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Himachal Pradesh High Court · body

2014 DIGILAW 1858 (HP)

Ravender Kumar Jarhyan v. State of H. P.

2014-12-09

RAJIV SHARMA, SURESHWAR THAKUR

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JUDGMENT : Rajiv Sharma, J. The petitioner joined as Assistant Engineer by way of direct recruitment on 29.6.1983 on the recommendations made by the H.P. Public Service Commission. The Chief Engineer, Shah Nehar Project, Fatehpur (SNP in short), IPH has sent a communication to the Superintending Engineer, SNP Circle Fathepur on 17.1.2000. The text reads as under: ? The case was referred to the Govt. for posting independent Superintending Engineer (Design) alongwith other technical staff such as Ex. Engineer (Design) and Assistant Engineer (Design) etc. While forwarding the case to the Finance Depatt., F.C-cum- Secretary (IPH) Shimla has commented that there is no jurisdiction for providing an independent SE (Design) keeping in view the work load and Superintending Engineer, Shahnehar Project Circle, Fatehpur will perform the duties of SE (Design) also in addition to his present duties. The case for remaining technical staff is stated to have been cleared by the Finance Deptt. and the same is likely to be posted on due course of time to assist you in this regard. 2. The Secretary IPH to the Govt. of Himachal Pradesh sent a communication to the Engineer-in-Chief, H.P. IPH Department on 10.4.2000 informing him that there was one post of S.E. in Shahnehar Project and due to financial constraints, it was decided that the work relating to Design and work in the Office of Chief Engineer, Shahnehar Project shall be attended to by the incumbent of the post of SE Shahnehar Project. 3. The petitioner was promoted to the post of Superintending Engineer (Civil) vide notification dated 1.4.2008. The petitioner joined as Superintending Engineer, Shahnehar Project (SNP) on 19.8.2008. A conscious decision was taken by the State Government vide notification dated 19.11.2008 whereby post of Chief Engineer, IPH (SNP), Fatehpur alongwith the post of Personal Assistant and Driver was transferred to the IPH Head Office, Shimla with the stipulation that the same would be renamed as Chief Engineer (Design and Monitoring). The addendum was also issued on 31.12.2008. 4. A conscious decision was taken by the State Government vide notification dated 19.11.2008 whereby post of Chief Engineer, IPH (SNP), Fatehpur alongwith the post of Personal Assistant and Driver was transferred to the IPH Head Office, Shimla with the stipulation that the same would be renamed as Chief Engineer (Design and Monitoring). The addendum was also issued on 31.12.2008. 4. The Recruitment and Promotion Rules, 1965, for the post of Chief Engineer Class-I (Gazetted), were amended vide Notification dated 30.8.2008, whereby the post of Chief Engineer was to be filled up by promotion from amongst the Superintending Engineers (Civil) with minimum 25 years service in the gazetted rank including three years regular service or regular combined with continuous ad hoc service as Superintending Engineer (Civil), out of which 2 years essential service must be as Superintending Engineer (Design) in the zones or Superintending Engineer (Planning & Investigation) (Unit I & II) or Superintending Engineer (Works) failing which, on secondment basis from amongst the incumbents working in the identical pay scale on analogous posts in other H.P. Govt. Departments/Central Govt. with similar service conditions. The rules were further amended vide notification dated 14.9.2012, whereby Superintending Engineer was required to have minimum qualifying service of 25 years service in the gazetted rank including three years regular service or regular combined with continuous adhoc service as Superintending Engineer (Civil), out of which 3 years essential service must be as Superintending Engineer (Design) in the projects. The rigours of Rules were diluted vide notification dated 28.3.2014. 5. The final seniority list of Superintending Engineer (Civil) in HP IPH Department as on 31.12.2013 was issued vide Office Memorandum dated 4.3.2014. The name of the petitioner is at Sr. No. 2 and the name of respondent No. 2 is at Sr. No. 3 in the list. The Departmental Promotion Committee was convened for filling up the post of Chief Engineer on 4.3.2014. The Departmental Promotion Committee recommended the name of respondent No. 2 pursuant to which promotion orders were issued vide notification dated 23.5.2014 Annexure P-26. The petitioner has also placed on record the memorandum for consideration of Departmental Promotion Committee for promotion to the post of Chief Engineer (IPH). The Departmental Promotion Committee recommended the name of respondent No. 2 pursuant to which promotion orders were issued vide notification dated 23.5.2014 Annexure P-26. The petitioner has also placed on record the memorandum for consideration of Departmental Promotion Committee for promotion to the post of Chief Engineer (IPH). According to Departmental Promotion Committee proceedings, the petitioner was not found eligible to the post of Chief Engineer as he has not served the department for 3 years as Executive/Superintending Engineer in Store & Purchase or P & I or Works or Design which was the pre-requisite as per the provisions of R & P Rules for the post of Chief Engineer. The post of Chief Engineer is a selection post and was to be filled up on merit-cum-seniority basis. 