Bombay High Court
Union Of India And Ors vs Material Organisation Ghatkopar & Ors on 5 April, 2018
Equivalent citations: AIRONLINE 2018 BOM 726
Bench: V. K. Tahilramani, M. S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3025 OF 2002
Union of India & Ors. ...Petitioners
Versus
Material Organization Ghatkopar -
Material Staff Association & Ors. ...Respondents
Mr. Suresh Kumar with Mr. N. D. Sharma for Petitioners.
Mr Kranti L.C. and Ms Bhavana Mhatre for Respondent
No.1.
CORAM: SMT. V. K. TAHILRAMANI, Acting C. J. &
M. S. SONAK, J.
DATE : 05 APRIL 2018
ORAL JUDGMENT :
1] Heard learned counsel for the parties.
2] The challenge in this petition is to the judgment and order dated 28th June 2002 made by Central Administrative Tribunal (CAT), Mumbai Bench, partly allowing Original Application No. 824 of 1998 instituted by the respondents. 3] By the impugned judgment and order, the CAT, has issued the following operative directions :-
page 1 of 17 ::: Uploaded on - 11/04/2018 ::: Downloaded on - 12/04/2018 01:06:15 ::: skc 403-WP-3025-02 "In the result and having regard to the reasons recorded above, we partly allow this OA. The order dated 23.11.95 is quashed. However, this would not affect the employees who have already been promoted under this order by adoption of unitwise seniority. Respondents are directed henceforth to follow the common command roster rather than unitwise seniority and thereafter consider the cases of the applicants for promotion to the semi skilled grade. The aforesaid directions shall be complied with by the respondents within a period of three months from the date of receipt of a copy of this order. No costs." 4] Mr. Suresh Kumar, the learned counsel for the petitioners submits that the issue as to whether there ought to be a common command roster or a unitwise seniority, is a purely policy matter. He therefore submits that judicial review in such matters ought to be extremely limited. He submits that the petitioners, in proposing unitwise seniority have taken into account all relevant considerations and there is absolutely nothing unreasonable or absurd in the choice made.
5] In addition, Mr. Suresh Kumar submits that the petitioners also taken into consideration the circumstance page 2 of 17 ::: Uploaded on - 11/04/2018 ::: Downloaded on - 12/04/2018 01:06:15 ::: skc 403-WP-3025-02 that overwhelming majority of the employees preferred unitwise seniority in the matter of promotion to semi skilled grade. Mr. Suresh Kumar points out that adoption of unitwise seniority neither infringes the constitutional guarantee in Article 14 nor principles which emerge from Article 16 of the Constitution of India. Mr. Suresh Kumar submits that in such circumstances, the CAT, was not at all justified in interfering with such policy decision and directing the petitioners to follow a common command roster rather than unitwise seniority in the matter of promotions to the semi skilled grade. He relies upon the Director, Lift Irrigation Corporation Ltd. & Ors. vs. Pravat Kiran Mohanty & Ors. (1991) 2 SCC 295. 6] Mr. Kranti L.C., the learned counsel for the respondents with his legal forensic skill and restraint expected from an officer of the court, defended the impugned judgment and order made by the CAT. He submits that adoption of unitwise seniority promotes stagnation when it comes to promotions to the semi skilled grade. He submits that such stagnation on account of maintenance of unitwise seniority, is unequally distributed.
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In some units, on account of unitwise seniority, the employees get promotion quite quickly. However, in some of the units, including in particular, at the Material Organization Naval Stores Depot, Ghatkopar, the introduction of unitwise seniority promotes utter stagnation. He submits that on account of the policy of unitwise seniority, most of the employees in this unit secure no promotion despite putting in over two decades of service. Mr. Kranti L. C. submits that such a situation, is plainly violative of Articles 14 and 16 of the Constitution of India and therefore, the CAT has quite rightly directed the petitioners to follow common command roster and unitwise seniority.
7] Mr. Kranti L.C. disputes that such matters fall in the realm of policy but submits that in any case, policy, which is unreasonable, arbitrary and unequal, cannot be sustained. He submits that such a policy, has no immunity from judicial review. He submits that a reasonable view has been taken by the CAT and since, there is neither any error of jurisdiction nor any perversity demonstrated, this court, may not interfere with the impugned judgment and order page 4 of 17 ::: Uploaded on - 11/04/2018 ::: Downloaded on - 12/04/2018 01:06:15 ::: skc 403-WP-3025-02 made by the CAT.
