UNION OF INDIA AND ORS.versusSHRI PURNENDU MUKHOPADHYAY AND ORS.

A                       UNION OF INDIA AND ORS.
                                        v.
            SHRI PURNENDU MUKHOPADHYAY AND ORS.

                                AUGUST 5, 1993

B                  [S.C. AGRAWAL AND R.M. SAHA!, J.T.J

          Service law: Ordinance Factmies-Apprentices-Post- training employ-
    ment-Supe1visor Grade 'A' and higher post of chargeman Grade-II on the
    basis of gradation in Examination conducted-Border line cases-Gradation
C   as chargeman Grade- II-Scheme granting one more opportunity to such
    Supe1visors Grade 'A' to appear in 01e ne.rt Exan1ination-W!1ether dis-
    c1i1ninatol),_lnter-se senio1ity-Directions gi.ven.

          In 1950 the Union of India introduced Apprenticeship Training
    Scheme for supervisory posts, in Ordinance Factories for efficient working
D and better supervision. The apprentices were offered post-training employ-
    ment by the Director General (D.G) to various posts including the posts
    of Supervisor Grade 'A' and Chargeman Grade II on the basis of grada-
    tion secured by them in the examination. In November 1965 D.G. suggested
    that in border line cases of apprentices graded as Supervisor Grade 'A' if
E   would be fair to give them another chance to appear within six months in
    the next examination for grading as Chargeman Grade II since they might
    have been grading as Supervisor Grade 'A' due to slightly different stand-
    ards of marking. Though formal instructions were issued in 1967 the D.G.
    permitted some of the apprentices graded as Supervisor Grade 'A' in the
    examination conducted in 1965, to appear in the next examination in 1966,
F   in which many succeeded and were appointed as Chargeman Grade II.

        Some of the Supervisors Grade 'A' who were working even prior
  to 1965 and who satisfied the eligibility criteria and others who were
  denied similar opp<J"tunity to appear in the 1966 Examination ap-
G proached the High Court by way of writ petition. The-High Court held
  that the action of the appellant in denying similar opportunity to
  Supervisor Grade 'A' who had appeared in the examination prior to 1965
  or even thereafter and were in the field of eligibility as provided by the
  modified scheme was discriminatory and violative of Article 16(1) of
H the Constitutfon. No examination was held conse'luent to the High
                                    496
                    U.0.1. v. P. MUKHOPADHYAY                           497

Court's order and the respondents approached the Central Administra- A
tive Tribunal in view or the change in jurisdiction. The Tribunal held .
that the appellant is not calling the respondents for the examination
acted discriminately and since it was conceded that it was not possible
to hold the examination, a direction was issued tO the authorities to
re-fix the notional seniority or the respondents and fix their pay and all     B
benefits attached thereto as per rule on the basis that all the applicants
came out successrul in the selection tests for the post or Chargeman
Grade II. This appeal is against the said order or the Tribunal.

      Dismissing the appeal, this Court
                                                                               c
      HELD : I. Despite appointment or every Supervisor Grade 'A',
Chargeman Grade-II, the discrimination which occurred due to enforce·
ment or the modified scheme since 1965 permitting only few Supervisors
Grade 'A' to appear in the next examination persisted in respect of these
Supervisor Grade 'A' appointed prior to coming into force of this scheme
                                                                               D
and they were denied similar opportunity eventhough they came in the field
of eligibility. If the policy of permitting Supervisors Grade 'A' to improve
their grade would not have been introduced then the seniority amongst the
Supervisors would have remained the same and these appointed in one
year would have remained senior to those appointed in I3tter year. It is       E
not the appointment of petitioners as Chargeman Grade-II from 1980 but
also the determination of their seniority which was material as it is
admitted that the higher posts are available for promotion on the basis of
seniority-cum-merit. The question of seniority therefore was of utmost
importance and unless there was some such difficulty which could not be
resolved, the appellant should have taken care to see that the order of the
                                                                               F
High Court was complied with. In any case there is no error of law in the
Tribunal directing grant of notional appointment as chargeman Grade-II
to the appellants. This was the only possible manner in which the injustice
could have been remedied. [501-D-H]
                                                                               G
       2. The placement of all those Supervisors Grade 'A' who came in the
field of eligibility i.e. securing less than 5% marks in aggregate fixed for
selection as Chargeman Grade-II, should be fixed on the basis that they
were selected for that post six months from the date of their gradation
examinations. [502-A, BJ                                                     H
    498                   SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R.

