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2008 DIGILAW 986 (JHR)

Ram Vilas Singh v. Steel Authority of India Limited, New Delhi

2008-08-22

AJIT KUMAR SINHA

body2008
Order The present writ petition has been preferred for issuance of a writ in the nature of certiorari to quash the order dated 8.8.2001, passed by respondent no. 3, rejecting the representations of the petitioners pursuant to the order dated 11.4.2001, passed by the then Ranchi Bench of Hon'ble Patna High Court in C.W.J.C. No. 3235 of 1999(R). Further prayer is for a direction to the respondents to consider and grant promotion to the petitioners in Non-Executive/Executive Cadre from the date(s), they became eligible, with all consequential service and monetary benefits. 2. The facts, in brief, as submitted by the petitioners, are set out as under:- There was a common line of promotion for all the workers, working in different sections of E&E Department (Now EMD) and could have been considered for promotion in another section. They have further raised a contention that one S.K. Verma, who was junior to them in different grades, was promoted superseding the petitioners. It is also the contention of the petitioners that in September, 1984 they jointly made a representation through proper channel, objecting the proposal to separate the department and also apprehended supersession by Sri S.K. Verma but no reply was given by the authority and on 24.12.1985, ignoring all genuine grievance of the petitioners, the respondents promoted Sri S.K. Verma from P-7 to P-8. It has further been submitted that in the year, 1994 Sri S.K. Verma was called for interview for the post of E-O whereas others, except petitioner no. 1, were debarred, as they were not eligible to be considered. Petitioner no. 1 in any case appeared at the interview on the basis of his qualification. However, others could not face the interview for want of minimum required period in P-8 Grade. It has further been submitted that again Sri S.K. Verma was transferred from Energy Management Department to S&C Department with a view to weaken the grievances of the petitioners, which was objected to by the Union and a representation was given not to transfer Sri Verma from the Department till the issue is settled. It has further been submitted that again Sri S.K. Verma was transferred from Energy Management Department to S&C Department with a view to weaken the grievances of the petitioners, which was objected to by the Union and a representation was given not to transfer Sri Verma from the Department till the issue is settled. The petitioners finally being constrained preferred a writ petition being C.W.J.C. No. 3235 of 1999(R) and the Hon'ble High Court vide its order dated 11.4.2001 while disposing of the writ petition, permitted the petitioners to raise their grievances before the competent authority, who was directed to consider the grievance of the petitioners and dispose of the same by a reasoned order. Accordingly, on 4.5.2001 the petitioners gave a representation, which was considered by respondent no. 3 and was rejected, which is sought to be challenged in the present writ petition. 3. The respondents have submitted that the Managing Director of Bokaro Steel Plant in compliance with the direction of the Hon'ble High Court passed a detailed speaking and reasoned order. It has also been submitted by the respondents that the petitioners are not entitled to any relief in view of the position, explained in the impugned order dated 8.8.2001 and the fact that the cases of all the five petitioners were considered for promotion to Executive Grade from time to time and in fact two of the petitioners were also promoted to the Executive Posts and they have joined the same without any protest or objection. The respondents further in their counter affidavit have given the details of the petitioners and the dates on which they were considered by the Departmental Promotion Committee in 1994 and 1997 and the results were declared in 1999. The respondents further submit that the allegation of favouritism or illegal promotion to Sri Verma is also incorrect and allegation of transfer for the purposes of promotion is misleading. 4. It appears that in the year, 1995 because of an urgent requirement in S&C Department and also because of his pending request for transfer on health ground, Sri Verma was transferred. 4. It appears that in the year, 1995 because of an urgent requirement in S&C Department and also because of his pending request for transfer on health ground, Sri Verma was transferred. However, he was considered for promotion to E-O Grade along with other colleagues only when he became eligible and was promoted to E-O Grade on 30.6.1999 and, thus, the allegation of transfer for the purposes of promotion to Sri Verma to E-O Grade is on the face of it misconceived, erroneous and unsustainable. 