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Gauhati High Court · body

2007 DIGILAW 803 (GAU)

Samir Baran Das and Ors. v. Bongaigaon Refinery & Petrochemicals Ltd. and Ors.

2007-12-07

RANJAN GOGOI

body2007
1. The denial of promotion to the five petitioners from Grade-D to Grade-E (Deputy Manager to Manager) in the Bongaigaon Refinery and Petrochemicals Ltd. ('the respondent-company') is the subject-matter of the writ petition. The promotions of the respondent Nos. 5 to 21 to Grade-E made in the year 2006 is another aspect of the challenge made in the writ petition. 2. The norms applicable to the aforesaid promotions are contained in the revised promotion policy of the respondent-company as introduced in the year 1993. Promotions from Grade-D to Grade-E are required to be made on the basis of the recommendations of a Departmental Promotion Committee ('the DPC'). The assessment of the DPC is required to be made on the basis of marks to be awarded for each year of the completed service; the record of such service and also on the basis of personal interview. It may be noticed at this stage that four years of service in the feeder grade (Grade-D), makes an incumbent eligible for consideration for promotion to the next higher grade, i.e., Grade-E. 3. According to the petitioners, while the petitioner Nos. 1 and 2 became eligible for consideration for promotion to Grade-E on 1.1.1999, the petitioner No. 3 became so eligible on 1.1.2000 whereas the petitioner Nos. 4 and 5 acquired the requisite eligibility on 1.1.2001 and 1.7.2003 respectively. The petitioners state and aver that though under the promotion policy in force the DPC is required to meet twice a year i.e. January and July, no DPC was held in the year 1999. In the year 2000 one DPC meeting was held and thereafter no such meeting was convened till September 2003. This, according to the petitioners, was done to accommodate some junior officers who had not acquired the requisite eligibility to be within the zone of consideration at any earlier point of time. According to the petitioners, after the DPC meeting was held in September 2003 on the basis of the eligibility acquired as on 1.1.2003 and recommendations were made, once again, no DPC was held in 2004. Thereafter, in January 2005 and July 2006 DPC meetings were held and recommendations were made though under the norms in force the DPC was required to be convened twice a year. Thereafter, in January 2005 and July 2006 DPC meetings were held and recommendations were made though under the norms in force the DPC was required to be convened twice a year. The petitioners further allege that the aforesaid default in the holding of DPC in 2004, 2005 and 2006 was for the same reason i.e. to wait for incumbents junior to the petitioners to fulfil the eligibility criteria. In all the selections held, though the petitioners, who are seniors, were not selected several of their juniors were put on the select list. According to the petitioners, had the DPC been convened regularly the aforesaid juniors would not have been within the zone of consideration for promotion. The petitioners further state that their service record is unblemished; there is no adverse remarks and in view of their consistent good performance they have been unjustly deprived of their promotion to Grade-E. 4. The respondent Nos. 1 to 4 have filed two affidavits dated 13.4.2007 and 31.7.2007 projecting their stand in the matter. The private respondent Nos. 5 to 21 were issued notice by registered post. Return of service of such notices, at least in cases of some of the respondents, are on record. Yet they are not represented. In such circumstances, the Court had thought it proper to proceed with the case in the absence of the respondent Nos. 5 to 21. 5. The official respondents, i.e., respondent Nos. 1 to 4, in the affidavits filed, have stated that under the promotion policy in force, promotions are required to be made on the basis of availability of vacancies, performance, experience and interviews. The petitioners were not found suitable/upto the mark by the duly constituted DPC upon due application of the prescribed norms. In such circumstances, their juniors who fared better, on an application of the prescribed yardstick, could steal a march over the petitioners. The respondents have specifically averred that, though visualized in the promotion policy, on no occasion two DPCs were held in a calendar year and the practice in the respondent-company has been to hold one DPC every year. Replying to the specific point raised by the petitioners with regard to irregularity in holding the DPC meetings, details of which have been noticed earlier, the official respondents have stated that from the year 1999 the respondent-company was going through a serious financial