l(!l ';"l'liS> ,,i":'lit^!^ St-' ^l '^i -s^ HIGH COURT OF CHHATTISGARH: BILASPUR Writ Petition No. 1770 of 1998 Petitioner Rajendra Kumar Nigam Res@pndents Versus Coal India Ltd. & Others. Postfor pronouncement ofjudgment and order on 1602.2009. Sd/- Satish K. Agnihotri Judge O y J '^"' 9SI» I ~ia <? Petitioner HIGH COURT OF CHHATTISGARH: BILASPUR Writ Petition No. 1770 of 1998 Rajendra Kumar Nigam, S/o. Late Shri L.P. Nigam, working as Dy. Chief Engineer (E & M) M-1 Grade, South Eastern Coal Field Ltd., Bilaspur. Respondents Versus 1. Coal India Ltd., through its Chairman, 101 Netaji Subhash Road, Calcutta. 2. Director (Personnel) Coal India Ltd., 10, Netaji Subhash Road, Calcutta. 3. South Eastern Coal Field Ltd., through its Chairman-cum-Managing Director, Sheepat Road, Bilaspur (CG). 4. Shri R.K. Yadav, Chief Engineer, K.& M. Western Coal Fields Ltd., WCL Head Quarter Officer Nagpur (CG). 5. Shri Satish Chandra Choudhary, Chief Engineer, CM PDIL, head quarter Coal, Mines, Project and Planning Division, Headquarter Officer, Kanker Road, Ranchi (Jharkhand). (Writ Petition underArticle 226/227 of Constitution of India) SB: Hon'ble Mr. Satish K. Agnihotri, J. Present: Mr. Sanjay K. Agrawal, Advocate with Mr. Sudeep Agrawal, Advocate forthe petitioner. Mr. P.S. Koshy, Advocate with Mr. Vinod Deshmukh, Advocate for the respondent No. 1, 2 and 3. None for respondent No. 4 and 5. (Passed on this ! (, day of February, 2009) By this petition, the petitioner seeks a direction to grant promotion to the petitioner in M-1 Grade post from January, 1994, consequent upon the Departmental Promotion Committee (for short, "the DPC") meeting held on 3rd, 4th & 5th October, 1993 and notional seniority with effect from that date and other service benefits and further to quash the impugned order dated 29-8-1997 (Annexure P/9), wherebythe representation ofthe petitioner was •iv" ....-^ •^v- 'pttfe. .:;'-i;':- rejected on the ground that to consider notional seniority in E-5 Grade, no merit has been found in the petitioner's case. 2) The indisputable facts, in brief, are that the petitioner was initially appointed in E-2 Grade as Assistant Engineer in November, 1973 by the 1st respondent. After the appointment, the services of the petitioner were placed under the Western Coal Fields Ltd., a subsidiary of Coal India Ltd. Thereafter, the petitioner was promoted to E-3 Grade on 23-6-1980 and in E-4 Grade on 6-6-1984. After fcrmation of the 3rd respondent /South Eastern Coal Fields Ltd., which is also subsidiary company of the 1 respondent, the services ofthe petitioner was placed under 3 respondent. The petitioner was promoted to E-5 Grade on 6-10-1989. The petitioner was considered in the DPC meeting held on 3 , 4th & 5th October, 1993 and he was not found fit for promotion. 4 and 5th respondents, who were found more meritorious, were promoted to the post of M-1 Grade i.e., Deputy Chief Engineer and the petitionerwas denied promotion to the said post. 3) The 1 respondent is a holding company having subsidiary companies ie., Bharat Cooking Coal Ltd., Central Field Ltd., Coal Mines Planning Development Institute Ltd., Eastern Coal Fields Ltd. and Western Coal Fields Ltd., Coal Mines Planning Development Institute Ltd., Mahanadi Coal Fields Ltd., Northern Coal Fields Ltd., and Western Coal Fields Ltd. The holding company maintains a common coal cadre of officers of subsidiary companies. The promotions were also considered on the basis of common global seniority. 4) Mr. Sanjay K. Agrawal, learned counsel appearing for the petitioner would submit that one Mr. A.K. Sen was appointed in the year 1973 and got promotion to E-t) \3rade on 6-8-1988. The petitioner was appointed in the year 1971 and got promotion to E-5 Grade with effect from 6-10-1989. The 3 respondent did not follow the schedule and DPC meeting could not take place'regularly. In the DPC meeting held on 3rd, 4th and 5th October, 1993 ~* i. '"I / ,.