Bombay High Court
Rare Earths Workers Union vs Indian Rare Earths Limited And Anr on 10 September, 2024
2024:BHC-AS:36548
Neeta Sawant WP-7718-2007-(ADV.SAWANT &SALE)-FC.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7718 OF 2007
Rare Earth Workers Union, a
trade Union having office at
Bhupesh Gupta Bhavan, 85
Sayani Road, Prabhadevi,
Mumbai-400 025. } ....Petitioner
: Versus :
1. Indian Rare Earths Limited
Through the Executive Director
(HRM), having office at Plot No.1207,
Veer Savarkar Nagar, Prabhadevi
Mumbai-400 028.
2. The Presiding Officer, Central
Government Industrial Tribunal02
having office at Shram Raksha Bhavan,
Sion, Mumbai-400 022. } ....Respondents
__________
Mr. Jaiprakash Sawant, for the Petitioner.
Mr. Amit Sale, i/by. Consulta Juris, for Respondent No.1.
__________
CORAM : SANDEEP V. MARNE, J.
Reserved On : 22 August 2024.
Pronounced On : 10 September 2024.
JUDGMENT:
1) Petitioner-Union has filed this petition challenging the
Award dated 30 March 2007 passed by the Presiding Officer, Central
Government Industrial Tribunal-II, Mumbai in Reference CGIT
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No.2/6 of 2004. The Tribunal has answered the Reference relating to
grievance of Petitioner in relation to promotion to Officers category
in the negative. The Tribunal has held that though Petitioner
acquired eligibility criteria for such promotion, he retired from
service before the Departmental Promotion Committee could be
convened for effecting the promotion.
2) For the sake of convenience, Indian Rare Earths Limited
Workers Union is refereed in the judgment as 'Petitioner-Union'
and Shri. G.G. Ghade, the concerned, workmen whose cause is being
espoused by the Union, is referred to as the 'Petitioner'.
3) Indian Rare Earths Limited, Mumbai (IREL) is a
Central Public Sector Undertaking under the administrative control
of Department of Atomic Energy (DAE) engaged in the activity of
mining and mineral separation of atomic minerals from beach sand.
Since the year 1953, IREL was running a Thorium Plant on behalf
of DAE for manufacturing of Thorium Nitrate and its biproducts.
Petitioner was appointed in IREL on the post of Fitter (Category-VI)
on 2 January 1978 and was promoted to various posts such as
Fitter-I (Category-VII) on 2 January 1978, Senior Fitter (Category-
VIII) and Senior fitter (SG-Category-IX) w.e.f 1 July 1997. It
appears that a Memorandum of Settlement dated 9 October 1989
was executed between management of IREL and Petitioner-Union,
under which recruitment and promotion Rules for Workmen coming
under unionized categories covering employees of Thorium Division
and on Mumbai based offices were finalised. The settlement
provided, inter-alia, for filling up of posts in workmen category as
per Schedule-I. Under Schedule-I, Workmen in Category-IX were to
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be considered for promotion under various Officer category posts
carrying pay scale of Rs.900-1600/- on completion of five years of
service. Petitioner completed five years of service in Category-IX on
1 July 2002 and expected grant of promotion in officer category post
as per the Memorandum of Settlement. However, he was not
promoted. Petitioner-Union addressed representation dated 22
January 2003 to the Assistant Labour Commissioner (Central),
Mumbai demanding promotion to Petitioner. Petitioner retired on
attaining the age of superannuation on 20 February 2003, without
being promoted.
4) On failure of conciliation proceedings, the Appropriate
Government made a Reference to Central Government Industrial
Tribunal-II, Mumbai (CGIT) on 5 February 2004 as under:
Whether the Industrial dispute raised by Rare Earth Workers'
Union against the management of M/s. Indian Rare Earths Ltd.
Vide their letter dated 22/01/2004 (copy enclosed) over promotion
of Shri. G.G. Ghade from Category IX to Officers' Category,
justified? If so, to what relief the concerned workman is entitled?
