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Himachal Pradesh High Court · body

2019 DIGILAW 1885 (HP)

Ran Vijay Singh v. NHPC Limited

2019-12-09

AJAY MOHAN GOEL

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JUDGMENT : AJAY MOHAN GOEL, J. 1. Brief facts necessary for the adjudication of the present petition are as under: Petitioner No. 1 joined the services of the respondent-Corporation as a Draughtsman Grade-III on 02.09.1985. Petitioner No. 2 joined as such on 16.04.1984 and petitioner No. 3 joined as such on 23.11.1984. Thereafter, they gained promotion to the post of Draughtsman Grade-I and Draughtsman (Special) in due course of time. Vide order dated 01.07.2004, the petitioners alongwith other persons were promoted by the respondent-Corporation against the posts of Assistant Executive Draughtsman (E-1). 2. The next promotional post from the said post is level E-2. Respondent-Corporation has framed Promotion Policy and Rules for NHPC Executives in this regard. The earlier Rules which were in vogue stand appended with the petition as Annexure P-7, contemplated that an employee serving at level E-1 was eligible for promotion to level E-2 after putting in four years of service, in case he was Diploma Holder/Graduate and after three years of service in case the candidate was Engineering Graduate/Professionally Qualified. 3. In the present case, it is not in dispute that all the petitioners are diploma holders and thus, as per old Rules, they gained eligibility for promotion from E-1 to E-2 after putting in four years’ service. 4. Petitioners have approached this Court aggrieved by the fact that the respondent- Corporation had purportedly promoted persons junior to them from E-1 level to E-2 level and the Corporation was ignoring the claim of the petitioners for promotion to E-2 level in terms of the old Rules (Annexure P-7) and was now considering them for promotion in terms of the new Rules (Annexure P-9), which had come into force w.e.f. 24.07.2013. The payer which has been made by the petitioners in the writ petition is that a mandamus be issued to the respondent-Corporation to promote them against the posts of Executive Draughtsman (E-2) as from the date when S/Shri Romesh Mangotra, Kirti Mahajan, Ajay Sharma and Parkash Chand were promoted to the post in issue as per the old Policy and Rules with all consequential benefits. 5. The case of the petitioners is resisted by the respondent-Corporation, inter alia, on the ground that no person junior to the petitioners was promoted to E-2 level by ignoring the petitioners. 5. The case of the petitioners is resisted by the respondent-Corporation, inter alia, on the ground that no person junior to the petitioners was promoted to E-2 level by ignoring the petitioners. In paras-2 and 3 of the reply filed by the respondent-Corporation, it is specifically mentioned that as in the years 2008, 2009 and 2010, there were no vacancies of Executive Draughtsman in E-2 Grade, accordingly, no DPCs. were convened for effecting promotions in the said years. 13 vacancies of Executive Draughtsman (E-2 Grade) became available on 01.04.2011. A DPC was convened for considering eligible candidates including the petitioners for promotion against the said posts. The petitioners were duly considered alongwith other candidates for promotion to the said posts. The persons who were promoted against the said posts happened to be senior to the petitioners in terms of the Seniority List appended with the reply as Annexure R-1. Only one Shri Prakash Chand, who belonged to Scheduled Caste category, who was junior to one of the petitioners, namely, Sh. Akhil Kumar Sharma, was promoted against the post belonging to the quota of Scheduled Caste Category. It is further mentioned in the reply that as on 01.04.2012 and 01.04.2013, 7 and 2 vacancies of E-2 Grade became available respectively, for which also, all eligible candidates including the petitioners were considered for promotion. Persons who were senior to the petitioners stood promoted against the aforementioned posts. Thereafter, revised Promotional Policy and Rules were notified by the respondent-Corporation for promotions of NHPC Executives on 24.07.2013. The change which was effected in the revised Rules as compared to the old Rules was only that now in order to be eligible for promotion from E-1 to E-2, a candidate mandatorily had to pass a written test. Thereafter, after these revised Rules came into existence and vacancies became available, eligible candidates were called upon to appear in the test. Petitioners unsuccessfully appeared in the written test twice. As they could not be promoted on account of their not passing the written test, they had filed this writ petition. Accordingly, it is pleaded on behalf of the respondent-Corporation that as the very genesis of the case of the petitioners is weak, edifice thereof falls because it is incorrect on the part of the petitioners to allege that under the old Rules, persons junior to the petitioners were promoted from E-1 level to E-2 level. Accordingly, it is pleaded on behalf of the respondent-Corporation that as the very genesis of the case of the petitioners is weak, edifice thereof falls because it is incorrect on the part of the petitioners to allege that under the old Rules, persons junior to the petitioners were promoted from E-1 level to E-2 level. A prayer has thus been made for dismissal of the writ petition. 