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SCA/6992/1988 11/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6992 of 1988
with
CIVIL
APPLICATION No.13926 of 2006
in
SPECIAL
CIVIL APPLICATION No. 6992 of 1988
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=============================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=============================================================
DINANATH
V VYAS - Petitioner(s)
Versus
O
N G C THROUGH CHAIRMAN SHRI VAHI OR SUCCESSOR & 2 - Respondent(s)
=========================================================
Appearance
:
MR
DILIP B RANA for
Petitioner(s) : 1,
MS KJ BRAHMBHATT for Respondent(s) : 1 -
2.
DELETED for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 16/06/2010
COMMON
ORAL JUDGMENT
1.0
By way of present petition, the petitioner has inter alia prayed for
promoting the petitioner as Assistant Engineer (Production) or to any
other equivalent post with effect from 01st January 1986
and to give him seniority and all other consequential benefits and
restraining the respondents from promoting the respondent No.3 to the
post of Assistant Engineer, Class-II, prior to the promotion of the
petitioner as well as quashing and setting aside the seniority list
at Annexures-C and E.
2.0
It is the case of the petitioner that the petitioner joined
the service with the respondent-Commission with effect from 14th
September 1965 as Fireman Grade-II. Thereafter, the petitioner was
selected as Production Operator/ Junior Technician (Production) vide
Office Order dated 11th December 1979 and the petitioner
joined on 02nd January 1980. The petitioner completed the
probation period successfully on 01st January 1981 which
was communicated vide order dated 17th November 1981.
Thereafter, the petitioner was promoted to the post of Chargeman
(Production) with effect from 01st January 1984 vide order
dated 14th May 1984. These facts are clear from the
provisional seniority list of the Production Operators published by
the respondent-Commission on 26th April 1984. Though the
petitioner had demanded a copy of the said seniority list, he was not
supplied the same. When the copy of the said provisional seniority
list was made available to the petitioner, the petitioner had
challenged the same by amending the writ petition by filing Civil
Application No.14700 of 2007.
2.1 By
way of said application, the petitioner sought to amend the petition
challenging the seniority list wherein juniors to the petitioner are
placed at a higher level. Both the provisional seniority lists are of
the year 1984 and 1985 and they have not become final. So far as 22
years’ policy is concerned, Clause-I and Clause-II are the main
clauses of the said policy and both of them are optional.
2.2 In
both the cases, the concerned employees become entitled for getting
the promotion under the said policy and accordingly, the petitioner
was entitled for promotion to the post of Assistant Engineer
(Production) with effect from 01st January 1986 in view of
provisions of Clause-II of the said policy.
3.0 Mr.D.B.
Rana, learned advocate for the petitioner, has submitted that though
Mr.B.S. Nayee, who is at Sr. No.122, joined service with the
respondent-Commission on 06th May 1976 as Cleaner which is
a Class-IV post, did not complete 22 years of service with the
respondent-Commission on 01st January 1986, he has been
promoted as Assistant Engineer (Production) on 01st
January 1986 after his promotion to the posts of Junior Technician
(Production) and Chargeman respectively.
3.1 It
is also the say of the petitioner that in the very same manner,
though Mr.K.B. Patel, who joined the service with the
respondent-Commission on 14th April 1975, did not complete
the service of 22 years, has been promoted as Assistant Engineer
(Production) on 01st January 1986.
3.2 It
is the case of the petitioner that though he joined the service in
the year 1965, he has not been promoted to the post of Assistant
Engineer (Production) and instead his juniors have been promoted.
3.3 It
is further the case of the petitioner that though Mr.A.P. Buddhija,
who joined the service with respondent-Commission in the year 1967-68
was promoted as Junior Technician (Production) on 24th
January 1989 and thereafter, he was promoted as Chargeman on 27th
January 1989. The petitioner apprehended that the said Mr.Buddhija
may be appointed on the post of Assistant Engineer (Production) and,
therefore, by way of amending the petition, he prayed for restraining
the respondent-Commission from promoting Mr.Buddhija on the post of
Assistant Engineer (Production). Further, Mr.Buddhija was transferred
to Bombay office on his request and again he was transferred to
Ahmedabad office. Thus, on transfer, the seniority is required to be
reckoned from the year 1989 and not from the date of his appointment.
