Andhra HC (Pre-Telangana)
T. Sridhar And Ors. vs A.P. State Electricity Board Rep. By Its ... on 19 July, 1996
Equivalent citations: 1996(3)ALT683
JUDGMENT G. Bikshapathy, J.
1. The Writ Appeals are directed against the common orders of the learned single Judge dated 1-3-1995 in W.P. Nos. 10195/1991 and 2930/1992.
2. The Appellants are the Writ Petitioners. The petitioners challenged the proceedings of the Board in B.P.Ms. No. 223, dated 3-8-1991 promoting the unofficial Respondents to the post of Assistant Executive Engineers (Civil) as illegal and violative of Articles 14 and 16 and for consequential direction to the Respondent Board to promote them as Assistant Executive Engineers by relaxing the requirement of service experience.
3. The petitioners were initially appointed as Draftsmen in the Board service and their services were regularised. The contesting Respondents were appointed as Additional Assistant Engineers (Civil) in the Irrigation Department of Government of Andhra Pradesh and they were sent on deputation to the Board. The petitioners as well as the contesting Respondents were possessing the educational qualifications of Diploma in Engineering. The unofficial Respondents have been making representation to the Board to absorb them in the Board services. Therefore after considering the matter, the Board issued proceedings in B.P.Ms. No. 1352, dated 28-12-1989 and the similar proceedings were also issued absorbing some more similarly placed persons subsequently. The grievance of the petitioners is that by virtue of the orders of the absorption issued by the Board, all the unofficial Respondents who were working in the Board on deputation are placed below the petitioners in the seniority list of Additional Assistant Engineers. But, yet ignoring the seniority of the petitioners, the unofficial respondents have been illegally promoted to the post of Assistant Executive Engineers by proceedings dated 3-8-1991. The said proceedings are assailed by the Writ Petitioners.
4. The matter was resisted by the Board as well as the unofficial Respondents. The learned single Judge dismissed the Writ Petitions, against which the present Writ Appeals are filed. The contention of the learned counsel for the Appellants is that the unofficial respondents cannot be recognised as employees of the Electricity Board till such time they are absorbed in the services of the Board and that their seniority has to be reckoned only from the date of their absorption and not from the date they were holding the post in the Government He draws our attention to the orders issued by the Board in B.P.Ms. No. 1352, dated 28-12-1989 wherein 40 deputationists were appointed. Similarly, in B.P.Ms. No. 484, dated 11-2-1991,34 employees were absorbed.
5. The learned Counsel also submits that the very recitals in the Board's memo dated 12-8-1989 establish that the unofficial respondents themselves asked for absorption and the Board has considered their case subject to giving options. Therefore, when once the option is given to become junior to the last regularly promoted Additional Assistant Engineer of the Board, it would not be proper to treat them as Seniors when the question of promotion comes up for consideration. Further in the memo, it is clearly stated that the services rendered by them in the Government shall count only for terminal and other benefits in the A.P. State Electricity Board, but not the benefit of seniority for the purpose of promotion.
6. On the other hand, the learned Counsel for unofficial Respondents submits that they have been working in the Board on deputation for several years and that they are Additional Assistant Engineers in their parent, department and therefore once on their absorption in the Board the service rendered by them as Additional Assistant Engineers in the parent department or on deputation, will have to be taken into account for the purpose of promotion. Hence, he submits that the order of the learned single Judge is quite legal and valid and the same cannot be assailed in the Writ Appeal.
7. For proper appreciation of the case, it is necessary to consider the terms and conditions of absorption and the relevant regulations of the A.P. State Electricity Board Service Regulations. The terms and conditions of absorption as set out in the order of absorption dated 28-12-1989 are extracted below:
"(a) the absorption in Andhra Pradesh State Electricity Board is ordered at their request.
(b) their seniority after absorption in the Board is fixed below Sri R. Parthasarathy, the Junior most regular Additional Assistant Engineer/Civil already working in the Board.
(c) the inter se-seniority of the persons now absorbed in this order shall be their respective seniority as obtained in their present department In case the Board decides to absorb some more senior Government Assistant Engineers/Civil working as Additional Assistant Engineers/Civil in the Board at a later date their seniority also will be as per their respective seniority position obtaining in the Irrigation Department.
(d) they shall not claim promotion to the next higher promotion post on par with those who were already promoted to such higher posts.
(e) their pay and allowances shall be regulated as per the A.P. State Electricity Board Pay Scales Regulation as revised or modified from time to time, as normally applicable to the Board employees in the corresponding post from the date of their absorption.
(f) they shall be governed by the A.P. State Electricity Board Service Regulations/Rules including Conduct and Disciplinary Regulations and orders issued or as amended from time to time from the date of absorption.
(g) they shall cease to be Government Servants from the date of this order which is the date of their absorption in the A.P. State Electricity Board and shall be the employees of Andhra Pradesh State Electricity Board with effect from the date, by foregoing their lien and seniority in their parent department, namely: Irrigation & CAB Department.
(h) the service rendered by them in the Government shall count for terminal and other benefits in the A.P. State Electricity Board".