crunch. Replying to the specific point raised by the petitioners with regard to irregularity in holding the DPC meetings, details of which have been noticed earlier, the official respondents have stated that from the year 1999 the respondent-company was going through a serious financial crunch. Huge losses were suffered by the respondent-company and austerity measures were introduced. In the aforesaid situation, the respondent-company took a policy decision not to release any post for being filled up by promotions. Thereafter, the financial position of the respondent-company slowly improved and in the year 2003 the company was in a position to release 59 posts in Grade-E for being filled up by promotion. Accordingly, a DPC was convened to meet in September 2003 for the purpose of consideration of officers in the feeder grade. All who had become eligible as on 1.1.2003 were considered. Similarly, in the year 2005, 20 posts in Grade-E and in 2006 18 posts in Grade-E were released for being filled up by promotion and DPCs were convened to make the required recommendations. In the affidavits filed, the respondents have specifically stated that the provisions contained in paragraph 5.2(B) of the promotion policy providing for award of 25 marks on account of experience in the feeder grade adequately takes care of the grievance of the petitioners that in the DPCs held in the respective years in question officers who were not eligible earlier were considered by the DPC. Officers with longer tenure in the feeder grade will get full marks and those with a shorter tenure proportionately less marks thereby obviating the possibility of any prejudice in the final assessment made by the DPC. 6. The official respondent Nos. 1 to 4 have also placed before the court some records in original i.e. the minutes of the proceedings of the DPC held in the years 2003, 2005 and 2006 ; a resolution of the Board of directors authorizing the chairman-cum-managing director to create/ release posts for promotion and the orders passed by the chairman-cum-managing director creating/releasing posts in Grade-E for promotion in the year 2003 (59 posts); in the year 2005 (20 posts) and in the year 2006 (18 posts). An opportunity of inspection of the said records in original was allowed to the learned counsel for the writ petitioners. 7. An opportunity of inspection of the said records in original was allowed to the learned counsel for the writ petitioners. 7. Sri N. Dutta, learned senior counsel who argued the case of the writ petitioners, has, at the outset, contended that no DPC for promotion to Grade-E having been held in the year 1999 and after holding of one meeting of the DPC in 2000 there being no such meeting till September 2003, the DPC that met in September 2003 was required to prepare a year-wise panel of selected candidates in respect of each of the years/ periods for which no DPC was held. There being no DPC held in the year 2004 a similar exercise was required to be performed by the DPC which met in January 2005. The next DPC having been held in July 2006 a similar exercise of preparation of separate/year-wise panel was required to be done for the period when the DPC was not convened to meet in terms of the promotion policy in force. The aforesaid requirement, according to Sri Dutta, was necessary to prevent prejudice to the petitioners, at least to the petitioner Nos. 1 to 4 who were eligible for selection on earlier dates when the DPC should have been convened. Yet, many persons who were not so eligible and who would not have come within the zone of consideration had the DPC met regularly were considered by the DPC which held its deliberations in September 2003 by taking into account the date of acquisition of eligibility to be 1.1.2003. Relying on the decisions of the Apex Court in the case ofVinod Kumar Sangal v. Union of India and Others, (1995) 4 SCC 246 ; in Union of India and Others v. Vipinchandra Hiralal Shah, (1996) 6 SCC 721 , and in Union of India v. N.R. Banerjee, (1997) 9 SCC 287 , Sri Dutta has contended that preparation of a year-wise panel, to prevent prejudice to candidates who had become eligible on dates when the DPC was required to be convened but was not convened, is mandatory. In the present case, the aforesaid mandatory requirement of law was not adhered to by the respondents who, instead, clubbed all the vacancies together for consideration by the DPC which met in September 2003. A similar illegality was committed by the subsequent DPCs held in the year 2005 and 2006. In the present case, the aforesaid mandatory requirement of law was not adhered to by the respondents who, instead, clubbed all the vacancies together for consideration by the DPC which met in September 2003. A similar illegality was committed by the subsequent DPCs held in the year 2005 and 2006. A decision of this court reported in Kakong Tayeng v. Asstt. Inspector General of Police, Arunachal Pradesh & Others, 2003 (2) GLT 379, has also been relied upon by Sri Dutta in this regard. 