdictio n.
The Tribunal cannot interfere with the findings of t he Inquiry Officer or competent authority where they are n ot arbitrary or utterly perverse.
It is appropriate to rememb er that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the provisoto Article 309 of the Constitution.
If there has been an enquiry consiste nt with the rules and in accordance with principles of natur al justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the compete nt authority.
If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no pow er to substitute its own discretion for that of the authorit y.
The adequacy of penalty unless it is malafide is certain ly not a matter for the Tribunal to concern with.
The Tribun al also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.
Our attention was drawn to the decision of this Court in Bhagat Ram vs State of Himachal Pradesh, 2.
We do not consider that this decision is of any assistan ce to support the contention urged for the respondent.
The re the facts found were entirely different.
This Court, aft er considering the matter was of opinion that the appella nt therein was not offered a reasonable opportunity to defe nd himself and accordingly the enquiry and consequential ord er of 34 removal from service were found to be bad.
Ordinarily, whe re the disciplinary enquiry is shown to have been held in violation of principles of natural justice, the enqui ry would be vitiated and the order based on such enquiry wou ld be quashed with liberty to hold fresh enquiry.
But th at procedure was not adopted by this Court since the char ge against appellant was found to be a very minor infraction of duty in checking hammer marks of trees.
That negligence, if any, caused no loss to the Government, for, the man w ho resorted unauthorised felling of trees, had compensated t he Department.
The appellant was a low paid class IV Governme nt servant.
Considering all these facts this Court felt that it would not be fair to direct a low paid class IV employee to face the hazards of a fresh enquiry.
This Court in t he interest of justice and fair play thought that a min or penalty would be sufficient.
Accordingly, two incremen ts with future effect, of the appellant were ordered to be withheld.
This decision is, therefore, no authority for t he proposition that the High Court or the Tribunal has juri s diction to impose any punishment to meet the ends of ju s tice.
It may be noted that this Court exercised the equit a ble jurisdiction under Article 136 and the High Court or Tribunal has no such power or jurisdiction.
We may however, carve out one exception to this propos i tion.
There may be cases where the penalty is imposed und er clause (a) of the second proviso to Article 311(2) of t he Constitution.
Where the person, without enquiry is di s missed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine t he adequacy of the penalty imposed in the light of the convi c tion and sentence inflicted on the person.
If the penal ty impugned is apparently unreasonable or uncalled for, havi ng regard to the nature of the criminal charge, the Tribun al may step in to render substantial justice.
The Tribunal m ay remit the matter to the competent authority for reconsider a tion or by itself substitute one of the penalties provid ed under clause (a).
This power has been conceded to the cou rt in Union of India vs Tulsiram Patel, ; whe re Madon, J., observed (at 501 502): "Where a disciplinary authority comes to know th at a government servant has been convicted on a crimin al charge, it must consider whether his conduct which has l ed to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be . . 35 "The disciplinary authority must, however, bear in mind th at a conviction on a criminal charge does not automatical ly entail dismissal, removed or reduction in rank of the co n cerned government servant.
Having decided which of the se three penalties is required to be imposed, he has to pa ss the requisite order.
A government servant who is aggriev ed by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too seve re or excessive and not warranted by the facts and circu m stances of the case.
If it is his case that he is not t he government servant who has been in fact convicted, he c an also agitate this question in appeal, revision or review.
If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the court 's power of jud i cial review subject to the court permitting it.
If the cou rt finds that he was not in fact the person convicted, it wi ll strike down the impugned order and order him to be reinsta t ed in service.
Where the court finds that the penalty i m posed by the impugned order is arbitrary or grossly exce s sive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service t he court will also strike down the impugned order.
Thus, in Shankar Dass vs Union of India this Court set aside t he impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whi m sical and ordered his reinstatement in service with fu ll back wages.
It is, however, not necessary that the cou rt should always order reinstatement.
The court can inste ad substitute a penalty which in its opinion would be just a nd proper in the circumstances of the case.
" The last contention that the respondent fails into t he category of a workman and the Tribunal could exercise t he powers of an industrial court for giving appropriate reli ef is unavailable in this case, since the respondent had ma de his choice of forum and was even otherwise dealt with und er the Government Servants (Conduct) Rules which are undispu t edly applicable to him.
In the light of the principles to which we have call ed attention and in view of the aforesaid discussion, the ord er of the Tribunal imposing a lesser penalty on the responde nt cannot, therefore, be sustained.
He was found guilty of t he charge framed against him.
He 36 was a party to the fraudulent act for self aggrandisemen t.
He prepared bogus documents for withdrawal of salary in t he name of Ashok Kumar who was not working in his Division.
He has thus proved himself unbecoming and unworthy to hold a ny post.
Any sympathy or charitable view on such officials wi ll not be conducive to keep the streams of administration pu re which is so vital for the success of our democrary.
In the result, we allow the appeal and set aside t he order of the Tribunal.
Consequently, the SLP of the respon d ent is dismissed.
In the circumstances of the case howeve r, we make no order as to costs.
T.N.A. Appeal allowed and Petition dismissed.

summary/full:
The respondent, in the appeal, was in charge of prepa r ing the pay bills of the employees of the Beas Sutlej Li nk Project.
He, along with other two employees, was charg ed with the fraudulent act of withdrawal of Rs.238.90 by pr e paring a bogus pay bill and identity card in the name of a fictitious person.
An enquiry was conducted against all t he three employees under the Punjab Government Servants Condu ct Rules, 1966 and the Inquiry Officer found all the thr ee guilty of the charge framed against each of them.
The comp e tent authority accepted the findings of the Inquiry Offic er and after giving an opportunity of being heard imposed t he penalty of dismissal on the respondent.
Minor penalty of with holding two or three future increments was imposed on each of the other two employees.
The respondent challeng ed the finding of the Inquiry Officer as well as the order of dismissal by filing a writ petition in the High Court of Himachal Pradesh.
Subsequently the writ stood transferred to the Central Administrative Tribunal under the 20 provisions of the Administrative Tribunal Act, 1985.
