A•\r Cf^^^> IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) W. P.(S) ^^- 2009 (Service Matter Single Bench) PETITIONERS -1 ,/^/ ^/ ^%/ ^^v wx' 'y-f |AN ?CG9 ""'fe. ^- L\ ^'^^. ;;>.,..,.,,\ ^,-.\ •-^^\^}\ <? \ ^^ '\ ^^^rfRjESpONDENT p"l r}a/: ^ '^/^ 1 ^vs/.. '-y -^ Pradeep Kumar, P.No. 151101 Aged about 43 years, S/oShriR.L.TJkariha Deptt-CED (Operation) Charge-man Vijav Kumar, P. No. 150443 Aged about 42 years, S/o Shri Sonu Ram Deptt.:- Reclaimation shop Designation- Charge-man All petitioner employees of Bhilai Steel Plant, Steel Authority of India Limited, Bhilai Nagar, Tah. & Distt. Durg (C.G.) VERSUS ^ Steel Authority of India Limited, Through- Managing Director, Bhilai Steel Plant, Steel Authority of India Limited, Ispat Bhawan, Bhilai Nagar, Tah. & Distt. Durg (C.G.) Zl^ ^s.wnFRARTICIF 77R OF THE cnNSTIT-ITInM HIGH COURT OF CHHATTCSGARH AT BILASPUR '. / Division Bench: ARpellants/ Petltioners Resoondents Petitioners Resoondent Hon'ble Shri Justice I.M. Quddusi <& Hon'ble Shri Justice Manindra Mohan Shrivastava W.4,Np,36 OF2009 Alok Agrawal and others Vs Steel Authority of India Limited & another <& W.P.(s) No.37 OF 2009 *P^adeep Kumar <& another Vs Steel Authority of India Limited Judgment for consideration Sd/- I.M-Quddusi Judge HQri'ble Shri Justice Manindra Mohan Shrivastava 3 sdI«SV^astava .^lotaan: ^an^ra "iud?e Post for .judgment on Si /C18/2010 Sd/- 'l/ l—~ &°_/08/2010 Hl©HCOURT OF CHHATTISeARH AT BILASPUR OIVISION BENCH: HON'BLE SHRI I.M.QUO&USI <& i-lON'BLE SHRI MANIN&RA MOHAN SHRIVASTAVA. JJ AppBllants/ Petjtioners ResoondBnts PetitJQners Rfesoondent W.A.No.36 OF2009 Alok Agrawal and others Vs Steel Authority of India Limited & another & W.P.(s) N0.370F 2009 Vs Pradeep Kumar & another Steel Authority of India Limited Presents. Mr. V.S.Tamaskar, Advocate for the appellants in writ appeal <& for petitioner' in the writ petition. Mr. R.N. Singh, Sr. Advocate with Mr. B.P. Mishra& Mr. Kashif Shakeel, Advocates for the respondents in both the cases. JUbSMENT (Passed on 3jj(; August, 2010) I.rt. Quddusj. J; 1. Heard. 2. W.A. No.36/2009 filed against the order dated 05.01.2009 passed'by the learned Single Judge in W.P. (s) No.5044/08 and also W.P. (s) No.37/2009 filed by the petitioners listed before us are being disposed of by this common order as in both these cases the petitioners are praying for issuance of a direction against the respondent-Steel Authority of India Limited (for brevity 'SAIL') to consider cases of the petitioners for promotion from non-executive grade to the executive grade as p&r' undertaking/consent given inW.P. No.559/1996 and other Identical maters, which were disposed of on 16.7.2007. 3. Brief facts of the case are that the petitioners/writ appellants had filed petitions bearing W.P. No.559/1996, 1749/96 & 4269/96 for their promotion from non-executive to executive cadre. The Said writ petitions wer-e disposed of by learned Single Judge of this Court vide order dated 16.7.2007 with a direction to the respondents to consider the cases of the pe'l'itioners for promotion, who have not been promoted till date, from non-executive to executive cadre within one month. 4. In compl.iance of the order dated 16.7.2007, the respondent- SAIi. issued a circular dated 18.7.2008 inviting applications from the eligible non-executive employees for promotion to the post of Junior Officer at allplants/units of SAIL. As per the selection procedure prescribed in the said circular, the eligible candidates we.re required to appear in the written test followed by the interview. The present appellants/petitioners-employees challenged the said condition before this Court by filing a subsequent writ petition bearing W.P. (s) No.5044/2008 on the ground that in the existing policy for pr-omotion from non-executive to executlve cadre, no written examination was prescribed. The further ground raised by the petitioners/writ appellant was that the respondents were duty bound to consider the cases of the petitioners for promotion as per existing promotion policy and the circular dated 18.7.2008, issued by the respondent, amounts to change in the service conditions of the employees of the r-.espondent company. It was further averred that the service conditions of the employees can be altered only by the resolution of the Board of Directors of the respondent company and the same cannot be altered without pre-decisional hearing. Learned Single Judge vide order impugned dated 5.1.2009 dismissed the Writ Petition (s) No. 5044/2008 filed by the petltioners, holding that there is no change in the eligibility criteria of a candidate for promotion from non-executive to executive cadre. Since the number of eligible candidates for promotion is high (more than 12,500 in all units and more than 1900 in Bhilai Steel Plant), The respondents have takena policy decision to conduct written examination for short listing the eligfble candidates. The above policy decision, which is applicable uniformly to all the eligible candidates, including the petitioners, cannot be termed to be a policy decision of such a hature which adversely affects the service conditions of the petitiohers. 