IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 5087 of 2008 (OA No.3647/99) Judgement reserved on: 24.7.2009. Date of decision: 6.8.2009. Pankaj Rai & ors. …..Petitioners. Vs. H.P. State Electricity Board & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioners : Mr. Ajay Mohan Goel, Advocate. For the Respondents : Ms Anjula Khajuria, Advocate, for respondent No.1. Mr. P.P.Chauhan, Advocate, for respondents No. 6, 14, 17, 33 and 36. Ms. Ranjana Parmar, Advocate, for respondents No. 11, 26 and 28. Mr. Dilip Sharma, Advocate, for respondent No. 34. Kuldip Singh, Judge. The petitioner had filed O.A. No. 3647 of 1999 before erstwhile H.P. Administrative Tribunal (for short, the Tribunal). The Tribunal was abolished and O.A. No. 3647 of 1999 was transferred to this court in view of Himachal Pradesh Administrative Tribunal (transfer of decided and pending cases and applications) Act, 2008, on transfer the O.A. No. 3647 of 1999 was registered in this Court as CWP(T) No. 5087 of 2008. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2. The petitioners are aggrieved against their seniority as against the private respondents. The case of the petitioners is that they are direct recruits, the private respondents who are promotees are junior to them but they have been wrongly placed senior to them in the seniority list by respondent No.1- H.P. State Electricity Board (for short, the Board). 3. The petitioners have prayed the following main reliefs in the petition:- (a) Declare the act of the respondents of filling only 13 posts of Assistant Engineers (Civil & Mechanical) by way of direct recruitment against 75 vacant posts out of which as per Recruitment and Promotion rules 54 percent were required to be filled up by way of Direct recruitment as arbitrary, discriminatory and contrary to Recruitment and Promotion rules. (b) Declare the act of respondents of making excess promotions to the posts of Assistant Engineers (Civil & Mechanical) vide office orders dated 31.12.1997 and 18.7.1999 (sic 18.7.1998) in violation of the Recruitment and promotion rules as arbitrary, illegal and unconstitutional and declare the promotions made in excess of provisions of recruitment and promotion rules as illegal and quash the same. (c) Declare the act of the Respondent Board of placing all the respondents who have been promoted to the posts of Assistant Engineers (Civil & Mechanical) in violation of the Recruitment and Promotion rules including those who were promoted as Assistant Engineers after the appointment of the applicants, vide impugned seniority list Annexure A 1 as arbitrary, illegal and bad and …3… quash the same and direct the respondents to fix the inter se seniority of the applicants and respondents strictly as per the roster maintained by the Respondent Board for the purpose of maintaining inter se seniority amongst Assistant Engineers (Civil & Mechanical) direct recruits and promotees and the recruitment and promotion rules. (d) That in case this Hon’ble Tribunal is pleased not to quash the promotions of the respondents made by the respondent Board in violation of the Recruitment and Promotion Rules, then to direct the respondent Board to fix the inter se seniority of the applicants only qua those respondents who were eligible for promotion as per the recruitment and promotion rules in proportion to percentage laid down in the said rules for their promotion in 1997 and further direct to place all the other respondents below the applicants in the seniority list for all intents and purposes. 4. The further case of the petitioners is that their exists posts of Assistant Engineers (Civil/ Mechanical) (for short, Assistant Engineers) in the Board, which are filled in as per regulations of the Board. At the time of recruitment of the petitioners, the recruitment to the posts of Assistant Engineers was 54% by way of direct recruitment and 46% by way of promotion, as per regulations. 46% quota of promotion was meant for various categories of Junior Engineers and drawing staff. 5. On 26.8.1997 vide Annexure A-3, the H.P. Public Service Commission (for short, the Commission) had advertised 13 posts of Assistant Engineers and 21 posts of Assistant Engineers …4… (Electrical) for the department of MPP and Power. The petitioners were concerned with the posts of Assistant Engineers. The petitioners were eligible for the posts of Assistant Engineers, they applied to the Commission. The written examination was conducted by the Commission on 29.11.1997 for the posts of Assistant Engineers (Mechanical) and on 11.1.1998 for the posts of Assistant Engineers (Civil). The petitioners successfully cleared the written examination, they were interviewed in February, March 1998 and the result was declared by the Commission in March 1998 and the petitioners were shown as successful candidates. 