T he Tribunal agreed with the findings recorded by the Inqui ry Officer to the effect that the respondent was guilty of t he charge but modified the punishment by reducing the punis h ment of dismissal imposed to that of stopping his fi ve increments on the ground that the respondent was measur ed with a different yardstick than the other two employee section Against the aforesaid order of the Tribunal appeals we re filed before this Court; (a) by the Union of India conten d ing that the tribunal has no powers to interfere with t he punishment imposed by the disciplinary authority on t he ground that it is disproportionate to the proved misdeme a nour, and (b) by the respondent seeking a complete exoner a tion from the charge.
While allowing the appeal of the Union and dismissi ng the Special Leave Petition of the respondent the Court s et aside the order of the Tribunal, and, HELD: 1.
Under the provisions of the Administrati ve Tribunal Act, 1985 the powers of the High Courts und er Article 226, in so far as they are exercisable in relati on to service matters stand conferred on the Tribunal esta b lished under the Act.
The powers of other ordinary civ il Courts in relation to service matters to try all suits of a civil nature excepting suits of which their cognisan ce either expressly or impliedly barred also stand conferred on the Tribunal.
The Act thus excludes the jurisdiction, pow er and authority of all Courts except the Supreme Court a nd confers the same on the Tribunal in relation to recruitme nt and service matters.
The Tribunal is just a substitute to the civil Court and High Court.
The Tribunal thus cou ld exercise only such powers which the civil Court or the Hi gh Court could have exercised by way of judicial review.
It is neither less nor more.
[27D E; 28B C1 S.P. Sampat Kumar vs Union of India & Ors., ; referred to; 2.
The jurisdiction of the Tribunal to interfere wi th the disciplinary matters or punishment cannot be equat ed with an appellate jurisdiction.
The Tribunal cannot inte r fere with the findings of the Inquiry Officer or compete nt authority where they are not arbitrary or utterly pervers e.
The power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 3 09 of the Constitution.
If there has been an enquiry consiste nt with the rules and in accordance with principles of natur al justice what punishment would meet the 21 ends of justice is a matter exclusively within the jurisdi c tion of the competent authority.
If the penalty can lawful ly be imposed and is imposed on the proved misconduct, t he Tribunal has no power to substitute its own discretion f or that of the authority.
The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern with.
The Tribunal also cannot interfere with t he penalty if the conclusion of the Inquiry Officer or t he competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matte r. [33D F] State of Orissa vs Bidyabhushan, [1963] (Suppl.) 1 S.C.R. 648; Dhirajlal Girdharilal vs Commissioner of Income Tax, A.I.R. 1955 S.C. 271; State of Maharashtra vs B.K. Takkamore & Ors.
, ; ; Zora Singh vs J.M. Tandon, A.I.R. 1971 S.C. 1537; Railway Board vs Nira n jan Singh; , ; State of U.P. vs O. P. Gupta, A.I.R. 1970 S.C. 679 and Union of India vs Sarda rr Bahadur, , applied.
Bhagat Ram vs State of Himachal Pradesh, [1983] 2 S.C. C. 442, distinguished.
There is one exception to this proposition.
There m ay be cases where the penalty is imposed under clause (a) of the second proviso to Article 311(2) of the Constitutio n.
Where the person, without enquiry is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal court, the Tribunal may examine the adequacy of t he penalty imposed in the light of the conviction and senten ce inflicted on the person.
If the penalty impugned is appa r ently unreasonable or uncalled for, having regard to t he nature of the criminal charge, the Tribunal may step in to render substantial justice.
The Tribunal may remit t he matter to the competent authority for reconsideration or by itself substitute one of the penalities provided und er clause (a).
[35E F] Union of India vs Tulsiram PateI, 8, applied.
Since the respondent had made his choice of forum a nd was even otherwise dealt with under the Government Serva nt (Conduct) Rules which are applicable to him it cannot be held that he falls into the category of a workman empoweri ng the Central Administrative Tribunal to exercise the powe rs of an Industrial Court for giving appropriate relief.
[35 F G] 22


judgement:
it case for initiating any procee d ings for contempt against the respondents.
[109F] & ORIGINAL JURISDICTION: Writ Petition (Civil) No. 530 of 1983 etc.
(Under Article 32 of the Constitution of India).
V.A. Bobde, Shyam Mudaliar, V.M. Tarkunde, G.L. Sangh i, A.K. Sanghi, Mrs. R. Karanjawala, Mrs. Meenakshi Karanjawa la N.M. Popli and V.J. Francis for the Petitioners.
Ms. A. Subhashini, D.N. Dwivedi, Girish Chandra, C.V. section Rao, M.C. Dhingra and N.K. Sharma for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
The petitioners in the aforementioned wr it petitions claim to have been appointed as Supervisors Gra de 'A ' in various ordnance factories between 1962 to 1966 a nd have filed these writ petitions with the prayer that t he same relief may be granted to them also as was granted by this Court to 75 appellants in Civil Appeal No. 441 of 19 81 vide its order dated 2nd February, 1981.
The three civ il miscellaneous petitions referred to above on the other ha nd have been made by the appellants of Civil Appeal No. 441 of 1981 asserting that the direction given by this Court on 2 nd February, 1981 has not been complied with in the manner as it ought to have been by the respondents and they should be consequently required to comply with the said direction.
T he exact nature of the prayer made in these miscellaneo us applications shall be indicated after referring to t he relief granted on 2nd February, 1981 in Civil Appeal No. 4 41 of 1981.
The 75 appellants of Civil Appeal No. 441 of 1981 fil ed a writ petition in the Allahabad High Court in 1972 asser t ing that they had been appointed as Supervisors Grade 'A ' on various dates in pursuance of a circular dated 6th Novembe r, 1962 issued by the Director General of Ordnance Factorie s, the relevant portion whereof reads as hereunder: "Subject: NON INDUSTRIAL ESTABLISHMENT PROMOTION D.G.O.F. has decided that Diploma holders serving as 97 Supervisor 'A ' (Tech)/Supervisor 'B '/(Tech) and in equiv a lent grades should be treated as follows (i) All those Diploma holders who have been appointed as Supervisor 'B ' (Tech) (and in equivalent grades) should on completion of one year 's satisfactory service in ordnan ce factories be promoted to Supervisor 'A ' (Tech) and in equi v alent grades.) (ii) All those Diploma holders who work satisfactorily as Supervisor 'A ' (Tech) or in equivalent grades for 2 years in Ordnance Factory should be promoted to Chargeman.
