IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No.:53/2008 (TA 91/2003) Reserved on 24.12.2008 Decided on:26.3.2009 Arun Kumar and others. …Petitioners. Versus Himachal Pradesh State Electricity Board and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes For the petitioner : Mr. Dilip Sharma, Advocate. For the Respondents : Ms. Anjula Khajuria, Advocate for respondent No.1. Mr. Sanjeev Bhushan, Advocate for respondent No.6. Mr. Rajnish Maniktala, Advocate for respondents No.14, 20, 41 and 51. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that petitioner No.1 was appointed as Junior Engineer after completing B. Tech. (Mechanical Engineering) on daily wages in the month of September, 1987 in the respondent-Board. He was appointed on regular basis as Junior Engineer in the month of October, 1989. He was promoted as Acting Assistant Engineer in the month of November, 1992. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 His services were regularized in the month of December, 1997. Petitioner No.2 was appointed as Junior Engineer in the month of October, 1989. He was appointed as Acting Assistant Engineer in the month of November, 1992. He was regularized as Assistant Engineer in the month of December, 1997. Petitioner No.3 was appointed as regular Junior Engineer in the month of October, 1989. He was promoted as Acting Assistant Engineer in the month of November, 1992 and was regularized in the month of December, 1997. Petitioner No.4 was appointed as regular Junior Engineer in the month of September, 1988 and he was promoted as Acting Assistant Engineer in the month of May, 1992 and was regularized in the month of December, 1997 as Assistant Engineer. Petitioner No. 5 was appointed as regular Junior Engineer in the month of December, 1988. In the month of May, 1992, he was promoted as Acting Assistant Engineer and was regularized as Assistant Engineer in the month of December, 1997. Petitioner No.6 was appointed as regular Junior Engineer in the month of September, 1989. He was promoted and regularized as Assistant Engineer in the month of December, 1997. Petitioner No. 7 was appointed as regular Junior Engineer in the month of June, 1988. Petitioner No.8 was appointed as Junior Engineer in the month of November, 1988. Petitioner No.9 was appointed as Junior Engineer in the month of September, 1989. Petitioner No. 10 was appointed as Junior Engineer in the month of June, 1988 and petitioner No.11 was appointed as Junior Engineer in the month of December, 1988. Petitioners No.8 to 11 were promoted as Acting Assistant Engineer in the month of April, 1992 and were regularized as Assistant Engineers in the month of December, 1997. The respondent-Board took a decision vide office order dated 31.12.1997 whereby it decided to give one time 3 relaxation to the Recruitment and Promotion Regulations. The text of letter dated 31.12.1997 reads thus: “As a one time relaxation to the R&P Regulations 50 AMIE/Graduate Junior Engineers (E) and 27 AMIE/ Graduate JE (C/M) who are working as Assistant Engineers on Ad hoc or Acting basis shall be considered for regular promotion as Assistant Engineers, if otherwise found fit against vacant posts falling to the share of Graduates meant for direct recruitment. Similarly another 56 Junior Engineers (Elect.) and 22 (C/M) who obtained AMIE/Degree qualification after the above Ad hoc/Acting A.Es but became senior to them, AMIE Holders, as a result of Supreme Court decision/ Board’s order shall be considered for regular promotion as A.E. (E) against vacancies meant for the direct recruitment category. The Board is further pleased to order that:- 25 posts of Junior Engineers (Elect.) and 5 posts A.Es. (C/M) upgraded as Assistant Engineers shall be filled up by promotion on regular basis from amongst Diploma holders only as one time relaxation to the R&P Regulations.” In sequel to office order No. 302 dated 31.12.1997, the petitioners were promoted as Assistant Engineers vide office order No. 303 dated 31.12.1997. A note was put in this notification that the seniority of the officers would be in the order in their respective categories. The Board issued seniority lists dated 23.4.1999 and 12.6.2000. The petitioners have assailed order dated 31.12.1997 Annexures P-2 and P-3 and seniority lists Annexures P-4 and P-5 dated 23.4.1999 and 12.6.2000, respectively. Mr. Dilip Sharma, Advocate has strenuously argued that the seniority of the petitioners was to be regulated on the basis of Annexure R-1 issued in the year 1980 and not on the basis of Annexure R-2 dated 4 18.8.1995. He has relied upon Shailendra Dania and others versus S.P. Dubey and others, (2007) 5 SCC 535. Ms. Anjula Khajuria, Mr. Sanjeev Bhushan and Rajnish Maniktala, Advocates have supported the impugned seniority list drawn on the basis of Annexure R-2. They have relied upon M.B. Joshi and others versus Satish Kumar Pandey and others, 1993 Supp. (2) SCC 419. I have heard the learned counsel for the parties and perused the record carefully. The recruitment to the post of Assistant Engineer is governed as per Annexure P-1 dated 14.2.1986. The seniority of the Junior Engineers was to be determined initially on the basis of Annexure R-1. The text of Annexure R-1 reads thus: “The seniority list of Junior Engineers who pass section A&B of