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Gauhati High Court · body

2005 DIGILAW 429 (GAU)

Lianchungnunga, Deputy Manager, Zoram Industrial Devp. Corporation Ltd. v. Zuram Industrial Devp. Corporation Ltd.

2005-06-03

BROJENDRA PRASAD KATAKEY

body2005
JUDGMENT B.P. Katakey, J. 1. This writ petition has been filed by the Petitioner who is serving as Deputy Manager, Zoram Industrial Development Corporation Ltd. (ZIDCO) challenging the fixation of seniority of he Petitioner vis-a-vis the Respondent No. 5 in the rank of Deputy Manager and also the promotion of the Respondent No. 5 to the post of Manager of the said corporation. 2. The facts leading to the filing of the present writ petition is that the Petitioner was initially appointed as Asstt. Manager in ZIDCO and joined the service on 19.12.89. He was thereafter recruited to the post of Deputy Manager, vide order dated 8.2.95 against the 50% quota meant for direct recruitee and the Respondent No. 5 who was initially appointed as Asstt. Manager in the corporation on 12.12.89 was also promoted to the post of Deputy Manager on 8.2.95 against the quota fixed for promote, consequent upon the resolution of the board of directors taken in respect of both the Petitioner and the Respondent No. 5, under the provision of Zoram Industrial Development Corporation Ltd. (Group A Post) Recruitment Rules 1994. Both the Petitioner and the Respondent No. 5 joined their services as Deputy Manager on the same date i.e. on 8.2.95. The said appointment/promotion of the Petitioner and the Respondent No. 5 to the post of Deputy Manager was made pursuant to the selection conducted by the departmental promotion committee on 12.1.95 wherein the DPC has recommended that keeping in view the dates of joining of the Petitioner and the Respondent No. 5 in the post of Asstt. Manager, the Respondent No. 5 is to be treated as senior to the writ Petitioner. The said decision of the DPC was accepted by the corporation. The Board of Directors of the corporation thereafter on 1.9.03 has decided to fill up the post of Manager lying vacant and consequently a departmental promotion committee meeting was held on 18.9.03 for consideration of the Deputy managers for promotion to the said post of manager. The Petitioner, Respondent No. 4 and Respondent No. 5 who came within the zone of consideration in terms of the provision contained in Zoram Industrial Development Corporation (group A post) Recruitment Rules 1996 were considered for promotion to the said post. The Petitioner, Respondent No. 4 and Respondent No. 5 who came within the zone of consideration in terms of the provision contained in Zoram Industrial Development Corporation (group A post) Recruitment Rules 1996 were considered for promotion to the said post. The DPC for the purpose of consideration of promotion took into consideration the ACRs' of all these three persons for the year 1996-97 to 2000-2001 and recommended the name of the Respondent No. 4 for promotion to the said post of manager and empanelled the names of Respondent No. 5 and the Petitioner, in order of merit, for the post of Manager, wherein the Respondent No. 5's name was placed at serial No. 1 and that of the Petitioner at serial No. 2. On the basis of the recommendation of the departmental promotion committee, the Respondents No. 4 was promoted to the post of Manager vide order dated 25.9.03 issued by the Managing Director of the Corporation. Hence the present writ petition challenging the fixation of the seniority of the Respondent No. 5 above the Petitioner in the rank of the Deputy Manager and also the promotion of the Respondent No. 4 to the post of Manager. 3. I have heard Mr. Michael Zothankhuma, learned Counsel for the Petitioner, Mr. C. Lalramzauva, learned Counsel appearing on behalf of Respondent No. 1,2,4 and 5 also Mr. N. Sailo, learned State Counsel appearing on behalf of the Respondent No. 3. 4. Mr. Zothankhuma, learned Counsel for the Petitioner has submitted that the manner in which the seniority between the Petitioner and the Respondent No. 5 in the rank of Dy. Manager has been fixed is not correct, as, for the purpose of fixation of seniority in the said rank the corporation has to take into consideration the service rendered by them in the rank of deputy manager only and cannot take into consideration the service rendered in the rank of Asstt. Manager as has been done in the instant case. The further submission of the learned Counsel is that since under the 1994 recruitment rules the quota fix for direct recruitment has been mentioned at serial No. 1, the person recruited under the said quota i.e. by direct recruitment, has to be treated as senior to the person recruited under the quota fixed for promotion. Mr. The