Allahabad High Court

Pankaj Singh vs State Of U.P. And 2 Others on 31 October, 2017

Bench: Saumitra Dayal Singh




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 28
 

 
Case :- WRIT - A No. - 50530 of 2017
 

 
Petitioner :- Pankaj Singh
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Syed Wajid Ali
 
Counsel for Respondent :- C.S.C.,Ayank Mishra
 

 
Hon'ble Saumitra Dayal Singh,J.

Heard Sri Syed Wajid Ali, learned counsel for the petitioner and Sri Ayank Mishra, learned counsel for the respondents.

This writ petition has been filed seeking to quash an advertisement dated 23.9.2017 and the regulation made under Section 17 of the Uttar Pradesh State Electricity Board Sub-ordinate Electrical and Mechanical Engineering Service Regulation, 1972 (hereinafter referred to as the Regulation). In short, it is the case of the petitioner that he was appointed as Shramik P1 on 19.8.1992 and thereafter he was promoted to the post of Technician Grade-II (P-4) on 1.1.1997 and had been further promoted to Technician Grade (P-5) on 7.2.2015 on which post he is working since then.

The grievance of the petitioner appears to be that by virtue of the amendment made to the Regulation, on 16.1.2014 which has been annexed to the writ petition, the weightage of marks to be awarded for High School Examination has been denied to the petitioner.

For the ready reference, unamended and amended Regulation 17 are quoted below:-

वर्तमान प्राविधान

एतदद्वारा प्रतिस्थापित प्राविधान

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

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

(a) Members of operating staff (skilled) from the category of P-5 &P-6 in the U.P. Rajya Vidyut Parishad Parichalikiya Karamchari Varg sewa Vinayamavali, 1995" (as amended) according to the following criteria on interview basis;

"Total numbers of marks allotted will be 100 which will be distributed as under:-

(i)

High School

10 marks

(ii)

Inter Or/if Higher than Inter

10 marks

20 marks

(iii)

ITI

Or/If Diploma or higher

25 marks

35 marks

(iv)

Experience (one mark for each year of service)

25 marks

(v)

Interview

10 marks

Provided there is no punishment/misc. Advance awarded or disciplinary proceeding pending and there is no adverse reporting in the available Annual Confidential Reports for the past 10 years immediately proceeding the selection.

The selection for these candidates shall be carried out through "Vidyut Utpadan Sewa Ayog", and through committee as defined for selection at (b) (v) below. The inter-se seniority of candidates selected shall be in accordance to the merit in the list prepared by the above mentioned procedure.

(b) 8.33&horizontal reservation shall be provided to the Members of Operating Staff (skilled) and have completed 02 year service after the completion of the aforesaid Diploma/degree before commencement of the selection year.

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

(ii) 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 the practical and oral test shall be added.

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

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

(v) A Committee comprising the following will supervise the written examinations and held the practical and oral tests:-

1) Chief Engineering

2) One Superintending Engineer to be nominated by Chief Engineer.

3) An officer of the Corporate Human Resources not below the rank of Deputy Secretary to be nominated by Chief Engineer (HR).

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

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

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

"Total numbers of marks allotted will be 100 which will be distributed as under:-

(i)

High School (Science &Maths)

25 marks

(ii)

ITI

20 marks

(iii)

Higher Technical Qualification

10 marks

(iv)

Experience (one mark for each year of service)

35 marks

(v)

Interview

10 marks

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

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

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

(v) A Committee comprising the following will supervise the written examinations and held the practical and oral tests:-

1) Chief Engineering

2) One Superintending Engineer to be nominated by Chief Engineer.

3) An officer of the Corporate Human Resources not below the rank of Deputy Secretary to be nominated by Chief Engineer (HR).

Learned counsel for the petitioner submits that under the unamended Regulation, he was entitled to be awarded 10 marks for having passed the High School Examination whereas after amendment the said marks cannot be awarded to him for the reason that he had not passed High School examination with Science and Maths as subjects in that examination.

Thus, he claims that the respondents have, in a wholly arbitrary manner, deprived the petitioner of promotional avenues. In this regard, learned counsel for the petitioner relies on a judgment of the Supreme Court in the case of Panchraj Tiwari Vs. M.P. State Electricity Board and others reported in 2014 All. C.J. 1170 wherein paragraph 18 it has been held as below:-

"18. Instant is a case where there is complete denial of promotion forever which cannot be comprehended under the constitutional scheme of Articles 14 and HYPERLINK "javascript: fn Open GlobalPopUp('/ba/disp.asp','16912',1');" "HYPERLINK " HYPERLINK "javascript:fnOpenGlobalPopUp('/ba/disp.asp', '16912','1';"16"16 of the Constitution of India. In this context, we shall refer to a beautiful discussion on this aspect in S.S. Bola case (supra) at paragraph 153. The relevant portion reads as follows:

153. xxx xxx xxx xxx

AB. A distinction between right to be considered for promotion and an interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruitment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an Act merely affecting the chances of promotion would not be regarded as varying the conditions of service. The chances of promotion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a constitutional court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the Court is the result of the declaration of law but not the operation of the rules per se."

