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2022 DIGILAW 2880 (RAJ)

Kamli Ram Meena S/o Shri Ratan Lal Meena v. Ajmer Vidyut Vitran Nigam Ltd.

2022-12-06

ARUN BHANSALI

body2022
ORDER : 1. This writ petition has been filed by the petitioner aggrieved against the orders dated 3/8/2022 (Annex.7), 3/8/2022 (Annex.8) and 11/1/2022 (Annex.6) and a prayer has been made to allow the petitioner to continue on the post of Superintending Engineer with all consequential benefits. 2. It is inter alia indicated in the petition that the petitioner was promoted on the post of Executive Engineer by order dated 23/6/2013. Whereafter, the DPC after considering the candidature of the petitioner recommended the name of the petitioner for promotion on the post of Superintending Engineer and by order dated 2/11/2020 he was promoted to the post of Superintending Engineer (O & M) on the basis of merit-cum-seniority. 3. Further submissions have been made that a charge sheet was issued to the respondent no. 4 and he was visited with penalty of stoppage of one annual grade increment without cumulative effect by order dated 9/12/2013, against the said order an appeal was filed before the Chairman, DISCOM, which came to be dismissed by order dated 3/2/2015 and, therefore, the respondent no. 4 was not promoted to the post of Executive Engineer for the year 2012-13. The respondent no.4 filed second appeal before the Board of Directors, which second appeal came to be dismissed on 23/12/2019 on the ground that there was no provision of second appeal. 4. The respondent No. 4 filed CWP No. 140/2020, which was withdrawn on 5/2/2021 with liberty to agitate the case before the respondent Department and it was directed that the respondents may deal with the same in accordance with law. 5. The Board of Directors by its order dated 11/1/2022 (Annex.6) reviewed its decision of imposing penalty on the respondent no. 4 and exonerated him. Based on the said exoneration, a review DPC was convened and the candidature of the respondent no. 4 was considered and he was promoted to the post of Superintending Engineer w.e.f. 1/1/2022 by order dated 3/8/2022 (Annex.7). As a consequence, the petitioner stood demoted as Executive Engineer and approached the respondents by filing representation against acceptance of the appeal of respondent no.4 and holding of review DPC. 6. Learned counsel for the petitioner Mr. Vinay Jain submitted that the action of the respondents in passing the order dated 11/1/2022 (Annex.6) accepting the second appeal filed by the respondent no. 6. Learned counsel for the petitioner Mr. Vinay Jain submitted that the action of the respondents in passing the order dated 11/1/2022 (Annex.6) accepting the second appeal filed by the respondent no. 4 and reviewing its decision of penalty imposed on him is ex facie illegal. 7. Submissions have been made that admittedly under the Regulations, second appeal is not maintainable and, therefore, the second appeal filed by the respondent no. 4 was rejected. The respondent no. 4 approached the High Court and withdrew the writ petition with liberty to approach the respondents by way of a representation and it was directed to be decided in accordance with law. The respondents, despite noticing that there was no provision of second appeal, only on account of the fact that this Court had passed the order to decide the representation in accordance with law, on account of misrepresentation by the respondent no. 4 qua the implication of the order, has passed the order, which is without jurisdiction and against the Regulations and, therefore, the same deserves to be set aside. 8. Further submissions have been made that the action of the respondents in holding review DPC and as a result thereof demoting the petitioner without affording him an opportunity of hearing is also not justified as before demoting the petitioner he should have been given an opportunity of hearing and on account of violation of principles of natural justice, the order impugned deserves to be set aside. 9. Notice of the petition was issued to the respondents, who have filed detailed response to the writ petition. 10. Learned counsel appearing for the respondent No. 4, Mr. Falgun Buch made vehement submissions regarding locus standi of the petitioner in questioning the validity of the decision of Board of Directors in passing the order dated 11/1/2022 setting aside the penalty imposed on the respondent no. 4. 11. It was submitted that the petitioner has no locus standi to question the validity of the order only because as a consequence of the order passed by the Board of Directors, the petitioner has been demoted, which aspect cannot give him a locus against the order impugned. 12. Reliance was placed on Chandra Gupta vs. The Secretary, Government of India, Ministry of Environment & Forests & Ors. 12. Reliance was placed on Chandra Gupta vs. The Secretary, Government of India, Ministry of Environment & Forests & Ors. : (1995) 1 SCC 23, Vijay Prakash Dixit vs. State of U.P. & Ors.: CMWP No.19069/2002 decided on 10/5/2002 by Allahabad High Court. 13. Further submissions were made that the respondent no. 4 did not make any misrepresentation before the Board of Directors pursuant to the order passed by this Court permitting him to file representation, which was ordered to be decided in accordance with law. 14. Several submissions have been made including the submission that as the order of appellate authority was per se illegal, which order has rightly been set aside by the Board of Directors, in case the said order is set aside, the same would restore an illegal order and, therefore, while exercising jurisdiction under Article 226 of the Constitution of India, this Court would not permit perpetuation of illegality and on that count also the petition deserves to be dismissed. 