IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.80 of 2008 Date of Decision: 9.01.2009 Punjab State Electricity Board Appellant Versus Narinder Singh and others Respondents CORAM:- HON'BLE MR. JUSTICE T.S.THAKUR, CHIEFJUSTICE HON'BLE MR. JUSTICE JASBIR SINGH Present: Mr.P.S.Thiara, Advocate for the appellant Mr.B.R.Mahajan, Advocate for respondent No.1 Mr.Sanjeev Sharma, Advocate for Mr.Sandeep Khunger, Advocate for respondents No.2 and 3 … Jasbir Singh, J. Appellant Punjab State Electricity Board has filed this Letters Patent Appeal against judgment dated 21.11.2007, passed by the Learned Single Judge, vide which Civil Writ Petition No.12933 of 1992, filed by respondent No.1, was allowed, directing the authorities to consider his claim for promotion to the post of Junior Engineer-II. In case of promotion, further directions were also issued for grant of consequential benefits. Facts disclosed that respondent No.1 (petitioner) joined service with respondent No.2 as a lineman on 20.6.1981. Respondent No.5 Harbhajan Singh also joined service with respondent No.2 as a lineman on Letters Patent Appeal No.80 of 2008 10.10.1985. Admittedly, respondent No.5 was junior to respondent No.1 in the cadre of Lineman. The post of Junior Engineer-II, with respondent No.2, was required to be filled up, by way of promotion, from amongst the Linemen, holding Diploma and National Trade Certificate. Above said norm was fixed by respondent No.2 vide resolution No.506 dated 17.6.1976. After entry in service, the petitioner acquired the requisite qualification for promotion against the post of Junior Engineer-II in the year 1989. In the meantime, vide resolution No.280 dated 12.3.1981, draft service regulations were prepared, mode of appointment to the above said post was changed and it was mentioned in the above said resolution that on approval of those regulations by the government, appointment to the post in question shall be made by way of direct recruitment. It is an admitted fact that draft regulations were never approved, as per provision of Section 398(2) of the Punjab Municipal Corporation Act, 1976 (in short the Act), by the competent authority. In the year 1992, respondent No.2 decided to fill up six posts of Junior Engineer-II, as per provisions of draft regulations, from the open market. Opportunity was also given to the ‘in service’ candidates to compete for those posts. As per established facts respondents No.1 and 5, both were eligible for promotion to the post(s) of Junior Engineer, reserved for the Scheduled Caste candidates. Both competed for the post(s) in dispute. Respondent No.5 was selected, however, respondent No.1 was put in the waiting list. As per old norms, providing appointment to the post of Junior Engineer-II, by way of 100% promotion, two posts meant for reserved category candidates were available in the year 1992. However, under the 2 Letters Patent Appeal No.80 of 2008 provisions of unapproved draft regulations, only one post of Junior Engineer-II was filled up by a reserved category candidate (respondent No.5). At that stage, respondent No.1 filed a writ petition in this Court, which was allowed vide the impugned judgment. Mr.P.S.Thiara, Advocate, appearing for the appellant, has vehemently contended that learned Single Judge was not justified in allowing the writ petition filed by respondent No.1. By placing reliance upon judgment of the Hon’ble Supreme Court in Union of India through Govt. of Pondicherry and another v. V.Ramakrishnan and others, 2005(4) RSJ 757, he argued that in the absence of rules, governing procedure of promotion/ appointment to the post of Junior Engineer-II, the authorities were justified in making appointment, against the above said post, as per provisions of the draft regulations. He prayed that judgment under challenge be set aside. Prayer made has vehemently been opposed by Mr.B.R.Mahajan, Advocate, appearing for respondent No.1. He has argued that no appointment could have been made under the draft regulations unless those regulations were approved by the Punjab Government. To say so, he has relied upon provisions of Section 398(1) of the Act. He prayed that the appeal, having no substance, be dismissed. Facts are not in dispute. Admittedly, respondent No.1 was senior to respondent No.5 in the cadre of Lineman. Both belong to reserved category. When posts of Junior Engineer-II were filled up in the year 1992, admittedly, two posts for reserved category candidates, were available. Keeping in view the provision of draft regulations, which provided for direct appointment to the above said post, claim of respondent No.1 was ignored. 3 Letters Patent Appeal No.80 of 2008 We are to analyze whether above said act of the authorities was justified or not? Perusal of resolution No.506 dated 17.6.1976, indicates that appointment against the post of Junior Engineer-II was by way of 100% promotion from amongst the Diploma holders linemen with two years experience. Following channel of promotion was provided in the above said resolution:- “Channel of Promotion. 100% vacancies shall be filled in amongst the departmental diploma holders with 2 years experience after qualifying the diploma, if the required number of candidates are available in the department, as mentioned at Para ‘A’ failing which:- 1. 34% of the balance vacancies shall be filled in by direct recruitment as per qualification mentioned above in para No.(d). 2. 33% of the balance vacancies from the departmental candidates possessing qualifications and experience as mentioned in para No.(b) on integrated joint merit-cum- seniority. 3. 33% of the balance vacancies from the departmental candidates possessing – qualification and experience as mentioned in para No.