Delhi District Court
Sh.Ram Lal Ladwal vs B.S.E.S. Yamuna Power Limited on 6 September, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No.376/06/00.
Sh.Ram Lal Ladwal
Foreman-Electrical,
Employee no.25105,
A.M.(D) T/Y,
BSES Yamuna Power Ltd. ......................Plaintiffs
Vs.
01. B.S.E.S. Yamuna Power Limited
Through its C.E.O.
Shakti Bhawan, Nehru Place,
New Delhi.
02. Delhi Power Company Ltd.
through its C.M.D.
Shakti Sadan,
Kotla Road, New Delhi. .................Defendants
Date of institution : 26.07.2000.
Date of reservation : 06.08.2011.
Date of pronouncement : 06.09.2011.
JUDGMENT
01. This is a suit of permanent and mandatory injunction, filed by the plaintiff against the erstwhile DVB which has been unbundled and Delhi Power Company Ltd. and BSES Yamuna Power Limited have stepped into its shoes.
Suit No.376/06/00 page 1 of page 10
02. In brief, the facts of present case as made out in the amended plaint are that plaintiff is at present working as Foreman (Electronics) Grade-I, having Diploma in the Electricity and Post Diploma in Electronics and was promoted as Grade-I in the year 1987 and is the senior most person in the category of Foreman. It is stated that there are various category of Foreman such as Foreman (Lines), Foreman (Electronics), Foreman (Mech.) for which a common seniority list is being maintained by the department. It is stated that further channel of promotion for the category of foreman is to the Assistant Engineer (Elect./Mech.). It is further stated that as per approved notified R & P Regulations for the post of A.E.(Elect.)/Mech) the post is required to be filled up as under :-
i) 50% by direct recruitment
ii) 50% by Promotion from deptt. DVB candidate in the category of;
a) 75% Jr.Engineer (Supdt.) 37 & half %
b)13% Controller as shift officer (6 & half %)
c)12% Foreman (6%).
03. It is the case of the plaintiff that now the DVB is proposing to reduce 12% quota of the Foreman to 2% only for promotion to the post of A.E.(Elect./Mech.) thereby, denying the promotion to the post/category of Foreman which are on the point of their stagnation and are working in the Cadre for more than 10 years. It is further case of the plaintiff that Management is further proposing to fill up the post of A.E.(E/M) accordingly, without making any amendment in the existing R & P Rules/Regulations as per proper and valid legal procedure as provided in the act. It is alleged that DVB has also changed the designation of Foreman Grade-II to that of Sr. Fitter in the same scale of pay Jr. Engineer Suit No.376/06/00 page 2 of page 10 and Foreman Grade-II. It is stated that the Association has also taken up the matter with the Management by their letter dt.13.06.2000, 22.02.06, 19.03.96, 20.03.96, 04.08.98, but no action has been taken by the Department. It is further stated that plaintiff has served a legal notice to the defendant department on 24.05.2000 through his Advocate by registered post. It is stated that the action of the respondents in promoting the Juniors to the plaintiff without considering the representation of the plaintiff is unjust and arbitrary and in violation of Article 14 of the Constitution of India and is liable to be set aside and accordingly the plaintiff is entitled to be considered and promoted as A.E. with effect from the date of juniors have been promoted. Hence, the present suit for passing a decree of permanent injunction in favour of plaintiff and against the defendant, thereby, restraining the defendant from filling up the post of A.E.(Elect./Mech.) against the provisions of existing notified R & P Regulations for the post of A.E. (Elect./Mech.), and from reducing promotion quota of Foreman from 12 to 2 per cent and and a decree of mandatory injunction, thereby directing the defendant to promote the existing eligible Foreman to the grade of A.E. after considering their service rendered as Senior Electric Fitter in accordance with the existing provisions of R & P Rules against existing vacancies and to consider/promote plaintiff w.e.f. the date of his juniors have been promoted and release all the consequential benefits i.e.proforma promotion, increment etc, is filed.
04. It is pertinent to mention here that plaintiff no.1, 2 and 3 namely Sh.M.S.Sharma, Sh.S.K.Sood and Sh.Naresh Chand, have already been promoted during the pendency of the present suit and accordingly Suit No.376/06/00 page 3 of page 10 their cases had been decided as satisfied vide order dated 22.12.2004 passed by the ld.predecessor of this court.
