Jharkhand High Court

Somarin Bai vs M/S Bharat Coking Coal Ltd. on 5 April, 2021

                         1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
               L.P.A. No. 759 of 2019
                        with
                 I.A. No. 11500 of 2019
                        with
                I.A. No. 724 of 2020
                        with
                I.A. No. 2094 of 2020
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Somarin Bai, aged about 59 years, w/o Shri Firat Ram, R/o Qr. No. F/32, PO & PS Dugda, District Bokaro, Jharkhand. ..... Appellant

Versus

1.M/s Bharat Coking Coal Ltd., Through its Chairman cum Managing Director, Koyla Bhawan, PO Koyla Nagar, P.S. Saraidhela, District Dhanbad, Jharkhand.

.... ...Respondent No. 1/Respondent

2.The Chairman cum Managing Director, Bharat Coking Coal Ltd., Koyla Bhawan, PO Koyla Nagar, P.S. Saraidhela, District Dhanbad, Jharkhand.

.... ...Respondent No. 2/Respondent

3.The Director (Personnel), M/s Bharat Coking Coal Ltd., Koyla Bhawan, PO Koyla Nagar, P.S. Saraidhela, District Dhanbad, Jharkhand .... ...Respondent No. 3/Respondent

4.The Chief Manager (P), MP & R, Bharat Coking Coal Ltd., Koyla Bhawan, PO Koyla Nagar, P.S. Saraidhela, District Dhanbad, Jharkhand .... ...Respondent No. 4/Respondent

5.The General Manager, Washery Division, Bharat Coking Coal Ltd., Koyla Bhawan, PO Koyla Nagar, P.S. Saraidhela, District Dhanbad, Jharkhand .... ...Respondent No. 5/Respondent

6.The Chief Manager (Personnal), Dugda Coal Washery, Bharat Coking Coal Ltd., Dugda, PO & PS Dugda, District Bokaro, Jharkhand .... ...Respondent No. 6/Respondent

7.The Project Officer, Dugda Coal Washery, Bharat Coking Coal Ltd., Dugda, PO & PS Dugda, District Bokaro, Jharkhand .... ...Respondent No. 7/Respondent

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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellants : Mr. Vimal Kirti Singh, Advocate Ms. Stuti Sinha, Advocate For the Respondents : Mr. Arpan Mishra, Advocate

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Oral Judgment Order No. 04 : Dated 5th April, 2021:

Matter has been heard through video conferencing

and there is no complaint whatsoever regarding audio

and/or visual quality.

I.A. No. 724 of 2020

2. Learned counsel for the appellant seeks leave to

withdraw this Interlocutory Application with liberty to take a

legal recourse which would be available to the appellant in

law.

3. Accordingly, this Interlocutory Application stands

dismissed as withdrawn with the aforesaid liberty.

I.A. No. 11500 of 2019

4. This Interlocutory Application has been filed for

condoning the delay of 241 days, which has occurred in

preferring this appeal.

5. Heard learned counsel appearing for the parties.

6. Having regard to the averments made in this

application, we are of the view that the appellant was

prevented by sufficient cause from preferring the appeal

within the period of limitation.

7. Accordingly, I.A. No. 11500 of 2019 is allowed and

delay of 241 days in preferring the appeal is condoned.

L.P.A. No. 759 of 2019

8. The instant intra-court appeal, under clause 10 of

the Letters Patent of Patna High Court, has been directed

against the order/judgment dated 25.02.2019 passed in

W.P.(S) No. 2772 of 2018 by the learned Single Judge of

this Court, whereby and whereunder the claim sought for

by the writ petitioner for appointment of her son in terms

of a scheme floated by Coal India Limited, namely,

Special Female Voluntary Retirement Scheme, 2014

(Revised), was refused to be granted by dismissing the

writ petition on the ground that aforesaid scheme has

been declared to be unconstitutional and violative of

Articles 14 and 16 of the Constitution of India by the Co-

ordinate Division Bench of this Court in W.P. (S) Nos.

