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2017 DIGILAW 70 (CAL)

Kajal Dutta Roy v. Anil Kumar Joshi

2017-01-12

NISHITA MHATRE, TAPABRATA CHAKRABORTY

body2017
JUDGMENT : Tapabrata Chakraborty, J. 1. As common questions of law and fact are involved in the instant appeals, the same have been heard analogously. All these appeals have been preferred challenging the judgment dated 26th September, 2014 passed by the learned Single Judge in WP 12002 (W) of 2013 deciding the issues as to whether the vacancies of the year 2010 existing in the posts of Executive in E7 grade in different disciplines under Coal India Limited (hereinafter referred to as CIL) can be filled up by the promotion policy of 2011 or as to whether the same ought to have been filled up in terms of the policy prevalent in the year 2010 and as to whether the rules relating to promotion can be altered midway. 2. By the impugned judgment the learned Single Judge has set aside and quashed the promotion policy dated 3/5th May, 2011 and has prohibited CIL from giving effect or further effect to the said promotion policy and has also directed CIL to fill up the vacancies arising in the year 2010 on the basis of the promotional policy governing the field when the vacancies arose. 3. At the inception it needs to be stated that we have not been able to ascertain the reasons for which the entire promotion policy dated 3/5th May, 2011 has been set aside though the issue for consideration was as to whether the promotion of the writ petitioners from E-6 to E-7 grade would be guided by the said promotion policy. A perusal of the judgment impugned also does not reveal that any argument was advanced to the effect that there was any infirmity in the said promotion policy. In the said conspectus, we are of the opinion that the directions to set aside the said promotion policy and to prohibit CIL from giving effect or further effect to the said promotion policy are not sustainable in law and the said directions are accordingly set aside. 4. Mr. Bhattacharyya, learned senior counsel appearing for the appellants in AST 83 of 2016 submits that pursuant to the direction of the Board of Directors of CIL in its 257th meeting held on 31st May and 1st June, 2010 at Kolkata, new guidelines were formulated for promotion of Executives from E-6 to E-7 grade. 4. Mr. Bhattacharyya, learned senior counsel appearing for the appellants in AST 83 of 2016 submits that pursuant to the direction of the Board of Directors of CIL in its 257th meeting held on 31st May and 1st June, 2010 at Kolkata, new guidelines were formulated for promotion of Executives from E-6 to E-7 grade. The eligibility and competence of the appellants was duly ascertained by the employer on the rudiments of the new promotion policy and after the appellants emerged to be successful in the said promotional process, they were awarded promotion by the memorandum dated 2nd April, 2013. Though in the writ petitions the said memorandum dated 2nd April, 2013 was under challenge, the appellants who were promoted and whose names featured in the said memorandum were not impleaded in the writ petition and orders were obtained in their absence and against them and on the said ground itself the impugned judgment needs to be set aside. 5. He further argues that formulation of a promotion policy is the prerogative of the employer and any such decision towards formulation and implementation of a promotion policy is a policy decision which should not be interfered with by the Court in exercise of its powers of judicial review. 6. Drawing the attention of this Court to a note pertaining to promotion of Executives who have completed nine years of service in E-6 grade, he argues that the writ petitioners were members of Coal Mines Officers’ Association of India (hereinafter referred to as CMOAI) and the said Association approached the employer with the demand to consider the claim for promotion through the Departmental Promotion Committee (hereinafter referred to as DPC) for promotion of Executives from E-6 to E-7 grade on the basis of the pre-revised promotion policy as formulated on 22nd December, 1992 so that all eligible Executives in E-6 grade, who have completed nine years as on 30th September, 2010 are promoted to E-7 grade. Such demand of the writ petitioners was acceded to by CIL and as such the said writ petitioners, who were purportedly stagnated for nine years, cannot turn back and claim that the vacancies pertaining to the year 2010 should also be filled up in terms of the old promotion policy. 7. Such demand of the writ petitioners was acceded to by CIL and as such the said writ petitioners, who were purportedly stagnated for nine years, cannot turn back and claim that the vacancies pertaining to the year 2010 should also be filled up in terms of the old promotion policy. 