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U.P. RAJYA VIDYUT UTPADAN NIGAM LTD. & OTHERS versus ARUN KUMAR PANDEY & OTHERS

High Court of Judicature at Allahabad

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U.P. Rajya Vidyut Utpadan Nigam Ltd. & Others v. Arun Kumar Pandey & Others - SPECIAL APPEAL No. 1504 of 2005 [2006] RD-AH 5347 (6 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Reserved on13.1.2006

                    Delivered on 6.3.2006

Special Appeal No. 1503 of 2005

U.P. Rajya Vidyut Utpadan Nigam Ltd. and others.....Appellants

Vs.

Arun Kumar Dubey and others .....Respondents

AND

Special Appeal No. 1504 of 2005

U.P. Rajya Vidyut Utpadan Nigam Ltd. and others.....Appellants

Vs.

Arun Kumar Dubey and others .....Respondents

*******

Hon. S. Rafat Alam, J.

Hon. Sudhir Agarwal, J.

Whether Lab Assistant is eligible to be considered for promotion to the post of Junior Engineer under U.P. State Electricity Board (Subordinate Electrical and Mechanical Engineering Service) Regulation 1972 (herein after referred to as Regulation of 1972) is the short question raised in these special appeals.

Arun Kumar Dubey, petitioner respondent No. 1 was appointed as Lab Assistant in the pay Scale of Rs. 1100-1575 vide order dated 6.4.1988 and was posted at Anpara Thermal Project where joined on 8.4.1988. Sri Satya Narain Vishwakarma, petitioner respondent No. 2 was appointed as Lab Assistant vide order dated 15.12.1995 in the Pay Scale of Rs. 1100-1575 and was posted at Anpara Tharmal Project where he joined on 18.12.1995. Sri Amresh Das petitioner Respondent No. 3 was appointed as Lab Assistant vide order dated 16.12.1995 in the Pay Scale of Rs. 1100-1575 and he was also posted at Anpara Thermal Project on 27.1.1996.

The petitioners- respondents, after division of the U.P. State Electricity Board (in short ''Board') in three independent bodies namely, U.P. Power Corporation Limited, U.P. Rajya Vidyut Utpadan Nigam Limited and U.P. Jal Vidyut Utpadan Nigam Limited, are working under the U.P. Rajya Utpadan Nigam Limited appellant No. 1. It appears that on 14.11.2003 a requisition was published by the Electricity Service Commission, a centralized body, for recruitments in all the aforesaid three bodies, inviting applications from the employees belonging to operating cadre for consideration for promotion to the post of Junior Engineer (ordinary cadre). The qualifications required to be possessed by such employees, as published in the aforesaid advertisement may be reproduced as under:

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2. vkbZ0Vh0vkbZ0 ijh{kk mRrh.kZ dh gks ,oa 2 o"kZ ;k vf/kd dh yxkrkj lsok iwjh dh gksA

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3. gkbZLdwy ijh{kk mRrh.kZ dh gks ,oa 5 o"kZ o vf/kd dh fujUrj lsok iw.kZ djrs gksaA

4. gkbZ Ldwy ikl ugha gks ,oa 10 o"kZ ;k vf/kd dh fujUrj lsok iw.kZ djrs gksaA

([k) vuDokyh QkbM odZ pkTMZ lqijokbtj @ lgk;d lqijokbtj @ ,Dl dsMj lqjijokbtj

1.tks vkbZ0Vh0vkbZ0 izek.k i= /kkjd gks rFkk 4 o"kZ ;k vf/kd fujUrj lsok iw.kZ djrs gksA

vFkok

2.gkbZLdwy mRrh.kZ gks ,oa 3 o"kZ ;k vf/kd dh fujUrj lsok iw.kZ djrs gksA

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1.gkbZLdwy mRrh./kZ ugha gks ,oa 7 o"kZ dh fujUrj lsok iw.kZ djrs gksA

