Delhi District Court
Dr. Rajindra Prasad vs Union Of India on 23 February, 2007
1
IN THE COURT OF SHRI SANATAN PRASAD
SR. CIVIL JUDGE: DELHI
Suit No. 1041/06/92
In the matter of:
Dr. Rajindra Prasad ,
S/o Sh. D. Ananda Rao,
R/o B-299, NFL Township,
Panipat, Haryana.
......Plaintiff
Versus
1. Union of India,
Through Secretary,
Ministry of Fertilizers and Chemicals,
Shastri Bhawan, New Delhi.
2. National Fertilizers Limited,
20, Community Centre,
East of Kailash, New Delhi.
(Page 1 of 22)
2
3. National Fertilizers Limited,
Panipat, (Haryana).
......Defendants
Date of Institution : 11.03.1983
Date of Decision : 23.02.2007
SUIT FOR DECLARATION & PERMANENT INJUNCTION
Present: Counsels for the parties.
JUDGMENT
The present suit seeking decree of declaration and permanent injunction to the effect that the plaintiff ought to have been promoted to the post of Shift Engineer w.e.f.22.6.81 with all the allied benefits under the reserved quota for SC/ST posts, and also to restrain the defendants from transferring him from the Production (Page 2 of 22) 3 Department to the Technical Services (Safety Department), on the averments that he belonged to scheduled caste community of Andhra Pradesh, known as 'Mala' and was appointed as Engineer Trainee (chemical) on the basis of his eligibility and being a member of Scheduled Caste community, with the defendants on 27.11.76 and was transferred to Panipat plant till his regular appointment as Asstt. Shift Engineer. He was confirmed as Asstt. Shift Engineer w.e.f.8.9.78 and promoted to the post of Shift Engineer and when he pressed for his promotion under the provisions of Recruitment/Promotion Rules, he was put to harassment on one or the other flimsy ground and one of the officers of the defendants namely PK Banerjee went to the extent of abusing, humiliating and threatening him, to which he strongly opposed by way of letter dated 18.9.80, on which no action (Page 3 of 22) 4 was taken by the department and rather the matter was closed on 28.10.81. It has been further pleaded that plaintiff continued to press his demand for promotion and other benefits but the matter was being put off. However, he was called for interview on three occasions i.e. on 22.6.81 at Chandigarh and on 2.12.81 and 23.8.82 at Delhi and ultimately, it was only on 31.1.83 that he was promoted to the post of Shift Engineer after his interview was held on the third occasion on 23.8.82 by the DPC when it comprised the SC/ST members. It has been further pleaded that at the time of interview on 22.6.81 and 2.12.81, no SC/ST member was sitting in the Departmental promotion committee (DPC), which was a clear violation of the provisions of formation of DPC and same resulted in depriving him of his right to have been promoted on the first sitting of DPC on 22.6.81 itself. The (Page 4 of 22) 5 plaintiff has further averred that he was trained as an Asstt. Engineer for the production department and he was also promoted as Shift Engineer to the same department and could not be transferred to any other department like 'Safety' etc. but the officers of the defendants were so prejudiced against him for his having pressed his rights being a member of SC/ST that he was transferred to the Technical Services (Safety Department) despite there being reserved vacancies in the production department and his not having any requisite experience in this regard, i.e. safety discipline. It has been further pleaded that plaintiff was intentionally deprived of his rights to retrospective promotions from Jan.1981 and that his posting in the Safety department was likely to jeopardize his career and to endanger his person for total lack of experience in the safety discipline and that as (Page 5 of 22) 6 per the recruitment and promotion rules, the plaintiff deserved to have been promoted to the post of Shift Engineer against the reserve vacancy, which infact existed from 1980 till Feb.83, when he put on the post of Shift Engineer. This suit has thus been filed seeking the abovesaid relief.
The defendants in their written statement raised preliminary objections that this suit had become infructuous in view of transfer of the plaintiff to the Technical Services department vide letter dt.12.2.83, where he has already joined; that his seniority as Shift Engineer had been maintained with and qua other employees; that the suit was barred by the provisions of Specific Relief Act and it was an inter-departmental function for which no injunction could be granted (Page 6 of 22) 7 to the plaintiff and that there was no cause of action as no right of the pltf.was violated and that it was for the management/deft. to decide as to where an employee is to be posted; that the suit was bad for misjoinder of parties and Delhi courts have no jurisdiction to try this suit as the plaintiff was employed at Panipat unit of defendant and that the suit was liable to be dismissed for non-compliance of provisions of sec.80 CPC. On merits, it has been submitted that in the appointment letter issued to plaintiff, it was made clear that the services of the plaintiff could be utilised anywhere at the discretion of the defendant company as per their service rules and in this regard, he had also filled up a bond. The allegations made by the plaintiff regarding down-grading the post of Dy. Manager to Asstt. Safety officer, have been denied and it has been submitted that the complaint (Page 7 of 22) 8 against Sh. Banerjee was withdrawn by the plaintiff himself. The plaintiff was promoted to the post of Shift Engineer w.e.f.31.1.83 on his having been found suitable and there was no question of his having suffered any deprivation as pleaded by him. The members of SC/ST sit in the DPC only if any of the post is reserved for SC and not otherwise. It has been submitted that promotions are made not only on the basis of the eligibility criteria but subject to availability of vacancies and suitability of the employees to be promoted. The present suit being false and baseless deserves dismissal with costs.
