Madhya Pradesh High Court
Ramagya Pandey & Ors. vs The Union Of India & Ors on 29 June, 2010
1 W.P No.3001/1997
HIGH COURT OF MADHYA PRADESH AT JABALPUR
WRIT PETITION NO.3001/1997
PETITIONERS : RAMAGYA PANDEY
AND OTHERS
Vs.
RESPONDENTS : UNION OF INDIA
AND OTHERS.
Present : Hon'ble Shri Justice R.S. Jha.
For the petitioners : Shri D. K. Dixit, Advocate.
For the respondents : Shri Anoop Nair, Advocate.
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ORDER
(29/06/2010) The petitioners, who are working as Surveyors, have filed this petition claiming a direction to the respondents to consider their cases for promotion to the higher grade i.e. Grade 'B' and then Grade 'A'. The petitioners have further prayed for a direction for quashing Annexure P-1 whereby the representation of petitioner no.5, for being promoted, has been rejected. The petitioners have further prayed that the respondents be directed to prepare a common seniority list of Surveyors and to pay the petitioners arrears of salary with interest on their being promoted on the higher grades.
2. The case of the petitioners, who were working as Surveyor (Civil), Grade 'C' and Grade 'B' in the establishment of the respondent company, is that the petitioners were initially appointed as Labour Category-I and were thereafter promoted to Grade 'C' on different dates as they possessed the certificate of trade issued by the Industrial Training Institute (I.T.I). It is submitted that the 2 W.P No.3001/1997 petitioners have been applying for promotion on the higher post of Grade 'B' and Grade 'A' from time to time but the respondents have not considered their case. It is submitted that petitioner no.5 filed a representation for being promoted on the post of Surveyor Grade 'B' which was rejected by Annexure P-1 dated 19.4.93. It is further stated that the detailed representation, submitted by the petitioners, for preparing a cadre scheme for promotion of the petitioners, has gone unheeded.
3. It is submitted that the respondents invited information in respect of Surveyors junior to the petitioners by their letter dated 14.4.1997 for making promotion on the post of Surveyor Grade 'A' and persons junior to the petitioners have been considered for promotion ignoring the case of the petitioners who have completed nearly 16 to 20 years of service as on date of the filing of the petition. It is further submitted that the petitioners' services are regulated by the Cadre Scheme for Mining Survey Personnel, according to which the petitioners are entitled to be promoted as Surveyor Grade 'B' and Grade 'A' as there is no distinction between Surveyor (Civil) and Surveyor (Mining).
4. The petitioners, by filing documents, have alleged that certain Surveyors (Civil) have been promoted as Surveyor Grade 'B' and 'A' while the claim of the petitioners have been ignored. It is stated that the National Development Corporation Ltd. by Annexure P-19 dated 29.3.1974 has made a scheme for making promotion of Surveyors (Civil) to the post of Surveyor Grade 'B' and 'A' inspite of which the petitioners are being ignored. It is alleged that Surveyors (Civil) and 3 W.P No.3001/1997 Surveyors (Mining) are performing the same duties and, therefore, the petitioners are entitled to be considered for promotion on the post of Surveyor Grade 'B' and 'A' and thereafter for further promotion to Grade E-1, E-2, E-3, E-4 and so on. On the basis of the aforesaid facts and submissions, the petitioners pray for a direction to the respondents to consider the case of the petitioners for promotion as Surveyor Grade 'A' and 'B'.
5. The learned counsel for the respondents, per contra, have vehemently denied the claim of the petitioners and submitted that the claim made by the petitioners in the petition suffers from delay and laches as the respondent authorities had rejected the representation of petitioner no.5 as far back as on 19.4.1993 inspite of which the petitioners have not agitated their claim earlier. It is further submitted that the petition, filed by the petitioners, is not maintainable as they have an alternative efficacious statutory remedy of approaching the Labour Court under the provisions of the Industrial Disputes Act. It is stated that a Cadre Scheme for Mining Survey Personnel has been formulated by the Joint Bipartite Committee for the Coal Industry (hereinafter referred to as the JBCCI) on 22.6.1980 presenting a channel for promotion as well as requisite educational qualification. It is stated that the aforesaid Cadre Scheme specifically lays down the channel for promotion from Dy. Surveyor Grade 'C' to Surveyor Grade 'A' subject to availability of sanctioned vacancy in the Mining Wing only and it is stated that there is no separate cadre scheme formulated for Surveyor (Civil).
6. The respondents have stated that the necessary eligibility 4 W.P No.3001/1997 qualification for being considered for promotion on the post of Surveyor Grade 'B' and 'A' is possessing a survey certificate of competency granted by the Director General, Mines and Safety (hereinafter referred to as the DGMS) and as the petitioners do not possess the said eligibility qualification, their cases cannot be considered for promotion on the post of Surveyor Grade 'B' and 'A'.
7. In respect of letter dated 14.4.1997 it is stated by the respondents in the return that the information was sought by the respondents seeking names of those Surveyors (Civil) who possessed a survey certificate of competency and the persons considered pursuant thereto for promotion were all possessing the requisite and necessary qualification prescribed under the Cadre Scheme for Mining Surveyor Personnel. It is submitted that in such circumstances the parity sought to be claimed by the petitioner with those persons is misplaced and misconceived.