(x- vkbZ0Vh0vkbZ0 vFkok fMIyksek /kkjd lgk;d lqijokbtj jsxqyj tks rhu o"kZ ;k vf/kd dh fujUrj lsok iw.kZ djrs gksA

vk;q % fnukad 01-7-03 dks vH;FkhZ dh vk;q 50 o"kZ ls de gksA**

The Electricity Service Commission in the aforesaid requisition,  notified 504 vacancies of junior engineer in U.P. Power Corporation Limited (ordinary cadre), which included 349 vacancies in U.P. Rajya Vidyut Utpadan Nigam Limited. All the petitioners respondents applied claiming to possess the requisite qualification under clause A(1) of the advertisement i.e. operating cadre employees. However, the Electricity Service Commission vide its letter dated 23.6.2004 rejected the application of the petitioner respondents on the following ground;

"PARICHALIKIYA VARG KE KARAMCHARI NA HONE PAR ATHVA KUSHAL NA HOTE PAR NIRAST."

The petitioners-respondents sent representations to the Electricity Service Commission stating that they fulfilled the qualification prescribed under clause A(1) of the advertisement and belonged to operating cadre employees, hence rejection of their candidature is contrary to the rules. However, when the appellant No. 2 did not communicate any decision, the petitioners-respondents approached this court in writ petition No. 27561 of 2004 wherein the following interim order was passed on 23.7.2004:

"Sri A.K. Mehrotra has accepted notice on behalf of respondent Nos. 1 and 3 whereas Shri R.D. where has accepted notice on behalf of respondent No. 3. They pray for and are granted 3 weeks and no more time to file counter affidavit. Rejoinder affidavit, if any may be filed within 2 weeks thereafter.

List immediately after expiry of the said period.

The contention of the petitioners is that they are eligible for appearing in the examination schedule to be held on 25.7.2004 but their applications forms have been wrongly rejected on the ground that they are not eligible employees of operating Cadres. It appears from Annexure 2,3 and 6 appended to the writ petition that the petitioners are eligible and they belong to operating Cadres.

For the reasons stated above, the petitioners shall be permitted to appear in the examination scheduled to be held on 25.7.2004 subject to the decision of the writ petition.

Let a certified copy of this order be supplied to the petitioners today, if they apply for the same."

(Emphasis added)

In pursuance to the aforesaid order the petitioner respondents appeared in the examination held on 25.7.2004 but their result was not declared although the result of other candidates was declared on 15.12.2005. The appellants also failed to file any counter affidavit and in the circumstances, this court, passed following order on 16.9.2004 in the aforesaid writ petition:

"In spite of time being granted on 23.7.2004 to file C.A. within three weeks no C.A. has been filed as yet. Counsel for the petitioner stated that the result of all the other candidates has been declared but due to the pendency of writ petition the result of the petitioner is not being declared but due to the pendency of writ petition the respondents are going to hold interview.

In the aforesaid circumstances it is provided that the result of the petitioners would be declared and if the petitioners are eligible they shall be permitted to appear in the interview provisionally.

In the mean time counter affidavit may be filed within three weeks. Two weeks thereafter are granted for filing R.A.

List this case after expiry of the aforesaid period."  

                        (Emphasis added)

It appears that the aforesaid order was not complied with by the appellants and instead they proceeded with the interview of the successful candidates whose result was declared on 15.8.2004 resulting in Contempt Petition No. 3002 of 2004 wherein issuing notice, this court passed following order on 5.10.2004:

"It is alleged that the order dated 16.9.2004 passed by this Court has been violates. From a perusal of the petition, a prima facie case is made out.

Issue notice within a week returnable within six weeks. The opposite party need not appear in persons at this stage.

The counter affidavit may be filed within the aforesaid period or else charges may be framed after summoning the notices.

However, one more opportunity is granted to the opposite party to comply with the order within a months.

The office may be send copy of this order along with the notice fixing a date after six weeks."

