Madhya Pradesh High Court
M.P. Vidyut Mandal Abhiyanta Sangh vs The State Of Madhya Pradesh on 11 December, 2024
NEUTRAL CITATION NO. 2024:MPHC-JBP:60647
1 WP-11677-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 11677 of 2024
M.P. VIDYUT MANDAL ABHIYANTA SANGH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sanjay K. Agrawal - Senior Advocate Shri Yashwardhan Jain - Advocate for the
petitioners.
Shri Prashant Singh - Advocate General for the respondent No.1 - State.
Shri Anoop Nair - Senior Advocate with Ms. Divyani Singh - Advocate for the
respondent Nos.2 to 4.
ORDER
(Reserved on : 19.09.2024) (Pronounced on : 11.12.2024) The present petition has been filed by a registered Association of Engineers of erstwhile M.P. Electricity Board as well as by five others employees holding the substantive post of Assistant Engineer in the respondent No.2 - Company, i.e. M.P. Power Generating Company Ltd., which is one of the six successor companies of erstwhile MPSEB.
2. Challenge is made in the present petition to notice Annexure P-9, whereby the respondent No.2 - Company has invited expression of interest for engagement of experts in the said on work contract basis. Learned counsel for the petitioner while assailing the said notice Annexure P-9 submits that by the said notice engagement of the experts to provide expert services, consultancy services and advisory services to 20 retired officers/personnel of the respondent No.2 - Company or of National Thermal Power Corporation (NTPC) or of Bharat Heavy Electricals Limited Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 2 WP-11677-2024 (BHEL) or power utilities and undertakings of other States having work experience in the capacity of Superintending Engineer or equivalent and above is invited. It is contended that though the advertisement is captioned as advertisement for services of experts, but as per Clause 2.2 of the advertisement, the scope of work is not restricted to experts, but extended to expert as well as advisory as well as consultancy services. It is contended that the work which is to be taken from the said experts/consultants is not a work of special and temporary requirement of expertise or consultancy, but is the regular work for duties which are rendered by the Superintending Engineers and the Chief Engineers in power stations and transmission stations. By placing reliance on the last portion of paragraph 2 of advertisement, it is contended that the following has been provided under the said paragraph 2 :-
"MPPGCL is engaging experts who are required to provide services for COH, AOH, R&M works/ Regular monitoring/ Efficiency enhancement / Outage analysis for reduction of outages/ Chemical and Ash Utilisation/Environment/Fuel Management/Material Management etc. at all- Thermal Power Stations. The expert at Hydel Power Stations of MPPGCL are required to provide services for regular monitoring/ Outage analysis for reduction of outages/ COH, AOH, R&M works/ Material Management etc. The services of experts will be required to be provided at TPS/ HPS of MPPGCL as and where required and directed.
3 . SCOPE OF WORK: The detailed - indicative scope of services are as under:
A . O&M ACTIVITIES OF THERMAL POWER PLANTS.
The associated Experts under different O&M activities of Thermal Power Plants shall mainly i n c l u d e monitoring, supervision-execution of activities associated with Boiler/ Turbine / Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 3 WP-11677-2024 Electrical / Testing / C&I Maintenance of Power Stations for Preventive/ Breakdown/ Opportunity Based/ Condition Based Maintenance and Overhauling (AOH/COH). The scope includes trouble shooting, analysis of outages(partial and total) and actions for reduction of outages and inefficiency, DSM/availability analysis & ways to optimise the same, and support the activities to be done in safe manner and to enable efficient operation. The activities shall be taken upby the expert as assigned. It also includes consumption optimisation analysis, quality improvement drive etc."
(empasis supplied)
3. By placing reliance on the said provisions in the advertisement, it is contended that the experts are required to provide services for regular monitoring, efficiency enhancement, outage analysis, reduction of outages, fuel management and material management at all thermal power stations. They are also expected to provide services on the similar lines in hydel power stations of the respondent No.2 - Company. By further placing reliance on Clause 3 of the said advertisement Annexure P-9, it is contended that the scope is not limited to consultancy for specific work, which could have arisen in the department on any temporary basis, but it also extends to O & M activities, i.e. operation and maintenance activities, which are the perpetual and regular activities to be carried out in power stations. Thus, it is contended that in the name of engaging experts or consultants the Department in fact wants to take work of Chief Engineer or Superintending Engineer from such retired persons, who have retired up to March, 2024.
