IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 625 of 1996 Date of Decision : May 06 , 2008 Punjab State Electricity Board and others ....Appellants Versus Sukhdev Singh .....Respondent CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Anil Malhotra, Advocate for the appellants. Mr. Gurcharan Dass, Advocate for the respondent. T.P.S. MANN, J. Suit for declaration filed by the respondent was decreed by learned Additional Senior Sub Judge, Ludhiana vide judgment dated 6.1.1993 and the impugned order promoting private defendants as Junior Engineer-II over and above him was declared null and void. The respondent was held entitled for promotion to the post of Junior Engineer-II and his services deemed to have been regularized with effect from the date of his initial appointment, i.e. 30.8.1976. The decree was challenged by the appellants by filing first appeal, which was disposed of by learned Additional District Judge, Ludhiana vide judgment dated 19.8.1995 by modifying the decree passed by the learned trial Court. The respondent was held entitled to be considered for promotion to the post of Junior Engineer-II and in case he was Regular Second Appeal No. 625 of 1996 found fit for promotion, he was to be promoted and his seniority qua private defendants to be considered and fixed in accordance with the service rules governing the employees. Aggrieved of the same, the appellants, who were defendants No. 1 to 4 in the suit, filed the present second appeal before this Court. The case of the respondent in the plaint submitted by him was that he passed I.T.I. examination with Diploma in Electricity. He joined as Lineman in the Electricity Board on ad hoc basis on 30.8.1976. Although he performed his duties honestly and diligently but his services were later on terminated. He challenged the order of termination in the Labour Court. His plea was accepted and the termination order was declared null and void. He again joined his duties as Lineman. He claimed that the services of his juniors had been regularized by the Board. He challenged the action of the Board by filing a civil suit, which was still pending when the Board promoted private defendants, who were all junior to him, as Junior Engineers-II, whereas he was ignored. Accordingly, he filed a suit for declaration that the impugned order promoting the private defendants and ignoring him was illegal, null and void and not binding upon him. The suit was contested by the Board by pleading in the written statement that the plaintiff had earlier filed a civil suit for an identical relief, which was still pending, therefore, the present suit was not maintainable. The impugned order had been passed before filing of -2- Regular Second Appeal No. 625 of 1996 written statement by the Board in the earlier suit. Therefore, the plaintiff could amend his plaint by way of claiming the relief of promotion. However, the same was not done. Therefore, the present suit was liable to be stayed under Section 10 C.P.C. The Board, however, denied that the work and conduct of the plaintiff was satisfactory. Rather the same was adjudged as unsatisfactory, as a result whereof his services were terminated. After the order of termination was set aside by the Labour Court, the plaintiff rejoined as Lineman but still his services had not been regularized. Final decision regarding the regularization was to be taken after the decision of the earlier suit filed by the plaintiff and, that too, as and when his turn matured. The Board also denied that the private defendants had been illegally promoted as Junior Engineers-II. Private defendants No. 5 to 7 were served in the suit but they did not put in appearance. They were, accordingly, proceeded against ex parte. Learned counsel for the appellants submitted that the Hon’ble Supreme Court in Punjab State Electricity Board, Patiala and another Vs. Ravinder Kumar Sharma decided on 27.10.1986 and reported in (1987) 1 SCR 72, abolished the quota rule for promotion on the basis of the employees being diploma holders in Electrical Engineering and the same was adopted and given prospective application by the Board on 14.11.1986. The private defendants had -3- Regular Second Appeal No. 625 of 1996 already been promoted as Junior Engineers-II vide impugned order passed on 19.8.1986 and as services of the respondent were not regularized till then he was ignored for promotion. It is also submitted that the decision in the case of Ravinder Kumar’s case (supra) was again referred to by the Hon’ble Supreme Court in Civil Appeal No. 4633 of 1989 Charanjit Singh and others Vs. Punjab State Electricity Board and others decided on September 14, 1994 by observing that the benefit of the judgment in Ravinder Kumar’s case (supra) had already been given to all the persons, who were not parties to the said case. The appellants in the case of Charanjit Singh(supra) had earlier challenged the action of the Board in granting