P.K. Sengupta Vs. Bharat Coking Coal Ltd. and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/519823
SubjectService
CourtJharkhand High Court
Decided OnSep-26-2005
Case NumberCWJC No. 2096 of 1999
Judge M.Y. Eqbal, J.
Reported in[2005(4)JCR481(Jhr)]
AppellantP.K. Sengupta
RespondentBharat Coking Coal Ltd. and ors.
Appellant Advocate M.M. Pal,; N. Barla and; M. Palit, Advs.
Respondent Advocate A.K. Mehta, Adv. and; P. Kumar, Adv. for respondent No. 5
DispositionApplication allowed
Excerpt:
- constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. m.y. eqbal, j.1. in this writ application the petitioner is challenging the decision of the respondents-bccl as contained in the letter dated 15/18th may, 1999 whereby the seniority of the petitioner vis-a-vis respondent no. 5, smt. ashoka gupta has been decided and further for a direction upon the respondents to consider the case of the petitioner for his promotion to executive cadre retrospectively with effect from 13.8.1992 when respondent no. 5 was promoted and also to pay consequential benefits thereof.2. it appears that in 1997 the petitioner filed a writ application being cwjc no. 9 of 1997 making grievance that persons junior to him including respondent no. 5 posted in t&s; grade-b and t&s; grade-a were allowed to appear in the departmental examination but the petitioner was not allowed and the respondents discriminated the petitioner in the matter of promotion in executive cadre. the said writ petition was finally disposed of on 19.2.1999 by passing the following order :'heard the counsel for the petitioner and the counsel for the respondents, the case is being disposed of at this stage.the petitioners who are employees of respondent-bccl preferred this writ petition to allow them to appear in the departmental examination for promotion from non-executive to executive cadre for secretarial, ent, mm and elp disciplines which was to be held on 12. 1.1997.the case remained pending and the respondent no. 3 was directed to file counter affidavit.the main grievance of the petitioners is that persons junior to the petitioner including one smt. ashoka gupta as t&s; crade-b and then t&s; grade-a staff has been allowed to appear in such departmental examination but the petitioners have not been so allowed. it is alleged that the respondents discriminated the petitioners visa-vis junior smt. ashoka gupta in the matter of promotion to executive cadre.the respondents in their counter affidavit took plea that smt. ashoka gupta was not similarly situated. impression was given that she was promoted to the post of t&s; grade-a but no such order was issued in favour of the petitioners. on the direction of this court, the respondents have filed supplementary counter affidavit enclosing therein the copy of order of promotion of smt. ashoka gupta to post of t&s; grade-a vide order dated 13.8.1992.from the supplementary affidavit filed on behalf of petitioners, i find that the authorities subsequently issued one order on 27.10.1995 whereby and whereunder the date of promotion of smt. ashoka gupta was shifted back to t&s; grade-a with effect from 1.7.1990. the petitioners have also been promoted to said t&s; grade-a with effect from the same date i.e. 1.7.1990. in the aforesaid circumstances, the seniority is required to be determined on the basis of seniority, as was existing in the next lower post between the parties.on the facts and circumstances, i hold that the matter requires-consideration by the respondents. as smt. ashoka gupta is not a party-respondent before this court, this court is not inclined to give a specific finding relating to seniority vis-a-vis, petitioners and said smt. ashoka gupta. the authorities are directed to decide the aforesaid question taking into account the date of appointment/ promotion in the lower grade (t&s; grade-b). if any one or other petitioner is found to be senior to smt. ashoka gupta, his case is to be considered for promotion in executive cadro from the date smt. ashoka gupta was so considered for such promotion.a decision in respect of seniority be taken and communicated to the petitioner within a period of two months from the date of receipt/production of a copy of this order.if necessary, they will hold a special examination for consideration of case for promotion within a period of three months from the date of order relating to seniority.'this writ petition stands disposed of, with the aforesaid observations/ directions.' 3. it is, therefore, evident from the aforesaid order that the respondents were directed to consider the seniority of the petitioner vis-a-vis respondent no. 5, smt. ashoka gupta. in compliance of the aforesaid order the general manger (system) of the respondents-b.c.c.l. passed the impugned order dated 15th/18th may 1995. in the said decision the respondents have given a chart showing the initial date of appointment of the petitioner in grade-d as punch verifier operator (in short pvo) as 27.10.1976 whereas the initial date of appointment of respondent no. 5 in the said post has been shown as 16.8.1996. thereafter, the date of entry of respondent no. 5 in grade-c has been shown as 15.12.1996 whereas the date of entry of the petitioner in grade-c has been shown as 1.4.1980. on the basis of the aforesaid date of entry the respondents have held that respondent no. 5 is senior to the petitioner. the relevant portion of the decision of the general manager (system) is reproduced hereinbelow :-'it is evident from the above chart that smt. ashoka gupta is senior to both of you as far as date of appointment and promotion in next higher grade from techn. gr. 