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Himachal Pradesh High Court · body

2016 DIGILAW 1003 (HP)

Vikas Gupta v. H. P. S. E. B.

2016-06-02

MANSOOR AHMAD MIR, SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. 1. Present appeal is directed against the judgment dated 24.05.2010 passed by the learned Single Judge of this Court in CWP (T) No.31 of 2008 (TA No.20/2003), whereby the writ petition filed by the petitioner (appellant herein) was dismissed, (for short ‘impugned judgment’). 2. Briefly stated, the facts necessary for adjudication of the case are that the petitioner being qualified diploma holder in Electrical Engineering was appointed as Junior Engineer (Electrical) [For short J.E.(E)] on daily wages on 8.1.1990 in the office of respondent No.1. However, subsequently he qualified Sections ‘A’ and ‘B’ of AMIE examination conducted by the Institute of Engineers (India) in 1990 and 1994, as a result whereof, he became Bachelor of Engineers in Electrical Trade. 3. Record reveals that pursuant to order passed by this Court in CWP No.100 of 1988, services of the petitioner were regularized as J.E.(E) on temporary basis on 27.1.1996. As per Recruitment and Promotion Rules (in short ‘R&P Rules’) applicable to respondent-Board, petitioner claimed that he became entitled to the promotion to the next higher post of Assistant Engineer(Electrical) [in short ‘A.E.(E)’], wherein, after amendment of R&P Rules on 14.2.1986, 6% quota for promotion was provided for J.E.(E), who had passed Sections ‘A’ and ‘B’ of examination of Institution of Engineers (India) during service period and have one year minimum service in the grade for the post of A.E.(E). As per amended R&P Rules, the quota for promotion for the post of A.E.(E) for qualified J.Es.(E) having 7 years service in the grade was fixed at 28%. Whereas, the quota for promotion to J.Es.(E) unqualified with ITI qualification having 12 years service in the grade was fixed at 8% and the quota for the promotion of J.Es.(E) unqualified having 15 years service in the grade was collectively kept 4%. However, aforesaid R&P Rules were further amended on 23.6.1999 (Annexure PC) whereby quota was again altered. 4. As per averments contained in the writ petition, respondent-Board vide letter dated 31.12.1997 (Annexure-PD) relaxed the R&P Rules/Regulations, whereby 50 AMIE/Graduate J.Es.(E) and 56 J.Es.(E) from other category were promoted as A.Es.(E) on regular basis. It also emerges from the record that the aforesaid relaxation was made in pursuance to some directions issued by the Hon’ble Apex Court. Thereafter, respondent-Board relaxed the R&P Rules for 106 J.Es.(E) for the post of A.Es.(E) on regular basis. It also emerges from the record that the aforesaid relaxation was made in pursuance to some directions issued by the Hon’ble Apex Court. Thereafter, respondent-Board relaxed the R&P Rules for 106 J.Es.(E) for the post of A.Es.(E) on regular basis. Consequent upon the aforesaid relaxation in the R&P Rules, 104 promotions were made to the post of A.Es.(E) vide Annexure PD/1. Record further reveals that on 7.3.1998 three more Engineers were promoted to the post of A.E.(E). Similarly, on 9.2.2000 one more promotion was made effective from 6.1.1998. Since in total 108 promotions were made, as referred above, and petitioner was only left out from the category, he filed several representations dated 17.2.1998, 8.11.1998, 5.1.2000 and 2.8.2001 to the respondent-Board, but all in vain. 5. Aggrieved with the rejection of the aforesaid representations filed by the petitioner, he approached this Court by way of CWP No.971 of 2001, which came to be decided by this Court on 4.10.2001. In the petition, referred above, petitioner sought directions to the respondents to consider his case for promotion to the post of A.E.(E) against 6% quota meant for AMIE J.E.(E), in accordance with the R&P Rules, which were amended on 14.2.1986. Pleadings on record further suggests that after disposal of aforesaid writ petition, on 31.10.1998 petitioner again filed CWP No.1013 of 2001, wherein direction was sought against the respondents for considering the case of the petitioner for the post of A.E.(E) in terms of relaxation granted to the entire cadre of J.E.(E) in 1997, pursuant to the judgment passed by the Hon’ble Apex Court. 6. It appears that all the J.Es.(E), except the petitioner, who had qualified AMIE Degree prior to his appointment in the Department, were considered and promoted. However, this Court, while disposing of the aforesaid writ petitions preferred by the Petitioner only issued direction to the respondents to consider the representations filed by the petitioner, which were rejected by the respondents on 26.2.2002 (Annexure PL). However, petitioner was promoted to the post of A.E.(E) on 18.3.2002 (Annexure PM). 7. A specific case of the petitioner has been that when the order of relaxation was made on 31.12.1997, 109 J.Es.