1622 of 2017, 1537 of 2016, 2590 of 2016, 4079 of 2016,

4407 of 2016 and 7051 of 2016.

9. The brief facts of the case, which are required to be

enumerated for proper adjudication of the lis, are as

under:

The writ petitioner, namely, Somarin Bai was

working as Pump Operator, Category-III at Dugda Coal

Washery, Washery Division under M/s Bharat Coking

Coal Limited (hereinafter referred to as 'M/s BCCL').

While working as such, M/s Coal India Limited

floated a scheme, namely, Coal India Special Female

Voluntary Retirement Scheme, 2014 (Revised) (in short

'SFVRS, 2014(R)') vide letter dated 26.11.2014 issued

under the Signature of General Manager (MP & IR), which

was applicable to all its subsidiaries including M/s BCCL.

The aforesaid scheme was made effective from

26.11.2014 to 25.05.2015 with an object to optimize

manpower utilization of the company by reducing female

manpower by appointment of their son without increasing

the overall manpower and eligibility of the said scheme

was that the female worker must have completed 10

years of service but must not have crossed 55 years of

age on the date of receipt of her application and further

nominated son of the SFVRS optee must be within the

age group of 18 to 35 years on the date of receipt of such

application and his minimum educational qualification

would be literate and the competent authority under

SFVRS 2014(R) will be Director (Personnel).

As per the aforesaid scheme, the writ petitioner

submitted application on 05.12.2014 before the Project

Officer, Dugda Washery sponsoring her son, namely,

Chhattan Kumar for his employment. But the writ

petitioner was not informed about the decision taken by

the concerned respondents under the said scheme.

Aggrieved thereof, the writ petitioner approached

this Court by filing W.P. (S) No. 2772 of 2018. The

learned Single Judge, taking into consideration the order

passed by the Co-ordinate Division Bench of this Court in

W.P. (S) Nos. 1622 of 2017, 1537 of 2016, 2590 of 2016,

4079 of 2016, 4407 of 2016 and 7051 of 2016 dismissed

the writ petition, which is the subject matter of present

intra-court appeal.

The writ petitioner, after dismissal of the writ

petition, did not prefer any intra-court appeal rather

approached before the Hon'ble Apex Court by filing

Special Leave Petition (Civil) Diary No (s). 24002/2019

(XVII), which was disposed of vide order dated 09.08.2019

giving liberty to the petitioner to approach the Division

Bench for challenging the impugned order dated

25.02.2019 passed in W.P. (S) No. 2772 of 2018. With the

liberty aforesaid, the present intra-court appeal has been

filed.

10. Mr. Vimal Kirti Singh, learned counsel appearing

for the writ petitioner being assisted by Ms. Stuti Sinha,

has submitted that the learned Single Judge has not

appreciated the fact while dismissing the writ petition

with respect to legality and propriety of the orders passed

by the Division Benches of this Court in W.P. (S) Nos.

1622 of 2017, 1537 of 2016, 2590 of 2016, 4079 of 2016,

4407 of 2016 and 7051 of 2016.

According to learned counsel the judgment

rendered by the Hon'ble Division Bench of this Court in

these cases (W.P. (S) Nos. 1622 of 2017, 1537 of 2016,

2590 of 2016, 4079 of 2016, 4407 of 2016 and 7051 of

2016) is per incuriam as the judgment pronounced by

Hon'ble Apex Court, in the context has not been taken

into consideration and, therefore, dismissal of the writ

petition based upon the orders passed by the Co-ordinate

Division Bench of this Court cannot be said to be proper

and legal, therefore, the impugned order is not

sustainable in the eye of law.

11. Mr. Arpan Mishra, learned counsel for the

respondents has submitted that there is no infirmity in

the impugned decision as the Division Bench once

decided holding the scheme in question as

unconstitutional and violative of Articles 14 and 16 of the

Constitution of India, no such relief can be granted to the

writ petitioner under the aforesaid scheme taking into

consideration the orders passed by the Co-ordinate

Division Bench of this Court in those writ petitions and if

the learned Single Judge has dismissed the writ petition

rejecting the claim of the writ petitioner, for getting

employment under the aforesaid scheme the same cannot

be said to suffer from any infirmity.