Kindly acknowledge receipt.
Sd/ K.G. Bijlani ADGOF/Est.
for D.G.O.F. Their grievance in the writ petition was that ev en though quite a large number of Supervisors Grade 'A ' h ad been promoted to the post of Chargeman grade II on compl e tion of two years ' satisfactory work they had been discrim i nated against and had not been so promoted immediately on the expiry of two years ' in pursuance of the aforesa id circular even though their work was satisfactory.
The reli ef prayed for in the said writ petition was for the issue of a writ of mandamus directing the Union of India through t he Director General of Ordnance Factories to promote the appe l lants to the post of Chargeman II.
The writ petition w as contested by the respondents thereto inter alia on t he ground that under the rules of promotion from Supervisor ' A ' to Chargeman II first Departmental Promotion Commit.tee at the factory level and then a Departmental Committee at t he Central level screens the service record of each of t he Supervisors 'A ' who comes within the range of eligibili ty and then finally the Director General of Ordnance Factori es draws up a list and sanctions promotions.
It was furth er asserted that in accordance with the said rule the cases of all the appellants were screened by the Promotion Committ ee at the factory level and then at the Central level and th ey not having been found fit were not promoted.
It appears th at the criterion of promotion is seniority cum merit.
T he learned Single Judge, however, did not go into the merits of the controversy and dismissed the writ petition on t he ground of unexplained laches and also on the ground that a previous petition for similar relief had not been presse d. Against the 98 judgment of the learned Single Judge the appellants pr e ferred a special appeal before a Division Bench of th at Court.
The learned Judges who decided the special appeal d id not consider it appropriate to uphold the dismissal of t he writ petition on the technical ground which found favo ur with the learned Single Judge and they went into the meri ts of the respective contentions of the parties.
They, howeve r, did not find any substance in the submission made on beha lf of the appellants and accordingly dismissed the speci al appeal on 8th February, 1977.
The learned Judges pointed o ut that it was admitted that the conditions of service applic a ble to the case of the appellants were governed by t he Indian Ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956 (hereinaft er referred to as the Rules) framed by the President of Ind ia under Article 309 of the Constitution.
It was further poin t ed out that Rule 8 contemplated that appointments by prom o tion were to be made on the basis of a selection list pr e pared for the different grades by duly constituted Depar t mental Promotion Committees laid down in the said ru le whereas Rule 12 provided that no appointment to the posts to which these rules apply shall be made otherwise than as specified therein.
With regard to the circular dated 6 th November, 1962 the learned Judges took the view that it w as difficult to read in that circular any intention or delibe r ation on the part of the Director General of Ordnance Fact o ries that as soon as two years were completed by a diplo ma holder in the Grade of Supervisor 'A ' there would be an automatic promotion to the post of Chargeman Il.
Accordi ng to the learned Judges such a view would militate again st Rule 12 of the Rules mentioned above.
It was further he ld that even if it was to be assumed that the Director Gener al of Ordnance Factories automatically promoted some Superv i sors 'A ' immediately on the completion of 2 years of servi ce to the post of Chargeman II without the recommendation aft er screening by the Promotion Committee no right would accr ue in favour of the appellants inasmuch as such promotio ns would be in the teeth of Rule 12 and could not confer a legal right on the appellants to be likewise promoted in breach of Rule 12.
With regard to the plea based on Artic le 16 of the Constitution.
it was held "A half hearted argume nt was raised at the end of the hearing on behalf of the appe l lant petitioners that they have been discriminated again st by depriving them the benefit of automatic promotion in violation of constitutional guarantee under Article 16 of the Constitution.
This was an argument, neither pleaded as a ground for the petition nor was raised before the learn ed Single Judge.
Moreover, we do not think any case, on t he basis of violation of Article 16 of the Constitution can be found in favour of the appellant petitioners only becau se some 99 supervisors, equally placed, were promoted against the rul es of service.
No formal foundation has been raised in t he pleadings in the writ petition in support of the grou nd based on Article 16 of the Constitution.
" It is against this judgment that Civil Appeal No. 441 of 1981 was preferred in this Court.
Since the order dated 2 nd February, 1981 passed in Civil Appeal No. 441 of 1981, so to speak, constitutes the basis for the writ petitions me n tioned above, it is in our opinion expedient to reprodu ce the said order.
It reads: "Heard counsel.
Special leave granted.
"Our attention has been invited by learned counsel for bo th the sides to the relevant rules which govern promotion to the post of Chargeman Grade II.
It appears that a lar ge number of persons have been promoted to those posts thou gh they have completed only two years of service.
The Gover n ment now appears to insist that in so far as the appellan ts are concerned they cannot be considered for promotion unle ss they complete three years of service.
We see no justific a tion for any such differential treatment being given to t he appellants.
If a large number of other persons similar ly situated have been promoted as Chargeman Grade II aft er completing two years of service, there is no reason why t he appellants should also not be similarly promoted aft er completing the same period of service.
We are not suggesti ng that the appellants are entitled to be promoted to t he aforesaid posts even if they are found unfit to be promote d.
We Therefore direct that the concerned authoriti es will consider the cases of the appellants for promotion as Chargeman Grade II and promote them to the said posts unle ss they are found to be unfit.
If the appellants are promote d, they will naturally have to be promoted with effect from t he date on which they ought to have been promoted.
This order will dispose of the appeal.
There will be no order as to costs.
" As already pointed above the petitioners in the writ pet i tions refer 100 red to above have prayed for the same relief which w as granted in Civil Appeal No. 441 of 1981.
