Madhya Pradesh High Court
Y.P.Rai vs M.P.State Electricity Board on 20 August, 2013
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.15515/2006
Y.P. Rai
Vs.
Madhya Pradesh State Electricity Board & others
____________________________________________________________
Present : Hon'ble Shri Justice K.K. Trivedi
____________________________________________________________
Shri K.N. Pethia, learned Counsel for the petitioner.
Shri Anoop Nair, learned Counsel for respondents No.1 and 2.
____________________________________________________________
O R D E R
(20/08/2013) This petition under Article 226 of the Constitution of India is directed against the order dated 27.12.2004 by which the persons said to be junior to the petitioner, have been promoted on the post of Additional Chief Engineer (T&D), contending inter alia that the petitioner was denied the benefit of promotion only because the vacancies, which occurred on the aforesaid post before coming into force of the amendment made in the Regulations prescribing consideration for promotion, were filled in by considering the cases in terms of amended Regulations. It is contended that the facts relating to availability of the vacancies was specifically pleaded, brought to the notice of the authorities but the same was not taken into consideration. The petitioner though was subsequently promoted but was denied the promotion at the relevant time only because a change of criteria as prescribed in the amended provisions of the regulations was made applicable in case of the 2 petitioner and respondents No.3 to 24. All those juniors have been promoted earlier than the petitioner and because of that reason, the petitioner has been denied the benefit of consideration for promotion in the next higher cadre. It is contended that such an act of the respondents is per se illegal in view of the law laid-down by the Apex Court in various cases and, therefore, the order impugned is bad in law. By way of amendment in the writ petition it is contended that the vacancies, according to the own showing of respondents No.1 and 2, were available prior to coming into force of amendment in the regulations and, therefore, the same were to be filled in by unamended provision and not under the amended provisions. Had rightful thing been done, the petitioner would have been promoted prior to the promotion of aforesaid respondents No.3 to 24 and would have further been granted an opportunity for being considered for promotion to next higher cadre, which has been denied to the petitioner. On the basis of these pleadings, the petitioner has claimed the following reliefs :
"(i) A writ in the nature of certiorari may please be issued for quashing of the impugned notification dated 18.05.2004 (Annexure P-2) issued by the respondents No.1 and 2;
(ii) A writ in the nature of mandamus may please be issued commanding the respondents No.1 and 2 to arrange a review DPC for consideration of the petitioner's candidature for his promotion to the post of Additional Chief Engineer with retrospective effect from 31.03.2003 based on eligibility criteria prior to issuance of impugned notification dated 18.5.2004 (Annexure P-2) and to further promote him on the higher posts of Chief Engineer and Executive Director on the earlier criteria;
(iii) The respondents No.1 & 2 may please be further directed to extend all the ancillary benefits in the arrears of salary; seniority, etc. with a further direction to pay arrears of salary with a reasonable interest within a stipulated period of four months with a further direction 3 that in the event the arrears are not paid within the stipulated period the interest pay be recovered from the erring officers.
(iv) Any other relief to which this Hon'ble Court finds the petitioner entitled to be also granted.
(v) Costs of the petition."
2. Though notices of this writ petition were issued to the respondents, only the respondents No.1 and 2 have contested the matter. Since the respondents No.3 to 24 were the persons who were going to be affected in case the relief claimed is granted, it was necessary for them to oppose the claim of the petitioner but nothing has been done in that respect. However, the fact remains that many of the respondents and petitioner himself has retired from service and, therefore, it would not be necessary to ensure service of the notice of this writ petition on the other respondents.
3. While filing the return, respondents No.1 and 2 have categorically contended that the claim of the petitioner was rightly considered in terms of the Regulations, which were in vogue. Since the consideration was to be done in the criteria of merit-cum-seniority, the said criteria was rightly applied and the petitioner was not found meritorious enough to be put in the select list for promotion on the post of Additional Chief Engineer. It is contended that since the right to be considered for promotion is a fundamental right and the said right has been granted to the petitioner in appropriate manner, his claim was rightly considered and he was denied promotion at the relevant time but after sometime since he was found fit for grant of such promotion and an order was issued in his respect on 31.10.2005, no wrong was committed by the respondents and as such the entire claim made by the petitioner is misconceived. Though the amended paras of the writ petition are replied by the respondents but they have not categorically denied 4 the allegations made in the said paras and have contended that the same is denied as the same is matter of record.
