| SooperKanoon Citation | sooperkanoon.com/519605 |
| Subject | Service |
| Court | Jharkhand High Court |
| Decided On | Feb-25-2003 |
| Case Number | CWJC No. 4445 of 2000 (R) |
| Judge | Vikramaditya Prasad, J. |
| Reported in | [2003(3)JCR574(Jhr)] |
| Acts | Code of Civil Procedure (CPC) , 1908 - Order 23, Rule 2; Constitution of India - Article 226; Service Laws |
| Appellant | Sachindra Kumar Ojha and ors. |
| Respondent | Chairmen, Steel Authority of India Ltd. and ors. |
| Appellant Advocate | G.C. Jha, Adv. |
| Respondent Advocate | Rajiv Ranjan, Adv. |
| Disposition | Writ dismissed |
Vikramaditya Prasad, J.
1. This writ has been filed for quashing the part of the circular Annexure-6 and Annexure-9 issued by the respondent No. 5 which without giving an opportunity to the qualified and eligible persons (petitioners) has been issued in most arbitrary and fanciful manner and also for a mandamus commanding upon the respondents to invite the petitioners for appointment on the post of E-O grade and Jr. Manager (F&A;).
2. The short facts of the case are that the petitioners (six in number) joined the Bokaro Steel Plant B.S. City as Junior Trainee, Operator, Senior Operator, Junior Trainee in Water Supply Department, JR T.O.T. and Junior Trainee in the years 1983, 1973, 1990, 1982, 1990 and 1982 respectively. According to them as per the circular for promotion to executive cadre from non-executive cadre in finance discipline they are eligible for being considered. According to Rules 6.2.5 (Annexure-3) the employee having a qualification of CA/ICWA are not to be considered for promotion to E-O rather they are to be considered for the post of E1 (Finance) along with CA/ICWA candidates from open market. The departmental examinations were held in pursuance to Annexure-1, the old departmental promotion policy, and petitioners were declared to be successful (Annexure-4 to Annexure-4/1), The further case of the petitioner is that except Bokaro Steel Plant other units of SAIL like Bhilai Steel Plant, Rourekala Steel Plant etc. have issued the promotion order of the employees who had been declared successful in the previous departmental examination from 30.6.2000. Then on 19.7.2000 the respondent Bokaro Steel Plant issued an internal circular through their personal department Annexure-6 (Impugned annexure) for the purposes of appointing. Jr. Executive (F&A;) in the grade of (E-O) and the qualification required is. Graduates from recognized university/institution, ICWA/CA from recognized institution. This internal circular does not invite petitioners who have cleared the departmental examinations whereas the persons having CA/ICWA qualification who are not at all entitled for the E-O grade in view of 1.7.5. and 6.2.5, of the promotional policy are to be considered. Such candidates were also called for interview on 11.12.2000 but the final result has not been published pursuant thereto. Thereafter the petitioners filed joint representation Annexure-7 series but it appears, that was not disposed of, thereafter the petitioner filed title suit No. 53 of 2000 in the Court of Munsif, Bokaro challenging the impugned circular (Annexure-6) and ultimately with drew the suit. Further the Corporate office of SAIL, issued an internal circular dated 11.10.2000 and once again considered the cases of CA/ICWA internal candidates alongwith candidates from open market. According to the petitioner it is gross denial of the right of the petitioner (impugned annexure). Again the petitioners made joint representation Annexure-10 to the Managing Director, SAIL, Bokaro Steel Plant (no averment has been made whether this representation has been disposed of or not.)
3. The respondent appeared and filed counter affidavit. The first counter affidavit was filed on 29.3.200,1. The case of the respondent as per this counter affidavit is that the internal circular dated 19.7.2000 was issued by Bokaro Steel Plant for specific purpose of appointing a few qualified Cost Accounts as Junior Executive (F&A;) in E-O grade to strengthen the front line executive positions due to high rate of turnover amongst the qualified professional in junior Cadre in Finance & Accounts Department and there is no intention of the Management to depart from the existing promotion policy of not executive to executive cadre in Finance & Account Department. Thus the stand taken in the first counter affidavit is that the Management intended to appoint qualified and experienced personnel having CA/ICWA qualification and it is a matter of policy. With regard to the claim of the petitioner it was asserted in para 11 of the counter affidavit that case of their promotion would be considered by the DPC as and when the DPC meets in future. The other allegation of arbitrariness etc. were denied and it was further averred that the promotion form non executive to executive is not applicable, those promotion having the qualification of CA/ICWA. The maintainability of writ was attacked by the respondents on the ground that the petitioners had filed a title suit and the interim order of injunction was allowed in their favour which was subsequently after hearing recalled and ultimately the title suit was allowed to be withdrawn with no liberty to the petitioner to file a fresh suit (Annexure-A).
