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Uttarakhand High Court · body

2008 DIGILAW 514 (UTT)

Lalit Kumar Pant v. State of Uttarakhand

2008-11-18

B.LAL, K.R.BHATI

body2008
JUDGMENT Hon'ble Sri B. Lal. Chairman : 1. By means of present claim petition, advertisement and its corrigendum (Annexure-I) issued for the selection of Director Project, Director (Operation) and M.D./C.M.D. along with qualification prescribed therein, is sought to be quashed. In the second place directions are also sought against respondents to allow the departmental candidates having degree in Mechanical Engineering and treat them at par with the Graduate Engineers in Electrical Engineering in view of the common cadre in the department and extend the superannuation age up to 61 years for the post advertised (Annexure-1). In the third place, representation dated 6.6.2007 by Association be directed to be decide by an speaking order. In the fourth place, by way of amendment, further relief was added by which the order dated 27.9.2007 is sought to be quashed with the direction to the respondents to institute an enquiry into the irregularity committed in selection process. 2. Petitioners are the employees of Uttarakhand Power Corporation Ltd which is a joint venture Company with majority share held by Government of Uttarakhand. Petitioners were promoted as Executive Engineers/ Superintending Engineers by the Corporation. The Uttarakhand Power Corporation was registered under Company Pct 1956. The Articles of Association were framed for the smooth functioning of the Corporation, (Annexure-4 to the claim petition). After formation of said Corporation, Govt. ('If Uttarakhand sanctioned and created new structure sanctioning the new post vide Govt. Order dated 6.10.2004. New structure interalia incorporated post of Chairman cum Managing Director, Director (Transmission/Distribution) with Director Finance & H.R. etc. 3. The selection process was provided under Article 34 of as substituted with the approval of the Board on 7.10.2004. 4. The services of the petitioners are governed by Regulation known as UP State Electricity Board Services of Engineers Regulations 1970 (which shall be addressed as Regulation 1970) framed under Electricity (Supply) Act 1948. 5. The Respondent No.2 issued advertisement as per Annexure-1 to the claim petition under Article 34 to Article Association dated 3.10.2006 by which applications were invited for the posts of Chairman/M.D. and Director in various disciplines laying down minimum 15 years' experience in Hydro Power Generation for C.M.D. and Director in Uttaranchal Jal Vicyut Nigam Ltd and 15 years' of experience for the post of Director Project and Director Operation in rural electrification and Distribution and Transmission Business was prescribed. By corrigendum dated 24.5.2007, published for the post of M.D/C.M.D. as well as for M.D. in Power Transmission Corporation Uttaranchal Ltd, the experience required for the post of C.M.D. in UPCL minimum 20 years out of which at least 5 years in Power Trading and Distribution at top management level while in Power Corporation . Uttaranchal Ltd. minimum 15 years experience in senior management level and 10 years experience in Power Transmission was required. It is stated that qualification prescribed by Respondent Nos. 1 & 2 are arbitrary and disadvantageous to the interest of the petitioners as they are Mechanical Engineers and Corporation consists common cadre of Electrical Engineers and Mechanical Engineers . It is further slated that the only criteria as per UP State Electricity Regulation 1970 for promotion to the post of C.E., Addl. C.E., Dy. C.E. and S.E. in erstwhile UPSEB is based on merit and suitability only and the higher posts of Member and Chairman are to be filled up on the basis of selection on merit. The age limit was extended up to 61 years, whereas the previous C.M.D. Sri S.C.S. Raghwan worked up to the age of 63 years while another C.M.D worked up to the age of 62 years. 6. It is stated that selection in UP is also being made treating Electrical and Mechanical as common cadre. Government of Uttarakhand suo moto cannot override the rules and regulations made under Article 309 of the Constitution of India without making proper amendments in the rules. It is also stated that their rights are protected U/S 87, 88, 67 and 74 of UP Reorganization Act 2000 and also as per amalgamation scheme. The advertisement is also assailed on the ground that Respondent No. 4 Uttarakhand Infrastructure Development Company Ltd was made as nodal authority and was assigned the work of selection whereas they have no role to play in selection process as per Government regulation and therefore the advertisement deserves to be quashed on this ground also. 7. Per contra Respondent No.4 in his written statement stated that they were only assigned the task of sorting out the application and they have no role to play in the selection process. Respondent Nos.1 & 2 contended