4. Heard learned Counsel for the parties at length and perused the record.
5. Even if the case of the petitioner as it is accepted and even if it is held that vacancies, which were created prior to coming into force of amendment in the regulations, rightful consideration of the petitioner was done and he was not found fit for promotion, which aspect is not seriously disputed by the petitioner. He has not shown as to how he was to be selected for promotion and as to why he has been denied such promotion except making the statement that the vacancies were available prior to coming into force of amendment in the regulations and, therefore, such vacancies were required to be filled in by following the procedure as laid-down in the unamended regulations. True it is that the law is well settled on this point as it has already been held by the Apex Court in the case of Y.V. Rangaiah and others vs. J. Sreenivasa Rao and others and State of Andhra Pradesh and another vs. J. Sreenivasa Rao and others, AIR 1983 SC 852, that the vacancies which occurred prior to the amended Regulations, would be governed by the old Regulations and not by the amended Regulations but it is to be seen if the procedure as prescribed under the unamended Regulations would have been followed whether the petitioner was to be put in select list or not, whether there could be a substantial compliance of the said provision of unamended Regulations while considering the case of the petitioner for promotion on the post of Additional Chief Engineer or not. It is not in dispute that prior to coming into force of the amendment as made in the year 2002, the Regulations were made by the respondents No.1 and 2, in exercise of powers conferred by Clause-C of Section 79 of the Electricity Supply Act, 1948, 5 known as the Madhya Pradesh Electricity Board General Service Regulations, 1952 (herein after referred to as 'Regulations'). An amendment in the said Regulations was made on 25.08.1975 which the petitioner has placed on record as Annexure P-4. The amendment made in the Regulations prescribes that method of appointment would be direct recruitment by selection or by promotion on selection from lower post to higher post in the cadre concerned. The amended provision prescribes the method of promotion and constitution of a selection committee. The procedure for selection and appointment was prescribed by amending Regulation 7 and inserting Regulation 7-A which is reproduced for ready reference :
"7-A :Procedure for selection and appointment :-
Subject to the fulfilment of the eligibility- requirements of Regulation 7, the selection of persons for direct appointment and promotion from amongst the eligible candidates shall be made by adopting the following procedure for different classes of posts :-
(i) For Class I Posts-
(a) The selection shall be made by a Selection Committee comprising of Full time Members of the Board, who may co-opt a person or persons to advise them in the said matter.
(b) The selection shall be made strictly on merit in the case of direct appointment. So also, in the case of promotion to senior Class I posts above the rank of Divisional Engineers and equivalent cadres, the selection shall be made strictly on merit. In the case of promotion to other class I posts, the selection shall be made on the basis of seniority-cum-merit.
(c) The full Board shall make appointment to class I posts or approve a panel for appointments to such posts, by a resolution, taking into consideration the recommendations of the Selection 6 Committee. However, in the meanwhile, pending such appointment or approval of a panel for appointments, the Secretary or any Officer of the Board empowered in the said behalf, with the approval of the Chairman and the Member-in-charge of the Department for which appointment has to be made, may on the basis of the recommendations of the selection Committee, appoint persons temporarily to officiate until further orders. But such appointment, in the event of the Board not approving the same, shall be terminable at any time without any prior notice."
6. A perusal of this amended provision as was inserted in the year 1975 in the Regulations makes it clear that the selection is to be made in the case of promotion to senior Class-I post above the rank of Divisional Engineer and equivalent cadre by making the application of criterion of merit-cum-seniority. In respect of other Class-I posts, it was said that selection shall be made on the basis of seniority- cum-merit. It is not disputed by the petitioner that the post of Additional Chief Engineer was a senior Class-I post as the same is in the hierarchy of the establishment of the respondents, as has been reflected in the return filed by the respondents. A Superintending Engineer is required to be promoted on the post of Additional Chief Engineer, the Additional Chief Engineer is to be promoted on the post of Chief Engineer and the Chief Engineer is to be promoted on the post of Executive Director and all these posts are treated in the higher level and are to be filled in by meritorious and skilled persons.
7. In the context of the aforesaid, if it is seen whether the consideration done in the matter of promotion of petitioner on the post of Additional Chief Engineer was incorrectly done in terms of the amended Regulations, which came into force subsequent to creation of vacancies, it has to be examined that whether there was any other reason not to 7 select the petitioner. In paragraph 5.13 of the return the respondents have very categorically contended that the organization like respondent No.1 necessarily requires meritorious employees at higher post for running the institution properly and, therefore, apart from the criteria of honesty, other factors such as skill and managerial capacity etc. are also equally important while considering the cases for promotion. The respondents have further categorically contended that the petitioner was duly considered and as he was not found fit to be included in the select panel, looking to his merit, he was not selected. Respondents have further categorically contended that the assessment was done on the basis of evaluation of the merit reflected from the Annual Confidential Reports (ACRs). This is the categorical statement made by the respondents No.1 and 2 in para 5.15 of their return that the claim of the petitioner viz-a-viz respondents No.3 to 24 was considered taking into account the ACR gradings and after assessment of merits only because the petitioner was senior to respondents No.3 to 24, he was not required to be placed above these persons in the merit list. That being so, it is the contention raised by the respondents that the petitioner though was considered but was not found fit on account of his merits, therefore, he was not promoted at the relevant time when the juniors to the petitioner, who were found more meritorious than the petitioner, were promoted.
8. Now it has to be examined whether the vacancies occurred prior to amendment made in the Regulations or not. Though it is specifically pleaded by the petitioner by amending the writ petition and stating these facts annexing certain charts but merely because the vacancies were to be filled in by adopting unamended Regulations, if there was no change in the criteria which was made applicable, in the considered opinion of this Court, no useful purpose would be served by asking the respondents to re-screen the case 8 of the petitioner in terms of the very same criteria which too was embodied in unamended Regulations, which has subsequently been added specifically in the amended Regulations.
9. In view of the aforesaid, though respondents may not be right in considering the case of the petitioner and others under the amended provisions of the Regulations but since the criteria, for such consideration for promotion as prescribed in the amended provisions of the Regulations was also available in the unamended provisions, the supersession of the petitioner cannot be said to be bad. The petitioner has only one right and that is the right to be considered for promotion. Such a right was conferred on the petitioner, he was considered, was not found fit and, therefore, it is not proper to direct the respondents to re- screen the case of the petitioner by holding a review D.P.C. In the aforesaid circumstances, no case is made out to grant any relief to the petitioner.
10. Consequently, the writ petition fails and is hereby dismissed. However, there shall be no order as to costs.
(K.K. Trivedi) Judge Skc