6. I have heard learned counsel for the parties and have also gone through the pleadings. 7. Alongwith the petition, the petitioner has not appended any document to demonstrate that the persons who were promoted from E-1 level to E-2 level by the respondent Corporation either in the year 2011 or subsequently until the revised Policy came into force, were junior to the petitioners, except the official who was promoted against the post reserved for Scheduled Caste Category. 8. On the other hand, alongwith the reply, respondent-Corporation has appended the Seniority List as Annexure R-1. To be more precise, reference of Seniority List is there in preliminary submission No. 3 of the reply filed by respondents No. 1 to 5. In the reply/rejoinder, which has been filed to said para of the reply, the averments made are: “that the contents of this para so far as pertains to matter of record are not denied, however, the rest of the contents, which are contrary to the record are wrong, incorrect hence denied.” Thus, there is no specific denial made by the petitioners that Annexure R-1 was not depicting the correct seniority position. Therefore, there is nothing on record to demonstrate that before revised Policy came into force, respondent-Corporation promoted persons junior to the petitioners to E-2 level. 9. Be that as it may, there is another important aspect of the matter and the same is that it stands alleged in the writ petition that certain persons, purportedly junior to the petitioners, were promoted from E-1 to E-2 and their names are also mentioned in the petition, but conspicuously they have not been impleaded as party respondents in the writ petition. In case the contention of the petitioners is to be accepted by this Court, then but obvious it would adversely affect said persons and in their absence this writ petition cannot be decided. Till date, no effort has been made by the petitioners to amend the petition and implead them as party respondents. In case the contention of the petitioners is to be accepted by this Court, then but obvious it would adversely affect said persons and in their absence this writ petition cannot be decided. Till date, no effort has been made by the petitioners to amend the petition and implead them as party respondents. Therefore, this petition is bad for non-joinder of necessary parties also. 10. Further, as it is not borne out from the record that till the time old Rules were in force, any person junior to the petitioners was promoted from E-1 to E-2, the writ of mandamus being sought by the petitioners cannot be granted and it cannot be ordered that the petitioners be promoted from E-1 to E-2 level from the date as stands prayed for by the petitioners. 11. Similarly, steps which were taken by the respondent-Corporation after the revised Policy came into force for promotion of eligible candidates from E-1 to E-2 level, can also not be faulted for the simple reason that once petitioners participated unsuccessfully in the process of promotion in terms of the revised Rules, they cannot now be permitted to turn around and say that the act of the respondent-Corporation is bad. 12. Even otherwise, the law as it stands today is that the Rules to be considered at the time of promotion are the Rules which exist at the time of actual consideration and it is immaterial as to what was the Rule position at the time when the vacancy became available. 13. Hon’ble Supreme Court in State of Tripura and others Vs. Nikhil Ranjan Chakraborty and others, (2017) 3 Supreme Court Cases 646 has held that a candidate has the right to be considered in the light of the existing rules, namely, “rules in force on the date” the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. 14. In Union of India and others Vs. Krishna Kumar and others, (2019) 4 Supreme Court Cases 319, Hon’ble Supreme Court has reiterated that there is no vested right to promotion, but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. 14. In Union of India and others Vs. Krishna Kumar and others, (2019) 4 Supreme Court Cases 319, Hon’ble Supreme Court has reiterated that there is no vested right to promotion, but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. Hon’ble Court further held that there is no rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose. 15. I hasten to add here that otherwise also, it is not the case of the petitioners before this Court that the vacancies which respondent-Corporation filled up after the revised Policy came into force, in fact, were available before the said revised Policy came into force. 16. In view of the observations made hereinabove, as this Court finds no merit in the present writ petition, the same is dismissed, so also pending miscellaneous applications, if any.