8. Regulation 14 of Service Regulations states that no person shall be eligible for appointment to the post, unless he possessed the qualifications specified therein. The said Rule reads thus:
"14. No person shall be eligible for appointment to the post and by the method mentioned in Annexure-III and Annexure-VI unless he possesses the qualifications specified therein." The relevant entry in Annexure III is in the following terms:
"ANNEXURE-III A.P.S.E. BOARD ENGINEERING SERVICE Class Method of Qualifications Category recruitment 1 2 3
3. Assistant Promotion (i) Must possess B.E. Degree, Divisional Electrical or Civil or Engineer (Asst. Mechanical or Telecommu-
Executive nication as the case may be
Engineer) of a University in India
established or incorporated by
or under a Central Act,
Provincial Act or a State Act
or any qualification
recognised as equivalent
thereto and have served as
Asst. Engineer for a period
of not less than 5 years;
OR
(ii) (Not applicable)
OR
(iii) Must hold LEE, LCE or LME
Diploma, as the case may be
or any other qualification
recognised as equivalent
thereto, and must have put
in a minimum service of 10
years as Addl. Asst.
Engineers;
OR
(iv) (Not applicable)
(v) (Not applicable)
(vi) (Not applicable)
From a reading of the said Regulation, it is dear that for promotion to the post of Assistant Executive Engineer, the employee should, be an Additional Assistant Engineer with LME Diploma or equivalent qualification and must have put in minimum service of 10 years as Additional Assistant Engineers. It is in this regard, the expression "minimum service of 10 years as Additional Assistant Engineer" is required to be considered.
9. The learned single Judge while dealing with the experience as Additional Assistant Engineer observed "but the real question is whether the service rendered by them in their capacity as Additional Assistant Engineers while on deputation in the Board would qualify for the purpose of service eligibility within the meaning of Service Regulations referred to above. It may be noticed that the Regulation only refers to the minimum service of 10 years as Additional Assistant Engineers (Supervisors). It does not say that the service should be in the capacity as permanent employees in the Electricity Board. Therefore, services rendered by the Additional Assistant Engineers while on deputation in the Board would, in my view, meet the requirement of length of service contemplated by regulation". He also drew the support from the judgment of the Supreme Court in K. Madhavan and Anr. v. Union of India and Ors., .
10. It is not in dispute that the petitioners are regularly promoted employees to the post of Additional Assistant Engineers in the Respondent Board. The unofficial respondents were holding the post of Additional Assistant Engineers in the Irrigation Department, which is their parent department, and they came on deputation to the A.P. State Electricity Board. So long as unofficial Respondents are working as Additional Assistant Engineers in the Electricity Board, they were only treated as deputationists officers and they cannot be equated with the Departmental Additional Assistant Engineers in the matter of their employment, pay, allowances and conditions of service etc. As per the Absorption Memo dated 28-12-1989, the unofficial respondents became the employees of the State Electricity Board only from the said date. Though, they worked in the same capacity in the Board prior to their absorption on deputation, whether such services can be counted as service in the Board for the purpose of promotion to the post of Assistant Executive Engineer is the crucial issue to be considered. The terms and conditions of absorption are very relevant in this regard. The terms are very specific that the absorption is ordered at the request of the unofficial respondents, that their seniority is fixed below the junior most regular Additional Assistant Engineer of the Board and their pay and allowances are regulated as per the Board Pay-Scales Regulations as applicable to the corresponding posts from the date of absorption. Condition No. (g) also stipulated that from the date of the absorption, (he unofficial respondents shall forego their lien and seniority in their parent department. The most important condition (h) says that the service rendered in the Government shall count for terminal and other benefits. Therefore, keeping in view the relevant provisions of the Regulations and also the terms of absorption, it is clear that the services rendered by the unofficial respondents in the Government would only count for terminal and other benefits in the A.P. State Electricity Board. The expression "other benefits" has to be read keeping in view the principle of ejusdem generis. The benefits which accrue to the employees consequent on the termination of their employment will be those such as Gratuity, Provident Fund, Pension, etc. They will be released taking into account the service put in by them in the Government. The mere fact that the petitioners have been working on deputation basis in the Board, would not confer any better benefits than those enumerated in the Memo dated 28-12-1989. Having accepted to forego the lien and services in the Government, they had voluntarily chosen to be junior to the juniormost departmental Additional Assistant Engineer irrespective of their service as deputationists in the Board itself. Thus, when they became juniors foregoing their previous service, the very same service cannot be counted for the purpose of reckoning 10 years of service as Additional Assistant Engineers. Hence the unofficial respondents cannot claim better benefits and advantages than fixed under the Memo. It is not a case of absorption with retrospective effect, but only from the date of the issuance of the Memo dated 20-12-1989. That is the reason why clause (sic. condition) (c) was introduced wherein inter se seniority among the unofficial respondents, who are absorbed and who would be absorbed in future will be determined with reference to their respective eniority in the parent department. In the event of the senior deputationist officer getting absorption later to the junior deputationist officer, the said senior will also become senior in the inter-se seniority list.