5) Petitioner filed his Statement of Claim, which was
resisted by Respondent-IREL by filing Written Statement. Both the
parties led evidence in support of their respective claims. After
considering the pleadings, documentary evidence and oral evidence,
the CGIT has answered the Reference in the negative holding that
Departmental Promotion Committee (DPC) was conducted for
effecting promotions to officer category before Petitioner's retirement
and that mere completion of five years of service did not confer any
right on him to claim promotion in absence of conduct of DPC.
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Aggrieved by the Award dated 30 March 2007, Petitioner-Union has
filed this petition.
6) Mr. Sawant, the learned counsel appearing for the
Petitioner would submit that Petitioner is entitled to be granted
promotion in Officers category on completion of five years of
eligibility service as per the Memorandum of Settlement. That
conduct of DPC is not mandatory for effecting such promotions. That
Petitioner demonstrated before the Tribunal that Respondent
granted promotion to two similarly placed employees viz. P.V. Pawar
and S.N. Arolkar, without conducting any interviews and merely on
completion of services of five years. That in any case, the
administrative lethargy on the part of the Respondent cannot be a
reason for denial of lawful right of promotion to Petitioner. That
under the Memorandum of Settlement, it was agreed that timely
DPCs would be conducted in July of every year and that therefore it
was binding on the Respondent to conduct DPC in the year 2002 so
that Petitioner could have earned promotion before his retirement.
Lastly, Mr. Sawant would submit that grant of promotion to
Petitioner in Officer category w.e.f. 1 July 2002 would confer
promotion benefit of only seven months as the Petitioner retired
from service on 20 February 2003. In support of his contention, Mr.
Sawant would rely upon judgments of the Apex Court in Union of
India Versus. Sangram Keshari Nayak1 and P. Sivanandi
Versus. Rajeev Kumar & Ors.2
1 (2007) 6 SCC 704
2 AIR 2017 SC 714
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7) Petition is opposed by Mr. Amit Sale, the learned counsel
appearing for the Respondent-IREL. He would submit that
completion of five years of service in Category-IX is mere eligible
criteria for consideration of case for promotion. That mere
completion of eligibility service does not confer any right on an
employee to secure promotion. Grant of promotion is subject to
existence of vacancies as well as conduct of DPC. That in the present
case, no vacancies existed for grant of promotion to Petitioner in
Officers category in the year 2002. Taking me through the Affidavit
filed on behalf of IREL, Mr. Sawant would submit that in fact, the
Thorium Plant operated by IREL in BARC at Trombay has been
shut in the year 1998 and all the employees of IREL working in that
plant were given three options; (i) transfer to Odisha Unit, (ii)
special voluntary retirement scheme (VRS); or (iii) temporary
deployment in other units of BARC. That thus the entire operations
of IREL have come to an end in the year 1998 and therefore there is
no question of existence of any posts in the Officers Category for
grant of promotions. So far as the DPC held in the year 2003-04 is
concerned, he would submit that no employee reemployed in BARC
was promoted for want of vacancies. That therefore no junior of the
Petitioner has been promoted and therefore there is no cause for the
Petitioner against the Respondent-IREL. He would pray for
dismissal of the petition.
8) Rival contentions of the parties now fall for my
consideration.
9) The controversy involved in the present petition, which
challenges the Award dated 30 March 2007 passed by CGIT, is
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whether Petitioner had any demonstrable right for grant of
promotion to Officer category on completion of five years of eligibility
service on 20 February 2003 under the Memorandum of Settlement.
10) Under the Memorandum of Settlement entered into
between the Petitioner units and Management of IREL which came
into effect from 1 July 1988, various posts in workmen category were
classified as per the details given in Schedule-I. Under Schedule-I,
the workemn working in Category-IX in the pay-scale of Rs.625-
1600/- completing of five years of service were made eligible for
promotion in the higher category carrying pay scale of Rs.900-1600/-.