4. Learned counsel for the petitioner further submits that the promotional channel is duly provided as per the Circular of erstwhile M.P. State Electricity Board vide Annexure P-4, whereby a promotional channel has been laid down and Assistant Engineer is eligible to be promoted to Executive Engineer who in turn has to be promoted to Superintendent Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 4 WP-11677-2024 Engineer, Additional Chief Engineer and Chief Engineer. It is contended that the companies are wilfully keeping these posts vacant and not carrying out promotions on the said posts, but by adopting a via media and as a bypass to regular promotions the company is now taking officers on senior levels of Superintendent Engineer/Chief Engineer in the name of experts and consultants. By placing reliance on the chart Annexure P-5, it is contended that various positions on senior level are vacant. It is contended that on various posts, there are a number of vacancies and the department is not carrying out regular promotions. It is also contended that though some current charge has been given to officers holding lower posts, but still various posts in senior cadres like Chief Engineer (Generation), Chief Engineer (Civil), Superintending Engineer (Generation and Civil), etc. are wilfully being kept vacant and now the work against the said posts will be taken from the blue-eyed boys of the management in the name of engagement as consultant. It is contended that the work to be taken from the consultants is of perpetual nature and is not a temporary work, which may have arisen in the department or and is not work of such a nature for which the existing manpower of the department is not equipped so that consultants or experts are to be taken for temporary basis.
5. It is the case of the petitioner that the decision could be taken to engage experts only if the regular promotional posts at senior level were filled up and despite filling up such senior level posts it was found by the department that still there is need for experts and consultants. It is contended that on one hand the department is keeping the senior promotional post vacant by not considering the employees holding junior posts and on the other hand, the department is taking retired officers as consultants and experts just to hamper the chances of promotion of the regular employees working on junior level posts. It is further contended that experts and consultants could have been taken for a temporary purpose or unforeseen situation arising in the department for which some external expert could have been found by the department to be better equipped to handle the situation on temporary basis. It is contended that routine work of the department has to be Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 5 WP-11677-2024 carried out by the routine workforce of the department and not from the retired officers, who are taken to perform the routine work of the department in the name of consultants and experts.
6. By placing reliance on various judgments of this Court and of the Supreme Court, it is contended that despite the matter of reservation and promotion being pending before the Supreme Court, but indeed there is no actual bar in the promotion, but still the State Government has restrained the company from carrying out promotions by issuing the orders Annexure R-1 in the year 2016 and again Annexure R-4 in the year 2024, though the Supreme Court itself subsequently in State of M.P. Vs. Vinay Kumar Babele (S.L.P. (Civil) No. 5868/2023) clarified the position that there is as such no stay on promotions and the departments can very well carry out promotion exercise subject to outcome of other pending matters before the Supreme Court.
7. By placing reliance on Annexure P-12 dated 06.10.2012, which are the instructions of General Administration Department, it is contended that consultants and experts can be taken only for such works and functions and duties for which posts are not sanctioned, i.e. experts can be engaged for some special work. By placing reliance on GAD Circular dated 24.05.2022 Annexure P-13, it is contended that the maximum permissible payment that can be made to consultants and experts taken against Class-I posts is based 1.25 lakhs per month, but the consultants and experts that are being taken in terms of Annexure P-9 would be paid on the basis of pay minus pension, which would be much more than the maximum permissible limit of Rs.1.25 lakhs per month.
8. Learned counsel for the petitioners further placed reliance on note sheet Annexure P-6 specially page 100 thereof in contending that the scope of work is to assist in all technical matters in all civil engineering works in various thermal, hydel, solar and other power projects, monitor technical issues related to civil engineering works of the company, provide advice on various technical matters related to civil works at all power stations, assist Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 6 WP-11677-2024 the company in preparation of draft reports relating to all technical matters etc., which are all the routine functions of officers of the rank of Chief Engineer and Superintendent Engineer.
9. It was further contended that the departmental minister has sent a letter placed on record as Annexure P-8 hereby the departmental minister has instructed the company that the procedure for engagement of experts/consultants be kept in abeyance. Despite that the company had gone ahead and issued the notice Annexure P-9.
10. By placing reliance on judgment of the Supreme Court in the case of Shrilekha Vidyarthi (Kumari) v. State of U.P. , (1991) 1 SCC 212 : AIR 1991 SC 537, especially para 35 and 36 thereof, it is contended that the Court can always step in if the policy of the State is arbitrary and irrational.
