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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, B.P. COLABAWALLA, JJ.
Dwarika Prasad & Others – Petitioners
Versus
Oil & Natural Gas Corporation Limited & Others – Respondents
Writ Petition Nos. 543 of 2008, 2490 of 2009, 1359, 1360 of 2010
Decided On : 22-09-2017
The writ petition was filed by the petitioner, a citizen of India belonging to the Scheduled Caste, challenging his repeated super cession in the matter of promotion from the post of Deputy General Manager (E-6 level) to the post of General Manager (E-7 level) in the Oil and Natural Gas Corporation Limited (ONGC). The petitioner alleged that the modified recruitment and promotion regulations, 1980 (MRPR) and the criteria for promotion laid down therein were arbitrary and illegal, and that the promotions were granted retrospectively from 01.01.2006 and 01.01.2007.
Fact of the Case:
The petitioner was an employee of ONGC and at the relevant time, was working as Deputy General Manager (Reservoir) at E-6 level. He had been promoted from time to time to higher posts and had received Awards and letters of appreciation from his superiors. However, he was not promoted to the post of General Manager (E-7 level) while officers junior to him and clearly outside the zone of consideration, were promoted. The petitioner made a detailed representation dated 16th March, 2005 to the 2nd Respondent and pointed out provisions of the MRPR and the various Government instructions which ought to have been followed. According to the petitioner, he was called for a meeting and was informed at the meeting, which he attended along with other representatives for promotions to E-7 Level, that it has almost been finalized by the Executive Committee and that the Director (HR)/Respondent No.3 has desired that Respondent No.4 should obtain from the petitioner an undertaking to withdraw the petition and tender an apology. The petitioner expressed his inability to give an unconditional undertaking. Finally, Respondent No.4 agreed to accept the undertaking from the petitioner to the effect that if the Management of Respondent No.1 favourably considers the case of the petitioner's promotion to the post of General Manager (E-7 Level), he would withdraw the petition. After referring to the mandatory policy instructions of the Government of India contained in the office memorandum dated 15.05.1989 which interalia laid down that while modifying the Recruitment Rules, it should be ensured that interest of SC/ST candidates is not adversely affected, the petitioner alleged that the Government of India instructions were disobeyed. The petitioner then referred to the criteria followed by the Departmental Promotion Committee (DPC) for promotions to the E-7 level w.e.f. 01.01.2004/01.01.2005. The petitioner stated that for the years 2006 and 2007, the purported criteria remained the same as was applied for the years 20022003 and 20042005, but the ratings of the Performance Appraisal Report (PAR) were revised. After setting out this revision in paragraph 21 of the petition, it is alleged that the criteria followed for the years 2006 and 2007 was also not in accordance with the MRPR. The petitioner also faults the constitution of the Departmental Promotion Committee for the year 20062007. He complains that this constitution was not in accordance with the provisions of Regulation 7(1) of the MRPR, so also, with the office order dated 30.08.1989 inasmuch as no member of the SC/ST community was nominated as a part of the Departmental Promotion Committee (DPC). The constitution of the Departmental Promotion Committee for the year 2006-2007 was also contrary to the provisions of Rule 4 of the ONGC Limited Service Rules, 1995 r/w paragraph 20 of the Presidential Directives dated 25.04.1991 issued by the Government of India which are quoted in paragraph 24 of the petition. Essentially, therefore, the petitioner is pointing out the defects in the constitution of the Departmental Promotion Committee and further non adherence to the criteria for promotion to the post of General Manager (E-7 Level) by the Departmental Promotion Committee.
Finding of the Court:
The court found that the petitioner was aware of the modified criteria and participated in the promotion process on and from 2002 onwards which was without interview and based on the modified criteria. The court also found that the modified criteria was duly discussed and deliberated upon by the Executive Committee and its recommendations and suggestions were approved by the Board. The court further found that the criteria applied for promotions and approvals to the same by the Board were not arbitrary and that the constitution of the DPC was in accordance with the Regulations. The court also found that the petitioner's grievance that the modified criteria was introduced by the back door was not supported by the evidence.
