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Judgment
Dhirendra Mishra, J.—The petitioners are non-executive employees of Bhilai Steel Plant, a subsidiary of Steel Authority of India Ltd. (in short `SAIL'') -respondent No. 1. Writ Petition Nos. 559/96, 1749/96 and 4269/96 were disposed of by this Court by common order dated 16th July, 2007 with a direction to the respondents to consider the cases of the petitioners for promotion, who have not been promoted till date, from non-executive cadre to executive cadre within one month by a speaking order. Vide order dated 21st September, 2007, the respondents were allowed further time of one month for compliance of the order dated 16.7.2007.
By the instant petition, the petitioners have impugned the Circular dated 18.7.2008 (Annexure P/12), whereby applications have been invited from eligible non- executive employees for consideration for promotion to the posts of Junior Officers at all Plants/Units of SAIL, and as per selection procedure, the eligible candidates are required to appear in written test followed by interview.
Mr. V.G. Tamaskar, learned Counsel appearing for the petitioners submits that contention of the petitioners in this writ petition is that as per existing promotion policy for promotion from non-executive to executive cadre, no written examination was prescribed, the same would be evident from various orders (Annexures P/4 to P/9) passed in the writ petitions filed by the non- executives in this regard. In compliance of the order dated 16.7.2007 (Annexure P/1), which was passed on the basis of consent given by learned Counsel for the respondents, the respondents were duty bound to consider the cases for promotion of the petitioners as per existing promotion policy. Circular of Annexure P/12 amounts to change in service conditions of the employees of the respondent-company. Service conditions can be altered only by resolution of Board of Directors of the respondent-company and the same cannot be altered without pre-decisional hearing.
Reliance is placed on the judgments in the matters of Government of Andhra Pradesh and Anr. v. Dr. R. Murali Babu Rao and Anr., H.L. Trehan and Ors. v. Union of India and Ors., and in the matters of Hemani Malhotra v. High Court of Delhi.
On the other hand, Mr. Diwakar, learned Sr. Advocate with Mr. Kasif Shakeel, Advocate appearing for the respondents contended that the respondent No. 1 has five Integrated Steel Plants including Bhilai Steel Plant. It has three Special Steel Plants, Iron Ore Mines and other quarries and collieries and Central Marketing Organization. More than 1.2 lac employees work under the above establishment. It has common policy for promotion from non-executive cadre to executive cadre for all its units. Promotion policy was in force since 1988. Board of Directors of SAIL, in its meeting dated 30th October, 2007 approved the promotion policy, which was circulated vide document of Annexure R/1 dated 30th January, 2008. Subsequently, rules were framed for promotion from non- executives to executive cadre and the same was circulated on 21st February, 2008 vide Annexure R/2. After due consideration of the proposals received from various units and after incorporating amendments, the amendments in the policy and rules were circulated vide document of Annexure R/3 dated 6.5.2008. In response to the impugned Circular dated 18.7.2008, 12,500 non-executive employees applied for written test. Two contempt petitions arising out of order dated 16.7.2007 (Annexure P/1) are pending before the Hon''ble High Court. The policy for promotion from non-executive to executive cadre has been changed with the approval of Board of Directors of SAIL. The above order nowhere mentions that cases of the petitioners for promotion should be considered as per promotion policy of 1996 and in Writ Petition No. 4123/87 and 506/81, the petitioners had prayed for quashing of promotion policy, however, the Hon''ble High Court did not interfere with the promotion policy.
As per policy for promotion of the non-executives to executive cadre of 1988, the candidates, clearing the interview for the post of E-0, are also required to clear the Post Selection Examination and five opportunities are given to such candidates for clearing the same. The writ petitions, in which the order of Annexure P/1 was passed, were not filed for the relief of promotion and the same were filed for the relief of appointment. In compliance of the directions of the Hon''ble High Court, their cases for promotion were considered vide order dated 8.12.2007 (Annexure A/1, filed along with reply to the application for interim relief). As per provisions of the promotion policy prevailing in the year 2007, promotion was to be made effective w.e.f. 30th June, 2008 as last promotions were made w.e.f. 30th June, 2006 and the promotion could be made once in two years. This provision subsists in the present promotion policy also. The petitioners have not challenged the promotion policy and therefore, in the absence of challenge to the promotion policy, relief claimed by the petitioners cannot be granted. Under the promotion policy due weightage has been assigned to the aspects of qualification, experience and performance.
Mr. Diwakar further argued that in compliance of the order dated 16.7.2007 a special committee was constituted to consider the promotion cases of eligible non-executive candidates to executive cadre as on 16.7.2007. Petitioners No. 1 and 3 were not found eligible for promotion whereas petitioner No. 2 was found eligible as on 16.7.2007 and the same was communicated to them vide Annexure A/1. All the three petitioners have already participated in the selection process for promotion and as such, they are estopped from challenging the selection process. In any case, determination of conditions of service including policy for promotion pertains to the field of policy and in such cases, normally judicial review is not permissible. The rules in force at the time of promotion would be applicable for granting promotion and not the earlier rules.
Reliance is placed on the judgments in the matters of P.U. Joshi and Ors. v. Accountant General, Ahmedabad and Ors., and State of Jammu and Kashmir v. Shiv Ram Sharma and Ors.
I have heard learned Counsel for the parties and gone through the material available on record.
