Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 14TH DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945 WP(C) NO. 15579 OF 2020 PETITIONER: P. BASHEER, AGED 53 YEARS S/O ASSAIN, PUZHANKARA HOUSE, KODUVALLY, KOZHIKODE-673 572, WORKING AS MINES FOREMAN, GRADE VII, MALABAR CEMENTS LTD, WALAYAR, PALAKKAD-678 624. BY ADVS. SWETHA P. DILEEP P.B.MALINI RAO(K/000739/2017) RESPONDENTS: 1 MALABAR CEMENTS LTD., REGISTERED OFFICE, WALAYAR, PALAKKAD-678 624. REPRESENTED BY ITS MANAGING DIRECTOR. 2 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPT OF INDUSTRIES, 1ST FLOOR, SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADV SMT.LATHA ANAND THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15579 OF 2020 2
JUDGMENT
The petitioner has approached this Court seeking the following reliefs: i) to quash the part of Profile 2006 that makes Diploma as an essential qualification for departmental promotion for the post of Senior Foreman, as it is in conflict with MMR-1962 and other Central rules. Accordingly, the petitioner may kindly be ordered to be promoted to the post of Sr. Foreman with effect from 8.11.2015 (date of attaining eligibility) or date of vacancy whichever is later with all consequent benefits pay and allowances. ii) to issue a writ of Mandamus or any other appropriate writ,
order or direction commanding the respondent to upgrade/re-fix
the pay on financial up-gradations on completion of 5 and 10 years of regular service in any particular post.
2. Short facts are as under:-
The petitioner states that he commenced his employment as a Mazdoor in the 1st respondent Corporation on 2.03.1997 and was regularized on 2.04.1998. During his tenure, he obtained the Blaster Competency Certificate, leading to his promotion to Blaster Grade C on 17.06.1993. Subsequently, he was promoted to Blaster Grade B on 17.06.1998. While serving in this capacity, he acquired the Mine's Mate Competency Certificate, resulting in his promotion to Mines Mate Grade IV on 18.05.2001. The
WP(C) NO. 15579 OF 2020 3 petitioner further acquired the Mine's Foreman Certificate of Competency and was appointed as Mine's Foreman in Grade VII on 6.11.2008. The next promotional post for the petitioner is Senior Foreman (Mines).
3. The petitioner asserts that he is eligible for two upgradations
since he has been continuously working as Foreman (Mines) for the past ten years. He also complains that though he has received routine increments, he has not been granted upgradations/pay fixation. The petitioner asserts that the respondents denied the eligible promotion to the petitioner without any valid reasons. He asserts that being aggrieved, he approached this Court, and pursuant to directions issued, Ext.P14 order was passed. He asserts that the stand taken by the respondents in Ext.P14 is that Senior Foreman (Mines) is a Managerial promotion to which recruitment is via internal promotion after serving in the post of Mine’s Foreman for a period of seven years, and the said person should have a Diploma in Mining Engineering cannot be sustained. According to him, if he needs to obtain a Diploma, he would have to take a substantial break from work, and it would be
detrimental to his career growth. The petitioner asserts that the Mining Foreman’s Competency Certificate, which the petitioner holds, is issued by the Directorate General of Mine Safety, and the same is to be treated as sufficient for the petitioner to perform technical responsibilities in Mines. It is on these assertions that this writ petition is filed seeking issuance of directions to promote the petitioner to the post of Foreman despite not
WP(C) NO. 15579 OF 2020 4 having the qualification of Diploma in Mining.
