Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(HP) 777

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J
Sh. Prem Chand and others – Appellant
Versus
The Himachal Pradesh State Electricity Board - Respondent
CWPOA No. 3763 of 2019
Decided on : 09-12-2022

Advocates:
Advocate Appeared:
For the Appellant :Mr. Naveen Awasthi, Advocate.
For the Respondent:Mr. Surender Saklani, Advocate.

Point of Law: If an appointment is made by way of stop gap arrangement without considering claims of all the eligible available persons and without following rules of appointment, experience on such appointment cannot be equated with experience of a regular appointee, because of qualitative difference in appointment.

Headnote:
Recruitment and Promotion Rules - Articles 14, 16, 32 - Promotion - Final Seniority List - Entitled to Seniority - Prayed that respondent-Board may be directed to issue final seniority list of Assistant Engineers - Respondent-Board may be directed to give seniority to applicants as Assistant Engineers, vide A-3 which was followed without break, continuously and uninterruptedly till regularization for all intends and purposes - Petitioners are not entitled to seek seniority as AE(E) from dates when they were promoted on ad-hoc and acting basis merely as stop gap arrangement – Para 15.
Finding of the Court :
It is contended by petitioners that they should also have been considered while making promotion during year as they were falling in zone of consideration - Petitioners had not laid any factual foundation in petition so as to succeed even on such count - No such prayer is made by petitioners in petition, rather they have alleged to contrary that DPC was not convened in order to deny petitioners their due right of consideration - Even otherwise, petitioners cannot raise such a belated claim having once accepted their promotion in pursuance to order - Respondent No. 1/Board has also prayed to defeat claim of petitioners on ground of delay and latches - Objection of respondent No. 1 is not without substance - Petitioners were promoted vide order and in pursuance thereto, they joined as AE(E) on regular basis - They were fully aware at time of acceptance of such promotion that they were not granted any benefit retrospectively as there was no such stipulation in their promotion order - In absence of such stipulation, it cannot be said that petitioners still anticipated to be granted seniority especially when they were promoted against quota meant for direct recruitment - Circulation of provisional seniority list thus would not have given any fresh cause of action to petitioners - Claim of petitioners is thus, also held to be suffering from vice of delay and latches.
Result: Petition dismissed.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, petitioners have prayed for following substantive reliefs:-

i) That the respondent-Board may be directed to issue the final seniority list of Assistant Engineers (Electrical), forthwith.

ii) That the respondent-Board may be directed to give the seniority to the applicants as Assistant Engineers (Electrical) since 27.04.1992/May 1992, vide A-3 which was followed without break, continuously and uninterruptedly till regularization on 31.12.1997, vide A-4 for all intends and purposes, forthwith.

iii) That the action of the respondent-Board in not holding the DPC for regular promotions since April, 1992 till December, 1997, only to deny the regular promotion and seniority w.e.f. date of initial appointment/promotion on 27.04.1992 vide A-3/May 1992, may be declared illegal and unconstitutional forthwith.

iv) That in the alternative, the respondent-Board may be directed to hold review DPC or to give promotion as Assistant Engineers (Electrical) as per the R&P Rules being a ‘selection post’ by applying the criteria as in the OM, dated ¾.11.1981 vide A-8 and by giving due weightage to the factum of performing arduous and higher nature of duties on higher posts vis-à-vis the persons working on the lower posts, forthwith.

v) That the ‘Provisional Seniority List’ of Assistant Engineers (Electrical) issued on 1.1.2005 vide A-6 in determining the Seniority from 31.12.1997, i.e. the date of regular promotion as per A-4, may be declared illegal and may be quashed and set aside.

2. The initial appointment of petitioners in respondent No.1-Board was as Junior Engineers (Electrical) [for short, ‘JE(E)’]. During service, they acquired higher qualification of ‘AMIE’. The next promotional post available to the petitioners was that of Assistant Engineer (Electrical) [for short, ‘AE(E)’]

3. As per Recruitment and Promotion Rules for the post of AE(E), 54% by direct recruitment and 46% by promotion was the prescribed method of recruitment. In case of recruitment by promotion, 6% quota was available to the Junior Engineers (Degree Holder) with two years service in the cadre. Similarly, 6% quota was available for those JEs(E) who passed Section ‘A’ and ‘B’ AMIE during service period. Remaining 34% quota was available to other categories and further reference to them may not be relevant for the decision of instant case.

4. Respondent No. 1, vide Office Order No. 59, dated 27.04.1992, ordered the JE(E) AMIE including petitioners to look after the works of Sub Divisions/Units mentioned against their names till those posts were filled up on regular basis. It was clearly mentioned that the arrangement was purely stop gap and incumbents listed in the order would not be entitled to claim seniority etc. of the post of AE (E). Petitioners and all others mentioned in the aforesaid order were held entitled to 20% activity allowance of their basic pay or the pay to which they would have been entitled had they been appointed in the normal course to the post of AE(E) whichever was less.

4. Petitioners were promoted as AEs (E) on regular basis, vide office order dated 31.12.1997. Their promotion was to take effect from 20.12.1997 or from the date of taking over of charge by them, which ever was later. Petitioners accepted the promotion orders and joined in pursuance thereto.

5. Petitioners approached the erstwhile Himachal Pradesh State Administrative Tribunal by way of Original Application in November, 2006 by raising following contentions:

(i) Provisional seniority list issued by respondent No.1-Board of AE(E) on 01.01.2005 showing the seniority of the petitioners as AEs (E) from the date of their regularization was wrong and illegal as they were entitled to be conferred seniority w.e.f 27.04.1992, when they were deputed to look after the works of Sub Divisions.

(ii) Since, the post of AE (E) was a selection post, the process of promotion was to be undertaken necessarily by following the principle of merit-cum-seniority.