However, the appellants did not declare the result of the petitioners- respondents and instead after completion of the interview, proceeded to publish final select list on 2.2.2005 ignoring the claim of the petitioner respondents. In these circumstances, the writ petition No. 12180 of 2005 was filed by the petitioner respondents challenging the aforesaid select list seeking following reliefs:

"(a) Issue a writ, order of direction in the nature of certiorari quashing the impugned select list dated 2.2.2005 issued by respondent no. 2 (Annexure No. 6 of the writ petition).

(b) Issue an order or direction or writ in the nature of mandamus commanding the respondents not to give effect to the impugned select list dated 2.2.2005 issued by respondent No. 2 (Annexure No. 6 of the writ petition.)

(c) Any other further suitable order or direction which this Hon'ble Court may deem fit and proper on the circumstances of the case.

(d) Award cost of the petition to the petitioner. "

After exchange of the pleadings, the Hon'ble Single Judge vide his judgment dated 14.11.2005 has allowed both the aforesaid writ petitions directing the appellants to declare the result of written examination of the petitioner respondents and in case they have passed the same, to hold interview for them and in case they are ultimately selected, consider them for promotion to the post of junior engineer from the date other candidates who have been declared selected on 2.2.2003, have been appointed.

The appellants aggrieved against the aforesaid judgments have filed present special appeals. Since both the appeals involve same controversy, hence are being decided by this judgment.

The learned counsel for the parties have also filed their written submission in support of their rival contention. Heard Sri Ranjeet Saxena, learned counsel for the appellant and Sri A.C. Pandey for the respondents.

The submission of the learned counsel for the appellants is that the Lab Assistant constitute feeder cadre for promotion to the post of Chemist Grade-II under U.P. State Electricity Board Chemist Service Regulation 1970 (in short "Regulations of 1970") and therefore, they can not be considered for promotion to the post of junior engineer. He further submits that under the "Regulations of 1972" only the employees of operating cadre constitute feeder cadre for promotion and the lab assistant are not the employees belonging to operating cadre, having not been included in the definition of Operating Cadre under PARICHALIKIYA SEWA NIYAMAWALI 1995 (in short "Regulations of 1995") and therefore, the Hon'ble Single Judge has committed error in declaring the petitioners- respondents eligible to be considered for promotion to the post of Junior Engineer.

Relying on Regulation 3.28 of the Regulation of 1995, the learned counsel for the appellant vehemently contended that the Lab Assistants do not belong either to the category of the persons rendering physical work or semi skilled or belonging to the category of operating, construction and maintenance work, hence can not be said to be persons belonging to operating cadre. He also relied upon a letter dated 17.2.2005 (Annexure-C.A.-3 filed in the writ petition) at page 118 of the paper book of the special appeal which is a letter sent by the General Manager (Industrial Relations) addressed to the Electricity Service Commission stating that the Lab Assistants do not come in the category of operating cadre employees under Regulation 3.28 of the Regulation of 1995. He, therefore, submits that the Hon'ble Single Judge in holding the petitioner respondents as entitled and eligible to be considered for promotion to the post of Junior Engineer (ordinary grade) has erred in law.

He further relied upon the law laid down by the Apex Court in the case of Hydro Electrical Employees' Union U.P. and Others Vs. Sudhir Kumar and others AIR 1998 S.C. 2970 and Rama Chandriya and another Vs. State of Karnataka 1998(II) LLJ 885 contending that the regulation of 1995 have been upheld by the Hon'ble Apex Court in the former case, and in the later case, it has been held that if channel of promotion is not available to any category of the employees under Regulation, it can not be inducted by interpretation not consistent with the Regulation. He further relied upon the Apex Court judgment in Kuldeep Kumar Gupta Vs. Himanchal Pradesh State Electricity Board AIR 2001 SC 308 wherein different qualification were laid down for the category of employees belonging to different sources of recruitment and the same was upheld by the Apex Court. He also contended that the correspondence of the power corporation will not over ride Regulation framed by U.P.S.E.B. and in support thereto relied upon the law laid down in the case of Himanchal Pradesh Electricity Board Vs. Somdutt Utpal 1993 (2) SCC  415. Lastly he contended that the employee belonging to a particular cadre can claim consideration for promotion in the stream permitted under the Regulation. Promotion is not a matter of right but the employee is entitled only for consideration for promotion in accordance with the rules and regulation and in respect refers to the law laid down in Himanchal Pradesh State Electricity Board Vs. K.R. Gupta AIR 1998 SC 1448 and Bali Singh Vs. Haryana State Seed Agencies and others 2004 (5) SLR 858.

