C.W.P No.13541 of 1995 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : December 04, 2008 1. C.W.P No.13541 of 1995 Ram Niwas and others vs Haryana State Electricity Board & others 2. C.W.P No.13798 of 1995 Sanwaria Girdhari vs Haryana State Electricity Board & others. *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr.Dinesh Kumar, Advocate for the petitioners. Mr.K.K.Goel, Advocate for the respondents. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This order shall dispose of CWP Nos.13541 and 13798 of 1995, as common questions of law and facts are involved therein. For the sake of convenience, facts are being extracted from CWP No.13541 of 1995. The present writ petition has been filed challenging the order dated 6.9.1995 (Annexure P-23) reverting the petitioners to the post below the status of Junior Engineers. The petitioners were all diploma holders and were working on different posts below that of Junior Engineer. During the tenure of their C.W.P No.13541 of 1995 ::2:: services, the petitioners qualified and obtained qualification equivalent to a degree. In the month of April, 1990, the erstwhile Haryana State Electricity Board took a decision to appoint degree holders or equivalent persons as fresh candidates as Junior Engineers against the quota of direct recruits as per the recruitment and promotion policy under which 60% posts of Junior Engineers (Field) would be filled up by direct recruitment and employees already in service of the Board would also be eligible for the same. Some of the petitioners applied and a proposal was circulated to the Board for considering them for `elevation' to the post of Junior Engineer against the existing vacant posts of recruitment quota in view of their creditable experience and higher qualification, subject to the conditions, inter-alia, as under :- “ xx xx xx (iii) They may be treated as fresh recruits for all intents and purposes but permitted to carry forward their leave accounts and service rendered by them in lower posts which shall qualify for pensionary benefits. (v) Their seniority as JE shall be determined on the basis of their present status, length of service and they shall be placed at the tail end of seniority of JE/Field/Generation, respectively.” Thereafter, in a meeting held on 6.11.1990, the said proposal was approved and by order dated 9.11.1990 (Annexure P-5), the said persons were `elevated' subject to the conditions (iii) and (v) (supra). Individual appointment letters in the same terms were issued to all the petitioners. C.W.P No.13541 of 1995 ::3:: One Siri Pal had also similarly obtained degree qualification during service. By a policy dated 22.4.1980, a promotion quota had been created to the post of Junior Engineer from amongst persons who had got the degree qualification but the same was changed by a decision dated 21.1.1981 to the extent that instead of promotion to the post of Junior Engineer only two increments were allowed to be given. The aforesaid Siri Pal claimed promotion and on being denied the same, filed CWP No.15442 of 1993, which was dismissed with the following observations :- “ In view of the change in the Policy as has been observed in the impugned order, Annexure P/9 no case for interference has been made out. Consequently, the writ petition is dismissed in limini. If any person has been promoted despite the change in the policy, the petitioner would be entitled to point out to the concerned authorities and they would be entitled to pass suitable order in the reply.” The said Siri Pal filed an SLP before the Hon'ble Supreme Court where the Board took a stand that in the year 1990, the petitioners and some other employees had been promoted to the posts of Junior Engineer and consequently, the Hon'ble Supreme Court passed the following order on 25.7.1994 :- “ It is admitted in the counter affidavit that contrary to the policy of not giving out of turn promotion to those acquiring A.M.I.E qualification, department had promoted three named persons and other stated therein. It is stated that it was a mistake done at the lower level C.W.P No.13541 of 1995 ::4:: and for the first time the Board has come to know of this and they intend to take action in that behalf for correcting the mistake they have committed. Till date, no such action has been taken. When we asked for the reason, he prayed for and granted two months' time for taking the action against the person making that order and also against the promoted persons. Post the matter thereafter.” Thereafter, a notice dated 9.8.1994 (Annexure P-14) was issued to the petitioners wherein it was mentioned as follows :- “ Your aforesaid appointment to the post of J.E is not in consonance with the policy of the Board as contained in its order No.69/EG-335, dated 12.3.1981 as you acquired higher qualification on dated 14.9.1990 while the incentive for out of turn promotion was withdrawn on dated 12.3.1981. Thus, your case for out of turn promotion was not covered under the policy decision.” The petitioners were asked to show cause as to why they should not be reverted. They filed a reply clearly bringing out that they had not been promoted as per the policy of 1980 but had been appointed by way of direct recruitment in the 60% quota; the stand of the Board was mistaken; and consequently their appointments as Junior Engineer could not be faulted. Ultimately, Civil Appeal No.722 of 1995 arising out of SLP No.6950 of 1994 preferred by the aforesaid Siri Pal was decided by judgment dated 9.1.1995 wherein the Hon'ble Supreme Court noticed as C.W.P No.13541 of 1995 ::5:: follows :- “ xx xx xx In special leave petition, allegation was made that certain persons who have secured graduation in the year 1989 to 1991, were promoted as Junior Engineers. Notice was issued to the respondents to show cause why the same benefit should not be given to the appellant as well. In the counter affidavit filed in this court, it was admitted that the promotions were wrongly given. Pursuant thereto a direction was issued by this Court to find out as to what action was taken by the Board in that behalf. Thereafter proceedings appear to have been taken to recall the promotions