# S. K. BHATE & ORS v. UNION OF INDIA & ORS

- **Citation:** [1976] 2 S.C.R. 758
- **Court:** Supreme Court of India
- **Decided:** 1975-11-20
- **Case number:** Writ Petition No. 469 of 1971
- **Bench:** A. N. Ray, M. H. Beg, R. s. SARKARIA, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-k-bhate-ors-v-union-of-india-ors-6880
- **Pages:** 6

## Headnote

Indian Ordnance Fcctories (Recruitment and Conditions of Servic1• of
Class Ill Personnel) Rules, 1956-Appointment to various cadres and )ntcr se
seniority-Principles.
The Ordnance Factory in which the petiti~ers were employed hold four
cadres.
In the 2nd cadrn of non-gazettc;,d officers there were four gradesForemen. Assistant Foremen, Chargeμren Grade I and Chargemen Grade Jl,
The 3rd cadre of non-industrial empioyees had 2 grades Supervisor 'A' Grade
and 'B' Grade, and were governed by the Jndian Ordnanc-e Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956.
Appointment was on 1he basis oi' 20% of. the qnota for direct recruits and 80% for
promotees.
In answer to an advertisem.ent for appointment by direct recruitment to
the 4 grades of the 2nd cadre, the petitioners, all of whom except petitioner
No. 12, were serving as Supervisors 'A' Grade, applied.
Petitioner No. 12 was
not in ~rvice. They were _interviewed but no_ne of the petitioners, except petitioner No. 12, received orders of appointment. Petitioner No. 12 was appOinted
Chargeman Grade II.
Between April, 1963, and November, 1963, the other
petitioners were promoted as Chargemen Grade II. Respondents 5 to 16 who
were apprentices, were also promoted as Chargemen Grade II, and were later
promoted to the grade of Assistant Fore=n. Treating this order as an order
of supersession, the petitioners filed a writ petition under Art. 32 claiming to
be promotees, and seniority on the basis of statutory rules 10( 1) (i) to (iv)
contained in S.R.O. 4.
Dismissing the petition,
HELD: (1) There was a justifiable ground for distinction between the petitioners, who were direct recruits, and the respondents who were promotees, and
hence, there was no violation of Arl 16.
[762-G]
The petitioners were really direct recruits and not promotees despite the
wrong description in thefr service records and even wrong orders conveying
the impression that they were promotees, even though they had not teceived
intimation of their appointments as direct recruits.
Promotions are only made
under i;. 8 of the Indian Ordnance Factories (Recruitment and Conditions of
Service of Class III Personnel) Rules, 1956, as amended in 1961, to Chargemen Grade II, on tlie basis of a selection list prepared by the appropriate
Departmental Promotion Commit~e. The Committee had prescribed a normal
minimum qualification oj 3 years' service in the post of Supervisor Grade 'A'
before promotion except in exceptional cases of ex-apprentices. The petitioners
did not belong to the class which had any exceptional qualification, and, since
they had not satisfied the 3 years' condftion, they could not be considered
for prdmotion in the (10% quota reserved for promotees, to the post of Chargemen, Grade IT.
[762 B, C, 761 E-H]
(2) The petitioners have no.t established that they have been denied
their
seniority in violation of any right under Art. 16 nor that the seniority Ji~t bad
been nrep.ared in violation of an,y fU]e or principle of justice. The aue~tion
of inter se seniority is also based upon the 4: 1 (80% : 20%) ratio and it was
for the ·petitioners to satisfy the Court that they were not given the ~enior
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S. K. BHATE v. UNION (Beg, I.)
759
orade altbough they satisfied all the required conditions, and that others, who
A
~vere promoted, were given unjustifiable preference over them. [763C)
1t111rit Lal Berry v. Collector of Cemral Excise Central Revenue & Ors.,
AIR 1975 S.C. 538 @ 546, followed.
ORIGINAL JURISDiCTION: Writ Petition No. 469 of 1971.
