Jharkhand High Court
Coal India Limited vs M. Masroor Karim on 9 May, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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L.P.A. No. 273 of 2022
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1. Coal India Limited, through its Chairman, having its office at 10, Netaji
Subhash Road, PO + PS & District-Kolkata, PIN 700001 (West Bengal)
and also through its Executive Director Sri B. Shairam, aged about 54
years, s/o Sri B.G.K. Rao, residing at Premise No.04 Coal Bhawan, MAR
Plot No.AF-III, PO and PS Newtown, District-Kolkata, PIN 700156
(West Gengal) who is also represented appellant No.2.
2. Director, (P&IR), Coal India Limited, having his office at 10, Netaji
Subhash Road, PO + PS & District-Kolkata, PIN 700001 (West Bengal).
3. Bharat Coking Coal Limited, a Company incorporated under the
Companies Act, through its Chairman-cum-Managing Director, having its
Head Office at Koyla Bhawan, P.O. and P.S. Koyla Nagar, District
Dhanbad (Jharkhand) and also through its Chief Manager
(Personnel)/HOD (Legal) Sri Ved Prakash, aged about 56 years, son of
Late Radha Krishna Prasad, residing near Koyla Bhawan, PO-BCCL
Township, PS-Saraidhela, District-Dhanbad (Jhakrhand) who is also
representing appellant nos.4, 5 and 6.
4. The Director (P&IR), Bharat Coking Coal Limited, having his office at
Koyla Bhawan, P.O. and P.S.-Koyla Nagar, District-Dhanbad, PIN
826005 (Jharkhand).
5. The General Manager (Personnel), Bharat Coking Coal Limited, having
his office at Koyla Bhawan, PO and PS Koyla Nagar, District-Dhanbad,
PIN 826005 (Jharkhand).
6. The General Manager (Pers.), Coal India Limited, having his office at 10,
Netaji Subhash Road, PO + PS & District-Kolkata, PIN 700001 (West
Bengal).
... ... Respondents/ Appellants
Versus
M. Masroor Karim, Foreman Incharge (EMM), Bharat Coking Coal
Limited, P. NO. 01160076, son of M. Hasnain, resident of Qtr. No.11-B
Type, Opp. Bhuli Hospital, PO & PS-Bhuli, District-Dhanbad
(Jharkhand).
.. ... Writ Petitioner//Respondent
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
For the Appellants : Mr. Amit Kumar Das, Advocate
For the Respondent : Mr. Atanu Banerjee, Advocate
Mr. Satish Kumar, Advocate
Page 1 of 26 L.P.A. No. 273 of 2022
Mr. Rahul Basak, Advocate
.....
C.A.V. on 16th April, 2024 Pronounced on 09/05/2024
Per Sujit Narayan Prasad, J.:
Prayer:
1. The instant appeal under clause 10 of the letters patent is directed against the order/judgment dated 22.03.2022 passed by the learned Single Judge in W.P.(S) No. 7290 of 2011, whereby and whereunder, the learned Single Judge has allowed the writ petition by setting aside the impugned order dated 08.09.2011 with a direction upon the respondent/appellant no.2 to grant benefit of upgradation of E-1 Grade to the writ petitioner/respondent from the date of his juniors have been granted such benefit, i.e., 22.12.2010 and extend all consequential reliefs to the writ petitioner/respondent within eight weeks from the date of production of a copy of the order.
Facts:
2. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated herein, reads as under:
The writ-petitioner completed Diploma in Technology in Automobile Engineering and passed the final examination for which a certificate was issued by Hindustan Institute of Engineering Technology on 20.01.1984. An advertisement was issued inviting application through employment exchange for the post of Technician and Apprenticeship (Automobile) and the required qualification was matriculate with diploma in automobile engineering. Consequently, the writ-petitioner applied and was appointed in Technical Grade-C vide appointment letter dated 11.06.1990. Thereafter, vide office order dated 09.08.1996, the writ petitioner, who was working on the post of T & S Grade C at the relevant point of time, other diploma holders and Assistant Foreman were placed on the post of Foreman in T&S Grade B w.e.f. 17.08.1991. Vide office order dated 12.03.1997 (Annexure-5), which was also issued pursuant to letters issued by Coal India Limited, Page 2 of 26 L.P.A. No. 273 of 2022 the writ petitioner was given notional seniority to the post of Foreman In-charge in T&S Grade A w.e.f. 17.8.1994. Thereafter, on the basis of recommendation of departmental promotion committee, the writ petitioner was promoted to the post of Foreman (I/C E & M in T&S Grade A-1) w.e.f 01.04.2005 notionally vide office order dated 29/30.07.2008 (Annexure-6).
Thereafter, vide letter dated 07/08.07.2004 (part of Annexure-7 series), the provisional seniority list of Foreman I/C E & M diploma in T&S Grade A was published and circulated inviting objection and the name of the writ petitioner appeared at Sl. No.326 and the writ petitioner's technical qualification was mentioned to be diploma in automobile engineering and date of promotion in Grade A was mentioned as 17.08.1994. The said provisional seniority list was subsequently finalized and the writ petitioner's name appeared at sl. No.305 in the gradation list. The name of one Rameshwar Goswami was at Sl. No.309 of the final seniority list and the name of the writ petitioner appeared at Sl. No.305 in the final seniority list and therefore, petitioner was senior to Rameshwar Goswami.
