IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 5668 of 2008(OA No. 87/1999) Judgment reserved on : 19.11.2010 Date of Decision : 22.11.2010 Inder Singh Guleria …Petitioner. Versus H.P.State Electricity Board and Anr. ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. Rakesh Jaswal, Advocate. For the Respondents : None. Kuldip Singh, Judge The petitioner has prayed mainly the following reliefs in the petition:- (A) That directions may kindly be issued to the respondent No.1 to consider the case of the applicant for promotions as S.A.S. Superintendent w.e.f. 12.11.1983, as Accounts Officer w.e.f. 4th of January, 1989 and Senior Accounts Officer w.e.f. 7th of January, 1994 and then as Deputy Chief Accounts Officer from August, 1996; (B) Further directions may also kindly be issued that after the promotion of the applicant the respondent-Board be directed to fix the seniority of the applicant in the cadre of Superintendent, Accounts Officer, Senior Accounts Officer and then in the cadre of Deputy Chief Accounts 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 Officer and to pay him all the arrears of pay with interest throughout. C ) Similarly respondent No.1 may also kindly be directed to release the selection grade in favour of the applicant after he has rendered 7 years of service i.e. from January, 1980 with interest throughout. 2. The brief facts are that the petitioner after qualifying the Divisional Accountant Test was appointed as a Divisional Accountant in the pay scale of ` 250-500. The board had framed the 1972 and 1975 regulations wherein the provision was made that Divisional Accountants after rendering 7 years of service would be allowed the selection grade of ` 400-650. The petitioner had qualified the Divisional Accountant test but he was subjected to qualify the same test vide order dated 5.10.1976 read with order dated 8.8.1977. The petitioner challenged the decision of the Board by filing CWP No. 5 of 1978 in this Court which on the establishment of H.P.Administrative Tribunal was transferred to the Tribunal and was registered as T.A. No. 276 of 1986, which was allowed on 30.7.1993. It was held that petitioner had also qualified the Departmental examination of Divisional Accountants, a direction was given to restore his seniority at the appropriate place. 3. The respondent No.1 after the judgment of the Tribunal circulated tentative seniority list on 16.7.1994 and thereafter prepared final seniority list as it stood on 30.8.1983, copy Annexure A-2 which was circulated to all the Divisional Accountants. In this seniority list, the petitioner was placed at serial No. 4. The persons shown at serial No. 1 to 6 in the seniority list including petitioner have since retired. The petitioner retired on 31.10.1996. 3 4. The petitioner submitted representation after judgment dated 30.7.1993 for granting him all consequential benefits in view of his seniority as Divisional Accountant at serial No.1 after the retirement of persons shown senior to the petitioner on the analogy of promotional benefits having been given to N.P.Tandon whose name appeared at serial No. 5, a place immediately below the petitioner in the seniority list, Annexure A-2. N.P.Tandon was promoted as S.A.S. Superintendent non-gazetted in the pay scale of ` 800-1400 w.e.f. 24.11.1983 vide office order dated 12.9.1986 Annexure A-3. N.P.Tandon was promoted Accounts Officer from the cadre of S.A.S. Superintendent in the pay scale of ` 1200 – 1850 vide order dated 4.1.1989. N.P.Tandon was again promoted as Senior Accounts Officer from the cadre of Accounts Officer in the pay scale of ` 3000 – 4500 on 7.1.1994. 5. The respondent No.2 was also promoted firstly as S.A.S. Suprintendent, then as Accounts Officer and as Senior Accounts Officer and lastly as Deputy Chief Accounts Officer in August, 1996. The respondent No.2 was promoted after N.P.Tandon was promoted, but last order of promotion of respondent No.2 was made after N.P.Tandon had retired. 6. The representation filed by the petitioner, it appears was not decided. The petitioner, therefore filed contempt petition No.3 of 1994 in the Tribunal which was dismissed on 10.9.1998 by the Tribunal. In the order dated 10.9.1998 it was observed that there was no direction that the petitioner be promoted within a time frame. The declaration was that the applicant is deemed to have duly qualified the Divisional Accountants test. The order had been implemented by the contemnor. 4 7. The petitioner vide office order dated 16.7.1994 has been treated as regular Divisional Accountant w.e.f. 26.1.1973, the date of his joining as such after qualifying the Divisional Accountant test in December, 1972. The petitioner has been placed at serial No.3 in the seniority list above N.P.Tandon and below K.C.Gupta in the final seniority list of Divisional Accountants as it stood on 31.8.1983. The petitioner has been assigned seniority above N.P.Tandon but the benefit of promotion given to N.P.Tandon has not been allowed to petitioner without any just cause. The respondent No.2 was also similarly promoted but after N.P.Tandon. The respondent No.2 was further promoted as Deputy Chief Accounts officer in August, 1996. N.P.Tandon and respondent No.2 were junior to petitioner and therefore, petitioner is entitled to be considered and promoted as S.A.S. Superintendent, Accounts Officer, Senior Accounts Officer and Deputy Chief Accounts Officer when his juniors were promoted. On these averments, the petition has been filed. 