Mani Bhushan Chaudhary v. Bharat Coking Coal Ltd. — 1991 DIGILAW 417 (PAT)

JUDGMENT S. B. Sinha, J. This application is directed against an order dated 13/17th December, 1986 passed by the respondent No. 2 and as contained in Annexure- 6 to the writ application whereby and whereunder an order dated 29.7.83 was directed to be cancelled with retrospective effect from the date or its issue i.e. 29.7.83. 2. It was further directed by the said order that the wages paid in excess from the date of the issue of the promotion order i.e. 29.7.83 may be realised from their salary. 3. The fact of the matter lies in a very narrow compass. 4. The petitioner No.I was appointed as Technician on 1.11.1978 in, the scale of Rs. 442-22-618-29-734/-; whereas the petitioner No.2 was appointed as Laboratory Technician in the scale of Rs. 442-22-618-29-734/- with effect from 15th February, 1978. 5. The petitioners admittedly were appointed in Technician Grade 'C' Scales. 6. The petitioner No. 1 intended to apply for a better post i.e. post of Radiographer (Medical) in Tata Iron &. Steel Company Ltd., and he was invited for interview, but he was not given no objection certificate by the respondent No.1. A departmental promotion committee was constituted for considering the cases of both para and non-para Medical staffs of the Central Hospital at Loyabad as also the Dispensaries of Area No.V. in a meeting held on 6.10.82. The said departmental promotion committee considered the promotion of all the petitioners and recommended for the holders of the posts of Technician Grade 'C' increments to the existing scale may be granted. 7. The respondent No.2 upon receipt of the recommendations of the departmental promotion committee which is contained in Annexure-l to the writ application passed orders that the petitioners should be put in Technician Grade 'B' scale as in other cases. 8. It may be mentioned that in its recommendations the departmental promotion committee strongly felt that the petitioners are the real assets to the company and the hospital at that stage could not afford to miss them. It is thus evident that the petitioner No.1 was also put at a higher scale of pay so that they may not leave the services of respondents. 9. By an order dated 6.10.1982 as contained in Annexure-2 to the writ application, the petitioners were put on the scale of pay of Rs. It is thus evident that the petitioner No.1 was also put at a higher scale of pay so that they may not leave the services of respondents. 9. By an order dated 6.10.1982 as contained in Annexure-2 to the writ application, the petitioners were put on the scale of pay of Rs. 640-1160/- i.e. in Technician grade 'B' scale till they complete the existing cadre a period of five years whereafter their cases for regularisation were to be considered. 10. The petitioners completed the said period of five years on 29.7.1983 and by an order dated 29.7.1983 their services in Technician Grade 'B' were regularised by reason of an office order which is 'contained in Annexure-3 to the writ application. 11. According to the petitioners both of them possess the requisites qualifications as also experiences for holding the posts of Grade 'B' Technician. 12. Even in the seniority list which was published on 21/14.5.86 their names have been placed in Grade 'B' Technician. The respondent No.2, however, by reason of an order dated 17.12.86 which is contained in Annexurc-6 to the writ application, cancelled the order of promotion with retrospective effect. 13. The petitioners contended that prior to passing of the said order they have not been given any opportunity of hearing nor there existed any reasons therefor. 14. In this case a counter affidavit has been tiled wherein it has been contended that a mistake occurred in promoting the petitioners to Technician Grade 'B' inasmuch as the cases of all the persons company wise were to be taken into consideration in terms of the promotion rules of the respondents which is contained in Annexure-4 to the writ application. 15. Mr. P. S. Dayal, learned counsel appearing on behalf of the petitioners submitted that the impugned order as contained in Annexure-6 to the writ application is ex-facie bad in law inasmuch as prior to passing of the said order the petitioners were not given any opportunity of hearing. 16. Mr. 15. Mr. P. S. Dayal, learned counsel appearing on behalf of the petitioners submitted that the impugned order as contained in Annexure-6 to the writ application is ex-facie bad in law inasmuch as prior to passing of the said order the petitioners were not given any opportunity of hearing. 16. Mr. M. M. Banerjee, learned counsel appearing on behalf of the respondents, on the, other hand, submitted that from a perusal of the promotion rules as contained in Annexure4 to the writ application it would appear that cases of all eligible candidates company wise and not areawise were to be taken into consideration and as the cases of only such persons who were posted in Sijua Area had been taken into consideration by the departmental promotion committee, the office orders dated 16.10.1982 as also the office order dated 29th July, 1983 as contained in Annexures 2 and 3 to the writ application must be held to have been passed by way of mistake and thus the respondents were entitled to rectify their own mistakes. 17. The learned counsel further submitted that as the orders aforementioned (Annexures 2 and 3) were passed in violation of the promotion rules of the Company, no fruitful purpose would have been served by giving a notice to the petitioners and/or complying with the principles of natural justice. 18. The learned counsel in this connection has relied upon a decision of this court in Srikant Pandey Vs. State of Bihar and others reported in 1991 (2) BLJR page 949: 1991(1) PLJR 681 . 