Under article 32 of the Constitution of India.
V. M. Tarkunde, V. N. Ganpu/e and P. C. Kapoor for the petiB
tioners.
G. L. Sa11ghi and S. P. Nayar for respondents 1-4, respondents
5 to 16 not .represented .

## Text

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S. K. BHATE & ORS.
v.
UNION OF INDIA & ORS.
November 20, 1975
[A. N. RAY, C.J., M. H. BEG, R. s. SARKARIA AND P. N. SHINGHAL, JJ.]
Indian Ordnance Fcctories (Recruitment and Conditions of Servic1• of
Class Ill Personnel) Rules, 1956-Appointment to various cadres and )ntcr se
seniority-Principles.
The Ordnance Factory in which the petiti~ers were employed hold four
cadres.
In the 2nd cadrn of non-gazettc;,d officers there were four gradesForemen. Assistant Foremen, Chargeμren Grade I and Chargemen Grade Jl,
The 3rd cadre of non-industrial empioyees had 2 grades Supervisor 'A' Grade
and 'B' Grade, and were governed by the Jndian Ordnanc-e Factories (Recruitment and Conditions of Service of Class III Personnel) Rules, 1956.
Appointment was on 1he basis oi' 20% of. the qnota for direct recruits and 80% for
promotees.
In answer to an advertisem.ent for appointment by direct recruitment to
the 4 grades of the 2nd cadre, the petitioners, all of whom except petitioner
No. 12, were serving as Supervisors 'A' Grade, applied.
Petitioner No. 12 was
not in ~rvice. They were _interviewed but no_ne of the petitioners, except petitioner No. 12, received orders of appointment. Petitioner No. 12 was appOinted
Chargeman Grade II.
Between April, 1963, and November, 1963, the other
petitioners were promoted as Chargemen Grade II. Respondents 5 to 16 who
were apprentices, were also promoted as Chargemen Grade II, and were later
promoted to the grade of Assistant Fore=n. Treating this order as an order
of supersession, the petitioners filed a writ petition under Art. 32 claiming to
be promotees, and seniority on the basis of statutory rules 10( 1) (i) to (iv)
contained in S.R.O. 4.
Dismissing the petition,
HELD: (1) There was a justifiable ground for distinction between the petitioners, who were direct recruits, and the respondents who were promotees, and
hence, there was no violation of Arl 16.
[762-G]
The petitioners were really direct recruits and not promotees despite the
wrong description in thefr service records and even wrong orders conveying
the impression that they were promotees, even though they had not teceived
intimation of their appointments as direct recruits.
Promotions are only made
under i;. 8 of the Indian Ordnance Factories (Recruitment and Conditions of
Service of Class III Personnel) Rules, 1956, as amended in 1961, to Chargemen Grade II, on tlie basis of a selection list prepared by the appropriate
Departmental Promotion Commit~e. The Committee had prescribed a normal
minimum qualification oj 3 years' service in the post of Supervisor Grade 'A'
before promotion except in exceptional cases of ex-apprentices. The petitioners
did not belong to the class which had any exceptional qualification, and, since
they had not satisfied the 3 years' condftion, they could not be considered
for prdmotion in the (10% quota reserved for promotees, to the post of Chargemen, Grade IT.
[762 B, C, 761 E-H]
(2) The petitioners have no.t established that they have been denied
their
seniority in violation of any right under Art. 16 nor that the seniority Ji~t bad
been nrep.ared in violation of an,y fU]e or principle of justice. The aue~tion
of inter se seniority is also based upon the 4: 1 (80% : 20%) ratio and it was
for the ·petitioners to satisfy the Court that they were not given the ~enior
+
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• •
...
..
>· I
S. K. BHATE v. UNION (Beg, I.)
759
orade altbough they satisfied all the required conditions, and that others, who
A
~vere promoted, were given unjustifiable preference over them. [763C)
1t111rit Lal Berry v. Collector of Cemral Excise Central Revenue & Ors.,
AIR 1975 S.C. 538 @ 546, followed.
