Punjab-Haryana High Court
Sunder Dass vs Haryana Power Generation Corporation ... on 12 December, 2011
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
Civil Writ Petition No.4256 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.4256 of 2007
Date of Decision: December 12, 2011
Sunder Dass ......Petitioner
Versus
Haryana Power Generation Corporation Ltd. & another .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.JS Maanipur, Advocate for the petitioner.
Mr.Shivender Swaroop, Advocate for
Mr.Narender Hooda, Advocate for the respondents.
<><><>
TEJINDER SINGH DHINDSA, J.
The petitioner who was an employee of the Haryana Power Generation Corporation Limited (in short 'HPGCL') is seeking promotion to the post of Deputy Superintendent w.e.f. 4.4.2002 and to the post of Superintendent w.e.f. 8.8.2005.
Briefly stated, the facts are that the petitioner joined the erstwhile Haryana State Electricity Board on 18.5.1968 as a Lower Division Clerk. He was thereafter promoted as Upper Division Clerk on 25.9.1970. The petitioner possesses an unblemished record of service and has worked to the complete satisfaction of his superiors.
On 30.6.1999, a seniority list of Assistants (Head Office) for the period ending 23.3.1979 in erstwhile HSEB was circulated, wherein the Civil Writ Petition No.4256 of 2007 2 name of the petitioner figures at Serial No.162 and his juniors, namely, S/Shri Ishwar Singh, Prem Singh and Hari Ram Gupta were at Serial Nos.198, 203 and 213 respectively. There would be no dispute as regards the fact that upon bifurcation of the erstwhile Haryana State Electricity Board, the juniors mentioned hereinabove were allocated to HPGCL.
It so transpired that the petitioner was promoted and allocated to Uttar Haryana Bijli Vitran Nigam Limited (in short 'UHBVNL'). Such allocation was opposed by the petitioner on the plea that he had never opted for his allocation to UHBVNL and as such, he agitated the matter as regards retention in HPGCL. During such time, when the issue regarding the allocation of the petitioner was still under consideration, orders dated 4.4.2002 were issued, whereby all the three juniors to the petitioner, namely, S/Shri Ishwar Singh, Prem Singh and Hari Ram Gupta were promoted to the post of Deputy Superintendent. As regards the petitioner, the promotion order dated 4.4.2002 specifically stipulated that a post of Deputy Superintendent had been reserved for him to await the final decision of his appeal regarding allocation/retention in HPGCL.
It was in terms of passing of orders dated 8.11.2004 that the appeal of the petitioner came to be decided by the State Government and the petitioner was held to be allocated to HPGCL. It was clearly held in such decision that the petitioner had never opted for his allocation to UHBVNL and all through had re-iterated his plea for retention in the HPGCL. Upon such final decision having been taken as regards the allocation of petitioner to HPGCL and the matter having, thus, been decided, the petitioner submitted a number of representations regarding promotion to the post of Deputy Superintendent w.e.f. 4.4.2002 i.e. the date his juniors were Civil Writ Petition No.4256 of 2007 3 promoted. Meanwhile, vide order dated 8.8.2005, Shri Prem Singh, Deputy Superintendent, who admittedly was junior to the petitioner, was further promoted to the post of Superintendent.
Finally, on 13.3.2007, orders were issued whereby the petitioner was promoted to the post of Deputy Superintendent but with immediate effect. It is against such factual background that the instant writ petition came to be filed before this Court.
Learned counsel appearing for the petitioner has vehemently argued that the petitioner was vested with the right to be promoted to the post of Deputy Superintendent w.e.f. 4.4.2002 as also to the post of Superintendent w.e.f. 8.8.2005 i.e. the dates with effect from which his juniors were promoted. Learned counsel would further contend that in the initial order of promotion dated 4.4.2002, it had been stipulated that a post of Deputy Superintendent had been kept reserved only to await the final decision as regards the allocation of the petitioner to HPGCL and the same having been decided at the hands of the State Government in which the petitioner was held to be finally allocated to HPGCL, the action of the respondent-authorities in promoting the petitioner to the post of Deputy Superintendent w.e.f. 13.3.2007 instead of 4.4.2002 is arbitrary, illegal and discriminatory.
