Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/S) NO. 1768 OF 2003 Ishwar Das ………………..Petitioner. Versus Uttaranchal Jal Vidut Nigam Ltd. and Others. ……..Respondents. Present: Mr. B.P. Nautiyal, Advocate for the petitioner. Mr. Vinay Kumar, Advocate for respondent nos. 1 and 2. Mr. M.C. Pant, Advocate for respondent no. 3. Date of Decision : 20.8.2010. Hon’ble Sudhanshu Dhulia, J. 1. Heard Mr. B.P. Nautiyal, Advocate for the petitioner, Mr. Vinay Kumar, Advocate for respondent nos. 1 and 2 and Mr. M.C. Pant, Advocate for respondent no. 3. 2. The petitioner has filed this writ petition, inter alia, challenging the promotion of respondent no. 3 to the post of “Cable Jointer” in Uttaranchal Jal Vidut Nigam Ltd, Dhakrani, Dehradun. The contention of the petitioner is that under the rules applicable in the Uttaranchal Jal Vidut Nigam, the post of Cable Jointer, which is admittedly a single such post in the Department, can only be filled by way of promotion from T.G.-II Electricals. Respondent no. 3 is neither qualified to be appointed to such post, nor is the promotion made in accordance with the rules and the law applicable in these matter. Hence, the present writ petition. 3. The petitioner contends that he is working as Technical Grade-II (Electricals) for the last 15 years and the post of Cable Jointer fell vacant as the earlier incumbent namely Sri Mohd. A. Khan was promoted to the next higher post. It is also contended that there is only one post of Cable Jointer in the Department and as such the roster of reservation cannot be applied, for this single post. The earlier incumbents Shri Mohd. A. Khan and Shri Sachidanand Sharma were occupying this post and they were both general candidates. Once the post became vacant, a notification was issued on 6.6.2003 asking for eligible candidates for promotion to the said post. The notice dated 6.6.2003 has been annexed with the writ 2 petition and has been marked as Annexure-1. This notice has been issued by the Executive Engineer, Jal Vidut Utpadan Khand, Dhakrani, Dehradun asking for eligible candidates to apply for certain posts, one of them being the post of “Cable Jointer”. The case of the petitioner is that after duly constituted Committee considered the applications, which were received by the Department in response to the above notice, as referred above, the Committee short-listed the names of two candidates vide its order dated 1.8.2003, where at Serial No. 1 is the name of the petitioner and at Serial No. 2 is the name of one Mijazi Lal. This order dated 1.8.2003 has also been annexed by the petitioner in the writ petition, which has been marked as Annexure-2. In the said order, the initial appointment of the petitioner in the Department has been shown as 17.12.1988, whereas the initial appointment of Mijazi Lal has been shown as 7.7.1991. The qualifications against the name of the petitioner is High School with I.T.I. Diploma and the qualification of Mijazi Lal has been shown as High School. Vide the said order dated 1.8.2003, objection was invited from other persons to such seniority/merit as has been short-listed by the Department. Thereafter, according to the petitioner, there was an interview and practical test which according to the petitioner went very well and there was no question of his not being promoted to the post of “Cable Jointer”. However, the petitioner was surprised to know later that respondent no. 3 has been promoted to the post of “Cable Jointer” who is not having the minimum qualification as required under the law, nor was he ever short-listed, unlike the petitioner and his name nowhere figured in the process, so far. The petitioner has also annexed rules relating to the post of Cable Jointer with the writ petition, which have been marked as Annexure-3. The Rules clearly stipulate that the minimum qualification for promotion to the post of Cable Jointer will be High School and a Diploma in Electrician Trade or such equivalence and seven years of continuous service on Grade-II post and knowledge of cable joining or 15 years of service in any grade with experience of cable joining. The feeding cadre is also given in Column – 6 of the said Rules, which is under Grade-P by promotion from Technical Grade –II (Electrical) or any other candidate who have fifteen 3 years of regular service with the experience of cable joining. Admittedly the petitioner is having all the qualifications. He is High School and has a Diploma of I.T.I. and also has experience of cable joining. On the other hand, the petitioner states that these qualifications are not there with respondent no. 3 as he is not working in Technical Grade-II post, but on a much lower post. Moreover, he was only working as a Lines Man and whatever experience he has as a Line Man cannot be considered to be an experience equivalent to that of a Cable Jointer. The petitioner has challenged the order dated 2.12.2003. This order was not filed by the petitioner with the Writ Petition, but it has been subsequently filed by the petitioner by a Supplementary Affidavit, which is taken on record. 