4. A counter affidavit has been filed by the 1st respondent. It is
stated that after the introduction of a new profile in 2006, the Foreman who completes seven years of service in the Company shall be eligible for promotion to the post of Senior Foreman(Mines) if there is a vacancy and the incumbent is found competent by the interview committee. It is stated that the possession of a Diploma in Mining Engineering is the prerequisite qualification. It is further stated that the Senior Foreman position in the Company is at the entry level of the Managerial Grade which requires the
educational qualification that has been prescribed. The said authority is required to maintain records in the concerned section, send reports to the higher authority, and make entries into the system based programs, which necessitates the said persons having minimum educational qualifications. It is in the said circumstances that the Company has formulated the job profile in the year 2006, and the minimum qualification as graduation was fixed in the case of non-technical officers, and three years Diploma was fixed in the case of technical officers. It is stated that in so far as non-managerial employees are concerned, the lowest grade is ‘E’ in the Mazdoor cadre, and the highest grade is VII as Foreman, and eight grades are available. The petitioner stands promoted from Mazdoor in the ‘E’ grade to Foreman in the VII grade, being the highest grade in the non-managerial cadre within a span of 20 years and there is no cause for any grievance.
WP(C) NO. 15579 OF 2020 5
5. The learned counsel appearing for the petitioner refers to various provisions of the Metalliferous Mines Regulations, 1961, to
substantiate her contentions. She would refer to Regulation 43, which stipulates the duties and responsibilities of Mine(Foreman). She would also refer to Regulation 37, which deals with the appointment and qualifications of senior officials, and Regulation 46, which deals with duties and
responsibilities in a Mine. The counsel would also refer to Ext.P8 issued by the Directorate General of Mine Safety, which stipulates that insofar as Regulation 46 of Metalliferous Mines Regulations, 1961 is concerned, there is no difference between a Foreman certificate held by a field candidate and a Foreman certificate held by a Diploma holder. The learned counsel would then refer to Ext.P18 notification and submit that in so far as overman/ Foreman/ Sirdar/ Mate’s and Shotfirers/ Blaster Certificate is concerned, the qualifications which ought to be possessed by the person to be appointed are mentioned in detail. According to the learned counsel, a person holding a Blaster certificate can substitute a person having a Diploma in Mining or an equivalent qualification.
6. In response, the learned Standing Counsel appearing for the
respondents would point out that per Ext. P18, the Central Government has only exempted the mines from such provisions of the Coal Mines Regulations, 1957, and the Metalliferous Mines Regulations, 1961, which require the appointment of a person holding the qualifications prescribed therein on WP(C) NO. 15579 OF 2020 6
condition that persons holding the qualifications specified in the corresponding entry in the schedule are appointed instead. It is submitted that the respondents can always prescribe a higher qualification for a higher post. It was because the petitioner had the qualification of “Mining Foreman’s competency certificate” that he was given a promotion to the post of Foreman (Mines). As far as the promotion post of Senior Foreman is concerned, the post being in the Managerial cadre, the minimum qualification of Diploma has been fixed. It is submitted that the mere alteration in the chances of promotion would not be tantamount to an alteration in the conditions of service. In so far as Ext.P8 is concerned, the learned counsel would point out, all that is stated is that as far as statutory duties and responsibilities are concerned under Regulation 46 of the Metalliferous Mines
regulations, 1961, there is no distinction between a Foreman certificate held
by a Field candidate and a Foreman certificate held by a Diploma holder and nothing more.
7. I have considered the submissions advanced and have
carefully gone through the records. The records disclose that the petitioner joined the service of the company as Mazdoor (acting) and was finally promoted as Foreman (Mines) in Grade VII on 06.11.2008. The promoted post is the highest grade in the non-managerial cadre. As is borne out from R1(a), the qualification prescribed for direct recruitment to the position of Foreman is a Diploma in Mining Engineering. However, in the case of
WP(C) NO. 15579 OF 2020 7 promotion from the lower category, a relaxed qualification of Foreman Competency Certificate has been stipulated. It was in the said circumstances, though the petitioner does not have the qualification of Diploma, he was given the position of Foreman. It appears that the petitioner is aggrieved by that part of the job profile, which was introduced in 2006 that makes Diploma an essential qualification for Departmental Promotion for the post of senior Foreman (mines). This contention is that the stipulation of such qualification is in conflict with MMR 1952. His prayer is to promote him to the post of senior Foreman and to pay him all consequential benefits.