It appears that the said higher category is being referred by the
Petitioner as Officer category or (Grade-E/O). Clause-7 of the
Memorandum of Settlement provides for filling of vacancies by
promotion. Clause-7.1 provides that the employee of the company,
who fulfilled criteria laid down for promotion to the post under
Schedule-I, would become eligible for consideration for promotion
subject to the existing procedure on/or order in force as may be
issued from time to time. Clause-7.2 provided that promotion cases
would be considered during July every year and promotion would be
given w.ef. 1 July or 1 January every year. Clauses-7.1 and 7.2 of the
Memorandum of Settlement provide thus:
7.1 All employees of the Company who fulfill the criteria as laid down for
promotion to the posts in Schedule I appended to these regulations shall
be eligible for consideration for promotion, subject to the existing
procedure and/or order in force and/or may be issued from time to time
in regard to consideration of cases for promotion against whom
disciplinary action is contemplated/pending and/or those are are on loss
of pay.
7.2 Promotion cases will be considered during July every year and will
be given effect from 1st July or 1st January every year so that the
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promotions can be rationalised with effect from 1 st January and 1st July.
Persons whose increment dates fall during the period from October to
March will be considered in January and those falling during the period
from April to September will be considered in July.
11) Schedule-I of the Memorandum of Settlement provides
thus :
Sr.No. Category Designation Scale of pay Mode of Qualification & Experience Age for
No. Appointment direct
recruitment
Direct Promotion Direct Promotion
(1) (2) (3) (4) (5) (6) (7) (8) (9)
9 IX 1. Sr.Operator Rs.625-45- Nil Minimum 5 years
2. Boiler Attendant I 850-50-1600 service in Cate.IX for
(SG) promotion from
3. Sr.Analyst Rs.625-45-850-50-
4. Store Keeper 1600/- to Rs.900-
5. Assistant (SG) 1600/-
6.PA(SG)
Promotion against
vacancies will be
subject to qualifying
in interview for non-
technical posts and
interview and written
test for Technical
posts.
12) In my view, what Clause-7.1 of the Memorandum of
Settlement provides is the acquisition of eligibility by the employee
for being considered for promotion. The said clause further provides
that such employee acquiring eligible service for promotion would
merely become eligible for consideration for promotion subject to the
existing procedure. Thus, mere completion of eligibility service did
not confer any right on the employee to claim promotion on the date
on which five years of service are completed. This is not a case of
upgradation contemplating placement in higher scale on completion
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of specified years of service. It appears that Petitioner completed five
years of service in Category-IX on 1 July 2002 and thus became
eligible for being considered for promotion to the Officer category
within next 7 months. However, Petitioner retired on 20 February
2000.
13) No doubt Clause-7.2 of the Memorandum of Settlement
mandated consideration of promotion of cases during July of every
year and if such consideration was to be made in July 2002,
Petitioner would have earned promotion to officer's category since he
had acquired eligibility criteria on that date. It is the case of the
Respondent-IREL that the DPC for the year 2002-03 was not
conducted and it appears that the DPC was thereafter conducted in
the year 2003-04 by which time, Petitioner had apparently retired
from services. This is the reason why promotion has been denied to
the Petitioner.
14) In the light of the above factual position, the issue that
arises for consideration is whether Petitioner can seek grant of
promotion as a matter of right in absence of conduct of DPC. Clause-
7.1 of Memorandum of Settlement clearly provides that the eligible
candidate would be considered for promotion subject to existing
procedure. There is no dispute to the position that the eligible
candidates are required to be considered by DPC and that they are
also required to be subjected to interviews. Therefore, promotion
cannot be granted merely on completion of eligible service. To get
over this difficulty, Mr. Sawant has highlighted the case of two
employees, Shri. P.V. Pawar and Shri. S.N. Arolkar, who according to
Mr. Sawant, are promoted in Officers category without subjecting
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them to interviews. It appears that Shri. Pawar was promoted on 1
July 1999, whereas, Shri. Arolkar is promoted on 1 January 1998.
