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Jharkhand High Court · body

2015 DIGILAW 1515 (JHR)

Dhanakar Thakur v. MECON Limited

2015-12-07

RONGON MUKHOPADHYAY

body2015
ORDER : In this application, the petitioner has prayed for quashing of the orders of promotion of respondent nos. 3 & 4 dated 30.06.2012 and of respondent no. 5 dated 06.07.2013 issued by the respondent no. 2 whereby and whereunder, respondent nos. 3, 4 & 5 have been promoted to E 7 grade without having the basic requisite educational qualification for E 7 grade by depriving the petitioner from promotion in respect of the fact that the petitioner possesses the educational qualification of M.D. in general medicine and diploma in child health. A further prayer has been made in the writ application directing the respondent nos. 1 and 2 to promote the petitioner from E 6 to E 7 grade with effect from 01.04.2011 with all consequential monetary benefits, since the petitioner is having requisite qualification for being promoted to E 7 grade. The writ petitioner has also prayed that the Annual Performance Report of the petitioner pertaining to the year 2010, be expunged and a average mark on the basis of past years in the E 6 grade be allowed for calculation in promotion as well as payment of performance related perks. 2. The facts which has been stated in the writ application is that the petitioner was appointed in MECON Ltd. on the post of Senior Specialist (Medicine) in grade E 3 on 12.11.1990 after being successful in the interview held pursuant to the verification of experience and qualification of the petitioner. It is the case of the petitioner that he had obtained the educational qualification of M.D. (general medicine) in the year 1995 and diploma in child health in the year 1997 from Darbhanga Medical College, a institution recognised by the Medical Council of India. The petitioner was called for an interview in the Departmental Promotion Committee meeting of 2012, but the promotion of the petitioner was not granted whereas the respondent nos. 3 & 4 were granted promotion to E 7 grade by order dated 30.06.2012. The respondent no. 5 was promoted in E 7 grade in DPC held in the year 2013 vide order dated 06.07.2013. Since the petitioner was not given promotion to E 7 grade, the petitioner filed application for revoking the promotion orders on 03.10.2012 and 19.07.2013 to which a reply was given by the management rejecting the claim of the petitioner. The respondent no. 5 was promoted in E 7 grade in DPC held in the year 2013 vide order dated 06.07.2013. Since the petitioner was not given promotion to E 7 grade, the petitioner filed application for revoking the promotion orders on 03.10.2012 and 19.07.2013 to which a reply was given by the management rejecting the claim of the petitioner. Since the petitioner was deprived from being promoted to E 7 grade whereas promotions were granted to respondent nos. 3, 4 & 5, the petitioner has preferred the present application challenging the aforesaid promotion orders. 3. Heard Dr. Dhanakar Thakur, petitioner appearing in person, Mr. M. S. Mittal, learned senior counsel appearing for the respondent nos. 1 & 2 and Mrs. Shila Prasad, learned counsel appearing for the private respondents. 4. It has been submitted by the petitioner that denial of promotion to the petitioner and granting of promotion to respondent nos. 3, 4 & 5 are against the promotion policy of MECON as the respondent nos. 3, 4 & 5 did not have the requisite qualification in terms of the said promotion policy. It has been submitted that in the Annual Performance Report of 2012, deliberately less marks were given to the petitioner in order to deprive him from promotion. The petitioner submits that Rule 10.3 of the “Promotion Policy and the Rules for Promotion for Executives and Non-Executives” clearly discloses that the eligibility conditions in exceptional cases can be relaxed at the discretion of Chairman cum Managing Director for the reasons to be recorded. Submissions have been advanced that the power given to the Chairman cum Managing Director in Rules 10.3 of the promotion policy was not exercised and in fact there is no document on the record to suggest that reasons were recorded while granting promotions to the respondent nos. 3, 4 & 5 by relaxing the eligibility conditions. The Chairman cum Managing Director in the garb of relaxing the eligibility criteria is not vested with the power to relax the minimum educational qualification as has been done in the present case. Arbitrary exercise of power by the CMD is stark on the face of the record as without assigning any reasons, the eligibility criteria has been relaxed and if the unbridled power of the CMD is not restrained, the same will lead to further illegal and arbitrary orders depriving qualified and genuine persons of being promoted. Arbitrary exercise of power by the CMD is stark on the face of the record as without assigning any reasons, the eligibility criteria has been relaxed and if the unbridled power of the CMD is not restrained, the same will lead to further illegal and arbitrary orders depriving qualified and genuine persons of being promoted. The petitioner contends that the doctors only having MBBS degree have been granted promotion whereas the petitioner having a post graduate degree of MD in medicine and diploma in child health, has been deprived and this fact was represented by other post graduate doctors before the concerned authorities. The petitioner also contends that the petitioner was senior to the respondent nos. 3, 4 & 5 and considering the seniority of the petitioner as well as his qualification vis-a-vis respondent