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2002 DIGILAW 476 (KER)

P. G. Lalithambika v. Indian Rare Earths Ltd.

2002-07-17

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Nair, J. The bone of contention in this case is the petitioner’s right for promotion as Administrative Officer of the Indian Rare Earths Ltd., who is the first respondent, w.e.f. 1-7-1996, on which date respondents 4 and 5 were promoted to posts carrying the same scale viz. Purchase Officer and Personnel Officer respectively. 2. The petitioner contends that she is senior to respondents 4 and 5 in so far as she joined as L.D.C./L.D. Typist on 1-1-1971, whereas respondents 4 and 5 joined the same post only 3-6-1971 and 1-11-1971 respectively. The date of next promotion as Senior Clerk/Typist as far as the petitioner was concerned is 14-3-1974 and the petitioner has all along been treated as senior to respondents 4 and 5. All of them were promoted to the next higher grade viz. Superintendent Grade II on 14-9-1992 vide orders marked as Exts.P2, P7 and P8 respectively. Superintendent Grade II, it is pointed out, is equivalent to the post of Deputy Administrative Officer/Deputy Purchase Officer/Deputy Personnel Officer. The petitioner’s grievance is that when promotion to the next higher grade viz. Administrative Officer/Purchase Officers/Personnel Officer arose in the year 1996 the petitioner was overlooked and instead respondents 4 and 5 were promoted vide Exts. P9 and P10 respectively. 3. Mr. O.V.Radhakrishnan, who argued the case of the petitioner, submitted that in the absence of any special rules governing qualification, method of promotion etc. the practice that was prevalent viz. seniority-cum-fitness should have been followed in the matter of promotion and that if this is done, the petitioner, being senior, should have been promoted along with respondents 4 and 5 if not in preference to them. 4. The contentions of the first respondents are many fold. Firstly, it is pointed out that Administrative Officer/Purchase Officer and Personnel Officer are not interchangeable posts though they carry the same scale of pay. Secondly, it is argued that as on 1996 there was a set of rules governing promotions, whereunder the principle of seniority-cum-fitness was inapplicable and promotions were guided by grading. It is argued that this system came into vogue as per the minutes of the apex body, which met on 3-9-1986. It is also argued that the petitioner had poor grading which disabled her to get promotion to the cadre post of Administrative Officer. 5. It is argued that this system came into vogue as per the minutes of the apex body, which met on 3-9-1986. It is also argued that the petitioner had poor grading which disabled her to get promotion to the cadre post of Administrative Officer. 5. During hearing it was stated that the petitioner was subsequently promoted as Administrative Officer in July, 2000. 6. Eventhough a copy of the minutes relating to the meeting of the apex body allegedly held on 3-9-1986 was placed before me during hearing, I do not think it safe to go on the presumption that this decision was validly put into effect. First of all, the first respondent did not have any contention with regard to the existence of any such rules in Ext.P11 case (O.P.No. 2703 of 1989), to which the first respondent was a party. Secondly, it was alleged in para 8 of the petition that notwithstanding Ext.P11 judgment aforementioned, wherein the first respondent was specifically directed to frame rules or standing orders prescribing the conditions of service of its officers and supervisory staff, no such rules had been framed and that the respondents were adopting pick and choose method for making promotions. Notwithstanding this specific averments, there is no mention in the counter about the bringing into force of the rules contemplated in the minutes, on which reliance was placed during hearing today. There is also no case for the first respondent that the contents of the minutes was published or circulated at any time. I am convinced therefore that there was, in fact, no rules brought into force which was adopted in the matter of promotion involved in the present case. 7. The contention that the post to which respondents 4 and 5 were promoted were separate and that the petitioner, who was in the administrative wing, could not have staked a claim for those posts appears to be without any merit. This is so, not only because of the observations contained in Ext.P11 Judgment but also because Ext.P12 office order issued by the first respondent on 14-5-1998 refers to various transfers effected in between different section like purchase, sales, maintenance, Plant, time Office, personnel and administration etc. It is thus clear that the petitioner had a valid claim to be considered for the post of Administrative Officer which is equivalent to the post given to respondents 4 and 5 vide Exts. It is thus clear that the petitioner had a valid claim to be considered for the post of Administrative Officer which is equivalent to the post given to respondents 4 and 5 vide Exts. P9 and P10. 