IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 31 of 2008 (TA No. 40/2003) Judgment reserved on : 15.5.2010 Date of decision : 24.5.2010. Vikas Gupta …Petitioner. Versus H.P.S.E.B. and Another ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. Dushyant Dadwal, Advocate. For Respondents : Mrs. Anjula Khajuria, Advocate. Kuldip Singh, Judge The petitioner in the petition has prayed for quashing of Annexure PL dated 26.2.2002 rejecting the representation of the petitioner for promotion as Assistant Engineer (Elect.) against 6% quota meant for feeder category of AMIE holders. In the petition direction has also been prayed against the respondents to promote the petitioner w.e.f. 31.12.1997 to the post of Assistant Engineer (Elect.) with all consequential benefits. 2. The further case of the petitioner is that he is qualified diploma holder in Electrical Engineering and was appointed as Junior Engineer (Elect.) [ for short ‘J.E. (E)] on daily wages on 8.1.1990 in the respondent No.1 H.P.State Electricity Board (for 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 short ‘Board’) . The petitioner qualified Sections A and B of AMIE examination conducted by the Institute of Engineers (India) in 1990 and 1994. In pursuance of order passed in CWP No. 100 of 1988 by this Court for regularization of services of daily wagers and other employees, the services of the petitioner were regularized as J.E. (E) on temporary basis on 27.1.1996. 3 It is also the case of the petitioner that as per Recruitment and Promotion Rules of the Board, the petitioner is entitled to promotion to the next higher post of Assistant Engineer (Elect.) (for short A.E. (E). The Recruitment and Promotion Rules were amended on 14.2.1986 and according to said rules 6% quota for promotion is provided for J.E. (E) who have passed Sections A & B of the examination of Institution of Engineers (India) during service period and have minimum one year service in the grade for the post of A.E. (E). The quota for promotion under the amended Recruitment and Promotion Rules for the post of A.E. (E) for qualified J.Es having 7 years service in the grade is 28%. The quota for promotion for J.Es.(E) unqualified with ITI qualification having 12 years service in the grade is 8% and the quota of promotion for J.Es. (E) unqualified having 15 years service in the grade has been collectively kept 4%. The Recruitment and Promotion Rules were further amended on 23.6. 1994 (sic 23.6.1999 Annexure PC) and the quota was again altered. 4. The Board vide office order No. 302 dated 31.12.1997 Annexure PD relaxed the Recruitment and Promotion Rules /Regulations and 50 AMIE/Graduate Junior Engineers (E) and 56 Junior Engineers (E) from other category were ordered to be 3 appointed/promoted as Assistant Engineers on regular basis. It is the case of the petitioner that relaxation was made in pursuance of the directions of the Supreme Court. The Board accordingly relaxed the Recruitment and Promotion Rules for 106 J.E. (E) for the post of A.Es on regular basis. On 31.12.1997 104 promotions were made to the post of Assistant Engineers (E) vide Annexure PD/1. On 7.3.2008 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. According to the petitioner in all at initial stage 108 promotions were made. The petitioner is the only person left out from this category, who was not given promotion pursuant to relaxation dated 31.12.1997 Annexure PD. 5. The petitioner filed several representations dated 17.2.1998, 8.11.1998, 5.1.2000 and 2.8.2001 to the Board that his case was not considered properly. The petitioner thereafter filed CWP No. 971 of 2001 which was disposed of by this Court on 4.10.2001. The petitioner also filed CWP No. 1013 of 2001 which was also disposed of by this Court on 31.10.2001. In CWP No. 971 of 2001, the main prayer of the petitioner was for a direction to the respondents to consider his case for promotion to the post of A.E. (E) against 6% quota meant for AMIE J.Es (E) in accordance with Recruitment and Promotion Rules. In the second writ petition the direction was prayed against respondents for considering the case of the petitioner for the post of Assistant Engineer pursuant to relaxation which was granted to the entire cadre of Junior Engineers in the year 1997, whereby all Junior Engineers except the petitioner who had qualified AMIE degrees were considered and promoted. 