Dhirendutta vs Neepco and Others

A.K. Patnaik, J.—The Petitioner was promoted to the post of Senior Manager in the North Eastern Electric Power Corporation Limited (for short, "the NEEPCO") in 1997 and in this writ petition, he has prayed that he should be deemed to be promoted to the post of Senior Manager with effect from 1994 when his juniors were promoted.

The facts briefly are that the Petitioner joined the Public Works Department, Assam as an Assistant Engineer in 1966 and he was promoted to the post of SDO in the year 1972. In January, 1977 he joined the NEEPCO as SDO on deputation. He was promoted to the post of Executive Engineer in the NEEPCO and in 1983 he was absorbed in the NEEPCO with permission from his parent Department, Government of Assam. In 1988, he was promoted to the post of Superintendent Engineer in the NEEPCO. By an office order issued under Memo dated 18.4.1994, a Departmental Promotion Committee (for short, "the DPC") was constituted for considering promotion to the posts of Additional Chief Engineer (C). On the basis of the recommendation of the said DPC, Shri Beda Prasad Barua, Sri Pijush Kanti Bhattacharjee, Sri Utpal Borah and Shri Tarun Chandra Borgohain working as Superintendent Engineer (C) under the NEEPCO were promoted to the posts of Additional Chief Engineer (C) by order dated 7.6.1994 of the Chief (Human Resources). On the basis of the recommendation of the said DPC again Sri Pradip Kumar Deka and Sri Niharendu Bhattacharjee who were working as Superintendent Engineer (C) were also promoted to the posts of Additional Chief Engineer (C) by order dated 1.3.1995. On the said recommendation of the DPC, Smti Kavita Devi who was working as Superintending Engineer (C) in the Neepco was also promoted as Additional Chief Engineer (C) by office order dated 30.3.1995. All the aforesaid officers, Sri Pijush Kanti Bhattacharjee, Sri Tarun Chandra Borgohain, Sri Pradip Kumar Deka, Sri Niharendu Bhattacharjee and Smti Kavita Devi were junior to the Petitioner as Executive Engineer, but the Petitioner was not promoted to the post of Additional Chief Engineer (C). Hence, the Petitioner submitted a representation dated 30.6.1995 to the Chairman & Managing Director NEEPCO requesting him to review his case for promotion. Thereafter, by office order issued under Memo dated 28.5.1996 Anr. DPC was constituted and on the basis of recommendation of the said DPC, Sri Ashok Kumar Dam who was working as Superintendent Engineer (C) in the NEEPCO was promoted to the post of Additional Chief Engineer (C) by office order dated 20.8.1996. Sri Ashok Kumar Dam was also junior to the Petitioner as Executive as Executive Engineer, but the Petitioner was not promoted. By office order issued under Memo dated 25.8.1997 Anr. DPC was constituted and on the recommendation of the said DPC 12 persons including the Petitioner were promoted to the post of Additional Chief Engineer (C) by order dated 1.10.1997. The grievance of the Petitioner is that the Petitioner was shown against serial No. 11 in the said promotion order dated 1.10.1997 but the officers placed against serial Nos. 1 to 9 in the said promotion order were junior to the Petitioner at one stage or the other, and this lower position in the said promotion order dated 1.10.1997 would affect the consideration of the Petitioner for promotion to the post of Chief Engineer. The Petitioner has prayed that the recommendations of the DPC held in 1994, 1996 and 1997 be reviewed and that the Petitioner be deemed to be promoted to the post of senior Manager with effect from 1994 when his juniors were promoted.

