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2003 DIGILAW 320 (JHR)

Sushil Jha v. Bharat Coking Coal Limited

2003-03-07

TAPEN SEN

body2003
JUDGMENT Per Tapen Sen, J-Heard Mr.Jai prakash, learned counsel for the Petitioner and Mr. A. K. Mehta, learned counsel for the Respondents. 2. The Petitioner in the instant case has prayed for fixation of seniority with effect from 1983. According to the Petitioner, he is entitled to be given seniority with effect from November, 1983 as was given in the case of others who are Union to him. 3. The short facts which are necessary to be taken note of in the instant case are that in the year 1983, the Petitioner was posted as Senior Stenographer in the Kustore Area of M/s. B.C.C.L. and in the same year a Departmental Promotion-cum-Selection Committee was constituted for purposes of examining stenographers so that they could be promoted to the post of Senior Personal Assistant. 4. According to the Petitioner, a stenography test was held and out of 114 candidates, 107 of them were examined who appeared ,on 08.01.1983, 09.01.1983 and 05.03.1983. The Committee, later on and after due deliberation in the matter relating to the criteria adopted therein, recommended 76 persons for promotion vide Annexure-1 appended to the Writ Petition. The name of the Petitioner appears at serial no. 18. 5. Thereafter, the Petitioner was promoted pursuant to Annexure-1 vide office order dated 07.01.1984 to the post of Senior Personal Assistant in the Technical and Supervisory Grade-A with immediate effect. This order was passed under the signature of the Personnel Manager and as is evident from Annexure-2 to the Writ Petition. In other words, the Petitioner became Senior Personal Assistant with effect from 07.01.1984 itself. 6. However, prior to issuance of the aforementioned order of promotion i.e. 07.01.1984, the Additional Chief Personnel Manager had issued another officer order two days earlier i.e. on 05.01.1984 (Annexure-3) by which it was communicated that the Petitioner, amongst others, had not actually qualified according to the standards adopted by the D.P.C. and that there was irregularity and lapse in this respect on the part of the D.P.C. Accordingly, it was therefore decided to rectify the mistake in question and to cancel the promotions retrospectively. It was further ordered that the Petitioner as also other three persons would be reverted to the post of Senior Stenographer with effect from the date indicated in the order itself. It was further ordered that the Petitioner as also other three persons would be reverted to the post of Senior Stenographer with effect from the date indicated in the order itself. There appears to be some confusion in relation to the dates mentioned in Annexure-3 but it would be a futile exercise to enter into that controversy. Suffice it would be to say that the promotions granted were cancelled. Thereafter, the Petitioner made a representation vide Annexure-4 but nothing happened. In the mean time, some of those Senior Stenographers who had not been recommended for promotion raised a dispute through the Union and this culminated in a reference for adjudication before the Central Government Industrial Tribunal at Dhanbad. By reason of an Award dated 28.09.1987, the aforementioned Tribunal set aside all the promotions and directed the Management to hold a fresh D.P.C. for purposes of promotion by constituting a new D.P.C. and also directed that the promotions should be granted in accordance with the promotion policy and also in accordance with the principles of seniority-cum-merit. 7. Thereafter, on 28.09.1988 {vide Annexure-6) 26 persons out of Annexure-A who had also been selected in the year 1983 were recommended by the D.P.C. and they were given notional seniority with effect from 15.11.1983. The Petitioner was not recommended by this order. The Petitioner immediately protested. Subsequently, vide Annexures-7, 8 and 9 (i.e. on 14.10.1991), 43 persons including the Petitioner were promoted but, in the case of the Petitioner, it was mentioned that his promotion will be given effect to from the date he reports for duty on the higher post. No notional seniority was given as. was given to the others by Annexure-6. 