€-^ /^- IN TOE HIGH COIIRT OF NADHYA PRADESM AT 3A Bfi L PBLR, y<p. tio^-^1 /2ooo» PETITIOMER RESPONOENTS S P» K^ R©hanaiat< 9s. Steel Authority of India Ltd. and a^ofeher® ^J^JH3mJ^^^R^C^S_22^Z2yLM^M^WSSSM!S!LOLl^h& 2ElMJ^o.?-JM^£ELBoi 1. PARTECULfiBS OF TH£ PETIHONER P^ K^ R@hanant ^/@ late Shri P^K* Krishnar^? a§ed aboafe 43 years» Private Seerefea^t P. No» 136231, Bhilai Sfeeel Plarsiy Tesidenfc ©fQr» No^ 4««A,SBct©2?-1©^ Sfe2?©©fe^ IQf 8HILAI («•?•)• s ^ mRnCULARS OF THE RESR3NDENTS S I® Sfce©l Avfehority of ladia Ltd®f Through ifcs Nar^aging Di^eetor^ Bhilai Steel Plant, BHILAKPi»P»)< 2^ Shri GoC^ Upadhyaya^ Pcivate S©Gretayy^ P« No< 150261, Steel Authorifcy of Irsdia Ltd<»> Bhilai Steeel Plant, ^HILAKPI.P.) . \-)' ^ mOH COURT OF CHHATTISGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION No. 3287 of2000 P.K. Mohanan Versus Steel Authority oflndia Ltd. & Another AF-^ ^ for pronouncement ofjudgment & order on .. ^day of September, 2011 Sd/- Satish K. Agnihotri Judge ^ "t; \\0"t) HIGH COURT OF CHHATTISGARH : BILA8PUR PETITIONER RESPONDENTS WRIT PETITION N0. 3287 of 2000 P.K. Mohanan Versus Steel Authority oflndia Ltd. & Another WRIT PETITIONS UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA Sjngle Bench : H^n'bleShrlSatish K. Aenihotri, J. Present:- Shri P.K.Mohanan, petitioner-in-person. Dr. N.K.Shukla, Senior Advocate with Shri Shailendra Shukla, Advocate for the respondents. (Deliver^d on this ^ay of September, 2011) In the instant petition, the petitioner seeks quashing of the selection proceedings held for E-0 grade in Personnel & Administration Department of respondent No. 1, further setting aside the selection ofthe respondent 2 on the post of E-0 grade. The petitioner further seeks a direction to the respondent No. 1 to consider and promote the petitioner in E-0 grade from the date respondent 2 was promoted with all consequential benefits. The brief facts, as projected by the petitioner, are that the petitioner was initially appointed and joined in the month ofFebmary^ 1980.as a Private Secretary (PS) in Bhilai Steet Plant {for short 'the BSP') ofSteel Authority of India Ltd. (for short, (the SAIL)). The petitioner's whole ser^ice record was clean and unblemished. At no point of time any disciplinary proceedings or criminal case were pending or contemplated against him. No adverse C.R. was ever communicated to him. The petitioner is presently working in S-10 Grade (non-executive) ^v.e.f. 31 December, 1996. In the line ofpromotion, -.''^.-^;^:-<SM'. ''] \^ il ^^ the next promotion of Private Secretary is to the post of Junior Executive (E-0 Grade). The E-0 grade is an executive post. The traasfer/posting, seniority, promotion, etc. ofall the Private Secretaries ofBSP, though posted in various Sections, are being dealt with centrally by the Personnel & Administration Department of the BSP. Accordingly, all the Junior Private Secretaries/ Private Secretaries ofBSP have a common seniority aiid line of promotion irrespective oftheir place ofposting. The respondent No.l has formulated a policy ofpromotion from Non-Executive to Executive Post (E-0 Gr.) which is applicable in all the units of Plants of Steel Authority of India Ltd. (SAIL). A pemsal ofthe policy goes to show that the eligibility ofnon- technical staff for promotion from Non-Executive to Executive Post in E-0 Grade as per the SAIL policy mentioned above is as under:- Matriculates Graduates/PGs Graduates/PGs with Professional qualification 11 years in S-8 and above grades. 09 years in S-8 and above grades. 07 years in S-8 and above grades. Petitioner would further submit that the respondent 2 was earlier working in Neelanchal Ispat Nigam Ltd. (for short, (the NINL'). The respondent 2 sought his transfer on his own requests from NINL to BSP. The said transfer was from other organization/unit/plant and accordingly, as per the general mle oftransfer firom one organization to another, the seniority offhe persons, so transferred on his own request, had to be reckoned from the date of his joining in the new organization/unit/plant. In other words, such a transferred employees shall be treated to be the junior-most of all the employees akeady working in the new