nos. 3, 4 & 5, it was the bounden duty of the management of the company to promote the petitioner to E 7 grade. The petitioner further states that the Annual Performance Report of 2012 was tampered with by the respondent nos. 4 and 6 and after such tampering the petitioner was given low marks which was used as a tool by the management to deprive the petitioner of being promoted. The petitioner further submits that he was promoted to E 6 grade w.e.f. 01.04.2008 and had worked with due diligence, honesty and integrity in his promoted post and the respondent – management cannot now question the professional efficiency of the petitioner and the interview held for promotion from E 6 to E 7 grade was not for assessing the proficiency of the candidate, but for assessment of the capability to assume higher managerial responsibilities. Submission has been advanced that the petitioner was senior to respondent nos. 3, 4 & 5 on the day he joined the respondent – company on 12.11.1990 in E 3 grade not only because of higher educational qualification, but also because of the past services rendered by the petitioner since 1985 in E 2 grade in Coal India Ltd. It has thus been submitted by the petitioner that the entire facets of the case would go to show that the petitioner was eligible, competent and had all the requisite qualification to be promoted to E 7 grade; whereas respondent nos. 3, 4 & 5 did not have the basic eligibility criteria, but they were promoted, whereas the petitioner continued to linger in E 6 grade. 5. Mr. M. S. Mittal, learned senior counsel appearing for the respondent nos. 1 & 2 has submitted that the petitioner had joined on 12.11.1990 in the E 3 grade. It has been accepted by him that the respondent nos. 3 and 4 were promoted on 30.06.2012 whereas respondent no. 5 was promoted on 06.07.2013. Learned senior counsel submits that representations were submitted by the petitioner for redressal of his grievance with respect to the promotion granted to respondent nos. 3, 4 & 5 and his non-promotion which was however rejected, but the said order of rejection has never been challenged by the writ petitioner. It has been submitted that in 2008, the respondent nos. 3 & 4 were promoted to E 6 grade along with the petitioner, but the petitioner never raised any grievance with respect to the eligibility of the respondent nos. 3 & 4 and only when the petitioner failed to get promotion in E 7 grade insinuations have been cast upon the management of not following the promotion policy and not considering the eligibility and past experience of the petitioner. It has been submitted that in the Departmental Promotion Committee, the Chairman cum Managing Director was present and therefore, it cannot be said that the promotion rules were violated while relaxing the eligibility criteria of respondent nos. 3, 4 & 5. Submissions have also been advanced that the respondent nos. 3 & 4 had crossed the efficiency bar in the year 2008 itself as they were promoted from E 5 to E 6 grade. Learned senior counsel further states that the petitioner was given 'C' in the CCR gradings. Submissions have also been advanced that in the Departmental Promotion Committee in the year 2013 , the Committee apart from other officials also included the CMD and respondent no. 5 based on his performance and recommendation of the DPC was also considered for promotion from E 6 to E 7 grade along with the others. Submissions have also been advanced that in the Departmental Promotion Committee in the year 2013 , the Committee apart from other officials also included the CMD and respondent no. 5 based on his performance and recommendation of the DPC was also considered for promotion from E 6 to E 7 grade along with the others. It has been submitted that relaxing of eligibility criteria in respect of qualification was furnished by the management to the petitioner vide letter dated 20.02.2013 from which it appears that in the year 2012 from E 6 to E 7 grade in the medical discipline, the eligibility of 2 candidates were relaxed. Learned senior counsel has also drawn the attention of the court to Clause 4.6.1 which gives weightage to various factors including qualification, interview, appraisal report of previous 3 years and length of service while assessing the eligible candidate considered for promotion from E 6 to E 7 post. Learned senior counsel further submits that the promotion policy gives discretion to the CMD to relax the eligibility conditions in exceptional cases for reasons to be recorded. The recommendations made by the Departmental Promotion Committee with respect to the promotion of respondent nos. 3, 4 & 5 from E 6 to E 7 grade had been approved by the CMD and this would mean sufficient compliance of the provisions of the promotion policy. It has been submitted that the promotions granted to respondent nos. 3, 4 & 5 are in consonance with the service rules and promotion policy of MECON. So far as the non-promotion of the petitioner is concerned, it has been submitted that though the petitioner possesses the requisite academic qualification for promotion from E 6 to E 7 grade, but the confidential report was not as per the requirement and accordingly his name was not recommended by the DPC. The Annual Performance Report of all the employees were prepared as per the procedure and APR of the petitioner was prepared in 2012 in terms of the procedure and norms and it is totally baseless to allege that there is interpolation and changes made in the APR of 2012. The Annual Performance Report of all the employees were prepared as per the procedure and APR of the petitioner was prepared in 2012 in terms of the procedure and norms and it is totally baseless to allege that there is interpolation and changes made in the APR of 2012. Learned senior counsel has submitted that the petitioner was given an opportunity to attend the interview as given to similarly situated persons, but since the petitioner did not achieve the cut off marks required for promotion to the next higher scale, his case was not recommended for such promotion. 