further submission of the learned Counsel is that since under the 1994 recruitment rules the quota fix for direct recruitment has been mentioned at serial No. 1, the person recruited under the said quota i.e. by direct recruitment, has to be treated as senior to the person recruited under the quota fixed for promotion. Mr. Zothankhuma, in support of his contention has also placed reliance on the proposal submitted by the authority to the DPC for the purpose of selection to the post of Manager wherein the Petitioner's name figured above the name of the Respondent No. 5 and as such according to the learned Counsel for the Petitioner, the seniority of the Petitioner ought to have been fixed above the Respondent No. 5. 5. Mr. Michael Zothankhuma, learned Counsel for the Petitioner while challenging the promotion of Respondent No. 4 as Manager has contended that the Department of Personnel and Administrative Reforms, Govt. of Mizoram has issued an office memorandum dated 10.10.2002 for the laying down the procedure to be adopted by the departmental promotion committee while considering the cases of the candidates for promotion, which office memorandum was acted upon by the corporation while making selection to the post of Manager by the DPC in its meeting dated 18.9.03. Clause 3.4(g) of the said office memorandum, according to the learned Counsel, stipulates that the DPC is required to take into consideration the ACR's of officers which become available during the year immediately proceeding the vacancy/panel year, even if the DPC's are held later than the year of vacancy. According to the learned Counsel since the DPC held its meeting on 18.9.03, it has to take into consideration the ACR's of five proceeding years i.e. from years 1997-98 to 2001-2002 and in the present case as the ACR for the period from 1996-97 to 2000-01 have been taken into consideration, the DPC has violated the guidelines issued for that purpose and therefore, the order of promotion of the Respondent No. 4 is required to be interfered with and a review DPC is to be directed to be held for the purpose of consideration of the promotion to the post of manager upon consideration of the ACR's for the period from 97-98 to 2001-2002. According to the learned Counsel for the Petitioner if ACR of the said period is taken into consideration, the Petitioner having graded outstanding for three years, he will march over the Respondent No. 4 though he is senior to him in terms of Clause 3.5 of the said office memorandum dated 10.10.02 and as the Respondent No. 4 never during that period graded as outstanding. The further submission of the learned Counsel for the Petitioner is that under Clause 75 of the Memorandum of Association and Article of Association of the corporation the power to make appointment vest on the Board of Directors only and such power cannot be exercise by the Managing Director unless delegated to him by the board. Relying on the resolution of the Board of Directors taken in its meeting held on 1st July, 1985, the learned Counsel for the Petitioner has submitted that the board of directors has delegated certain powers to the Managing director and power conferred on the Board by Clause 75(16)(a) of the memorandum and article of association, to appoint any person as Manager has not been delegated to the Managing Director and therefore the Managing Director can not issue the order of promotion to the Respondent No. 4 as admittedly the Board of Director has not adopted any resolution for promotion of the Respondents No. 4 and hence the order of promotion issued by the Managing Director is illegal being violative of the provision contained in Memorandum and Article of Association of the corporation. 6. Mr. Michael Zothankhuma, learned Counsel for the Petitioner has placed reliance on a judgment passed by this Court on 3.2.2004 in W.P.C. No. 22 of 2002 (Dr. L.B. Sailo v. The State of Mizram and Ors.) wherein it has been held that for the Panel year of 2000-2001 the ACRs up to the year 1999-2000 are required to be taken into consideration. The said case relates to the officers appointed by the Government of Mizoram. Therefore, no occasion arose to consider the office memorandum, issued by the Govt. of India on 16.6.2000 relating to the relevant year up to which ACRs are to be considered, which was taken into consideration by the corporation while holding the DPC. Therefore, the decision cited by the learned Counsel for the Petitioner is not applicable in the present case. 7. Mr. C. Lalramzauva, learned Counsel for the Respondents Nos. of India on 16.6.2000 relating to the relevant year up to which ACRs are to be considered, which was taken into consideration by the corporation while holding the DPC. Therefore, the