Thereafter, copy of the 255th meeting was obtained by the writ petitioner wherein the list of diploma holders who are stagnating in A/A-1 grade for career growth prepared by the BCCL. In the said list the name of the writ petitioner appeared at sl. no.48 and in the list prepared by CMPDIL for the purpose of career growth, the name of the writ petitioner appeared at sl. no.253.
Thereafter, vide letter dated 16.04.2010 issued by the Coal India Limited addressed to the subsidiary companies of the Coal India Limited including the BCCL, details of the employees was called for career growth of diploma holders which were stagnating in A/A-1 and in the said letter, it is mentioned that in the 255th meeting of the Board of Directors of CIL, proposal to upgrade all diploma holders of engineering discipline who are stagnating in T&S as one time arrangement was approved.
Page 3 of 26 L.P.A. No. 273 of 2022Vide office order dated 02.12.2010 in terms of the decision taken in the 255th meeting, several similarly situated employees were upgraded to the post of E-1 Grade wherein one Rameshwar Goswami and four others, namely, A.K. Pandey, Lakhan Ravi Das, Arun Kumar Das and Bhagirath Mahto have also been upgraded to E-1 Grade and all the aforesaid employees have joined the services after the writ petitioner's joining.
It is the case of the writ petitioner that the writ petitioner is equally entitled for upgradation/promotion but having not done so, irregularity has been committed and being aggrieved with the same, a writ petition had been preferred being W.P.(S) No. 7290 of 2011, whereby and whereunder, the writ court has allowed the writ petition by setting aside the impugned order dated 08.09.2011 with a direction upon the respondent/appellant no.2 to grant benefit of upgradation of E- 1 Grade to the writ petitioner/respondent from the date of his juniors have been granted such benefit and extend all consequential reliefs to the writ petitioner/respondent within eight weeks from the date of production of a copy of the order against which the instant appeal has been preferred by the appellants/respondents.
3. It is evident from the factual aspect that the respondent/writ petitioner after completion of Diploma in Technology in Automobile Engineering and passed the final examination for which a certificate was issued by Hindustan Institute of Engineering Technology on 20th Day of January, 1984. The writ petitioner/respondent participated in the process of selection for the post of Technician and Apprenticeship (Automobile) and the required qualification was matriculate with diploma in automobile engineering. The writ petitioner/respondent applied and was appointed in Technical Grade-C vide appointment letter dated 11.06.1990. He was subsequently placed to the post of Foreman in T&S Grade-B w.e.f. 17.08.1991 on the ground that he has been considered as a candidate having diploma certificate. The notional seniority was given to the writ petitioner/respondent to the post of Page 4 of 26 L.P.A. No. 273 of 2022 Foreman Incharge in T&S Grade A. w.e.f. 17.8.1994 which was also based upon the fact that he was a diploma holder.
4. The case of the writ petitioner/respondent all along was that he is having diploma certificate, however, of two years course but as per the decision taken in the 255th meeting of the Board of Directors of Coal India Limited held on 17.03.2010 at New Delhi wherein also the recognition of the diploma holders of having two years course have been given. The writ petitioner/respondent, therefore, claims himself to be entitled for consideration for upgradation to E-1 Grade.
5. The writ petitioner/respondent claiming himself to be a diploma holder and after the decision having been taken by the Board of Directors in 255th meeting had preferred writ petition along with two others being W.P.(S). No.558 of 2011 seeking a direction upon the respondents to consider the claim of promotion upgrading them to the post of E-1 Grade with all consequential benefits with effect from the date other similarly situated persons even juniors to the petitioner were granted promotion. The said writ petition was disposed of vide order dated 09.05.2011 with a liberty to file a fresh representation before the Director (Personnel) BCCL, Dhanbad who, in turn, was to consider the claim of the writ petitioner/respondent and pass a reasoned order.
6. The said order dated 09.05.2011 was subsequently modified vide order dated 09.06.2011 wherein the word "Director Personnel BCCL, Dhanbad" was directed to be read as "Director (P&IR) Coal India Limited". The concerned authority passed an order on 08.09.2011, whereby and whereunder, the claim of the writ petitioner/respondent has been rejected on the following grounds:
(a) diploma certificate being recognized by Government / Technical board. It is not in dispute that the petitioner satisfies this condition.
(b) duration of diploma programme being minimum three years. The petitioner does not satisfy this condition.Page 5 of 26 L.P.A. No. 273 of 2022
(c) where no year of qualification was mentioned, the relevant qualification should have been acquired prior to the period of 15 years taking 31.03.2010 as a cutoff date.
7. The writ petitioner/respondent being aggrieved with the said order has preferred writ petition being W.P.(S) No. 7290 of 2011 taking the ground that when the appointment of the writ petitioner/respondent has been accepted to be made on the basis of the holder of diploma certificate although of two years course, then there is no question of non-consideration of the case of the writ petitioner/respondent.
The ground has also been taken that irrespective of the period of course, decision was already taken by the Board in its 255 th meeting that all diploma holders will be under consideration zone for the purpose of upgradation to E-1 Grade in order to avoid stagnation.