Mr. AK Phukan, learned Counsel for the Petitioner, submitted that the old promotion Policy and Rules for regular employees of the NEEPCO were in force prior to 1.4.1997 as well as the revised NEEPCO Promotion Policy and Rules with effect from 2.4.1997 provided that promotions to the post of SE and above would be purely on the basis of merit with seniority taking the secondary role. Thus, seniority of the officers had to be taken into consideration while recommending promotions to the posts of Additional Chief Engineer. But the DPC which met in 1994, 1996 and 1997 for considering promotion to the posts of Additional Chief Engineer (C) ignored the seniority of the Petitioner altogether. To illustrate this point, Mr. Phukan referred to the proceedings of the DPC which met on 16.5.1994 to show that although the DPC assessed the Petitioner as well as Sri Dilip Kumar Nath, Sri Ashok Kumar Dam, Sri Madhav Chandra Sarma, Sri Birendra Nath Acharyya and Sri Mrinal Deka as good'', the said DPC placed the Petitioner in 15th position and placed the aforesaid officers who were junior to the Petitioner in serve in 9th, 10th, 12th, 13th and 14th position in order of merit. Mr. Phukan further argued that paragraph -4 of the said old Promotion Policy and Rule for regular employees of NEEPCO further provides that the qualifying period for promotion from grade to the next higher grade in case of Engineers would be 5 years with at least two years service in the field establishment. The Petitioner satisfied this requirement of qualifying period inasmuch as he had around 5 years experience in the field establishment. Although, Shri U. Borah, Sri N. Bhattacharjee and Smti Kavita Devi did not have field experience and Sri P. Deka and Sri P. Bhattacharjee had field experience of less than two years, they were all recommended for promotion by the DPC and were in fact promoted to the post of Additional Chief Engineer (C) prior to the Petitioner. According to Mr. Phukan therefore this is a fit case in which this Court should direct the Respondents to hold a review DPC for reconsidering the case of the Petitioner for promotion to the post of Additional Chief Engineer (C) with effect from 1994. Mr. Phukan further explained that unless such direction is issued by the Court, the Petitioner will not get a chance for being promoted to the post of Chief Engineer redesignated as DGM and GM under the revised promotion policy and Rules of the NEEPCO effective from 2.4.1997.

In reply, Mr. KP Sarma, learned Counsel appearing for the NEEPCO, contended that the writ petition challenging the recommendations of the DPC held in the years 1994, 1996 and 1997 should be dismissed on the ground of delay and lachces as it has been filed in February, 1999 more than two years after the recommendations of the DPC and after the promotions made on the basis of the said recommendations. He cited the decision of the Supreme Court in P.S. Sadasivaswamy Vs. State of Tamil Nadu, in which the Supreme Court upheld the order of the High Court dismissing a writ petition on the ground of delay by holding that a person aggrieved by an order promoting a junior over his head should approach the court atleast within six months or at the most a year of such promotion, and it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who did not approach the courts expeditiously for relief and who stood by and allowed things to happen and then approached the court to put forward stale claims and try to unsettle settled matters. Mr. Sarma referred to Annexure-B and D to the affidavit-in-opposition filed on behalf of Respondents 1 to 5 to show that the representation dated 30.6.1995 of the Petitioner and the representation dated 23.3.1992 of the Petitioner were duly considered by the authorities and disposed of. He also argued that the final seniority list of Superintending Engineer (C) in the NEEPCO in which the Petitioner was shown as junior to Sri Tarun Chandra Borgohain, Sri PK Bhattacharjee, Sri Pradip Kumar Deka, Sri Ashok Kumar Dam, Sri Jatindra Nath Saikia and Sri Rabindra Nath Tamuli was circulated on 10.5.1994, but the Petitioner did not challenge the said final seniority list in court till February, 1999. Mr. Sarma contended that under paragraph 3-B of the Old Promotion Policy and Rules for regular employees of the NEEPCO which were in force prior to 2.4.1997, promotion was to be considered on the basis of merit, and seniority was to have a secondary role and in accordance with the said basis of promotion the Petitioner was considered for promotion to the post of Additional Chief Engineer by the DPC which met on 16.5.1994, but was placed in 15th position in order of merit and on the basis of the said recommendations of the DPC, Officers who were placed in the 1st to 7th position in order of merit were promoted to the post of Additional Chief Engineer (Civil) by office orders dated 7.6.1994, 1.3.1995 and 30.3.1995. He pointed out that Annexure-C to the affidavit-in-opposition filed by the NEEPCO would clearly show that the DPC in the said recommendations had assessed the said officers in the 1st to 7th position in order of merit as "outstanding" and "very good" whereas the Petitioner had been assessed by the DPC in the said recommendations as "good". Mr. Sarma further stated that officers placed in the 1st to 5th position in order of merit by the DPC in its recommendations in Annexure-C were senior to the Petitioner in the grade of Superintending Engineer while officers placed in 6th & 7th position in order of merit by the DPC in its said recommendations in Annexure-C were junior to the Petitioner in the grade of Superintending Engineer. Regarding the contention of Mr. Phukan, learned Counsel for the Petitioner, that Sri PK Bhattacharjee, Sri Utpal Borah, Sri Pradip Kumar Deka, Sri Niharendu Bhattacharjee and Smti Kavita Devi did not have the qualifying period of field experience, Mr. Sarma argued that under paragraph 13 of the Old Promotion Policy and Rules for regular employees of the NEEPCO in force prior to 2.4.1997, the Chairman and managing Director had the discretion to relax any of the Rules to mitigate the cases of hardship or to meet organizational requirements. He further argued that in any case the promotion of the said officers made in the years 1994 & 1995 on the basis of the said recommendations of the DPC was not challenged by the Petitioner till February, 1999, and the High Court should not entertain this writ petition filed in the year 1999 challenging the promotion of the said officers on the ground that they were not eligible to be considered for promotion.

