High Court of Punjab and Haryana, Chandigarh
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Raj Pal & Ors v. Haryana State Electricity Board and othe - LPA-507-1996  RD-P&H 630 (8 February 2006)
Raj Pal and others V. Haryana State Electricity Board and others Present: Mr.P.S.Patwalia,Senior Advocate with Mr.Vivek Sharma, Advocate, for the petitioners.
Mr. Subhash Ahuja, Advocate, for the respondents.
Petitioners, Raj Pal, Narinder Kumar, Mukesh Chand and Harinder Singh Bhudhiraja were working as Junior Engineers( Civil), with Haryana State Electricity Board. They approached this court through Civil Writ Petition No.8710 of 1993 making a grievance against the seniority list dated February 25,1993 ( Annexure P/2) vide which private respondents No.3 to 6 had been shown senior to them. They further prayed for the issuance of a writ of mandamus directing the official respondents to promote them to the post of Assistant Engineers with effect from the date the aforesaid private respondents had been promoted as Assistant Engineers, treating them to be senior. The writ petition filed by the petitioners has been dismissed by the learned Single Judge vide judgment dated November 29,1995. Accordingly, the writ petitioners have now filed the present Letters Patent Appeal No.507 of 1996 2
Letters Patent Appeal impugning the judgment of the learned Single Judge.
Certain facts may be noticed:
Petitioners joined the respondent-Haryana State Electricity Board as Junior Engineers(Civil) on various dates. At the time of their joining the service, the petitioners were diploma holders. Later on during the course of their service, they acquired AMIE qualification and, as such,at this stage, it may be relevant to notice the respective dates of the petitioners and respondents No.3 to 6, joining their service and passing their AMIE/BE as follows:
Sr. No. Name Date of Joining Passed AMIE/B.E.
1. Raj Pal( petitioner No.1) 13.7.1979 30.8.1984
2. Narinder Kumar (petitioner No.2) 31.10.1979 30.8.1984
3. Mukesh Chand Garg( petitioner No.3) 30.12.1980 13.9.1985
4. Harinder Singh Bhudhiraja(Ptr. No.4) 1.7.1979 4.4.1986
5. Parveen Gera (respondent No.3) 6.5.1982 (was B.E. at the time of joining
passed on 2.6.81)
6. Ashwani Kumar Goyal 18.6.1982 30.8.1983
7. Narinder Singla 10.6.1982 3.3.1984
8. R.L.Goel 31.8.1982 13.9.1985 Letters Patent Appeal No.507 of 1996 3
The promotion from the post of Junior Engineer(Civil) is to the post of Assistant Engineer(Civil). The same is governed by Regulation 9 of the Punjab State Electricity Board Service of Engineers(Civil) Recruitment Regulations 1965 ( as applicable to the Haryana State Electricity Board).
Originally Regulation 9 of the Regulations provided that 35% of the total number of cadre posts of Assistant Engineers may be filled up by promotion from Junior Engineers. Share of various categories,such as, Sectional Officers, the non-qualified( not possessing overseer Diploma/Certificate) Drawing establishment and AMIE degree holders was also specified. In this manner, only 5% posts fell to AMIE quota and the aforesaid promotion from the said quota was to be made on the basis of seniority. Accordingly, persons possessing AMIE qualification having greater length of service were to be promoted on the basis of their length of service. On June 19,1989, certain amendments were made to the Regulations. Regulation 9 was also amended. The amended Regulation may be extracted as follows for the ready reference:
Letters Patent Appeal No.507 of 1996 4
i) Recruitment to the post of Assistant Engineer (Civil) shall be :-
a) By direct recruitment 65%
b) By promotion in the manner
as under 35%
i) From amongst Engineering 22 ½%
subordinates as defined in
regulation 2(g) with 5 years ( share of quota of service as JE/Civil 35% of posts of
AEs shall be
calculated on the
of posts of Asstt.
ii)From amongst Engineering
12 ½% subordinate as defined in
reg 2(g) possessing AMIE/BE
qualification with 5 years
service as such.
Provided that if qualified persons from para above are not available the vacancies may be filled up by promotion of equivalent
number from the category (i) and vice-
Letters Patent Appeal No.507 of 1996 5
The eligibility for consideration for
promotion from AMIE/BE against 12½% quota shall be determined from the date of qualifying such examination provided that :-
i) that ranking list of Engineering subordinates for their promotions as AE after having qualified the AMIE/BE examination and completion of 5 years service in the cadre,may normally be prepared on first day of January of each year and duly notified to all concerned.
ii) The name(s) of eligible candidate(s) in the Ranking list, will be arranged in order of their date of passing AMIE/BE Examination. The name(s) of the JEs who qualify the AMIE/BE examination,during the subsequent years, will be added in the Ranking list below the name(s) of the candidates who have passed the said Exam in the earlier years."
