Promotion reversion
Raju Pandey
(Querist) 19 November 2016
This query is : Resolved
I need your valuable suggestion on the following matter :-
1. When the highest authority of my Corporation (CMD) had approved my promotion based on passing the prescribed examination, then is it open to the authority to revert me after a lapse of 5 years. (My promotion was not based on any misrepresentation or fraud.)
2. Whether the department can recover the amount paid to me despite the fact that I had shouldered higher responsibility and paid according to the post I was holding from the year 2011.
kindly advice
With regards
Raju Pandey
9443131401
pandeyrazoo@gmail.com
Raju Pandey
(Querist) 20 November 2016
I need your valuable suggestion on the following matter :-
1. When the highest authority of my Corporation (CMD) had approved my promotion based on passing the prescribed examination, then is it open to the authority to revert me after a lapse of 5 years. (My promotion was not based on any misrepresentation or fraud.)
2. Whether the department can recover the amount paid to me despite the fact that I had shouldered higher responsibility and paid according to the post I was holding from the year 2011.
kindly advice
Rajendra K Goyal
(Expert) 20 November 2016
What are the reasons of reversion?
Which authority reversed, why?
whether any disciplinary proceedings initiated and decided to the effect?
Guest
(Expert) 20 November 2016
Dear Raju Pandey,
Your query is quite short of the background history of the case.
However, for your general information, if the disciplinary authority, vested with the powers by the Board to impose major penalties, he can impose penalties, as per the Conduct, Discipline & Appeal Rules for the employees.
You may better check the provisions of the Conduct, Discipline and Appeal Rules applicable to you.
P. Venu
(Expert) 20 November 2016
From the facts furnished, the employer ought to have given you an opportunity before the reversion.
Sudhir Kumar, Advocate
(Expert) 21 November 2016
Wrongful promotion can be taken back but not without issue of SCN stating full reasons and full illegality of promotion.
Has it been done?
Dr J C Vashista
(Expert) 21 November 2016
Incomplete information cannot lead to form an opinion and render FREE ADVISE.
Consult a local lawyer practicing service matters.
R.K Nanda
(Expert) 21 November 2016
contact local lawyer.
Rajendra K Goyal
(Expert) 21 November 2016
The author is still mom on background history /material facts of the query.
Raju Pandey
(Querist) 21 November 2016
BACKGROUND
I am working in Bharatiya Nabhikiya Vidyut Nigam Limited (BHAVINI), a Govt. of India Enterprise, under Department of Atomic Energy (DAE). Our Company is incorporated in the year 2003 under companies Act, 1956.
Our company has not formulated any promotion policy so far, and it is following the norms formulated by NPCIL (another company under DAE) with regard to induction and career progression of non-technical officers.
There are five Corporations (ECIL, UCIL, IREL, NPCIL & BHAVINI) under the administrative control of our Department. Out of five Corporations three corporations i.e. ECIL, UCIL & IREL are following unified promotion policy in non-technical category i.e. all the non-technical officials are being governed in the same promotion policy.
Like other DAE Corporations, NPCIL (whose promotion policy we have adopted) was also following unified promotion policy earlier. But due to demand of the NPCIL officers working on Official Language (OL) posts, NPCIL has adopted central Govt. policy for Official Language posts and other non-technical officers continued to be governed by the Corporation promotion policy. This happened in the year 2005 before my joining in BHAVINI. In this way NPCIL started following two types of Promotion policy in non-technical cadre:-
Policy -1 Name of the Policy - HQI-1002-A,
(My post is not included because OL cadre staff of NPCIL asked for Policy 2)
Policy -2 Central Govt. Promotion policy.
(It is not possible for our company to implement policy No. 2 because our company is too small.)
Hence, in my post no promotion policy was available when I joined.
I joined BHAVINI in the year 2007 as Official Language (Hindi) officer by Direct Recruitment through open competition. As described above my post was not included in HQI-1002-A adopted by BHAVINI; and another policy of NPCIL i.e. Central Secretariat policy was a postdated cheque for me.