decision cited by the learned Counsel for the Petitioner is not applicable in the present case. 7. Mr. C. Lalramzauva, learned Counsel for the Respondents Nos. 1, 2, 4 and 5 have submitted that the question of seniority of the Petitioner vis-a-vis the Respondent No. 5 cannot be reopened at this stage as the said question was decided as long back as on 12.1.95 when the DPC recommended the case of the Petitioner and the Respondent No. 5 for appointment as Dy. Manager and also fixed the seniority of the Respondent No. 5 over the Petitioner in the rank of Deputy Manager, which was accepted by corporation and there after the orders of appointment were issued. In any case, according to the learned Counsel for the Respondent, since there is no rules relating to the fixation of the inter-se-seniority of the officers laying down, the manner in which the seniority between the direct recruitee and promotee are to be fixed, the length of service shall be the basis for the purpose of fixation of seniority. Mr. C. Lalramzauva, learned Counsel for the Respondents has submitted that since the Petitioner and the Respondent No. 5 were appointed to the post of Deputy Manager on the same date, i.e. on 8.2.95 and they have joined their service on same date the authority has to take into consideration the length of service in the earlier grade i.e. in the grade of Asstt. Manager. According to the learned Counsel, the Petitioner and the Respondent No. 5 were selected for appointment as Asstt. Manager, which is the feeder post for the purpose of appointment/promotion to the post of Dy. Manager, by the same selection committee and as the name of the Respondent No. 5 was placed above the name of the Petitioner in the select list prepared for that purpose on the basis of merit and as the Respondent No. 5 has joined the service as Asst. Manager i.e. on 12.12.89 and the Petitioner on 19.12.89, the Respondent No. 5 was rightly treated as senior to the Petitioner. According to the learned Counsel for the Respondents, the Petitioner having accepted this position for last eight years cannot now challenge the same. 8. Manager i.e. on 12.12.89 and the Petitioner on 19.12.89, the Respondent No. 5 was rightly treated as senior to the Petitioner. According to the learned Counsel for the Respondents, the Petitioner having accepted this position for last eight years cannot now challenge the same. 8. Countering the argument put forward by the learned Counsel by the Petitioner challenging the order of promotion of the Respondent No. 4 to the post of Manager, the learned Counsel for the Respondent as submitted that though the office Memorandum dated 10.10.02 issued by the Government of Mizoram was adopted by the corporation after holding of the DPC on 18.9.03, they followed the spirit of said office memorandum and also the office memorandum dated 16.6.2000 issued by the Government of India relating to the relevant year up to which year ACRs are to be considered, as the Board of Directors of the corporation in its meeting held on 28.6.05 and 1st July, 1985 has decided to follow the spirit of it and also the Civil Service Rules and other rules in force in the State of Mizoram till the corporation frame its own rules/by-laws. According to the learned Counsel as per the Govt. of Mizoram office Memorandum dated 10.10.02 read with the Govt. of lndia dated 16.6.2000 the ACR, for the period from 96-97 to 2000-2001 were rightly taken into consideration by the DPC for the purpose of promotion to the post of Manager. The further submission of the learned Counsel for the Respondent is that even assuming that the ACR for the period from the 1997-98 to 2001-2002 are required to taken into consideration by the DPC, than also as admitted by the Petitioner in paragraph 12 of the writ petition, the Respondent No. 5 have three outstanding grades during relevant period and he being senior to the Petitioner will march over the Petitioner and the Petitioner cannot claim selection over the Respondent No. 5 and the said Respondent No. 5 having not challenge the appointment of the Respondent No. 4 to the post of Manager, the writ Petitioner cannot challenge the same as in that case he will be placed at serial No. 3 i.e. after the Respondent No. 5 and therefore, this Court may not interfere with the order of promotion of the Respondent No. 4 to the post of Manager. 