6. The petitioners were offered posts of Assistant Engineers by the Board vide appointment letters dated 12.6.1998. In pursuance of appointment letters, the petitioners had joined the Board as Assistant Engineers. The petitioners after joining came to know that at the relevant time when the process of direct recruitment of Assistant Engineers was initiated by the Board under the department of MPP & Power through Commission, there were in all 75 vacancies of Assistant Engineers with the Board. The Board as per regulations was required to fill up 54% of these vacancies. In other words, the Board was required to fill in 41 vacancies through the process of direct recruitment and remaining by way of promotion. The Board in gross violation of regulations offered only 13 posts out of 75 vacancies through direct recruitment against 54% or 41 posts and filled in the remaining vacancies by promotion in excess of quota prescribed in the regulations vide Annexure A-5 dated 31.12.1997 promoting 59 persons to the posts of Assistant Engineers from …5… various feeder categories. On 18.7.1998 vide Annexure A-6 the Board again promoted four Junior Engineers to the posts of Assistant Engineers. 7. The promotions made by the Board to the posts of Assistant Engineers vide Annexures A-5 and A-6 were not only in excess of percentage prescribed for promotion in the regulations but was also not inconsonance with the percentage of posts to various feeder categories within 46 percent. 8. The petitioners on coming to know illegalities committed by the Board for promotion, took up the matter with the Board. Some of the petitioners had correspondence with the Board vide Annexures A- 7A to A-7F, but Board did nothing. The Board did not supply the petitioners roster for maintaining inter se seniority of direct recruits and promoted Assistant Engineers. Only oral information for maintaining 25 point roster was supplied. 9. The Board did not issue any seniority list of the petitioners and the private respondents despite requests, but finally came out with the seniority list vide office order dated 23.4.1999 Annexure A-1. The petitioners were surprised to note that all promotees Assistant Engineers including those who were promoted as Assistant Engineers after the appointments of the petitioners vide Annexure A-6 were placed above the petitioners in the seniority list. The petitioners made representations Annexures A-8A to A-8F against the seniority list but Board did not decide the representations of the petitioners. …6… 10. The regulations provide ratio of 54:46 between direct Assistant Engineer and promotee Assistant Engineers. Only 13 posts by way of open competition were advertised and the Board could not have promoted more Junior Engineers to the posts of Assistant Engineers than as per the percentage mentioned in the regulations, taking 13 posts to be 54% of total posts available to be filled up. The respondents had not maintained the sanctity of the regulations. The respondents No. 51, 52, 55, 56 were promoted as Assistant Engineers after the appointments of the petitioners but even respondents No. 51, 52, 55 and 56 were placed above the petitioners in the seniority list. The act of the respondents of placing all the respondents above the petitioners in the seniority list dated 23.4.1999 is dehors the roster maintained by the Board for maintaining inter se seniority of Assistant Engineers direct recruits and promotees. On these facts, the petitioners have prayed for the reliefs, noticed above. 11. The respondent No.1 contested the petition by filing reply. The stand of respondent No.1 is that Recruitment and Promotion Regulations (for short, the regulations) were notified by the Board on 30.4.1983 and 10.6.1986 vide Annexure A-2, according to which the posts of Assistant Engineers are to be filled from amongst direct recruits and promotees in the ratio of 54:46. The regulations were amended on 23.6.1999 vide Annexure R-1 and thereafter the posts of Assistant Engineers are to be filled in the ratio of 50:50 from direct recruits and promotees. 