Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. (T) No.5083 of 2008 (O.A. No.870 of 1998). Reserved on: 24.6.2010. Date of Decision: July 16, 2010. Babu Ram …..… Petitioner. Versus State of H.P. and others …. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Petitioner : Mrs. Ranjana Parmar, Advocate. For the Respondents : Mr. A.K.Bansal, Addl. Advocate General with Mr. J.S. Rana, Asstt. Advocate General for the respondents. Surinder Singh, J: The petitioner alleged great injustice to him in the matter of seniority and promotion, thus filed the original application before the erstwhile Tribunal, seeking mainly the following relief(s):- “1. That in view of the facts and circumstances stated herein above, it is most respectfully prayed that the respondents may be directed to allocate the services of the applicant to P.W.D. Department and his seniority may be maintained in the cadre of 2 Foreman (Electrical) in P.W.D. Department with all consequential benefits. 2. That the directions may be issued to respondent No.2 to promote the applicant as Junior Engineer (Electrical) from the date his juniors have been promoted with all consequential benefits.” 2. Vide Notification dated 8.7.2008, the State Administrative Tribunal was abolished, as such, the pending matters including the present one were transferred to this Court, hence the O.A. No.870 of 1998 has been registered as CWP(T) mentioned in the title of the petition. 3. In short, the facts can be stated thus. (a) The petitioner was offered work charge post of Electrician vide Office Memorandum (Annexure A-1) in the Electrical Division of the Himachal Pradesh Public Works Department (HPPWD). In the year 1987, he was promoted as ‘Foreman’ (Electrical) and was relieved from his duty on 14.12.1987 in the afternoon. (b) Vide office order of even dated (Annexure A- 2) he was directed to report for the duty to the Executive Engineer Irrigation and Public Health, Division No.II, Shimla. 3 (c ) Thus, he reported for the duties on 18.12.1987 vide Office Order Annexure A-3 and was posted at Jagroti Pumping Station against the vacant post of Foreman (Mechanical) with the headquarter at Jagroti. Needless to say that at that time Public Works Department (PWD) and Irrigation and Public Health (I&PH) were one. 4. But however, in the month of October, 1984, the Commissioner-cum-Secretary (PWD) to the Government of Himachal Pradesh vide Notification dated September 22, 1984 had allegedly ordered for bifurcation of the Public Works Department in two separate departments i.e. Public Works Department (PWD) and Irrigation and Public Health ( I&PH), which admittedly finally materialized in the year 1994. 5. It is alleged in this petition that till the filing of the original application before the erstwhile Tribunal, no formal order allocating the applicant to the I & PH department was communicated to the petitioner, but in the month of September, 1997, the respondent- department issued the provisional seniority list of the work charge Foremen’s working in the I&PH department (Annexure A-5), which had shown the name of petitioner at Sl.No.3 in the seniority list of Foreman (Mechanical), whereas, earlier to that he was shown at Sl.No.11 of the 4 final seniority list of Electrician Grade-I working in the Himachal Pradesh Public Works Department (B&R) which included the Irrigation and Public Health Department in the seniority, as stood on 30.6.1985 (Annexure A-4), wherein the names of Natha Ram and Om Parkash also appeared at serial Nos.12 and 13 respectively after him. 6. It is the case of the petitioner that the respondents did not ask for any option for his allocation to the I&PH department and showing him in the seniority list of Foreman (Mechanical) of the Irrigation and Public Health Department wing is wrong and incorrect for the reasons that there was no such post existing in the said department, which has caused prejudice to his case as even his juniors were promoted as Junior Engineers (Electrical) in the Public Works Department whereas he remained struck up as Foreman (Electrical). Admittedly, Foreman (Mechanical) in the Irrigation and Public Health Department has promotional avenues only as Junior Engineer (Mechanical) not as Junior Engineer (Electrical). Thus, it is absolutely a different cadre. Therefore, showing him in the seniority list of the mechanical wing of I &PH department was wrong and illegal. It adversely affected his rights of promotion to the post of Junior Engineer (Electrical). 5 7. The respondents resisted and contested the claim of the petitioner, on the grounds of delay and also that the Government took a decision in the exigency of service as well as in the public interest by taking into consideration over all aspect of the matter, as such, for bifurcation of the Public Works Department into two separate departments. It is submitted that the services of the petitioner stood finally allocated to the Irrigation and Public Health Department for all intents and purposes, therefore, no option was required to be taken from him as he was having no lien in Public Works Department. 