8. The petition has been contested by filing reply by respondent No.1. It has been submitted that petitioner has retired from the Board on 31.10.1996 after attaining the age of superannuation. The reliefs claimed are highly belated and stale. The petition is barred by time under Section 21 of the Administrative Tribunal Act, 1985 and also suffers from delay and laches. It has been submitted that for promotion to the post of S.A.S. Superintendent, Accounts Officer etc., the incumbent has to pass SAS Part-II examination as per R & P Regulation, 1979 framed and notified by the Board, but the petitioner never made an attempt to pass the same rendering himself to be ineligible for consideration for promotion to higher posts. The post of Accounts Officer, Senior Accounts Officer and Deputy Chief Accounts Officer are selection posts 5 and petitioner cannot be promoted to these posts merely on the basis of seniority assigned to him in the grade of Divisional Accountant above N.P. Tandon and respondent No.2. The promotions on the posts of Accounts Officer, Senior Accounts Officer and Deputy Chief Accounts Officer are made on merit-cum-seniority basis. The affected persons have not been impleaded as parties, hence the petition is not maintainable. The plea of estoppel has also been taken. It has been denied that respondent No.2 was promoted as Deputy Chief Accounts Officer in August, 1996. 9. The petitioner joined as Divisional Accountant on 26.1.1973 in the pay scale of ` 250 – 535 and as per the relevant rules, selection grade of ` 400 – 650 was admissible after completion of 7 years service in the grade but subsequently the pay scale of Divisional Accountant was revised to ` 750 – 1300/- w.e.f. 1.1.1978 with no provision for grant of selection grade. The petitioner completed 7 years service as Divisional Accountant on 26.1.1980, he is not entitled to selection grade of ` 400 – 650/- as claimed by him. 10. The board had notified the Supervisory Accounts Service (Examination) Regulations , 1979 which was amended in the year 1985. The Clause 14 of the 1979 regulations provided for grant of exemption to be considered by the Board in extremely hardship cases, this is to be exercised considering the circumstances of the case. The benefit for grant of exemption cannot be claimed by the individual as a matter of right. The competent authority vide office order dated 12.9.1986 granted exemption to certain Divisional Accountants from qualifying SAS Part-II Examination w.e.f. 18.8.1982. The exemption was granted by the competent authority keeping in view the length of service and 6 unblemished service record. The filing of CWP No. 5 of 1978 in this Court and transfer of that petition to the Tribunal and decision by the Tribunal have not been denied. N.P.Tandon was promoted as Accounts Officer and Senior Accounts Officer on adhoc basis on the recommendations of the DPC based on merit-cum-seniority. The petitioner never qualified SAS Part-II examination making him eligible for SAS Superintendent on regular basis and retired while working as acting Superintendent. The respondent No.1 has thus prayed for dismissal of the petition. The petitioner has filed no rejoinder. 11. I have heard the learned counsel for the parties. The petitioner has prayed for consideration of his case for promotion to the post of SAS Superintendent w.e.f. 12.11.1983, as Accounts Officer w.e.f. 4.1.1989, as Senior Accounts Officer w.e.f. 7.1.1994 and Deputy Chief Accounts Officer from August, 1996. It is the stand of the respondent No.1 that for promotion to the post of SAS Superintendent, Accounts Officer etc. the officer is required to pass SAS Part-II examination as per R & P Regulation, 1979. The petitioner has not passed SAS Part-II examination and, therefore, under the regulations he was not eligible for promotion to the post of SAS Superintendent, Accounts Officer etc. It is also the case of the respondent No.1 that the post of Accounts Officer, Senior Accounts Officer and Deputy Chief Accounts Officer are selection posts, the petitioner cannot be promoted on these posts merely on the basis of seniority assigned to him in the grade of Divisional Accountant. It has been submitted on behalf of the petitioner that respondent No.1 vide office order dated 12.9.1986, Annexure A-3 had exempted Gian Sagar Aggarwal, A.R.Poonga, K.C.Gupta, N.P.Tandon, R.K.Puri and Rama Nand Mahajan the Divisional Accountants from qualifying as SAS Part-II 7 examination. Gian Sagar Aggarwal and A.R.Poonga were appointed as SAS Superintendents (N.G.) w.e.f. 12.8.1983 whereas N.P.Tandon, R.K.Puri and Rama Nand Mahajan were appointed as SAS Superintendents (N.G.) w.e.f. 21.11.1983. 12. The petitioner had qualified the Divisional Accountant test but despite that the respondent No.1 ordered the petitioner to qualify the same test vide order dated 5.10.1976 read with order dated 8.8.1977. This was challenged by the petitioner in CWP No. 5 of 1978 which was transferred to the Tribunal and was decided by the Tribunal on 30.7.1993 and held that petitioner deemed to have duly qualified the Divisional Accountant’s test. The order dated 8.8.1977 whereby the petitioner was required to qualify the final test was quashed. The respondent No.1 vide office order dated 16.7.1994 Annexure A-6 in pursuance to decision dated 30.7.1993 treated the petitioner as regular Divisional Accountant w.e.f. 26.1.1973 and he was re-assigned seniority at serial No. 3(a) above N.P.Tandon and below K.C.Gupta in the final seniority list of Divisional Accountants as it stood on 31.8.1983 and circulated vide letter dated 5.1.1984. The learned counsel for the petitioner has submitted that as per seniority list 20.10.1994 of Divisional Accountants as it stood on 31.8.1983 the petitioner is at serial No. 4 immediately below K.C.Gupta and above N.P.Tandon. The petitioner is seeking same treatment to him as has been given to K.C.Gupta, N.P.Tandon etc. on the basis of office order dated 12.9.1986, Annexure A-3. The petitioner has thus prayed for a direction to respondent No.1 for consideration of his case for promotion to the post of SAS Superintendent, Accounts Officer, Senior Accounts Officer and Deputy Chief Accounts Officer. 