5. Mr. Tamaskar, learned counsel for the writ appellants submits that the service conditions of the writ appellants can be altered only by a resolution of the Board of Directors of the respondent and not otherwise. By the change in promotion pollcy, which would also amount to change in the service condition of the employees, the fundamental right of the appellants, to beconsidered for promotion, has been infringed. The service condition of an employee cannot be altered without a pre-decisional hearing. He further submits that concession made by the counsel for the respondent-SAIL in the earlier round of litigation (W.P. No.559/1996, 1749/96 & 4269/96) cannot be lost sight of. Once the respondents gave an undertaking that the cases of the writ appellants will be considered for promotion form non-executive to executive grade, they cannot turn back and take a stand that the petitioners would be considered for promotion as per the promotion'policy which came into force much after 16.7.2007. 6, To substantiate his submissions, learned counsel appearing for the appellants placed reliance on the judgments in the matter of P. Venugopal Vs. Union of Xndia and Karnataka State Forest Industries Corporation Versus Indian Rocks 7, Oh the other hand, Mr. R. N. Singh, learned Senior Advocate for the respondent-SAIL would argue that the respondent SAIL have five integrated Steel Plants, including Bhilai Steel Plant and three special steel plants along with iron or'e, lime stone <& dolomite mines, engaging strength of 1.2 Lac employees all over India. The respondent SAIL has a single policy for pr'omotion froin non-executive to executive cadre (E-0) for all itsunits and any amendment to the policy is always done with the approval of the Board of Director's. In the present case also.the Board of &irectors, SAIL, in its meeting dated 30.10.2007 approved the promotion policy, which was circulated vide document dated 30.1.2008. After" due consideration of the proposals received from various units and after incorpor'ating amendments, the amendments in the policy and rules were circulated vide document dated 6.5.2008. Thus, it is evident that this revised policy has been duly approved by the Board of Directors of the respondent. He further submits th&t mere introduction of written examination would not amount to change in service condition. Ori the contrary, the revised policy has been introduced with more liberal approach in favour of the employees for promotjons from non-executive to executive cadre, which is evident from the fact that the appellant No.2, who was not eliglble as pec old policy, has become eligible for promotion upder the revised policy. , In compliance of the order dated 16.7.2007 a special committee was constituted to consider the promotion cases of the eligible non-executive candidates to executive cadr-e, as on 16.7.2007, wherein the appellant Nos.l <& 3 were no1 fouild ' (2008)58cci 2 (2009)18cc 150 eliglble for promotion, whereas the appellant No.2 was found eligible, as on 16.7.207, and the same was communicated to them. He further submits that it is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently eannot contend thdt the process of selection was unfair etc. To substantiate his submission, learned counsel for the respondents placed reliance on the judgments in the matter of Madanlal <& others Vs. Stateof J&K. and others , State of J&K vs. Ram Sharma & othersDhananjay Malik & ohers Vs. State of Uttaranchal <& others5, Om Prakash Shukla Vs. Akhilesh Kumar Shukla & others . 8. We have heard learned counsel for the parties and perused the impugned order as also the records. 