8. Continuing, Sri Dutta has contended that the recommendations of the DPC which met in the year 2006 and the consequential promotions of the respondent Nos. 5 to 21 are wholly illegal. This, according to Sri Dutta, is on the ground that one Sri M. Chinnakkal, Deputy General Manager, Vigilance, was a member of the DPC though under the promotion guidelines in force the constitution of the DPC for promotion from Grade-D to Grade-E has to be confined to Directors/General Managers. Sri M. Chinnakkal, according to Sri Dutta, is an intruder whose participation in the deliberations of the DPC had vitiated the recommendations made. 9. Sri Dutta has further argued that the award of marks in the interview segment of the assessment discloses a definite pattern to exclude the petitioners. In this regard, Sri Dutta has pointed out that the respondent Nos. 13 to 21 had no extra qualifications for which 10 marks were earmarked under the promotion policy in force. The aforesaid respondents were awarded high marks in the interview and though the petitioner Nos. 3, 4 and 5 had extra qualifications for which they secured extra marks they were given 1,3 and 7 marks in the interview. That apart, Sri Dutta has contended that there is a second pattern in the award of marks which is discernible from the records placed before the court. The respondent No. 5, Sri S. Roy Choudhury, secured 4 marks in the interview segment of the assessment made in the year 2003 and 3 marks in the year 2005. In the year 2006 he secured 13 mark.s. Respondent No. 12, Sri N. C. Goswami, secured 4 and 3 marks against interviews in the DPC proceedings held in the year 2003 and 2005 respectively, whereas in the proceedings held in the year 2006 he secured 12 marks. In the year 2006 he secured 13 mark.s. Respondent No. 12, Sri N. C. Goswami, secured 4 and 3 marks against interviews in the DPC proceedings held in the year 2003 and 2005 respectively, whereas in the proceedings held in the year 2006 he secured 12 marks. Similarly, the respondent No. 17, Sri Madhab Chandra Mandal, secured 5 marks in 2003 and 2005 though in the year 2006 he secured 10 marks. The respondent No. 18, Sri G. Gopal Gupta, secured 3 marks in the year 2003 and 2005 respectively whereas in the year 2006 he secured 11 marks. Similarly, the respondent No. 20, Sri Gautom Deshmukh, secured 5 marks in 2005 but 14 marks in 2006. The petitioners, however, continued to receive low marks in the interview segment in each assessment made by the DPC and therefore they were not selected whereas the aforesaid persons who had secured low mark.s in the earlier selections could get finally selected in 2006 on account of high marks being awarded to them in the interviews held in the year 2006. 10. Lastly, Sri Dutta has argued that the DPC of the year 2006 was required to recommend 18 candidates for as many posts. The petitioner No. 3, Satish Kumar, had secured 70.65 marks and was the 18th person in order of merit. The DPC strangely imposed the requirement of a cut off of 72 marks and accordingly recommended 17 names. Sri Dutta has argued that the cut off mark has to be determined with reference to the marks secured by the last candidate in order of merit as against the number of posts available. It is, therefore, argued that there has been a conscious move and design to deprive the petitioner No. 3 from the benefits legitimately earned by him. 11. The arguments made by Sri Dutta, learned senior counsel for the petitioners, have been sought to be countered by Sri K.N. Choudhury, learned senior counsel appearing for the respondent Nos. 1 to 4. On tlie issue of the necessity of preparation of year-wise panel in situations where the DPC does not meet according to the schedule fixed, Sri chudhury has pointed out that in Vinod Kumar Sangal (supra) and N.R. Banerjee (supra) the Apex Court was considering the necessity nf preparation of year-wise panel in situations where in spite of availability of vacancies the DPC did not meet. In the said cases to meet such a situation there were specific office memorandums in force imposing the requirement of preparation of year-wise panel once the DPC is convened on a later date. Referring to the decision of the Apex Court in Vipinchandra Hiralal Shah (supra) Sri Choudhury has submitted that in the aforesaid case which deals with the IAS (Appointment by Promotion) Regulations the requirement of preparation of a year-wise panel again was in a fact situation where vacancies were available but the DPC did not meet. In the present case, according to Sri Choudhury, the facts are different. As