that as per procedure laid down under Article 34-A of Articles of Association, selection committee was constituted by the Govt. 7. Per contra Respondent No.4 in his written statement stated that they were only assigned the task of sorting out the application and they have no role to play in the selection process. Respondent Nos.1 & 2 contended that as per procedure laid down under Article 34-A of Articles of Association, selection committee was constituted by the Govt. and work of short listing was assigned to Respondent No.4. There is no prohibition in taking assistance of any outside agency for carrying out the ministerial work. 8. It is admitted that the cadre of Electrical and Mechanical Engineering known as E &M is common and seniority list for both the cadres is also common. However, the posts advertised are not promotional post, but are direct selection post from among the qualified and experienced persons to rum the Corporation and therefore, cadre of E&M has no relevance for the selection of the posts advertised. It is further stated that the post advertised are top posts of the organization and are to be filled up by most suitable professional. Therefore, the departmental seniority has no relevance in direct selection open for all having' prescribed qualification. The criteria for the promotion for the post of C.E., Addl. C.E. Dy. C.E. and SE have no relevance as the post advertised are not cadre posts. The similar stand has been taken by Respondent No.5 in his written statement who was considered and appointed by the selection committee by impugned order dated 27.9.2007. 9. Heard Sri M.C. Pant, learned counsel for the petitioner. Sri Umesh Dhaundiyal, learned Assistant Presenting Officer on behalf of State and Sri O.P. Bakshi, learned counsel for Respondent No.5. 10. Admittedly the services of the petitioners are governed under Regulation 1970 and Mechanical and Electrical cadre are post of common cadre and with common seniority. However, the contention of the respondents is that the posts advertised are not cadre posts nor the petitioners by virtue of member of the cadre are eligible to be appointed on the post advertised. After creation of UPJVNL, new structure was sanctioned wherein posts of Chairman cum Managing Director, Director Transmission Distribution, Director Finance, Director H.R., Executive Director among others were created ad the post of Chairman cum Managing Director, Director Transmission Distribution etc. were made selection post and not the promotional posts from cadre post under Regulation 1970. After creation of UPJVNL, new structure was sanctioned wherein posts of Chairman cum Managing Director, Director Transmission Distribution, Director Finance, Director H.R., Executive Director among others were created ad the post of Chairman cum Managing Director, Director Transmission Distribution etc. were made selection post and not the promotional posts from cadre post under Regulation 1970. The selection procedure for the Board of Directors has been detailed under Article 34 as substituted with the approval of the Board on 7.10.2004 which runs as follows : "Subject to the provisions of the Act, so long as the Government of Uttaranchal holds the majority or controlling shares of the Company, the Directors of the Company including Chairman cum Managing Director, whole time Directors and part time Directors, other than, these nominated by financial institutions under Article 35 and the first Directors, shall be appointed by the Governor of Uttaranchal in accordance to the following procedure: (a) The Government of Uttaranchal shall constitute a selection committee consisting of nominees from the State Government and such other experts as the State Government may decide, to select and recommend the persons to be appointed as Chairman cum managing Director or Managing Director and whole time Director. (b) The C. MD. or Managing Director, as the case may be, and whole time directors shall be appointed for a tenure as the Government of Uttaranchal may fix and shall be subject to removal by the Govt. of Uttaranchal. (c) Subject to provisions of Companies Act 1956, the C.M.D and M.D. as the case may be, and whole time directors of the Company shall be paid such remuneration and allowances as the Govt. of Uttaranchal may decide. 