Ramanuj Prasad vs Coal India Limited and Others

Rongon Mukhopadhyay, J—In this application, the petitioner has prayed for a direction upon the respondents to consider the case of the petitioner for promotion to the post of E-4 grade with effect from 1995 from the date on which the juniors to the petitioner have been given promotion along with all consequential benefits. The petitioner has further prayed for quashing the order dated 17.05.2014/5.6.2004 issued by the General Manager (EE), whereby and whereunder the claim of the petitioner for charge allowance for the period 9.5.1990 to 12.02.2001 has been rejected. It has also been prayed by the writ petitioner that the concerned authorities be directed to immediately and forthwith pay to the petitioner Acting allowing in terms of clause 9.6 of Chapter-IX of the Common Coal Cadre @ 20% of his pay for the period, the petitioner has been officiating as Public Relation Manager.

The facts, which are not in dispute, are that the petitioner was appointed as a Draughtsman (Mechanical) in Bharat Coking Coal Limited, where he joined the said post on 27.03.1975. Applications were invited from all members of BCCL staffs for filling up the posts of Senior Public Relation Assistant (English), Sr. Public Relation Assistant (Hindi) and Protocol Programme vide notification dated 3rd/7th February, 1979 and notification dated 15/16 May, 1979. In pursuance of the notice, the petitioner applied for the post of Senior Public Relation Assistant (English) and on qualifying in the written test as well as being successful in interview, the petitioner was selected in Public Relation Cadre as Senior Public Relation Assistant vide office order dated 3.4.1981. For promotion from non executive to executive cadre and on qualifying the same, the petitioner was called for an interview vide letter dated 23/26.6.1987. Since Shri R.N. Dwivedi, Public Relation Manager, was transferred from BCCL to Coal India Limited vide office order dated 9.5.1990, Shri R.N. Dwivedi was advised to handover the charge of his office to the petitioner. In terms of the office order dated 2nd August, 1991, on the recommendations of the Departmental Promotion Committee, the petitioner was promoted to the post of Senior Public Relations Officer in E-3 grade in the scale of pay of Rs. 3700-140-4400-150-5900. E-3 post, to which the petitioner was promoted was subsequently upgraded to the post of Deputy Manager (P.R.) in E-4 grade vide note-sheet dated 5.12.1994. However, the management of Coal India Limited in Circular dated 20.01.1993 changed the norms of selection from non executive cadre to executive cadre by prescribing the requisite qualification of a post graduate diploma in journalism. The Departmental Promotion Committee did not consider the promotion of the petitioner to E-4 grade on the ground that the petitioner was not having the requisite qualification of post graduate diploma in journalism. The denial of promotion to the petitioner from E-3 to E-4 grade led him to file a writ application before the Hon''ble Calcutta High Court, which was registered as W.P.(S) No. 2012 of 1997 and the same was allowed vide judgment dated 19.09.2000 wherein it was held that the petitioner is entitled to be promoted to the post of Public Relations Manager in E-5 grade and the respondents were directed to pass appropriate order in respect of promotion of the petitioner. The Management of Coal India Limited preferred an appeal against the order passed in W.P.(S) No. 2012 of 1997 and vide order dated 17.07.2001, the appeal was allowed and the order passed by the learned Single Judge was set aside. The petitioner being aggrieved by the order passed in appeal preferred an application before the Hon''ble Supreme Court in Civil Appeal No. 2059 of 2002 wherein the appeal was dismissed on the ground that the appellant did not have any legal right to be promoted to the post of Public Relations Manager, which is in E-5 grade. The petitioner had prayed for charge allowance for the period he was officiating in the post of Public Relations Manager and vide letter dated 17.05.2004/5.6.2004, the demand of the petitioner was rejected.

Heard Mr. Amit Kumar Das, learned counsel for the petitioner and Mr. Anoop Kumar Mehta, learned counsel for the respondents.