9. In the hiatter of Madanlal <& others (supra) the Hon'ble Apex Court has held as under;- ".......It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of selection was unfair etc........" 10. In the-matter of State of J&K Vs. Ram Sharma <& others (supra) the Hon'ble Apex Court has held as under:- "6. The law is well settled that it is permissible for the Sovernment to prescribe appropriate qualifications ., in the motter' of appointmenf or 3 (1995) 3 SCC 486 4 (1999) 3SCC 653 5(2008)4SCCl71 61986(Bupp)SCC285. promotion to different posts. The case put forth on behalf of the respondents is that when they joined the service, the requirement of passing matriculation was not needed and while they are in service, such prescription has been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to a higher grade to which qualification could be prescribed and there is no guarantee that those rules framed by the Sovernment in that behalf would always be favourable to them........" 11. In the'matter of Tamil Nadu Electricity Board (supra) the Hpn'ble Apex Court has held that change in promotion channel on the basis of qualifications held by potential promotees by policy deGision was properly taken. The Hon'ble Apex Court has further held that police decision so taken was within the powers of appellant Board and it could not be faulted as drb.itrary or discriminatory. It was further held that this is a policy decision of the Board and it is the Board who has to decide that who will be suitable for- the post and what should be the channel of promotion for such post. An individual cannot insist on an amendment which suits him. 12, Main grievance of the writ appellants is that in view of the order dated 16.7.2007 passed by learned Single Judge, the hespondents are bound to consider cases of the appellants for promotion to the executive cadre as per existing policy, however, the respondents have invited applications from the eligible candidates for promotion after revising the existing promotion policy according to which o candidate has to qualify the written examination also and the promotion policy has been revised without prior approval of the Board of birectors of the respondent. Earlier writ petitions filed by the petitioners/ writ oippellants herein before this Court bearing W.P. Nos.559/96, 1749/96 & 4269/96 were disposed of vide order dated 16.7.2007 with a direction to the respondent SAIL to consider the cases of the petitioners/writ appellants for- promotion who have not been promoted till date, from non-executive cadre to exeeutive cadre within one from month from the date of the order in accordance with law by a speaking order. Vide order dated 21.9.2007 passed in batch M.C.C. leading case of which was M.C.C. No.394/2007 and ther-eafter 28.11.2007 passed in AA.C.C. No. 464/2007 the respondents were allowed further time for making compliance of the order dated 16.7.2007. In the meantime, a new promotion policy has been introduced on 18.7.2008 in which eligibility criter-ia for the employees working in the technical and non-technical stream was fixed and a written examination was also introduced. The above policy was placed as Item No.3.16 in the meeting of the Board of Directors dated 30.10.2007 for approval and on which the decision was made as under:- "Board, thereafter, resolved that the revised policy for promotion from non-executive cadre to Executive Cadre as detailed in Annexure-I to the agenda note, be and is hereby ratified for implementation. The Board further resolved that Chairman, SAIL be and is hereby authorized to make suitable amendments, as and when required, in the provisions of the said policy to ensure that its objective are met." 13. Consequently, all the writ appellants/petitioners participated In the process purs'uant to the policy and even appellant No.2 was found eligible for consideration for promotion. TJierefbre, it cannot be said that consideration of promotion by making a policy was against the spirit of the order passed by this Court on 16.7.2007. Further, in our opinion, after participating in the selection process, now the appellants cannot challenge the revised policy on the ground that their cases should have been considered for promotion as per promotion policy in force on 16.7.2007. 14. Sd far as the argument of learned counsel for the writ appellants about the undertaking given by the respondent is concerned, from perusal of order dated 16.7.2007 it is evident. that learned counsel for the petitioners therein have r-BStricted their prayer to the extent that the cases of the petitioners who have not been promoted till date may be considered forpromotion to the post of executive cadre from non-executive cadre and learned counsel for the respondent did not oppose this prayer of the petitioners. Thus, it is clear that no concession was made by the counsel for the respondents in the earlier round of litigation that cases of the petitioners will be positively considered for promotion, strictly as per the existing promotion policy. 15. On the basis of aforesaid discussions, we are of the opinion that the writ appeal has no substance, the same deserves to be and is hereby dismissed. Consequently, W.P. (s) No.37/2009 is also dismissed. 16. No order as to costs. __- Sd/- I.M.Quddusi Judge Sd/- ManindraMohanShrivastava Judge Siishan/"