1. These appeals are directed against the common Judgment of Padmanabhan, J. in Writ Petitions Nos. 541, 10551 of 1981 and 6457 of 1982 dismissing the writ petitions with certain observations.
2. The appellants joined the Defence Production Department as Viewers Grade C. Subsequently they were promoted as Viewers Grade B which was later re-designated as Examiners Grade II. In the Category of Examiners, there were three grades, namely, (i) Examiners Grade II; (ii) Examiners Grade I and (iii) Selection Grade Examiners. The promotional post for all the three categories of Examiners is the post of Supervisor Technical Grade III. The selection for the said post is strictly by seniority among those who had passed a trade test in terms of S.R.O. No. 109 of 1964 which has been framed under Article 309 of the Constitution of India. The said S.R.O. No. 109 of 1964, as amended from time to time, prescribes the method of filling up the vacancies in the post of Supervisor Technical Grade III (hereinafter referred to as the Supervisor Technical). It is said that a trade test was held in 1973 and the appellants had passed the test and their names were therefore included in the selection list. They were also appointed as Supervisor Technical with effect from 1.9.1973. While so, on the basis of an audit objection that all the appellants were holding their post as Supervisor Technical on ad hoc basis for a long time and that they should either be regularised in service or reverted to their substantive post the respondents attempted to revert the appellants to the Post of Examiner Grade II. It is at that stage, the appellants have come before this Court seeking a writ of mandamus directing the respondents not to revert them from the post of Supervisor Technical to their substantive post of Examiner Grade II.
3. The appellants' case was that since a panel has been prepared in 1973 on the basis of a trade test and their names having been included in that list and they having been promoted to the post of Supervisor Technical, they should be taken to have been appointed as Supervisor Technical on a substantive basis notwithstanding the fact that the orders of appointment proceeded on the basis that the appointments have been made ad hoc and on a temporary basis. It was their further case that even if the orders of appointment made in 1973 are taken to have been made on an ad hoc basis pending their regular promotions, the appellants are entitled to he regularised in the same post as they had already passed the required trade test and their names also have been included in the panel prepared in the year 1973. They also contend that in any event they are now entitled to be considered for promotion even if their temporary appointment cannot be regularised as they are qualified in all respects and their names already find a place in the panel for promotion.
4. The writ petitions were resisted by the respondents herein on the following grounds. The appellants were promoted as Supervisor Technical only on an ad hoc and temporary basis and that will not confer on them any right to the said post, that their appointment was not made on the basis of the panel as alleged by the appellants as the panel itself was finalised only long after their temporary promotion, that in view of the injunction order dated 4.11.1973 issued by the Allahabad High Court in W.P. No. 4006 of 1973 filed by persons similar to the appellants forbearing the respondents from conducting the trade test for making the promotions, no regular promotions were made to the post of Supervisor Technical and the temporary appointments were continued and therefore, the appellants cannot seek regularisation of their temporary promotions and that regular promotions have to be made as per the rules, that though as the rules stood before, 1975 the appellants could be considered for promotion in view of their inclusion in the panel they are not entitled now to be considered for promotion as the rules had been amended in 1975 removing the post of Examiner Grade II from the feeder categories for promotion to the post of Supervisor Technical.
5. On a due consideration of the rival contentions of parties, Padmanabhan, J. has dismissed the writ petitions holding (1) that the appellants' promotion as Supervisors Technical is only on an ad hoc and temporary basis and as such it will not create in them any right to the said post; (ii) that the appellants are not entitled to claim regularisation for their promotion as it was not on the basis of the relevant rules and on the basis of the panel finally approved and (iii) that in view of the amendment of the relevant rules in the year 1975 removing the post of Examiner Grade II from the feeder category for the post of Supervisor Technical, the appellants cannot now claim to be considered for promotion. In these appeals the views taken by the learned judge have been questioned. Mr. Chidambaram, the learned Counsel for the appellants, has reiterated the same three contentions which were urged in the writ petitions before the learned single Judge. Before considering the tenability or otherwise of the appellants' contentions, it is necessary to refer to certain facts which have a bearing in this case.