Both the cases were highlighted by the Petitioner-Union in para-6 of
the Statement of Claim. Para-6(d) of the Statement of Claim reads
thus :
(d) The Second Party submits that the action of the First Party is totally
discriminatory. The Second Party submits that the First Party had
promoted various other employees, from workman category IX to Officers
category without holding DPC. The Second Party submits that some of
such employees are Shri. S.V. Ghadigaonkar, S.N. Arolkar and P.V.
Pawar.
15) In the Written Statement, Respondent-IREL responded
to the above contentions in para-17 as under:
17. With reference to sub paragraphs (c) and (d), the contents thereof are
denied. As regards promotion of Shri. S.V. Ghadigaonkar, he had been
interviewed before his promotion. As regards the other two persons, Shri
P.V. Pawar was promoted in 1991 and Shri. Arolkar in 1998. These
employees were much senior to Mr. Ghadi and the Thorium Plant was
closed down in 1998. As these persons were redeployed in BARC, they
were supervised by BARC officials and as such there were no vacancies in
Supervisors category. Due to closure of Thorium Plant, the question of
vacancies in Thorium Plant also did not arise.
16) Thus, there is admission that Shri. P. V. Pawar and Shri.
Arolkar have been promoted without subjecting them to interviews.
In evidence, IREL's witness, Mr. P.M. Prashantkumar, Head of
HRM Department has given clear admission that 'It is true that no
interview was taken in case of Shri. Arolkar (witness volunteers, since
his case was of VRS).'
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17) Another aspect necessary for consideration of case of
eligible employee for promotion and for grant of such promotion to
him, is the existence of vacancy. Respondent-IREL has taken a
defence that no vacancies existed for consideration of case of the
Petitioner for promotion in the year 2002.
18) Respondent-IREL has now taken a stand that vacancies
did not exist for consideration of promotion of Petitioner. This stand
is taken during pendency of the Petition by filing Affidavit in
pursuance of Order passed by this Court on 7 November 2023, which
read thus:
1. Heard Mr. Sawant, learned Advocate for Petitioner.
2. The Petitioner - Union is espousing the cause of a workman who
was working with the Respondent - Organization. It is the
Petitioner's case that the workman was entitled for promotion in
category IX on his completion of minimum 5 years service as
Deputy Officer in terms of the settlement arrived at for such
eligibility / promotion with the Union. It is Petitioner's case that
the Departmental Promotion Committee (DPC) for considering
promotion of similarly placed workmen was constituted for the first
time only in the year and interviews were held in 2003 / 2004.
However, the worker whose cause the Petitioner is espousing
namely Shri G.G. Ghadi retired on superannuation on 28.02.2003
and therefore Respondent - Corporation contended that he would
not be entitled to promotion despite the fact that according to
Petitioner he had completed 5 years being the minimum eligibility
criteria required for promotion in the month of July 2002.
3. Another reason given by Respondent - Corporation is that at
that time though Shri. S.S. Ghadi may have been eligible for
promotion; there was no vacancy of supervisory post to which he
could have been promoted had he continued in employment.
4. However, there is no denying of the fact that Mr. Ghadi had
completed the minimum eligibility residency period of service of 5
years and upon completion of the same he ought to have been
considered for promotion in view of the fact that junior workmen to
Mr. Ghadi were granted promotion.
5. It is an admitted position that Mr. Ghadi had completed his
minimum qualifying residency service of 5 years in the month of
July 2002 and he subsequently retired in February 2003 and in
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that view of the matter, he would have be entitled for promotion
and due to that resultantly other retirement benefits as a Dy.
Officer.
6. It is urged by learned Advocate appearing for the Petitioner that
since Mr. Ghadi was an active member and President of the Union,
his case/claim for promotion on his completion of the qualifying
residency service was deliberately ignored by the Corporation and
he was allowed to retire without being promoted and thus lost out
on higher retirement benefits.
