Holding

An executive instruction cannot override any provision of the statutory Rules; promotion must follow the procedure laid down in Rule 8, and the 1962 circular only accelerated eligibility without creating an automatic right to promotion.

Summary

The petitioners, appointed as Supervisors Grade ‘A’ in Indian Ordnance Factories between 1962 and 1966, claimed that a 1962 circular promised automatic promotion to Chargeman II after two years of satisfactory service, and that they were discriminated against when not promoted. The respondents argued that promotions were governed by the 1956 Rules, particularly Rule 8 (selection list) and Rule 12 (no appointment except as specified), and that the circular could not override these statutory provisions. The Court held that an executive instruction can only address matters not covered by the Rules and cannot supersede them; therefore the promotion procedure in Rule 8 must be followed and the 1962 circular merely accelerated eligibility, not created a right to automatic promotion. Subsequent orders in 1965 and 1966 superseded the 1962 circular, requiring promotion to follow the normal Rules, and the petitioners’ claims for back‑wages and further promotion were rejected. The writ petitions were dismissed, while the civil miscellaneous petitions were disposed by directing the respondents to grant the same benefits to the appellants in Civil Appeal No. 441 of 1981 as were given by the Madhya Pradesh High Court.

Issues considered

The extent to which an executive instruction (circular) can modify or override statutory service rules.
Whether the 1962 circular created a vested right to automatic promotion after two years of service.
Whether the petitioners were discriminated against in violation of Article 16 of the Constitution.
Effect of subsequent orders (December 1965 and January 1966) on the applicability of the 1962 circular.

Legislation cited

Constitution of Indias. Article 16, s. Article 162, s. Article 309, s. Article 32, s. Article 73
Indian Ordnance Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956s. Rule 11, s. Rule 12, s. Rule 7, s. Rule 8

Subjects

promotionexecutive instructionstatutory rulescivil servicesdiscriminationArticle 16Article 32Indian Ordnance FactoriesRule 8Rule 12back wagesseniority

Judgment

PALURU RAMKRISHNAIAH & ORS. ETC.
A
v.
UNION OF INDIA & ANR.

MARCH 28, 1989

B [R.S. PATHAK, CJ, L.M. SHARMA AND N.D. OJHA, JJ.J

Administrative Law: Executive instructions-cannot override "',"'
•
any provision of the Statutory Rules.

Civil Services: Indian Ordnance Factories (Recruitment and Con-
ditions of Service of Class Ill Personnel) Rules, 1956: Rules 8, 12 and
c circular dated November 6, 1962-Supervisors Grade 'A' promotion to
Chargeman II on completion of two years satisfactory service-Whether
there is discrimination and any condition of service of Supervisor 'A'
affected.

D The petitioners in the writ petitions were appointed as Super-
visors Grade 'A' in various ordnance factories between 1962 and 1966,
in pursuance of circular dated 6th November, 1962 issued by the
Director General of Ordnance Factories. The circular further provided
for promotion from Supervisor 'A' to Chargeman II, on completion of
two years' satisfactory service.
E
75 Supervisors Grade 'A' had moved a writ petition in the
Allahabad High Court in 1972. Their grievance was that 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' satis·
factory work, in pursuance of the circular dated 6th November, 1962,
F they had been discriminated against and had not been so promoted
immediately on the expiry of two years' service.

The writ petition was contested on the ground that the promotion
from Supervisor Grade 'A' to Chargeman II were governed by the
Indian Ordnance Factories (Recruitment and Conditions of Service of
G Grade III Personnel) Rules, 1956 and such promotions could be made
only in accordance with the procedure prescribed by Rule 8 of these
Rules.

The learned Single Judge dismissed the writ petition on the
ground of unexplained !aches. The Division Bench did not find any
H substance in the submission made on behalf of the petitioners and dis-
92
P. RAMKR!SHNAIAH v. U.O.l. 93

~ missed their special appeal. According to the Division Bench, it was
A
difficult to read in the circular that after two years of satisfactory
service there would be automatic promotion from Supervisor Grade 'A'
to Chargeman II as such a view would militate against Rule 12 of the
Rules, which provided that no appointment shall be made otherwise
than as specified in the Rules. It was further held by the Division Bench
that even assuming that some Supervisors Grade 'A' had been automa- B
i- tically promoted on completion of two years' service, without the
recommendation after screening by the Promotion Committee, as pro-
~ vided in Rule 8, no right would accrue in favour of the appellants
inasmuch as such promotions would be in the teeth of Rule 12.
4

Against the judgment of the Division Bench, Civil Appeal No. 441
of 1981 (Virendra Kumar and Others v. Union of India and Others, c
1'· [1981] 3 SCC 30) 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 for promotion as Chargeman Grade II and
they be so promoted unless found to be unfit.
D
Another group of 125 Supervisors Grade 'A' got tt.e benefit of the
Circular dated 6.11.1962 in pursuance of an order passed by the
Madhya Pradesh High Court on 4th April I 983 on the basis of the
judgment of this Court in Civil Appeal No. 44i of 1981. Special Leave
..., Petitions against the judgment of the Madhya Pradesh High Court were
dismissed by this Court. E

