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2017 DIGILAW 916 (ORI)

Prafulla Kumar Patra v. Coal India Ltd.

2017-08-21

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. Heard learned Senior Counsel for the petitioners as well as learned counsel for the opposite parties no.1 to 5. The opposite party No.5, who is the private contesting opposite party has been representing by the same counsel, who is appearing for the opposite parties no.1 to 4. However, a separate Vakalatnama has been filed on his behalf. Learned counsel has urged the same ground, which he has taken with respect to the opposite parties no.1 to 4 and on the basis of argument advanced by the parties, the writ petition is being disposed of. 2. This writ petition has been filed inter alia with the following prayers:- (a) as to why they shall not be declared as senior from their junior i.e., from Opposite Party No.5 and accordingly promotion may be given from the date of promotion of their junior with all the financial benefits attached to the post of Personal Manager (E-5) with effect from 22.03.2001; (b) as to why the seniority list so far the same relates to the Petitioners and the Opposite Party No.5 vide Annexure-3 shall not be quashed; and (c) to pass such other order or orders as this Hon’ble Court deem just and proper; And on their failure to show cause or on showing insufficient cause, your Lordships shall graciously be pleased to make the said RULE absolute by issuance of a writ of MANDAMUS or any other appropriate writ or writs, order or orders, direction or directions, as this Hon’ble Court deem just and proper in the facts and circumstances of the case. 3. The contention raised by the petitioners is that they have joined their services to the post of Welfare Officer Trainee on 8.5.1987 and 7.5.1987 respectively. The opposite party no.5 was appointed on the said post on 21.5.1987. All of them have been promoted to the E-2 level after being eligible on different dates, i.e., 8.5.1989 and 7.5.1989, so far as petitioners are concerned and on 21.5.1989, so far as opposite party no.5 is concerned. They have been also promoted to E-3 level on 31.3.1993. The opposite party no.5 was appointed on the said post on 21.5.1987. All of them have been promoted to the E-2 level after being eligible on different dates, i.e., 8.5.1989 and 7.5.1989, so far as petitioners are concerned and on 21.5.1989, so far as opposite party no.5 is concerned. They have been also promoted to E-3 level on 31.3.1993. The opposite party-Mahanadi Coalfields Limited has constituted a committee in the name of I.B. Pande Committee to decide the parameter to fix inter se seniority in between the executive and non-executive grade wherein the following decisions have been taken by the committee:- “It was clarified that in the event of a tie between two groups of candidates belonging to different subsidiary companies from one executive grade to another or from non-executive grade to executive grade as the case may be, the tie should be broken in terms of following criteria so as to avoid disturbance in the subsidiaries earlier seniority list. The executive whose deem date of promotion in the next below grade including non-executive grade from which he has been promoted to executive cadre is earlier than the corresponding deemed date of an executive of another company, he will be senior to the executive of other company. But he will continue to the junior to the executive of the same company who were senior to him before the merger. In the event of further tie, the date of birth will be the determining factor, i.e. the executive whose dates of birth is earlier will rank senior to other executive whose date of birth if of later date. Thereafter the seniority of WOT of 1985, 1986, 1987 and 1988 batch was fixed in E-2 grade.” 4. According to the learned Senior Counsel for the petitioners, the policy decision has been taken by the I.B. Pande Committee, which has been adopted by the competent authority of the Coal India Limited for fixing the inter se seniority, in case of the candidates, who have been promoted on the same date for such category of employees, the parameter has been fixed to fix the seniority on the basis of their position in the seniority list in the previous grade. 5. 