(E) were having qualification of AMIE Graduation obtained either prior to joining of the service or during the service with the respondent-Board. The relaxation was applied to entire batch of J.Es., while promoting them to the post of A.Es.(E). 7. A specific case of the petitioner has been that when the order of relaxation was made on 31.12.1997, 109 J.Es.(E) were having qualification of AMIE Graduation obtained either prior to joining of the service or during the service with the respondent-Board. The relaxation was applied to entire batch of J.Es., while promoting them to the post of A.Es.(E). Though, petitioner had qualified AMIE in the year 1994, but he was not considered in the very first batch for promotion made by the respondents-Board, pursuant to the order of relaxation made on 31.12.1997, which was admittedly taken in terms of order passed by Hon’ble Apex Court. 8. It is also the case of the petitioner that even in the second category wherein 56 J.Es.(E), who had qualified AMIE in June, 1997, were granted promotion in December, 1997 and even at that time case of the petitioner was not considered. Hence, action of the respondents in ignoring the petitioner for promotion to the post of A.E.(E), in pursuance of office order dated 31.12.1997 (Annexure-PD), being illegal and arbitrary, deserves to be quashed and set aside. 9. It was also alleged that Departmental Promotion Committee (in short ‘DPC’), which was required to be held annually and vacancies were to be filled in accordance with the Rules prevalent on the date when the vacancies arise, was convened in violation of instructions dated 16.11.1994 (Annexure PN). 10. Respondents refuted the averments made by the petitioner and a specific objection with regard to delay and latches has been taken. It is submitted on behalf of the respondents that it was brought to the notice of Whole Time Members (in short ‘W.T.M.’) that respondent-Board intends to appoint 106 AMIEs (Electrical) and 49 AMIEs (Civil/Mechanical) J.Es. as A.Es against the quota of direct recruit A.Es. It was also brought to the notice of W.T.M. that while promoting J.Es AMIE of both Electrical/Civil/Mechanical, the minimum criteria of 7 years for promotion from J.Es to A.Es as per R&P Rules would be enforced. Since promotions were to be made in bulk, respondents- Board agreed for the aforesaid proposal to enforce minimum criteria of 7 years regular service as J.Es.(E) as per R&P Rules. Since petitioner had put in only one year service as regular J.E. and was much below in cadre of J.Es.(E), he could not be promoted. Since promotions were to be made in bulk, respondents- Board agreed for the aforesaid proposal to enforce minimum criteria of 7 years regular service as J.Es.(E) as per R&P Rules. Since petitioner had put in only one year service as regular J.E. and was much below in cadre of J.Es.(E), he could not be promoted. Respondents specifically stated that J.Es.(E), who had put in minimum 7 years service, were promoted and all the promotions were made strictly in accordance with the decision dated 20.12.1997 and thereafter office order dated 31.12.1997 was issued with regard to relaxation. It also emerges from the record that before promoting certain officers as A.Es on 18.3.2002 (Annexure PM), decision was taken on 14.9.2000 (Annexure R-1) to promote petitioner as well as one Shri Ram Prakash in relaxation to the Rules. However, fact remains that the petitioner could not be promoted prior to 18.3.2002 because posts meant for AMIE category were not available and only senior persons to the petitioner were promoted before 18.3.2002. Later-on, when post became available, petitioner was promoted vide order dated 18.3.2002. 11. Learned Single Judge, after appreciating the material available on record, dismissed the petition specifically observing therein that the petitioner miserably failed to make his case for relaxation in terms of order dated 31.12.1997 vide which 56 J.Es were to be promoted. Moreover, the petitioner had not challenged his promotion made vide order dated 18.3.2002 from J.E.(E) to A.E.(E), rather he acquiesced and accepted the same. 12. Mr. Dushyant Dadwal, learned counsel representing the petitioner-appellant, vehemently argued that the judgment passed by Hon’ble Single Judge is not sustainable and is not based upon the correct appreciation of the documentary evidence available on record. He forcefully contended that learned Single Judge has failed to acknowledge that vide Notification dated 31.12.1997 quota prescribed in the R&P Rules was abolished and the entire cadre of J.Es having AMIE qualification/degree obtained before or after joining the service was required to be considered for promotion. It is contended on behalf of the petitioner that pursuant to the aforesaid relaxation dated 31.12.1997, number of promotions were effected by the respondents ignoring the rightful and genuine claim of the petitioner. It is contended on behalf of the petitioner that pursuant to the aforesaid relaxation dated 31.12.1997, number of promotions were effected by the respondents ignoring the rightful and genuine claim of the petitioner. Since petitioner had passed Sections ‘A’ and ‘B’ examination of the AMIE in 1990 and 1994, other persons who had passed their Sections ‘A’ and ‘B’ examination in 1996 and 1997 could not be promoted ahead of him. It is also contended that very purpose of notification dated 31.12.1997 was to grant benefit to all J.Es in Electrical as well as Civil/Mechanical trades, but while effecting promotions quota, rules were not adhered to and promotions were made after the period of relaxation amongst the diploma holders and others in the access of the quota prescribed for the promotion to the post of A.E.