Kuldip Singh, Judge
1. This judgment shall dispose of CWP-T No. 2736 of 2008, CWP -T No. 1470 of 2008 and CWP No. 819 of 2009.
Facts in CWP-T No. 2736 of 2008:
It has been stated that in January, 1997 there were 125 vacant posts of direct quota. Out of these 125 posts, only 21 vacancies were advertised through the H.P. Public Service Commission (for short ''Commission'') as per requisition sent to the Commission by the H.P. State Electricity Board (for short ''Board''). The petitioners applied for the posts advertised by the Commission. Thereafter, the Commission forwarded the list of selected candidates to the Multi Purpose Project and Power Department, State of Himachal Pradesh (for short MPP and Power Deptt.) in March, 1998. The petitioners and others were appointed as Assistant Engineers (Electrical) [for short AEs (E)] in the Board in June, 1998, all petitioners joined as AEs (E) in the Board.
2. The H.P. State Electricity Board Recruitment and Promotion Regulations have been framed for recruitment and promotion to the posts of A Es (E) which provide 6% quota for AMIE holders, 34% quota for J.E. (Electrical) and equivalent for promotion to the posts of AEs (E) and 60% vacancies are reserved for direct recruits.
3. The petitioners after joining came to know that the Board in deviation and in excess of the quota prescribed under the Regulations for promotion issued promotion orders on 31.12.1997 and 27.3.1998 whereby most of the private respondents who were either working as adhoc Assistant Engineers or Junior Engineers with AMIE degree and diploma holders and also non-diploma holders were promoted as AEs (E) against the left out direct quota posts of more than 104 vacancies. The Board also made some promotions after joining of the petitioners as AEs (E) on 12.6.1998.
4. On 12.6.2000 in supersession of all previously circulated final seniority lists, an inter se final seniority list of AEs (E) was circulated illegally showing all AEs (E) promoted against the direct quota posts senior to the petitioners. Thus, the private respondents were illegally shown senior to the petitioners. There is no provision in the rules for relaxation for promotion by diverting the quota nor the action of the Board was valid.
5. The petitioners on 7.7.2000 filed representation to the Board through Secretary against granting illegal seniority to private respondents. The seniority list dated 12.6.2000 showing private respondents senior to the petitioners is dehors the rules and the roster points meant for the promotees and direct recruits.
6. The Board had made promotions on 31.12.1997, 20.1.1998 and 23.3.1998 in view of the policy decision of deemed relaxation of quota regulation taken by the Board vide order No. 302 dated 31.12.1997. The decision dated 31.12.1997 is against the regulations which were in vogue at the time when the decision was taken. The decision of the Board is arbitrary, malafide and discriminatory just to accommodate the promotees, therefore, decision dated 31.12.1997 is liable to be quashed.
7. There was no power to relax in the regulations at the relevant time. In any case the procedure for relaxation of regulations was not followed. The procedure prescribed under Sections 79, 79-A of the Electricity (Supply) Act, 1948 (for short ''Act'') was not followed. The decision dated 31.12.1997 was not notified in the official gazette nor placed before the State Legislature. Thus, seen from any angle, the office order No. 302 dated 31.12.1997 is wrong, illegal.
8. The seniority fixed by the Board inter se the promotees and direct recruits is wrong, illegal and against the settled principle of law and instructions issued by the State Government and adopted by the Board which provide relative seniority of direct recruits shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the recruitment regulations. The excess promotees, if any, exceeding the share falling to the promotion quota based on the corresponding figure notified for direct recruitment would be treated only as adhoc promotees. The petitioners prayed for granting the reliefs prayed in the petition.
9. The respondent No. 1 contested the petition by filing reply on the affidavit dated 6.1.2010 of the Deputy Secretary of the Board. In the preliminary submissions, it has been stated that the Board in exercise of its statutory powers has framed and notified the Recruitment and Promotion Regulations for the posts of Assistant Engineers (Electrical) vide notifications dated 30.4.1983 and 10.6.1986 which provided 54% quota for direct recruitment and 46% quota by way of promotion. The promotion quota was further divided into sub quotas. The aforesaid notifications were amended on 23.6.1999 providing 50% quota each for direct recruitment and promotion. The promotion quota was further divided into sub quotas.
10. The H.P. Govt. had imposed ban on direct recruitment vide order dated 21.3.1990 as a result of which the vacancies which arose to be filled up from 54% quota of direct recruits for the years 1989 to 1997 could not be filled up and consequently 130 posts could not be filled up and the work was suffering badly. There were 106 Junior Engineers (Elect.) who had improved their qualification and had passed Sections A & B of AMIE which is recognized degree equivalent to B.E. Some of the Junior Engineers were already promoted as A Es (E) on adhoc /acting basis. These posts remained un-filled, the work had been suffering. The said Junior Engineers (Elect.) had acquired the requisite qualification and experience and were well conversant with the working of the organization, therefore, the Board took a policy decision to promote them to the posts of AEs (E) against 130 posts of the share of direct recruits in relaxation to Recruitment and Promotion Regulations as one time settlement to tide over the increased volume of work as per decision conveyed vide office order No. 302 dated 31.12.1997. The Board is competent to relax its rules u/s 79 (c) of the Act.
