Himachal Pradesh High Court
Tek Chand And Others vs Bhakra Beas Management Board (B.B.M.B) on 20 July, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.137 of 2014 a/w LPA Nos.
206/2014 and 32/2016.
.
Reserved on : 4.5.2018
Decided on : July 20, 2018
LPA No. 137 of 2014
Tek Chand and others .....Appellants.
Vs.
Bhakra Beas Management Board (B.B.M.B) and others r ...Respondents.
LPA No. 206 of 2014 Sher Singh and others .....Appellants.
Vs. Bhakra Beas Management Board (B.B.M.B) and others ...Respondents.
LPA No. 32 of 2016 Harish Paul and others .....Appellants.
Vs. Bhakra Beas Management Board (B.B.M.B) and others ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice The Hon'ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting? Yes.::: Downloaded on - 21/07/2018 23:01:40 :::HCHP
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LPAs No. 137/2014 & 206/2014 For the appellants : Mr. Anup Rattan, Advocate.
For the respondents : Mr. N.K. Sood, Senior Advocate, .
with Mr. Aman Sood, Advocate, for respondents No. 1 and 2.
M/s Shrawan Dogra and Dilip Sharma, Senior Advocates, with Ms. Nishi Goel, Advocate, for respondent No. 3.Names of respondents No. 4 to 6
stand already deleted.LPA No. 32 of 2016
For the appellants : Mr. Subhash Sharma, Advocate.
For the respondents : Mr. N.K. Sood, Senior Advocate, r with Mr. Aman Sood, Advocate, for respondents No. 1 and 2.
M/s Shrawan Dogra and Dilip Sharma, Senior Advocates, with Ms. Nishi Goel, Advocate, for respondent No. 3.
Mr. Anup Rattan, Advocate, for respondents No. 4 to 11.
Sanjay Karol, Acting Chief Justice These three appeals arise out of the judgment dated 26.05.2014, passed by learned Single Judge in CWP No. 4709 of 2010-E, titled as Kashmir Chand Vs. Bhakra Beas Management Board & others and are accordingly being disposed of by a common judgment.::: Downloaded on - 21/07/2018 23:01:40 :::HCHP
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2. Respondent Kashmir Chand (hereinafter referred to as 'the petitioner') filed a writ petition before this Court, i.e., CWP No. 4709 of 2010 praying for the .
following reliefs:
"(i) That the respondents may be directed to consider the petitioner for promotion to the post of Leading Fireman in accordance with R & P Rules, from due date, with all consequential benefits;
(ii) That any other relief deemed fit and proper in the facts and circumstances of the case may also be granted to the petitioner.
(iii) That the respondents may be directed to produce records pertaining r to this case for the perusal of this Hon'ble Court.
(iv) Costs of the petition may kindly be awarded to the petitioner."
3. The case of the petitioner was that he joined Bhakra Beas Management Board (hereinafter referred to as 'the Board') as a Fireman by way of direct recruitment on 09.01.1992. His qualification was Shastri, which he had done from Himachal Pradesh University in the year, 1987 and thereafter he also obtained a degree of Acharya from the same University in the year, 1989. The next promotional post from the post of Fireman was that of Leading Fireman. According to the petitioner, as per the information supplied to him under the Right to Information ::: Downloaded on - 21/07/2018 23:01:40 :::HCHP ...4...
Act, Board had informed that the Recruitment and Promotion Rules to the post of Leading Fireman category were as under:
.
Qualification Experience
Sr.
No.
i. Qualified in Sub Fire Officer course 5 years experience in fire
from National Fire Service College service.
Nagpur or equivalent degree with heavy vehicle driving licence or ii. Qualified in Fire course arranged by 7 years experience in Fire Ministry of defence of Home Affairs service.
with heavy vehicle driving licence or iii Departmental candidates without any 10 years experience in courses who show appreciable and Fire service. obtain good reports with heavy vehicle licence
4. Further as per the petitioner, he was awarded a letter of appreciation by the Board dated 14.08.2007 for an act of bravery, as the petitioner has put his life to risk for extinguishing dangerous fire which has broken out in BBMB switchyard at Slapper on 04.06.2007. Thereafter, on the strength of said appreciation letter, he had represented to the Board to consider him for promotion to the post of Leading Fireman.
5. According to the petitioner, on the strength of his appreciation certificate, which amounted to his falling under the category of "departmental candidates without any courses who show appreciable initiate and obtain good ::: Downloaded on - 21/07/2018 23:01:40 :::HCHP ...5...
reports with heavy vehicle driving licence and having ten years experience in fire service" he was entitled to be considered for promotion to the post of Leading Fireman .
under the said category. As the Board was not promoting him, as such, he filed the writ petition praying for the reliefs already mentioned above.