The learned counsel for the petitioner respondents submitted that in the regulation promotion of employees belonging to particular cadre may constitute feeder cadre for promotion in more than one stream. He further submitted that the term "operating cadre" having not been defined under Regulation 1972, the gap can filled by the employers by issuing executive orders. In view of the Board's order dated 2.3.1988, the Lab Assistants are the employees belonging to operating cadre and therefore, are entitled to be considered for promotion as Junior Engineer (ordinary grade). He further refers to some earlier instructions where the persons appointed, as Lab Assistants were considered for promotion to the persons of Junior Engineer and on selection were promoted on the said post. He has referred the name of Sakha Ram, the erstwhile Lab Assistant who was selected and promoted as Junior Engineer on 3.8.2000.

Before delving into the issue, it would be appropriate to refer the various rules, regulations and orders having bearing on the subject.

The Board was a statutory autonomous body constituted under Section 5 of the Electricity Supply Act, 1948 (hereinafter referred to as the Act of 1948).

Section 15 of the Act of 1948 confers power upon the Board to appoint a Secretary and such other officers and employees as may be required to enable the Board to carry out its function under the Act.  Section 79 as amended in U.P. confers regulation framing power upon the Board, which it may frame by Notification in the Official Gazette. The Regulation framing power includes the matters pertaining to the conditions of service, duties, salaries and allowances of the officers and other employees of the Board.

In exercise of power under Section 79(c) of the Act of 1948 the Board framed "Regulations of 1972". Regulation-2 declares the status of service of Subordinate Electrical and Mechanical Engineering as a Class-III Service of the Board. Regulation-3 (10) defines the ''Operating Staff Service'. Regulation-5 provides sources of recruitment and Regulation 17 provides the procedure for appointment to the Ordinary Grade by promotion. For ready reference the aforesaid provisions are re-produced as under:

3.Definitions:-

In these Regulations, unless there is anything repugnant in the subject or context-

(1)......

(2)......

(3).....

(4).....

(5).....

(6).....

(7).....

(8).....

(9).....

(10) ''Operating Staff Service' means the Uttar Pradesh  

       State Electricity Board Operating Staff Service.

5.Source of recruitment-

Recruitment to the cadres of the Service shall be made as follows:

(a) Selection Grade:

By promotion from amongst the members of the Ordinary Grade in accordance with the provisions of regulation 16.

(b) Ordinary Grade:

(i) By direct recruitment from apprentice Supervisors     selected in accordance with the procedure laid down in Part V of these Regulations.

(ii) By promotion in accordance with the procedure laid down in regulations 17 & 18.

17. Selection for appointment to the Ordinary Grade by promotion-

(1) For purpose of recruitment to the posts in the Ordinary Grade under regulations 5(b) (ii) a selection based on merit shall be made from the following:

(a) Members of Operating Staff (skilled) who have put in 3 years or more of continuous service including service rendered on work - charged establishment, if they have assed any of the examinations mentioned in Appendix ''A'  or 4 years of more of service, if they have passed I.T.I. Examination or 5 years or more of service, if they have passed High School Examination or 10 years or more of service; if they have not passed High School Examination.