8 13. In the petition the petitioner has not pleaded on what grounds he is entitled to exemption from qualifying SAS Part-II examination of the Board under the regulations. At the most, the case projected by the petitioner is that since exemption was granted to K.C.Gupta and N.P.Tandon etc. vide office order dated 12.9.1986, therefore, he is also entitled to exemption from qualifying the SAS Part-II examination of the Board. On the contrary, the stand of the respondent No.1 is that Clause 14 of the 1979 regulations provides for grant of exemption to be considered by the Board in extremely hardship cases. The exemption is not available to an individual as a matter of right. The competent authority vide order dated 12.9.1986 granted exemption to certain Divisional Accountants from qualifying SAS Part-II examination. The exemption was granted keeping in view the length of service and unblemished service record of the officers. The petitioner has not established that the petitioner was similarly situated as officers to whom the exemption was granted vide office order dated 12.9.1986. At the most the case of the petitioner projected by him is that officers immediately senior to him and officer immediately junior to him were granted exemption vide office order dated 12.9.1986, therefore, he should also be granted exemption. This is not the requirement for granting exemption. There is substance in the stand of the respondent No.1 that individual case is to be considered on merits for grant of exemption and only then the exemption can be considered and granted. The petitioner has not placed any material on record nor he has pleaded that individually the case of the petitioner on merits was similar to the officers to whom the exemption was granted vide office order dated 12.9.1986. Once the petitioner had not qualified the SAS Part-II 9 examination nor exemption was granted in his favour of qualifying the said examination, therefore, the petitioner was not eligible for promotion to the posts of SAS Superintendent, Accounts Officer, Senior Accounts Officer and Deputy Chief Accounts Officer. The exemption was granted to K.C.Gupta and N.P.Tandon etc. vide office order dated 12.9.1986, they were promoted thereafter. 14. The present petition was filed by the petitioner in the erstwhile Tribunal on 7.1.1999. The petitioner has prayed for consideration of his case for promotion to the post of SAS Superintendent w.e.f. 12.11.1983, as Accounts Officer w.e.f. 4.1.1989, as Senior Accounts Officer w.e.f. 7.1.1994 and Deputy Chief Accounts Officer from August, 1996. The final seniority list of Divisional Accountants as it stood on 31.8.1983 was issued on 20.10.1994 and before that vide office order dated 16.7.1994 the petitioner was re-assigned the seniority at serial No. 3(a) above N.P.Tandon and below K.C.Gupta. However, the present petition was filed on 7.1.1999. The only explanation given by the petitioner for filing the petition on 7.1.1999 is that before filing the present petition he was pursuing bonafide his case by filing contempt petition No. 3 of 1994 which was dismissed on 10.9. 1998. The scope of contempt petition could not be more than the scope of judgment dated 30.7.1993. In judgment dated 30.7.1993 there is no direction for considering the case of the petitioner for promotion to the post of SAS Superintendent, Accounts Officer, Senior Accounts Officer and Deputy Chief Accounts Officer. In these circumstances, the petitioner cannot take the benefit of filing of contempt petition No. 3 of 1994 for explaining the delay. The present petition is hit by delay and laches which has not been explained. 10 15. The petitioner has prayed for grant of selection grade ` 400-650 after rendering 7 years of service as Divisional Accountant. The stand of the Board is that the petitioner had joined as Divisional Accountant on 26.1.1973 in the pay scale of ` 250 – 500. The selection grade of ` 400 – 650 was admissible to the petitioner after 7 years of service but subsequently the pay scale of Divisional Accountant was revised to ` 750-1300 w.e.f. 1.1.1978 with no provision for grant of selection grade. The petitioner completed 7 years service as Divisional Accountant on 26.1.1980 and on that date the selection grade of ` 400- 650 was not available to the petitioner due to subsequent events. There is substance in the stand of the respondent No.1 for not granting selection grade to the petitioner as Divisional Accountant. Moreover, according to petitioner he was eligible for grant of selection grade in January, 1980 but the present petition for claiming selection grade was filed in January, 1999 after a gap of 19 years. The petitioner has failed to explain the delay. In these circumstances, the petitioner is not entitled to selection grade as claimed by him. 16. No other point was urged. 17. The result of the above discussion, the petition fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), November 22, 2010 Judge. (GR)