AMIE of India, during service may be prepared from the dates of declaration of result of passing section A&B of India, at an early date.” However, after the judgment rendered by the Hon’ble Supreme Court in M.B. Joshi’s case reported in 1993 Supp. (2) SCC 419, Annexure R-2 was issued on 18.8.1995. The text of letter dated 18.8.1995 reads thus: “According to the instructions issued vide this office letter No. HPSEB (SECTT)/4-11/80-102613-15 dated 5.12.80, the seniority of JEs (C/M) and JEs (E) who pass AMI Examination during service is being maintained batch-wise from the dates of declaration of result of passing Section A&B. Some of JEs had represented against the said decision and had claimed that seniority of JEs who pass AMIE during service should be according to the length of service in the grade of JEs. 5 After careful consideration of the matter and taking into consideration the judgment of Hon’ble H.P. Administrative Tribunal in the case of Sh. Rattan Singh & others V/s State of H.P. (Secretary, PWD) and judgment of Hon’ble Supreme Court of India in the appeal of Sh. M.B. Joshi & Sh. Satish Kumar Pandey, contained in AIR-1993 SC, it has now been decided that the seniority of the JEs who pass AMI Examination during service shall be determined according to the length of their service in the grade of JEs. These instructions will become operative from the date of decision of Hon’ble Supreme Court judgment i.e. 1993 and batch-wise seniority of JEs, AMIE Holders already circulated will no longer be operative w.e.f. 1.1.93. However, the cases of AMIE holders JEs who have already been promoted as Assistant Engineers against 6% quota of available vacancies upto 31.12.92 will not be re-opened. Accordingly the instructions issued vide this office letter dated 5.12.80 are superseded to the extent and in future no separate seniority lists of Junior Engineers AMIE holders would be prepared.” The petitioners had been working on acting basis as Assistant Engineers since 1992. The decision to regularize them as Assistant Engineers was taken on 31.12.1997 (Annexure P-2). The seniority lists Annexures P-4 and P-5 were issued on the basis of Annexure R-2 on 23.4.1999 and 12.6.2000. It is evident from the pleadings of the parties that Annexure R-2 has been issued on the basis of judgment rendered by the Division Bench of the Hon’ble Supreme Court in M.B. Joshi and others versus Satish Kumar Pandey and others, 1993 Supp. (2) SCC 419. The controversy which had arisen between the parties in M.B. Joshi’s case is summarized in paragraph 5 of the judgment which reads thus: 6 “5. The short controversy arising in these cases relates to the determination of seniority amongst the diploma- holder Sub-Engineers who acquired the degree of graduation in engineering during the period of service qualifying them for promotion in 8 years to the post of Assistant Engineer.” Their Lordships of the Hon’ble Supreme Court have held that the seniority was to be determined on the basis of length of service of Sub- Engineers and the State Government was right in doing so and there was no infirmity in the orders passed by the Government. The judgment relied upon by the respondents, including the Board, fell for consideration before the Larger Bench of the Apex Court in Shailendra Dania and others versus S.P. Dubey and others, (2007) 5 SCC 535. The controversy which had arisen in this case between the parties has been carved out in para 37 which reads thus: “37. The only question involved in these appeals and transferred cases can be stated thus: Whether a diploma-holder Junior Engineer, who obtains a degree while in service, becomes eligible for promotion to the post of Assistant Engineer on completion of three years of service after he obtained the Engineering Degree or on completion of three years of service prior to obtaining the Degree in Engineering. The Hon’ble Supreme Court has considered M.B. Joshi’s case (supra) in detail in the following paras: “27. The same question once again came before another two-Judge Bench of this Court in M.B. Joshi and Others v. Satish Kumar Pandey and Others, 1993 Supp. (2) SCC 419. This time an interpretation was required with reference to a quota of 10% for the graduate Sub- Engineers completing eight years of service. The relevant rule provided for Sub-Engineers to qualify for promotion to the post of Assistant Engineer and 7 qualifying service provided was twelve years for diploma-holders and eight years for such Sub-Engineers who had obtained Degree of Graduation in the course of service. By an Executive Order, 50% of the quota was provided for direct recruits and the balance 50% quota by promotion was sub-divided prescribing 35% for diploma-holders completing twelve years of service, 5% for Draftsmen and Head Draftsmen completing twelve years of service and 10% for graduate Engineers completing eight years of service. The Court was called upon to consider whether the period of eight years can only be counted from the date when the diploma-holder Sub-Engineers acquired the Degree of Engineering and not prior to the said date. The controversy arose between the parties is summarized in paragraph 5 of the judgment as under :- "The short controversy arising in these cases relates to the determination of seniority amongst the diploma-holder