(b) Unqualified work- charged Supervisors and Asstt. Supervisors and unqualified Ex-cadre Supervisors who have put in 4 years or more of continuous service, if I.T.I. passed, 5 years or more of service, if High School passed or 7 years or more of service, if not High School passed.

(c) Assistant Supervisors (Regular) having I.T.I. Certificate or Diploma who have put in 3 years or more of continuous service.

(2) The selection shall be based on a written test followed by a practical and oral test to which only such candidates would be admitted as have qualified in the written test.

(3) The names of the candidates who qualify in the practical and oral test shall be placed in a list in their order of merit. For computing the merit of a candidate the marks obtained by him both in the written test and practical and oral test shall be added.

(4) The number of names in the list drawn up under clause(3) shall not exceed the number of vacancies announced at the time of the announcement of the examination by more than 25%.

(5) The syllabus for the written test and the practical and oral test shall be laid down by the Chief Engineer from time to time.

(6) A committee comprising the following will supervise the written examinations and held the practical and oral test:

(i) Additional Chief Engineer/Deputy Chief engineer to be nominated by Chief Engineer

(ii) One superintending engineer to be nominated by Chief Engineer.

(iii) An officer of the Board not below the rank of Deputy Secretary to be nominated by Chairman.

(7) The Chief Engineer shall have the power to remove the name of any candidate from the list drawn up and under clause (3) if his work of conduct any time subsequent to the holding of the tests is reported to be such as to render him unfit for promotion.

  Similarly a separate set of Regulations was framed for recruitment to the post of Chemist i.e. Regulation 1970, and under Regulation 5 thereof, 20% vacancies of Chemist Grade-II are liable to be filled in by promotion from amongst the Lab Assistants, Water Softening Plant Assistant and Water Plant Assistant.

Thus, so far as the Lab Assistants constitute feeder cadre for promotion to the post of Chemist Grade-I, there is no dispute. However, whether they also constitute feeder cadre for promotion to the post of Junior Engineer would depend on the fact as to whether they belong to operating cadre or not. The term operating cadre has not been defined under the Regulations of 1972. It appears that for determination of wages of various categories of employees, the  matter was referred to Central Wage Board and it submitted its report in 1970. This resulted in some industrial dispute, which was referred for adjudication before the Industrial Tribunal, U.P. Lucknow and in its award dated 27.12.1973 the industrial tribunal considered the job description of Lab Assistants, placed them in category "A" in the Pay Scale of Rs. 150-285. The job description of Lab Assistants as per the version of the erstwhile U.P.S.E.B. as quoted in the award was as under:

''Taking and testing water samples and controlling the water Chemically, testing generally the water used in the plant."

It appears that thereafter Board issued order No. 311-P./Ra.V.P.Tos-4P/1986 dated 2.3.1988 in which the Lab Assistants were shown as belonging to operating cadre.

The Board, later on framed Regulation of 1995 governing recruitment and service condition of the employees of operating cadre and under Regulation 3.28 thereof, the operating employees were defined as under;

"3.28 ^^ifjpkydh; deZpkjh** ls rkRi;Z ml O;fDr ls gS tks 'kkjhfjd Je] v)Zdq'ky] ifjpkyu fuekZ.k rFkk vuqj{k.k dk;Z ds fy, fu;qDr fd;k x;k gksA**

The appellants have also filed as Annexure-C.A.-1, wherein at serial No. 30, Lab Attendants, Water Softening Plant Attendants and Water Treatment Attendants have also been shown as employees belong to operating cadre. This list is the schedule appended to the Regulations of 1995.

Coming to the merits of the submissions, it cannot be disputed that no person has fundamental right to claim promotion. The only right enshrined under Article 16 of the Constitution of India read with the relevant rules and regulation framed in this regard, is the right of consideration for promotion. As a proposition of law, there cannot be any doubt on this submission. We are also in agreement with the learned counsel for the appellant that if the Rules and regulation do not permit, the employees belonging to a particular cadre can not claim right of consideration of promotion to a particular post unless and until the recruitment rules applicable to such post and cadre permits consideration of such employees for appointment to the aforesaid cadre. Admittedly, at least till 1995, there was no regulation defining "Operating Cadre"  or "the Operating Staff".

