Delhi High Court

Govind Singh And Others vs Union Of India & Others on 14 February, 2011

Author: Manmohan Singh

*          HIGH COURT OF DELHI : NEW DELHI

+                     WP (C) No.8253/2007


%                                Judgment decided on : 14.02.2011

Gobind Singh and Others                            ......Petitioners
                    Through: Mr P.S. Patwalia, Sr Adv. with Mr. S.K.
                             Sinha, Advocate

                      Versus


Union of India & Others                           .....Respondents
                     Through: Mr. K.K. Tyagi, Advocate with
                              Mr Iftikhar Ahmad, Advocate

Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                Yes

2. To be referred to Reporter or not?                             Yes

3. Whether the judgment should be reported
   in the Digest?                                                 Yes

MANMOHAN SINGH, J.

1. This writ petition has been filed by the petitioners under

Article 226 of the Constitution of India seeking quashing of the decision

dated 24.08.2007 taken by respondent No.2, Board of Directors, Central

Warehousing Corporation (for short hereinafter referred to as

"respondents") inasmuch as it has been decided to exclude the

engineering cadre of the Corporation from the benefit of promotion on the

ground of stagnation for 10 years or more, which is being extended to

other employees of respondents on the aforesaid ground and a writ of

mandamus directing the respondents to extend the benefit of promotion

on stagnation for 10 years or more to the petitioners and other employees

of respondents.

2. The respondent No.3 (Central Warehousing Corporation) is a

leading player in warehousing business which started with 7 warehouses

and in the last four decades it registered a phenomenal growth and now it

has 628 warehouses all over the country. The credit for this growth goes

to all the employees of the respondents including the engineering cadre

and the same can be assessed by the fact that such huge expansions in the

infrastructure were executed by the engineering cadre under its

supervision.

3. The petitioners belong to the Engineering Cadre of the

respondents. They were originally appointed as Junior Engineers and in

the last 25 to 35 years of service they have got only one promotion except

for petitioner No.1 who has rendered 38 years of service and has got two

promotions as Assistant Engineer that too some 15-20 years back.

4. On the date of filing of the writ petition the details of the

petitioners about their stagnation in table form has been enclosed by the

petitioners at pages 76 and 77 of the petition.

5. Some of the petitioners made representations against their

stagnation, copies of which are filed along with the present writ petition.

Some of the petitioners are stated to have been retired by this time.

6. In the 266th meeting of respondents an agenda was placed

before the Board where it was observed that a large number of employees

of respondents at different posts are stagnating for a long time even after

qualifying their eligibility period for next promotion and to remove this

stagnation it was proposed to create vacancies at different posts for those

employees who have been stagnating for 10 years or more and to promote

all of them by conducting DPC.

7. The agenda item No.267.14 was approved in the 267th

meeting dated 24.08.2007 of respondents but the Engineering Cadre of

respondents was left out from the benefit thereof. The relevant portion of

the minutes of the meeting are :

"to upgrade 224 posts, as mentioned in the Agenda, including relaxation to be made for SC/ST employees to remove stagnation of 10 years and more as on 30/06/2007, excluding Engg. Cadre, as one time measure, subject top fulfilling the promotion/ recruitment rules. Resultant equal number of posts in the respective level and cadre will be surrendered consequent to their up gradation."

8. According to the petitioners they have suffered stagnation

more than any other cadre of the respondents. The petitioners and other

engineers of respondents have been stagnating for more than 12 to 20

years since their last promotion. In fact the petitioners have got only one

or two promotions after service of 23 to 37 years. This state of affairs

clearly shows how the petitioners are being made to suffer on account of

acute stagnation in service. The grievance of the petitioners is that they

should be given similar treatment.

9. The petitioners have demonstrated in paras 3.2, 3.10, 3.11 and

3.12 of the writ petition that how unjust is the treatment meted out to

them which are reproduced herein below:

"3.2. The petitioners were appointed between the years 1971-1982. Except for petitioner no.1, who has rendered 38 years of service, and has earned only two promotions in such a length of service, all other petitioners have earned only one promotion after rendering service from 25 to 31 years. This state of affairs clearly establishes acute stagnation being suffered by the petitioners. The Service Rules provide eligibility period for promotion after 3 to 6 years. The petitioners have crossed the eligibility period in some cases by about 15 years or more. The petitioners have been made to suffer on account of acute stagnation in service for last 12 to 20 years, with no promotional avenues in real terms.