7. It would be explicit from the memorandum dated 3/5th May, 2011 that the guidelines for promotion of Executives from E-6 to E-7 grade were formulated in the Board of Director’s 257th meeting held on 31st May and 1st June, 2010 and that the cut off date for eligibility towards such promotion was fixed to be 30th September of the year and that as such, according to Mr. Bhattacharyya, the vacancies which occasioned subsequent to 30th September, 2009 would come under the purview of the new promotion policy. 8. Mr. Kar, learned senior counsel appearing for the appellants in F.M.A. 2815 of 2016 adopts the submissions of Mr. Bhattacharyya and submits that the writ petitioners participated in the process towards promotion to the post of Executive in E-7 grade without raising any objection whatsoever. Their entitlement towards promotion was tested on the rider of merit-cum-seniority in strict consonance with the new promotion policy. Having participated in the said process, the writ petitioners cannot turn back and challenge the same. The right which accrued to the appellants on the basis of promotion vide memorandum dated 2nd April, 2013 was sought to be interfered with, without impleading the appellants and that as such the judgment delivered without hearing the affected parties, is not sustainable in law. 9. He further argues that the new promotion policy was rightly applied in respect of the vacancies which occasioned after 30th September, 2009. The allegation that CIL has given retrospective effect to the new promotion policy is not sustainable in law since it was decided and disclosed that vacancies up to the year 2009 would be filled up on the basis of the pre-revised promotion guidelines (i.e. old promotion policy). In support of such contention, he has drawn the attention of this Court to the memorandum dated 27th December, 2011. 10. In support of such contention, he has drawn the attention of this Court to the memorandum dated 27th December, 2011. 10. He further submits that the fact that the vacancies pertaining to the year 2010 onwards would be filled up as per the new promotion policy was within the knowledge of the writ petitioners, as would be explicit from the memoranda dated 30th December, 2010 and 14/18th January, 2011. By the latter memorandum all Executives were advised to submit the Executive Evaluation Report (hereinafter referred to as EER) and pursuant thereto necessary records were submitted by the writ petitioners and as such the contention of the writ petitioners to the effect that screening for such promotion was conducted behind their back is not sustainable in law. 11. He further argues that the new promotion policy was adopted in the month of June, 2010, as would be explicit from the memoranda dated 18th June, 2010 and 13th July, 2010. In the latter memorandum dated 30th July, 2010 it has been categorically indicated that the promotions from E-6 up to E-9 grade shall be dependent upon positive selection by DPC on the principle of merit-cum-seniority. The writ petitioners cannot feign ignorance about the said memoranda and as members of the CMOAI they agreed to the proposal towards promotion of Executives, who were stagnating for nine years in E-6 grade, by application of the pre-revised promotion policy. It is not a fact that CIL has altered the rules in the midst of the promotion process. 12. Mr. Sengupta, learned senior counsel appearing for the writ petitioners submits that the guidelines towards the promotional policy were admittedly formulated on 3/5th May, 2011. The cut off date for eligibility was the 30th September of the concerned year. It would be explicit from the averments made in the application for stay in AST 83 of 2016 that the concerned appellants have also stated that the new promotion guidelines were formulated on 3/5th May, 2011. As such the vacancies existing on 30th September, 2010 do not come under the purview of the new promotion policy formulated on 3/5th May, 2011. The said promotion policy cannot be given retrospective effect to bring within its fold the vacancies existing on 30th September, 2010. 13. As such the vacancies existing on 30th September, 2010 do not come under the purview of the new promotion policy formulated on 3/5th May, 2011. The said promotion policy cannot be given retrospective effect to bring within its fold the vacancies existing on 30th September, 2010. 