5. According to the petitioners, since they have been promoted to E-2 grade on 8.5.1989 and 7.5.1989 respectively, so far as it relates to the petitioners are concerned while the opposite party no.5 was promoted in E-2 grade on 21.5.1989 and they all promoted to E-3 grade on 31.3.1993. Hence, taking into consideration their seniority position in E-2 grade, the petitioners ought to have been placed above the opposite party No.5, then it can only be said to be in consonance with the recommendation of the I.B. Pande Committee Report, which has been accepted by the Coal India Limited of which the Mahanadi Coalfield Limited is one of the subsidiary unit. 6. According to the petitioners, the seniority list has been prepared on 1.4.1995 of E-3 grade, but very surprisingly, the competent authority has placed the petitioners below the opposite party no.5. The global seniority list as per its circulation vide letter dated 7.5.1999 showing the provisional seniority list of executives from E-1 to E-5 grades of the employees in all disciplines wherein the petitioners position in the seniority list has been reflected above than the opposite party no.5, which was as per the recommendation of the I.B. Pandey Committee Report, but that has not been given effect to. According to the learned Senior Counsel appearing for the petitioners, the same was on the basis of an order passed by the Hon’ble Calcutta High Court in Writ Petition No.2066 of 1997 wherein the Hon’ble Calcutta High Court has been pleased to pass an order asking the respondents to go by the seniority list published on 1.4.1995 and thereby their position in the seniority list as has been reflected in the provisional list dated 1.3.1999 has not been given effect to. 7. According to the learned Senior Counsel appearing for the petitioners, the opposite party ought to have taken into consideration the recommendation of the I.B. Pandey Committee Report, since the order of the Hon’ble Calcutta High Court is binding upon the parties to the proceedings only therein the petitioner or the opposite party were not the party. He further submits that the Hon’ble Calcutta High Court has only directed the authorities to go by the seniority list published on 1.4.1995, which has not been done. The petitioners will be treated to be in the disadvantageous position which is contrary to the recommendation of the I.B. Pandey Committee Report. He further submits that the Hon’ble Calcutta High Court has only directed the authorities to go by the seniority list published on 1.4.1995, which has not been done. The petitioners will be treated to be in the disadvantageous position which is contrary to the recommendation of the I.B. Pandey Committee Report. He further submits that even the Hon’ble Calcutta High Court has approved the I.B. Pandey Committee Report. 8. On the other hand, learned counsel appearing for the opposite party-Mahanadi Coalfield Limited, has submitted that whatever has been done by the opposite parties that is in compliance with the order passed by the Hon’ble Calcutta High Court. He further submits that since the Hon’ble Calcutta High Court has directed to follow the seniority list as published on 1.4.1995 wherein the position of the petitioners is below in comparison to the position of opposite party no.5 and as such, that has been followed for the purpose of granting promotion to the higher grade, i.e., E-4 and E-5. He further submits that the said view has been taken by the Management of the Mahanadi Coalfield Limited on the basis of B.N. Jha Committee Report. 9. In response, the learned Senior Counsel appearing for the petitioners, has submitted that the B.N. Jha Committee Report has been disapproved by the Hon’ble Calcutta High Court being without jurisdiction and as such, the same cannot be given any reliance. 10. This Court has heard the learned counsel for the parties and perused the documents available on record. 11. The core issue evolved in this case is regarding fixing of inter se seniority in between the petitioners vis-à-vis opposite party no.5. 12. The dispute of inter se seniority has arisen at the grade of E-3. Admittedly, both the petitioners have been granted promotion as E-2 prior to the promotion of opposite party no.5 and as such, they have been placed above than the opposite party no.5 and accordingly, the seniority list has been prepared showing the petitioners above than the opposite party no.5. 13. Admittedly, both the petitioners have been granted promotion as E-2 prior to the promotion of opposite party no.5 and as such, they have been placed above than the opposite party no.5 and accordingly, the seniority list has been prepared showing the petitioners above than the opposite party no.5. 13. The opposite parties, in order to avoid any confusion in determination of inter se seniority in a case where the promotion is being granted on the same date, the policy decision has been taken by adopting the recommendation of the I.B. Pandey Committee Report wherein the committee has recommended that in case of tie of date of promotion, the date of promotion to the previous grade would be taken into consideration. 