6. Mr. Dilip Sharma, Sr. Advocate, has vehemently argued on the basis of Annexures P-1 & P-2 dated 17.1.2000 and 10.4.2000, respectively, that his client was also looking after Designs in SNP, Fatehpur. He has drawn the attention of the Court to various Annexures placed on record, more particularly, Annexure P-22, whereby the petitioner has given approval to the various projects. 7. The case of the respondent-State, precisely, is that the Office of Chief Engineer (SNP), Fatehpur was shifted on 19.11.2008 to Shimla and renamed as Chief Engineer (Design and Monitoring), Shimla. It is further averred in the reply that a work of SE (SNP) Circle, was to be looked after by Chief Engineer, Dharamshala since the Chief Engineer, Dharamshala has independent post of Superintending Engineer (Design) at Dharamshala, therefore, the experience rendered by the petitioner at SNP could not be counted towards qualifying service in Drawing and Design. 8. It is evident from letter dated 17.1.2000, quoted hereinabove, that there was no justification for providing independent charge of Superintending Engineer (Design), keeping in view the work load and Superintending Engineer (SNP) Circle was to perform the duties as Superintending Engineer (Design) also in addition to his duties. The same was reiterated vide letter dated 10.4.2000. The petitioner was posted in SNP, Fatehpur on 19.8.2008. He had been looking after Drawings and Design even after the shifting of the post of Chief Engineer and renamed as Chief Engineer (Design and Monitoring), Shimla. There is no merit in the contention of Mr. M.A.Khan, Addl. The same was reiterated vide letter dated 10.4.2000. The petitioner was posted in SNP, Fatehpur on 19.8.2008. He had been looking after Drawings and Design even after the shifting of the post of Chief Engineer and renamed as Chief Engineer (Design and Monitoring), Shimla. There is no merit in the contention of Mr. M.A.Khan, Addl. Advocate General that after the shifting of the post of Chief Engineer, the Drawings were to be approved by Superintending Engineer (Design) at Dharamshala. There is no contemporaneous material placed on record by the respondent-State that Drawings/Designs have ever been forwarded by Chief Engineer Dharamshala to Superintending Engineer (Design), Dharamshala. Though the control of SNP was vested in the Chief Engineer, Dharamshala but the fact of the matter is that the Designs were approved by the petitioner. The services rendered by the petitioner after 19.11.2008 were required to be counted as qualifying service as Superintending Engineer (Design). Annexures P-1 and P-2 dated 17.1.2000 and 10.4.2000, respectively, have never been withdrawn. All the incumbents who were posted as Superintending Engineer in SNP besides discharging the duties of Superintending Engineer (Operation) were also looking after the work relating to Designs. The petitioner has made specific averment that the incumbents who have worked as Superintending Engineer and were looking after the work of Designs were given benefits towards promotion. This averment has not been denied by the respondents in the reply. It is reiterated that the petitioner had approved the structural designs as per the material available on record. The respondent-State has also sought option of the incumbents to work as Superintending Engineer (Design). The petitioner has made several representations bringing to the notice of the authorities that since he had been approving the structural designs in addition to his own duties as Superintending Engineer (Operation) and this experience was to be counted for the purpose of promotion. There was a protracted correspondence exchanged between various functionaries of the State. However, the fact of the matter is that the grievance of the petitioner was not redressed and he was not found eligible by the DPC which met on 4.3.2014. 9. The matter is required to be considered yet from another angle. There was a protracted correspondence exchanged between various functionaries of the State. However, the fact of the matter is that the grievance of the petitioner was not redressed and he was not found eligible by the DPC which met on 4.3.2014. 9. The matter is required to be considered yet from another angle. According to the reply filed, the arrangement of doing the work of Chief Engineer SNP ceased to exist on 19.11.2008 on transfer of the post of Chief Engineer SNP to Shimla and renamed as Chief Engineer (Drawing & Monitoring), Shimla. The petitioner infact had been discharging dual duties as Superintending Engineer (Operation) as well as (Design) on the basis of notifications Annexures P-1 and P-2 dated 17.1.2000 and 10.4.2000, respectively, even after the transfer of the post of Chief Engineer SNP on 19.11.2008 as Chief Engineer (Design & Monitoring), Shimla. The Drawings and Designs have never been approved by the Superintending Engineer (Design), Dharamshala, attached with the Chief Engineer, Dharamshala. Thus, the action of the respondents of not counting the period w.e.f. 19.8.2008 to 7.6.2013 as qualifying service of the petitioner for the post of Chief Engineer is illegal, arbitrary and irrational, as it is violative of Articles 14 & 16 of the Constitution of India. The services rendered by the petitioner in dual capacity could not be rendered nugatory or otiose. 8. Accordingly, the Writ Petition is allowed. Annexure P-26 dated 23.5.2014 is quashed and set aside. Respondent No. 1 is directed to convene a review DPC meeting within a period of four weeks to consider the case of the petitioner to the post of Chief Engineer by counting the services rendered by the petitioner as Superintending Engineer (Design) in addition to his duties as Superintending Engineer (Operation) in Shan Nehar Project. 9. Pending application (s), if any, shall stand disposed of.