Judgment:
Altamas Kabir, J.
1. This appeal is directed against the judgment and order dated 13th February, 1995, passed by a learned Judge of this Court dismissing the appellant's writ petition involving fixation of his seniority in service in relation to the respondent No. 7 in the writ petition.
2. According to the case made out in the writ petition, at the time of filing thereof, the appellant was working as additional Chief Personnel Manager and the respondent No. 7 was holding the post of Chief Personnel Manager under the Central Coalfields Ltd., and in matters relating to service, they are both governed by the Common Coal Cadre framed by Coal India Ltd.
3. It is also the appellant's case that he joined the East India Coal Company as Labour welfare officer in 1962 before its nationalisation, and after nationalisation, Bharat Coking Coal Ltd., hereinafter referred to as 'B.C.C.L.', appointed him as Personnel Manager at its headquarters on 1st July, 1972, in the scale of Rs. 400-1250/-.
4. It appears that on 20th April. 1972, B.C.C.L. published an advertisement for recruitment of Personnel Officer in the same scale and pursuant thereto, three persons, including the respondent No, 7 in the writ petition, were given appointment and the respondent No. 7 Joined service as Personnel Manager on 6th December, 1972. After six months of his appointment, the respondent No. 7 was promoted to the post of Senior Personnel Officer and was placed in the higher scale of Rs. 800-1250/- with retrospective effect from the date of his initial appointment on 6th December, 1992, ignoring the petitioner's seniority in service.
5. According to the appellant, such promotion was given to the respondent No. 7 without following the proper procedure and without formation of any Departmental Promotional Committee. The appellant thereupon made a representation to the concerned authority and on consideration thereof the appellant was given the higher scale of Rs. 8001250/-but not from 6th December, 1972, when the respondent No. 7 was given the said scale, but from 31st December, 1973. Thereafter, although, the appellant was given promotion in the usual manner, he was made junior to the respondent No. 7 at every stage and the various representations made by him proved to be fruitless.
6. The appellant then made a representation to the Chairman-cumManaglng Director of B.C.C.L. on the 7th of December, 1984, claiming that his seniority had been wrongly fixed, which was forwarded by the Director (Personnel) B.C.C.L. to the Director (Personnel) Coal India Ltd., hereinafter referred to as 'C.I.L', by his letter of 27th November, 1985. In his Judgment under appeal, the learned Single Judge recorded that in the forwarding letter of 27th November, 1985, the Director (Personnel), B.C.C.L. supported the appellant's claim.
7. On a comparison of the promotions granted to the respondent No. 7 and the appellant, it will be seen that while the respondent No. 7 was promoted to grade E 6 on 19th December, 1985, the appellant was promoted to the said Grade only on 25th November, 1986. Then again, when the respondent No. 7 was promoted to the post of Additional Chief Personnel Manager in Grade E 7 on 24th April, 1989, and then to the post of Chief Personnel Manager in Grade E 8 on 24th March, 1993, the appellant was promoted to Grade E. 7 on 30th July, 1991, and then placed in Grade E 8 on 1st April, 1993.
8. Subsequently, Grade E 7 and E 8 were merged to form Grade M2 with effect from 1st April, 1993. The appellant was placed In M2 Grade with effect from 1st April, 1993, while the respondent No. 7 was promoted to Grade E 8 on 24th March, 1993.
9. According to the appellant, before the respondent No. 7 was promoted to the post of Chief Personnel Manager in Grade E 8, the Director (Personnel) B.C.C.L., wrote to the Director (P & IR, CIL, recommending the appellant's case along with eight others for re-examination and re-fixation of their seniority vis-a-vis the respondent No. 7. On receipt of the said communication, the Director (Personnel) CIL, the respondent No. 4 herein, formed a Committee for re-examining the case of the appellant and eight others and to look into their representing for re-flxation of their seniority. The said Committee which failed to meet was replaced by a second Committee which met on 23rd April, 1993, and submitted its reported after about a year recommending that since a long period had elapsed and it was not possible to reflx the appellant's seniority with reference to the initial appointment of both the appellant and the respondent No. 7, the appellant's seniority in his M2 Grade be reflxed at par with the respondent No. 7.
10. Inasmuch as, the concerned respondents did not implement the recommendation made by the said Committee, the appellant moved a writ application in this Court, Inter alia, for a direction upon the said respondents to reflx his seniority above the respondent No. 7 and to quash the gradation list where he had been shown as junior to the respondent No. 7.