11. Learned counsel for the petitioner further refers to the reply filed by the respondents specially para 5.8 thereof wherein it is mentioned as under:-
"With regard to this para it is submitted that due to ban on promotion, the Company is not in a position to take any steps for promotion. As a result, the Company is facing serious problems in implementing various projects for establishments of power plants and in operation and maintenance for generation of electricity. The process of engagement of experts on any contract, has been initiated which is not against any sanctioned post of regular employees of MPPGCL."
12. It is contended that the shortage of manpower cannot be made a ground to appoint external experts and consultants. Shortage of manpower can be a reason to carry out promotion, but it is not a valid reason to appoint external experts.
13. Per contra, learned Advocate General appearing for respondent Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 7 WP-11677-2024 Nos.2 to 4 as well as Shri Anoop Nair - Senior Advocate stated that the petition at the instance of petitioner No.1 being association cannot be entertained, because no resolutation has been placed on record that all members of the association have resolved that they would be bound by the whatever decision, which will be passed in the present petition.
14. It is further contended that the resolution that is placed on record is by the elected office bearers and not by the general body comprising of all the members. Even the situation of the elected office bearers has been disputed by some other members of the association and in this regard the letter Annexure R-5 sent by one of the members has been placed on record. In this regard reliance is placed on judgment of Division Bench of this Court in the case of Swakshtagrahi Sangh, Janpad Panchayat Niwas v. Union of India, (2022) 2 MPLJ 526 and Prabhat v. Barkatulla University, ILR 2011 MP 1692.
15. Learned counsel for the respondent further submits that the petitioner Nos.2 to 6, even if their petition is entertained in private capacity are holding a much junior post of Assistant Engineer in substantive capacity and they are not contenders to hold the post of Chief Engineer and Superintending Engineer, even on current charge basis and therefore, they have no locus in the present matter in their personal capacity.
16. It is further argued by learned Advocate General that the Circular Annexure P-12 and P-13 issued by the State are issued for the department of the State and they will not apply automatically to the public sector undertaking of the State, because the purpose of creating public sector undertaking is in view of special needs of organization structure of these undertakings and unless the Circulars of the State are adopted by these undertakings, they will not apply automatically and the Circular Annexure P- 12 and P-13 have never been adopted by the respondent No.2.
17. Learned Advocate General further submits that the basic purpose of issuing the impugned expression of interest is to take services of the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 8 WP-11677-2024 experts at power stations as and when and where required and directed and thus, they are not being posted against any regular sanctioned posts of Chief Engineer or Superintendent Engineer. It is further contended that the note has been provided at page 123, which is common for all functions, that the engaged personnel shall provide any other advisory monitoring and support services required for efficient function of power stations as and when and where required, assigned or directed. Thus, it is not a posting against any post of Chief Engineer or Superintendent Engineer. Learned Advocate General further submits that the contract is terminable and it is not an employment, but it is only a contract for specified period with a specific removal clause.
18. By placing reliance on para 5.13 of the reply, it is contended that after letter of Minister relied by the petitioner, the company and Energy Department of the State had taken up the matter and after examining the issue, go ahead was given and a note was issued in the matter by the Chairman. It is contended that the Minister had only directed to examine the matter and till examination of the matter takes place, advised the Department/Company not to proceed ahead. After the matter was re- examined, the company gave a go ahead to the matter.
19. Learned Advocate General further submits that the State has restrained promotions vide letters Annexure R-1 and R-4, which are not put to challenge in the present petition and therefore, in absence of challenging the said letters no relief can be granted to the petitioners.