6. As already stated, for the post of Supervisor Technical, the feeder categories before 1975 were: Examiner Grade II, Examiner Grade I and Selection Grade Examiners. The procedure to be followed in the matter of promotion has been laid down in the circular dated 9th November, 1967 issued to all the establishments of the Directorate General of Inspection, Organisations, by the Ministry of Defence, Government of India. That circular provides as follows. 'There should be a trade test held every year for promotion of industrial categories to Supervisor Technical Grade III.' Though Viewers A and Viewers B are feeder categories for promotion to the post of Supervisor Technical Grade III, the first preference for taking the test for promotion will be given to Viewers A and if sufficient number of them are not available to take the test, Viewers D will be allowed to take the test and the inter-seniority of Viewers and other Tradesmen will be determined by the length of service in their respective grades. A total period of 5 years of service for all the grades of Viewers will count for eligibility for promotion. But out of the said period of 5 years, 3 years should be in the grade of Viewers A or B or Viewers A and B combined. The promotions out of the qualified candidates should be made strictly on the basis of seniority and not on the basis of their position of merit in the qualifying test. The duration of the panel prepared for promotion after the conduct of the trade test is one year and individuals not promoted during the currency of the panel are to appear afresh for the next trade test to become eligible for promotion. Based on the circular dated 9th November, 1967, referred to above and based on the result of the trade test held in August, 1973 at Kanpur, Shajahan-pur, Madras and Bombay, two tentative panels for promotions to Supervisor (Technical) Grade III were drawn up, one for Viewers 'A' Examiners Grade I and Examiners (Selection Grade) Annexure 'A' and the other for Viewers 'B' Examiners Grade II - Annexure B. The said lists were sent by the Directorate of General Stores, Ministry of Defence, to all the Inspectorates for verification on the details of the seniority in respect of each individual and for report before approval is granted to the panels as prepared. The said lists were pending approval. The appellants were appointed by the Inspectorate of General Stores, South India, Madras, as Supervisors Technical Grade III on 9th November, 1973 with effect from 1st November, 1973, and the said order of appointment says the following:
The promotions have been made on ad hoc basis without any claim or title to seniority and will remain operative for a period of 3 months WEF/1 Nov.73 (FN) or till regular promotees are posted/positioned, whichever is earlier.
In pursuance of the said appointment order, the appellants began officiating in the post of Supervisor Technical Grade III. In the meanwhile, writ petitions had been filed by persons like the appellants before the Allahabad High Court for forbearing the respondents from conducting the trade test and making promotions to the post of Supervisor Technical till the writ petitions were disposed of. The writ petitions were finally heard and dismissed by that Court on 28.1.1981. In view of the interim orders passed by the Allahabad High Court not to make promotions for the post of Supervisor Technical, the appellants were allowed to officiate in the post of Supervisor Technical temporarily until the regular promotions were made. But the respondents had chosen to take an undertaking from the appellants to the effect that if the Government decided to revert them retrospectively, they would have no objection to such reversion. After the disposal of the writ petitions by the Allahabad High Court in the year 1981, the Government have chosen to fill up the vacancies in the post of Supervisor Technical Grade III by making the regular selections but, of course, excluding the category of Examiners Grade II to which the appellants belonged on the ground that they were not entitled to be considered for promotion in view of the amended rules under which Examiner Grade II is not a feeder category. It is in the light of these facts and circumstances, the contentions of the appellants have to be considered.
7. As already stated, the appellants contentions are three-fold. The first is that the order of appointment, though on the face of it appears to be temporary and ad hoc, it should be taken to be regular appointment order in view of the fact that the appellants have already been empanelled after the trade test aria their appointment is based on the said panel and as such, they have acquired a right to the post. This contention has been rejected by Padmanabhan, J. and we are inclined to agree with hint. When the order or appointment specifically says that it is only ad hoc for a period of 8 months, we do not see how it could be construed as a regular appointment on a permanent basis. It is no doubt true that the appellants' names are found in the proposed panel circulated for verification as to the particulars of seniority in the letter dated 9th November, 1973. But, that is only a tentative list which has finally to be approved by the Directorate General of Inspection. The regular promotion has to be made as per the rules only by the Directorate General of Inspection. In this case the order of promotion has been made by the Inspectorate in Madras. Therefore, the order of appointment dated 1.11.1973 passed by the Inspectorate in Madras cannot be construed as a regular promotion which can be made only by the Directorate General of Inspection. Hence the above contention advanced by the learned Counsel for the appellants has rightly been rejected by the learned single judge.
8. Coming to the second contention that even if the order of promotion dated 9.11.1973 is to be treated as an ad hoc and temporary one, the appellants, in view of their continued officiation in the post of Supervisor Technical should have been entitled to be regularised. We find that this contention also has no merit for the regularisation will arise only if the order of appointment has been made by the proper authority in pursuance of the rules relating thereto. In this case, as already stated, the appointment has been made temporarily by the local Inspectorate and not by the Directorate General of Inspection which is the authority to make the promotion. The mere fact that they continued to officiate as Supervisor Technical will not enable them to be regularised as it is likely to affect others who are also entitled to be considered for promotion. It is no doubt true that the appellants' names found a place in the provisional list prepared in 1973 and which has been approved later. However, the currency of the list is only for one year as per the procedure laid down by the Directorate General of Inspection in its circular dated 9th November, 1967, which specifically says that the duration of the panel for promotion is one year only and individuals not promoted during the currency of the panel are to appear afresh for the next trade test to become eligible for promotion. Therefore, merely on the basis that the appellants' names found a place in the panel prepared for the year 1973, they cannot seek regularisation of their temporary appointment now. Therefore this Contention also fails.
