Himachal Pradesh High Court
H.P. State Electricity Board vs Sh. Hem Raj on 13 December, 2019
Author: Jyotsna Rewal Dua
Bench: Dharam Chand Chaudhary, Jyotsna Rewal Dua
1
HON'BLE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
LPA No.89 of 2015 alongwith
LPAs No.91, 105 and 106 of 2015
.
Reserved on: 24.09.2019.
Decided on: 13.12.2019
LPA No.89 of 2015:
H.P. State Electricity Board ....... Appellant.
Versus
Sh. Hem Raj ........Respondents.
LPA No.91 of 2015:
H.P. State Electricity Board ....... Appellant.
Versus
Sh. Dharub Pal and Others ........Respondents.
__________________________________________________________
LPA No.105 of 2015:
H.P. State Electricity Board ....... Appellant.
Versus
Sh. Nek Ram & Others .......Respondents.
LPA No.106 of 2015:
H.P. State Electricity Board ....... Appellant.
Versus
Sh. Amin Chand & Others .......Respondents.
__________________________________________________________
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2
Coram:
Hon'ble Mr. Justice Dharam Chand Chaudhary, J.
Hon'ble Ms. Justice Jyotsna Rewal Dua, J.
Whether approved for reporting?1 Yes.
.
For the appellant(s) : Mr. Tara Singh Chauhan, Advocate.
For the respondent(s) : Mr. Sanjeev Bhushan, Sr.
Advocate, with Mr. Rajesh
Kumar, Advocate.
_________________________________________________________ Jyotsna Rewal Dua, J.
H.P. State Electricity Board is in appeal against a common judgment dated 06.03.2014, passed by learned Single Judge in CWP No.3546 of 2010 and connected CWPs No.3622, 4102 & 4106 of 2010, whereby these writ petitions were allowed. Since all the LPAs involve similar questions of law and facts, therefore, the same are being taken up together for disposal.
Parties hereinafter are being referred to as they were before learned Single Judge.
2. For convenience, facts of CWP No.3622 of 2010, resulting into LPA No.89 of 2015, may be noticed hereinunder:-
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 3
Facts:
2(i). Posts of Lineman in H.P. State Electricity Board as per Recruitment and Promotion Rules were to be filled .
up 20% by direct recruitment and 80% by promotion from amongst Assistant Lineman having four years regular service in the grade. The requisite educational and other qualifications for direct recruitment was 'matric with I.T.I. certificate in Electrician/Wireman trade & those who are Matriculate and have undergone apprenticeship training of Lineman have passed the all India Trade Test in this trade.' 2(ii). H.P. State Electricity Board Employees' Union had been pressing upon Board to fill up the vacant posts meant for direct recruitment by promotion of matriculate and ITI qualified Assistant Lineman. A meeting in this regard was held on 07.07.1995 between Board's Management and representatives of H.P.S.E.B. Employees' Union. Against the demand of said Union, the following decision was taken by the Board on 09.10.1995 (Annexure RA-I):-
"It was decided that regular and ITI qualified persons would be considered against direct posts on adhoc basis. However, they would be ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 4 regularized only when posts of their quota become available in the grade they are promoted".
Thus, in terms of decision dated 09.10.1995, .
regular and ITI qualified Assistant Lineman were to be promoted as Lineman against the quota meant for direct recruitment, but with clear rider that such out of turn promotions were only on adhoc basis; the incumbents would be regularized only when posts become available in their own promotional quota. Also, as per above decision, it was to be made clear to such incumbents in their promotion orders that their regularization in higher grade, to which they would be promoted, will be considered on their turn for promotions to the concerned posts in normal course against the quota prescribed for promotions in the Recruitment and Promotion Regulations.