8. It is true that in the absence of any rules the management was entitled to go by administrative orders in the matter of promotion. The shape of the rules in force as on 1989 is seen referred to in Ext.P11 judgment. The promotion that came up for consideration in the said case was to the post of purchase Officer. It was asserted by the respondents that seniority-cum-fitness was the principle applicable to such promotions. It is also seen from para 6 of the judgment that the stand of the respondents there in was that till 1985 Assistants were considered for promotion directly as Superintendent, based on seniority-cum-fitness principle. The petitioner has a case that the post of Superintendent considered in the said judgment was Superintendent Grade I, which is now equivalent to the post of Administrative Officer, In this regard it is pointed out that in para 2 of the Original Petition the petitioner had specifically averred that Superintendent Grade II stands re-designated as Deputy Administrative Officer and that therefore Superintendent Grade I has, perforce, to be equivalent to the next higher grade of Administrative officer. It is in Ground A of the counter that the first respondent dealt with the said averment and it is seen that is no denial of the aforesaid averment of the petitioner. The averment has, therefore, to be taken as admitted and if so, it is the principle of seniority-cum-fitness that should govern the promotion that the petitioner wants w.e.f. 1996. 9. The principle governing seniority-cum-fitness and seniority-cum-merit were discussed in para 12 of the judgment in Union of India v. Lt. Gen. Rajendra Singh Kadyan ((2000) 6 SCC 698). Seniority-cum-merit postulates requirement of certain minimum merit or specifying a benchmark previously fixed. Subject to fulfilling this requirement the promotion should be based on seniority. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. The position with regard to promotion was considered in State of Mysore v. C.R.Seshadri & others (AIR 1974 S.C. 460) also. It was held that basically, it is the employer’s discretionary power, fairly exercised, that should govern the matter of promotion. There is no requirement of assessment of comparative merit both in the case of seniority-cum-fitness and seniority-cum-merit. The position with regard to promotion was considered in State of Mysore v. C.R.Seshadri & others (AIR 1974 S.C. 460) also. It was held that basically, it is the employer’s discretionary power, fairly exercised, that should govern the matter of promotion. If the rule of promotion is one of sheer seniority it may well be that promotion is a matter of course. On the other hand, if seniority-cum-merit is the rule, promotion may not be automatic. The observations in Dharam Vir Singh tomar v. Administrator, Delhi Administrator & others (1991 Supp 2 SCC 635) indicate that the expression ‘fitness’ means that there should not be any adverse entry in the character rolls of the concerned person at least for the preceding three years and no disciplinary proceedings should be pending against him. The above principle indicates that the petitioner, in the absence of any adverse entry, was entitled to be promoted in preference to her juniors respondents 4 and 5. The denial of promotion to her is certainly arbitrary and has to be interfered with. 10. The Original petition, in the circumstances, is allowed and it is declared that the petitioner is entitled to be promoted as Administrative Officer w.e.f. 1-7-1996. Since the petitioner is already holding the post, what is required is only giving retrospective effect for the promotion to the said post with all attendant monetary benefits. Necessary orders in the matter will be passed within a period of three weeks from the date on which a copy of this judgment is served on the first respondent. There is absolutely no reason why the first respondent should hesitate to publish the seniority list of the employees as also the special rules, which, according to the learned counsel for the first respondent, was brought into effect in the year 2000. In fact even in Ext.P11 judgment directions had been issued to this effect. In view of prayer (iv) contained in the present Original Petition, there shall be a writ of mandamus directing the respondents 1 to 3 to publish category wise seniority list relating to all its employees within a period of six months from the date on which a copy of this judgment is served on the first respondent. In view of prayer (iv) contained in the present Original Petition, there shall be a writ of mandamus directing the respondents 1 to 3 to publish category wise seniority list relating to all its employees within a period of six months from the date on which a copy of this judgment is served on the first respondent. Likewise, there shall also be a direction to publish in the notice board of the first respondent, the “IREL Promotion Rules for Executives “2000” within a period of three weeks from the date on which a copy of this judgment is served on the first respondent. All employees shall be entitled to have access to the rules and the seniority list on request made to the Head of the Personnel Department.