9. Coming to the third contention that in any event the appellants are entitled to be considered for promotion at least after the judgment of the Allahabad High Court dismissing the writ petitions filed by certain other persons, the stand taken by, the respondents is that the relevant rules had been amended in the year 1975 under which Viewers B/Examiners Grade II had ceased to be a feeder category for the post of Supervisor Technical and therefore they cannot any' longer be considered for promotion. It is pointed out by the respondents that after the judgment of the Allahabad High Court dated 28.1.1981 dismissing the writ petitions, they have been conducting trade tests arid preparing panels for each year and on the basis of the panel they had been effecting promotions. Since the substantive category to which the appellants belonged has ceased to be a feeder category, they were naturally not called for trade test nor were considered for promotion. Mr. Chidambaram, the learned Counsel for the appellants, contends that the amendment brought about in the year 1975 removing the category of Viewers B Examiners Grade II from the feeder category cart only be operative in future and that it cannot operate in respect of vacancies which arose before the amendment and therefore for all vacancies that arose before the amendment was brought in 1975, the appellants are entitled to be considered for promotion as until the date of amendment, the category of Examiner Grade II was a feeder category. However, Mr. Thyagarajan, the Senior Central Government Standing Counsel for the respondents, contends that in respect of all the promotions that are to be made after 1975 the amended rules were to apply and as per the amended rules the appellants cannot claim promotion as their category is no longer a feeder category. On this aspect of the case, Mr. Chidambaram, the learned Counsel for the appellants, relies on the decision of the Supreme Court in Y.V. Rangaiah v. J. Sreenivasa Rao : (1983)IILLJ23SC which lays down that in respect of promotions any amendment of the relevant rules cannot apply to vacancies which arose before the amendment. In that case, Rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules had been amended in 1977. Before the amendment the Lower Division Clerks were eligible for appointment by transfer as Sub-Registrar Grade II under old Rule 5. Rule 5 had been amended in the year 1977 whereby the -rule providing for consideration of Lower Division Clerks for appointment as Sub-Registrar Grade II was done away with and promotion or transfer to that category Was made from amongst the Upper Division Clerks only. The question arose as to whether the said amended rule could be applied in respect of vacancies that arose before the amendment. Dealing with that question, the Supreme Court observed as follows:.Under the old rules a panel had to be prepared every year in September Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would riot have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the Statewide basis and therefore, there was no question of challenging the new rules. But the question is of filing the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell Vacant prior to the amended rules would be governed by the old rules and not by the new rules.
This is a clear authority for the proposition that where the rules for promotion are amended on a certain day, that rule cannot be applied to the posts which fell vacant before that date and those posts are to be filled up only in accordance with the old rule. In this case, from 1.11.1973 to 28.1.1981, no regular appointments were made to the post of Supervisor Technical in view of the interim orders passed by the Allahabad High Court. In the meanwhile the rules had been amended in the year 1975 removing the post of Examiner Grade II from the feeder category. If the appointments had been made then and there before the rule was amended, the appellants could have been considered for promotion for before the amendment they were duly qualified for consideration. The mere fact that the rules were amended in 1975 will not take away the appellants' claim for promotion on the basis of the rule then in existence. Thus, following the said judgment of the Supreme Court, we have to hold that the appellants are entitled to be called for trade test and if successful to be included in the panel prepared for each of the years from 1973 until the date of the amendment.
10. Mr. Thyagarajan, the learned Counsel for the respondents, would say that the appellants have merely prayed for a mandamus from this Court not to revert them and they have not sought any relief specifically seeking consideration of their claim for promotion for the period anterior to the date of the amendment of the rule. It is well established that even if the appellants have not asked for a particular specified relief, it is always open to the court, having regard to the circumstances of the case, to mould the relief to be given to the appellants consistent with their rights. Therefore, we are not inclined to dismiss the writ appeals straightway merely on the ground that the appellants have not sought any relief directing the respondent to consider their claim for promotion for the period anterior to the date of the amendment of the rules. Though the relief claimed by the appellants is different, the facts established in this case warrant the granting of a limited relief directing the respondents to permit them to appear for the trade test in respect of vacancies that arose before 1975 and consider their claim for promotion if they are successful therein.
11. The writ appeals are, therefore, allowed in part. Thus, though we are not in a position to grant the relief of mandamus directing the respondents not to revert the appellants, the appellants are entitled to get a direction to the respondents to consider their claim for promotion in respect of vacancies that arose before the date of the amendment on the basis of the old rules. There will, however, be no order as to costs.