Page No.# 1/15 GAHC010006562012 2025:GAU-AS:7713 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3204/2012 DIPAK KUMAR SAIKIA S/O- LT. PADMA KANTA SAIKIA, JAYANTA NAGAR, NOONMATI, GUWAHATI. VERSUS THE INDIAN OIL CORPORATION LTD. and 8 ORS. REP. BY THE CHAIRMAN, INDIAN OIL CORPORATION LTD., CORPORATE OFFICE PLOT NO. 3079/3, SADIQ NAGAR, J.B. TILO MARG, NEW DELHI- 110049. 2:THE DIRECTOR REFINERY INDIAN OIL CORPORATION LTD. SCOPE COMPLEX CORE 20 7 INDUSTRIAL AREA LODHI ROAD NEW DELHI- 110003. 3:THE EXECUTIVE DIRECTOR INDIAN OIL CORPORATION LTD. GUWAHATI REFINARY NOONMATI GHY- 20. 4:THE GENERAL MANAGER HR INDIAN OIL CORPORATION LTD. GUWAHATI REFAINARY NOONMATI GHY- 20. 5:THE DY. GENERAL MANAGER HR Page No.# 2/15 INDIAN OIL CORPORATION LTD. GUWAHATI REFAINARY NOONMATI GHY- 20. 6:THE CHIEF HUMAN RESOURCE MANAGER INDIAN OIL CORPORATION LTD. GUWAHATI REFAINARY NOONMATI GHY- 20. 7:THE CHIEF FIRE and SAFETY MANAGER INDIAN OIL CORPORATION LTD. GUWAHATI REFAINARY NOONMATI GHY- 20. 8:THE SENIOR HUMAN RESOURCE MANGER INDIAN OIL CORPORATION LTD. GUWAHATI REFAINARY NOONMATI GHY- 20. 9:DILIP KUMAR BARUAH FIRE AND SAFETY OFFICER BONGAIGAON REFINERY AND PETROCHEMICALS LTD. DHALIGAON BONGAIGAON Advocate for the Petitioner : MR.R J BORDOLOI, MR.P K TALUKDAR,MR.S KATAKI Advocate for the Respondent : MR.H DAS, SC, I O C,MR.K M HALOI,MR.A K DEKA Page No.# 3/15 BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR ORDER Date : Date: 12.06.2025 Heard Mr. S. Kataki, learned counsel appearing on behalf of the petitioner. Also heard Mr. N. Deka, learned Counsel appearing for the respondent nos. 1 and 8 and Mr. K. M. Haloi, learned counsel appearing for the respondent no. 9. 2. The petitioner, by way of instituting the present proceeding has assailed the action on the part of the respondent Indian Oil Corporation Limited (IOCL) (hereinafter referred to as the Corporation) in not allowing the petitioner to appear in the interview scheduled in pursuance to the Circular dated 23.05.2012 (Annexure-14) for consideration of his case for promotion to the post of Officer in Grade ‘A’ in the Fire & Safety discipline. 3. As projected in the writ petition, the petitioner was initially appointed as a Safety Inspector Grade-IV on 24.10.1990. Thereafter, by traversing to the various grades of the service, the petitioner came to be promoted to the Fire & Safety Grade-VIII w.e.f. 01.07.2007, vide issuance of an order dated 01.08.2007. Thereafter, the respondent authorities had issued a Circular dated 23.05.2012, inviting applications from eligible workmen in Grade-VII/VIII/IX (as applicable) meeting the criterias set out therein for promotion to the post of Officers in Grade ‘A’, amongst other disciplines in the discipline of Fire & Safety. 4. The petitioner contends that he satisfied the eligibility criterias as set out in the said Circular dated 23.05.2012 and being posted in Grade-VIII of the service, he was entitled to have his case considered for promotion to the said cadre and accordingly, he submitted his application. However, the respondent authorities informed the petitioner verbally on 11.06.2012 that the case of the petitioner would not be considered for the said promotion on the ground that he was under punishment for Page No.# 4/15 “less than satisfactory” performance. The petitioner has contended that the grading “less than satisfactory” performance as obtained by an employee in his confidential reports, cannot be treated as a penalty and in this connection, has placed on reliance on a communication dated 30.11.2010, issued by the Deputy General Manager (HR) of the IOCL (Refineries Division, Guwahati Refinery), wherein, it was clarified that “less than satisfactory” rating does not amount to imposing a penalty. It is projected by the petitioner that at the relevant point of time, there was no departmental proceeding pending and/or contemplated against the petitioner and accordingly, there existed no bar in considering the case of the petitioner in the selection process so held in pursuance to the Circular dated 23.05.2012. The petitioner being deprived of an opportunity to have his case considered for promotion to the Grade ‘A’ and; such a denial being projected to be in violation of the policy of the Corporation in place, the petitioner has instituted the present writ petition. 