11. The Government of India vide letter dated 7.2.1986 had laid down the general principles for determining the seniority of various categories of persons which were adopted by the H.P.Govt. vide letter dated 7.10.1986, have been made applicable in the Board vide office memorandum dated 19.12.1986. According to these principles for determining the seniority of promotees and direct recruits, it has been laid down that in future, principle of rotation of quotas will still be followed for determining the inter se seniority of direct recruits and promotees. The present practice of keeping vacant slots for being filled by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position would be dispensed with.
12. The respondents No. 2 to 165 except respondents No. 58, 85, 104 and 116 were promoted vide order dated 31.12.1997. The respondents No. 58, 85 and 104 who were left out, were promoted vide office order No. 24 dated 27.3.1998. The respondent No. 116 was promoted vide office order No. 5 dated 20.1.1998, his seniority has been re-fixed in office order dated 31.12.1997 and he has been fixed at serial No. 115 in the inter se seniority vide office order dated 12.6.2000. Ajaib Singh, Junior Engineer (Elect.) AMIE holder was promoted as AE (E) on notional basis on 6.1.1998 and he has been assigned seniority in office order dated 31.12.1997 vide office order dated 12.6.2000. The name of Ajaib Singh has been added in the inter se seniority vide order dated 12.6.2000 at serial No. 30A vide addendum dated 25.7.2000.
13. The petitioners were recruited in June, 1998, respondents No. 2 to 165 were promoted in December, 1997. As per general principles for determining the seniority of various categories of persons which inter alia provide that the additional direct recruits selected against the carried forward vacancies of the previous years would be placed enbloc below the last promotee (or direct recruit as the case may be) in the seniority list based on the rotation of vacancies for that year. In other words, if direct recruitment and promotions are not made simultaneously, then the direct recruits and promotees whosoever appointed/promoted earlier would be placed senior and the additional direct recruits selected against the carried forward vacancies of the previous years would be placed enbloc below the last promotee or direct recruit as the case may be in the seniority list based on the rotation of vacancies for that year. The private respondents were promoted earlier to the petitioners and have been rightly assigned the seniority above the petitioners vide office order dated 12.6.2000.
14. On merits, it has been stated that the issue regarding filling up of vacant posts against the share of direct recruits was considered in the meeting of full Board, it was decided to provide one time relaxation in the Recruitment and Promotion Regulations, the Board decided that 50 AMIE/Graduates Junior Engineers, who were at that time working as Assistant Engineers on adhoc or acting basis be considered for regular promotion as Assistant Engineers against posts falling in the share of graduates meant for direct recruitment. The full Board further decided that another batch of 56 Junior Engineers (Elect.), who obtained AMIE/ Degree qualification after the above 50 persons, who were promoted on adhoc/acting basis and thereafter became senior to the above persons as a result of Board''s instructions dated 18.8.1995 were considered for regular promotions to AEs (E) against vacancies meant for graduates/direct recruits.
15. In the year 1995, the Board took a decision to fill up 34 vacant posts of Assistant Engineers falling to the share of direct recruits, requisition to fill up 34 posts of Assistant Engineers (Elect.) was sent to the Government for approval. But the Government accorded approval to fill up only 21 posts. On the requisition of the Board, the Commission advertised 21 posts. In remaining reply on merits in substance, the Board has repeated the stand taken in the preliminary objections.
16. The respondent No. 109 Madan Gopal Sharma also contested the petition by filing reply. It has been stated that some direct recruits of Civil/Mechanical Cadre filed O.A. No. 3647 of 1999 before the Himachal Pradesh Administrative Tribunal which was reregistered as CWP-T No. 5087 of 2008 titled as Pankaj Rai and others vs. HPSEB and others in the High Court, decided on 6.8.2009. The present petition is covered by judgment dated 6.8.2009, would have met the same fate as there was no challenge in Pankaj Rai to decisions dated 31.12.1997 and 20.1.1998. In this background, the petitioners in the present petition filed CMP No. 6465 of 2009 seeking amendment of the writ petition and challenging notifications dated 31.12.1997 and 20.1.1998.
17. The cause of action to challenge the decision dated 31.12.1997 accrued to petitioners on 31.12.1997 when respondent No. 109 was promoted by acting on such decision. The challenge to decision dated 31.12.1997 at belated stage is hit by delay and laches. In CMP No. 6465 of 2009 the High Court on 27.11.2009 allowed the amendment subject to all exceptions.
18. In Recruitment and Promotion Regulations notified on 28.12.1973 there is a provision for relaxation of regulations in respect of any class or category of service or persons. The principle of rotation of vacancies as per quota between direct recruits and promotees could have been invoked if promotions have been made as per promotion quota. But once a valid decision was taken to relax the quota, the principle of rotation for fixing seniority cannot be invoked.
19. The respondent No. 109 has filed supplementary affidavit. It has been stated that the petitioners have filed an application seeking permission to place on record the copies of Regulations, Annexures A-1 to A-8. These Regulations have been placed on record to prove that there was no relaxation clause in the said Rules. The office order dated 31.12.1997 was also issued by the Board. Therefore, there is no infirmity in office order No. 302 dated 31.12.1997 which has been issued by the competent authority.