6. The petition was opposed by the Board, which in its reply so filed to the petition took the stand that the appreciation letter did not confer any automatic right to claim promotion from the post of Fireman to the post of Leading Fireman, as the promotion has to be made strictly in accordance with the Bhakra Beas Management Board Class-III and Class-IV Employees (Recruitment and Conditions of Service) Regulations, 1994. According to the Board, the petitioner was at Sr. No. 22 of the seniority list of Firemen and he could not claim out of turn promotion as a matter of right.
7. During the pendency of petition, certain promotions were effected against the post of Leading Fireman and as a consequence thereof, private persons were impleaded as party respondents.
8. Further, alongwith the compliance affidavit, which was filed during the pendency of the writ petition by ::: Downloaded on - 21/07/2018 23:01:40 :::HCHP ...6...
the Chief Engineer, BSL Project of the Board dated 23rd February, minutes of promotion committee held on 12.01.2012 were placed on record, which read as under:
.
"Minutes of meeting of promotion committee held on 12/01/2012 Meeting of the promotion committee was held on 12/1/2012 under the Chairmanship of Sh.
K.V. Jain, Dy. Chief Engineer, BSL, Circle No. II, BBMB, Sundernagar as per direction of the Hon'ble High Court Himachal Pradesh Shimla in the case of "Sh. Kashmir Chand Vs. BBMB" (CWP No. 4709 of 2010) to take up the matter of promotion of Firemen to the rank of Leading Firemen.
In the meeting, keeping in view 9 No. vacancies of leading firemen, case for 11 No. religible candidate was considered including case of Sh. Kashmir Chand, firemen.
However, the matter was discussed in detail keeping in view the direction of the Hon'ble High Court Himachal Pradesh, Shimla all the committee members unanimously decided following points for the promotion of Firemen to Leading Firemen.
(i) Sub Divisional Officer, Personnel will prepare the list of eligible candidates & inform then to bring their driving license for verification to all eligible candidates who will appear in front of committee on 19th January 2012 in the O/O Addl. Superintending Engineer, E & Workshop Division, BBMB, Sundernagr.
(ii) All the promotions of Firemen shall be done in accordance with service conditions laid down in rules & regulation-1994 and principle of seniority-
cum-merit will be followed strictly.
(iii) Committee has also opinion that the eligible seniors as per seniority list of fireman who fulfill the minimum requirements as per rules & regulation 1994 and are within the zone of consideration must be promoted if found suitable.
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(iv) Appreciable initiative and good report will be examined & worked out on the basis of last 5 year A.C.Rs."
9. In response to the said affidavit, petitioner also filed a supplementary affidavit, para-5 of which reads as .
under:
"5. That respondent has filed affidavit dated 23.2.2012 wherein proceedings of DPC held on 12.1.2012 has been placed on record. A perusal of the minutes of the promotion committee reveals that the promotion committee considered the cases for promotion on the basis of seniority-cum-merit. However, the minutes disclose that none of the 8 persons promoted possessed any appreciation letter, as claimed in para 5 of the reply. Therefore, instead of restricting the zone of consideration to such "senior Fireman who also possesses the appreciation letters in the field of fire fight and rescue operation from the concerned competent authority, a new method was devised by the promotion committee by saying that:-
"Appreciable initiative and good report will be examined and worked out on the basis of last 5 years ACRs."
10. The writ petition was allowed by the learned Single Judge vide judgment dated 26th May, 2014. It was held by the learned Single Judge that the ingredients of eligibility criteria were mandatory for the purpose of eligibility and a candidate ought to possess all ingredients and same cannot be dispensed with or whittled down by the Selection Committee. Learned Single Judge held that the Departmental Promotion Committee failed to ::: Downloaded on - 21/07/2018 23:01:40 :::HCHP ...8...
appreciate the intent of the Regulations which governed promotion. According to the learned Single Judge, the condition that a departmental candidate who did not .
possess any course, but who showed appreciable initiative and obtained good reports, could be construed to be earning good ratings by a candidate in the ACRs for the last five years and it was mandatory for each candidate to possess "appreciable initiative" comprised in each of them holding appreciation letters/certificates, in recognition of theirs exemplary bravery and fortitude, which was besides possessing good ratings in ACRs, as also possessing heavy driving licence. Accordingly, learned Single Judge, while quashing Annexure A-2 dated 09.02.2012, held the petitioner to be entitled to promotion from the date when respondents No. 3 to 10 in the writ petition were promoted, with consequential benefits.
11. Feeling aggrieved, three separate Letters Patent Appeals were filed by private respondents in the writ petition. Board has not preferred any appeal against the judgment passed by the learned Single Judge.
12. In LPA No. 137 of 2014 in CMP No. 10735 of 2014 on 17.07.2014, a co-ordinate Bench passed the following order:
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"Caveat Pet. Nos. 5175 to 5184 of 2014 Discharged.LPA No. 137 of 2014
Issue notice. Mr. Aman Sood & Mr. .