5. Mr. S. Kataki, learned counsel appearing on behalf of the petitioner, by reiterating the above facts has submitted that the petitioner w.e.f. 01.07.2017 had figured in Grade-VIII of the Fire & Safety discipline and accordingly, he had submitted his application in pursuance to the Circular dated 23.05.2012. It is submitted that the criterias as mentioned therein, fulfillment of which was mandated for an intending applicant to submit his applications, were fulfilled by the petitioner. However, he was not called for the interview. Mr. Kataki has submitted that the respondent Corporation in the affidavit filed by it in the present proceeding has taken a plea that in terms of the Memorandum of Settlement (MOS) dated 05.11.1992, entered under Section 12 (3) of the Industrial Disputes Act, 1947, it was projected that as per Clause-4 therein, employees who are in a Single cadre position was not eligible for being considered for promotion to the next higher grades. The said stand was thereafter, contended to have been reversed by the respondent Corporation by filing an subsequent affidavit, wherein, it was contended that in view of recording of unsatisfactory performance of service in the summary appraisal of the petitioner in his confidential reports for the Page No.# 5/15 year 2019, it was held that the petitioner was not eligible for being called for the interview. In this connection, the respondents had placed reliance on Clause 1(h) of the MOS dated 05.11.1992, which goes to stipulate that in the event of “less than satisfactory” confidential report, disciplinary action or any vigilance case in respect of an employee, the eligibility for promotion of such employee will be governed as per the existing norms of the Corporation in this regard. 6. Mr. Kataki, learned counsel by referring to the MOS arrived at on 06.10.2001 and the norms set out therein for selection of Workman to officer Grade ‘A’, has submitted that therein, marks assigned for confidential report is only one of the factor out of the various factors, weightage for which was assigned for selection as officer Grade ‘A’. Mr. Kataki has further submitted that the denial of an opportunity to the petitioner for having his case considered for promotion to officer Grade ‘A’ on the two grounds assigned by the respondent authorities i.e., the purported bar under the provisions of the MOS dated 05.11.1992 to the effect that persons figuring in a single cadre position cannot be held to be eligible for further promotion to the next higher grades and also the denial on the ground of assignment of “less than satisfactory” grading in the ACR of the petitioner for the year 2009 would not be sustainable; and accordingly, a direction is called upon to be issued by this Court to the respondent authorities for having the case of the petitioner considered for promotion w.e.f. the date persons were so considered for promotion in pursuance to the Circular dated 23.05.2012. 7. Per contra, Mr. N. Deka, learned counsel appearing for the respondent nos. 1 & 8 has submitted that the petitioner was held to be not eligible for consideration for promotion to officer Grade ‘A’ on the ground that the petitioner was holding a single cadre position and accordingly, he was not eligible from the category of non-officer to officer Grade ‘A’. It is further submitted that the MOS dated 05.11.1992 provides for a Cluster based promotion policy and various service grades were divided into 3(three) Clusters. Clause 1 (b) of the aforesaid MOS dated 05.11.1992 states that single cadre Page No.# 6/15 positions are those indicated in Annexure-3 thereof and the post of Safety Inspector being one of such single cadre position, the petitioner was held to be not eligible for promotion in terms of the MOS dated 05.11.1992. 8. Mr. Deka, learned counsel has, however, submitted that the said provisions with regard to non-eligibility of an incumbent in a Single cadre position for being considered for promotion to the next higher post was altered in the year 2015, in view of a fresh MOS arrived at in the matter. Mr. Deka has submitted that even if the petitioner is held to be entitled to be so considered in terms of the Circular dated 23.05.2012, the criteria/weightage assigned to various factors and the marking system for promotion from non-officer to officer Grade ‘A’ category, as provided in the provisions of the MOS 05.11.1992 was amended by a further MOS dated 06.10.2001. He contends that in terms of the provisions of the said amended provisions, weightage was assigned to various factors for selection as officer Grade ‘A’. One of the factors, for which, marks have been allotted relates to the confidential report for which 40 marks were so assigned. It is submitted that the consideration for promotion in terms of the Circular dated 23.05.2012, pertains to the year 2012 and accordingly, it being mandated that confidential reports for the preceeding 3(three) years were required to be taken into consideration. The confidential reports of the petitioner for the year 2009, 2010 & 2011 would be relevant. It is contended that the petitioner was graded as “Unsatisfactory” in the year 2009, “Satisfactory” in the year 2010 and “Outstanding” in the year 2011. Accordingly, by applying the marks so assigned under the provisions of Clause 1.1.2 of the MOS dated 06.10.2001; the petitioner would score 22.5 marks against the factor confidential reports. However, it is submitted that the policy of the Corporation being that in the event an employee gets an “Unsatisfactory” confidential report; he/she would not be eligible for consideration for promotion inasmuch as, it is the policy of the Corporation as set out in the personal manual for IOCL employees that employees would be eligible for consideration for promotion within the same grade/cadre/discipline on completion of the prescribed period and attainment of Page No.# 7/15 satisfactory standards in conduct and performance. Accordingly, he submits that on account of the fact that the petitioner had held a single cadre position, his further movement to officer Grade ‘A’ was not permissible. Further, it is submitted that on account of the “Unsatisfactory” grading existing in the confidential report of the petitioner for the year 2009, he is also to be held to be ineligible for being considered against the vacancy arising in the year 2012. Mr. Deka, learned counsel representing the respondent nos. 1 & 8, further submits that the petitioner had failed to achieve the minimum of 25 marks prescribed against the factor ‘confidential reports’, inasmuch as, for the year 2009, he was awarded 0(zero) marks. In the above premise, Mr. Deka submits that the petitioner has failed to make out a prima facie case, requiring the interference of this Court in the matter. 9. I have heard the learned counsel appearing for the parties and also perused the materials placed on record. 10. The petitioner was promoted as Fire & Safety Operator Grade-VIII w.e.f. 01.07.2007. The next promotional avenue available to the petitioner is the post figuring in the officer Grade ‘A’. A vacancy had arisen in the said officer Grade ‘A’ for the discipline Fire & Safety and accordingly, a Circular dated 23.05.2012 came to be issued in the matter. In the said circular, while inviting applications from eligible Workmen in the feeder cadres, such application was also invited for the discipline Fire & Safety. 11. A perusal of the said circular, would go to reveal that the eligibility criteria as set out therein, mandated that the intending applicant should have completed minimum of 4(four) years of service in Grade-VII/VIII (as applicable, as of 30.06.2012). Further, it was provided that the employee concerned should not be undergoing any punishment. The petitioner herein having been promoted to Grade ‘A’ in 2007, had completed more than 4 years of service in Grade-VIII as on 30.06.2012. Further, neither any departmental proceeding was pending against the petitioner and/or Page No.# 8/15 contemplated against him nor, he was imposed with any kind of penalty, which was in currency during the period the circular dated 23.05.2012 was issued. 12. The respondent authorities by way of filing an affidavit on 21.08.2012 raised a contention to the effect that his “less than satisfactory” grading had no connection with the non-consideration of the case of the petitioner for promotion. It was projected therein that the policy of promotion being followed in the establishment of the Corporation is a Cluster based promotion policy, which is again the result of a tripartite agreement entered into between the management and the Workers Union in presence of the Regional Labour Commissioner, Central. The cadres of the non-officer in the Guwahati Refinery were contended therein, to be initially divided into 8(eight) salary grades, by means of a MOS dated 05.11.1992. Subsequently, the number of salary grades came to be increased to IX by a MOS dated 22.02.2012. In terms of the hierarchy of the service maintained, Grade-I is the lowest grade and the Grade-IX is the highest of the salary grades. These IX salary grades are further grouped into 3 Clusters. Cluster-A consisting of Grades-I, II & III; Cluster-B comprising of Grades-IV & V and Cluster-C comprising of Grades-IV, VII, VIII & IX (Technical & Non-technical). In addition to the said salary grades, it was projected in the said affidavit that there were also single cadre positions which were enumerated in Annexure-3 of the MOS dated 05.11.1992; and the post of Safety Inspector i.e. the post held by the petitioner formed one of such single cadre post. It was also contended that the officer Grade ‘A’ is the lowest grade of officers and those from Grades-VII/VIII & IX i.e. non-officers are promoted to the various posts of officer Grade ‘A’. 