Surendra Jha v. Mineral Area Development Authority
2002-08-08
TAPEN SEN
body2002
DigiLaw.ai
JUDGMENT Tapen Sen, J. 1. Heard Mr. Indrajit Sinha, learned counsel for the petitioner and Mr. S.B. Gadodia, Sr. Advocate assisted by Mr. Sumeet Gadodia. 2. The petitioner in the instant case has prayed for issuance of an appropriate Order commanding the respondents to promote him on a post commensurate to his educational qualifications at par with his juniors who, according to the petitioner, have been promoted as has been stated at paragraph 4 of the supplementary affidavit filed on24.1.1997. 3 The petitioner has stated that after having undergone training as a machinist from the Industrial Training Institute Supaul and having passed the Trade Test in the year 1968 and having also worked as Trade Apprentice with M/s. Hindusthan Malleables & Forging Ltd. betwixt period 14.1.1969 to 13.1.1971 and after also having been conferred the National Apprentice Certificate from the Government of India, Ministry of Labour and Rehabilitation, joined the Jharia Water Board as a Mazdoor in Grade IV on 31.5.1975. 4. From the facts of this case, it would be apparent that right from the beginning, the petitioner has been praying/requesting and rightly so, seeking the consideration of his employers so that he be conferred the privilege of moving upwards though the process of promotion. Each time, however, his pleas appears to have been turned down on the ground that there are no posts available with the employers. 5. When the petitioner came up before this Court with a Supplementary Affidavit specifically mentioning his supercession by three juniors mentioned therein the respondents also promptly attempted to counter the said charge in paragraphs 8 and 9 of their counter affidavit wherein they stated/submitted that none of the persons who are junior to the petitioner had been promoted on the post of Machinist. They also have gone on record to state that there is no post of Machinist. 6. In so far as the statement of the writ petition, pertaining to the juniors mentioned in paragraph 4 of the supplementary affidavit is concerned, the respondents have not directly countered this statement. They have not come up with a reply that these people are not actually junior to the petitioners and/or that they are seniors.
6. In so far as the statement of the writ petition, pertaining to the juniors mentioned in paragraph 4 of the supplementary affidavit is concerned, the respondents have not directly countered this statement. They have not come up with a reply that these people are not actually junior to the petitioners and/or that they are seniors. On the contrary, what has come in the counter affidavit at paragraph 9 is as follows : That, it is stated and submitted that the petitioner has mentioned names of three persons in the supplementary affidavit and has alleged that those three persons, who are junior to the petitioner, have been promoted. In this respect, it is stated and submitted that the cases of none of those three persons are relevant.........." 7. In the instant case, the petitioner has made a prayer for promotion on a post commensurate to his educational qualification. It is well settled that the Writ Court, under Article 226 of the Constitution of India, cannot grant such a prayer. In other words, a Writ Court cannot promote the petitioner nor can it identify a post commensurate to the educational qualification of the petitioner. It is also well settled that no person has a right to claim promotion but he certainly does have the right to be considered for promotion. That right cannot be frustrated by the employers in a manner which amounts to virtually negating the claim of the petitioner and by resorting to writing letters such as Annexure A/3 to the counter affidavit threatening the petitioner that in the event he makes further claim, he shall be dealt with departmentally. Such letters are not appreciated by this Court. 8. In a judgment of the Supreme Court of India in the case of Council of Scientific and Industrial Research and another v. K.G.S. Bhatt and Anr. reported in AIR 1989 SC 1972 , it has been held, inter alia, that in matters relating to employment an employer/organization, public or private does not hire a hand but engages or employs a whole man. A person is recruited not just for a job but for a whole career. In the case before the Supreme Court, the respondents/employees therein had been left without any opportunity for promotion for about 20 years although he was a highly qualified engineer.
A person is recruited not just for a job but for a whole career. In the case before the Supreme Court, the respondents/employees therein had been left without any opportunity for promotion for about 20 years although he was a highly qualified engineer. Commenting upon the same, the Apex Court observed that it was "indeed a sad commentary" on the management. 9. It is well known that an employees must be given an opportunity to advance provided of course he has the necessary qualifications and his career is not tainted. If such an opportunity were to be withheld and not to be given and if a person was left in the lurch without even a ray of hope that some day in future he would be promoted, there is every possibility that such an employee will be frustrated beyond descriptions. This is not what an employer in India stands for. Every employer throughout the country must be a model employer. This perhaps was the reason why the Apex Court said that this is one of the "oldest and most important feature of the free enterprise system" and that the "opportunity for advancement is a requirement for progress of any organization. It is an incentive for personal development as well". But this Court cannot promote. It can only direct the consideration of the case of the petitioner in accordance with law. 10. Therefore, this writ petition is disposed off giving opportunity to the petitioner to file a representation before the respondent No. 1. If such a representation is filed, the respondent No. 1 shall consider the same and dispose it off in accordance with law by a reasoned order in the light of the observations made above and communicate the same to him within the period of six weeks from the date of receipt of such representation which must be accompanied with a copy of this order. 11. With the aforementioned observations and directions, this writ petition stands disposed off.