3.10. That it can be seen that out of the 6000- employees belonging to other cadres have much more accelerated promotional avenues and it is evident from the fact that the petitioner no.1 who became Executive Engineer in the year 1987 has remained as Executive Engineer even after 20 years thereafter, whereas persons junior to him in the other cadre have reached Senior Managerial Levels in the Corporation. The other cadres have further created promotional avenues for themselves up to the level of Chief General Manager.

3.11. That the other factor which is a clear indication of gross stagnation being suffered by the Engineering Cadre is evident from the fact that by the impugned policy, the respondent Corporation could find only about 224 employees belonging to other cadres as stagnating for more than 10 years out of the total cadre strength of 6000. On the other hand, out of 200 engineering staff, 75 engineers have been stagnating for 12 to 20 years, as is evident from Annex P-2. The ratio of stagnation, therefore, works out to be 1:3 in the case of engineers as compared to 1:30 in respect of other cadres.

3.12. That some of the petitioners made representations to the respondents to remove the stagnation and consider their cases for promotion from time to time (Copies of the representations of the some of the petitioners are enclosed herewith as Annex P-6 Colly). However, no response was received thereon."

10. The petitioners submit that it shows that the petitioners were

singled out though they suffered most and the persons who have earned

several promotions and have reached higher echelons of service have

been granted stagnation promotion on account of their being on the same

post for past 10 years. This is upto the level of AGM and DGM also. On

the contrary, the petitioners who have stagnated for years together have

been excluded from this benefit.

11. According to the petitioners the decision dated 24.08.2007

taken by respondents is discriminatory, arbitrary, unconstitutional and

violative of Article 14.

12. This decision has been actuated by malafides of the dominant

section of the officers who have been holding the decision making body,

further decision dated 24.08.2007 shows that all efforts have been made

to upgrade higher officers for their own progress depriving the engineers

as a class of even the bare minimum.

13. In the counter affidavit filed on behalf of respondents it has

been stated that it is incorrect to say that the other cadres have speedier

promotions as compared to engineering cadre. According to the

respondents the entry level post in the engineering cadre is Sectional

officer (S.O) which is equivalent to the post of Technical Assistant (T.A)

in the Technical Cadre and Junior Superintendant (J.S) in the General

Cadre.

14. In the General Cadre T.A/J.S become eligible for their first

promotion after five years of service in their respective Cadres. Whereas

in the engineering staff a Graduate S.O becomes eligible for promotion to

the post of Assistant Engineer (AS) after 3 years of service and diploma

holder after 5 years of qualifying service. The AE becomes eligible for

promotion to the post of Senior Assistant Manager (SAM) after 3 years

and thereafter 5 years SAM becomes eligible for promotion to the post of

Executive Engineer which is equivalent to the post of Manager. It has

further been stated that the general staff as compared to the engineering

staff has to go through two more stages of promotion before they reach

the level of Executive Engineer.

15. As per the counter the reason why the respondent No.2 did not

consider the engineering cadre for promotion on the lines of other staff

who had been stagnating for last 10 years and above is because

respondent No. 3 is having surplus engineering staff and to it bring it

down to size the Special Voluntary Retirement Scheme was suggested in

the 268th meeting dated 28.09.2007 of respondent No. 2.

16. In the rejoinder, the petitioners have pointed out that the

Parliament of India while enacting the Warehousing Corporation Act,

1962 has categorically mentioned under functions of Central Warehousing

Corporation as the first function (activity) of the Corporation in para 11(a)

of the Act, which says "acquire and build godowns and warehouses at

suitable places in India".

17. In fact, it were the engineers of the Central Warehousing

Corporation which worked hard to create 594 warehouses all over the

country and even abroad. The necessity for construction of godowns is

being felt very badly.

18. The petitioners have suffered stagnation because of non-

availability of the posts. That is why the stagnation promotion for other

cadres was introduced. The petitioners are subjected to group bias.

