Rajasthan High Court - Jaipur
Jaiveer Singh Solanki, S/O Late Shri ... vs State Of Rajasthan on 31 May, 2024
Author: Sameer Jain
Bench: Sameer Jain
[2024:RJ-JP:15222]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 18736/2023
1. Jaiveer Singh Solanki, S/o Late Shri Chandra Singh, aged
about 59 Years, R/o 4, Kirti Nagar, Sodala, Jaipur.
2. Surendra Vashistha, S/o Late Shri P.L. Sharma, aged
about 58 Years, R/o A-72, Jay Ambey Nagar, Tonk Road,
Jaipur.
3. Sudhir Jain, S/o Late Shri Todar Mal Jain, aged about 56
Years, R/o 339, Mahavir Nagar II, Maharani Farm,
Durgapura, Jaipur.
----Petitioners
Versus
1. State of Rajasthan, through Principal Secretary,
Department of Energy, Government of Rajasthan,
Secretariat, Jaipur.
2. Principal Secretary, Department of Personnel,
Government of Rajasthan, Secretariat, Jaipur.
3. Rajasthan Rajya Vidyut Prasaran Nigam Limited, through
its Chairman & Managing Director, Vidyut Bhawan,
Janpath, Jyoti Nagar, Jaipur.
4. Suresh Chand Meena, Chief Engineer (PP & D), Third
Floor, Vidyut Bhawan, Janpath, Jyoti Nagar, Jaipur.
5. Sitaram Meena, Additional Chief Engineer (Procurement),
RVPNL MM Building, Old Power House Campus, Bani Park,
Jaipur.
----Respondents
For Petitioner(s) : Mr. Karan Tibrewal
For Respondent(s) : Mr. R.N. Mathur, Sr. Adv. assisted by
Mr. Shovit Jhajharia &
Mr. R.D. Meena
Mr. Ajatshatru Mina with
Mr. Movil Jeenwal
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[2024:RJ-JP:15222] (2 of 19) [CW-18736/2023]
Ms. Aishwariya Sharma
Ms. Khushi Chirania
Mr. Umashankar Pandey for
Mr. Bhuvnesh Sharma, AAG
Mr. Sachin Singh for
Mr. S.S. Naruka, AAG
Mr. Vivek Kumar Meena
Mr. Shiva Nagar
HON'BLE MR. JUSTICE SAMEER JAIN
Order
REPORTABLE
Reserved on 19/03/2024
Pronounced on 31/05/2024
1. With the consent of learned counsel for the both the sides, and looking to the urgency voiced by the petitioners, the instant petition was taken up for final disposal.
2. The petition is preferred under Article 226 of the Constitution of India, with the following prayers, as reproduced herein-under:-
"(i) to direct Respondent No.3 to conduct Review DPC in pursuance of circular dated 26.07.2022 for the vacancies of year 2022-23 and subsequent clarification thereof and consequently, promote the petitioners to the post of Additional Chief Engineer (E & M) against the vacancies for the year 2022-23;
(ii) to quash and set aside order dated 13.09.2023 (Annexure-11) to the extent of promotion of Respondent No.4 passed by Respondent No.3;
(iii) to issue any other appropriate relief which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case in favour of the Petitioners;
(iv) to allow the cost of the writ petition in favour of the Petitioners."
SUBMISSIONS ON BEHALF OF THE PETITIONERS (Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (3 of 19) [CW-18736/2023]
3. During the course of arguments, learned counsel for the petitioners, Mr. Karan Tibrewal, submitted that the instant petition is filed being aggrieved of the inaction on part of the respondents in respect of the conduct of Review Departmental Promotion Committee (hereinafter, Review DPC) for the Year 2022-2023, as a result of which, the petitioners were not considered for promotion on the post of Additional Chief Engineer for the said year; and further, aggrieved of the fact that against the post earmarked for the unreserved category, candidates belonging to the reserved category have been considered and promoted for the post of Chief Engineer for the Year 2023-2024, which has resulted into hostile discrimination against the petitioners, inadvertently violating their fundamental rights as enshrined in the Constitution of India.