5. It appears that promotion from Non Executive to Executive Grade is by way of selection and the following four criteria are to be fulfilled, namely, (1) the candidate has to be eligible and he has to complete the required length of service; (ii) the qualification; (iii) A.C.R. i.e. Annual Confidential Report; and (iv) interview by the Departmental Promotion Committee. 6. The prayer to consider their cases for promotion, as claimed by the petitioners, from the date they became eligible is neither maintainable nor sustainable in view of the settled law. There is no indefeasible right of being promoted from the date of eligibility, more so when the promotional post is selection post by the Departmental Promotion Committee and is dependant upon sanctioned strength/vacancy. The Hon'ble Supreme Court has time and again held that even in a case where the persons have been selected and short-listed, still then they cannot have a legal, vested, accrued or indefeasible right to be promoted or appointed because the same is dependent upon sanctioned strength/vacancy at that point of time. Thus, the claim and contention of the petitioners that they were entitled for promotion from the date they became eligible is on the face of it illegal, erroneous and unsustainable. However, the petitioners herein, who were eligible, were considered for promotion by the Departmental Promotion Committee and, thus, they availed the chance by facing the interview for selection in E-O Grade without any demur and protest. The prayer for promotion from an earlier date is even otherwise unsustainable since earlier some of the petitioners were debarred from being considered since they were found to be 'not eligible', as they had not completed the required length of service. The prayer for promotion from an earlier date is even otherwise unsustainable since earlier some of the petitioners were debarred from being considered since they were found to be 'not eligible', as they had not completed the required length of service. As already stated above, promotion to Executive Grade is a selection post/grade in which the following four factors are taken into consideration: (i) length of service, if one becomes eligible for promotion in E-O Grade; (ii) qualification; (iii) A.C.R., namely, Annual Confidential Report; and (iv) interview. For each of the aforesaid factors/ eligibility marks are assigned and finally a comparative assessment, based on the marks secured, the selection is made and promotion is extended finally based on sanctioned strength/vacancy. 7. The Hon'ble Supreme Court in the case of K.H. Siraj vs. High Court of Kerala & Ors., as reported in (2006)6 SCC page-395 clearly held that candidates who participated in the interview with knowledge that for selection they had to secure prescribed minimum pass marks, on being unsuccessful in interview cannot turn round and challenge that the said provision of minimum marks was improper and the Hon'ble Supreme Court dismissed such challenge on the ground of estoppel. The Hon'ble Supreme Court further in the case of Marripati Nagaraja vs. The Government of Andhra Pradesh, as reported in (2007) 11 SCR 506 at p. 516 held that the appellant had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process. Again in a recent judgment, as reported in 2008(2) Supreme 328 , titled as Dhananjay Malik & Drs. vs. State of Uttaranchal & Ors., the Hon'ble Supreme Court has held that if a candidate takes a calculated chance and appears at the test or interview then only because the result of the interview is not palatable to him he cannot turn round and subsequently challenge the same or the selection process. In another recent judgment, as reported in AI.R. 2008 SC Page-148 (Trivedi Himanshu Ghanshyambhai vs. Ahmedabad Municipal Corporation & Ors.), it has again been reiterated by the Hon'ble Supreme Court that it was not open to challenge the appointment of selected candidates if they themselves were unsuccessful in the written test. 8. In another recent judgment, as reported in AI.R. 2008 SC Page-148 (Trivedi Himanshu Ghanshyambhai vs. Ahmedabad Municipal Corporation & Ors.), it has again been reiterated by the Hon'ble Supreme Court that it was not open to challenge the appointment of selected candidates if they themselves were unsuccessful in the written test. 8. The contention raised by the petitioners that their cases for promotion to E-O Grade was rejected by the Departmental Promotion Committee is also misleading for the sole reason that they were not eligible as they had not completed the length of service as required and later on being eligible they did appear and face the interview for selection to E-O Grade. Once the petitioners took chance for promotion in the Selection Grade of E-O and were declared unsuccessful, they are estopped from raising any such plea of challenging the promotion. The law in this regard is well settled as cited and indicated hereinabove. 9. In the aforesaid background, this writ petition is devoid of any merit and is, accordingly, dismissed without any order as to costs.