-'«^^.''' ''^'^ the petitioner was placed at SI.No. 138 on obtaining 78 marks. The petitioner was given 16 marks for his experience, counting his seniority in E-5 Grade from the year 1989. The petitioner could have got the promotion, if the seniority of the petitioner is counted from the year 1988. A combined list of the successful candidates was prepared (Annexure RJ/1). In the DPC proceedings, 4th respondent (at Sl. No.13) obtained 91 marks, 5 respondent (at SI.No. 71) obtained 83 marks and the petitioner (at SI.No. 138) obtained 78 marks. Learned counsel further submits that the criteria for promotion from E-5 to M-1 was merit with emphasis on managerial competence (Annexure RJ/4), subject to officers securing 75 and above marks were put in promotable group and officers securing less than 75 markswere put in a non-promotable group. They constituted panel of officers and the panel is drawn in order of seniority. It was further contended that the petitioner being senior ought to have been placed at No.1 in the merit list. In the global seniority list as on 1-8-1993 the petitioner was shown at SI.No.225, 4 respondent was shown at Sl.no.226 anc- respondent was shown at SI.No.234 (Annexure RJ/3). 5) Mr. Agrawal, would further submit that the petitioner was not promoted to E-5 Grade at the proper time, otherwise, he would have got more marks and secondly the criteria being merit-cum-seniority after bench- mark has been given, the petitioner ought to have been put at SI.No.1. The petitioner deserves to be promoted with effect from January, 1 994, pursuant to the DPC meeting held on 3rd, 4th and 5th October, 1993. The petitioner was granted promotion to E-5 Grade and subsequently in M-1 Grade on 25- 3-1997. 6) Per contra, Mr. P.S. Koshy, learned counsel appearing for the respondents would submit that the promotion from E-5 Grade to M-1 Grade was strictly on merit with emphasis on managerial competence. The bench-mark fixed was 75 and thereafter the list was prepared strictly on merit with emphasis on managerial competence. The promotion of the petitioner from E-4 to E-5 Grade took place on 6-6-1984and6-10-1989. The petitioner did not challenge the same, except certain representations. The petitioner cannot challenge the same after a period of nine years in the present petition as no specific prayer has been made in the pleadings. Thus, the contention of the petitioner that had he been promoted to E-4 to E-5 Grade, he would have got 20 marks, is without any basis. The seniorify has no relevance, when the promotion criteria is merit with emphasis on managerial competence. The DPC has conducted the entire proceedings in al] fairness and the candidates, who obtained upto 79 marks were promoted to M-1 Gradeand the petitioner could not be promoted for want of availability of vacancy as he obtained only 78 marks. Thus, there is no discrimination and arbitrariness in the DPC proceedings and the selection is according to the rules and regulations. Mr. Koshy would further submit that the petition deserves to be dismissed. 7) None appears on behalf of 4th and 5 respondents, despite service of notice. . . 8) I have heard learned counsel for the parties, perused the pleadings and documents appended thereto. 9) The promotion policy from E-1 to E5 Grade (Annexure RJ/4) reads as under. "While promotion from E-1 to E-5 grade is being considered on the principle of seniority-cum-merit, the promotion from E5 to M3 is based on merit with emphasis on managerial competence." Further, for calculation of marks, the promotion policy from E5 to M1 Grade reads as under: "E5 to M1 Grade The following two factors are taken into consideration: (i)' EER 81 Excellent 27 Marks .'-^ •p^; fff' ':^ K:' ~^s ^l ^9 i -JJ Commendable 21 Marks Adequate 14 Marks . (ii) Length of Service 1 9 For initial period of 3 years 13 marks, follow as 2 years 2x3=6 marks. 5. Officers securing 75 and above marks will be in promotable group and officers securing less than 75 marks will be in non-promotable group will constitute the panel of officers and the panel is drawn in order of seniority." 10) On bare perusal ofthe promotion policy, it is found thatfor promotion from E-1 to E-5 Grade, the principle of seniority-cum-merit was followed and further promotion to E5 to M1 Grade the policy is merit with emphasis on managerial competence. Officers securing 75 and above marks were to be put in promotable group and the officers securing less than 75 marks were put in non-promotable group and there is a panel of non-promotable group officers who would be drawn in order of seniority. The petitioner admittedly obtained lesser marks than 4 and 5 respondents. Thus, the petitioner could not be promoted to M-1 Grade. The candidates obtaining upto 79 marks were considered and promoted depending on availability of vacancies. The petitioner, who obtained 78 marks, could not be promoted, pursuant to the DPC meeting held on 3rd, 4th and 5th October, 1993 and subsequently in the year 1997 he was found fit for promotion and he was accordingly promoted to M-1 Grade. 