WA/731/1999 of ARUL ANAND Vs THE OIL & NATURAL GAS on 10 December 2003

:JUDGMENT

(Judgment of the Court was delivered by V.S.SIRPURKAR,J)

This appeal is by an unsuccessful petitioner who hadchallenged before the learned Single Judge the Memorandum-cum-Order, dated17.7.198 9, which held that since no junior person to the petitioner hadjoined, he would be deprived of the advantage of the consideration for

2. The facts are peculiar. The petitioner was selected as Assistant Marine Radio Operater in the respondents organization. His payscale was to be Rs.725-1480. After his selection as an Assistant Marine RadioOperator, he joined duty on 9.1.1985. There appears to be a policy decisiontaken by the General Manager, wherein it was considered that those employeesin the pay scale of Rs.725-1480, who have put in a minimum of one year ofservice in that pay scale as on 31.12.198 5, may be considered for appointmentby selection to the post in the pay scale of Rs.1030-2000 in their respectivedisciplines with effect from 1.1.1986. This decision seems to have been takenon 3.1.1989 by which time the petitioner had already put in about four yearsof service.

3. There is a document on record, dated 17th February, 1989,in which a policy decision is taken regarding counting of qualifying servicefor the purpose of promotion in respect of the direct inductees, like thepetitioner. It is noted therein that sometime persons are given offer ofappointment against direct recruitment around December of a particular yearand asked to join duty within 45 days from the date of receipt of the order.Some persons joined immediately before the end of December and some others inthe month of January or February but, within 45 days. Now, those persons whojoined after 31st December of that particular year are not able to completeone year of service by the close of 31st December of next year, because theyhave joined after 31st December in the previous year. A decision then takenthat in case of the direct inductees, where such candidates are offered thepost during the preceding year and if they joined within 45 days, as per theconditions of offer of appointment, relaxation in experience to the extent ofmaximum of 45 days may be allowed irrespective of the fact that they havejoined in January/February of the next year. It is expressed in thiscommunication as under.

"4. .... However, those who join after 45 days and in whose seniority is lost due to late joining they will not be considered along withothers unless they complete the minimum qualifying service laid down forpromotion to the next grade."

In short, a decision was taken to condone the loss upto 45 days where acandidate has been given an order earlier but has not joined by 31 st ofDecember and has chosen to join within 45 days as per the order but, beyond31st December of that year. There is further a letter to be found, dated 28thMarch, 1989, which clarifies that the instructions in the 17th February, 1989letter would be prospective. So far so good.

4. It seems that the petitioner since had joined in January,

he was however not given this advantage and it was held that he did not haveone year of experience upto 31.12.1985. This decision obviously was taken onthe basis of the clarification, which was issued, dated 19 th April 1989. Inthis clarification, it was suggested that the instructions in the letters,dated 17th February, 1989 and 28th March, 19 89, would be subject to thefollowing conditions.

(a) The recruitment would have been finalised in a particular yearbefore 31st December of that year; and (b) The panel should have been operated in the same year fully orpartially before 31st December of that year; and

(c) One or more candidates junior to the one who had joined insubsequent year but within 45 days as stipulated in the offer of appointmentand also that the concerned senior should have also joined within 45 days ofthe receipt of offer of appointment by him.

It seems that the petitioner was refused the relaxation of experienceand it was held that he had not completed one year's experience by 3 1stDecember, 1986. He therefore made a representation, dated 26th May, 1989,relying on the policy decision, dated 17th February, 1989, to which we havealready adverted. His representation, dated 26th May, 1989, was rejected onthe ground that the third condition of the above conditions was not fulfilledin his case, since there was no junior who had already joined and therefore hecould not be given any relaxation. He challenged this by way of a writpetition. The learned Single Judge, however, has dismissed the writ petitionnecessitating the present appeal.

5. The learned counsel for the petitioner Mr.Prasad argues

that the third condition inflicted by letter, dated 19th April, 1989, wasobviously unreasonable, arbitrary and discriminatory. The learned counselargues that the post of the petitioner is an All India Post and he could beposted, after his appointment, to any place where the organization has itsestablishment. He points out that in so far as the policy decision taken on17.2.1989 is concerned, it was perfectly in tune and provided a generallyapplicable principle for relaxation of the experience condition. Learnedcounsel points out that it was quite reasonable for the organization to laydown a policy decision that where a person, though appointed before 31stDecember, joins within 45 days and then stands to lose one year's service onaccount of his having joined after 31st December, such lack of few daysexperience may be relaxed. However, when the respondents laid down threefurther conditions and more particularly, the condition regarding a juniorbeing there, such would be completely discriminatory and arbitrary . Thelearned counsel says that all these aspects regarding the inherent arbitrarynature of the impugned order and the policy has been completely missed by thelearned Single Judge and the learned Single Judge has merely gone on thewordings of the three conditions more particularly the third condition. Thelearned counsel very fairly agrees that if the policy as laid down on 19thApril, 1989, is followed, then there will be no question of his getting anyrelaxation. However, the learned counsel argues that the laying down of thethree conditions, by reframing the policy, on 19th April, 1989, was itselfcompletely contrary to the principle of fair administration. Learned counselpoints out that the learned Single Judge has completely ignored this aspect.