The third ground has been taken that identically placed co- employees have been considered and they have been upgraded to E-1 Grade even though they were having with the two years diploma course.
8. The learned Single Judge has called upon the respondent concerned wherein plea was taken that that as per the rule applicable to the employees working under the respondents, diploma course means that it is for the period of three years. The ground has also been taken that the aforesaid three years was lacking so far as the writ petitioner/respondent is concerned, hence, as per the policy decision taken by the authority for upgradation, the writ petitioner/ respondent has been found not eligible to hold the post of E-1 Grade.
So far as the ground taken that the course discrimination having been meted out to the writ petitioner/respondent is concerned, counter affidavit has been filed but there is no specific denial to that effect.
9. The learned Single Judge, on appreciation of the factual aspect and the stand inter alia taken by the respondent in the counter affidavit and also Page 6 of 26 L.P.A. No. 273 of 2022 taking into consideration the decision of the Board of Coal India Limited in its 255th meeting which has not been disputed by the respondent in the counter affidavit, has allowed the writ petition by quashing and setting aside the impugned order dated 08.09.2011 with a direction upon the respondent/appellant no.2 to grant benefit of upgradation of E-1 Grade to the writ petitioner/respondent from the date of his juniors have been granted such benefit, i.e., 22.12.2010 and extend all consequential reliefs to the writ petitioner/respondent within eight weeks from the date of production of a copy of the order.
Arguments on behalf of the appellants:
10. Mr. Amit Kumar Das, learned counsel for the appellant has taken the following grounds:
(i) The learned Single Judge has not appreciated the fact that the statutory rule to hold the post of E-1 Grade provides one of the conditions to be possessed mandatorily is that diploma holders who have successfully completed and passed three years diploma in Electrical/Mechanical from recognized Institute/University after matriculation.
Admittedly, the writ petitioner/respondent is having no diploma of three years course rather he is having two years course. Hence, the writ petitioner/respondent cannot be said to be eligible to hold the post of E-1 Grade.
(ii) The Board of Directors in its 255th Meeting has taken decision keeping in view the minimum educational qualification of three years as would be evident from the noting sheet dated 06.12.2010 particularly at column no.6 which has also been taken into consideration by the learned Single Judge wherein the condition is required to be possessed by one or the others that all recommendation are subject to the (a) Diploma Certificate being recognized by Government/Technical Board; (b) Duration of diploma programme being minimum three years and; (c) where Page 7 of 26 L.P.A. No. 273 of 2022 no year of qualification was mentioned, the relevant qualification should have been acquired prior to the period of 15 years taking 31.03.2010 as the cutoff date approved by the CIL Board.
It has been contended that the learned Single Judge has not appreciated condition no.(b) as contained in condition No.6 which is to be read out with (c) and as per which if both will be taken into consideration that the duration of programme will be three years and where no year of qualification has been mentioned, the relevant qualification should have been acquired prior to the period of 15 years taking 31.03.2010 as the cutoff date which impliedly means that where no year of qualification is being referred if not mentioned, the same speaks about the reference of the year of qualification of three years minimum programme if not available then in that circumstances the said certificate is required to be shown issued prior to the period of 15 years taking 31.03.2010 as the cutoff date.
(iii) The ground has been taken that the learned Single Judge has read out both the conditions, i.e., (b) and (c) separately while as per the stipulation made under condition no.6, the condition no.(b) and (c) are to be read co-jointly and not in segregation.
(iv) So far as the ground of non-rebuttal of the upgradation having been granted to E-1 Grade is concerned, although the counter affidavit has been filed but since all the employees who have been granted E-1 Grade which has been taken as an instance were posted at different places, hence, even in spite of taking time no rebuttal reply was given but that does not mean that the fact about granting upgradation to other employees has been admitted.
11. Mr. Amit Kumar Das, learned counsel for the appellant/respondent has submitted by filing supplementary affidavit which has been filed in terms of the order dated 22.12.2022 passed by this Court wherein the Page 8 of 26 L.P.A. No. 273 of 2022 fact about granting upgradation to E-1 Grade has been disputed as per the statement made at para-10 onwards of the affidavit.
12. The ground has also been taken that even accepting the fact that some of the employees have been upgraded to E-1 Grade giving go-by to the minimum educational qualification then also the writ petitioner/respondent cannot derive any benefit on the ground that Article 14 of the Constitution of India envisages positive equality and not the negative equality but this aspect of the matter has not been taken into consideration, hence, the instant appeal.
Arguments on behalf of the respondent:
13. Mr. Atanu Banerjee, learned counsel for the writ petitioner/respondent while defending the impugned order has taken the following grounds:
(i) The writ petitioner/respondent since was appointed on the basis of two years diploma certificate and it was not questioned at any time rather he was also granted hierarchical promotion on the basis of two years diploma certificate. The seniority list was also prepared, hence, the approach of the appellant/respondent in not considering the candidature of the writ petitioner/respondent for upgradation in E-1 Grade cannot be said to be justified merely on the ground that the writ petitioner/respondent was not having diploma of three years certificate.