05. Defendant no.1 BSES Yamuna Power Ltd. contested the present suit by filing detailed written statement, while taking preliminary objections that suit of the plaintiff is not maintainable because the plaintiff was involved in a Vigilence case in which he was placed under suspension and enquiry was conducted against the plaintiff and vide enquiry report dated 03.04.2006, a penalty of Stoppage of four annual increments in the time scale of 6500-10900 for a period of four years with cumulative effect was imposed upon Sh.Ladwal vide order dated 31.08.2006 and aggrieved the penalty order the plaintiff appealed the said order and thereafter the penalty was reduce to 'stoppage of three annual increments of pay in his time scale for a period of three years with cumulative effects'; no legal, valid or justiciable cause of action has ever arisen in favour of the petitioner and against the defendant no.1 for filing the present petition. On merits, the contents of the plaint have been denied while submitting that the post of AE (E/M) is strictly filled as per R & P Regulations unless and until the amendments made in the regulations are properly notified. It is further submitted that as per R & P Regulations 8% of promotion quota of vacancies available in grade of AM is required to be filled from amongst Foreman with three years regular service in the grade as per conditions provided therein. It is prayed by the defendant no.1 that suit of the plaintiff be dismissed with costs.
06. Plaintiff filed the replication, whereby he denied the facts as mentioned in written statement while reaffirming the contents as made in the plaint.
Suit No.376/06/00 page 4 of page 10
07. From the pleadings of the parties following issues were framed vide order dated 18.01.2001 :-
1. Whether plaintiff is entitled to decree of permanent injunction ? OPP.
2. Whether plaintiff is entitled to decree of mandatory injunction ? OPP.
3. Relief.
08. In support of its case, plaintiff examined himself as PW-1 and also filed additional evidence after amendment of plaint. On the other hand, defendant examined Sh.K.S.Rawat, Section Officer (non-technical), BSES Yamuna Power Limited as DW-1.
09. I have heard ld. counsel for parties as well as perused the material placed on record and written arguments as filed on behalf plaintiff. My issue wise findings are as under:-
Issue no.1.
10. Onus to prove this issue was upon the plaintiff. It is the case of the plaintiff as mentioned in para no.9 of the amended plaint that now the DVB (already unbundled) is proposing to reduce 12% quota of the Foreman to 2% only for promotion to the post of AE (E and M), thereby denying the promotion to the post/category of Foreman which are on the point of their stagnation and are working in the Cadre for more than 12 years and it is alleged that the department is proposing to fill up the post of AE (E/M) from the other categories out of the reduced quota of the Foreman, which will adversely affect the right of the plaintiff and therefore, a decree of permanent injunction was prayed from restraining the defendant from filling up the post of AE (E/M) against the provision of Suit No.376/06/00 page 5 of page 10 existing notified R & P Regulations or from reducing promotion quota of Foreman from 12% to 2%. However, no evidence is led by plaintiff to this effect. Furthermore, in the written submission/final arguments, as filed on behalf of plaintiff, it is mentioned that there was a proposal to amend the R & P Rules/Regulations excluding the category of Foreman from era of promotion, but, however, that proposal was not implemented due to bifurcation of DVB and hence, the old Regulation remained operative. When admittedly, the old Regulation remained operative, due to bifurcation of DVB, no question of injunction as prayed arises. Accordingly, this issue is decided against the plaintiff and in favour of defendants.
Issue no.2.
11. Onus to prove this issue was upon the plaintiff. PW-1 in his additional evidence by way of affidavit deposed that he is working in O and M Division, Karawal Nagar, Delhi, as Foreman-cum-Sr. Engineer and during the proceeding of present case, he had obtained diploma in electrical and this qualification had been added in the service record of plaintiff by the defendant department vide order dated 31.01.2002 i.e.Ex.PW-1/2. PW-1 further deposed that during the proceeding of this case, the defendant had promoted the officials who all are juniors to the plaintiff as mentioned in the affidavit. PW-1 further deposed that the defendant BSES YPL had implicated him in a false, wrong vigilance case, in which a penalty of reduction by three stages had been imposed vide order dated 28.11.2006 and as such the currency of punishment of PW-1 had also expired on 31.08.2009, and the action of the defendant department is illegal for not considering the plaintiff for promotion to the post of AE Suit No.376/06/00 page 6 of page 10 (E/M). In his cross examination, PW-1 confirmed that at the time of joining DESU, in the year 1977, he was 6th standard pass and in the year 2001, he was 12th pass. PW-1 further confirmed that he was suspended from service w.e.f.29.08.2005 and as per enquiry report, charge no.2, 3 and 4 were proved against him and he preferred an appeal against those findings and stoppage of four increments were reduced to three increments. To a specific question, PW-1 deposed that he cannot say whether for having 8% promotion for the post of AE, Foreman, with three years regular service in the grade for those possessing degree in electrical/mechanical/electronics engineering from a recognised University or equivalent and 7 years regular service in the grade of those possessing Diploma from a recognised University or equivalent is required. To a specific question PW-1 confirmed that seniority of an employee is assigned from the date of joining and not from the date of acquiring higher education.