12. The Government of Himachal Pradesh had imposed ban on direct recruitment with a view to effect economy. The ban …7… imposed by the government was adopted by the Board vide order dated 21.3.1990 Annexure R-2, as a result of which 54 posts of direct recruits out of 54% from the years 1989 to 1997 could not be filled up and the work was suffering. There were about 49 Junior Engineers (Civil/ Mechanical), who had improved their qualifications and passed Sections A and B of AMIE, which is recognized degree equivalent to BE degree. There were already some Junior Engineers promoted as Assistant Engineers on ad hoc or acting basis. The posts of direct recruit were remained unfilled and the work was suffering. The Junior Engineers (Civil/ Mechanical) had acquired requisite qualifications and experience, therefore, the Board took a policy decision to promote them to the posts of Assistant Engineers against 54 posts for direct recruitment in relaxation to regulations as one time settlement as per decision conveyed vide office order No. 302 dated 31.12.1997 Annexure R-3 to tide over the increase volume of work. 13. The Government of India, vide letter dated 7.2.1986 had laid down general principles for determining the seniority of various categories of persons which were adopted by the government vide letter dated 7.10.1986 and have been made applicable to the Board vide office memo dated 19.12.1986 Annexure R-4. On the basis of these principles, for determining the seniority of promotees and direct recruits, it has been laid down that in future principle of rotation of quota will still be followed for determining the inter se seniority of direct recruits and promotees, the present practice of keeping vacant slots for being filled by direct recruits of later years, thereby giving …8… them unintended seniority over promotees, who are already in position would be dispensed with. 14. It has been pleaded that respondents No. 2 to 50, 53, 54 and 57 to 63 were promoted vide office order dated 31.12.1997 Annexure A-5. The respondents No. 51, 52, 55 and 56 were promoted vide order dated 18.7.1998 Annexure A-6, though these respondents were also to be considered for promotion alongwith respondents No. 2 to 50, 53, 54 and 57 to 63, but they could not be promoted due to non-availability of their ACRs at that time. The petitioners were recruited in June 1998 whereas respondents No. 2 to 63 were promoted in December 1997 and as per general principles for determining the seniority of various categories of persons, inter-alia, provides that the additional direct recruits selected against carry forwarded vacancies of the previous year would be placed enbloc below the last promotee or direct recruit as the case maybe in the seniority list based on the rotation of vacancies for that year. In other words, if direct recruits and promotees are not made simultaneously, then direct recruits and promotees whosoever appointed/ promoted earlier would be placed senior and the additional direct recruits selected against carry forwarded vacancies of previous years would be placed enbloc below the last promotee or direct recruit as the case may be in the seniority list based on the rotation of vacancies for that year. The private respondents were promoted earlier to the petitioners and have been rightly assigned the seniority above the petitioners vide office order dated 23.4.1999 Annexure A-1. …9… 15. On merits, respondent No. 1 has denied the case of the petitioners. The Board after giving one time relaxation of regulations had decided to consider 27 AMIE/ graduates Junior Engineers, who were working as Assistant Engineers on ad hoc or acting basis for regular promotion as Assistant Engineers against the posts falling in the shares of graduates meant for direct recruits. The Board also decided that another batch of 22 Junior Engineers (Civil/ Mechanical), who had obtained AMIE/ degree qualification after about 27 persons, who were promoted on ad hoc or acting basis and thereafter became senior to above persons, as a result of Board’s instructions dated 18.8.1995 Annexure R-5 were considered for regular promotions to Assistant Engineers against the vacancies meant for graduates/ direct recruits category. Accordingly, 46 Assistant Engineers were promoted vide office order dated 31.12.1997 Annexure A-5. On 18.7.1998 vide Annexure A-6, two Junior Engineers (Civil/ Mechanical) AMIE holders and two Junior Engineers non-diploma were promoted. The petitioners have been given right place in the seniority list. 16. It has been contended that issue regarding filling up of vacant posts by direct recruitment of Assistant Engineer was taken up with the government for appointment of 13 Assistant Engineers by way of direct recruitment vide letter dated 11.7.1997 Annexure R-8 and after obtaining approval of the government 13 Assistant Engineers including petitioners No. 1 to 8 were appointed in June 1998. …10… 17. Respondent No.3 has filed the reply and has taken more or less the same stand as taken by the Board. Respondents No. 5,6,10,12 to 14, 16 to 20, 22 to 36, 46 to 48, 53 and 54 have filed separate but common reply and took several preliminary objections such as