(ii) The learned Single Judge has well appreciated the policy decision dated 06.12.2010 which is based upon the 255th Board Meeting, whereby and whereunder, consideration was given on the basis of condition (c) of condition no.6 which stipulates that where no year of qualification was mentioned, the relevant qualification should have been acquired prior to the period of 15 years taking 31.03.2010 as the cutoff date.
14. The learned counsel for the writ petitioner/respondent has submitted that the words "where no year of qualification was mentioned, the relevant qualification should have been acquired prior to the period of Page 9 of 26 L.P.A. No. 273 of 2022 15 years taking 31.03.2010 as the cutoff date", has been made as a paramount consideration and in the case of writ petitioner/respondent no year of qualification has been mentioned, hence, by taking into consideration the qualification prior to the period of 15 years, the case of the writ petitioner/respondent ought to have been considered.
15. The aforesaid fact was taken into consideration by the learned Single Judge which led the learned Single Judge in interfereing with the impugned order. The ground has been taken that when the specific stand has been taken by claiming parity on the ground that other similarly situated co-employees who were having two years diploma course had been considered for upgradation as E-1 Grade and when the said fact was not disputed even though ample opportunity was granted which led the learned Single Judge to take into consideration by considering the fact to be admitted on behalf of the appellant/respondent and hence, applying the principle of hostile discrimination, the impugned order has been quashed, hence, if that consideration was given by the learned Single Judge the order passed by the learned Single Judge cannot be said to suffer from error.
Analysis:
16. This Court has heard the learned counsel for the parties, gone across the findings recorded by the learned Single Judge in the impugned order.
17. This Court before proceeding to examine the legality and propriety of the impugned order, needs to refer herein some undisputed facts.
18. The writ petitioner/respondent admittedly was appointed on the basis of two years diploma course certificate and has been given hierarchical promotion as also seniority was fixed. The writ petitioner/respondent along with others, on completion of the eligibility to be considered for upgradation in E-1 Grade as per the decision taken in the 255th meeting has approached to the High Court being W.P.(S). No.558 of 2011 seeking a direction upon the respondents to consider the claim of promotion upgrading them to the post of E-1 Grade with all Page 10 of 26 L.P.A. No. 273 of 2022 consequential benefits with effect from the date other similarly situated persons even juniors to the petitioner were granted promotion. The said writ petition was disposed of vide order dated 09.05.2011 with a liberty to file a fresh representation before the Director (Personnel) BCCL, Dhanbad who, in turn, was to consider the claim of the writ petitioner/respondent and pass a reasoned order.
The said order dated 09.05.2011 was subsequently modified vide order dated 09.06.2011 wherein the word "Director Personnel BCCL, Dhanbad" was directed to be read as "Director (P&IR) Coal India Limited". The concerned authority passed an order on 08.09.2011, whereby and whereunder, the claim of the writ petitioner/respondent has been rejected. Being aggrieved thereof, the writ petitioner/respondent approached to this Court by filing writ petition being W.P.(S) No. 7290 of 2011 which was allowed vide order dated 22.03.2022 against which the instant appeal has been preferred.
19. This Court, in order to appreciate the rival submissions advanced on behalf of the parties, needs to refer herein the cadre scheme for electrical and mechanical discipline employees which has been formulated under the National Coal Wage Agreement which shall be called as "Cadre Scheme For Electrical and Mechanical Discipline Employees". The scheme has been made applicable. The scheme has been made applicable to the entire workers in E-1 Grade which has been classified into four groups.
The first group is Diploma Holders which has been defined that those who have successfully complete and passed three years diploma in Electrical/Mechanical from recognized Institute/University after matriculation.
The second group is ITC Certificate Holders who have obtained ITI Certificate after Matriculation in respective trades from a recognized institute. ITI Certificate Holders those who have obtained Page 11 of 26 L.P.A. No. 273 of 2022 ITI Certificate in respective trade from a recognized institute but not having matriculation or SSLC Certificate.
The third group is Matriculate, those who have passed Matric from recognized Institute/Board/University.
The fourth group is Others, below Matric and Illiterate.
For ready reference, the said scheme is being reproduced as under:
▪ Diploma Holders: Those who have successfully complete and passed three years diploma in Electrical/Mechanical from recognized Institute/University after matriculation.
▪ ITC Certificate Holders :
- Those who have obtained ITI Certificate after Matriculation in respective trades from a recognized institute.
- ITI Certificate Holders those who have obtained ITI Certificate in respective trade from a recognized institute but not having matriculation or SSLC Certificate.
▪ Matriculate: Those who have passed Matric from recognized Institute/Board/University.
▪ Others: below Matric and Illiterate.
20. It is not in dispute that the cadre scheme which has been formulated under the National Coal Wage Agreement is applicable to the case of the writ petitioner even as per the admission made on behalf of the learned counsel for the writ petitioner/respondent.
21. Thus, it is evident that as per the scheme, the diploma holders will also be said to be diploma holder who have successfully completed and passed three years diploma in electrical/mechanical from recognized institute/university after matriculation.