4. The case of the respondent i.e. Jal Vidut Nigam is that it is wrong to say that respondent no. 3 was not qualified as the Rules prescribe not just the feeding cadre from T.G.-II (Electricals) but from any one who has 15 years’ experience in cable joining. Moreover, respondent no. 3 also contends that it was a reserved post and as per the reservation roster, the first and sixth post had to fall for Scheduled Caste category candidate and a Scheduled Caste candidate only could have been promoted on this post. This is also the contention of respondent nos. 1 and 2 that the post on which respondent no. 3 was promoted was to be filled only by a reserved candidate as these are eight posts in T.G. I Mechanical only of which the post of “Cable Jointer” is one of the posts. Therefore Cable Jointer is not a single post but one post in a group of eight posts only of which one post has to be reserved for S.C. candidate. This contention about the application of roster and the post being reserved for Scheduled Caste candidate cannot be accepted by this Court from the records available before it. Firstly, had the post been reserved only for the Scheduled Caste candidate, such a notice must have been given right at the very beginning when the post fell vacant. Notice dated 6.6.2003 does not call for applications only from the reserved category candidates, nor does it specify that the post has to be filled by way of promotion from the reserved category candidates. Moreover, earlier incumbent Mohd. A. Khan and Shri Sachidanand Sharma were General Category candidates. Therefore, the presumption would be that it was not a post reserved for 4 Scheduled Caste candidates. Moreover, there is also force in the contention of the petitioner that the post being a Single Post cannot be filled by way of reservation. Therefore, the application of roster or the post being reserved for Scheduled Caste candidate cannot be accepted by this Court. Regarding eligibility inter se between petitioner and respondent no. 3 there is a huge gap. The petitioner has been working on T.G.-II (Electricals) for the last more than 13 years. He is High School and is having a Diploma of I.T.I and respondent no. 3 is not working in Grade-III post but on a much lower post; on the post of a Linesman. Whether he has 15 years’ experience as a Cable Jointer is also not clear, but what is more striking is that the minimum qualification of 15 years’ experience on any post, which is mandatory is also not fulfilled by respondent no. 3. The petitioner does not have 15 years’ experience as he was initially appointed on 17.12.1988, and therefore, in the year 2003 when the post became vacant and the selection was to be made on that post he was not having an experience of 15 years, and therefore, respondent no. 3 was not even eligible for being promoted on the post of Cable Jointer. The letter dated 8.12.2003 (Annexure – 4 to the writ petition) justifying the selection of respondent no. 3 is entirely misconceived. It appears to be an after thought, where entire Rules and Procedures have been given a go bye. In promotion of respondent no. 3 all the norms and rules applicable to the Department have been violated. Therefore, the promotion of respondent no. 3 on the post of Cable Jointer vide order dated 2.12.2003 is set aside. The Deputy General Manager/Respondent no. 2 is, therefore, directed to consider again the suitable candidate from the list of the candidates short listed by them earlier i.e. Mr. Ishwar Das (present petitioner) and one Mr. Mijazi Lal. The respondents shall pass an appropriate order within a period of three weeks from the date a certified copy of this order is produced before him. 5. In view of the aforesaid directions, the instant Writ Petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 20.8.2010 Rathour