Sub-Engineers who acquired the degree of graduation in engineering during the period of service qualifying them for promotion in 8 years to the post of Assistant Engineer. " 28. From the aforesaid, it is clear that the Court was considering the experience/qualifying service of eight years and twelve years amongst the diploma- holder Sub-Engineers and not vis-`-vis the degree- holder Sub-Engineers. The reduction of the qualifying service from twelve years to eight years simply accelerated the entitlement to promotion for the post of Assistant Engineer by Sub-Engineers from twelve years to eight years. The qualifying service which was required to be considered under the rule was that of diploma-holder Sub-Engineers. The qualifying service has no relation with the Degree of Engineering and it is said by the judgment in N. Suresh Nathan's case (supra) that the rule does not contemplate any equivalence of 8 any period of service with the qualification of acquiring Degree of Graduation in Engineering. 29. In paragraph 11 of the judgment, the Court discussed the ratio and held :- "A perusal of the above observations made by this Court clearly show that the respondents diploma-holders in that case had admitted the practice followed in that department for a long time and the case was mainly decided on the basis of past practice followed in that department for a long time. It was clearly laid down in the above case that if the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It was clearly said "it is in this perspective that the question raised has to be determined". It was also observed as already quoted above that the Tribunal was not justified in taking the contrary view and unsettling the settled practice in the department. That apart the scheme of the rules in N. Suresh Nathan case was entirely different from the scheme of the Rules before us. The rule in that case prescribed for appointment by promotion of Section Officers / Junior Engineers provided that 50 per cent quota shall be from Section Officers possessing a recognized degree in Civil Engineering or equivalent with three years' service in the grade failing which Sections Officers holding Diploma in Civil Engineering with six years' service in the grade. The aforesaid rule itself provided in explicit terms that Section Officers possessing a recognized Degree in Civil Engineering was made equivalent with three years' service in the grade. Thus, in the scheme of such rules the period of three years' service was rightly counted from the date of obtaining such degree. In the cases in hand 9 before us, the scheme of the rules is entirely different". 30. In the above decision (i.e. M.B. Joshi's case), the matter of N. Suresh Nathan (supra) was distinguished mainly on the basis of past practice and the Court further held that the rule under consideration in N. Suresh Nathan (supra) was entirely different from the scheme of the rule which the Court was considering in M.B. Joshi (supra). We have carefully considered the case of N. Suresh Nathan and it is not correct to say that the decision rendered in that matter was based on past practice. The Court, in fact, has considered and interpreted the relevant service rules and then found that such an interpretation is fortified by the practice followed in that department.” Their Lordships of the Hon’ble Supreme Court after referring to N. Suresh Nathan, M.B. Joshi, D. Stephen Joseph, Anil Kumar Gupta, A.K. Raghumani Singh and Indian Airlines Limited cases held that the diploma holders Junior Engineers, who had obtained the degree in engineering during the tenure of service would be required to complete three years’ service on the post after having obtained a degree to become eligible for promotion to the higher post if they claim the promotion in the channel of degree-holder Junior Engineer, there being a quota fixed for graduate Junior Engineers and diploma-holder Junior Engineers for promotion to the post of Assistant Engineers. The respondent-Board had been fixing the seniority of the Junior Engineers as per Annexure R-1. It was only in the year 1995 that the criteria was changed on the basis of the judgment in M.B. Joshi’s case as per Annexure R-2. The judgment in M.B. Joshi’s case, as noticed above, has been rendered by a Division Bench. The judgment in Shailendra Dania’s case has been rendered by a Larger Bench. This Court is bound by the judgment rendered by the 10 Larger Bench. Moreover, the M.B. Joshi’s case has been explained by their Lordships in Shailendra Dania’s case. The seniority of the Junior Engineers was to be determined from the date of declaration of result of section A and B. Their entire length of service could not be taken into consideration after passing the AMIE examination. Accordingly, the petition is allowed. Annexure P-4 and P-5 dated 23.4.1999 and 12.6.2000, respectively are quashed and set aside. The respondents are directed to re-draw the seniority lists on the basis of the judgment rendered in Shailendra Dania’s case within a period of eight weeks from today. The respondents while drawing the seniority list will also take into consideration the services rendered by the petitioners as Assistant Engineers from 1992 to 1997. There will, however, be no order as to costs. (Rajiv Sharma ), J. 26.3.2009 *awasthi*