aii r €1 /fl\ C%1 IS THB .HIGH ®URTOI* Mrf©HYA.PBAPSSH A2 JifteAXtPUR ^y^ /. Misc.Petition Ko •'- Peti'tAoncsr ^- ./3.^% **••< IA^-^'^9n ^.^".^<3^A^?-fi7-N<^ ^? E ^I±c)1 s • K»K.c^ait-» aged" atout 54 , S/o ^hri. K^N^Kesa^an Naii^ /'P.No«50769, Junior-Executi^'e -(£0) C^BStruotAon. ar t^ Bhilai Q teel Plant, Steel ^ithority of India ^td^ Bhilai Nagax', T^» andDistt. Dar^ v@ r s ua - ^^^9^ ¥€^^ '^^.^.'-:i] { •''• ,:^!w>BC^ :•• ;'-"j ^ s-^ 5 >^ ^H COU«T0¥ fetAN NAGA.a, tRG. tM^'-t !«, St©elautbori^r of Xnclia Ltd., throiugtei S ManagiQQ' Director^ Bhilai Steel Pl^it^ Ispat Bfct.^au^ ' Bhilad. NagaSo Teh. apa-Bistfc. Duxg N.P.)- ' 2 <. Boardof ^irectors^ Steel ^-thority of Indi'a.- Ltd^ through ^ Chaixman^ -. .SAIL^' Ispat .Bh^-an,? lodhi fioal ^ • New-l->®Ihi,. p£TXiaS^UND^RJAMa^& ^26/2.21 S£l.«m£ ODNSSITUTIQK 0£- IKDIA FOR WRIIS XN;: m@ S^WSE OF.- e£RTX»,K I'MftND^lUS PaOHIBllION mD. iOft- StJRSHSR aRPBOP&lATB DIM.CI'IOKS * ,. %e petitioner te^ etoo^e naned begs to -»jtanit a3' uader' ^- .. ' ' - ^>K"bi®^-^»2^ nJGnCOVRTpFCHnATTiSGARH:Bj^^^^^ SiNQLE : HON'BLE SHRI ^ANiNDRA SHRIVASTAVA.J. PETiTIONcR RESPQNDENI WRiT PcTiTiGN N0.1952/1 §30 K.K.C.Nair VefSUS SteeS Authority of Indla Ltd. and anoth-ar ^^ EQRPRONGUNCEVENTOFGRDcRON ? OCTpBgR'201v Sd/- Manindra Mohan Shrivastava; Judge R- ^ HIGK COURT OF CHHATTiSQARH iBlS.ASPuR Singie Beneh: Hon'bie Shri rvlanindra fvtohan Shrivastava. J. PcTiTiONER RESPGNDENT WRiT PETiTJON NG.19S2rt980 K.K.C. Nair Versus Steei Authority of india Ltd: and another WRiT PETITiGN UNDER ARTSCLE 22S/227 GF THE GONSITUTiON GF ii^DjA Preaent - Shri V.G. Tamaskar, counsel for the petltioner. Shri Sanjay K. AgrawaS, counsei along with Snri B.D.Guru, counsei forrespondents. (Passed on .1? ••••«1»««October,2010) By this petition, petitioner has sought issuance of direction to the respondents for his promotion as Assistant Executjve (E"1grade) vv.e.f. 7/11/1989 and fix the emoiuments at par with the private secretaries promoted as Assistant Execuuve E-1 w.e.r 16/1/1989. Petitioner has aiso prayed for quashlng promotion policy (Annexure P/2). 2. Necessary facts for declsjon of the petition are that the petitioner who was initiaiiy appointed in the service as Lower Division Cierk w»eJ.3/3/59, in course of time received promotion from one post to the other and vide orderdated 9/11/19^ (Annexure Fv1), he vvas promoted as Junior Executiye In E-0 grade w.e.f. 9/11/'198S. The prornotion used to be govemed by various policies framed from time to time between the period from 18/3/1972 upto 30/05/1986 (Annexure F3/10) and thereafier a new poiicyfor promotion frorn NQn-Executive to Executive cadre was framed in the year 1988, copy of which has been plaoed on record as Annexure P/2 and covering letter dated 11/6/1888 as AnnexurelP/3. Accordsng to the petiuoner, after poiicy uated 30/05/1886 (Annexure P/10) came into foree, the bar relating to quaijfication w-as rernoved. Further case of the petitioner is that the Executives were not required to obtain any training or pass any pre- seiection examinatlon. Case of the petitioner is that a new pollcy which was promulgated In the year 1S88 was not approved by the Board of DErectors and therefore, it was not operationai, which is evldent frorn the fact that vide order dated 16/01/89 (Annexure P/1), nine private secretaries were promoted to E-1 grade "i^e Assistant Executive, meaning thereby that while considering tnelr case of prornotion, eariier poiicies were made appllcabie and not the policy of1388. The griev-dnce of the petltioner is that when his case came up for conslcleration, the poiiGyfiarned in the year 1988, vvhich tiii that date had not reeelved the approva! ofthe Board ofDirectors, was made applicabie and he was only promoted as E-0 Executive grade anu conditions were imposed as per the policy of 1988 to undergo tralning ete. 3. Learned counsel for the petitioner. argued that the petitloner has been su&jected to hostiie discriminatlon. His further submis^lon is that the poSicy of 1988 (Annexure FV2) though was framed, for vvant of ^pproval of the Board of Directors, it couiu not supercede eariier policles which were in vugue. it Is argued that the said policy of 1988 was seiectiveiy and discrimlriately appiied in the case of the petitioner whereas siniiiarly sltuated