Calcutta High Court
Deputy Chief Personnel Manager (Ee) And ... vs Priyadeep Ghose And Ors. on 8 December, 2004
Equivalent citations: 2005(3)ESC2029
Author: Dilip Kumar Seth
Bench: Dilip Kumar Seth
JUDGMENT Dilip Kumar Seth, J.
1. The learned Single Judge directed upgradation of the post of the petitioners in E&M Grade to T&S Grade-A at E-1 level on the expiry of seven years on the basis of the circular dated 20th February, 1987, which speaks of the method of A.C.R. and interview on the ground that in respect of mining cadre, no written test is necessary, whereas by subsequent Circulars, particularly, Circulars dated 28th April, 1987, 30th April, 1987 and 29th August, 1988, written test was made mandatory for E&M Grade Cadre, but this was not explained in the Affidavit-in-Opposition filed by the appellant in the writ petition. In other words, the relief was granted on the question of discrimination, which has not been explained by the Coal India Limited.
2. The question of discrimination is based on Article 14 of the Constitution of India. The principle is of rational classification. If comparable grades come within the same classification, in that event, any discrimination would hit the principle of Article 14. In this case, it is pointed out that the surveyors, the mining cadres, the accounts and finance cadres are not required to sit for any selection test or written test whereas, the petitioners belonging to E&M Cadre are subjected to selection and even for written test.
3. According to Mr. Bhattacharya, appearing on behalf of the respondents/writ petitioners, there is no rational basis for discriminating E&M Cadre from other cadres of mining, survey and accounts and, as such, the requirement of written test modifying the Circular dated 20th of February, 1987, through its Circulars dated 28th April, 1987, 30th April, 1987 and 29th August, 1988, are arbitrary and cannot be sustained.
4. Our attention was drawn to paragraphs 7 and 8 of the Affidavit-in-Opposition to the writ petition. In fact, from the said two paragraphs, it does not appear that the appellant has not been able to point out any rationale behind such discrimination. As such, the learned Single Judge could be said to be right in his decision in passing the order appealed against. But Mr. Banerjee had drawn our attention to the Clauses 4.10.1, 2 and 3 and the Appendix IV-(2)-1, Appendix IV-(2)-2 and the successive Appendix upto IV-(2)-6 of the Common Coal Cadre and points out that each discipline has a different system of promotion. Mining Discipline and Survey Discipline dealt with in Clauses 4.10.2 and 3 does not speak of any selection or test, where the promotion from non-executive to executive cadre is based on the experience and qualification laid down therein to the extent of promotion mentioned. Clause 4.10.1 deals with promotion from non-executive to executive cadre in respect of accounts, engineering (non-mining), and survey specify the proportion to which the promotion would be available. Whereas survey has been specifically dealt with in Clause 4.10.3. In Clause 4.10.1 (b) requires conducting of tests according to syllabi and methodology laid down by the Apex Training Board and the Coal India Headquarters. Thus, if different methodology is applied for E&M Grade coming under engineering (non-mining) different from those of mining and survey, in that event, it cannot be said that it would hit Article 14. Our attention has been drawn to the provision for promotion to Accounts and Finance. The said circular deals with existing officers who had already acquired higher qualification in accountancy, which, admittedly, is a very strict examination. Whereas the petitioners are not claiming on account of acquiring any higher qualification. Therefore, that cannot be comparable with that of the E&M Grade. This is, however, in his usual fairness, conceded by Mr. Bhattacharya. Thus, we are left with the comparison between Mining and Survey, which are dealt with through two different procedures.
5. When a particular procedure for promotion is provided in the rules, the same cannot be ignored and unless the decision taken is in conflict with such rules, the Court is not supposed to interfere. When the decision is taken in deviation of the decision taken on 20th February, 1987, the Court cannot intervene unless it is shown to be mala fide or perverse or otherwise biased. Nothing has been drawn to our attention that any of the propositions could be established in the present case. The decision was that of a policy decision in the administration itself and approved by the headquarters culminating in that of the Circular dated 29th August, 1988. This cannot be ignored by the Court unless it is shown that it is contrary to the rules or it is hit by Article 14 or mala fide or perverse.
6. In view of the distinguishing features embodied in the Common Coal Cadre itself providing for different provisions for promotion from non-executive to executive cadre in respect of different cadres in Clauses 4.10.1, 2 and 3, we do not think that the principle of Article 14 could be said to have been hit if the E&M Grade is subjected to test in terms of Clause 4.10.1 according to syllabi and methodology laid down by the Coal India Headquarters for the purpose of conducting the test.
7. It appears that this decision was taken as far back in 1988 and this writ petition has challenged the same in 2000. The ground that has been advanced to support this delay was that it is only when the petitioners were hit by the Circular dated 29th August, 1988 of which they were not aware, the cause of action arose. Admittedly, the Circulars were very much there. These are not in conflict with the Common Coal Cadre Rules. There were/are several circulars right from 20th February, 1987 till 29th August, 1988, as referred to hereinbefore. The petitioners' claim in respect of Circular dated 20th February, 1987 on the basis of ignorance about the Circular dated 29th August, 1988 is little difficult to appreciate. The circular has been in force for such a long period. It has also not been challenged in the writ petition. In these circumstances, we do not think that we can exercise our discretion either to quash those circulars at this late stage. Neither we do think that the Court can ignore those circulars in derogation to Clauses 4.10.1, 2 and 3 of the Common Coal Cadre Rules when the decision of the Headquarters always referred to the Circular dated 20th February, 1987, being subject to the Common Coal Cadre Rules though at one stage the test was to be in accordance with the Circular dated 20th February, 1987 which has been repeatedly modified by the subsequent circulars without being inconsistent with the Common Coal Cadre Rules. We do not think that we can help the petitioners in such a situation.
8. In the circumstances, if the Common Coal Cadre Rules itself provides for sufficient explanation, in that event, absence of explanation in the Affidavit-in-Opposition, could not be a ground to sustain the order passed by the learned Single Judge and grant relief to the petitioner which could be altogether inconsistent with the rules and the circulars which has stood by for almost 12 years before it was challenged. Inasmuch as the rules of pleading does not require reference to or explanation of the law. It only requires the disclosure of the fact on which the case or the defence is based. Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relied for his claim or defence, as the case may be. Neither party need in any pleading allege any matter of fact, which the law presumes in his favour or as to which the burden of proof lies upon the other side. In this case, the burden lay upon the writ petitioner to make out a case of discrimination on the basis of the rules governing them. Therefore, the presumption of fact in law under Clauses 4.10.1, 2 and 3 of the Common Coal Cadre Rules being in favour of the Coal India, the appellant, it was not obliged to plead the same in the Affidavit-in-Opposition. It is open to the appellant to rely on the rules to defend its stand.
9. In the circumstances, the appeal succeeds. The order appealed against is hereby set aside. The writ petition stands dismissed.
There will, however, be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the parties on priority basis.
Rajendra Nath Sinha, J.
10. I agree.