After the amendment in Regulation 9, for the first time certain vacancies arose for being filled up for promotion on October 1,1992.
The respondent-Board started the process of promotion. Relying upon the amended Regulation 9, a seniority ranking list, Annexure P/2, was drawn on February 25,1993. The petitioners, who were otherwise senior to respondents No.3 to 6, having joined the service much earlier and even having qualified the AMIE and,thus, having become eligible, were shown as Letters Patent Appeal No.507 of 1996 6
junior to respondents No.3 to 6. This was purportedly done by the respondent-Board by applying amended Regulation 9. Accordingly, it was taken that respondents No.3 to 6, who had acquired the degree qualification prior to the petitioners were liable to be shown senior to them. After drawing the aforesaid seniority/ranking list, the private respondents were promoted, as Assistant Engineers, in preference to the petitioners. The petitioners, accordingly, approached this Court through Civil Writ Petition No.8710 of 1993, impugning the action of the respondents and also challenging the seniority list, Annexure P/2. It was claimed by them that they were also entitled to be promoted from the date respondents No.3 to 6 had been promoted. The petitioners primarily claimed that on the date the aforesaid seniority/ranking list had been drawn on February 25,1993 and on the date when the vacancies in question had arisen i.e. on October 1,1992, the petitioners had the requisite eligibility qualifications, inasmuch as they had requisite five years experience as Junior Engineer and also possessed degree qualification. It was further claimed by the petitioners that on the day when the petitioners had acquired the requisite qualification, respondents No.3 to 6 were not even eligible inasmuch as they did not have Letters Patent Appeal No.507 of 1996 7
the requisite five years experience. Accordingly, the petitioners claimed that their placement below respondents No.3 to 6 in seniority/ranking list, Annexure P/2, was wholly erroneous and the petitioners were liable to be promoted as Assistance Engineers in preference to the said respondents.
The claim of the petitioners was contested by the Board as well as the private respondents. The stand taken by the respondents in their respective written statements was that the amended Regulation 9 contained a clarification which specifically provided that the ranking list of Engineering Subordinates for their promotion as Assistant Engineer was to be prepared keeping in view the date of their qualifying such examination and the persons who had passed AMIE/BE examination earlier were liable to be placed higher than the persons qualifying the aforesaid tests later on.
Accordingly, it was claimed by the respondents that the placement of the petitioners vis-a-vis the private respondents for the seniority list Annexure P/2 was wholly justified and further that respondents No.3 to 6 had rightly been promoted earlier in time than the petitioners.
Learned Single Judge agreed with the stand taken by the respondents. It was held by the learned Single Judge that since private Letters Patent Appeal No.507 of 1996 8
respondents No.3 to 6 had qualified their B.E./AMIE examination prior in time than the petitioners, therefore, the private respondents were entitled to be placed higher in the seniority/ranking list than the petitioners and on account of the aforesaid placement the private respondents had rightly been promoted earlier to the petitioners. Reliance was also placed by the learned Single Judge on the judgment of a Full Bench of this Court in Punjab State Electricity Board Patiala and another V. Ashok Kumar Sehgal and others 1989(4) SLR 437. Consequently, the writ petition filed by the petitioners was dismissed.
The petitioners have now approached this Court through the present Letters Patent Appeal.
The grounds of attack taken in the writ petition have been reiterated by the writ petitioners in the Letters Patent Appeal as well.
Additionally, along with the grounds of appeal, the present appellants have appended two orders dated October 20,1993 and March 23,1994, issued by the Haryana State Electricity Board whereby certain guidelines issued by the Haryana State Electricity Board to implement the recruitment and promotion policy for making the promotion to the post of Assistant Letters Patent Appeal No.507 of 1996 9
Engineers from Engineering Subordinate in 12½% quota as contained in Regulation 9(1) of Punjab State Electricity Board Service of Engineers (Electrical) Recruitment Regulations,1965 for electrical/general cadre have been appended. The aforesaid office orders have been appended as Annexures A/1 and A/2. It has also been maintained by the appellants that the Regulation 9 of electrical/general wing of the Board was also identical with the Regulation of the civil wing. Accordingly, the appellants have pleaded that since the aforesaid guidelines have been issued which supported the stand of the appellants in the present proceedings, therefore, it was obvious that the stand of the writ petitioners was wholly justified.