The learned counsel for the petitioner has submitted that the petitioner was handed over the charge of Public Relations Manager on account of transfer of Shri R.N. Dwivedi, who was in the post of Public Relation Manager from M/s. BCCL to Coal India Limited. In the notesheet dated 30.05.1990, the petitioner had requested for delegation of certain powers for smooth running of Public Relation Department and that it was indicated by the Director (Personnel) that till further orders, the Public Relation Officer will exercise all the powers delegated to Public Relation Manager. The learned counsel for the petitioner submits that since admittedly the petitioner was officiating in the post of Public Relation Manager, he is entitled to the charge allowance and that while issuing the impugned letter dated 17.05.2004/5.6.2004, the concerned authority did not consider this aspect of the matter and had issued a superficial letter rejecting the claim of the petitioner. It has further been submitted by learned counsel for the petitioner that since the petitioner was discharging and/or officiating in the post of Public Relations Manager, which is in E-5 grade, the petitioner was entitled to be considered for promotion to E-5 grade. It has also been submitted by learned counsel for the petitioner that the Departmental Promotion Committee in its meeting held on 7.5.1999 for promotion from E-3 to E-4 grade had recommended the case of the petitioner and when the Departmental Promotion Committee was held, no vigilance case was pending, which was a subsequent development and in such circumstances, the respondents could not have taken recourse to pendency of a vigilance case in order to deprive the petitioner to grant him promotion from E-3 to E-4 grade. It has also been submitted by learned counsel for the petitioner that on account of arbitrary act on the part of the respondents, the juniors to the petitioner have been promoted, whereas the petitioner although qualified and having officiated in E-5 grade of Public Relations Manager since 9.5.1990 has a legitimate claim for promotion at least to E-4 grade.

Mr. Anoop Kumar Mehta, learned counsel for the respondents, while relying on the counter affidavit filed by the respondents, have submitted that the petitioner had earlier moved the Hon''ble Calcutta High Court against the order dated 22nd January, 1997 passed by the respondents wherein the representation of the petitioner for promotion to the post of Public Relations Manager in E-5 grade was rejected and the learned Single Judge in his order dated 19.09.2000 had allowed the writ application and had observed that the petitioner is fully entitled to be regularised and/or promoted to the post of Public Relations Manager in E-5 grade. However, the judgment of the learned Single Judge was set aside in appeal and the same was confirmed up to the Hon''ble Supreme Court. It has, thus, been submitted that the claim for promotion of the petitioner to E-5 grade on the ground of his officiating in the post of Public Relations Manager, which is in E-5 grade has already been rejected and in such circumstances, the present writ application is hit by the principles of res judicata. It has also been submitted that the case of the petitioner for promotion from E-3 to E-4 grade was considered and recommended by the Departmental Promotion Committee but since a vigilance case was pending, as such the order of the petitioner for promotion could not be released. It has also been submitted that as a matter of fact, since the petitioner was charged with certain acts of misconduct during his period of service, Central Bureau of Investigation had registered a case being case No. PE 7(A)/99(D) dated 30.11.1999 and the preliminary inquiry culminated in recommendation of a regular departmental proceeding for minor penalty against the petitioner. It has also been submitted that the petitioner was served with memorandum dated 4.6.2001 to which the petitioner had submitted his response and ultimately by an order dated 7.12.2001 considering the gravity of misconduct, the petitioner was imposed a penalty of Censure. The petitioner preferred a departmental appeal, which was also dismissed by the Chairman, Coal India Limited on 23.04.2003. He, therefore, submits that since the petitioner was imposed with a punishment of Censure, he could not be promoted from E-3 to E-4 grade. Continuing with his argument, the learned counsel for the respondents has submitted that the petitioner is also not entitled to the charge allowance since the petitioner was not discharging the post of Public Relations Manager, rather he was functioning as a Public Relation Officer and was incharge of the office assets. In such circumstances, as has been contended by the learned counsel for the respondents, the petitioner cannot be given the benefit of charge allowance. Infact the claim for charge allowance of the petitioner has also been rejected up to the Hon''ble Supreme Court and therefore this contention of the petitioner also does not merit any interference.

The petitioner while holding the post of E-2 grade on account of transfer of Public Relations Manager Shri R.N. Dwivedi, vide office order dated 9.5.1990, was handed over the charge of the office of Public Relation Manager. Although in the notesheet dated 30.05.1990, it was noted by the Director (Personnel) that till further orders, the Public Relations Officer will exercise all the powers delegated to the Public Relation Manager but if both the office order dated 9.5.1990 and the note sheet dated 30.05.1990 is considered in unison, the resultant fall out would be that the charge of the office of Public Relations Manager was handed over to the petitioner.

