EEGE-‘i COU 73 - RT : Naval Kis‘nore B S/D I‘tawari Ram aged about 3‘5 veam, R/G 3-3, 2m} Flour, Gaj ara Calony, Bar1kimong§rm \‘7 Distto Karina (C3) SGuth Eastern Coal Fielis Ltda Caal ‘Vntl‘r (CG) 33C‘niaf General iviw‘laiiem south Eastern Ccal Fiebis Ltd“ Keisha, Disttg Karba (CG) \/’ yuwrm mmg ARTIC .22gi/227 OF / ; T I N D I‘ZX av - \ IGH COURT OF CHHATTISGARH : BILASF’UR H WRIT PETlTlON NO.2238 OF 200’] Naval Kishore Baghe l Versus South Eastern Coal Fields Limited & Others PETlTlONER RESPONDENTS Post for pronouncement of the orders on the i¢§ay of February, 2011 Sdl- ‘ Satish K. Agnihotrl i Judge “’ / HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETmON NO.2238 OF 2001 PETITIONER Naval Kishore Baghel Versus SPONDENTS South Eastern Coal Fields Limite Others 1‘ (Writ petitions under Article 226/227 of the Constitution of India) Single Bench : Hon’ble Shri Satish K‘ Agnihotri, J. Present :— Shri Ali Asgar, Advocate for the petitioner. Shri P.S. Koshy, Advocate for the respondents. (Delivered on this Z fa‘ay of February, 2011) By this petition, the petitioner mainly seeks the following reliefs : "(i) That, he be given the grade ‘A’ w.e.'f. 2—7—1 990. (ii) The petitioner be promoted in the grade of E—1 w.e.rt July, 1993‘ (iii) > The petitioner be promoted in the grade of E—2 weft July, 1996. (iv) The petitioner be promoted in the grade of E—3 w.e.f. July, 1999. (v) After promoting the petitioner in the above mentioned grades he be given all the monetary benefits including the arrears from the date when he becomes entitled for the same" ‘The facts, in nutshell, as projected by e petitioner, for th adjudication of the case, are that the petitioner was appointed on the post of Deputy Surveyor (Mining) on 2—7-1990 (Annexure — A/1) y and was given grade ‘Ci According to the petitioner, as per the policy/circular dated 10—1-1989 (Annexure — A/2) of the respondents, the petitioner should have been given the grade ‘A’ because he was diploma holder in the Mining Engineering, By RE raising all of his grievances, the petitioner submitted a Irepresentation before the respondent authorities on 2-8—1991 (Annexure — A/3) and requested for upgradation of his grade fromv ‘C’ to ‘A’. The petitioner again made a representation on 13—7—1992 (Annexure — A/4) and also approached the authorities for consideration of his grievances, but the same have not been considered. ln the meantime, by order date‘d 16—7-1992 (Annexure — A/5) the grade of the petitioner was upgraded and he was given grade ‘B’ i.e. Deputy Surveyor Grade ‘B’, Subsequently, the petitioner Was promoted to the post of Surveyor Grade ‘A’ by order dated 26—3—1993 (Annexure — A/7), The petitioner joined on the promotional post i.e. Surveyor Grade ‘A’ on 14—1993 (Annexure - A/8), but under protest. According to the petitioner, by order dated 313—1‘9'94 (Annexure — A/9) the respondent authorities granted notional seniority to the petitioner wef. 2—7-1990 to Grade ‘A’ without any difference of salary, but the copy of the said order has not been supplied to the petitioner. On account of the mistake committed by the respondent authorities, the petitioner was deprived from so many promotional opportunities and his juniors were promoted to the higher posts. Even by order dated 24—11—1994 (Annexure - A/ii), eight persons were promoted to the post of Grade E-1, but the candidature of the petitioner has not been considered. Thereafter, also by order dated 25-2—1999 (Annexure — A/13) promoted some employees to grade E—2. lf the petitioner would have been appointed and promoted correctly, he would have been placed in the promotion list dated 25—2-1999. Eariier, the petitioner along with one another person preferred a petition being W.P.No.2007 of 1994, which was dismissed as withdrawn with liberty to fiie e freeh petition by mentioning the subsequent events. Hence, this petition. Shri Ali Asgar, learned counsel appearing for the petitioner, would submit that the action of the respondent authorities is illegal, arbitrary and against the well settled principles of law. The respondents ought to have give‘n Grade ‘A’ to the petitioner w.e.f. 2—7-1990 with all consequential benefits. The grievances of the petitioner were not considered by the respondent authorities well within time: In fact, the petitioner was eligible for Grade ‘A’ as on 2—7—1990 and he would have been Senior Survey Officer E—3 by this time as per the circulars of the respondent authorities. The petitioner was promoted to Grade E—1 on 16—5—2003, which he was entitled in the year 1993. Shri Ali Asgar would further submit that the order dated 3-3—1994 with regard to grant of notional seniority to' the petitioner w.e.f. 2—7~1990 was never implemented and even the copy of the same has not at all been provided to the petitioner. From the said fact, it appears that the respondents are acting with ma/a fide intention only to harass the petitioner. Shri Ali Asgar would also submit that the petitioner has been severely prejudiced, as his colleagues and juniors have become senior to him and the vindictive approach of the respondents is causing irreparable loss to him. Shri Ali Asgar \\ W 7 ie e~r_—w;~__m.sv_,__._.