9. Mr. 9. Mr. C. Lalramzauva, learned Counsel for the Respondent countering the argument of the learned Counsel for the Petitioner relating to the power of the Managing Director of the Corporation to issue the order of promotion to the post of Manager, has contended that the board of Directors in its meeting dated 2.11.03 has authorized the Managing Director to take all necessary action regarding the holding of the DPC and as such the Board of Directors has authorized the Managing Director to issue the order of appointment also. 10. Mr. N. Sailo, learned State Counsel appearing on behalf of the Respondent No. 3 has submitted that since the matter relates to ZIDCO, which is a corporation and has an independent identity, the State Government has nothing to do in respect of the fixation of the seniority or promotion of the any officer from one post to another in the said Corporation. 11. I have considered submissions of the learned Counsel for the parties and also perused the records produce before me by the corporation. 12. It is not in dispute that the Petitioner as well as the Respondent No. 5 were initially selected for appointment to the post of Asstt. Manager by the same selection Board wherein the Respondent No. 5 was placed above the writ Petitioner in order of merit. It is also not in dispute that the Respondent No. 5 joined the said post of Asstt. Manager on 12.12.89 and the Petitioner 19.12.89. Both the writ Petitioner and the Respondent No. 5 were selected for appointment to the post of Dy. Manager by the same DPC in its meeting held and they were appointed on the same date i.e. 8.2.95 and also joined their service as Dy. Manager on the same date. The orders of appointment of the Petitioner as well as the Respondent No. 5 to the post of Dy. Manager were issued by the Managing Director. The writ Petitioner was appointed to the post of Dy. Manager against the quota fixed for direct recruitment and the Respondent No. 5 against the quota fixed for promotion. 13. It is also an admitted position of fact that the corporation has not framed any rules/law for the purpose of fixation of inter-se-seniority of the officers of any grade and also the manner in which the seniority amongst the direct recruittee and promotee are to be fixed. 13. It is also an admitted position of fact that the corporation has not framed any rules/law for the purpose of fixation of inter-se-seniority of the officers of any grade and also the manner in which the seniority amongst the direct recruittee and promotee are to be fixed. It is a settled position of law that in the absence of any rules, for fixation of seniority, the period of continuous officiation is the criteria for the fixation of such seniority. In the instant case, as stated above, the Petitioner and the Respondent No. 5 were appointed/promoted in the post of Dy. Manager on the same date i.e. on 8.2.95 and joined their services in the said post on the same date. Therefore, for the purpose of fixation of seniority the authority has to consider the period of service rendered by them in the earlier grade i.e. in the grade of Asstt. Manager. The Petitioner and the Respondent No. 5 were selected for the post of Asstt. Manager by the same selection committee but in the select list prepared in order of merit, the Respondent No. 5 was placed above the Petitioner and the Respondent No. 5 joined the service as Asstt. Manager on 12.12.89. That being the position the Respondent No. 5 was senior to the Petitioner in the grade of Asstt. Manager. The date of selection, the date of appointment and the date of joining of the Petitioner and the Respondent No. 5 being the same in the rank of Dy. Manager, the authority for the purpose of fixation of seniority between them has to take into consideration their seniority position in the rank of Asstt. Manager and Respondent No. 5 being senior to the Petitioner in the same rank, the DPC has rightly recommended the fixation of seniority of the Respondent No. 5 over the Petitioner in its meeting held on 12.1.95 while recommending the appointment to the post of Dy. Manager and the same was rightly accepted by the authority. Moreover, the said position having been settled in the year 1995 and Petitioner having accepted that position cannot be allowed to reopen to his seniority position vis-a-vis the Respondent No. 5 by filing a writ petition in the year 2003. Manager and the same was rightly accepted by the authority. Moreover, the said position having been settled in the year 1995 and Petitioner having accepted that position cannot be allowed to reopen to his seniority position vis-a-vis the Respondent No. 5 by filing a writ petition in the year 2003. The contention of the learned Counsel for the Petitioner that as in 1994 Recruitment Rules, the quota meant for the direct recruitment is it shown above the quota meant for the promotees and as his name finds place above name of the Respondent No. 5 in the proposal submitted by the authority for the purpose of consideration for the promotion to the post of Manager by the DPC, the Petitioner should be held to be senior, can not be accepted as the seniority cannot be fixed on the basis that the quota meant for direct recruitee was mentioned over the quota fixed for promotee in the service rules and as his name appears above the name of the Respondent No. 5 in the proposal submitted before the DPC for consideration of promotion to the post of Manager. Therefore, the authority has rightly fixed the seniority of the Respondent No. 5 over the Petitioner in the rank of Dy. Manager. 