Bses Yamuna Power Ltd. vs S.C. Kansal
2012 Latest Caselaw 1627 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 7th March, 2012

+                         LPA No. 741/2011

BSES YAMUNA POWER LTD.                                        ..... Appellant
                Through:                Mr. Sandeep Prabhakar, Advocate

                                     Versus

S.C. KANSAL                                                 ..... Respondent
                          Through:      Mr. Rajesh Pathak, Advocate.

CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The challenge in this intra court appeal is to the judgment dated 13th

July, 2011, as corrected on 20th July, 2011, of the learned Single Judge

allowing WP(C) No. 2859/2002 preferred by the respondent by directing the

appellant to issue appropriate orders clarifying that the promotion of the

respondent as Assistant Engineer (AE) is as of the year 1995 when such

promotion became due and by further directing the appellant to consider the

case of the respondent for promotion as Executive Engineer on completion

of eight years as AE i.e. as of 2003. Notice of the appeal was issued. The

counsel for the respondent stated that the respondent will not enforce the

order of the learned Single Judge till decision of this appeal. The counsels

have been heard.

2. The respondent filed the writ petition aforesaid pleading that he is a

Degree holder in Electrical Engineering of 1976 batch; that he joined the

services of the erstwhile Delhi Vidyut Board (DVB) being the predecessor

of the appellant as Inspector in July, 1979; that he was promoted to the post

of Superintendent in the year 1991 and on completion of three years, as per

the Recruitment and Promotion Rules (R & P Rules), became eligible for

promotion to the post of AE in July, 1994; that vide Office Order dated 24th

August, 1995 he alongwith 28 others, also working as Superintendent, were

assigned "current duty charge of the post of AE" and continued to so

discharge duties of AE till the filing of the writ petition but without full

benefit; that the Office Order dated 24th August, 1995 was under challenge

in CWP No. 3080/1995 titled K.K. Sharma Vs. MCD; that in the year 1999

the post of Inspector and Superintendent were amalgamated and converted

into the post of Junior Engineer; that no attempt was being made to make

regular appointments to the post of AE − instead promotions to the said post

were made ad hoc and that too by giving preference to diploma holders over

degree holders; all this was contrary to R & P Rules; that to the same effect,

vide Office Order dated 15th April, 2002, 73 employees had been promoted

to the post of AE though on ad hoc basis and none of whom were Degree

holder. Relief of quashing of Office Order dated 15th April, 2002 and

issuance of mandamus for filling up the post of AE, were sought in the writ

petition.

3. The appellant filed a counter affidavit in the writ petition pleading that

the respondent was a Superintendent (T) re-designated as JE and was

holding the post of AE (E/M) on look after basis since 24th August, 1995;

that his name appeared at serial No. 705 in the seniority list of

Superintendent (T); that he alongwith 28 others were vide Office Order

dated 24th August, 1995 assigned only current duty charge to man the vacant

post of AE in view of the orders in CWP No.s 1652/1993 and 3153/1993

(sic for 5153/1993) filed by S.K. Goel and A.K. Mittal respectively; that the

Office Order 24th August, 1995 did not confer any right for

regularization/promotion/ad hoc appointment to the post of AE or for any

other benefit; that as per R & P Rules, 50% of the vacancies in the grade of

AE (E/M) were to be filled up by direct recruitment and 50% by promotion;

subsequently the promotion quota was enhanced from 50% to 66%; regular

promotion was to be made on the basis of the selection to be done by

DPC/UPSC; however the ad hoc promotion was resorted to since the post of

AE being a supervisory post could not be kept vacant for long; such ad hoc

promotions were made on the basis of seniority cum fitness and eligibility

criteria laid down in R&P Rules; that the petitioner could not claim any right

on the basis of higher qualification over his seniors unless the seniors were

not eligible under the R&P Rules; that ad hoc promotion had been made in

unreserved category till serial no. 626 while the name of the respondent

appeared at serial No. 705; that the respondent would be promoted as per his

turn.

