Chairman, ONGC and Another vs R.A. Parmar and Another

Gokulakrishnan, C.J.—Rule Mr. A. K. Clerk waives service of the Rule for respondents Nos. 1 and 2.

The Chairman, Oil & Natural Gas Commission, has come forward with the Special Civil Application to issue appropriate writ, order or

direction under Article 227 of the Constitution of India, calling for the records and proceedings of Reference (ITC) No. 13 of 1985 from the

Industrial Tribunal, Ahmedabad and, after perusing the legality and propriety thereof, to quash and set aside the award dated 12th February 1987,

which is Annexure ""A"" to the Special Civil Application. The Central Government Industrial Tribunal, Ahmedabad gave an award in Reference

(ITC) No. 13 of 1985 to the following effect :

The reference is allowed. Shri R. A. Parmar, Assistant Gr. II, should be absorbed in the Accounts Wing and his seniority is to be fixed in that

Wing considering his entire service in the Administrative Wing. He should be placed above Mr. Dave. In consequence, his promotionary dates be

so adjusted that he would get all the benefits as in the case of Mr. D. K. Dave and the difference of pay etc. be paid to Mr. R. A. Parmar within

two months from date of publications of this award.

The reference to the said Tribunal was to the following effect :

Whether the demand raised by the Oil & Natural Gas Commission Employees Mazdoor Sabha that Shri R. A. Parmar, Assistant Gr. II, should

be absorbed in the Accounts Wing and his seniority fixed in the that wing considering his entire service in the Administrative Wing, is justified ? If

so, to what relief is the workman concerned entitled ?

The Oil & Natural Gas Commission Employees Mazdoor Sabha has filed its statement of claim before the Tribunal. Thus, it is seen that the

dispute was raised and it was notified and the matter was decided as an industrial dispute. In such cases individual notices to the persons who may

have some say in the matter need not be given since the Tribunal took up the matter after the proper notification and the manner was argued by a

recognised union.

The main contention of the respondent Mr. R. A. Parmar was that the option given to the personnel working in the Accounts Department as on

1962 for the purpose of opting to come to the Accounts Department ought to have been given to him also. It is the case of Mr. Parmar that before

Circular dated 5th July, 1962, all the employee belonged to one integrated cadre which is called Administrative Wing. The Wing was bifurcated

into Accounts Wing and Establishment Wing. The option by this order dated 5th July 1962 was circulated only to the personnel working in the

Accounts Wing. Since the option was not given to the person working in the Establishment Wing and even though both the Establishment Wing

and the Accounts Wing formed part of one unit of Administrative Wing, according to Mr. Parmar, it has resulted in injustice to him and such an

action of the petitioner herein has violated the fundamental rights guaranteed under the Constitution of India.

The Industrial Tribunal in detail went into this question and has posed a question whether the Commission i.e. the petitioner herein had followed

a consistent policy in the matter of absorption while dealing with the case of Mr. Parmar via-a-vis other employees as referred to by the Union.

The order dated 5th July 1962, according to the Tribunal, was applicable only to those Assistants who are working in the Accounts Wing. They

were given option either to stay in accounts or to come back to Administration. The Tribunal further found that the Assistants who were working in

the Administration were not asked to exercise any option and they were not give any option to go to the Account Wing. As a matter of facts, the

Tribunal found that before 5th July 1962 there was a common cadre for Senior Assistants. In other words, since there was a common cadre of

Senior Assistant and since there was no division of work either on the Administrative side or on the Accounts side, Senior Assistants were

appointed to work either on the Administrative side or in the Accounts section as per the exigencies or as per the wishes or order of the superior

officers. Inspite of the fact that the persons working in the Account section and the Establishment section were borned on the common cadre, it is

not correct on the part of the petitioner to have given option only to the persons working in the Accounts branch. Thus, it is clear that the Union

posed a question whether at the relevant time the Commission was right in allowing the persons who were working in the Accounts section only to

continue in Accounts section or to go back to the Administrative side. The Tribunal has further discussed as to how Mr. R. A. Parmar was denied

the opportunity of getting promotion as his counterpart Mr. D. K. Dave, owing to the fact that Mr. Parmar was not given option to come to the

Finance Department at the relevant time. The details in nutshell stated that Mr. Parmar got the promotion as Administrative Officer in the