13. He further submits that the evaluation process in the new promotion policy has been drastically changed so as to frustrate the promotion of senior employees with greater experience. The difference of marks between excellent and commendable for EER of 3 years was drastically increased to 8 marks as against 6 marks in the old policy. Whereas maximum marks for experience was 19 as per the old policy, in terms of the new policy maximum marks for experience was altered to maximum 20 marks for 14 years of experience (1 mark for every year up to 8 years of service and additional 2 marks for every year beyond 8 years), thus creating lesser scope of promotion of senior executives with greater experience over their juniors. 14. He further argues that CIL has in a most illegal manner clubbed the vacancies pertaining to the years 2010, 2011 and 2012 and conducted the selection in the year 2013. The writ petitioners after attaining the requisite qualification, experience and seniority became eligible for promotion in respect of the vacancies of the year 2010 but CIL did not hold any DPC whatsoever and for such laches on the part of CIL the writ petitioners cannot suffer. The vacancies in respect of which they had a right to be considered for promotion could not have been clubbed with the vacancies of the subsequent years. The vacancies pertaining to the year of 2010 could not have been filled up by giving retrospective effect to the new promotion policy which was formulated on 3/5th May, 2011. 15. The argument to the effect that the writ petitioners participated in the selection process pertaining to promotion held in the year 2013 is also not sustainable in law inasmuch as the procedure resorted to by CIL for such promotion was by holding paper DPC and none of the writ petitioners were informed about any DPC or about any consideration of their profile. Screening took place behind the back of the writ petitioners and it was only upon publication of the order of promotion by memorandum dated 2nd April, 2013, the writ petitioners came to learn that they were considered for promotion upon giving retrospective effect to the promotion policy as formulated on 3/5th May, 2011. 16. Mr. Dutta, learned senior counsel appearing for some of the writ petitioners adopts the submissions of Mr. Sengupta and submits that the writ petitioners ought to have been considered for promotion in application of the pre-revised promotion guidelines since the vacancies pertain to the year 2010 and within the cut off date specified for the said year (30th September, 2010) the petitioners were not considered for promotion in applications of the rules prevailing at that juncture and the respondents illegally clubbed the vacancies pertaining to the years of 2010, 2011 and 2012. 17. Mr. Bose, learned senior counsel appearing for CIL submits that CIL is willing to grant promotion to all the writ petitioners, subject to DPC, as well as to the private respondents and the applicants who have preferred the application for leave to appeal from E-6 to E-7 grade. For future promotion to the E-8 grade the Executives from E-7 grade would be considered only on the basis of merit. In the event the vacancies pertaining to the year 2010 are filled up as per the pre-revised promotion policy, the writ petitioners would be securing a higher position in the seniority list compared to that of the private respondents and the applicants, who have preferred the application for leave to appeal and the position would be vice versa in the event the new promotion policy is applied. Thus the said issue needs to be decided and finalised in the present appeals. 18. He further submits that taking into consideration the various dimensions and dynamics of Coal India’s growth, the CIL Board (the highest body for policy making) at its meeting held on 31st May and 1st June 2010 decided to give more emphasis on the merit of Executives at the time of their promotion from E-6 to E-7 grade of all the disciplines and thereby a circular/guideline was issued on 3rd/5th May, 2011. However, later, on the demand of CMOAI the issue towards grant of promotion from E-6 to E-7 grades as per pre-revised promotion guidelines was deliberated upon and the Board of Directors in their 275th meeting held on 14th December, 2011 agreed to consider promotion from E-6 to E7 grade for the year 2009 on pre-revised promotion guidelines and such decision was communicated vide memorandum dated 27th December, 2011 and accordingly, the promotion orders were issued on the basis of pre-revised promotion policy. The modus operandi towards formulation of promotion policy is the prerogative of the management taking into consideration the healthy and sustained growth of the company as well the Executives’ development and career growth. When the new policy of promotion based on merit is implemented, there is likelihood that juniors may get early promotion on the basis of their performance subject to fulfilment of other paraphernalia. 