Pattanaik, J. - (1.) Leave granted.
(2.) These appeals are by the employees of the Steel Authority of India and the grievance of the appellants in each of these appeals is that they were illegally not considered for promotion to the higher grade when their juniors were being promoted. They had approached the Labour Court under Section 33-A of the Industrial Disputes Act (hereinafter referred to as the Act) alleging therein that their service conditions have been altered to their disadvantage while the Reference Case No. 39 of 1973, was pending. The Labour Court passed on Award on 17-1-1991, holding that the application under Section 33-A of the Industrial Disputes Act was maintainable and there has been alteration in the conditions of service while a Reference was pending before the Labour Court. Ultimately the Labour Court gave direction in the case of Shri C. P. Agrawal, appellant in Civil Appeal No. 11360 of 1995 to promote him to the post of Construction Supervisor Grade I with effect from 6-6-1971. Additional Divisional Engineer with effect from 21-6-79, Divisional Engineer with effect from 17-2-1983 and Zonal Engineer with effect from 30-6-87, with all consequential benefits. The said Award of the Labour Court in favour of Shri Agrawal has been given effect to and due promotion has been given to him. The Steel Authority of India, however, approached the High Court of Patna against the aforesaid Award of the Labour Court. The Authorities also approached against the similar Award which are the subject matter in other connected appeals. The High Court by judgment dated 8-9-1995, came to hold that the provisions of S. 33-A of the Act will not be attracted since promotion does not fall within the expression conditions of service and any change in the rules of promotion will not tantamount to the alteration in conditions of service during the pendency of the dispute before the Labour Court. Writ Application filed by the Steel Authority of India having been allowed and the Award of the Labour Court having been set aside the employees approached this Court in these appeals.
(3.) The learned counsel for the appellants in different appeals reiterated their contention that the High Court committed gross error in coming to the conclusion that the promotion cannot be held to be condition of service and alteration in the Rules of Promotion does not tantamount to change in the conditions of service attracting Section 33-A of the Industrial Disputes Act, Dr. A. M. Singhvi, learned senior counsel appearing for the respondents, on the other hand, apart from supporting the conclusion of the High Court contended on merits that the case of each of the appellants was duly considered whenever the promotion fell due and on being considered they having been found unsuitable have not been promoted and their juniors were promoted. Accordingly it is contended that there has been no infringement of the appellants constitutional right of being considered enshrined under Article 16 of the Constitution and consequently on merits the appeals are liable to be dismissed. When these appeals were heard for considerable length of time on 1-5-1996, this Court passed the following order:- "After hearing counsel on both sides for considerable time, we find that Rule 11 of Part II of the Seniority and Promotion Rules prescribes for promotion. Rule 11(i) prescribes procedure for promotion and selection grade post namely, post in the scale of Rupees 550-1100/- and Rs. 1450-1750/- and above on the basis of merit-cum-seniority. Under sub-rule (ii) for non-selection posts, promotion will be on the basis of seniority subject to the elimination of the unfit. The Tribunal in the award in C. A. Nos. 11567-73/95 at page 191 of the paper book pointed out the names of ten employees and their dates of initial appointment as C. S. Grade III and promotion to the post of C. S. Grade II and I respectively from the years 1971 to 1986. It is not in dispute that the promotion from C. S. Grade I to E-1, E-II and E-III are based on merit cum seniority covered by clause (1) of Rule 11 of Part II. The question arises whether their cases have been considered and were not promoted according to merit cum seniority basis. The Tribunal, unfortunately, without making any distinction whether it is a selection post or a seniority post had given directions to promote the appellants from the dates in which their respective immediate juniors stood promoted to E-1 post. The High Court has not dealt with this aspect of the matter in particular but proceeded on the ground of limitation and non-maintainability of the application filed under Section 33-A and also omission to implead the persons who were promoted superseding the appellants. Dr. A. M. Singhvi, the learned senior counsel appearing for the respondent has pointed out to us placing a chart in which all the persons have been considered by the Departmental Promotion Committee in the years 1988, 1990, 1992 and 1994 and either they were found or not found eligible, found qualified and promoted from the respective cadres. This contention was based upon the averments made in the additional counter affidavit filed in this Court to which rejoinder affidavit was filed denying those averments. In view of the denial by the appellants, it becomes necessary to peruse the record of the consideration by the DPC in the respective years mentioned hereinbefore. Dr. Singhvi is directed to produce the record with an affidavit explaining how they have been dealt with. Dr. Singhvi is also directed to supply a copy of the affidavit to the appellants. He seeks for and is granted six weeks time to do the needful. Thereafter, the counsel for the appellants are at liberty to file the affidavit on the basis of the allegations in the affidavit. List the matters immediately after vacation." ;