Regarding the DPC which met on 7.8.1996, Mr. Sarma submitted that Annexure-E would show that the Petitioner was considered along with other officers by the said DPC for promotion to the post of Additional Chief Engineer, but was placed in the 6th position in order of merit. He explained that Sri Ashok Kumar Dam who was placed in 1st position in order of merit by the DPC in the same recommendations in Annexure-E to the affidavit-in-opposition was promoted by office order dated 20.8.1996. He submitted that the recommendations of the DPC in Annexure-E to the affidavit-in-opposition would further show that Sri Ashok Kumar Dam was assessed as "very good" while the Petitioner was assessed as "good". Mr. Sarma submitted that against the said recommendations of the DPC or the promotion of Sri Ashok Kumar Dam in the year 1996, the Petitioner had not filed any representation to the authorities.

Regarding the DPC which met on 25.9.1997, Mr. Sarma submitted that by 25.9.1997 the revised Promotion Policy and Rules of regular employees of the NEEPCO had come into force with effect from 2.4.1997 and the post of Superintending Engineer has been redesignated thereunder as Manager and the posts of Additional Chief Engineer has been redesignated as Senior Manager, and the said DPC which met on 25.9.1997 considered the case of the Petitioner and other officers and gave a grading of "C" to the Petitioner and placed him in 11th position in order of merit while officers with better merit than the Petitioner were given the grading of "A" and "B" and were placed above the Petitioner. He submitted that on the basis of the said recommendations of the DPC, the Petitioner was promoted to the post of Senior Manager with effect from 1.7.1997 by order dated 1.10.1997. Thereafter, a provisional inter-se-seniority list of Senior Managers (Civil) was circulated in which the Petitioner''s position was shown at serial No. 12 on the basis of earlier position of the officers as recommended by the said DPC met on 25.9.1997. The Petitioner submitted a representation dated 7.10.1998 against the said provisional inter-se-seniority of Senior Managers (Civil), but by order dated 7.1.1999, the Petitioner was informed that his seniority had been fixed basing on merit position assigned by the DPC and there was no scope for review of the same.

