's'nn KfistSffi ' ^- a 3.?^ ^ IL^ ^g S^B@ c .p y^ IN THE HIGH COURT QF CHHATTISGARH AT BILASPURJC.G.) WRIT APPEAL No. .i.-l?......./2009 (Division Bench) ^^^•^^s^^ APPELLANT (Petitioner) ^^ °^z 'y"y ^' ^.^' .£\-' ^- .^.-•-" A.K.CHHIBBER aged about 62 years S/o Shri K.N.Chhibber House of Late Ms. U. Chhibber, Sr. Advocate 100, Teen Murti Chowk, Sunder Nagar, Raipur (C.G.) - 492013 V^RSUS RESPONDENTS : 1 COAL INDIA LIMITED Through : Chairman 10, Netaji Subhash Road/ Kolkata - 700001 2. SOUTH EASTERN COAL FIELDS LTD Through : Chairman cum Managing Director Seepat Road, Bilaspur (C.G.) 3. DIRECTOR (Personnel I&R) Coal India Limited 10, Netaji Subhash Road, Kolkata - 700001 -.j -^A~^ rr^1,H> -V" S"'r:^r »'..V.',Y/ ^' ^^'t^y 4.~~~~A^K_SINHA^ ^ f.^ G.M.^^- .<y~ Larketing) ^ I? <-!> <\^'~^\^ < S.R(ZL., BUaspur (C.G.y ^'^ 7--—'--"^y, ^€"'se> J ^S.-'i-'^- 5. \ B^SUBRAMNiyAM ;. M. (Sales ^. Marketing) (-C.L. Na'gpur (^A.S.) A. 6. R^S,\I<^INTH W. Sales Manager Cqfil Ind4a Limited Sfcope Cof^plex /'New Delhi' WRIT AFPEAL UNDER SECTION 2(1) OF THE CHHATTISGARH HIGH COURT (Appeal to Division Bench) ACT. 2006 ,::;S^€"\ ,? '&-.....'. i i! VSS9k 1 """1g s i;, 't',.jyj!' ,.:^s.^' ^y i-ssy mOH COURT OF CHHATTISGARH, BILASPUR DB: HO BLB I.M. QUDDUSI 85 HON'BLE N.K. AGARWAL, JJ WRIT APPEAL No.135 OF 2009 Vs. WRIT APPEAL UNDER SECTION 2(1) OF THE CHHATTISGARH HIGH COURT (APPEAL TO DIVISION BENCH1 ACT. 2007 APPEARANCE; Shri V.G. Tamaskar, counsel for the petitioner. Dr. N.K. Shukla, Sr. Advocate wifh Mr. P..S. Koshy, counsel for fhe respondents. ..^ ^K^/ ^~^fy'' '^T'y'^^ it»:''p" ORAL ORDER (15.06.2010) Per I.M. QUDDUSI. J Argiiments heard. 2. This writ appeal has been flled against fhe unpugned order dated 23.03.2009 passed by the "leamed Single ., Judge in W.P. No. 4765 of 2006 dismissing the writ petifion on fhe groiind fhat the petitioner has filed a writ PETITIONER: A.K. CHIBBER, Aged about 62 years, s/o Shri K.N. Chhibber, House of Late Ms. U. Chhiber, Sr. Advocate, 100 Teen Mnrly Chowk, Sunder Nagar, Raipur(C.G)-492013 RESPONDBNTS 1 Coal India Ltmited, Through : Chairman, 10, Netaji Subhash Road, Kolkata-700001 2 South Eastem Coal Fields Ltd Through : Chainnan cuin Managin^ Director, Seepat Road, BUaspur (C.G) 3 Du'ector (Personnel I & R) Coal India Limited, 10, Netaji Subhash Road, Kolkata700001 .fc' •'^ft.~. •''""•^^'^ St S ,:l»t. ^ts^B^ !j'£S:'l^t^^^^s'?' 3. petition earlier raistng sunilar issues and clfliming fhe same relief(s) whlch have been sought m fhe writ petition in question. The simUar reliefi(s) were claimed in W.P. No.4087/1992, 1531/1998 & Contempt Petition No.8/ 2004 filed ia fhe High Court of Madhya Pradesh and liberty was granted to fhe petitioner to take recourse to the proceedings if the petitioner so feels aggrieved of fhe decision. Brief facts of fhe case are fhat the mstant writ appeUant has filed Writ Petition which was registered as W. P. No. 4087/1992 in the High Covsrt of Madhya Pradesh at Jabalpiir claiming his promotion to fhe post of Executive Cadre (E-2 grade) with effect from the date, his contemporanes, juniors and less quali&ed persons have been promoted in 1973-1974 in CMAL pay scale with all consequential benefits aad to give further promotions to which his juniors, conteinporaries have been given successive promotions after placement m E-2 grade in CMAL. The High Court of Madhya Pradesh vide order dated 03.05.1995 disposed of the Misc. Petition (M.P.No.4087/ 1992) wifh a direction to the respondents to consider the case of fhe petitioner in accordance wifh fhe rules applicable to fhe petitioner for future promotions and monetary benefits for which he was entiUed on his placement from 01.05.1973, on fhat, a decision shall be taken bv the resoondents within a oeriod of 4 months. It u ^sa.«as, 1?^ ^,y / 'gSiSS3'" ^v^-'-'^ ^-^ ..