8. The Petitioner therefore makes a grievance and alleges discrimination in the face of the aforesaid facts. On the earlier occasion when this case was argued, Mr. Jai Prakash had submitted that Annexure6 by which 26 persons had been promoted after the order of the Tribunal, were out of the same list of Annexure-1 and therefore, he had submitted that this was irregular in as much, after the order of the Tribunal Annexure-1 automatically stood cancelled and therefore, the persons out of this list could not have been promoted in a routine manner. In answer to the aforementioned argument of Mr. Jai Prakash, Mr. In answer to the aforementioned argument of Mr. Jai Prakash, Mr. A. K. Mehta has filed a Supplementary Affidavit wherein he has stated that there is no discrimination and• that in fact, after the Award of the Tribunal, the D.P.C. had met twice, i.e. once in the year 1988 when the Petitioner had not been found fit and again in the year 1991 when the Petitioner was found fit. The reference of the D.P.C. being held in the year 1988 is Annexure-F to the Supplementary Affidavit which shows that 64 persons were recommended by the D.P.C. for promotion in the year 1988. With reference to Annexure-F, statements have been made at Paragraph-5 of the Supplementary Court Affidavit to the effect that 64 Stenographers were allowed promotion as Senior Personal Assistants out of which 38 had been given entry in the Technical Grade - A with effect from 15.11 .1983 and therefore, the remaining 26 persons who had been promoted by Annexure-6 had to be allowed promotion notionally with effect from 15.11.1983 i.e. the date when juniors had been promoted. 9. In other words, what Mr. A. K. Mehta has stated in Paragraph - 5 is that out of the 64 persons mentioned in Annexure-1, since 38 had already been given notional seniority with effect from 15.11.1983 (vide Annexure-6) therefore, the remaining perspns i.e. 26 persons of Annexure-6 had to be given notional seniority with effect from same date i.e. 15.11.1983. In other words, what the Respondents have actually done is that they have attached much weight to Annexure-6. Annexure-6 on the other hand, is the list of 26 persons who were all selected in the year 1983 vide Annexure-1 and recommended by the D.P.C. which was subsequently cancelled. On reading Annexure-F along with paragraph-5 of the Supplementary Counter Affidavit it is, therefore, apparent that the Respondents have given due weightage also to Annexure-1 notwithstanding the fact that all recommendations/promotions had been ordered to be cancelled by the learned Tribunal. 10. There appears therefore that there has been some irregularity. Another aspect is that at paragraph-4 (M) of the Supplementary Counter Affidavit, the Respondents have stated that since 38 Sr. Stenographers had already been promoted vide various office orders contained in Annexures-A to D to• the post of Sr. 10. There appears therefore that there has been some irregularity. Another aspect is that at paragraph-4 (M) of the Supplementary Counter Affidavit, the Respondents have stated that since 38 Sr. Stenographers had already been promoted vide various office orders contained in Annexures-A to D to• the post of Sr. P.A., consolidated list whereof was available in the office order contained in Annexure-E giving inter-5e seniority positions and mentioning the date of entry in the Technical Grade 'A' as 15.11.1983. Since the remaining 26 persons had also been found suitable by the D.P.C. ir its meeting dated 26.08.1988 they were also allowed promotion on the post of Sr. P.A. in Technical Grade 'A' notionally with effect from the same date i.e. 15.11.1983. Thus, 38 + 26 = 64 have been allowed promotion in Technical Grade 'A' with effect from 15.11.1983. 11. From a perusal of the aforementioned paragraph - 4(M), it is again apparent that the Respondents have relied upon Annexures-A to- D therein. Annexures-A to D are dated 15.11.1983, 07.01.1984, 27.04.1984 and 7/8.01.1985. These documents are all prior to the Award given by the Tribunal. This is again an irregularity in so far as the petitioner is concerned and therefore, it would be in the fitness of things that the matter should be remanded for a fresh consideration. Consequently, this Writ Petition is disposed off and the Petitioner is directed to file a detailed representation before the concerned Officer of the Bharat Coking Coal Limited. 12. At this stage Mr. Anup Kumar Mehta suggested that the representation be given to the General Manager (Non-Executive, Establishment), B.C.C.L., Dhanbad. If such a representation is filed within a period of six weeks from today, the same shall be considered and disposed off by a reasoned order in accordance with law within a period of 8 weeks thereafter. Lest there be any grievances from any quarters, the authority dealing with the representation shall give opportunity of hearing to the Petitioner even if it means appearance through his counsel and he would also consider the desirability of hearing such other person or persons as may be deemed necessary by him. 13. With the aforesaid observations and directions this Writ Petition stands disposed off.