(E). It was strenuously argued on behalf of the petitioner that all other promoted J.Es, who were similarly situated and in the same category as of the petitioner, as such he could not be ignored for promotion in terms of the notification dated 31.12.1997. 13. Mr. Dadwal contended that since petitioner was qualified to hold the post, he was required to be considered and promoted from amongst the quota meant for AMIE/degree holders. Had this quota been considered & enforced strictly, he would also have been promoted much before 1997 ahead of other persons who admittedly acquired qualification on the later date. 14. Lastly, Mr.Dadwal pointed out that the learned Single Judge has failed to acknowledge the fact that when the benefit of relaxation, which was granted to entire category possessing the same qualifications and are in same trade, cannot be denied to any individual belonging to that particular category and therefore, the case of the petitioner could not be ignored and, as such, great injustice has been caused to him. He prayed for setting aside and quashing of the judgment passed by the learned Single Judge. 15. Per contra, Shri Satyen Vaidya, learned Senior Counsel, appearing for the respondents, supported the judgment passed by the learned Single Judge. He prayed for setting aside and quashing of the judgment passed by the learned Single Judge. 15. Per contra, Shri Satyen Vaidya, learned Senior Counsel, appearing for the respondents, supported the judgment passed by the learned Single Judge. He forcefully contended that petition filed by the petitioner was liable to be rejected solely on the ground of delay and latches because admittedly cause of action, if any, accrued to the petitioner in the year 1997, when 100 promotions were made for the post of A.Es.(E), whereas, petition was filed in the year 2002 i.e. after six years and no explanation worth the name has been rendered in the petition justifying therein the delay caused in filing the same. He forcefully contended that promotions of the other persons were made strictly in accordance with the decision dated 20.12.1997 and thereafter office order dated 31.12.1997 was issued. 16. Mr.Vaidya strenuously argued that the promotion of the petitioner from J.E.(E) to A.E.(E) was made on 18.03.2002 which was accepted by him without any demur and as such, at this stage, he cannot be allowed to challenge the decision of the respondents-Board wherein vide order dated 31.12.1997, 56 J.Es.(E) were promoted, who, as per petitioner, were junior to him. 17. We have heard learned counsel for the parties and have gone through the record of the case. 18. Admittedly, petitioner was appointed on temporary basis as J.E.(E) on 27.1.1996 vide office order (Annexure PA). The R&P Rules for promotion to the post of A.E.(E) from various categories of J.E.(E) were amended on 14.2.1986, wherein the promotion criteria under 6% quota is as follows:- “From amongst those persons who pass Section A&B of the examination of Institution of Engineers (India) during service period and have minimum one year service in the grade.” 19. Perusal of office order No.302 dated 31.12.1997 (Annexure PD) suggests that conscious decision was taken to relax the Recruitment & Promotion Regulations for promotion to the post of A.E.(E) and petitioner claimed promotion on the basis of aforesaid order of relaxation. 20. Careful perusal of office order dated 31.12.1997 suggests that conscious decision was taken by the respondents-Board for promoting 50 AMIE/Graduate J.Es.(E) and 27 AMIE/Graduate J.Es.(Civil/Mechanical), who were working as A.Es.(E) on adhoc or acting basis by providing one time relaxation to the R&P Regulations. 20. Careful perusal of office order dated 31.12.1997 suggests that conscious decision was taken by the respondents-Board for promoting 50 AMIE/Graduate J.Es.(E) and 27 AMIE/Graduate J.Es.(Civil/Mechanical), who were working as A.Es.(E) on adhoc or acting basis by providing one time relaxation to the R&P Regulations. Similar decision was taken to promote 56 J.Es.(E) and 22 J.Es(C/M), who had obtained AMIE Degree after aforesaid adhoc or acting A.Es, who had become senior to them by virtue of the decision of Hon’ble the Supreme Court, by providing one time relaxation in the R&P Regulations against vacancies meant for the direct recruitment category. 