19. In this case the petitioners were found fit for being considered for promotion to a higher scale of pay in view of the fact that they were found to be real asset for the hospital. The orders as contained in Annexures 2 and 3 to the writ application must also he viewed in the light of the fact that the petitioner No.1 intended to leave the services of respondent No.1 Company and join Tata Iron and Steel Company Limited in the post of Radiographer (Medical). The orders as contained in Annexures 2 and 3 to the writ application must also he viewed in the light of the fact that the petitioner No.1 intended to leave the services of respondent No.1 Company and join Tata Iron and Steel Company Limited in the post of Radiographer (Medical). It is not the case of the respondents that at the relevant time when the departmental promotion committee which constituted by the respondent no.1 itself it was not competent to make any recommendations nor is it the eontent1on of the respondents that the General Manager had no jurisdiction to pass an order of promotion in favour of the petitioners. The order dated 16.10.1982 as contained in Annexure-2 to the writ application was passed in favour of the petitioners under the order of the General Manager is evident from his endorsement made on the body of the recommendations of the departmental promotion committee as contained in Annexure-l itself. 20. Similarly Annexllre-3 was passed with the approval of the competent authority on the petitioners completion of five years in the said cadre and thus their services were regularised. 21. Admittedly the promotion rules which are contained in Annexure-4 to the writ application in terms whereof seniority was to be considered company wise through selection of the interview came into force with effect from 17th December, 1985. The respondents have not annexed with the counter affidavit, any document to show that except Annexure-4 there was any other rules enforce at the relevant time in terms whereof company wise seniority of the employees was required to be considered. 22. The assertions of the respondent in the counter affidavit to the effect that a mistake was committed in passing the order as contained in Annexures 2 and 3 to the writ application because company-wise seniority was not taken into consideration, therefore, must be held to be vague and ambiguous in nature. 23. In this view of the matter, it must necessarily be held that the promotion rules of the respondent No.1 Company which is contained in Annexure-4 to the writ application was not applicable to the petitioners as their orders of promotion and/or regularisation in Grade 'B' were passed on 16.10.1982 and 29.7.1983 respectively i.e. prior to the cadres schemes of para Medical Staff which is contained in Annexure-4 to the writ application. As the respondents have utterly failed to show that the aforementioned orders were passed by an authority having no jurisdiction to pass -the same, and/or were passed in violation of a mandatory provisions of law, it must also consequently be held that the respondents have not been able to show that any mistake was committed by it in passing the order as contained in Annexures-2 and 3 to the writ application which require rectification. 24. In any event, by reason of the impunged order dated 17.12.86 as contained in Annexure-6 to the writ application, the order of promotion passed in favour of the petitioners could not have been cancelled with retrospective effect. 25. It is not in dispute that the petitioners upon issuance of the said orders i.e. date 16.10.82 and 29.7.83 discharged their duties as Technician Grade 'B' in a para medical Cadre. 26. The respondent No.2 therefore, had absolutely no jurisdiction to cancel the said orders with retrospective effect and to direct that the excess amount drawn by them consequent upon passing of the said order be recovered from their salary. Such an order evidently could not have been passed without complying with the minimum requirement of the principles of natural justice. 27. In Srikant Pandey's case aforementioned (supra) this court held that the principles of natural justice were not required to be complied with in a case of withdrawal of promotion where the order of promotion itself was illegal and invalid at the very inception and non est in the eye of law. 28. Evidently such is not the position here. 29. Further in this ease the respondent No.1 in view of its own conduct was estopped and precluded from cancelling the order dated 16.10.82 and 29.7.83 as they allured the petitioners to render their services with the respondent no. 1 by giving them promotion on the ground that their services could not be dispensed as they were real assets to the hospital. The respondents thus was bound by the promise made to the petitioners by granting them a higher scale of pay as a result whereof the petitioner No.1 altered his position to his disadvantage inasmuch as he did not leave the service of the respondent company. The case at hand therefor, constitutes a promisory estoppel so far as the respondents arc concerned. The case at hand therefor, constitutes a promisory estoppel so far as the respondents arc concerned. It is also well settled that even in a case of an irregular appointment and/or irregular promotion when a person is allowed to continue for a long time, the services of such an employee should not be terminated on compassionate grounds. 30. Reference in this connection may be made to Rohan Lal and others vs. International Airport Authority of India and others reported in 1981 S. C. page 597 and in H. C. Puttaswamy v. Hon'ble Chief Justice of Karnataka reported in AIR 1991 S. C. page 295: 1991(2) PUR 77 (SC). 31. For the reasons aforementioned, it must he held that the impugned order as contained in Annexure-6 to the writ application is not sustainable in law and the same must be quashed. 32. Let a writ of mandamus be issued directing the respondents to forbear from giving effect to and acting pursuant to the said order dated 29.7.1983. This writ petition is, thus, allowed. 34. However, in the facts and circumstances of this case, the parties shall pay and bear their own costs.