-:. The petitioners in the present writ petitions pray that the same
relief may be granted to them as had been granted in Civil Appeal No,
441of1981.
.--\\ In the Civil Miscellaneous petitions now filed in Civil Appeal No. F
~ 441 of 1981, the petitioners, apart from the prayer for initiating pro-
ceedings for contempt against the respondents for disobedience of the
order of this Court dated 2.2.1981, have prayed for orders directing the
respondents to implement in true letter and spirit the said order and to
promote the petitioners to the liext higher posts after giving them the
benefit of the directions of that order. Their grievance is that their G
~' promotion tantamounts to implementation of the order of this Court
dated 2.2.1981 only on paper inasmuch as they have not been granted
the difference of back wages and promotion to higher posts on the basis
of their back-date promotion as Chargeman II.

Before this Court it has been urged on behalf of the respondents H
94 SUPREME COURT REPORTS [1989] 2 S.C.R.

A that (i) promotions of employees inclnding Supervisor 'A' were gover-
ned by the Rules and in view of Rule 12 no appointment could be made
otherwise than as specified therein; (ii) appointments by promotion
were to be made according to Rule 8 on the basis of selection list pre-
pared in the manner provided there in and there was no scope for
automatic promotion merely after expiry of 2 years of continuous
B
service on the basis of the circular dated 6th November, 1962; (iii) the
circular which was in the nature of an executive instruction prescribed t
2 years' service as Supervisor 'A' to make them only eligible for promo-
tion; and (iv) after the issue of the subsequent or<Jer dated 28th
December, 1965 and circular dated 20th January, 1966 no Supervisor
•
could claim to have become eligible for promotion merely on completion
c of 2 years' satisfactory service and his promotion thereafter could be
effected only in accordance with the normal Rules.

Dismissing the writ petitions and disposing of the miscellaneous
petitions, it was,
D
HELD: (I) An executive instruction could make a provision
only with regard to a matter which was not covered by the Rules
and such executive instruction could not override any provision of.
the Rule. I103E]

B.N. Nagarajan v. State of Mysore, [1966] 3 SCR 682; Sant Ram
E
Sharma v. State of Rajasthan, [1968] 1SCR111; Ramchandra Shenkar
Deoghar v. The State of Maharashtra, [1974] 1 SCC 317; Union of
India v. Somasundaram Viswanath, [1988) 3 SC. Judgments Today
724, referred to.

(2) Notwithstanding the issue of instructions dated 6th Novem-
F
ber, 1962 the proce~ure for making promotion as laid down in
Rule 8 of the Rules had to be followed, and the said procedure could
not be abrogated by the executive instructions dated 6th November
1962. [103F]

(3) The only effect of the circular dated 6th November 1962 was
G
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 the chance of promotion.
The right to promotion on the other hand was to be governed by the
Rules. This right of promotion as provided by the Rules was neither
H affected nor could be affected by the circular, I103F-G)
P. RAMKRJSHNAIAH v. U.0.1. 95
,,._
(4) After the coming into force of the order dated 28th December.
1965 and the circular dated 20th January, 1966 promotions could not be A
made just on completion of 2 years' satisfactory service. under the
earlier circular dated 6th November, 1962, the same having been
superseded by the later circular. I 106H; 107 A-Bl

(5) Circular dated 20th January, 1966 could not be treated to be 13

i one affecting adversely any condition of service of Supervisors •A'. Its
only effect was that the chance of promotion which had been accelera-
led by the circular dated 6th November, 1962 was deferred and made
~ dependent on selection according to the Rules. Though a right to be
considered for promotion was a condition of service, mere chances of
promotion were not. l106G-Hl
c
r' Ramchandra Shankar Deodhar v. The State of Maharashtra,
(supra) and Mohammad Shujat Ali & Ors. v. Union of India & Ors.,
[1975] 3 sec 76, referred to.

(6) Supervisors •A' who had been promoted before the coming D
into force of the order dated 28th December, 1965 and the circular
dated 20th January, 1966 stood in a class separate from those whose
promotions were to be made thereafter. The fact that some Supervisors
4 •A' had been promoted before the coming into force of the order dated
20th January, 1966 could not, therefore, constitute the basis for an
argument that those Supervisors 'A' whose cases came up for consi· E
deration thereafter and who were promoted in due course in accordance
with the Rules, were discriminated against. l107B-Cl

(7) There were sufficient indications that when Civil Appeal No.

~
441 of 1981 was heard by this Court either the subsequent order dated
28th December, 1965 as well as the circular dated 20th January, 1966 F
and the legal consequences flowing therefrom were not brought to the
notice of the learned Judges by the learned counsel for the respondents, .
or the same was not properly emphasized. !JOSE-Fl

(8) The findings of the Madhya Pradesh High Court in its judg-
~ ment dated 4th April stood approved by this Court when the Court
dismissed the special leave petition against that judgment. The appel-
G

!ants in Civil Appeal No. 441 of 1981 therefore deserved to he granted
the same benefit as regards back wages and further promotion as were
given by the Madhya Pradesh High Court to such of the petitioners
before that Court who were Supervisors 'A' and were granted promo-
tion as Chargeman II by its judgment dated 4th April, 1983. ll08H; 109Dl H
96 SUPREME COURT REPORTS [1989) 2 S.C.R.

