Gitesh Ranjan Bhattacharjee, J. - (1.) This is a writ petition regarding fixation of seniority of the petitioner in service vis-a-vis the seniority of the private respondent No. 7. The respondent No. 2 Bharat Coking Coal Ltd. is a subsidiary of respondent No. 1 Coal India Limited and is also a Government company. According to the averments made in the writ petition the writ petitioner is working under the Central Coalfields Limited in the position of Additional Chief Personnel Manager which is Grade M2 post and the respondent No. 7 Sri S.K. Singh is holding the post of the Chief Personnel Manager under the Central Coalfields Limited. The petitioner and the respondent No. 7 both are governed in respect of the service matters by the Common Coal Cadre framed by Coal India Limited. The petitioner's contention is that the petitioner joined the East India Coal Company in 1962, that is before nationalisation as Labour Welfare Officer and on 17.11.71 after the formation of the Organisation for the Management of Coking Coal Mines which took over the mines of the said company, the petitioner was taken over and became an employee of the said Organisation. It is the contention of the writ petitioner that on 1.7.72 the petitioner was appointed by the respondent No. 2, Bharat Coking Coal Ltd. (BCCL) as Personnel Officer at its headquarters in the scale of Rs. 400-1250. It is also the case of the petitioner that on 20.4.1972 the said respondent No. 2 published an advertisement for the recruitment of Personnel Officer in the same scale 400-1250 and pursuant to the said advertisement and after interview three persons including the respondent No. 7 were given appointment and the respondent No. 7 joined the service on 6.12.1972 as Personnel Officer, but suddenly thereafter within a period of six months the respondent No. 7 (and two others who are no more in service) were promoted to the post of Sr. Personnel Officer and placed in a higher grade of Rs. 800-1250 with retrospective effect from the date when they initially joined the service on 6.12.72. It is also the contention of the petitioner that such promotion was given to the respondent No. 7 without following proper procedure and without the formation of any Department Promotional Committee. It is the further contention of the petitioner that by such discriminatory action on the part of the authorities concerned the respondent No. 7 was given a higher scale of pay and a higher post ignoring the seniority of the petitioner in service. The petitioner made representation to the concerned authority demanding justice in the matter and on consideration of the said representation the petitioner was given the higher scale of pay of Rs. 800-1250 but not from the date on which respondent No. 7 was given that scale, namely, 6.12.72 and rather from a subsequent date, namely, 31.12.73 which is resented by the petitioner as highly discriminatory. It is also the contention of the petitioner that thereafter also the petitioner get promotion in the usual manner but at every stage of promotion he was made junior to the respondent No. 7 and the petitioner made representation against such injustice but nothing was done except giving assurance.
(2.) On 7.12.1984 the petitioner made a representation through proper channel to the Chairman-cum-Managing Director of Bharat Coking Coal Limited stating inter alia that his seniority had been fixed wrongly. That representation of the petitioner dated the 7th December, 1984 for fixation of proper seniority was forwarded by the Director (Personnel), Bharat Coking Coal Limited (BCCL) to the Director (Personnel), Coal India Limited under a forwarding letter dated the 27th November, 1985 which along with the said representation of the petitioner dated the 7th December, 1984 has been collectively marked as Annexure A to the writ petition. I am given to understand that at the time when the petitioner made the said representation in December 1984 he was enjoying the Grade E-5. As I could understand, at the time when the petitioner was appointed on 1st July, 1972 he was given Grade E-2. In the said forwarding letter dated the 27th November, 1985 the Director (Personnel), Bharat Coking Coal Limited supported the claim of the petitioner. I am told that the respondent No. 7 was promoted to Grade E-6 on 19th December, 1985 whereas the petitioner was promoted to said Grade on 25th November, 1986 and that the respondent No. 7 was promoted to the post of Additional Chief Personnel Manager in Grade E-7 on 24th April, 1989 and then to the post of Chief Personnel Manager in Grade E-8 on 24th March, 1993 whereas the petitioner was promoted to Grade E-7 on 30th July, 1991 and then placed in Grade E-8 on 1st April, 1993. In paragraph 14 of the writ petition it is stated that the post of Additional Chief Personnel Manager is in Grade E-7 and the post of Chief Personnel Manager is in Grade E-8 and that by a circular these two grades, that is, E-7 and E-8 were merged and a new grade was formed as M2. From paragraph 6 of the affidavit-in-opposition it would appear that the Grade M2 was formed with effect from 1st April, 1993. As we have already noted the respondent No. 7 was promoted on 24th March, 1993 to E-8 Grade since converted to M2 Grade by merger with E-7. The petitioner was placed in the M2 Grade with effect from 1st April, 1993, that is, the date on which both the Grades E-7 and E-8 merged to form the Grade M2. It is the contention of the petitioner that before the respondent No. 7 was promoted to the rank of the Chief Personnel Manager in Grade E-8 the respondent No. 5 Director (Personnel), BCCL wrote a latter to the Director (P & IR), Coal India Limited, Annexure-B to the writ petition, forwarding therewith a self-contained note, as desired by the letter, on the representation of the writ petitioner and eight others. In that note the Director (Personnel), BCCL, seems to have recommended in favour of the writ petitioner and eight others for re-examination and re- fixation of seniority of the petitioner and eight others vis-a-vis the respondent No. 7 as per the rule of the Company. It is also the contention of the petitioner in paragraph 16 of the writ petition that after receiving the said letter and note the respondent No. 4, Director (Personnel), Coal India Limited, formed a