IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 5481 of 1990 Date of Decision: July 5, 2011 R.P. Aggarwal and others …Petitioners Versus Haryana State Electricity Board …Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: None for the petitioners. Mr. Rajat Khanna, Advocate, for the respondent. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. 1. The short question raised in the instant petition filed un- der Article 226 of the Constitution is “whether the amendment dated 19.2.1988 (P-8), made in the Punjab State Electricity Board Service of Engineers (Electrical) Recruitment Regulations, 1965 (as applicable to the Haryana State Electricity Board) [for brevity, ‘the Regulations’], under Section 79 of the Electricity (Supply) Act, 1948, prescribing quota system on the basis of educational qualification violates the provisions of Articles 14 and 16 of the Constitution”? 2. The petitioners have placed primary reliance on the judg- ment of Hon’ble the Supreme Court rendered in the case of Punjab State Electricity Board, Patiala and another v. Ravinder Kumar CWP No. 5481 of 1990 Sharma and others, AIR 1987 SC 367. In that case common senior- ity list of Linemen holding the qualification of diploma and non-di- ploma holder was maintained. However, for further promotion to the post of Line Superintendent, separate quota on the basis of edu- cational qualification was fixed which became subject matter of challenge, as is evident from para 9 of the judgment. According to the quota, direct recruitment from open market was 62%, diploma holder Linemen were to be considered for promotion to the extent of 5% and non-diploma holder Linemen to the extent of 33%. The quota of promotion for diploma holder Linemen to the post of Line Superintendent was further increased on 2.7.1973 from 5% to 20% and then on 9.5.1974 from 20% to 33%. The aforesaid rule was challenged on the ground that once there is one cadre of Linemen, which perform same nature of duties and there is common seniority then on the basis of educational qualification no further discrimina- tion was permissible and it would violate provisions of Articles 14 and 16(1) of the Constitution. Accordingly, it was found that per- sons with diploma qualification, who were junior, could not have been permitted to steal march over the non-diploma holders on the basis of quota and the view of Hon’ble the Supreme Court based on its earlier judgment rendered in the case of Mohammad Shujat Ali v. Union of India, AIR 1974 SC 1631, is discernible from paras 10 and 11, which reads as under:- “10. There is no dispute, rather it is not controverted that the position of the plaintiff-respondent in the joint seniority list of Line Men in the scale of Rs. 110-330 of the Punjab State Electricity Board from 1.6.1967 to 2 CWP No. 5481 of 1990 31.8.1974 which has been filed as additional document by the Punjab State Electricity Board in C.A. No. 3341 of 1983 that the plaintiff-respondent's name was mentioned at S. No. 995 whereas names of defendants 3 to 7 appear in the said list in S. Nos. 1451, 1546, 2309, 1877 and 2279 respectively. Therefore all the defendants 3 to 7 are undoubtedly junior to the plaintiff-respondent as Line Men in the joint seniority List of Line Men comprising of both diploma holders and non-diploma holders Line Men in the same cadre. It is also clear and evident from the office Order No. 97 dated 22.10.1968 that the qualifica- tion for promotion to the post of Line Superintendent from Line Man is either holding certificate or diploma in electrical engineering from any recognised institute or having passed 1½ years' course in the electrical trade of Electrician/Line Man/Wire Man from recognised Industrial Training Institute and are matriculates and have worked as Line Man for four years continuously and immediately before the promotion. The petitioner who is an Arts Graduate and has I.T.I. Certificate (in the trade of electri- cian 2 years' duration) and also have National Apprentice Certificate in the trade of Line Man 3 years' duration is eligible for promotion to the post of Line Superintendent as he has fulfilled all the requisite qualifications. There is no gainsaying that all the Line Men either diploma hold- ers or non-diploma holders are performing the same kind of work and duties and they belong to the same cadre 3 CWP No. 5481 of 1990 having a common/joint seniority list for promotion to the post of Line Superintendent. The orders dated 12.7.1977 being order No. 73 promoting defendants 3, 4 and 5 as well as office order No. 898 dated 17.8.1977 promoting defendants 6 and 7 on the basis of quota from diploma holders as fixed by the order of the State Electricity Board dated 9.5.1974 is wholly arbitrary, illegal, discrimi- natory and violative of the equality clause contained in Articles 14 and 16 of the Constitution inasmuch as it pur- ports to promote defendants 3 to 7 who are admittedly junior to respondent 1 in service as Line Man in the State Electricity Board. It has been rightly held by following the decision in Shujat Ali's case, (1975) 1 SCR 449 at p. 480 : (AIR 1974 SC 1631 at p. 1655) that the promotions of de- fendants 3 to 7 who are admittedly junior to the plaintiff- respondent in the service as Line Man to the post of Line Superintendent are illegal, arbitrary and discriminatory and so bad. It is pertinent to refer to the observations of this Court in the said case which read as follows: "But where graduates and non-graduates are both regarded as fit and, therefore, eligible for promo- tion, it is difficult to see how, consistently with the claim for equal opportunity any differentiation can be made between them by laying down a quota of promotion for