nlne pnvate secretarles were promoted after framlng of the policy of 1988 to E-1 grade, without subjectlng thern to any training etc. 4. On the other hand, submission of iearned counsei for the respondent is that in so far as promotion poiicy (Annexure P/10) is concerned, the same Is a ^ poijcy for prornotion within the Executiv-e cadre and is not appEicable in so far as prornotion frorn Non-ExecutJve to Executive cadre is concerned. it is further submitted that the minimum quaiificatlon was prescribed at the entry polnt i.e. E- 0, E-1 ievei and that E-0 and E-1 grade are not equivaient. it is further submltted that according to the new policy of 1988 (Annexure P/2), the petltioner was requjred to pass a Post Seiection Tralning Examination after undergoing required training in the cadre, In order to be. eliglbte for further promotlon to E-1 grade. It Is further subrnitted that once the petluoner got benefit of prornotlor§to E-0 grade under the new poilcy, the petitioner is estopped from cnaiienyjng the sarne. in so far as promouon of nine pnvate secretaries to E-1 vlde order dated 16/1/88 is concemed, it has been submitted that those private secretarles were directly promoted to E-1 grade according to the oid poiicy of the year 1981. The new poiicy of 1968 superceded the old policy of 1981 and the case of promotlon of the petiuoner is governed oniy under the new promotion pojjcy i.e. 1988 poiicy according to 'which the petitloner was eiiglble for prornotion to E-0 grade oniy and not to E-1 graue. Further assertion of iearned counsel for the resporident is that the promotion poiicy of 1988 was accorded ex-post-fecto appi'oval for forniuiation and impiementation by the Board of Directors of the Steei Authority of India Ltd. in their 157 meetlng held on 26/9/1990, placeti on record as Annexure R/1. Further submisslon of Seamed counsel for the respondent Is that even accordiny to the promotion policy of 1S81, In the matter of promotion from Non- Executiv-e to Executive cadre, there were two sets of persons, one who had passed pre-selection examination and the other were those who were exempted from passing such pre-seiectlon examlnation based on other academlc / technicai quaiifications. in his submlssion, nine private secretaries who were ^ k.^:^, .^ 4 l; ^~"i M..^^ -—^^ •jl1 promoted vide order dated 16/1/83, vvefethose who had either paissed the pre- seiection examination or were thos& who were exempted based on their acadernic quaiification for consideration offunher promotion. 5. From the averments of the parties, promotion poiicy (Annexure P/2) and various documents piaced on record, it is not in dispute that though a poiicy was framed, the same was piaced before the meeting of the Board of Dlrectors of the company on 26/9/1990. A perusai of the note appended to the rninutes or the rneetlng (piacea as Annexure R/1 aiong with ihe return) states that the present poiicy fequires approval ofthe Board and therefore ex-post-facto approval ofthe Board is requested. it is therefore ciear tliat even before the policy could be approved by the Board of Directors, the same is stated to be irnpiementeu w.e.f. 1/6/1888 upon obtaininy the approval of the Chairman of Steel Authority of Indla Ltd., as reflected frorn the note (Annexure R/1). From the retum of the respondents aiso, it is reveaied that the respondents have also accepted that the poilcy is required to be approved by the Board of Directors. The respondents have though stated in the return that certain powers 6f the Board of Directors were deJegated to subordinate authoritjes withln the company, there is no materiai piaced on record to demonstrate that the authority vesting in the Board of Dir^ctors to frame poiicies with regard to promotion were delegated to the Chairnnan. Such pleadings are vague wlthout speciflc detail and without even mentionjng any resolutlon of the Board of Djrectors deiegatlng any such power. 6. 