22. It also requires to be referred herein based upon the duration of three years course of the diploma holders, the promotional channel of E&M personnel Asstt. Foreman/Chargeman to Foreman-in-charge (Diploma Holders) as under Annexure-VII-16 has also been appended with the said rule as per which to hold the post of Assistant Page 12 of 26 L.P.A. No. 273 of 2022 Foreman/Chargeman (Traninee Electrical or Mech.), diploma in mechanical or electrical engineering (minimum 3 years course) has been made as a minimum qualification (educational and technical).
23. Under the column for eligibility for promotion, the departmental candidate having 3 years' experience of working in coal mining industry in any coal mining project obtaining diploma.
The mode of promotion has been decided to be selection and interview/DPC. Likewise, the post of Assistant Foreman/Chargeman (Electrical or Mechanical), 3 years diploma course has been made as minimum qualification. For ready reference, the said tabular chart is being referred as under:
PROMOTIONAL CHANNEL OF E&M PERSONNEL ASSTT. FOREMAN/CHARGEMAN TO FOREMAN-IN-CHARGE (DIPLOMA HLDERS) (Circulated Vide I.I. No.30, dated 26.06.1984) (Vide NCWA-IV/I.I. No.32, dated 15.07.1992) Sl. Designation Scale of Minimum Eligibility for Mode of No. Pay/Category qualification promotion Promotion (Rs.) (Educational/Technic al)
1. Asstt. Gr.-C Diploma in Mech. or Departmental Selection Foreman/Char Elect. Engineering candidate having and geman 1222-60- (Minimum 3 years 3 years experience Interview/ (Trainee 1702-66- course) of working in coal DPC Electrical or 2230/- mining industry in Mech.) any coal mining project obtaining diploma.
2. Asstt. Gr.-C -do- Passing or Selection/ Foreman/Char prescribed DPC geman 1222-60- Test/Examination (Electrical or 1720-66- after successful Mech.) 2230/- completion of 2 years training as Asstt.
Foreman/Chargem an (Trainees) as Elec. or Mech.
3. Foreman Gr.-B -do- i) 3 years DPC (Mech.) experience as 1290-68- Asstt.
1834-74- Foreman/Chargem
2426/- an in Gr. C
ii) In Company
Page 13 of 26 L.P.A. No. 273 of 2022
Certificate of
competency
4. Foreman Gr.-B -do- i) 3 years DPC
(Elect.) experience as
1290-68- Asstt.
1834-74- Foreman/Chargem
2426/- an in Gr.-C
ii) Elect.
Supervisor
Certificate of
competency valid
for Mining
5. Foreman-in- Gr.-A -do- 3 years experience DPC
Charge E&M as Foreman as
1387-75- Grade-B
2137-80-
2537/-
24. It is evident from the aforesaid tabular chart that the diploma in electrical and machinal minimum three years course has been made as the minimum qualification to hold the post, however, the eligibility for promotion from the aforesaid post has also been provided therein.
25. In the 255th meeting held on 17.03.2010 wherein as per the decision taken as under 4.9(i) under the caption subject "Career growth of Diploma Holders who are stagnating in A/A-I grade." The Board, after detail deliberation, approved the following:
(i) Up gradation of all Diploma Holders of Engineering Disciplines, i.e., Mining, E&M, Excavation, Civil, E&T, Industrial Engineering, Coal Preparation, etc., who have been stagnating in T&S Grade-A or A-1 for more than 15 years as on the cut off date to be decided by the implementing authority, to E-1 Grade as a ONE TIME ARRANGEMENT.
26. It is thus evident as per 4.9(i) that up gradation of all Diploma Holders of Engineering Disciplines, i.e., Mining, E&M, Excavation, Civil, E&T, Industrial Engineering, Coal Preparation, etc., who have been stagnating in T&S Grade-A or A-1 for more than 15 years as on the cut-off date to be decided by the implementing authority, to E-1 Grade as a one-time arrangement.
Page 14 of 26 L.P.A. No. 273 of 202227. The ground of the learned counsel for the petitioner that when in the 255th meeting of the Board, upgradation of all diploma holders of engineering disciplines has been decided, hence, by virtue of the diploma holders for two years then the writ petitioner has become eligible to hold the said post.
28. The Departmental Promotion Committee was constituted as per the noting sheet dated 06.12.2010. The relevant for consideration of the lis is the decision no.6, whereby and whereunder, it has been stipulated which reads as under:
"6. Since it was not feasible for the Committee to verify the diploma certificates of all the employees because of the large number and also since the Centralised Cluster Cell-CIL had done the verifications, all recommendations are subject to the Diploma certificates being (a) Recognized by Govt./Technical Board; (b) duration of the programme being minimum three years and ; (c) where no year of qualification has been mentioned, the relevant qualification should have been acquired prior to the period of 15 years taking 31/03/2010 as the cut off date approved by the CIL Board."
29. It is evident from the aforesaid stipulation as quoted and referred hereinabove that committee has found it not feasible for the Committee to verify the diploma certificates of all the employees because of the large number and also since the Centralised Cluster Cell-CIL had done the verifications, all recommendations are subject to the Diploma certificates being (a) Recognized by Govt./Technical Board; (b) duration of the programme being minimum three years and ; (c) where no year of qualification has been mentioned, the relevant qualification should have been acquired prior to the period of 15 years taking 31/03/2010 as the cut-off date approved by the CIL Board.