The petitioner has been deprived of the benefit of the said promotion
policy.
3.4 It
is, thus, the case of the petitioner that discrimination has been
meted out to the petitioner by the respondents and the juniors to the
petitioner have been put on the higher rank. Hence, the present
petition.
4.0 Ms.K.J.
Brahmbhatt, learned advocate for the respondents, has relied upon the
reply affidavits and submitted that the case of the petitioner has
been considered on the basis of the policy of the
respondent-Commission dated 15th December 1987 and on the
basis of the said policy only, the promotions have been granted to
the employees of the respondent-Commission at the relevant point of
time.
4.1 It
is submitted that looking to the Clauses of the said policy, there is
no discrimination as alleged by the petitioner. The case of the
petitioner has rightly been considered by the respondent-Commission
and no discriminatory treatment has been given to the petitioner.
4.2 It
is submitted that the seniority list of Junior Technician
(Production) was circulated to all concerned, including the
petitioner. However, he did not raised any objection to the same.
4.3 Ms.Brahmbhatt,
learned advocate for the respondent-Commission, has submitted that
the petitioner cannot amend the petition after a period of 16 years
from the date of filing the petition. In respect of the same, she has
relied upon the decision of the Apex Court in the case of Shiba
Shankar Mohapatra and others v. State of Orissa and others, reported
in AIR 2010 SC 706. In
view of the same, it is submitted that the present petition may be
dismissed.
5.0 Having
considered the rival contentions, averments made in the petition,
documentary evidence produced on record and the reply affidavits as
well as rejoinder affidavits filed by the respective parties, it
transpires that the petitioner was appointed purely on temporary and
ad-hoc basis as Fireman Grade-II with effect from 14th
September 1965 with monthly extension from time to time upto 10th
July 1968 and thereafter, the petitioner applied for the post of
Technician Grade-IV and on selection, he was appointed on the said
post on regular basis with effect from 11th July 1968.
Thereafter, the petitioner came to be appointed on the post of Junior
Technician (Production) with effect from 16th October
1979.
5.1 The
petitioner appeared before Departmental Promotion Committee on 16th
October 1979 for interview and was selected. It is pertinent to note
that as per the further affidavit filed by the respondent-Commission
dated 12th October 2007, the petitioner was not promoted
but was appointed on the post of Junior Technician (Production).
5.2 It
is pertinent to note that the seniority list of Junior Technician
(Production) was circulated to all the concerned and that no
objection was raised by anybody including the petitioner. The
petitioner has not raised any dispute qua the said seniority list at
the relevant point of time and the dispute with respect to the same
has been raised only in the year 2007 by way of an amended petition.
5.3 It
is required to be noted that the petitioner came to be promoted to
the post of Chargeman with effect from 01st January 1984.
The said post is a promotional post. On promotion to the next higher
stage, the inter-seniority of the employees fixed at the time of
appointment/ selection is not disturbed. Accordingly, while preparing
the seniority list of the Chargeman (Production), the seniority of
the employees at the time of their appointment to the post of Junior
Technician (Production) was considered and the seniority was not
disturbed. The following comparative chart in the case of Shri K.B.
Patel, Shri B.S. Nayee, Shri B.V. Shindhe and the petitioner-D.V.
Vyas will make the picture very clear :
Sr.
No.
Particulars
Shri
K.B. Patel
Shri
B.S. Nayee
Shri
B.V. Shindhe
Petitioner-D.V.
Vyas
1.
Date
and post of initial appointment in resp-ONGC
Tech.