Now we shall rev rt to the exact prayers made in the three miscellaneous pet i tions aforesaid.
The prayer made in Civil Miscellaneo us Petition No. 3325 of 1987 is for the issue of an inter im order restraining the respondents from making any furth er promotions during the pendency and final heating of t he miscellaneous petition and for initiating contempt procee d ings.
Almost analogous prayer had been made in Miscellaneo us Petition No. 9357 of 1983 also namely that the responden ts may be restrained from promoting officers to the next high er posts on the basis of recommendations of certain Departme n tal Promotion Committees without complying with the dire c tions of this Court in its order dated 2nd February, 198 1.
The reliefs prayed for in the above two civil miscellaneo us petitions are thus of an interim nature.
The main relie fs which have been prayed for apart from for initiating pr o ceedings for contempt for disobedience of the order of th is Court dated 2nd February, 1981 are reliefs (i), (ii) a nd (iii) contained in Civil Miscellaneous Petition No. 9356 of 1983.
They are as hereunder: "(i) pass appropriate orders directing the respondents to implement in true letter and spirit, the judgment of th is Hon 'ble Court dated 2.2.1981 in Civil Appeal No. 441 of 1 98 1; (ii) issue appropriate directions commanding the responden ts to promote the appellants to the next higher posts of Chargeman Grade I, Assistant Foreman, and Foreman, wi th effect from the date they are entitled to, after giving th em the benefit of the directions of this Hon 'ble Court dat ed 2.2.1981; (iii) issue appropriate directions to the respondents to give all consequential benefits to the appellants, includi ng payment of arrears.
" The aforesaid writ petitions came up for hearing befo re a bench of two learned Judges of this Court on 9th Septe m ber, 1987.
On the view that the judgment of this Court dat ed 2nd February, 1981 in Civil Appeal No. 441 of 1981 in t he case of Virendra Kumar and Others vs Union of India & Ors ., [1981] 3 SCC Page 30 may require reconsideration, the pet i tions were directed to be placed before a three Judge Ben ch "where inter alia the correctness of the judgment could be looked into and the nature of relief available to the pet i tioners on the 101 facts now stated would also be considered.
" It is in view of this order that these matters have been listed before us.
Learned counsel for the petitioners contended that t he reason which weighed with this Court in allowing Civ il Appeal No. 441 of 1981 applies to these writ petitions al so and the same relief may accordingly be granted to the pet i tioners.
It was also brought to our notice that similar ly placed 125 employees got the benefit of the circular dat ed 6th November, 1962 in pursuance of an order passed by t he Madhya Pradesh High Court on 4th April, 1983 in writ pet i tions filed by them.
It was urged that in case the sa me relief is not granted to the petitioners they are likely to become juniors to some of the appellants in Civil Appeal N o. 441 of 1981 and the petitioners in the writ petitions deci d ed by the Madhya Pradesh High Court on 4th April, 1983.
For the respondents on the other hand it was urged th at service conditions including promotion of employees inclu d ing Supervisors 'A ' in the Indian Ordnance Factories we re governed by the Rules and in view of Rule 12 no appointme nt to the various posts to which the Rules applied could be made otherwise than as specified therein; According to learned counsel since Rule 8 of the Rules contemplated th at appointments by promotion were to be made on the basis of selection list prepared in the manner provided therei n, there was no scope for automatic promotion merely aft er expiry of 2 years of continuous service on the basis of t he circular dated 6th November, 1962.
According to learn ed counsel the Rules did not prescribe the minimum number of years of service as Supervisors 'A ' which would make th em eligible for promotion as Chargeman II and the circul ar dated 6th November, 1962 which was in the nature of an executive instruction prescribed 2 years ' service as Supe r visor 'A ' to make him eligible for promotion.
Howeve r, merely on completion of two years ' service a Supervisor ' A ' could not claim automatic promotion.
On the other han d, promotion depended, inter alia, on availability of posts a nd the incumbent being found fit by the Departmental Promoti on Committee for being included in the selection list.
It w as only such a Supervisor Grade 'A ' whose name found place in the selection list who could be promoted to the post of Chargeman II as and when vacancies were available.
It w as further urged that the petitioners of these writ petitio ns were on the basis of the Rules considered for promotion a nd it is not disputed that all of them have in due course be en promoted as Chargeman II and some of them have even be en promoted to higher posts.
Our attention was further invit ed by learned counsel for the respondents to an order commun i cated among others to the Director 102 General of Ordnance Factories, vide letter dated 28th Dece m ber, 1965 of the Government of India, Ministry of Defenc e, saying inter alia that a minimum period of service of thr ee years in the lower grade should be fixed for promotion to the next higher grade.
It was pointed out that this had be en found necessary not only because it would be in conformi ty with the practice obtaining in other Ministries but al so because on merits this period is necessary to judge t he performance in the lower post and the potentialities f or promotion to a higher post.
He also brought to our notice a subsequent circular dated 20th January, 1966 by the Direct or General of Ordnance Factories who had issued.
the earli er circular dated 6th November, 1962 which provides: "Sub: N.G. Establishment Treatment of Diplo ma Holders and ex apprentices serving as Supr.
or in equivalent grades in the matter of promotion.
Ref: This office confidential No. 673/A/NG dt.
62 and 4416/A/NG dt.
29.6.65.
The question of promotion of Diploma holders in Mech/Elec.
Engineering and Ex apprentices serving as Sup r. 'A ' Gr.
or in equivalent grades has received further consi d eration of the D.G.O.F. who has decided that in futu re promotions of all such individuals will be effected in accordance with the normal rules i.e. on the basis of the ir listing by the relevant D.P.C. and not merely on completi on of 2 years satisfactory continuous service as Supr.
or equivalent grades.
" It was urged that after the issue of the subseque nt order dated 28th December, 1965 and circular dated 20 th January, 1966 no Supervisor 'A ' could claim to have beco me eligible for promotion merely on completion of 2 year s ' satisfactory service and his promotion thereafter could be effected only in accordance with the normal Rules.
Having heard learned counsel for the parties we fi nd substance in the submission made by the learned counsel f or the respondents.
