Anil Kumar Chaudhary vs The Coal India Limited & Ors
2022 Latest Caselaw 5242 Cal

    1                    IN THE HIGH COURT AT CALCUTTA
10.08.2022

CONSTITUTIONAL WRIT JURISDICTION sb Ct 23 APPELLATE SIDE WPA 4182 of 2022

Anil Kumar Chaudhary Vs.

The Coal India Limited & Ors.

Mr. Partha Ghosh, Mr. Amal Kumar Dutta, Ms. Ria Paul, Ms. Simran Sureka, Mr. Debasish Das, .... For the petitioner.

Mr. Shiv Shankar Banerjee, Ms. Sauchita Barman Roy ... For Coal India Limited.

The petitioner joined Eastern Coalfields Limited (in

short, ECL) as Pharmacist in a non-executive post in

terms of an office order dated 17th October, 2015. As per

ECL the date of joining of the petitioner is 27th October,

2015. On 16th October, 2015, Coal India Limited (in short,

CIL) published an advertisement which is described as

Career-cum-Departmental Selection from non-executive to

executive cadre. The petitioner applied for such Career-

cum-Departmental Selection process for

Welfare/Personnel. As per the advertisement dated 16th

October, 2015, there were total 111 tentative vacancies,

including reserved vacancy for Scheduled Castes (in short

"SC") and Scheduled Tribes (in short "ST") category in

Welfare/Personnel cadre. The promotion as per the

advertisement was initially intended to be in E1-Grade but

later on in view of the judgment of this Court, as approved

by the Hon'ble Supreme Court, the appointment to the

executive cadre was considered in E2-Grade. The

petitioner was called for the examination held in the year

2016. However, the said examination was cancelled, as

will appear from the order dated 21st January, 2020 and

18th December, 2020 passed by the High Court of

Judicature at Bombay, Nagpur Bench, Nagpur, in Writ

Petition No. 4315 of 2017 and Civil Application (W)

No.1408 of 2020 filed in the said writ petition. These two

orders are respectively at pages 25 and 24 of the report

filed by CIL. In the re-initiated selection process

conducted in 2021 the petitioner qualified in the written

examination and thereafter in the interview and his name

was admittedly included in the list of 345 candidates

whose names were placed before the Departmental

Promotion Committee (in short, DPC) in order of merit on

the basis of the marks secured in the selection process. It

is also an admitted position, as will appear from

paragraph 5 of the report in the form of an affidavit filed

by CIL that the petitioner's result was withheld as

according to the DPC the cut-off date is 30th September,

2015 as per the advertisement, while the petitioner joined

ECL on 27th October, 2015 and as such he is not entitled

to be considered in the said selection process. A

Committee has been constituted to see about petitioner's

entitlement to be considered in the said selection process.

The petitioner, therefor, according to CIL, could not be

considered for the promotion.

The cut-off date mentioned in the advertisement

dated 16th October, 2015 reads as follows:-

"The cut-off date for acquiring requisite qualification and experience will be 30th September, 2015".

The petitioner says that the petitioner acquired the

requisite qualification necessary for Welfare/Personnel in

E2-Grade of CIL prior to 16th October, 2015. There is no

experience required as per the advertisement for

Welfare/Personnel in any non-executive post of ECL. In

this regard, the petitioner relies on qualification for

Welfare/Personnel under serial no.12 at page 44 of the

writ petition and says that he joined prior to the last date

of application which is 26th December, 2015 and as such

is entitled to participate in the selection process. Being

successful in the examination the petitioner says that he

ought to have been given appointment in E2 Grade.

The petitioner further says that he had not

suppressed anything. The application form along with all

particulars was scrutinized by the Screening Committee

constituted in terms of the advertisement. After screening

the petitioner was allowed to sit in the examination and

such on the ground of "cut off" date the petitioner cannot

be eliminated from the selection process that too after

making to the merit list. CIL says that the selection

process was restricted amongst the employees of CIL and

its subsidiaries for their career advancement. Unless one

has worked in ECL on 30th September, 2015, being the

cut-off date, he/she is not eligible to be considered. The

petitioner admittedly joined after the cut-off date and as

such was not an employee of ECL on that date hence he

does not come within the zone of consideration for being

considered for the promotion. CIL also says that issuance

of Interview Call Letter does not disentitle CIL from

rejecting the petitioner's candidature even at a subsequent

stage in view of the provisions of clause (1) and (7) of the

Interview Call Letter.

Clause (i) under the heading "scrutiny of bio-data

particulars" a Screening Committee was to be constituted

by the Director (Personnel) of the respective subsidiary

company/GM (MP&IR) CIL in case of CIL/RSO/NEC to

scrutinize the bio-data particulars strictly as per the

relevant provisions/cadre scheme. The members of such

Committee shall not be below the rank of E5 Grade and

the In-Charge should be not below the rank of E7 Grade.

