JANARDAN PRASAD SINGH Vs. BHARAT COKING COAL LTD

JUDGEMENT

(1.) 1. In this writ application the petitioner has prayed for quashing the order dated 18/28.12.91, by which the representation of the petitioner has been rejected. A further prayer has been made for a declaration that the petitioner's seniority be counted in E -IV grade with effect from 192, the date on which junior to the petitioner, namely, respondent No. 4 was given promotion.

(2.) The petitioner is at present working as Superintending Engineer, Engineering Discipline posted at Sudamdih area under the respondent No. 1 namely, M/s. Bharat Coking Coal Ltd. The petitioner's case is that after passing the diploma examination in Mining and Mines Surveying, he was appointed in the National Coal Development Corporation on 7 -10 -66 as a short firer in Gassy Mines and was posted at Saunda Colliery. In 1968 he was transferred to Sudamdih Project and since then he has been serving there is different posts. The petitioner's further case is that in 1970 the NCDC held a test for selection in the Industrial, Engineering Department and the petitioner passed the said examination and was selected for the said Department. In 1971 he was promoted to the post of Overman. He was further promoted in Executive Grade II on 2 -5 -74, whereas, on the other hand, respondent No. 4 was appointed in 1969 and was promoted in Executive Grade II in 1975. The petitioner's case is that though the respondent No. 4 was junior to the petitioner in E -I1 grade but he was given promotion on 19 -3 -91 in E -III grade without considering the case, of the petitioner. However, on protest the petitioner was also given promotion in E -III grade on 22 -10 -81. It is stated that the case of the petitioner and respondent No. 4 was again considered and both of them were given promotion to E -III grade with effect, from 1 -7 -79. The petitioner's further case is that the respondent No. 4 managed to get promotion in E -IV grade some time in June, 83 and the case of the petitioner was considered subsequently and he was promoted in E -IV grade on 2 -8 -83. It is stated that surprisingly, the respondent No. 4 was given promotion to .E -IV grade with retrospective effect i.e. from 19 -6 -82, to which the petitioner seriously protested. The grievance of the petitioner is that the respondent No. 4 was not only given retrospective promotion from 19 -6 -82, but monetary benefits were also given to him, whereas the petitioner was not given promotion retrospectively by the respondents, which action was arbitrary. The petitioner filed several representations for giving him retrospective promotion. The petitioner also filed a writ petition being C.W.J.C. No. 2532/90(R) which was disposed of with a direction to the respondents to consider the petitioner's representation and take a decision. It is stated that the petitioner's representation for retrospective promotion was rejected by the respondents.

(3.) A counter -affidavit has been filed on behalf of the respondent No. 1. Bharat Coking Coal Ltd. stating, inter alia, that the petitioner has never been superseded by his junior and his representation was thoroughly examined and he was informed about the decision of the management. The case of the respondents is that the respondent No. 4 has been associated with Industrial Engineering Disciplinary (I.E.D.) since 18 -2 -67, whereas the petitioner is with effect from 1970. It is stated that in erstwhile National Coal Development Corporation, there was no Industrial Engineering Discipline. All Industrial Engineering activities were carried out by Technical Personnel of Mining, Electrical and Mechanical Disciplines. The I.E.D. came into existence in 1975. The respondent No. 4 applied for his change of cadre from Mining to Industrial Engineering in 1975 and after due consideration, the change of cadre was accepted by the respondent No. 1 from Mining to Industrial Engineering Discipline in E -II grade. The petitioner was working with respondent No. 4, but did not apply for change in discipline and waited till 19 -3 -81 when respondent No. 4 was promoted as senior Industrial Engineer in E -III grade with notional seniority with effect from 1 -5 -79 without financial benefit. On 26 -3 -81 the petitioner applied for promotion without applying for change in discipline only after respondent No. 4 was promoted on 19 -3 -81, The respondents' further case is that the petitioner tried for acquiring the certificate of First Class Mines Manager but failed and, therefore, taking advantage of his association with Industrial Engineering Activities asked for induction/promotion in Industrial Engineering Discipline. The respondent No. 1 considered his case and was inducted in I.E.D. with retrospective affect from 15 -3 -75 and promoted to the post of senior Industrial Engineer E -III grade with notional seniority with effect from 1 -5 -79, which was at par with the respondent No, 4. It is the specific case of the respondent No. 4 that promotion from one grade to another up to the level of E -3 is seniority -cum -merit and beyond E -3 grade is merit -cum -seniority as envisaged under paras 4 and 8 of the Company Coal Cadre framed by the Coal India, Promotion from one executive cadre to another is based upon recommendation of duly constituted Departmental Promotion Committee. It is stated that D.P.C. determines a number of eligible candidates to be considered at each time on the basis of number of vacancies available in the higher grade and recommended a panel of officers in order of merit. It is stated that in 1982 DPC was constituted for promotion of senior Industrial Engineers from E -3 grade to E -4 grade and the case of the petitioner along with others was considered. The said DPC, on the basis of qualification/experience/performance appraisal report along with service rendered in the existing grade including notional seniority granted in E -3 grade adjudge the seniority of the respondent No. 4 as outstanding and placed the petitioner at the bottom panel as his performance was not at par with the respondent No. 4 and others. In the counter -affidavit, a comparative qualification of the respondent No. 4 and the petitioner at the time of promotion from E -3 to E -4 grade has been mentioned and it is stated that in that aspect, the respondent No. 4 was more competent for promotion from E -3 to E -4 grade.