The High Court · 2006
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3117 of 2006 with W.P.(S) No. 1012 of 2006 --- Ram Balak Prasad & another (WPS 3117/06) Ramawatar Prasad Roy & others (WPS 1012/06)--- ---- Petitioners Central Coalfields Limited through its Chairman-cum-Managing Director & others (both cases) Versus --- --- --- --- Respondents CORAM: The Hon’ble Mr. Justice Aparesh Kumar Singh For the Petitioners:Mr. R.N. Sahay & (WPS 3117/06) Mr. Ram Lakhan Yadav, Advocates For the Petitioners: Mrs. M.M. Pal, Sr. Advocate, (WPS 1012/06) For the CCL: Mr. Anoop Kr. Mehta, Advocate Mr. A.C. Mahata, Advocate --- I.A. No. 3557/2013 in WPS No. 1012/2006 12/ 08.07.2013 The present applicants have once again sought an intervention in the instant writ application. Earlier, an I.A. No. 1318/2006 had been preferred by same applicants seeking intervention in the instant writ application. However, the said I.A. was dismissed earlier as the applicants- intervener did not intend to press the same. The intervenors in the instant I.A. are the petitioners in WPC No. 3117/06 and by an order dated 12th of March 2007 passed in the instant case, the said writ petition was ordered to be heard along with the present writ application. In such circumstances, earlier I.A. preferred by these intervenors being I.A. No. 1318/06 was not pressed and accordingly dismissed. In the instant writ petition which is also being heard together with WPS No. 3117 of 2006, the petitioners thereof have been allowed to advance their submissions in opposition to the case of the present petitioners. Therefore, in the interest of justice, their intervention is once again allowed.
Legal Reasoning
Heard counsel for the parties. 2. Petitioners in WPS No. 1012/06 have sought direction upon the respondent CCL to promote them to the post of Foreman (Mechanical) out of the panel prepared in March 2005. By way of interlocutory application being I.A. No. 441/06 they have also challenged the notice dated 16th 2 February 2006 issued by the Personnel Manager (P) for filling up the vacant posts of Foreman (Mechanical) in the N.C.W.A.-VII scale of pay of Rs. 7260-218-11184 from the categories of departmental employees described therein. The prayer in this I.A. was allowed to be incorporated in the main writ application. 3. These petitioners were invited by internal advertisement dated 15th March 2005 to appear before the Selection Committee for interview for filling up the posts of Foreman (Executive) in the scale of 4317-7257. After having been brought in the panel vide Annexure-3, out of these petitioners, three got promoted vide Annexure-4 dated 31st March 2005. These petitioners however kept waiting for their turn for promotion to the post of Foreman (Mechanical), but were surprised to find a notice dated 16th February 2006 issued by the respondent intending to prepare a new panel again for the post of Foreman (Mechanical) as described herein above. In such circumstances, they preferred this writ application on 20th February 2006 with a prayer to direct the respondents to promote them to the said post of Foreman (Mechanical). The main ground for making such a prayer was that the panel prepared on 23rd March 2005 had a life of one year and if the posts were still vacant as would appear from the notice dated 16th February 2006, the petitioners' deserve to be promoted to the said post instead of calling for a fresh exercise of empanelment of such persons. 4. Counsel for the petitioners submits that the legal position is well settled that the panel for making appointment or promotion prepared in an organization, ordinarily has a life of one year unless otherwise provided by the statute or any standing orders of the organization. Such exercise has also previously been undertaken as would be reflected from the chart enclosed to Annexure-10 where 3 promotion have been granted later on from panels prepared in earlier years. Counsel for the petitioners has also relied upon a judgment rendered by the Patna High Court in CWJC Nos. 1094 & 2108 of 1989 (R) in a case of promotion from such panel of employees to the post of Executive Cadre from Non-executive Cadre. She submits that the learned Single Judge in the said judgment, held that the panel would be alive for one year unless extended specifically by any competent authority i.e. the Chairman, Coal India Limited in that case. 5. It is therefore submitted that by the general principles which are applicable to the service jurisprudence, panel should have a life of one year before expiry of which the impugned notice dated 16th February 2006 was issued by the respondent themselves which is impermissible in law. Moreover, such prayer is supported by the past practice adopted in the organization itself of which there is enough evidence available. Learned counsel for the petitioners has also referred to paragraph-16 of the counter affidavit filed on behalf of the respondent and Annexure-C thereof which is recommendation of the Selection Committee to submit that the respondents have also stated that the life of such panel is for a period of one year from the date of approval of Selection Committee, as per prevalent practice. Learned counsel for the petitioners submits that therefore the respondents are required to be directed by issuance of writ of mandamus to grant promotion to these petitioners, otherwise their valuable legal rights would be defeated. 