IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 12377 of 2008. Reserved on: 26.02.2011. Decided on: 03.03.2011. _________________________________________________ Janki Dass. … Petitioner. Versus H.P. 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. Onkar Jairath, Advocate. For the Respondents : Ms. Anjula Khajuria, Advocate for respondents No.1 to 3. None for respondents No.4 to 6. Rajiv Sharma, J. Petitioner was appointed as Helper (Sub Station) on 21.9.1993. He joined his duties on 21.9.1993. The post of helper is in the feeder category for promotion to the post of Sub Station Attendant as per Recruitment and Promotion Regulations notified on 7.8.1991. Petitioner ranked at Sr. No.6 of the seniority list of the Helpers (Sub Station) as it 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. - 2 - stood on 1.1.1999. Respondent No.4 was at Sr. No.12 and respondent No.5 was at Sr. No.13. Respondent-Board promoted respondents No.4 and 5 on ad hoc basis as SSA on 21.5.1999. Respondent No.6 was promoted on ad hoc basis as SSA on 16.7.2003 (Annexure RA-9). Petitioner assailed the promotions of respondents No.4 to 6 by filing O.A. No.1406 of 2005. The same was directed to be treated as representation to the Secretary of respondent-Board, which was rejected by the Secretary of respondent-Board on 29.8.2005. 2. Mr. Onkar Jairath, learned counsel for the petitioner has strenuously argued that his client being senior to respondents No.4 to 6 was required to be considered for promotion to the post of SSA. He also argued that the respondent- Board has failed to make promotions to the post of SSA strictly as per R & P Regulations, notified on 7.8.1991. 3. Ms. Anjula Khajuria, learned counsel appearing on behalf of respondents No.1 to 3 has strenuously argued that respondents No.4 and 5 have been promoted on the basis of policy decision, dated 11.3.1996 and respondent No.6 has been promoted against the post reserved for Scheduled Tribe. 4. Notices were issued by the learned erstwhile Himachal Pradesh Administrative Tribunal to the respondents. Respondent-Board filed reply and the same was adopted by - 3 - respondents No.4 to 6 as per order 13.9.2007. Respondents No.4 to 6 were duly served before the Himachal Pradesh Administrative Tribunal. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. It is evident from the Recruitment and Promotion Regulations that 50% of the posts are to be filled-up by way of direct recruitment and 50% by way of promotion. The essential qualification prescribed for direct recruitment against 50% quota is that the candidate must possess matriculation or its equivalent certificate with I.T.I. in Electrician Trade. However, so far as the promotion to the SSA is concerned, Helper (Sub Station) is in the feeder category. The candidates with I.T.I. certificate having two years regular service, Matriculates having four years regular service and others having six years regular service are eligible for promotion to the post of SSA. 7. In the instant case, respondent-Board instead of filling up the post by way of promotion has filled up the posts by promoting respondents No.4 and 5 against the direct recruitment quota. The only explanation given by the respondent-Board in the reply for resorting to this methodology is Annexure RA-2, dated 11.3.1996. The Court is of the considered view that when the incumbents were available for being promoted to the post of SSA, it was not - 4 - open to the Board to resort to fill up the post by ignoring all the eligible candidates and by making promotions against the direct recruitment quota from those candidates who were possessing I.T.I. certificate with matriculation. Petitioner was fully eligible since he joined on 21.9.1993 and was matriculate, to be considered for promotion to the post of SSA. He was admittedly senior to respondents No.4 and 5. Respondent No.4 was appointed on 6.1.1994 and respondent No.5 was appointed on 13.6.1996. Promotions were effected by the respondent-Board on 21.5.1999 vide Annexure RA-4 so far as respondents No.4 and 5 are concerned. There was a rider in office order dated 21.5.1999 that the promotions will not confer any right upon the officials to continue as SSA or to claim seniority in the grade. However, the promotees were to be considered for regularization on their turn for promotion to the concerned post in normal course against the quota prescribed for promotion in R&P Regulations. Surprisingly, respondent-Board on the basis of Annexure RA-5, dated 27.12.2002 has regularised the promotions of respondents No.4 to 6 as SSA in the pay-scale of ` 4600-7250 vide Annexure RA-6 on 25.8.2003. The case of the petitioner has neither been considered at the time when respondents No.4 and 5 were