6. As against this, Mr.M.S.Krishnan, who appears on behalf of the organization, supports the order and suggests that this policy was createdto see that an otherwise junior person should not be allowed to steal a marchover a senior person, merely because such junior person has joined earlier andthat was the only objective of framing this policy. In short, the learnedcounsel says that where, in a batch, ten persons are selected, it would beobvious the person selected at No.1 would always be considered as senior to aperson who has been selected at No.10. However, where a person who isselected at No.10 but chose to join immediately on getting the order before31st December of that year, would be able to complete the one year of service

by next December, whereas the person who is selected at No.1, merely becausehe has joined the service after 31st December of that year, somewhere inJanuary, should not be allowed to be deprived of the advantage on completionof one year's of service. In short, the learned counsel argues that thepolicy was in order to avoid the inter-se dispute in the seniority and not byway of providing a general relaxation and if viewed from this angle, thenthere would be nothing arbitrary or discriminatory in the policy. He pointsout that when the petitioner joined, no person in his batch junior to him hadearlier joined and therefore there was no question of any inter-se clash ofseniority between the petitioner and such person and therefore there was noquestion of ignoring the petitioner's lack of experience atleast for a fewdays.

7. It is the admitted position that the cut-off date is 31st December of that particular year and that the petitioner had joined on9.1.1986. Therefore, the question is whether the petitioner was liable to begiven relaxation of those days relying on the policy, dated 17.02.1989 orwhether he should be deprived of that relying on the amended policy, dated19.4.1989.

8. Seeing the order of the learned Single Judge, we see that the learned single Judge has merely referred to the three conditions in thecommunication, dated 19th April, 1989 and has deduced that as per thoseconditions the petitioner was rightly deprived of the relaxation and therelaxation could not have been claimed as of right. Viewed from this angle,there is nothing to interfere with the order of the learned Single Judge.However, the question is as to whether the amended policy, dated 19th April,1989, is a correct one or is it a discriminatory policy. After hearing thelearned counsel, we are quite convinced that the policy, dated 19.04.1989, isundoubtedly discriminatory and unreasonable also.

9. When we see the earlier policy, dated 17.02.1989, it is obvious that that was a policy made for giving a relaxation to such personswho are not able to complete one year's experience because they have joinedafter 31st December, though they have been selected earlier. Such persons arewithin their rights to join after 31st December because in the order itselfthey are provided with 45 days time to join. If that be so, then there willbe no question that they have violated any order. The policy was framed onlybecause it was seen that some of the persons who are selected at the lowerplace in merit joined earlier to 31st December and therefore they are capableof completing one year of service by the next 31st December, whereas, a moremeritorious person, who has been selected at the higher place in merit list,merely because he has joined after 31st December, is not capable of complyingthat condition of one year service which entitles him to better pay orpromotion. In order to allay this particular grievance, the policy was framed and in our opinion, correctly. Further, this policy, as we see, can beuniversally made app licable all over India in all the Regions, because suchsituation would be common in respect of all the services and all the posts.

10. On this backdrop, we see the policy, dated 19.04.1989.

It is obvious that a fortuitous circumstance of a junior joining is introducedto deprive the otherwise eligible employee to have the benefit of relaxation.We take an example. In the same batch, ten persons might have been selected.Three out of them might have joined in Bombay and other three in Madras andremaining four in Gauhati and whereas in other places, there may be somejuniors who joined before 31st December. There may not be any junior personjoined in Madras. Could then, the advantage be made available only to thepersons joined at Bombay and Gauhati merely because the junior persons havejoined earlier and not to those persons joined in Madras, could they lose theadvantage merely because juniors have not joined here. This is incongruousand this is fortuitous also.

11. When a principle is to be culled out for relaxation of the particular number of days of service, the policy has to be such which hasa universal application. This present policy, which depends on the fortuitouscircumstances, would obviously not stand the test of Article 14 of theConstitution of India. Such policy would be capable of discriminating andthat too, without there being anything in the hands of the concernedemployees. It is not by a choice that the employee would be posted to theplace. That would be for the administration to do. But merely because thereis an accident of the junior being there in Bombay and Guahati and no suchjunior in Madras, the person joining at Madras, should not be deprived of thebenefit, which is otherwise available to him, especially when such benefit isgranted to the persons who had joined where juniors have already joined.Denial of such benefit or relaxation which depends on a fortuitouscircumstance, like the junior being there or not there, would obviously notanswer the acid test of Article 14 of the Constitution. By this itself wefind that the policy, dated 19th April, 1989, is not only unreasonable butcapable of being abused. In the case of the petitioner, it was not his faultthat no juniors before him who were in the same batch had joined before 31stDecember. It is obvious that his counterparts joined at another place, wherejuniors have chosen to so join, would have that advantage of the relaxation,whereas similarly placed petitioner would be deprived of such a benefit ofrelaxation. In that view, we do not find that this policy is a sound policy.We would choose to quash the same.

12. Therefore, allowing the writ appeal, we set aside the order of the learned Single Judge and make the Rule in the writ petitionabsolute in terms of the prayers made. Needless to say that the petitionershall be considered on the basis of the observations made by us, if he isotherwise entitled to the benefit, under the Rules. No costs.

Index: Yes.Internet:Yes.

gb.

To:

1. The Chairman,

The Oil & Natural Gas Commission,Dehradun,U.P.State.

2. The Regional Director,Southern Region, Business Centre,Oil & Natural Gas Commission,Thalamuthu Natarajan Building,Egmore, Chennai-600 008.

3. The General Manager (P & A),Southern Region Business Centre,ONGC, Chennai-8.