each and giving preferential treat- ment to graduates over non-graduates in the mat- ter of fixation of such quota. The result of fixation of 4 CWP No. 5481 of 1990 quota of promotion for each of the two categories of Supervisors would be that when a vacancy arises in the post of Assistant Engineer, which, according to the quota is reserved for graduate Supervisors, a non-graduate Supervisor cannot be promoted to that vacancy, even if he is senior to all other gradu- ate Supervisors and more suitable than they. His opportunity for promotion would be limited only to vacancies available for non-graduate Supervisors. That would clearly amount to denial of equal oppor- tunity to him." 11. This observation applies with full force to the pres- ent case, and it has been rightly held by the High Court of Punjab and Haryana that the promotion of defendants 3 to 7 who are junior to the plaintiff-respondent from Line Man to the post of Line Superintendent is wholly bad and discriminatory and directed that the petitioner be deemed to have been promoted to the post of Line Su- perintendent from the date the said defendants 3 to 7 had been promoted from Line Man to Line Superinten- dent. In our considered opinion there is no infirmity in the judgment of the High Court affirming the judgment and decree of the Courts below and we agree with the rea- soning and conclusions arrived at by the Courts below. The two appeals on special leave are, therefore, dis- missed with costs quantified at Rs. 5000/- to be paid by the appellant of C.A. No. 3341 of 1983 to respondent 1.” 5 CWP No. 5481 of 1990 3. It is, thus, evident that the educational qualifications have not been considered as rationale basis and the quota on that basis has been struck down. Inspired by the judgment rendered in Ravinder Kumar Sharma’s case (supra), the petitioners have filed the instant petition challenging the amendment made in the Regula- tions, vide order dated 19.2.1988 (Annexure P-8). 4. It would be pertinent at the outset to point out that the judgment rendered in Ravinder Kumar Sharma’s case (supra), was overruled by a 3-Judge Bench of Hon’ble the Supreme Court in the case of P. Murugesan v. State of Tamil Nadu, (1993) 2 SCC 340. In para 19 of the judgment, the 3-Judge Bench has specifically noted that on account of earlier view of Hon’ble the Supreme Court in the case of State of Jammu and Kashmir v. Triloki Nath Khosa, 1974 (1) SCR 771, which was not considered in Ravinder Kumar Sharma’s case (supra) and which run counter to the view taken in Ravinder Kumar Sharma’s case (supra), the same could not be sustained. The view taken in P. Murugesan’s case (supra) while overruling the view taken in Ravinder Kumar Sharma’s case (supra), reads as un- der:- “ ……A perusal of the judgment shows that the atten- tion of the Bench was not drawn either to T.N. Khosa or to other decisions. Reference was made only to the ob- servation in Shujat Ali (supra) quoted hereinbefore and it was held that the distinction made between the diploma holders and non-diploma holders was discriminatory and bad. Apart from the distinction on facts between that 6 CWP No. 5481 of 1990 case and the case before us, it is evident that non-consid- eration of T.N. Khosa and other decisions relevant under the subject has led to the laying down of a proposition which seems to run counter to T.N. Khosa. With great re- spect to the learned Judges who decided that case, we are unable to accept the broad proposition flowing from the case.” (emphasis added) 5. Similar issue came up for consideration before Hon’ble the Supreme Court in the case of Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma, (1998) 5 SCC 87. In paras 5 and 6 following pertinent observations have been made:- “5. The decision in Punjab State Electricity Board & Anr. v. Ravinder Kumar Sharma & Ors. (supra) was overruled by this Court in P. Murugesan & Ors. v. State of Tamil Nadu & Ors., (1993) 2 SCC 340. It was on this decision that the Tribunal placed reliance and came to the conclu- sion that the promotions had still to be made on the basis of quota fixed for three different feeder categories and not on the basis of integrated seniority particularly as the classification on the basis of "educational qualification" was held to be valid by this Court. 6. Having regard to these facts, we are of the view that the Tribunal was fully justified in ordering that the respondent shall be promoted on the basis of "quota" fixed for non-diploma holders with 10 years of service and not on the basis of integrated seniority. The Tribunal was also justified in ordering payment of salary to the re- 7 CWP No. 5481 of 1990 spondent for the post of Junior Engineer-I with effect from 1990 when he was made to work on that post. It is true that the respondent, to begin with, was promoted in stop- gap arrangement as Junior Engineer-I but that by itself would make no difference to his claim of salary for that post. If a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post. The Tribunal has noticed that the respon- dent has been working on the post of Junior Engineer-I since 1990 and promotion for such a long period of time cannot be treated to be a stop-gap arrangement.” 6. We have prefaced this judgment with the enunciation of law made by Hon’ble the Supreme Court which puts one principle beyond any doubt that educational qualification can provide valid basis for classification for carving out quota from one cadre of em- ployees for further promotion to the higher posts. It remains undis- puted that the service conditions of the petitioners are governed by the Rules and they have claimed that different quota cannot be carved out on the basis of educational qualification for further pro- motion to the post of Line Superintendent. 