14. Now, let me consider the contention of learned Counsel for the Petitioner that the Managing Director has no power to issue the order of appointment to the post of Manager. Clause 75(16)(a) of Memorandum and Articles of Association of the corporation confers power on the Board of Directors to appoint and to take disciplinary action against Manager, Secretaries, Officers, Clerks, Agent and servants of the corporation. The power of Managing Director of the corporation has been enumerated in Clause 76 of the said Memorandum and Articles of Association, which provides that the Managing Director shall be whole time employee of the corporation and maybe authorize to exercise the power and discretion in relation to the affairs of the company as are specifically delegated to him by the Board. The Board in its meeting dated 1.7.1985 has delegated certain powers, vest on it by Article 76 of the said memorandum and article of association, on the Managing Director of the Corporation but it appears from the said resolution that the Board has delegated the powers vest in it by Article 75(5), (7), (8), (9), (10), (18) and (19)(a) and has not delegated the power under Article 75(16)(a). It is the case of the Petitioner that the Managing Director therefore, has no power to appoint any officer of the corporation. It is seen from the order of appointment dated 8.2.95 appointing the Petitioner as Dy. Manager of the corporation that the same was also issued by the Managing Director. Therefore, if the contention of the writ Petitioner is accepted his appointment to the post of Dy. Manager is also illegal. The writ Petitioner being the beneficiary of such order of appointment issued by the Managing Director, subsequently cannot turn around and say that the Managing Director has no power to appoint any officer of the corporation. Moreover, it appears from the resolution adopted by the Board in its meeting on 22.9.2003 that the board has authorized the Managing Director to take all necessary action in regard to the holding of the DPC. Therefore, the contention of the learned Counsel for the Petitioner cannot be accepted and hence rejected. 15. The next question to be decided whether the appointment of the Respondent No. 4 was valid and whether the DPC has considered the ACRs of the officers for the relevant periods and if not what would be the effect. 16. The stand of the corporation in regard to the procedure to be adopted for holding the DPC meeting is that though the office memorandum dated 10.10.02 issued by the Government of Mizoram was adopted by the Board on 22.9.03, the board has in fact followed the spirit of said office memorandum along with office memorandum dated 16.6.2000 issued by the Government of India regarding the relevant year up to which ACRs are to be considered. According to the learned Counsel for the Petitioner since the board has followed office memorandum dated 10.10.02 issued by the Government of Mizoram they are required to take into consideration the ACRs for the period from 97-98 to 2001-2002 as the Panel year in this case is 2002-2003 since the DPC held its meeting on 18.9.03. According to the learned Counsel for the Petitioner since the board has followed office memorandum dated 10.10.02 issued by the Government of Mizoram they are required to take into consideration the ACRs for the period from 97-98 to 2001-2002 as the Panel year in this case is 2002-2003 since the DPC held its meeting on 18.9.03. 17. For better appreciation, Clause 3.4(g) of the office memorandum dated 10.10.02 issued by the Government of Mizoram is quoted below: (g). ACR's of Officers which became available during he year immediately preceding the vacancy/panel year should be considered by the DPC even if DPCs are held later that the year of vacancy. In other words, for the vacancy/panel year, 2001-2002 ACRs upto the year ending 31st March, 2000 are required to be considered irrespective of the date of convening of DPC. However, ACRs upto the year ending 31st March, 2001 will be considered by the DPC if it sits after September of that year even if the vacancy falls within 2001-2002. 