Clause (v) of the same speaks of a Committee to be

constituted by CIL consisting of senior level executives,

dealing with the related issues from all subsidiary

companies, duly nominated by the Director (P) of the

concerned subsidiary and one representative from IR

Division of CIL duly nominated by GM (MP&IR) to finally

scrutinize the bio-data received from the subsidiary

companies/CIL and submit the final list of eligible and

non-eligible candidates of all the thirteen disciplines. The

petitioner's bio-data, therefor, has been scrutinized in this

format once when he was permitted to participate in the

selection process held in 2016, which was subsequently

cancelled and again in the selection process that took

place in 2021. After having been permitted to participate

in the examination by the Screening Committee, it is too

late in the day for CIL or ECL to say that the petitioner

should have been placed in the list of non-eligible

candidates as stated in paragraphs 2k, l and n of the

affidavit filed by CIL. The argument of CIL that Clause (7)

contained in the Interview Call Letter issued to the

petitioner permits them to automatically cancel the

candidature if after scrutiny at any later stage it is found

that the candidate is otherwise ineligible despite of having

secured a position in the merit list cannot also be

accepted in view of the provision of Clause (i),(iv) and (v)

contained under the heading 'Scrutiny of Bio-data

Particulars' in the advertisement notice. This cancellation

according to me should involve an act of deliberate

suppression to secure benefit, perpetration of fraud,

relying on forged, fabricated documents and of like nature.

This is not in the instant case. In the instant case, the

joining date of the petitioner, the cut-off date as per the

advertisement and all other relevant data were available to

the Screening Committee in terms of Clause (i) of

"Scrutiny of Bio-data Particulars" as also available before

the Committee constituted under Clause (v) thereof. That

apart, it was the responsibility of the concerned

subsidiary, i.e. in case of petitioner, ECL, to ensure

correctness of the data and genuinity of documents. It

cannot be said that an anomalous situation as to the cut-

off date in case of the petitioner arose in terms of Clause

(7) of the Interview Call Letter issued to the petitioner at a

subsequent stage after having been permitted to

participate in selection process by the two committees

specifically constituted to screen the candidate and decide

on these issues. The petitioner could not have suppressed

anything regarding his date of joining, educational

qualification and other requisites. The Screening

Committee as also the Committee under Clause (v) (supra)

had considered the petitioner's application form with all

details. There may at the highest be a difference in opinion

regarding the cut-off date between the Committees

constituted as per advertisement on one hand and the

DPC on the other but that cannot be construed as an

event of being otherwise ineligible on scrutiny at a later

stage after seven years. The DPC on considering the cut-

off date may have formed a different opinion contrary to

that of the Screening Committee and the other Committee

constituted as per the advertisement but such opinion of

DPC cannot be a conclusive one to set aside the view of

the two Committees allowing the petitioner to participate

and reject the petitioner's candidature. In fact, the

candidature of the petitioner as per the affidavit has not

been cancelled but has been kept withheld. Assuming

without admitting that the interpretation as to the cut-off

date made by DPC and sought to be propounded by CIL

then also it is at the highest a plausible interpretation

when the cut-off date is not elaborated in clear terms in

the advertisement and therefor, brush aside the other

plausible view taken by the two Committees to allow the

petitioner to participate in the promotional process. It is

therefor too late in the day particularly in view of the fact

that seven years have elapsed in between to reject the

petitioner's candidature being ineligible due to the cut-off

date. It may so happen the scope of the petitioner getting

the promotion may reduce to a great extent if he is

disqualified for the cut-off date that too after being in the

merit list. There may be also candidates who have reached

the age of superannuation at the end of the selection

process in 2021 due to delay which strikes as the root of a

career advancement scheme of which CIL advocate.

Considering all these aspects, I am inclined to give the

petitioner the benefit of the interpretation permitting him

to participate in the promotional process.

There were 111 tentative vacancies under

Welfare/Personnel which includes SC and ST categories.

The petitioner had applied and participated in the

selection process under the SC category. On his result

being withheld there appears to be two unfilled vacancies

as per the order dated 21st February, 2022 published by

CIL. It is, however, not clear whether any of the two

unfilled vacancies is under SC category. In the event after

being successful in the examination under the selection

process the petitioner cannot be deprived of the promotion

only on the ground of the cut-off date being 30th

September, 2015 while the petitioner joined ECL on 27th

October, 2015 when no experience in non-executive post

of ECL is stipulated in the advertisement.

The petitioner's case should, therefor, be

reconsidered by the DPC without going into the

disqualification on the basis of the cut-off date and permit

the petitioner to E2 Executive Grade in any of the

subsidiaries or CIL against the two unfilled vacancies if he

conforms to all other requisites since he is already in the

merit list and candidates securing less marks than the

petitioner may have been promoted under the order dated

21st February, 2022. These benefits available to the

petitioner if he is promoted will be prospective.

The entire exercise should be completed within one

month from date and the result to be communicated

within 7 days from the meeting of DPC.

The two unfilled vacancies under Welfare/Personnel

shall not be filled up till after one month from the DPC

finally declaring the result in respect of the petitioner in

terms of the instant order.

All parties to act on the basis of a server copy of this

order duly downloaded from the official website of this

Court without insisting upon production of a certified copy

thereof.

Nothing further remains to be adjudicated in this

writ petition. The same is disposed of accordingly without

any order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of

necessary formalities.

(Arindam Mukherjee, J.)