He further submits that learned Single Judge has

taken into consideration the orders passed by the Co-

ordinate Division Bench of this Court in W.P. (S) Nos.

1622 of 2017, 1537 of 2016, 2590 of 2016, 4079 of 2016,

4407 of 2016 and 7051 of 2016 whereby and whereunder

the scheme under which the writ petitioner is claiming

extent of benefit by providing appointment to her son

itself has been declared to be unconstitutional by the Co-

ordinate Division Bench of this Court therefore, no

mandamus has been issued by the learned Single Judge

and in that view of the matter, the order passed by the

learned Single Judge cannot be said to suffer from any

infirmity and as such same may not be interfered with.

12. We have heard learned counsel for the parties,

perused the documents available on record as also the

finding recorded by the learned Single Judge.

The undisputed fact in this case is that one scheme

was floated by the Coal India Limited known as 'Coal

India Special Female Voluntary Retirement Scheme 2014

(Revised)' which provides to get option from the female

employees working under the respondents for

appointment to one of their dependents, if found to be

eligible under the aforesaid scheme with condition

precedent that the female worker must have completed at

least 10 years of service but not must have completed 55

years of age on the date of receipt of her application and

further age of the nominated son of SFVRS optee must

be within the age of group of 18 to 35 years on the date of

receipt of such application.

The writ petitioner made an application for

consideration of the candidature of her son but no

decision was taken, therefore, writ petition being W.P. (S)

No. 2772 of 2018 was filed.

The learned Single Judge, taking into consideration

the order passed by the Co-ordinate Division Bench in

W.P. (S) Nos. 1622 of 2017, 1537 of 2016, 2590 of 2016,

4079 of 2016, 4407 of 2016 and 7051 of 2016, dismissed

the writ petition.

13. We, after going through the order passed by the

learned Single Judge has found therefrom that the writ

petition has been dismissed on the basis of orders passed

by the Co-ordinate Division Bench of this Court in W.P.

(S) Nos. 1622 of 2017, 1537 of 2016, 2590 of 2016, 4079

of 2016, 4407 of 2016 and 7051 of 2016.

Taking the plea that since order dated 25.02.2019

passed in W.P.(S) No. 2772 of 2018, has been passed

relying upon the order passed by the Co-ordinate Division

Bench of this Court, the writ petitioner along with

another approached before the Hon'ble Apex Court filing

Special Leave Petition (Civil) Diary No. (s) 24000/2019

with Special Leave Petition (Civil) Diary No. 24002/2019.

It is evident from order dated 09.08.2019 passed in

aforesaid S.L.P that learned senior counsel for the

petitioner sought liberty to approach the Division Bench

to challenge the order passed by learned Single Judge

since the order impugned was related to the order passed

by the learned Single Judge.

For ready reference, order dated 09.08.2019 passed

in Special Leave Petition (Civil) Diary No (s). 24000/2019

is quoted hereunder as:

"We have heard Mr. Krishnan Venugopal learned senior counsel appearing on behalf of petitioner and perused the impugned order and relevant material.

Permission to file SLPs is granted.

Delay condoned.

The impugned orders dated 31.01.2019 and 25.02.2019 have been passed by the learned Single Judge of the High Court of Jharkhand. Learned senior counsel appearing for the petitioner(s) submits that while dismissing the writ petition Nos. 3271 of 2016 and 2772 of 2018, the learned Single Judge relied upon the order in LPA No. 340 of 2016 and other cases. However, since the order impugned herein relating to the writ petition filed by the petitioner(s) is passed by the learned Single Judge, learned senior counsel appearing on behalf of petitioner submitted that the petitioner be given liberty to approach the Division Bench of the High Court for challenging the impugned order.

Having regard to the submissions, the special leave petitions are disposed of by giving liberty as prayed for.

