VISAKHAPATNAM STEEL PROJECT Vs. P RAMACHANDRA RAO

JUDGEMENT

(1.) Petitioner-respondent, a Senior Assistant in Visakhapatnam Steel Project has moved this Court under Article 226 of the Constitution of India seeking declaration that the action of the respondents in promoting persons from category of Senior Assistant to category of Office Superintendents by conducting written test and interview is illegal and violative of Articles 14 and 16 of the Constitution of India. Learned single Judge has accepted his plea, declared the written test and the interview as illegal and directed the respondents to promote the petitioner-respondent on the basis of seniority-cum-fitness stating,

(2.) According to the petitioner-respondent, he was served with a notice dated 27-12-1988 afternoon that a written test would be conducted on 30-12-1988. The letter indicated, according to the petitioner- respondent, a large number of subjects for the test. According to the petitioner- respondent, holding written test and the interview, contrary to the prevailing practice and rules, was a device intended allegedly for conferring favour in favour of favourites. According to the appellants, however, the circular, under which the petitioner- respondent claimed primacy, dated 274-1982, was not relatable to promotions, the Steel Project followed the guidelines prevailing in Government of India, and "there were no specific rules and regulations regarding promotions, of non-executives." According to them, when Rashtriya Ispat Nigam Limited was constituted on 1-4-1982, the employees of Visakhapatnam Steel Project were absorbed and at that time,'the said circular was issued. They only deal with other matters like leave facility, disciplinary action etc., for the non-executives. Promotions were being given in the Visakhapatnam Steel Project, on the basis of seniority-cum-fitness and such promotions were given on the condition that they had satisfactory confidential reports for three years and had clearance from the Vigilance and disciplinary authorities. Seniority, however, alone was never followed for granting appointments by promotion In December, ;1988, (the management wanted.to fill up the post of Office Superintendents (A3, category) by conducting written test and interview and all the candidates who have completed five years of service as Senior Assistant, A2 category, were called for the test. In that test, the petitioner-respondent appeared, but failed to qualify for the interview. The post of Office Superintendent, according to the appellants, involved higher responsibilities and knowledge of various subjects 'and procedures. Written test and interview were the only method of testing the suitability in the higher post. Out of the 41 candidates, 29 candidates were qualified in the written test. Since, however, the petitioner-respondent failed to qualify in the written test and in the interview, he could not be selected and/or promoted to the post of Office Superintendent. Learned single Judge has considered two questions - (1) Whether the process of selection followed by the appellants was vitiated for non- compliance of Section 9-A of the Industrial Disputes Act; and (2) Whether the procedure adopted by the appellants for making promotions was in accordance with the rules prevailing at the time of making promotions in 1988 ? and answered them as follows- (1) In. view of the clear provisions of Section 9-A and the IVth Schedule of the Industrial Disputes Act, there is no violation of Section 9-A of the Industrial Disputes Act by introducing the system of written test and interview for promotions; and (2) It is an admitted fact that prior to 1st January, 1990, there was no clear cut policy and rules for promotion of non-executives. For the first time, after negotiations with the unions and as per the settlement dated 5-1-1990, a new set of rules were introduced regarding promotions for non-executives. No rules have been produced before the Court to show what was the method that was being followed for making promotions prior to 1988. The proceedings........... of the file indicates that the C.P.M. and A.C.P.A. instructed for having a written test..................Considering the fact that in 1988, there were no rules and clear promotion policy, the promotion should have been made on the basis of the pre-existing practices and conventions viz., on the basis of seniority-cum, fitness, without any linkage to the vacancy arising in the higher post The procedure adopted by the appellants was neither valid nor did it give a fair opportunity to the candidates. It is well settled that procedural laws are not mandatory. Expression 'seniority-cum-fitness' can canvass for primacy to seniority, but cannot, because it is enjoined by fitness, completely brush aside considerations Of suitability for the post to which selection is sought to be made. No one is appointed to a post or put in-charge of a post unless he has necessary expertise and proficiency for the post. All candidates having basic qualifications are equals and they have to be treated equally. But when all of them are subjected to a test of proficiency and are not discriminated in any manner, there can, unless expressly provided to the contrary, always be implied requirements judging the fitness or suitability. Considerations based on seniority-cum- fitness no doubt are different from considerations which apply for selection on the basis of merit-cum-seniority. While in the latter merit has primacy and unless everything is equal and when more than one person are found equally meritted, seniority is taken as the basis for making the selection, in the case, however, of seniority-cum-fitness, unless found unfit a senior is promoted or appointed. If only for the purpose of testing the fitness or suitability for the post of Superintendent that the appellants introduced the written test and interview and they treated all candidates equally and afforded to all of them equal opportunity, obviously they made no discrimination. Petitioner-respondent, having availed the offer of being tested by a written examination and interview, cannot turn his back and say he has been denied his right of being promoted or being considered for promotion on the basis of seniority-cum-fitness.

(3.) Absence of the rules or guidelines cannot be taken as leaving no discrimination with the employer to test the proficiency and suitability. As we have observed earlier, it is thus not possible, on the basis of the above allegations of the petitioner-respondent, to hold that his rights under Articles 14 and 16(1) of the Constitution of India are violated.