12. DW-1 is Sh.K.S.Rawat, Section Officer, who deposed that plaintiff was involved in a vigilance case and an enquiry was conducted and vide enquiry report dated 03.04.2006, a penalty of stoppage of four annual increment in the time scale 6500-10900 for a period of four years with cumulative effect, was imposed upon him and proved the copy of said order as Ex.DW-1/1. Aggrieved by the penalty order, the plaintiff appealed against the order and thereafter, the penalty was reduced to stoppage of three annual increment of pay in his time scale for a period of three year with cumulative effect, was passed and proved the copy of said order of appeal as Ex.DW-1/2. DW-1 further deposed that plaintiff also filed a civil suit against the said penalty imposed upon him and also sought Suit No.376/06/00 page 7 of page 10 his promotion alongwith consequential benefits from the date when his juniors were promoted, but the said civil suit was also dismissed and proved the copy of judgment as Ex.DW-1/3. DW-1 further deposed that the plaintiff acquired the Diploma qualification only in the year 2001 which as per the plaintiff was informed by him only on 22.11.2001 and for the purpose of promotion, only the experience after the qualification has been acquired is counted and the penalty period of penalty imposed upon the plaintiff will expire on 01.04.2012 and the plaintiff can only be considered for promotion after the expiry of penalty period as per the prescribed rules. In his cross examination, DW-1 deposed that he has mentioned in para no.7 of his affidavit that for the purpose of promotion, the experience after the qualification is counted, on the basis of his personal knowledge.
13. The fact that plaintiff was appointed as Foreman/Grade-I on 30.04.1996 and he obtained the Diploma in Electrical engineering on 22.11.2001 and same had been added in the service record of the plaintiff by the defendant is not in dispute. It is also admitted fact that a penalty of stoppage of three annual increments of pay in his time scale for a period of three years with cumulative effect, vide order Ex.DW-1/2, was passed in an appeal filed by the plaintiff and thereafter, the civil suit as filed by plaintiff against the said penalty has also been dismissed vide judgment Ex.DW-1/3.
14. Now the first question comes to decide, whether the eligibility for promotion quota of vacancies in the Grade of AM is required from the day when the plaintiff acquired the requisite degree/diploma or from the date he was promoted/appointed to minimum grade required for such Suit No.376/06/00 page 8 of page 10 promotion, irrespective of the fact that he acquired required qualification Degree /Diploma later on. R & P Regulations for filling up the post of Foreman to the post of AE (E/M) as submitted by both the parties are as under:-
(i) Foreman with 3 years regular service in the grade for those possessing degree in Elec./Mechanical/Electronics Engineering from a recognised university or equivalent and 7 years regular services in the grade for those possessing diploma in Elec./Mechanical/Electronics Engineering from a recognized university or equivalent.
(ii)Failing (i) above, Foreman with 5 years regular combined service in the grades of Foreman (Gr.II) for those possessing degree in Elec/Mechanical/Electronics Engineering from a recognized university or equivalent and 10 years regular combined service in case of those possessing diploma in Elec./Mechanical/Electronics Engineering from a recognized university or equivalent and 10 years regular combined services in case of those possessing engineering from a recognized university of equivalent.
15. The above provisions/conditions itself shows that for promotion from Foreman to AE (E & M), three years regular service in the Grade for those possessing degree in engineering is required and 7 years regular service in the grade for those possessing diploma is required. Therefore, the period of service as Foreman before obtaining/possessing the degree or diploma, cannot be considered for such promotion to the post of AE (E & M) as per above said rule. Therefore, the eligibility of plaintiff for the promotion of post of AE (E & M) would be 7 years regular service Suit No.376/06/00 page 9 of page 10 in the grade after possessing diploma in electrical/mechanical engineering as per R & P Regulations cited by both the parties. It was argued by ld.counsel for plaintiff that juniors of the plaintiff as mentioned in the affidavit have been promoted and this evidence of plaintiff remained unrebutted. However, ld.counsel for plaintiff has failed to show that the juniors of the plaintiff were on the same footing as of plaintiff or they were possessing degree/diploma before the plaintiff.
16. Plaintiff has prayed for a decree of mandatory injunction thereby directing the defendant to promote the existing eligible Foreman to the Grade of AE after considering their service rendered as Sr.Electric Fitter in accordance with the existing provision of R & P rules against existing vacancies and also sought a direction to the respondent to consider/promote the plaintiff with effect the date his juniors have been promoted and to release all the consequential benefits. In view of my above finding to the effect that as per rules, for promotion to the post of AE (E/M), the eligibility of plaintiff for the promotion of post of AM would be 7 years regular service in the grade after possessing diploma in electrical/mechanical engineering, no direction can be issued to defendant to consider the service of the plaintiff prior to obtaining the diploma. Accordingly, this issue is decided against the plaintiff and in favour of defendant.
Relief.
17. In view of my findings on the aforesaid issues, suit of the plaintiff is dismissed with no order as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open court ( S.K.MALHOTRA ) on 06.09.2011. SCJ/RC/(North)/DELHI Suit No.376/06/00 page 10 of page 10