15. Reliance has been placed on Jagan Singh vs. State : AIR 1980 Raj. 1 . 16. Learned counsel appearing for the respondent Nigam, Mr. Mrigraj Singh Rathore made submissions seeking to sustain the power exercised by the Board of Directors with reference to the Memorandum & Articles of Association to indicate that the Board of Directors has the residuary power in relation to the business and affairs of the Nigam and, therefore, the challenge laid even on merits has no substance. 17. Leaned counsel for the petitioner in response relied on Lakhi Ram vs. State of Haryana & Ors. : AIR 1981 SC 1655 to contend that the petitioner does have a locus standi to question the validity of the order impugned. 18. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 19. As noticed hereinbefore, the respondent no. 4 was visited with penalty of stoppage of one annual grade increment without cumulative effect on 9/12/2013 and the appeal filed by him came to be dismissed by the Chairman, DISCOM on 3/2/2015. When he filed second appeal, the Board of Directors did not consider the appeal by indicating that there is no provision of second appeal in its meeting dated 23/12/2019. 20. The respondent no. When he filed second appeal, the Board of Directors did not consider the appeal by indicating that there is no provision of second appeal in its meeting dated 23/12/2019. 20. The respondent no. 4 then approached this Court by filing SBCWP No. 140/2020, wherein, the following order was passed on 5/2/2021: "Learned counsel for the petitioner seeks withdrawal of the writ petition with liberty to agitate his case before the respondents. In view of the submissions made, the writ petition filed by the petitioner is dismissed as withdrawn with liberty as aforesaid. If any issue is raised by the petitioner, the same be dealt with by the respondents, in accordance with law." 21. The respondent no. 4 made a representation to the Board of Directors with reference to the order dated 5/2/2021 seeking review of the orders passed. The Board of Directors of the respondent Nigam in its meeting dated 11/1/2022 (Annex.6), though noted that there was no provision of second appeal, by taking note of the order dated 5/2/2021 passed by the High Court, considered the representation of the respondent no. 4 and came to the following conclusion: "The Board after consideration of all aspects of the case, decided to set aside the penalty of "Stoppage of one AGI without cumulative effect" which was imposed upon him vide order No. AVVNL/MD/Secy (Admn.) / Enq/F.E-1476/00.498/D.2915 dated 09.12.2013 and accorded approval to exonerate Sh. F.R.Meena from charges levelled against him vide Memorandum letter no. AVVNL/MD/Secy (Admn.)/ENQ/F.E-1476/D.416 dated 24.02.2011. The Board further clarified that the representation of Sh. F.R.Meena has only been considered in view of the directions of the High Court and the specific circumstances of the case." 22. In the meanwhile, as the respondent no. 4 was under penalty, the petitioner, though he was junior to respondent no.4, was accorded promotion as Superintending Engineer. As a consequence of passing of the order by the Board of Directors setting aside the penalty imposed on respondent no. 4, a review DPC was held for the post of Superintending Engineer for the year 2020-21 on 2/8/2022, which made recommendation for promotion of respondent no. 4 to the post of Superintending Engineer based on the seniority-cum-merit w.e.f. 1/1/2021. As a consequence, the petitioner was reverted to the post of Executive Engineer (E&M). 23. 4, a review DPC was held for the post of Superintending Engineer for the year 2020-21 on 2/8/2022, which made recommendation for promotion of respondent no. 4 to the post of Superintending Engineer based on the seniority-cum-merit w.e.f. 1/1/2021. As a consequence, the petitioner was reverted to the post of Executive Engineer (E&M). 23. Based on the above events, the petitioner has questioned the validity of the order passed setting aside the penalty imposed on respondent no. 4, which has led to his promotion on the post of Superintending Engineer and consequential demotion of the petitioner. 24. As noticed, vehement submissions were made on behalf of the respondents that petitioner has no locus standi to question the validity of the order setting aside the penalty imposed against the respondent no. 4, only on account of consequence of such order whereby he had been demoted. 25. The said objection raised by the respondents requires determination before all other issues as unless the petition itself is maintainable, the issue pertaining to the validity of the order cannot be examined. 26. On the said aspect, the law laid down by the Hon'ble Supreme Court, as submitted by learned counsel for the parties, needs to be examined. 27. The Hon'ble Supreme Court in the case of Lakhi Ram (supra), which is a one paragraph order, inter alia laid down as under: "The only ground on which the writ petition filed by the appellant has been dismissed by the High Court is that the appellant has no locus standi to maintain the writ petition. The appellant filed the writ petition challenging the action of the Government expunging the adverse remarks made in the annual confidential report of respondent No. 6. The High Court took the view that the appellant was not entitled to complain against the expungement of adverse remarks made in the confidential report of another officer. But this view is, in our opinion, erroneous because the effect of expungement of adverse remarks in the confidential report of respondent No. 6 is to prejudice the chances of promotion of the appellant and if the appellant is able to show that the expungement of the remarks was illegal and invalid, the adverse remarks would continue to remain in the confidential report of respondent No. 6 and that would improve the chances of promotion of the appellant vis-a-vis respondent No. 6. The appellant was, therefore, clearly entitled to show that the Government acted beyond the scope of its power in expunging the adverse remarks in the confidential report of respondent No. 6 and that the expungement of the adverse remarks should be cancelled. The appellant had, in the circumstances, locus standi to maintain the writ petition and the High Court was in error in rejecting it on the ground that the appellant was not entitled to maintain the writ petition." 