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2012 DIGILAW 165 (CAL)

Coal India Limited v. Akshaya Kumar Jena

2012-03-01

MRINAL KANTI SINHA, PRANAB KUMAR CHATTOPADHYAY

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Judgment : PRANAB KUMAR CHATTOPADHYAY, J. There are two channels of promotion for Mining Engineers in Coal India Limited (CIL) and its subsidiaries. One is the “First Class Stream” for those possessing the First Class Mines Managers’ Certificate of Competency (FMCC), and the other, the “Second Class Stream”, for those not possessing such certificate. In terms of the aforesaid promotional policy, an officer in E2 Grade upon obtaining First Class Mines Managers’ Certificate of Competency is immediately promoted from E2 to E3 Grade in the First Class Channel. Similarly, candidates placed in E3 or E4 Grade would also be entitled to be promoted to the Higher Grade upon obtaining the First Class Certificate. The First Class Mines Managers’ Certificate of Competency is issued by the Director General of Mines (Safety), after conducting written examination as well as oral test. The promotional policy which contemplates jump promotion from E2 Grade to E3 Grade, E3 Grade to E4 Grade and E4 Grade to E 5 Grade was made a part of the common coal cadre after it was approved by the Board of Directors of Coal India Limited. The respondents/writ petitioners were all eligible to appear for First Class Mines Managers’ Certificate of Competency Examination. As such they appeared in the said Examination which was held on December 19, 2005. The result of the written examination was declared on June 10, 2006. After that the writ petitioners appeared before the Interview Committee and final result was declared on July 15, 2006. Accordingly, the writ petitioners (Excepting Writ Petitioner Nos. 7 & 8) became entitled to be promoted to the E4 Grade from the date of obtaining the said certificate. The writ petitioner nos. 7 and 8 had appeared in the said Examination in the year 2004 and cleared the same in 2005. However, they were granted the First Class Certificate on May 20, 2006 after gathering requisite experience. It is significant to mention that upon promulgation of promotion policy in the Mining Discipline, it transpired that some anomalies had cropped up. In order to resolve such anomalies, a Committee was formed which was looking into the matter. On 14th December, 1999, the said Committee made certain suggestions to remove the said anomalies. It is significant to mention that upon promulgation of promotion policy in the Mining Discipline, it transpired that some anomalies had cropped up. In order to resolve such anomalies, a Committee was formed which was looking into the matter. On 14th December, 1999, the said Committee made certain suggestions to remove the said anomalies. The authority concerned formed Anomaly Committee in view of the grievances raised from various corners in the matter of promotion from Lower Grade to Upper Grade on obtaining the First Class Certificate. The said grievances were placed before the Anomaly Committee. For settlement of all those cases of anomalies, the Anomaly Committee, upon reviewing the existing guidelines, made certain recommendations in the matter of promotion from Lower Grade to Upper Grade on obtaining the First Class Mines Managers’ Certificate. The Anomaly Committee recommended that Senior Managers, on possessing First Class Mines Managers’ Certificate in E-3 Grade, will be horizontally moved to First Class Channels in E-3 Grade, instead of being promoted to E-4 Grade. The said recommendation was placed by the Anomaly Committee before the appropriate authorities. In implementation of those recommendations, the General Manager (Personnel), Coal India Ltd. issued an office Memorandum bearing No. CIL/C-5A/OC/Min/098/81 dated 12th June, 2006. From the said office Memorandum it appears that the competent authority has modified the recommendations of the Anomaly Committee to the extent that the benefit of promotion on passing First Class Mines Managers’ Certificate would be given to only E-2 Grade employees and the Executives working in E-3, E-4 and E-5 Grade would be horizontally placed in the same Grade in the First Class Channel from the effective date of possessing the First Class Mines Managers’ Certificate. It also appears from the said Memo that the recommendations had come into force with effect from 8th May, 2006. However, it has also been mentioned in the said Memo that the old cases would be disposed of as per existing norms and guidelines. The recommendations of the Anomaly Committee were placed at various levels of the authorities and the said recommendations were finally