8] Mr. Kranti L. C. submits that earlier, a common command roster policy was in fact being followed by the petitioners. He submits that the opinion of the majority of the units or the employees is hardly relevant consideration in such matters. He submits that the opinion of the majority, which is contrary to the mandate of Articles 14 and 16 cannot form the basis for policy decision. He submits that the policy of unitwise seniority will render employees who have put in more than two decades of service, say, at Mumbai to stagnate. In contrast, employees, who may have put in even 10 to 15 years of service, say, at a small station like Cochin, will secure promotions to the semi skilled grade.
9] Mr. Kranti L. C. submits that such arbitrary and unequal results warrant interference because, arbitrariness, is antithetic to the concept of equality guaranteed by Article 14 of the Constitution of India. He relies on Ajay Hasia vs. Khalid Mujib, AIR 1981 SC 487 and Maneka Gandhi vs. Union of India, AIR 1978 SC 597, page 5 of 17 ::: Uploaded on - 11/04/2018 ::: Downloaded on - 12/04/2018 01:06:15 ::: skc 403-WP-3025-02 to submit that arbitrariness and equality are sworn enemies, which cannot stand together. For all these reasons, Mr. Kranti L. C. submits that this petition may be dismissed.
10] The petitioners, in the present case effectively, is a Western Naval Command of the Indian Navy. The Western Naval Command, has several units dealing with the multifarious aspects that invariably go into the command of the Navy, spread all along the Western Coast of India. These units, are in the nature of Material Organizations, Naval Dockyards, Work Stations etc. The Original Application No. 824 of 1998 was instituted by the Material Organization Ghatkopar - Material Staff Association, Mumbai, purporting to espouse inter alia the cause of unskilled workers of this Material Organization. The issue involved in this matter is whether, the decision of the Western Naval Command to maintain a unitwise seniority for each of its units, as opposed to a common command roster for the entire Western Naval Command in the matter of promotion of the unskilled workers to the semi skilled grade is legal and constitutional?
page 6 of 17 ::: Uploaded on - 11/04/2018 ::: Downloaded on - 12/04/2018 01:06:15 ::: skc 403-WP-3025-02 11] The CAT, by the impugned judgment and order, has held that the adoption of unitwise seniority by the Western Naval Command is improper and the Western Naval Command has been directed to follow a common command roster for the entire Western Naval Command, when it comes to consideration of skilled workers for promotion to the semi skilled grade. This is evident from the operative portion of the impugned judgment and order, referred to earlier.
12] Upon due consideration of the rival contentions as well as the material on record, we are of the opinion that the issue as to whether the Western Naval Command ought to adopt unitwise seniority or a common command roster, is largely and essentially, a matter of policy. In such matters, we agree with the contentions of Mr. Suresh Kumar that the scope of judicial review, is quited limited. 13] In Director, Lift Irrigation Corporation Ltd. (supra), the Division Bench of the Orissa High Court, had interfered with the decision of the Lift Irrigation Corporation Ltd. to page 7 of 17 ::: Uploaded on - 11/04/2018 ::: Downloaded on - 12/04/2018 01:06:15 ::: skc 403-WP-3025-02 amalgamate existing cadres, on the ground that the seniority position of the petitioners before the High Court was adversely affected, thereby, marring the right of the petitioners to be promoted to the next higher position. The High Court, in such circumstances, had held that the policy decision to amalgamate the existing cadres, was in violation of Articles 14 and 16 of the Constitution of India. 14] The Hon'ble Supreme Court, reversed the High Court by holding that the decision to amalgamate the existing cadres by reorganizing into two cadres was a policy decision taken on administrative exigencies. The policy decision is not open to judicial review unless it is mala fide, arbitrary or bereft of any discernible principle. On account of the amalgamation and adjusting the composite Electrical- Mechanical cadre in either of the Electrical or Mechanical cadre as per the options given, the order of seniority of the employees working in Electrical or Mechanical cadres is likely to be reviewed. When the persons in the composite Electrical-Mechanical cadre opted to the Electrical cadre, they are entitled to be considered for their fitment to the cadre as per the seniority from the date of their initial page 8 of 17 ::: Uploaded on - 11/04/2018 ::: Downloaded on - 12/04/2018 01:06:15 ::: skc 403-WP-3025-02 appointment vis-a-vis their scale of pay. This was the procedure adopted by the corporation in fixing the inter se seniority. The procedure adopted is just, fair and reasonable and beneficial to all the employees without affecting their scales of pay or losing the seniority from the date of initial appointment. Undoubtedly, in this process the respondent / writ petitioner lost some place in seniority which is consequential to amalgamation. He has not been deprived of his right to be considered for promotion, only his chances of promotion have receded. It was not the case of the respondent that the action was actuated by mala fide or cololurable exercise of power. There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with the relevant rules. From this perspective, the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of the respondent / writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent / writ petitioner was unjustly denied of the same is obviously unjustified.