20. The petitioners joined as Assistant Engineers in the Board in 1998, they were not directly appointed as employees of the respondent-Board. They were subjected to recruitment process on the basis of requisition sent by MPP and Power Deptt., State of H.P. to the Commission, which issued advertisement. The petitioners were initially recruited by MPP & Power Deptt. of the State of H.P. and thereafter their services were placed at the disposal of the Board. The petitioners joined the Board in 1998, the respondent No. 109 had already joined as Assistant Engineer on regular basis in 1997. In the year 1998, the petitioners were not regular employees of the Board, but were placed at the disposal of the Board after having been selected on the requisition of MPP & Power Deptt. of the State of H.P. Hence, the petitioners have no right to claim seniority over the respondent No. 109, who had become regular Assistant Engineer of the Board in 1997.
21. The petitioners have filed counter affidavit in reply to supplementary affidavit of respondent No. 109 and have stated that the petitioners are among 21 candidates referred to by the Secretary, HPSEB in letter dated 11.7.1997 addressed to Under Secretary (Power) to the Govt. of H.P. for taking up the matter with the Commission for direct recruitment of 21 posts. The Joint Secretary (Power) vide letter dated 25.3.1998 forwarded the letter dated 23.3.1998 received from the Secretary, H.P. Public Service Commission to the Board for taking necessary action. The Board on 12.6.1998 appointed the petitioners, who were selected and recommended by the Commission as Assistant Engineers in the Board. The appointment letters were issued by the Board and not by the MPP & Power Deptt., State of Himachal Pradesh. The Board had never raised objection that the petitioners are not the employees of the Board from the very beginning when they joined in the Board on the basis of appointment letters issued by the Board.
Facts in CWP-T No. 1470 of 2008
22. It has been stated that in January 1997 there were about 125 vacant posts of AEs(E) in the Board falling under the direct quota. Out of these 125 posts of direct recruits, only 21 posts were advertised by the Board through Commission as per the requisition sent by the Board to the Commission in May/June, 1997. The act of the Board advertising less posts by way of direct recruitment was deliberate and was aimed to regularise departmental candidates by diverting the quota from direct recruitment to promotion.
23. The petitioner was eligible for appointment to the posts advertised by way of direct recruitment, applied for appointment and appeared in the written examination held in December, 1997. The petitioner was selected after completing the selection process and was offered appointment vide letter dated 12.6.1998. The petitioner joined as AE(E) on 25.6.1998.
24. The petitioner was made Assistant Executive Engineer in the year 2003. The next promotional post from the post of Assistant Engineer (Electrical) is that of Executive Engineer which is filled in 100% by way of promotion in the ratio of 3:1 i.e. three degree holders and one diploma holder from the AEs (E) with atleast 7 years service in the grade including adhoc service rendered in the Board.
25. The Board had framed the Recruitment and Promotion Regulations for appointment and promotion to the posts of AEs (E) which were applicable in the years 1997, 1998 and inter-alia provided that 60% posts of AEs (E) were to be filled in by way of direct recruitment and 40% by way of promotion. The regulations were mandatory and could not be deviated upon even by the Board. The said regulations could not be relaxed.
26. The petitioner came to know that the Board in deviation and in excess of the quota prescribed in the Recruitment and Promotion Regulations had promoted many Junior Engineers both degree and diploma holders against the posts meant for direct recruits on 31.12.1997 and 27.3.1998. This also included some promotions made after the joining of the petitioner.
27. The petitioner is not challenging the validity of promotions of Junior Engineers including the private respondents to the posts of AEs (E) against the posts meant for direct recruits. The petitioner is aggrieved against the proposed action of the Board of considering the private respondents for promotion to the next promotional post of Executive Engineer on the basis of said promotions against the quota of direct recruits ignoring the law and instructions on the subject of the Government of Himachal Pradesh followed by the Board.
28. It has been stated that private respondents were promoted to the posts of AEs (E) from the posts of Junior Engineers in the year 1997-1998 against the posts meant for direct recruits by relaxing Recruitment and Promotion Regulations which was not permissible. A person promoted against a post outside his quota is to be considered on adhoc till he is adjusted against a post of his quota available by way of promotion and such person is to be pushed down below all direct recruits who are recruited as per the Rules against direct quota till his promotion against the post of his quota i.e. promotion quota. In other words, the promotees who were promoted against the posts of direct recruitment quota cannot be considered over and above the direct recruits for the purpose of promotion to the next post till the time they are adjusted against the posts meant for their quota i.e. promotion quota. This exercise has not been undertaken by the Board with respect to the private respondents till date. The private respondents are occupying the posts of direct recruit Assistant Engineers.
29. The Board on 12.6.2000 had issued inter se seniority list of promoted AEs (E) and directly recruited AEs (E). The petitioner had filed objections against the seniority list dated 12.6.2000. This seniority list is under challenge in O.A. No. 1150 of 2001 (CWP-T No. 2736 of 2008). The seniority list dated 12.6.2000 was issued without issuance of any tentative seniority list. In these circumstances, the seniority list dated 12.6.2000 is only tentative seniority list inasmuch as before issuing seniority list dated 12.6.2000, no tentative seniority list was issued nor any objections were called.
30. The Board is following the instructions of the Government of Himachal Pradesh relating to the general principles for determining the seniority of various categories as would be evident from the office memorandum dated 19.12.1986.