organization. The said principle has been upheld by f'J-^1'^1 ^ \^ Supreme Court in the matter oi Renu Mullik v. Union of India & Another1 wherein it was held that an employee who seeks transfer on his own request gets bottom seniority in the new unit although his earlier services may be counted for the purposes of counting his eligibility for consideration. Respondent 2 sought transfer on his own request and he joined the BSP in L-8/S-8 Grade on 15 Febmary, 1991 Accordingly, the Management has rightly placed the respondent 2 as junior to the petitioner. It is categorically submitted that the seniority position of the petitioner and the respondent 2 has not been changed. The respondent 2 was junior to the petitioner. The petitioner's name found place at No.59 wherein the respondent 2 was at No. 61 in the seniority list as on 31 March^ 2000. Thus, the petitioner was all the time senior to the respondent 2 in the seniority list. In the criteria or eligibility as determined under Personnel Manual^ the respondent 2 became eligible to be called for E-0 Grade inter^iew on or after 15 Febmary, 2000 whereas the petitioner became eligible to be called for E-0 inter^iew from 31 December, 1996. From December, 1999 onwards^ a good number of eligible employees of both works and non-works (Technical & Non- Technical) departments were inter^iewed by the BSP Management for selection to the post ofJunior Executive (E-0 Grade). In accordance with the existing guidelines/policy ofthe respondent l, the eligible non-executives for promotion to the post ofExecutive (E-0 Grade) were required to be called for inter^iew in the ratio of 1:3 with reference to the number ofvacancies in the order of their seniority. In the Personnel and Administration Department coming into Non-works Department of Bhilai Steel Plant to which the petitioner belongs, an interview for promotion to E-0 Grade has taken place 1 (1994) 1 SCC 373 \-A R 4. on 22/23 May, 2000. No inter^iew letters were issued and the candidates were informed over telephone to appear in the inter^iew. The respondent 2 was interviewed on the telephonic call by the Management for the post ofE-0 Grade, whereas the petitioner was not called for such consideration who was all the time senior to the respondent 2. Because of such non-consideration, the petitioner had to suffer monetary loss in terms of higher pay package, increased monthly incentive attached to the post, enhanced local traveling expenses, vehicle advance for four wheelers, allowance for periodicals and magazmes. On the other hand, Dr. Shukla, leamed Senior counsel appearmg with Shri Shailendra Shukla, leamed Advocate for the respondents, would submit that the petitioner had filed a case No.A-l/78/MPIR/99 before the Labour Court, Durg, under the provisions of the Madhya Pradesh Industrial Relations Act, 1960 challenging the Long Service Award given to Shri C.G.Upadhyay, which was rejected on 14 November, 2002 (Annexure R/l-1). The petitioner had^ therefore, no locus standi to directly file present writ petition in the Hon'ble High Court challenging the promotion ofthe respondent 2 on the ground of being junior. He should first file the case before the Labour Court under MPIR Act, 1960 for redressal ofhis grievance which he had not done and therefore, his petition in the Hon'ble Court was not maintainable and deserves to be dismissed on this ground alone. The petition was also barred by limitation and laches as he should have challenged the question of seniority in the year 1991 when the respondent No.2 joined SAIL, BSP on 15 Febmary, 1991 and not after the lapse of 9 years when the respondent No.2 was already promoted twice in S-9 on 31 December, 1991 (PG) S-10 on ,i."iT^,. s 1 "^, s;: J^ \. ^4/ ^-,^gy \ •^o 31 December, 1995 prior to his promotion to E-0 w.