A           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2322 of
    1991.

         !'mm the Judgment dated 9.7.1990 of the Central Administrative
    Tribunal, Calcutta in T.A. No. 1069 of 1986 (CR. 1671-W/1988).

B        N.N. Goswami, T.C. Sharma, C.V.S. Rao and Ms. A. Subhashini for
    the Appellants.

          S.M. Jain, S.K. Jain, A.P. Dhamija, S. Atreya and Ms. Pratibha Jain
    for the Reopondents.
c           M.C. Dhingra (NP) for the Intervenor.

            The Judgment of the Court was delivered by

            R.M. SAHA!, J. In this appeal directed against the judgment and
D order of the Central Administrative Tribunal, Calcutta Bench herein'after
    referred to as 'CAT') the short question that arises for consideration is if
    the tribunal committed any error of law in directing the appellants to re-fix
    the notional seniority of Supervisors Grade 'A' in ordinance factories, 'and
    fix their pay-scale and all benefits attached thereto as per rule on the basis
E   that all the applicants came out successful in the selection tests for promo-
    tion to the post of Chargeman Grade II from their respective dates of
    examination'.

        In 1950 the Union of India, in the Ministry of Defence, introduced
  Apprenticeship Training Scheme for supervisory posts, in Ordinance Fac-
F tories for efficient working and better supervision. After completion of
  successful apprenticeship the trainees were offered post-training employ-
  ment by the Director General (D.G) to various posts including the posts
  of Supervisor Grade 'A' and Chargeman Grade II on gradation secured by
  them in the examination conducted by the Central Selection Board. Jn
G November 1965 the D.G. suggested that in border line cases of apprentices
  graded as Supervisor Grade 'A' it would be fair to give them another
  chance to appear within six months in the next examination for grading as
  Chargeman Grade II since they might have been graded as Supervisor
  Grade 'A' due to slightly different standards of marking. The suggestion
H materialised in 1967 and the scheme was amended as under:
           U.0.1. v. P.MUKHOPADHYAY[R.M.SA.HAf,J.]                    499

         "The Supervisory Apprentices who secure 5% marks less in the        A
        .aggregate than prescribed by the Central Selection Board for
         gradation as Chargeman Grade II in a particular gradation ex-
         amination will be graded as Supervisor Grade A/or equivalent but
         will be allowed to take another chance at the next gradation
         examination and on the basis of their performance may be graded
         by the D.G.O.F. as fit for appointment as Chargeman Grade II
                                                                             B
         and appointment as such with effect from a date after they are so
       . graded in the subsequent gradation examination.

           This will have retrospective effect to cover the past cases in
        which the DGOF has already allowed the Supervisory Apprentices       C
                                                                1
        another chance to appear in the gradation examination.   '




       Although formal instructions were issued in 1967 the D.G. permitted
some of the apprentices graded as Supervisor Grade 'A' in the examination
conducted in 1965 to appear in the next examination in 1966, in which many
succeeded and were appointed as Chargeman Grade II. Some of the D
Supervisors Grade 'A' who were working from before and satisfied the
eligibility criteria and others who were denied similar opportunity even
though they had secured 5% less in the aggregate approached this Court
by way of writ petition and claimed that they too should have been given
another opportunity to improve their gradation as was done in case of E
others. When the petitions came up for hearing this Court permitted them
to be withdrawn and they approached the High Court of Delhi by way of
writ petition under Article 226 of the Constitution. The High Court held
that the action of the appellant in denying similar opportunity to Supervisor
Grade 'A' who had appeared in the examination prior to 1965 or even F
thereafter and were in the field of eligibility as provided by the modified
scheme was discriminatory and violative of equal guarantee under Article
16(1) of the Constitution. It consequently issued following directions :

        "The Government is granted liberty to consider the dispute afresh.
        In case the Government is not able to arrive at a reasonable G
        workable solution acceptable to the petitioners within six months
        from today, I am inclined to issue a writ of mandamus and hereby
        issue directing the respondents 1 to 6 to give another chance to
        the ex-Supervi~ory apprentices i.e. such of the petitioners who
        secured 5% less marks in the aggregate than prescribed by the H
    500                  SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A           Central Selection Board for gradation as Chargeman Grade II in
            a particular examination and who have been graded as Supervisor
            Grade 'A' or its equivalent, to appear at a gradation examination
            specially constituted for this purpose, Petitioners 33, 34, 37, 38 and
            40 who were given an opportunity vide letter dated 26th November .
            1971 but did not appear in the next gradation examination held in
B           December 1971 will also be afforded an opportunity to appear in
            the gradation examination specially held for this purpose.
            Reasonable time will be given to the eligible persons to appear in
            the gradation examination and the syllabus will also be settled and
            col1l1]1unicated within a reasonable time. Such of the petitioners
c           who are found fit for appointment as Chargeman Grade II would
            be appointed notionally with effect from date six months later that
            the date of their original gradation. In other words, the appoint-
            ments will take effect prospectively, but notional seniority will be
            allowed to them with effect from the date six months later than
            the date of original gradation. There will be no retrospective
D
            financial obligations on the Government. 11