20. It is further argued that as per Circular of the erstwhile MPSEB the petitioners may be eligible for consideration of promotion only and not for promotion as such, because promotion is not vested right and only consideration for promotion may be such a right. By placing reliance on para 5.22 of the reply, it is further reiterated that the engagement of personnel is not against any regular vacancy, but it is only to add to learning of junior officers and such engagement will not cut down the future prospects and learning experience of employees in any manner.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AMNEUTRAL CITATION NO. 2024:MPHC-JBP:60647 9 WP-11677-2024
21. Learned Advocate General further submits that all officers in the feeder cadre cannot be given promotion or given current charge of promotional posts, because certain critical works are to be performed by the Assistant Engineers and Executive Engineers and all Assistant Engineers and Executive Engineers cannot be promoted to the senior posts, because in that event the work on the feeder posts, which is also of critical, important and sensitive nature would be affected. Thus, the Department cannot put every Assistant Engineer in the charge of Executive Engineer, because in that event the personnel would not be available in the post of Assistant Engineer and Executive Engineers to man the routine functions of power houses and generating stations. Thus, it is contended that the decision to give current charge to the persons holding feeder cadre posts and to grant regular promotion to such posts depends on the administrative requirement of the organization and the company cannot be forced to promote or give current charge all the employees and officers in feeder cadre. It is also argued that the impugned notice Annexure P-9 is the policy matter of the company and the scope of interference against the policy matter is very limited. Reliance is placed on the judgements of the Supreme Court in the cases of State of Punjab and others Vs. Ram Lubhaya Bagga and others (1998) 4 SCC 117, State of Orissa Vs. Bihari Charan Khuntia reported in 2003 (10) SCC 144 and Union of India Vs. Pushpa Rani, reported in 2008 (9) SCC 242 . Reliance was also placed on the judgement of Single Bench on this Court passed recently in WP No. 20865/2024, Prantiya Shasakiya Mahavidyalayeen Pradhyapak Sangh Vs. State of Madhya Pradesh & Ors.
22. Heard learned counsel for the parties.
23. First the objection is to maintainability of the petition is taken up. The petitioners have placed on record a resolution as Annexure P/2 which authorizes filing of the present petition. It is evident that this resolution is passed by only 9 members of the Committee of the petitioner No.1 society, though its membership as per the list Annexure P-3 is stated to be more than Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 10 WP-11677-2024 1550. The resolution does not mention that all the members have agreed to be bound by the decision which will be taken in the present petition. Neither the resolution annexure P-2 states so, and not even the bye-laws of the society/association have been placed on record to authorize the Committee to enter into litigation binding all the members. In absence of any enabling provision in the bye-laws, the resolution ought to have been signed by all the members constituting General Body of the association, that has not been done. In Swakshtagrahi Sangh, Janpad Panchayat Niwas v. Union of India, (2022) 2 MPLJ 526, the Division Bench held as under :-
"8. Therefore, to bind the members by the decision in a litigation brought before the Court on behalf of such members by any Association, it is necessary that such Association must clearly resolve that who authorized the Association to file such litigation. The resolution should also mention that the members will abide any decision rendered in such litigation. In the present case, a perusal of the resolution clearly shows that the same does not fulfil the stipulated requirement. Hence, the learned Single Judge has not committed any error while rejecting the writ petition."
Similarly, in Prabhat v. Barkatulla University, ILR 2011 MP 1692 , it was held by the Division Bench as under :-
"2. A writ petition for enforcement of the rights of its members, as distinguished from the rights of the Association as a body, can be filed by the Association acting through its office bearer or member, whether the Association is registered or unregistered, incorporated or not, only when the Association can satisfy the Court that if an adverse decision is given in that petition all the members of that Association or "Body of Individuals" will be bound by the decision. The reason is, that otherwise, immediately after adverse decision any other member of that Association may come before the Court in an independent writ petition, saying that he has not Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647
11 WP-11677-2024 been heard and he had not authorized such Association or office-bearer or member to represent him in the litigation.
3. Therefore firstly the members of the Association must be clearly determinate and identifiable; and secondly either there should be Rules of such Association, or a legally binding special resolution of its general body for such representation in the litigation, so as to bind the members by the decision in such litigation."
Moreover, in the present case, nothing has been placed on record whether the petitioner No.1 is recognized by the respondents as a representative Union or recognized association to enter into correspondence to take up the grievances of its members. In the absence of any recognition by the employer, coupled with absence of proper resolution of the association as discussed above, the present petition at instance of the petitioner No.1 is held to be not maintainable. Thus, this petition is entertained only at the instance of petitioners No. 2 to 6 who are before this Court in their private capacity.
24. An objection was raised by the respondents that the petitioners No. 2 to 6 are holding the substantive posts of Assistant Engineers, and even the assertion in the petition is that a via-media is being adopted to take retired officers to perform the duties of Superintending and Chief Engineers, which the petitioners are neither holding at present, nor are in immediate feeder posts, as they are not even substantively holding the posts of Executive Engineer, which is the feeder post for Superintending Engineer.
