Sabyasachi Mukharji, J. - (1.) The petitioners in this case, who are seven in number, all work as Joint Managers (Port Operation), Food Corporation of India. The respondents are fifty-two in number including the Zonal Manager, Joint Manager and the Managing Director of the Food Corporation of India. The respondents are all employees of the Food Corporation of India. The petitioners along with the respondents Nos. 4 to 52 were transferred from the Food Department, Government of India to the Food Corporation of India and became Assistant Grade III employees of the said Corporation. On the 8th of April, 1969 there was a circular issued by the Food Corporation of India which invited option from all senior Godown Keepers/Dock Inspectors/Physical Verification Inspectors/Assistant Grade-Ill employees for accepting ad-hoc promotions as Quality Inspectors Grade I and Assistant Grade II respectively on posting in Bihar region and other regions. The actual copies of the said circulars are not available but from circulars dated the 26th September, 1970 as well as dated 22nd October, 1973 the purport of the said circular can be gathered. The circular of 26th September, 1970 is as follows:- "It has been found that employees of the FCI posted particularly in Calcutta, frequently decline to proceed to other Regions even on promotion. This has resulted in considerable number of vacancies continuing unfilled in outlying regions indefinitely. This is also standing in the way of smooth implementation of the principle of rotational transfers. Head office has laid down in their circular No. 13/9-69-AI, D/- 23-6-70 that no employee has a right to refuse posting to a particular station on transfer whether in the same capacity or on promotion to a higher post. Head Office has also advised that when any employee refuses to go to any particular station on promotion his name may be deleted from the panel and or his junior colleague may be promoted in his place and given higher seniority. The attention of employees in your office should be specifically drawn to this. They should be specifically cautioned that if they refuse to proceed to outlying stations on promotion, their seniority will be affected as a general rule and their junior colleagues, who may volunter to go on such promotion, will be given higher seniority above them in respect of all postings/promotions in future." The circular dated the 22nd October, 1973, state as follows; "There have been a large number of cases where persons have refused to accept appointments on promotions if such promotions involved transfers from one station to another. Such cases are at present regulated in accordance with the provision of Circular No. 13-9/69-A. I. dated the 23rd June, 1970. The position has since been reviewed and since been reviewed that scheme of the persons who do not accept promotion whether temporary or permanent would be debarred from promotion for a period of two years. They will not be considered for promotion again during this period and when their turn for promotion comes again after the expiry of such period, they would on promotion, if selected rank junior to all those promoted earlier. 2. The general transfer policy has been laid down in circular No. 9 (II)/68-A. I. dated the 16th Au- gust, 1969. This policy has been re-examined. It is felt that while it may not be necessary to transfer officials in the ministerial line, (who have no powers of decision making) from one station to another, it would be desirable even in these cases to transfer them from one office to another, or from one division to another in the same office. 3. In the case of executive staff and ministerial staff at a level at which they have authority to make decisions (Assistant Managers and above), the transfer should be made periodically not only from one office to another but from one station to another. The Zonal Managers who are competent to make transfers would ensure that there are no mass transfers resulting in dislocation of work, but these are spread over a period of time. It may also be ensured that all such officers are shifted from district to district, or region to region depending upon their seniority, experience and background." Pursuant thereto options were invited from all senior Godown Keepers including Assistant Grade III, if they were willing, to accept ad hoc promotions and the said circular of 1969 reads as follows : "Options are being invited from all Senior Godown Keepers/Dock Inspectors/ P. V. Inspectors and Assistant Grade III (Junior Clerk) if they are willing to accept ad hoc promotions as quality Inspector,Grade 1 and Assistant Grade II respectively on posting to Bihar region. Option should reach this office on 19-4-69 positively after which the same will not be considered." The petitioners accepted the said offer and the different petitioners were appointed in Grade-II on the terms more or less similar which indicated, inter alia, as follows:- "The following Assistant Grade III (Junior Clerk/Typist) have been selected for appointment purely as ad hoc basis, as Assistant Grade II as applicable under rules on the terms and conditions of temporary appointment and until further orders." There were similar appointments in respect of the different petitioners. In case of the respondents, however, when they were appointed subsequently, the order stated as follows: "The following Asstt. Grade III (Junior Clerk/Typist) have been selected for appointment as Asst. Grade-II (Sr. Clerk) in the scale of rupees 150-10-300/- P. M. plus other allowances as admissible under rules, purely on ad-hoc basis and without prejudice to the claims of persons senior to them in the grade, on usual terms and conditions of temporary appointment." (underlined by me). Question has arisen whether in Grade II the petitioners are to be treated, having accepted the options, as