Pending application(s), if any, shall also stand disposed of."

It is, thus, evident that since the writ petitioner has

directly approached before the Hon'ble Apex Court

invoking jurisdiction under Article 136 of the

Constitution of India by assailing the order passed by the

learned Single Judge of this Court passed under Article

226 of the Constitution of India, even though there is

availability of intra-court appeal, as per provision

contained in Clause 10 of the Letters Patent of the Patna

High Court and in that view of the matter, the aforesaid

S.L.Ps have been withdrawn with liberty to approach the

Division Bench of this Court by challenging the order and

thereby the instant appeal has been filed.

14. In the aforesaid factual background, the question

which fell for consideration before this Court is as to:

(I).Whether the order passed by learned Single Judge

can be said to suffer from any infirmity when the

aforesaid order is based upon the order passed in

W.P. (S) Nos. 1622 of 2017, 1537 of 2016, 2590 of

2016, 4079 of 2016, 4407 of 2016 and 7051 of 2016

as also order passed in L.P.A. No. 340 of 2016?

(II).Whether second intra-court appeal or intra-court

appeal can be entertained by Division Bench of this

Court against the order passed by Division Bench of

this Court ?

15. So far Issue No. (I) is concerned, admittedly the

learned Single Judge while dismissing the writ petition

has taken into consideration the orders passed by the Co-

ordinate Division Bench of this Court in W.P. (S) Nos.

1622 of 2017, 1537 of 2016, 2590 of 2016, 4079 of 2016,

4407 of 2016 and 7051 of 2016 as also in L.P.A. No. 340

of 2016.

We have considered the order passed by Division

Bench of this Court in L.P.A. No. 340 of 2016, which was

disposed of on 23.08.2017, as has been appended as

Annexure 17 to the instant memo of appeal, from which

we have gathered that Co-ordinate Division Bench of this

Court has however, not declared the aforesaid scheme to

be ultra virus. But admittedly, the view has been taken

with respect to aforesaid scheme that the scheme of the

year 2002 was never made operative at all, for any of the

employees and now for the new scheme of the year

2014, whose life was also only six months,

there was no application preferred by the appellant and,

under the short-lived scheme of the year 2014 also, this

appellant cannot get any benefit. Hence, there is no

substance in the Letters Patent Appeal and no error has

been committed by the learned Single Judge while

deciding the writ petition being W.P. (S) No. 897 of 2015

order dated 30.06.2016.

For ready reference, the operative portion of order

dated 23.08.2017 passed in L.P.A. No. 340 of 2016 is

quoted hereunder as:

"14.Be that as it may, the fact remains that this appellant has preferred writ application after 2002 first time in the year 2015. Moreover, the scheme of the year 2002 was never made was never made operative at all, for any of the employees and now for the new scheme of the year 2015, whose life was also like an amoeba - only six months, there was no application preferred by this appellant and, under the short-lived scheme of the year 2015 also, this appellant cannot get any benefit. Hence, there is no substance in the Letters Patent Appeal and no error has been committed by the learned Single Judge while deciding the writ petition being W.P. (S) No. 897 of 2015 order dated 30th June, 2016. We see no reason to take any other view than what is taken by the learned Single Judge. Hence, there is no substance in this Letters Patent Appeal and the same is hereby, dismissed."

Thus, it is evident that in L.P.A. No. 340 of 2016,

the constitutional part of the aforesaid scheme was not

under consideration however, the Division Bench has

refused to take contrary view with the order passed by

another learned Single Judge of this Court, which was

subject matter of the aforesaid appeal by taking a view

that no relief can be granted under the aforesaid scheme.

In course of hearing, when this Court put forth

query upon the learned counsel for the writ petitioner-

appellant as to whether the order passed by the Division

Bench of this Court in L.P.A. No. 340 of 2016 has

attained its finality, no response has been furnished.

It further requires to refer herein that the order

passed by the Co-ordinate Division Bench in W.P. (S) Nos.