ORIGINAL JURISDiCTION: Writ Petition No. 469 of 1971.
Under article 32 of the Constitution of India.
V. M. Tarkunde, V. N. Ganpu/e and P. C. Kapoor for the petiB
tioners.
G. L. Sa11ghi and S. P. Nayar for respondents 1-4, respondents
5 to 16 not .represented .
The Judgment of the Court was delivered by
BEG, J.-Twenty two petitioners under Article 32 of the Constitution, have come to this Court with the following assertion : ( 1) They
are employed as civilian non-gazetted
0fficers
holding
posts
of
Chargeme;n Grade-II (Chemists) in high explosives' Factory, Kirkee,
which is one of the 28 Ordnance Factories, located all over India,
con.trolled by Opposite party No. 2, the Director General of Ordnance Factories, with his Head Office at Calcutta ..
(2) The Factory has four cadres of officers: (i) Gazetted officers;
(ii) Non-Gazetted Offiders; (iii) Non-Industrial
employees;
(iv)
Industrial employees.
The petitioners belong to the seconfl cadre
which has four grades: (a) Foremen; (b) Assistant Foremen; (c)
Chargemen Gr. I; ( d) Chargemen Grade II. The 3rd cadre of nonindustrial employees has two grades : (i) Supervisor 'A' Grade; and
(ii) Supervisor 'B' grade. The employees of the
3rd
cadre are
classified as Class III employees in the general scheme of classification of Govt. servants who are governed by India Ordance Factories (Recruitment and Conditions of Service of Class III personnel)
Rules.
.
,
(3) The seniority rules of Gazetted and Non-Gazetted officers of
the Ordnance Factories are laid down in Office Memorandum dated
4th January, 1956, amended m 1961 (Annexure 'B').
( 4) The Director General of Ordnance Factories,
Respondent
No. 2, issued an advertisement, dated 14th November,
1962 for
direct recruitment to the grade of Foremen, Assistant Foremen,
Chargemen Grade I and Chargemen Grade II. At the time of this
advertisement, all the petitioners, except petitioner No.
12, were
already serving as officiating Supervisors of 'A' Grade of Class III
employees. In answer to the advertisement
for
appointment
to
temporary posts with prospects of being "considered for permanent
appointment in due course", the petitioners, who possessed the minimum
qualifications
prescribed,
applied
for
direct
recruitment
which was open to them also. The petitioners were called for interview by a letter issued by the General Manager, High Explosives'
Factory, Kirkee, on 7th February, 1963, but, after the interviews,
no letters of appointment were received by the petitioners other than
petitioner No. 12.
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SUPREME COURT REPORTS
[1976] 2 S.C.R.
(5) They were promoted between April, 1963, and November,
1963, from their substantive grade of Supervisor 'A' to Clrargemen
Grade II by the Gell/Cral Manager of their factory, on short term
basis, by virtue of powers delegated to
him.
Petitioner
No. 12,
who was not in service at all before, was appointed
a
temporary
chargemen, Grade II, in April, 1963, as a result of his selection after
interview. Respondents 5 to 16, however, entered the
grade
of
Chargemen Gra<Je II between 1st December, 1963 and 4th February,
1965, and were also shown as temporary Chargemcn Grade II, but,
they were not holding any post in the grade of Supervisors.
The
respondents were apprentices before entering into the Grade JI of
Chargemen.
( 6) The promotions of the petitioners were
given retrospective
effect, by an order dated 11th June, 1965, passed by the Director
General Ordnance Factories.
In December,
1967, however,
the
petitioners were superseded by others who were alleged to be their
juniors.
The petitioners made representations and
sent
reminders
which were n9t replied to. Respondents 5 to 16 were promoted from
Chargemen Grade II to the grade of Assistant Foremen by an order
of the respondent No. 2 Director General Ordnance Factories dated
17th September, l 971.