8. I find that prior to the introduction of the new profile in 2006,
a Foreman who completed 7 years of service in the company was eligible for promotion to the post of Senior Foreman Mines if there is a vacancy and if the incumbent is found to be competent by the interview committee. However, after the introduction of the new profile, possession of a Diploma in Mining Engineering has been made a prerequisite qualification. The records disclose that the Senior Foreman position in the company is in the entry-level managerial grade, requiring the sending of reports and maintenance of records, and that is the reason why a higher qualification has been prescribed. Promotion to the Senior Foreman category is given based on the qualification and experience as well as the competency of the candidate after he is found to be fit by the interview board.
9. The Petitioner was not considered for promotion as he does WP(C) NO. 15579 OF 2020 8
not possess the necessary qualification of Diploma in Mining Engineering. I am not impressed with the contention of the petitioner, relying on Ext.P8, that the Foreman Certificate held by a Field Candidate and the Foreman Certificate held by a Diploma holder are one and the same. The Foreman Competency Certificate held by a field candidate cannot be regarded as equivalent to a 3-year Diploma in Mining Engineering.
10. In Ashok Kumar Gupta v. State of U.P1, it was held that
no one would have a vested right to promotion or seniority, but an officer has an interest to seniority acquired by working out the Rules. It would be taken away only by operation of valid law. The Right to be considered for promotion is a rule prescribed by conditions of service. A rule that affects the promotion of a person relates to conditions of service. The rule merely affecting the chances of promotion cannot be regarded as varying the conditions of service. Chances of promotion are not conditions of service. A rule that merely affects the chances of promotion does not amount to a change in the conditions of service.
11. In State of Himachal Pradesh. v. Raj Kumar & ors2, it
has been held by the Apex Court that a candidate has a right to be considered in the light of the existing rules, which implies the “rule in force” as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates. The
(1997) 5 SCC 201
(2023) 3 SCC 773 WP(C) NO. 15579 OF 2020 9
employee does not acquire any vested right to be considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government.
12. In view of the principles above, I am of the considered opinion
that the petitioner has not made out a case for being promoted to the post of Senior foreman with effect from 8/11/2015 as prayed for, as he did not have the prerequisite qualification of Diploma in Mining Engineering as on the date of consideration. This writ petition will stand dismissed. Sd/- RAJA VIJAYARAGHAVAN V JUDGE
Sru WP(C) NO. 15579 OF 2020 10 APPENDIX OF WP(C) 15579/2020 PETITIONER’S EXHIBITS EXHIBIT P1 TRUE COPY OF THE IDENTITY CARD OF THE PETITIONER ISSUED BY THE RESPONDENT COMPANY TO THE PETITIONER. EXHIBIT P2 TRUE COPY OF THE BLASTERS CERTIFICATE OF COMPETENCY DATED 19.3.1991 ISSUED BY THE BOARD OF MINING EXAMINATIONS. EXHIBIT P3 TRUE COPY OF THE MINES MATE’S CERTIFICATE OF COMPETENCY DATED 25.9.1991 ISSUED BY THE BOARD OF MINING EXAMINATIONS. EXHIBIT P4 TRUE COPY OF THE PROMOTION ORDER DATED 18.5.2001 ISSUED BY THE RESPONDENT COMPANY PROMOTING PETITIONER TO THE POST OF MINES MATE GRADE IV. EXHIBIT P5 TRUE COPY OF THE MINE FOREMAN'S CERTIFICATE OF COMPETENCY DATED 17.9.2001 ISSUED BY THE BOARD OF MINING EXAMINATIONS. EXHIBIT P6 TRUE COPY OF THE PROMOTION ORDER DATED
6.11.2008 ISSUED BY THE RESPONDENT COMPANY PROMOTING PETITIONER TO THE POST OF MINES FOREMAN IN GRADE-VII. EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED 23.4.2017 SUBMITTED BY SR. RASAK KARAT, MLA BEFORE THE PUBLIC INFORMATION OFFICER OF THE RESPONDENT COMPANY. EXHIBIT P7(a) TRUE COPY OF THE REPLY REF NO MCL/RTI/100/2017/2274 DATED 26.5.2017 GIVEN BY THE PUBLIC INFORMATION OFFICER (PIO).
