Allowed

Birendra Kumar Srivastava v. Bharat Cocking Coal Limited Through Its Chairman Cum Managing Director And Ors.

Jharkhand HC6 Apr 2022WPC/1633/2016

Case brief

AI extract

What is this about?

The High Court held that reasons assigned in a counter-affidavit cannot validate a non-speaking or arbitrary order rejecting a petitioner's joining to an upgraded post. The Court quashed the rejection and directed the Respondent to accept the petitioner's joining with consequential benefits.

What did the court decide?

Direction to the respondent to consider the petitioner's case and accept his joining to the upgraded post of E1 Grade with all consequential benefits within four weeks.

Birendra Kumar Srivastava Vs Bharat… — Pension and Retirement Benefits | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S). No. 1633 of 2016

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Birendra Kumar Srivastava ……… Petitioner . Versus

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Bharat Coking Coal Ltd., Dhanbad through its Chairman-cumManaging Director, Koyla Nagar, Dhanbad

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General Manager, Bharat Coking Coal Ltd., Dhanbad.

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Director Personnel, Bharat Coking Coal Ltd., Dhanbad.

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Chief General Manager (Personnel), Bharat Coking Coal Ltd., Dhanbad.

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Chief Manager (Personnel) NEE, Bharat Coking Coal Ltd., Dhanbad.

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………. Respondents .

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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK (Through: Video Conferencing)

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-----------

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For the Petitioner : Mr. R.S.P. Sinha, Sr. Advocate Mr. Rakesh Kr. Sinha, Advocate For the Respondents : Mr. Anoop Kr. Mehta, Advocate ----------

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09/ 06.04.2022 Heard the parties.

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2. Petitioner has approached this Court with a prayer for direction to the respondents to consider his case for suitable posting after accepting his joining to the post of Subordinate Engineer (E&M) in the pay-scale of Rs.16400-40500 as has been done in case of similarly situated persons.

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3. As per the factual matrix, petitioner had completed his diploma in Technology in Automobile Engineering from Hindustan Institute of Engineering Technology at Madras, a recognized Institution in December, 1988 by securing 1^st Class and a Certificate in respect of the same was issued to him by the said Institution on 02.02.1989. On the basis of said certificate, petitioner was appointed on 11.06.1990 to the post of Technical Apprentice (Automobiles) in the pay-scale of Rs.1222-60-1702-66-2230. After his appointment, petitioner worked to the full satisfaction of the respondent-authorities and further was considered for promotion to the post of Foreman (I/c) E&M in T&S Grade-A I in the pay-scale of Rs.10091-30313727 vide order dated 29.07.2009 issued by the respondent-BCCL. The

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said promotion order was passed on the basis of recommendation of the Departmental Promotion Committee. Thereafter, on the basis of decision taken in 255^th meeting of the Board of Directors of the Coal India Ltd and the recommendation of the Committee petitioner along with others were considered for upgradation to the post of E1 Grade and designated as Subordinate Engineer (E&M) in the pay-scale of Rs.16400-40500/- vide office order dated 05.01.2011. It is the specific case of the petitioner that though similarly situated employees, whose name figured in the upgradation list dated 05.01.2011, were upgraded to the post of E1 Grade and subsequently, posted at different places but surprisingly, the same has been denied to the petitioner.

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4. It is the further case of the petitioner that though he made several representation to the respondent-authorities but no heed was paid to the same and aggrieved by such inaction on the part of the respondents, the petitioner has been compelled to knock the door of this Court for acceptance of his joining to the upgraded post of E1 Grade i.e. Subordinate Engineer (E&M).

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5. Mr. R.S.P. Sinha, learned senior counsel appearing for the petitioner vociferously argues that illegally and arbitrarily with ulterior motive, the respondent-BCCL has not accepted his joining in the upgraded post of E1 Grade i.e. Subordinate Engineer (E&M). Learned senior counsel further argues that though the case of similarly situated persons have been considered but the respondent-authorities without assigning any reasons, have not allowed the petitioner to join the upgraded post. Learned senior counsel further argues that till date even the upgradation order dated 05.01.2011 has not been cancelled. Mr. Sinha further argues that order of upgradation was issued on the basis of decision taken by the Board of Directors of Coal India Ltd. and on the recommendation of the Committee and therefore, the respondents cannot at their sweet-will stop the petitioner from joining the upgraded post. Mr. Sinha further argues that nonacceptance of the petitioner’s joining to the upgraded post amounts to highhandedness of the respondent-authorities and as such, a direction be

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given to the respondents to consider the case of the petitioner for his joining to the upgraded post of E1 Grade i.e. Subordinate Engineer (E&M) as early as possible with all consequential benefits. It has been further argued by Mr. Sinha, learned senior counsel that the certificate issued by the Hindustan Institute of Engineering Technology, Madras clearly shows that petitioner had completed 3 years diploma course i.e. from 1986 to 1989. The Certificate is also genuine and issued by the competent authority from a recognized Institution, which is apparent from rejoinder filed by the petitioner and as such, no fingers can be raised by the respondents against the said certificate that too after 20 years. It was also argued that based on the said certificate, petitioner was considered for promotion and as such, now it is not open for the respondents to challenge the validity or genuineness of the said certificate.