4. The petitioners gave a reply to the averment made in the counter affidavit and in fact repeated the same facts though in slightly changed language. Thereafter one supplementary counter affidavit was filed by the respondent and in paragraph 3 it was stated that in cadre E-O in finance discipline 16 persons have been appointed directly including five through internal Circular, thus the proportion of 50:50 with respect to the departmental candidates vis-a-vis the direct recruits in Finance Discipline in E-O Grade is heavily tilted in favour of the Non- Executive internal candidates in Finance Discipline and the Quota of direct recruit in Finance Discipline is to be filed up because 19 Non-Executives in the year 1994 and 34 Non-Executives in the year 1999 were promoted to E-O Grade. Again the supplementary counter affidavit was filed by the respondent on 17.02.2003 annexing the Annexure-A issued by the Senior Manager (Recruitment) of Corporate Office, Steel Authority of India Limited, The petitioners have alleged arbitrariness of the respondents in issuing the impugned an-nexure and the respondents have denied these impugned annexures on the ground that in order to achieve better man power in the concern this circular/advertisement has been issued and this is all reasonable and therefore can not be attacked under Article 14 of the Constitution with a further attack on the maintainability of the writ itself on the ground of applicability of Order XXIII, Rule 2, CPC.
5. The petitioner again filed a reply to the supplementary counter affidavit annexing Annexure-11, the promotion policy for non-executive as circulated in the year 1988 giving emphasis on Clause (4) and Annexure-12 to show that on 9.8.1999 thirty persons Were promoted to E-O grade to show that this appointments are not governed by this Annexure-13.
I will examine the matter on the following points :--
1. Whether in view of the amended policy of promotion the grievance of the petitioners is genuine and whether there is reasonableness behind the amended policy?
2. Whether the amended policy entitles the respondents to exclude the petitioners altogether and consider only the CA/ICWA candidates?
3. Whether this writ is hit by Order XXIII, Rule 2 of the CPC?
The relevant portion of the Old Promotion Policy is extracted below. The introductory portion of which reads as follows :--
Existing rules on the subject which were introduced in the year 1970 required conducting a departmental examination centrally by the Corporate Office for preparing non-executive employees for taking up positions as Accountants. Bokaro Steel had their own scheme.
A need has arisen to devise and introduce Corporate Policy and rules for uniform application while retaining skill in the cadre. Further, over a period of time the Company's requirements and objectives have changed, hence the syllabi of the examination needs revision. Moreover, to fall in line with the promotion policy in the other disciplines, non-executives qualifying, in the departmental examination need to be appointed/promoted to the executive cadre in the Finance discipline also in E-O grade. Consequently the cadre of Accounts shall be abolished.
6. From this objective it is clear that it was framed to help non-executives and to motivate them so that strong supervisory base is created. This was also to cover all regular non-executive employees who fulfilled the prescribed eligibility. Eligibility criteria in Rule 5(2) is as follows :--
(I) Graduation in any discipline;
(II) A minimum of four years of regular service in the Company irrespective of discipline/department and scale of pay in the non-executive cadre;
(III) Promotable appraisal ratings for the last four years;
(IV) Within 40 years of age.
7. And thereafter certain examinations have to be passed and there was a method for evaluation of each of the individual candidates under 6(2). Under 6(1) the posts at the entry point in the executive cadre E-O in the Finance Discipline will be earmarked in the ratio of 50:50 between direct recruits and departmental candidates who qualify in the examination. This is an important provision, which requires to be discussed in the face of the submission made by the contesting parties.
6.2.5. reads as follows :--
Employees, on acquiring CA/ICWA qualification, will not be considered for promotion under this policy and rules. They will be considered for appointment to the post of Jr. Manager (Finance) in E-I grade along with CA/ICWA qualified candidates from the open market, or separately by inviting applications through internal circulation of vacancies.
