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Arun Kumar Dubey And Others v. Utter Pradesh Rajya Vidyut Utpadan Nigam And Others - WRIT - A No. 27561 of 2004  RD-AH 5685 (14 November 2005)
Civil Misc. Writ Petition No. 27561 of 2004
Arun Kumar Dubey & others Vs. Uttar Pradesh Rajya Vidyut
Utpadan Nigam Ltd. & others
Civil Misc. Writ Petition No. 12180 of 2005
Arun Kumar Dubey & another Vs. Uttar Pradesh Rajya Vidyut
Utpadan Nigam Ltd. & others
Hon'ble Vineet Saran, J
Both these writ petitions are by the same petitioners and arise out of the same cause of action and thus they have been heard together and are being decided by a common judgment.
All the petitioners are Lab Assistants working with Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited since long. An advertisement (Annexure-4 to the writ petition) was issued by the Electricity Service Commission (for short ''the Commission') of the U.P. Power Corporation (for short ''the Corporation') for filling up the posts of Junior Engineers by way of promotion. There were certain conditions given in the said advertisement for those who could file application for the said promotion. The condition in question in this writ petition is that it were only the employees of the ''operating class' (Parichalkiya Varg) who possess the diploma and had worked with the Corporation for at least three years who could apply. The petitioners had also applied in response to the said advertisement since, according to them, they fulfilled the condition of being in the ''operating class' and possessed other qualifications also. By the impugned order dated 10.6.2004, the application of the petitioners had been rejected on the ground that they did not belong to ''operating class'. In the same order it had been mentioned that in case if the petitioners fulfill the conditions but their applications had been rejected, they would be given a chance on 28th and 29th June, 2004, on which dates their applications would be reviewed. In response thereto the petitioners filed an application dated 26.6.2004 before the Commission supported by a letter from the Executive Engineer of the Corporation stating therein that the post of Lab Assistant is in the ''operating class' and is of skilled cadre. Thereafter since no orders were passed on the said application of the petitioners and the examinations were to be held on 25.7.2004, the petitioners filed writ petition no. 27561 of 2004 on 21.7.2004, with the prayer for quashing the order dated 10.6.2004 and also for a direction in the nature of mandamus commanding the respondents to allow the petitioners to participate in the selection process for promotion on the post of Junior Engineer (General) and promote them on such post.
On 23.7.2004 this Court passed an interim order to the effect that the petitioner shall be permitted to appear in the examination scheduled to be held on 25.7.2004, which was to be subject to the decision of the writ petition. In pursuance thereof the petitioners appeared in the examinations. The results of the written examinations of all other candidates were declared on 25.8.2004. However, the Commission did not declare the results of the petitioners on the ground of pendency of the writ petition no. 27561 of 2004. Petitioners then moved an application in this writ petition, praying for declaration of their results. Despite time having been granted to the respondents, since they had not filed any counter affidavit and the results of all other candidates had been declared, this Court, vide its order dated 16.9.2004, directed the respondents to declare the results of the petitioners also and if the petitioners were found eligible, they were to be provisionally permitted to appear in the interview. Interviews were to be held between 27th to 30th September, 2004. Since despite the order of this Court dated 16.9.2004 the respondents did not declare the results of the petitioners, they filed Contempt Petition No. 3002 of 2004. In the said contempt petition, on 5.10.2004, this Court passed the following order:-
"It is alleged that the order dated 16.9.2004 passed by this Court has been violated. 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 person 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 month.
The office may send copy of this order along with the notice fixing a date after six weeks."
Despite the aforesaid order, the respondents did not declare the results of the petitioners. However, instead, the Commission prepared and declared the final select list on 2.2.2005. Aggrieved by the said declaration of final select list, the petitioners have filed writ petition no. 12180 of 2005, in which, after granting time to the respondents, this Court on 3.3.2005 directed that "till the next date of listing the appointments, if any, made in pursuance of the select list dated 2.2.2005 shall be subject to further orders passed in this writ petition." As the matter was thereafter got adjourned by the learned counsel for the respondents, this Court, on 21.10.2005, directed that no further appointments shall be made in pursuance of the select list dated 2.2.2005. The matter has thereafter been listed today for final disposal.
I have heard Sri A.C.Pandey, learned counsel appearing on behalf of the petitioners in both the writ petitions and Sri Ranjit Saxena, learned counsel appearing on behalf of the respondents. Counter and rejoinder affidavits in both the writ petitions have been exchanged and with the consent of learned counsel for the parties, these writ petitions are being heard and disposed of at the admission stage itself.
Regulation 3.28 of U.P.Rajya Vidyut Parishad Parichalkiya Karmachari Varg Sewa Niyamawali, 1995 defines ''Parichalkiya Karmachari' (operating class) as under:-
"Parichalkiya Karmachari" se tatparya us vyakti se hai jo sharirik shram, ardhkushal, kushal parichalan nirman tatha anurakshan karya ke liya niyuktkiya gaya hai."
The English translation of the aforesaid Regulation would be as under:-
"Parichalkiya Karmachari" (operating class) means a person who is appointed for undertaking physical labour, semi-skilled/ skilled operational works and maintenance."
