IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 310 of 2008 (S/B) Lalit Kumar Pant and others ….…… Petitioners Versus Public Service Tribunal, Uttarakhand and others ……….Respondents Mr. M.C. Pant, Advocate for the petitioners. Mr. Vinay Kumar, Standing Counsel for the State / respondent Nos. 2 and 3. Mr. B.D. Upadhyay, Advocate for respondent No. 4. Mr. Rajendra Dobhal, Senior Advocate with Mr. Sunil Upadhyaya, Advocate for respondent No. 6. Date of Judgment: 30.06.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Servesh Kumar Gupta, J. BARIN GHOSH, C.J. (ORAL) Respondent No. 3 is a company, incorporated under the Companies Act, 1956, and is also a Government company within the meaning of the said Act, in as much as the State of Uttarakhand holds majority share of the said respondent. 2. Petitioners, five in number, are all Mechanical Engineers and they were employees of the U.P. State Electricity Board, constituted by and under Electricity (Supply) Act, 1948. In terms of power, conferred by the said Act, U.P. State Electricity Board Services of Engineers Regulations, 1970 were framed. Electricity (Supply) Act, 1948 has since been repealed, paving the way for establishment of Corporations as that of respondent No. 3. Respondent No. 3 has not yet made appropriate rules and regulations, pertaining to service conditions of its employees. In the premises, service conditions of the employees of respondent No. 3 are still governed by the said Regulations of 1970. 3. On 7th October, 2004, Article 34 of the Articles of Association of respondent No. 3 was substituted. In terms thereof, respondent No. 3 was authorized to appoint suitable people through selection to certain posts, 2 mentioned in the said substituted Article. In order to fill up those posts, an advertisement was published on 3rd October, 2006, which was to be responded within 14 days of its publication. On 25th November, 2006, a corrigendum in respect of said advertisement was published, whereby the upper age limit was increased to 58 years and the last date of responding to the said advertisement was extended to 30th November, 2006. 4. In the said advertisement, it was mentioned that people responding to the said advertisement must be graduate Electrical Engineers and must have 15 years of experience in the fields, mentioned in the said advertisement. Petitioners, though are not graduate Electrical Engineers, responded to the said advertisement. By a representation dated 6th June, 2007, they wanted that the requirement of educational qualification of graduation in electrical engineering be substituted by graduation in electrical / mechanical engineering and also to reduce the experience of 15 years, holding out that in terms of the Regulations of 1970, Electrical Engineers and Mechanical Engineers are treated at par and people belonging to both the streams constitute one single cadre and, accordingly, there is no just reason for prescribing the qualification of graduation in electrical engineering; and that in terms of the transfer policy in vogue, an engineer can remain in a particular department only for 10 years and as such, requirement of 15 years experience in a particular department was unjust. No answer was given to the said representation. Petitioners, accordingly, approached the Tribunal. After the petitioners approached the Tribunal, appointment was given to respondent No. 4 on 28th September, 2007. Before the Tribunal, it was contended that fixation of educational qualification was contrary to the said Regulations of 1970 and fixation of experience of 15 years was also against the transfer policy. The Tribunal, relying upon the judgment of the Hon’ble Supreme Court rendered in the case of Union of India and others Vs. Vasudev Dora and others, 2003 SCS (L & S), 191, held that fixation of qualification and experience was a policy decision and that employees have no right to challenge such decision. Accordingly, the claim petition, filed before the Tribunal, had been rejected. Aggrieved thereby, the present writ petition has been filed. 3 5. In the present writ petition, petitioners have repeated what they had repeated before the Tribunal. The fact remains that the posts advertised were never included in the said Regulations of 1970. Therefore, the posts advertised were ex-cadre posts. There is no requirement of law that in order to supply the said posts, authority concerned, while fixing the minimum required eligibility, is required to take note of any of the conditions of service contained in any rule in respect of in cadre posts, which have no direct or indirect nexus with the ex-cadre posts. Therefore, there was no requirement on the part of respondent No. 3 or its major share holder, the Government, to take note of the provisions contained in the said Regulations or in the transfer policy, covering those who are governed by the said Regulations, for the purpose of fixation of eligibility criteria for the advertised ex-cadre posts. 6. The question, however, still remained, whether there was any reasonable nexus in fixing the qualification and experience for the purpose of achieving the object thereof. Apart from contending that in terms of the said Regulations, graduate Electrical Engineers and Mechanical Engineers are to be treated at par and that, in view of the transfer policy covering the service conditions of the petitioners, they cannot work in a particular department for a period in excess of 10 years, nothing was brought on record, either before the Tribunal or before this Court, to demonstrate that the object, sought to be achieved by fixing such educational qualification and experience, had no nexus to what was being done by the advertisement. 7. That being the situation, we are of the view that there is no scope of interference. While concluding, we only make it clear that any and every policy of the State is not beyond challenge. If the policy is unjust, against public interest and arbitrary, the same, as the vice of any other instrument, can be challenged by taking recourse to judicial review. 8. It is also our duty to point out here that when ex-cadre posts have been created, though there was no requirement of law to take into account 4 availability of people in the State, but, as it appears to us, in view of the transfer policy in vogue, people required to supply the advertised vacancies were rare or almost impossible to get in the State, to take note of availability of people of the State who may suitably supply the vacancies. 9. The writ petition is, accordingly, disposed of. (Servesh Kr. Gupta, J.) (Barin Ghosh, C.J.) 30.06.2011 30.06.2011 Amit