31. The Board had convened Departmental Promotion Committee for promotion to the posts of Executive Engineers (Electrical) on 20.3.2008. The Board instead of considering eligible candidates like the petitioner for promotion to the post of Executive Engineer (Electrical) i.e. candidates who were appointed as direct recruits to the posts of Assistant Engineers against the posts of their quota has considered the respondents No. 2 to 8 for promotion to the said posts ignoring the fact that respondents No. 2 to 8 till date have not been promoted to the posts of AEs (E) against the posts meant for promotion quota but are occupying the posts of direct recruits by way of promotion and thus have to be pushed down below all direct recruits against their respective quotas till the private respondents actually exhaust by way of promotion posts of promotion quota. The act of Board of considering respondents No. 2 to 8 for promotion in DPC held on 20.3.2008 for promotion to the posts of Executive Engineers over and above the petitioner is arbitrary, discriminatory, bad in law and against the well settled principle of law that governs the field and therefore, is liable to be set-aside.
32. The right to be considered for promotion is a fundamental right of the petitioner. The Board is denying this right to petitioner by considering persons like private respondents for promotion to the next promotion posts of Executive Engineers over and above the petitioner in grave disregard to the instructions of the Government of Himachal Pradesh on the subject which are followed by the Board. The promotees on posts of direct recruits till adjustment against promotion quota cannot supersede for seniority or other purposes like promotion any direct recruit recruited against his quota.
33. The respondent No. 1 has contested the petition by filing counter affidavit dated 24.11.2008 filed by Sh. Naresh Chander Sood, Deputy Secretary. In the preliminary submissions, it has been stated that the Board in exercise of its statutory powers has framed and notified the Recruitment and Promotion Regulations vide notifications dated 30.4.1983 and 10.6.1986 providing 54% quota for direct recruits and 46% quota for promotees for the posts of AEs (E). The aforesaid notifications were amended on 23.6.1999 which provides 50% quota each for direct recruits and promotees for the posts of AEs (E).
34. The H.P.Govt. had imposed ban on direct recruitment vide order dated 21.3.1990 as a result of which the vacancies which arose to be filled up from 54% quota of direct recruits for the years 1989 to 1997 could not be filled up, consequently 130 posts could not be filled up and the work was suffering. There were 106 Junior Engineers (Elect.) who had improved their qualification and had passed Sections A & B of AMIE which is equivalent to B.E. degree. Some of the Junior Engineers were already promoted as AEs (E) on adhoc /acting basis. The work was suffering, the Board took a policy decision to promote such Junior Engineers to the posts of AEs (E) against 130 posts falling to the share of direct recruits in relaxation to Recruitment and Promotion Regulations as one time settlement vide office order No. 302 dated 31.12.1997.
35. The Government of India vide letter dated 7.2.1986 had laid down the general principles for determining the seniority of various categories of persons which were adopted by the H.P.Govt. and were made applicable in the Board vide office memorandum dated 19.12.1986. According to these principles for determining the seniority of various categories i.e. promotees and direct recruits, it has been laid down that in future, principle of rotation of quotas will still be followed for determining the inter se seniority of direct recruits and promotees. The present practice of keeping vacant slots for being filled by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position would be dispensed with.
36. The respondents No. 2 to 12 were promoted vide order dated 31.12.1997. The petitioner was recruited in June, 1998. The private respondents were promoted earlier to the petitioner and have been rightly assigned the seniority above the petitioner vide office order dated 12.6.2000.
37. On merits, in substance the Board has repeated the stand taken in preliminary submissions. It has been stated that during the year 1995, the Board took a decision to fill up 34 vacant posts of Assistant Engineers falling to the share of direct recruits, accordingly requisition to fill up 34 posts of Assistant Engineers (Elect.) was sent to H.P. Government for approval. The Government accorded approval to fill up only 21 posts and therefore, on requisition of the Board, the H.P. Public Service Commission advertised 21 posts. It has been denied that lesser posts were advertised deliberately. The submission has been made for dismissal of the petition. The respondent No. 13 was impleaded vide order dated 7.9.2010. The respondent No. 13 has not filed reply. He adopted the reply filed by him in CWP-T No. 2736 of 2008.
Facts in CWP No. 819 of 2009:
38. It has been stated that in January 1997 there were about 125 vacant posts of AEs (E) with the Board falling under the quota of direct recruitment. In May/June, 1997, the Board had advertised only 21 posts under the quota of direct recruitment, out of 125 posts which were falling to the quota of direct recruits through H.P. Public Service Commission as per the requisition sent by the Board. The act of the Board by advertising less posts of direct recruitment was deliberate and was aimed to regularise departmental candidates by diverting the quota of direct recruitment to promotion.
39. In the year 1997, some posts of Assistant Engineers were also advertised by the Board through H.P. Public Service Commission. The written examination was held and the interview was held in February, 1998. The successful candidates were offered the appointments on 12.6.1998.
40. In the year 2000, the Board had again advertised the posts of Assistant Engineers through H.P. Public Service Commission under the quota of direct recruits. The petitioners applied for these posts, they cleared the written examination, interviewed and were given offer of appointments. On 15.5.2000 the petitioners joined as AEs (E).