21. As has been observed above, petitioner, who was appointed as a J.E.(E), at initial stage, on daily wages on 8.1.1990 with the respondent-Board on temporary basis and as on 31.12.1997 he was not working as A.E.(E) on adhoc/acting basis and as such his case could not be considered in light of one time relaxation, which was strictly applied in the case of 50 AMIE/Graduate J.Es.(E) and 27 AMIE/Graduate J.Es.(E), who were working as A.E. on adhoc or acting basis at that relevant time. Since on 31.12.1997 petitioner was not working as A.E. on adhoc/acting basis, his case also could not be considered in the second category for 56 J.Es.(E) and 27 J.Es.(E), who had admittedly obtained AMIE degree qualification after the first category of adhoc/acting A.E. who had become senior to them as a result of judgment passed by the Hon’ble Apex Court. Further perusal of order dated 31.12.1997 suggests that there was no specific bar for promotion from the post of J.E.(E) to A.E.(E) as per R&P Rules and as such case, if any, of the petitioner was required to be considered for promotion in accordance with the R&P Rules and Regulations. Since petitioner did not fall in the category which was given relaxation in terms of office order dated 31.12.1997, his case was to be considered strictly in accordance with the R&P Rules. During arguments having been made by the learned counsel representing the petitioner, we had occasion to peruse office order dated 31.12.1997 as well as order dated 20.12.1997. 22. Since petitioner did not fall in the category which was given relaxation in terms of office order dated 31.12.1997, his case was to be considered strictly in accordance with the R&P Rules. During arguments having been made by the learned counsel representing the petitioner, we had occasion to peruse office order dated 31.12.1997 as well as order dated 20.12.1997. 22. Careful reading of office order dated 31.12.1997 itself suggests that H.P. Electricity Board on the recommendations of Class-I DPC took a conscious decision to promote the A.E.(E) AMIE/diploma holders/non-diploma holders and the cadre working on adhoc/acting and out of turn basis and also J.E.(E) AMIE/diplomas holders/non-diploma holders/CHDM as A.Es. on regular basis, meaning thereby vide order dated 31.12.1997, individual working as A.E.(E) either on adhoc basis or acting basis were promoted as A.E.(E) on regular basis. Whereas, present petitioner admittedly on 31.12.1997 was not working as A.E. rather he was working as J.E.(E) at that relevant time. Hence, at this belated stage, petitioner could not be allowed to assail the promotions made vide order dated 31.12.1997 that too when on the given date he was not eligible to be promoted in terms of that letter. Moreover, there is no specific challenge, if any, to communication dated 31.12.1997, wherein decision was taken to promote the aforesaid persons on regular basis. Further perusal of decision taken on 20.12.1997 (reproduced in para-4 of the reply filed by respondents No.1 and 2) which is further reproduced herein below:- “It was brought in the notice of WTM that Board is appointing 106 AMIEs (Electrical) and 49 AMIEs (Civil/Mechanical) JEs as AEs against the quota of direct recruits AEs. It was also brought into the notice that 37 JEs (E) and 6 JEs (Civil/Mech.) Dips. who are already working on adhoc/acting AEs, also be regularized against the post of AEs. It was brought to the notice of WTM that in the case of bulk promotions to Class-I post, the general instructions for filling up selection post may not necessarily be applied. It was also brought to the notice of WTM that while promoting JEs AMIE of both Electrical/Civil/Mechanical the minimum criteria of 7 years for promotion from JEs to AEs as per R&P Rules has also to be enforced. It was also brought to the notice of WTM that while promoting JEs AMIE of both Electrical/Civil/Mechanical the minimum criteria of 7 years for promotion from JEs to AEs as per R&P Rules has also to be enforced. The Board agreed that the principle of selection while holding the buik promotions of these AMIEs /Diploma holders JEs against the post of AEs be not enforced to avoid supersession. It was also decided that the minimum criteria of 7 years regular service as JEs as per R&P Rules be also followed.” Suggests that it was brought to the notice of concerned persons of the Board with regard to appointments of 106 AMIEs (Electrical) and 49 AMIEs (Civil/Mechanical) JEs as AEs against the quota of direct recruits A.Es, and all stakeholders including the petitioner were aware about the aforesaid decision taken by the respondents. It also suggests that it was categorically decided that the persons who are already working on adhoc/acting A.Es. would be regularized against the posts of A.Es. Since bulk promotions to the Class-I post were to be carried out, it was decided by the respondent-Board that general instructions for filling up selection post would not be necessarily applied. Decision with regard to prescribing minimum criteria of 7 years for promotion from J.Es. to A.Es as per R&P Rules was also proposed to be enforced vide aforesaid communication. Conscious decision was taken in the aforesaid meeting that while making bulk promotions to the post of A.Es. principle of selection would not be enforced to avoid super-session; therefore, criteria of 7 years regular service as J.Es, as per R&P Rules, was decided to be enforced. Admittedly, as has been discussed/observed above, on the relevant date petitioner had only rendered one year regular service as J.E. and he was much below in the cadre of J.E.