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The Industrial Disputes Act, 1947

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Calcutta High Court
S.N. Modak And Ors. vs Chairman, Coal India And Ors. on 28 April, 1993
Equivalent citations: (1994) IILLJ 1054 Cal
Author: S Chatterji
Bench: S Chatterji

ORDER

Susanta Chatterji, J.

1. The writ petitioners who are 14 in numbers have filed the present writ petition praying, inter-alia, :-

(a) a writ of and/or in the nature of mandamus commanding the respondent authorities, their men and officers/subordinates and/or servants and/ or assigns, each one of them to consider the case of the petitioners for promotion to

the post of Private Secretary as per the norms and procedure of Coal India Limited and as per representations being letters dated the June 22, 1989 (being Annexure "F" to this petition), letters dated the 5th day of June, 1990 and the June 21st, 1990 (being Annexure "G" collectively to the petition) and further commanding them to effect the promotions of the petitioners forthwith to the post of Private Secretary and to award seniority to the petitioners along with the financial benefits attached to the post of Private Secretary with effect from October 14, 1987;

(b) a writ of and/or in the nature of mandamus commanding the respondent authorities, their men and officers/subordinates and / or servants and/ or assigns, each one of them to implement the award passed by the learned Industrial Tribunal on October 30, 1987 being Annexure "C" to the petition, in true spirits and letter and further commanding them to cancel the illegal promotions given to the respondents Nos. 7 to 19 and to fix the seniority of petitioners vis-a-vis respondents according to the seniority as on January 1, 1983;

(c) a writ of and/or in the nature of certiorari directing the respondents to transmit the entire records of the case forming the basis of illegal promotions given to the respondents Nos. 7 to 19 to the posts of Senior Personal Assistants and to the post of Private Secretary to this Hon'ble Court and to certify them and on being so certified, quash the same;

(d) a writ of and /or in the nature of prohibition commanding the respondent authorities, their men and officers/ subordinates and/or servants and/or assigns, each one of them from giving effect to Circular No. CIL/C 5-A (iii)/51823/1301 dated October 10, 1990 (being Annexure "I" to the petition) and/or from invalidating the panel prepared for effecting promotion to the post of Private Secretary;

(e) appropriate writ and/or writs, order and/ or orders, direction or directions directing the respondents to pay financial benefits attached to the post of Senior Personal Assistants with effect from November 15, 1983 to the petitioners which was denied by the respondent authorities by an Office Order No. BCCL/PAV/Pro/PA/88/ 13057-157 dated September 28, 1988 (being Annexure "D" to the petition);

(f) Rule Nisi in terms of prayers (a), (b), (c), (d) and (e) above;

(g) an order of injunction do issue directing the respondent authorities each one of them and/or their servants and / or subordinates and /or men and officers and /or assigns to consider the case of petitioners for effecting promotion to the post of Private Secretary and to consider the fixation of the seniority of the petitioners vis-avis respondents Nos. 7 to 19 herein;

(h) an order of injunction do issue directing the respondent authorities, each one of them and /or their servants and/or subordinates and/or men and officers and/or assigns from restraining the respondent Nos. l to 6 from violating the decisions of Minutes of the Meeting held on June 19, 1989 (being Annexure "H" to the petition) and from giving effect to the Circular No. CIL/C/5A(iii)/51823/1301 dated October 10, 1990 (being the Annexure 'I' to the petition) and from taking any step for holding any fresh examination/test to the post of Private Secretary without awarding promotion to the petitioners and also from giving any further promotion to the respondents Nos. 7 to 19 working as Private Secretary until disposal of the writ application;

(i) ad interim order in terms of prayers (g) and (h) above;

(j) leave under Rule 12 of the Writ Rules of this Hon'ble Court to move the instant application in a representative capacity;

(k) any other order or further orders be passed as Your Lordship may deem fit and proper.