4. The learned single Judge has in the impugned judgment

observed/found/held :-

(i) that there was no valid explanation given by the appellant to

justify the grant of ad hoc promotion in August, 1995 to persons

junior to the respondent and the grant of promotion to the

appellant as AE only in the year 2004;

(ii) that there was no denial by the appellant in the counter affidavit

that persons junior to the respondent and having only a diploma

had been promoted on ad hoc basis as AE and thereafter on

regular basis;

(iii) the action of the appellant in not considering the case of the

respondent for promotion when the same fell due was unfair;

(iv) that instead of placing the respondent on current duty charge as

AE w.e.f. 24th August, 1995, he should have been considered for

regular promotion w.e.f. that date;

(v) there was no explanation for not doing so till 2004 by which time

many of the juniors of the respondent had been promoted either

on ad hoc basis or otherwise;

(vi) the respondent had thus been discriminated in the matter of

consequent promotion to the post of EE.

5. We may at the outset clear the position as in the Recruitment Rules.

Therein, the post of AE (E&M) is described as a selection post, with the

method of recruitment of 66% by promotion and 34% by direct recruitment

and with eligibility for promotion from the post of Superintendent (T)

prescribed as 3 years regular service in the case of Degree holder and 7 years

regular service in the case of Diploma holder.

6. The Office Order dated 24th August, 1995 assigning current duty

charge as AE to the respondent as also the counter affidavit of the appellant

referred to CWP No.s 1652/1993 and 5153/1993. We had during hearing

called for the said files. CWP No. 1652/1993 titled Surinder Kumar Goel

Vs. MCD and CWP No. 5153/1993 titled Anil Kumar Mittal vs. MCD were

filed seeking a direction for consideration of the petitioners therein for

promotion as Assistant Engineer. It was the case of Shri Surinder Kumar

Goel and Shri Anil Kumar Mittal in the said writ petitions that a large

number of vacancies in the post of AE in the direct recruitment quota were

remaining unfilled and ad hoc appointments therefor were being made while

there was a long delay in promotion quota for the said post; relief of filling

up of the direct quota post of AE by regular appointments by promotion was

sought in the said writ petitions. Vide order dated 11th March, 1994 in the

said writ petitions promotions to the post of AE were stayed. However,

vide order dated 24 th May, 1994 direction was issued for filling up of the

then 50% post of the direct quota post of AE and the said posts were

restrained to be filled up by promotion / ad hoc promotion. Further

direction was issued for filling up of 50% promotion post of AE in

accordance with the R & P Rules and restraint was issued against

regularization of ad hoc promotees to the said posts. The said writ

petitions were ultimately dismissed for non-prosecution on 31 st January,

2000 and 9th December, 2002.

7. It was explained in the counter affidavit in CWP No. 1652/1993 that

the posts of AE of the quota of direct recruitment were not being filled up

for the reason of the then general ban on the recruitment in Government

service; however since the said post was a supervisory post and the

functioning of DVB was being affected by vacancies in the said post, those

eligible for being promoted to the said post were given current duty

charge/ad hoc promotion to the said post.

8. What thus emerges is, that the current duty charge of the post of AE

given to the respondent on 24th August, 1995 was against the vacant post of

AE in the direct recruitment quota. The respondent could have been given

regular promotion only in the promotion quota post of AE. There is nothing

to show that there were any vacancies in the promotion quota post of AE till

then. The categorical assertion of the appellant in the counter affidavit to the

writ petition as also before us was/is of the respondent as per the seniority

list being at serial no. 705 and having been promoted to AE in the year 2004.

It is settled principle in law that there is no right of promotion on acquiring

eligibility. Promotion can be claimed only against a vacancy (see Union of

India v. Ishwar Singh Khatri 1992 Supp (3) SCC 84 and Deepa Augustine

v. Geetha Alex (2008) 16 SCC 526. Infact in A.K. Sarma v. Union of India

(1999) 2 SCC 178 ex post facto clarification that promotion was ad hoc was

upheld for the reason that at the time of promotion since no regular

vacancies existed, the promotion could not have been treated on regular

basis.). The respondent, even if after 3 years as Superintendent, had become

eligible in 1994 to be promoted as AE, had no claim to be even considered

for promotion until a vacancy occurred in the said post. According to the

appellant, there was no vacancy. The respondent has been unable to show

otherwise. The learned Single Judge also has not returned any finding in this

regard; he has proceeded on the premise that because ad hoc promotions

were being made and current duty charge as AE being assigned, there must

be a vacancy. However, that vacancy as aforesaid was in the direct

recruitment quota posts and to which the respondent could not have been

promoted. The Supreme Court in State of Mysore v. C.R. Sheshadri (1974)

4 SCC 308 observed that no promotion could be directed to be given from a

back date unless the Court had the necessary data regarding the vacancy

position and set aside the direction of the High Court granting such

promotion without any finding as to the vacancy position.

