Sh. D. P. Surya vs Delhi Vidyut Board & Ors.
2012 Latest Caselaw 6308 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of decision: 19th October, 2012
+                                W.P.(C) No.3088/1999
       SH. D. P. SURYA                                          ..... Petitioner
                          Through:      None.
                                     Versus
    DELHI VIDYUT BOARD & ORS.                 ..... Respondents

Through: Ms. Zeenat Masoodi for Mr. S.K.

Dubey, Adv. for R-1 to 4.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J

1. None appears for the petitioner; considering that the writ petition is of the year 1999, it is not deemed proper to adjourn the matter. The records have been perused. The petition was filed seeking mandamus to the then Delhi Vidyut Board (DVB) to promote the petitioner to the post of Executive Engineer (EE) as per Rules regarding time bound pay scale, as the petitioner had completed the requisite service with the respondent Department. The undisputed facts are that the petitioner was appointed as an Inspector with the DVB on 10th September, 1973 and was promoted to the post of Superintendent (Technical) on 7th September, 1977; he was on 11 th July, 1979 promoted to the post of Assistant Engineer (AE) but on ad hoc basis; the said ad hoc appointment continued till 20th February, 1982 when he was regularized as AE. It is the case of the petitioner that on completion of ten years service on the post of AE he was to be promoted to the post of EE; that in the year 1984 a writ petition was filed by certain other employees of the DVB regarding fixation of seniority etc.; that vide judgment in the

said writ petition titled Shri Ram Murti Sharma Vs. Delhi Electricity Supply Undertaking reported as 1994 I AD (Delhi) 916. It was directed that ad hoc services were to be counted while fixing the seniority; that the petitioner on the basis of the said judgment was entitled to inclusion of the time spent by him on the post of AE on ad hoc basis; that though in pursuance to the said judgment the DVB circulated a seniority list dated 4 th July, 1994 but the name of the petitioner in the said list figured at serial no.187; that the said seniority was determined treating the petitioner to have occupied the post of AE only on 20 th February, 1982 when he was regularized and not on 11 th July, 1979 when he was posted on ad hoc basis; that right from 1982 till the filing of the petition in the year 1999, no promotion as due after completing 10 years of service and on further completing eight years service had been granted. It is further the case of the petitioner that DVB had illegally and unjustly denied to him the benefit of the ad hoc service as AE.

2. Rule was issued on 19th May, 1999 in the petition and the respondent DVB filed a counter affidavit pleading that as per the Recruitment and Promotion Regulations for the post of AE notified on 14th August, 1980 according to which Superintendent (T) with three years regular service in case of Degree holders and seven years regular service in case of Diploma holders were eligible to be considered for promotion to the grade of AE; that the first meeting of DPC was held on 3rd September, 1981 to consider the promotion/regularization of officers in the grade of AE in accordance with the said Regulations; that the petitioner who is a Diploma holder, had not

completed seven years service as Superintendent (T) till then and was not eligible for appointment as AE; however since the petitioner belonged to the reserved category (SC), relaxation of the Regulations was considered and a proposal in this regard was sent to the UPSC; that UPSC vide its communication dated 12th January, 1982 concurred therewith; accordingly 14 officers belonging to SC category including the petitioner were appointed on regular basis w.e.f. 20th February, 1982 and their seniority in the cadre of AE was fixed according to the merit assigned by the DPC.

3. The respondent in its counter affidavit, qua the claim of the petitioner to the post of EE has stated that according to the Recruitment and Promotion Regulations, vacancy in the grade of EE is to be filled by promotion failing which by deputation and failing which also by direct recruitment on the basis of selection; in the case of promotion 90% of the quota is to be filled from AE (possessing Degree in Electrical/Mechanical Engineering) with five years regular service in the grade and 10% of the quota from AE (possessing Diploma in Electrical/Mechanical Engineering) with seven years regular service in the grade; that the petitioner being a Diploma holder is to be considered in the 10% quota; that due to non-availability of sufficient vacancies for Diploma holders, the petitioner could not be considered for promotion.