The three conditions are provided, i.e., diploma certificates from a recognized institute; duration of the programme being minimum three years and if the same is compared with the definition of diploma holders as per the scheme wherein also condition no.(a) and (b) are in consonance with the aforesaid definition which contains that those who have successfully completed and passed three years course in electrical Page 15 of 26 L.P.A. No. 273 of 2022 and mechanical from recognized Institute/University after matriculation.
However, a condition has been inserted based upon the 255th Board meeting by insertion of the word "and" where no year of qualification has been mentioned, the relevant qualification should have been acquired prior to the period of 15 years taking 31.03.2010 as the cut-off date approved by the CIL Board. The consideration of the condition as under (a), (b) and (c) are to be read out together.
30. The diploma certificate is to be recognized by the Government/Technical Board which is in consonance with the diploma holders as contained in the cadre scheme no.VII as quoted and referred hereinabove. The duration of the programme being minium three years which is also in consonance with the diploma holders as under cadre scheme no.VII.
But, in order to consider the case of one or the other diploma holders of three years who have been made eligible to hold the post of E-I grade and whose year of qualification has not been mentioned in the certificate, a decision was taken that such relevant qualification should have been acquired prior to the period of 15 years. The condition no.(a) aims on diploma certificates recognized by Govt./Technical Board while condition no.(b) is added with condition no.(c), hence, both the conditions, i.e., (b) and (c) are to be read out together along with condition no.(a).
The implied meaning of the insertion of the word "and" in between the condition nos.(b) and (c) would be that if the duration of the programme of the diploma certificates being three years and where no year of qualification has been mentioned, the relevant qualification should have been acquired prior to the period of 15 years taking 31.03.2010 as the cut-off date approved by the Board which impliedly means that in case of the diploma holders of being minimum three years if the year of such qualification has not been mentioned, there Page 16 of 26 L.P.A. No. 273 of 2022 will be no different notion of that contention as is being taken on behalf of the learned counsel for the petitioner that the condition no.(c) speaks about diploma holders who are having diploma certificates of two years.
31. The same is not acceptable to this Court due to the insertion of the word "and" in between the condition no.(b) and (c), hence, both the conditions are to be read out co-jointly and once the duration of the programme being minimum three years and in case of no reference of the qualification, the date of the qualification is to be seen if issued prior to 15 years as on 31.03.2010. There cannot be any different interpretation if such condition will be read out along with the stipulation made of the diploma holders in the cadre scheme no.VII which stipulates that the diploma holders who have successfully completed and passed three years diploma in Electrical/Mechanical from recognized Institute/University after matriculation.
32. The law is well settled that if the rule of recruitment is there, there cannot be deviation from the same even by the Board of Directors since the cadre scheme no.VII is based upon the National Coal Wage Agreement which is a bi-partite agreement entered outside the conciliation proceeding, hence, the said scheme is having the statutory fervor in view of Section 18(3) of the Industrial Disputes Act, 1947.
33. The issue of statutory fervor of the National Coal Wage Agreement has been taken note by the Hon'ble Apex Court in the case of Mohan Mahto v. Central Coal Fields Limited, (2007) 8 SCC 549 wherein the Hon'ble Apex Court has been pleased to observe about the statutory fervor of the National Coal Wage Agreement as would appear from para-10 which reads as under:
"10. A settlement within the meaning of sub-section (3) of Section 18 of the Industrial Disputes Act is binding on both the parties and continues to remain in force unless the same is altered, modified or substituted by another settlement. No period of limitation was provided in the settlement. We would assume that the respondent had jurisdiction to issue such circular prescribing a period of limitation for filing application for grant of appointment on compassionate grounds. But, such circular was not only required to be strictly complied with but also Page 17 of 26 L.P.A. No. 273 of 2022 was required to be read keeping in view the settlement entered into by and between the parties. The expanding definition of workman as contained in Section 2(s) of the Industrial Disputes Act would confer a right upon the appellant to obtain appointment on compassionate grounds, subject, of course, to compliance with the conditions precedent contained therein."
34. The moment National Coal Wage Agreement has been accepted to be the statutory fervor in view of Section 18(1) of the Act, 1947, there cannot be any deviation from the aforesaid condition stipulated in the Cadre Scheme No.VII which has been made in view of bi-partite agreement known as National Coal Wage Agreement. The same has been reiterated even by the Board in its 255 th Board meeting by insertion of the condition no.(a), (b) and (c).
35. The interpretation which is being given by the learned counsel for the writ petitioner that since he has been appointed in two years diploma course that has been accepted, is also required to be accepted for the purpose of E-1 Grade but the aforesaid ground is not acceptable to this Court for the reason that in the recruitment rule as formulated in view of NCWA having statutory fervor, the diploma holders have already been defined to have three years course then in no stretch of imagination the three years course can be reduced to two years course.
36. The Board in its 255th meeting also does not suggest that merely on the ground that all the diploma holders have been called to participate in the consideration for upgradation in E-1 Grade.