maintainability, the petitioners have not challenged office order No. 302 dated 31.12.1997 Annexure R-3. Annexure A-1 is nothing but an act of the Board in pursuance of decision dated 31.12.1997. The Board initially issued tentative seniority list Annexure R-4/1 on 4.7.2001 to which no representation was filed by the petitioners. The tentative seniority list was finalized thereafter, which has not been challenged by the petitioners and mere challenge to Annexure A-1 is not enough. The petitioners have not challenged the subsequent promotion orders dated 20.5.2002 Annexure R-5/2 of some of the respondents to the posts of Assistant Executive Engineers. Most of the respondents were promoted on 31.12.1997 and the petition was prepared on 10.12.1999. The petition is barred by delay and laches. The petitioners have not exhausted alternative remedy provided in sub-rule (iv) of rule 23 of CCS (CCA) Rules, 1965. On merits, these respondents have adopted the reply of the Board. 18. The respondents No. 11, 12, 14, 18, 19, 23, 24, 26, 27, 40 and 41 have filed separate common reply in which preliminary objection of maintainability has been taken. It has also been stated that petitioner No. 1 has joined the Himachal Pradesh Administrative Services, whereas petitioners No. 2, 6 and 8 have been absorbed in the Satluj Vidyut Nigam Limited and have no lien in the Board. It has …11… been pleaded that promotions were made in pursuance of relaxation granted by the Board on 31.12.1997, which decision of the Board has not been assailed. On merits, these respondents have taken more or less the same stand as taken by the Board. It has been contended that even for making promotions to the posts on acting basis, departmental promotion committee had assessed the suitability of eligible candidates. The petitioners have filed rejoinder to the reply of Board and reiterated their stand of the petition while controverting the stand put forward by the Board. 19. It is the case of the petitioners that Assistant Engineers in Board are appointed in the ratio of 54:46 from direct recruits and promotees as per regulations. The process for filling 13 posts of Assistant Engineers in the Board by way of direct recruitment was started on 26.8.1997 and the petitioners were appointed as Assistant Engineers vide appointment letters dated 12.6.1998. At the time of recruitment of the petitioners there were in all 75 vacancies, out of them 41 vacancies were of direct recruits on the basis of 54% quota and the remaining vacancies were of the promotees, but the Board proceeded to fill up only 13 posts of Assistant Engineers out of 75 vacancies in violation of regulations. On 31.12.1997 Board promoted 59 persons from various feeder categories to the posts of Assistant Engineers. The Board again on 18.7.1998 promoted four Junior Engineers to the posts of Assistant Engineers. The Board has placed petitioners below the promotees in the seniority as Assistant Engineers. The promotion of private respondents against the posts of direct recruits as Assistant Engineers and placing them in seniority …12… above petitioners is wrong. The respondents No. 51, 52, 55 and 56 were promoted as Assistant Engineers on 18.7.1998 after the petitioners but even these respondents have been placed above the petitioners in the seniority list of Assistant Engineers. 20. The case of the respondents is that the Government had imposed ban on direct recruitment on 21.3.1990, this was adopted by the Board and, therefore, the direct recruitment in the Board was banned, which continued for long time. In order to cope up with the work of the Board a conscious decision was taken by the Board on 31.12.1997 vide Annexure R-3 for one time relaxation of regulations for making promotions to the posts of Assistant Engineers against the quota of direct recruits. The promotees were promoted against the quota of direct recruits under statutory powers, therefore, no fault can be found with the promotions of private respondents to the posts of Assistant Engineers against the quota of direct recruits. The relaxation given by the Board vide office order No. 302 dated 31.12.1997 Annexure R-3 has not been assailed. The promotions and seniority of private respondents are referable to office order No. 302 dated 31.12.1997 and in absence of challenge to office order No. 302, the petitioners have no case. The seniority of private respondents has been rightly determined keeping in view general principles for determining the seniority of various categories employed under H.P. Government and circulated vide office memo dated 7.10.1986 adopted by the Board vide office memo No. 9.12.1986 Annexure R-4. The respondents have been rightly placed above