IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.4627 of 1987 (O&M) Date of decision: 29.11.2011 Rai Saran Dass and others ...Petitioners versus Punjab State Electricity Board, through its Secretary, Patiala, and others. ....Respondents II. Civil Writ Petition No.16588 of 1989 (O&M) Public Relations, Punjab State Electricity Board, Secretariat Building, The Mall, Patiala. ...Petitioner versus Punjab State Electricity Board, Patiala, through its Secretary, and others. ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Satpal Jain, Senior Advocate, with Mr. Dheeraj Jain, Advocate, for the petitioner in CWP No.16588 of 1989. Mr. Yashwinder Paul Singh, Advocate, for the petitioner in CWP No.4627 of 1987. Mr. Jasbir Singh Chahal, Advocate, for PSEB. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- Civil Writ Petition No.4627 of 1987 (O&M) - 2 - K.Kannan, J. 1. Both the writ petitions are at the instance of employees in the then Punjab State Electricity Board (PSEB) seeking to challenge the seniority list which was sought to be finalized through communication dated 25.05.1987. The respective petitioners in both the writ petitions belonged to the Supervisory Accounts Service (SAS) in the Electricity Board. The seniority list was prepared for the rank of SAS officers and the grievance of all the petitioners have been that the basis for promotion that included additional qualifications were discriminatory. The persons, who were in the same cadre but drawn up at with different educational qualifications, cannot be discriminated for further promotions on the basis of such educational qualifications only. A provision for a quota based on such qualification would be violative of Article 14 and 16 of the Constitution. 2. Some more facts to fit the law into the contentions raised by the parties may become necessary. At the lower end of the scale were LDC/UDC/Assistant Revenue Accountants; The next higher post is Divisional Accountants, still higher is the post of SAS and still higher post is Accounts Officer. For a promotion to the post as Divisional Accountants from LDC/UDC/Assistant Revenue Accountants, the requirement is a pass in Part-I accounts test. That all the petitioners were persons who have been Divisional Accountants is not in dispute. From out of the Divisional Civil Writ Petition No.4627 of 1987 (O&M) - 3 - Accountants, there was a provision for a 10% quota, who were entitled to be promoted on obtaining qualification in passing Part-II SAS test. The further requirement was that such a person must have served at least 5 years as a Divisional Accountant. The persons who did not pass Part-II test were also entitled to a further promotion as SAS if such a person had completed 8 years of service as Divisional Accountant. This 10% quota was subsequently raised to 25% by the amendment of the Rules/instructions. In the cadre of SAS therefore there were two classes of persons. One, the persons who had been Divisional Accountants, who did not pass Part-II but having been promoted on completion of 8 years of service. Two, the class of persons who had passed Part-II examination and arriving to the promotion post after completion of 5 years experience as Divisional Accountants. The drawing up of the seniority list for consideration for further promotion to the Account Officer's post was ridden with controversy on the application of the amended rule which provided that only persons, who had passed Part-II examination and who had also completed 5 years of experience as SAS could be considered and persons who had not passed Part-II examination would rank lower in the order of seniority for consideration. In the manner of promotion to the Accounts Officer's post itself, there was a certain quota system which was as follows: (i) 4 posts were reserved for promotion from amongst HO Superintendent; (ii) 30% of the total cadre posts excluding 4 posts reserved as above, by direct Civil Writ Petition No.4627 of 1987 (O&M) - 4 - recruitment; and (iii) 70% of the total cadre posts excluding 4 posts would be promotion from amongst SAS Accountants who had completed 5 years as such SAS, and who had qualified in Part-II examination as well. The seniority position prior to confirmation would be determined by the dates on their continuous appointment in that class and after confirmation according to the respective dates of confirmation. There was some exceptional situations which we are not immediately concerned with. 3. In the manner of drawing up of the seniority list, the following four considerations were adopted:- (a) In the cases of those qualified Divisional Accountants who had completed 5 years of service as Divisional Accountant and passed SAS Part-II examination or from the date, the examination came to an end. (b) In the cases of those qualified Divisional Accountants who have passed SAS Part-II examination but have not as yet cleared 5 years of service as Divisional Accountants; from the date, when they completed 5 years of service as Divisional Accountant; (c) In the case of officials appointed against 25% quota posts; from the date of issue of office order; (d) In case of officials who have been given exemption; from the date the exemption was given.” Civil Writ Petition No.4627 of 1987 (O&M) - 5 - Clause No.(c) referred to above was subject to some more corrections to read as follows:- “(a) In case of officials appointed against 25% reserved quota from the date arrived at on the basis of their suitability, eligibility and availability.” 