19. Learned senior counsel Mr P.S. Patwalia, appearing on behalf

of the petitioners, has made submissions in support of his case and the

same are summarized as under:

(a) Learned senior counsel for the petitioner submitted that

the engineer cadre in the respondent organization is the

only one which is excluded from the avenue of the

promotion. The minutes of the meeting held on

24.08.2007 although provides for the promotion

proposals to be done in view of the longstanding

stagnation of the employees but, the same finds mention

about the exclusion of engineering cadre. In the light of

the same, the decision taken on 24.08.2007 in its meeting

accord differential treatment to the employees of

engineering cadre as against the other employees which is

without any justification and thus arbitrary.

(b) Learned senior counsel argued that the impugned

decision does not create classification on the basis of

intelligible differentia which is the ground whereby state

can create classification on the explained grounds. The

learned counsel explained the position by stating that the

object which is sought to be achieved by way of

promotion is to remove the stagnation of the employees.

Some of the engineers of the respondents have been

stagnating for the last 20 years and even more, and the

decision of exclusion of the petitioners/ engineering

cadre, being inconsistent with the objects sought to be

achieved, makes it arbitrary and discriminatory and

thereby violative of Article 14 and Article 16.

(c) The third contention of the learned senior counsel for the

petitioner is that the petitioners and their cadre is being

singled out and thus suffers from group bias. It is also

stated that the petitioner No. 1 has been given two

promotions and the rest of the petitioners were given only

one promotion. The stagnation of the employees stands

on one footing and thus in view of this unexplained

situation, the petitioners being simiarly situated cannot be

deprived of their right to be considered for the promotion.

(d) Lastly, the learned senior counsel for the petitioner

argued that the present case warrants interference of this

Court under Article 226 of the Indian Constitution as the

respondent has acted unfairly and in an arbitrary manner.

Further, the respondent No.3 is an instrumentality of the

state and has deprived the petitioners of their legitimate

right to be considered for the promotion which even

though is not a fundamental right but is a normal incident

of service. It was argued that such a longstanding

stagnation of more than 10-20 years and thereafter doing

nothing for the particular cadre is on the face of it

arbitrary and warrants intereference by this Court to

direct suitable arrangements to be made for the petitioner

cadre in accordance with the law.

20. Learned senior counsel for the petitioner relies upon the

judgment of the Hon‟ble Supreme Court of India in Food Corporation of

India v. Parashotam Das Bansal and Ors: (2008) 5 SCC 100, wherein

the Supreme Court after discussing the law on the subject has held that

the courts jurisdiction to direct to make a scheme for promotion cannot be

denied in cases involving stagnation for years.

21. The learned senior counsel concluded his submission by

stating that in view of the well settled law, this court should interfere in

this matter appropriately by passing the suitable directions.

22. Per Contra, learned counsel Mr K.K. Tyagi, appearing on

behalf of the respondents, has made his submissions which can be

outlined as under:

(a) Learned counsel Mr K.K. Tyagi first argued that the

present petition is not maintainable as the petitioners

cannot seek mandamus against the respondents as no

legal or fundamental enforceable right has been violated.

To substantiate his submission, the learned counsel stated

that there is no legal right as prescribed under the law or

the rules to provide for the increment. Neither there is

any fundamental right of such sort provided under part III

of the Constitution to enforce against the respondent. In

these circumstances, the writ petition seeking mandamus

commanding the respondents in the absence of any

statutorily prescribed duty is not maintainable and is

liable to be dismissed.

Learned counsel, Mr. K.K. Tyagi, relied upon the

judgment passed by the Apex Court in the case of The

Bihar Eastern Gangetic Fishermen cooperative Society

Ltd v. Sipahi Singh & Others, (1977) 4 SCC 145,

wherein the Hon‟ble Supreme Court has held that the

mandamus can be issued against the officer of the

government only when there is a statutory duty to do

something. The relevant excerpt of the judgment is

reproduced below :

"15. Re : Contention No. 3 : This contention is also well founded and must prevail. There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows,

therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. (See Lekhraj Satramdas, Lalvani v. Deputy Custodian-cum-managing Officer, Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College and Dr. Umakant Saran v. State of Bihar). In the instant case, it has not been shown by respondent 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also, not binding and enforceable. Accordingly, we are clearly of the opinion that respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same."