The interpretation so made by the learned counsel for the petitioner that all the diploma holders means that irrespective of the period of course, the diploma holders are to be considered for upgradation as E-1 Grade but the aforesaid interpretation has no substance reason being that all the diploma holders as per the decision taken in the 255th meeting specify that the diploma holders as per the cadre scheme no.VII which is of three years and not two years.
37. So far as the contention of the learned counsel for the petitioner that he was appointed on the basis of the two years diploma course is Page 18 of 26 L.P.A. No. 273 of 2022 concerned, we are not dealing the issue of his appointment rather we are dealing with the issue of upgrdation for which the diploma holders are required to possess three years diploma course.
38. The departmental promotion committee has also taken into consideration the aforesaid aspect of the matter as would be evident from the clause (6) of the noting sheet dated 06.12.2010.
39. This Court, in view of the aforesaid discussion, is of the view that the contention which has been raised that the 255th Board Meeting since has taken a decision to call upon all the diploma holders, is based upon wrong notion as per the detailed discussion made hereinabove. Accordingly, the aforesaid ground is hereby held to have no substance.
40. After discussing the aforesaid fact and coming to the order passed by the learned Single Judge, the learned Single Judge has also accepted the plea of the writ petitioner that the condition no.(c) is to be read out in isolation leaving apart condition no.(b). If the aforesaid contention will be accepted then the question would be as to whether as per the cadre scheme which is based upon the NCWA which is having statutory fervor then what will happen to that statutory provision by which the minimum educational qualification has been fixed to be diploma holders of three years course.
41. The 255th Board Meeting also taken the consideration of two years diploma course and based upon that the condition no.(b) has been considered by the departmental promotion committee and as per the discussion made hereinabove, the word "and" in between the condition nos.(b) and (c) of the clause (6) of the noting sheet dated 06.12.2010 which is being held to be read co-jointly then the finding in this regard as has been given by the learned Single Judge suffers from infirmity.
42. The second ground is the claim of parity. Since, the writ petitioner has taken the ground by citing instance of co-employees that they were having two years diploma course and they have been considered for E- 1 Grade. It appears that the specific stand has been taken by the writ Page 19 of 26 L.P.A. No. 273 of 2022 petitioner as under paragraph-15 of the writ petition. For ready reference, paragraph-15 of the writ petition reads as under:
"15. That the petitioner states that from time to time, circulars, instructions have been issued by Coal India Limited about the service conditions of the diploma holders appointed in different subsidiary companies of the Coal India Limited including BCCL."
43. It further appears that the counter affidavit was filed on behalf of appellant-respondent but there is no denial to that effect, however, in spite of ample opportunity given to the appellant-respondent.
44. The learned Single Judge considering the pleading made at paragraph- 15 to be admitted one, hence, came to the conclusion that the writ petitioner has been subjected to hostile discrimination which has also been taken as a ground to interfere with the impugned order.
45. However, this Court while considering the appeal has passed an order on 22.12.2022 by which the appellant-respondent was directed to file an affidavit by giving specific response to the paragraph-15 of the memo of appeal. For ready reference, the said order of this Court is being referred as under:
"Heard learned counsel for the parties.
In the midst of argument, Mr. Amit Kumar Das, learned counsel for the appellants has sought for time to bring on record the rules of eligibility to hold the post under E-I category.
He has also sought for leave of this Court to allow him to bring on record the order of upgradation, if granted, in favour of the person concerned as has been claimed by the writ petitioner or cancelling such upgradation, as being claimed by the respondent and further, to bring on record the documents in support of statement made at paragraph-15 of the memo of appeal by way of an affidavit.
As prayed for on behalf of the appellants, let this matter be listed on 11.01.2023."
46. The appellant has filed supplementary affidavit stating inter alia therein that although the upgradation to E-1 Grade was given to two years diploma course holders but subsequently, the same either had been cancelled or the person concerned has retired from service.
Page 20 of 26 L.P.A. No. 273 of 2022However, those facts could not be brought to the notice of the learned Single Judge due to the compelling circumstances as has been referred at paragraph-15 of the memo of appeal.
47. This Court, on appreciation of the aforesaid ground is of the view that the case is to be decided on the pretext that as to whether the writ petitioner has been subjected to hostile discrimination or not?
48. There is no dispute that the Article 14 of the Constitution of India puts restrictions in making out hostile discrimination, i.e., the classification said to be unreasonable, however, reasonable classification if is there, the same does not hit the very spirit of Article 14 of the Constitution of India. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Shri Ram Krishna Dalmia & Ors Vs. Shri Justice S.R. Tendolkar & Ors [AIR 1958 SC 538], the Hon'ble Apex Court, taking into consideration catena of judgments rendered by Hon'ble Apex Court, has held that Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and
(ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.
Relevant passage of paragraph 11 of the said judgment is quoted as under:
"11. ...(a). That a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or Page 21 of 26 L.P.A. No. 273 of 2022 reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;
(b). That there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;
(c). That it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;
(d). That the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;
(e). That in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and
(f). That while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and un-
known reasons for subjecting certain individuals or corporations to hostile or discriminating legislation...."
