- (1.) In the writ petition, the petitioners stated to be the Senior Surveyors under Coal INdia Limited ('CIL' for short) and/or its subsidiaries, namely, South Eastern Coalfields Limited and Western Coalfields Limited, have challenged the office order dated 5th September, 2008 issued by the authorities whereby 115 persons were promoted to the rank of Assistant Survey Officer, E-1 Grade. However, as evident from the statements made in Paragraph 5 of the writ petition challenge is in respect of promotions of four promotees - respondent Nos. 7 to 10 - since "The petitioners do not have a grievance against any of the promotees barring the private respondents". It has been stated that the impugned order is the result of an illegal interview by which the petitioners have been denied the chance of getting promoted. According to the petitioners, the promotion of the private-respondents is perse illegal since they are all juniors. On a bare perusal of the Common Coal Cadre (for short 'the Scheme') it would appear that the promotion to the Executive Grade would be on the basis of the recommendation of a duly constituted Departmental Promotion Committee. Further, it has been provided in the Scheme that all promotions from the senior-most non-Executive Grade to the Executive Grade would be on the basis of selection test and interview. The syllabi and the methodology for conducting the test would be as laid down by the CIL. For promotion from non-Executive to Executive Cadre in the Survey Discipline, that is from the post of Surveyor to the post of Assistant Survey Officer in E-1 Grade, it has been provided that all the posts of Assistant Survey Officer would be filled in departmentally from amongst the Surveyors with minimum seven years experience after acquiring the qualification for Surveyor post. However, the said procedure was not put to practice. Though the order dated 16th November, 1994 and the Notification dated 14th November, 2007 issued by the Western Coal Fields Limited speak of written test, however, another Notification dated 14th November, 2007 postulates holding interview only for promotion. Though it has been postulated that one has to attain the eligibility criteria by 30th September, 2007, however, promotion was given to Debjyoti Dutta who failed to make the grade. According to the petitioner they had participated in the selection process not knowing there would be no written test. Allegation is, the system of promotion lacks transparency and the motive of the CIL is to do away with the proper selection process. IN short, the entire effort of the respondent authorities is to somehow promote the private respondents who are otherwise not eligible.
(2.) Learned Senior Advocate appearing on behalf of the petitioners relying on the writ petition and its annexures has submitted that it is evident that there is no clear cut method for promotion. Interview, which was held in the instant case, replace qualifying examination, that is, the written test. Though the petitioners had participated in the interview, principles of estoppel will not apply if action is illegal. Since it has been demonstrated that the office orders and notifications are contrary to each other, entire proceeding is void as initio. According to him, the Scheme though not a statutory rule, has a statutory flavour and thus binding. However, assuming the contentions of the petitioners are not accepted, it has been argued, since promotions have taken effect, in future, the case of the petitioners for promotion may be considered. In support of his submissions he has relied on the following judgments Munindra Kumar and Ors. v. Rajiv Govil and Ors., 1991 AIR(SC) 1607 . Rajkumar and Ors. v. Shakti Raj and Ors., 1997 AIR(SC) 2110. Rajesh Kumar Gupta and Ors. v. State of U. P. and Ors., 2005 AIR(SC) 2540. Diploma Engineers Sangh v. State of Uttar Pradesh and Ors., 2007 13 SCC 300Leaned Advocate for the CIL relying on the affidavit-in-opposition has submitted that it is evident from the 'Introduction' that the Scheme was framed by the Directors of the CIL. It is a comprehensive manual. It is a guideline and not a Scheme which has the sanction of a statute. Thus, it is not enforceable. CIL is free to change the methodology regarding its selection which all along has been done. In the instant case, methodology regarding selection in Paragraphs 4.10.1,4.10.3 and 4.10.9 of the Scheme have been diluted by the methodology prescribed in the letter dated 7th February, 1985. Assuming the Scheme has a statutory flavour, as contended by the petitioner, since the petitioners are not the Executives, they are not entitled to its benefits. Referring to the Scheme it has been submitted that the minimum eligibility criteria and not seniority, is to be counted. Referring to the facts it has been submitted that interview was held during May and June, 2008. Petitioners had participated without any demur or protest. Results were published on 5th September, 2008. Soon thereafter, promotions have been given effect to. After publication of results, by letter dated 8th September, 2008 the petitioners complained of injustice. According to him since the modality of the selection was uniform and petitioners had participated, they cannot turn back and challenge the process. Moreover, there is no challenge neither regarding the composition of the Departmental Promotion Committee nor regarding the marks awarded. In support of his submissions the learned Advocate for the respondents has relied on the following judgments Ajay Hasia v. Khalid Mujib Sehravardi and Ors., 1981 AIR(SC) 487 Union of India and Ors. v. S.L. Abbas, 1993 AIR(SC) 2444 Madanlaland Ors. v. State of J & K and Ors, 1995 3 SCC 486 K. A. Nagamani v. Indian Airlines and Ors., 2009 5 SCC 515 The only point to be considered is whether the petitioners are entitled to be promoted to the post of Assistant Survey Officer. It is not disputed that the interviews were held during May and June, 2008. The petitioners had participated without protest. After office order was issued on 5th September, 2008, granting promotion, which is the subject-matter of challenge, the petitioners issued the letter dated 8th September, 2008 complaining injustice. Thereafter, the writ petition was filed on 30th November, 2008 challenging the office order when promotion admittedly has been given effect to. In this context it must be borne in mind that the petitioners have not thrown any serious challenge to the decision making process as neither the composition of the Departmental Committee for promotion nor the process or the allotment of marks is under challenge. This is clearly borne out by the representation dated 8th September, 2008 and lack of averments in the petition. In the absence of specific pleadings it is difficult to support the contentions advanced on behalf of the petitioners. Moreover, the petitioners had participated in the interview without any demur or protest. Since the CIL had given the petitioners an adequate opportunity to compete with all other eligible candidates, the principles of law laid down by the Apex Court in Madanlal and K.A. Nagamani relied on by the respondents, wherein it has been held that a candidate who appears in the interview and finds the result of the interview not palatable to him, cannot turn back and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted, are applicable to the facts of this case. The judgments relied on by the petitioners are not applicable to the facts of the present case since, as evident, there is neither any specific challenge to the manner of selection nor it has been contended that there was abrupt change in the criterion or the method of selection. Therefore, as the law is that one cannot challenge the process of selection after participating in the. process, in the instant case as the petitioners had participated in the interview, they cannot now turn round and challenge the process. Hence, the writ petition fails and is dismissed. However, so far the promotion of Debjyoti Dutta, respondent No.7 is concerned, I direct the appropriate authorities of the CIL to reconsider the promotion of the said respondent and shall pass a reasoned order within a period of six weeks from the date of communication of this order taking into consideration Clause 4.10.3 of the Scheme and Annexure-R/5 to the affidavit-in-opposition.
(3.) The application being C.A.N.No.4178 of 2009 is also disposed of. There will be no order as to costs. Let urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.;