In the absence of a specific provision in the statute, it is open to the authorities to fill in the gap by issuing executive orders, which may have the force of law. The executive orders may not supplement the statutory provisions, but can be issued to fill in such gaps.  It appears that in order to clarify as to what would constitute the Operating Staff Employees, the Board issued executive order dated 2nd March, 1998 wherein admittedly the Lab Assistants have expressly been included and shown as belonging to Operating Cadre. To the same effect is the annexure-CA-1 filed by the petitioners-respondents, wherein under the heading "Utpadan skand ke alawa parichalikiya warg ke karmachari" shreni-pa-1 and item no.30 on page 107 of the paper book in Special Appeal No. 1503 of 2003 the following have been mentioned:

^^30- okVj sV~hVesUV IykUV vVsUMsUV okVj lkQfVax IykV vVsUMsUV] o ySc vVsUMsUV vVsUMsUV okVj V~hVesUV foKku esa jlk;u 'kkL= fo"k; ls Js.kh f}rh; Js.kh esa ek/;fed f'k{kk ifj"kn] m-iz- dh b>VjehfM;V ijh{kk mrrh.kZ ;k led{k jlk;u 'kkL= fo"k; ds lkFk Lukrd mikf/k LsEiyj ds in ij Js.kh i 2 esa U;wUre 7 o"kZ dk vuqHko 33&1@3 izfr'kr Js.kh i 2 ls inksUufr }kjk rFkk 66 & 2@3 izfr'kr lh/kh HkrhZ }kjk**

The aforesaid document was placed on record by the appellants themselves and being their own document, leaves no doubt to infer that the Lab Attendants, Water Treatment Plant Attendants and Water Softening Plant Attendants are the employees belonging to Operating Cadre in the Generation Wing of the appellants. Interestingly, in the earlier part of the same document, under the heading "Utpadan skand ke alawa parichalikiya warg ke karmachari" at item no.1 (h) the entry is Lab Boy, Lab Messenger. To the same effect is the entry on page 101 of the paper book in Special Appeal No. 1503 of 2005. The aforesaid list does not show that it supercedes the earlier orders in this regard and on the other hand, the list of even other category of the employees which have been included in the Operating Cadre include Majdoor, Beldar, Jamadar, Mason, Tubewell Operator, Store Mistri, Cook, Mess Attendant, Sweeper, Mali Chaukidar and watchman in the category of Operating staff and if such persons can be claimed to constitute Feeder Cadre for the post of Junior Engineer, provided they have other qualification, it is beyond comprehension  and difficult to accept that the Lab Assistants, who are admittedly better qualified persons cannot be said to be the Operating Cadre. The reason appears to have been advanced to exclude Lab Assistants from the eligibility to be considered for promotion to the post of Junior Engineer, is that they also constitute Feeder Cadre of promotion to the post of Chemist Grade-II. However, the said reason is neither rational nor can be said to be otherwise valid, inasmuch as, it is always permissible to consider a person working on a particular post to be eligible and constitute Feeder Cadre for promotion in more than one stream. Coming to the definition of Operating Staff as contained in the Regulation of 1975, we find that the definition is referable to the nature of job and not exhaustive with refers to the specific posts, designations or particular cadres. It provides that those persons are the operating employees, who are appointed to discharge manual, Labour, semi skilled, skilled operating construction and maintenance work. The Lab Assistants employed in the generation unit function for the maintenance of the unit.  Even otherwise the appellants could not show that Lab Attendants and Lab Assistants are two different Cadres. From the record as available, it appears that the Lab Attendants & Lab Assistants one Cadre and there is no different among them.

