M.Y.EQBAL, J. - (1.) IN this writ application the petitioners have prayed for quashing the order as contained in Memo. No. C - II/C5A(I)/ 50254/394 dated 26th October, 1999 passed by respondent No. 2 Director (Personnel). Coal India Ltd. Calcutta, whereby and where -under in compliance of the order dated 16.9.1999 passed in CWJC No. 1244/98(R), claim of the petitioners for their promotion to E -2 Grade has been rejected and further for a direction to the respondents to promote both the petitioners in E -2 Grade maintaining their seniority and granting consequential benefits.
(2.) FACTS of the case lies in a narrow compass. Petitioners were appointed as Legal Inspector in Technical and Supervisory Grade -A in 1991. They completed their requisite training. Petitioners are governed by common coal cadre of the Coal India Ltd, which deals with the procedure for filing up the executive post from the non - executive posts. For Legal Discipline the minimum qualification fixed for promotion to E -2 Grade (Law Officer) is that an incumbent should be a Law Graduate and having three years experience in Technical and Supervisory Grade -A. In 1995 petitioners were directed to attend the Coaching Programme for promotion to the Executive Cadre of Legal Discipline. Petitioners alongwith others appeared in the qualifying examination in 1995 and thereafter interview of the successful candidates who passed written test was held and the merit list was prepared. It is stated that despite the fact that petitioners did better in the written test as also in the interview, their names were placed much below than that of other candidates and some of the candidates were accordingly promoted to Executive Grade -2. In 1996 by Office Order dated 13.7.1996 four more Legal .Inspectors were promoted to the post of Law Officers in E -2 Grade. Petitioners case is that they could come to know from reliable sources that at the time of interview there were 16 vacancies in between December. 1996 and January, 1997, 11 vacancies were created out of which 8 vacancies for South Eastern Coalfields Limited and 3 vacancies for Central Coalfields Limited and thus in total 27 vacancies were there in between 24.2.1996 to January, 1997. It is stated that petitioners filed representation before the Chairman. Coal India Limited requesting him to look into the matter for promotion to the post of Law Officers. The said representation was forwarded to the Director (P&IR) Coal India Limited. Calcutta for considering their cases for promotion. It appears that when respondents did not pass any order on the representation > petitioners moved this by filing CWJC No. 1244/98R, The said writ application was disposed of on 16.9.1999 with a direction to the respondents to consider the claim of the petitioners for appointment to the post of Law Officer in Grade E -2 and take a decision. In compliance of the aforesaid order respondent No. 2 passed the impugned order rejecting the claim of the petitioners on the ground of lapse of validity of panel and non -availability of vacancy. 4. The stand of the respondent -Coal India Limited in the counter -affidavit is that although petitioners were empanelled for promotion to the post of Law Officer but offer letters of promotion could not be issued in absence of vacancy during the period of panel. It is stated that panel drawn and approved by the competent authority has been operated strictly in order of merit depending upon the availability of posts during the valid period of time. It is contended that petitioners position in the panel was at SI. No. 17 and 19 and altogether 14 candidates from the panel from SI. No. 1 to 14 have been given promotion according to the availability of the vacancy. 5. From the impugned order dated 26.10.1999 it appears that the claim of the petitioners for promotion has been refused on two ground i.e. non -availability of vacancy during the validity period of panel and expiry of the panel after 17th May 1997 The relevant portion of the order reads as under : "On examination of the case, it is seen that the petitioners are in the recommended panel at Sl. No. 17 and SI. No. 19, whereas the promotion s have been issued upto the Sl. No. 14 against the vacancies. It is seen from the records that no further vacancies have occurred during the validity period of the panel i.e. upto 17th May. 1997 and the panel has since expired.In view of the above facts and circumstances of the case, the petitioners -S/Shri Nand Kishore Singh and Md. Afzal cannot be granted promotion to the post of Law Officer."
(3.) Mr. A.K. Sahanl, learned counsel appearing for the petitioners assailed the impugned order mainly on the ground of discrimination inasmuch as other similarly situated persons in the same panel have been given promotion even after May, 1997 and they are enjoying the said privilege. Learned counsel submitted that Mr. N.V. Dannial who being Senior Personal Assistant posted at South Eastern Coalfields Ltd. was not having required qualification and was earlier debarred to appear in qualifying examination but subsequently allowed to appear in the examination and he was given promotion. Similarly, four other candidates out of the said panel were given promotion vide Office Order dated 21.1.1996 and 13.7.1996. It is contended that five more persons were given promotion on 31.3.1997. In 1998 Mr. A. Shukla out of the said panel was also promoted on 22.3.1998. According to the learned counsel therefore decision of the respondents refusing to grant promotion on the ground of lapse of the panel is absolutely illegal, arbitrary and mala fide.;