Relying on two earlier decisions in B. N. Nagarajan & Ors.
vs State of Mysore & Ors., 82 and Sant Ram Sharma vs State of Rajasthan & Anr.
, ; it was held by a Constitution Bench of this Court in Ramachandra Shankar Deodhar and Ors.
vs The State of Mah a rashtra & Ors.; , that in the absence of legislative Rules it was competent to the State Governme nt to take a 103 decision in the exercise of its executive power under Art i cle 162 of the Constitution.
The matter has been consider ed in a recent decision of this Court in the case of Union of India & Ors.
vs Sh.
Soraasundararn Viswanath & Ors., [198 8] 3 S.C. Judgments Today 724 wherein it has been held: "It is well settled that the norms regarding recruitment a nd promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate Legisl a ture or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instru c tions issued under Article 73 of the Constitution of Ind ia in the case of Civil Services under the Union of India a nd under Article 162 of the Constitution of India in the ca se of Civil Services under the State Governments.
If there is a conflict between the executive instructions and the rul es made under the proviso to Article 309 of the Constitution of India, the rules made under the proviso to Article 309 of the Constitution of India prevail, and if there is a co n flict between the rules made under the proviso to Artic le 309 of the Constitution of India and the law made by t he appropriate Legislature, the law made by the appropria te Legislature prevails.
" It is thus apparent that an executive instruction cou ld make a provision only with regard to a matter which was n ot covered by the Rules and that such executive instructi on could not override any provision of the Rule.
Notwithstan d ing the issue of instruction dated 6th November, 1962 ther e fore, the procedure for making promotion as laid down in Rule 8 of the Rules had to be followed.
Since Rule 8 in t he instant case prescribed a procedure for making promotion t he said procedure could not be abrogated by the executi ve instruction dated 6th November, 1962.
The only effect of t he circular dated 6th November, 1962 was that Supervisors ' A ' on completion of 2 years ' satisfactory service could be promoted by following the procedure contemplated by Rule 8.
This circular had indeed the effect of accelerating t he chance of promotion.
The right to promotion on the oth er hand was to be governed by the Rules.
This right was co n ferred by Rule 7 which inter alia provides that subject to the exception contained in Rule 11, vacancies in the pos ts enumerated therein will normally be filled by promotion of employees in the grade immediately below in accordance wi th the provisions of Rule 8.
The requirements of rule 8 in brief have already been indicated above.
Rule 12 provides 104 that no appointment to the posts to which these rules app ly shall be made otherwise than, as specified in these rule section This right of promotion as provided by the Rules was neith er affected nor could be affected by the circular.
The ord er dated 28th December, 1965 which provided a minimum period of service of three years in the lower grade for promotion to the next higher grade and the circular dated 20th Janua ry 1966 which provided that promotions in future will be e f fected in accordance with the normal rules and not merely on completion of 2 years ' satisfactory continuous service h ad the effect of doing away with the accelerated chance of promotion and relegating Supervisors 'A ' in the matter of promotion to the normal position as it obtained under t he Rules.
In the case of Ramchandra Shankar Deodhar & Ors ., (supra) the petitioners and other allocated Tehsildars fr om ex Hyderabad State had under the Notification of the R aj Pramukh dated September 15, 1955 all the vacancies in t he posts of Deputy Collector in the ex Hyderabad State avai l able to them for promotion but under subsequent rules of July 30, 1959 fifty per cent of the vacancies were to be filled by direct recruitment and only the remaining fif ty per cent were available for promotion and that too on div i sional basis.
The effect of this change obviously was th at now only fifty per cent vacancis in the post of Depu ty Collector being available in place of all the vacancies it was to take almost double the time for many other allocat ed Tehsildars to get promoted as Deputy Collectors.
In oth er words it resulted in delayed chance of promotion.
It wa s, inter alia, urged on behalf of the petitioners that t he situation brought about by the rules of July 30, 1959 co n stituted variation to their prejudice in the conditions of service applicable to them immediately prior to the reorga n isation of the State and the Rules were consequently i n valid.
While repelling this submission the Constituti on Bench held: "All that happened as a result of making promotions to t he posts of Deputy Collectors divisionwise and limiting su ch promotions to 50 per cent of the total number of vacanci es in the posts of Deputy Collector was to reduce the chanc es of promotion available to the petitioners.
It is now we ll settled by the decision of this Court in State of Mysore vs G.B. Purohit that though a right to be considered for prom o tion is a condition of service, mere chances of promoti on are not.
A rule which merely affects chances of promoti on cannot be regarded as varying a condition of service.
In Purohit 's case the districtwise seniority of sanitary in 105 spectors was changed to Statewise seniority, and as a resu lt of this change the respondents went down in seniority a nd became very junior.
This, it was urged, affected the ir chances of promotion which were protected under the provi so to Section 115, sub section (7).
This contention was neg a tived and Wanchoo, J., (as he then was), speaking on beha lf of this Court observed: "It is said on behalf of the r e spondents that as their chances of promotion have be en affected their conditions of service have been changed to their disadvantage.
We see no force in this argument becau se chances of promotion are not conditions or service.
" It i s, therefore, clear that neither the Rules of July '30, 195 9, nor the procedure for making promotions to the posts of Deputy Collector divisionwise varies the conditions of service of the petitioners to their disadvantage.
" The same view was reiterated in Mohammad Shujat Ali a nd Ors.
vs Union of India & Ors.
, ; In the bri ef written submission filed on behalf of the petitioners in Writ Petition Nos.
9522 27 of 1983 it has been pointed o ut that employees who had joined much later than 20th Januar y, 1966, namely, the date of the subsequent circular of t he Director General of Ordnance Factories superseding h is earlier circular dated 6th November, 1962, have also g ot benefit under the orders of this Court dated 2nd Februar y, 1981 aforesaid as also under the orders of the Madhya Pr a desh High Court dated 4th April, 1983 in the writ petiti on filed before that Court.