8. Now from the aforesaid provision it is clear that prior to Annexure-6 the rule was that the employees who had CA/ICWA qualification were not at all to be considered for E-O grade but they could be considered for E-I and there could be appointment from internal candidate or from the open market. Meaning thereby the E-O cadre was reserved for those candidates who had not the qualification of CA/ICWA.
9. By Annexure-A this provision was in fact amended w.e.f. 1.6.1995, Annexure-A reads as follows :--
Shri R. Ramchandran
Executive Director (P&A;)
Bokaro Steel Plant
Bokaro Dear Sir,
Under the promotion policy for Non-executives to Executives in Finance, nonexecutive employees qualifying in the departmental examination in Finance Stream are eligible for consideration for promotion to Executive Cadre in E-O Grade. Employees acquiring CA/ICWA qualification are not being considered for promotion under this policy and rules.
2. It has now been decided that employees acquiring CA/ICWA qualification will also be considered for direct E-O promotion as in the case of employees passing the departmental examination for Accountants. The other rules and conditions laid down in the promotion policy for non-executives to executive in Finance as being followed for employees passing the departmental examination will also be applicable for employees acquiring CA/ICWA qualification.
3. This will come into force w.e.f. 1.6.1995
Yours faithfully
Sd/
(RAM MOHAN) Sr. MANAGER (RECTT)
10. From provision 2 of Annexure-A extracted, it is clear that the CA/ICWA qualified candidates were also to be considered for direct E-O promotion as in the cases of employees passing departmental examinations for Accountants, meaning thereby that under this circular the employees not having CA/ICWA qualification along with the employees CA/ICWAs qualification were to be considered. This circular does not mean that only CA/ICWA candidates were to be considered in exclusion of other eligible candidates who could be considered under the Old Policy which existed prior to the amendment and this amendment (Annexure-A) was challenged during the course of argument by the learned counsel for the petitioner who drawing the attention of the Court to the top of this annexure where the word 'confidential' has been recorded submitted that this circular was not made available to the employee and even in the earlier counter affidavit filed by the respondent this was not referred to. Moreover the Bokaro Steel Plant being a Subsidiary of the Corporate SAIL so if this amendment has not been given effect to by other Subsidiaries like Rourekala etc. then giving effect to this amendment only by this subsidiary again goes to show that this is only to defeat the interest of the petitioners. This contention was seriously objected by the learned counsel for the respondent. I am not prepared to accept this view of the learned counsel for the petitioner that for defeating the claim of few petitioner (six in number) the Corporate Office went in collusion with some persons. This has been received in the B.S.L. as per the Seal, in the year 1995, therefore this becomes a part of the promotion policy and the argument raised by the learned counsel for the petitioner is rejected.
11. Now after this amendment the CA/ ICWA qualified candidate also become eligible for being considered for E-O posts to the exclusion of the claim of the departmental candidates who do not have this qualification but have cleared the departmental examinations. Annexure-6 when examined from that angle reveals that by this internal circular application were invited from internal candidates i.e. employees of the B.S.L. qualification as postulated in this circular Annexure-6 i.e. Graduate from recognized University/Institution (B) CA/ICWA from a recognized Institutions. The object of issuing this circular/advertisement is clarified in the opening line of the circular which reads as follows :
'Finance and Accounts Deptt. BSL needs a few qualified Cost Accountants to strengthen the front line supervision. The post to be filled and other relevant details are as under.'
12. Now the question is whether this internal circular is in conflict of the amended policy? This circular was issued in the years 2000, after the amendment of the policy as discussed above. The amendment did not say that only the CA/ICWA candidates would be considered to the exclusion of other departmental candidates passing the departmental examination. Even Annexure-A upon which the respondents relied heavily does not provide that this amendment is being made to strengthen the front line of supervision as postulated in the impugned circular. This amendment simply makes enabling provision for CA/ICWA employees but does not disable other employees. This amendment was not made with the objective of strengthening the front line of supervision.
13. I fortify my view from the objective of the earlier promotion policy as stated above which clearly provides for modification in order to strengthen supervisory base so even before the amendment, this was the objective of the policy and even in the amendment, this policy was not changed, though expressed in the impugned internal circular. Learned counsel for the respondent has argued that the reasonableness is there in this objective because every institution will like to appoint/promote the best persons among the lot so that its supervisory post are occupied by quality men. But if in the amendment itself there is no such postulation, no such objective, then such insertion is in conflict of the objective of the amendment.