'c' to tech. gr. 'b' and onwards is concerned. it is also evident that while she has been given regular promotion in t&s; gr. 'a' you continue to be in tech. gr. 'b' and are being paid wages of t&s; gr. 'a' as part of service linked up-gradation scheme under the provisions of national coal wages agreement.'taking into consideration the above facts, your claim regarding seniority with smt. ashoka gupta is not justified. it is reiterated that both of you are in punch verifying operation, which is a separate wing under cadre scheme and, therefore, there can not be comparison with that of smt. ashoka gupta, who is in i/o control wing. in order to comply with the order of the hon'ble patna high court, 'ranchi bench, we are communicating you the facts and justification thereof. the court had given clear-cut instruction that in the event of you being junior to smt. ashoka gupta, the seniority position may be indicted to you. this is being done and we are, thus, complying with the order of the hon'ble patna high court ranchi bench.'4. mrs. m.m. pal learned counsel appearing on behalf of the petitioner assailed the impugned decision of the respondent as being wholly illegal, arbitrary and whimsical. learned counsel further submitted that respondent no. 5 was appointed on 16.8.1976 as junior p.v.o. i.e. below the rank of p.v.o. although the date of entry of respondent no. 5 in grade-b is 5.4.1988 but she has been given seniority in grade-b w.e.f. 1.10.1985 which is contrary to law as also contrary to the office order dated 16.7.1982. learned counsel further submitted that respondent 5 was given promotion illegally as system officer in grade-e-2 on 7.12.1988 superseding the right and claim of the petitioner.5. on the other hand, mr. a.k. mehta, learned counsel appearing on behalf of the respondents-b.c.c.l. firstly submitted that a similar dispute is pending before the tribunal for consideration as to whether the promotion of respondent no. 5 superseding the petitioner is justified? if not what relief the petitioner and another person are entitled. mr. mehta further submitted that the petitioner and respondent no. 5 were in two different cadre and, therefore, the line of promotion was also different.6. mr. p. kumar, learned counsel appearing on behalf of respondent no. 5 informed this court that respondents no. 5 has since retired and, as such, she does not want to oppose the claim of the petitioner.7. from perusal of annexure 2 is evident that respondent no. 5 was appointed on 16.7.1976 as junior pvo in the scale of rs. 330-450 whereas the petitioner was appointed on the post of pvo in the scale of rs, 378-570/- on 27.10.1976. subsequent there to respondent no. 5 was promoted to the post of pvo vide order dated 4.7.1977. the petitioner was then appointed in grade-d post on 27.10.1976 whereas respondent no. 5 was promoted in grade-d on 15.12.1976. in all the seniority lists prepared by the respondents-b.c.c.l. the petitioner was always shown senior to respondent no. 5. in the impugned order, therefore, the respondents-b.c.c.l. has incorrectly mentioned the date of appointment of respondent no. 5 on the post of pvo as 16.8. 1976 and consequently the respondents have incorrectly held that respondent no. 5 is senior to the petitioner and another person.8. from perusal of the entire orders issued by the respondents-b.c.c.l. it is manifestly clear that at all stages respondent no. 5 was accommodated and she was given promotion to technical supervisor grade-a whereas the petitioner and other persons were denied the opportunity of changing their designation by considering their cases for promotion to the post of technical and supervisor. this court, in the earlier order passed in cwjc no. 9/97r held that the authorities, by order dated 27.10.1995, shifted back the promotion of respondent no. 5 to t&s; grade-a with effect from 1.7.1990 and the petitioner was given promotion to the same grade w.e.f. 1.7.1990.9. in my considered opinion, when the petitioner entered in service on the post of p.v.o. before respondent no. 5, the petitioner was always considered senior to respondent no. 5. even assuming that respondent no. 5 was given regular promotion in t&s; grade-a, the petitioner who continued to be in technical grade-b, was paid wages of t&s; grade-a as part of service linked up-gradation scheme under coal wages agreement. in that view of the matter also, the petitioner was entitled to maintain his seniority as against respondent no. 5.10. in the facts and circumstances of the case, it is therefore, held that the petitioner shall be deemed to be senior to respondent no. 5 since the date of his entry in service. the respondent-b.c.c.l. is therefore, directed to consider whether the petitioner shall be entitled to consequential benefit for the same.11. with the aforesaid observation and direction, this writ application is allowed.
Judgment:

M.Y. Eqbal, J.

1. In this writ application the petitioner is challenging the decision of the respondents-BCCL as contained in the letter dated 15/18th May, 1999 whereby the seniority of the petitioner vis-a-vis respondent No. 5, Smt. Ashoka Gupta has been decided and further for a direction upon the respondents to consider the case of the petitioner for his promotion to Executive Cadre retrospectively with effect from 13.8.1992 when respondent No. 5 was promoted and also to pay consequential benefits thereof.

2. It appears that in 1997 the petitioner filed a writ application being CWJC No. 9 of 1997 making grievance that persons junior to him including respondent No. 5 posted in T&S; Grade-B and T&S; Grade-A were allowed to appear in the departmental examination but the petitioner was not allowed and the respondents discriminated the petitioner in the matter of promotion in Executive cadre. The said writ petition was finally disposed of on 19.2.1999 by passing the following order :

'Heard the counsel for the petitioner and the counsel for the respondents, the case is being disposed of at this stage.

The petitioners who are employees of respondent-BCCL preferred this writ petition to allow them to appear in the departmental examination for promotion from non-executive to executive cadre for secretarial, ENT, MM and ELP disciplines which was to be held on 12. 1.1997.

The case remained pending and the respondent No. 3 was directed to file counter affidavit.

The main grievance of the petitioners is that persons junior to the petitioner including one Smt. Ashoka Gupta as T&S; Crade-B and then T&S; Grade-A staff has been allowed to appear in such departmental examination but the petitioners have not been so allowed. It is alleged that the respondents discriminated the petitioners visa-vis junior Smt. Ashoka Gupta in the matter of promotion to executive cadre.

The respondents in their counter affidavit took plea that Smt. Ashoka Gupta was not similarly situated. Impression was given that she was promoted to the post of T&S; Grade-A but no such order was issued in favour of the petitioners. On the direction of this Court, the respondents have filed supplementary counter affidavit enclosing therein the copy of order of promotion of Smt. Ashoka Gupta to post of T&S; Grade-A vide order dated 13.8.1992.

From the supplementary affidavit filed on behalf of petitioners, I find that the authorities subsequently issued one order on 27.10.1995 whereby and whereunder the date of promotion of Smt. Ashoka Gupta was shifted back to T&S; Grade-A with effect from 1.7.1990. The petitioners have also been promoted to said T&S; Grade-A with effect from the same date i.e. 1.7.1990. In the aforesaid circumstances, the seniority is required to be determined on the basis of seniority, as was existing in the next lower post between the parties.

On the facts and circumstances, I hold that the matter requires-consideration by the respondents. As Smt. Ashoka Gupta is not a party-respondent before this Court, this Court is not inclined to give a specific finding relating to seniority vis-a-vis, petitioners and said Smt. Ashoka Gupta. The authorities are directed to decide the aforesaid question taking into account the date of appointment/ promotion in the lower grade (T&S; Grade-B). If any one or other petitioner is found to be senior to Smt. Ashoka Gupta, his case is to be considered for promotion in executive cadro from the date Smt. Ashoka Gupta was so considered for such promotion.

A decision in respect of seniority be taken and communicated to the petitioner within a period of two months from the date of receipt/production of a copy of this order.

If necessary, they will hold a special examination for consideration of case for promotion within a period of three months from the date of order relating to seniority.'This writ petition stands disposed of, with the aforesaid observations/ directions.'

3. It is, therefore, evident from the aforesaid order that the respondents were directed to consider the seniority of the petitioner vis-a-vis respondent No. 5, Smt. Ashoka Gupta. In compliance of the aforesaid order the General Manger (System) of the respondents-B.C.C.L. passed the impugned order dated 15th/18th May 1995. In the said decision the respondents have given a chart showing the initial date of appointment of the petitioner in Grade-D as Punch Verifier Operator (in short PVO) as 27.10.1976 whereas the initial date of appointment of respondent No. 5 in the said post has been shown as 16.8.1996. Thereafter, the date of entry of respondent No. 5 in Grade-C has been shown as 15.12.1996 whereas the date of entry of the petitioner in Grade-C has been shown as 1.4.1980. On the basis of the aforesaid date of entry the respondents have held that respondent No. 5 is senior to the petitioner. The relevant portion of the decision of the General Manager (System) is reproduced hereinbelow :-

'It is evident from the above chart that Smt. Ashoka Gupta is senior to both of you as far as date of appointment and promotion in next higher grade from Techn. Gr. 'C' to Tech. Gr. 'B' and onwards is concerned. It is also evident that while she has been given regular promotion in T&S; Gr. 'A' you continue to be in Tech. Gr. 'B' and are being paid wages of T&S; Gr. 'A' as part of Service Linked Up-gradation Scheme under the provisions of National Coal Wages Agreement.