After working many years on the same post when all of my non-technical counterparts (Senior and Junior both) promoted to the next higher grade, I sensed that there is something wrong with my promotion policy. Whenever I represented to know about my promotion policy (which is a natural right of every employee), above mentioned promotion policy of NPCIL (HQI-1002-A in which my post is not included) was shown to me. Respected sir, I was wondering how exclusion from promotion policy can become a promotion policy of someone? After working many years without any promotion policy and service condition, I was told that since NPCIL is following Central Govt. Promotion policy in my post, so I should also be given the same.
I urged that this is also one of the ways to deny promotion policy and service condition for me. No employer can offer such type of service condition to any of its employee. This was just like contract of uncertain conditions which is null and void ab initio (When our company will grow like NPCIL, we will adopt Central Secretariat policy like NPCIL). As described above my post was not included in HQI-1002-A adopted by BHAVINI; and another policy of NPCIL i.e. Central Secretariat policy was a postdated cheque for me.
In the year 2011, I had submitted written representation to my organization giving the following justification for including me in the Corporation promotion policy:-
1. NPCIL is following Central Govt. policy in my post due to the choice of their employees working in OL post and their choice should not be imposed on me.
2. Separate Official Language Cadre :- NPCIL has created Separate Official Language (OL) Cadre. By creating a separate Official Language Cadre NPCIL has provided ample opportunity of promotion to their OL Officials. Whereas, BHAVINI is a single unit corporation as of now; hence forming OL cadre is not possible in BHAVINI. In the absence of cadre post the growth of personnel in the Official Language cadre is ZERO., which is not in line with Ministry of Home Affairs, Dept. of O.L. O. M. No. 9/5/1990-OL(S) dated. 13/11/1990 and many Govt. orders and Dopt orders issued in this regard.
3. Creation of Promotional post by NPCIL
4. Other points to treat me equally in my organization :-
(i) Unified Promotion Policy: Except NPCIL, other corporations under DAE and outside DAE are following unified promotion policy. The universal acceptance of this policy clearly indicates its merit so it is appropriate to follow the unified promotion policy in BHAVINI also.
(ii) Equal existence of each Non-technical cadre: Like other corporations, in BHAVINI also, Hindi officials should be treated at par with other non-technical post and for that there is no need to merge Hindi cadre with any other Non-technical cadre including HR. Hence, Hindi cadre will be treated separately and Hindi posts will not be counted against HR posts.
(iii) Compliance of Govt. Order: Adopting the unified promotion policy in BHAVINI will lead to compliance of various Govt. order including Ministry of Home Affairs, Dept. of Official language O. M. No. 9/5/1990-OL(S) dt. 13/11/1990.
(iv) Following best HR practices: By following this practice, we are going to adopt best HR practices followed in other DAE corporations as well as all Mini Ratna, Nav Ratna and Maha Ratna Corporations.
(v) Compliance of Constitutional provisions: By providing equal status to all the Non-technical employees we will ensure the protection of constitutional right (Right to equality) provided to all the citizens of India under Article -14 of the constitution of India.
(vi) Smooth Administration: Implementation of this policy provides smooth administrative function and clarity in following various administrative rules.
Apart from the above, there are some other valid reasons to follow the unified promotion policy such as better career path for our own employees and no need of facing any charge of discrimination in front of Parliamentary Committee on Official Language.
Parliamentary Committee on Official Language, in its recommendation No. 81 has clearly stated that "All officers/staff of Official Language should be given suitable pay scales and equal opportunities of promotion should be made available to them and there should be no discrimination against them"
Considering my representation CMD BHAVINI, had constituted a committee to examine the above matter.
The committee observed the following points with regard to induction and career progression of Hindi Officer in NPCIL in relation to induction and career progression of Hindi Officer in BHAVINI.
