CHAIRMAN, O. N. G. C. L. T. D. v. R. A. PARMAR — 1987 DIGILAW 39 (GUJ)

P. R. GOKULAKRISHNAN, J. ( 1 ) RULE Mr. A. K. Clerk waives service of the Rule for respondents Nos. 1 and 2 ( 2 ) THE Chairman Oil and Natural Gas Commission has come forward with this 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 12-2-1987 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. We 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 the date of publication of this award. ( 3 ) THE reference to the said Tribunal was to the following effect:whether the demand raised by the Oil and 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 that wing considering his entire service in the Administrative Wings is justified ? If so to what relief is the workman concerned entitled? ( 4 ) THE Oil and 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 matter was argued by a recognised union. ( 5 ) THE main contention of the respondent Mr. 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 matter was argued by a recognised union. ( 5 ) 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 5/07/1962 all the employees 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 5/07/1962 was circulated only to the personnel working in the Accounts Wing. Since the option was not given to the persons working in the Establishment Wing 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. ( 6 ) 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 vis-a-vis other employees as referred to by the Union. The order dated 5/07/1962 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 given any option to go to the Accounts Wing. As a matter of fact the Tribunal found that before 5/07/1962 there was a common cadre for Senior Assistants. The Tribunal further found that the Assistants who were working in the Administration were not asked to exercise any option and they were not given any option to go to the Accounts Wing. As a matter of fact the Tribunal found that before 5/07/1962 there was a common cadre for Senior Assistants. In other words since there was a common cadre of Senior Assistants 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 orders of the superior officers. Inspite of the fact that the persons working in the Accounts section and the Establishment section were borne 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 to allowing the persons who were working in the Accounts section only to continue in Accounts section or to go back on the administrative side. The Tribunal his further discussed as to how Mr. R. A. Parmar was denied the opportunity of getting promotion as his counter part 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 85 Administrative Officer in the Establishment Wing only on 1-1-1985 while Mr. Dave got the Finance Officers post which may he equated With the grade of Administrative Officer an early as 1-10-1982 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 has 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. Parmar has 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. ( 7 ) 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 muchless any violation of Art. 14 of the Constitution. The differentia between the Accounts Wing and the Establishment Wing vas made on intelligible ratio 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 the 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. ( 8 ) 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 owned any provision of the Articles of the Constitution. Miss V. P. Shah cited the decisions reported at AIR 1974 SC p. 1 (State of Jammu and Kashmir v. Triloki Nath Khosa) and AIR 1981 SC p. 1829 (Air India v. Nergesh Meerza ). In AIR 1974 SC p. 1 the question of promotion to the Executive Engineers from the cadre of Assistant Engineers was discussed. Miss V. P. Shah cited the decisions reported at AIR 1974 SC p. 1 (State of Jammu and Kashmir v. Triloki Nath Khosa) and AIR 1981 SC p. 1829 (Air India v. Nergesh Meerza ). In AIR 1974 SC p. 1 the question of promotion to the Executive Engineers 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:39 judged from this point of view it seems to us impossible to accept the respondents submission that the 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 corelated to it for higher educational qualifications are at least presumptive evidence of a higher mental equipment This is right 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:45 If persons 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 so 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. ( 9 ) REPELLING this contention the Supreme Court further held:55 We are therefore of the opinion that though 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. ( 9 ) REPELLING this contention the Supreme Court further held:55 We are therefore of the opinion that though 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 holders does not violate Articles 14 and 16 of the Constitution and must be upheld. ( 10 ) THE next decision cited by Miss V. P. Shah is one reported at AIR 1981 SC p. 18-9. 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:37 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 considering 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 terns leave etc. are introduced in different 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 be 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 other class would amount to any discrimination or to denial of equality of opportunity. (5) Even if there be 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 other 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 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 service of the members of the category (d) the nature and character of the 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. 38 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 ( 11 ) FROM the decision reported in AIR 1974 SC p. 1 it is clear that the promotional were equated to educational qualifications and that was held to be intra vires the Constitution. As far as the present case is to concerned there is no such differentia between the-persons working in the Establishment Wing and the Accounts Wing. On the date when that option order dated 5/07/1962 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 1974 SC p. 1 will not be applicable to the facts of the present case. Hence we are of the view that the decision reported in AIR 1974 SC p. 1 will not be applicable to the facts of the present case. ( 12 ) AS regards the decision reported in AIR 1981 SC p. 1829 the Supreme Court itself has stated that in order to judge whether a 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 particular 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 possess 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 different qualifications of attributes to differentia the persons working in the Establishment Wing from that of the Finance Wing. Hence we do not think that the decision reported in AIR 1981 SC p. 1829 will have any application to the facts of the present case. ( 13 ) 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 option 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. Mr. A. K. Clerk who appears for Mr. R. A. Parmar fairly states that the Tribunal should not have directed to place Mr. Et. . 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. 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 qualifications 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. Neverthless we mate 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. ( 14 ) 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. Order modified. .