2. It is stated in detail that the petitioners Nos. 1 to 12 are working as Senior Personal Assistants attached to Bharat Coking Coal Limited, a subsidiary of Coal India Limited and the petitioners Nos. 13 and 14 are recently appointed/ promoted as Private Secretary and are working under Coal India Limited. The petitioners are in the employment of Bharat Coking Coal Limited and they were given employment on different dates between the years 1964 and 1975 in the Ministerial Cadre of the Company. The Management of Bharat Coking Coal Limited formulated a Cadre Scheme for promotion in respect of Ministerial Staff including Stenographers and Senior Stenographers by a Circular No. BCCL/PA-II31000-80 dated June 20, 1977. It is alleged that pursuant to the Circular dated June 20, 1977, a note-sheet was initiated in the year 1983 to assess the number of Senior Personal Assistants required in the whole organisation of Bharat Coking Coal Limited comprising of Head Quarters, Area Offices and other establishments of Bharat Coking Coal Limited. After due assessment, it is however, alleged, it was found that a total of 69 vacancies of Senior Personal Assistants were existing. In order to fill up these existing vacancies for the posts of Senior Personal Assistants, a Departmental Promotion Committee was constituted to consider eligibility of Senior Stenographers/Personal Assistants for promotion to the post of Senior Personal Assistants. According to the Cadre Scheme, the case of promotion of Senior Stenographers to the posts of Senior Personal Assistants had to be considered company -wise, that is, all eligible candidates working in the entire organisation were being considered for promotion to the posts of Senior Personal Assistants. A test was held and altogether 106 workmen including the petitioners and the respondents Nos. 7 to 19 appeared in the said test. As a result of the speed test and after observing other formalities for effecting promotion, the candidates who qualified in the said test, a letter dated April 20, 1983 was sent by Shri T.N Srivastava, Deputy Chief Personnel Manager to the Chief Vigilance Officer to solicit his opinion from vigilance point of view as regards 75 Senior Stenographers who were declared as having been qualified in the said speed test and found fit for promotion. The names of the petitioners also allegedly figured in the list of Shri Srivastava and the Chief Vigilance Officer and there was nothing adverse against the candidates. Instead of issuing promotion order on the basis of seniority-cum-merit consideration, the management relied on pick and choose policy resulting in the promotion to the junior candidates ignoring the legitimate and lawful claim of senior candidates. A total number of 43 candidates were promoted but from a close study of the aforesaid promotion orders as referred in the writ petition, it would be evident that the writ petitioners were superseded by their juniors. It is placed on record that when the management did not take any steps to redress the grievance of the candidates and when no promotion orders were issued in favour of the writ petitioners, the Union to which the petitioners were attached to, referred the matter to the Assistant Labour Commissioner and the Central Government, in exercise of the powers conferred under Section 10(1)(d) of the Industrial Disputes Act, referred the matter to the Central Government Industrial Tribunal at Dhanbad for adjudication. The reference was made as to "whether the action of the management of M/s: Bharat Coking Coal Limited, Koyla Bhawan, Koyla Nagar, Dhanbad in denying promotion to the post of Senior Personal Assistants to Sri Ramesh Sharma and 22 other, Senior Stenographers of M/s. BCCL is justified? If so, to what relief these workmen are entitled?"

3. The Central Government Industrial Tribunal after exhaustive examination found that the Departmental Promotion Committee was not constituted properly and the recommendations made by it were arbitrary and illegal. The procedures adopted by the Departmental Promotion Committee, refer A the panel and the promotions made from the panel should be set aside, and the management should re- consider the entire matter of promotion of Senior Stenographers to Senior Personal Assistants in accordance with the promotion policy and the Rules of the Company.

4. It is stated further that during the pendency of the case before the Industrial Tribunal, the Coal India Limited conducted a qualifying examination for effecting promotions to the post of Private Secretary from the Senior Personal Assistants who had completed three years of service as Senior Personal Assistants. The respondents Nos. 7 to 19, who were juniors to the petitioners as Senior Stenographers in terms of the seniority list published on January 1, 1983, were illegally given promotions and were allowed to appear in the said examination held on January 4, 1987 for the posts of Private Secretary. The petitioners along with the other candidates who were, though eligible and qualified but not given promotions, requested the respondent authorities to allow them to appear in the said examination, but they were deprived of the said opportunities. The allegation is that the petitioners were hot allowed to appear in the examination held on January 4, 1987. A writ

