Dharub Pal vs Himachal Pradesh State Electricity Board

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(HP) 141

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, J.
1. CWP No. 3546/2010
Dharub Pal and others - Petitioners
Versus
Himachal Pradesh State Electricity Board and others - Respondents
2. CWP No. 3622/2010
Hem Raj and others - Petitioners
Versus
Himachal Pradesh State Electricity Board and others - Respondents
3. CWP No. 4102/2010
Amin Chand and others - Petitioners
Versus
Himachal Pradesh State Electricity Board and others - Respondents
4. CWP No. 4106/2010
Nek Ram and others - Petitioners
Versus
Himachal Pradesh State Electricity Board and others - Respondents
CWP No. 3546/2010 alongwith CWP Nos. 3622, 4102 and 4106 of 2010
Decided On : 6.3.2014

Advocates:
Advocate Appeared:
For the Petitioners:Mr. Sanjeev Bhushan, Advocate.
For the Respondents:Mr. Raj Pal Singh, Advocate for the respondent-Board.
None for other respondents.

Headnote:
ELECTRICITY ACT, 1948 - SECTION 79(E) - RECRUITMENT AND PROMOTION REGULATIONS - Petitioners were promoted as Linemen on ad hoc basis due to ban on direct recruitment - Petitioners were regularized with effect from 31.3.2003 instead of 27.12.2002 - Petitioners challenged the regularization date - HELD, petitioners were entitled to be regularized from the date they were promoted on ad hoc basis as Linemen from 23.8.1996 and 9.1.1997.
Fact of the Case:

Petitioners were promoted on ad hoc basis as Linemen vide Annexures RA-2, RA-3, RA-4 and RA-5 dated 29.6.1996, 13.11.1997 and 21.11.1998, respectively. However, they were regularized with effect from 31.3.2003 vide Annexure RA-10 dated 12.9.2007.
Finding of the Court:

The decision of the respondent-Board to regularize the petitioners with effect from 31.3.2003 instead of 27.12.2002 is wholly arbitrary. Thus, violative of Articles 14 and 16 of the Constitution of India.
Issues: Whether the petitioners were entitled to be regularized from the date they were promoted on ad hoc basis as Linemen from 23.8.1996 and 9.1.1997.
Ratio Decidendi: 1. Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. 2. If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted. 3. Classification in revised pension formula between pensioners on the basis of the date of retirement specified in memoranda was arbitrary and violative of Article 14 of the Constitution of India.
Final Decision: Petitions allowed. Annexure P-8 dated 5.4.2007 and Annexure RAVII dated 4.1.2008 in CWP No. 3546/2010, Annexure RAX 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 date s they were promoted on ad hoc basis to the post of Lineman with all the consequential benefits. The respondent-Board 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.

JUDGMENT

Justice Rajiv Sharma, J.

Since common questions of law and facts are involved in all these petitions, the same were taken up together for hearing and are being disposed of by a common judgment. However, for clarity sake facts of CWP No. 3546 of 2010 have been taken into consideration.

CWP No. 3546 of 2010

2. A conscious decision was taken by the respondent-Board on 9.10.1995, which is reproduced as under:

“It was decided that regular and ITI qualified persons would be considered against direct posts on ad hoc basis. However, they would be regularized only when posts of their quota become available in the grade they are promoted.”

3. The matter was, however, referred back to the Secretary of the Board vide letter dated 9.1.1996 to seek clarification on the following points:

1. “There is 25% quota for direct recruitment for the post of Lineman. Feeding category for this post is Asstt. Lineman. So, T/mates cannot be promoted against this post ignoring the channel of Asstt. Lineman.

2. The mode of filling up the posts of Electricians is by direct recruitment only. So, there is no feeding category for this post. 50% vacancies of SSA (Telephonists now re-designated as SCA) are filled up by direct recruitment but the feeding category for the post is helper (S/Station). So, T/Mates or ALMs cannot be considered for the promotion against the vacancies of SSAs.”

4. The Secretary of the Board clarified that T/mate would not be entitled to be considered against the direct recruitment posts of Lineman by ignoring the channel of ALM as there is no provision of direct recruitment in the category of ALM. Thus, only the ALM having educational qualification as matric or its equivalent with ITI certificate in the trade of Wireman/Electrician, as per R&P Regulations would be considered for ad hoc promotion as Lineman against 25% quota for direct recruitment. This decision has been taken to lighten the shortage of Linemen who could not be recruited against direct recruitment quota due to ban. The Chief Engineer (OP) South, H.P.S.E.B, Shimla sent a communication to the Superintending Engineer (OP) Circle, H.P.S.E.B, Shimla, Mandi, Solan, Bilaspur, Nahan and Rampur on 18.3.1996 requesting them to implement the decision at their level under intimation to his office. The Chief Engineer (OP), South has specifically mentioned therein that it may be made clear to the individuals that their regularization in higher grade to which they are promoted, will only be considered on their turn for promotion to the concerned post in normal course against the quota prescribed for promotion in R&P Regulations. Thereafter, Class-III Departmental Promotion Committee (Field Technical Staff) recommended the names of the petitioners for promotion as Lineman on ad hoc basis as stop gap arrangement in the pay scale of Rs. 1365-45-1500 from the date of their actual date of taking over as such. Their office orders, whereby they were promoted, are Annexures RA-II and RA-III dated 23.8.1996 and 9.1.1997, respectively. A meeting was convened between the Member (Administration) and the representatives of H.P.S.E.B. Technical Employees Union on 3.12.2002 at 11.00 A.M. in the committee room. It was agreed to submit the case to the Whole Time Members of the Board for regularization of ad hoc Linemen and SS As from the date of their ad hoc promotion against the available vacant posts. The memorandum for Whole Time Members meeting was also prepared. The following agenda was to be placed before the Whole Time Members of the Board:

“To regularize the services of all L/Men/SS As/Electricians who have been promoted from the feeding categories possessing requisite qualification as per R&P regulation on ad hoc/out of turn basis, against direct recruitment quota for L/Man/SSA/Electrician in relaxation to the provisions of R&P regulations”.

5. The Whole Time Members of the Board approved the agenda item No. 298-28. A communication to this effect was sent by the Secretary of t

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