11. During the pendency of the writ proceedings, the respondents fixed an interview on 25th May, 1995, for promotion to post of Chief General Manager (Personnel), where the respondent No. 7 and others junior to the appellant were asked to appear ignoring the appellant's claim for promotion to the said post.
12. The learned Single Judge who heard the writ application dismissed the same mainly on two grounds, namely, delay and laches on the part of the appellant in moving the writ application twenty one years after the matter was dealt with and disposed of the by the authorities concerned, and the ineligibility of the appellant to be considered for promotion as he had not completed three years of service in the lower grade (M2) or five years jointly in Grades E 7 and E 8.
13. Aggrieved thereby, the writ petitioner has preferred this appeal.
14. Appearing on behalf of the writ petitioner/appellant, Mr. Arun Prokash Chatterjee, learned senior advocate, submitted that there was no delay or laches on the part of the appellant In moving the writ petition, inasmuch as, the committee constituted in 1984 made its recommendations only In 1994 on account of the fact that a considerable length of time had elapsed in locating the records, which facts has been admitted by the respondents In paragraph 12 of the affldavit-in-opposition affirmed on behalf of Coal India Ltd. and its General Manager (Personnel).
15. Mr. Chatterjee submitted that in view of the above, the learned Single Judge erred in holding the appellant responsible for the delay in moving the writ petition. Mr. Chatterjee urged that, in fact, there was no delay on the part of the appellant in moving the writ petition since his representation for relaxation of his seniority culminated in the recommendation of the Committee constituted by the Director (Personnel) C1L, on 18th July, 1991. Mr. Chatterjee urged that the writ application was moved soon after such recommendation was made by the said Committee some time in 1994.
16. Mr. Chatterjee then contended that the respondent No. 7 had not completed three years' service in Grade M3 and in keeping with Rule 4.7.(c) of the Common Coal Cadre, he was not eligible for promotion to the next higher Grade. However, In order to bring him within the zone of consideration, the Chairman cum Managing Director, CIL, In his capacity as the Cadre Controlling Authority relaxed the rules under Rule 4.7.(e) and adopted a procedure to the effect that persons who had completed five years combined service In Grades E7 and E8 would be eligible for promotion. Mr. Chatterjee urged that Rule 4.7.(c) provided for relaxation In individual cases and not relaxation in general and hence its application by the Cadre Controlling Authority for general relaxation of the eligibility criteria in Rule 4.7.(c), was bad, and the learned Single Judge erred in holding otherwise.
17. Mr. Chatterjee lastly submitted that after the writ petition was moved on 6th June, 1994, and an interim order was passed to the effect that promotion, if any, granted would abide by the result of the writ petition, the respondents concerned selected the respondent No. 7 for the post of Chief General Manager(Personnel) on 29th June, 1994, and also Director (Personnel) without taking into consideration the recommendations made by the Committee, as indicated hereinabove, though the appellant was also considered for promotion to the post of Director (Personnel).
18. Mr. Chatterjee urged that the learned Single Judge had erred in dismissing the Writ petition and the concerned respondents should be directed to fix the appellant's seniority at least at par with the respondent No. 7, if not above him.
19. Appearing on behalf of Coal India Ltd., and its authorities, Mr. Aloke Banerjee, learned advocate, firstly submitted that the learned Single Judge had rightly dismissed the writ petition on the ground of Inordinate delay on the part of the writ petitioner in moving the said petition. Mr. Banerjee urged that while the respondent No. 7 had been placed in the higher grade in 1973, with effect from 6th December, 1972, the writ petitioner moved this Court only on 6th June, 1994, after a delay of more than 21 years.
20. Mr. Banerjee urged that such a stale claim was not capable of being entertained.
21. In support of his submission, Mr. Banerjee referred to and relied upon decision of the Hon'ble Supreme Court in the case of Gian Singh v. The High Court of Punjab and Haryana, reported in : (1981)ILLJ153SC , wherein it was held that the delay of eleven years in moving the writ petition could not be overlooked on the ground that the writ petitioner was making successive representations to the Department.
22. Furthermore, Mr. Banerjee urged that the appellant was not eligible for being considered for promotion to the post of Chief General Manager (Personnel) when the interview was to be held, since he had not completed three years' service in Grade Ma, as required under Rule 4.7.(c) of the Common Coal Cadre.