only prospective relief to them by filing a writ petition in this regard so as to seek implementation of the judgment in Ravinder Kumar’s case (supra) with retrospective effect, i.e. from July 12, 1977. Though the writ petition was allowed by learned Single Judge of this Court on January 25, 1988 but Letters Patent Appeal filed by the Board was allowed by a Full Bench of this Court by setting aside the judgment of the learned Single Judge. The judgment of the Full Bench was assailed by Charan Singh and others by filing Civil Appeal No. 4633 of 1989, besides other connected appeals, but the same were dismissed by the Hon’ble Supreme Court on September 14, 1994. Copy of the said decision has been attached as Annexure ‘A’ with the appeal. Therefore, the judgments of the learned Courts below deserve to be set aside and the suit of the respondent dismissed. -4- Regular Second Appeal No. 625 of 1996 Learned counsel for the respondent submitted that all the Linesmen, irrespective of the fact whether they were diploma holders or not have to perform the same kind of duty. Only one combined seniority-list of all the Linesmen is maintained. Therefore, the fixation of quota for diploma holders for the purpose of promotion of Linesmen to the post of Junior Engineer-II was violative of Article 14 of the Constitution of India. Therefore, private defendants, who were junior to the respondent could not be promoted over and above him. It was also submitted that though the learned trial Court while decreeing his suit held the respondent entitled for promotion for the post of Junior Engineer-II yet the said relief has been modified by learned first appellate Court when it directed that instead of promoting him as such he be considered for promotion to the post of Junior Engineer-II from the date when his juniors were promoted. Therefore, it was prayed that the appeal be dismissed. I have heard learned counsel for the parties and perused the records. The private defendants, who were working as Linesmen were promoted as Junior Engineer-II vide order dated 19.8.1986. The respondent had joined the Board as Lineman on ad hoc basis on 30.8.1976. His claim for regularization, which he made by filing a civil suit, was granted to him when the said suit was decreed on 27.8.1990. Consequently, the services of the respondent were -5- Regular Second Appeal No. 625 of 1996 regularized and the regularization was made effective from the date of his initial appointment, i.e. 30.8.1976. As the private defendants were regularized later on, they remained junior to him. Under these circumstances, no fault can be found with the conclusion arrived at by the learned lower Courts in holding that the seniority of the respondent had been wrongly ignored by the Board in the matter of his promotion to the post of Junior Engineer-II. The respondent has not challenged the finding arrived at by the learned first appellate Court that instead of promoting him to the post of Junior Engineer-II, he be considered for promotion to the said post. Even otherwise, the respondent could not be automatically promoted to the post of Junior Engineer-II as the Board was required to find out as to whether he was fit for promotion or not. For that reason, the Board was directed to consider the case of the respondent for promotion to the post of Junior Engineer-II. In so far as the decision of the Hon’ble Supreme Court in Charanjit Singh’s case (supra) is concerned, the same may not be directly applicable to the facts and circumstances of the present case. The respondent had not been regularized at the time when the private defendants were regularized and thereafter promoted from the post of Linesmen to that of Junior Engineer-II. It is only after the earlier suit filed by the respondent was decreed that he was ordered to be regularized. This regularization came into force with effect from the -6- Regular Second Appeal No. 625 of 1996 date of his initial appointment, i.e. 30.8.1976, which was much before that of the private defendants. The issue of prospective application of the abolition of quota of Linesmen, who were diploma holders and other Linesmen, who were non-diploma holders was not required to be opened once again as the controversy mainly related to the date of regularization of the respondent, which was held to be earlier to that of the private defendants and it was only on that basis that he was required to be considered for the promotion to the post of Junior Engineer-II. In case, after due consideration by the Board, the respondent was to be promoted to the post of Junior Engineer-II, his seniority qua the private defendants, who had been promoted earlier was to be considered and fixed in accordance with the service rules governing the employees. In view of the above, there is no force in the present appeal and the same is, accordingly, dismissed. ( T.P.S. MANN ) May 06, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO -7-