        It is not disputed that the first alternative given to Government by
  the High Court was not carried out and no workable solution was arrived
  therefore the only way to comply with the order of the High Court was to
E hold an examination for all those supervisors who were working in Grade
  'A' and were in the field of eligibility. Unfortunately, however, no examina-
  tion was held and the respondents who had succeeded before the Delhi
  High Court approached the Calcutta High Court for a direction to the
  appellant to grant them the same benefit and determine their seniority-as
F Chargeman Grade II six months from the date of the examination. The
  petition was transferred to the Central Administrative Tribunal which
  decided the same on 9th July 1990. Before the Tribunal it was conceded
  that Supervisor Grade 'A' post was abolished as far back as 1980 and
   therefore there was no question of holding the examination as directed by
  the Delhi High Court. It was also admitted that all those who were
G petitioners before the Tribunal had been confirmed in their respective
   higher posts. The only ground on which the petition was contested was that
  it was filed after a lapse of long time. The Tribunal, however, did not agree
   with it and held that the appellant in not calling the petitioners for
   appearing in the examination acted ·discrirninately and since it was con-
H
             U.0.1. v. P.MUKHOPADHYAY[R.M.SAHAl,J.]                     501

 ceded that it was not possible to hold the examination a direction was A
 issued to the authorities lo re'fix the notional seniority of the applicants
 and fix their pay scale and all benefits attached thereto as per rule on the
 basis that all the applicants came out successful in the selection tests for
 the post of Chargeman Grade II. It is against thi1 order that the appeal
 was filed and an interim order was also obtained. '                          B
         Having heard the learned coun~el for appellant we must confess our
  inability to appreciate the attitude of the Union of India for approaching
  this Court by way of Special Leave Petition and delay the matters by
  another three years. Once it was admitted that ncl examination could be
  held and further that all those persons who were working as Supervisor C
  Grade 'A' have become Chargeman Grade II where was the difficulty in
  determining the notional seniority of these persons in accordance with the
  directions issued by the High Court. Needless to say that despite appoint-
  ment of every Supervisor Grade 'A' Chargeman Grade II the discrimina-
  tion which occurred due to enforcement of the modified scheme since 1965 D
  permitting only few Supervisors Grade 'A' to appear in the next examina-
  tion persisted so far those Supervisor Grade 'A' were concerned who were
  appointed prior to coming into force of this scheme and were denied
  similar opportunity even though they came in field of eligibility. The
  injustice arose as if the policy of permitting Supervisors Grade 'A' to
                                                                                E
  improve their !,'fade would not have been introduced then the seniority
  amongst the Supen1sors would have remained the same and those ap-
  pointed in one year would have remained senior to those appointed in
  latter year. ll is not the appointment of petitioners as Chargeman Grade
  II from 1980 but also the determination of their seniority which was
  material as it is admitted that the higher posts are available for promotion F
  on the basis of seniority-cum-merit. The question of seniority therefore was
  of utmost importance and unless there was some such difficulty which
  could not be resolved the appellant should have taken care to see that the
  order of the High Court was complied. In any case the Tribunal in directing
  the respondents to be granted notional appointment as Chargeman Grade G
  II from the date of their first examination, in the peculiar circumstances of
  the case, does not appear to have committed any error of Jaw. In our
. opinion this was the only possible manner in which the injustice could have
  been remedied.
                                                                              H
    502                  SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A          In the result this appeal fails and is dismissed with costs. It is,
    however, clarified that the placement of all those Supervisors Grade 'A'
    who came in the field of eligibility namely of securing 5% less marks in
    aggregate fixed for selection as Chargeman Grade II, should be fixed by
                                                  six
    directing that they were selected for that post  months from the date of
B   their gradation examinations.

    G.N.                                                   Appeal dismissed.