7. It is further seen that Mr. Ghadi was employed with the
Respondent with effect from 02.01.1978 in the post of Fitter
(Category VI) and thereafter further promoted on regular basis
until his superannuation and had an unblemished service record.
The DPC did not conduct any interviews and / or written test for
considering promotion of workers who had completed the
minimum qualifying residency service of 5 years in grade (IX) in
2002. This reason is challenged by the Union in the present Writ
Petition.
8.Today, when the matter is called out, none appears for the
Respondent - Corporation. I have heard Mr. Sawant. In order to
give one opportunity to Respondent - Corporation, Writ Petition is
adjourned to a further date.
9. However, it is clarified that if on the next adjourned date
Respondent - Corporation is not represented, this Court shall be
constrained to pass final order in this Writ Petition which is of the
year 2007.
10. Stand over to 5th December, 2023.
19) After passing of order dated 7 November 2023, Respondent
IREL has filed Affidavit, in which it is stated as under:
5.The respondent company is a Central Public Sector Undertaking
under the administrative control of the Department of Atomic
Energy (DAE) engaged in the activity of mining & mineral
separation of Atomic Minerals from beach sand and having Units
at Chavara and Udyogmandal in Kerala, Manavalakurichi in
Tamil Nadu, and Orissa Sands Complex in Odisha.
6. From the year 1953, the respondent No. 1 was running a
Thorium plant on behalf of DAE in the premises of the BARC at
Trombay. The said Thorium plant was engaged in the
manufacturing of Thorium Nitrate and its by-products. As it had
outlived its useful life, AERB did not authorize operation of the
said plant beyond December 1998. Accordingly, operations of the
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said plant were stopped with effect from 01.04.1998. During the
time when factory was in operation, all the employees working in
the said Thorium plant were employees of IREL. As the plant was
being shut down, all employees working in the plant were given the
option to go to Orissa where a plant for manufacture of Thorium
Nitrate had already been established. Some others were adjusted
in other units of the Company. Simultaneously, A Special VRS was
also introduced for the employees. The remaining employees who
did not fall into any of the above, numbering 71, were temporarily
redeployed in various divisions of Bhabha Atomic Research Centre
(BARC) constituent Unit of DAE, in pursuance of a settlement
entered into between IREL and the union representing the workers
and in due course, the temporary redeployment was made
permanent. The petitioner herein was one such employee who was
redeployed in BARC. From the above, it would be clear that on the
one hand the Respondent was trying its best to see that the
existing employees in the Thorium Factory should not have to face
any rigour of retrenchment etc., the petitioner, on the other hand,
instead of appreciating the said scenario made an out dated claim
post-retirement for promotion especially it was clear there was no
scope for any vacancies for such promotion in view of the
circumstances explained.
7. Now with reference to the contentions made by the petitioner
that on completion of 5 years' service in Category IX, promotion to
Officer from grade IX was automatic, it is clarified that the terms
and conditions governing the promotion of workmen working in the
said Thorium Plant were in accordance with the provisions of
Settlement dated 09.10.1989 entered into between the Union and
the IREL Management. As per schedule 1 to the said Settlement,
white promotions from category I to category IX were time bound,
promotions from category IX to the post of deputy officer were
against vacancies subject to qualifying in the interview for non-
technical posts and subject to qualifying in interview and written
test for technical posts. Extract of Schedule 1 to the said
settlement containing the said stipulation is enclosed Annexure-1.
It is therefore submitted that the contention of the petitioner that
promotion from grade IX of workmen to Deputy officer grade is
automatic is false and misleading
8. Notwithstanding the above, the petitioner has forwarded an
alternate plea that the DPC for carrying out the interview of Shri
Ghadi was not constituted in time and as a result of the same, Shri
Ghadi was denied promotion. The contention that there was delay
in constitution of DPC runs contra to the contention of automatic
promotion. In any case, any grievance of delay in constituting DPC
should have been taken up for redressal at the relevant point of
time, which was not done so as rightly pointed out by CGIT.