Manish Sharma, Advocates, waive notice on behalf of respondents No. 1 and 2 and respondent No. 3, respectively. Notice to respondents No. 4 to 6 be issued returnable within six weeks. Steps within one week. List on 4th September, 2014.CMP No. 10735 of 2014
The application is disposed of by providing that the operation of the impugned judgment dated 26th May, 2014 passed in CWP No. 4709 of 2010-E so far it relates to the appellants shall remain stayed with further direction to respondents No. 1 and 2 to consider the case of the writ petitioner- respondent No. 3 in terms of the impugned judgment. Alteration/modification/vacation on motion."
13. In consequence thereof, the petitioner was promoted as Leading Fireman on regular basis w.e.f.
09.02.2012, with all consequential benefits, subject to the outcome of LPA No. 137 of 2014.
14. We have heard learned counsel for the parties and have also gone through the records as well as the judgment passed by the learned Single Judge.
15. Having perused the pleadings and having gone through the judgment passed by the learned Single Judge, we do not find any infirmity with the same. It is not in dispute that promotion to the post of Leading Fireman is ::: Downloaded on - 21/07/2018 23:01:40 :::HCHP ...10...
governed by the Bhakra Beas Management Board Class-III and Class-IV Employees (Recruitment and Conditions of Service) Regulations, 1994. These are the same .
Regulations, which stand referred to as Recruitment and Promotion Rules in the above part of the judgment. It is not in dispute that the Regulations which governs promotion to the post of Leading Fireman envisage the following eligibility criteria for promotion thereto:
Name of Number Pay Method of Minimum Minimum Appoi Rem Serial post of posts Scales appointme educational experience nting arks Number nt and other author qualification ity s
3. Leading 59* 1500-50- By Qualified in 5 years Head Fireman 2000-60-
2060-70-
promotion
from
Sub
Officer's
Fire experience of
in Fire Depar
2550-75- amongst course from
Service tment
2700 Firemen National Fire
Service
College,
Nagpur or
equivalent
degree with
heavy
vehicles
driving
licence.
or
Qualified in
Fire Course
arranged by
Ministry of
Defence or
Home Affairs
with heavy
vehicles
license.
or
Department
al
candidates
without any
course who
show
appreciable
initiative &
obtain good
reports with
heavy
vehicle
license.
(Emphasis supplied)
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16. It is also not in dispute that neither the present appellants nor the respondent-petitioner falls under the first two categories. Coming to the third category/source of .
recruitment to the post of Leading Fireman, the same comprises of Fireman who is a departmental candidate without any courses, who show appreciable initiative and obtain good reports with heavy vehicle driving licence and having ten years experience in fire service.
17. According to us, it is not as if every fireman with ten years experience in fire service, who possesses a heavy vehicle licence, becomes eligible to be considered for promotion against the post of Leading Fireman under this third category. For a Fireman to gain eligibility under this category, besides possessing a heavy vehicle driving licence and having requisite experience in fire service, he has to show appreciable initiative and also obtain good reports. This means that showing appreciable initiative and obtaining good reports are two distinct eligibility criterion which have to be fulfilled by a candidate to render himself eligible under this category. It is also not in dispute that none of the present appellants, who were promoted over and above the respondent-petitioner against the post of Leading Fireman, possessed any certificate of appreciation, ::: Downloaded on - 21/07/2018 23:01:40 :::HCHP ...12...
like the one possessed by the petitioner. According to us, had the intent of the employer been to consider candidature of a Fireman only on the basis of good reports, .
then the Clause "show appreciable initiative" would not have been added in the Regulations. The very fact that this Clause stands added in the Regulations demonstrates that in addition to good reports, the candidate ought to have shown appreciable initiative to render himself eligible for being considered for promotion under this category.
18. We go to the extent of saying that in the absence of anything on record to demonstrate that a candidate had shown "appreciable initiative", he cannot be considered for the purpose of promotion under this category to the post of Leading Fireman.
19. We have already quoted the contents of the relevant rules which govern promotion. For ready reference, we are quoting the relevant rule once again, which reads as under:-
Sr. Qualification Experience
No.
iii Departmental candidates without any 10 years experience
courses who show appreciable and in Fire service. obtain good reports with heavy vehicle licence ::: Downloaded on - 21/07/2018 23:01:40 :::HCHP ...13...
20. In our considered view, word 'and' used in the Rules/Regulations referred to above has been used therein with a purpose. The purpose being that in order to gain .
eligibility under the said Rule, it is incumbent that the candidate 'obtain good reports'. The intent of use of the word 'and' before 'obtain good reports' is that this is a mandatory condition for being eligible to be considered under this Clause for the purpose of promotion.
21. We are of the considered view that the word "and" cannot be read as "or". Further, word "appreciable"
has to be read disjunctively with "obtain good reports", as these two expressions are separated by word "and".
