JUDGMENT
Tapen Sen, J.
1. In this writ application, the petitioner prays for quashing the order/letter dated 2.2.1996 as contained in Annexure 16, whereby and whereunder his representation in relation to his claim for seniority over the respondent Nos. 8 and 9 has been rejected. He further prays for quashing of Annexure 6 which is the order dated 19.1.1991 by which the respondents Nos. 8 and 9 were provisionally transferred horizontally to the Legal Discipline for a period of one year. The petitioner also prays for quashing of the order dated 27.8.1993 (Annexure 8) by which the respondent Nos. 8 and 9 were permanently absorbed in the Legal Discipline. The petitioner has also made a prayer that the respondents be directed to refix his seniority vis-a- vis the respondent Nos. 8 and 9 in terms of Common Coal Cadre.
2. The contention of the petitioner is that both the respondent Nos. 8 and 9 belonged to the Secretarial Discipline and therefore in terms of the Common Coal Cadre, they could have been horizontally transferred only to the Estate (Now Revenue) Discipline but not to the Legal Discipline where the petitioner was working thereby disturbing his seniority.
3. In this case, notices were issued upon respondent Nos. 2, 3, 5, 6, 8 and 9 by order dated 3.9.1996 and on 9.10.1996 the office of this Court pointed out that notices had been issued to the respondent Nos. 2, 3, 5, 6, 8 and 9 under registered cover with acknowledgment due on 11.9.1996 and as per Service Report, the service of notice upon respondent No. 8 (M.G. George) was valid. Thereafter both the respondent Nos. 8 and 9 have appeared by filing a vakalatnama on 15.11.1996 which is on record, but no counter affidavit has been filed by them. The fact that they filed vakalatnama is also evident from the office note dated 27.11.1996. So far as the other respondents are concerned, the respondent Nos. 1 to 3 have filed vakalatnama through Mr. M.M. Banerjea and respondent Nos. 4 to 6 have appeared through Mrs, Banani Verma and as per the order dated 10.10.1996, it is evident that she also represents the respondent No. 7.
4. According to the petitioner, he was initially appointed on the post of a Legal Inspector on 18.3.1983 which was a nonexecutive grade post, but by order dated 28.10.1989 he was promoted to the Executive Grade E-2 and he joined on that grade on 14.11.1989. According to him the executive grade in the Legal Discipline begins from E-2 Level.
5. On 19.1.1991, the respondent Nos. 8 and 9 were transferred horizontally by the impugned Annexure 6 and were brought in the Legal Discipline to work as Law Officer in the E-2 Grade on probation. On 29.3.1993, by Annexure 2 the petitioner was promoted to the post of Senior Law Officer in the E-3 Grade and was posted in the Office of the General Manager, Kolkata Area. According to the petitioner, although the petitioner had filed a representation against the aforementioned horizontal transfer, the same was not disposed off and without considering the same, by an office order dated 27.8.1993, the respondent Nos. 8 and 9 were permanently absorbed in the Legal Discipline as Senior Law Officer. According to the learned counsel for the petitioner, the horizontal line of promotion, as per Annexure 3 insofar as it relates to the Legal Discipline is included at SI. No. 13 thereof and it reads as follows :
LEGAL DISCIPLINE
Sl. No.
Discipline
E-1
E-2
E-3
E-4
E-5
E-6
E-7
E-8
Remarks
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
13
Legal
Asslt. Law Officer
Law Officer
Sr. Law Officer
Dy. Legal Manager
Legal Manager
Dy. Chief Legal Manager
Addl. Chief Legal Manager
Similarly, the horizontal line of promotion in the Secretarial Discipline is at Sl. No. 16 and it is as follows :
SECRETARIAL DISCIPLINE
Sl. No.
Discipline
E-1
E-2
E-3
E-4
E-5
E-6
E-7
E-8
Remarks
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
16
Secretarial
Private Secretary
Secretary
—
—
Similarly, the Estate (Now Revenue) Discipline finds inclusion at Sl. No. 12 of Annexure 3 and it reads as follows :
ESTATE (NOW REVENUE) DISCIPLINE
Sl. No.