9. In any case, given the circumstances already explained, there
was delay in constitution of DPCs and DPC for candidates fulfilling
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eligibility norms in December 2001 was constituted and interviews
were conducted only in the year 2003/2004. Similarly, for
candidates fulfilling norms in December 2002, DPC was
constituted and interviews were held only in 2005 Assuming that
even if the DPC was constituted in time, there was no way an
employee similarly placed like the petitioner could have been
promoted due to the obvious paucity of vacancies. It is reiterated
and clarified that although people redeployed in BARC were called
for interview, no promotions were given to them for want of
vacancies. The allegation made that his juniors who were similarly
placed were granted promotion after being interviewed etc is not
borne out by the records.
20) It is thus sought to be contended by Respondent-IREL
that since Thorium plant, in which Petitioner was working, was shut
on 1 April 1998, no posts in Officers category existed for effecting
promotions. However, this defence of Respondent-IREL adopted in
the latest Affidavit appears to be contradictory to the stand taken by
it in its Written Statement before the Tribunal.
21) In para-5 of its Written Statement, IREL had contended
as under:
"5. In such a scenario the DPC for the employees who have completed 5
years of service upto 31-12-2001 was constituted only in the year 2003
and interviews were held in 2003/2004. The said employee G.G. Ghadi
had not completed 5 years service on 31 December 2001 when the
candidates for promotion had to go before the Departmental Promotion
Committee in 2003/2004. Hence he was not eligible to appear for
interview held in the year 2003/2004 before the said Departmental
Promotion Committee. He became eligible to appear before the next
Departmental Promotion Committee after he had fulfilled the norms
required by 31st December 2002. The Departmental Promotion
Committee is yet to be constituted for the subsequent year and
meanwhile Shri. Ghadi had retired on 28 th February 2003. Apart from
the above there was no vacancies in the supervisory posts to which he
could have been promoted had he continued in employment.
22) Thus, DPC was apparently conducted in respect of the
employees who had completed five years of service upto 31 December
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2001. Therefore, mere closure of operation of Thorium Plant from 1
April 1998 was not the reason for non-effecting of promotions since
the DPC subsequently in the year 2003-04 did consider employees
who had completed five years of service upto 31 December 2001.
Thus, this appears to be a clear case of delay in constituting DPC as
is apparent from the contents of para-5 of the Written Statement.
IREL has contended in the Written Statement that DPC in the year
2003-04 was conducted in respect of the employees who completed
five years of service upto 31 December 2001 and since the Petitioner
was yet to complete five years of service, his case was not considered
in the said DPC. It further stated the case of the Petitioner would
have been considered in the subsequent DPC, which has been
conducted in respect of employees who fulfilled the norms upto 31
December 2002. Thus, this clearly appears to be the case of
administrative lethargy on the party of the Respondent-IREL in
conduct of DPC for eligible employees as on 31 December 2002 as is
apparent from contents of Written Statement dated 9 July 2004.
Now in the Affidavit filed on 21 August 2024, it is stated that in
respect of candidates fulfilling norms in December 2002, DPC was
convened and interviews were held in the year 2005. This leaves no
matter of doubt that there has been delay in conduct of DPC on the
part of the Respondent-IREL.
23) The further defence now sought to be taken for the first
time before this Court by way of Affidavit dated 21 August 2024 is
that even if DPC for Petitioner was to be convened in time, he would
not have secured promotion due to obvious paucity of vacancies. It is
further sought to be contended that though employees deployed in
BARC were called for interviews, no promotions were given to them
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for want of vacancies. This defence was not raised before CGIT. In
the Written Statement filed before the CGIT, it is not contended that
the DPC which was held in 2003-04 for eligible employees upto 31
December 2001, no employee was recommended for promotion. It is
also not the case set up by Respondent-IREL that no employee in
Thorium Plant was promoted after 1 April 1998. Therefore, new
defence that is now sought to be introduced by way of Affidavit dated
21 August 2024 is not just after thought but also unbelievable.
24) Thus, from the pleadings and evidence on record, it is
apparent that Respondent-IREL committed two aberrations in the
case of Shri. S.P. Pawar and Mr. S.N. Arolkar by granting them
promotions in officer's category without holding any interviews.
