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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sanjay Karol, J.
Desh Raj, - Petitioners.
Versus
Himachal Pradesh State Electricity Board, - Respondents.
CWP No.940/2011-A
Decided on : October 3, 2012
Seniority List - Electrician - [H.P. State Electricity Board Act, 1995 - Section 3(1)(a), Section 4(1)(b)] - The court discussed the interpretation of the order of promotion and the challenge to the seniority list primarily on the grounds of adhoc service and appointment of ineligible persons. The court also considered the statutory rules and instructions for promotion and confirmation, and the applicability of previous court decisions. The court found that the petitioners' promotion was in excess of the prescribed quota and that their case for promotion to the post of Junior Engineer could not be considered in accordance with the rules.
Fact of the Case:
The petitioners sought to set aside and quash the seniority list and to be assigned their correct place in the seniority list of electricians. They also sought promotion to the post of Junior Engineer with consequential benefits. The challenge to the seniority list was based on adhoc service, appointment of ineligible persons, and the interpretation of the order of promotion.
Finding of the Court:
The court found that the petitioners' promotion was in excess of the prescribed quota and that their case for promotion to the post of Junior Engineer could not be considered in accordance with the rules. The court also noted that the petitioners did not challenge the appointment/regularization of certain private respondents and that their case for relief at a belated stage could not be granted.
Issues: The issues included the interpretation of the order of promotion, the challenge to the seniority list based on adhoc service and appointment of ineligible persons, and the applicability of statutory rules and previous court decisions.
Ratio Decidendi: The court's decision was based on the finding that the petitioners' promotion was in excess of the prescribed quota and that their case for promotion to the post of Junior Engineer could not be considered in accordance with the rules. The court also considered the inordinate delay in approaching the court and the lack of challenge to the appointment/regularization of certain private respondents.
Final Decision: The court disposed of the present petition and found that no relief could be granted to the petitioners at such a belated stage, as their case for promotion to the post of Junior Engineer could not be considered in accordance with the rules.
Sanjay Karol, J.
1. Respondents No.5 to 8, 11 to 15, 17 and 18 are not present, despite service. Hence, they are proceeded ex-parte.
2. Petitioners have prayed for the following reliefs:-
“(i) To set-aside and quash the Final seniority list Annexure P-1 as it stood on 1-1-2010 and Annexure P-4 Provisional seniority list as it stood on 1-1-2011 issued by the respondent No.1 and 2/Board and further to assign the petitioners their correct place in the seniority list of electrician in the respondents Board above the respondent No.3 to 18.
(ii) To direct the respondent No.1 and 2 to promote the petitioners to the post of Junior Engineer with all consequential benefits/reliefs from the same date i-e 5-8-2010, when the respondent No.3 was promoted to the post of Junior Engineer in the respondents Board.”
3. Annexure P-1 is the Seniority list of Electrician (M&T) Cadre as on 1.1.2010. This list was circulated on 1.1.2010. As per this Seniority list, petitioners are placed at Sr. Nos. 45 to 48.
4. Petitioners have obtained their Diploma in the trade of Electrician from ITI, an Institution managed by the Government, in the year 1989-90. They were appointed as Oil Cleaner (Helper) with the respondents/Board.
5. Facts are not much in dispute. In terms of order dated 27.12.1998 (Annexure RA-III), petitioners were promoted as Electrician (M & T). Since the issue is primarily based on interpretation of this order of promotion, the same is reproduced as under:-
“H.P. State Electricity Board. “OFFICE ORDER”
On the recommendation of Departmental promotion committee for Class-III (Field Tech. Staff), the following ITI qualified Helpers (M & T) are hereby promoted as Electrician ( M & T) , purely on adhoc basis, in the pay scale of 13502400 from the date of their taking over as such. Sr.No. Name of Official D.O.B.
1. S/Sh. Desh Raj (Helper) 3.2.63
2. Sh. Karam Chand (-do-) 22.3.66
3. “Ramesh Chand (-do-) 3.1.60
4. “Lekh Ram (-do-) 7.4.66
Above adhoc promotions are ordered in pursuance to the decision conveyed vide Secretary, HPSEB, Shimla-4 order No. HPSEB (Sectt)/Demands/95-103947-51 dt. 9.10.95. The above officials would be regularized when posts of promotion quota become available in the grade they are promoted. The above adhoc promotions will not confer upon the above officials any right to claim continuance on the posts and seniority in the grade of Electricians. Consequent upon their adhoc promotion as Electricians, the following postings are hereby ordered with immediate effect in the public interest.
Sr.No. Name of Official Place of present Place of further
posting posting
1. Sh. Desh Raj M&T Divn., Solan M&T S/Divn. Solan
2. “ Karam Chand --do- S/Nagar -do- Bilaspur
3. “ Ramesh Chand --do---do--- -do-
4. “ Lekh Ram --do------- M&T S/Divn. HPSEB, Sundernagar.
The official in whose cases change of station is involved, shall be entitled to usual joining time and TTA as admissible under the rules. Promotion of the officials who do not join their place of posting by 8.1.1996 shall be considered as withdrawn.
Superintending Engineer, M&T Circle, HPSEB, Bilaspur,
Dated:-27.12.93.”
(Emphasis supplied)
6. Challenge to the seniority list is primarily on two grounds:- (i) That period of adhoc service rendered by the petitioners as Electrician (M & T), in terms of judgment rendered by the Apex Court in The Direct Recruit Class-II Engineering Officers’ Association and others versus State of Maharashtra and others, AIR 1990 SC 1607 and U.P. Secretariat U.D.A. Association through its Joint Secretary, G.C. Srivastava and others versus State of U.P. and others,(1999) 1 SCC 278, as also instructions dated 31st August, 2002 issued by the Government, is required to be considered for the purposes of considering the petitioners’ case for promotion to the post of Junior Engineer; (ii) That ineligible persons were appointed as Electrician and despite the fact that they joined later in point of time, were placed senior to the present petitioners. In th
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