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Jharkhand High Court · body

2018 DIGILAW 254 (JHR)

Hitesh Varma v. Coal India Ltd. , Kolkata

2018-01-31

S.N.PATHAK

body2018
JUDGMENT : The petitioner has approached this Court with a direction upon the respondents with the following prayers:- I. To correct the promotion order dated 14.08.2015 (Annexure-5) making it effective from 14.08.2007 and to correct the seniority of the petitioner with all consequential benefits. II. To restrain the respondent from holding the Departmental Promotion Committee for promotion from E6 to E7, without correcting the seniority position of the petitioner or alternatively and without prejudice to keep one promotional post vacant. 1. The short facts lying in narrow compass is that the petitioner joined Coal India Ltd. (in short CIL) on 29.06.1992 as Junior Executive Trainee (Commercial) following the due process of recruitment. The services of the petitioner was confirmed in the Officers Grade E-2 after completion of probation period of one year w.e.f. 29.06.1993, which is known as the deemed date of promotion to E-2 Grade. Thereafter, the petitioner was promoted to E-3 Grade from E-2 Grade under cluster concept of promotion w.e.f. 31.01.1997 (though entitled from 29.06.1996) upon completion of three years of services. Thereafter, he was again promoted from E-3 to E-4 Grade w.e.f. 05.02.2004. The next promotion due for the petitioner's batch under cluster concept of promotion from E-4 to E-5 Grade is to be granted after completion of three years of service in E-4 Grade. Thereafter, E1 Grade got abolished leading to re designation of gradings. The Grade E1 became E2, E2 became E3, E3 became E4, E4 renamed as E5 and E5 renamed as E6 Grade. It is further the case of the petitioner that global seniority list of Sales and Marketing Discipline as on 22.11.2006 shows that the seniority of petitioner was just below Sri Dhanajay Kumar (EIS No.90076647) and above Sri Pradeep kumar Mishra (EIS No. 90076357). This position was just before the 28th Phase Cluster DPC (old E4 to E5/E5 to E6) held in the year, 2007 for considering the promotion of petitioner's batch mates and juniros from old E4 to E5/E5 to E6. Thus, the petitioner's seniority is much higher than the seniority being given to him presently under the time bound cluster concept of promotion. The higher seniority of the petitioner is on records since the time of his joining of the company on 29.06.1992. 2. Thus, the petitioner's seniority is much higher than the seniority being given to him presently under the time bound cluster concept of promotion. The higher seniority of the petitioner is on records since the time of his joining of the company on 29.06.1992. 2. The promotion of the petitioner under the 28th Phase Cluster DPC (old E4 to E5/E5 to E6 grade) had been kept withheld in 2007 due to pending of criminal case of personal nature while his batch mates and juniors had been promoted from old E4 to E5/E5 to E6 grade w.e.f 14.08.2007 wherein, the name of the petitioner does not figure in the promotion order. There was criminal case, Doranda (Argora) P.S. Case No. 329 of 2004 dated 15.10.2004 alleging offences under Sections 302, 498 A, 34 of the IPC lodged against the petitioner but he is now discharged in the said criminal case vide order dated 10.02.2015 passed in Criminal Revision No. 879 of 2011 passed by this Hon'ble Court. The petitioner was also exonerated in departmental proceeding, which was also made subject to outcome of the criminal case. When the petitioner was not given the promotion and the batch mates and juniors have been promoted, the petitioner moved before this Hon'ble Court by filing a writ petition bearing No. 3718 of 2014, which was disposed of vide order dated 22.04.2015 with a direction upon the respondent No. 7, Chairman-cum-Managing Director, Central Coalfields Ltd. to consider the case of the petitioner for promotion, as prayed for by him, in accordance with law and if necessary, by placing the matter before the Departmental Promotion Committee, within a reasonable time, preferably within a period of twelve weeks from the date of receipt of a copy of this order. Pursuant thereto, the 'faulty' promotion order dated 14.08.2015 was passed by the respondents bearing order No. CIL/C-5A (CC)/Prom.E5-E6/S&M/100 issued by the General Manager (Personnel), Coal India ltd. upon approval of the competent authority. On perusal of the aforesaid promotion order, it is evident that the promotion of the petitioner from E5 grade to E6 has been effected as recommended in the DPC (Board IV) under the 32nd Phase Cluster (old E4 to E5/E5 to E6). 3. upon approval of the competent authority. On perusal of the aforesaid promotion order, it is evident that the promotion of the petitioner from E5 grade to E6 has been effected as recommended in the DPC (Board IV) under the 32nd Phase Cluster (old E4 to E5/E5 to E6). 