promoted on ad hoc basis as SSA nor also at the time when they were promoted on regular basis as per Annexure RA-6 on 25.8.2003. The explanation given by the - 5 - respondent-Board to consider the promotion of respondents No.4 to 6 against direct recruitment quota is not satisfactory. The direct quota is meant for those candidates who are to apply afresh with the qualification prescribed and the candidates already working can also apply against this quota after routing their applications through proper channel. In the present case, the respondent-Board has not called any applications from the candidates to be appointed against direct quota posts. However, they have promoted respondents No.4 to 5, who were possessing I.T.I. certificate in Electrician Trade against the direct recruitment quota. This exercise undertaken by the respondent-Board was arbitrary. Petitioner being fully eligible and senior to respondents No.4 and 5 was required to be considered even though on ad hoc basis for promotion. Petitioner had put in 4 years’ service and was also matriculate. 8. Ms. Anjula Khajuria, learned counsel appearing on behalf of respondents No.1 to 3 has further argued that so far as respondent No.6 is concerned, he has been promoted on 16.7.2003 against the post reserved for Scheduled Tribe and by clearing back log. Mr. Onkar Jairath, learned counsel for the petitioner has taken me to Annexure RA-9 whereby respondent No.6 has been promoted as SSA on regular basis. There is no mention in the letter that he has been appointed against the post reserved for Scheduled Tribe and, that too, by - 6 - clearing back log. Respondent No.6 is also junior to the petitioner as per final seniority list of Helpers (Sub Station) as it stood on 1.1.2001. Petitioner is at Sr. No.6, respondents No.4, 5 and 6 are at Sr. No.12, 13 and 30 respectively. Respondent-Board has not placed any material on record to establish that there was short fall of one Scheduled Tribe candidate as averred in the reply. Respondent-Board while making promotion to the post of SSA of respondents No.4 and 5 has relied upon instructions dated 11.3.1996. These instructions are contrary to the R&P Regulations. The R&P Regulations could not be nullified by framing policy dated 11.3.1996, Annexure A-2. It has virtually substituted the R&P Regulations. The instructions/guidelines can only supplement, but cannot substitute the R&P Regulations. Respondent- Board has also overlooked the conditions enumerated in Annexure RA-5 when respondents No.4 and 5 were promoted to the post of SSA. Respondents No.4 and 5 have been promoted on regular basis by overlooking the conditions imposed in their promotion letter Annexure RA-5, dated 21.5.1999. Respondents No.4 and 5 have been promoted on regular basis on 25.8.2003. The respondent-Board has initially promoted respondents No.4 and 5 in negation of R&P Regulations by considering them against direct recruitment quota and thereafter by relaxing the R&P Regulations as per Annexure RA-5, dated 27.12.2002 to promote them on regular - 7 - basis vide office order dated 25.8.2003. Respondent-Board is a State within the meaning of Article 12 of the Constitution of India. Its action must be judicious, fair and transparent. There is no explanation forth-coming why respondent-Board has resorted to relaxation of R&P Regulations for two candidates. The exercise to be undertaken for relaxation of terms and conditions of R&P Regulations must conform to Articles 14 and 16 of the Constitution of India. Relaxation clause has to be applied uniformly to all the employees similarly situate and the Board could not pick and choose. 9. Their Lordships of Hon’ble Supreme Court in Union of India versus Dharam Pal and others, (2009) 4 SCC 170 have held that power of relaxation, cannot be exercised arbitrarily or in a cavalier manner. Their Lordships have held as under (para 32):- “In any view of the matter, it is now well settled that even power of relaxation even specifically provided in the appointing authority himself being created (sic by) a statute cannot be exercised in an arbitrary and cavalier fashion. In Kendriya Vidyalaya Sangathan and Ors. v. Sajal Kumar Roy this Court held: (SCC p. 675, para 11) "11...The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/ Selection Committee. The requirements to comply with the rules, it - 8 - is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof. As Respondents do not come within the purview of the exception contained in Article 45 of the Education Code, in our opinion, the Tribunal and consequently, the High Court committed a manifest error in issuing the aforementioned directions." 