SAROJA KUMAR MISHRA Vs. COAL INDIA LIMITED

JUDGEMENT

(1.) THE petitioner, who is working as Senior Accounts Officer on his promotion to E/3 Grade in Mahanadi Coal Fields Limited, Talcher, has filed this writ petition for a direction to opposite party No.1 to consider his case for promotion to E/4 Grade retrospectively with effect from 3.8.1999, i.e., the date on which his immediate junior Sri P. K. Prasad/O.P. No.4 was promoted to the post of Deputy Finance Manager in E/4 Grade, which was notionally to be effective from 31.3.1999, with all service/financial benefits as has been given in favour of opposite party No.4.

(2.) THE case of the petitioner, in short, is that he was initially appointed as Accountant on 10.3.1986. Thereafter he was promoted to E/1 Grade on 15.7.1987. After passing I.C.W.A. Final Examination in June, 1988, he was promoted to E/2 Grade on 24.10.1988 and thereafter promoted to E/3 Grade on 31.3.1993. While working in E/3 Grade as Senior Accounts Officer, he received the letters of appreciation from the higher authorities from time to time. He got promotion from one executive grade to another on the basis of recommendation made by the duly constituted Departmental Promotion Committee. Promotion from E/3 to E/4 Grade is to be made having three years experience in the next below grade with the minimum qualification of ACA/AICWA/MBA as well as specialization in Finance CAS Accounts. Since the petitioner passed ICWA Final Examination and was promoted to E/3 Grade as on 31.3.1993 he was eligible for consideration for promotion to the next higher grade in E/4 on 31.3.1996. The criteria for promotion up to E/3 Grade are seniority -cum -merit and beyond E/3 grade is merit -cum -seniority. As per subsequent amended guidelines/executive instructions dated 29.3.1993 the Management introduced cluster concept wherein it has been provided that consideration of promotion from E/2 Grade to E/3 grade and from E/4 grade to E/5 grade shall be based on seniority -cum -merit and promotion from E/5 to E/9 grade shall be based on merit with emphasis on managerial competence. In view of the above, the promotion from E/3 to E/4 grade shall have to be based on seniority -cum -merit. As per the seniority fixed on 1.3.1999 with regard to finance and accounts discipline of E/3 grade, the name of the petitioner found place above to opposite party No.4 and as such, the petitioner was admittedly senior to opposite party No.4. But to the misfortune of the petitioner when opposite party No.4 got promotion to E/4 grade, i.e., post of Deputy Finance Manager, on 3.8.1999, name of the petitioner did not find place in the list. Immediately thereafter, the petitioner made representation to the Chairman -cum -Managing Director, MCL, Burla/opposite party No.2 to consider his case for promotion, through proper channel. Since no communication was received in spite of reminders to different authorities of the Coal India Limited, the petitioner has approached this Court in this writ petition in April, 2000, for the relief as stated above. It has also been stated by the petitioner that all along in the gradation list he was senior to opposite party No.4 and during his service career he has never been communicated with any adverse remark, rather he has received letters of appreciation time and again from his higher authorities. Opposite party No.4, who is admittedly junior to the petitioner got promotion to E/4 grade in supersession of the claim of the petitioner. Therefore, the petitioner is entitled for promotion to E/4 grade from 3.8.1999, i.e., the date of issuance of Annexure -6 and notionally from 31.03.1999.

(3.) THE petitioner, in his rejoinder to the counter affidavit filed by the opposite parties, has highlighted his career, letters of appreciation and emphatically submitted that no adverse remark has ever been communicated to him, rather his work has been commended upon. He has further submitted that till date no departmental enquiry has been made nor any vigilance case is pending against him. He has also never been issued with any charge memo by the Department with regard to initiation of disciplinary proceeding against him nor any charge sheet has ever been submitted against him in any Court of Law with regard to any vigilance enquiry. Thus, on the date, the Departmental Promotion Committee (D.P.C.) met, there was no vigilance case pending against him departmentally or before any Court of Law. As such, he is eligible to get promotion with effect from 31.3.1999, since till that date no charge sheet has been submitted by the Vigilance authority nor any charge memo has been issued/served on him with regard to initiation of any disciplinary proceeding against him as stated above. It was open for the opposite parties to proceed against the petitioner departmentally or in the vigilance case, if they are having sufficient materials against him. Since nothing has been done against him till date there is no reason for the opposite parties to stop his promotion to E/4 grade basing upon his seniority -cum -merit coupled with commendations received by him from the higher authorities. Law is well settled that initiation of the Departmental Proceeding or Criminal Proceeding starts only after a charge memo is served on the employee or a charge sheet is filed against him in the appropriate Court. At stated above, since till date no charge memo had been served on the petitioner initiating a departmental proceeding or chargesheet had been filed initiating a criminal proceeding against him, it can never be said that any proceeding is pending against him. The Departmental authorities have given promotion to one Ramesh Ch. Rath who was promoted on 1.3.1999 from E/4 to E/5 grade, against whom a criminal proceeding was pending and charge sheet had already been submitted on the C.B.I. Court, Bhubaneswar. Whereas even when no proceeding in either way was pending against the petitioner, he was being harassed by the department in not giving him promotion, in spite of consideration and recommendation of the Departmental Promotion Committee.