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15] in Union of India & Ors. vs. S. L. Dutta & Anr.
(1991) 1 SCC 505, the issue involved was about validity of the policy for promotion to the posts of Air Marshal in the Indian Air Force. The existing policy was changed by the Ministry of Defence by its Memo dated 9th October 1987 pursuant to which, the number of posts for Air Marshals available to the Navigation branch had been specifically reduced. Possibly on account of change in policy, the petitioner before the Gauhati High Court, was unable to secure promotion to the post of Air Marshal. The petition, was allowed by the Division Bench of Gauhati High Court holding, inter alia that the changed promotion policy was not framed after in-depth study and directed the case of the petitioner to be considered on the basis of the previous policy. The Hon'ble Supreme Court, allowed the appeal and set aside the decision of the Division Bench of Gauhati High Court. The Hon'ble Supreme Court held that the right be considered for promotion is a term of service but mere chances of promotion is not a term or condition of service. Hence, the fact that there was reduction in the chances of promotion did not tantamount to change in the conditions of service.
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16] In S. L. Dutta (supra), the Hon'ble Supreme Court also
held that the court should rarely interfere where the challenge was to a particular policy in service jurisprudence, particularly where technical or scientific considerations are involved. A consideration of a policy followed in the Indian Air Force regarding promotional chances of officers in the Navigation Steamer of the Flying Branch in the Air Force qua the other branches would necessarily involve scrutiny of the desirability of such a change, which, in turn would require considerable knowledge of modern aircraft, scientific and technical equipment available in such aircraft to guide in navigating the same, tactics to be followed by the Indian Air Force and so on. These are matters regarding which judges and lawyers of courts can hardly be expected to have much knowledge by reasons of their training and experience. There was no question of mala fides. It may be that at one time the Ministry of Defence was not agreeable to accept the proposal for this change of policy but on further consideration accepted it. However, this could well show that before accepting the change of policy the Ministry of page 11 of 17 ::: Uploaded on - 11/04/2018 ::: Downloaded on - 12/04/2018 01:06:15 ::: skc 403-WP-3025-02 Defence and the experts attached to it gave full consideration to the requirements of change. 17] In Union of India & Ors. vs. Syed Mohd. Raza Kazmi & Ors. 1992 Supp. 2 SCC 534, the issue arose about the validity of the promotion policy in the Income Tax Department. In this context, the Hon'ble Supreme Court held that it is for the department to decide all policies of promotion which will be consistent with the interests of all employees belonging to various cadres. It is not for administrative tribunal or for the courts to interfere with this and to dictate the avenues of promotion which the department should provide to its various employees. The courts cannot direct that tax assistant should be made a direct feeder post to head clerks superior to upper division clerk. The Hon'ble Supreme Court held that interference in such letters is permissible only when there is arbitrariness or resultant discrimination. The Hon'ble Supreme Court also held that though in the proceedings before the Tribunal, since, large category of upper division clerks who were not qualified to be either inspectors or officers and whose future would be fully jeopardized by the directions issued by the page 12 of 17 ::: Uploaded on - 11/04/2018 ::: Downloaded on - 12/04/2018 01:06:15 ::: skc 403-WP-3025-02 Tribunal were neither impleaded nor heard by the Tribunal, that is an additional ground to interfere with the directions issued by the Tribunal.
18] In the present case also, merely because there may have been earlier a policy to follow a common command roster and such policy, was thereafter changed to adoption of a unitwise seniority, it cannot be said that there was any arbitrariness involved in the matter of such change. 19] In Col. A. S. Sangwan vs. Union of India 1980 Supp. SCC 559, the Hon'ble Supreme Court has held that a policy once formulated is not good for ever, it is perfectly within the competence of the Union of India to change it, recharge it, adjust it, and readjust it according to the compulsions of circumstances and the imperatives of national considerations.