25. In respect of above, it is trite to note here that the respondents have taken plea in the present case that every employee cannot be given Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 12 WP-11677-2024 promotion and current charge of higher posts, and that filling all the posts of Executive Engineer and Superintending Engineer is difficult, as some engineers have to be kept at feeder level for basic operations, and in the entire company at present as against 5976 sanctioned posts, only 3537 employees are working. The following has been pleaded in para 5 of Addditional return by the respondents No. 2 to 4 :-
"......... There is shortage of higher level due to retirements but filling all the posts of EE/SE is difficult as some engineers have to be kept at feeder level for basic operations. At present against total sanctioned post 5976 only 3537 employees are working."
The inability to fill the posts of Executive Engineers and Superintending Engineers by promotion or by giving current charge directly affects the chances of promotion of the Assistant Engineers who are on the feeder post to the promotional post of Executive Engineer. Therefore, it cannot be said that the petitioners holding the substantive posts of Assistant Engineers have no valid cause of action. The petition is, therefore, held maintainable at the instance of the petitioners No. 2 to 6.
26. On merits of the matter, though the respondents have not left any stone unturned to deny that the impugned process has been initiated to employ persons on the vacant posts of Superintending and Chief Engineers, but there is ample material on record to indicate that the impugned process has been initiated to tide over the shortage of manpower at senior positions (Superintending Engineer and Chief Engineer). Though the parties are at loggerheads by relying on differing charts Annexure P-5 and Annexure R-2 Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 13 WP-11677-2024 to submit that what is the extent of actual vacancy, but it is undisputed that there is a huge vacancy on the posts of Superintending and Chief Engineers. Paragraph-2 of the impugned advertisement as quoted in para-2 of this order above, makes it clear that the advertisement is not for any temporary or unanticipated specialized or consultancy work, which was not in the scope of routine work of the Company, for which specialists or consultants are being hired. Rather, it is the routine work that is undertaken by Superintending and Chief Engineers in power generating stations and their ancillary establishments like transmission facilities, load dispatch centres, etc. The aforesaid para-2 makes it evident that MPPGCL is engaging personnel for Regular monitoring, Efficiency enhancement, reduction of outages, Chemical and Ash Utilisation, Environment/Fuel/Material Management etc. at all Thermal Power Stations and Hydel stations. It is also provided that the Experts will provide Operation and Maintenance activities of Thermal Power Plants including monitoring, supervision-execution of activities associated with Boiler/ Turbine / Electrical / Testing / C&I Maintenance of Power Stations for Preventive/ Breakdown/ Opportunity Based/ Condition Based Maintenance and Overhauling (AOH/COH). The scope includes trouble shooting, analysis of outages (partial and total) and actions for reduction of outages and inefficiency, DSM/availability analysis & ways to optimise the same, and support the activities to be done in safe manner and to enable efficient operation.
27. At the time of hearing, the counsel for the respondents were unable to explain that which of the above works is such specialised work that Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 14 WP-11677-2024 is not routinely performed in power generating stations. All the aforesaid works are routine work in power generating stations which is itself by very nature, specialized in nature involving aforesaid activities, then how these tasks and duties to be performed routinely can be said to be the works to be performed by consultants and experts, and not by regular officers of the Company.
28. Moreover, the pleadings of the respondents also duly lift the veil and establish that these positions are being advertised only because at present the Company is unable to carry out promotions due to reservation in promotion issue pending before the Supreme Court and therefore, senior positions are vacant. It has been pleaded as well as orally argued that there is huge vacancy in the Company, and every feeder post officer cannot be promoted or given to officiate on temporary basis, on promotional post as the basic works in feeder posts shall suffer. The pleading made in para 5.8 of the reply are as under :-
"With regard to this para it is submitted that due to ban on promotion, the Company is not in a position to take any steps for promotion. As a result, the Company is facing serious problems in implementing various projects for establishments of power plants and in operation and maintenance for generation of electricity. The process of engagement of experts on any contract, has been initiated which is not against any sanctioned post of regular employees of MPPGCL."Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM
NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 15 WP-11677-2024 Most importantly, in para 5.11 of the return, it has been stated as under :-
"With regard to this para it is submitted that MPPGCL is facing acute shortage of expert manpower for supervision and monitoring of activities. Presently, many of these activities are being done by giving current charge of higher post to the eligible engineers to the extent possible. However, MPPGCL is not in condition to give current charge of higher posts to all the eligible engineers at lower level. At functional level engineers there is necessity of Assistant Engineers and Executive Engineers also. To clarify, it is to submit that some posts of Assistant Engineers, such as Control Panel operation in power plants, site work of maintenance within a division etc. have to be necessarily be done by the Assistant Engineers only. For administrative reasons also, an Executive Engineer cannot be placed under another Executive Engineers. Therefore, current charge to all the AEs is not feasible."