This order according to the petitioners
amounted to another supersession of the petitioners
who
were
shown as
holding permanent posts only as Supervisors of 'A'
Grade in 1971.
The petitioners, therefore came to this Court on
14th December, 1971 against the orders dated 17th September, 1971,
which amounted to their supersession.
The petitioners also alleged that as no orders were communicated
to them showing that they were conside1:Cd direct recruits
by
the
Ordnance Depot by the Ministry of Defence Production in the Govt.
of India or anyone on its behalf, they came to know, for
the first
time, as a result of the replies filed by the respondents to the Writ
Petition that they were bei~g treated as direct recruits so that
they
could o•aly be confirmed when their turn came in the 20% quota ol'
direct recruits and not in the 80% quota of the promotees.
The
petitioners, therefore, applied for the amendment of the petition and
were permitted by this Court, under an order dated 16th November,
1973, to do so.
They alleged, by means of this amendment,
that
their classification as direct recruits instead of as
promotees
was
"entirely fanciful, arbitrary, and even capricious". They also alleged
that the seniority list filed in reply to their petition had been kept
concealed from them and that it was prepared in utter disregard to
statutory rules 10(1) to 10(4) contained in S.R.O. 4 .. These rules
are
10(1) The Director Genl;:ral will prepare a seniority list
of all the officers in their own categories according to
the
following procedure :-
(i) As between two officers holding a particular.. class
ef appointment, in a substantive capacity, seniority in that
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S. K. BHATE v: UNION (Beg, /.)
7 61
class of appointment as well as in the officiating appointA
ments held by them in the same rank or different
ranks
shall be determined with reference• to the date of the substantive appointment.
(ii) Subject to the provisions of clause (iii), an officer
holding an appointment in a particular class in a substantive
capacity will he normally senior to an officer holding an
appointment in the same class in a non-substantive capacity.
(iii) Seniority of persons holding
temporary
appoint-
. mcnts which are made on agreement or on probationary
basis and which are expected to be continued
after the
expiry of the initial period, will be reckoned vis a vis others
holding permanent appointments in the same grade in the
Ordnance Factories from the date from which the officer
concerned have been holding
appointments of the
same
grade continuously.
The seniority so assigned to such persons shall not be disturbed on their confirmation at a later
stage.
Note : This clause applies only to
persons
recruited
through the Union Public Service Commission and to those
recruited directly, otherwise than through the Union Public
Service Commission prfor to 1st April 1947.
(iv) Temporary seniority in a given grade will be reckoned from the date from which the officer concerned has
been occupying it continuously, irrespective of whether he
has a substantive appointment i!ll some lower grade".
The reply of the respondents is that the so called promotion orders,
of which the petitioners want to take advantage,. were really the result
of a mistake or misunderstanding in not realising the actual legal
position of the petitioners as direct recruits. It was pointed out that,
ill the letters issued calling them for interviews as direct recruits, it
was made clear to them thoat their appointments did not carry with
them any decision about their fitness- for the post applied for and
that they could be considered for any lowe1· post to which they mi!!ht
be so entitled.
In other words,
this clearly meant that they were
on trial. It was also pointed out that promotions are
only
made
under Rule 6 of the Indian Ordnance Factories
(Recruitment and
Conditions of Service of Class III Personnel) Rules, 1956, as amended in 1961 to Chargemen Grade II, on the basis of "a selection list
prepared by the appropriate Departmental Promotion
Committee".
Jt was asserted that, in the minutes of the Departmental Promotions•
Committee held in the month of April 1963, prior to the
appointment of petitioners as Chargemen Grade II, the
Committee
bad
prescribed ·a normal minimum qualification of three years' service in
the post of Grade 'A' for promotion barring exceptional cases of exaoorentices.
It was asserted that, as the petitioners had not satisfied this con<ljtion, they could not be considered for promotion
to
the posts of Chargemen Grade IT.
