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2001 DIGILAW 572 (JHR)

Nand Kishore Singh v. Coal India Ltd.

2001-08-16

M.Y.EQBAL

body2001
ORDER M.Y. Eqbal, J. 1. In this writ application the petitioners have prayed for quashing the order as contained in Memo. No. C- II/C5A(I)/ 50254/394 dated 26th October, 1999 passed by respondent No. 2 Director (Personnel). Coal India Ltd. Calcutta, whereby and where-under in compliance of the order dated 16.9.1999 passed in CWJC No. 1244/98(R), claim of the petitioners for their promotion to E-2 Grade has been rejected and further for a direction to the respondents to promote both the petitioners in E-2 Grade maintaining their seniority and granting consequential benefits. 2. Facts of the case lies in a narrow compass. Petitioners were appointed as Legal Inspector in Technical and Supervisory Grade-A in 1991. They completed their requisite training. Petitioners are governed by common coal cadre of the Coal India Ltd, which deals with the procedure for filing up the executive post from the non- executive posts. For Legal Discipline the minimum qualification fixed for promotion to E-2 Grade (Law Officer) is that an incumbent should be a Law Graduate and having three years experience in Technical and Supervisory Grade-A. In 1995 petitioners were directed to attend the Coaching Programme for promotion to the Executive Cadre of Legal Discipline. Petitioners alongwith others appeared in the qualifying examination in 1995 and thereafter interview of the successful candidates who passed written test was held and the merit list was prepared. It is stated that despite the fact that petitioners did better in the written test as also in the interview, their names were placed much below than that of other candidates and some of the candidates were accordingly promoted to Executive Grade-2. In 1996 by Office Order dated 13.7.1996 four more Legal .Inspectors were promoted to the post of Law Officers in E-2 Grade. 3. Petitioners case is that they could come to know from reliable sources that at the time of interview there were 16 vacancies in between December. 1996 and January, 1997, 11 vacancies were created out of which 8 vacancies for South Eastern Coalfields Limited and 3 vacancies for Central Coalfields Limited and thus in total 27 vacancies were there in between 24.2.1996 to January, 1997. It is stated that petitioners filed representation before the Chairman. Coal India Limited requesting him to look into the matter for promotion to the post of Law Officers. The said representation was forwarded to the Director (P&IR) Coal India Limited. It is stated that petitioners filed representation before the Chairman. Coal India Limited requesting him to look into the matter for promotion to the post of Law Officers. The said representation was forwarded to the Director (P&IR) Coal India Limited. Calcutta for considering their cases for promotion. It appears that when respondents did not pass any order on the representation > petitioners moved this by filing CWJC No. 1244/98R, The said writ application was disposed of on 16.9.1999 with a direction to the respondents to consider the claim of the petitioners for appointment to the post of Law Officer in Grade E-2 and take a decision. In compliance of the aforesaid order respondent No. 2 passed the impugned order rejecting the claim of the petitioners on the ground of lapse of validity of panel and non-availability of vacancy. 4. The stand of the respondent-Coal India Limited in the counter-affidavit is that although petitioners were empanelled for promotion to the post of Law Officer but offer letters of promotion could not be issued in absence of vacancy during the period of panel. It is stated that panel drawn and approved by the competent authority has been operated strictly in order of merit depending upon the availability of posts during the valid period of time. It is contended that petitioners position in the panel was at SI. No. 17 and 19 and altogether 14 candidates from the panel from SI. No. 1 to 14 have been given promotion according to the availability of the vacancy. 5. From the impugned order dated 26.10.1999 it appears that the claim of the petitioners for promotion has been refused on two ground i.e. non-availability of vacancy during the validity period of panel and expiry of the panel after 17th May 1997 The relevant portion of the order reads as under : "On examination of the case, it is seen that the petitioners are in the recommended panel at Sl. No. 17 and SI. No. 19, whereas the promotion orders have been issued upto the Sl. No. 14 against the vacancies. It is seen from the records that no further vacancies have occurred during the validity period of the panel i.e. upto 17th May. 1997 and the panel has since expired. In view of the above facts and circumstances of the case, the petitioners-S/Shri Nand Kishore Singh and Md. No. 14 against the vacancies. It is seen from the records that no further vacancies have occurred during the validity period of the panel i.e. upto 17th May. 1997 and the panel has since expired. In view of the above facts and circumstances of the case, the petitioners-S/Shri Nand Kishore Singh and Md. Afzal cannot be granted promotion to the post of Law Officer." 