11) While considering the policy of merit-cum-seniority, in the matter of C.P. Kalra Vs. Air India through its Managing Director, Bombay and others relied on by learned counsel for the petitioner, the Supreme Court observed as under: "We do not think that there is any merit in this submission. The promotion policy elearly envisages that merit shall be the primary consideration for promotion to the next higher post. Once the candidates falling within the zone are tested for the purpose of determining their merit on the basis of their performance emanating from the appraisal reports as ,'1994 Supp(l)SCC 454 ^i:""'^'•v' well as their performance at the interview, the total number of marks secured, if not less than 70 per cent, would entitle the candidate to be placed in the group of meritorious candidates suitable for promotion to the next higher post. Once this group of meritorious candidates is determihed, their arrangement in the select list has to be on the basis of the inter se seniority. This method of assessing the merit of the candidate cannot be said to be, in any manner, arbitrary or one which has no relevance to the object to be achieved." 12) In the matter of K. Samantaray Vs. National Insurance Co. Ltd. , while considering the criteria of merit-cum-seniority, the Supreme Court observed as under: "]t is for the employer to stipulate the criteria for promotion, the same pertaining really to the area of policy-making. It was, therefore, permissible for the respondent to have their own criteria for adjudging claims on the principle of seniority-cum-merit giving primacy to merit as well, depending upon the class, category and nature of posts in the hierarchy of administration and the requirements of efficiency for such posts." 13) In the matter of Harigovind Yadav Vs. Rewa Sidhi Gramin Bank and others , wherein again seniority-cum-merit as \'^<1 as merit-cum- seniority criteria was under consideration. The Supreme Court observed 1 as under: "17. This court also noted that while the principle "seniority-cum-merit" lays greater emphasis on seniority, "merit-cum-seniority" laid greater emphasis on merit and ability and seniority plays a less significant role, becoming relevant only when rherit is approximately equal. After referring to several decisions bearing on the issue, this Court enunciated the following general principle in regard to promotions by seniority-cum-merit (at SCC p.730, para 18) which is relied on by the appellant: "18. We thus arrive at the conclusion that the criterion of "seniority-cum-merit" in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum ? t 7 • < -J (2004) 9 SCC 286 3 (2006) 6 SCC 145 '•-\ r /T~x •g|fej,^;lr. .- standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit." 14) The cases cited above as relied on by the petitioner were dealing with the seniority-cum-merit and merit-cum-seniority criteria, wherein it was clearly held that in case of merit-cum-seniority, the grater emphasis should on merit and ability and seniority plays a less significant role, becoming relevant only when merit is approximately equal. The criteria of promotion, in the case on hand, is merit having emphasis on managerial competence. There is no role of any seniority. After examrning the bench marks i.e., 75 marks the promotion would be strictly on merit lying emphasis on managerial competence. The list was prepared after having taken into consideration the merit as well as the managerial competence. Thus, the seniority has no role to play and the promotions made therein were, according to merit, in accordance with the policy. 15) In the matter of Unionof India and another Vs. S.K. Goel and others it was observed that "no judicial review of DPC proceedings, which are ordinarily conducted, in accordance with standing Government instructionsand rules, iswarranted." 16) For the reasons mentioned hereinabove, there is no merit in this petition. The petition is dismissed. In the facts and circumstances of the case, no order asto costs. Sd/- Safish K. Agnihotri Raju JT2007(3)SC361 •^'