14. In that view of the matter, since the petitioners have been granted promotion prior to the opposite party no.5 and since they have been granted promotion in E-3 grade on the same date, i.e., 31.3.1993 and as such, on the basis of their position in the seniority list in the cadre E-2 grade, their seniority ought to have been fixed. The petitioners subsequently have been shown to be lower in the seniority list as was prepared on 1.4.1995. However, a provisional list was prepared when the petitioners as well as opposite party no.5 have been granted promotion in the E-3 grade showing the petitioners above than the opposite party no.5, but the seniority list dated 1.4.1995 has been assailed by one of the opposite parties, Smt. Sunita Mehta before the Hon’ble Calcutta High Court in Writ Petition No. 2066 of 1997 wherein the Hon’ble Calcutta High Court, after hearing the learned counsel for the parties, have been pleased to pass the following order:- “In the result, the writ application is allowed and the respondents are directed to maintain the seniority of the candidates based upon the integrated seniority list published as on 1.4.1995 with respect to the promotions from E-3 grade to E-4 grade in the Personnel Administration (Discipline).” 15. The copy of the order passed by the Hon’ble Calcutta High Court has been placed before this Court for its perusal. The copy of the order passed by the Hon’ble Calcutta High Court has been placed before this Court for its perusal. It is evident that the Hon’ble Calcutta High Court has passed the order by deprecating the stand of the management wherein the reliance has been put upon the recommendation of the B.N. Jha Committee by holding therein that the B.N. Jha Committee has got no jurisdiction to decide the inter se seniority, since it was not placed before the competent authority for its approval or it has not duly approved by the Board of Coal India Limited. The order of the Hon’ble Calcutta High Court further reflects that the recommendation given by the I.B. Pandey Committee Report has been treated to be valid one. The Hon’ble Calcutta High Court, taking into consideration the recommendation of the I.B. Pandey Committee Report, has directed to the competent authority to finalize the seniority list in the light of the recommendation therein, so far as it relates to the parties to that writ petition, i.e., Smt. Sunita Mehta and opposite parties no.5 to 11 of the said writ petition. The order passed by the Hon’ble Calcutta High Court has subsequently been affirmed under its appellate jurisdiction. 16. The ground taken by the learned counsel appearing for opposite party-Mahanadi Coalfield Limited is that since the issue has already been decided by the Hon’ble Calcutta High Court wherein the seniority list dated 1.4.1995 has been said to be correct one and direction has been issued to the authorities to proceed for consideration or promotion to one of the other candidates in the light of the list published on 1.4.1995, hence there cannot be any rectification in the said list and due to that reason, the position of the petitioners, even though it is contrary to the I.B. Pandey Committee Report, is not appropriate to be rectified. 17. This contention of the learned counsel appearing for the opposite party-Mahanadi Coalfields Limited is not worth to be acceptable for the reason that the Hon’ble Calcutta High Court has not passed a general order and that cannot be for the reason that in the service matter, each and every public servant is concerned with their own service carrier and unless they would be party to the proceeding, the said order would not be binding upon him. 18. 18. Moreover, the issue before the Hon’ble Calcutta High Court was to fix inter se seniority in between the petitioners and the private opposite parties therein and as such, that cannot be given general application. It is not in dispute, even not disputed by the learned counsel appearing for the opposite party-Mahanadi Coalfields Limited that the list is to be prepared on the basis of the I.B. Pandey Committee Report. He is also not disputing the fact that on the basis of the I.B. Pandey Committee Report, the position of the petitioners should have been above than the position of the opposite party no.5. 19. In that view of the matter, the case of the petitioners needs to be fresh consideration by the authorities, which is to be considered in the light of the recommendation of the I.B. Pandey Committee Report and as such, the matter is remitted to the authorities to pass fresh order in the light of discussion made hereinabove within three weeks from the date of receipt of this order. 20. It goes saying that the consequential service benefits including the promotion will depend upon the final decision to be taken by the authorities, as has been directed above. Accordingly, the writ petition is disposed of.