A (9) This was not a fit case for initiating any proceedings for con-
tempt against the respondents. I I09F)

ORIGINAL JURISDICTION: Writ Petition (Civil) No. 530 of
1983 etc.

B (Under Article 32 of the Constitution of India).

V.A. Bobde, Shyam Mudaliar, V.M. Tarkunde, G.L. Sanghi,
A.K. Sanghi, Mrs. R. Karanjawala, Mrs. Meenakshi Karanjawala
N.M. Popli and V.J. Francis for the Petitioners.

Ms. A. Subhashini, D.N. Dwivedi, Girish Chandra, C.V.S. Rao,
c M.C. Dhingra and N.K. Sharma for the Respondents.
~-
The J4dgment of the Court was delivered by

OJHA, J. The petitioners in the aforementioned writ petitions
D claim to have been appointed as Supervisors Grade 'A' in various
ordnance factories between 1962 to 1966 and have filed these writ
petitions with the prayer that the same relief may be granted to them
also as was granted by this Court to 75 appellants in Civil Appeal No.
441of1981 vide its order dated 2nd February, 1981. The three civil r
miscellaneous petitions referred to above on the other hand have been
E made by the appellants of Civil Appeal No. 441of1981 asserting that
the direction given by this Court on 2nd February, 1981 has not been ;..,;,
complied with in the manner as it ought to have been by the respon-
dents and they should be consequently required to comply with the
said direction. The exact nature of the prayer made in these miscel·
laneous applications shall be indicated after referring to the relief /--
F granted on 2nd February, 1981 in Civil Appeal No. 441of1981. ~-
The 75 appellants of Civil Appeal No. 441 of 1981 filed a writ
petition in the Allahabad High Court in 1972 asserting that they had
been appointed as Supervisors Grade 'A' on various dates in pur-
suance of a circular dated 6th November, 1962 issued by the Director
G General of Ordnance Factories, the relevant portion whereof reads as -~"
hereunder:- '
\
"Subject: NON-INDUSTRIAL ESTABLISHMENT
PROMOTION

H D.G.O.F. has decided that Diploma holders serving as
P. RAMKRISHNAIAH v. U.0.1. [OJHA, J.[ 97
'
-..:
-~k Spervisor 'A' {Tech)/Supervisor 'B'/{Tech) and in equiva-
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 ordnance
factories be promoted to Supervisor 'A' (Tech) and in equi- B
·~
valent 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.
c
f.
Sd/-K.G. Bijlani
ADGOF/Est.
forD.G.O.F."
D
Their grievance in the writ petition was that 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
I they had been discriminated against and had not been so promoted
·r immediately on the expiry of two years' in pursuance of the aforesaid
circular even though their work was satisfactory. The relief prayed for E
in the said writ petition was for the issue of a writ. of mandamus
--< directing the Union of India through the Director General of Or-
dnance Factories to promote the appellants to the post of Chargeman
II. The writ petition was contested by the respondents thereto inter
alia on the ground that under the rules of promotion from Supervisor

1 'A' to Chargeman II first Departmental Promotion Committee at the
factory level and then a Departmental Committee at the Central level
screens the service record of each of the Supervisors 'A' who comes
F

within the range of eligibility and then finally the Director General of
Ordnance Factories draws up a list and sanctions promotions. It was
further asserted that in accordance with the said rule the cases of all the
appellants were screened by the Promotion Committee at the factory
-"'>-. level and then at the Central level and they not having been found fit
G
'
, were not promoted. It appears that the criterion of promotion is
seniority-cum-merit. The learned Single Judge, however, did not go
/
into the merits of the controversy and dismissed the writ petition on
the ground of unexplained !aches and also on the ground that a pre-
vious petition for similar relief had not been pressed. Against the H
98 SUPREME COURT REPORTS [1989] 2 S.C.R.

judgment of the learned Single Judge the appellants preferred a
A
special appeal before a Division Bench of that Court. The learned
Judges who decided the special appeal did not consider it appropriate
to uphold the dismissal of the writ petition on the technical ground
which found favour with the learned Single Judge and they went into
the merits of the respective contentions of the parties. They, however,
B did not find any substance in the submission made on behalf of the
appellants and accordingly dismissed the special appeal on 8th 1
February, 1977. The learned Judges pointed out that it was admitted
that the conditions of service applicable to the case of the appellants
were governed by the Indian Ordnance Factories (Recruitment and
Conditions of Service of Class III Personnel) Rules, 1956 {hereinafter
..
referred to as the Rules) framed by the President of India under Arti-
c cle 309 of the Constitution. It was further pointed out that Rule 8
contemplated that appointments by promotion were to be made on the
basis of a selection list prepared for the different grades by duly con-
stituted Departmental Promotion Committees laid down in the said
rule whereas Rule 12 provided that no appointment to the posts to
D which these rules apply shall be made otherwise than as specified
therein. With regard to the circular dated 6th November, 1962 the
learned Judges took the view that it was difficult to read in that circular
any intention or deliberation on the part of the Director General of
Ordnance Factories that as soon as two years were completed by a
diploma holder in the Grade of Supervisor 'A' there would be an
E automatic promotion to the post of Chargeman II. According to the
learned Judges such a view would militate against Rule 12 of the Rules
mentioned above. It was further held that even if it was to be assumed
that the Director General of Ordnance Factories automatically pro-
moted some Supervisors 'A' immediately on the completion of 2 years
of service to the post of Chargeman II without the recommendation )-
F after screening by the Promotion Committee no right would accrue in
favour of the appellants inasmuch as such promotions would be in the .i..
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 Article 16 of the Constitution it was held "A half-hearted
argument was raised at the end of the hearing on behalf of the
G appellant-petitioners that they have been discriminated against 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 learned Single Judge. Moreover, we do not think any
case, on the basis of violation of Article 16 of the Constitution can be
H found in favour of the appellant-petitioners only because some
P. RAMKRISHNAIAH v. U.0.1. [OJHA, J.[ 99