We have heard Shri P.S. Patwalia, learned senior counsel appearing for the appellants and Shri Subhash Ahuja, learned counsel appearing for the private respondents. With the assistance of the learned counsel ,we have also gone through the record of the case.
Shri Patwalia, learned senior counsel appearing for the appellants has contended that Regulation 9 introduced through the amendment dated June 19,1989 clearly showed that a Junior Engineer could claim promotion in 12½% quota only if he possessed the twin eligibility Letters Patent Appeal No.507 of 1996 10
qualifications viz. he had qualified the AMIE/BE examination and had completed five years of service in the cadre. Accordingly, it has been contended by the learned counsel that unless and until a person possessed both the aforesaid eligibility conditions, he could not be considered for promotion, as Assistance Engineer in the aforesaid 12 ½% quota. Learned counsel has pointed out that respondents No.3 to 6, although possessed B.E./AMIE qualifications prior to the writ petitioners, but their date of joining the service would show that they did not possess requisite five years experience on the date when the writ petitioners had acquired both the essential qualifications. Accordingly, it is maintained that the writ petitioners had acquired the twin qualifications earlier in point of time than respondents No.3 to 6 and, therefore, by any stretch of imagination the aforesaid respondents could not be treated as senior and were not entitled to any higher placement than the petitioners. A strong reliance has also been placed by the learned counsel for the appellants on the office orders Annexures A1 and A2. It has been pointed out that the aforesaid guidelines had been issued by the Board itself with regard to Regulation 9 pertaining to the promotion of electrical/general cadre of the Junior Engineers, in the Letters Patent Appeal No.507 of 1996 11
Board and it had been clarified that a Junior Engineer could only be considered for promotion to Assistant Engineer in 12½% quota, if he possessed both the qualifications i.e. AMIE/BE and five years experience.
Relying upon the aforesaid office orders, the learned counsel has vehemently argued that there was no justification for the Board to adopt a different criteria and yard stick with regard to the promotion to the post of Assistant Engineer (Civil) while interpreting Regulation 9 which was parimeteria and identical with the regulation governing the promotion to the post of Assistant Engineer electrical/General cadre.
On the other hand, Shri Subhash Ahuja, learned counsel appearing for the private respondents has defended the judgment of the learned Single Judge. It has been argued by Shri Ahuja that Clause (ii) of clarification to the amended Regulation 9 clearly showed that persons who had acquired AMIE/BE qualification earlier in point of time were entitled to be placed higher than the persons who acquired the said qualification later on. Learned counsel has maintained that since the private respondents had acquired the BE/AMIE qualification earlier in point of time than the writ petitioners, therefore, the writ petitioners could not be heard to make Letters Patent Appeal No.507 of 1996 12
any grievance against their lower placement.
We have duly considered the rival contentions of the learned counsel for the parties. In our considered view, the present appeal is liable to be allowed.
At the out set, we may notice that the vacancies to which the private respondents No.3 to 6 were appointed by way of promotion, arose on October 1,1992. At that point of time, all the writ petitioners as well as the private respondents were eligible and possessed both the eligibility conditions as per the amended Regulation 9. Thus, the writ petitioners as well as the private respondents were entitled to be considered for promotion to the 12½% quota meant for Junior Engineers possessing the said conditions. It is also not in dispute that the writ petitioners joined the department as Junior Engineers much earlier than the private respondents.
They are, thus, senior to the private respondents.
The only question which is relevant for determination is as to whether the amended Regulation 9 gives any power to disturb the inter-se seniority/ranking of the writ petitioners and respondents No.3 to 6 when all of them possessed the requisite qualifications at the time of their placement Letters Patent Appeal No.507 of 1996 13
in the ranking list ?. In our considered view, the answer to the aforesaid question has to be in the negative.