2(iii). In accordance with the above decision, the petitioners alongwith various other Assistant Lineman, possessing the higher qualifications were promoted as Lineman purely on adhoc basis against the quota meant for direct recruitment. Some of the promotional orders appended alongwith the record of the writ petition are ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 5 Annexures RA-II to RA-V). These promotion orders contain following stipulation:-
"The adhoc promotion of above officials will not confer upon them any right to claim .
continuance and seniority in the cadre of Lineman and their regularization in the grade of lineman will only be considered on their turn in normal course against the quota prescribed for promotion in the R&P regulations (of field technical line staff)."
Similar promotions were effected in various operation circles of respondent-Board on similar lines.
2(iv). In r 2002, the H.P. State Electricity Board Employees' Union requested the Board to regularize services of such adhoc promotee Lineman against available vacant posts of direct recruitment quota. This request was considered by the Heads of Department, who opined that services of such adhoc promotees cannot be regularized w.e.f. the date of their adhoc promotions in contravention to the earlier decision of the Board, in contravention to clear stipulations mentioned in the promotion orders of such adhoc promotees, in contravention to the principles and guidelines contained in H.P. Government letter dated 30.06.2001 adopted by the Board vide letter dated 04.10.2001 (Annexure RA-VII).::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 6
The proposal alongwith views of the Heads of Department was placed before Whole Time Members of the Board vide agenda item No.298.28 (Annexure RA-VI).
.
2(v). The Board, however, on 27.12.2002 (Annexure RA-VIII), took a decision to regularize the services of those who were promoted out of turn on adhoc basis against direct recruitment quota.
2(vi). An Original Application, bearing O.A. No.103 of 2003, was preferred by some of the Assistant Lineman, before learned erstwhile H.P. Administrative Tribunal, who were senior to the petitioners in the category of Assistant Lineman, challenging the decision of Board dated 27.12.2002, whereby the services of adhoc promotee Lineman were to be regularized. The petitioner therein had contended that:- they were senior to such adhoc promotees in the category of Assistant Lineman; such Assistant Lineman promoted out of turn as Lineman on adhoc basis against the direct recruitment quota, merely on the basis of their higher qualifications, could not be regularized as Lineman ignoring the claims of their seniors. The original application was dismissed on ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 7 18.05.2005 (Annexure P-11), with following operative observations:-
"7. Hence since the applicants are lacking in requisite essential qualification, they have no .
locus standi to file and maintain the present OA. Looking to their prayer, they want this Tribunal to tide the hands of respondent Board from taking any decision for their smooth functioning. The impugned decision is justified in view of the powers vested under Section 79(c) of the Electricity (Supply) Act, 1948. As such applicants can claim no discrimination as they are not possessing the requisite qualification. The Hon'ble Apex Court in Assam State Electricity Board vs. Gajindra Nath Pukla reported in 1997 (11) SCC 3 has held that classification on the basis of qualification is valid between ITI certificate holder and those holding diploma by undergoing ¾ years course and the High Court was not right in holding that no distinction could be made on the basis of qualification of diploma and certificate of ITI. (Constitution of India Articles 14 and 16) Assam State Engineers Service Regulation, 1973, Regulation No.2."
2(vii). Though the Board had decided to regularize the services of out of turn adhoc promoted Lineman vide Annexure RA-VIII, however, no fixed date was indicated in the said decision for regularizing the services of such incumbents. Since a large number of Assistant Lineman were promoted as Lineman on out of turn adhoc basis against direct recruitment quota on different dates in ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 8 different operating circles of the Board, therefore, to avoid any infirmity in respect of their dates of regularization, the matter was again placed before the Board to determine .
single deemed date for regularization of petitioners and others similar situated. The Whole Time Members of the Board, on 14.03.2007, approved a single deemed date, i.e. 31.03.2003, to regularize services of all adhoc Lineman vide agenda item No.346.6. The decision was accordingly conveyed to all the Chief Engineers vide Annexure RA-IX, dated 05.04.2007. The deemed date of regularization was taken as 31.03.2003, as the first batch of adhoc Lineman, was regularized by Chief Engineer (Op) Central Zone, Mandi, vide order issued on the said date.