In paragraph-5 of the Additional Return, it has been stated as under
:-
"......... There is shortage of higher level due to retirements but filling all the posts of EE/SE is difficult as some engineers have to be kept at feeder level for basic operations. At present against total sanctioned post 5976 only 3537 employees are working."
29. The pleadings duly establish that officers in the feeder posts are available, but they are not being promoted due to promotion reservation issue Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 16 WP-11677-2024 pending before the Supreme Court, and not given even officiating charge because they need officers on feeder levels to perform basic operations. These pleadings also make it clear that the persons being engaged are to man the duties that were meant to be manned by Superintending and Chief Engineers but there is shortage of officers at that level.
30. The aforesaid stand taken by the respondents cannot be said to be valid. Though promotion is not a vested right, but once the promotional positions are vacant and there is need for work on those positions, then officers on the feeder posts have a legitimate expectation to be considered for promotion either on substantive or on officiating basis, to man such promotional positions.
31. The action of the respondents to take personnel on contract basis as "Experts" could have been valid if the promotional positions had been filled up either on substantive basis or on officiating or on current charge basis (even if there is legal impediment on substantive promotions). If despite such filling up of positions, any expertise tasks were required to be carried out by external experts, the action of the respondents could have been valid. The respondents have failed to come out with a single instance in their detauled reply that they require any specific expertise that is not possessed by their officers, for which they require to engage "experts".
32. A requirement of officers at feeder level can be a valid ground to conduct regular recruitment on these feeder positions, rather than to force employees on feeder positions to remain stagnated and give duties of senior Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 17 WP-11677-2024 positions by engaging external personnel in the name of engaging "experts". The respondents are attempting to do something indirectly that could not be done directly. In para-17 of the Additional reply, it has been admitted by the respondents that the shortage of engineers at recruitment level (i.e. Assistant Engineers) is 389 against 844 sanctioned whereas at promotional posts Executive Engineers to Executive Directors, it is 224 against sanction of 471. Therefore, merely because 389 posts of Assistant Engineers are lying vacant, this cannot be a valid ground to stagnate the available Assistant Engineers and all other officers in the name of requirement of work at feeder positions, and deny them even current duty charge or officiating charge even though 224 posts from Executive Engineer to Executive Directors are lying vacant. As and when regular promotions are opened up, the respondents would consider these Assistant Engineers and Executive Engineers and Superintending Engineers for promotion to the posts of Executive Engineers, Superintending Engineers and Chief Engineers. They would not bring any officers on feeder positions from outside the cadre.
33. This Court refrains for commenting on the issue whether at present substantive promotions can be made or not, nor comments on the effect of pendency of issue of reservation in promotion before the Supreme Court. This is not required to be decided in this petition because even if substantive promotion cannot be made, then officiating charge of promotional posts can always be given to feeder cadre employees, because in any event, as and when substantive promotion exercise is taken up, it will be from amongst the feeder cadre officers only. It can never be a valid excuse to Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 18 WP-11677-2024 bring in external personnel to man these regular senior positions.
34. It was vehemently argued that it is the policy of the respondents that how they will bring personnel to man their positions and discharge duties, and that it being policy matter, the Court should not venture therein.
35. It is well settled that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court can always consider whether the policy is arbitrary or violative of law. In the present case, this Court has already reached to a conclusion that the policy adopted by the respondents is arbitrary and cannot be therefore, given the shelter of being outside purview of judicial review being policy matter. In the case of Jacob Puliyel Vs. Union of India and Others, reported in 2023 SCC Online SC 533, it has been held as under :-
23. There is no doubt that this Court has held in more than one judgment that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since decisions on policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 19 WP-11677-2024 the correctness of a policy decision. However, this does not mean that courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. In Delhi Development Authority (supra), this Court held that an executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty-gritty of the policy, or substitute one by the other but it will not be correct to contend that the court shall lay its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review. It was further held therein that the policy decision is subject to judicial review on the following grounds:
a) if it is unconstitutional;
b) if it is dehors the provisions of the Act and the regulations;
c) if the delegatee has acted beyond its power of delegation;
d) if the executive policy is contrary to the statutory or a larger policy.