Amended Regulation 9 has already been noticed by us above and has been extracted in the earlier portion of the judgment. A clarification to the aforesaid regulation provides that eligibility for consideration for promotion from AMIE/BE against 12½% quota shall be determined from the date of qualifying such a qualification. Obviously, the writ petitioners as well as the private respondents, on the date of the determination i.e on the date of arising of the vacancies on October 1,1992 as well as on the date of the casting of the seniority /ranking list i.e. February ,1993 possessed the requisite qualifications. Clause (ii) of the clarification further provides that the claim of the eligible candidates in the ranking list will be arranged in order of their date of passing AMIE/BE examination. The names of the Junior Engineers who qualify the AMIE/BE examination during the subsequent years, will be added in the ranking list below the names of the candidates who have passed the said examination on the earlier date. On the first flush, the language seems to support the private respondents, who admittedly passed the BE/AMIE qualification earlier in point of time than Letters Patent Appeal No.507 of 1996 14
the petitioners. However, on a deeper consideration, it is apparent that Clause (ii) has to be read in conjunction with Clause (i). Clause (i) requires the Board to prepare the list normally on first day of January each year of all eligible candidates. After such a list is prepared, Clause (ii) would operate and require the Board to include the names of candidates who possess the AMIE/BE qualification later on, below the names of earlier eligible candidates. In this process the seniority of eligible candidates in the cadre of Junior Engineers was liable to be ignored. However, if there was no list prepared under Clause (i), then obviously the question of disturbing the seniority of Junior Engineers under Clause (ii) would not arise. It is admitted position between the parties that the seniority/ranking list for promotion under 12½% quota was prepared for the first time in February,1993. In these circumstances, Clause (ii) cannot be read in isolation. On the day of casting of the aforesaid list, the writ petitioners as well as the private respondents, all, had acquired the requisite twin qualifications. In these circumstances, there was no question of disturbing the seniority list of Junior Engineers already being maintained as per their length of service. Under Clause (i) if a list had been prepared every year of Letters Patent Appeal No.507 of 1996 15
eligible persons possessing the requisite twin qualifications,then the names of the petitioners would have been included in the list, whereas respondents No.3 to 6 did not even possess the requisite qualifications, since they did not have five years requisite experience, at the time when petitioners fulfilled both the conditions. Thus, when respondents No.3 to 6 acquired the requisite experience and became eligible for consideration to promotion much later in point of time than the petitioners, they could not claim any higher ranking than the petitioners. Even otherwise, the language of Clause (ii) of the clarification shows that the list to be maintained under Clause (i) is a continuous running list. As and when a Junior Engineer acquired the requisite two qualifications, his name was liable to be included . On such acquisition of the said qualifications, the name of such an incumbent was liable to be placed at the bottom of the list, irrespective of his original seniority. Thus, a person acquiring AMIE/BE qualification earlier and also possessing five years experience earlier, would be entitled to be placed higher than the person who passed AMIE/BE qualification later on. He may be junior in the lower cadre to the person placed lower than him. However, the present controversy does not relate to such a situation. The case in hand Letters Patent Appeal No.507 of 1996 16
shows that the petitioners as well as the private respondents, all possessed the requisite qualifications on the day the seniority/ranking list was drawn.
Still further petitioners possessed the twin qualifications earlier in point of time than the private respondents.
We further find that the learned Single Judge has placed reliance upon the judgment of the Full Bench in Ashok Kumar Sehgal's case (supra). In our considered view, in the light of the interpretation we have placed upon Regulation 9 and its clarification, the said judgment has no application.
We may also notice that the reliance placed by the writ petitioners/appellants upon the office orders Annexures A/1 and A/2 issued by the Board with regard to electrical wing/general cadre dealing with Regulations 9 of the aforesaid cadres ,is also well placed. It has been specifically provided in the aforesaid office orders that if two or more officials fulfill both the conditions on the same day, the names in the ranking list will be entered in accordance with their original seniority in the Engineering Subordinates. This is the correct interpretation of the amended Regulation 9. Any other interpretation would result in a great hardship and Letters Patent Appeal No.507 of 1996 17
denial of equal treatment to eligible persons.
Before parting with this judgment, we may also notice that the learned Single Judged has also observed that the writ petitioners had not challenged the vires of Regulations 9 as amended in the year 1989. From the aforesaid discussion and the interpretation we have placed upon the amended Regulation, we find that no challenge to the said regulation was required at the hands of the petitioners.
As a result of the aforesaid discussion, we allow the present appeal and set aside the judgment of the learned Single Judge. Consequently we allow the writ petition filed by the writ petitioners. We direct the respondent-Board to promote the writ petitioners/appellants from the date respondents No.3 to 6 were promoted as Assistant Engineers. The writ petitioners shall also be entitled to all consequential benefits arising from such promotions.
( Viney Mittal)
August 31,2005 ( H.S.Bedi )
Letters Patent Appeal No.507 of 1996 18
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