23. Mr. Banerjee submitted that even If the recommendations of the Committee Constituted by the Director (Personnel) CIL was to be taken into consideration for the purpose of the writ petition, the same was not binding on CIL or B.C.C.L., being recommendatory in nature.
24. Mr. Banerjee urged that there was no merit in the appeal and the same was liable to be dismissed with costs.
25. From the submissions of the respective parties and the materials on record, we are of the view that the learned Single Judge was not justified in foisting the delay in the filing of the writ petition solely on the appellant after observing that on being aggrieved by the placement of the respondent No. 7 in the higher grade with retrospective effect, he promptly made a representation to the concerned authority. Although, on such representation, the appellant was given the higher scale, in his case the same was not made retrospective so that, in effect, he remained superseded by the respondent No. 7, resulting in his second representation which was favourably considered by the Director (Personnel), B.C.C.L, who in his note submitted to the Director (P & IR), CIL on 2nd April, 1991, was of the view that the appellant's prayer for removal of his supersession by the respondent No. 7, was Justified.
26. In arriving at the aforesaid conclusion, the Director (Personnel), B.C.C.L. referred to a decision of this Court in another case involving the same question, where pursuant to such decision the persons superseded were placed at par with the officer who had superseded them.
27. Drawing a parallel with the said case, the Director (Personnel), B.C.C.L. felt that the seniority of the appellant and eight others vis-a-vis the respondent No. 7 herein, required re-examination and re-fixation, as per the rules of the company, at an early date.
28. As indicated hereinafter, a Committee was constituted thereafter, by the Director (Personnel), CIL on 18th July, 1991, and since it could not function, a second Committee was constituted by Office Order dated 18th January, 1993, and the said Committee ultimatelymet on 23rd April, 1993, and submitted its recommendations after about a years.
29. As would be evident from the facts, as disclosed, the process started with the filing of second representation in 1984 for re-fixation of his seniority, ultimately culminated in the recommendation of the Committee in 1994. Admittedly, a large part of the delay was caused as the relevant records could not be located. Since the concerned respondents were not implementing the recommendations of the Committee, the appellant moved the writ petition soon after the Committee had filed its report.
30. It would not, therefore, be fair to the appellant in dismissing his writ petition on grounds of delay and laches ascribed to him, when It was really the respondents who were responsible for the delay.
31. As to the binding nature of the recommendation, even if such recommendation had not been made, we are of the view that there is sufficient merit in the appellant's case warranting interference under Article 226 of the Constitution. Such merit has, in fact, been reflected in the Committee's recommendations. Having constituted the Committee to look into the question of refixation of the appellant's seniority vis-a-vis the respondent No. 7, it will be against public policy to allow the concerned respondents to claim that the Committee's recommendations are not binding on them, since the same has gone in favour of the appellant.
32. The second point canvassed by the respondents regarding Rule 4.7.(c) and (e) of the Common Coal Cadre, is also not acceptable to us, inasmuch as, the appellant's seniority was required to be refixed, if not from prior to 6th December, 1972, at least from that date. The subsequent events followed as a consequence of the appellant's supersession by the respondent No. 7. Realising the difficulties that may have to be faced by the respondents in refixing the appellant's seniority on such basis, the Committee recommended that notional seniority be given to the appellant to place him at par with the respondent No. 7, since it felt that his grievance was justified. The difficulty, if any which the respondents may feel in implementing the recommendation of the Committee, was of their own making, and the appellant should not be made to suffer thereby. Moreover, the rigours of Rule 4.7.(c) were relaxed under Rule 4.7.(e) in the case of the respondent No. 7, since he, too, had not completed three years' service In the existing grade.
33. The decision cited before us by Mr. Banerjee can have no application to this case, since in this case, it is the respondents themselves who were responsible for the delay in disposing of the appellant's representation.
34. We are, therefore, inclined to allow the appeal for the reasons aforesaid. However, we are not inclined to disturb the promotions already given to the respondent No. 7, since the appellant was also considered for promotion to the post of Director (Personnel), but was not ultimately selected.
35. The appeal and the writ petition are, accordingly, allowed. The Judgment and order of the learned Single Judge dated 13th February, 1995, is set aside.
36. The concerned respondents are directed to notionally reflx the seniority of the appellant at par with the respondent No. 7 In Grade M3, without disturbing the promotions already given to the said respondent.
There will be no order as to costs.
V. Khare, C.J.
37. I agree.