3. It is further the case of the petitioner that notional seniority and notional fixation of salary with effect from 30.09.2009 has been allowed to the petitioner and he has been placed at seniority just below Sri Chandra Bhushan Singh (EIS No. 90119868) and above Sri R. Ganapati Bhat (EIS No.90161670) in the E6 Seniority List of Sales and Marketing Discipline. Pursuant to the promotion order dated 14.08.2015, the petitioner immediately raised objection by making representation on 28.08.20105 before the competent authority for suitable amendment of the same. The petitioner again represented before the respondents requesting therein that either his Executive Evaluation Report (EER in short) for the years 2004-05 and 2005-06 should be arranged to be signed by the Director as per the provisions/rules or alternatively, the average rating of the previous three years rating (2003-04, 2002-03 & 2001-02), as per the rules of the company, should be allowed to be considered for allowing his promotion w.e.f 14.08.2007 with full payment of salary and other emoluments. It is stated that the average marks in case of the petitioner by taking the ratings given to him during the year 2003-04, 2002-03 and 2001-02 comes to 'Very Good' which is sufficient for allowing restoration of his seniority by way of amendment of his promotion order dated 14.08.2015. But case of the petitioner has been ignored and despite several representations, including those of dated 28.08.2015, 01.09.2015, 01.10.2015, 28.04.2016, 21.07.2016 and 04.03.2017, no response has been given by the respondents. Meanwhile, the provisional seniority list based on online Executive Information System as on 01.03.2017 has been published on the Coal-internet from which it appears that no correction has been made in case of the petitioner and he has been placed at Sl. No. 38 whereas, he ought to have been placed at Sl. No. 17 and a notice inviting objection from the aggrieved persons to the said provisional seniority list was also published. No. 38 whereas, he ought to have been placed at Sl. No. 17 and a notice inviting objection from the aggrieved persons to the said provisional seniority list was also published. Pursuant thereto, the petitioner requested before all the concerned respondents by way of representation dated 27.03.2017 for making suitable correction in the promotion order dated 14.08.2015 as also for allowing the consequential benefits. It is further the case of the petitioner that without making correction and without disposing of petitioner's objection and without issuing final seniority list for Grade E6 (new), the DPC (Board III) for considering the eligible Executives under various disciplines as on 30.9.2013 for promotion from E6 grade to E7 grade for available vacancies (which means that seniority position matters) was scheduled to be held on 06.04.2017 vide notice dated 25.03.2017. Aggrieved thereof, the petitioner has been constrained to knock the door of this Court for redressal of his grievances. 4. Mr. Rajiv Ranjan, Sr. Advocate assisted by Mr. Pandey Neeraj Rai, learned counsel appearing on behalf of the petitioner, submits that holding the meeting of the Departmental Promotion Committee without taking any decision on the objection raised by the petitioner to the provisional seniority list is arbitrary and whimsical in nature. Learned Sr. counsel further argues that the petitioner is suffering from substantial injuries and civil consequences by being deprived of his due monetary entitlement as well as status corresponding to the promotion. This action of the respondents has caused infringement of fundamental right of the petitioner as guaranteed under under Articles 14, 19 (1) (g), 21 and also violative of Article 300 A of the Constitution of India. Learned Sr. counsel further argues that upon exoneration from the criminal charges as well as departmental proceeding, the seniority of the executive has to be restored and if his juniors & batch-mates have been promoted during the intervening period, the concerned executive has also to be granted promotion from the date of his juniors promotion. 5. Learned Sr. counsel for the petitioner further argues that there has been no attempt on part of the petitioner to hide anything, rather he has always co-operated with the process of law and abided by the rules of the company. Moreover, he has already been exonerated of all charges in the criminal case and in the departmental proceeding case arising out of the criminal case. Moreover, he has already been exonerated of all charges in the criminal case and in the departmental proceeding case arising out of the criminal case. The petitioner was granted promotion with notional seniority from 14.08.2009 instead of 14.08.2007 without taking into the consideration the fact that he has been exonerated in criminal cases as also in the departmental proceeding and juniors/batch-mates of the petitioner have been granted promotion w.e.f. 04.08.2007. In such circumstances and in view two office Memorandums dated 07.02.1986 and 19/27.06.1979, learned Sr. counsel submits that seniority of the petitioner needs to be restored and regular promotion be granted w.e.f. 14.08.2007 with