7. Some facts would need to be noticed to put the contro- versy in its true prespective. On 14.5.1970, an order was passed prescribing the quota for Linemen for promotion to the cadre of Line Superintendent, which is to the following effect: “1. Direct recruitment from the open market 62% 2. Diploma holders Lineman 5% 3. Lineman non-diploma holders 33%” 8 CWP No. 5481 of 1990 8. On 2.7.1973, the quota of promotion for diploma holder Linemen to the post of Line Superintendent was increased from 5% to 20%. On 9.5.1974 the said quota was further increased from 20% to 33%. It was further provided that the posts of Line Superin- tendents (now Junior Engineer-II) would be filled up to the extent of 34% by direct recruitment; 33% by promotion of diploma holder Linemen; and 33% by promotion of non-diploma holder Linemen. The said quota system was challenged by one Ravinder Kumar Sharma by filing a civil suit. The said suit was allowed and quota system in the cadre of Lineman was held as violative of Articles 14 and 16 of the Constitution. The PSEB was directed to promote Shri Ravinder Kumar Sharma on the basis of seniority-cum-merit with retrospective effect from the date persons junior to him were pro- moted. Eventually, the matter travelled upto Hon'ble the Supreme Court in Ravinder Kumar Sharma’s case (supra). 9. It has been stated that a number of employees filed CWP Nos. 1926 of 1973 and 3552 of 1974, challenging fixation of afore- said quota system by asserting that it was violative of Articles 14 and 16 of the Constitution. However, the said writ petitions were decided against those employees vide judgment dated 19.11.1985. However, the Letters Patent Bench reversed the decision of the learned Single Judge. On the basis of the judgment of the Letters Patent Bench, the PSEB issued a combined seniority list of Junior En- gineers on 12.10.1983, which was challenged by the diploma hold- ers in CWP No. 310 of 1984. On 24.7.1984, the said writ petition was disposed of by holding as under:- 9 CWP No. 5481 of 1990 "14. The impugned reservation of posts in favour of the petitioners (diploma-holders) is also directly hit by the observations of the Supreme Court in Mohammad Shujat Ali's case (Supra). Under these circumstances, there is no escape from the conclusion that the reservation in fa- vour of the petitioners in the matter of promotion as Jun- ior Engineer-I suffers from the vice of hostile discrimina- tion, violative of Article 14 of the Constitution." 10. It was further observed in the said judgment that quota system is also bad on the ground that in similar circumstances Regulation 9(8)(b) of the Regulations has been held violative of Arti- cles 14 and 16 of the Constitution in the case of Vinod Kumar Vir- mani v. Punjab State Electricity Board, 1981 (2) SLR 346. 11. It has also been stated by the petitioners that one Dharamvir Yadav also filed CWP No. 4013 of 1978. On 20.5.1980 (P-2), a Division Bench of this Court disposed of the said writ peti- tion by observing as under: " According to the reply filed on behalf of the Board, the decision regarding promotion as contained in Annex- ure P-2, is based on the policy decision taken by the Board on 9th August, 1974, embodied in Annexure P-3, in which quota has been fixed. It has also been averred that this decision relating to the fixation of 60% of posts of Junior Engineers for diploma-holder Line Superinten- dents and only 40% of the posts for non-diploma holder Line Superintendents is based on the decision taken by the Punjab State Electricity Board in their order dated 8th 10 CWP No. 5481 of 1990 August, 1965, copy of which is annexure R-1 on the rec- ord. The analogous decision of the Punjab State Electric- ity Board and others, decided on May 5, 1980 as (is?) hit by Articles 14 and 16(1) of the Constitution. It is not much disposed that the ratio of the decision in the said case is fully applicable to the facts of the present case. Consequently, the writ petition is allowed and the decision Annexure P-3 dated 9th August, 1974, relating to the fixation of quota of posts Junior Engineers between diploma holder and non diploma holder Line Superinten- dents on the basis of qualifications is quashed and it is di- rected that the claim of the petitioner for promotion to the post of Junior Engineer will be considered afresh in view of the same. ......" 12. The petitioners have alleged that under the garb of vari- ous quotas fixed for promotion for various categories, the Board has been making promotions in a pick and choose manner. Numerous diploma holders junior to one or other of the petitioners have been promoted to the next higher post ignoring the petitioners. 13. Having heard learned counsel for the respondent Board we are of the view that the quota provided by letter dated 19.2.1988 (P-8), on the basis of educational qualification by amend- ing Regulation 9 of the Regulations, cannot be regarded as violative of Articles 14 and 16(1) of the Constitution. Those who possess the educational qualification of AMIE/BE have been given separate quota for promotion than those who do not possess that qualifica- tion. Classification of a cadre on the basis of educational qualifica- 11 CWP No. 5481 of 1990 tion would not be hit by Articles 14 and 16(1) as is clear from the judgments of Hon'ble the Supreme Court rendered in the cases of P. Murugesan (supra) and Hari Om Sharma (supra). Accordingly, we uphold Regulation 9 of the Regulations as amended on 19.2.1988 (P-8). 14. In view of the above, the instant petition fails and the same is accordingly dismissed. (M.M. KUMAR) JUDGE (GURDEV SINGH) July 5, 2011 JUDGE PKapoor 12