Thus, as per decision dated 14.03.2007, all the Lineman who were promoted on adhoc basis on or prior to 27.12.2002, were regularized w.e.f. 31.03.2003.
Accordingly, the regularization orders were issued vide Annexure RA-X. 2(viii). Aggrieved against the regularization of their services w.e.f. 31.03.2003, petitioners preferred CWP No.3622 of 2010 with following prayers:-
::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 9"(i). That a writ in the nature of certiorari may very kindly be issued and the order dated 5.4.2007 Annexure P-8 may very kindly be quashed and set aside.
(ii). That a writ in the nature of mandamus may be issued directing the respondent No.1 to .
adhere to their earlier decisions as was taken vide Annexures P-2, P-3 and P-4 by further directing them to assign the seniority to the petitioners from their date of ad hoc promotions.
(iii). Further a writ in the nature of mandamus may be issued directing the respondents to adhere to their own instructions as well as law on the subject for counting the period of ad hoc service rendered by the petitioners with effect from the date initial date of appointment on ad hoc basis for the purpose of seniority with further directions to the respondents to assign the seniority to the petitioners as lineman with effect from the date initial date of appointment on ad hoc basis by placing at appropriate places in the interest of law and justice."
2(ix). The writ petition was allowed by learned Single Judge on 06.06.2014 with following directions:-
"33. Accordingly, in view of the analysis and discussions made hereinabove, all the petitions are allowed. Annexure P-8 dated 5.4.2007 and Annexure RA-VII dated 4.1.2008 in CWP No.3546/2010, Annexure RA-X in CWP No.3622/2010, Annexure RA-X in CWP No.4102/2010 and Annexure RA-VII in CWP No.4106/2010, qua the petitioners, are quashed and set aside. Petitioners shall be deemed to have been regularized with effect from the dates they were promoted on ad hoc basis to the post of Lineman with all the consequential benefits. The respondent-Board ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 10 is directed to draw fresh seniority list by counting the services rendered by the petitioners from the date of their initial promotion to the post of Lineman on ad hoc basis, within a period of eight weeks. Thereafter, petitioners shall be considered for .
promotion to the higher post on the basis of newly redrawn seniority list within a further period of eight weeks. Pending application(s), if any, also stand disposed of. No costs."
Thus, following directions were issued by learned Single Judge vide judgment dated 06.06.2014:-
(i). The decision of the Board to regularize the services of the adhoc Lineman w.e.f.
31.03.2003 was quashed and set aside.
(ii). Petitioners were to be deemed to have been regularized w.e.f. the dates of their out of turn adhoc promotions to the post of Lineman.
(iii). The respondent-Board was directed to draw fresh seniority list by counting the services rendered by the petitioners from the dates of their initial out of turn promotion to the posts of Lineman on adhoc basis.
(iv). Petitioners were to be considered for promotion to the higher posts on the basis of newly drawn seniority list.
3. Feeling aggrieved against the judgment passed by learned Single Judge, the appellant-Board has preferred the instant LPAs. We have heard Mr. Tara Singh Chauhan, learned counsel for the appellant-Board and Mr. ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 11 Sanjeev Bhushan, learned senior counsel for the respondents and also gone through the record.
Observations:
Regularization from the date of .
out of turn-adhoc promotion:
3(i). It is not in dispute that the out of turn adhoc promotions were effected against the posts meant for direct recruitment with clear stipulation that such adhoc promotions will not give right of regularization to the incumbents from the dates of initial promotions on adhoc basis. It can also be not disputed that the posts meant for direct recruitment were filled up by out of turn-adhoc promotions of Assistant Lineman on the requests so made by H.P. State Electricity Board Employees' Union. The Board succumbed to the request in view of ban on direct recruitment. The Board decided to fill up posts of Lineman meant for direct recruitment, by effecting out of turn adhoc promotions from those Assistant Lineman who were matriculate and possessed qualification of I.T.I. 3(ii). It was clearly mentioned in the promotional orders of the petitioners and all other similarly situated that such out of turn adhoc promotions will not give them any advantage in respect of regularization of their adhoc ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 12 services w.e.f. the date(s) of their initial promotions.