1. As per Dopt O.M. No. AB.14017/10/86-Estt.RR dated 11th March, 1986 regarding Guidelines relating to isolated posts in Group 'A' in various Ministries/ Departments of the Government of India, Ministries/ Departments are requested to encadre isolated posts in any of the existing organized services.
2. Corporations under DAE like ECIL, IREL, UCIL where the post of Hindi Officer is being filled by direct recruitment mode, are also following unified promotion policy and the career growth of Hindi Officer in these corporations is as per the career growth of other non-technical officer.
3. Parliamentary Committee on Official Language, in its recommendation No. 81 has also stated that "All officers/staff of Official Language should be given suitable pay scales and equal opportunities of promotion should be made available to them and there should be no discrimination against them.
The Committee recorded and CMD of my company has also written in the last page of the report that "Right from his date of joining Hindi Officer is posted in HR Section. Apart from doing his regular assignment as Hindi Officer, he was given many HR responsibilities also. Presently also he is looking after many HR jobs. Hence there is greater justification to treat him at par with other non-technical officer of BHAVINI. Finally, the committee recommended that in line with the above mentioned O.M of Deptt. of Official Language, policy followed by other corporations of DAE as well as recommendation by Parliamentary Committee on Official Language, the Post of Hindi Officer may be treated at par with other non-technical post of BHAVINI.
Based on the report submitted by the Committee and with due approval of the than CMD, BHAVINI, the I was treated at par with other non-technical post and I was screened in by duly constituted screening committee for appearing in upgradation examination. I have appeared in interview and found fit by the interview committee for upgradation to the next higher grade w.e.f. 01.07.2011. I am working on the post of Manager ( SA&OL) from the last five year.
Now my management is telling that, they have not followed NPCIL (the company whose promotion policy we are following) for granting me promotion. Now they are going to issue an order telling that I should be governed by Central Govt. policy and as per the above policy my date of promotion should be revised from 01.07.2011 to 01.07.2014. I am feeling this is not correct because I joined in Corporation and not Central Govt. so I should be given Corporation promotion policy like all other non-technical officers of my Company.
My questions : Now I want to know that:-
1. How far it is justified to impose the choice of the officials of another organization on me in the pretext of following policy of another organization.
2. When the highest authority of my Corporation (CMD) had approved my promotion order based on passing the prescribed examination, then is it open to the authority to revert me after a lapse of 5 years.
3. Whether this act of my company (i.e. giving Corporation policy to all employees and Central Govt. policy only to me) is violation right to equality.
4. Is it correct to change the date of promotion after 5 years?
5. Whether the department can recover the amount paid to me despite the fact that I had shouldered higher responsibility and paid according to the post I was holding from the year 2011.
6. Offer of Appointment: - Point No. 2 of my offer of appointment issued by BHAVINI states that “All the conditions of my services will be as provided in the rules and orders in force from time to time as applicable to other employees of BHAVINI.” Whether giving me different policy which is not applicable to any of the employee of BHAVINI is violation of offer of appointment issued to me
7. Class within the class: - The entire workforce of BHAVINI can be classified into two parts (A) Technical (B) Non-technical; and they are being governed by the same set of service conditions.
In the present situation I am the only non-technical officer who is excluded from its non-technical class. Whether this is “CLASS WITHIN THE CLASS” which is against the fundamental rights provided to each citizen of India.
8. My Corporation has not given me any opportunity to present my case in front of so called committee constituted to examine my promotion case. Is it violation of principle of natural justice.
Respected Sir kindly advice and help me to come out of this problem.
With regards
Raju Pandey
9443131401
Kumar Doab
(Expert) 22 November 2016
Probably the narrative in your last post was in 1st post and it was modified.
You have already posted that you did not commit any misrepresentation/fraud..............so there is NO relation and reference of indiscipline, discipline rules, disciplinary authority etc ....
Executive decided to form a committee and duly constituted committee after examination,interview etc promoted you has duly narrated in reports that you have been shouldering higher/additional responsibilities.