6. Mrs. Shila Prasad, learned counsel appearing for the respondent nos. 3, 4 & 5 has while supporting the stand taken by the learned senior counsel for the respondent nos. 1 and 2 has added that based on the promotions made in 2012 and 2013 of respondent nos. 3, 4 & 5, a right has been acquired by those respondents on the post by virtue of such promotion. It has been submitted that right of promotion is a right of consideration and the representation/review made by the petitioner has duly been considered by the authorities and having found no basis, the same has become rejected. It has also been submitted that it is not the case of the petitioner that he was not considered eligible for being promoted to E 7 grade, rather the petitioner was kept in the zone of consideration because of his CCR as well as the marks obtained by him in the interview and since the total marks were less than the cut off marks, the DPC did not think it fit to recommend the petitioner for promotion to E 7 grade. 7. Replying to the contentions advanced on behalf of the respondents, the petitioner has submitted that whatever allegations have been levelled against the petitioner in the various affidavits filed by the respondents are not substantiated by any reason. It is submitted that even though the petitioner was senior most and was more qualified than the others, but not giving charge of the main hospital to the petitioner virtually amounts to demotion of the petitioner. It has been submitted that the respondent nos. 3, 4 & 5 were less qualified than the petitioner and since their qualification did not entail them to come within the zone of consideration, the promotion granted to respondent nos. It has been submitted that the respondent nos. 3, 4 & 5 were less qualified than the petitioner and since their qualification did not entail them to come within the zone of consideration, the promotion granted to respondent nos. 3, 4 & 5 at the cost of the petitioner is an arbitrary and illegal action on the part of the respondent – management which is liable to be set aside. 8. The entire grievance of the petitioner relates to his own promotion to E 7 grade vis-a-vis respondent nos. 3, 4 & 5 who were granted such promotion while the case of the petitioner was considered, but having not found him eligible to be promoted from E 6 grade to E 7 grade, the promotion to the petitioner was not granted by the respondent nos. 1 and 2. The Departmental Promotion Committee which consisted of CMD did not recommend the petitioner for promotion from E 6 grade to E 7 grade as he did not achieve cut off marks required for such promotion. One of the main thrust of the argument advanced by the petitioner is that as per the promotion policy, in the promotion of the executives if the requisites qualification is not attained by a candidate it can be relaxed in exceptional circumstances only by the Chairman-cum-Managing Director. In the Departmental Promotion Committee meeting the CMD was a party to consideration of such promotion and the Committee including the CMD was aware of the qualification of each of the candidates being considered for promotion and the criteria/eligibility required by the candidates to be fulfilled for such consideration. It is not the case of the petitioner that the CMD was not a member of the DPC and the promotion order was issued without his consent or without his approval. The CMD as has been stated above was one of the committee members and being aware of the eligibility criteria as well as the norms and procedures required for being considered for promotion of each of the candidates recommendation was made for promotion of respondent nos. 3, 4 & 5 from E 6 grade to E 7 grade. In such circumstances, therefore, it can be deduced that the promotion of respondent nos. 3, 4 & 5 had the approval of the CMD and therefore, the grant of promotion to the respondent nos. 3, 4 & 5 from E 6 grade to E 7 grade. In such circumstances, therefore, it can be deduced that the promotion of respondent nos. 3, 4 & 5 had the approval of the CMD and therefore, the grant of promotion to the respondent nos. 3, 4 & 5 cannot be said to be arbitrary or inconsistent with the promotion policy. Moreover, the respondent nos. 3, 4 & 5 were promoted to E 6 grade in the year 2008 along with the petitioner and the petitioner had never raised any grievance with respect to the non-entitlement or ineligibility of the respondent nos. 3 & 4 on being promoted to E 6 grade. The disputes seems to have been raised only on account of non-promotion of the petitioner to E 7 grade while promoting respondent nos. 3 & 4 to E 7 grade. The petitioner had brought to the notice of the authorities with respect to his alleged claim that respondent nos. 3, 4 & 5 were promoted to E 7 grade without having requisites eligibility criteria, but the same was rejected by the management which was never challenged by the petitioner and is also not under challenge in the present writ application. 