Regularization of their services will be only w.e.f. the date when the posts will become available in their own .
promotional quota. This was in consonance with the decision taken by the Board on 09.10.1995 (Annexure RA-I).
Even in the guidelines contained in H.P. Government letter dated 30.06.2001, as adopted by Board vide letter dated 04.10.2001 (Annexure RA-7), it was mentioned that where initial promotion is not according to Recruitment and Promotion Rules and made as a stop gap arrangement, the officiation in such posts cannot be taken into account in considering seniority.
3(iii). In (1995) Supp. 3 SCC 366, titled Madan Gopal Garg versus State of Punjab and others, Hon'ble Apex Court held as under:-
"12. Once it is held that the appointment of the appellant was in excess of the quota fixed for promotees and officers appointed by transfer, the said appointment has to be treated as an invalid appointment and it can be treated as a regular appointment only when a vacancy is available against the promotion quota against which the said appointment can be regularised. In other words, any such appointment in excess of the quota has to be pushed down to a later year when it can be ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 13 regularised as per the quote and such an appointment prior to regularisation cannot confer any right as against a person who is directly appointed within the quota prescribed for direct recruits [See : N.K. Chauhan v. State of Gujarat (1977) 1 SCR 1053 at pp. 1053 and .
1058). Since at the time of the appointment of respondent no.2, the appellant was holding the post of Controller in excess of the quota fixed for promotees, he cannot claim seniority over respondent no. 2 on the basis of such appointment and he has to make way for respondent no.2. He has, therefore, been rightly placed junior to respondent no.2 in the cadre of Controllers. In view of Rule 6(3) promotion from the post of Controller to the post of Deputy Director had to be made on the basis of seniority-cum-merit. Respondent no.2, by virtue of his being senior to the appellant in the cadre of Controllers, was entitled to be promoted as Deputy Director earlier than the appellant but he was denied such promotion in view of the earlier seniority list of January 6, 1981 wherein he was shown as junior to the appellant. But after the seniority list of March 7, 1983 wherein he is shown as senior to the appellant, respondent no. 2 is entitled to claim seniority over the appellant in the cadre of Deputy Directors also and he was rightly treated as senior to the appellant in the said cadre and on that basis he was promoted as Joint Director by order dated September 1983. We do not find any infirmity in the said order."
In (1993) 3 SCC 371, titled State of W.B. and others versus Aghore Nath Dey and others and connected matters, Hon'ble Apex Court held as under:-
"19. The constitution bench in Maharashtra Engineers' case, while dealing with Narender ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 14 Chadha, emphasised the unusual fact that the promotees in question had worked continuously for long periods of nearly fifteen to twenty years on the posts without being reverted, and then proceeded to state the principle thus (SCC p.726, para 13):
.
"We, therefore, confirm the principle of counting towards seniority the period-of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service."
20. The constitution bench having dealt with Narendra Chadha in this manner, to indicate the above principle, that decision can not be construed to apply to cases where the initial appointment was not according to rules.
22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) can not cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ,according to rules'. The corollary set out in conclusion (A), then is, that 'where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such posts cannot be taken into account for considering the seniority. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stop-gap arrangement. The case of the ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 15 writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority.
.
26. In view of the above, it is clear that the claim of the writ petitioners (respondents in all these appeals) for treating their entire period of 'service prior to 26.2.1980 as regular service for the purpose of seniority, and fixation of their seniority accordingly, is untenable. The submission of Shri Sanghi that their initial ad hoc appointment must be treated as having been made in accordance with the rules since the selection by an alternative mode, namely, by a committee of five Chief Engineers was resorted to on account of the emergency, cannot be accepted. Rule 11 of the 1959 Rules provides for appointments to be made during emergency, and lays down that such appointments during emergency can be made only 'by advertisement and interview, through the Public Service Commission, West Bengal.' Admittedly, this express requirement in Rule 11 was not followed or fulfilled subsequently, and, therefore, the initial ad hoc appointments cannot be treated to have been made according to the applicable rules. These ad hoc appointments were clearly not in accordance with the rules, and were made only as a stop-gap arrangement for fixed period, as expressly stated in the appointment order itself."