Establishment Wing only on 1st January 1985 while Mr. Dave got the Finance Officer''s post which may be equated with the grade of

Administrative Officer, as early as 1st October 1982. Thus, the Union represented before the Tribunal that Mr. Parmar was denied the opportunity

initially and accordingly he has been put to loss of benefits financially and also promotion-wise. This aspect of the case was discussed in detail by

the Tribunal and the Tribunal came to the conclusion that such a denial of option to Mr. Parmar had resulted in great injustice to Mr. Parmar and as

such the petitioner must be directed to absorb Mr. Parmar in the Accounts Wing and his seniority should be fixed in the Wing considering his entire

service in the Administrative Wing. The Tribunal has further stated in its final order that Mr. Parmar should be placed above Mr. Dave. It has been

further ordered that in consequence his promotion dates be so adjusted that he would get all the benefits as in the case of Mr. Dave, and the

difference of pay etc. be paid to Mr. Parmar within two months from the date of publication of the award. Aggrieved by the said award, the

present Special Civil Application has been filed.

Miss V. P. Shah, learned Counsel, appearing for the petitioner, pointed out that there is absolutely no question of any violation of the

constitutional rights much less any violation of Art. 14 of the Constitution. The differentia between the Accounts Wing and the Establishment Wing

was made on intelligible ration and as such it cannot be said that there is any violation of Art. 14 of the Constitution. It is next contended by Miss

Shah that seniority of Mr. Dave has to be adjudged only in the presence of Mr. Dave, and hence, the Presiding Officer of the Industrial Tribunal

ought not to have, in the absence of Mr. Dave, directed to fix the seniority of Mr. Parmar above Mr. Dave. Miss Shah further contended that there

is Regulation for the purpose of giving promotion in the Accounts Wing and unless Mr. Parmar satisfies such Regulations he cannot be given the

promotion to higher post in the Accounts Wing.

In support of the contention that the circular of 1962 which gave option only to the persons working in the Accounts Wing to exercise option

either to come to Accounts Wing or to go back to Establishments Wing does not offend any provision of the Articles of the Constitution, Miss V.

P. Shah cited the decisions reported at The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, ( AIR India Vs. Nergesh

Meerza and Others, ( The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, , the question of promotion of the Executive

Engineer from the cadre of Assistant Engineers was discussed. In that case preference was given to such of those Assistant Engineers who held

degree over and above those engineers who held only diploma certificates. The Supreme Court, accepting the reasonableness of such

classification, observed :

Judged from this point of view, it seems to us impossible to accept the respondents'' submission that classification of Assistant Engineers into

Degree-holders and Diploma-holders rests on any unreal or unreasonable basis. The classification, according to the appellant, was made with a

view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly correlated to its for higher

educational qualifications are atleast presumptive evidence of a higher mental equipment. This is not to suggest that administrative efficiency can be

achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. What is relevant

is that the object to be achieved here is not a mere pretence for an indiscriminate imposition of inequalities and the classification cannot be

characterized as arbitrary or absurd. That is the farthest that judicial scrutiny can extend.

Continuing further, the Supreme Court observed :

If parsons recruited from different sources are integrated into one class, they cannot thereafter be classified so as to permit in favour of some

of them a preferential treatment in relation to others. That is the argument before us which, applied to the facts of the case, means in plain terms this

: Direct recruits and promotees having been appointed as Assistant Engineers on equal terms, they constitute an integrated class and for purposes

of promotion they cannot be classified on the basis of educational qualifications.

Repelling this contention, the Supreme Court further held :

We are therefore of the opinion that through persons appointed directly and by promotion were integrated into a common class of Assistant

Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The

rule providing that graduates shall be eligible for such promotion to the exclusion of Diploma holder does not violate Articles 14 and 16 of the

constitution and must be upheld.

The next decision cited by Miss V. P. Shah is one reported at AIR India Vs. Nergesh Meerza and Others, . In this decision, the Supreme

Court gave detailed analysis after close examination of various propositions emerging with regard to the equality clause in the matter of promotion.

The Supreme Court observed at p. 325 :

Thus, from a detailed analysis and close examination of the cases of this Court starting from 1952 till today, the following propositions emerge

:

(1) In considerating the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the

doctrine should not be invoked even if different scales of pay, service terms, leave etc. are introduced in different or dissimilar posts.