In the replication, the plaintiff controverted the submissions made in the written statement and re-affirmed his own pleadings as made in the plaint.
(Page 8 of 22) 9 Following issues were framed by the court vide order dt.4.7.86:
1. Whether the suit is barred under the provisions of Specific Relief Act? (objected to by the ld. counsel for plaintiff being vague.
2. Whether the plaintiff is entitled to be promoted as alleged in the plaint?
3. Relief.
The plaintiff besides examining himself as PW2 examined two other witness namely Sh. Harbhajan Singh as PW.1 and Sh. B.P. Sohankar as PW3 and testimony of both these witnesses is to the effect that there was ST/SC Employees welfare Association of NFL, Panipat, of which PW1 remained President for four to five years during the period 1978 to 1983 and that the plaintiff had approached the (Page 9 of 22) 10 association regarding disputes with respect to his promotion and transfer etc. and rude and humiliating behaviour of his senior Sh. PK Banerjee towards him, who used derogatory words for the plaintiff. The said case was however, closed because the plaintiff and members of association were threatened by the management. It has also come in evidence that said Sh.PK Banerjee had since died. The plaintiff in his testimony as PW.1 more or less reiterated and reaffirmed the pleadings made in his plaint. Both these witnesses were cross examined at length.
On the other hand, defendant examined its Deputy Manager (Personnel) Mr.GD Bhutani as DW1, authorising him to depose in this case by way of authority letter, i.e. Ex.DW.1/1. He testified that (Page 10 of 22) 11 plaintiff was appointed as Management trainee in 1976 and was regularised in 1978 as Asstt. Shift Engineer and he became eligible for consideration for promotion after three years from the date of his appointment as per the prevalent grade specifications at that time. He proved on record the proceedings of DPC, held on 21/22 and 23rd June, 1981 as Ex.DW.1/2, wherein out of the 33 considered candidates, only five were promoted and plaintiff was not found suitable at that time. He was again considered and not found suitable in the DPC held in Dec.1981 and it was only in the special DPC held on 1.9.82 that he was found suitable and promoted as Shief Enginner and thee was one SC/ST member in this very DPC. He stated that there was no SC/ST member available at the relevant time of holding of lst and second DPC meeting. The plaintiff had accepted the (Page 11 of 22) 12 promotion before filing the present suit and his transfer to the safety department was internal administrative arrangement covered under the employment terms and conditions. He further testified that promotion of plaintiff was purely based on merit/selection system and reservation policy for SC/ST candidates was not applicable to promotion through selection within grade I and that there was uniform rule of three years' experience for all the candidates irrespective of SC/ST candidature. This witness was cross examined on behalf of the plaintiff at length. He stated that no 40 point roaster was maintained for promotion within Grade 'A' through selection.
I have considered the written submissions made by both the parties and perused the entire relevant record and also oral arguments (Page 12 of 22) 13 addressed before me in the court, besides, perusing the documents placed on record and I decide the above issues as under:-
Issue No.2 This issue is being taken up first being the main issue, around which the entire matter/controversy revolves. The contention on behalf of the plaintiff is that he was entitled to be promoted w.e.f.22.6.81 without any relaxation with all allied benefits meant for SC/ST posts as the reserved posts were lying vacant prior to the year 1980 till January 1983, when he was promoted and that he ought to have been promoted as such w.e.f.June, 1980 with one year relaxation and w.e.f. June, 1981 without any relaxation. It has been further contended that he was denied the due promotion despite his being a (Page 13 of 22) 14 meritorious candidate and despite there being vacancies in the production department of the establishment at Panipat, because of the biased attitude of the defendants' offices towards reserved category candidates and thus the various directions and guidelines issued in this regard by the Govt. of India and the provisions, as laid in the Constitution of India were violated. It has been further contended that even if the stand of the defendants that the policy of three years experience was applicable for all candidates irrespective of the reserved candidates is taken as correct, even then great prejudice was caused to the plaintiff as he was promoted only after 4 ½ years i.e. in January 1983. The defendants deliberately and intentionally violated the government's directive issued vide letter dt.10.2.75, placed on record as mark 'D' for inclusion of SC/ST members in the DPCs. in (Page 14 of 22) 15 which reserved category candidates were to be interviewed, by not including any SC/ST member in the DPCs held in June, 1981 and December, 1981. It has been further contended that defendants transferred him to the safety department, knowing fully well that certain special qualification was required for working in such department, which he did not possess and he was transferred there only for causing him harassment and spoiling his career.