Issues: 1. Whether the modified recruitment and promotion regulations, 1980 (MRPR) and the criteria for promotion laid down therein were arbitrary and illegal? 2. Whether the promotions were granted retrospectively from 01.01.2006 and 01.01.2007? 3. Whether the constitution of the Departmental Promotion Committee for the year 2006-2007 was in accordance with the provisions of Regulation 7(1) of the MRPR, the office order dated 30.08.1989, Rule 4 of the ONGC Limited Service Rules, 1995 r/w paragraph 20 of the Presidential Directives dated 25.04.1991 issued by the Government of India?
Ratio Decidendi: 1. The court held that the modified criteria for promotion was duly discussed and deliberated upon by the Executive Committee and its recommendations and suggestions were approved by the Board. The court further held that the criteria applied for promotions and approvals to the same by the Board were not arbitrary and that the constitution of the DPC was in accordance with the Regulations. 2. The court held that the petitioner's grievance that the modified criteria was introduced by the back door was not supported by the evidence. 3. The court held that the constitution of the Departmental Promotion Committee for the year 2006-2007 was in accordance with the provisions of Regulation 7(1) of the MRPR, the office order dated 30.08.1989, Rule 4 of the ONGC Limited Service Rules, 1995 r/w paragraph 20 of the Presidential Directives dated 25.04.1991 issued by the Government of India.
Final Decision: The writ petition was dismissed.
S.C. Dharmadhikari, J.
1. These Writ Petitions involve a common question of fact and law. They were heard together and are disposed of by this common judgment.
2. Since arguments were extensively canvassed in Writ Petition No.543/2008, we take the facts from the paper book of this petition.
3. The Petitioner is a citizen of India. He belongs to Scheduled Caste (“Jatav” community of the State of Uttar Pradesh). The first Respondent before us is the Oil and Natural Gas Corporation Limited and Respondent Nos.2, 3 and 4 are it's senior officials such as the Chairman & Managing Director, the Director (Human Resources) and the Group General Manager (HR & ER). The Petitioner was an employee of the first Respondent and at the relevant time, was working as Deputy General Manager (Reservoir) at E-6 level.
4. The Petitioner seeks to challenge his repeated super cession in the matter of promotion from the post of the Deputy General Manager (E-6 level) to the post of General Manager (E-7 level). The Petitioner invites our attention to the Modified Recruitment and Promotion Regulations, 1980 (for short “the Regulations”) and the criteria for promotion laid down therein.
5. It is stated that the petitioner joined the first respondent on 01.02.1978 in the post of Assistant Executive Engineer (Reservoir) at level E-1. The petitioner has since maintained a spotlessly clean service record and as a result thereof, he has been promoted from time to time to the higher posts. In the past the petitioner was always promoted when eligible and when promotion was due. The petitioner has rendered meritorious service for almost 30 years and has never received a single memo. The petitioner has received Awards and letters of appreciation from his superiors from time to time. The performance appraisal of the petitioner is free of any adverse remarks.
6. It is then stated by the Petitioner that he was last promoted to the post of Deputy General Manager (Reservoir) being Level E-6 on 01.01.1998. According to Regulation 23 of the said Regulations, he became eligible for promotion to the post of General Manager (Level E-7) upon completion of three years experience in the post of the Deputy General Manager (Level E-6) which is the feeder post for promotion to the post of General Manager (Level E-7).
7. According to the Petitioner, the promotions to the E7 level posts which were supposed to have been granted on 01.01.2001 were ordered as late as in April 2003. Thereafter, the respondents started considering promotions for two calendar years at a time instead of one calendar year as required. Thus, promotions which were due on 1.1.2002 and 1.1.2003 were declared as late as in April 2004 and similarly, promotions which were due on 1.1.2004 and 1.1.2005 were declared as late as in May 2005. It is averred by the petitioner that in contravention of directives issued by the Government of India all the aforesaid promotions were issued with retrospective effect. The said Government directive has been incorporated in the said Regulations.
8. It is stated that the petitioner who was to be promoted w.e.f. 01.01.2001 and who was within the zone of consideration in all aforesaid years, was continuously superceded. The employees junior to the petitioner and far outside the zone of consideration, were preferred and promoted to the E-7 level in contravention of the said Regulations and the Government instructions. Moreover, no reasons whatsoever were given as required by the said Regulations to the petitioner explaining why the petitioner was being repeatedly ignored for promotion to the post of E-7 level. The petitioner made a detailed representation dated 16th March, 2005 to the 2nd Respondent and pointed out provisions of the said Regulations and the various Government instructions which ought to have been followed. According to the Petitioner, he requested the responde
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