Besides above, there is another aspect of the matter. Regulations of 1972, when refers to Operating Staff Service, does not refer or talk of the Operating Staff, as defined only in the Regulations of 1995. The Operating Staff Service Employees included Lab Assistants, as it was known to erstwhile Board and its Employees in the year 1972 and also thereafter as it is also apparent from the Board's order dated 2.3.1988. The Regulations of 1995 have been framed laying down the Service conditions of certain Operating Staff which are included within the definition of 3.28 and to all such employees who are within the purview of definition of 3.28, the conditions of service as laid down in the Regulation of 1995 shall only be applicable and all other Rules and Regulations or executive orders inconsistent thereto have been superceded as is evident from Regulation  (2)(a) of Regulations of 1995, which may be reproduced as under:

2- izkfLFkfr ¼,fIyds'ku½& ¼d½ fdlh vkns'k] fu;e] vuqcU/k] fu.kZ; vFkok izpyu ds vc rd gksrs gq, Hkh bl fofu;e ds lHkk izkfo/kku 3-26 esa ifjHkkf"kr lsokvksa ds lnL;ksa ij ykxw gksxk%

ijUrqd ;g gS fd fofu;e 24 ls 26] 29 ls 33] 35 ls 38 ,oa 40 la 44 rd dslk ,oa vU; iwoZ ykblsUl/kkfj;ksa ds mu deZpkfj;ksa ij Hkh ykxw gksxk gks vc rd iqjkus 'krksZ ls vkofjr gSA**

This also shows if there are other employees, who are Operating Staff but are not included within the definition of "Operating Employees" under the Rules and Regulations of 1995, they will not be governed by the Regulations of 1995. But it does not mean that they will cease to be the Members of the "Operating Staff". The Regulations of 1995 nowhere shows that the employees who are governed by these Regulations will only constitute the "Operating Staff Service" and other employees will not be treated to be in such service. The Regulations of 1995, in our view, shall not control or restrict the provisions of the Regulation of 1972, which are independent and are operative on their own force. In the absence of any declaration that the Lab Assistants, who were throughout the Members of the Operating Staff Service, were also so declared and included in the Board's order dated 2.3.1988 will cease to be the Operating Staff after promulgation of 1995 particularly when it expressly includes and is applicable to the Lab Attendants, Water Treatment Plant Attendants and Water Softening Plant Attendants.

In this view of the matter, we are of the opinion that the appellants are taking hyper technical view to exclude the Lab Assistants from the purview of eligibility for consideration for promotion to the post of Junior Engineer and the action of the appellants is neither justified in law nor is consistent with the statutory provisions as discussed above.

There is another aspect of the matter to which we are inclined to show our deep displeasure and disapproval although restraining ourselves in making any observation on merit, since the matter is ceased with the Contempt Court. The Court, from time to time,  issued direction to the appellants for declaration of the result of the petitioners-appellants and if they are selected to appoint them but instead of observing the aforesaid direction the appellants proceeded otherwise. Once a judicial order is passed by a Court of record, the authorities are bound to comply the same unless they are justified in doing so under the orders of the Superior Court and the authorities should not undertake upon themselves to judge the correctness of the order of a Court, since it is beyond their authority.   We, therefore, direct the Chairman, U.P. Power Corporation Limited  to look into the matter and make necessary enquiry for  identifying the persons, on account whereof, this has happened, and take necessary action against them so that in future it may not recur. However, we clarify that the Contempt Court may proceed with the matter independently, without being influenced by any observations made by us, hereinabove, and the observations of this Court shall not be treated to be an opinion expressed on merit with respect to the matter pending before the Contempt Court.

In view of the aforesaid discussions, in our view, the appellants have acted illegally in rejecting candidature of the petitioners-respondents for promotion to the post of Junior Engineer (ordinary grade). We, therefore, do not find any reason to interfere with the order of Hon'ble Single Judge.

Accordingly, both the special appeals are devoid of merit, and, hence, dismissed.

Dated: 6.3.2006

SKM


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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