The notesheet dated 30.05.1990 indicates that after the office order dated 9.5.1990 was issued and since the petitioner was having constraints in absence of delegation of powers to run the Public Relations Department smoothly, a request was made that certain powers be delegated to the petitioner. The note sheet clearly indicates that the Director (Personnel) had noted therein that till further orders, the Public Relation Officer will exercise the powers delegated to the Public Relations Manager. Although, there is no further office order in continuation of the notesheet dated 30.05.1990 but the ultimate fall out of the office order dated 9.5.1990 and the notesheet dated 30.05.1990 does not indicate that the petitioner was not discharging the functions and duties of Public Relations Manager. Letter dated 17.05.04/05.06.04 has rejected the claim of the petitioner for charge allowance for the period he was officiating as a Public Relations Manager from 9.5.1990 to 12.02.2001 but the said letter has relied on the orders passed by the Hon''ble Calcutta High Court as well as the Hon''ble Supreme Court but has not considered the office order dated 9.5.1990 and the subsequent notesheet dated 30.05.1990. The writ application, which had been filed before the Hon''ble Calcutta High Court and which was allowed by the learned Single Judge was subsequently set aside in appeal on 17.07.2001 and the appellate order was affirmed by the Hon''ble Supreme Court in Civil Appeal No. 2059 of 2002. The dispute, which was raised by the petitioner in earlier round of litigation, was with respect to his claim that since he was discharging the duties and functions of Public Relations Manager, which is in E-5 grade, as such the petitioner also should have been considered for promotion to E-5 grade. Never was the issue of drawing charge allowance raised in the earlier writ application and no finding has been given disentitling the petitioner to charge allowance. The impugned letter dated 17.05.04/5.6.2004 has misconstrued and misinterpreted the order of the Hon''ble Division Bench of Calcutta High Court as well as the order of the Hon''ble Supreme Court while rejecting the claim of charge allowance. A cursory mention has been made about the provisions of the Common Coal Cadre but the same also does not disclose as to under which provision the petitioner has been debarred from claiming charge allowance. As has been noted above, neither the office order dated 9.5.1990, nor the notesheet dated 30.05.1990 has been considered by the authorities which is stark on the face of the impugned letter dated 17.05.2004/5.6.2004 and in absence of any reasonable grounds for rejecting the claim of charge allowance of the petitioner, the letter dated 17.05.2004/5.6.2004 cannot be allowed to hold good. In such circumstances, the impugned letter dated 17.05.2004/5.6.2004 is hereby quashed and set aside.

The petitioner in the writ application has also prayed that the respondents be directed to consider the case of the petitioner for promotion to the post of E-4 grade with effect from 1995. A Circular dated 20.01.1993 was issued by the Coal India Limited stipulating conditions for promotion of an employee from non executive cadre to execute cadre in Public Relation office. The said stipulations stipulated that a candidate must possess a post graduate degree/diploma in journalism/public relations and is also to pass the qualifying examination. The Departmental Promotion Committee held on 20.07.1995 did not recommend the promotion of the petitioner solely on the ground that the petitioner was not in possession of the requisite qualification. This non fulfillment of the eligibility criteria hindered the scope of the petitioner for promotion in subsequent meeting of the Departmental Promotion Committee. However, in the context of a decision, which had been taken for relaxation of qualification by the Management in meeting dated 5.5.1999 and 7.5.1999 for those candidates, who had completed 5 years of service in their existing grade and bagged 3 "Excellent" ratings in the Executive Evaluation Report shall be considered for promotion and accordingly, the case was put up before the Departmental Promotion Committee and his promotion from E-3 to E-4 grade was recommended on 20/21.01.2000 but since the petitioner had failed to obtain vigilance clearance, the recommendation was not acted upon. Subsequently, punishment of censure was imposed upon the petitioner, which negated recording of ''excellent'' recorded in the executive evaluation report for the previous three years and therefore since the petitioner failed to come within the scope and ambit of the relaxation, which had been made by the department, his promotion from E-3 to E-4 grade was not considered. Therefore, in such circumstances, the relaxation criteria in view of the punishment of "Censure" imposed upon the petitioner faded into oblivion and therefore no error has been committed in refusing the petitioner''s promotion from E-3 to E-4 grade.

In view of the discussions made above, the claim of the petitioner for promotion from E-3 to E-4 grade being devoid of any merit is hereby rejected.

However, so far as the charge allowance is concerned, the impugned letter dated 17.05.04/5.6.2004 is hereby quashed and set aside and the matter is remitted back to the respondent No. 3 to take a fresh decision in accordance with law by passing a reasoned order within a period of six weeks from the date of receipt/production of a copy of this order.

It goes without saying that if the claim of the petitioner with respect to charge allowance is found to be genuine, necessary benefits arising out of the same shall be made available to the petitioner within 8 weeks from the date of decision by the respondent No. 3.

This writ application is disposed of.