Discipline
E-1
E-2
E-3
E-4
E-5
E-6
E-7
E-8
Remarks
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
12
Revenue
Asstt. Estate Officer
Estate Officer
Sr. Estate Officer
Asstt. Estate. Manager
Dy. Estate Manager
Estate Manager
—
6. Thus, according to the learned counsel for the petitioner, a person in the Secretarial Discipline can only travel up to column No. 5, i.e., to the post of Secretary in his own discipline, but he could not have encroached horizontally into the Legal Discipline. According to him, since the Secretarial Discipline ended at the level of the post of the Secretary, therefore, in order to provide promotional opportunities to that discipline. Coal India Limited issued an Office Memorandum on 6.11.1984 which is contained at Annexure 4. From a perusal of this Office Memorandum, it is apparent that for purposes of availing promotional opportunities in the Secretarial Discipline, horizontal movement of private secretaries and secretaries to that discipline would be regulated in accordance with paragraph 12 of the report of the Seniority Committee. According to Mr. P.K. Prasad, this document clearly lays down that Secretaries and persons in the Secretarial Discipline can
horizontally move on to the Estate Discipline (Now Revenue Discipline) alone and in no other discipline. Mr. P.K. Prasad,learned counsel for the petitioner has further submitted that upon perusal of the order dated 19.1.1991 which is the impugned Annexure 6, it is evident that both the two Secretaries, respondents No. 8 and 9 were moved horizontally to the Legal Discipline, contrary to the aforementioned documents. However, while making the aforementioned horizontal movement, it was specifically stated that they will be on probation for a period of one year and on successful completion of the training period, they would be considered for permanent absorption in Legal Discipline in E-2 Grade after their qualifying in the written test.
7. In other words, what Mr. Prasad contends is that both these respondents were supposed to have been placed on probation for one year from 19.1.1991 to 19.1.1992. Upon successful completion of training of the probationary period they could have been considered–that means such consideration could have been made only after 19.1.1992 and that too, provided they qualified in a written test. Instead of doing so, the respondents were permanently absorbed by order dated 27.8.1993 in the E-3 Grade and were designated as Senior Law Officer in that Grade and their promotions were directed to be counted from the date they had entered in their parent cadre. According to Mr. Prasad, a Senior Law Officer’s grade in E-3 Grade and for entry into the E-3 Grade, the minimum requirement as per the Common Coal Cadre is a three years’ experience in the preceding Grade. According to Mr. Prasad, their permanent absorption in the Legal Discipline in E-2 Grade was subject to completion of one year of probationary period which could only have started on and from 19.1.1992. Three years in that Grade came to an end some time in 1995 and, therefore, they could have been considered to the Grade of Senior Law Officer only after 1995. But, instead of doing so and although the petitioner had been promoted to E-3 Grade on 29.3.1993, yet by reason of the impugned order dated 27.8.1993, these respondents were made Senior Law Officers with a stipulation that their promotion will be counted from the date on which they entered into the Grade of their parent cadre. Consequently, Mr. P.K. Prasad submits, that the impugned orders have disturbed the seniority of the petitioner as the petitioner had already entered in E-2 Grade earlier and was therefore senior to the respondents.
8. However, Mr. M.M. Banerjea, learned counsel for the respondents assisted by Mr. Indrajit Sinha has submitted that both the respondent Nos. 8 and 9 became Private Secretaries in the E-2 Grade on 21.7.1986 and while they were functioning as Law Officer, they were both promoted on horizontal movement to the E- 3 Grade on 18.8.1992 and 21.12.1992 respectively. According to him, the petitioner was promoted to the post of Legal Inspector Grade ‘A’ in the E-2 Grade on 21.8-1989 and later on he was promoted to the E-3 Grade on 29.3.1993 and therefore, the respondent Nos. 8 and 9 ranked senior to the petitioner in the E- 2 Grade. He further submits that seniority is to be reckoned from the date of appointment in the substantive Grade which, in the instant case, is E-2 Grade. Mr. M.M. Banerjea has further submitted that the respondent Nos. 8 and 9 were holding the post of Private Secretaries in the E-2 Grade and were transferred on horizontal movement as per Clauses 12.2 and 12.3 of Chapter 12 of Common Coal Cadre. Clauses 12.2 and 12.3 of Chapter 12 reads as follows :
“12.2 If inter-disciplinary movement is envisaged on a permanent basis due to lack of adequate personnel in a particular cadre/discipline, executives may be drawn from other disciplines horizontally only on obtaining applications through internal notification within the company. In the event of such induction at levels above E-5 or when adequate number of persons are not available within the company in case of officers upto E-5, inter-company notification should be issued. Selection from amongst the applicants shall be made on the basis of qualifications, type of experience and aptitude for the new discipline. In such cases, the officers selected for the new discipline may be kept on probation for a period of one year before their permanent absorption in the new discipline.
12.3 During the probationary period referred to in para 12.2 above officers will continue to be borne on their parent cadre and would be eligible for promotion in that cadre as per rules. On permanent absorption in the new discipline, the officers will be entitled to be considered for promotion only in the new discipline. Their service in the new cadre for the purpose of determination of seniority and eligibility will count from the date on which they entered their grade in parent cadre.”