^asp'- wf:s,^B!F-W- was also observed fhat if fhe petitioner is a^rieved of the decision on the consideration of his claim for future promotions, he shall be at liberty to fake recotu-se to the proceedings which may be available to him under law. 5. Thereafter he filed anofher writ petition which was registered as W.P.No. 1351/1998 seeking appropriate placement with effect irom 01.05.1973 and fiirther to consider his case tn fhe Departmental Promotion Committee held on 03.03.1998 and to consider hls case for promotion to the post of E-2 Grade (CMAL). This was heard aad decided by the leamed single judge by order dated 05.12.2001, fhe operatmg portion of which is quoted below: "Resultantly, fhe writ petition is allowed in part. The respondents are dlrected to consider the case of the petitioner for Executive Cadre E-2 prior to the position which existed before March, 1978 wifhout written test and for other further promotions as per rules prevailing time to ttme when entitlement arose, for which fhe petitioner was entitled on bis placement from 01.05.1973 as Technical and Supemsory Grade-A. The dtrection be carried out without 3 months from fhe date of decision. Costsonpardes." 6. Thereafter, fhe respondents preferred L.P.A. No. 17/2002 which was dismissed by the Division Bench of-High Court ofMadhya Pradesh vide order dated 12.03.2003, para 21 ofwhlch, is relevant here and quoted below: F"' \i fi'"^% f v 1 1 "'% •f' 1> ^-.-^''1 .-" -^ ...BisSH SSSy' A »,,^i«ses'»»BB'- "In oiir considered view fhe leamed Single Judge rightty allowed the relief to the writ petitioner directing the appeUants to consider the case of writ petitioner for fhe post of Executive Cadre E-2 prior to position which existed before March, 1978 without written test and for furtfaer promotion as per rules prevatling froni time to time according to fhe entitlement of the writ petitioner on accoiint of his placement from 01.05.1973 as Technical and Supervisoiy Grade-A. As we are in concurrence wifh the view expressed by fhe leamed single Judge, we iinhesitatingly conclude and hold that fhis appeal is totaUy devoid of any substance and consequently we direct its dismissal without any order as to costs.'' Thereafter, when the order ofleamed siagle Judge was not complied wifh, fhe writ appeUant flled fhe Conterapt Petition No.282/2003 which was dropped on 10.10.2003 on a statement made by fhe leamed counsel appearing for the respondent aufhorities. But again the Second Contempt Petition (Civil) was ffled in fhe year 2004 was filed being No. 8/2004 which was decided by fhe Division Bench vide order dated 03.05.2006. Operating part (Para 19) ofthe same is quoted below: "Tested on tfae aavil and touchstone of fhe aforesald judgment, we are of fhe considered opinion, fhat the case of the petitioner was considered after the LPA was disposed of and he was not found fit but because of observation of this Court made tn the proceeding for contempt he was promoted. Hence, we find , y ^ & «SA. 'y- f, ^-^SsS^ ^^vaSSs-S^ '^'"' that there is no deUberate violation of fhe order passed by this Court. If the petitioner has a gnevance that he should have been considered fhe benefit of promotion after his right ripened and he has not been properly considered he can ffle an tndependent proceeding, tf so advised." Thereafter, the writ appeUant ffled Special Leave to Appeal (CivUj No.9712/2006 against the order dated 03.05.2006 passed in fhe said contempt petition by fhe Division Bench of M.P. High Coiirt, whlch was disposed of by the Apex Court vide order dated 06.07.2006 with the following terms: "Heard leamed counsel for the petitioner. After some ai^uments, leamed counsel for the petitioner is pennitted to withdraw fhe petition in view of observation of the High Court giving liberty to fhe petitioner to move appropriate forum for redressal of his grievances in case he is a^rieved by the order which was passed pursuant to the direction of the High Coiirt in the writ petition. The Special Leave Petition is, accordingly, disposed of." ..l^ -,fS! ,,fS:s-' .i!^^ ea" ,. In fact, the order of M.P. High Court in Contempt Petition was passed on 03.05.2006 when the case of the instant writ appeUant was considered by fhe respondent authorities and an order was passed on 10.01.2005 due to pendency of the contempt case No.8/2004 promoting fhe wdt appeUant in the pay scale of Rs. 10,750 - 16750/- with effect froni fhe date of assiiming the charee. Due to S'S^^^S^I ..KS-";-'S?"