20] The changed policy by way of adoption of unitwise seniority is not based solely upon the opinion expressed by majority of the workers and the unions representing them. However, the fact that more than 90% of the workmen or page 13 of 17 ::: Uploaded on - 11/04/2018 ::: Downloaded on - 12/04/2018 01:06:15 ::: skc 403-WP-3025-02 the unions representing such workman supported adoption of unitwise seniority, cannot be said to be some irrelevant consideration taken into account by the Western Naval Command. No doubt, if the policy adopted was inherently arbitrary, unreasonable or discriminatory, then, such a policy, could not have been defended on the basis of majority vote.
21] In the present case, we detect no arbitrariness or unreasonableness in the policy adopted by the Western Naval Command. Arbitrariness or unreasonableness does not spring from the possible circumstance that the chances of promotion of the unskilled workers in some of the larger units may be affected. The promotion policy, does not render the unskilled workers ineligible for promotion to the semi skilled grade. The promotion policy does not take away all promotional avenues to the semi skilled grade. At the highest, in so far as workers of some units are concerned, their chances of promotion, may have been affected or reduced. As noted earlier, mere chances of promotion, are not conditions of service. Therefore, on the ground that the chances of promotion may be affected, the page 14 of 17 ::: Uploaded on - 11/04/2018 ::: Downloaded on - 12/04/2018 01:06:15 ::: skc 403-WP-3025-02 policy cannot be styled as arbitrary or unreasonable. 22] There are several technical and logistic considerations involved in the adoption of the policy to have a unitwise seniority in preference to a common command roster. In this case, we are concerned with unskilled workers who seek promotions to the semi skilled grade. If a common command roster is to be followed, it is possible that the promotees may have to be shifted from one unit to another, say from Mumbai to Cochin or vice versa. Taking into consideration the level of the posts, it is possible that this may not always be possible. This is only one of the considerations suggested by way of an illustration. There are several considerations involved in adoption of the policy of having unitwise seniority in preference to common command roster. All that we wish to emphasize is that these are essentially matters of policy and unless, it is established that the policy is arbitrary, discriminatory or unreasonable, it is not for the tribunal or the court to interfere with the policy and to direct the implementation of one policy in substitution to another.
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23] In this case, there are no allegations of mala fides. The
CAT, relying upon Ajay Hasia (supra) and Maneka Gandhi (supra) has interfered with the policy by styling the same as arbitrary or unreasonable. Principle of in Ajay Hasia (supra) and Maneka Gandhi (supra) can obviously not be disputed. However since we do not detect any arbitrariness or unreasonableness in the adoption of policy of maintaining a unitwise seniority rather than a common command roster, the principle laid down in the said rulings is not attracted. As noted earlier, merely because chances of promotion at some of the units may be affected, that by itself, does not constitute arbitrariness or unreasonableness, so as to allege infringement of Articles 14 and 16 of the Constitution of India.
24] The respondents, quite naturally, view the issue of common command roster and unitwise seniority, from their own perspective. It is possible, as contended by Mr. Kranti L. C. that the unskilled employees of the Material Organization at Ghatkopar, Mumbai, may be placed at some relative disadvantage, when it comes to promotions to the semi skilled grade as compared to their counterparts in some page 16 of 17 ::: Uploaded on - 11/04/2018 ::: Downloaded on - 12/04/2018 01:06:15 ::: skc 403-WP-3025-02 other units maintained by the Western Naval Command. However, that by itself, is not a ground to interfere with the policy decision, which is taken for the benefit of the entire Western Naval Command. As has been pointed out by the Hon'ble Supreme Court in the case of Director, Lift Irrigation Corporation Ltd. (supra), no employee, has any right to promotion. The employees only have a right to be considered for promotion. Mere chances of promotion have never been regarded as conditions of service. Therefore, on the ground that the chances of promotion are affected, there is no question of alleging infringement of Articles 14 and 16 of the Constitution of India. 25] For all the aforesaid reasons, we allow this petition and set aside the impugned judgment and order dated 28th June 2002. Rule is made absolute in terms of prayer clause (a). there shall however be no order as to costs.
(M.S. SONAK, J.) (ACTING CHIEF JUSTICE)
CHANDKA
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