AMENDED PETITION IN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH AT BILASPUR W.P.NO. 4178 OF 1998 PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA Atahal Ali Khan, S/o. late‘S‘AKhzm aged about 48 years, Legal Insp€ct0up South Eastem Coalfields Limited, ,1 Bilaspur, MOB—168, Vasant Viha‘r‘ Bilaspur (C.G.). FETITIONER VERSUS RESPONDENTS :1) Chairman Coal India Limited 10, Netaji Subhash Road, Calcutta. :2) Director (Personnel) Coal India Limited 10, Netaji Subhash Road, Calcutta. :3) Chairman—cum-Managing Director S.E,C.L., Seepat Road, Bilaspur (CG) ‘ Director (Personnel) S.E.C.L., Seepat Road, Bilaspur (CIGJ). Shri N.V.Daniel Sr.Law Officer, S.E.C.L., Seepat Road, Bilaspur (C,G.), :4) PETITION UNDER ARTICLES 226/227 OF THE CONSTITUTION OF INDIA 1. PARTICULARS OF THE PETITIONER :- As per the Cause Title above, 2. PARTICULARS OF THE RESPONDENTS :- As per the Cause Title above. HIGH COURT OF CHHATTISGARH AT BILASJE U3 WRIT PETITION N0. 4178 of 1998 PETITIONER Atahar Ali Khan. VERSUS Chairmana Coal India Limited & Others. RESPN ONDETS Post for pronouncement of order on Aafaay of September, 20] 0. MMW ”I I, HOTRI \ / sai— I I SATISH K. AGNI Judge ’ \ HIGH COURT OF CHI-IATTISGARH AT BILASPUg WRIT PETITION N0. 4178 of 1998 PETITIONER Atahar Ali Khan. VERSUS RESPONDENTS Chairman, Coal India Limited & Others. PETITION UNDER ARTICLE 226/227 OF THE CONS'I‘IILITION Oli INDIA SB: Hon’ble Shri Satish K. Agnihotri, J. Present: Shri Ashish Shrivastava with Shri Harsh Wardhan, Advocatesfor the petitioner. None for the respondents. Shri Gary Mukhopadhyay, Advocate for the Irltewener. ORDER (Passed on. .8f3day of September, 2010) By this petition, the petitioner seeks to quash the order dated 11.06.1995 (Annexure P/2) in respect of promotion granted to [he respondent No. 5 and further to promote the petitioner as Law Officer w.e.f: 13.6.1996 alongwith financia .and other l consequential benefits. The facts, in brief, as projected by the petitioner, for disposal o‘l’ this petition, are that initially the petitioner was appointed an Grade—III Clerk in the respondent S.E.C.L. in the year 19$}. Thereafter, he was promoted to the post of Legal Inspector in the year 1988. Vide circular dated 21.04.1995 (Annexure R/l'i applications were invited from the eligible departmenlal candidates for consideration of their candidature for promotion from non-executive to executive cadre in legal discipline again st the departmental quota. The petitioner, alongwith others zmd tlu: respondent No. 5 applied for the same. A list of successl‘hl candidates were prepared and the petitioner found place in the Ilsl of selected candidates. The appointment on the post of Executive Cadre in legal discipline was from two sources, one from departmental promotion to the extent of 50% and other 50% seats were reserved for direct recruitment. The requirement For promotion through departmental promotion was law graduate and three years experience in Legal discipline T&S Grade A and 2 years experience in E~I1 grade. For direct recruitment. tlip prescribed qualification was 13‘ or 2'“! class degree in Arts, Science or Commerce and 1‘“ Class degree in law and five years experience as legal practitioner in civil/criminal and taxation cases (Annexure R/4). in the departmental test, the petitioner obtained total 68 marks and the respondent No. 5 obtained 52.8 marks. ll‘ the written test marks of 200 were not converted into 40 the petitioner obtained 149 marks and the respondent No. 5 obtained 144 marks. In any case. indisputably, whatever criteria‘ was adopted, the petitioner obtained more marks in the departmental test than the respondent No. 5. The respondent No. 5 was promoted by order dated 20.04.1998. The petitioner was informed Vide letter dated 25/26.5.1998 (Annexure P/4) that. the panel ol‘ select candidates for Law Officer for promotion to the executive cadre in E-2 grade, ,had expired and as such he could not be promoted, due to lack ofvacancy . - Shri Shrivastava, learned counsel for the pettioner wod urth ‘ , i ul fctr W Li support of its contention that if the vacancy was in existence. denial of appointment to the candidate allowing the panel to lapse is unjustified. Further, reliance is placed on K. Manjushree v. State ofAndhra Pradeshz and Hemani Malhotra 1a High Court of Dezhf. None appeared for the respondent-SEC‘L. However, on pemsal of the return and written submission filed by the respondent» S.E.C.L. the averments made by the S.E.C.L are that the petitioner’s contention are vague and baseless. The respondenta. Vide circular dated 21.04.1995, invited applications from all the dn es en o thei eligible epartmetal candidat for considratio f r candidature for promotion from non—executve to ecve ce in legal discipl against the departmental uota. Sqtl n written aminio w eld 10.12.1995 and il'itervi w eld on 202.1996. Ater interview, the petitior s sected bt couldn e prooted for wat ofvacan ri the v h een th subit ha te mp ondet ‘i petitioner cannot coare his case with the respn No. . ting a the oent mtion ly conend tht respnd No 5 was given prno soel asn at ec e adopt