supervisors, equally placed, were promoted against the rules of A
ser\>ice. No formal foundation has been raised in the pleadings in the
writ petition in support of the ground based on Article 16 of the
Constitution."

It is against this judgment that Civil Appeal No. 441of1981 was
preferred in this Court. Since the order dated 2nd February, 1981 B
passed in Civil Appeal No. 441 of 1981, so to speak, constitutes the
basis for the writ petitions mentioned above, it is in our opinion
expedient to reproduce the said order. It reads:-

"Heard counsel. Special leave granted.
c
"Our attention has been invited by learned counsel for both
the sides to the relevant rules which govern promotion to
the post of Chargeman Grade II. It appears that a large
number of persons have been promoted to those posts
though they have completed only two years of service. The
Government now appears to insist that in so far as the D
appellants are concerned they cannot be considered for
promotion unless they complete three years of service. We
see no justification for any such differential treatment
being given to the appellants. If a large number of other
persons similarly situated have been promoted as Charge·
man Grade II after completing two years of service, there is E
no reason why the appellants should also not be similarly
promoted after completing the same period of service. We
are not suggesting that the appellants are entitled to be
promoted to the aforesaid posts even if they are found unfit
to be promoted.
F
We Therefore direct that the concerned authorities
will consider the cases of the appellants for promotion as
Chargeman Grade II and promote them to the said posts
unless they are found to be unfit. If the appellants are
promoted, they will naturally have to be promoted with
effect from the date on which they ought to have been G
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 petitions refer- H
100 SUPREME COURT REPORTS [1989) 2 S.C.R.

red to above have prayed for the same relief which was granted in Civil
A
Appeal No. 441of1981. Now we shall revrt to the exact prayers made
in the three miscellaneous petitions aforesaid. The prayer made in
Civil Miscellaneous Petition No. 3325 of 1987 is for the issue of an
interim order restraining the respondents from making any further
promotions during the pendency and final hearing of the miscellane-
B ous petition and for initiating contempt proceedings. Almost analog-
ous prayer had been made in Miscellaneous Petition No. 9357 of 1983
also namely that the respondents may be restrained from promoting
officers to the next higher posts on the basis of recommendations of
certain Departmental Promotion Committees without complying with
the directions of this Court in its order dated 2nd February, 1981. The
reliefs prayed for in the above two civil miscellaneous petitions are
c thus of an interim nature. The main reliefs which have been prayed for
apart from for initiating proceedings for contempt for disobedience of
the order of this Court dated 2nd February, 1981 are reliefs (i), (ii) and
(iii) contained in Civil Miscellaneous Petition No. 9356 of 1983. They
are as hereunder:-
D
"(i) pass appropriate orders directing the respondents to
implement in true letter and spirit, the judgment of this
Hon'ble Court dated 2.2.1981 in Civil Appeal No. 441 of
1981; +
E (ii) issue appropriate directions commanding the respon-
dents to promote the appellants to the next higher posts of
Chargeman Grade I, Assistant Foreman, and Foreman,
with effect from the date they are entitled to, after giving
them the benefit of the directions of this Hon'ble Court
dated 2.2.1981;
F '.1>-
(iii) issue appropriate directions to the respondents to give
all consequential benefits to the appellants, including pay-
ment of arrears."

The aforesaid writ petitions came up for hearing before a bench
G of two learned Judges of this Court on 9th September, 1987. On the ,,.{
view that the judgment of this Court dated 2nd February, 1981 in Civil
Appeal No. 441 of 1981 in the case of Virendra Kumar and Others v.
Union of India & Ors., [1981) 3 SCC Page 30 may require reconsidera-
tion, the petitions were directed to be placed before a three Judge
Bench "where inter alia the correctness of the judgment could be
f-! looked into and the nature of relief available to the petitioners on the
P. RAMKRISHNAIAH v. U.0.1. [OJHA, J.} 101
)-
facts now stated would also be considered." It is in view of this order
A
that these matters have been listed before us.