41. The petitioners were designated as Assistant Executive Engineers in the year 2003. The next promotional posts from the posts of AEs (E) are that of Executive Engineers which are filled in 100% by way of promotion in the ratio of 3:1 i.e. three degree holders and one diploma holder from the AEs (E) holding degree or diploma in electrical engineering or its equivalent with atleast 7 years service in the grade including adhoc service rendered in the Board.
42. The petitioners after joining in the Board as Assistant Engineers in pursuance of appointment letters as direct recruits, came to know that the Board in deviation and in excess of the quota prescribed in the Recruitment and Promotion Regulation had promoted many Junior Engineers both degree and diploma holders against the posts meant for direct recruits on 31.12.1997 and 27.3.1998.
43. The Board vide order dated 16.10.2008 had promoted the private respondents as Executive Engineers. In the year 1997-98 wrongly, illegally and relaxing the Recruitment and Promotion Regulations the Board had promoted the private respondents as AEs (E) against the quota of direct recruits ignoring the petitioners. The petitioners are eligible for promotion to the posts of Executive Engineers (Electrical).
44. The Board had circulated the seniority lists dated 12.6.2000, 1.1.2005 and 27.8.2008 showing the promoted Assistant Engineers against the quota of direct recruits senior to petitioners who were directly recruited Assistant Engineers. The petitioners had filed objections to these seniority lists. The Board time and again had issued provisional seniority lists and no final seniority list of Assistant Engineers (Electrical) has been issued till date.
45. The Board held Departmental Promotion Committee (DPC) for promotion to the posts of Executive Engineers (Electrical) on 16.10.2008. The petitioners believe that the private respondents have been considered for the posts of Executive Engineers (Electrical) ignoring that the private respondents till date have not been promoted to the posts of AEs (E) against the posts meant for promotee quota but are occupying the posts of direct recruits by way of promotion and thus have to be pushed down below all direct recruits recruited against their respective quotas till the private respondents actually exhaust by way of promotion posts of promotee quota.
46. The petitioners have been directly recruited in the year 2000 against the posts of direct recruits and private respondents have been promoted against the posts of direct recruits. The promotees have to be pushed down below the petitioners and cannot be considered for promotion over and above the petitioners to the posts of Executive Engineers. The Board has thus arbitrarily considered for promotion private respondents for the posts of Executive Engineers (Electrical) in DPC held on 16.10.2008.
47. The right to be considered for promotion is a fundamental right of the petitioners. The Board has denied this right to the petitioners by considering the private respondents for promotion to the post of Executive Engineer (Electrical) over and above the petitioners in violation of instructions of the Government of Himachal Pradesh on the subject which are followed by the Board. The promotion has been made in excess of quota, excess promotees exceeding the share falling to the promotion quota based on the corresponding figure notified for direct recruitment would be treated as adhoc promotees. The private respondents what to talk of promotion in excess of their quota, their promotions to the posts of AEs (E) have been made not against the quota of promotees but against the quota of direct recruits. The private respondents in the matter of promotion to the posts of Executive Engineer (Electrical) cannot supersede the petitioners.
48. The Board on 7.11.2008 has regularised the services of those who were promoted on adhoc basis in the pay scale of !12500-19100. This action of the Board is wrong, illegal inasmuch as the private respondents No. 9 to 16 were earlier promoted from the posts of Junior Engineers to the posts of AEs (E) exhausting the quota of direct recruits whereas they should have been promoted from the quota of promotees. The seniority list of Assistant Executive Engineers has not been finalised till date.
49. The respondent No. 1 has filed counter affidavit to the writ petition in which preliminary submission has been made that the Board in exercise of its statutory powers has framed and notified the Recruitment and Promotion Regulations vide notification dated 30.4.1983 which has further been amended/notified vide notification dated 7.3.1986. According to these regulations which were prevailing at the relevant time, the posts of AEs (E) were required to be filled in 54% by way of direct recruitment and 46% by way of promotion. The amendment was carried out vide notification dated 23.6.1999 which provides 50% each for direct recruitment and by promotion.
50. The H.P. Govt. had imposed ban on direct recruitment vide orders dated 21.3.1990 as a result of which 130 vacancies of 54% direct recruits for the years 1989 to 1997 could not be filled up and the work was suffering badly. There were about 106 Junior Engineers (Elect.) who had improved their qualification and had passed Sections A & B of AMIE. Some of the Junior Engineers were already promoted as AEs (E) on adhoc /acting basis. The Board was competent u/s 79 of the Act to take policy decision and to promote Junior Engineers (Electrical) to the posts of AEs (E) against 130 posts in the share of direct recruits in relaxation to Recruitment and Promotion Regulations to tide over the increased volume of work vide office order No. 302 dated 31.12.1997.
51. The Government of India vide letter dated 7.2.1986 had laid down the General principles for determining the seniority of various categories of persons which were adopted by the H.P.Govt. vide letter dated 7.10.1986. The Board made such general principles applicable in the Board vide office memorandum dated 19.12.1986. According to these principles for determining the seniority of various categories i.e. promotees and direct recruits, it has been laid down that in future, principle of rotation of quotas will still be followed for determining the inter se seniority of direct recruits and promotees. The present practice of keeping vacant slots for being filled by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position would be dispensed with.