committee for examining and considering the representation of the petitioner and eight others by an office memorandum dated 16th/18th July, 1991. It is also the contention of the writ petitioner that as the said Committee, however, did not meet a Second Committee was formed consisting of Sri Ramesh Kr. Mehta, Director (Personnel), ECL, Sri P.C. Haridas, Director (Finance), N.C.L. and Md. Jamaluddin, CGM (M.P. and I.R., C.I.L. Calcutta) by office order dated the 18th January, 1993 and that the said Committee held their meeting on 23rd April, 1993 and submitted the report after a long time recommending for notional seniority of the petitioner. It is also the case of the petitioner that the said recommendation was duly processed and forwarded to the respondent No. 3, Chairman, Coal India Limited but when the entire question of fixation of seniority was pending the respondents suddenly fixed a date for interview for promotion to the post of the Chief General Manager (Personnel). It is alleged that the persons called for interview were : (1) Sri S.N. Mishra, General Manager (Personnel), BCCL, (2) S.K. Mishra, General Manager (Personnel), S.E.C.L., (3) S.J. Singh, General Manager (Personnel), E.C.L. and the respondent No.7 General Manager (Personnel), C.C.L. The interview was however not held on that date due to some administrative reasons and the date for interview was again fixed on 14th May, 1994. It may be noted here that the post for which the interview had been fixed was in Grade M3, and the interview was scheduled for promotion from Grade M2 to M3. It is the contention of the petitioner that the respondent No. 7 and those others who have been called for the said interview are all in the rank of M2 but the petitioner had not been called for that interview although his juniors have been called. Being aggrieved by the inaction on the part of the concerned respondents to re-fix his seniority over the seniority of the respondent No. 7 and for denial of opportunity to appear in the interview for promotion to Grade M3 the petitioner has filed this writ petition on 6th June, 1994. On 13th June, 1994 this court give direction for affidavits and also passed an interim order to the effect that any appointment to the post of the Chief General Manager (Personnel) during the pendency of this writ application shall be subject to the result of the writ application. The respondent No. 7 has been given promotion to Grade M3 on 29.6.94 during the pendency of the writ petition. Then the petitioner again moved this court in the proceeding as the respondent No. 7 was going to be considered for appointment to the still higher post of Director (Personnel), and accordingly, on 28th July, 1994 the court after hearing both sides issued another direction that any appointment to the post of the Director (Personnel) during the pendency of this writ application shall be subject to the result of this writ application.
(3.) One of the main grounds on which the writ petition has been resisted on behalf of the consisting respondents is the ground of delay in filing the writ petition, as canvassed by the learned Advocate for the respondent No. 1 at the time of hearing. It is submitted by the learned Advocate for the respondents that the writ petitioner is aggrieved by fixation of seniority dating as far back as 1972 and he has filed this writ petition only in 1994. On the other hand it is submitted by the learned Advocate for the petitioner that delay in filing the writ petition is not fatal for this writ petition because of the distinguishing feature of this case that in view of the representation of the petitioner and the recommendation of the BCCL authorities thereon the respondent No. 4, Director Personnel, Coal India Ltd. formed a Committee consisting of high officials for examining the matter and the Committee also submitted a report in the matter in 1993 recommending fixation of notional seniority of the petitioner. It is the contention of the writ petitioner that since the respondent No. 3 Chairman, Coal India Limited has not taken any decision on the report submitted by the said Committee and, pending the fixation of seniority, the authorities concerned have suddenly fixed interview of certain persons including the respondent No. 7 but excluding the petitioner for promotion to the post of the Chief General Manager (Personnel) in Grade M3, the petitioner has been constrained to file the present writ petition. The contesting respondents have however in their affidavit in opposition taken the plea that the report of the Committee has no binding effect. The fact however remains that a Committee was appointed for the purpose of examining the representation of the petitioner and in course of time the Committee submitted the report. But then at the same time, it has to be noted that the question of disturbing the existing position of the writ petitioner qua respondent No. 7 in the matter of seniority will arise only if it is found that the seniority fixed in favour of the respondent No. 7 qua the petitioner as far back as in 1973 is liable to be disturbed now. Without disturbing the seniority position of the petitioner qua the respondent No. 7 as it was in 1973 the question of altering the seniority of the petitioner qua the respondent No. 7 at any subsequent stage till today cannot arise. Rightly or wrongly the respondent No. 7 was placed some time in 1973 in the higher grade of Rs. 800-1250 with effect from 6.12.1972, although initially the respondent No. 7 was given the scale of Rs. 400-1250 when he joined on 6th December, 1972 and when the petitioner was already enjoying the scale of Rs. 400-1250 with effect from 1st July, 1972. The petitioner's contention is that although on point of joining date he was senior to the respondent No. 7 in the scale of Rs. 400-1250, the authorities concerned, by placing the respondent No. 7 subsequently in the higher grade of Rs. 800-1250 with retrospective effect from the initial date of joining of the respondent No. 7 but without giving the said scale yet to the petitioner, acted arbitrarily and with hostile discrimination thereby unduly making the respondent No. 7 senior in the grade of Rs. 800-1250 to the petitioner who was subsequently given the grade. That precisely is the sore point of the writ petitioner.;