19. Heard the learned counsels appearing for the respective parties and considered the materials on record. The undisputed facts are that the pre-revised promotion policy was formulated on 22nd December, 1992. Promotion to the vacancies in the post of Executives in E-7 grade existing in the year 2009 was agreed to be considered on the basis of the said pre-revised promotion policy so that all eligible Executives in the E-6 grade, who have completed 9 years of service as on 30th September, 2009 are promoted to E-7 grade. The writ petitioners though eligible for promotion in the vacancies pertaining to the year 2010 could not avail promotion as CIL did not hold any DPC in the said year. The vacancies pertaining to 2010 were clubbed with the vacancies pertaining to the years 2011 and 2012 and the DPC was held on 7th March, 2013. By the said date the new promotion policy came into effect, as would be explicit from the memorandum dated 3/5th May, 2011. The Executives in E-7 grade, who have been promoted by the memorandum dated 2nd April, 2013, are admittedly junior to the writ petitioners. 20. It is well settled that although an employee has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor. An effective and meaningful consideration is postulated thereby [See the judgment delivered in the case of S.B. Bhattacharjee vs. S.D. Majumdar & Ors., reported in AIR 2007 SC 2102 ]. An effective and meaningful consideration is postulated thereby [See the judgment delivered in the case of S.B. Bhattacharjee vs. S.D. Majumdar & Ors., reported in AIR 2007 SC 2102 ]. 21. It is also a settled proposition of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in case of a statutory authority, it is just the other way. The said authority can act only in terms of the rules prescribed and operative. Reference may be made to the decision of Asian Leather Limited and Anr. vs. Kolkata Municipal Corporation, reported in (2007) 3 CALLT 64 HC. 22. The new promotion policy came into effect in the month of June, 2011 and there was no specification in the said policy that it would be having retrospective effect. The cut off date pertaining to the vacancies of the year 2010 was 30th September, 2010. At that juncture the pre-revised promotion policy was in operation and for filling up the said vacancies CIL was bound to act only in terms of the pre-revised promotion policy. The said vacancies could not have been brought within the fold of the new promotion policy. The vacancies pertaining to the years 2010 could not have been clubbed together with the vacancies pertaining to the years 2011 and 2012. 23. The principle of “seniority-cum-merit” and “merit-cum-seniority” are conceptually different, as in the case of the former, there is greater emphasis upon seniority even though the same is not the deciding factor, while the case of the latter, merit is the deciding factor. After having put in long years of service it is the seniority and promotion which an officer looks forward to. He expects to be given his due promotion in time. It is regrettable that because of the inaction on the part of CIL the promotion pertaining to the vacancies of 2010 could not be made in time which created an imbalance in the service and ultimately it was the writ petitioners and officers similarly placed who suffered. Had the DPC been held, the same would have been in terms of the promotion policy operative on the cut-off date pertaining to the said year being 30th September, 2010. Equity regards as done, which should have been done. Had the DPC been held, the same would have been in terms of the promotion policy operative on the cut-off date pertaining to the said year being 30th September, 2010. Equity regards as done, which should have been done. As a model employer it was incumbent upon CIL to consider the writ petitioners’ claim for promotion in terms of the pre-revised promotion policy. 24. In view of the submissions that CIL is willing to grant promotion to all the writ petitioners, subject to DPC, as well as to the private respondents and the applicants who have preferred the application for leave to appeal from E-6 to E-7 grade, the equities also stand balanced among the parties. Depending on their success in the DPC the writ petitioners will naturally be senior to the appellants in E-7 grade. 25. The learned Single Judge, upon dealing with all the factual issues arrived at specific findings and we do not find any error in the judgment impugned. The impugned judgment does not suffer from any infirmity warranting interference of this Court. 26. For the reasons discussed above, all the appeals are dismissed and the judgment dated 26th September, 2014 passed by the learned Single Judge in WP 12002 (W) of 2013 is affirmed subject to the directions contained in paragraph 3 hereinabove. There shall, however, be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.