Learned counsel submitted that the petitioners have failed

to point out any statutorily prescribed duty to be

performed by the respondents to do something with

regard to the promotion. Therefore, the present petition

has no merit and is liable to be dismissed.

(b) Learned counsel for the respondents submitted that it is

merely a policy decision of the respondents whereby it

has been decided to upgrade the employees of the

respondents and to exclude the engineers cadre from the

purview of the said upgradation. Such decision being

purely executive decision is beyond the scope of judicial

intervention. This Court, as per the learned counsel for

the respondents, ought not to interfere in purely policy

matters as the said thing would be violative of the

doctrine of separation of powers which balances the

framework in the constitution.

Learned counsel relied upon the following judgments to

support the various propositions of the law in this respect:

i) In K.V. Rajalakshmiah Setty & Anr v. State of

Mysore & Anr: 1967 SCR (2) 70 passed by

Supreme Court on November 7, 1966 the Apex

Court has held that the concessions shown to the

batch of 41 persons were mere adhoc concessions.

The court therefore could not issue mandamus

commanding the state to show such concession or

indulgence to the petitioners because there was no

such service rule which the state had transgressed.

(State must have powers to pick and choose)

ii) In Mallikarjuna Rao & Others v. State of Andra

Pradesh: (1990) 2 SCC 707, the Hon‟ble Supreme

Court has held that the Administrative Tribunal or

the High Court cannot advise the government/

excecutive to exercise the rule making power. The

court can also not direct the government to frame

rules under Article 309 of the Indian Constitutuion.

iii) In Division Manager Aravali Golf Club &

Another versus Chander Hass & Others: 2007

(14) SCALE 1, the Hon‟ble Supreme Court has

held that the power to create the posts is the sole

prerogative of the executive and legislative

authorities and the court cannot direct for the

creation of the post under the rules which is

violative of the principles of separation of powers.

iv) In Subha B. Nair & Others, State of Kerala &

Others: (2008) 7 SCC 210, the Hon‟ble Supreme

Court has held that the bonafide decision to leave

certain vancancies unfilled cannot be assailed. The

court has held :

"A decision on the part of an employer whether to fill up the existing vacancies or not is within its domain. On this limited ground in absence of discrimination or arbitrariness, a writ court ordinarily would not interfere in such matters. This has been so held by this Court in Deepa Keyes v. Kerala State Electricity Board, [(2007) 6 SCC 194] observing that the rank list having expired and the validity having not been extended, no relief could be granted to the appellants therein."

v) In State of Kerala versus Naveena Prabhu &

Others: (2009) 3 SCC 649, the Hon‟ble Court

observed as under:

"The decision of the Government to exclude the staff of the hospital attached to the College from the purview of the aforesaid orders was made specifically stating that direct payment system is not introduced by the Government so far as the College hospital is concerned. The same being a policy decision of the Government and having

not been challenged as either arbitrary or discriminatory at any stage by the respondents, thus we are not called upon to scrutinise the legality and validity of the aforesaid decision. Besides, the same being a policy decision of the Government, the same stands as this Court generally does not interfere with the policy decision of the Government."

Relying upon the aforementioned judgments, the learned

counsel for the respondents submitted that by no way the

petitioner could have challenged the impugned decision

and asked this court to interfere as the present decision is

a policy decision and this Court cannot interfere in the

same.

(c) Thirdly, learned counsel for the respondents submitted

that the posts of executive engineers and superintending

engineers were not promotional posts and the said posts

were for direct recruitment quota. Learned counsel relied

on para 3.17 of the counter affidavit in support of his

submission.

Learned counsel has argued that even otherwise the

corporation has already decided to phase out the

engineering cadre as per the recommendation of Tata

consultancy services. Learned counsel relied upon para

1.4 and para 3.18 of the counter affidavit. It was argued

that the engineering cadre is surplus staff with the

respondents and required to be brought down and for the

same the retirement scheme has been introduced by the

respondent and this is the reason for non consideration of

the promotion on the lines of other staff who are

stagnating for the last 10 years.