petition was moved, being C.O. NO. 425 (W) of 1987 and an interim order was obtained to the effect that the promotion, if any, given pursuant to the examination held on January 4, 1987 will abide by the result of the writ application. The writ petition was moved at the instance of Rashtriya Colliery Mazdoor Sangha. It is specifically alleged that the Industrial Tribunal had set aside the promotion to the post of Senior Personal Assistants as well as the candidates including respondents Nos. 7 to 19, and they were again promoted to the post of Private Secretaries. Respondents Nos. 7 to 19 were allegedly juniors to the petitioners in the rank of Senior Stenographers and they were promoted twice, first to the posts of Senior Personal Assistants and then to Private Secretaries. The specific case of the petitioners is that although they are qualified and eligible to the posts of Private Secretaries, they have not been allowed to appear in the examination held on January 4, 1987. The office order dated September 28, 1988 is arbitrary, illegal and unjustified in as much as it gives notional seniority to the petitioners only and they have no financial benefits. The respondent authorities ought to have given promotions to the petitioners to the posts of Private Secretary along with the financial benefits, keeping in view the seniority list of candidates in the post of Senior Stenographer as on January 1, 1983.

5. Elaborating all the aforesaid points, the petitioners have come to this Court to seek the reliefs as indicated above on the grounds that the purported Office Order No. BCCL/PAV/PRO /PA/88/13057-157 dated September 28, 1988 issued by the respondent No. 4 awarding notional promotion to the petitioners to the post of Senior Personal Assistants with effect from November 15, 1983 without giving financial benefit is patently illegal, discriminatory, arbitrary and unreasonable. The purported order of promotions to the respondents Nos. 7 to 19 to the posts of Private Secretary from the post of Senior Personal Assistants "without considering the legitimate claim of the petitioners is discriminatory, arbitrary and without jurisdiction.

6. The writ petition is contested by the respondents by filing a comprehensive affidavit-

in-opposition. It is disclosed therein that a Departmental Promotion-cum-Selection Committee was constituted by Bharat Cooking Coal Limited in the Year 1983 to consider the case of all the eligible Senior Stenographers for promotion to the post of Senior Personal Assistants in accordance with the norms laid down in the Cadre Scheme applicable for ministerial staff and prepared a list of successful candidates in order of merit. The said Departmental Promotion-cum-Selection Committee considered the cases of Senior Stenographers working in the Office of BCCL posted at Head Quarters, and in the areas as well, for promotion to the post of Senior P.A. on the basis of certain norms fixed by the said Committee constituted by the management taking into consideration the nature of job required to be performed by the Senior Stenographers. The said Committee allotted marks to each eligible candidate on the basis of the criteria so fixed and prepared a panel. The qualifying speed for consideration of promotion of Senior Stenographers to the post of Senior P.A. was fixed at 100 words per minute in stenography. Each candidate had to obtain minimum of 35 marks for passing the stenography test. 30 marks were set apart for seniority and 20 marks for CCR.

7. The management of BCCL took into consideration the sanctioned posts for promotion of Senior Stenographers out of the panel recommended by the said Committee. The names of the petitioners were considered for promotion along with others for the posts of Senior P.As and their names were shown in the list of 75 candidates recommended for empanelment promotion by the said Committee. Since there were only 12 vacant posts of Senior P.As. in BCCL available at that point of time, only 12 Senior Stenographers who were on the top of the panel were promoted. The names of the petitioners did not find in the place of the panel within the first twelve persons who were promoted in the first instance. The management acted in good faith and followed a sound principle in evaluating marks on objective consideration. The promotions were considered according to the principles of seniority-cum-merit basis under which a workman must pass the stenography test for deciding his suitability for the job. It is denied that seniority was not given weightage. It is contended that in the case of seniority-cum-merit the persons must not only be suitable on the basis of seniority alone for promotion but also must possess extra merit than other suitable candidates. The suitability had to be judged on the basis of stenography test, CCR as well as seniority. However, seniority cannot be taken as the sole criteria for promotion. The workmen cannot demand for creation of posts for accommodating all the recommended persons in the panel. Creation of posts depends on rational requirement of personnel in higher posts as alleged. It is submitted that after receiving the vigilance clearance form the concerned department, the promotion orders were issued in different phases from the panel recommended by the Committee in order of merit as and when vacancies arose. There was no pick and choose policy as alleged. Only such candidates were promoted from the list in order of merit who were declared selected by the Committee. It is not correct that a total number of 43 candidates were promoted and the petitioners were superseded. The petitioners were placed in the seniority list as per their initial appointment in the cadre. However, the panel was prepared by the DPC (Departmental Promotion Committee) on the basis of the seniority-cum-merit of the candidate which were based upon the performance in the stenography test. The panel prepared by the Committee is likely to differ with the seniority list in as much as the panel is prepared on the basis of result in stenography test. The promotions were given according to the principle of seniority-cum-merit as laid down in the Cadre Scheme. The said Committee considered all the eligible candidates for promotion but recommended only those candidates for promotion who were found suitable on the basis of the test as well as other criteria fixed by the Committee.

