@JUDGMENTTAG-ORDER
M.Y. Eqbal, J.@mdashIn this writ application the petitioners have prayed for issuance of appropriate writ directing the respondents to absorb them in the Material Management discipline from the date of their completion of one year of probation in the Material Management discipline in view of the provision in Common Coal Cadre and the circular issued by Coal India Ltd.
2. The facts of the case lie in a narrow compass.
3. Petitioners'' case is that they were promoted In the year 1994 and 1996 in E-5 Grade in the Executive Cadre. On 13.4.1998 the General Manager, Coal India Ltd. issued an internal circular inviting applications from different employees of different discipline for transfer/movement to Material Management discipline called as horizontal movement. Petitioners being fully qualified applied for horizontal transfer to Material Management discipline in pursuance to the aforesaid circular and their cases were duly recommended by the appropriate authorities. It is contended that the interview for horizontal transfer, in the Material Management discipline was held on 6.11.1998 and 29 employees belonging to Central Coalfields Limited were called for the said interview and after interview held on different dates list of selected candidates were prepared. The name of petitioner No. 1 appeared at serial No. 3 petitioner No. 2 at serial No. 1, petitioner No. 3 at serial No. 6. Petitioners were posted in the Material Management discipline on probation initially for a period of one year and their absorption in the said discipline was subject to their satisfactory performance during the period of probation. Petitioners'' case is that they have been working in the Material Management discipline till date to the satisfaction of all concerned but still they have not been absorbed in Material Management discipline by issuing formal order of absorption.
4. Respondents filed their counter-affidavit admitting that petitioners and 39 other Executives of different discipline were selected for horizontal transfer. However, during the process of selection three Executives filed writ petition before the different High Courts against the above horizontal transfer. One of the Executive Mr. Manoj Kumar Upadhyay filed writ petition before the Madhya Pradesh High Court, Jabalpur in which that Court by order dated 18.9.1998 directed that respondents may proceed with the interview process but shall not issue any appointment order until further orders of the Court. Subsequently, the Madhya Pradesh High Court modified the order to the extent that any appointment made during the pendency of the writ petition shall be subject to the final decision of the case. Another Executive filed writ application before the Calcutta High Court, which was ultimately dismissed on 6.9.2002 for non-prosecution. Another Executive Mr. P.K. Sahoo filed writ petition before the Orissa High Court in which order was passed on 31.7.2000 directing the officers who were transferred/promoted to E-3 and E-4 rank shall not be confirmed without the leave of the Court. The respondents have admitted in their counter affidavit that the Executives who were horizontally transferred to Material Management discipline will be on probation for a period of one year and their absorption will be subject to satisfactory performance during the period of probation. It is stated that due to various orders passed by Madhya Pradesh and Calcutta High Court, petitioner could not be absorbed in the discipline.
5. Mrs. Ritu Kumar, learned counsel appearing for the petitioners submitted that so far writ petition No. 3212 of 1998 pending in Madhya Pradesh High Court at Jabalpur is concerned petitioners have learnt that the matter has been admitted for final hearing and there is no interim order restraining the respondents to take final decision for absorption of the Executives who have been horizontally transferred. Learned counsel submitted that the writ petition filed in the Calcutta High Court has been dismissed on 6.9.2002. Learned counsel further submitted that so far writ petition pending in Orissa High Court the same is confined to E-3 and E-4 Grades Executives and there is no order for the officers of E-5 Grade. Learned counsel submitted that in the interim order passed by the Orissa High Court the only direction is that the officers who have been transferred/promoted to E-3 and E-4 rank shall not be confirmed without the leave of the Court.
6. Mr. A.K. Mehta, learned counsel for the respondents very fairly submitted that it is only because of the orders passed by different High Courts petitioners have not been finally absorbed in the Material Management discipline. Learned counsel submitted that the respondents are not concerned with the order passed by the Orissa High Court. It is only because of the order passed by Madhya Pradesh High Court respondents are not issuing final order of absorption.
7. As noticed above, it has not been disputed by the respondents that these petitioners along with others were selected for horizontal transfer in the Material Management discipline and pursuant to that they joined the said discipline. The posting was on probation initially for the period of one year and therefore final absorption in the said discipline was subject to their satisfactory performance during the period of probation. A copy of the office order of horizontal transfer has been annexed as Annexure 6 to the writ application. In the said office order it was mentioned that horizontal transfer was subject to final outcome of the writ petition No. 3212 of 1998 pending Madhya Pradesh High Court at Jabalpur. The writ petition No. 17883 (W) of 1998 pending in the Calcutta High Court and the writ petition No. 12888 of 1999 pending in the Orissa High Court.
8. Mr. A.K. Mehta, learned counsel for the respondents has fairly conceded that the writ petition which was filed in Calcutta High Court has already been dismissed on 6.9.2002. Learned counsel further submitted that so far the writ petition pending in Orissa High Court is concerned it will not affect the petitioners because the writ petition relates to the promotion of the Executives from E-3 to E-4 Grade. Learned counsel further submitted that only impediment Is the order passed by Madhya Pradesh High Court. In para 11 of the counter affidavit it is stated by the respondents that although by order dated 18.9,1998, Madhya Pradesh High Court directed the respondents to proceed with the interview but shall not issue appointment order. That order was however, modified by order dated 16.8.1999 to the extent that any appointment made during the pendency of the writ petition shall be subject to the final decision of the writ petition. It is, therefore, clear from the counter affidavit filed by the respondents that Madhya Pradesh High Court has not passed any order directing the respondents not to issue final order of absorption of those Executives of E-5 Grade who have been horizontally, transferred to Material Management discipline. In my considered opinion therefore there is no legal impediment in the way of the respondents to issue final order of absorption of the petitioners in the Material Management discipline. In any view of the matter even If there is such order passed by Madhya Pradesh High Court the order of final absorption that shall be issued by the respondents will be subject to the result of the writ petition.
9. For the aforesaid reasons, this writ application is allowed and the respondents are directed to issue order of absorption of the petitioners in Material Management discipline. Needless to say that in terms of order dated 10.11.1999 (Annexure-6) petitioners would be entitled to be considered for promotion in accordance with the Rules. Respondents'' shall issue final order of absorption within four weeks from the date of receipt of copy of this order.