Promotion granted to Shri. Arolkar was sought to be defended before
CGIT by giving suggestion to Petitioner in his cross-examination
that such promotion was granted to him only because he had
submitted application for voluntary retirement. I fail to understand
how submission of application for VRS made Shri. Arolkar made
him entitled for promotion without conduct of interview. If
impending retirement of an employee is the criteria for grant of
promotion without interview, Petitioner also fulfilled that criterion
as he was retiring within 7 months from the date of acquisition of
eligibility criteria by him. I am therefore unable to accept the
justification sought to be given for promotion of Shri. Arolkar
without interviews in the light of his impending voluntary
retirement. Promotion granted to Shri. Arolkar in the year 1998 also
coincides with shutting of Thorium Plant on 1 April 1998. Therefore,
the position of absence of vacancies for promotion would ideally
apply to Shri. Arolkar also.
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25) So far as the administrative lethargy on the part of
Respondent-IREL in not timely convening the DPC is concerned, the
same appears to be against the provisions of Clause-7.2 of the
Memorandum of Settlement, which mandated consideration of cases
of eligible employees for promotion in July every year. Mr. Sawant
has relied upon judgment of the Apex Court in the case of P.
Sivanandi (supra) in which it is held as under :
19. That apart, the fact that the ACR of Sivanandi was written and
reviewed by his superior authorities after a considerable delay
obviously cannot put him to any disadvantage. The writing and
review of his ACR was beyond his control and we do not see any
rational basis on which Sivanandi could be disadvantaged merely
because his superior officers were lax in discharge of their
responsibilities.
26) Mr. Sawant has relied upon judgment in Union of India
Versus. Sangram Kesari Nayak (supra) in which it is held in
para-11 as under :
11. Promotion is not a fundamental right. Right to be considered for
promotion, however, is a fundamental right. Such a right brings
within its purview an effective, purposeful and meaningful
consideration. Suitability or otherwise of the candidate concerned,
however, must be left at the hands of the DPC, but the same has to be
determined in terms of the rules applicable therefor. Indisputably,
the DPC recommended the case of the respondent for promotion. On
the day on which, it is accepted at the Bar, the DPC held its meeting,
no vigilance enquiry was pending. No decision was also taken by the
employer that a departmental proceeding should be initiated against
him.
27) This right of being considered for promotion is a right
vested in the Petitioner, which appears to have been violated in the
present case. In the light of peculiar facts of the case, where there is
an administrative delay on the part of Respondent-IREL in not
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Neeta Sawant WP-7718-2007-(ADV.SAWANT &SALE)-FC.docx
timely constituting DPC, coupled with grant of promotion to some of
the workmen without subjecting them to interviews, I am of the
view that Petitioner deserves to be granted the relief of grant of
promotion w.e.f. from the date of acquisition of eligibility criteria by
him. It is however clarified that this relief is being granted to
Petitioner in the peculiar facts and circumstances of the present
case.
28) Consequently, the petition succeeds, and I proceed to
pass the following order:
(I) The Award dated 30 March 2007 passed by the CGIT-II in
Reference CGIT No.2/6 of 2004 is set aside.
(II) Respondent-IREL is directed to treat Petitioner as having
been promoted to Officer's category w.e.f. 1 July 2002 alongwith
all consequential benefits.
(III) The arrears of pay and pension and pensionary benefits
arising out of promotion to Officers category w.e.f 1 July 2002
shall be paid to the Petitioner within a period of three months.
29) With the above directions, the Writ Petition is allowed. Rule
is made absolute. There shall be no order as to costs.
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT [SANDEEP V. MARNE, J.]
SAWANT Date:
2024.09.11
17:00:53
+0530
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