Sheo Sharan Singh vs Bharat Coking Coal Ltd. And Ors

Heard through V.C.

The instant writ application has been preferred by the petitioner for the following reliefs;

(A) For quashing of the order bearing Ref. No. 671 dated 29/31.08.11 passed by respondent No.2 whereby and whereunder the claim of the petitioner for regularization in clerical cadre has been rejected on non est grounds and the said order is illegal, unconstitutional, arbitrary, malafide and discriminatory. The impugned order is bad as being non speaking, unreasoned and has been passed without considering the claim of the petitioner.

(B) For a direction upon the respondents to regularize the petitioner in clerical grade III with all consequential benefits, with effect from the date the other similarly situated employee have been regularized, i.e. order dated 16.07.2009. (C) For any other reliefs(s) to which the petitioner is legally entitled to in law and equity.

Learned counsel for the petitioner submits that he has been working as Mazdoor category-I. However, from time to time he was given work of a clerk and he had duly discharged the duty of a clerk efficiently. He further submits that similarly situated persons who were given the work of clerk; were regularized in Clerical Cadre-III, but the respondents have not given the same benefit to this petitioner. The petitioner had earlier filed a writ application before this Court being W.P.(S) No. 5711 of 2010 which was disposed of vide order dated 16.05.2011 by giving liberty to the petitioner to file a fresh representation regarding his claim before the General Manager, BCCL, Block-II, Dhanbad and pursuant thereto the petitioner filed fresh representation and the same was rejected and the impugned order (Annexure-14) has been passed.

He further contended that from bare perusal of the impugned order it would transpires that the petitioner is claiming date of birth to be calculated from 04.04.1974 and no other reasons has been assigned by the respondent. However, the said finding in the impugned order is totally perverse, as the petitioner had already filed an affidavit that he will not raise any dispute regarding date of birth. He referred to Annexure-11/A, which is the affidavit duly sworn by him, wherein he has categorically stated that he will not raise his dispute regarding date of birth. As a matter of fact, the respondent-Company is intentionally creating a dispute with regard to date of birth and ignoring the main contention of the petitioner that similarly situated Mazdoor were promoted to the post of clerk on the ground that they, like the petitioner, discharged the duty of clerk efficiently.

Learned counsel for the respondents opposes the prayer made in the instant writ application. He further submits that the promotion is not a right and disputed question of fact cannot be raised before the writ jurisdiction. He further submits that the matriculation certificate which was submitted by the petitioner of Praveshika Hindi Vidyapith, Deoghar is not equivalent to matriculation certificate as such, his case was not considered. Even the State of Jharkhand is not considering the certificate of the said institution; as such, there is no illegality in the impugned order.

Having heard learned counsel for the parties and after going through the impugned order it appears that the claim of the petitioner has been rejected on the ground that when the petitioner was having the academic certificate at the time of appointment, the reason for concealing the fact creates doubt in the mind of management. It further appears that there is some confusion in the mind of the management regarding the date of birth of the petitioner. However, from Annexure-11/A which is the affidavits sworn by the petitioner; wherein he has categorically stated that he will not raise any dispute, whatsoever, with regard to date of birth, as such, the finding regarding date of birth has no meaning, inasmuch as, the impugned order has been passed subsequent to that affidavit submitted by the petitioner as per the direction of the colliery management. So far as the main ground of rejection that submitting the certificate after appointment creates doubt in the mind of the colliery management is not of much substance. No reason has been assigned in the impugned order that why similarly situated Mazdoor were promoted to the post of clerk, when the case of the petitioner, as claimed by him, was on similar footing.

So far as the argument of learned counsel for the respondent that Praveshika certificate of Hindi Vidyapith Deoghar is not acceptable and even the State of Jharkhand does not accept the certificate is concerned; this argument of the learned counsel for the management cannot be taken into consideration, inasmuch as, no such ground finds place in the impugned order. It goes without saying that this is not a case of disputed question of fact as submitted by learned counsel for the respondents.

In view of the aforesaid findings, the impugned order dated 29/31.08.11 (Annexure-14), is quashed and set aside. The matter is remitted back to the respondent No.2- The General Manager, BCCL, Block II Area, Dumra More, Dhanbad, to pass a fresh, reasoned and speaking order in the light of the fact that the other similarly situated persons have received the benefit of promotion, as claimed by the petitioner.

It is made clear that the entire exercise shall be completed within a period of four months from the date of receipt /production of copy of this order.

With the aforesaid observations and directions the instant writ application is disposed of.