4. Learned counsel submitted that the petitioners are employees of the respondent no.3 i.e. Rajasthan Rajya Vidyut Prasaran Nigam Ltd., who have ever since their appointment, continued to discharge their services diligently and to the utmost satisfaction of their peers and superiors. At present, the petitioners hold the post of Additional Chief Engineer (E & M).
5. In this background, Mr. Tibrewal argued that the subject of reservation and promotion of employees of the State is settled by the dictum of the Hon'ble Apex Court as enunciated in R.K. Sabharwal vs. State of Punjab reported in (1995) 2 SCC 745, wherein the concept of post-based reservation was introduced as opposed to vacancy-based reservation of backward classes. Accordingly, in adherence of the said dictum, the respondents issued Circular dt. 20.11.1997 prescribing the rules (Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (4 of 19) [CW-18736/2023] for reservation in direct recruitment as well as promotion in Rajasthan. In the said Circular, a 100 point roster system was introduced prescribing reservation in direct recruitment for Scheduled Caste (SC), Scheduled Tribe (ST) and Other Backward Classes(OBC). Further, for the cadre strength from 2 to 8, a separate 8 point roster (L Shaped Roster) was prescribed for direct recruitment. At this juncture, learned counsel argued that at any stage, the reservation could not exceed the limit of 50%, as stipulated by the Hon'ble Apex Court in Indra Sawney vs. Union of India reported in AIR 1993 SC 477.
6. In furtherance of the aforesaid, learned counsel apprised the Court that from time to time, the respondents continued to issue Circulars and clarifications thereof, delineating the settled position of law on the aspect of reservation and promotion. Moreover, respondent no.3 even promulgated the Rajasthan Rajya Vidyut Prasaran Nigam Ltd. Engineers Service Regulations 2016 (hereinafter, Regulations of 2016), for the regulation of recruitment, promotion and seniority and other conditions of service of persons appointed with the respondent no.3, which as a consequence, are also applicable upon the petitioners before this Court.
7. One of such Circulars, as referred above, was the Circular dt. 26.07.2022 issued by the respondent no.2, which provided for the conduct of two DPC's in the same year for the vacancies arising during the said year. The second DPC in the same year would be termed as Review DPC, which shall be conducted in order to ensure that the administrative work is not brought to a hault and the vacancies, as and when they arise (Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (5 of 19) [CW-18736/2023] during the same year, are filled at the earliest. In this regard, learned counsel submitted that despite the categoric directions in the Circular dt. 26.07.2022 and certain employees retiring, which resulted into the creation of vacancies, the respondents failed to conduct the Review DPC for the Year 2022-2023, as a consequence of which, the promotion of the petitioners before this Court was delayed.
8. Mr. Tibrewal further argued that with regards to the Circular dt. 26.07.2022, the respondents even issued a clarification whereby it was stated that the vacancies arising from the retirement of employees promoted in the same year ought to be filled through Review DPC only, and not by any other method. At this juncture, learned counsel submitted before the Court that the promotion on the post of Additional Chief Engineer has to be done solely on the basis of merit only. Moreover, the respondent no.2, in this regard, issued a further clarification dated 13.12.2022 wherein it was stated that in case the unreserved category candidate is unavailable for the said merit post, the same can be filled by a reserved category candidate, subject to the latter being senior at the entry level as well as in the present.
9. In this background, learned counsel argued that the respondents arbitrarily chose to follow the opinion included in the clarification dated 13.12.2022 for one year i.e. 2022-2023, but for the other year i.e. 2023-2024, completely deviated from the same at their own whims and fancies. Therefore, the actions of the respondents in permitting candidates of the reserved category to be promoted on the earmarked post of unreserved category are patently illegal and unjustified.
