Devendra Prasad Singh vs Jharkhand State Mineral Development Corporation Limited

Pramath Patnaik, J

In the captioned writ application, the petitioner has interalia prayed for direction upon the respondents for removal of pay anomaly and for fixation

of proper scale of pay of the Mines Manager and also for payment of arrears of salary in view of refixation of the pay. Further prayer has been made

for direction upon the respondents to consider the case for regular promotion to the sanctioned post of Senior Mining Engineer with effect from

01.09.1999 and thereafter, to the sanctioned post of General Manager (Technical). Further prayer has been made to consider and allow the first

financial upgradation in the scale of pay of Rs.10,000-15,200/- under A.C.P. Scheme on completion of 12 years of service till regular promotion. The

petitioner has further prayed for issuance of writ of certiorari for quashing the resolution dated 05.04.1988 of the Board of Director of the respondent

corporation vide Annexure-I.A.-1 whereby the pay scale of Mines Manager has been downgraded to the lower scale of pay which has been

impugned in pursuance to order dated 15.06.2016 passed in I.A. No.6863 of 2015.Â

The brief facts as has been disclosed in the writ application is that after obtaining Bachelor Degree in Mining Engineering, the petitioner was

appointed under the Corporation as a Graduate Mining Engineer vide order dated 08.07.1986. Thereafter, the petitioner was directed to discharge the

duties on the post of the Mines Manager in the working interest of the Corporation. Thereafter, the petitioner has been declared to be eligible to

function as Second Class Manager with effect from 08.04.1988. The Manager Second Class Certificate dated 10.03.1989 was issued in favour of

petitioner under the provisions of the Mines Act, 1952. After obtaining the said certificate since the pay scale of the petitioner was lower to similarly

situated Second Class Mines Managers, working under the Corporation, the petitioner has brought to the notice of the respondents for removal of the

Pay Anomaly vide Annexure-7 series, which was followed by another application dated 16.06.2009 (Annexure8) and 18.08.2009 (Annexure-9). Due

to inaction on the part of respondents, the petitioner has been constrained to approach this Court under Article 226 of the Constitution of India for

redressal of his grievances.Â

Learned counsel for the petitioner during course of hearing has referred to a rejoinder affidavit to the counter-affidavit dated 27.11.2015 by

Annexure-13 where the scale of the Senior Mining Engineer (Vigilance) has been mentioned as Rs.1350-2000/-. Learned counsel by referring to

Annexure-14 of the rejoinder i.e. Government of Bihar, Finance (Bureau of Public Enterprises) Department through letter dated 13.02.1981 which

inter alia prescribes the Kalawadhi on completion of which an Officer of a Government Enterprise becomes eligible for being promoted to the

promotional post wherein it is provided that promotions are to be allowed on completion of a minimum Kalawadhi of three years. Therefore, counsel

for the petitioner submits that as per the said circular the petitioner ought to have been promoted to the higher pay scale after completion of three

years of services. Learned counsel for the petitioner further refers to application dated 21.04.2004 whereby the petitioner submitted application before

the competent authority to exonerate him from the punishment of censure as in the order of punishment, no charge was proved against the petitioner.

Learned counsel further refers to Annexure-16/2 of the rejoinder affidavit which does not reveal any omission or commission by the petitioner.

Learned counsel for the petitioner further refers to supplementary affidavit dated 24.07.2018 whereby the decision has been taken by the Board

Meeting to revoke the cadre scheme and service condition 2012 and the said rule has been kept in abeyance and the Board resolved to adopt the

service condition of the State of Jharkhand which has been reenforced/revised as evident from Annexure-20 by the said affidavit.Â

Mr. Rupesh Singh, learned counsel for the respondents by referring to order dated 02.02.1990 vide Annexure-6 to the writ application submits that

the petitioner is aware of resolution dated 05.04.1988 and on the date of resolution, the petitioner did not have training qualification. Since, Annexure-3

is the certificate dated 05.01.1989 which was effective from 08.04.1988, therefore, on the date of resolution, there was no certificate. Moreover,

Annexure-3 has been issued by the State of Bihar and since the petitioner has not impleaded State of Bihar as party respondent accordingly, the writ

petition is not maintainable due to non-joinder of party. Apart from statement made in the counter-affidavit, learned counsel for the respondents has

submitted that the writ petition is not maintainable due to doctrine of waiver and acquiescence. Learned counsel for the respondents further submits

that on perusal of Annexure-11 to the supplementary affidavit filed by the petitioner dated 18.04.2011 that First Class Manager’s Certificate of

Competency is issued on 30.11.2010 which is effective from 05.04.2010. Learned counsel for the respondents has referred to counteraffidavit dated

11.11.2011 and also to reply to supplementary affidavit dated 11.11.2011 where in paragraph-7 of the said affidavit it has been submitted that First

Class Manager Certificate of Competency is valid from 05.04.2010, however, the petitioner has made a claim on the basis of certificate from

01.09.1999 and as such, the claim is not maintainable.Â

After hearing learned counsel for the respective parties and having bestowed my anxious consideration to the rivalized submissions and on perusal

of the documents on records, I am of the considered view that admittedly, the petitioner has obtained the certificate First Class Manager Certificate of

Competency in the year 2010, therefore, in the fitness of things, it would be in the interest of justice to direct the respondents to consider the case of

the petitioner for promotion to the post of Senior Mining Engineer and subsequent promotion to the post of General Manager from the year, 2010 and

accordingly, necessary order be passed by respondents for removal/refixation of the Pay Anomaly within a reasonable period and the above exercise

be completed preferably within a period of four months from the date of receipt/communication of a copy of this order.

With the aforesaid direction, the writ petition stands disposed of.