22. The Apex Court in Gujarat Urja Vikash Nigam Ltd. vs. Essar Power Ltd., (2008) 4 SCC 755 (Two Judges), has held as under:-
"53. In the chapter on 'Exceptional Construction' in his book on 'Interpretation of Statutes' Maxwell writes :
"Where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by ::: Downloaded on - 21/07/2018 23:01:40 :::HCHP ...14...
rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what the words signify, and that the modifications thus made are mere corrections of careless language and really give the true meaning."
.
23. The Apex Court in M. Satyanarayana vs. State of Karnataka and another, (1986) 2 SCC 512 (Two Judges) has held as under:-
"5. ... ... .... The expression 'and' has generally a cumulative effect, requiring the fulfilment of all the conditions that it joins together and it is the antithesis of 'or'. In this connection reference may be made to A.K. Gopalan v. The State of Madras, AIR 1950 SC 27. See also the observations of this Court in Ishwar Singh Bindra & Ors. v. The State of U.P., AIR 1968 SC 1450."
24. The Apex Court in R.S. Nayak vs. A.R. Antulay, (1984) 2 SCC 183 (Five Judges), has held as under:-
"45. ... ... ...The use of the expression 'or' does appear to us to be a disjunctive as contended on behalf of the respondent. Depending upon the context,'or' may be read 'and' but the court would not do it unless it is so obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'. (See Green v. Premier Glyrhonwy State Company Ltd.', (1928) 1 KB 561; Babu Manmohan Das & Ors. v. Bishun Das, AIR 1967 SC 643; Kamta Prasad Aggarwal etc. v. Executive Engineer, Balladgarh & Anr., (1974) 4 SCC 440 and several other which we consider it unnecessary to enumerate here)".
25. The Apex Court in Ishwar Singh Bindra and others vs. The State of U.P., AIR 1968 SC 1450, has held as under:-
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"11. ... ... ...In Stroud's Judicial Dictionary, 3rd Ed. it is stated at page 135 that "and" has generally a cumulative sense, requiring the fulfilment of all the conditions that it joins together, and herein it is the antithesis of or. Sometimes, however, even in such a connection, it is, by force of a context, read as "or". Similarly in Maxwell on Interpretation of .
Statutes, 11th Ed., it has been accepted that "to carry out the intention of the legislature it is occasionally found necessary to read the conjunctions "or" and "and" one for the other"."
26. Learned Single Judge also, after referring to the pleadings as also the respective contentions of the parties, has come to the same conclusion. Learned Single Judge has clearly and distinctly held that simply possessing good ACRs was not the sole criteria for being considered for promotion against the post of Leading Fireman under the third category and in addition, a candidate ought to have possessed certificates, which demonstrated that the candidate had shown "appreciable initiative". The reasonings so assigned by the learned Single Judge have been elaborately explained with the help of case law, which we are not repeating, but with which we fully concur.
27. In R. Prabha Devi and others Vs. Government of India through Secretary, Ministry of Personnel and Training, Administrative Reforms and others, (1988) 2 SCC 233, Hon'ble Supreme Court has held that seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfills the eligibility ::: Downloaded on - 21/07/2018 23:01:40 :::HCHP ...16...
condition prescribed by the relevant rules and a person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be .
considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher post.
28. In Shiba Shankar Mohapatra and others Vs. State of Orissa and others, (2010) 12 SCC 471, Hon'ble Supreme Court has held that one must not loose sight that seniority and eligibility for promotion are two different concepts altogether.
29. In Palure Bhaskar Rao and others Vs. P. Ramaseshaiah and others, (2017) 5 SCC 783, Hon'ble Supreme Court has held as under that seniority and eligibility are also distinct concepts. As far as promotion or recruitment by transfer to a higher category or different service is concerned if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being su
30. perseded. Other things being equal, senior automatically gets promoted. But in the case of selection based on merit-cum-seniority, it is a settled principle that ::: Downloaded on - 21/07/2018 23:01:40 :::HCHP ...17...
seniority has to give way to merit. Only if merit being equal senior will get the promotion. Hon'ble Supreme Court has further held that merely because a person is senior, if the .
senior is not otherwise eligible for consideration as per the rules for promotion, the senior will have to give way to the eligible juniors.
In view of above discussion, as we do not find any infirmity with the judgment dated 26.5.2014, so passed by the learned Single Judge in CWP No. 4709 of 2010, titled as Kashmir Chand versus Bhakra Beas Management Board and others, these appeals being devoid of any merit, are accordingly dismissed and disposed of.
Miscellaneous application(s), if any, also stand disposed of.
No order as to costs.
( Sanjay Karol ),
Acting Chief Justice
( Ajay Mohan Goel ),
July 20, 2018(sd) Judge.
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