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6. Per contra, counter-affidavit has been filed. Mr. Anoop Kumar Mehta, learned counsel representing the respondent-BCCL vehemently opposes the contention of learned senior counsel appearing for the petitioner. Mr. Mehta draws the attention of the Court towards page-11 of the counter-affidavit dated 18.06.2018 and submits that in the order of upgradation it was clearly mentioned that,

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(i) letter of upgradation of the individual employee be issued only after being satisfied that the employees concerned have fulfilled all the eligibility norms laid down for the purpose of upgradation to E1 grade i.e. deemed date of entry in T&S Grade A/A1, qualification, vc, dc, sc, ec.

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7. Mr. Mehta further argues that from the certificate issued to the petitioner it appears that petitioner had completed two years diploma degree i.e. from 1986-88 and merely because the passing certificate was issued in the year 1989, it cannot be said that petitioner had completed 3 years’ course. It has been further argued that said degree is also under cloud though no enquiry has been done on that part. As per the rules and guidelines, if on further enquiry it is found that certificate of the petitioner is not genuine, his initial appointment also comes under doubt and needs

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verification. It has been further argued by Mr. Mehta that in the office order dated 05.01.2011, it has been clearly mentioned that it may specifically be ensured that, (a) the diploma is recognized and of minimum three years duration and (b) stagnation in T&S grade A/A1 for minimum 15 years on the cut-off date, has been determined on the basis of date of entry in T&S grade A being either on or before 31.03.1995 . Learned counsel further argues that though no specific order has been passed but it is apparent that petitioner is not fulfilling the requisite qualification for appointment or upgradation and hence, the writ petition is fit to be dismissed on this score itself.

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8. Be that as it may, having heard the rival submissions of learned counsel for the parties and upon perusal of the documents brought on record, this Court is of the considered view that case of the petitioner needs consideration for the following facts and reasons:

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I. Admittedly, the petitioner was appointed in the year 1990 based on the certificate issued by the Hindustan Institute of Engineering Technology, Madras, in which the duration of course was clearly mentioned.

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II. During his entire service period, neither any adverse remarks was passed against the petitioner nor were any fingers raised on the said certificate. Rather, the departmental promotion committee considered him fit for promotion and granted first promotion vide order dated 29.07.2008 (Annexure-4 to the writ petition), which was accepted and at no point of time it was said that the certificate issued by the Hindustan Institute of Engineering Technology, Madras was not genuine and petitioner had not completed three years of diploma course.

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III. Subsequently, on 05.01.2011 the petitioner along with others was upgraded to the post of E1 Grade i.e. Subordinate Engineer (E&M). Thereafter, all the similarly situated persons were considered and their joining were accepted but the petitioner has been denied the same without assigning any reason. It is only after filing of the

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present writ petition, reasons were assigned in the counter-affidavit as well as in the supplementary counter-affidavit which are not acceptable to this Court. In plethora of judgments rendered by the Hon’ble Apex Court as well as by this Court, it has been clearly mentioned that reasons assigned in the counter-affidavit will not improve the case of the respondents and the impugned order is not sustainable in the eyes of law, if no reason has been assigned in the same.

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9. The Apex Court in the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji , reported in AIR 1952 SC 16 and further in the case of Mohinder Singh Gill Vs. Chief Election Commissioner, reported in (1978) 1 SCC 40 5, has clearly held that no reasons can be supplied in the counter affidavit to justify a thoroughly non-speaking order otherwise all the non-speaking and arbitrary orders will be converted into well-reasoned and speaking orders by the passage of time, by way of counter affidavits filed in the Court. It has been clearly held that no reasons can be supplied subsequently in the counter affidavit filed in the Court. It has also been held that the statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons as mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.

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Para-9 of the Judgment passed by the Hon’ble Apex Court in the case of Commissioner of Police, Bombay Vs. Gordhandas Bhanji (supra) , reads as under:

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"9. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority, cannot be construed in the light of the explanations subsequently given by the officer making the order of what he meant, or of what was in his mind or what he intended to do. Public orders made by public

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authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

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The aforesaid proposition has been followed in the case of Mohinder Singh Gill (Supra) . Para-8 of the said Judgment is relevant to be quoted hereunder:

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"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji:

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Public orders, publicly made, in exercise of a statutory authority can not be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.

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Orders are not like old wine becoming better as they grow older."

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10. Surprisingly, if the petitioner was not having three years of diploma course, how he was considered for appointment and who were the persons responsible for allowing him to continue in service for 24 long years. Even the departmental promotion committee had considered him fit for promotion and granted promotion not only once but twice and upgradation was also granted to him. Thereafter, at the fag end of his service career, fingers have been raised that his initial appointment was not as per the norms as he was not fulfilling the requisite qualification. The said view of

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the respondents is not tenable in the eyes of law and fit to be quashed and set aside.

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11. The respondents are directed to consider the case of the petitioner and accept his joining to the upgraded post of E1 Grade i.e. Subordinate Engineer (E&M) with all consequential benefits, within a period of four weeks from the date of receipt/ production of a copy of this order.

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12. Before parting with the order, let it be made clear that respondents are free to act in accordance with law.

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13. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the instant writ petition stands allowed.

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kunal/-

Birendra Kumar Srivastava v. Bharat Cocking Coal Limited Through Its Chairman Cum Managing Director And Ors.

Case brief

What is this about?

What did the court decide?

Birendra Kumar Srivastava v. Bharat Cocking Coal Limited Through Its Chairman Cum Managing Director And Ors.

Case brief

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What did the court decide?

What the court decided

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