IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 14492 of 2008 Decided on : 16.11.2011 ________________________________________________ Kewal Singh and another … Petitioners. Versus The H.P. State Electricity Board and another .. Respondents. ___________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? 1No. For the petitioners : Mr. Ranjan Sharma, Advocate. For the respondents : Mr. Shashi Shirshoo, Advocate, for respondent No.1. None for respondent No.2. ____________________________________________________ V.K. Sharma, Judge (oral). The petition has been filed on the following substantive prayers vide para 7 (i) to (iii):- “i) That the respondent/Board may be directed to consider and promote the applicants as Assistant Engineers (Electrical) w.e.f. the date the respondent No.2-junior was promoted as such on 19.8.2004 vide Annexure A- 5 with all consequential benefits forthwith. 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 ii) That R & P Regulations framed vide Annexure A-11 & 12, for the post of Asstt. Engineer (Electrical) which has resulted in anomalous situation, illegality, and arbitrariness and has resulted in depriving the applicants- seniors-more qualified to be considered for promotion at par with their juniors i.e. respondent No.2 may kindly be declared illegal, unjust and unconstitutional. iii) That the respondent/Board may be directed to consider and promote the applicants as Asstt. Engineer (Electrical) by holding review D.P.C. or otherwise against the available post w.e.f. the date of promotion of their juniors or from due date with all consequential benefits forthwith.” 2. In reply respondent No. 1 has taken the following stand vide relevant portion of para 1 of preliminary submissions:- “Taking into consideration all, aspects in view and facts, circumstances of the case, it was observed by the competent authority that:- (a) The applicants are Diploma holders in electrical Engineering and there is a separate quota for this category under which they will be promoted. 3 (b) No person junior to them in the category of Diploma holders has been promoted as yet. (c) There is a separate seniority list of J.E (Diploma holders) which is final. In view of the above, the representations of the applicants were found without merit and rejected vide order dt. 28.2.2005, copy placed on record at Annexure (RA-I). (d) Further, the replying respondents submit with utmost respect that the Respondent Board vide its office order endorsement No. HPSEB (SECTT)/R&E/106-16/2005- 112463-683 dated 2.2.2005, (Annexure RA-II) decided to club all existing posts of Junior Engineer (Installation) having diploma in Electrical Engineering or its equivalent with the posts of Junior Engineer (Electrical) and scraped the R & P Regulations to the post of Installation Inspector now Junior Engineer (Installation) notified vide notification No. HPSEB(SECTT)/ 106-23/79-22296-406 dated 8.3.79 with immediate effect. The existing work & duties 4 assigned to Junior Engineer (Installation) were ordered to be included in the duties of Junior Engineer (Elect.). As a result of above clubbing the respondent Board also redesignated all existing Junior Engineer (Installation) having diploma in Electrical Engineering or its equivalent as Junior Engineer (Elect.) The respondent Board is also ordered to order that consequent upon clubbing of both the posts, the Junior Engineer (Elect.) who is assigned the duties of installation work, would enjoy the powers of Installation Inspector by virtue of his posting as such. However, the respondent Board vide its office order No. 17 dated 29.4.2006 (RA-III) has ordered that the operation of this office order with regard to clubbing of the posts of Junior Engineer (Installation) with those of Junior Engineer (Electrical) & to scrap the R&P Regulations of Junior Engineer (Installation) issued vide No. HPSEB(SECTT?R&E/106-16/2005-112463-683 dated 2.2.2005 shall remain stayed till further orders. It was further ordered that any action taken or instructions/clarifications issued subsequently by this office as well as by the Chief Engineer concerned pursuant to these orders were also to stand withdrawn and 5 status quo as on 2.2.2005 was to be maintained till further order. Subsequently, the matter regarding clubbing of JE (Installation)with JE(E) alongwith posts & to denotify the R&P Regulation to the post of JE (Installation) was discussed in 348th meeting of the WTMs of the respondent Board held on 8.6.2007 and the following decision was taken. “It was decided to upgrade 5 posts of JE (Installation) as AE (Installation) purely on Adhoc basis, this up-gradation shall be personal to the incumbents and the posts shall stand automatically reverted to the level of JE (Installation) on vacation by these officials due to any reasons. Before the issue of promotion orders, an undertaking in consultation with legal Cell may be obtained from these officials that they shall neither claim integration in the cadre of AE(E) nor claim promotion to the post of Sr. Xen.” In furtherance to decision of competent authority as reproduced above, the applicant alongwith other remaining JE(Installation) was asked to give an undertaking on the prescribed proforma duly attested by the Executive Magistrate (Annexure-RA-IV) to the effect that they will neither claim integration in cadre of AE(E) nor claim promotion to the post of Sr.Xen)E). In the aforesaid 6 undertaking it was asked to furnish that in case above is acceptable to them, the required individual affidavit may be furnished to the respondent Board within 30 days from the issue of letter dated-8.10.2007 (Annexure-RA- V) through their controlling officer so that the promotion case of Sh. Kewal Singh & Pradeep Dhiman (applicants) alongwith other officials could be processed accordingly. In case, their undertaking within 30 days is not received, it shall be presumed that they are not willing to give undertaking and further action appropriate shall be taken without any further correspondence. Since, no individual undertaking /affidavit has been received in this office, so far as such, no further action to promote the applicant along with other similar situated officials to the post of AE(E) has been taken by the respondent Board. The applicants herein above is still working as Junior Engineer (Installation).The matter regarding assigning/finalizing the seniority of said category of staff is yet under consideration of the respondent Board. Further action to promote the applicant to the post of AE(E) shall be taken by the respondent Board.” 3. There is no reply on behalf of respondent No.2. 4. Admittedly, the petitioners have since been promoted as Asstt. Engineers (Electrical) in the year 2010, 7 during pendency of the present petition. However, they are basing their claim for promotion to the said post on the basis of office order dated 2.2.2005, Annexure RA-II read with letter dated 8.10.2007, Annexure RA-V sans conditions attached in Annexure RA-V, requiring the petitioners to “give an undertaking on the prescribed proforma (enclosed) duly attested by the Executive Magistrate to the effect that you will neither claim integration in cadre of AE(E) nor claim promotion to the post of Sr.Xen)E)”, which apparently is in derogation to the law laid down by the Hon’ble Supreme court in Nar Singh Pal vs. Union of India and Others, (2000) 3 Supreme Court Cases 588, wherein it has been held as under vide relevant portion of para 13:- “Fundamental Rights under the Constitution cannot be bartered away. They cannot be compromised nor can there be any esstoppel against the exercise of Fundamental Rights available under the Constitution. As pointed out earlier, the termination of the appellant from service was punitive in nature and was in violation of the principles of natural justice and his constitutional rights. Such an order cannot be sustained.” 5. In view of the above, the petition is allowed with a direction to respondent No.1 to consider the case of the petitioners for promotion to the post of Asstt. Engineer (Installation), along with consequential benefits, if any, with 8 effect from 8.10.2007, in the light of Annexure RA-II read with Annexure RA-V, but without any rider that they would not claim further promotion to the post of Sr.Xen (E), if otherwise found entitled to, within three months from the date of production of copy of this judgment and the judgment referred to hereinabove by the petitioners before respondent No.1, through its Director (Personnel). 6. The petition stands disposed of, so also pending application(s), if any, in the above terms. (V.K. Sharma) Judge. November 16, 2011. (Lsp)