11. Thus, viewed from any angle, we find that promoting the unofficial respondents, taking into consideration the experience put in by them as Additional Assistant Engineers on deputation is illegal and run counter to the very spirit of the terms and conditions of the absorption.
12. The learned single Judge relied on the judgment of the Supreme Court quoted supra. In that case the petitioners (K. Madhavan & S. Sen) were directly recruited for the appointment as Deputy Superintendent of Police in the Delhi Special Police Establishment in C.B.I. in 1963. They were confirmed in the year 1967. The 5th respondent (O.P. Sharma) was appointed as Deputy Superintendent of Police in Rajasthan State Police Service in 1962 and he was confirmed in the said post in 1967. He was sent on deputation to the C.B.I, in July, 1967. The petitioners were promoted as Superintendent of Police in C.B.I. witheffectfrom21-10-1971 and25-l-1972 respectively. The5threspondentwas appointed to the post of Superintendent of Police on 28-10-1972. Thus, he was shown as junior in the seniority list of the Superintendents of Police. However, subsequently the seniority list was modified and the date of the appointment of the 5th respondent was shown as 21-10-1971 notionally with the result that he became senior to the petitioners. That gave rise for the petitioners to file the Writ Petition. It was the contention of the petitioners that Mr. Sharma was not even eligible to the post of Superintendent of Police as he did not complete 8 years of service in the Grade of Deputy Superintendent of Police as per the 1963 Rules and that he had only four years of service. In effect, the contention was that period of service in the Grade of Deputy Superintendent of Police shall be reckoned only from the date of deputation of the 5th respondent and not from the date of the appointment in his State service. Under the Special Police Establishment (Executive Staff) Recruitment Rules, 1963, for appointment of a deputationist to the post of Superintendent of Police, the minimum qualification required was the Deputy Superintendent of Police in the Special Police Establishment with atleast 8 years of service in the Grade out of which two years should be probationary period in the C.B.I. The Supreme Court while construing the "8 years of service in the Grade" held that in the absence of any specific provision that the period of 8 years service should be computed from the date of the deputation to the C.B.I. as Deputy Superintendent of Police, the period during which one held the post of Deputy Superintendent of Police in the State Police Service should also be taken into account for computing the period of 8 years of service. Thus, by virtue of the statutory provision, in 1963 Rules, wherein it was stated "8 years of service in the Grade", it was construed by the Supreme Court as not only the Deputy Superintendent of Police Grade in the C.B.I. while on deputation, but also the Grade of Deputy Superintendent of Police in the State Service.
13. But, however, in the matter before us, it is a case of promotion after absorption. The terms of absorption are very specific and conclusively determined the conditions of service of the absorbees. 1963 Rules provided appointment of deputationist officers as Superintendent of Police. But, in the instant case, there is no such provision to treat the experience put in by the officer as deputationist as service in the Board for the purpose of promotion to the post of Assistant Executive Engineer.
14. In Regulation 14 and the Annexure-III relate to the method of Recruitment to the post of Assistant Divisional Engineers (Assistant Executive Engineers). The employee with L.C.E. Diploma must have put in a minimum of 10 years of service as Additional Assistant Engineer. Moreover in the case before the Supreme Court, there was a statutory rule providing appointment to the post of Superintendent of Police from the deputationists categories also. Thus, we find the facts of the case before the Supreme Court were different and the principle laid down by the Supreme Court is not applicable to the facts of this case.
15. As already stated supra, the case on hand revolves only on the terms and conditions for absorption. The unofficial respondents can be said to have become the employees of the Board only from the date of absorption and the said date is the relevant criteria for the purpose of seniority and promotion to the higher post. If the service rendered by the unofficial respondents on deputation is reckoned for the purpose of promotion, then the very purpose of placing the unofficial respondents below the juniormost departmental Additional Assistant Engineers would be frustrated. Mere fact that the Departmental Officers did not possess the requisite experience of 10 years would not empower the Board to consider the cases of the unofficial respondents for promotion fey taking the services rendered by them at deputationists officers. What- cannot be achieved directly cannot also be allowed to be achieved indirectly. Therefore, the analogy drawn by the learned single Judge, from the principle laid down by the Supreme Court in Madhavan's case (1st cited supra) appears to be not correct
16. For the above stated reasons, we are inclined to set aside the order of the learned single Judge. Accordingly, the orders in Writ Petitions are set aside and consequently the promotion of unofficial respondents is declared as illegal and invalid.
17. Now the consequences of the order would be to review the entire promotions effected by the Board. But, however, we are not inclined to upset the promotions of the unofficial respondents already made as on the date of the filing of the Writ Petitions. Therefore, we direct that the promotions of the unofficial respondents (absorbee officers) already made shall be continued. The promotions of absorbed employees if any made after 3-8-1991 shall be reviewed in the light of the principle laid down in this order and promotions shall be effected in accordance with the Service Regulations.
18. The Writ Appeals are allowed accordingly. There shall be no order as to costs.