stated in the affidavit of the respondent-company a policy decision was taken by the company that in view of its financial difficulties promotional posts should not be filled up and austerity measures should be introduced. Accordingly, no promotional posts in Grade-E were available and the same were released only in the year 2003 after the financial health of the respondent-company had improved. When posts/vacancies were not available for being filled up, the ratio of the law laid down by the Apex Court requiring preparation of year-wise panels will not apply, according to Sri Choudhury. Insofar as the participation of Sri M. Chinnakkal in the DPC is concerned, it is contended by Sri Choudhury that such participation will not vitiate the entire proceedings and at best the views expressed by the said member may be excluded. On the issue of the marks awarded in the interview segment of the assessment process, Sri Choudhury has contended that the marks awarded does not disclose any single pattern which could reasonably point to an attempt to deliberately exclude the petitioners. Learned counsel ha: further argued that award of marks falls within the near exclusive domain of the DPC and in the absence of any allegations of mala fide the court should not enter into the said area. Insofar as the exclusion of the petitioner No. 3, Satish Kumar, from the recommendations of the DPC of the year 2006 is concerned, Sri Choudhury has fairly submitted that said action may not appear to be justified. He, therefore, had left the matter to the discretion of the court. 12. The issues arising for determination on the basis of the pleadings of the parties and the arguments advanced have received the most anxious consideration of the court. He, therefore, had left the matter to the discretion of the court. 12. The issues arising for determination on the basis of the pleadings of the parties and the arguments advanced have received the most anxious consideration of the court. The issue of requirement of preparation of year-wise panel by the DPC which met in September 2003 after a long interval may be taken up first. In this regard, the court has noticed the absence of any pleadings or materials from the side of the petitioners as to the vital question of how many vacancies were available in each year/period for which the DPC did not meet. In the absence of the aforesaid vital fact neither the question of prejudice as urged before the court can be effectively considered nor any firm directions be issued by the court in the event the court is to find favour with the arguments advanced on behalf of the petitioners. Furthermore, of the 59 and 20 persons selected by the DPC of the years 2003 and 2005, who are the persons who were not eligible on the relevant date(s), i.e., the date(s) on which the DPC should have met and yet the DPCs had considered such ineligible persons to the prejudice of the petitioners is not indicated by the averments made in the writ petition or the materials available on record. If the petitioners had any grievance against such persons they should have been named and made parties to the writ petition. This has not been done. No relief is claimed against any such person. On the said facts the court has to understand the arguments offered on behalf of the petitioners with regard to the requirement of preparation of year-wise panel to be entirely hypothetical and the issue raised wholly academic. On the contrary, the impleadment of only the promotees who were selected by the DPC of the year 2006 (respondent Nos. 5 to 21) would seem to indicate that the real grievances of the petitioners is in respect of the recommendations of the DPC of the year 2006 and the consequential promotions. The court, therefore, will proceed to answer that part of the grievances raised by the petitioners and confine its consideration only to the arguments raised on that score. 13. 5 to 21) would seem to indicate that the real grievances of the petitioners is in respect of the recommendations of the DPC of the year 2006 and the consequential promotions. The court, therefore, will proceed to answer that part of the grievances raised by the petitioners and confine its consideration only to the arguments raised on that score. 