6. Mr. A.K. Sahanl, learned counsel appearing for the petitioners assailed the impugned order mainly on the ground of discrimination inasmuch as other similarly situated persons in the same panel have been given promotion even after May, 1997 and they are enjoying the said privilege. Learned counsel submitted that Mr. N.V. Dannial who being Senior Personal Assistant posted at South Eastern Coalfields Ltd. was not having required qualification and was earlier debarred to appear in qualifying examination but subsequently allowed to appear in the examination and he was given promotion. Similarly, four other candidates out of the said panel were given promotion vide Office Order dated 21.1.1996 and 13.7.1996. It is contended that five more persons were given promotion on 31.3.1997. In 1998 Mr. A. Shukla out of the said panel was also promoted on 22.3.1998. According to the learned counsel therefore decision of the respondents refusing to grant promotion on the ground of lapse of the panel is absolutely illegal, arbitrary and mala fide. 7. In course of hearing, respondent Central Coalfields Ltd. was directed by this Court to file supplementary affidavit and to state as to how many vacancies exists in the department in compliance of that, a supplementary affidavit was filed wherein it is stated that by Office Memorandum dated 8.11.1991 some amendment was made in the Common Coal Cadre to the effect that the panel for promotion to the Executive Cadre will remain valid for a period of one year from the date of its approval. Respondents have further stated that promotion given to Mr. N.V. Dannial and Sri Shukla was in special circumstances of the case. 8. Mr. M.M. Banerjee, learned counsel for the Coal India Ltd. besides the facts stated in the counter-affidavit submitted that in similar circumstances a writ petition was filed by one Mr. Shailendra Mani Tiwari and others being CWJC No. 2281/95R and the same was dismissed by this Court in terms of judgment dated 3.7.1998 and the said judgment was affirmed in LPA No. 326/98R. 9. Shailendra Mani Tiwari and others being CWJC No. 2281/95R and the same was dismissed by this Court in terms of judgment dated 3.7.1998 and the said judgment was affirmed in LPA No. 326/98R. 9. Before appreciating the rival submissions made by the learned counsels for the parties, 1 would first discuss some of the decisions relied upon by the counsels for the parties. 10. In CWJC No. 2108/89R a panel was prepared by the same respondents for the post of Executive Grade E-2 and the name of the petitioners were there for appointment to the post of Engineer Excavation, but they were not given appointment. The stand taken by the respondents in their said writ petition was that life of the panel was for one year only and since life of the panel was lapsed no appointment could be given. The only question fell for consideration before the court was as to whether life of the panel prepared for filing up the post of E-2 Grade by promotion shall survive only for one year or shall continue till the candidates whose names appeared in the panel are absorbed in E-2 Grade. It is worth to mention here that respondents did not produce any policy decision of the Coal Company to the effect that life of the panel for filling up to the Executive Cadre post by promotion will be for one year. This Court after due consideration of the relevant provisions of the Coal Cadre of Coal India Ltd. held that no time limit was fixed for the panel for promotion by the Departmental Promotion Committee for appointment in Executive Cadre and therefore respondent could not have refused to appoint the petitioners when vacancies arose for the said post on the ground that the panel prepared has been lapsed. Against the said judgment dated 20.11.1990 the respondent Coal India Ltd. preferred Letters Patent Appeal being LPA No. 12/91(R) which was dismissed. Respondent Coal India Ltd. then moved to Supreme Court in civil Appeal Nos. 3453/91 and 3454/91, which were dismissed on 15.7.1993 and the judgment of learned Single Judge was affirmed. 11. So far the decisions referred to herein above relied upon by the petitioners is concerned, admittedly in 1990 there was no such provision under the common coal cadre regarding validity of panel. 3453/91 and 3454/91, which were dismissed on 15.7.1993 and the judgment of learned Single Judge was affirmed. 