(E) and as such, he was rightly not promoted in terms of aforesaid order dated 31.12.1997. 23. Admittedly, as has been discussed/observed above, on the relevant date petitioner had only rendered one year regular service as J.E. and he was much below in the cadre of J.E.(E) and as such, he was rightly not promoted in terms of aforesaid order dated 31.12.1997. 23. At the cost of repetition, it is pointed out at this stage that by way of petition under reference, petitioner never laid any challenge to either decision dated 20.12.1997, which further culminated into promotion of other persons vide order dated 31.12.1997, which clearly suggests that petitioner acquiesced and accepted the aforesaid decisions made by the respondent-Board and now, at this belated stage, he cannot be allowed to rake up the issue, which has attained finality qua the persons who were promoted in terms of order dated 31.12.1997. It is also noticed, at this stage, that the persons, who were promoted in terms of letter dated 31.12.1997, were not made party in the petition and any critical analysis of letter dated 31.12.1997 as well as decision taken on 20.12.1997 by this Court, at this stage, would amount to decide the rights of effected/necessary parties in their absence, which is not permissible at this stage. As far as another plea with regard to the consideration of the case of the petitioner under 6% quota of J.E.(E) AMIE acquiring qualification of AMIE for the purpose of promotion to the post of A.E.(E) is concerned, the same could not be considered under the aforesaid quota of 6%, as per amendment carried out in R&P Rules dated 14.2.1986, whereby benefit of improvement of qualification by way of AMIE during service was given only to those J.Es. who acquired this qualification during service but not to those persons like petitioner who admittedly had passed out AMIE before joining the service. Amendment in the R&P Rules dated 14.2.1986 for the aforesaid benefit to the J.Es.(E), who acquired qualification of AMIE after joining service, was not challenged by the petitioner at all and, as such, he cannot be allowed to claim benefit of 6% quota, which was admittedly in terms of R&P Rules amended on 14.2.1986 and was to be given to the person who had acquired qualification of AMIE during service. Hence, promotion of the petitioner from J.E.(E) to A.E(E) could only be considered under 28% quota of qualified J.Es as per amendment carried out in the R&P Rules on 14.2.1986. Hence, promotion of the petitioner from J.E.(E) to A.E(E) could only be considered under 28% quota of qualified J.Es as per amendment carried out in the R&P Rules on 14.2.1986. 24. Even, at this stage, it is also noticed by this Court that condition of prescribing criteria of 7 years regular service for J.E., as per R&P Rules, as decided on 20.12.1997, was never challenged by the petitioner in any of the proceedings and, as such, the same was enforced by the Board while carrying out bulk promotions of the J.Es. who, at the relevant time, were working as acting/adhoc A.Es. Moreover, as was noticed above, that the petitioner was promoted vide office order dated 18.3.2002 (Annexure PM), from J.E.(E) to A.E.(E) and same was accepted by him without any demur and as such, at this stage, without there being a specific challenge to the decision dated 20.12.1997, office order dated 31.12.1997 and order dated 14.2.1986, whereby amendment was carried out in R&P Rules, no benefit could be given to the petitioner. It also appears from the judgment passed by the learned Single Judge that no seniority list with regard to J.Es. was ever placed before the Court, hence, findings of the learned Single Judge that in the absence of seniority of the petitioner as J.E.(E), it is not possible to determine whether the petitioner was legally denied promotion from J.E.(E) to A.E.(E), in view of the R&P Rules/Regulations and relaxation dated 31.12.1997, are based on correct appreciation of record and as such no interference is called for. 25. In view of aforesaid discussion, we do not find any illegality and infirmity in the impugned judgment passed by the learned Single Judge, as such the same is upheld and the appeal is dismissed alongwith pending application, if any.