4. The objections of the petitioners are two pronged: (i) in the same cadre as SAS, there were persons, who had passed SAS Part-II,who had completed 5 years of service and persons, who had not passed Part-II but who had completed 8 years of service as Divisional Accountants. They had to be treated as persons as falling in the same class of persons for further promotion and 25% quota ought to have been applied for promotion as SAS Accountants. For these two categories to obtain a promotion from the lower post, there could have been no discrimination for further promotion; (ii) If the Rules themselves provided that in the class of officials appointed against 25% quota, the seniority will be determined on the date of the issuance of office order, there could have been no executive instructions to correct that in the case of officials appointed against 25% quota, the seniority would be from the date arrived at on the basis of their suitability, eligibility and availability. The eligibility component introducing the further requirement of a qualification in Part-II exam was brought as an additional qualification to supplant the statutory rules and hence impermissible. Civil Writ Petition No.4627 of 1987 (O&M) - 6 - 5. If the case were to be examined from the point of view of whether the persons in the same cadre could be discriminated for promotion on the basis of qualification then the law which was originally prevalent and expressed through the judgment in Punjab State Electricity Board Versus Ravinder Kumar Sharma-1986(4) SCC 617, has undergone a change. This decision was expressly overruled in P. Murugesan Versus State of Tamil Nadu-1993 (2) SCC 340. In the latter judgment, the Hon'ble Supreme Court was considering the effect of the amended rules in the Electricity Board that provided for a particular ratio between decree holders and diploma holders in the matter of promotion from a lower post to the post of AEE. The Court held that there had been a distinction brought between diploma holders and graduate engineers right through and making therefore a particular quota with the slant in favour of the graduate engineers could not be found to violate Article 14 or 16 of the Constitution. The Court held that a Rule making authority was competent to impose a complete bar as well as partial restriction on a category of promotees on the basis of educational qualification only. This decision was applied in a still later judgment in K.R.Lakshman Versus Karnataka Electricity Board- 2001(1) SCC 442. The Hon'ble Supreme Court was upholding a bifurcation of two categories in the feeder cadre post that was made to be dependent on the educational qualification. A provision in the service regulation fixing a certain percentage of post Civil Writ Petition No.4627 of 1987 (O&M) - 7 - of Junior Engineers from the feeder cadre comprising of two categories, namely, technically qualified direct recruits and technically unqualified promotees, was found to be justified. The bifurcation of the promotees quota in the post of Junior Engineer in the ratio of 1:1 between two types of persons in the feeder cadre was found to be valid. In the Accounts Department itself with the Rajasthan Electricity Board, a similar issue of what is being dealt with, was considered by the Hon'ble Supreme Court in Rajasthan SEB Accountants Association Versus Rajasthan SEB-1997(3) SCC 103. The Court held that it was permissible to prescribe longer qualifying service for those not possessing the qualifications. In the light of the law laid down above, it was perfectly possible for allowing for promotion to the post of Accounts Officers from amongst SAS Accountants, who had the requisite years of experience and also the qualification of having passed Part-II examination. The petitioners cannot complain of any discrimination in the feeder cadre itself. If there was such a discrimination on the basis of educational qualification, it was not arbitrary and hence would not be bad in law. 6. As regards the executive instructions being contrary to the statutory rules, I find that the original rules of PSEB Account and General Services (Class-I and Class-II Officers) Regulation of 1972 were themselves subsequently amended on 17.03.1983 which provided 70% of the total cadre posts shall be filled by promotion Civil Writ Petition No.4627 of 1987 (O&M) - 8 - from qualified SAS Accountants, who had actually passed SAS Part- I and Part-II and having rendered 5 years experience. The amendment to the Regulation reads as follows:- “1. Regulation-6: The existing Regulation 6(d) shall be substituted with the following:- “6-(d)-In the case of Accounts Officers:- i) 70% of the total cadre posts by promotion from qualified SAS Accountants (who have actually cleared SAS Part-I and Part-II Examination) having rendered minimum service of 5 years as such. ii) 30% of the total cadre posts by direct appointment out of persons who have passed.” 7. With the rules perfectly in place the respondents were fully justified in the preparation of the seniority list in the manner that they have done. The challenge to the seniority list on the basis of alleged discrimination has no merit. There is no error in the application of the rules or the principles that were to be followed for determination of such seniority. Both the writ petitions ought to fail and they are accordingly dismissed. (K. KANNAN) JUDGE 29.11.2011 sanjeev