^./ 30 June, 1998. The petition ofthe petitioner deserves to be dismissed on this ground also. Dr. Shukla would further contend that there was no infringement of mles in the matter ofpromotion from non-executive to executive post (E-0). The tme facts are that the petitioner was much junior to the respondent 2 and was not eligible for consideration for inter^iew to the post ofjunior executive (E-0) as he did not complete total Nine years of service in S-8, S-9 & S-10 grade on 30th June, 1998. It is made clear that as per eligibility, the respondent No.2 was holding S-8 grade w.e./ 13 March, 1983. The respondent No.2 had represented vide his application dated 25 JuneJ991 for allowing him higher grade, keeping in view his past 8 years of seMce in A-3 grade which he was holding from 15 March, 1983 in NTNL. The management considered the same and he was allowed S-9 grade (Personal Grade) ^.e.f. 31 December, 1991. The respondent 2 was fiirther given higher grade of S-10 to the post of private Secretary ^v.e.f. 31 December, 1995. The respondent 2 was therefore considered for promotion to the executive post (E-0) since he has completed more than 9 years service in S-8, S-9 and S-10 grade on 30 June, 1998 and was promoted to the post ofJunior Executive (E-0) ^v.e.f 30 June, 1998. It was next submitted that the petitioner was in S-8 grade w.^./31 December, 1989. He was further given higher grade of S-9 ^.e.f. 31 December, 1992 and S-10 grade w.^./ 31 December, 1996. The petitioner was not eligible for promotion to the E-0 as he had not completed 9 years service in 8-85 S-9 and S-10 grades on 30 June, 1998 as per the executive promotion policy. The Supermtendent (Diesel) ofthe respondent company with whom the petitioner was attached in the year 1983 had ordered for issue of charge-sheet to the I petitioner on 07 March, 1983 for refusal of typing work which was subsequently dropped. 7. The petitioner is at present in S-10 grade non-executive w.^./ 31 December, 1996. But it is not correct that there is LOP (Line ofPromotion) from non- executive to executive E-0 grade.It is submitted that it is basedpurely on selection basis as per the executive promotion policy of the answering respondent. The executive promotion policy from non-executive cadre to executive cadre, which is self-explanatory that there is no LOP and promotions are made through selection basis. The petitioner did not fulfill the eligibility criteria for completion of 9 years of service, hence this petition is liable to be dismissed. It is submitted that the petitioner is junior to the respondent 2 in S-8 grade. The petitioner got S-8 grade ^.ef. 31 December, 1989 whereas the respondent 2 is holding S-8 grade ^.e.f. 15 March, 1983. It was further stated that the candidates who were having the educational qualification of graduation and completed 9 years of ser^ice or more on 30 June, 1998 in S-8, S-9 & S-10 grade were called for inter/iew and considered for promotionto E-0. In the instant case, the petitioner had not completed 9 years ser^ice as he was given S-8 grade on 31 December, 1989 and he would be completing 9 years service only on 31 December, 1998. As he was not eligible for promotion, petition is liable to be dismissed. The petitioner's educational qualification are B.A. L.L.B. and therefore 9 years regular service in S-8 grade and above is necessary to consider him for promotion to the post ofE-0. 8. The respondent 2 was transferred from (NINL) to Steel Authority of India Ltd. (SAIL) on parallel basis with posting to Bhilai Steel Plant with the condition that his seniority in the present grade will be counted from the date 1 i! ^ of joining in respondent company. His absorption in 8AIL BSP is in continuity of ser^ice and in the same grade on parallel transfer terms. The respondent 2 hadjoined SAIL as Assistant (S/T) ^.e.f. 26 March, 1973 at Rourkela Steel Plant whereas^ the petitioner joined as Assistant (S/T) on 05 Febmary, 1980 in SAIL, BSP. The respondent 2 was transferred from Rourkela to NTNL in June/ 1982 and he joined there on 21 June, 1982. Later on, the respondent 2 was considered for his absorption in SAIL, BSP and transferred from NINL to BSP andjoined at BSP on 15 Febmary, 1991 in L-8 grade. Thus, it cannot be held that the transfer ofthe respondent 2 was as per his own request. The petitioner was thus, junior to the respondent 2 and therefore, the claim of the petitioner is not tenable. The respondent 2 had already completed 9 years service in S-8 grade and above on 30 June, 1998 whereas the petitioner completed 9 years service in S-8 grade and above., only on 31 December, 1998. 