By the said definition, no posts are classified which are to be treated in ''operating class'. By U.P. Electricity Board's Order No.311 of March, 1988 (Annexure-3 to the writ petition) various posts in the ''operating class' (Parichalkiya Varg) have been named, in which the post of Lab Assistant is included. Admittedly the appointment of the petitioners had been made on the posts of Lab Assistants. One such appointment letter dated 27.12.1995 of Arvind Kumar Singh, one of the petitioners, has been filed as Annexure-2 to the writ petition. In the said appointment letter it has been clearly stated that the said Arvind Kumar Singh was appointed on the post of Lab Assistant which was in the ''operating class' (Parichalkiya Varg). Both these documents have not been denied by the respondents in the counter affidavit, but it has merely been stated that the posts of Lab Assistants are not in the ''operating class'. Even the issuance of the letter dated 26.6.2004 by the Executive Engineer of the Corporation has not been denied wherein it has categorically been state that the post of Lab Assistant is in the ''operating class' and belongs to skilled category.
The only contention of Sri Ranjit Saxena on behalf of the respondents is that the classification of posts would be governed by the Regulations of 1995 and that vide Board's decision dated 25.1.2005, communicated by the General Manager on 17.2.2005, it was stated that the post of Lab Assistant was not covered in the ''operating class' as per the Regulations of 1995. The said submission of the learned counsel for the respondents is not worthy of acceptance. The said order/letter has been communicated in February, 2005, which is much after the issuance of the advertisement dated 14.11.2003; after the written examinations were held on 25.7.2004; after the interviews were held between 27th and 30th September, 2004; and even after the declaration of the final select list on 2.2.2005. The position, as prior to the issuance of the advertisement dated 14.11.2003, that the post of Lab Assistant would fall in the ''operating class' as clarified by the Board's order of March, 1988 has not been denied. Even in June, 2004 the Executive Engineer categorically wrote to the Commission that the post of Lab Assistant would fall in the ''operating class' and such Lab Assistants would be eligible for promotion on the post of Junior Engineer. The representation of the petitioners filed on 26.6.2004, in response to the impugned order dated 10.6.2004, has yet not been decided by the Commission. The conduct of the respondents in not declaring the results of the petitioners despite this court's order dated 16.9.2004 and thereafter the order passed in Contempt Petition No.3002 of 2004 dated 5.1.2004 is highly deprecated. The respondents ought to have declared the results which, for reasons best known to them, have not been declared inspite of specific orders of this Court. From such conduct of the respondents it is absolutely clear that they did not want to include the petitioners in the promotion list, although from their own documents it is clear that the petitioners were fully eligible for being considered for such promotion. It was only after the stage of declaration of results, which was much after the issuance of the advertisement and also much after the filing of these writ petitions, that the clarification of the General Manager dated 17.2.2005 was issued. In the counter affidavit filed in writ petition no. 27561 of 2004, there is no such mention of any clarification having been issued by the Board prior to the said date. It is quite clear that the subsequent clarification was issued only for the purposes of these writ petitions and would not be binding on the petitioners who would be governed by the classification as it existed on the date of the advertisement which included the post of Lab Assistant in the ''operating class'.
As such, the order dated 10.6.2004 passed by the Commission rejecting the candidature of the petitioners for being considered for promotion on the post of Junior Engineer is liable to be set aside and is hereby quashed. The petitioners would be entitled to be considered for such promotion. In pursuance of this Court's order dated 23.7.2004, the petitioners have already appeared in the written examinations. Their results have been withheld and they have wrongly not been interviewed, which took place between 27th and 30th September, 2004, although this Court had directed on 16.9.2004 that their results of written examinations be declared and they be provisionally interviewed. For non-declaration of their results, despite this Court's order, the petitioners have already filed Contempt Petition in which, I am informed, counter and rejoinder affidavits have been exchanged and, thus, that matter shall be heard separately by the Bench having jurisdiction to hear the contempt petition.
In the aforesaid circumstances, it is directed that the Commission shall declare the results of the written examination of the petitioners within two weeks from the date a certified copy of this order is produced before the Commission, and in the case of those petitioners who have passed the said examinations, their interview would be held within three weeks thereafter and they shall be considered for promotion on the post of Junior Engineer along with other candidates who had been promoted by the select list dated 2.2.2005.
It has been stated at the Bar that after the passing of the interim order dated 21.10.2005, no fresh promotions have taken place in pursuance of the select list dated 2.2.2005 and still there are a substantial number of posts lying vacant. The candidature of the petitioners shall thus be considered for promotion on such vacant posts, and in case if no post is available, they shall be promoted on the posts as and when such promotional posts fall vacant but they shall be given the benefit of seniority and other consequential benefits, with effect from the date on which others were promoted in pursuance of the select list dated 2.2.2005.
With the aforesaid observations/directions these writ petitions stand allowed. The petitioners shall be entitled to cost, which this Court assesses at Rs.5,000/- (Rs. Five thousand only) which shall be paid to all the petitioners.
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