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10. Lastly, learned counsel summarized that on account of the non-conduct of Review DPC for the Year 2022-2023, despite vacancies having arisen during the year on account of the retirement of certain employees, the petitioners promotion on the post of Additional Chief Engineer (E & M) was delayed by one year, as they were only promoted on the said post in 2023-2024. Moreover, as a consequence of the said non-conduct of Review DPC for vacancies arising during the Year 2022-2023, the respondents unduly promoted the reserved category candidates on the post earmarked for unreserved category for Chief Engineer (E&M) for the Year 2023-2024, despite the reserved category candidate not being senior at the entry level as required vide clarification dated 13.12.2022 thereby, denying the petitioners of their right to promotion on the post of Chief Engineer as and when they would have become eligible. Therefore, the said promotion of a reserved category candidate is in contravention of the law and as a result thereof, the same deserved to be quashed and set aside.
11. In support of the arguments advanced, learned counsel placed reliance upon the dictum of the Hon'ble Apex Court as enunciated in Nirmal Chandra Bhattacharjee and Ors. vs. Union of India reported in (1991) Supplementary 2 SCC 363 and B.S. Gaur vs. Union of India and Ors. reported in (2001) 9 SCC 706 and argued that it is the primary duty of the Court to correct the patent illegalities which may accrue on account of the administrative lapses on part of the employer in fulfilling its duties, as a result of which the careers of their employees viz-a- viz promotion may be adversely affected.
(Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (7 of 19) [CW-18736/2023] SUBMISSIONS ON BEHALF OF THE RESPONDENTS
12. Per contra, learned counsel(s) for the respondents, in tandem, whilst praying for the dismissal of the instant petition, raised a preliminary objection to the effect that the respondents vide order dated 19.04.20222 issued a final seniority list of Superintending Engineers as it stood on 01.04.2022, in which the name of the petitioners before this Court found place at Serial Nos. 19,20 and 21 respectively, on account of their corresponding dates of promotion on the said post, which are noted to be 01.07.2019, 01.08.2019 and 01.10.2019. Having apprised the Court of the said dates qua promotion on the petitioners on the post of Superintending Engineer, learned counsel averred that as per the Circular dt. 31.03.2015, the experience for promotion of employees ought to be from 1st April 2020-2021. As per Schedule I of the Regulations of 2016, the promotion to the post of Additional Chief Engineer is 100% by promotion on merit basis and 3 year's experience is required for promotion from the post of Superintending Engineer (E&M/Civil/PLCC/IT) to Additional Chief Engineer(E&M/Civil/PLCC/IT).
13. Therefore, in the facts of the present case, as the petitioners were promoted to the post of Superintending Engineer in the months of July, August and October of 2019 only, then resultantly, on 1st April 2022-2023, the petitioners possessed only 2 years of experience and therefore, as per the Regulations of 2016 prescribing minimum experience of 3 years prior to the promotion on the post of Additional Chief Engineer, the petitioners were not eligible/suitable for promotion to the post Additional (Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (8 of 19) [CW-18736/2023] Chief Engineer against the vacancy for the Year 2022-2023 simply on account of the petitioners not having the requisite experience of 3 years as on date 01.04.2022. Therefore, the DPC was conducted by the respondents strictly in accordance with the established procedure sans discrimination and as a result, on account of lack of experience, the petitioners were not entitled for Review DPC for the Year 2022-2023. In support of the aforesaid, learned counsel placed reliance upon Rule 29 of the Regulations of 2016.
14. In furtherance of the aforesaid, learned counsel submitted that in terms of the requisite experience of 3 years, the petitioners only became eligible for promotion on the post of Additional Chief Engineer in the DPC conducted for the Year 2023- 2024 on 13.09.2023, and as a result, the petitioners were promoted on the said post w.e.f. 01.04.2023. It was also averred that as per the settled practice, in one single year, two promotions cannot be granted by the respondents. Parallelly, learned counsel also placed reliance upon Rule 7(4), 7(6) and Rule 13 of the Regulations of 2016 and submitted that the law prescribes that there shall be no carry forward of vacancies in posts to which promotions are made on the basis of merit alone. Accordingly, it was averred that promotion on the post of Chief Engineer is made on merits alone and if an unreserved candidate is not available for promotion on the said post, then the same may be filled by a reservation candidate, especially looking to the fact that the vacancies cannot be carried forward. It was averred that the conduct of Review DPC is not a matter of right but the same is only done in certain illustrative contingencies, such as (Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (9 of 19) [CW-18736/2023] impending/sudden retirements, to prevent the administrative work from being hampered.