^'i;'^'SSS^^^^i ®s^^ -:,uriE2>3SgS8isS' S'*''5iS3"s"i""" this reason, fhe Madhya Pra.desh High Court dismissed the Conteiapt Petition giving Uberty to fhe writ appeUant to file an independent proceeding if he feels aggrieved by the promotion order dated 10.01.2005. The Hon'ble Apex Court has also been pleased to allow the writ appellant to wlthdraw the SLP as liberty was given to htm to approach appropriate foriim if he feels a^rieved by fhe order dated 10.01.2005. It is not disputed that the gdevance of fhe petitioner froni the very begmning is that he has been denied his promotion in E-2 Grade from the date of promotion of his juniors or contemporaries from fhe year 1974. Therefore, according to the leamed counsel for the writ appellant, promottng fhe appellant by order dated 10.01.2005 prospectively would not fuUy satisjy his grievance as he has not been considered on E-2 Grade wifh effect from (he proiuotion of his juniois/ conteinporaries and hence he is not satisfied with fhe order dated 10.01.2005 and vyants furfher consideration as per his grievance. Since the Uberty was granted by the Division Bench to file independent proceeding and Hon'ble the Supreme Coiirt had also observed to file independent proceeding, therefore, the writ petition in question was filed and hence the said writ petition cannot be said to be misconceived or a frivolous proceeding. 10. The leamed single Judge in paragraph 12 of tfae impugned -order has observed that since fhe appellant had filed fhe writ oetition in ouestion claimirie similar reliefs which .^..t-'" '^^x-^< ''^^^ ^fV-'lt^v were sought m W.P.No. 4087/1992, 1531/1998 & Contempt Petition No.8/2004, the same cannot be permitted to reagitate again when there is no chaUenge to the order of promotion dated 10.01.2005 which was passed pursuant to the directions given by the High Court of Madhya Pradesh and the Court cannot sit as an appeUate Court over fhe orders passed by the High Court of Madhya Pradesh. In fact, the grievance of fhe petitioner froni the very beginning is fhat he should have been considered for promotion wifh effect from the date of promotion of his juniors/ contemporaries that is 1973 and the leamed Smgle Judge of M.P. High Coi-irt had also issued fhe directions for consideration, against vvhich, U" ;.;'!s filed by tfae respondents and the said LRA was dismissed by tfae Division Bench but t±ie order dated 10.01.2005 was passed due to pendency of Contempt Petition No.8/2004 and by promotiiig fhe appeUant vide order dated 10.01.2005 is only a part satisfaction of his grievance and due to this reason, perhaps he did not prefer to make a prayer for quashing of fhe said order as in fhat case, he would have lost the part of relief granted to him though it is clear from the perusal of the writ petition as well as writ appeal fhat he is aggrieved by that order dated 10.01.2005 as his promotion from fhe date of prom.otion of his juruors or contemporaries has not at all been considered. Therefore, in oiir considered opinion, it .'\ •SSi-; ^ ^^^s-'" .e!?SSSM cannot be sald that fhe writ petition is not raaintainable ia the facts and circumstances of the case. 11. We have been uiformed by fhe leamed counsel for fhe respondents that during fhe pendency of fhese proceedings fhe petitioner after attaining fhe age of superannuation, has retired from serrice but to our opmion, fhis wUl make no difierence as his grievance is consideiation of promotion with retrospective effect as mdicated above. Therefore, we set aside fhe impugned order dated 23.03.2009 passed by the learned singlejudge and without going tnto fhe merits regarding fhe service record of the appeUant, we dispose of fhis writ appeal with a dtrection to the respondent authorities to consider fhe case of promotion of the petitioner with effect from fhe date of promotion of his juniors/contemporaries. Obviously whUe considering the promotion of the petitioner wifh effect from fhe date of promotion of his juniors/contemporaries, fhey will have to consider the provisions of fhe rules prevailing at the relevant time and whether the promotion was on fhe basis of seniority-cum- merit or senlority subject to the fitness or other criteria may also be seen whUe consideruig the promotion of the petitioner wifh retrospective effect. 12. In fhe result, fhe appeal is allowed in part. . Siace fhe writ appeUant has already retired from service, it wUl not be proper to keep fhe matter pending for long. Hence, we du-ect that fhe matter of promotion of fhe writ appeUant be considered by fhe respondents as early as possible preferably within a period of six months from today. No costs. sd/-..^ 1.M. Q"ddusl Judge Sd/- N.K.Agrawal Judge \ -^sSsgBS ^f:^.;;'<•;?-*." Rao f^f^sS^'es- a"i.i^ .•"•s^SS^ i^%fe-"