IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.11123 of 2007 Date of decision: 22.03.2010 Avtar Singh Mahi ….Petitioner versus Punjab State Electricity Board, The Mall, Patiala through its Secretary and another. …Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ------ Present: Mr. R.S. Bajaj, Advocate, for the petitioner. Mr.P.S.Thiara, Advocate, for the respondents. ----- 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ----- K.Kannan, J (Oral) 1. The petitioner, who was a junior in the Electricity Board, claimed that he was entitled to be considered for promotion to the next higher post of Assistant Engineer on 06.04.20005 against a reserved post for scheduled caste category when a vacancy arose by a promotion of a officer by name Kuldip Singh from the Assistant Engineer post to a still higher post of Executive Engineer. The petitioner's claim was that a DPC had been constituted which had considered to him as eligible but the recommendations of the DPC had been cast in a sealed cover on account of pendency of some departmental proceedings. It is not a matter in dispute that the proceedings were not continued against the petitioner and, therefore, his name fell for consideration for promotion with reference to the DPC recommendations. When the promotion was Civil Writ Petition No.11123 of 2007 - 2 - ultimately given to him, it was made effective only from 07.12.2006 (Annexure P-5). The grievance of the petitioner is that when the order of promotion was issued under Annexure P-5 on 07.12.2006, it should have been effective from 06.04.2005 itself when the DPC had approved him of his eligibility and when a vacancy had fallen. 2. Initially the contention in defence was that the petitioner was not entitled to consideration and that there was no vacancy to the post of Assistant Engineer at the time when proceedings were pending against him. The petitioner claims that he had obtained information by resort to RTI Act that the DPC had itself considered the petitioner's eligibility and they had found as per the calculation of the previous year's cadre strength, 4 posts fell to the share of category of Assistant Engineers out of which, one belonged to the post of scheduled caste category and that after the promotion of Kuldip Singh to a higher post in the said category which promotion came about in compliance of the directions of this Court in Civil Writ Petition No.10058 of 2003, a vacancy of scheduled caste category quota had fallen. When the reference of the DPC recommendations had been filed by the petitioner, the respondent had filed an affidavit through one Babu Ram, Deputy Secretary/Services- II to the effect that there were 36 posts and at the relevant time in the year 2005, there were only 5 vacancies for the scheduled caste category, but 6 persons were already occupying posts and, therefore, there was no vacancy which was available. It is sought to be brought through the affidavit that previously the reservation policy which was worked out through a roster system taking into account categories amongst graduate Civil Writ Petition No.11123 of 2007 - 3 - engineers and diploma holders were subsequently modified and from the year 2005, it was 100 point roster that revealed that there were no vacancies for scheduled caste category. This contention that there was a change in the consideration of the roster to the reservation for scheduled caste comes about through an affidavit which is unsubstantiated in any way and which runs counter to the subject that has been dealt with by the DPC and which registers a factual situation that there had been a vacancy created by the promotion of one of the reserved category candidates in the year 2005. In my view, the petitioner's contention that there was a vacancy has to be accepted from what was contained in the DPC recommendations and the consideration of the matter that there was a vacancy available. The respondents shall not be permitted to take up a plea inconsistent with their own written statement where they had not denied that the DPC had considered the petitioner's candidature and recommended for his promotion, but however it could not be given effect only on account of the sealed cover procedure that had to be adopted by the pendency of some departmental proceedings. 3. The petitioner is entitled to the relief that he seeks for and he shall be considered as having been notionally promoted w.e.f. April 2005 with attendant increase in scales and seniority when a vacancy fell. However, the petitioner shall not be entitled to any monetary benefits and it shall be arise only from when he assumes office. 4. The writ petition is allowed on the above terms. (K.KANNAN) 22 .03.2010 JUDGE sanjeev