This circumstance by itself is sufficient to indicate that when Civil Appeal No. 441 of 1981 was heard by this Court either the subsequent ord er dated 28th December, 1965 as well as the circular dated 20 th January, 1966 and the legal consequences flowing therefr om were not brought to the notice of the learned Judges by t he learned counsel for the respondents, or the same was n ot properly emphasised, the judgment dated 2nd February, 19 81 being completely silent on the point and the appeal w as allowed only on the ground that some Supervisors having be en promoted as Chargeman II on expiry of 2 years of the ir service in view of the circular dated 6th November, 1962 t he non promotion of the appellants was discriminatory being in violation of Article 16.
As regards the order of the Madh ya Pradesh High Court dated 4th April, 1983 .it may be point ed out that the said High Court in an earlier writ petiti on being Misc.
Petition No. 596 of 1978 had disallowed t he relief for the petitioners of that writ petition bei ng treated as Chargeman II on completion of two years ' servi ce as Supervisor 'A ' by its order dated 16th April, 1979 as is apparent from the said judgment dated 4th April, 1983 b ut the subse 106 quent writ petitions which seem to have been filed after t he decision of this Court dated 2nd February, 1981 in Civ il Appeal No. 441 of 1981 were allowed in view of the aforesa id decision of this Court.
In this connection it is also of significance to noti ce that it does not seem to have been the case of the appe l lants in Civil Appeal No. 44 1 of 198 1 that those w ho according to them had been promoted in pursuance of t he circular dated 6th/November, 1962 on completing two year s ' service were junior to them.
At this place it will be usef ul to refer to an affidavit dated 19th November, 1983 of D. P. Gupta, who is one of the appellants in Civil Appeal No. 4 41 of 1981, filed in C.M.P. Nos.
9356 57 of 1983.
Annexure I to the said affidavit gives a break up of the total diplo ma holders recruited in the Department due to acute need of Ordnance Department following the chinese aggression.
It indicates that approximately 125 diploma holders were r e cruited in 1962, 550 in 1963, 250 in 1964, 150 in 1965 a nd 100 in 1966, the total number of such recruits being appro x imately 1175.
The said Annexure further indicates that o ut of the 1175 recruits about 625 were promoted to the post of Chargeman II in 1965 66 under the 2 year policy contained in circular dated 6th November, 1962 and that approximately 5 50 diploma holders were denied promotion which resulted in discrimination.
From this break up it is apparent that a ll the diploma holders recruited in 1962 whereas 500 out of 5 50 recruited in 1963 were promoted on expiry of 2 years of service.
It appears that the remaining 50 diploma holde rs recruited in 1963 and those who had been recruited in t he begning of 1964 or thereafter could not be promoted inasmu ch as by the time their cases could be considered for promoti on the subsequent order dated 28th December, 1965 had come in to force and had also come into force the circular dated 20 th January, 1966 which had superseded the circular dated 6 th November, 1962 and had provided that in future promotions of all such individuals will be effected in accordance with t he normal rules and not merely on the completion of two yea rs satisfactory continuous service.
It cannot be disputed that the Director General of Ordnance Factories who had issued the circular dated 6 th November, 1962 had the power to issue the subsequent circ u lar dated 20th January, 1966 also.
In view of.
the leg al position pointed out above the aforesaid circular could n ot be treated to be one affecting adversely any condition of service of the Supervisors 'A '.
Its only effect was that t he chance of promotion which had been accelerated by the circ u lar dated 6th November, 1962 was deferred and made depende nt on selection according to the Rules.
Apparently, after t he coming into force of the 107 order dated 28th December, 1965 and the circular dated 20 th January, 1966 promotions could not be made just on compl e tion of 2 years ' satisfactory service under the earli er circular dated 6th November, 1962 the same having be en superseded by the later circular.
It is further obvious th at in this view of the matter Supervisors 'A ' who had be en promoted before the coming into force of the order dat ed 28th December, 1965 and the circular dated 20th Januar y, 1966 stood in a class separate from those whose promotio ns were to be made thereafter.
The fact that some Superviso rs 'A ' had been promoted before the coming into force of t he order dated 28th December, 1965 and the circular dated 20 th January, 1966 could not, therefore, constitute the basis f or an argument that those Supervisors 'A ' whose cases came up for consideration for promotion thereafter and who we re promoted in due course in accordance with the rules we re discriminated against.
They apparently did not fall in t he same category.
It may also be noticed that even though the petitione rs on their completion of 2 years ' service as Supervisor ' A ' were not promoted as Chargeman 11 in or about the year 19 66 they chose to wait for about 17 years to file these wr it petitions which were filed in 1983, and nearly 2 years ev en after the decision dated 2nd February, 1981 in Civil Appe al No. 441 of 1981, which indicates that but for the decisi on in Civil Appeal No. 441 of 1981 they would perhaps not ha ve even thought of filing these writ petitions inasmuch as in the meantime they had not only been promoted in the norm al course as Chargeman 1I but some of them had been promot ed even to higher posts in the hierarchy.
For aught we know if the effect of the order dated 28 th December, 1965 and the circular dated 20th January, 1966 h ad been properly emphasised at the time of hearing of Civ il Appeal No. 441 of 198 1 its result may have been differen t.
In this connection, reference may also be made to the cou n ter affidavit of Sobha Ramanand, Deputy Director, Ordnan ce Factory Cells G. Block, Ministry of Defence, filed in Wr it Petition (Civil) Nos.
3812 19 of 1983 with regard to a matter relevant for promotion.
In paragraph 2(i) it has be en stated that during 1962 63 due to sudden expansion of Or d nance Factories Organisation in the wake of Chinese aggre s sion a large number of posts of Chargeman 11 and other pos ts were created and as a result thereof persons already in service as Supervisors 'A ' were promoted to the posts of Chargeman II on completion of 2 years ' service.
It h as further been stated therein that after the newly creat ed posts were thus filled by promotion, chances of promotion of those who were appointed subsequently diminished and f or want of sufficient number of 108 vacancies as Chargeman II they could not be promoted to th at post soon after the completion of 2 years ' service.