(d) It was lastly argued that it is not the petitioners or the

engineering cadre which is stagnating but rather there are

other cadres like financial and technical ones which are

equally stagnating. Learned counsel has given instances

of acute stagnation in the respondent corporation and he

argued that it is not correct that the other cadres have

much more speedier promotion than engineering staff as

the entry level post in Engineering Cadre is Sectional

Officer (SO) which is equivalent to the post of Technical

Assistant (TA) in Technical Cadre and Junior

Superintendent (JS) in General Cadre.

(i) As per CWC (Staff) Regulations, TA/JS after 5 years

of service in their respective cadres are eligible for

promotion to the post of Supdt. in the pay scale of

Rs7800-230-13320, and again after serving 5 years on

the post of Superintendent they become eligible for

promotion to the post of Storage & Inspection Officer

(SIO) in the pay scale of Rs. 8600-250-14600. Whereas,

a Graduate S.O. after 5 years of qualifying service

becomes eligible for promotion to the post of Assistant

Engineer (AE) which is equivalent to the post of Storage

& Inspection Officer (SIO). Thus Technical and General

Cadres reach up to level of A.E. after 10 years of service

whereas S.O. having diploma becomes AE in 5 years.

(ii) Similarly, SIO after serving for three years first

becomes eligible for promotion to the post of Senior

Assistant Manager (SAM) and thereafter 5 years for the

post Manager whereas AE after 6 years of qualifying

service is directly promoted to the post of Executive

Engineer (EE) which is equivalent to the post of

Manager.

According to the learned counsel for the respondents, in

view of the above, it is evident that general staff has to go

through two more stages i.e. Superintendent and SAM

before reaching the level of Executive Engineer. Hence,

it is not correct that other cadres have much speedier

promotion channel than Engineering Cadre and thus have

more avenues for promotion. In fact the employees of

other Management Cadre, who joined the Corporation in

the same year in which S.O. has joined, are yet to reach

at the level of AE/EE. In real terms, Engineering Cadre

is more benefited than other cadres.

23. The learned counsel for the respondents thus sought to justify

the said stagnation by stating that the decision to exclude engineering

cadre cannot be faulted with.

24. In the light of the aforementioned submissions, the counsel for

the respondents submitted that the present petition ought to be dismissed

as no case is made out for the interference by this court.

25. I have gone through the petition, counter affidavit and

documents filed therein and have also taken due note of submissions

made at the bar. I have considered the submissions of the learned counsel

for the parties and shall now proceed to deal with them point wise.

26. Firstly, I shall deal with the objection of the learned counsel

for the respondents that this court cannot issue the writ of mandamus as

the impugned decision is a policy decision. I find merit in the submission

of the learned counsel for the respondents and there is no quarrel to this

proposition that the extent of judicial scrutinity in the purely executive

function is extremely limited. It is equally well settled that the court by

way of mandamus cannot direct the legislature to enact the legislation in a

particular manner or the executive to implement the same or frame the

rules in a particular manner. This court respects all the judgments passed

by the apex court in given circumstances as good law. However, it needs

to be emphasized that it is trite that the judgment is a precedent for the

proposition which emerges therefrom and not what is logically deduced

therefrom. (see Haryana State Coop. Land Development Bank v.

Neelam: (2005) 5 SCC 91)

27. The present case relates to stagnation of one of the cadres in

the respondent organization which is engineering cadre. The petitioners

have been stagnating for long time, in fact in some cases for more than 20

years. The Apex court has specifically dealt with this issue which has

also become the subject of judicial opinion on more than one occasion

before Hon‟ble Supreme Court. Their lordships have always held that

although it is trite that the court cannot direct the executive to frame rules

in view of the doctrine of separation of powers but the jurisdiction of the

court in cases relating to longstanding stagnation and when it is evident

before the court is not completely obliterated.

28. The reference is invited to the judgment passed in Food

Coorporation of India (supra) passed by Hon‟ble Supreme Court

wherein it has discussed the law in extenso about the jurisdiction of the

court in the cases like the present ones. The following excerpts of the

judgments are worth noting:

"12. When the employees are denied an opportunity of promotion for long years ( in this case 30 years) on the ground that he fell within a category of employees excluded from promotional prospect, the superior court will have the jurisdiction to issue necessary direction.

13. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the court although may not issue any direction as to in which manner scheme should be formulated or by reason thereof interefere with the operation of existing channel of promotion to the officers working in the different departments and the officers of the government but the jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country"

29. The Food Corporation of India (Supra) relies upon the

earlier decisions in State of Tripura v. K.K. Roy: (2004) 9 SCC 65, Dr.

Ms. O.Z. Hussain v. Union of India: (1990) Suppl SCC 688, M/s.

Ujagar Prints etc. v. Union of India: (1989) 3 SCC 531 wherein the

Supreme Court has adopted the same reasoning while discussing

promotional avenues accorded to section/ group of persons within the

organization.

30. All this has been discussed by the Apex Court in Food

Corporation of India (Supra) while affirming the order passed by the

Calcutta High Court wherein the similar directions were issued by the

writ court and in those circumstances, the apex court opined that the court

will have limited jurisdiction to issue directions to frame a scheme for

promotion as the promotion is the normal incident of the service and is a

facet of limited enforceable right. The court can thus issue directions to

make a scheme for promotional avenues for general well being of the

citizens given there are state directives which are enshrined in the Indian

constitution.

31. The Supreme Court has again in A. Satyanarayana and Ors

v. S. Purushotham and Ors: (2008) 5 SCC 416 held that mere chance

of promotion is not a fundamental right but the right to be considered for

the same is one. Further, where a policy decision wherein all promotional

avenues in respect of a category of employees for all time to come cannot

be nullified and the same would be hit by Article 16 of the Constitution of

India.

32. In view of the same, the question of this Court entertaining the

petition and passing direction stands answered as this Court‟s jurisdiction

is explicitly preserved by the Hon‟ble Apex Court in Food Corporation

of India (Supra) case and the same is by virtue of Article 141 of Indian

Constitution binding on this court. Thus, the judgments referred by the

learned counsel for the respondents passed by the Supreme Court wherein

the aspects relating to statutory duty to be enforced, mandamus in

general, direction to create post being violative of separation of powers,

powers to issue advisory sermons to frame rules under article 309 of

Indian Constitution are dealt with in the judgments passed in the given

cases where the courts have exceeded the jurisdiction. But once the

jurisdiction to issue direction has been expressly preserved by the Apex

Court in cases relating to stagnation where there is an exclusion of cadre/

group of persons from promotional avenues, then the judgments relied

upon by the learned counsel for the respondents does not aid the case of

the respondents. Thus, I find that in view of the above, the jurisdiction of

this court to issue direction and to entertain the writ is not obliterated in

the case like the present one.

33. Secondly, the submission of the learned counsel for the

respondents that the post of engineering is not important and the same is

soon going to be abolished and for the same, the steps have been taken in

the form of voluntary retirement scheme, is again not meritorious due to

following reasons:

a) The said submission of the respondents stand

countered by the petitioners by stating it is incorrect on the

part of the respondent to say that the said post of engineering

is not important. The petitioners have relied upon Warehouse

Corporation Act, 1962, wherein the object of the Central

Warehousing Corporation is mentioned which says "Acquire

and build godowns and warehouses at suitable places in

India". The petitioners have stated that the engineers are

always required in the respondent organization and the

records suggest their demands were made by the

respondents for their other warehouses wherein the postings

of the engineers were made from time to time. The said

answer of the petitioners makes it doubtful as to how the

petitioners/ engineering cadre can be completely abolished.

b) Even otherwise, the law does not make distinction

between the important and unimportant employees. The

Hon‟ble Supreme Court in Food Corporation of India

(Supra) has frowned on making pleas regarding the

important and unimportant employee in the following

paragraphs:

" We fail to understand how the cadre of Medical officers would be important as like the respondents, they also do not contribute towards the main function of the appellant. Such a plea even otherwise is wholly untenable. An employee is an employee. How the employees would be structured is undoubtedly within the realm of the statutory authority but by reason thereof, it cannot tinker with their essential fundamental right.

We wish such a plea had not been reaised by the appellant before us."