18. The Government of India on 16.6.2000 has also issued an office memorandum relating to the relevant year up to which ACRs are to be considered by the DPC. The paragraph 2 of the said office memorandum, which is relevant for purpose of this case, is quoted below: 2. In regard to operation of the Model Calender for DPCs, a doubt has been raised by certain quarters as to the question of the relevant year up to which ACRs are required to be considered by the DPCs. In this connection, it is once again clarified that only such ACRs should be considered which became available during the year immediately preceding the vacancy/panel years even if DPCs are held later than the schedule prescribed in the Model calendar. In other words, for the vacancy/panel year 2000-2001, ACRs up to the year 1998-99 are required to be considered irrespective of the date of convening DPC. 19. It appears from Clause 3.4(g) of the office memorandum dated 10.10.02 that the ACRs of officer which become available during the year immediately preceding the Panel year should be considered by DPC, even if the DPC is held later than the year of vacancy. 19. It appears from Clause 3.4(g) of the office memorandum dated 10.10.02 that the ACRs of officer which become available during the year immediately preceding the Panel year should be considered by DPC, even if the DPC is held later than the year of vacancy. From the reading of the said provision it thus appears that if the panel year is 2002-2003 the preceding year would be 2001-2002 and the year preceding that year would be 2000-2001, up to which the ACR are to be taken into consideration. However, the next two sentences of the said clause is slightly confusing, in as much as, once it has stated that if the panel year is of 2001-2002 the ACRs up to the year ending 31st March 2000 i.e. the year preceding the panel year is to be considered but in the next sentence it has been mentioned that if the DPC has held after September of a year than the ACRs up to 31st March of that year has to be considered. The aforesaid two sentences are contrary to the first sentence of Clause 3.4(g). On the other hand the Government of India's office memorandum dated 16.6.2000 is very clear and there is absolutely no ambiguity in the said circular. It has been specifically mentioned that the DPC has to consider only such ACRs, which become available during the year immediately preceding the vacancy/panel year even if DPC are held later the schedule prescribed in the model calendar. By way of an example it has been clarified in the said office memorandum that for the vacancy/panel year 2000-01, ACRs up to the year 1998-99 are to be considered irrespective of the date of convening DPC. The provisions contained in the said Govt. of India's office memorandum dated 16.6.2000 and in the first part of Clause 3.4(g) Government of Mizoram office memorandum dated 10.10.02 are identical. Therefore, upon reading of both the office memorandums together, it is evident that if the vacancy/panel year is 2000-2001 ACRs up to the year 1998-99 are to be considered by the DPC, therefore, if the vacancy/panel year is 2001- 2002 the ACRs up to year 1999-2000 and it vacancy/panel year is 2002-2003, the ACRs up to the year 2000-2001 are to be taken into consideration by the DPC for the purpose of making selection. 20. 20. In the instant case admittedly the ACRs up to the year 2000-2001 were taken into consideration while considering the cases of the Petitioner and the Respondent No. 4 and 5 for promotion to the post of Manager. During that relevant period i.e. for the period from 1996-97 to 2000-2001, admittedly the Petitioner got two outstanding grades and Respondent No. 4 was graded very good all though. By applying Clause 3.5 of the office memorandum dated 10.10.03, the Petitioner's over all grading would therefore be very good so also the Respondent No. 4. The Respondent No. 4 being admittedly senior to the Petitioner in the grade of Dy. Manager, he has to be selected for the purpose of promotion and hence the DPC has rightly recommended the case of the Respondent No. 4 for promotion to the post of Manager. 21. Another aspect of the matter is that even assuming that the ACRs up to the year 2001-2002 is to be taken into consideration by the DPC i.e. ACRs for the period from 1997-98 to 2001-2002 are required to be considered, than also the Petitioner will not be benefited as the Respondent No. 5 who is senior to the Petitioner in the rank of Dy. Manager, will march over the Petitioner as he was graded outstanding in three years so also the Petitioner, during those relevant years, in view of the provision contained in Clause 3.5 of the office memorandum dated 10.10.02. The Respondent No. 5 has not challenged the order of promotion of Respondent No. 4. 22. That being the position I do not find any merit in the writ petition and hence the writ petition is dismissed. No cost. Petition dismissed.