14. On the basis of the discussion made above I am of the view that the Annexure-6 by its very objective travels beyond amplitude given to the authority under Annexure-A because it appears this circular in fact excludes entirely the other departmental candidates who were having the required eligibility and qualification. Therefore the question was asked how many persons had been recruited from promotion/direct recruitment and no clear reply was given. After acquiring this qualification such candidates become at par with other candidates and become eligible for E-O post so if they are appointed even by internal circular then this is not case of direct recruitment rather it is a case of departmental promotion because they are not outsider or candidate from open market, therefore this Annexure-6 is found to be designed, not expressly but impliedly, to exclude such employees who had not the qualification of CA/ICWA.
15. Thus the reply of the question No. 1 is that the amended policy does not entitle the respondent to exclude the departmental non CA/ICWA employees and to invite application only from CA/ICWA employees. The amendment itself is reasonable to that extent that it includes the better qualified employees to be considered for E-O along with non CA employees, but this reasonableness can not be stretched to the extent ,of considering only the CA/ICWA candidates which will amount to role Paul for Peter. This question is answered accordingly.
16. Now come to the third question of maintainability. By their own admission the internal circular this Annexure-6 was challenged in the Civil Court by petitioner, which is sought to be quashed in this writ. The learned counsel for the respondent has said that the refusal of the injunction after a full fledged hearing amounts to refusal of the claims of the petitioner therefore when the matter has been heard and disposed of, a fresh writ can not lie. The order dated 16.12.2000 is very relevant for purposes of answering of this question, which reads as follows :--
Parties file Hazaries. Case call out and heard, the learned lawyers for the petitioners perused the report of the Shiristadar.
Let the suit be dismissed as withdrawn without any condition.
17. The learned counsel for the respondent has vehemently argued that in view of Division Bench judgment of Patna High Court reported in 1989 PLJR 278 if no opportunity is granted when the suit is withdrawn then further suit for the same cause of action can not be filed and no relief can be granted. Now the question is what is the meaning of 'the suit be dismissed as withdrawn without any condition' whether it means that the suit was withdrawn with a liberty to file another suit. Order XXIII, Rule (4) B deals with the withdrawal of a suit and provide that on withdrawal from suit the plaintiff shall be precluded from instituting any fresh suit. Sub-rule (1) (3) empowers the Court to allow withdrawal on such terms as it thinks fit and may grant the plaintiff permission to withdraw from such suit of such part of the claim with liberty to institute a fresh suit in spite of the subject matter of such suit.
18. In the order passed by the learned Munsif as extracted above the suit has been allowed to be withdrawn and no conditions have been imposed on such withdrawal. The meaning of without any conditions, in my opinion, means on such withdrawal no conditions was imposed by the Court.
19. The learned counsel for the petitioner relied on 1983 PLJR NOC 16. In Rule 23(1) as stated above there are only two options in the event of dismissal on the ground of withdrawal. The plaintiff is precluded from filing another suit on the same cause of action, but if the Court gave a liberty then only a fresh suit can be filed. Therefore the Court has to pass a positive order with regard to liberty no other order can be passed under this provision by the Court. If the Court simply writes dismissed as withdrawn this means the petitioner has not been given liberty to file a fresh suit. Therefore in order to riggle out the petitioner from this situation, the Court on being satisfied may give liberty and that must be in a very expressed term.
20. In this view of the matter the learned counsel for the petitioner relied on 1983 PUR NOC 16 at 17. In fact, in that case during the pendency of the suit a writ filed and a question arose whether a relief in the writ can be given during the pendency of a suit. Here the facts are quite different, the suit has already been disposed of by order of dismissal on the petitioner's own request and as stated above the liberty was not granted for filing a fresh suit in any expressed term therefore the decision relied upon by the petitioner does not apply in the facts and circumstances of the case. Here we are dealing with the application of Order XXIII, CPC but in that case that matter was not considered.
21. There is no dispute that the same cause of action was not there in the suit, there is no dispute that same relief was not claimed. Therefore this writ is not maintainable though I feel very seriously that the circular/advertisement (Annexure-6) deserves re-consideration by the Management in view of the discussion made above.
22. Writ dismissed at admissionstage.