15. Lastly, learned counsel for the respondents submitted that once the petitioners have accepted promotion on the post of Additional Chief Engineer w.e.f. 01.04.2023, and the same is not put to challenge, then in such an eventuality, the petitioners cannot play and pick choose insofar as they cannot be permitted to enjoy the benefits of the gains i.e. subsequent promotion but also simultaneously allege the perceived adversity, such as the delay in the grant of said promotion. In this regard, learned counsel placed reliance upon the dictum of the Hon'ble Apex Court enunciated in Union of India vs. N. Murugesan and Ors. reported in (2022) 2 SCC 25 and submitted that the foregoing factual matrix, shall at attract the principle of estoppel along with the doctrine of approbate and reprobate.
16. In support of the arguments advanced and whilst praying for the dismissal of the instant petition with heavy costs on account of the administration of the respondent-Corporation being hampered, reliance was also placed upon the dictum enunciated in Om Prabha Negi vs. H.P. Public Service Commission reported in (2022) 2 SCT 420 (HP).
DISCUSSION & FINDINGS
17. Heard and considered the arguments advanced by learned counsel for both the sides, scanned the record of the petition and perused through the judgments cited at Bar. (Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (10 of 19) [CW-18736/2023]
18. Upon an assiduous perusal of the record of the instant petition, the following noteworthy stipulations and/or facts emerge, namely:-
18.1 That the respondent no.3, vide order dated 19.04.2022, issued the final seniority list for the post of Superintending Engineers (E&M) as it stood on 01.04.2022. In the said list, the petitioners noted above along with the private respondents, stood on the following ranks:-
Sr. Name of SE Category Qualificati Date of Birth Year/Date of No. (E&M) on Promo.
3. Shri Sita Ram ST Degree 15.09.1973 01.04.2017 Meena
19. Shri Jaiveer Gen Degree 19.12.1963 01.07.2019 Singh Solanki
20. Shri Surendra Gen Degree 15.04.1965 01.08.2019 Vashistha
21. Shri Sudhir Gen Degree 18.06.1967 01.10.2019 Jain 18.2 That vide order dated 22.12.2022 (Annexure-9), pursuant to the respondent no.3 having convened the DPC for promotion of Superintending Engineers (E&M) to the post Additional Chief Engineers (E&M) for the Year 2022-2023, Mr. Sita Ram Meena i.e. respondent no.5 was accorded promotion on the post of Additional Chief Engineer (E&M) w.e.f. 01.04.2022.
18.3 That vide order dated 13.09.2023 (Annexure-10), pursuant to the respondent no.3 having convened the DPC for promotion of Superintending Engineers (E&M) to the post Additional Chief Engineers (E&M) for the Year 2023-2024, the petitioners were accorded promotion on the post of Additional Chief Engineer (E&M) w.e.f. 01.04.2023.
(Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (11 of 19) [CW-18736/2023] 18.4 That vide order dated 13.09.2023(Annexure-11), pursuant to the respondent no.3 having convened the DPC for promotion of Additional Chief Engineers(E&M) to the post of Chief Engineer (E&M) for the Year 2023-2024, Mr. Suresh Chand Meena i.e. respondent no.4 was accorded promotion on the post of Chief Engineer (E&M) w.e.f. 01.04.2023.
19. In this background, this Court deems it appropriate to formulate the following issues, redressal of which, shall inadvertently put the controversy at hand to rest. They are noted herein-under:-
(i) Whether the petitioners were eligible for promotion on the post of Additional Chief Engineer (E&M) in the Year 2022-2023?
(ii) Whether the petitioners can claim for the conduct of a Review DPC in pursuance of the Circular dt. 26.07.2022?