They did not belong to the class
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762
SUPREME COURT REPORTS
(1976] 2 S.C.R.
which had any exceptional qualifications.
Hence, their names did
not appear in the list of persons to be promoted prepared by the
Departmental Promotions' Committee for the post
of
Chargemcn
Grade II.
•
It was asserted that they were being treated as
direct recruits
and not promotees despite their wrong description and even wrong
orders conveying the impression that they were promotees. The condition
precedent
to
promotion not having
been satisfied they
could only be considered as direct recruits and get the appointments
reserved for the class of direct recruits as and when
their
turns
arrived in this quota. It was conceded on behalf of the respondents
that much larger number of appointments had been made in the
class of direct recruits than the vacancies available. It was, however, explained that this was due to the sudden
anid
exceptional
demands for these appointments as a result of the pressure on our
Ordnance Factories due to the war with China and
other defence
requirements. It was urged that the
petitioners could
not take
advantage of erroneous orders made by the Manager of their Ordnance
Factory even if the error had been repeated by the Director General
Ordnance Factories. If the petitioners had not satisfied the condition
precedent to promotion, they could not get the appointments reserved for the 80% quota of promotees whose work was watched by
the Promotions' Committee so that they could be declared fit for
promotion.
The promotions were on the basis of a selection
on
merit, the tests of which had not been satisfied by the petitioners.
In fact, the petitioners were considered. with others, and were
not
selected. It was not necessary to give them opportunities of being
.heard onl comparative merits, as they claimed, just as candidates at
an examination are not entitled to any srich opportunities as these
are not disciplinary proceedings.
Counsel for the petitioners was, in our opinion, not able to meet
the objectionls put forward to petitioners' claims as promotees. He
could not show that they satisfied the conditions precedent to promotions.
Hence, the so called orders of promotion could not cure the
defect. It was immaterial that the petitioners were wrongly shown
as promotees in their service records or that they had not received
intimations ot their appointmetits as direct recruits.
There was
a
justifiable ground for a distinction between them and the
class to
which the respondents belonged. There was no challenge to
the
fairness of the 20% quota reserved for direct recruits as agai!nst that
of promotees. Hence, we do rrot think that the petitioners can
complain of violation of any fundamental rights under Article 16 of
the Constitution.
Petitioners cannot alw claim any benefit resulting from
being
treated as persons belonging to the s•ame class as respondents 5 to
16 whose places on the seniority list are questioned by them
as
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S. K. BHATE V. UNION (Beg, /.)
763
amounting to illegal supersessions of the petitioners.
We may mention here that Mr. Sanghi, Counsel appearing for the Union of India,
Respondent No. 1, and the Director General Ordnance Factory, Respondent No. 2, and other officials, has fairly conceded that so far
as the case of Petitioner No. 11 is co,ncemed, it stands on a special
footing and that his clients are considering it on that footing.
Counr
sel for the petitioners has also conceded that so far as 3
of
the
petitioners are concerned, they have been rightly treated as
direct
recruits.
We find no error i,n treating the others
also
as
direct
recruits.
It may also be mentioned here that Mr. Sanghi, Counsel for the
Union of India and its officials, has stated to the Court tllat none
of the petitioners will be reverted to his substantive post merely on
the ground that he was treated as a direct recruit.
The question of
inter-se seniority is a different matter.
The petitioners
have
been
unable to establish that they have been denied their seniority in
violation of any right under Article 16 of the CO'astitution.
It may be mentioned here tlmt, in Amrit Lal Berry Vs. Collector
of Centfol Excise Central Revenue & Ors. (1) this Court laid down
(at p. 546) :
"It was for the petitioner to satisfy the Court that he was
not given the senior grade although he satisfied
all
the
required con<litions of it and that others, who were promoted
into it, were given unjustifiable preference over him".
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in violation of any rule or principle of justice, we are unable
to
accept the petition before us.
We therefore, dismiss this petition.
The parties will bear their
own costs.
V.P.S .
Petition dismissed.