senior to the respondents Nos. 4 to 52 and whether they should have right of promotions in preference to the respondents Nos. 4 to 52. It is more or less undisputed that in Grade III respondents Nos. 4 to 52 were seniors to the petitioners. But having accepted the option the petitioners had been promoted to Grade II earlier than the respondents Nos. 4 to 52. These two contentions were urged before me. It was submitted firstly, that in view of the circular referred to hereinbefore, as the respondents Nos. 4 to 52 had refused to accept the transfer on promotion they had lost their seniority in Grade II and the petitioners were entitled to be treated as seniors. I am unable to accept this contention. Not availing of the option is not refusing to obey an order of transfer. There is no evidence that there was any order of transfer passed in respect of any of the respondents Nos. 4 to 52 which was disobeyed or not accepted by any of these respondents. They merely did not avail themselves- of the options which were given to them. Therefore, the loss of seniority which is indicated by the circular referred to hereinbefore, would not be applicable, in my opinion, on this ground in case of the respondents Nos. 4 to 52. It was then contended that even if that was not the position, the petitioners having (been) promoted to Grade II prior to the respondents Nos. 4 to 52, they were entitled to be treated as senior in Grade II and as such were entitled to be considered senior for promotion to Grade I. This contention was sought to be supported by certain observations of the Supreme Court in the case of Bishan Sarup v. Union of India, AIR 1974 SC 1618: (1974 Lab IC 1090). I shall deal with the said decision in a moment. But it appears to me that if in fact the respondents Nos. 4 to 52 were seniors to the petitioners, then, as promotions to Grade II were only on the ground of seniority, on reaching Grade II the respondents Nos. 4 to 52 could not have lost the seniority unless it could be demonstrated that there was specific order of supersession against any of them or by virtue of any specific rule the other respondents got seniority. But these have not been established in the instant case before me. A point was made that the petitioners had been appointed on terms that they were appointed as Assistant Grade II but the respondents were appointed with the specific additional condition "without prejudice to the claims of persons senior to them in Grade." It was, therefore, argued that in case of the respondents Nos. 4 to 52 their promotions were without prejudice to the claims of seniority of the persons who were senior to them in Grade II. But that, in my opinion, begs the question - Were the petitioners senior to the respondents Nos. 4 to 52 in Grade II. It has to be borne in mind that the promotion of the petitioners in Grade II had been "purely on an ad-hoc basis" and, therefore, the seniority of the petitioners in Grade II had not been fixed. Therefore,' the expression, "without prejudice to the claims of persons senior to them," which was introduced in case of promotions of the respondents Nos. 4 to 52, in my opinion, would not be of any avail to the petitioners. As I have mentioned earlier, the petitioners however sought to rely on the observations of the Supreme Court in support of the proposition that they having entered Grade II earlier in point of time than the respondents Nos. 4 to 52, were entitled to be treated as seniors to the respondents Nos. 4 to 52. The decision of the Supreme Court was regarding recruitment to service by direct recruitment as well as by promotion rule of the First Class Income-tax Officers. There the Income-tax Officers, Class 1 Service Regulation of Seniority was the-subject matter of ' examination by the-Supreme Court. In that case before the-Supreme Court allotment of offices between direct recruits and promotees from Class-II Income tax Officers were on 50/50 basis in accordance with a roster but according to the previous rule direct recruits were given 66.⅔% of the jobs while the promotees were given 33.j% with weightage of 2 and 3 years. There validity of the new rule was questioned both by the promotees-and direct recruits. In discussing the several points urged in that case, at page 1624 in paragraph 13 of the report Mr. Justice Palekar observed that where recruitment was made from one source, there was some ground for the contention that an officer promoted earlier should be regarded as senior to an officer recruited later. As I have-mentioned before, the said observation was not a ratio of the decision of the Supreme Court but was made in discussing the difference where recruitment is made from one source and what the Supreme Court did say was that' there was some ground for the contention that an officer promoted earlier should be regarded as senior to an officer recruited later. The Supreme Court was not concerned with the question whether the promotion, with which the Supreme Court was concerned, was a. promotion on a temporary ad hoc basis or a promotion on a permanent basis. In that view of the matter, in my opinion, support cannot be had from the said passing observations of the Supreme Court. In this case as in fact the respondents Nos. 4 to 52 were senior to the petitioners in Grade III who had merely gone in to the Grade II earlier on an ad hoc and temporary basis, only because they availed themselves of the options given to them, I do not think that they had acquired any seniority in Grade II as such which is enforceable in an application under Article 226 of the Constitution. If that is the position then the contention urged in this application must fail.
(2.) The application is, therefore, dismissed. The Rule Nisi is discharged. Interim order, if any, is vacated. There will, however, be no order as to costs. Application dismissed. ;