'Taking into consideration the above facts, your claim regarding seniority with Smt. Ashoka Gupta is not justified. It is reiterated that both of you are in Punch Verifying Operation, which is a separate wing under Cadre Scheme and, therefore, there can not be comparison with that of Smt. Ashoka Gupta, who is in I/O Control Wing. In order to comply with the order of the Hon'ble Patna High Court, 'Ranchi Bench, we are communicating you the facts and justification thereof. The Court had given clear-cut instruction that in the event of you being junior to Smt. Ashoka Gupta, the seniority position may be indicted to you. This is being done and we are, thus, complying with the order of the Hon'ble Patna High Court Ranchi Bench.'

4. Mrs. M.M. Pal learned counsel appearing on behalf of the petitioner assailed the impugned decision of the respondent as being wholly illegal, arbitrary and whimsical. Learned counsel further submitted that respondent No. 5 was appointed on 16.8.1976 as junior P.V.O. i.e. below the rank of P.V.O. Although the date of entry of respondent No. 5 in Grade-B is 5.4.1988 but she has been given seniority in Grade-B w.e.f. 1.10.1985 which is contrary to law as also contrary to the office order dated 16.7.1982. Learned counsel further submitted that respondent 5 was given promotion illegally as System Officer in Grade-E-2 on 7.12.1988 superseding the right and claim of the petitioner.

5. On the other hand, Mr. A.K. Mehta, learned counsel appearing on behalf of the respondents-B.C.C.L. firstly submitted that a similar dispute is pending before the Tribunal for consideration as to whether the promotion of respondent No. 5 superseding the petitioner is justified? If not what relief the petitioner and another person are entitled. Mr. Mehta further submitted that the petitioner and respondent No. 5 were in two different cadre and, therefore, the line of promotion was also different.

6. Mr. P. Kumar, learned counsel appearing on behalf of respondent No. 5 informed this Court that respondents No. 5 has since retired and, as such, she does not want to oppose the claim of the petitioner.

7. From perusal of Annexure 2 is evident that respondent No. 5 was appointed on 16.7.1976 as junior PVO in the scale of Rs. 330-450 whereas the petitioner was appointed on the post of PVO in the scale of Rs, 378-570/- on 27.10.1976. Subsequent there to respondent No. 5 was promoted to the post of PVO vide order dated 4.7.1977. The petitioner was then appointed in Grade-D post on 27.10.1976 whereas respondent No. 5 was promoted in Grade-D on 15.12.1976. In all the seniority lists prepared by the respondents-B.C.C.L. the petitioner was always shown senior to respondent No. 5. In the impugned order, therefore, the respondents-B.C.C.L. has incorrectly mentioned the date of appointment of respondent No. 5 on the post of PVO as 16.8. 1976 and consequently the respondents have incorrectly held that respondent No. 5 is senior to the petitioner and another person.

8. From perusal of the entire orders issued by the respondents-B.C.C.L. it is manifestly clear that at all stages respondent No. 5 was accommodated and she was given promotion to Technical Supervisor Grade-A whereas the petitioner and other persons were denied the opportunity of changing their designation by considering their cases for promotion to the post of technical and supervisor. This Court, in the earlier order passed in CWJC No. 9/97R held that the authorities, by order dated 27.10.1995, shifted back the promotion of respondent No. 5 to T&S; Grade-A with effect from 1.7.1990 and the petitioner was given promotion to the same grade w.e.f. 1.7.1990.

9. In my considered opinion, when the petitioner entered in service on the post of P.V.O. before respondent No. 5, the petitioner was always considered senior to respondent No. 5. Even assuming that respondent No. 5 was given regular promotion in T&S; Grade-A, the petitioner who continued to be in Technical Grade-B, was paid wages of T&S; Grade-A as part of Service Linked Up-gradation Scheme under Coal Wages Agreement. In that view of the matter also, the petitioner was entitled to maintain his seniority as against respondent No. 5.

10. In the facts and circumstances of the case, it is therefore, held that the petitioner shall be deemed to be senior to respondent No. 5 since the date of his entry in service. The respondent-B.C.C.L. is therefore, directed to consider whether the petitioner shall be entitled to consequential benefit for the same.

11. With the aforesaid observation and direction, this writ application is allowed.