Mr. Sarma further submitted that during the pendency of the writ petition, the Petitioner was again considered for the post of DGM equivalent to Chief Engineer Level-II by the DPC which met on 11.11.1999, but the Petitioner was placed in 7th position in order of merit and on the basis of the said recommendations of the DPC promotions were made only to 4 posts of DGM from amongst the officers who were placed by the said DPC above the Petitioner. Mr. Sarma submitted that there is no scope for judicial review in the present writ petition filed by the Petitioner as the promotions of the officers of the NEEPCO have been made in accordance with the Promotion Policy and Rules of the NEEPCO which were in force at the relevant time, and the Petitioner had also been considered and had been given a fair treatment by the DPC and the authorities of the NEEPCO. He cited the decision of the Supreme Court in State of State of Madhya Pradesh Vs. Srikant Chaphekar, in which the Supreme Court has held that it is not the function of the Tribunal or court to assess the service record of a Government servant and order his promotion on that basis and it is for the DPC to evaluate the same and make recommendations based on such evaluation. He also cited the decision of this Court in Rajinder Singh Yadav v. Union of India 1995(1) GLJ 169, for the proposition that under Article 226 of the Constitution the court cannot sit in appeal over the decision of the DPC with regard to merit of an officer considered for promotion and evaluate his ACRs and substitute its own opinion for that of the DPC and its limited jurisdiction is only to ensure that the Petitioner has received a fair treatment and his right to equality guaranteed under Articles 14 and 16 of the Constitution has not been affected. Mr. Sarma also relied on the decision of this Court in Y. Chaoba Singh v. State of Manipur 1998(4) GLT 312, wherein the court has held that while exercising the power of judicial review, the court is primarily concerned as to whether there has been any infirmity in the decision making process and the court cannot as an appellate authority substitute its own opinion for a decision arrived at by the competent authority with regard to promotion.

In reply to the aforesaid submission of Mr. KP Sarma, written submission has been filed on behalf of the Petitioner stating that the writ petition of the Petitioner should not be dismissed by this Court on the sole ground of delay as the Petitioner had been submitting representations from time to time, but the said representations have not yielded any fruitful result in favour of the Petitioner and that by letter dated 7.1.1999 the Petitioner was informed by the Assistant Manager (P) Ex. Pro. that there was no scope for review of the inter-se-seniority position assigned to the Petitioner in the cadre of Senior Manager (C) as fixed in the seniority list dated 15.9.1998. Being aggrieved, the Petitioner has approached this Court in February, 1999 for directing review of the recommendations of the DPC which met in 1994,1996 and 1997. In the said written submission, the counsel for the Petitioner has contended that in the case of Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, the Supreme Court has held that the rule which begs that a court may not enquire in belated or stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay the court must necessarily refuse to entertain the petition. In the said written submission, the counsel for the Petitioner has also cited the decision of the Supreme Court in Shri Vallab Glan Works Ltd. v. Union of India AIR 1984 SC 977 , in which it has been held that each has to be judged on its own facts and circumstances touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc. Reference has also been made in the said written submission to Hindustan Petroleum Corporation Ltd. and Another Vs. Dolly Das, in which the Supreme Court has held that delay, by itself, may not defeat the claim for relief unless the position of a party has been so altered which cannot be retracted on account of lapse of time or inaction of the other party. According to the learned Counsel for the Petitioner, therefore, the question as to whether the writ petition is liable to be dismissed solely on the ground of laches is one of discretion to be exercised by the court taking into consideration the facts of each case. In the said written submission, the counsel for the Petitioner has further argued that as there were no adverse remarks against the Petitioner, the authorities of the NEEPCO have acted in an arbitrary manner by allowing the officers who were junior to the Petitioner to supersede him to higher posts through the impugned DPCs which met in 1994, 1996 and 1997. Learned Counsel for the Petitioner has further submitted in the written submission that in State of Madhya Pradesh Vs. Srikant Chaphekar, cited by Mr. Sarma, the Supreme Court has clearly held in para 4 of the judgment that only when the court/tribunal comes to the conclusion that a person was not considered for promotion, or the consideration was illegal then a direction can be given to the authorities to reconsider his case in accordance with law.