Similar is the ratio of law relied upon by Hon'ble Apex Court in (2012) 8 SCC 633, tilted State of Haryana and others versus Vijay Singh and others.
::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 16In State of Karnataka versus Uma Devi(3) (2006) 4 SCC 1, the Constitution Bench while discussing the role of the State in recruitment procedure, held that if .
rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules, for the State is meant to be a model employer. Thus, impugned direction to regularize the services of the out of turn adoc promotee Lineman w.e.f. the dates of their initial promotions, as such, is not in consonance with law.
Regularization w.e.f. 31.03.2003:
3(iv). On the request of HPSEB Employees' Union, the Board, in its wisdom vide decision dated 27.12.2002 (Annexure RA-VIII), decided to regularize the services of adhoc/out of turn promoted Lineman. However, the cadre controlling authorities regularized these incumbents from different dates. Therefore, to avoid the infirmity, which had occurred in regularization of out of turn adhoc promotees, the Board reviewed its earlier decision on 14.03.2007 and approved a single deemed date of ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 17 31.03.2003 for regularizing such services of petitioners and all other similarly situated.
3(v). The Board had decided on 27.12.2002 to .
regularize the services of out of turn adhoc promoted Lineman without indicating any particular date of regularization. This, decision was implemented in different operation circles of Board from varying dates, which resulted in variations in dates of regularization of out of turn adhoc promoted Lineman. Therefore, a uniform decision was taken by the Board to give one deemed date of regularization to such adhoc out of turn promotees.
This was to avoid infirmity in their dates of regularization, as in different operation circles the services of similarly situated incumbents were being regularized from different dates. This decision cannot be said to be illegal or irregular. The date of 31.03.2003 was taken as deemed date of regularization, as this was the date when batch of such out of turn adhoc promotee Lineman was regularized. In fact, the Board had come to the rescue of the petitioners by giving them regularization w.e.f.
31.03.2003 even though the petitioners as per the decision dated 09.10.1985 (Annexure RA-I) were entitled ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 18 for regularization of their services only when the posts were to become available in their own promotion quota.
The promotional orders of petitioners and other similarly .
situated, also contained stipulation that their adhoc promotions will not confer upon them any right to claim continuance and seniority in the cadre of Lineman and their regularization in the grade of Lineman, will only be on their turn in normal course against the quota prescribed for promotion in the Recruitment and Promotions Rules.
3(vi). The judgment dated 10.05.2005 (Annexure P-II), passed by the erstwhile H.P. Administrative Tribunal in O.A. No.103 of 2003, was in different factual situation and has no bearing in the facts of instant case vis-a-vis the dispute and the relief claimed herein. Petitioners in O.A. No.103/2003 had challenged the decision of the Board to regularize the services of out of turn adhoc promoted Lineman mainly on the ground that they (petitioners therein) as Assistant Lineman were senior to such adhoc promotee Lineman. Their original application was rejected on ground of lack of locus-standi and that it was for the Board to decide such matters. Whereas ::: Downloaded on - 14/12/2019 20:26:09 :::HCHP 19 dispute in present matter revolves around the date from which services of such adhoc, out of turn promotee Lineman were to be regularized.
.
In view of above discussion, we allow these appeals. The impugned judgment dated 06.03.2014, passed by learned Single Judge, is quashed and set aside.
With the aforesaid observations, all the appeals are disposed of, so also the pending miscellaneous application(s), if any.
(Dharam Chand Chaudhary)
Judge
(Jyotsna Rewal Dua)
December 13, 2019 Judge
(Yashwant)
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