(Emphasis supplied)

In the instant case, learned counsel for the petitioner submits that if the amended Regulation is given effect it would result in complete denial of promotion to the petitioner, for all times, because he will not be permitted to participate in the promotion process.

Thus, according to learned counsel for the petitioner to pass High School examination with Science and Maths has been made an essential pre-qualification and since the petitioner has not passed that examination with Science and Maths as subjects but with other subjects, he claims that he is being considered ineligible for promotion under the amended Regulation.

Opposing the submission so made by learned counsel for the petitioner, Sri Ayank Mishra, learned counsel for the respondents no. 2 and 3 submits that the post of Junior Engineer, by its very nomenclature and also in view of the nature of job requirements is a technical post requiring, besides experience a certain minimum level of understanding of scientific and mathematical principles and concepts that a person acquires upon studying of the subjects of Science and Maths.

He would also submit, initially no weightage of marks was given for consideration for promotion to the post of Junior Engineer. At that stage, the qualifying service alone was required for being considered for promotion to Selection Grade for members of operating staff depending upon the education qualification that they possessed. Higher the education qualification, shorter the period of qualifying service was prescribed.

In this regard, a person with a simple High School certificate was required to have 5 years qualifying service whereas a person not having such a qualification required 10 years or more of qualifying service to be considered for promotion. As against the above, person having qualification mentioned in the appendix-A of the Regulations needed only 3 years of qualifying service to be considered for selection grade.

After the amendment made in the year 2010, the Regulation provided for award of weightage marks for the purpose of grant of promotion. Under the amended Regulation, 10 marks were to be awarded for passing High School examination. It was however not necessary to have passed the High School Examination with Science and Maths as subjects to have benefit of those weightage marks. Then, 10 marks were to be awarded for completing Intermediate examination and 20 marks for still higher qualification. Again, 25 marks were to be awarded for having ITI certificate and 35 marks for diploma or still higher qualification. Thereafter, 25 marks were to be awarded for experience/service, with one mark for each year of service. Lastly, 10 marks were to be awarded for the interview.

Upon amendment made to the Regulation, while it is true that the weightage of marks for the High School marks has been restricted to such students who would have passed the examination with Science and Maths as subjects, and therefore, the petitioner would not be awarded any marks for the same as he had admittedly passed the High School Examination with subjects other than Science and Maths, yet, at the same time, while making the amendment, the total marks to be awarded for experience have been increased from 25 to 35.

Thus, in the first instance, the petitioner would not be entitled to any marks against the High School certificate, yet the maximum marks that can be awarded to him for experience have been increased from 25 to 35. Basically, the disallowance, if any, arising by restricting the benefit of High School Examination to those who have passed that examination with Science and Maths subject has been compensated with additional marks contemplated for experience.

Even otherwise being a technician post, it cannot be said that the amendment made is, on the face of it, arbitrary. It is true that the complete deprivation of promotional avenue has to be construed as a violation of Article 14, yet, at the same time, it does not follow not follow that the promotional avenue must necessarily always be allowed or created dehors the desirability of suitability of an employee to the higher promotional post.

It appears in the wisdom of the corporation, it has decided to promote such persons to the post of Junior Engineer who possess better/higher qualification in preference over others who base their claim on experience only. At the same time, it is difficult to accept the contention made by the learned counsel for the petitioner that the amendment Regulation completely bars the petitioner from seeking promotion inasmuch as, as noted above, additional marks for experience have been provided by the amendment. Thus, according to the petitioner, he is entitled to one mark for each year of service completed since 1997. Thus, the amendment only creates preference in favour of those with better qualification, in the short run but those with lesser qualification but more experience will have opportunity to catch up later.

It is the suitability and the desirability of the petitioner at present which has been altered as the corporation appears to have created a preference for those with better educational qualification who may therefore be better equipped to handle the job description required to be performed on the post of Junior Engineer. Such preference made by virtue of amendment to the Regulation cannot be termed as arbitrary and unreasonable. The amended Regulation will affect the petitioner's prospects only if the corporation has sufficient number of employees with such better qualification and in that circumstance. It would then be able to choose in preference those with better qualification over others with lesser qualification i.e. persons such as the petitioner who did not pass a High School Examination with Science and Maths and who do not have experience of more than ten years.

The submission made by learned counsel for the petitioner that by virtue of amendment, he has been completely deprived of promotional avenues inasmuch as he will never fall in the zone of consideration for promotion, is misconceived. In the first place, there is no fundamental right available with the petitioner to be promoted on the post of Junior Engineer, though he may not have the essential qualification prescribed.

Then, even otherwise there is no embargo imposed by the amended Regulation from the petitioner to be considered for promotion on the post of Junior Engineer. Only change that has been made by the amendment is that the petitioner would not be awarded any weightage marks for having passed the High School examination. However, he will be awarded weightage marks for experience, being one mark for each year of service performed by him.

Non award of marks in respect of the High School is not arbitrary in view of the fact that the petitioner wants to be considered for promotion on a technical post and the benefit of weightage has been restricted for those who have passed the examination with Science and Maths as subjects.

No other points has been pressed in the writ petition. The writ petition lacks merit and is dismissed. No order as to costs.

Order Date :- 31.10.2017

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