Learned counsel for the petitioners contended that the reason
which weighed with this Court in allowing Civil Appeal No. 441 of
1981 applies to these writ petitions also and the same relief may
accordingly be granted to the petitioners. It was also brought to our B
t notice that similarly placed 125 employees got the benefit of the cir-
~ cular dated 6th November, 1962 in pursuance of an order passed by the
Madhya Pradesh High Court on 4th April, 1983 in writ petitions filed
~
by them. It was urged that in case the same relief is not granted to the
petitioners they are likely to become juniors to some of the appellants
in Civil Appeal No. 441of1981 and the petitioners in the writ petitions
decided by the Madhya Pradesh High Court on 4th April, 1983. c
f-
; For the respondents on the other hand it was urged that service
conditions including promotion of employees including Supervisors
'A' in the Indian Ordnance Factories were governed by the Rules and
in view of Rule 12 no appointment to the various posts to which the D
Rules applied could be made otherwise than as specified therein.
According to learned counsel since Rule 8 of the Rules contemplated
that appointments by promotion were to be made on the basis of
~- selection list prepared in the manner provided therein, there was no
scope for automatic promotion merely after expiry of 2 years of con-

-
tinuous service on the basis of the circular dated 6th November, 1962. E
According to learned counsel the Rules did not prescribe the minimum
number of years of service as Supervisors 'A' which would make them
eligible for promotion as Chargeman II and the circular dated 6th
November, 1962 which was in the nature of an executive instruction
_,
--'. prescribed 2 years' service as Supervisor 'A' to make him eligible for
promotion. However, merely on completion of two years' service a F
Supervisor 'A' could not claim automatic promotion. On the other
hand, promotion depended, inter alia, on availability of posts and the
incumbent being found fit by the D~partmental Promotion Committee
for being included in the selection list. It was only such a Supervisor
Grade 'A' whose name found place in the selection list who could be
t-. promoted to the post of Chargeman II as and when vacancies were G
available. It was further urged that the petitioners of these writ peti-
tions were on the basis of the Rules considered for promotion and it is
not disputed that all of them have in due course been promoted as
Chargeman II and some of them have even been promoted to higher
posts. Our attention was further invited by learned counsel for the
respondents to an order communicated among others to the Director H
102 SUPREME COURT REPORTS [1989] 2 S.C.R.

A General of Ordnance Factories, vide letter dated 28th December, 1965
of the Government of India, Ministry of Defence, saying inter alia that
a minimum period of service of three years iu the lower grade should
be fixed for promotion to the next higher grade. It was pointed out that
this had been found necessary uot only because it would be in con-
formity with the practice obtaining ln other Ministries but also because
B on merits this period is necessary to judge the performance in the
lower post and the potentialities for promotion to a higher post. He
also brought to our notice a subsequent circular dated 20th January,
1966 by the Director General of Ordnance Factories who had issued .
the earlier circular dated 6th November, 1962 which provides:-

"Sub: N.G. Establishment-Treatment of Diploma
c Holders and ex-apprentices serving as Supr. A Gr. -4-
or in equivalent grades in the matter of promotion.

Ref: This office confidential No. 673/A/NG dt. 6.11.62
and 4416/A/NG dt. 29.6.65.
D
The question of promotion of Diploma holders in
Mech/Elec. Engineering and Ex-apprentices serving as
Supr. 'A' Gr. or in equivalent grades has received further
consideration of the D.G.0.F. who has decided that in -f'
future promotions of all such individuals will be effected in
E accordance with the normal rules i.e. on the basis of their
listing by the relevant D.P.C. and not merely on comple-
tion of 2 years satisfactory continuous service as Supr. A
Gr. or equivalent grades."

It was urged that after the issue of the subsequent order dated f~
F 28th December, 1965 and circular dated 20th January, 1966 no ,z..
Supervisor 'A' could claim to have become eligible for promotion
merely on completion of 2 years' satisfactory service and his promoton
thereafter could be effected only in accordance with the normal Rules.

Having heard learned counsel for the parties we find substance in
G the submission made by the learned counsel for the respondents. Rely- .---<
ing on two earlier decisions in B. N. Nagarajan & Ors. v. State of
Mysore & Ors., [1966) 3 SCR 682 and Sant Ram Sharma v. State of
Rajasthan & Anr., [1968] 1 SCR 111 it was held by a Constitution
Bench of this Court in Ramachandra Shankar Deodhar and Ors. v.
The State of Maharashtra & Ors., [1974] 1 SCC 317 that in the absence
H of legislative Rules it was competent to the State Government to take a
P. RAMKRISHNAIAH v. U.0.1. [OJHA, J.) 103

>- decision in the exercise of its executive power under Article 162 of the
Constitution. The matter has been considered in a recent decision of
A
this Court in the case of Union of India & Ors. v. Sh. Somasundaram
Viswanath & Ors., [1988] 3 S.C. Judgments T-oday 724 wherein it has
been held:-

"It is well settled that the norms regarding recruitment and B
r promotion of officers belonging to the Civil Services can be
laid down either by a law made by the appropriate Legisla-
+ lure or by rules made under the proviso to Article 309 of
~
. the Constitution of India or by means of executive instruc-
lions issued under Article 73 of the Constitution of India in
the case of Civil Services under the Union of India and
under Article 162 of the Constitution of India in the case of
c
+· Civil Services under the State Governments. If there is a
conflict between the executive instructions and the rules
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 conflict D
between the rules made under the proviso to Article 309 of
the Constitution of India and the law made by the appro-
priate Legislature, the law made by the appropriate Legis-
4- lature prevails."