EXHIBIT P8 TRUE COPY OF THE COMMUNICATION NO 1267 DATED 26.4.2017 ISSUED BY THE DIRECTORATE GENERAL OF MINES SAFETY (DGMS) TO THE PETITIONER. WP(C) NO. 15579 OF 2020 11 EXHIBIT P9 TRUE COPY OF THE RTI APPLICATION DATED 29.6.2017. EXHIBIT P10 TRUE COPY OF THE RTI APPLICATION DATED 6.4.2019. EXHIBIT P10(a) TRUE COPY OF THE MEMORANDUM OF SETTLEMENT ANNEXURE 11 ON PAY UPGRADATION SUPPLIED THROUGH RTI REPLY -MCL/RTI/36/2019/1588 DATED 3.5.2019 EXHIBIT P11 TRUE COPY OF THE REPRESENTATION DATED 4.1.2017 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT COMPANY. EXHIBIT P11(a)
TRUE COPY OF THE REPRESENTATION DATED 24.3.2017 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT COMPANY.
EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 9.12.2015 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER OF INDUSTRIES. EXHIBIT P12(a) TRUE COPY OF THE REPRESENTATION DATED 26.12.2017 SUBMITTED BY THE PETITIONER BEFORE THE MINISTER OF INDUSTRIES. EXHIBIT P13 TRUE COPY OF THE JUDGMENT OF THE HIGH COURT OF KERALA DATED 30.5.2019 IN WPC 14930 OF 2019. EXHIBIT P14 TRUE COPY OF THE REPLY/SPEAKING ORDER VIDE NO PA-1/PF-833/2019/4975 DATED 19.9.2019 OF THE RESPONDENT COMPANY. EXHIBIT P15 TRUE COPY OF RELEVANT PAGES OF MCL CAREER GROWTH PLAN DRAFT 2014. WP(C) NO. 15579 OF 2020 12 EXHIBIT P16 TRUE COPY OF RELEVANT PAGES OF CHAPTER-3 (PAGES
8 AND 19) OF METALLIFEROUS MINES REGULATION 1961 RELAXATIONS OF ELIGIBILITY FOR DIPLOMA HOLDERS WITH EXPERIENCE IN APPEARING FOREMANS COMPETENCY CERTIFICATE EXAM. EXHIBIT P17 STATUTORY ORDER SO 2792 DATED 23.9.1963, SO 2793 DATED 23.9.1963 SO 27695 DATED 23.9.1963 SO 1675 DATED 30.5.1966, SO 1676 DATED 30.5.1966, SO 1455 DATED 17.5.1963, SO 250 DATED 6.1.1966 SO 2796 DATED 23.9.1963 ER MMR-1961. EXHIBIT P18 TRUE COPY GAZETTE OF INDIA EXTRA ORDINARY PART-11 SECTION 3(88) DATED 13.12.73 REGARDING EQUIVALENCE BETWEEN COMPETENCY CERTIFICATE & DIPLOMA.
EXHIBIT P19 TRUE COPY OF THE PAY SLIP OF MR.V S HANUMANT, SR. FOREMAN FOR THE MONTH OF JUNE 2020. EXHIBIT P19(A) TRUE COPY OF THE PAY SLIP OF V.S. HANUMANT, SR.FOREMAN CUM SURVEYOR FOR THE MONTH OF DECEMBER 2020. EXHIBIT P20 TRUE COPY OF THE REPRESENTATION DATED 27-07-2020. EXHIBIT P21 TRUE COPY OF THE REPLY OF MALABAR CEMENTS LTD, VIDE NO. PA-1/PF-833/2020 DATED 10-08-2020. RESPONDENTS EXHIBITS EXHIBIT R1(a) TRUE COPY OF THE RELEVANT PAGE OF JOB PROFILE. EXHIBIT R1(b) TRUE COPY OF UPGRADATION POLICY APPLICABLE TO THE NON MANAGERIAL EMPLOYEES.