4. However the respondent in its counter affidavit has stated that as far as time bound promotions in terms of the order dated 23 rd July, 1997 relied upon by the petitioner are concerned there are a large number of officers to be considered and the said process was underway.

5. It is further the case of the DVB in the counter affidavit that though this Court in Shri Ram Murti Sharma supra had directed fixation of seniority of departmental promotees vis-à-vis direct recruitees by taking into consideration ad hoc service but since the petitioner was not eligible for promotion on the date of ad hoc appointment and became eligible only after receipt of concurrence of UPSC to proposal for relaxation, the petitioner is entitled to seniority computed on the basis of appointment to the post of AE on 20th February, 1982 only.

6. The petitioner filed a rejoinder to the counter affidavit of DVB.

7. This Court vide order dated 20th December, 2001 directed the respondent as well as the petitioner to file additional affidavits. An additional affidavit was filed by DVB but in which it was disclosed that the Recruitment and Promotion Regulations were notified only in the year 1982; else it was reiterated that the ad hoc appointment as AE could not be taken into consideration for computing seniority since the same was contrary to the Recruitment and Promotion Regulations.

8. The petitioner in response stated that the respondent had counted the ad hoc service of others.

9. Upon unbundling of the DVB, an amended memo of parties was filed with the permission granted in the order dated 12th September, 2002 and the counsel states that she represents all the substituted entities i.e. Transco, Genco, M/s BSES as well as M/s Tata Power. It may also be mentioned that

the petitioner had impleaded as respondents no.2 to 161, other officers ahead of him in the seniority list and likely to be affected by the outcome of the petition and the counter affidavit and the additional affidavit are titled as on behalf of all the respondents, though it appears that individual notices were not sent to the said officers.

10. As far as the claim of the petitioner to promotion to the post of EE is concerned, in view of the explanation in the counter affidavit that the petitioner could be considered for promotion to the post in the 10% quota only and in the absence of anything to show that the persons considered for promotion ahead of the petitioner were not senior to the petitioner, the same cannot be granted.

11. As far as the claim of the petitioner for time bound promotional scale in terms of the office order dated 23 rd July, 1997, on completion of 10 years regular service and 18 years regular service is concerned, the same was not disputed in the counter affidavits and the only plea was that the same was still being worked out. The only direction which can be issued with respect thereto is that if the same had not been already worked out, the same be worked out and the dues if not already released to the petitioner be now released within a period of eight weeks by whichsoever authority is responsible therefor.

12. That leaves the claim of the petitioner to correction of the seniority list. The said claim is based solely on the judgment of this Court in Shri Ram Murti Sharma; else the law as laid down in Ch. Narayana Rao Vs.

Union of India (2010) 10 SCC 247, State of Haryana Vs. Haryana Veternaty & A.H.T.S. Association (2000) 8 SCC 4 and in State of West Bengal Vs. Aghore Nath Dey (1993) 3 SCC 371 is that no benefits of ad hoc appointment as a stop gap arrangement and in contravention of Rules, enure.

13. The direction in Shri Ram Murti Sharma was predicated on the appointments, though being ad hoc but being in accordance with the regulations; however that is not found to be the case here. The petitioner, as on the date of ad hoc promotion on 11th July, 1979 was not eligible for promotion; even though the Recruitment and Promotion Rules were notified after the said ad hoc promotion but the fact remains that the petitioner till then had not been confirmed to the said post. When the stage for the petitioner to be considered for promotion/regularization to the post was reached, the Rules were in force and it was found that the petitioner was not eligible; however finding that he belonged to the reserved category and the Recruitment and Promotion Regulations made had no provision for relaxation for reserved category, a proposal therefor was mooted and forwarded to UPSC and upon receipt of concurrence, the petitioner was regularized on 20th February, 1982. In these circumstances it cannot be said that the ratio of the judgment in Shri Ram Murti Sharma is applicable to the petitioner. The petitioner is thus not found entitled to the said relief.

14. The petition is therefore dismissed save for a direction to the concerned respondent to, within eight weeks of today release the dues of time bound promotional scale due to the petitioner, if not already so released.

No costs.

RAJIV SAHAI ENDLAW, J

OCTOBER 19, 2012 pp..