The first question therefore which has to be decided in this writ Petitioner is whether the court should dismiss the writ petition on the sole ground of delay and laches on the part of the Petitioner in approaching the court at the belated stage for reliefs in this writ petition. In the writ petition, the Petitioner has prayed for a direction on the authorities of the NEEPCO to review the recommendations of the DPCs which met in 1994, 1996 and 1997. On the basis of the recommendations of the DPCs held in 1994 and 1996, several promotions have been made to the posts of Additional Chief Engineer (C) in the years 1994,1995 and 1996. Although the Petitioner submitted representations to the authorities against the said promotions, when those representations were not disposed of by the authorities nor allowed in favour of the Petitioner, promot steps should have been taken by the Petitioner to approach this Court in a writ petition with prayers to direct the authorities of the NEEPCO to hold review DPC and to reconsider the case of the Petitioner vis-a-vis the officers who were promoted on the basis of the recommendations of the DPCs which met in the years 1994 and 1996 but the Petitioner has not promptly challenged the recommendations of the said DPCs which met in the years 1994 and 1996 and the promotions made on the basis of the said recommendations which had taken place in the year 1994, 1995 and 1996. To entertain the challenge to the said recommendations of the DPCs which met in the years 1994 and 1996, and the promotions made on the basis of the said recommendations in 1994,1995 and 1996 on the basis of the present writ petition filed in February, 1999, would not be a sound exercise of discretion by this Court under Article 226 of the Constitution as any interference with the said recommendations of the DPCs which met in 1994 and 1996 and promotions on the basis of the said recommendations of the DPCs which had taken place in 1994, 1995 and 1996 would not only affect the promoted officers but would have a chain reaction in the hierarchy of officers in the NEEPCO and would upset and disturb some settled matters with regard to seniority and promotions for further higher rank. I am therefore not inclined to entertain this writ petition against the DPCs which met in 1994 and 1996 and the promotions made on the basis of the recommendations of the said DPCs in the years 1994,1995 and 1996 on the ground of delay and laches on the part of the Petitioner in filing this writ petition in February, 1999 and not before.

Coming now to the recommendations of the DPC held in the year 1997,12 officers including the Petitioner were promoted on the bass of the recommendations of the said DPC by order dated 1.10.1997 annexed to the writ petition as Annexure-14, and the grievance of the Petitioner is that he being senior to all except Sri Rabindra Nath Tamuli, Respondent No. 18, at one stage or the other. should have been placed in the 1st or 2nd position. It appears that the said DPC was held in accordance with the revised NEEPCO Promotion Policy and Rules which came into effect with effect from 2.4.1997. The revised NEEPCO Promotion Policy and Rules provides that criteria for promotion from the posts of Superintending Engineer (C) to Additional Chief Engineer (C) is merit-cum-seniority and that the DPC would give weightage of 10 points to qualification, 20 points to length of service in the present post and 30 points to appraisal reports/ACRs. The said revised NEEPCO Promotion Policy and Rules further provides that officers are to be graded as "A", "B", "C" and "D" depending upon the points that they secure on the basis of their qualification, length of service and appraisal reports/ACRs. The revised NEEPCO Promotion Policy & Rules further provided that the employees obtaining Grade-A would ranbenblock senior to those who are graded as "B" and employees who obtain Grade-B would rank enblock senior to those who are graded as Grade-C. The employee placed within the same grade would maintain the same seniority as per the lower grade of post from which they are considered for promotion. In accordance with the aforesaid provisions in the revised NEEPCO Promotion Policy and Rules the records indicate that the DPC which met on 25.9.1997 awarded 16 points to all 12 officers including the Petitioner for the same qualification of BE (Civil) and awarded 20 points to all 12 officers including the Petitioner for the length of service in the present post, but awarded different points for the 3 years ACRs/Appraisal reports. Columns-1, 2, 6 and 8 in respect of 12 officers from the Assessment Sheet of the DPC which met on 25.9.1997 are quoted hereinbelow:

-------------------------------------------------------------------------------- S1. Name Year Grading points total Average Total No. awarded points points points for each of 3 awarded 4+5+ year years 6+7 -------------------------------------------------------------------------------- 1. Sri Rabindra 1. 1994-95 Good 10 40 13.3 49 Nath Tamuli 2. 1995-96 Good 10 3. 1.4.96 V. Good 20 to 31.10.96 -------------------------------------------------------------------------------- 2. Sri Dhiren 1.4.94 Good 10 Dutta to 30.9.94 40 13.3 49 1. 10.94- 31.3.95 2. 1995-96 V. Good 20 3. 1996-97 Good 10 -------------------------------------------------------------------------------- 3. Sri Birendra 1. 1994-95 V. Good 20 Nt. Acharjee 2. 1995-96 V. Good 20 60 20 56 3. 1996-97 V. Good 20 -------------------------------------------------------------------------------- 4. Sri Mrinal 1. 1994-95 V. Good 20 Deka 2. 1995-96 V. Good 20 60 20 56 3. 1996-97 V. Good 20 -------------------------------------------------------------------------------- 5. Sri Madhab 1. 1994-95 V. Good 20 Ch. Sarmah 2. 1995-96 O/standing 30 80 26.6 63 3. 1996-97 O/standing 30 -------------------------------------------------------------------------------- 6. Sri Imran 1. 1994-95 O/standing 30 Hussain Hazarika 2. 1995-96 V. Good 20 70 23.3 59 3. 1996-97 V. Good 20 -------------------------------------------------------------------------------- 7. Sri Dilip 1. 1994-95 V. Good 20 Kr. Nath 2. 1995-96 Good 10 50 16.6. 53 3. 1.7.96 V. Good 20 25.10.96 -------------------------------------------------------------------------------- 8. Smt Mridula 1. 1994-95 V. Good 20 Das 2. 1995-96 Good 10 50 16.6 53 3. 1.4.96- 31.10.96 V. Good 20 1.11.96- 31.3.97 -------------------------------------------------------------------------------- 9. Sri Hirok 1. 1994-95 V. Good 10 Sankar Dutta 2. 1995-96 Good 10 30 10 46 3. 1996-97 Good 10 -------------------------------------------------------------------------------- 10. Md. Jalaluddin 1. 1994-95 Good 10 Borbhuiya 2. 1995-96 V. Good 20 50 16.6. 53 3. 1.11.96- V. Good 20 31.3.97 -------------------------------------------------------------------------------- 11. Sri Dipankar 1. 1994-95 V. Good 20 Purkaystha 2. 1995-96 V. Good 20 60 20 56 3. 1996-97 V. Good 20 -------------------------------------------------------------------------------- 12. Sri Hari 1. 1994-95 V. Good 20 Sankar Paul 2. 1995-96 V. Good 20 60 20 56 3. 1996-97 V. Good 20 --------------------------------------------------------------------------------

It will thus be clear from the aforesaid chart taken from the assessment sheet for promotion prepared by the DPC which met on 25.9.1997 that although the Petitioner may not have any adverse entry in the ACRs during the years 1994-95, 1995-96 and 1996-97, the Petitioner and Sri Rabindra Nath Tamuly secured only a total of 49 points and were graded "C" and placed enbloc below the 9 officers who had secured more points because of their better ACRs/Appraisal reports and had been graded either "A" or "B". For the purpose of finding out as to whether the ACR/Appraisal Report gradings of different years in respect of different officers have been correctly taken in the said Assessment Sheet of the DPC, I have also gone through the ACRs/Appraisal Reports of the aforesaid officers which have Seen produced in court, and I do not find that the DPC has been arbitrary or unreasonable in grading the ACRs/Appraisal Reports of the officers for different years in the assessment sheet. Thus, it is difficult for this Court to hold that the DPC has acted in an unfair, arbitrary or unreasonable manner in placing the Petitioner in 11th position in its recommendations for promotion to the post of Additional Chief Engineer (Civil), or has acted in any manner contraiy to the revised NEEPCO Promotion Policy & Rules effective from 2.4.1997. This is, therefore, not a case where the court should interfere with the recommendations of the DPC which met in the year 1997.

For the aforesaid reasons, I am not inclined to interfere with the recommendations of the DPC which met in the year 1997 or the promotions which have been made on the basis of the said recommendations of 1997. Since the recommendations of the DPC which met after 1997 for promotion to the post of Chief Engineer have not been challenged in this writ petition, I do not express any opinion on the said recommendations. The writ petition is dismissed. Considering, however, the entire facts and circumstances of the case, I leave the parties to bear their respective costs.