6. Respondents, on the other hand, have taken a plea that the promotional exercise by preparation of a panel in the respondent Central Coalfields Limited is undertaken as per the manpower budget of every financial year. The manpower budget for the year 2004-05 provided for certain vacant posts of Foreman (Mechanical) in respect 4 of which an exercise was undertaken as per Annexure-1 dated 15th January 2005 whereby applications were invited from the departmental candidates for filling up the vacant posts of Foreman (Mechanical). On 31st March 2005, three persons got promotion and the petitioners could not get such promotion which were made dependant upon the availability of the vacancy at that time. In the Manpower budget prepared for the year 2005-06, again an exercise was undertaken by notice dated 16th February 2006 in which petitioners were called for interview apart from other writ petitioners in the connected writ petition being WPC No. 3117/06 as also other eligible persons. These petitioners however did not appear in the interview and therefore, they could not come in the panel prepared pursuant to the subsequent exercise. Petitioners in the second writ petition however figured in the panel prepared pursuant to the notice
Legal Reasoning
dated 16th February 2006. Learned counsel appearing on behalf of the CCL relies upon the document annexed to their supplementary counter affidavit (Annexure-I) dated 08.03.2002 which is a communication to all the Chief General Managers and General Managers of the Area, all Staff officer (Personeel) of the Area, All HODs at Ranchi / Calcutta, Dy. CPM (NEE) issued by the Director (Personnel) of the respondent CCL. According to such document, aforementioned authorities were directed to convene the DPC meeting and finalize the recommendation of the DPC based on sanctioned vacancies and the Manpower budget and as per cadre scheme. It further directs that all efforts should be made to fill up the vacancies by promotion without loss of time by following the procedure etc. within the same financial year and before expiry of the Manpower budget. This, according to the learned counsel appearing on behalf of the respondent, is in the nature of a circular which guides 5 the promotional exercise of such persons who are empanelled and are to be obeyed by the subordinate authorities to whom they are addressed. There are no standing orders otherwise in respect of such a promotional exercise in the organization. The cadre scheme, on the other hand, provides for the line of promotion from one cadre to other and from non-executive cadre to the executive cadre. However, the coal company being an independent organization, has to act as per the requirement of the organization prepared by way of Manpower budget for every financial year and such a rule of keeping the panel alive for one year should not apply in the case of persons like the petitioners. It is also submitted that the Coal Wage Agreement do not provide for any such rule or condition for such promotional exercise and the panel being kept alive for one year. He has supported the impugned exercise conducted by notice dated 16th February 2006 for preparing a panel for promotion of the eligible persons out of the Foreman (Mechanical) in the vacancy of the year 2005-06. 7.
Decision
The writ petitioner in connected writ petition being WPC No. 3117/06 are two persons out of three who were empanelled pursuant to the exercise conducted by Annexure-11 dated 16th February 2006 for filling up the vacant post of Foreman (Mechanical) in the prescribed scale from the category of departmental employees. Learned counsel for the petitioners in the instant writ application submits that though, they have been empanelled and are entitled for being promoted on account of existence of vacancy, but are not being promoted in view of the interim order dated 02nd March 2006 passed in the instant case. It is their case that on the date on which notice dated 16th February 2006 was issued, there were three vacant posts existing in the financial year 2005-06 for the post of Foreman (Mechanical) and against which they were fully entitled to be 6 promoted but the exercise has been withheld because of the pendency of the writ application and the interim order as aforesaid. It is submitted that in such circumstances, in the exercise conducted pursuant to the notice dated 16th February 2006, no interference is called for and the other writ petition should be dismissed while the petitioners in the instant case should be allowed to be promoted to the post of Foreman (Mechanical). 8. The respondent CCL have adopted the same stand in the instant case as well, what has already been discussed in the early paragraph of the judgment. 9. Heard counsel for the parties at length and gone through the materials on record. Petitioners in WPC No. 1012 of 2006 were asked to appear in the written test and interview as per notice dated 15th January 2005 for filling up the vacant posts of Foreman (Mechanical) in the prescribed scale of pay from the departmental candidates under the respondent organization. These petitioners were empanelled vide recommendation contained at Annexure-3 to the writ application. Out of these persons, three have been promoted on 31st March 2005 and the petitioners were kept waiting for availability of the vacancy. Annexure-3 is the list of those persons who were called for interview. However, petitioners could not be promoted and a notice dated 16th February 2006 was issued by the respondents obviously within a period of one year of the preparation of the panel on 23rd March 2005 for empanelling the candidates for the same post for vacancies of 2005-06. 