11. It would be seen that for the selection of Director of Company including Chairman! M.D., whole time Directors and part time Directors, a selection committee consisting nominees from State Government and such other expert shall be constituted to recommend suitable candidates. In accordance with Article; 34 of Article of Association the posts were advertised by impugned advertisements in the national newspapers having wide publication. Applications were invited from the candidates having qualification mentioned therein. From the advertisements it would be seen that the applications were invited not only from the departmental candidates, but it was an open advertisement for all persons having requisite qualification. Applications were invited from the candidates having qualification mentioned therein. From the advertisements it would be seen that the applications were invited not only from the departmental candidates, but it was an open advertisement for all persons having requisite qualification. In the circumstances, the only grievance of the petitioners is that the qualification prescribed in the advertisement does not suit them as Respondent No. 5 was also a member of common cadre with difference that he is having degree in Electrical Engineering with posting in Hydro Power Generation against the transfer policy of the Corporation whereas petitioners were transferred as per transfer policy of the Board (filed as Annexure-5) and therefore, could not continue in particular discipline. The contention of the petitioners is denial of equal opportunity and• equal protection of law. Therefore determination of qualification and experience is arbitrary and discriminatory. The qualification has been prescribed in such a manner that selection of respondent No. 5 member of common cadre and junior to the petitioners may be facilitated. 12. The petitioners cannot challenge the right of the Government having majority share in the company to prescribe qualification for the top managerial posts keeping in view the nature of work' carried out by them. Hon'ble Supreme court in the matter of Union of India and others Vs. Vasudev Dora and others 2003 SCS (L&S) 191 have held that, "The determination of condition of service alternation thereof by amending rules, Constitution classification or abolition of posts, cadres or categories of service. Amalgamation, bifurcation of departments, reconstruction, restructuring of the pattern etc. all pertain to executive policy and within exclusive discretion of the State subject to limitation and restriction envisaged in the constitution. It is further held that the Government servants have only right to safeguard rights of benefits already earned, acquired or accrued but they cannot challenge the authority of State to make such amendments and alternations in the rules. It is not in dispute that post advertised are selection posts. They are not the promotional posts on the basis of seniority cum merit under rules. There is no bar to select any suitable candidate out side the department. The selection is not covered under 1970 Rules applicable to the petitioners. Therefore there is no violation of the seniority rules. 13. Ld. They are not the promotional posts on the basis of seniority cum merit under rules. There is no bar to select any suitable candidate out side the department. The selection is not covered under 1970 Rules applicable to the petitioners. Therefore there is no violation of the seniority rules. 13. Ld. Counsel for the petitioner also assailed impugned advertisement and determination of qualification for the post advertised on the ground that petitioners were the employees of erstwhile Electricity Board at the time of transfer to newly created Company, therefore by virtue of Section 67 of UP Reorganization Act, no service condition of any employee can be altered without taking previous approval of the Central Govt. It is further submitted that discrimination based on Maniacal Engineering or Electrical Engineering is not mandated by law and members of both the disciplines are entitled for the selection as director in the corporation. 14. We see no discrimination in determining the qualification deemed fit for the selection post. Since post advertised are not covered under 1970 Rules applicable to the petitioners, there is no question of altering service conditions of the petitioners. The petitioners can achieve highest promotion provided under the rules. Hon'ble Supreme Court also held that government servants have only right to safeguard rights or benefits already earned, accrued or acquired, but they have no authority to challenge the authority of State to make such amendments or alter the rules (203 Supreme Court Cases (L&S) 191 Supra). Thus, we are of the opinion that petitioners have no cause of action to challenge selection process or determination of qualification on selection post outside the purview of 1970 Rules. Therefore, claim petition is hereby dismissed with no order as to cost. 15. Notwithstanding the aforesaid finding, we Would like to observe that in order to maintain transparency for the selection of top management posts in Power Corporation, the State Govt. to frame rules determining the age & qualification and the manner In which selection is to be made by selection committee under Article 34 of Article of Association so that dignity independence & transparency may be maintained in Power Corporation an important revenue earning Corporation for public of the State. Let the copy of judgment be furnished to the Chief Secretary, Govt. of Uttarakhand for compliance of the observations contained in Para 13 within 4 months.