It is thus apparent that an executive instruction could make a E
provision only with regard to a matter which was not covered by the
....: Rules and that such executive instruction could not override any provi-
sion of the Rule. Notwithstanding the issue of instruction dated 6th
November, 1962 therefore, the procedure for making promotion as
~ laid down in Rule 8 of the Rules had to be followed. Since Rule 8 in
l the instant case prescribed a procedure for making promotion the said F
procedure could not be abrogated by the executive instruction dated
6th November, 1962. The only effect of the 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 the chance of promotion. The right to promotion on the G
~
other hand was to be governed by the Rules. This right was conferred
by Rule 7 which inter alia provides that subject to the exception con-
tained in Rule 11, vacancies in the posts enumerated therein will nor-
mally be filled by promotion of employees in the grade immediately
below in accordance with the provisions of Rule 8. The requirements
of rule 8 in brief have already been indicated above. Rule 12 provides H
104 SUPREME COURT REPORTS [1989) 2 S.C.R.

that no appointment to the posts to which these rules apply shall be
-{
A
made otherwise than, as specified in these rules. This right of promo-
tion as provided by the Rules was neither affected nor could be
affected by the circular. The order 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
B January 1966 which provided that promotions in future will be effected
in accordance with the normal rules and not merely on completion of2
i
years' satisfactory continuous service had 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 ~

the Rules.
c In the case of Ramchandra Shankar Deodhar & Ors., (supra) the
petitioners and other allocated Tehsildars from ex-Hyderabad State 4
had under the Notification of the Raj Pramukh dated September 15,
1955 all the vacancies in the posts of Deputy Collector in the
ex-Hyderabad State available to them for promotion but under sub-
D sequent rules of July 30, 1959 fifty per cent of the vacancies were to be
filled by direct recruitment and only the remaining fifty per cent were
available for promotion and that too on divisional basis. The effect of
this change obviously was that. now only fifty per cent vacancis in the
post of Deputy Collector beig available in place of all the vacancies it
was to take almost double the time for many other allocated Tehsildars
7
E to get promoted as Deputy Collectors. Jn other words it resulted in
delayed chance of promotion. It was, inter alia, urged on behalf of the
petitioners that the situation brought about by the rules of July 30,
1959 constituted variation to their prejudice in the conditions of
service applicable to them immediately prior to the reorganisation of
the State and the Rules were consequently invalid. While repelling this I
F submission the Constitution Bench held:- '
~

"All that happened as a result of making promotions to the
posts of Deputy Collectors divisionwise and limiting such
promotions to 50 per cent of the total number of vacancies
in the posts of Deputy Collector was to reduce the chances
of promotion available to the petitioners. It is now well
G
settled by the decision of this Court in State of Mysore v.
~
G.B. Purohit that though a right to be considered for pro-
motion is a condition of service, mere chances of promo-
tion are not. A rule which merely affects chances of promo-
tion cannot be regarded as varying a condition of service.
H In Purohit's case the districtwise seniority of sanitary in-
P. RAMKRISHNAIAH v. U.0.1. IOIBA, J.] 105

spectors was changed to Statewise seniority, and as a result
A
of this change the respondents went down in seniority and
became very junior. This, it was urged, affected their
chances of promotion which were protected under the pro-
viso to Section 115, sub-section (7). This contention was
negatived and Wanchoo, J., (as he then was), speaking on
(
behalf of this Court observed: "It is said on behalf of the B
t respondents that as their chances of promotion have been
'
~ affected their conditions of service have been changed to
their disadvantage. We see no force in this argument
~ because chances of promotion are not conditions or ser-
vice." It is, therefore, clear that neither the Rules of July
'30, 1959, nor the procedure for making promotions to the
posts of Deputy Collector divisionwise varies the condi- c
-}-
tions of service of the petitioners to their disadvantage."

The same view was reiterated in Mohammad Shujat Ali and Ors.
v. Union of India & Ors., 11975) 3 SCC 76. In the brief written submis-
sion filed on behalf of the petitioners in Writ Petition Nos. 9522-27 of D
1983 it has been pointed out that employees who had jo\ned much later
than 20th January, 1966, namely, the date of the subseq]!ent circular of
the Director General of Ordnance Factories superseding his earlier
J,. circular dated 6th November, 1962, have also got benefit under the
orders of this Court dated 2nd February, 1981 aforesaid as also under
the orders of the Madhya Pradesh High Court dated 4th April, 1983 in E
the writ petition fiied before that Court. This circumstance by itself is
sufficient to indicate that when Civil Appeal No. 441of1981 was heard
by this Court either the subsequent order dated 28th December, 1965
as well as the circular dated 20th January, 1966 and the legal conse-
__.j. quences flowing therefrom were not brought to the notice of the
J learned Judges by the learned counsel for the respondents, or the same
was not properly emphasised, the judgment dated 2nd February, 1981
F

being completely silent on the point and the appeal was allowed only
on the ground that some Supervisors having been promoted as Charge-
man II on expiry of 2 years of their service in view of the circular dated
6th November, 1962 the non-promotion of the appellans was discri-
}-_ minatory being in violation of Article 16. As regards the order of the G
Madhya Pradesh High Court dated 4th April, 1983 it may be pointed
out that the said High Court in an earlier writ petition being Misc.
Petition No. 596 of 1978 had disallowed the relief for the petitioners of
that writ petition being treated as Chargeman II on completion of two
years' service as Supervisor 'A' by its order dated 16th April, 1979 as is
apparent from the said judgment dated 4th April, 1983 but the subse- H
106 SUPREME COURT REPORTS I1989] 2 S.C.R.