13. The said affidavit also goes to contend that in terms of the MOS dated 05.11.1992, more particularly; Clause-4 thereof, those employees who are in a single cadre position as mentioned in the Annexure-3 will receive promotions within the Cluster as per the policy for promotion within the Cluster mentioned at Clause-2 of the said MOS. It was further contended that in terms of Clause-4 (b) employees in single Page No.# 9/15 cadre positions and who reached the higher salary grades within Clusters-A & B will be given the next higher salary/grade as special grade, on completion of 8(eight) years of service in the officer Grade ‘A’, such employees would not be brought under the purview of the policy for promotion within the Cluster mentioned at Clause-2 of the said category. Further, it was projected that even in the further MOS dated 02.08.1996 and 06.10.2001, the provisions with regard to the promotion of employees in single cadre positions to the officer Grade ‘A’ category remained unchanged. Accordingly, it was projected that the petitioner holding a single cadre position, his case was not mandated to be so considered for promotion to the next higher grades. 14. The said stand taken by the respondent authorities was further clarified by way of filing an additional affidavit by the Corporation on 20.12.2023, wherein by referring to a MOS arrived at on 21.07.2015 between the management of the Corporation and the recognized Unions of the Refinery Divisions, it was contended that all single cadre positions were held to have ceased to exist and all workmen in single cadre positions were held to be eligible for parallel channel promotion as stagnation relief and matriculates and above, would be eligible for placement on selection to higher grades. Accordingly, it was held that after the MOS dated 21.07.2015, the petitioner had become eligible for being considered for promotion to the post figuring in the officer Grade ‘A’ in the Fire & Safety Department. Accordingly, a communication dated 23.07.2017, highlighting the said issue was also stated to have been issued to the petitioner herein. 15. The respondent Corporation without prejudice to the stand taken by them in their earlier affidavits had also filed an additional affidavit on 09.05.2024, wherein, it was contended that the petitioner’s performance in the year 2009 being graded as “unsatisfactory” he was held to be ineligible to be considered for promotion to the officer Grade ‘A’ against the vacancy arisen in the year 2012, inasmuch as, the confidential reports that would now be required for being considered also would Page No.# 10/15 include the confidential report of 2009. Accordingly, it is submitted that on both counts, the petitioner was not eligible. 16. This Court, at the outset, would consider the reasons as advanced by the respondents of the petitioner not being eligible to be considered for promotion to Grade ‘A’ service on account of holding a single cadre post, in view of the stipulations stated to have been incorporated in the MOS dated 05.11.1992. 17. The relevant Clause in the said MOS dated 05.11.1992 in this connection is the provisions of Clause-4, the same being relevant are extracted herein below: - “4. Promotions for Single Cadre Positions: (a) Employees who are in the Single Cadre Positions as mentioned in Annexure-III will receive promotions within the Cluster, as per the policy for promotions within the Cluster mentioned at item 2 above. (b) Those employees in Single Cadre Positions and who reach the highest Salary- Grade within Cluster ‘A’ and ‘B’ will be given the next higher salary-grade as Special Grade (S.G.) on completion of 8 years of service in the existing grade. Such employees will not be governed by the policy for promotions within the Cluster mentioned at item 2 above.” 18. Before examining the provisions of Clause-4 of the MOS dated 05.11.1992, it would be relevant to note that the petitioner had held the post of Fire & Safety Inspector Grade-VII prior to his promotion as Fire & Safety Operator Grade-VIII. Annexure-3 of the said MOS dated 05.11.1992, places the post of Fire & Safety Inspector in Cluster-C. The petitioner was promoted from salary grades-VI to VII and from salary grades-VII to VIII under Cluster-C and had continued to remain in the Grade-VIII stage at the time of issuance of the Circular dated 23.05.2012. 19. A perusal of the provisions of Clause-4 of the said MOS dated 05.11.1992, would go to reveal that the same pertains only to Cluster-‘A’ & ‘B’ and there is no reference made therein to a single cadre positions forming part of Cluster-‘C’. The bar, if any, so Page No.