In Avishek Goenka v. Union of India , (2012) 5 SCC 275, the Supreme Court has held as under :-
22. We have clearly stated that it is not for this Court to examine the merit or otherwise of such policy and regulatory matters which have been determined by expert bodies having possessing requisite technical know-how and are statutory in nature. However, the Court would step in and direct the technical bodies to consider the matter in accordance with law, while ensuring that public interest is safeguarded and arbitrary decisions do not prevail.
In Arun Kumar Agrawal v. Union of India, (2013) 7 SCC 1 , the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 20 WP-11677-2024 Supreme Court held as under:-
"41. ... This Court sitting in the jurisdiction cannot sit in judgment over the commercial or business decision taken by parties to the agreement, after evaluating and assessing its monetary and financial implications, unless the decision is in clear violation of any statutory provisions or perverse or taken for extraneous considerations or improper motives. States and its instrumentalities can enter into various contracts which may involve complex economic factors. State or the State undertaking being a party to a contract, have to make various decisions which they deem just and proper. There is always an element of risk in such decisions, ultimately it may turn out to be a correct decision or a wrong one. But if the decision is taken bona fide and in public interest, the mere fact that decision has ultimately proved to be wrong, that itself is not a ground to hold that the decision was mala fide or taken with ulterior motives."
In State of Punjab and others Vs. Ram Lubhaya Bagga and others (1998) 4 SCC 117 , the Supreme Court has held that the Court can consider whether the policy is arbitrary or violative of law. It was held as under :-
"25. .......... so far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law...."
It is settled that in some limited cases, the Courts can look to the legality of a decision which is being defended in the garb of it being a policy decision.
36. It is not at all in dispute that the respondent Company has adopted the M.P. Public Service Promotion Rules 2002 that duly provide for consideration for promotion in the manner laid down in detail in the said Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 21 WP-11677-2024 rules. In fact, the case has been defended by the respondents on the very ground that the reservation provisions in the said rules being subject matter of a case pending before the Supreme Court, regular promotions are not being made. The notification dated 29.5.1990 (Annexure P-4) issued by erstwhile M.P. Electricity Board clearly establishes a promotional channel from Assistant to Executive, Superintending and Chief Engineer. The Promotion Rules of 2002 give a right to be considered for promotion in the following manner as per Rule 6 (4) and 7 (4) :-
6. Promotion-on the basis of seniority subject to fitness:-
(4) The meeting of the Departmental Promotion Committee shall be held every year. It shall consider the suitability of the public servants for promotion separately with reference to the vacancies of each year starting with the earliest year onwards. The Departmental Promotion Committee shall consider the suitability of the public servants for promotion to fill up the unfilled vacancies of the earlier year or years separately and prepare the select list for the relevant year accordingly. Thereafter, the Departmental Promotion Committee shall consider the suitability of the public servants for promotion to fill up the existing and anticipated vacancies of the current year.
7. Promotion on the basis of merit-cum-seniority:-
(5) The meeting of the Departmental Promotion/Screening Committee shall be held every year. It shall consider the suitability of the public Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 22 WP-11677-2024 servant for promotion separately with reference to the vacancies of each previous year starting with the earliest year onwards. The Departmental Promotion Committee/Screening Committee shall consider, the suitability of the public servants for promotion to fill up the unfilled vacancies of the-earlier year or years separately and prepare the select list for the relevant year accordingly. Thereafter the Departmental Promotion Committee/Screening Committee shall consider the suitability of the public servants for promotion to fill up the existing and anticipated vacancies of the current-year.