f th because of the reo th the seltion procdure ed or e rden 5 w n fe onecd th hal . espont No. as etirely difrent and uncnte wi t o ouh, dparmnt f the petitioner. Thg the respondent No. 5 was a ete cdidat but he was promte against the quta reseed fr e ane od o rv o th direct recruitment as he fulfilled all the requisite qtmiitica‘tions i xeuti adr ine q ubseueny, exatn as h on ew as h 4. f ne wa el u ot b m n cy dung alidity of the list. Te rspondts would furer m tt h i i 2 (2008) 3 scc 512 ~ y 3 (2008) 7 scc 11 v required for appointment against the direct recruitment quota iv. first class law graduate. The criteria for selection of tlm departmental candidate for promotion was 4O marks for written test, 15 marks for the CR, 10 marks for qualincations, 25 marks for the interview and 10 marks for experiences [n contrast, the selection criteria for direct recruitment was f1rst class lawgracluale plus a written test of 200 marks and interview of 40 marks. Willi respect to the circular dated 21.04.1995, the respondents would submit that the circular was for the candidates who possessed firm or high second class graduation with first class degree in law. The respondent No. 5 applied against the circular dated 21.04.1995 also, whereas, the petitioner and other departmental candidates applied in pursuance to circular dated 30.05.1995. it is amply clear that both the circulars and advertiSements were different and the selection criteria in both the circulars were also different. ll is also not a case where the respondent No.5 was selected despite the fact that he secured lesser marks than the petitioner. The select procedure in both the cases are different according to the circular dated 8.11.1991, the panel of selected candidates would lapse after one year. Thus, the petitioner, though was empanelled in the select list but could not be appointed for want of vacancy during the validity of the list. For departmental candidates, there were parameters like written test, qualification, experience and (TR ratings followed by an interview. But in case of direct recruitment. the parameters were only written test followed by an interview. ll I is also pertinent to mention here that two separate merit. lists wen _ ‘ irec recruitment also. dt : r7” On perusal of the note-sheet, it is found that a merit 1ist Ol‘ departmental candidates against departmental quota of 2‘0 candidates was prepared. One Mr. P.G.Godbole was placed ut serial N0. 1 on obtaining in total 79 marks and the petitidnev Was placed as last candidate at serial No. 20 on the basis of 68 marks obtained by him. On the same date, merit list of depaitlnent'ul candidates against direct recruitment quota was prepared wherein the respondent No. 5 alone was selected on the basis he obtained 114 marks in written test of 200 marks and 30 in interview o‘l’AIH marks, in total, 144 marks. The respondent No. 5, was not in the ‘ merit list of departmental candidates against the departmental quota. Thus, there is no comparison between the petitioner émd [he respondent No. 5. lt'is also not the case of the petitioner that the petitioner has obtained first division or high second division in graduation degree and first division in law and five years experience as Legal Practitioner which is evident from Annexuro Rejoinder P/10, (page 149 of the paper book). Thus, there is no case of discrimination as the mode of appointment of the petitioner and the respondent No. 5 was entirely different. 10. So far as appointment of Shri A.K.Shukla is concerned, the same was done pursuant to the order dated 23.03.1998 (Annexure W6) passed by the High Court of Madhya Pradesh in W.P. Nit 1282/1997, and as such, the same cannot be cited as an example for validation of the panel list. ‘9. . The respondent authorities have considered the vacancy position which was approved by the respondent No, l and it was clearly stated that the validity of the select list, which expired, on 17.05.1997 was not extended. which is as under: “Sub: Promotion/appointment of departmental candidates as Law Officer in E2 grade against departmental quota. On the basis of written test held on l0.l2.‘)5 and subsequent interview held on 24.2.96, a panel of 20 departmental candidates was drawn for promotion/appointment from non~executive to executive cadre to the post of Law Officer in 132 grade against departmental quota. The said panel was approved by the Chairman, CIL on 18.5.96. On the basis of vacancy, 13 candidates have already been promoted/appOinted as Law Ofticer from time t0 time. The following 7 candidates are still in the panel: 1. SriAK Shukla 2. “ SKMitra 3. " SKBanerjee 4. " Nand Kishore Singh 5 6 7 They could not be promoted/appointed for want of vacancy against departmental quota due to surrendering of posts and revision of sanctioned strength. Although as per the revised sanctioned strength there is no vacancy in E2/E3 grade in legal discipline: the overall vacancy position (E1 to M3 grade) i515 i.e. 3 posts against departmental quota. Since there is an acute shortage of legal personnel in the subsidiaries, CLM, CIL is pressing for immediate posting of Legal Executives in the companies so that legal cases are properly attended to. Our recent efforts to appoint suitable candidates from outside has also failed to ryield any result. 