# 11/15 existing with regard to the promotion of employees in single cadre positions to officer Grade ‘A’ has to be so understood to have been limited to the employees figuring in Cluster-‘A’ and ‘B’ and not Cluster-‘C’. In this connection, it is relevant to note the provisions of Clause-2 (d), which mandates that wherever salary Grade-VIII is not in existence in a cadre at present, the same Grade will be provided so as to form Cluster ‘C’ comprising of salary-Grade VI, VII & VIII in all cadres. However, while effecting promotions from non-officers category to officer category, wherever salary-Grade VIII has been provided as mentioned above in a cadre, all the eligible employee in Salary- Grades VII & VIII will be considered together. The petitioner herein, admittedly, having been provided a promotion to the Grade-VIII of the Fire & Safety discipline, in terms of the provisions of Clause-2 (d), he would be eligible for being considered for promotion to the Grade ‘A’ service in accordance with the provisions of Clause-2(d) of the MOS dated 05.11.1992. 20. On a reading of the provisions of Clause-4 of the MOS dated 05.11.1992, in the light of the provisions of Clause-2(d), it would be clear that with regard to employees placed in Cluster-‘C’, all such employees placed at salary Grade-VIII therein, would be entitled to be considered for promotion to the next higher grade of officer Grade ‘A’. Accordingly, the petitioner is to be held to have been eligible for consideration of his case for promotion to officer Grade ‘A’. This said view is further fortified from the promotion effected in the case of the respondent no. 9 herein, who was so considered and promoted against a post in the Grade ‘A’ service against Fire & Safety discipline. Consequently, the said reasoning advanced by the respondents that the petitioner who was projected to hold a single cadre post, was not eligible for promotion to the cadre of officer Grade Grade ‘A’ would not warrant acceptance by this Court. 22. The above discussion would now bring this Court to consider the subsequent reason assigned by the respondents that the petitioner was ineligible for being considered for promotion to the post figuring in officer Grade ‘A’ on account of his Page No.# 12/15 confidential reports for the year 2009, being graded as “unsatisfactory”. The manner in which the consideration for promotion to the officer Grade ‘A’ cadre would be so done, is provided for under the provisions of the MOS dated 06.10.2001. As contended at the bar, it was the provisions of the MOS dated 06.10.2001 that was holding the field when the circular dated 23.05.2012 came to be so issued. 23. In terms of the said MOS, the norms for selection of Workmen to officer Grade ‘A’ cadre was set out. Clause-1.1.1 lays down the eligibility for such promotion. Clause- 1.1.2 lays down the weightage assigned to various factors for selection as officer Grade ‘A’. The said provisions of Clause-1.1.2 being relevant for the adjudication of the issue arising in the present proceeding, the same is extracted herein below: - “1.1.2 WEIGHTAGE ASSIGNED TO VARIOUS FACTORS FOR SELECTION AS OFFICER GRADE ‘A’. I. Seniority Marks: 30 (5 marks for every completed years of service and maximum of 30 marks) II. CR Marks: 40 Outstanding: 40 Above Satisfactory: 35 Satisfactory: 25 (Average of the last 3 years rating shall be considered as existing) III. Personal Interaction/Knowledge Assessment: 10 IV. Qualification Marks: 20.” 24. A perusal of the various factors set out under the provisions of Clause-1.1.2 and the marks assigned thereto, would go to reveal that the same are the parameters for evaluation of the suitability of the candidate concerned. A perusal of the said provisions does not reveal of any bar being incorporated therein towards denying an employee with an “unsatisfactory” confidential report to be not eligible to participate in the selection process. The said provisions only provide that no marks would be assigned to an employee who has been graded with “unsatisfactory” remark in his confidential report. Further, the provisions also do not mandate achieving of any cut- Page No.# 13/15 off marks for being eligible for consideration for promotion involved. 25. As concluded herein above, the provisions of Clause-1.1.2 of the MOS dated 16.10.2001, being the norms for selection of Workmen to officer Grade ‘A’, the same would be so required to be so applied by the constituted selection committee; and there admittedly being no bar to consider a person also having one of his confidential report graded as “Unsatisfactory”, in the selection process, this Court is of the considered view that the respondent authorities had illegally denied the petitioner an opportunity to have his case considered for promotion to the post figuring in officer Grade ‘A’ in pursuance to the circular dated 23.05.2012. 