Learned counsel appearing for HPGCL has contended that the petitioner had been transferred to UHBVNL vide order dated 30.6.1999 and that too upon promotion. Learned counsel placed reliance on an application, dated 9.5.2000 (Annexure R2) along with written statement to demonstrate that the petitioner himself had foregone his promotion to the post of Deputy Superintendent in UHBVNL in the year 1999 itself and as Civil Writ Petition No.4256 of 2007 4 such, he could not rightfully claim promotion to the post of Deputy Superintendent w.e.f. 4.4.2002.
Upon consideration of the respective submissions made by the learned counsel as also having perused the pleading on record, I find that this petition deserves to succeed. The facts are not in dispute. The petitioner is senior to S/Shri Ishwar Singh, Prem Singh and Hari Ram Gupta. The juniors were promoted to the post of Deputy Superintendent vide order dated 4.4.2002. Such promotion order carried a specific stipulation with regard to the petitioner and the same reads as under:
"One post of Dy.Supdt. has been reserved for Shri Sunder Dass, Assistant who is presently working with the Chief Engineer/Hydel, Yamunanagar till the final decision of his appeal against re-allocation to HPGC by the Secretary to Government, Haryana Power Department, Chandigarh."
The issue regarding the allocation of the petitioner to HPGCL also stands settled in terms of order dated 8.11.2004 passed by the Financial Commissioner and Principal Secretary to Government of Haryana, Power Department. Such order has been passed under the provisions of the Haryana Electricity Reform (Transfer of Undertakings, Assets, Liabilities, Proceedings and Personnel) Scheme Rules, 1998. The petitioner has been held to be allocated finally to HPGCL. One of the juniors to the petitioner, namely, Shri Prem Singh has even earned a promotion to the post of Superintendent vide order dated 8.8.2005. Once the issue regarding allocation of the petitioner to HPGCL came to be finally decided, it was incumbent on the respondent-authorities to have granted promotion to the petitioner to the post of Deputy Superintendent w.e.f. 4.4.2002. Civil Writ Petition No.4256 of 2007 5 Consequently, the petitioner is also entitled to promotion to the post of Superintendent w.e.f. 8.8.2005.
The contention raised on behalf of HPGCL to the effect that the petitioner had foregone promotion to the post of Deputy Superintendent in the year 1999 is wholly mis-conceived. Such promotion and posting in the year 1999 was in respect of a post in UHBVNL. Precisely, the issue of not being allocated to UHBVNL and the plea regarding retention in HPGCL had been raised by the petitioner. Such issue stands concluded in his favour. As such, foregoing of promotion to the post of Deputy Superintendent in UHBVNL in the year 1999 would not operate to the detriment of the petitioner insofar as his claim for promotion to the post of Deputy Superintendent and Superintendent in HPGCL with effect from the date his juniors were promoted, is concerned.
Articles 14 and 16 of the Constitution of India mandate equality before law as also equality of opportunity in matters of public employment. The petitioner is vested with a right of a fair consideration as regards promotion is concerned. There is not even a whisper as regards any adverse service record of the petitioner and neither has such a plea been raised by the HPGCL either in the pleadings or at the time of hearing. Under such circumstances, the petitioner is clearly vested with a right to seek promotion to the post of Deputy Superintendent w.e.f. 4.4.2002 and to the post of Superintendent w.e.f. 8.8.2005.
For the reasons recorded hereinabove, the order dated 13.3.2007 (Annexure P7) is set aside to the extent it confers the benefit of promotion to the petitioner on the post of Deputy Superintendent only with immediate effect. The petitioner is, accordingly, held entitled to a notional Civil Writ Petition No.4256 of 2007 6 promotion to the post of Deputy Superintendent w.e.f. 4.4.2002. Consequently, he is also entitled to a notional promotion to the post of Superintendent w.e.f. 8.8.2005. The petitioner is also held entitled to all consequential benefits. Since the petitioner has retired on 30.6.2007 upon attaining the age of superannuation, it is further directed that the revised retiral benefits be also released to him within a period of three months from the date of receipt of a certified copy of this order.
Accordingly, the writ petition is allowed in the aforesaid terms.
( TEJINDER SINGH DHINDSA )
DECEMBER 12, 2011 JUDGE
SRM
Note: Whether to be referred to the Reporter? Yes/No