ORDER :

1. Proceedings of this matter have been taken-up through video conferencing.

2. The petitioner in this writ petition seeks appropriate writ / direction commanding / directing the official respondents to consider the case of the petitioner for the promotional post of Console Operator T&S Grade-A with effect from 4-9-2008 i.e. the date on which respondents No.4 to 6 (juniors) were promoted on the post of Console Operator T&S Grade-A and also seeks all consequential benefits like seniority, pay, etc., on the said post with effect from 4-9-2008.

3. The petitioner has filed this writ petition stating inter alia that he was initially selected in South Eastern Coalfields Limited (SECL) on the post of General Mazdoor Category-I on 26-11-1986 and later-on, he was promoted on the post of Junior Data Entry Operator T&S Grade-E and lastly, he was promoted as Junior Console Operator T&S Grade-B on 30-8-2002 in accordance with the Cadre Scheme. It is the further case of the petitioner that in the year 2008, vacancies arose for the post of Programmer Assistant / Console Operator T&S Grade-A and as per the Cadre Scheme, the petitioner and respondents No.4 to 6 were eligible and their cases have been considered as per the Cadre Scheme vide Annexure P-5, page 23 of the writ petition, in the meeting of Departmental Promotion Committee (DPC) convened on 21-7-2008 on the criteria applicable i.e. merit-cum-seniority and the said Committee adopted methodology, which provides that 60 marks were kept for merit and 40 marks for seniority and 70 marks were fixed as cutoff marks for eligibility in promotion. It is also the case of the petitioner that he secured 96 marks, whereas the private respondents i.e. respondents No.4 to 6 have secured 90 marks each, but the DPC recommended the names of 7 candidates including respondents No.4 to 6 for promotion on the basis of seniority excluding the petitioner and thereby adopted the criteria of seniority-cum-merit saying go-by to the applicable criteria of merit-cum-seniority, therefore, the petitioner is deprived of the promotional post on 4-9-2008, though he was later-on promoted on 25-1-2011, but he is entitled to be considered and promoted on the post of Console Operator T&S Grade-A with effect from 4-9-2008 as his juniors – respondents No.4 to 6 were promoted on the said date and is also entitled for the promotional benefits.

4. Respondents No.1 to 3 / SECL have filed return principally stating that since the petitioner has been promoted on the post of Console Operator T&S Grade-A with effect from 25-1-2011, therefore, the writ petition has become infructuous. It has also been stated that though according to the seniority in the cadre of Junior Console Operator T&S Grade-B, the names of respondents No.4 to 6 were at serial Nos.10, 15 & 21 in the seniority list, they were kept above the petitioner who was at serial No.25. As such, non-promotion of the petitioner with effect from 4-9-2008 is in accordance with law and the petition deserves to be dismissed.

5. The private respondents No.4 to 6 have also filed return in line with the return filed by the SECL/respondents No.1 to 3.

6. Mr. Chandresh Shrivastava, learned counsel appearing for the petitioner, would submit that admittedly and undisputedly, the criteria for promotion on the promotional post of Console Operator T&S Grade-A was merit-cum-seniority and in the bench mark fixed, the petitioner secured 96 marks, but respondents No.4 to 6 have secured less marks than the petitioner, even then applying the criteria of seniority-cum-merit, they have been promoted excluding the petitioner which is per se contrary to the well settled principle in this behalf laid down by the Supreme Court in the matter of B.V. Sivaiah and others v. K. Addanki Babu and others, (1998) 6 SCC 720 followed subsequently by their Lordships of the Supreme Court in the matter of Rajendra Kumar Srivastava and others v. Samyut Kshetriya Gramin Bank and others, (2010) 1 SCC 335 and theref