On the contrary, the stand taken by the defendants is that plaintiff, after his appointment as Engineer trainee in Nov.1976, was appointed to the post of Asstt.Shift Enginner in the year 1978 and was confirmed as such w.e.f.12.6.79. Thereafter, he was considered for promotion for the post of Shift Enginner in the DPCs. held in June, (Page 15 of 22) 16 1981 and December 1981,wherein he was not found suitable, and it was in special DPC to be held on 1.9.82, which infact was held on 23.8.82 that he was promoted to the post of Shift Engineer. The plaintiff's name in the seniority lists of DPCs of June, 1981 and December 1981 was at no.30 and 27 respectively. I have carefully read the proceedings of DCP meeting held on 21/22 and 23rd June, 1981, which are on record as Ex.DW.1/2, which show that total 33 candidates were considered but only five were promoted as Shift Engineer and one MP Singh, who was a SC candidate and whose seniority no. was 15 in the list,was promoted as Shift Engineer.
Similarly in the DPC held in December 1981, out of the 35 candidates considered for promotion to the post of Shift Engineer, only 10 candidates were promoted including one PB Asai, a member of SC/ST (Page 16 of 22) 17 category and thus I find the contention raised by the plaintiff that he was not considered for promotion in these DPC being a member of SC/ST category, to be devoid of any force because SC/ST candidates were duly considered and promoted in both these DPCs. The contention raised by the plaintiff that in the first two DPCs.,no SC/ST member were included therein intentionally and deliberately and it was only in the DPC held on 23.8.82, wherein SC/ST member was included and that he was promoted as Shift Engineer w.e.f. 31.1.83 and that had this policy of including SC/ST member in the earlier two DCPs had been adopted, he would have been considered and promoted as Shift Engineer even in the first DPC itself held in June,1981 and that he was intentionally deprived of his legal rights of promotion at the due time, also has no substance in view of the (Page 17 of 22) 18 position already discussed and the explanation given by defendants that at the relevant time when the earlier two DPCs were held, no SC/ST member could be located for including as member of DPC, seems satisfactory, inasmuch as, admittedly, the plaintiff had accepted the promotion before filing the present suit. His posting to the safety department after promotion as Shift Engineer was interdepartmental arrangement and I find force in the submission made on behalf of the defendant that under employment terms and conditions anyone could be transferred from one department to the other. The plaintiff after his promotion in 1983 without any reservation or resistance joined to the transferred post and by way of this suit he cannot claim his promotion now with retrospective effect i.e. w.e.f. June, 1981 when the first DPC was held and he was not found suitable for the (Page 18 of 22) 19 promotion. I find substance in the argument raised on behalf of defendants that promotion from the post of Assistant Shift Engineer which was within the ambit of Group A (Class I posts) to the next higher post, which in this case was the post of Shift Engineer was based on merits and the reservation policy for SC ST candidate was not applicable. In this regard reliance has been placed on the authorities cited as Guntur Toobacco Market Committee V Yarabothu Narasayya reported in 1967 (1) LLJ 1 (AP), Samarjit Datta V. M/sPmt Machine Tools Automatics Pvt.Ltd and Anr, 2001 (034) LIC-2399 Bom. and National Federation of SBI and ors V. Union of India and Ors. (1995) 3 Supreme Court cases 532. The ratio, as per these citations is that for SC/ST candidates and their consideration for promotion in DPCs, it was just a concession and not a reservation.
(Page 19 of 22) 20 Even otherwise, as is apparent from the pleadings and plaintiff himself, he was considered in the DPCs held prior to the year 1983 in which however he was not found suitable and after his promotion in the DPC held in 1983, he had accepted the same. He filed the suit only after accepting the promotion. Thus, he was not within his right to claim promotion from retrospective effect.
I am, thus, of the considered view that the plaintiff is not entitled to be promoted as alleged in the plaint. He was given due promotion after being considered in the DPC held in year 1983, which he had already accepted. So far as, the grievance of the plaintiff that he was transferred to the safety department for which he lacked experience and requisite qualification is concerned it has been (Page 20 of 22) 21 submitted on behalf of defendants that vide letter dt.12.2.83 he was transferred to the technical services department and this fact has very much been admitted by the plaintiff in the replication although stating that this transfer was effected/effective under the force of authority much after filing of the present suit. In view of the facts and circumstances of the case, this issue stands decided against the plaintiff and in favour of defendant.
Issue No.1 In view of decision of issue no.2 this issue needs no discussion and any specific finding thereupon will serve no purpose and the same is decided accordingly.
(Page 21 of 22) 22 Relief.
Consequent upon my findings on issues no.1 & 2, I hereby dismiss the present suit. There is, however, no order as to costs. File be consigned to record room after preparing the decree sheet.
Announced in open court (SANATAN PRASAD)
on this 23rd day of February 2007 Sr. Civil Judge, Delhi
(Spare three copies attached)
(Page 22 of 22)