1622 of 2017, 1537 of 2016, 2590 of 2016, 4079 of 2016,

4407 of 2016 and 7051 of 2016 under which the

constitutionality of the aforesaid scheme has been raised,

has held at paragraph 7 as under:

"7.As regards constitutionality of the scheme, in our opinion, the same cannot survive the test of Articles 14 and 16 of the Constitution of India. We accept the reasoning of the Coordinate Bench expressed in L.P.A. No. 340 of 2016. Such a Scheme would not be capable of being legally enforced. The writ petitioners cannot claim any vested legal right for enforcing the scheme, which is ex-facie unconstitutional."

It is evident from the above referred paragraph that

the co-ordinate Division Bench of this Court has come to

a conclusive finding that the scheme in question cannot

survive the test of Articles 14 and 16 of the Constitution

of India, therefore, the reasoning furnished by the Co-

ordinate Bench in L.P.A. No. 340 of 2016 has been

accepted. Further, such a scheme would not be capable

of being legally enforced as such the writ petitioners

cannot claim any vested right for enforcing the scheme,

which is ex-facie unconstitutional.

Admittedly, the writ petitioner approached before

the Hon'ble Apex Court challenging the order dated

25.02.2019 passed in W.P. (S) No. 2772 of 2018 but the

same was disposed of as withdrawn with liberty to

challenge the same before the Division Bench of this

Court, as such, the impugned order herein is order dated

25.02.2019 passed by learned Single Judge in W.P. (S)

No. 2772 of 2018.

We, therefore, have travelled again to the order

dated 25.02.2019 passed by learned Single Judge in W.P.

(S) No. 2772 of 2018, wherefrom it is evident that the writ

petition was dismissed based upon the order passed by

Division Bench of this Court in W.P. (S) Nos. 1622 of

2017, 1537 of 2016, 2590 of 2016, 4079 of 2016, 4407 of

2016 and 7051 of 2016 as also L.P.A. No. 340 of 2018.

Since the order passed by the Division Bench

passed in W.P. (S) Nos. 1622 of 2017, 1537 of 2016, 2590

of 2016, 4079 of 2016, 4407 of 2016 and 7051 of 2016 as

also L.P.A. No. 340 of 2016 is binding upon the learned

Single Judge, therefore, we cannot take any contrary view

and if learned Single Judge relying upon the order passed

by the Division Bench in W.P. (S) Nos. 1622 of 2017,

1537 of 2016, 2590 of 2016, 4079 of 2016, 4407 of 2016

and 7051 of 2016 has dismissed the writ petition we

find no error in the impugned order.

In view thereof the order passed by learned Single

Judge cannot be said to suffer from any infirmity.

Issue No. (I) is answered accordingly.

16. So far issue no. (ii) is concerned, learned counsel

appearing for the petitioner has submitted that the order

passed in L.P.A. No. 340 of 2016, which has been referred

in Special Leave Petition (Civil) Diary No (s). 24000/2019

with Special Leave Petition (Civil) Diary No (s).

24002/2019, may be allowed to be questioned.

To delve into this issue, we must refer power of

intra-court appeal conferred by virtue of the conferment

of power of the Letters Patent of the Patna High Court,

which provides as under:

"10.Appeal to the High Court from Judges of the Court.--And We do further ordain that an appeal shall lie to the said High Court of Judicature at Patna from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order) made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence

under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made on or after the first day of February, One thousand nine hundred and twenty-nine, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided."

Thus, it is evident that an intra-court appeal shall

lie to the High Court of Judicature at Patna against the

judgment passed by learned Single Judge of the High

Court and in that view of the matter, we cannot consider

the order passed by the Co-ordinate Bench of this Court

seeking any intra-court appeal under Clause 10 of the

Letters Patent constituting the High Court of Judicature

at Patna against the order passed by the Co-ordinate

Division Bench of this Court. Furthermore, no such

prayer has been made in the instant memo of appeal.

Issue No. (II) is answered accordingly.

17. This Court, in the entirety of facts and