49. Admittedly herein, before the learned Single Judge the specific pleading made in the writ petition was not disputed which led the learned Single Judge to come to the conclusion that even the two years diploma course were considered for upgradation to E-1 Grade but it needs to refer herein that the letters patent appeal court is the furtherance of the writ proceeding as per the judgment rendered by the Hon'ble Apex Court in Baddula Lakshmaiah and Ors. vs. Sri Anjaneya Swami Temple and Ors., (1996) 3 SCC 52 as such, this Court is of the view that the issue requires to be decided by this Court on merit regarding the legality and propriety of the impugned order, therefore, this Court is now proceeding to decide the issue on merit taken by the administrative authority which is impugned in the writ petition. Relevant paragraph of the said judgment reads as under:
"2. ... A letters patent appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in execise of the same jurisdiction as was vested in the Single Bench. ..."Page 22 of 26 L.P.A. No. 273 of 2022
50. The appellant-respondent has filed supplementary affidavit wherein from paragraph-10 onwards, the fact about granting upgradation to E-1 Grade although was not disputed but the specific plea has been taken that subsequently the upgradation granted in favour of co-employees had either been cancelled or the person concerned had retired.
51. The question herein is that even though the upgradation to E-1 Grade granted in favour of co-employees and subsequently if it has been cancelled then as to whether it is available for the writ petitioner to take the ground of parity.
The second question would be there that even accepting that upgradation to E-1 Grade had been granted in favour of some of the employees having two years diploma course, can it confer any right to claim parity on the basis of the principle that Article 14 envisages positive equality and not the negative equality.
52. This Court again needs to refer herein the position of law that any recruitment or upgradation is required to be made based upon the recruitment rule and if any deviation is made, the same will dehores the rules.
53. As has been referred hereinabove that the Cadre Scheme No.VII is the outcome of the National Coal Wage Agreement which has got statutory fervor, meaning thereby, the said scheme is having the statutory command and hence, there cannot be any deviation from the same. The aforesaid cadre scheme provides diploma of three years course to be mandatory course for upgradation under E-1 Grade.
54. This Court, therefore, is of the view that if the statutory rule provides for holding the E-1 Grade of such employees who are having diploma of three years, there cannot be any deviation for considering or appointing or upgradation any employee under E-1 Grade on the basis of the diploma holders of two years course otherwise, such appointment/upgradation/promotion will dehores the rule and will not be sustainable in the eyes of law.
Page 23 of 26 L.P.A. No. 273 of 202255. However, it has been pleaded by the appellant that the promotion was granted but subsequently it has been cancelled realizing the said mistake.
56. The second reason that even accepting that the promotion or upgradation had been granted based upon the diploma of two years can it be helpful for the writ petitioner to take the ground of parity by citing the instance of violation of Article 14 of the Constitution of India. The law is already settled in this regard that the Article 14 of the Constitution of India envisages positive equality and not the negative equality. Reference in this regard be made to the judgement rendered by the Hon'ble Apex Court in State of Bihar & Ors. vs. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306 wherein at paragraph-30 it has been laid down hereunder as :-
"The concept of equality as envisaged under Art. 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits."
Reference in this regard may also be made to the judgment rendered in Basawaraj & Anr. Vs. Special Land Acquisition Officer, (2013) 14 SCC 81, in particular, paragraph 8, which reads hereunder as:
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it 22 cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible."Page 24 of 26 L.P.A. No. 273 of 2022
Likewise, the Hon'ble Apex Court in Kulwinder Pal Singh & Anr Vs. State of Punjab & Ors, (2016) 6 SCC 532 at paragraph 16 held hereunder as:
"16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In State of U.P. v. Rajkumar Sharma it was held as under: "
15. Even if in some cases appointments have been made by mistake or wrongly, that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake."
57. Herein, as per the statutory provision the diploma of three years is mandatorily to be possessed and it is admitted case of the writ petitioner that he is having two years diploma course and in that view of the matter, it is not available for him to hold the post of E-1 Grade by virtue of upgradation. Even the Board has taken no decision by relaxing the said condition which cannot be, otherwise the same will be said to be in deviation to the statutory rule.
Conclusion:
58. This Court, after having discussed the factual aspect as also the legal position and coming to the order passed by the learned Single Judge, is of the view that the learned Single Judge has not given the consideration with respect to the issue of binding effect of the statutory provision based upon the bi-partite agreement known as National Coal Wage Agreement which has got statutory fervor which prescribes diploma of three years.
59. The learned Single Judge has also not appreciated the fact that there cannot be any deviation from the statutory rule.
60. The learned Single Judge has not appreciated that there cannot be any relaxation in the matter of promotion contrary to the statutory rule.
The learned Single Judge has also not appreciated in right perspective that the question of parity even though the same was not Page 25 of 26 L.P.A. No. 273 of 2022 disputed before the writ court then consideration ought to have been given on the principle of positive equality as per the spirit of Article 14 of the Constitution of India and not the negative equality.
61. This Court, based upon the aforesaid reason, is of the view that the order passed by the learned Single Judge suffers from error, hence, the same needs to be interfered with.
62. Accordingly, the impugned order dated 22.03.2022 passed by the learned Single Judge in W.P.(S) No.7290 of 2011 is hereby quashed and set aside.
63. In view thereof, the writ petition stands dismissed.
64. In the result, the instant appeal stands allowed.
65. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I Agree,
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Saurabh / A.F.R.
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