Assist.Gr-IV
14.05.1975
Cleaner
06.05.1976
Fireman
Gr-II
08.02.1963
Fireman
Gr-II
14.09.1965
2.
Appointment/
Promotion
–
Helper
(Auto)
14.06.1976
Fireman
Gr-I
24.12.1975
Fireman
Gr-I
11.07.1968
3.
Date
of selection/ Appointment to the post of Production Operation/ JT
(P)
09.05.1979
02.08.1979
16.10.1979
16.10.1979
4.
Seniority
position in Production Operator/JT (P)
70
74
103
104
5.
Date
of joining to the post of Production Operator/ JT(P)
18.08.1979
29.08.1979
28.11.1979
02.01.1980
6.
Promotion
to post of Chargeman (P)
01.01.1984
01.01.1984
01.01.1984
01.01.1984
7.
Seniority
position in Chargeman (P)
119
122
150
151
Thus,
in pursuance of the aforesaid comparative chart, it transpires that
the seniority position in Junior Technician (Production) i.e. JT
(P), is based on the date of selection as well as merit position in
the selection list of any one of the particular occasion and the
said seniority order was maintained while preparing the seniority
list of Chargeman keeping in mind the aforesaid seven criteria
mentioned in Sr. Nos.1 to 7. The seniority list is prepared both for
appointed as well as promoted posts. It is required to be noted that
the employees shown hereinabove were not promoted to the post of
Production Operation/ Junior Technician (Production) from their
respective posts at Sr. Nos.1 and 2, but they were appointed to the
post at Sr. No.3. Therefore, the seniority list was prepared based
upon the merit position in the seniority list.
5.4
It is required to be noted that after the post of Chargemen, the
next promotional post is Assistant Engineer (Production). As per the
Memorandum of Settlement entered into between the recognised unions
of Class-III employees and the respondent-ONGC, 22 years’ Policy was
introduced. It would be beneficial to reproduce the relevant clauses
of the said policy as under :
All
such Class-III employees of disciplines other than Transport
Operators and Supervisors as have completed not less than 22 years
service in Class-III in the Commission as on 31.12.1985 of which at
least one year should be in the existing grade may be considered for
appointment by selection to the next higher grade.
All
the Class-III employees senior to those with 22 years service as on
31.12.1985 in their respective career in the relevant regions may
also be considered for appointment on promotion to the next higher
grade. Senior employees will be determined with reference to the
relevant regional seniorities of the respective orders only.
In
order to implement the above decision, applications will have to be
called for from the prospective eligible employees and their
suitability assessed through DPC interview by the selection
committee on the basis of overall appraisal of their performance
record and performance at the interview. The employees would have to
be subjected to trade test / examination wherever prescribed under
R&P Regulations, 1980.
The
treatment with regard to elevation of senior in terms of para (II)
above may also be extended to the employees senior to the Transport
employees as well as the employees senior to the Class-IV employees
in their respective cardres / regions already upgraded with effect
from 1.1.86.
5.5
There were two main criteria for promotion in view of the aforesaid
policy. Firstly, the Class-III employee should have completed not
less than 22 years of service as on 31st December 1985.
Secondly, all those Class-III employees senior to those who have got
promotion under 22 years policy, may also be considered for promotion
to the next higher grade even without completing 22 years of service
in the respondent-Commission on 31st December 1985.
5.6 It
is required to be noted that the said Shri K.B. Patel, Shri B.S.
Nayee and the petitioner-D.V.Vyas had not completed 22 years of
service in the respondent-Commission on 31st December
1985, but they were at Sr. Nos.119, 122 and 151 respectively in the
regional seniority list of the respondent-ONGC circulated vide
Circular dated 20th November 1985, whereas Shri B.B.
Shindhe was at Sr. No.150 in the said seniority list.