A quent writ petitions which seem to have been filed after the decision of
this Court dated 2nd February, 1981 in Civil Appeal No. 441of1981
were allowed in view of the aforesaid decision of this Court.

In this connection it is also of significance to notice that it does
not seem to have been the case of the appellants in Civil Appeal No.
B 441 of 1981 that those who according to them had been promoted in
pursuance of the circular dated 6th ~'ovember, 1962 on completing two
years' service were junior to them. At this place it will be useful to
refer to an affidavit dated 19th November, 1983 of D.P. Gupta, who is
one of the appellants in Civil Appeal No. 441of1981, filed in C.M.P. •
Nos. 9356-57 of 1983. Annexure I to the said affidavit gives a break-up
of the total diploma holders recruited in the Department due to acute
c need of Ordnance Department following the chinese aggression. It
indicates that approximately 125 diploma holders were recruited in +
1962, 550 in 1963, 250 in 1964, 150 in 1965 and 100 in 1966, the total
number of such recruits being approximately 1175. The said Annexure
further indicates that out of the 1175 recruits about 625 were promoted
D to the post of Chargeman II in 1965-66 under the 2 year policy con-
tained in circular dated 6th November, 1962 and that approximately
550 diploma holders were denied promotion which resulted in dis-
crimination. From this break-up it is apparent that all the diploma
holders recruited in 1962 whereas 500 out of 550 recruited in 1963 were
promoted on expiry of 2 years of service. It appears that the remaining
E 50 diploma holders recruited in 1963 and those who had been recruited
in the begnning of 1964 or thereafter could not be promoted inasmuch
as by the time their cases could be considered for promotion the subse-
quent order dated 28th December, 1965 had come into force and had
also come into force the circular dated 40th January, 1966 which had
superseded the circular dated 6th November, 1962 and had provided )..-.
F that in future promotions of all such individuals will be effected in .b.
accordance with the normal rules and not merely on the completion of
two years satisfactory continuous service.

It cannot be disputed that the Director General of Ordnance
Factories who had issued the circular dated 6th November, 1962 had
G the power to issue the subsequent circular dated 20th January, 1966 .-{
also. In view of the legal position pointed out above the aforesaid
circular could not be treated to be one affecting adversely any condi-
tion of service of the Supervisors 'A'. Its only effect was that the
chance of promotion which had been accelerated by the circular dated
6th November, 1962 was deferred and made dependent on selection
H according to the Rules. Apparently, after the coming into force of the
P. RAMKRISHNAIAH v. U.0.1. [OJHA, J.[ 107

} order dated 28th December, 1965 and the circular dated 20th January,
A
1966 promotions could not be made just on completion of 2 years'
satisfactory service under the earlier circular dated 6th November,
1962 the same having been superseded by the later circular. It is
further obvious that in this view of the matter Supervisors 'A' who had
been promoted before the coming into force of the order dated 28th
December, 1965 and the circular dated 20th January, 1966 stood in a B
') class separate from those whose promotions were to be made thereat-
-~ ter. The fact that some Supervisors 'A' had been promoted before the
coming into force of the order dated 28th December, 1965 and the

- circular dated 20th January, 1966 could not, therefore, constitute the
basis for an argument that those Supervisors 'A' whose cases came up
for consideration for promotion thereafter and who were promoted in
due course in accordance with the rules were discriminated against. c
r- They apparently did not fall in the same category.

It may also be noticed that even though the petitioners on their
completion of 2 years' service as Supervisor 'A' were not promoted as
Chargeman II in or about the year 1966 they chose to wait for about 17 D
years to file these writ petitions which were filed in 1983, and nearly 2
years even after the decision dated 2nd February, 1981 in Civil Appeal
No. 441 of 1981, which indicates that but for the decision in Civil
I,. Appeal No. 441of1981 they would perhaps not have even thought of
filing these writ petitions inasmuch as in the meantime they had not
only been promoted in the normal course as Chargeman II but some of E
them had been promoted even to higher posts in the hierarchy.