approved by the Board of Directors of Coal India Ltd. on December 22, 2006. The writ petitioners have challenged the aforesaid Memo dated June 12, 2006 by which the recommendations of the Anomaly Committee were sought to be implemented with retrospective effect. The writ petitioners have challenged the aforesaid Memo dated June 12, 2006 by which the recommendations of the Anomaly Committee were sought to be implemented with retrospective effect. It was the specific contention of the writ petitioners that since they have appeared in the written examination in December 2005 and passed the written examination on June 10, 2006 i.e. prior to issuance of the impugned memo dated June 12, 2006, their cases should have been considered as per the earlier guidelines of Coal India Limited and they should have been given the benefit of jump promotion from E3 to E4 Grade upon obtaining First Class Mines Managers’ Certificate of Competency. Mr. Malay Kumar Basu, learned senior counsel of the respondents/writ petitioners submitted that the new promotional policy could not have been implemented with retrospective effect in respect of the respondents/writ petitioners since the examination process had commenced prior to the issuance of the impugned memo dated June 12, 2006. The appellant herein, however, took a stand that the new policy guidelines were implemented as per the recommendations of the Anomaly Committee. Mr. Arijit Chowdhury, learned senior counsel representing the appellant submitted that the date of obtaining the certificate was the effective date when the employee concerned namely, the respondents/writ petitioners were entitled to be considered for promotion to the higher grade as per the earlier guidelines. Mr. Chowdhury submitted that since the new guideline was introduced by the memo dated June 12, 2006, the respondents/writ petitioners were not entitled to get promotion as on the date of the implementation of the new policy guidelines, said respondents/writ petitioners did not possess the certificate. It was further contended that the change in policy was placed before the Board of the Directors of Coal India Limited for approval on December 22, 2006. It was categorically submitted that the Board of Directors of Coal India Limited approved and ratified the modified guidelines as circulated vide Memo dated June 12, 2006 on December 22, 2006. Mr. Basu, learned senior counsel of the respondents/writ petitioners further submitted that the Board, being the competent authority, approved the new guidelines only on 22nd December, 2006 and therefore, the said new guidelines could not be enforceable before 22nd December, 2006. Mr. Mr. Basu, learned senior counsel of the respondents/writ petitioners further submitted that the Board, being the competent authority, approved the new guidelines only on 22nd December, 2006 and therefore, the said new guidelines could not be enforceable before 22nd December, 2006. Mr. Basu further submitted that the respondents/writ petitioners got the First Class Certificate on 15th July, 2006 and thus acquired the right to be considered for promotion before the decision taken by the Board on 22nd December, 2006. Mr. Basu emphatically submitted that an accrued right cannot be taken away by giving retrospective effect to a subsequent order. Mr. Basu further submitted that the earlier policy which was prevailing before 22nd December, 2006 was also approved by the Board and the said policy was amended by the Board only on 22nd December, 2006. Mr. Basu also submitted that the ratification of the modified guidelines by the Board of Directors of Coal India Limited is not affirmation of the earlier decision of the said authority and as a matter of fact the Board of Directors on 22nd December, 2006 had approved and ratified the decision of another authority. Therefore, according to Mr. Basu, the aforesaid modified guidelines can be implemented only after approval of the same by the competent authority, namely, the Board of Directors. It is the stand of the respondents/writ petitioners that the competent authority namely, the Board of Directors of the Coal India Limited had approved and ratified the earlier decision of the subordinate authority and not of the same authority. Mr. Basu referred to and relied on the following decisions in support of his arguments. 1. Ex-Capt. K. C. Arora & Anr. Vs. State of Haryana & Ors. And Ex-Capt. A. S. Parmar & Ors. Vs. State of Haryana & Ors., reported in (1984) 3 SCC 281 Para 16. 2. State of Gujarat & Anr. Vs. Raman Lal Keshar Lal Soni & Ors. And Mathuradas Mohan Lal Kedia & Ors. Vs. Sh. S. D. Munshaw & Ors., reported in (1983) 2 SCC 33 . 