10. The issue therefore in the instant case is, whether the panel should have been kept alive for one year or it expired with the expiry of the financial year as per the instruction contained at Annexure-I dated 8th March 2002 brought on record by the respondent 7 CCL. Therefore, the question arises whether there are any standing orders or rule in that respect in the organization? As has already been submitted on behalf of the learned counsel for the respondent CCL, there are no standing orders or service rules to that effect. These are being followed in view of the instruction issued from time to time vide Annexure-I dated 8th February 2002. 11. On the other hand, it appears that in the matter of promotion from non-executive cadre to executive cadre, learned Single Judge of the Patna High Court in CWJC Nos. 1094/89 (R) and 2108/89 ® (Annexure-7), had occasion to hold that the panel of the candidates prepared for filling up the posts will be valid for one year unless extended specifically by the competent authority who is Chairman, Coal India Limited in that case. At the same time, there is also evidence of prevalent past practice and as would appear not only from the chart enclosed to Annexure-10 to the writ application, but also recommendation of the departmental promotion committee (Annexure-C to the counter affidavit) of the respondent organization. It is the recommendation made on 31st March 2005 of petitioners and others which categorically states that as per the prevalent practice, panel of employees so prepared, is valid for a period of one year from the date of its approval. 12. It is not out of place to mention here that the growth of administrative law after coming into force of the Constitution has undertaken gradually and rules defining service conditions have not been framed in one go. In different organization such as respondent organization also, service conditions of employees have been controlled and guided by the standing orders issued from time to time by the organization as also the Settlement / Agreement which is called National Coal Wage Agreement. In every organization as also State 8 instrumentalities, with experience obtained from time to time, service rules have been framed in exercise of powers conferred under proviso to Article 309 of the Constitution of India. However, such situations have arisen earlier and the Court in such circumstances, has evolved doctrines of consistent past practice as has also been referred with approval by the Hon'ble Supreme Court in the case of State of Uttar Pradesh and another versus Santosh Kumar Mishra and another reported in (2010) 9 SCC 52. It also appears that in absence of the standing orders or any service rules framed from time to time, the general rule that a panel prepared ordinarily has a life of one year, should prevail unless extended by a competent authority. Evidence of past practice is also available from the chart enclosed to Annexure-10 to the writ application as also the recommendation of the Committee itself (Annexure-C to the counter affidavit). In such circumstances, the respondent's stand that Annexure-1 lays down a guidelines to be followed from time to time, does not appear to reason as the same can be successively altered or amended to the prejudice of the eligible persons like the employees of the respondent company which may cause discrimination or arbitrariness in such exercise. Moreover, such a communication does not appear to have any statutory backing or issued by a conscious decision of the Board of Directors of the organization. In such circumstances, it is wise to follow the past practice which is prevalent in the organization. Therefore, the action of the respondents in not promoting these petitioners out of the panel prepared on 23rd March 2005 and in spite of the vacancies admittedly arisen within one year, does not stand to reason. In such circumstances, these petitioners are entitled for promotion to the post of Foreman (Mechanical) empanelled in an exercise by the respondent themselves on the recommendation of the 9 Selection Committee dated 23rd March 2005. Action of the respondent to prepare a successive panel by the impugned notice dated 16th February 2006 within a year of the life period of earlier panel therefore, cannot be sustained in law. In such circumstances, the prayer made in WPS No. 1012/2006 deserves to be allowed. The impugned notice dated 16th February 2006 therefore has to go as it cannot stand in view of the determination made. 13. Accordingly, respondents are directed to promote the petitioners of WPS No. 1012/2006 to the post of Foreman (Mechanical) from the panel prepared on 23rd March 2005 against the vacancies which arose within the one year period of life of the said panel. This exercise is to be completed by the respondent CCL within a reasonable time and preferably within a period of six weeks from the date of receipt of a copy of this order. It is made clear that promotion which would be granted to these petitioners pursuant to this order, would confer the notional benefits to the petitioners from the period from which they were entitled for being promoted, but monetary benefits of such promotion would be made available from the date of their joining. Accordingly, WPS No. 1012/2006 is allowed in the terms indicated hereinabove. 14. The writ petition being WPS No. 3117/2006 therefore has to fail and accordingly, in the totality of the facts and circumstances and the reasons recorded herein above, WPS No. 3117/2006 is dismissed. Ranjeet/ (Aparesh Kumar Singh, J)