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2011 DIGILAW 907 (CAL)

Ram Vibhash Bharati v. Coal India Ltd.

2011-07-08

SOUMITRA PAL

body2011
JUDGMENT 1. IN the writ petition, the petitioners who are working in E-3 Grade in the Excavation Discipline under the Coal India Limited, the respondent No.1, have prayed for a direction upon the respondents to consider their case for promotion to E-4 Grade with retrospective effect from 10th August, 2007 and after consideration to grant them such notional benefits payable under the law. 2. IT appears that the petitioners and the private respondents, holding Electrical Engineering and Mechanical Engineering degrees, applied for appointments with the Coal India Limited. Two panels (for short "two panels") of successful candidates were prepared-one for the posts of Management Trainee (Mechanical) and another for the posts of Management Trainee (Electrical). As the petitioners and the private respondents were successful their names figured in the said two panels. IT has been stated that another panel was prepared under Cadre Management Trainee (Excavation) which was filled up by drawing successful candidates from the said two panels. The names of the petitioners figured in the Management Trainee (Excavation Panel). On 11th September, 1997 the petitioners were appointed as Management Trainee (Excavation). After successful training, in the year 1998/1999, by separate office orders, they were appointed as Engineer (Excavation) in E-2 Grade. In March 2002 they were promoted to the post of Executive Engineer (Excavation) in E-3 Grade. The grievance of the petitioners are that though since 2002 they are working in E-3 Grade without any consequent promotion to the E-4 Grade, however, by order dated 10th August, 2007, 114 Executive Engineers in the Electrical and Mechanical Discipline working in E-3 Grade were promoted to the posts of Senior Executive Engineer Electrical and Mechanical in E-4 Grade. According to the petitioners, by the order dated 10th August, 2007 the private respondent Nos.8 and 9 have been promoted to the posts of Senior Executive Engineer Electrical and Mechanical in the E-4 Grade though they were much lower in rank in the said two panels of successful candidates. Submission was that though by the dint of their appointments in the Electrical and Mechanical Disciplines the private respondents have been promoted, however the petitioners merely because they are in the Excavation Cadre would stand to lose so far promotion is concerned. Thus their seniority would be affected. Prayer is since the petitioners compared to the private respondents are similarly circumstanced, they should be treated equally. Thus their seniority would be affected. Prayer is since the petitioners compared to the private respondents are similarly circumstanced, they should be treated equally. Submission was as the petitioners did not opt for being appointed as Management Trainee (Excavation) and as the private respondents who were junior to them in the two panels have been promoted to the posts of Senior Executive Engineer Electrical and Mechanical in E-4 Grade and as discrimination has been brought to the fore, appropriate direction may be issued. Allegation is the entire promotion policy lacks transparency as copies of approval of the competent authority regarding placement of selected executives made at the time of appointment to E-1 Grade has not been annexed to the affidavit-in-opposition. Mr. Banerjee, learned Advocate on behalf of the Coal India Limited relying on the office order dated 27th March, 2007 submitted that the petitioners had availed themselves of the opportunity for promotion and were promoted to the post of Executive Engineer (Excavation) in E-3 Grade which was on the basis of seniority-cum-merit. Promotion beyond E-3 Grade is on merit-cum-seniority which depends on several factors, such as, availability of vacancy, merit and recommendation of the Departmental Promotion Committee ("DPC" for short). It was submitted that the DPC in its meeting held on 20th/21st July, 2007 had considered the cases of those executives who entered into E-3 Grade on or before 30th September, 2002 and had completed three years of service by 30th September, 2005. There were 102 number vacancies available in E-4 Excavation Grade and DPC had considered the case of the petitioners for promotion to the E-4 Grade. Accordingly promotion order was issued upto Seniority No.83 of the recommended list of executives in the general category and 21 in the SC and ST candidates. The petitioners ranked 407, 410, 413, 417, 421 and 423. Therefore, as in the recommended list the names of the petitioners were much below the available vacancies, they were not given promotion to E-4 Grade in Excavation Discipline. Submission was that there are two separate channels of promotion-one for Excavation Discipline and other for the Electrical and Mechanical Disciplines. The executives belonging to Excavation Discipline cannot claim promotion against the vacancy available in Electrical and Mechanical Disciplines. Similarly Executives belonging to Electrical and Mechanical Disciplines cannot claim promotion against any vacancy in Excavation Discipline. Submission was that there are two separate channels of promotion-one for Excavation Discipline and other for the Electrical and Mechanical Disciplines. The executives belonging to Excavation Discipline cannot claim promotion against the vacancy available in Electrical and Mechanical Disciplines. Similarly Executives belonging to Electrical and Mechanical Disciplines cannot claim promotion against any vacancy in Excavation Discipline. Therefore, any comparison of the case of the petitioners with those in the Electrical and Mechanical Disciplines, as made out in the petition, is misconceived. Submission was if any order is passed directing promotion to the petitioners in the Excavation Discipline, it shall lead to an anomalous situation. 3. ADMITTEDLY, as evident from Annexure P-1, the petitioner was offered of being appointed as Management Trainee in the Excavation Discipline. The terms and conditions governing the appointment and other documents were enclosed along with the offer letter. The petitioners accepted the offer meaning thereby they had understood the terms and conditions of employment. Thereafter, they were promoted to E-2 Grade in the Excavation Discipline and subsequently to the E-3 Grade in the same Discipline. In my view, once the petitioners had accepted the offer of appointment in the Excavation Discipline knowing the fully the terms and conditions of employment and had availed themselves of the promotional avenues, at this stage they can not assail the method of promotion. That apart it is not the case of the petitioners that they were not considered for promotion to the E-4 Grade in the Excavation Discipline. Rather it is evident that the DPC had considered the case of the petitioners. However, as noted, as the petitioners were much below in the merit list, they could not make the Grade. It has to be kept in mind that Clause 4.8 of the Common Coal Cadre deals with the criteria of promotion. Under Clause 4.8--"(i) The criteria for promotion from one grade to another upto the level of E-3 grade would be seniority-cum-merit...." and "(ii) Beyond E-3 grade the criteria for promotion would be merit-cum-seniority" In this regard it is to be noted that the statements regarding promotion made in Paragraphs 4(a) to 4(t) of the affidavit-in-opposition filed by the Coal India Limited have not at all been effectively dealt with in Paragraphs 6 and 7 of the affidavit-in- reply. Therefore, as the petitioners at the time appointment in the Excavation Discipline were fully aware of the terms and conditions of appointment and as I find that the DPC had considered the case of the petitioners for promotion to E-4 Grade, the prayer of the petitioners for a direction upon the respondents to consider their case for promotion to E-4 Grade with retrospective effect from 10th August, 2007 cannot be accepted. Therefore, the writ petition is without merit and is dismissed. No order as to costs. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the appearing parties on priority basis.