5.7 Further,
since Shri B.B. Shindhe has completed 22 years of service in the
respondent-Commission as on 31st December 1985, he has got
promotion under Clause-I of the said 22 years Policy and accordingly,
as per Clause-II of the said 22 years Policy, employees senior to
Shri B.B. Shindhe were also to be considered for promotion and,
therefore, they were also granted promotion. So far as the present
petitioner is concerned, he is junior to Shri B.B. Shindhe and
therefore, his case was not considered for promotion under Clause-II
of the said 22 years Policy. In view of the same, no illegality
whatsoever is committed by the respondent-Commission while giving
effect to the 22 years Policy.
5.8 Here
it is pertinent to note that by way of his rejoinder affidavit, the
petitioner himself has admitted that he is not entitled to promotion
under Clause-I of 22 years Policy. He prays for promotion only under
Clause-II of the said policy. Thus, the scope of challenge of his
case is limited by him only to Clause-II of the said policy. Now when
none of the juniors in the existing cardre of the petitioner was
given benefit under Clause-II of the said policy, the petitioner too
was not given the benefit of the said policy.
5.9 Further,
the contention of the petitioner that the decision of the Gauhati
High Court in Civil Rule No.1198 of 1993 will squarely help him, does
not require acceptance since the said decision is altogether on a
different point. It has no nexus with the facts of the present case.
In the said case, the dispute was qua promotes and direct recruits in
Class-III and that too under other promotion policy and order dated
03rd January 1989 and not under 22 years’ Policy. Thus,
the said judgment cannot be applied to the facts of the present case.
5.10 So
far as the case of Shri A.D. Chaubal and Shri Pavankumar G. is
concerned, it is required to be noted that as stated in the foregoing
paragraphs, the seniority list is prepared both for appointed as well
as promoted posts. It is required to be noted that the employees
shown hereinabove were not promoted to the post of Production
Operation/ Junior Technician (Production) from their respective
posts, but they were appointed to the post of Junior Technician
(Production). Therefore, the seniority list was prepared based upon
the merit position in the seniority list.
5.11 It
is pertinent to note that the petitioner has raised objection qua the
seniority list after such a long period in the year 2007. It would be
beneficial to reproduce the relevant paragraph 29 of the decision in
the case of Shiba Shankar (supra), whereby the Apex
Court has held as under :
29.
Thus, in view of the above, the settled legal proposition that
emerges is that once the seniority had been fixed and it remains in
existence for a reasonable period, any challenge to the same should
not be entertained. In K.R. Mudgal, (AIR 1986 SC 2086) (supra), this
Court has laid down, in crystal clear words that a seniority list
which remains in existence for 3 to 4 years unchallegned, should not
be disturbed. Thus, 3-4 years is a reasonable period for challenging
the seniority and in case someone agitates the issue of seniority
beyond this petitiod, he has to explain the delay and laches in
approaching the adjudicatory forum, by furnishing satisfactory
explanation.
5.12 It
is pertinent to note that in the present case the petitioner has
approached this Court after a period of about 20 years in the year
2007 challenging the said seniority list by amending the petition and
no plausible explanation is coming forth for such a grave delay. In
that view of the matter, the seniority list which has achieved
finality by now deserves to be confirmed. Therefore, in light of the
aforesaid decision of the Apex Court also, the present petition
deserves to be dismissed.
5.13 In
view of aforesaid and in light of the decision of the above cited
decision of the Apex Court, I am of the opinion that the petitioner
is not entitled to any benefit of the said 22 years’ Policy. The
seniority lists are just and proper. I do not find any illegality or
perversity in the said seniority lists. The present petition is
devoid of any substance and merit and the same is required to be
dismissed.
6.0 For
the foregoing reasons, the present petition fails and is,
accordingly, dismissed. Rule is discharged with no order as to costs.
Interim relief, if any, stands vacated.
In view of disposal of the main petition, Civil Application
No.13926 of 2006 does not survive and the same stands disposed of
accordingly.
(K.S.
Jhaveri, J)
Aakar
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