9. Dr. Shukla would next submit that so far as communication of inter^iew through telephone is concemed, it is an accepted mode of the respondent company. It was not the respondent 2 alone who was called for inter^iew but as many as 133 candidates were interviewed out ofwhich 53 candidates were promoted. 10. Heard the petitioner-in-person as well as learned counsel appearing for the respondents^ pemsed the pleadings and the documents appended thereto. 11. At the time of argument, Shri Mohanan submitted that pursuant to the interim order dated 29 May, 2000, all the promotions to the post ofE-0 grade would be disturbed as in total, 1760 persons had been promoted to E-0 grade after 30 June^ 1998. Thus, the petitioner gave up the relief for quashing the selection process and appointment ofthe respondent 2. However, he confines \sd \3 I "w. Rl ?Jil -^ 13. ^ 8 his prayer only to the relief for directing the respondent 1 to consider and promote the petitioner in E-0 grade from the date the respondent 2 was promoted, as is evident from the written submission dated 02 September^ 2011, filed by Shri P.K.Mohanan. 12. Under Personnel Manual, 1992, the policy for promotion from non-executive to executive cadre, provides as under: "1. Policy: All promotions from non- executive cadre would be through E-0 only. They will be placed in E-l after completion of training and based on performance in E-0." Para 2 ofthe above policy provides for criteria for promotion to E-0 grade in case oftechnical^ is as under: "The posts to be filled in E-0 level in Technical categories will be earmarked as follows: i) Management Trainees - Minimum 50% vacancies at EO/E1/E2A. ii) B.Sc/Diploma holders -About 40% ofvacancies at EO/E1/E2A. iii) Exceptionally good and highly skilled matriculates and matriculates with ITI about 10% vacancies at E)/E1/E2A." Para 10 ofthe above policy provides for criteria for promotion to E-0 grade in case ofnon-technical^is as under: "a) Minimum qualification for eligibility will be graduation in any discipline. However, exceptionally good matriculates will also be considered. All such promotions of matriculates should have the specific approval of Managing Director/Chief Executive. In the category of P.A./P.S. the minimum eligibility qualification will be matriculation. b) 11 years of service in ML-3/ML-4/L-8/L-9 .for matriculates, 9 years of ser^ice for graduates and post graduates and 7 years of service for those having Graduation or Post graduation with Professional qualification." /^ ' /i. I 1 ~w%^^ 1 y/ \•^o 15. There is no dispute that the respondent 2 was granted seniority w.^./ the date he had joined the services ofBSP on transfer. It is evident from the letter dated 25 June, 1991 (Annexure R-1A) ofthe respondent 2 that hejoined BSP on 15 Febmary, 1991 and also from the seniority lists. 16. It is evident from the provisional seniority list ofJr. Private Secretary (L-8) as on 1 July, 1991 (Annexure P/3) and seniority list ofP.Ss.(Non-Exe) S-10 grade as on 31 March, 2000 (Annexure P/4) that on the basis of entry of respondent 2 on L-8 grade in BSP, he was at S.No.38 and the petitioner was at S.No.35 and in the seniority list of S-10, the petitioner was at S.No.59 and the respondent 2 was at S.No.61. Thus, the contention ofDr. Shukla that the respondent 2 was much senior to the petitioner and he was not given seniority from the date ofjoining into the ser^ice ofBSP was contrary to the facts and the same is rejected. 17. However, he had been working in L-8 grade since 15 March, 1983 in NINL. The respondent 2/by order dated 31 December, 1991 (Annexure R/l) was placed in the higher grade ofL-9 (Personal Grade) ^.e.f. 31 December^ 1991. Subsequently, by order dated 02 January, 1996 (Annexure R/2), the petitioner was placed at S-10/L-10 grade. 18. On the other hand, the petitioner was promoted on regular basis on L-8 grade by order dated 30 December, 1989 ^v.e.f. 31 December, 1989. On 30 June, 1993, the petitioner was granted higher grade of L-9. Subsequently, on 30 June, 1996, the petitioner was further granted S-10/L-10 grade. The petitioner did not question the grant of higher grade to the respondent 2 w.e.f. 12 December, 1991. Requisite requirement under the policy was not grant of higher grade ofL-9 or L-IO^ but years ofser^ice in L-8/L-9 together. ^^Kb. S "^y&^'^^a^ ^ \:^ !!