There is a further averment in the said counter affidavit that pet i tioners were duly considered in their turn and their nam es were brought on the approved panel.
They were thereaft er promoted as soon as vacancies became available and th at during the period that they were on the approved panel no person junior to them or of equal seniority superseded the m.
Nothing substantial has been brought to our notice on beha lf of the petitioners on the basis of which the aforesa id statements made in the counter affidavit may be doubted.
In view of the foregoing discussion, we find it diff i cult to grant the reliefs prayed for in the aforesaid 'wr it petitions simply on the basis of the judgment of this Cou rt dated 2nd February, 1981 in Civil Appeal No. 441 of 198 1.
These writ petitions, therefore, deserve to be dismissed.
Since, however, the judgment of this Court dated 2 nd February, 1981 in Civil Appeal No. 441 of 1981 has not be en challenged and has become final, the next question whi ch falls for consideration is as to what further relief, if any, are the appellants in Civil Appeal No. 44 1 of 19 81 entitled in pursuance of the Civil Miscellaneous Petitio ns referred to above filed by them.
The reliefs which they ha ve claimed have already been indicated above.
It is now n ot disputed that the appellants of this appeal have in purs u ance of the order of this Court dated 2nd February, 19 81 been given a back date promotion to the post of Chargeman II synchronising with the dates of completion of their 2 yea rs of service as Supervisor 'A '.
The grievance of the petitio n ers, however, is that this promotion tantamounts to impl e mentation of the order of this Court dated 2nd Februar y, 1981 only on paper inasmuch as they have not been grant ed the difference of back wages and promotion to higher pos ts on the basis of their back date promotion as Chargeman I I.
As already noticed earlier certain writ petitions filed in Madhya Pradesh High Court were allowed by that Court on 4 th April, 1983 relying on the judgment of this Court dated 2 nd February, 1981 in Civil Appeal No. 441 of 1981.
Against t he aforesaid judgment of the Madhya Pradesh High Court dat ed 4th April, 1983 Special Leave Petitions (Civil) Nos.
5987 92 of 1986 were filed in this Court by the Union of India a nd were dismissed on 28th July, 1986.
The findings of t he Madhya Pradesh High Court in its judgment dated 4th Apri l, 1983 thus stand approved by this Court.
In this view of t he matter to put them at par it would be appropriate that t he appellants in Civil Appeal No. 441 of 1981 may also be granted the same relief which was granted to the 109 petitioners in the writ petitions before the Madhya Prade sh High Court.
As regards back wages the Madhya Pradesh Hi gh Court held: "It is the settled service rule that there has to be no p ay for no work i.e. a person will not be entitled to any p ay and allowance during the period for which he did not perfo rm the duties of a higher post although after due considerati on he was given a proper place in the gradation list havi ng deemed to be promoted to the higher post with effect fr om the date his junior was promoted.
So the petitioners are n ot entitled to claim any financial benefit retrospectively.
At the most they would be entitled to refixation of the ir present salary on the basis of the notional seniority gran t ed to them in different grades so that their present sala ry is not less than those who are immediately below them.
" In so far as Supervisors 'A ' who claimed promotion as Chargeman 11 the following direction was accordingly giv en by the Madhya Pradesh High Court in its judgment dated 4 th April, 1983 aforesaid: "All these petitioners are also entitled to be treated as Chargeman Grade II on completion of two years satisfacto ry service as Supervisor Grade A. Consequently, notion al seniority of these persons have to be refixed in Supervis or Grade A, Chargeman Grade II, Grade I and Assistant Forem an in cases of those who are holding that post . .
T he petitioners are also entitled to get their present sala ry re fixed after giving them notional seniority so that t he same is not lower than those who are immediately bel ow them.
" In our opinion, therefore, the appellants in Civ il Appeal No. 441 of 1981 deserve to be granted the same limi t ed relief.
We are further of the opinion that it is not a fit case for initiating any proceedings for contempt again st the respondents.
In the result, the writ petitions fail and are di s missed.
The Civil Miscellaneous Petitions in Civil Appe al No. 441 of 1981 are disposed of by issuing a direction to the respondents to give the appellants in the said Civ il Appeal the same benefits as were given by the Madhya Prade sh High Court to such of the petitioners before that Court w ho were Supervisors 'A ' and were granted promotion as Chargem an II by its judgment dated 4th April, 1983.
In the circu m stances of the case, however, there shall be no order as to costs.
R.S.S. Petitions dismissed.

dataset_name: IN-Abs

summary/full:
The petitioners in the writ petitions were appointed as Supervisors Grade 'A ' in various ordnance factories betwe en 1962 and 1966, in pursuance of circular dated 6th Novembe r, 1962 issued by the Director General of Ordnance Factorie section The circular further provided for promotion from Supervis or 'A ' to Chargeman I1, on completion of two years ' satisfact o ry service.
75 Supervisors Grade 'A ' had moved a writ petition in the Allahabad High Court in 1972.
Their grievance was th at even though quite a large number of Supervisors Grade ' A ' had been promoted to the post of Chargeman Grade II on completion of two years ' satisfactory work, in pursuance of the circular dated 6th November, 1962, they had been di s criminated against and had not been so promoted immediate ly on the expiry of two years ' service.
The writ petition was contested on the ground that t he promotion from Supervisor Grade 'A ' to Chargeman II we re governed by the Indian Ordnance Factories (Recruitment a nd Conditions of Service of Grade III Personnel) Rules, 19 56 and such promotions could be made only in accordance wi th the procedure prescribed by Rule 8 of these Rules.
The learned Single Judge dismissed the writ petition on the ground of unexplained laches.
The Division Bench did n ot find any substance in the submission made on behalf of t he petitioners and dis 93 missed their special appeal.
According to the Divisi on Bench, it was difficult to read in the circular that aft er two years of satisfactory service there would be automat ic promotion from Supervisor Grade 'A ' to Chargeman II as su ch a view would militate against Rule 12 of the Rules, whi ch provided that no appointment shall be made otherwise than as specified in the Rules.