13. The participation of Sri M. Chinnakkal, Deputy General Manager, Vigilance, in the proceedings of the DPC held in the year 2006 has to be understood by the court to be unauthorized in view of the clear stipulation In the promotion "regulations" that the DPC for promotion to Grade-E should be constituted by the Directors and General Managers of the respondent-company. No material has been laid before the court by the respondent-company as to the reasons why the aforesaid person who is a Deputy General Manager was allowed to deliberate in the proceedings of the DPC of the year 2006. However, the Court is of the view, having regard to the near unanimity of judicial opinion on the point, such participation, by itself, will not vitiate the proceedings and invalidate the recommendations made by the DPC. Materials must exist that Sri Chinnakkal had some positive role to play in formulating the final conclusions of the DPC as distinguished from being a mere participant in the said proceedings. The extent of participation of Sri Chinnakkal that would be required to invalidate the proceedings of the DPC could be in a situation where there was a difference of opinion amongst the members on any relevant issue and the views of Sri Chinnakkal had made the crucial difference. Another instance of such objectionable participation of Sri Chinnakkal could be in a situation where he had played an active role in persuading other members of the committee to take a particular view. The situations where participation of Sri Chinnakkal could have vitiated the proceedings of the DPC can, by no means, be exhaustively spelt out. What is sought to be emphasized is that such participation, ipso facto, will not be an invalidating factor unless materials exist show that the views of Sri Chinnakkal had played a decisive role in the decision making process. What is sought to be emphasized is that such participation, ipso facto, will not be an invalidating factor unless materials exist show that the views of Sri Chinnakkal had played a decisive role in the decision making process. No such materials being available on record the court is of the view that it would be wholly wrong to invalidate the proceedings of-the DPC on account of mere participation of Sri Chinnakkal who was one of the 5 members of the DPC held in the year 2006, particularly, when its recommendations were unanimous. 14. This will bring the court to a consideration of the question as to whether the award of marks in the interview segment of the assessment process discloses a discernible and definite pattern to the prejudice of the petitioners. The arguments advanced on behalf of the petitioners in this regard have already been taken note of. The same, primarily, is to the effect that candidates who had secured low marks in the earlier rounds of the DPCs were awarded high marks by the DPC of the year 2006 on account of which they were selected. The petitioners, however, continued to receive low marks consistently and, therefore, were not selected. To appreciate the arguments offered the court had meticulously looked into the award of marks to the candidates by the DPC held in all the three years. Such scrutiny has revealed that the pattern that has been sought to be highlighted on behalf of the petitioners is extendable to several other cases in addition to the petitioners and the respondent Nos. 5 to 21. The aforesaid scrutiny has also revealed that several other candidates (Y.P. Saxena, S. Adhikari, IvLinmoy Kumar Das, R.C.P. Singh) continued to receive more or less low marks all throughout yet they were selected in the year 2006. Some candidates (respondent No. 6, Mohan Lal; respondent No. 8, Ompal Singh and respondent No. 15. A. Malik) secured more or less the same marks as some of the petitioners and even lower marks than the other petitioners, i.e., petitioner No. 2, Ardhendu Dam and petitioner No. 5, Sambhu Kumar Das; yet the respondent Nos. 6,8 and 15 were selected but the petitioners were not. The court, therefore, has to conclude that t he award of marks does not disclose any single uniform pattern so as to justify interference. 15. 6,8 and 15 were selected but the petitioners were not. The court, therefore, has to conclude that t he award of marks does not disclose any single uniform pattern so as to justify interference. 15. Coming to the case of the petitioner No. 3, Satish Kumar, the court is of the view that 18 posts being made available in the year 2006, the DPC had necessarily to fix the cut off mark on the basis of the marks secured by the 18th candidate in order of merit. The petitioner No. 3 is the 18th candidate having secured 70.65 marks. In such a situation, it is incomprehensible as to how the DPC could have fixed the cut off mark at 72 and on that basis had recommended only 17 candidates against 18 posts. The said action being plainly wrong the respondent Nos. 1 to 4 are now directed to promote the petitioner No. 3, Satish Kumar, to Grade-E with effect from the date on which the respondent Nos. 5 to 21 have been so promoted. 16. In view of the foregoing discussions the court has reached the conclusion that no relief beyond what is stated in paragraph 15 of the present order can be afforded to the petitioners. The writ petition, therefore, is dismissed subject to the directions contained in paragraph 15 of the present order.