given to ten persons. We are not concerned, at this stage, with regard thereto, with them though they sought to come on record as interveners. The crucial question, however, is whether the appellant is entitled to out of turn promotion. The Board has passed a promotion policy resolution exercising powers under S.79(c) of the Electricity (Supply) Act, 1948, called `Revised Recruitment and Promotion Policy'. Paragraph 1.3 of this Policy relates to the `Lineman' to which post the appellant belongs. Paragraph 1.3.1 provides that the recruitment will be made from amongst Assistant Linemen working in respective circles on seniority-cum-merit basis. C.W.P No.13541 of 1995 ::6:: Thereafter, the Junior Engineers are to be recruited under paragraph 1.5. Paragraph 1.5.1 provides that 60% posts of Junior Engineers (Field) will be filled up by direct recruitment out of the persons having three years' Diploma in Electrical/Mechanical/Electronics. Employees already in the service of the Board and possesses the requisite qualifications but working on lower posts on regular basis, will also be eligible for direct recruitment. In other words, 60% of the posts are available for direct recruitment including the persons who are having the requisite qualifications and working in the lower regular posts. Paragraph 1.5.3 prescribes promotion from Assistant Foremen. It postulates that 40% posts will be filled up by promotion from amongst the Assistant Foremen on seniority-cum-merit basis and belonging to the category under para 1.4.2 above. Thus, it could be seen that for normal channel of promotion a Lineman is entitled to be considered for the post of Assistant Foreman and an Assistant Foreman is entitled to be considered for promotion as Junior Engineer. Since the policy decision, which was taken in April 1980, was withdrawn in March 1981, no one will be entitled to claim nor be given any promotion out of turn on the basis that he had acquired graduation, be it A.M.I.E or B.E. It is seen that some persons, admittedly, have been promoted but the promotions are being recalled and C.W.P No.13541 of 1995 ::7:: being withdrawn by the Board. It was a case where the candidates are allowed to take the benefit, the appellant, certainly, would be right in his contention that he stands on the same footing for consideration. Since the Board has already taken action to withdraw the benefit wrongly given, which would be passed shortly, we can not give any directions to the Board to consider the case of the appellant for out of turn promotion. Needless to state that if the appellant is eligible under the policy and 60% posts are available, the Board should notify the vacancies for direct recruitment and the appellant can also apply for being considered at par with others for appointment as direct recruit in accordance with the Rules. The appeal is accordingly dismissed. No costs.” It would be seen that in para 2 of the judgment, reproduced above, the Hon'ble Supreme Court specifically noticed the provision by which 60% posts had to be filled up by direct recruitment and the fact that the employees already in the service of the Board could also be eligible for direct recruitment. Further, the Hon'ble Supreme Court in the concluding portion of the judgment again noticed that if the appellant therein was eligible for direct recruitment, he could apply for the same. After the judgment of the Hon'ble Supreme Court, the petitioners filed a supplementary representation wherein they specifically brought out the fact that in the supplementary affidavit, filed before the Hon'ble Supreme Court, the Board had mentioned that when the petitioners were considered in 1990, the said Siri Pal was not eligible having passed C.W.P No.13541 of 1995 ::8:: AMIE on 28.3.1992. However, as per the petitioners, the Board faulted in making the averment that the petitioners were appointed merely on the basis of their AMIE/BE qualification, without bringing to the notice of the Hon'ble Supreme Court that under the memorandum whereby the petitioners were considered, their confidential reports and experience had also been taken into consideration. Further, the petitioners pointed out that the Board had not brought to the notice of the Hon'ble Supreme Court the fact that the petitioners were considered and appointed under the policy dated 10.10.1988 without there being any reference to the policy dated 22.4.1980 or the subsequent policy dated 12.3.1981. However, by the impugned order, Annexure P-23, the petitioners were reverted to the post(s) held by them before being appointed as Junior Engineers. Learned counsel for the respondents has sought to justify the reversion of the petitioners on the strength of the word `elevated' by arguing that this shows that the petitioners were in-fact promoted. In my opinion, this argument is fallacious. The entire consideration of the case of the petitioners as well as their appointment orders clearly reveal that they were appointed by way of direct recruitment under the quota of 60% for the direct recruitment. Condition No.(iii), noticed above, clearly stipulates that the petitioners would be treated as fresh recruits. The next argument of learned counsel for the respondents to the effect that the petitioners were reverted in consonance with the directions of the Hon'ble Supreme Court is clearly misplaced, particularly in view of the fact that the Hon'ble Supreme Court itself noticed that the rules envisaged direct recruitment upto 60% for which even employees were eligible. It is clear that the respondent-Board did not bring full facts before C.W.P No.13541 of 1995 ::9:: the Hon'ble Supreme Court and that is why the Hon'ble Supreme Court was persuaded to give directions as it did. It also cannot be denied that there is no mention of the policy of 1980 or 1981 any where either in the consideration of the petitioners' cases for appointment or in their appointment orders. In view of the facts and circumstances, it is held that the impugned order (Annexure P-23) is illegal and is consequently quashed. The writ petitions are accordingly allowed with, however, no order as to costs. ( AJAY TEWARI ) December 04 , 2008. JUDGE `kk'