——... placed reiiance upon the decision of the Supreme Court in Sfate of Kera/a and Others v. E.K. Bhaskaran Pil/ai7 Shri Koshy, learned counsel appearing for the respondents, would submit that the petitioner was also given the notional seniority in the post of Surveyor T & S Grade ‘A’ w.e.f. 2~7~1990 in terms of the circular dated 104—1989 and the petitioner has received all the advantages in terms of promotion policy and guidelines prevailing from time to time in the respondent company. On the date of promotion of eight persons by order dated 24414994, the petitioner was not having the experience of seven years. Thus, the candidature ofthe petitioner was not considered. Shri Koshy would further submit that the eligibility criteria for promotion from TS. grade ‘A’ to‘Assistant Survey Officer (E-1 Grade) is seven years of service in the feeder post. The requirement of seven years from T.S. Grade ‘A’ to Assistant Survey Officer (E-1 Grade) was further modified and reduced to three years of service in the feeder post w.e.f. 18424997. The petitioner became eligible for promotion from the post of T.S. Grade ‘A’ to Assistant Survey Officer (E—1 Grade) only w.e.f. July, 1997 onwards. Shri Koshy would submit that the experience in a particular place is to be reckoned from the date the petitioner was posted as T.S. Grade ‘A’r The notional promotion cannot be counted for the purpose of experience. in support of his contention Shri Koshy placed reliance upon the decision of the Supreme Court in Union of India and Others v. M. Bhaskar and Others? i (2007) 6 soc 524 2 (1996) 4 soc 416 9. Shri Koshy‘womd also submit that the petitioner’cannot ciaim the relief in comparison with those ersons who were promoted by p order dated 24414994. he petitioer had been given all the T n promotions in tems f the prootion policy and guidetin evailing from tie o time and, assuc, the petition has become pr m t h infructuous. Shri Koshy would submit that on perusal of the Annual Confidential Reports of the petition, it was ou tat the er fnd h titioe w not fit fo promotion, there was ‘erage’ ent penr as r as an av ry in te ACR for he year 1996—97 and it is the lgal positi in the h t e on company itself that a person, whose entry is blow od’ would e ‘go not be considered for protion. om In reoinder, Shri Ali Asgar, larne counsel aeang for t petitioner, would submit that the experiec f 7 yes is no , ne o ar t necessary in ca o the petitioner. he said crite is applicable se f T ria for non~diploma stream i.e. for field candidate, was the here v peitior hold the qualification of diploma in mining, for which, the tne s mp o o T& eligibility criteria is coletion f 3 years in Surveyr S Grade ‘A’. 11. l have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. 12, The Board of Directors of the Coal lndia Limited in its meeting held on 25—4—1987 recommended that for promotion from the post of T & S Grade ‘A’ to Surveyor, there should be three years experience as Deputy Surveyor with qualification of matriculate with surveyors competence certificate, diploma in mining or surveying & surveyors certificate. Thereafter, it is not made clear asto whether the /'/ r o m es j ed ppri he recommendation has been accepted and has been brought into effect or not. 13. On the basis of documents produced by both the parties, it is difficult to held asto whether it was three years or seven years at the relevant time when the petitioner became eligible for consideration for promotion to the post of rE—1 Grader The recommendation indicates that the experience of three years as surveyor T&S ‘A‘ for diploma in mining or surveying & surveyors certificate, was necessary for consideration to the post of E—‘l Grade. 14. The relevant extract of the recommendation reads as under : “ROARD OF DIRECTORS OF COAL INDIA LTD. HELD ON 25.4.87 ITEM No.84 : 4(C) Sub: Revised staffing pattern/promotion. ayenue for Mines Survey Personnel. 4.15 The Board approved the revised cadre scheme recommended for opening the promotional avenues to Mines Survey Personnel up to E—8 grade. 4.16 The Board also approved the proposal for extending the opportunity to the officers (in the grade of E-S and above) in mining discipline who besides holding first class competency certificate also hold mines survey certificate to Exercise thei option to move horizontally to survey discipline and in such cases to reckon their eligibility for promotion in survey discipline giving full credit to their service in the Mining Cadre in that grade. SURVEY CADRE SCHEME Annexure — ‘C’ r 8l. Designation Scale of Minimum Qualification Minimum Not Pay experience 1. Dy. T & S — C Matriculate with surveyors certificate i NIL Surveyor competency 2. Surveyor T & S —A i. Matriculate with Surveyors 3 Years as Dy. Competency Certificate Surveyor Diploma in Mining Surveying and Surveyors certificate iii. Successful completion Company’s training course of not less than two yeas and Surveyors certificate competency i Matriculate with Surveyors Competency certificate NIL v NIL A total of 7 years past qualification experience. Out of which a minimum 3 years in T&S—-A 3 years Surveyor inT&S—A 3 years as Surveyor in T & S—A ii. Diploma in mining or surveying & Surveyors certificate iii. Successful completion company’s training course of not less than two years and surveyors certificate competency 15. ln the facts of the case, the petitioner was initially appointed as Deputy Surveyor (Mining) Grade ‘C’ on 2-74990. Thereafter, he was promoted/posted as Surveyor Grade ‘A’ on 26—3—1993. Subsequently, on the basis of representation ‘made by the petitioner on 3—3—1994 notional seniority was granted to the petitioner on the post of Grade ‘A’ w.e.f. 274990. 