4 This Court in both the writ petitions ordered that representation of the petitioner be considered . The petitioner filed representation on 8.11.2001 which was rejected by the respondents on 26.2.2002 vide Annexure PL. The petitioner on 18.3.2002 has been promoted to the post of A.E. (E) vide Annexure PM. 6. It is also the case of the petitioner that at the initial stage when the order of relaxation was made on 31.12.1997 there were 109 Junior Engineers who were possessed with qualifications of AMIE/Graduation which they had obtained either prior to the joining of the service or during their service with the Board. The relaxation was applied to entire batch of Junior Engineers. The petitioner had qualified AMIE in the year 1994, therefore, he should have been considered in the very first batch of promotion. The petitioner has also raised grievance that in second category of 56 Junior Engineers some of them had qualified their AMIE in June, 1997 but they were granted promotion in December, 1997 but the case of the petitioner was never considered. It has been alleged that 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 is illegal, arbitrary. The action of the respondents is otherwise not in accordance with as the instructions dated 16.12.1994 Annexure PN for convening the DPC were not adhered to or followed. The DPC is to be held annually and the vacancies are to be filled in accordance with the rules prevalent on the date when the vacancies arise which has not been observed by the respondents. 5 7. The respondents have filed counter affidavit and have taken preliminary objections of laches as well as limitation. On merits, it has been submitted that it was brought to the notice of Whole Time Members (W.T.M.) that Board is appointing 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 has also to be enforced. The Board agreed that the principle of selection while holding the bulk promotions of these AMIEs/Diploma holders J.Es against the post of A.Es be not enforced to avoid supersession. It was decided that the minimum criteria of 7 years regular service as J.E. as per Recruitment and Promotion Rules be also followed. The petitioner had put in only one year service as regular J.E.(E) and was much below in the cadre of J.Es (E), he could not be promoted. All officers promoted vide Annexure PD/1 had put in minimum service of 7 years and as such the petitioner was not eligible for promotion. The promotions were made strictly in accordance with the decision dated 20.12.1997. The competent authority took decision on 20.12.1997 and thereafter office order dated 31.12. 1997 was passed. The respondents have submitted that before promoting certain officers as A.Es on 18.3.2002 vide Annexure PM, a conscious decision was taken on 14.9.2000 vide Annexure R-I that petitioner and one Ram Prakash may be considered for promotion in relaxation to the rules. The petitioner could not be promoted prior to 18.3.2002 as sufficient number of 6 posts meant for AMIE category were not available and only persons senior to the petitioner were promoted before 18.3.2002. As soon as a post became available and the petitioner came in the zone of consideration, he was promoted vide order dated 18.3.2002. The respondents have prayed for dismissal of the petition. 8. I have heard the learned counsel for the parties. The petitioner was appointed purely on temporary basis as J.E. (E) vide memo dated 27.1.1996 Annexure PA. The Recruitment and Promotion Rules for promotion to the post of A.E. (E) from various categories of J.E.(E) were amended on 14.2.1986. It is the stand of the petitioner that he is entitled for promotion to the post of A.E.(E) under 6% quota meant for AMIE J.E.(E) and such stand was taken by the petitioner in CWP No. 971 of 2001 as per the averments of the petitioner in the present petition. Annexure PL dated 26.2.2002 also indicates that petitioner is claiming his promotion to the post of A.E.(E) under 6% quota of AMIEs J.E.(E). The promotion criteria under 6% quota after 14.2.1986 amendment in R & P Rules 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.” The petitioner has relied office order No.302 dated 31.12.1997 Annexure PD for claiming promotion to the post of A.E.(E) on the ground that respondent No.1 vide office order dated 31.12.1997 took a conscious decision and relaxed the Recruitment and Promotion Regulations for promotion to the post of A.E. (E). 