26. It is a settled position of law that right to be considered for promotion in public employment is a fundamental right, while the right to actual promotion itself is not. Right to be considered for promotion incorporates in itself the right of a due and fair consideration. As noticed herein above, the respondent no. 9 was promoted to the post of officer Grade ‘A’ cadre in the Fire & Safety discipline, on his selection, in pursuance to the circular dated 23.05.2012. 27. This Court, during the deliberations had received materials from the learned counsel for the parties to the effect that the respondent no. 9 had secured 78.33 marks in the selection. A perusal of the provisions of Clause-1.1.2 would go to reveal that the factors set out therein, more particularly; the Seniority, Confidential Reports, Educational qualification are all fixed parameters and it is only the Personal interaction/Knowledge assessment for which 10 marks has been so allotted, that is not a fixed parameter. The marking against Personal interaction/Knowledge assessment has to be so awarded by the Selection Committee upon the employee appearing before it and after having an interaction with him. 28. With regard to the fixed parameters, it is found that the petitioner had secured 72.5 marks, he having not been permitted to appear in the Personal interaction, the marks he would have scored under the factor Personal interaction/Knowledge Page No.# 14/15 assessment cannot be provided for. 29. Having drawn the above conclusions and rejected the reasons advanced by the respondents towards denying to the petitioner an opportunity to have his case considered for promotion to the officer Grade ‘A’ cadre in pursuance to the circular dated 23.05.2012, this Court is of the considered view that on account of such denial, the fundamental rights existing of the petitioner in this connection, came to be violated. Further, it is to be noted that there was no delay on the part of the petitioner in approaching this Court in ventilating his grievances in this connection. 30. In view of the above discussions, this Court is of the considered view that the petitioner is entitled to have his case considered for promotion to Grade ‘A’ cadre against the discipline Fire & Safety in terms of the circular dated 23.05.2012. Accordingly, it is directed a Selection Committee in terms of the policy in place in this connection of the Corporation be constituted and the petitioner be permitted to appear before it. 31. On the petitioner being interviewed by the said Committee and marks been assigned to him, the said marks be added to the marks that the petitioner stands to secure for the fixed parameters. Thereafter, in the event if it is found that the petitioner has secured more or similar marks like that of the respondent no. 9, herein, he be promoted to the post of officer Grade ‘A’. 32. Considering the fact that the selection process was of 2012 and the respondent no. 9 was promoted proximate thereto, this Court at this stage would not proceed to disturb the promotion granted to the respondent no. 9. However, it is provided that in the event the petitioner is found to have secured the requisite marks for promotion upon consideration of his case in terms of the conclusions drawn herein above by this Court, he be promoted by creating a supernumerary post. The petitioner shall be so promoted w.e.f. the date the respondent no. 9 was so promoted. However, the petitioner on his such promotion and the same being given a retrospective effect Page No.# 15/15 would only be entitled to notional benefits of pay, till the date of his actual assumption of charge against the post of officer Grade ‘A’. The seniority of the petitioner in the post of officer Grade ‘A’, on his promotion, shall be so deemed from the date the respondent no. 9 was so promoted. 33. It is further provided that in the event the respondent no. 9 has been granted further promotion, the case of the petitioner shall also be considered for such promotion w.e.f. the date the respondent no. 9 was so promoted with all consequential reliefs of pay and seniority. 34. The respondent Corporation would now undertake the exercise for compliance of the directions passed herein above by this Court and conclude the same within a period of 2(two) months from the date of receipt of a certified copy of this order. 35. With the above observations and directions, the present writ petition stands disposed of. JUDGE Comparing Assistant