3. Union of India & Ors. Vs. Tushar Ranjan Mohanty & Ors., reported in (1994) 5 SCC 450 Para 14. The learned Single Judge upon considering the rival contentions was pleased to hold that any change brought after the commencement of the selection process cannot be given retrospective effect. 3. Union of India & Ors. Vs. Tushar Ranjan Mohanty & Ors., reported in (1994) 5 SCC 450 Para 14. The learned Single Judge upon considering the rival contentions was pleased to hold that any change brought after the commencement of the selection process cannot be given retrospective effect. In the present case, respondents/writ petitioners appeared in the First Class Mining Managers’ Certificate Examination in December, 2005 and the result of the said examination was declared on 15th July, 2006 when the new amended guidelines were not approved and ratified by the competent authority, namely, the Board of Directors of the Coal India Limited. Therefore, the respondents/writ petitioners acquired the right to be considered for promotion before the new amended guidelines became operative. The criteria for promotion to the next higher grade was only passing of the First Class Mining Managers’ Certificate Examination. The respondents/writ petitioners appeared in the said examination in December, 2005 and passed the same before the new modified amended guidelines were approved and ratified by the competent authority. Therefore, the respondents/writ petitioners cannot be treated under the new modified guidelines upon giving retrospective effect to the new policy decision. The respondents/writ petitioners were entitled to be considered for promotion in terms of the Rules which existed at the time of commencement of the promotional process. Undoubtedly, Rules which were in existence at the time of initiation of the process for granting promotion would be made applicable to the candidates. In the case of Snehansu Jas Vs. State of W.B. & Ors., reported in 2001 (2) CLJ 558 , a Division Bench of this court held that once the selection process had started under the unamended Rules, the same should be allowed to continue as per the unamended Rules and the amended Rules would not affect the selection process which commenced under the unamended Rules. The relevant extracts from the aforesaid judgment are set out hereunder:- “16. Therefore, the ratio of these cases is that once the selection process has already started, meanwhile if the rules are amended then in that case selection process should be allowed to continue as per the unamended rules and the amended rules will not affect the selection process which has commenced under the unamended rules.” Another Division Bench of this Court in the case of Basudeb Bag & Anr. Vs. Vs. Bhaskar Chandra Kar & Ors., reported in 1996 (1) CLJ 230 observed that if the process of selection started prior to commencement of the new Rules, then the new Rules could not be applied to the selection upon giving retrospective effect to the new Rules. The relevant extracts from the aforesaid decision are set out hereunder :- “10. The aforementioned two decisions of the Supreme Court of India has been followed by the Apex Court in the case of (3) P. Mahendran & Ors. Vs. State of Karnataka & Ors., reported in AIR 1990 SC 405 , wherein the Supreme Court clearly held that as the process of selection had commenced in 1983 which had to be completed in accordance with law as it stood at the commencement of the selection, the said selection could not be held to be illegal. Keeping in view the aforementioned binding decision of the Supreme Court of India, we have no other option but to hold that as the process of selection had started prior to coming into force of the new rules, which, as indicated hereinbefore, was published on 1.8.81, the learned Judge was right in arriving at a finding that the said rules could not have been given retrospective effect.” The principles decided by the Division Bench in the aforesaid cases are also applicable in the matter of selection of the candidates for promotion to the next higher grade. Since in the instant case, the respondents/writ petitioners acquired the right to be considered for promotion under the unamended guidelines, such right cannot be frustrated by giving retrospective effect to the amended guidelines as sought to have been done in the instant case. The learned Single Judge, in our opinion, has rightly considered & decided the issues raised in the writ petition. We find no infirmity and/or error in the findings of the learned Single Judge. Therefore, we affirm the decision of the learned Single Judge and dismiss this appeal as we do not find any merit in the same. In the facts of the present case, there will be however, no order as to costs.