the petitioners in the seniority list of Assistant Engineers. …13… 21. Mr. Ajay Mohan Goel, learned counsel for the petitioners has submitted that admittedly posts meant for direct Assistant Engineers were lying vacant. The government approved appointments of 3 Assistant Engineers by way of direct recruitment on 4.12.1996 and government again approved appointment of 10 Assistant Engineers by way of direct recruitment on 9.7.1997, thus in all 13 posts of Assistant Engineers were cleared for appointment by way of direct recruitment, which is evident from letter dated 11.7.1997 Annexure R-8. In these circumstances, the Board took conscious decision to fill up 13 posts of Assistant Engineers by way of direct recruitment and on 26.8.1997 vide Annexure A-3 13 posts of direct Assistant Engineers were advertised and the petitioners in fact were appointed vide appointment letters dated 12.6.1998 by way of direct recruitment after completing the process of selection. The relaxation dated 31.12.1997 provides only promotion against direct quota and it does not provide giving of seniority to the promotees. The private respondents other than respondents No. 51, 52, 55, 56 were promoted on 31.7.1997 vide office order No. 303 Annexure A-5 and respondents No. 51, 52, 55, 56 were promoted on 18.7.1998, therefore, petitioners will get seniority above the private respondents. 22. The learned counsel for the petitioners in support of his submissions has relied on some judgements of the Supreme Court, therefore, it is appropriate to refer those judgements at this stage. In S.G.Jaisinghani vs. Union of India and others AIR 1967 SC 1427, the appellant had challenged the constitutional validity of seniority rules `in regard to Income tax service (Class I Grade II) …14… alongwith the improper implementation of the `quota recruitment to the service. The respondents No. 4 to 126 were promotees in the Income tax service. The Hon’ble Supreme Court in para-13 has held as follows:- “…….We are of opinion that having fixed the quota in exercise of their power under rule 4 between the two sources of recruitment, there is no discretion left with the Government of India to Alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, at its own will and pleasure. As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice, it will be difficult to hold that the seniority rule i.e., rule 1(f)(iii) & (iv), is not unreasonable and does not offend Art. 16 of the Constitution. We are accordingly of the opinion that promotees from Class II, Grade III to Class 1, Grade II Service in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards have been illegally promoted and the appellant is entitled to a writ in the nature of mandamus commanding respondents I to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period' 1951 to 1956 and onwards in accordance with the quota rule prescribed in the letter of the Government of India No. F. 24(2)-Admn. I.T./51 dated October 18, 1951…” 23. In A.K. Subraman and others vs. Union of India and others AIR 1975 SC 483, it has been held that when recruitment is from two or several sources it should be observed that there is no inherent invalidity in introduction of quota system and to work it out by a rule of rotation. The existence of a quota and rotational rule, by itself will not violate Article 14 or Article 16 of the Constitution. It is unreasonable implementation of the same which may in a given case attract the frown of the equality clause. The learned counsel for the …15… petitioners has relied sub-para 6 of para 29 of the report in support of his submission, which is as follows:- “If Assistant Engineers are recruited as Executive Engineers in excess of their quota in a particular year they will be pushed down to later years for absorption when due within their quota.” 24. In V.B. Badami and others vs. State of Mysore and others (1976) 2 SCC 901 it has been held that if the promotions are made to vacancies in excess to the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their quota. Promotees who are occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case. As long as the quota rule remains neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies. It has further been held that quotas which are fixed are unalterable according to exigencies of situation. Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule. One group cannot claim the quota fixed for the other group either on the ground that the quotas are not filled up or on the ground that because there has been a number in excess of …16… quota the same should be absorbed depriving the other group of quota. 25. In Keshev Chandra Joshi and others vs. Union of India and others 1992