8. It is stated that in the panel prepared by the Departmental Promotion Committee, the names of the petitioners were shown at the lower stage of the panel. There were only 12 sanctioned posts and in view of that, the case of the petitioners for promotion could not be considered at the first instance. It is admitted that although the Industrial Tribunal had set aside the proceedings of the Departmental Promotion Committee, the disputes raised were found to be not justified. However, in compliance with the award of the learned Tribunal, a fresh Departmental Promotion Committee was constituted on June 26, 1988. On the basis of the norms fixed by the subsequent DPC and the candidates found fit by the subsequent DPC were also promoted and a compliance report of implementation of the. award was submitted to the appropriate authority. There is neither any infringement of the award of the Tribunal nor the petitioners have any grievance whatsoever. It is pointed out that the petitioner, Sri K. Gopalakrishnan, whose name appeared in the Sl.No. 9 was promoted to the post of Senior P.A. on January 8, 1985 along with 17 others when vacancies arose in the company and he was given notional seniority from November 15, 1983. He was allowed to sit in the qualifying test for promotion to Executive Grade held on January 4, 1987. Though he was qualified in the written test but he could not secure the minimum qualifying marks to the post of Private Secretary in E-2 Grade as per norms. Subsequently, another qualifying examination was held on January 3, 1989 for all the eligible candidates. Shri K. Gopalakrishnan, though eligible for sitting in the examination, did not sit in the qualifying examination. His case is not similar to other petitioners. All other allegations of the petitioners have been denied and controverted. The writ petitioners have also filed an affidavit-in-reply reiterating their points of grievance in the main writ petition and by disputing and challenging the assertion made by the contesting respondents.

9. Upon perusal of all the materials on record and considering the submissions made on behalf of the respective parties, it appears that the only grievance of the petitioners is that the representations of the petitioners for promotion to the post of Private Secretary as per the norms and procedure as indicated in their representation dated June 22, 1989 (Annexure "F') letters dated June 5, 1990 and June 21, 1990 (Annexure "G" collectively) have not been considered in the proper perspective. Since it is admitted that the Industrial Tribunal made an award quashing the selection made by the Departmental Promotion Committee, the respondents cannot deny the promotion to the petitioners on the basis of the criteria of stenography speed as observed by the Departmental Promotion Committee. It is true that for the purpose of promotion there should be consideration of merit, suitability and also seniority. Unless there is a specific rule, the seniority cannot be ignored without giving proper opportunities to test the merit. In the instant case, these is a great confusion to deny the promotion to the petitioners on the basis of the recommendation and /or selection as made by the Departmental Promotion Committee. Any promotion to the respondents and deny the rights of promotion of the petitioners has to be considered also according to law and/or the background of all the facts and circumstances. By looking into the matter in depth, this court is of the view that the acts done and/or caused to have been done to deal with the case of promotion of the petitioners is not just and fair. For the fitness of things the grievances of the petitioners should be considered afresh and the entire promotion of the petitioners and the privates respondents should be reviewed by giving a chance of hearing to all concerned. For the forgoing reasons the writ petition is disposed by directing the respondents to consider the representation of the petitioners (Annexure "F") and Annexure "C" series within a period of three months by giving a chance of hearing to the representative/s of the petitioners and privates respondents and others concerned and by passing a speaking and reasoned decision. Any notional promotion given to the petitioners and/or any promotion given to the privates respondents will abide by said decision.

10. There will, however, be no order as to

costs.