(c) Note: Preference shall be given to the candidates having experience in Electrical Instrumentation for the post of Test Inspectors.” As per record, respondent No.2 passed a resolution No.280 dated 12.3.1981 (P-6), vide which, draft service regulations were prepared to regulate recruitment and conditions of service of various categories of 4 Letters Patent Appeal No.80 of 2008 employees of respondent No.2, including Junior Engineer-II. Admittedly, as per above said regulation, appointment to the post of Junior Engineer-II was envisaged from the open market by way of direct recruitment. The draft regulations were sent for approval to the government. As per provision of Section 398 of the Act, which mandates that no regulation made by the Corporation, under the above said Act, shall take effect unless approved by the Government and published in the official gazette. Those regulations were never approved by the government. Even after framing of the above said regulations, in, the year 1986, posts of Junior Engineer-II were filled up on the basis of norms fixed by respondent No.2 vide resolution No.506 dated 17.6.1976. However, in the year 1992, when six posts became available, without waiting for approval of the draft regulations by the State Government, respondent No.2 decided to fill up those posts as per norms fixed in those regulations. Despite availability of two posts meant for reserve category candidates, respondent No.1, failed to get entry in service as Junior Engineer-II. Learned Single Judge, by noticing above said position has rightly held that unless approved by the State Government, appointment under the provisions of draft service regulations could not have been made. In that regard, it was opined as under:- “The regulations/ rules were framed vide resolution No.280 dated 12th March, 1981 in exercise of the power under Section 398(1). However, these regulations could only be enforced after approval by the Government as required under Section 398(2) and notified in the Government Gazette. It is admitted by the respondents that these regulations/ rules were never approved by the Government and there is nothing on record to 5 Letters Patent Appeal No.80 of 2008 show that these were ever notified by the Government. This issue is covered by a judgment of the Apex Court reported as Vimal Kumari v. State of Haryana and others, 1998(2) SLR 230 wherein the Apex Court has made following observations:- “8. In the absence of any decision of the State Government that so long as the Draft Rules were not notified, the service conditions of the appellant or the respondent and their other colleagues would be regulated by the “Draft Rules” prepared in 1983, it was not open either to the Government or to any other authority, nor was it open to the High Court, while disposing of the writ petition, to invoke any of the provisions of those rules particularly as the Government has not come out with any explanation why the Rules, though prepared in 1983, have not been notified for the period of more than a decade. The delay, or rather in action is startling.” By observing as above, learned Single Judge has rightly held that respondent No.1 being senior to respondent No.5, should have also been considered for promotion to the post of Junior Engineer-II. As per averments made in the writ petition, electrical wing of respondent No.2 was taken over by the appellant on 1.4.1995 and thereafter, respondents No.1 and 5, both became its employees. By taking note of a fact that dispute pertains to the period, when both of them were employees of respondent No.2, directions were rightly issued to respondent No.2, to consider claim of respondent No.1 from the date when respondent No.5 was appointed against the post of Junior Engineer-II. No direct/ effective relief was granted 6 Letters Patent Appeal No.80 of 2008 against the appellant, as such, we feel that probably, there was no cause with the appellant to file this appeal. Reliance of Mr.Thiara, upon judgment of the Hon’ble Supreme Court in V.Ramakrishnan’s case (supra), to say that promotions made under the draft regulations, were justified, is not correct. In the above said case, considering similar controversy, it was observed as under:- “27. Valid rules made under proviso appended to Article 309 of the Constitution of India operates so long the said rules are not repealed and replaced. The draft rules, therefore, could not form the basis for grant of promotion, when Rules to the contrary is holding the field. It can safely be assumed that the principle in Abraham Jacob (supra), Vimal Kumari (supra) and Gujarat Kisan Mazdoor Panchayat (supra) that draft Rules can be acted upon, will apply where there are no rules governing the matter and where recruitment is governed by departmental instructions or executive orders under Article 162 of the Constitution of India.” Reading of the passage, extracted above, clearly indicates that action can be taken under the draft regulations only when no rules, governing the matter, were in existence. However, in this case, position is altogether different. The norms/ rules fixed for appointment to the post of Junior Engineer-II, vide resolution No.506 dated 17.6.1976, were in existence when promotion in dispute, was made in the year 1992. In the year 1986 i.e. after framing the draft regulations in the year 1981, respondent No.2 made appointment against the post of Junior Engineer-II as per norms/ rules set out vide resolution dated 7.6.1976. However, without waiting for approval by the competent authority, a different procedure was 7 Letters Patent Appeal No.80 of 2008 adopted when promotion to the post of Junior Engineer-II was made in the year 1992, to the detriment of respondent No.1. In view of facts mentioned above, we feel that there is no substance in this appeal. Learned counsel for the appellant has failed to show any legal infirmity in the judgment under challenge, passed by the learned Single Judge. No other point was raised. No case is made out for interference. Dismissed. (JASBIR SINGH) JUDGE 9.01.2009 (T.S.THAKUR) gk CHIEF JUSTICE 8