11. So far the decisions referred to herein above relied upon by the petitioners is concerned, admittedly in 1990 there was no such provision under the common coal cadre regarding validity of panel. It was in 1991 only by memorandum dated 8.11.1991 an amendment was introduced in common coal cadre to the effect that panel for promotion the Executive Cadre will remain valid for a period of one year from the date of its approval. In my opinion the decisions relied upon by the petitioners will not apply in the facts and circumstances of the present case. 12. Be that as it may, the main ground taken by the petitioners in the writ petition is that even in 1997-98 candidates out of the panel prepared in 1996 have been given promotion. As noticed above, the claim of the petitioners was rejected solely on the ground that no vacancy occurred during the period of panel i.e. upto 17.5.1997 and the panel has since expired. In para 15 of the writ petition It is stated that both the petitioners were better placed in the panel prepared after written test but one Mr. N.V. Dannial was promoted in E-2 Grade vide Office Order dated 11.6.1996. In para 21 it is stated that one Mr. A. Shukla who was also included in the panel but was not promoted to the post of Law Officer in E-2 Grade. Mr. Shukla then moved to the Madhya Pradesh High Court at Jabalpur in WP No. 1282/97 and the same was disposed of vide Order dated 23.3.1998 with a direction to the respondents to give him promotion as Law Officer. Pursuant to that Mr. Shukla was promoted after 23.3.1998. In reply to the said assertion made in the writ petition, respondents stated in the counter- affidavit that the case of Mr. Shukla stands in a different footing and in his own scrutiny It was detected that there was mistake of computing of one mark against his CR and the same was taken into consideration and Shri Shuklas position improved in the panel from 14 to 12. Since his Juniors were already promoted from the said panel, respondents have no alternative but to issue letter of appointment. So far selection of Mr. Since his Juniors were already promoted from the said panel, respondents have no alternative but to issue letter of appointment. So far selection of Mr. Dannial is concerned, it is stated that his case was considered against the direct recruitment quota following the direct recruitment norms. 13. In the case of State of U.P. v. Harish Chuidra, (1996) 9 SCC 390 similar question fell for consideration before the Apex Court is as to whether High Court can issue mandamus directing the respondent-authority to make appointment from the panel after validity of the panel expired. The Apex Court held that: "Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the writ petitioners. Under the Constitution of mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.1987 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuant to the direction of the Court some appointments have been made but in some other cases it might have been done by the appointing authority. Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasions appointments have been made by the appointing authority from a select list even after the expiry of one year from the date of selection but such an illegal action of the appointing authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such appointments by the appointing authority have been made contrary to the provisions of the Statutory Rules for some unknown reason we deprecate the practice adopted by the appointing authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4.4.1987 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction, if the writ petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the State Government that there existed one vacancy in the year 1987 is correct or not." 14. Having regard to the facts and circumstances of the case and the law discussed herein above, I am of the opinion that this Court can not issue mandamus directing the respondents to promote the petitioners in Executive Grade E-2 as their names appear in the panel prepared in 1996. Having regard to the facts and circumstances of the case and the law discussed herein above, I am of the opinion that this Court can not issue mandamus directing the respondents to promote the petitioners in Executive Grade E-2 as their names appear in the panel prepared in 1996. However, in the supplementary affidavit filed by the Coal India Ltd. it is admitted that there is vacancy at present but during the life of the panel there was no vacancy and as such petitioners could not be promoted. In that view of the matter respondents must consider the case of the petitioners for promotion aiongwith others as against the existing vacancy. It is expected that respondents shall take steps for filling up the existing vacancies without any delay. 15. With the aforesaid observation and direction this writ application is disposed of. 16. WP disposed of.