52. The private respondents No. 2 to 6 were promoted vide order dated 31.12.1997. The petitioners were recruited in June, 1998. As per general principles for determining the seniority of various categories of persons provide that carried forward vacancies of the previous years would be placed enbloc below the last promotee (or direct recruitee as the case may be) in the seniority list based on the rotation of vacancies for that year. In other words, if direct recruitment and promotions are not made simultaneously, then the direct recruit and promotee whosoever appointed/ promoted earlier would be placed senior and the additional direct recruits selected against the carried forward vacancies of the previous years would be placed enbloc below the last promotee or direct recruit as the case may be in the seniority list based on the rotation of vacancies for that year.
53. The respondents were promoted earlier to the petitioners and have rightly been assigned the seniority above the petitioners vide office order dated 12.6.2000. The direct recruits could not claim appointments and seniority from the date of vacancies in their quota before their selection/joining in the Department
54. On merits, it has again been repeated that 130 posts of direct recruits of AEs (E) were lying vacant since long and therefore the order No. 302 dated 31.12.1997 was passed. The inter se seniority list dated 12.6.2000 of the promotees and direct recruits of AEs (E) was defended. It has been stated that in the year 1995 the Board took a decision to fill up 34 vacant posts of Assistant Engineers falling to the share of direct recruits. The requisition to fill up these 34 posts of AEs (E) was sent to the H.P. Government for approval. The Government accorded approval only to fill up 21 posts. On the requisition of the Board, the H.P. Public Service Commission advertised 21 posts.
55. The Board held DPC on 21.10.2008 for promotion of eligible AE/AEs (E) degree holder to the posts of Senior XEN (E) on adhoc basis. According to the interse seniority fixed vide order dated 12.6.2000, the rights of the petitioners for promotion to the posts of Executive Engineer now Sr. XEN (E) have not been denied by the Board. The petitioners will be promoted on their turn as per position assigned to them in interse seniority issued vide order dated 12.6.2000. The submission has been made for dismissal of the petition.
56. In CWP-T No. 2736 of 2008 it emerges from the stand of the Board that there were 130 posts of AEs (E) for the years 1989 to 1997 which could not be filled up for one reason or the other. The Board took a decision to promote Junior Engineers (Elect.) to the posts of AEs (E) against 130 posts of direct recruits in relaxation of Recruitment and Promotion Regulations and office order No. 302 dated 31.12.1997 was passed. It has been contended on behalf of the Board that Board was competent to relax the Recruitment and Promotion Regulations u/s 79 (c) of the Act. The Board has also projected the case that the instructions dated 7.2.1986 of the Government of India for determining the seniority of various categories which are applicable in the Board provide that in future, the principle of rotation of quotas will be followed for determining the interse seniority of direct recruits and promotees. The practice of keeping vacant slots for being filled by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position would be dispensed with. The petitioners were recruited in June, 1998 under direct quota. The private respondents except respondents No. 58, 85, 104 and 116 were promoted vide order dated 31.12.1997. The respondents No. 58, 85 and 104 were promoted on 27.3.1998. The respondent No. 116 was promoted vide office order dated 20.1.1998. The Board has contended that private respondents were promoted earlier to petitioners and they have been rightly assigned seniority above the petitioners vide office order dated 12.6.2000.
57. The respondent No. 109 Madan Gopal Sharma has taken the plea that challenge of petitioner to office order No. 302 dated 31.12.1997 is hit by delay and laches. The principle of rotation of vacancies as per quota between direct recruits and promotees could have been invoked if promotions have been made as per promotion quota. But once a valid decision was taken to relax the quota, the principle of rotation for fixing seniority cannot be invoked. The Board was competent to frame Regulations u/s 79(c) of the Act. The office order No. 302 dated 31.12.1997 was also issued by the Board. There is no infirmity in the office order No. 302 dated 31.12.1997. The petitioners were initially recruited through MPP and Power Deptt. of State of H.P. and thereafter their services were placed at the disposal of the Board. The petitioners were not regular employees of the Board but were placed at the disposal of the Board after having been selected on the requisition of MPP and Power Deptt. of the State of H.P. The petitioners have no right to claim seniority.
58. The Board has not taken the stand that petitioners are not the direct recruits of the Board or they were recruited by the MPP and Power Deptt. of the State of H.P. and their services were placed at the disposal of the Board. The Board in the reply has stated that in the year 1995, the Board took a decision to fill up 34 vacant posts of AEs (E) falling to the share of direct recruits, requisition to fill up 34 posts of AEs (E) was sent to the Government for approval. The Government gave approval to fill up only 21 posts. On the requisition of the Board, the Commission advertised 21 posts. The petitioners in the counter affidavit in reply to the supplementary affidavit of respondent No. 109 have stated that the Board on 12.6.1998 appointed the petitioners who were selected and recommended by the H.P. Public Service Commission as AEs (E) in the Board. The respondent No. 109 has placed nothing on record to show that in fact petitioners were appointed by the MPP and Power Deptt. of State of H.P. and thereafter they were placed at the disposal of the Board. There is no force in the contention of respondent No. 109 that petitioners were not appointed by the Board by way of direct recruitment and they were just placed at the disposal of the Board by MPP and Power Deptt. of State of H.P.