20. In order to promulgate findings on the foregoing issues, this Court deems it appropriate to take note of the following undisputed facts:-
20.1 That the dispute before the Court essentially pertains to the posts of Additional Chief Engineer (E&M) and Chief Engineer(E&M) in the employment of respondent no.3.
20.2 That the cadre strength for the post of Additional Chief Engineer(E&M) is 8, whereas the cadre strength for the post of Chief Engineer (E&M) is 4 and therefore, the applicable roster for promotion would be an 8 point roster also known as the 'L' shaped roster. In this regard, it is noted that vide Circular dt. 20.11.1997 (Annexure-2), for the cadre strength of 2 to 8, an 8 point roster system was introduced for ascertaining promotions.(Downloaded on 05/06/2024 at 08:41:11 PM)
[2024:RJ-JP:15222] (12 of 19) [CW-18736/2023] 20.3 That for the said 8 point roster system, the Circular dt. 20.11.1997, which was issued in compliance of the dictum enunciated in Indira Sawhney (Supra) and R.K. Sabharwal (Supra) made it very clear that the rotation by the indicated reserved category would be skipped over if it lead to more than 50% representation of a reserved category in the concerned promotions.
20.4 That in furtherance of the aforesaid, respondent no.2 also issued Circular dt. 24.06.2008 (Annexure-R/2), whereby vide Clause 11.6, it was categorically stated that reservation at any point of time should not exceed the prescribed limit of 50%. 20.5 That in cumulative light of the aforesaid, it is clear that the ceiling limit of reservation is 50% without any exceptions. 20.6 That the respondent no.2 further issued Circular dt. 26.07.2022 (Annexure-5) by which the concept of Review DPC was introduced in order to ensure that administrative work is not halted at any given point of time, be it on account of retirement of employees or otherwise.
20.7 That the rationale behind the introduction of the concept of Review DPC is to the effect that there used to be only one DPC in a promotional year and in the subsistence of the said year, after the said DPC was already conducted, situations arose such as retirement of certain employees which resulted into the creation of vacancies, inadvertently slowing down the working of the Corporation/Department. Therefore, the conduct of Review DPC helped in ensuring that the vacancies so arisen in said subsisting period, could be duly filled timely.
(Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (13 of 19) [CW-18736/2023] 20.8 That vide order dated 14.12.2022 (Annexure-6), the respondent no.2 further clarified that if employees had been promoted and they superannuated in the same year, then in order to fill up the vacancies arising from such a situation, the procedure for Review DPC as spelled out vide Circular dt. 26.07.2022 shall have to be followed.] 20.9 That the respondent no.3, vide order dated 22.12.2022, promoted six Superintending Engineers (E&M) to the post of Additional Chief Engineers (E&M). Out of the said 6 promotees, 4 belonged to the unreserved category, who already retired before the conduct of the said DPC. In this regard, it is noted that Mr. Gan Nath Mishra, Mr. Mahendra Kumar Saxena, Mr. Himanshu Pandey and Mr. Vijay Pal Dhakar, who were promoted vide order dated 22.12.2022, had already retired on 31.08.2022,30.11.2022,31.08.2022 and 30.04.2022 (Annexure-
9). Therefore, their promotion was merely notional.
21. Hence, upon a cumulative consideration of the foregoing admitted factual stipulations, it becomes rather glaring that the vacancies within the respondent no.3, on the post of Additional Chief Engineer (E&M) had already arisen before the conduct of the DPC in the Month of December 2022. Hence, as on the date when the Mr. Gan Nath Mishra, Mr. Mahendra Kumar Saxena, Mr. Himanshu Pandey and Mr. Vijay Pal Dhakar were notionally promoted, vacancies qua 4 unreserved candidates already subsisted within the workings of the respondent no.3. Therefore, in adherence of the Circular dt. 26.07.2022 (Annexure-
5), coupled with the further clarification dated 14.12.2022 (Annexure-6), the respondent no.3 ought to have conducted a (Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (14 of 19) [CW-18736/2023] Review DPC for filling up such unreserved posts. However, admittedly, the respondent no.3 failed to do so and as a direct consequence of which, the petitioners candidature for promotion from the post of Superintending Engineer (E&M) to Additional Chief Engineer (E&M) for the Year 2022-2023 was not considered.