7 9. The office order dated 31.12.1997 relied by the petitioner is broadly in two parts. It provides as one time relaxation to Recruitment and Promotion Regulations for 50 AMIE /Graduate J.Es(E) and 27 AMIE/ Graduate J.Es. (C/M) who are working as Assistant Engineers on Adhoc or Acting basis. It also provides similar relaxation to another 56 J.Es (E) and 22 J.Es (C/M) who obtained AMIE/ Degree qualification after the above Adhoc /Acting A.Es but became senior to them, AMIE Holders, as a result of Supreme Court decision/ Board’s order shall be considered for regular promotion as A.E.(E) against vacancies meant for the direct recruitment category. 10. It is admitted case of the petitioner that on 31.12.1997 he was not working as A.E. on Adhoc /Acting basis, therefore, the case of the petitioner does not fall in the first category of office order dated 31.12.1997 vide which 50 AMIE / Graduate Junior Engineers (E) and 27 AMIE /Graduate J.Es (C/M) who were working as A.E. on Adhoc or Acting basis were to be considered for regular promotion as A.Es. In these circumstances, the case of the petitioner could be considered in the second category of 56 J.Es (E) and 22 (C/M), who obtained AMIE/ Degree qualification after the above Adhoc /Acting A.Es referred in the office order dated 31.12.1997 but became senior to them, as a result of Supreme Court decision / Board’s order. Therefore, the petitioner will have to bring his case in the second category. The office order dated 31.12.1997 nowhere provides that for promotion from J.Es (E) to A.Es (E) the Recruitment and Promotion Rules/Regulations are not to be considered. In other words, the petitioner is entitled to promotion 8 from J.E. (E) to A.E. (E) in accordance with the Recruitment and Promotion Rules/Regulations and office order dated 31.12.1997. 11. The respondents have taken the stand that before passing order dated 31.12.1997, the matter had been considered and discussed by the competent authority of the Board and a decision was taken on 20.12.1997 as follows: “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. The Board agreed that the principle of selection while holding the buil 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.” The petitioner had only one year service as regular J.E.(E) and was much below in the cadre of J.Es (E) he could not be promoted. 12. The petitioner in the petition has submitted that he had qualified Sections A & B of AMIE examination conducted by the Institution of Engineers (India) in 1990 and 1994. The petitioner was appointed temporarily as J.E. (E) on 27.1.1996. According to petitioner, he qualified Sections A & B of AMIE before his 9 appointment as J.E.(E) in the Board. He has not qualified AMIE during service. In these circumstances, the case of the petitioner does not fall under 6% quota of J.E. (E) AMIE for promotion to the post of A.E.(E) as per amendment carried out in the Recruitment and Promotion Rules on 14.2.1986. The petitioner has not challenged the amendment dated 14.2.1986 which gives benefit of improvement of qualification by way of AMIE during the service only and not to those J.Es who had already AMIE qualification before joining the service. The promotion of petitioner from J.E.(E) to A.E.(E) at the most could be considered under 28% quota of qualified J.Es as per amendment carried out in the Recruitment and Promotion Rules on 14.2.1986. The Board on 20.12.1997 took a decision that minimum criteria of 7 years of regular service as J.E. as per the Recruitment and Promotion Rules shall also be followed. The decision dated 20.12.1997 of the Board has not been challenged by the petitioner. 13. The petitioner has been promoted vide office order dated 18.3.2002 vide Annexure PM. The petitioner in the writ petition has not challenged that his promotion from J.E.(E) to A.E.(E) vide office order dated 18.3.2002 is wrong. He has rather accepted the promotion from J.E. (E) to A.E.(E) on 18.3.2002. The petitioner has miserably failed to bring his case in relaxation dated 31.12.1997 vide which 56 J.Es were to be promoted. The petitioner has not placed anything on record to show what was his seniority. In absence of seniority of petitioner as J.E.(E) it is otherwise not possible to hold whether in fact the petitioner was illegally denied promotion from J.E. (E) to A.E.(E) in view of the Recruitment and 10 Promotion Rules/Regulation and relaxation dated 31.12.1997. There is no merit in the petition. 14. No other point was urged. 15. In view of the above discussion, the petition is liable to be dismissed and is accordingly dismissed. No costs. ( Kuldip Singh ), May 24, 2010 Judge. (GR)