8. The respondents have denied that Surveyors holding ITI certificate in Surveyor Trade are working as Mining Surveyors or that the petitioners are performing the same duties as performed by Surveyors (Mining) who are possessing the certificate issued by DGMS. The respondents have denied that Surveyors (Civil) are being regularly promoted on the higher grade and have clarified that only those persons who possesses the mining certificate issued by the DGMS have been considered for promotion.
9. As far as circular dated 29.3.1974 of the National Coal Development Corporation Ltd. is concerned, it is stated by the 5 W.P No.3001/1997 respondents that it was a company which was in existence prior to the formation of the Coal India Ltd. and subsequently on the formation of the Coal India Ltd. and its subsidiary companies, the circular dated 29.3.74 is no longer in force or applicable to the establishment of the respondent company. The respondents have categorically stated that the alleged promotion orders, filed by the petitioners, for the purpose of claiming parity are all in respect of other cadres and do not relate to Surveyor (Civil). It is stated that the JBCCI has formulated a Cadre Scheme in the year 1999 for promotion of Surveyor in the Revenue Department and for ITI personnel but has not formulated any scheme for the petitioners cadre and in such circumstances the claim made by the petitioners in the rejoinder and additional rejoinder based on schemes prepared in the Revenue Department and for the ITI personnel is factually misconceived.
10. It is pertinent to note that the petitioners by way of rejoinder and additional rejoinder have tried to set up a case that similar persons like the petitioners have been granted promotion which fact has been vehemently denied by the respondents in the return, additional return and reply to the rejoinder.
11. I have heard the learned counsel for the parties at length. It is an admitted fact that the petitioners were initially appointed between 1976 to 1984 and have completed 16 to 20 years of service at the time of filing of the petition. It is also undisputed that the petitioners are claiming consideration for promotion on the basis of the cadre scheme framed by the JBCCI or in the alternative for a 6 W.P No.3001/1997 direction to the respondents to frame a promotion scheme for the petitioners. From a perusal of the existing cadre scheme of mining personnels filed by the petitioners alongwith the petition as Annexure P-8 it is clear that the aforesaid scheme relates only to the Mining Surveyors and not to the petitioners and that the requisite qualification for promotion from the post of Assistant Surveyor to the post of Dy. Surveyor and from Dy. Surveyor to Surveyor is matriculate with survey certificate of competency granted by the DGMS. It is also evident from a perusal of the document Annexure P-21, filed by the petitioner, that the JBCCI has formulated a scheme by circular dated 12.8.1999 for Career Growth of Civil Surveyors working in the Revenue Department and not for the petitioners as they are not working in the Revenue Department. Annexure P-30, filed by the petitioners alongwith the petition, is another decision taken by JBCCI on 22.1.2002 for Career Growth of ITI Personnel working in the respondent industry and does not relate to the petitioners.
12. In such circumstances the claim of the petitioners for being considered on the post of Surveyor Grade 'B' and 'C' alongwith Surveyor (Mining) is misconceived as admittedly the petitioners do not possess the requisite eligibility qualifications, i.e. a survey certificate of competency issued by the DGMS. The claim of parity made by the petitioners with the Surveyors working in the Revenue Department and the ITI Personnels is also misplaced as both the aforesaid schemes relate to separate channels of recruitment and promotion and does not apply to the petitioners. 7 W.P No.3001/1997
13. It is an undisputed and admitted fact that no Growth Cadre Scheme for promotion of the petitioners has been formulated by the JBCCI and that the petitioners have been appointed and promoted upto the post of Surveyor Grade 'C' in accordance with the department circular No.8/86 of the company circulated on 14.11.86. In the circumstances the claim of the petitioners for being considered for promotion on the post of Surveyor Grade 'B' and 'A' in the Mining Survey Department being misconceived is hereby rejected.
14. From a perusal of the record it is also clear that the respondents have categorically refuted the allegations made by the petitioners to the contrary that persons junior to the petitioners or belonging to the same category have been granted further promotion inspite of the fact that they do not possess a survey certificate of competency issued by the DGMS. The promotion orders and schemes, filed by the petitioners, to substantiate their claim clearly relate to other channels or cadre and, therefore, the allegations of discrimination made by the petitioners being unsubstantiated is hereby rejected. Even otherwise if the contention of the petitioners is taken to be correct and if certain persons have been granted promotion on the higher grade contrary to the cadre scheme, no parity can be claimed by the petitioners on that ground as there is no channel for promotion of the petitioners and, therefore, the concept of negative equality is not applicable and in such circumstances a direction contrary to the cadre scheme cannot be issued by this Court as has been held by the Supreme Court in the cases of U.P. State Sugar Corporation Ltd. and Another vs. Sant Raj Singh & 8 W.P No.3001/1997 Others, 2006 AIR SCW 3013 and Union of India and another vs. International Trading Co. and another (2003) 5 SCC 437 in the following terms:-
".....A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases.
What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case......"
15. It is, however, evident from a perusal of the return filed by the respondents that the respondent authorities have not considered the representation of the petitioners for preparing a cadre scheme or making available a channel for promotion of the petitioners and in such circumstances the petition, filed by the petitioners, is disposed of with a direction that in case the petitioners file a fresh representation for creation of such a channel for promotion or preparing a cadre scheme, the respondent authorities shall consider and decide the same in accordance with law.
9 W.P No.3001/1997
16. With the aforesaid direction, the petition filed by the petitioners stands disposed of. In the facts and circumstances of the case there shall be no order as to the costs.
( R. S. JHA ) JUDGE 29/06/2010 mms/-