1t is, therefore, felt necessary that the 7 candidates who have long experience of the industry specially in the legal . “ RK Yadava i Md Afzal AA Khan ‘ matters, may be promoted/appointed as Law Offiqer in E2 grade. As per propoSed re—apportionment position after surrendering posts, the sanctioned strength, working; trength and vacancy position of Legal Discipline prevails as under: (Post being operated Similarly, the sanctioned strength, working strength and vacancy position of Economics (Ex- Cadre) discipline is as under; as per proposed reapportionment position: s SS WS VP M3 l 0 1 M2 5 M1 4 E5 15 6 E4 l E3 16 6 E2 0‘ —8 JET 0 0 0 E1 0 0 0 42 37 5 SS WS VP M3 O O 0 M2 0 0 0 M1 0 0 0 E5 4 3 E4 0 E3 l 0 0 10 E2 0 -l JET 0 0 0 E l 0 0 3 It will be seen from the above that ere re overall 5 and 11 posts lying Vacant in Legal and Economics (Ex—Cadre) disciplines respectively. To meet the urgent requirement of the companies it is proposed that out of 5 vacant posts ol‘ Legal discipline, we may operate 2 posts for [2 grade, keeping the remaining 3 posts for outside quota and after revalidation of the panel which has expired on 17.5.97. It is also proposed that we may operate temporarily 5 posts from the Economics _(EZx«Cadre) discipline so that we may fulfill the requirement of Law Officer in E2 grade of different coal companies“ This may kindly be approved. (SA Yusuf) GM(P) 27.5.97 CGM(P&IR) XXX XXX XXX Director (P&IR) XXX XXX XXX Chairman CGM (P&1R) XXX XXX XXX No validation ofpanel possible. Sd/- Illegible.” 12. The issue raised for consideration in this petition is asto whether the petitioner has acquired a right. to appointment on the basis ol‘ being in the select list Which expired subsequently before the petitiOner could be appointed on account of lack of vacancy. Reliance of the petitioner in Vijay Kumar Sharma (supra) 1s not relevant as in that cases, life of the panel for general category wa s extended but the panel of OBC category was not extended. Further, the ratio laid down in K Manjushree (supra) relied on by the petitioner is also not applicable to. the facts of the case. as the th a 11 question involved therein was whether the procedure prescribed can be changed after the process of selection commencun. Similarly, reliance on Hem‘ani Malhotra (supra) i3 also n‘ol of‘any help to the petitioner. , The Supreme Court, in State of UP. & Others v. Harish Charm/m & Others", holding that no direction can be issued to recruit u candidate from the select list after validity of the list hasexpiretl,‘ observed as under: “l 0. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions ofthe Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous‘. Fulther question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the writ petitioners. Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direCt the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in View of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recmit the respondents who were included in the select list prepared on 44—1987 and the list no longer survived after one year and the rights, if any. of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents, ‘ no doubt: have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation The learned counsel appearing for the appellants. rl (996) 9 SCC 309 l submitted that in some cases pursuant to the rection of the Court some appointments have been made but in some other cases it might have been done by the appointing authority, Even though we are persuaded to accept the submission of the learned counsel For the respondents that on Some occasions appointments have been made by the appointing authority from a select list even after the expiry of one year from the date of selection but such an illegal action of the appointing authority does not confer a right on an applicant: to be enforced by a court under Article 226 of the Constitution.” l4. 'ln Amlan Jyoti Borooah v. State ofAssam & Others: the Supreme Court observed as under: 42. Yet again in State of Bihar V. Amremrlr'a Kumar Mishra this Court took the same View, stating: (SCC p. 564, para 9) “9‘ Life of a panel, it is well known, remains valid for a year. Once it lapses. unless an appropriate order is issued by the State, no appointment can be made out of the said panel.” It was thrthermore held: (Amrendra case, SCC p. 565, para l3) “13. The decisions noticed hereinbefore are. authorities for the proposition that even the wait list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period.” 15. Further, the Supreme Court, in Stale ofBz‘har v. Upendra Narmnm Singh & Others6, observed as under: “67. ‘By now it is settled that the guarantee ofequality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegaliry or for passing wrong order ~ Chandigarh Admn. V Jagjil Singh, Jaipur Development Authority v. Daulat Mal 5 (2009) 3 SCC 227 6 (2009) 5 SCC 65 di . . SATISH K. AGNIHOTRI Judge e i .