28. It would seen that in the said case, the petitioner had questioned the expunging of adverse remarks made in the annual confidential report of other officer and the High Court came to the conclusion that the petitioner therein has no locus standi. However, the Supreme Court came to the conclusion that the effect of expungement of the remarks in the confidential report is to prejudice the chances of promotion and if the petitioner is able to show that the expungement of remarks was illegal and invalid, the petitioner therein had a locus standi. 29. The said judgment in the case of Lakhi Ram (supra) came up for consideration before the three Judges Bench in the case of Chandra Gupta (supra), wherein, the Hon'ble Supreme Court qua the subject matter i.e. locus standi to challenge expungement of adverse entries, came to the following conclusion: "23. The said Rules do not provide for any opportunity of objection being given to any other officer against the Government decision for entering the remarks or expunging those remarks. Therefore, it should follow that no legal right or locus standi can be given to any person to challenge the expunction of an adverse entry." 30. The Hon'ble Supreme Court noted the order in the case of Lakhi Ram (supra) in full and referring to the judgment in Ramchandra Shankar Deodhar vs. State of Maharashtra : (1974) 1 SCC 317 , Mohammad Shujat Ali vs. Union of India : (1975) 3 SCC 76 and Reserve Bank of India vs. C.N.Sahasranaman : (1986) Supp SCC 143 and several other judgments, qua the said judgment, came to the following conclusion : "25. What is required to be carefully noted is the Court was considering the effect of expungement of adverse remarks which was likely to prejudice the chances of promotion. It is well-settled in law that no employee has a right or vested right to chances of promotion." 31. What is required to be carefully noted is the Court was considering the effect of expungement of adverse remarks which was likely to prejudice the chances of promotion. It is well-settled in law that no employee has a right or vested right to chances of promotion." 31. From the above, it would be seen that the judgment in the case of Lakhi Ram (supra), which was delivered observing that the petitioner therein would have locus standi on account of the fact that his chances of promotion would be affected, was negated by the larger Bench with reference to the principle that no employee has right or vested right to chances of promotion and, therefore, apparently, the aspect of locus standi as determined in the case of Lakhi Ram (supra) was negated by Hon'ble Supreme Court in the case of Chandra Gupta (supra). 32. The Division Bench of Allahabad High Court in the case of Vijay Kumar Dixit (supra) while considering both the judgments in the case of Lakhi Ram (supra) and Chandra Gupta (supra) came to the following conclusion: "Learned counsel for the petitioner relied on the decision of the Supreme Court in Lakhi Ram v. State of Haryana, and submitted that in view of this judgment, any other Government officer can challenge the order expunging the adverse remarks. The decision in Lakhi Ram's case (supra), was delivered by a two-Judge Bench of the Supreme Court. Subsequently, in Chandra Cupta v. Government of India, 1995 SCC (L & S) 210, a three-Judge Bench of the Supreme Court took, a contrary view vide paragraph 23 of that decision, which states that there is no locus standi in other persons for challenging the expunctlon of the adverse entry given to an employee. In view of the three-Judge Bench decision of the Supreme Court in Chandra Gupta's case (supra), we are of the opinion that the decision in Lakhi Ram which is a two-Judge Bench decision is not good law, and has been impliedly overruled by the larger Bench of the Supreme Court in Chandra Gupta's case (supra). Hence, in our opinion, the petitioner has no focus standi in the matter." 33. Hence, in our opinion, the petitioner has no focus standi in the matter." 33. In view of the above determination made by Hon'ble Supreme Court in the case of Chandra Gupta (supra), wherein, the aspect of locus standi only on the ground that the promotion of the petitioner would be affected/is affected was specifically negated, which alone is the basis expressed by the petitioner for the purpose of questioning the validity of the order passed by the Board of Directors setting aside the penalty imposed against the respondent no. 4, apparently, the petitioner has no locus standi to maintain the petition. 34. The other aspects raised by the petitioner pertaining to the validity of the order and the defense of the respondents seeking to sustain the order even on merits need not be examined by the Court. 35. In view of the above discussion, as the petitioner does not have locus standi to question the validity of the order passed by the Board of Directors, the writ petition filed by the petitioner cannot be entertained. The same is, therefore, dismissed.