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2006 DIGILAW 819 (RAJ)

Power Engineers Association v. Rajasthan State Elec. Board (Now Represented by 5 Cos. )

2006-03-09

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-Petitioner is registered Trade Union Association of Junior Engineers working in five different Companies which have been impleaded as party respondents after unbundling of erstwhile Rajasthan State Electricity Board vide order dated 012.2001. 2. Instant petition has been filed basically on premise that members of its Association proceeded to join general strike of Engineers on account of which, memorandum and charge-sheet were issued to Junior Engineers (its members) and simultaneously policy decision was taken by respondent (erstwhile Board) not to consider such Engineers for promotion to the post of Assistant Engineer in terms of RSEB Service of Engineers Regulations, 1969 (“Regulations, 1969”) and to show bona fide about their such policy decision, in Para 6 of writ petition, reference has been made of certain promotions made in cases of seniors who participated in strike on account of which they were not considered for promotion to post of Executive Engineers. It has also been averred that because of their participation in the strike, they became victim of arbitrary action of respondents in not considering them for promotion and accordingly, it has been prayed for seeking direction to consider all such Junior Engineers for promotion to the post of Assistant Engineer who were eligible and within zone of consideration, without taking note of their participation in strike or pendency of disciplinary inquiry. An additional affidavit has also been filed by petitioner to show that few of Junior Engineers were not considered only because of their participation in strike in view of policy decision taken on such premise by respondent Board; and a document has been filed of one Shri B.L. Jat who has been deprived of his promotion from the date he was entitled but was promoted in February, 1996. 3. Shri Neeraj Bhatt, Counsel for petitioner contends that Junior Engineers are members of petitioner Association and they were entitled for consideration for promotion for the post of Assistant Engineer which is included in Schedule appended to Regulations, 1969 and is to be filled on the basis of seniority cum merit but because of their participation in general strike, and charge-sheeted for major punishment, albeit later on converted for minor punishment, still were deprived of their fair right of consideration and such a policy decision to deny appointment/promotion to eligible Junior Engineers on said premise is arbitrary and is in violation of Regulations, 1969. 4. 4. Respondents have filed reply to writ petition and in reply to Para 6 of writ petition, it has been denied about the polity decision ever taken not to consider any such Engineer for promotion who had participated in the strike. So far as order of promotion-reference of which has been made and to whom promotion was denied to the post of Executive Engineer is concerned, it has been averred inter-alia in the reply that Sarva Shri Manak Chand Jhanwar and Hari Singh Mahla despite participation in strike, were considered alongwith other Assistant Engineers but were not promoted since they were facing disciplinary proceedings under Regulation 7 of CCA Regulations, 1962 for major punishment. However, it has been specifically averred in the reply that all eligible Junior Engineers were considered for promotion and their participation in strike has never been taken note of while their consideration and denial to promotion. It has further been averred that contrarily selection Board after taking into consideration general performance took decision to allow selection grades to all such Junior Engineers who were issued show cause notice under Regulation 6 of CCA Regulations, 1962 on account of their participation in strike. 5. Counsel for the respondents submits that denial of promotion is an individual right on an incumbent raising an issue about his consideration despite the fact that he was eligible, or he has been superseded or found unsuitable; and thus it is individual case of incumbent whose suitability has been adjudged by the Committee and only on scrutiny of facts of a person aggrieved for his non-selection for promotion, unless makes complaint to this Court in absence whereof , an Association by making general statement in no manner can be said to be aggrieved to espouse cause of its members. 6. Counsel for respondents further contends that no reference has been made in entire writ petition with regard to such Junior Engineers who were considered but not found suitable only because of their participation in general strike and a vague statement has been made of their non-consideration without there being any such material placed on record to support their statement, and once this fact has been disputed by the respondent of taking policy decision, not to consider such Junior Engineers who participated in strike, this writ petition on this ground alone, deserves to be dismissed. 7. 7. Counsel for respondents has also brought to my notice that after this objection was raised and considered while disposing of Stay Petition No. 5176/92 in instant writ petition and this Court vacated stay order dated 14.09.1992 and thereafter Shri B.L. Jat who has filed instant writ petition being President of the Association, also filed his separate Writ Petition No. 327/93 which has been dismissed by this Court on 22.02.2006 after taking note of the fact that he has already been promoted as Assistant Engineer in the year 1996. 8. I have considered contentions of Counsel for the parties and with their assistance, examined material on record. The association has filed instant writ petition on premise that there was policy decision of respondent Board not to consider such Junior Engineers who participated in general strike; but this very factual foundation on which instant petition has been preferred, no more holds good after this fact has been disputed by the respondents in Para 6 of their reply that no such decision was ever taken by respondent Board that those who participated in general strike are not to be considered for promotion. There is no material placed on record to show as to which of Junior Engineers who were either not considered for promotion because of their participation in strike or because of minor penalties inflicted upon them or they were issued show cause notice or memorandum for their participation in strike. Despite question put to the Counsel for petitioner in course of arguments; to show from the record as to which of a Junior Engineer or members of Association were deprived of their promotion only because of their participation in strike; he was unable to show from record but made a statement that petitioner Association is seeking only general direction for review of such promotions made of Junior Engineers, who were deprived because of their participation as such respondent Board be directed to review such promotions made at earlier point of time. Despite the fact that an individual who was at all either not considered or was found unsuitable, if feel aggrieved is always free to assail such order, if aggrieved rather few of them approached this Court by preferring individual petition and others might not have considered to assail their non-selection on account of being found unsuitable, who in my opinion alone, has a locus standi to approach this Court against denial of promotion based on over all suitability, and individual if at all feels aggrieved by his non-selection, can always approach Court of law by initiation of legal proceedings but for his cause, at least the Association does not have a locus to question grievance of an individual for their non-consideration or non-selection or against decision of the committee holding him unsuitable. 9. However, submissions made by Counsel for petitioner that because of policy decision taken by respondent erstwhile Board not to consider cases of Junior Engineers who participated in general strike for promotion to the post of Assistant Engineer, has been specifically denied by respondent, inasmuch as no such decision has been placed on record by petitioner which may at all support their contention and filing of writ petition on such premise is devoid of any merit. 10. This Court, has also taken note of this fact while deciding 2nd Stay Petition No. 5165/93 and while disposing of on 27.09.1993, called for record and after examining it, recorded finding that persons who have been facing disciplinary inquiry and who have got adverse entries in their service record, have been considered for promotion on 24.02.1994. 11. Judgment on which reliance has been placed by Counsel for petitioner in L.I.C. of India vs. Amalendu Gupta, 1989 Lab IC 1514 is of no assistance. It was a case where few individuals jointly filed writ petition seeking refund/restoration of their 14 days wages and which were deducted by L.I.C of India from their salary, which was examined on merits by Calcutta High Court. However, in instant case, individuals who if at all feel aggrieved for their non-consideration or about their unsuitability have not approached this Court and have felt themselves satisfied but the Association by this instant petition is espousing cause of its members by making general statement without being supported by material on record. I do not find any merit in this petition. 12. I do not find any merit in this petition. 12. Consequently this writ petition being bereft of merit fails and is hereby dismissed. No costs.