9. Clause 4.6 of the Promotion Policy for executives deals with promotion from E 6 grade to E 7 grade and the factors on the basis of which marks are given has been enumerated at Clause 4.6.1 and which are quoted hereinunder: 4.6 PROMOTION FROM E-6 TO E-7 GRADE 4.6.1 The Departmental Promotion Committee will assess the eligible candidates on the basis of the following factors: Factor Weightage a) Appraisal Reports (previous 3 years) 10 points b) Length of Service/Experience in the grade 15 points c) Qualification 30 points d) Interview 30 points 10. Therefore, for a candidate to be promoted from E 6 to E 7 grade points are demarcated on the basis of appraisal report of the previous 3 years, length of service, qualification and interview. The annual performance report of the petitioner his qualification and his length of service were taken into consideration by the Departmental Promotion Committee along with those of respondent nos. 3, 4 & 5, but since the total marks obtained by the petitioner was less than the cut off marks, recommendation was not made by the DPC for his promotion from E 6 to E 7 grade. 3, 4 & 5, but since the total marks obtained by the petitioner was less than the cut off marks, recommendation was not made by the DPC for his promotion from E 6 to E 7 grade. Various allegations have been levelled at this late hour with respect to interpolation in the annual performance report of the year 2012, but nothing has been substantiated by the petitioner to suggest that there has been an interpolation in the said report. 11. It is a settled principle of law that promotion cannot be claimed as a matter of right and at best a person can claim for consideration of his case for promotion. The petitioner as has been repeatedly stressed above, had been considered for promotion and having not found him fit to be promoted from E 6 to E 7 grade, no recommendation was made for such promotion. 12. In the case of “Union of India and another Vs. S. K. Goel and others” reported in 2007 (3) JLJR 124 (SC), it was held as follows: 26 “In our opinion, the judgment of the Tribunal does not call for any interference inasmuch as it followed the well settled dictum of service jurisprudence that there will ordinarily be no interference by the courts of law in the proceedings and recommendations of the DPC unless such DPC meetings are held illegally or in gross violation of the rules or there is mis-grading of confidential reports. In the present case, the DPC had made an overall assessment of all the relevant confidential reports of the eligible officers who were being considered. The DPC considered the remarks of the reviewing officers. There was clear application of mind. Respondent no. 1 did fulfill the benchmark. Hence, the impugned direction of the High Court ought not to have been issued as the same will have the impact of causing utter confusion and chaos in the cadre of the Indian Revenue Service, Customs and Central Excise Service.” 13. The petitioner has referred to the case of “K. S. Mathew and others Vs. Government of NCT, Delhi and others” in CWP No. 7276 of 1999 wherein, wherein it was held as follows: 18. “We have heard learned counsel for the parties at length and carefully examined the judgments cited at the bar. The petitioner has referred to the case of “K. S. Mathew and others Vs. Government of NCT, Delhi and others” in CWP No. 7276 of 1999 wherein, wherein it was held as follows: 18. “We have heard learned counsel for the parties at length and carefully examined the judgments cited at the bar. We are of the considered view that there is no doubt that the respondent Government possessed the power of relaxation. There is also no quarrel with the proposition that the power of relaxation could be exercised in appropriate cases. According to our conclusion in the facts and circumstances of the present case, the respondent Government of N.C.T. of Delhi was not justified in relaxing the basic qualifications laid down in the recruitment rules, particularly, when qualified candidates were admittedly available. The power of relaxation in the rules cannot be construed to mean that the respondent Government can ignore the legitimate claims of the qualified candidates and relax the conditions in case of unqualified persons. In case, the respondent Government is permitted to relax the power in such manner, then it would be contrary to the settled principles of law crystallized by their Lordships of the Supreme Court in a large number of cases which have been mentioned in the preceding paragraphs.” 14. In the case of “H. M. Singh Vs. Union of India and another” in Civil Appeal No. 192 of 2014, it was held as follows: 22. “The question that arises for consideration is, whether the non-consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition, that the respondents were desirous of filling the vacancy of Lieutenant General, when it became available on 1.1.2007. The factual position depicted in the counter affidavit reveals, that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. In the above view of the matter, if the appellant was the senior most serving Major General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India......................." 15. As has been discussed above, since the petitioner failed to fulfill the requisite criteria in order to come within the zone of consideration for being recommended for promotion from E 6 to E 7 grade and nothing has been put forward to conclude otherwise, I am of the considered opinion that the petitioner had failed to make out a case for a direction upon the respondent nos. 1 and 2 to reconsider his claim for promotion. Similarly the promotion of respondent nos. 3, 4 & 5 to E 7 grade cannot be interfered with in view of the discussions made above and in such circumstances, the entire claim of the petitioner fails and accordingly, the writ application being devoid of any merit is hereby dismissed.