10. Ms. Anjula Khajuria, learned counsel for the respondent-Board has also argued that the petitioner has no right to be considered for promotion on ad hoc basis. This question is no more resintegra in view of law laid down by a Division Bench of this Court in “Dr. V.K. Bhargava v. State of H.P. and others, I.L.R. 1985 H.P. 358. The Division Bench has held as under (para 33):- “It cannot be possibly disputed that even an ad-hoc appointment to a post is an appointment to an office, howsoever tenuous its character may be. Such ad-hoc appointment authorises the appointee to occupy the post and to perform the functions and to discharge the duties and to draw the emoluments attached to the post. In case of ad-hoc appointment to any post by way of promotion, there is also the conferment of a higher status or position. When such an appointment is made to any office under the State, Articles 14 and 16 will undoubtedly have an impact. Article 16, sub-Article (1) provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. It is settled law that Article 16 is only an incident of the application of - 9 - the concept of equality enshrined in Article 14. Article 16, sub-Articles (1) and (2), really give effect to the equality before law guaranted by Article 14 and to the prohibition of discrimination guaranted by Article 15(1). These three provisions form part of the same constitutional code of guarantees and supplement each other and they give effect to the doctrine of equality in the matter of appointment and promotion. In other words, Article 16 guarantees that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State or to promotion from one office to a higher office thereunder. (See : General Manager, Southern Railway and another v. Rangachari, Respondent, Gurbux Das, Intervener, AIR 1962 SC 36, The State of Mysore and another v. P. Narasinga Rao, AIR 1968 SC 349, and C.A. Rajendran v. Union of India and others, AIR 1968 SC 507). In deciding the scope and ambit of the fundamental right of equality of opportunity guaranteed by this Article, it is necessary to bear in mind that in construing the relevant Article a technical or pedantic approach must be avoided. Looked at from this angle, there is no reason to exclude the applicability of Article 16 in matters relating to ad-hoc employment or appointment to any office under the State. Any arbitrariness, unfairness or inequality of treatment in the matter of ad-hoc employment or appointment, including an appointment by way of ad-hoc promotion, to any office under the State would, therefore, give rise to a legitimate challenge enforceable in writ jurisdiction on the ground of the breach of Article 16. If there are any policy decisions/executive instructions governing ad-hoc appointments and there is any arbitrary or irrational departure therefrom on the part of the State, the challenge can be justifiably based on the ground - 10 - that such act impinges upon the guarantee of equality of treatment enshrined in Article 16. If there is a statutory enactment regulating such appointments and there is a breach thereof, an additional ground of challenge based on the infringement of a legal right would also be available. This much on principle.” 11. The Court is of the considered view that the petitioner was required to be considered for promotion being senior to respondents No.4 to 6 for the post of SSA. The action of the respondent-Board of considering the candidature of respondents No.4 and 5 against the direct recruitment quota while giving them ad hoc promotion on 21.5.1999 and subsequently regularizing them on 25.8.2003 was illegal and arbitrary. 12. Consequently, in view of the observations and discussion made hereinabove, the promotion of respondents No.4 and 5 on ad hoc basis as per letter dated 21.5.1999 and subsequently regularization of their promotion on the basis of Annexure RA-6, dated 25.8.2003 is declared arbitrary and illegal since the respondents No.4 and 5 were junior to the petitioner. Similarly, respondent No.6 could not be considered for promotion over and above the petitioner since the petitioner was senior to him as per final seniority list of Helpers (Sub-Station) as on 1.1.2001 (Annexure RA-7). Consequently, his promotion is also declared illegal and arbitrary. - 11 - 13. Accordingly, the petition is allowed. Annexure RA-4, dated 21.5.1999, Annexure RA-6, dated 25.8.2003 and Annexure RA-9, dated 16.7.2003 are quashed and set aside. Respondent-Board is directed to consider the case of the petitioner to the post of SSA with effect from 21.5.1999 with all consequential benefits. Necessary steps be taken within a period of one month after the production of certified copy of this judgment by the petitioner. The pending application(s), if any also stands disposed of. No costs. (Rajiv Sharma), Judge. March 03, 2011. (sck).