For aught we know if the effect of the order dated 28th
December, 1965 and the circular dated 20th January, 1966 had been
properly emphasised at the time of hearing of Civil Appeal No. 441 of
..... 1981 its result may have been different. In this connection, reference F
I
...cl may also be made to the counter affidavit of Sobba Ramanand,
Deputy Director, Ordnance Factory Cells G. Block, Ministry of
Defence, filed in Writ Petition (Civil) Nos. 3812-19 of 1983 with regard
to a matter relevant for promotion. In paragraph 2(i) it has been stated
that during 1962-63 due to sudden expansion of Ordnance Factories
Organisation in the wake of Chinese aggression a large number of G
~ posts of Chargeman II and other posts 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 has
further been stated therein that after the newly created posts were thus
filled by promotion, chances of promotion of those who were appoin-
ted subsequently diminished and for want of sufficient number of H
108 SUPREME COURT REPORTS l 19891 2 S.C.R.

A vacancies as Chargeman II they could not be promoted to that post -i
soon after the completion of 2 years' service.There is a further aver-
ment in the said counter affidavit that petitioners were duly considered
in their turn and their names were brought on the approved panel.
They were thereafter promoted as soon as vacancies became available
and that during the period that they were on the approved panel no
B person junior to them or of equal seniority superseded them. Nothing
substantial has been brought to our notice on behalf of the petitioners +
on the basis of which the aforesaid statements made in the counter
affidavit may be doubted.
~
~
In view of the foregoing discussion, we find it difficult to grant
the reliefs prayed for in the aforesaid writ petitions simply on the basis
C·
of the judgment of this Court dated 2nd February, 1981 in Civil
Appeal No. 441of1981. These writ petitions, therefore, deserve to be ·+
dismissed.

Since, however, the judgment of this Court dated 2nd February,
D 1981 in Civil Appeal No. 441of1981 has not been challenged and has
become final, the next question which falls for consideration is as to
what further relief, if any, are the appellants in Civil Appeal No. 441
of 1981 entitled in pursuance of the Civil Miscellaneous Petitions refer-
red to above filed by them. The reliefs which they have claimed have
already been indicated above. It is now not disputed that the appel- --f
E !ants of this appeal have in pursuance of the order of this Court dated
2nd February, 1981 been given a back date promotion to the post of
Chargernan II synchronising with the dates of completion of their 2
years of service as Supervisor 'A'. The grievance of the petitioners,
however, is that this promotion tantamounts to implementation of the
order of this Court dated 2nd February, 1981 only on paper inasmuch
-
~
F as they have not been granted the difference of back wages and promo-
tion to higher posts on the basis of their back date promotion as ~
Chargeman II. As already noticed earlier certain writ petitions filed in
Madhya Pradesh High Court were allowed by that Court on 4th April,
1983 relying on the judgment of this Court dated 2nd February, 1981 in
Civil Appeal No. 441of1981. Against the aforesaid judgment of the
G Madhya Pradesh High Court dated 4th April, 1983 Special Leave Peti-
tions (Civil) Nos. 5987-92 of 1986 were filed in this Court by the Union --4
of India and were dismissed on 28th July, 1986. The findings of the
Madhya Pradesh High Court in its judgment dated 4th April, 1983 thus
stand approved by this Court. In this view of the matter to put them at
par it would be appropriate that the appellants in Civil Appeal No. 441
H of 1981 may also be granted the same relief which was granted to the
P. RAMKRISHNAIAH v. U.0.1. IOJHA, J.] 109

petitioners in the writ petitions before the Madhya Pradesh High A
Court. As regards back wages the Madhya Pradesh High Court held:
"It is the s~ttled service rule that there has to be no pay for
no work i.e. a person will not be entitled to any pay and
allowance during the period for which he did not perform
the duties of a higher post although after due consideration B
he was given a proper place in the gradation list having
deemed to be promoted to the higher post with effect from
the date his junior was promoted. So the petitioners are not
entitled to claim any financial benefit retrospectively. At

- the most they would be entitled to refixation of their pre-
sent salary on the basis of the notional seniority granted to
them in different grades so that their present salary is not c
less than those who are immediately below them.''
In so far as Supervisors 'A' who claimed promotion as Chargeman II
the following direction was accordingly given by the Madhya Pradesh
High Court in its judgment dated 4th April, 1983 aforesaid:-
D
" All these petitioners are also entitled to be treated as
Chargeman Grade II on completion of two years satisfac-
tory service as Supervisor Grnde-A. Consequently,
notional seniority of these persons have to be refixed in
Supervisor Grade A, Chargeman Grade-II, Grade-I and
Assistant Foreman in cases of those who are holding that E
post ..... The petitioners are also entitled to get their
present salary re-fixed after giving theni notional seniority
so tha:t the same is not lower than those who are immedia-
tely below them."
In our opinion, therefore, the appellants in Civil Appeal No. 441
of 1981 deserve to be granted the same limited relief. We are further of F
the opinion that it is not a fit case for initiating any proceedings for
contempt against the respondents.
In the result, the writ petitions fail and are dismissed. The Civil
Miscellaneous Petitions in Civil Appeal No. 441 of 1981 are disposed
of b) issuing a direction to the respondents to give the appellants in the G
said Civil Appeal the same benefits as were given by the Madhya
Pradesh High Court to such of the petitioners before that Court who
were Supervisors 'A' and were granted promotion as Chargeman II by
its judgment dated 4th April, 1983. In the circumstances of the case,
however, there shall be no order as to costs.
H
R.S.S Petitions dismissed.