16. The question asto whether experience of three years/seven years is to be counted from the date when notional seniority was given to the petitioner or from the date he was actually promoted and posted on 26-3—1993 ‘1- The law is well settled on this point. ln M. Bhaskal2. the Supreme Court observed as under : “15 ..... The mere fact that his promotion in Grade ii was notionally made effective from 1140—1988 cannot be taken to mean that he started gaining experience from that day, because to gain experience one has to work. Notional promotions are givento take care of some injustice, inter alia, because some junior has come to be promoted earlier. But we entertain no doubt that the person promoted to higher grade cannot gain experience from the date of the notional promotion; it has to be from the date of the actual premotion”. 17. if three years experience is counted from 26—3—1993. the petitioner became eligible in the month of April, 1996 for consideration of his candidature for promotion to the post of E—1 grade. 18. Reliance of the petitioner upon the decision of the Supreme Court in E.K. Bhaskaran Pillai7, for the purpose of grant of arrears of salary on the basis of notional promotion with effect from the date of notional promotion is not relevant to the facts of the present case, as in the order of granting notional promotion it was made clear that the petitioner would be entitled to notional promotion l without any difference of salary i.e. arrears. 19‘ meeting of the Departmental Promotion Committee (for short “the DPC") was held on 13—4—1996, but no cail letter was issued to the petitioner and thereafter, in the DPC held on 24—12—1997, 9-5-1998 and 10—8—1998 the case of the petitioner was considered, but he was not selected for want of supply of the ACRs by the concerned department. 20. The respondent has considered the case of the petitioner on receipt of ACRs as on the date when he became eligible, however, in ACRs, it is reported that there was a remark ite. ‘average’ and, as such, the petitioner was not found suitable for promotion. Even otherwise, there is no challenge to the non—consideration or rejection of his case on account of average ACR in the year 1996-97. Thereafter, in the DPC dated 21—9-2002 the petitioner According to the learned counsel appearing for the petitioner, the was found suitable and was promoted to the post of Grade ‘E-1’ by order dated 16—5—2003 (Annexure e RM). 21. The proceedings of the DPC and selection therein cannot be judicially reviewed unless it is found that there is exercise of ma/a fide or violation of rules. 22. The Supreme Court in Nutan Arvind (Sim) vi Union of /ndia and Anothera, observed'as under : “6 ........ lt is for the DPC to consider at the time when the assessments of the respective candidates is made. When a high-level committee had considered the respective merits of the candidates, assessed the grading and considered their cases for promotion, this Court cannot sit over the assessment made by the DPC as an appellate authority. The DPC would come to its own conclusion on the basis of review by an officer and whether he is or is’not competent to write the confidentials is for them to decide and call for report from the proper officer ‘lt had done that exercise and found the appellant not fit for promotion. Thus we do not find any manifest error of law for interference". we observe as under : “15.....ln the absence of any allegation of mala fide or bias against DPC and in the absence of any arbitrariness in the manner in which assessment has been made, the High Court was notjustified in directing that the benefit of upgrading be given to the respondent, as was done in the case of R.S Virk.“ 3 (1996) 2 scc 488 4 (2007) 11 soc 10 w a \\ Even othenNise, the petitioner in this petition has sought a direction that he should be given grade ‘A’ w.e.f. 2—7-1990. The petitioner 23. In Union of India and Another v. A.K. Narula", the Supreme Court had akeady been granted notional seniority w.e.f‘ 2~7~1990 on the post of Grade ‘A’, the question of implementation cannot be considered, as the order dated 3—3-1994 cieariy indicates that that the same was passed without granting arrears of satary except notional fixation. The order dated 3-3—1994 is not under challenge in this petition. 25. Subsequently, the petitioner has sought relief for consequential promotions, which cannot be directed) as the petitioner was already promoted to the post of E-t Grade by order dated 16-5—2003 (Annexure — RH) and ,his candidature may be considered, thereafter, in accordance with the rules, for further promotions. 26. In the result, the writ petition being, bereft of merit, is liable to be and is hereby dismissed. 27. There shall be no order asto costs. Sdl- Satish K. Agnihotri l Judge