Thus, the engineering cadre is being done away with is no

ground to deprive the petitioners from their promotional

avenues till the time petitioners are working in the

respondent organization and the same cannot come in the

way of their getting promotion. Further, the existing avenues

cannot be shut even if the respondents decide anything in

relation to the same.

c) Lastly, there is no material on record to support the

said plea of the respondents be it unimportant nature of the

work of the engineering cadre or the engineering cadre being

surplusage to the work of respondents. The respondents have

contended that there are some recommendations of TCS for

phasing out the engineering set up which the respondents are

considering and acting upon which is again a matter of

policy.

The petitioners, however, dispute the said plea which

becomes a disputed question of fact and for the same reason

in any circumstances cannot become a ground to take away

promotional avenues from the petitioners.

34. Hence, the said plea of the respondents does not aid the case

of the respondents and is hereby rejected due to the aforementioned

reasoning.

35. It has been contended by the respondents that the petitioners

cannot argue that only they are being stagnated. There are other cadres as

well which are equally stagnating. Further, the petitioners are rather

benefitting due to their less qualifying years of service as a requirement

for the promotion as against the general and technical staff wherein it is

more difficult to attain promotion. This has been explained by the

respondents by stating that in engineering cadre, section officer (Group

„C‟ post) gets promoted into assistant engineer (Group „B‟ Post).

Whereas in General and technical cadres, Junior Suprintendent/ technical

assistant in Group „C‟ which is equivalent to section officer gets

promoted in Superintendent and again from superintendent to Storage and

Inspection officer/Assistant Manager and then Sr. Assistant Manager

(Group „A‟). It has been stated that from Group „C‟ to Group „A‟, there

are two posts within the group B itself. Thus, the petitioners if they stand

wherever they are cannot complain of any discriminatory treatment. I am

not inclined to accept this explanation due to the following reasons:

a) Firstly, by giving this explanation, the respondent has sought to

justify the stagnation which means that the stagnation is present

in the respondent organization. It is, however, pertinent to

mention that merely because others are stagnating more than the

petitioners, it cannot be a ground to justify the stagnation of the

petitioners.

b) Secondly, the creation of post is again a matter of policy, it is

upon the respondents in which cadre to make a posts more than

the ones in another. But that again cannot be the only good

ground to deprive the petitioners of promotion for years together

like in the present case more than 20 years. Merely because

there are few posts in one cadre, does not mean that by doing

mathematics the said cadre stands anyway lower than the other

ones unless the rules prescribe so. The respondents have not

cited any judgment to support this argument to show that any

such calculation has been accepted by the court.

c) The petitioners have sought to reply this argument which I find

as a tenable explanation that due to lack of the posts in the

engineering cadre, there is no creation of new post which

ultimately culminated in to stagnation as there are no posts

within the groups to get early promotion. Thus, the argument of

the respondents that there are more levels within the groups

itself in general or technical cadres rather goes against the

respondents that there are more posts which have been created

in those cadres as against the petitioners cadre.

36. For all these reasons, there is no force in the argument of the

respondents as raised by them that the petitioners after qualifying years of

promotion are lesser than that of the other cadres and the same can be a

justifiable ground for stagnation.

37. I have already rejected the respondents reasoning to support

their case that the petitioners are stagnating for just reasons. As the

reasoning given by the respondents does not stand on the legally

explained grounds as to the fact of the exclusion of the petitioners from

that of the promotional avenues. Thus, the court can appropriately issue

directions in view of Food Corporation of India (Supra) leaving it open

to the court to issue directions to frame a scheme for stagnating

employees/cadre of employees. The promotional avenues can be

accorded to the petitioners in the form of higher pay scale with perks or

higher post with higher pay scale etc.

38. Accordingly, the present petition warrants interference by this

Court in the form of directions. The following directions are issued to the

respondents:

a) It shall be obligatory on the part of the respondent Central

Warehousing Corporation to consider the promotional

avenues of the petitioners/ engineering cadre and take a

decision with regard to the same keeping the aforesaid

oberservations made hereinabove

b) The respondent No.3 shall place the matter before the board

of directors for immediate decision making which shall be

taken expeditiously not beyond 6 months from the date of

the order.

c) The respondent No 1 ministry shall supervise the said

decision making or the scheme which shall be decided by the

respondent No. 2 which shall implement the same as per the

law.