59. The respondent No. 109 has also contended that challenge to office order No. 302 dated 31.12.1997 is hit by delay and laches. The office order showing inter se seniority of direct and promotee AEs (E) was issued on 12.6.2000. The OA No. 1150 of 2001 was filed in the erstwhile H.P. State Administrative Tribunal on or about 11.5.2001. The Tribunal was abolished and O.A. No. 1150 of 2001 was transferred to the High Court where it was registered as CWP-T No. 2736 of 2008. CMP No. 6465 of 2009 for amendment of the petition was filed on 17.9.2009. On 27.11.2009 CMP No. 6465 was allowed subject to all exceptions.
60. The Supreme Court in
61. In the present case the Division Bench has already allowed the amendment on 27.11.2009 with rider subject to all exceptions, but respondents especially respondent No. 109 has failed to show that amendment is mala fide and it has caused serious prejudice to the respondents. In the unamended petition, the petitioners had already questioned the promotion of promotees to the posts of AEs (E). The petition has been amended primarily to challenge the office order No. 302 dated 31.12.1997. There is no force in the contention of respondents that amendment of the petition is hit by delay and laches, hence the same is rejected.
62. The foundation of promotion of private respondents from the posts of Junior Engineers (Elect.) to AEs (E) is one time relaxation to the Recruitment and Promotion Regulations as per office order No. 302 dated 31.12.1997. The petitioners in para 11 (f) of the petition have laid specific challenge to office order No. 302 dated 31.12.1997 and pleaded that order No. 302 dated 31.12.1997 is against the Recruitment and Promotion Regulations applicable at the relevant time. In para 11 (g), it has been pleaded that there is no relaxation clause in Recruitment and Promotion Regulations as applicable at the relevant time. The Board has not followed the procedure prescribed under Sections 79, 79-A of the Act for inserting relaxation clause in the Regulations. The so called clause amending the regulations leading to policy decision dated 321.12.1997 was not notified in official gazette nor placed before the State Legislature. The Board in the counter-affidavit to the petition has replied paras 11, 12 of the petition collectively and pleaded that the contents of these paras are being formal and need no reply. In other words, the Board has conceded that there was no relaxation clause in the Recruitment and Promotion Regulations for the posts of AEs (E) at the relevant time for relaxation nor the Board has followed the procedure prescribed under Sections 79, 79-A of the Act before taking decision leading to office order No. 302 dated 31.12.1997. It is not the case of either side that Recruitment and Promotion Regulations for the posts of AEs (E) for direct recruitment and for promotion were not in force when office order No. 302 dated 31.12.1997 was passed by the Board.
63. The learned counsel for the respondent No. 109 has submitted that the Board was competent to frame Recruitment and Promotion Regulations for direct recruit and promotion to the posts of AEs (E). The competent authority-Board has taken decision vide order No. 302 dated 31.12.1997 for promoting Junior Engineers (Elect.) against the posts of direct recruits. Therefore, no fault can be found when the Board took the decision vide office order No. 302 dated 31.12.1997 giving one time relaxation for promotion to Junior Engineers (Elect.) to the posts of AEs (E) against the posts of direct recruits. This contention of the learned counsel for respondent No. 109 is noticed only to be rejected. The Recruitment and Promotion Regulations are framed to avoid arbitrariness. These are to be followed and not to be violated. The Recruitment and Promotion Regulations framed by the Board for direct recruits and promotees AEs (E) are statutory in nature. The Board is bound to follow such Recruitment and Promotion Regulations for appointment to the posts of AEs (E) by way of direct appointment and promotion. At the time of hearing of the petition, it has not been shown that at the relevant time the Board had Recruitment and Promotion Regulations with relaxation clause. Once there was no relaxation clause in the Recruitment and Promotion Regulations for appointment to the posts of AEs (E) by way of direct recruitment and promotion, there was no question of relaxation of Regulations by the Board and to appoint by way of promotion private respondents as AEs (E) against the quota of direct recruits AEs (E). The Recruitment and Promotion Regulations were not amended by following the procedure prescribed under Sections 79, 79-A of the Act by inserting relaxation clause in the Recruitment and Promotion Regulation. Therefore, the decision taken by the Board vide office order No. 302 dated 31.12.1997 is wrong, illegal and not sustainable and the private respondents are not entitled to benefit of promotion as AEs (E) under office order No. 302 dated 31.12.1997.
64. It has come on record that the Government had imposed ban on direct recruitment vide order dated 31.3.1990. In the year 1995, the Board took decision to fill up 34 vacant posts of AEs (E) falling to the share of direct recruits, requisition to fill up 34 posts of AEs (E) was sent to the Government, but the Government accorded approval to fill up only 21 posts. Thereafter, the board appointed 21 AEs (E) including the petitioners against the quota of direct recruits.
65. The Board has taken the shelter of instructions dated 7.2.1986 of Government of India for giving seniority to the private respondents over and above the petitioners. There is no question of rotation of quota in the present case. The private respondents were not promoted against the promotion quota. On the contrary, the private respondents were promoted in substitution to direct quota, meaning thereby the direct quota posts were consumed by the promotees. In these circumstances, the instructions dated 7.2.1986 are not applicable to the case of private respondents for determining their seniority with the direct recruits when they were not promoted against promotion quota as AEs (E). It has already been held that promotions of private respondents to the posts of AEs (E) against direct quota are wrong and illegal.