Any other mode adopted to fill up or for manning the promotional posts would certainly be violative of the statutory provisions of the said Rules and the respondents cannot escape by simply stating that it is their policy matter. Once the promotion rules apply, and promotional posts in the cadre are vacant, a person in the feeder cadre has a legitimate expectation to get considered for promotion or for considered to get officiating charge of that higher post when substantive promotions are not being carried out without such consideration being made on existing officers, bringing manpower from exterior sources cannot be said to be legal. Only if a need survived despite considering existing officers, then such a mode could have been valid. In Sivanandan C.T. v. High Court of Kerala, (2024) 3 SCC 799 , a Constitution Bench of the Supreme Court recently held as under :-
44. In a constitutional system rooted in the rule of law, the discretion available with public authorities is confined within clearly defined limits. The primary principle underpinning the concept of rule of law is Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647
23 WP-11677-2024 consistency and predictability in decision-making. A decision of a public authority taken without any basis in principle or rule is unpredictable and is, therefore, arbitrary and antithetical to the rule of law. [ S.G. Jaisinghani v. Union of India, 1967 SCC OnLine SC 6] The rule of law promotes fairness by stabilising the expectations of citizens from public authorities. This was also considered in a recent decision of this Court i n SEBI v. Sunil Krishna Khaitan [SEBI v. Sunil Krishna Khaitan, (2023) 2 SCC 643] , wherein it was observed that regularity and predictability are hallmarks of good regulation and governance. [SEBI v. Sunil Krishna Khaitan, (2023) 2 SCC 643] This Court held that certainty and consistency are important facets of fairness in action and non-arbitrariness : (Sunil Krishna Khaitan case [SEBI v. Sunil Krishna Khaitan, (2023) 2 SCC 643] , SCC pp. 678-79, para 59) "59. ... Any good regulatory system must promote and adhere to principle of certainty and consistency, providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. [Union of India v. Raghubir Singh, (1989) 2 SCC 754. Also see, The Nature of the Judicial Process, Benjamin N. Cardozo, p.
33:"I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly be some consideration of history or custom or policy or justice. Lacking such a reason, I must be logical just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another. "(emphasis supplied)] ... This does not mean that the regulator/authorities cannot deviate from the past practice, albeit any such deviation or change must be predicated on greater public interest or harm. This is the mandate of Article 14 of the Constitution of India which requires fairness in action by the State, and non- arbitrariness in essence and substance. Therefore, Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 24 WP-11677-2024 to examine the question of inconsistency, the analysis is to ascertain the need and functional value of the change, as consistency is a matter of operational effectiveness."
45. The underlying basis for the application of the doctrine of legitimate expectation has expanded and evolved to include the principles of good administration. Since citizens repose their trust in the State, the actions and policies of the State give rise to legitimate expectations that the State will adhere to its assurance or past practice by acting in a consistent, transparent, and predictable manner. The principles of good administration require that the decisions of public authorities must withstand the test of consistency, transparency, and predictability to avoid being regarded as arbitrary and therefore violative of Article 14.
46. From the above discussion, it is evident that the doctrine of substantive legitimate expectation is entrenched in Indian administrative law subject to the limitations on its applicability in given factual situations. The development of Indian jurisprudence is keeping in line with the developments in the common law. The doctrine of substantive legitimate expectation can be successfully invoked by individuals to claim substantive benefits or entitlements based on an existing promise or practice of a public authority. However, it is important to clarify that the doctrine of legitimate expectation cannot serve as an independent basis for judicial review of decisions taken by public authorities. Such a limitation is now well recognised in Indian jurisprudence considering the fact that a legitimate expectation is not a legal right. [Union of India v. Hindustan Development Corpn., (1993) 3 SCC 499; Bannari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625; Monnet Ispat & Energy Ltd. v. Union of India, (2012) 11 SCC 1; Union of India v. P.K. Choudhary, (2016) 4 SCC 236 : (2016) 1 SCC (L&S) 640; State of Jharkhand v. Brahmputra Metallics Ltd. , (2023) 10 SCC 634.] It is merely an expectation to avail a benefit or relief based on an existing promise or Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60647 25 WP-11677-2024 practice. Although the decision by a public authority to deny legitimate expectation may be termed as arbitrary, unfair, or abuse of power, the validity of the decision itself can only be questioned on established principles of equality and non-arbitrariness under Article 14. In a nutshell, an individual who claims a benefit or entitlement based on the doctrine of legitimate expectation has to establish : (i) the legitimacy of the expectation; and (ii) that the denial of the legitimate expectation led to the violation of Article 14.
37. In view of the foregoing, the present petition deserves to be and is hereby allowed. The impugned notice Annexure P-9 and the process initiated thereby stands quashed.
(VIVEK JAIN) JUDGE rj Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 12/13/2024 11:28:04 AM