11 is therefore crystai ctear that the new policy of proniotion framed in the year 1988 was seiecuvely executed and impiemented without th6 approvai of the Board. Submission of iearned counsei for the respondent tnat th©ex-post-facto approval of the Board of Directors granted In their 157 meetlng he!d on 26/S/1990 wouid resuit in effectuating the poljcy from an anterior date, cannot be accepted. Such decision of grant of approvai in the absence of any statutory power, could not take effect from the fetrospective date. Learned counsei for the respondent couiu not polnt out any provision of the Cornpanies Act or any other la-w for the tirne beiny in force confemng any such power on a Board of Directors of a company incorporated undef the Companies Act to give efrect to a declslon, poilcy' or resoiution from retruspective date so as to affect the riyhts and obliyatlons reiating to terms and condiuons of service of empioyees govei-ned undersuch poiicies. 7. The petitloner was entitled under the law" to be corisldered for promotion In accordance with the policy which was in force and in vogue on the date of his consideration. The new poilcy that was framed in the year 1988 could take effect oniy from the date It was approved by the Board of Directors and not eariier to the date of approvai. 8. The assertion of respondents vvith regard to irnplernentatlon of the prornotion policy of 1988 in the case of the petitioner aiso sufl'ers from hostile uiscrimination, The respondents couid not dispute that nine private secretaries were promoted directiy to E-1 vide order dated 18/1/89 i.e. after framing of new poSicy In the year 1988. The respond'ents have come out vvtih a categoric stand in their return that those private secretaries were considered and promoted on the basis of the poiicy frarned in the year 1981 . It Is thus clear that respondents appiied d'iiTerent criteria to the petitioner and to those nine private secretarles though they were considered subsequent to framlng of 1988 policy. An attempt has been made to justifv the action by stating that those nine pnvate secretaries 6 ^.'. were either exernpted because of tnelr quaiificatlon or had aEready' passed the pre-seiection examination. nowever, their detalis have not been given, no document has been piaced on record to show which of them had passed pre- seiection examination or how many of them were exempted on the basis of their academic- / technicai quaiificauon. Since the petltioner h-as raised spedfic grounds of discriminatlon, the burden lies on the respondents to give specific detalis. Having faiied to do so< In the opinion of this Court, a ciear case of discrimination is made out. Under any ciruumstances. it Is ampiy clear that whjie considering the case of nine private secreiaries and promotlng them vide order dated 16/1/89, respondents considered their cases of prornotion by appiylng oid poiicy of 1981 where as while consldering the case of the petitioner for grant of promotion, poiicy of 1988 was applied. Thus, the respondents have appiied dlfferent poiicy to sjmiiariy situated persons in the matter of considerauon of their cases ofpromotion. ^' 9. By an auuit'ional affidavit, respondents have stated that the petitioner was infact promoted to the post of Assistant Executlve E-1 Grade w,eJ. 30/06/1880 and thereafter he retired aiso on 28/2/1894. However, as in the present case, this Court is considering the ciairn of the petitioner for yrant of promotion to the post of Assistant Execuuve E-1 grade w.e.f. 7/11/1989, |t cannot be said that the enure reiief as prayed for by the peuuoner has been gr^nted. The arievance of the petitjonerthough was redressed durlng the pendency of tnis appeai, he has not been granted promotBOn vv.e.f. the date ciaimed by hlm. 10. As an upshot of the above discussion,! am of the considered view that the petitioner's cas©for prornotion has not been ptoperiy considered in accordance with the poiicy which was in force prior to the date of approval of the policy of l-' s-^. 1988 by the Board of Directors. As the case of respondents is that other private secretaries 'vvere considered for promotion on the basls of oiaE poiicy of 1981, it wouSd be proper to direct the respondenfcs to consider the case of the petiuoner aiso for grant of promotion on the basis of eariier policy of 1981. In case, the petitioner is founu flt for promotion according to the applicable policy, consequentiaS benefits shaii be granted to the petiuoner. 11. The peution is accordingiy allovveu to the exlent and in the rnanner as directed above. There shaii be no orderas tocosts. | i 1 Sd/- . | iManindra Mohan Shrivastava 1 Judge