9. The Supreme Court in State of Punjab v. Arun Kumar Aggarwal

(2007) 10 SCC 402 reiterated that asking an officer holding substantively

lower post to discharge the duties of higher post cannot be treated as

promotion and such person continues to hold the substantive lower post and

only discharges the duties of higher post essentially as stop gap

arrangement; that no right accrues from the same. Similarly, in State of

Haryana v. S.M. Sharma 1993 Supp (3) SCC 252 the judgement of the

High Court reading the order of giving current duty charge as an order of

promotion was set aside. Yet again in Sreedam Chandra Ghosh v. State of

Assam (1996) 10 SCC 567 it was held that officiation in a higher post

confers no right to the post.

10. As far as the argument of the respondent of Diploma holders having

been given preference over Degree holders is concerned, the R & P Rules as

aforesaid equate a Degree holder Superintendent of 3 years experience with

a Diploma holder Superintendent with 7 years experience. It is thus well

nigh possible that a Diploma holder Superintendent with 7 years experience

may be senior to the respondent even though a Degree holder. As aforesaid

there appears to have been a stagnation for long in the post of AE by

promotion. Thus a Diploma holder if had completed 7 years as

Superintendent before the respondent though a Degree holder completed 3

years as Superintendent, would be senior to the respondent. Even otherwise

the post as per the R & P Rules is a selection post. The appellant in its

counter affidavit to the writ petition had relied upon the seniority list in

which the respondent was placed at serial no. 705. The said seniority list was

not under challenge. Though the respondent in the rejoinder to the counter

affidavit of the appellant had generally controverted the seniority list but had

not impleaded those ahead of him as parties thereto. In the absence of any

challenge to the seniority, the same cannot be doubted.

11. The Supreme Court in V.B. Badami v. State of Mysore (1976) 2 SCC

901 held that where Rules prescribe quota between direct recruits and

promotees, confirmation or substantive appointment can only be in respect

of clear vacancies in the permanent strength of the cadre and confirmed

persons are senior to those who are officiating. It was further held that direct

recruitment is possible only by competitive examination and promotees, if

any, in excess of clear permanent vacancy cannot claim any right to hold the

promotional post unless the vacancies fall within their quota; if the

promotees occupy any vacancies which are within the quota of direct

recruits, then when direct recruitment takes place, the direct recruits will

occupy the vacancies within their quota and the promotees occupying the

vacancies within the quota of direct recruits will be reverted if cannot be

absorbed in the vacancies within their quota. It was further held that as long

as the quota rule remains, neither promotees can be allotted to any of the

substantive vacancies of the direct recruits nor direct recruits can be allotted

to promotional vacancies. It was yet further held that one group cannot claim

the quota fixed for another group on the ground that the quotas are not filled

up or on the ground that the excess in one quota should be absorbed

depriving the other group of the quota.

12. The counsel for the respondent invited our attention to judgment dated

8th February, 2008 of this Court in LPA No. 1037/2004 titled Satya Dev

Tomar Vs. MCD holding that promotion should be deemed to have taken

effect retrospectively from the commencement of the current duty charge,

specially when the incumbent had continued uninterruptedly with the said

charge for long. However, the same as aforesaid, has to be subject to

availability of post. The respondent neither before the learned Single Judge

nor before us has been able to build up a case of availability of post of AE in

the promotion quota in the year 1995. There is also no challenge as

aforesaid to the seniority list. There is thus nothing to suggest that the

respondent was wrongly denied promotion at any stage.

13. We are afraid the aforesaid aspects were not highlighted by either of

the parties before the learned Single Judge and which has resulted in the

same remaining unconsidered. Once the matter is seen in the said

perspective, no error is found in the actions of the appellant which were

impugned in the writ petition and consequently the judgment of the learned

Single Judge cannot be sustained. The appeal is accordingly allowed; the

judgement dated 13th/20th July, 2011 set aside; consequently the writ petition

filed by the respondent is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

MARCH 7, 2012 „M..‟