9. According to him, in the light of the provisions contained in Clause 12.3, the respondent Nos. 8 and 9 have been correctly absorbed in the Legal Discipline and they were promoted to the E-3 Grade against Secretarial Cadre on 18.8.1992 and 21.12.1992 respectively as they were maintaining lien in the Secretarial Cadre while functioning as Law Officers. At paragraph 10 of the counter affidavit, it has further been submitted that both respondent Nos. 8 and 9 were already working in the E-2 Grade as Private Secretaries on 21.7.1986 and therefore in the E-2 Grade they were senior to the petitioner and therefore, in any event, they must be deemed to have completed the period of three years, some time in 1989 and therefore were fully eligible for promotion to the E-3 Grade.
10. From the arguments of Mr. P.K. Prasad and also of the learned counsels for the respondents it is no doubt clear, that as per Clause 12.2 there could be a inter-disciplinary movement on a permanent basis and that executives can be drawn from other discipline horizontally only on obtaining applications through internal notifications within the Company. Mr. M.M. Banerjea is also right to the effect that the respondent Nos. 8 and 9 would rank senior to the petitioner because both entered in the E-2 Grade on 21.7.1986, whereas the petitioner entered the said Grade by Annexure 1 on 28.10.1989. Seniority cannot be counted from the date of entry in a particular discipline. It has always to be counted from the date of appointment in a substantive capacity. At paragraph 10 of the counter affidavit, the respondent Nos. 4 to 7 have stated that the respondent Nos. 8 and 9 were already working in the E-2 Grade on 21.7.1986. This statement at paragraph 10 has been dealt with by the petitioner in his reply to the counter affidavit. The petitioner has not said anything with regard to the statement made in paragraph 10, i.e., to the effect that both respondent Nos. 8 and 9 were already working in the E-2 Grade on 21.7.1986. Moreover, the Minutes of the Grievance Committee which was held pursuant to the earlier order passed by this Court and which has been brought on record by Annexure ‘A’ appended to the counter affidavit also clearly reveals the correct position to the effect that the respondent Nos. 8 and 9 were senior to the petitioner in the E-2 Grade.
11. Thus, to the extent, i.e., the respondent Nos. 8 and 9 being senior to the petitioner at E-2 Grade cannot be doubted, but whether the respondent Nos. 8 and 9 who were in the Secretarial Discipline could have been transferred or promoted in the Legal Discipline or whether their horizontal movement could have only been confined to the Estate (Revenue) Discipline becomes the crucial question that has to be decided in this writ application. It is true that Clause 12.2 appended in Chapter 12 of the Common Coal Cadre lays down and indicates inter-disciplinary movement on permanent basis but this inter-disciplinary movement is subject to the following two conditions :
(a) There must be a lack of adequate personnel in the cadre/discipline to where movement will take place; and
(b) Such inter-discipline movement must be only after applications are obtained through internal notification within the Company.
12. In the instant case, there is nothing to suggest that there was lack of adequate personnel in the Legal Discipline for which it became necessary to inter-departmental-ly move the respondent Nos. 8 and 9 on horizontal pattern to the legal discipline. There is also nothing on record to prove that such horizontal movement was made after applications were obtained through internal notifications within the Company.
13. This apart, there is also no explanation forthcoming in reply to the specific point raised by the petitioner to the effect that persons employed in the Secretarial Discipline could only have been moved/ promoted/transferred to the Estate Discipline (Now Revenue Discipline). In fact at paragraphs 17 to 20, the petitioner has (specifically stated that there could be movement of Secretarial Personnel only to the Estate Discipline (Now Revenue Discipline). But in reply to the aforementioned paragraphs 17 to 21, the respondents have merely stated that besides clause 4.10.7 there is also Chapter 12 of the Common Coal Cadre. Chapter 4 of the Common Coal Cadre is a provision that deals with the general procedure to be followed in relation to inter-disciplinary movement, whereas Annexure 4 which is the Office Memorandum in terms of para 4.10.7 of the Common Coal Cadre specifically provides that there can be horizontal movement in the Secretarial Discipline only to the Estate Discipline (Now Revenue Discipline). In that view of the matter, the answer given by the respondents at paragraphs 16 to 19 of the counter affidavit are not acceptable to this Court and it is held that when specific provision was made in relation to the horizontal movement of persons in the Secretarial Discipline, vide Annexure 4, i.e., Office Memorandum issued by the Coal India Limited on 6.11.1984, then the same would override the principles of general procedure laid down in Chapter 12. Additionally if the respondents are taking the plea that they have passed the orders strictly as per clauses 12.2 and 12.3 of Chapter 12 of the Common Coal Cadre then there is no reason to explain as to why they should not have adhered to the Office Memorandum dated 6.11.1984 as contained in Annexure 4. 14. For the reasons stated aforesaid, therefore, the impugned orders cannot be sustained and they are accordingly quashed and the matter is remanded to the respondents to pass a fresh order in accordance with law after taking into consideration the provisions which have been brought on record in this writ application, and especially those at Annexure 3 and 4.
Writ application stands disposed off. No order as to costs.