all consequential benefits including arrears of salary and perks etc. 6. On the other hand, counter-affidavit has been filed. Mr. Amit Kumar Das, learned counsel appearing on behalf of the respondents vehemently opposes the contentions of the learned counsel for the petitioner and submits that order dated 28.04.2015 was served upon the petitioner and promotion order dated 14.08.2015 was passed. There is no illegality in the said promotion order and the allegation that same is faulty and not correct. Learned counsel further argues that since exnoration by DA was of conditional nature, it could not be considered at par with the 'complete exoneration' as per CDA Rules and as such, no promotion was given on the basis of such order of exoneration. Learned counsel further argues that after acquittal and Hon'ble Court's order, the petitioner became eligible for consideration for promotion from E4 grade to E5 (old) grade in 28th Cluster DPC held on 21.07.2007 but his case was 'Not Considered-NC' due to non availability of the EER rating of all 3 years that were considered i.e. 2004-05, 2005-06, 2006-07. In the folder, following Remarks are mentioned against his name 'Suspended due to custody w.e.f. 26.10.2004, resumed duty w.e.f. 29.10.2005'. Learned counsel also argues that in the 29th and 30th Cluster DPC his case was not recommended due to non-availability of EER for 2004-05, 2005-06 & 2005-06, 2006-07 & 2007-08 respectively and in the 32nd Cluster DPC held on 07.08.2010, the candidature of Sri Verma was placed before the DPC Board and recommended as R1 (his EER of all required three years 2006-07, 2007-08 & 2008-09 were commendable, commendable and excellent respectively but the order was not issued at that time due to pending memorandum dated 17.12.2005. Learned counsel further argues that after consideration of the Hon'ble Court's order and his acquittal from charges, the case of the petitioner was considered and he was promoted from E5 to E6 grade vide order dated 14.08.2015 on the basis of 32nd Cluster Phase held on 07.08.2010, the first DPC where he was recommended by DPC Board and justified the stands of the respondents. 7. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. From perusal of the records and going through the rejoinder, filed by the petitioner by which the Rules have been brought on record at page 20 to the rejoinder vide office Memorandum No. C-5A/50972 (Vol.-I) Pt./1334 dated 19/27 June, 1979, clause C of the said memorandum speaks that ' When an officer has been completely exonerated and he is subsequently promoted, his seniority should be fixed as if he had been promoted in accordance with the position assigned to him in the select list. Period of his eligibility for consideration for promotion to the next higher grade should be reckoned with reference to the date his immediate junior has been promoted'. 8. The Rule is very clear that in case of exoneration and subsequent promotion, the period of eligibility for consideration for promotion to the next higher grade should be recommended with reference to the date, juniors have been promoted. Admittedly, though the petitioner was considered and granted promotion to the higher grade from 2009 but it was not considered from the date his juniors were considered for promotion on 14.08.2007. As per the Rules, the respondents ought to have been considered his promotion granting him promotion with reference to the date, when juniors were promoted. The contention of the learned counsel of the respondent-CCL that as they were not in possession of the EER of the period, is not acceptable to this Court as from writ petition and counter-affidavit, it is very much clear that the petitioner (executive himself) had assess the EER of the particular year and respondents were very much in the possession of the same though belatedly after 9 long years it is received at Coal India Headquarters. Admittedly, as it was an internal communication, the respondents themselves were at fault and not the petitioner, if at all the EER was not received at CCL Headquarters within time. The petitioner has already been promoted w.e.f. 2009 whereas, as per the rules, he ought to have been considered and granted promotion from the date the immediate juniors to him were granted promotion i.e. 14.08.2007. 9. In view of the above facts and circumstances, I hereby direct the respondents to reconsider the case of the petitioner for promotion and to grant the same in view Clause C of office Memorandum No. C-5A/50972 (Vol.-I) Pt./1334 dated 19/27 June, 1979 and in view of the fact that EER was available in the office of CCL well within time. Let the suitable order be passed in accordance with law by considering the office memorandum as well as EER, within a period of six weeks from the date of receipt of a copy of this order. 10. Needless to say that if the petitioner is found entitled for the same in accordance with law, considering the office memorandum and EER, the consequential benefits shall be extended to the petitioner, within a further period of two weeks.