22. As a result, the failure to conduct Review DPC when vacancies arose in the Year 2022 on account the retirement of the unreserved Additional Chief Engineers noted above and the consequent conduct of DPC on 13.09.2023 i.e. after approximately 1 year, wherein promotions were made qua the petitioners at a belated stage i.e. w.e.f. 01.04.2023, is an action wholly arbitrary, unjust and manifestly illegal on part of the respondent no.3.
23. The Review DPC ought to have been conducted in light of the Circular dt. 26.07.2022 in the Year 2022 itself, pursuant to the retirement of the 4 unreserved Additional Chief Engineers, who were merely notionally promoted vide order dated 22.12.2022. The inaction on part of the respondent no.3 to conduct such Review DPC has resulted in the failure to give full effect to the Circular dt. 26.07.2022, which envisions the smooth and unhindered carrying on of administrative work.
24. At this juncture, it is noted that arguments advanced by learned counsel for the respondents regarding the petitioners being ineligible for promotion on the post of Assistant Chief Engineer in the Year 2022-2023 on account of them not possessing the requisite experience of 3 years as prescribed by the Regulations of 2016, cannot be countenanced by this Court for the simple reason that the instant petition is filed by the petitioners seeking a writ of mandamus to respondent no.3 for (Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (15 of 19) [CW-18736/2023] conduct of Review DPC in pursuance of the Circular dated 26.07.2022 and it is only in the circumstance that the said Review DPC is conducted, that the issue regarding the eligibility of petitioners shall arise. The prayer before this Court simply pertains to the issuance of directions for the conduct of Review DPC in terms of Circulars dt. 26.07.2022 and 14.12.2022 and not qua the issuance of directions to the respondent no.3 to promote the petitioners w.e.f. 01.04.2022. Therefore, the issue of eligibility of the petitioners shall be a matter purely within the domain of the Departmental Promotion Committee so constituted and the same is not to be ascertained by this Court.
25. Whereas, qua the secondary and tertiary arguments advanced by the counsel for the respondents regarding the non- permissibility of granting two promotions in one year and applicability of Rule 7 of the Regulations of 2016, it is noted that the same cannot be countenanced as well, for the following reasons:-
25.1 That Rule 7 of the Regulations of 2016 provides for no carrying forward of merit based vacancies. Therefore, in the facts of the present case, the same would have no relevancy, for the reason that, had the respondent no.3 conducted the Review DPC in time without any delay, the petitioners would have been promoted to the post of Additional Chief Engineer (E&M) in the Year 2022-2023 itself, subject to eligibility and as a result, there would no vacancies for the reserved category candidates.
25.2 That by way of the present petition, the petitioners are not seeking two promotions in one year but instead are only seeking one promotion in the Year 2022-2023, which was delayed on (Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (16 of 19) [CW-18736/2023] account of the non-conduct of Review DPC and the consequential promotion in the Year 2023-2024.
26. At this juncture, in support of the foregoing observations, this Court deems it appropriate to place reliance upon the dictum of the Hon'ble Apex Court as enunciated in Nirmal Chandra Bhattacharjee (Supra), relevant extract of which is reproduced herein-under:-
"3. Technically the Tribunal appears to be correct in us view that once in consequence of restructuring the appellants were placed in class 'C' they could not be selected against class 'C' posts reserved for class 'D'. But practically it results in such glaring injustice that the benefit which the petitioners got in consequences of restructuring made them worse of by depriving them of their chance of promotion to higher scale. The effect of the Tribunal's order has resulted in pushing down the appellants from class 'III' post and in some cases even from still higher post as they had been granted second promotion as well to the post which they held in 1983. The hardship which stares in the face is that the appellants as a result of restructuring on which they had no control were placed in group 'C' but thereby they lost the chance of moving on the promotional ladder had they chosen to remain in group 'D'. In other words by up gradation and restructuring of posts the appellants became worse of than what they would have been if they would have continued in class 'D'. Putting it differently the appellants who by virtue of restructuring came in group 'C' could not be promoted to the post of Ticket Collector which is in class 'III'. Whereas the respondents who had been rejected in the selection along with the appellants and could not come in 65% quota of the 'D' group when it was restructured, have chance of being promoted against 33 1/2% in group 'C' to the post of Ticket Collector and then further on. By this process the juniors and those who could not be selected, are likely to become senior and better placed than those who were placed in group 'C'. That indeed would be very unfair. No rule or order (Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (17 of 19) [CW-18736/2023] which is meant to benefit employees should normally be construed in such a manner as to work hardship and injustice specialty when its operation is automatic and if any injustice arises then the primary duty of the courts is to resolve it in such a manner that it may avoid any loss to one without giving undue advantage to other.