Apparently it is another classical case of dumping the matter to court of law for judicial sanction.
You seem to have merits.
Meet the committee if it calls you on merits.
Although it seems that you have done your home work very well, still spend quality time with a very able counsel specializing in service matters at your location.
Kumar Doab
(Expert) 22 November 2016
If possible post weblink to:
Policy -1 Name of the Policy - HQI-1002-A,
Policy -2 Central Govt. Promotion policy.
and other docs mentioned by you.
You are at which location?
Rajendra K Goyal
(Expert) 22 November 2016
Please provide the mentioned links if possible.
Raju Pandey
(Querist) 23 November 2016
Thank you for giving me confidence that I am right.
My location is Chennai.
As advised by Shri Kumar Doab and some other hon'ble experts in this forum, I will try to contact able counsel specializing in service matters at my location.
Kumar Doab
(Expert) 23 November 2016
You can find counsels par excellence specializing in service matters at Chennai.
It is altogether field of law and a few counsels specialize in it and are well known.
Usually such matters are referred to them.
Ask around and you will come to know.
Online discussions have its own limits.
Wish you the best.
Kumar Doab
(Expert) 23 November 2016
You are welcome.
Guest
(Expert) 23 November 2016
Dear Raju,
Promotion once made on regular basis cannot be postdated without specific orders of the competent court of law in any specific court case if filed by an employee against you.
So, you may resort to take some stay order if the management has decided to change the date of promotion from 01.07.2011 to 01.07.2014.
Replies to your questions are as follows:
1. Not justified to impose the choice of the officials of another organization on the promotion policy of your organisation. Policy of another organization if proposed to be applied, the date of effect can only be from the date of passing the resolution by the Board of your company, not from retrospect date.
2. Reversion after a lapse of 5 years can be possible only if promotion was made erroneously, mostly with respect to some other colleague or on account of some court order, as proved beyond any doubt.
3. Due to autonomous status, the company is free to adopt any policy for promotion, but the effect can be given only from the date on which the resolution to that effect is passed by the Board of your company for the policy to be adopted, not with retrospect effect. Policy if to be applied on you can be for any further promotion not to effect your existing status from some back date. If that is made, as you stated that will clearly be the case of violation right to equality.
4. Absolutely not correct to change the date of promotion after 5 years?
5. The department can not recover the amount paid to you on account of your promotion and having shouldering the higher responsibility of the post.
6. The term, "from time to time" as applicable to other employees of BHAVINI, itself denotes that the rules as made effective from one time to other. Any different policy, if made applicable on you with reference to other employees of BHAVINI would definitely be in violation of offer of appointment issued to you.
7. Class within the class has no relevance.
8. Opportunity to present your case can be given to you when you are given a show cause notice for reversion, not before that. You cannot be reverted without a show cause notice. Constitution of any committee may be just to examine the possibility to implement a proposal mooted by the management. You were however free to make request to the committee to hear you, if you were in the knowledge of any such committee.
Dr J C Vashista
(Expert) 24 November 2016
Very well explained and advised by the experts, I agree and appreciate.
However, for further question(s) seek services of a local prudent lawyer practicing service matters with relevant documents/correspondence.
Rajendra K Goyal
(Expert) 24 November 2016
Agree, you should try to contact local counsel expert in service matters.
Rajendra K Goyal
(Expert) 24 November 2016
Agree, you should try to contact local counsel expert in service matters.
Raju Pandey
(Querist) 24 November 2016
I am highly indebted to Hon'ble experts and Shri P. S. Dhingra Sir for giving his valuable advice.
Kumar Doab
(Expert) 24 November 2016
Agreed with Dr.J.C.Vashista, Mr. Rajendra K Goyal and discuss in person with local counsel specializing in service matters.
Kumar Doab
(Expert) 27 November 2016
Share in this thread the opinion of your local counsel.
Avoid falling into trap of many unscrupulous elements loitering at many online portals to fleece the querists......