It was further held by the Divisi on Bench that even assuming that some Supervisors Grade 'A ' h ad been automatically promoted on completion of two year s ' service, without the recommendation after screening by t he Promotion Committee, as provided in Rule 8, no right wou ld accrue in favour of the appellants inasmuch as such prom o tions would be in the teeth of Rule 12.
Against the judgment of the Division Bench, Civil Appe al No. 441 of 1981 (Virendra Kumar and Others vs Union of Ind ia and Others, was preferred and this Court by its order dated 2.2.1981 directed that the cases of the 75 appellants in Civil Appeal No. 441 of 1981 be considered f or promotion as Chargeman Grade II and they be so promot ed unless found to be unfit.
Another group of 125 Supervisors Grade 'A ' got t he benefit of the Circular dated 6.11.1962 in pursuance of an order passed by the Madhya Pradesh High Court on 4th Apr il 1983 on the basis of the judgment of this Court in Civ il Appeal No. 441 of 1981.
Special Leave Petitions against t he judgment of the Madhya Pradesh High Court were dismissed by this Court.
The petitioners in the present writ petitions pray th at the same relief may be granted to them as had been grant ed in Civil Appeal No. 441 of 1981.
In the Civil Miscellaneous petitions now filed in Civ il Appeal No. 441 of 1981, the petitioners, apart from t he prayer for initiating proceedings for contempt against t he respondents for disobedience of the order of this Cou rt dated 2.2.1981, have prayed for orders directing the r e spondents to implement in true letter and spirit the sa id order and to promote the petitioners to the next high er posts after giving them the benefit of the directions of that order.
Their grievance is that their promotion tant a mounts to implementation of the order of this Court dat ed 2.2.1981 only on paper inasmuch as they have not been gran t ed the difference of back wages and promotion to high er posts on the basis of their back date promotion as Chargem an II.
Before this Court it has been urged on behalf of the r e spondents 94 that (i) promotions of employees including Supervisor ' A ' were governed by the Rules and in view of Rule 12 no a p pointment could be made otherwise than as specified therei n; (ii) appointments by promotion were to be made according to Rule 8 on the basis of selection list prepared in the mann er provided there in and there was no scope for automat ic promotion merely after expiry of 2 years of continuo us service on the basis of the circular dated 6th Novembe r, 1962; (iii) the circular which was in the nature of an executive instruction prescribed 2 years ' service as Supe r visor 'A ' to make them only eligible for promotion; and (i v) after the issue of the subsequent order dated 28th Decembe r, 1965 and circular dated 20th January, 1966 no Supervis or could claim to have become eligible for promotion merely on completion of 2 years ' satisfactory service and his prom o tion thereafter could be effected only in accordance wi th the normal Rules.
Dismissing the writ petitions and disposing of t he miscellaneous petitions, it was, HELD: (1) An executive instruction could make a prov i sion only with regard to a matter which was not covered by the Rules and such executive instruction could not overri de any provision of the Rule.
[103E] B.N. Nagarajan vs State of Mysore, ; 2; Sant Ram Sharma vs State of Rajasthan, 1; Ramchandra Shenkar Deoghar vs The State of Maharashtr a; , ; Union of India vs Somasundaram Viswanat h, [1988] 3 SC.
Judgments Today 724, referred to.
(2) Notwithstanding the issue of instructions dated 6 th November, 1962 the procedure for making promotion as la id down in Rule 8 of the Rules had to be followed, and the sa id procedure could not be abrogated by the executive instru c tions dated 6th November 1962.
[103F] (3) The only effect of the circular dated 6th Novemb er 1962 was that Supervisors 'A ' on completion of 2 year s ' satisfactory service could be promoted by following t he procedure contemplated by Rule 8.
This circular had inde ed the effect of accelerating the chance of promotion.
T he right to promotion on the other hand was to be governed by the Rules.
This right of promotion as provided by the Rul es was neither affected nor could be affected by the circula r. [103F G] 95 (4) After the coming into force of the order dated 28 th December, 1965 and the circular dated 20th January, 19 66 promotions could not be made just on completion of 2 year s ' satisfactory service under the earlier circular dated 6 th November, 1962, the same having been superseded by the lat er circular.
[106H; 107A B] (5) Circular dated 20th January, 1966 could not be treated to be one affecting adversely any condition of service of Supervisors 'A '.
Its only effect was that t he chance of promotion which had been accelerated by the circ u lar dated 6th November, 1962 was deferred and made depende nt on selection according to the Rules.
Though a right to be considered for promotion was a condition of service, me re chances of promotion were not.
[106G H] Ramchandra Shankar Deodhar vs The State of Maharashtr a, (supra) and Mohammad Shujat Ali & Ors.
vs Union of India Ors.
; , , referred to.
(6) Supervisors 'A ' who had been promoted before t he coming into force of the order dated 28th December, 1965 a nd the circular dated 20th January, 1966 stood in a cla ss separate from those whose promotions were to be made ther e after.
The fact that some Supervisors 'A ' had been promot ed before the coming into force of the order dated 20th Jan u ary, 1966 could not, therefore, constitute the basis for an argument that those Supervisors 'A ' whose cases came up f or consideration thereafter and who were promoted in due cour se in accordance with the Rules, were discriminated agains t. [107B C] (7) There were sufficient indications that when Civ il Appeal No. 441 of 1981 was heard by this Court either t he subsequent order dated 28th December, 1965 as well as t he circular dated 20th January, 1966 and the legal consequenc es flowing therefrom were not brought to the notice of t he learned Judges by the learned counsel for the respondent s, or the same was not properly emphasized.
[105E F] (8) The findings of the Madhya Pradesh High Court in i ts judgment dated 4th April stood approved by this Court wh en the Court dismissed the special leave petition against th at judgment.
The appellants in Civil Appeal No. 441 of 19 81 therefore deserved to be granted the same benefit as regar ds back wages and further promotion as were given by the Madh ya Pradesh High Court to such of the petitioners before th at Court who were Supervisors 'A ' and were granted promotion as Chargeman I1 by its judgment dated 4th April, 1983.
[108 H;