While disposing of three writ petitions, vide order dated 16.7.2007, this Court directed the respondents to consider the cases of the petitioners for promotion, who have not been promoted till date from non-executive cadre to executive cadre. The respondents, vide order dated 8th December, 2007 (Annexure A/1), considered the cases of the petitioners for promotion from non-executive cadre to executive cadre and communicated them that petitioners No. 1 & 3 are not found eligible for promotion whereas petitioner No. 2 was found eligible. It was further communicated that since promotions are to be effected only in the alternate year and as the eligible employees were promoted w.e.f. 30th June, 2006 and apart from the petitioners, 1900 other employees are also eligible for consideration for promotion, therefore, these eligible employees can appear in the selection process for promotion on the next date of promotion to the post of executive officer i.e. 30th June, 2008 under the promotion policy and rules thereof. In view of the above undisputed position, grievance of the petitioners that their cases for promotion were not considered, as directed by this Court, is without any substance.
The petitioners have impugned the Circular of Annexure P/12, whereby applications have been invited from non-executive employees for consideration for promotion to the posts of Junior Officers on the ground that the policy for promotion from non-executive to executive cadre is a service condition of the employees of the respondent-company and the same could be only altered by a resolution of the Board of Directors. From the pleadings of the respondents and the documents available on record, it is manifestly clear that a resolution approving the promotion policy has been passed vide resolution dated 30th October, 2007 (Annexure R/8). Therefore, the above ground for impugning the promotion policy is not available to the petitioners.
Learned Counsel for the petitioners has mainly emphasized on the ground that as per existing promotion policy as on 16.7.2007, when this Court directed the respondents to consider the cases of the petitioners for promotion, there was no promotion policy which required conducting of written examination. Subsequent change in the policy, vide Annexure P/1, was made without affording any opportunity of hearing to the petitioners, whereas service conditions of the employees of an industrial undertaking cannot be altered without a pre-decisional hearing and the defect cannot be cured by post-decisional hearing.
In the case of Govt. of Andhra Pradesh, it has been held that in the matters of promotion, eligibility of a candidate at the time of preparation of panel of eligible candidates, is to be determined in accordance with the qualification and experience as provided under the rules prevailing at the time of preparing the panel and the eligibility shall not be affected by subsequent amendment of the rules.
In the matter of H. L. Trehan, after the take over of the Caltex (India) Ltd. by the government, the Board of Directors of the Government Company, issued a circular prejudicially affecting the terms and conditions of service of its employees, which resulted in civil consequences and the above circular was issued without pre-decisional hearing to the employees. In these circumstances, it was held that the impugned circular cannot be sustained as it offends against the rules of natural justice and the post-decisional hearing does not serve the rules of natural justice.
In Hemani Malhotra case, the selection process for filling 16 vacant posts by direct recruitment to Delhi Higher Judicial Service was commenced and it consisted of written examination and interview/viva voce examination. After conducting written examination, the candidates were called to appear for interview. However, results of the written examination were not declared and no merit list of the successful candidates was prepared. The candidates, who appeared for interview/viva voce examination, were informed that the interview has been postponed. In the meanwhile, the selection committee resolved that it was desirable to prescribe minimum pass marks for viva voce and the matter be placed before the Full Court and accordingly, the Full Court resolved to prescribe minimum qualifying marks in viva voce examination also. In the aforesaid factual background, it has been held that changing rules of the game during selection process or when it is over, is not permissible.
In the matter of P.U. Joshi, the Hon''ble Supreme Court, in para 10 of its judgment, has held that questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of policy, the same is within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the statutory tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. It has been further held that it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes.
In the matter of State of Jammu and Kashmir, respondents joined the service long before the rules in question were promulgated. There was no prescription of qualification of matriculation for promotion. Subsequently, the State promulgated rules prescribing qualification of matriculation for promotion and because of that reason the respondents were deprived of promotion. The High Court directed to relax the relevant rules resulting in benefit to the respondents. In appeal preferred by the State, the Hon''ble Supreme Court held that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those rules framed by the Government in that behalf would always be favourable to them.
Referring to its earlier judgment in the matter of Roshan Lal Tandon Vs. Union of India (UOI), , it has been held by the Hon''ble Supreme Court that once appointed an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by consent of parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government.
In the instant case, the petitioners have impugned the Circular of Annexure P/12, whereby a policy decision taken by the respondents has been circulated, requiring the eligible non-executive employees to appear in the written examination for promotion to executive cadre. As per directions of this Court vide order dated 16.7.2007, the respondents duly considered the cases of the petitioners for promotion from non-executive to executive cadre and petitioner No. 2 was found eligible for consideration for promotion. Since 1900 other employees were found eligible for the above promotion, the petitioners were directed to participate in the selection process as per existing promotion policy. There is no change in the eligibility criteria of a candidate for promotion from non-executive to executive cadre. Since the number of eligible candidates for promotion is high (more than 12,500 in all units and more than 1900 in Bhilai Steel Plant), the respondents have taken a policy decision to conduct written examination for short-listing the eligible candidates. In my considered opinion, the above policy decision, which is applicable uniformly to all the eligible candidates including the petitioners, cannot be termed to be a policy decision of such a nature which adversely affects the service conditions of the petitioners.
For the aforesaid reasons, this Court does not see any substance in this petition, the same deserves to be dismissed and is accordingly, dismissed.
No order as to costs.