•y II 11 10- 19. On pemsal ofthe rules., as aforestated, it is evident that the qualification for promotion to E-0 grade is 11 years of ser^ice for matriculates in S-8 (L-8) and above grades, 9 years for graduates/post graduates in S-8 (L-8) and above grades and, 7 years for graduates/post graduates with professional qualification in S-8 (L-8) and above grades. Thus, minimum 7 years service with graduation/post graduation with professional degree would make eligible for consideration. It is evident from the circular No.M&R-l/82, dated 01 January, 1982 that professional qualification of degree of L.L.B. is at serial No. 34 for employees in law, vigilance, personnel & town and administration. 20. Contention of Shri Mohanan that the years of service as specified in para 10 ofthe policy for promotion firom non-executive to executive cadre (Annexure P/2) means seniority in the service of BSP, is relevant consideration. Indisputably, the petitioner was senior to the respondent 2, as aforestated.. On 23.05.2000, i.e. the date of interview for promotion to E-0 grade., the petitioner has 10 years four months of service and if the service in BSP is counted, the respondent 2 had 9 years and 3 months. Thus, both were eligible for consideration. This issue came up for consideration in the matter ofRenu Mullick (Smt.) v. Union oflndia & Another2 wherein the Supreme Court., held that the transferee is to be treated as new entrant to which he was transferred for the purpose of seniority. The transferee's case would come for consideration for promotion after he had obtained sufficient seniority in the new place. But when the employee is considered, his previous service in the previous office cannot be ignored for the purpose of determinmg his/her eligibility. (1994)18cc 373 23. 11 21. In R.K.Sethi & Another v. Oil & Natural Gas Commission & Others^ the Supreme Court held as under: "12...The "next below mle" in service jurispmdence seeks to ensure that if a junior employee is given promotion without considering his senior then the senior employee can claim the right to be considered for such promotion with effect from the date on which the junior was so promoted. " Thus, all the employees who were senior to the respondent 2 as per the seniority list were eligible for consideration. However, previous service of the respondent 2 could have been considered for the purpose of determining his eligibility. The respondent 2, was admittedly junior to the petitioner and was considered for upgradation before the petitioner. Thus, the petitioner was entitled to consideration for upgradation to E-0 grade from the date^ the respondent 2 was considered. According to Dr. Shukla, the relevant date for consideration was 30 June, 1998. The petitioner completed 9 years of ser^ice in L-8 grade and above, only on 31 December^ 1998 as he was promoted to L-8 grade w.^./ 31 December, 1989. Since the petitioner has given up the issue ofappointment ofrespondent 1, it is not necessary to go into the issue asto whether the years of service is to be counted in BSP alone and/or in the previous employment also. As per the policy, the graduate with professional qualification is required to have only 7 years ser^ice in L-8/L-9 grade., the petitioner was entitled to be considered even on 30.06.1998. There is no dispute that the petitioner was not considered for promotion to E-0 grade on that date. In the provisional 24. 25. \'^ (1997) 10 SCC 616 fc 12 gradation list of Junior Private Secretary (L-8) as on 1.7.1991 (Annexure P/3), clearly indicates the qualification ofthe petitioner as B.A. LLB and the . qualification of respondent 2 as Graduate and not having any professional qualification. 26. Accordingly, the respondent 1 is directed to consider the case of the petitioner as on 30 June, 1998 for grant ofpromotion to E-0 grade and ifhe is found successful, he would be entitled to all the consequential benefits. 27. In view ofthe above, the writ petition is allowed to the above extent. Amit/ Gowri ^ 28. No order asto costs. Sd/- Satish K. Agnihotri Judge ^