66. In
We are of opinion that having fixed the quota in exercise of their power under rule 4 between the two sources of recruitment, there is no discretion left with the Government of India to Alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, at its own will and pleasure. As we have already indicated, the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice, it will be difficult to hold that the seniority rule i.e., rule 1(f)(iii) & (iv), is not unreasonable and does not offend Art. 16 of the Constitution. We are accordingly of the opinion that promotees from Class II, Grade III to Class 1, Grade II Service in excess of the prescribed quotas for each of the years 1951 to 1956 and onwards have been illegally promoted and the appellant is entitled to a writ in the nature of mandamus commanding respondents I to 3 to adjust the seniority of the appellant and other officers similarly placed like him and to prepare a fresh seniority list in accordance with law after adjusting the recruitment for the period'' 1951 to 1956 and onwards in accordance with the quota rule prescribed in the letter of the Government of India No. F. 24(2)-Admn. I.T./51 dated October 18, 1951....
67. In
If Assistant Engineers are recruited as Executive Engineers in excess of their quota in a particular year they will be pushed down to later years for absorption when due within their quota.
68. In
69. The Supreme Court In
When promotion is outside the quota, the seniority would be reckoned from the date of the vacancy within the quota, rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one it must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or expediency. The result of pushing down the promotees appointed in excess of the quota may work out hardship but it is unavoidable and any construction otherwise would be illegal, nullifying the force of statutory rules and would offend Articles 14 and 16(1)....
70. The Supreme Court in
71. In
72. The petitioners were regularly appointed AEs (E) by the Board on 12.6.1998 against direct quota. The promotions of private respondents as AEs (E) before the petitioners are irregular and fortuitous. The private respondents cannot take benefit of such promotions as AEs (E) for purposes of inter se seniority with petitioners. The Board has not done the exercise to determine the inter se seniority of petitioners and private respondents as AEs (E) before issuing inter se seniority of direct recruits and promotees AEs (E) on 12.6.2000. The Board thereafter promoted some AEs (E) as Executive Engineers (E) on the basis of inter se seniority dated 12.6.2000 of direct and promotee AEs (E). The inter se seniority of direct recruits and promotees in the office order dated 12.6.2000 without determining the slots of promotee AEs (E) is wrong, illegal and not sustainable. The benefit of promotions given to any private respondents on the basis of inter se seniority of direct recruits and promotees on the basis of office order dated 12.6.2000 ignoring the seniority of petitioners as AEs (E) is also not sustainable.
73. In CWP-T No. 1470 of 2008 the petitioner has not challenged the validity of promotions of Junior Engineers including private respondents to the posts of AEs (E) against the posts meant for direct recruits. The petitioner has challenged the proposed action of the Board for considering private respondents for promotion to the next promotional post of Executive Engineers. Once the petitioner has not challenged the validity of promotions of private respondents from the posts of Junior Engineers to AEs (E), the petitioner cannot challenge the further promotions of such promoted AEs (E) to the posts of Executive Engineers (E). In CWP No. 819 of 2009 the petitioners have also not challenged office order No. 302 dated 31.12.1997 vide which one time relaxation was made for promoting Junior Engineers (E) to the posts of AEs (E) against the quota of direct recruits. In CWP-T No. 5087 of 2008 decided on 6.8.2009 the office order No. 302 dated 31.12.1997 was noticed. It has been held that petitioners in the petition had not challenged power of relaxation of the Board and actual relaxation of regulations. In absence of such challenge, the relief flowing from relaxation is not open to challenge to the petitioners. The petitioners in CWP No. 819 of 2009 are, therefore, precluded from challenging resultant action of the Board for promoting the promotee Assistant Engineers to the posts of Executive Engineers. In CWP-T No. 2736 of 2008 the petitioners have specifically challenged office order No. 302 dated 31.12.1997 and office order dated 12.6.2000 inter se seniority of direct recruits and promotees, therefore, denial of relief to petitioners in CWP-T No. 1470 of 2008 and CWP No. 819 of 2009 is subject to decision in CWP-T No. 2736 of 2008. In view of above, CWP-T No. 1470 of 2008 and CWP No. 819 of 2009 are dismissed. CWP-T No. 2736 of 2008 is allowed. The office order No. 302 dated 31.12.1997 issued by the Board (respondent No. 1), office order dated 12.6.2000 of the Board showing inter se seniority of direct and promotee Assistant Engineers (Electrical), office order dated 31.12.1997 of the Board promoting some of the private respondents as Assistant Engineers (Electrical) w.e.f. 20.12.1997 or from the date of taking over charge and office order No. 24 dated 27.3.1998 of the Board promoting some of the other private respondents as Assistant Engineers (Electrical) are set-aside and quashed, however, promotions of private respondents as Assistant Engineers (Electrical) shall continue. The respondent No. 1 is directed to prepare fresh final inter se seniority list of directly appointed Assistant Engineers (Electrical) and promotee Assistant Engineers (Electrical) in accordance with law and for this purpose the respondent No. 1 shall issue tentative inter se seniority list on or before 20.9.2012. The objections on such tentative inter se seniority list shall be called by the Board before 15.10.2012 and final inter se seniority list of directly appointed Assistant Engineers (Electrical) and promotee Assistant Engineers (Electrical) shall be prepared and issued by the Board on or before 15.12.2012. All pending applications are also disposed of.