Thus, where the class or categories of service are essentially different in purport and spirit, Art. 14 cannot be attracted.

(2) Art. 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their

special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to

backward classes, such a classification would not amount to discrimination having a close nexus with the objects sought to be achieved so that in

such cases Art. 14 will be completely out of the way.

(3) Article 14 certainly applies where equals are treated differently without any reasonable basis.

(4) Where equals and unequals are treated differently Art. 14 would have no application.

(5) Even if there is one class of service having several categories with different attributes and incidents such a category becomes separate class by

itself and no difference or discrimination between such category and the general members of the others class would amount to any discrimination or

to denial of equality of opportunity.

(6) In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be

examined :

(a) the nature, the mode and the manner of recruitment of a particular category from the very start,

(b) the classifications of the particular category,

(c) the terms and conditions of the service of the members of the category,

(d) the nature and character of posts and promotional avenues,

(e) the special attributes that the particular category possess which are not to be found in other classes, and the like.

It is difficult to lay down a rule of universal application but the circumstances mentioned above may be taken to be illustrative guidelines for

determining the question.

From the decision reported in (AIR) 1974 SC. 1, it is clear that the promotional avenues were equated to educational qualifications and that

was held to be intra vires the Constitution. As far as the present case in concerned, there is no such differential between the persons working in the

Establishment Wing and the Accounts Wing. On the date when that option order dated 5th July 1962 was circulated, all the persons working in

this Establishment were of equal cadre and there is absolutely no rationale in extending the option only to those persons working in the Finance

Wing. Hence we are of the view that the decision reported in (AIR) 1947 SC. 1 will not be applicable to the facts of the present case.

As regards the decision reported in AIR India Vs. Nergesh Meerza and Others, , the Supreme Court itself has stated that in order to judge

whether separate category has been carved out of a class of service, certain circumstances have generally to be examined and they are : (a) the

mode and the manner of recruitment of a particulate category from the very start, (b) the classifications of the particular category, (c) the terms and

conditions of service of the members of the category, (d) the nature and character of the posts and promotional avenues, and (e) the special

attributes that the particular category possesses which are not to be found in other classes, and the like. As far as the present case is concerned all

the persons working in this Establishment belonged to one category and there is absolutely nothing to show that they have deferent qualifications or

attributes to differentiate the person working in the Establishment Wing from that of the Finance Wing. Hence we do not think that the decision

reported in AIR India Vs. Nergesh Meerza and Others, will have any application to the facts of the present case.

From the facts of the case, we are of the view that the Tribunal has correctly come to the conclusion that Mr. R. A. Parmar ought to have been

given options as envisaged in the office order of 1962. Since he has not been given the said option the Tribunal has rightly held that his seniority has

to be fixed in the Finance Wing taking into account his entire service in the Administrative Wing. A. K. Clerk who appears for Mr. R. A. Parmar

fairly states that the Tribunal should not have directed to place Mr. R. A. Parmar over Mr. Dave. Whether Mr. R. A. Parmar is senior to Mr.

Dave is a disputed question and the same has to be decided in presence of Mr. Dave by the petitioner-Commission. Hence we are of the view that

the petitioner will give opportunity to Mr. Dave and such of those persons who claim seniority over and above Mr. R. A. Parmar at the time of

joining the services and decide the seniority as on the date of entering into the service by those persons. Mr. Clerk further fairly concedes that

promotions, if any, in the Finance Department can be given only on certain qualification as per the Regulations in existence. The same can be

applied to Mr. Parmar also as it has been applied to other persons who have been promoted. Nevertheless we make it clear that if the Regulations

provide any exemption to be granted on the discretion of the petitioner-Commission, such a benefit of exemption must be given by the petitioner in

favour of Mr. Parmar for exempting him from appearing at any examination or test for such promotion. Making the abovesaid two aspects clear,

we are of the view that the Tribunal has properly assessed the evidence on record and has come to the correct conclusion after proper discussion

of the facts on record. We are in complete agreement with the reasoning and findings of the Presiding Officer of the Industrial Tribunal except for

the observations we have made on the concession made by Mr. Clerk.

In the result, the order of the Tribunal is modified to the extent mentioned above. Rule is made absolute in the above terms with no order as to

costs. The petitioner will decide the question of seniority of Mr. Parmar and his promotions within a period of three months from to-day.