8. I have heard the learned counsel for the parties and have carefully gone through the record. 9. Admittedly, a decision was taken to bifurcate the Public Works Department into two separate departments i.e. Public Works Department and Irrigation & Public Health Department in October, 1984 which materialized in the year 1994. The petitioner was offered the work charge post of Electrician and later in the year 1987, he was promoted as Foreman (Electrical) in the Public Works Department and was directed to join the Irrigation and Public Health Department, as such, he jointed the IPH department Pumping House Jagroti Pumping Station on 18.12.1987 against the post of Foreman (Mechanical), which was a wing of Irrigation 6 and Public Health Department. But, it is not known as to how and why the petitioner was posted as Foreman (Mechanical) when he was Foreman (Electrical). Originally he was born in the cadre of Foreman (Electrical) but later in the seniority list Annexure P-5 as on 31.12.1996 petitioner was shown at Sl.No.3 in the list of seniority qua Foreman (Mechanical). The petitioner had not exercised any option for his transfer to the I&PH Department. Therefore, in my considered opinion, his transfer from Public Works Department to Irrigation and Public Health Department, that too to the Mechanical Wing is against the policy decision taken by the respondent thus not tenable, also for the other reason that the feeder cadre for the post of Foreman (Electrical) and post of Foreman (Mechanical), both are different. In fact, Foreman (Electrical) is promoted from the feeder category of Electrician Grade-I whereas Foreman (Mechanical) are promoted from the cadre of Fitter/ Turner etc. having different qualification and experience. The next promotion of Foreman (Electrical) is Junior Engineer (Electrical) and from the cadre of Foreman (Mechanical) it is Junior Engineer (Mechanical). 10 Therefore, for the above reasons, the petitioner could not have been shown in the seniority list of Mechanical wing of the Irrigation and Public Health 7 Department for want of post of Foreman (Electrical). Thus, the petitioner can also not be absorbed against any available post in the said department. Virtually the petitioner has no promotional avenues in the said department for the post of Junior Engineer (Electrical) and his case also cannot be considered as Junior Engineer (Mechanical) as he does not have the requisite qualification of Foreman (Mechanical). 11. Therefore, the action of the respondent is arbitrary, perse illegal and blatantly illegal, adversely effecting the rights of the promotion of the petitioner to the post of Junior Engineer (Electrical). 12. S/Shri Natha Ram and Om Parkash, Junior Foreman (Electrical) to the petitioner with him in the Public Works Department as shown in the final seniority list of Electrician Grade-I of the H.P. Public Works Department (B&R wing) stood promoted as Junior Engineer (Electrical) vide Office Order dated 21.3.1998 (Annexure A-6), therefore, the petitioner felt aggrieved and filed the original application before the erstwhile Tribunal. Thus, it cannot be said that the claim of the petitioner was barred by time. 13. Since the petitioner has been discriminated amongst the similarly situate persons and is against the principle of natural justice and violative of Articles 14 and 8 16 of the Constitution of India, therefore, against the above factual background, in my considered view, the petitioner having borne in the cadre of Public Works Department, his seniority is required to be maintained in the said department, he could not have been posted and allocated to the Irrigation and Public Health Department without his consent also for want of substantive vacancy in the said department. 14. Therefore, the petitioner being the senior most in the Public Works Department has a right to be considered for the promotion against the post of Junior Engineer (Electrical) his prospects of promotion were jeopardized by the act of the respondents. Hence, the respondents are directed to allocate the services of the petitioner to the Public Works Department and his seniority is required to be maintained in the cadre of Foreman (Electrical) in the said department. Thus, the respondent No.2 is directed to consider the case of the petitioner for promotion to the post of Junior Engineer (Electrical) with all consequential benefits from the date his juniors named above were promoted within a period of four months from today. The petition stands disposed of. July 16, 2010. (Surinder Singh) (Pds) Judge. 9