4. ..............
5. One of the principles of service is that any rule does not work to prejudice of an employee who was in service prior to that date. Admittedly the vacancies against which appellants were promoted had occurred prior to restructuring of these posts. It is further not disputed that various other posts to which class 'IV employees could be promoted were filled prior to 1st August 1983. The selection process in resects of Ticket Collectors had also started prior to 1st August 1983. If the department would have proceeded with the selection well within time and would have completed it before 1st August 1983 then the appellants would have become Ticket Collectors without any difficulty. The mistake or delay on the part of the department, therefore, should not be permitted to recoil on the appellants. Para '31' of the restructuring order itself provides that vacancies in various grades of posts covered in different categories existing on 31st July 1983 would be filled in accordance with the procedure which was in vogue before 1st August, 1983."
27. Similarly, reliance can also be placed upon the dictum of the Hon'ble Apex Court as enunciated in P.N. Premachandran vs. The State of Kerala and Ors. reported in AIR 2004 SC 255, relevant extract of which, is reproduced herein-under:-
"7. It is not in dispute that the posts were to be filled up by promotion. We fail to understand how the appellant, keeping in view the facts and (Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (18 of 19) [CW-18736/2023] circumstances of this case, could question the retrospective promotion granted to the private respondents herein. It is not disputed that in view, of the administrative lapse, the Departmental Promotion Committee did not hold a sitting from 1964 to 1980. The respondents cannot suffer owing to such administrative lapse on the part of the State of Kerala for no fault on their, part. It is also not disputed, that in ordinary course they were entitled to be promoted to the post of Assistant Director's, in the event, a Departmental Promotion Committee had been constituted in due time. In that, view of the matter, it must be held that the State of Kerala took a conscious decision to the effect that those who have been acting in a higher post for a long time although on a temporary basis, but were qualified at the time when they were so promoted and found to be eligible by the Departmental Promotion Committee at a later date, should be promoted with retrospective effect."
28. Therefore, in summation, this Court deems it appropriate to note that the respondent no.3 ought to have conducted the Review DPC, qua the vacancies subsisting in the Year 2022 for the post of Additional Chief Engineer (E&M) in a timely manner, in strict adherence of the Circulars dt. 26.07.2022 and 14.12.2022.
29. As a result, this Court deems it appropriate to direct the respondent no.3 to conduct Review DPC in pursuance of the Circular dt. 26.07.2022 for the vacancies of the Year 2022-2023 at the earliest and thereafter, if deemed eligible, promote the petitioners to the post of Additional Chief Engineer (E&M) against the vacancies for the Year 2022-2023.
30. Conversely, this Court deems it appropriate to quash and set aside the order dated 13.09.2023 (Annexure-11) to the (Downloaded on 05/06/2024 at 08:41:11 PM) [2024:RJ-JP:15222] (19 of 19) [CW-18736/2023] extent of the promotion of the respondent no.4, as the said promotion would breach the upper limit of reservation 50% for reserved candidates.
31. Accordingly, in view of the above, the instant petition is allowed. Pending applications, if any, stand disposed of.
(SAMEER JAIN),J JKP/c-1 (Downloaded on 05/06/2024 at 08:41:11 PM) Powered by TCPDF (www.tcpdf.org)