Rajiv Sharma And Ors. vs Gnctd And Ors.
2017 Latest Caselaw 1574 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) No.3386/2003

%                                                            24th March, 2017

RAJIV SHARMA AND ORS.                        ..... Petitioners
             Through: Mr. Piyush Sharma and Mr. A.K.
                      Mishra, Advocates with petitioner nos.
                      1 and 3 in person.
                             versus

GNCTD AND ORS.                                              ..... Respondents

Through: Mr. S.K. Singh, Advocate for R-3.

Mr. Naresh Kaushik and Mr. Manoj Joshi, Advocates for R-4/UPSC.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. In the present writ petition under Article 226 of the

Constitution of India, as originally filed, the following relief clauses

were prayed:-

"(A) allow this writ petition of the petitioner with costs; (B) issue appropriate writ or writs, direction or directions, order or orders:

(i) quashing the Office Orders dated 1st January, 2003 and 10th February, 2003 assigning the current day charge of the post of Manager (T)-Civil to respondents Nos. 5 to 7;

(ii) declaring the seniority list of feeder post of Assistant Engineers/Assistant Executive Engineers is liable to be first prepared and the promotions to the next higher post of Executive Engineer (Civil)/Manager (T)-Civil is liable to be made in accordance with the said seniority list;

(iii) also declaring the petitioners entitled to be promoted to the post of Executive Engineer (Civil)/Manager (T)-Civil even on current duty charge basis with effect from the dates from which respondents Nos. 5 to 7 were so promoted with all consequential benefits;

(iii) directing the respondents to first prepare the seniority list of feeder post of Assistant Engineers/Assistant Executive Engineers and then only to make promotions to the next higher post of Executive Engineer (Civil)/Manager (T)-Civil in accordance with the said seniority list; and

(iv) also directing the respondents to promote the petitioners to the post of Executive Engineer (Civil)/Manager (T)-Civil even on current duty charge basis with effect from the dates from which respondents Nos. 5 to 7 were so promoted with all consequential benefits; (C) issue such other and further writ or writs, direction or directions order or orders as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case."

2. Writ petition is filed by four petitioners. The relief

clauses, it is seen, fall under basically two heads. One is the claim of

the petitioners to be appointed on current duty charge basis to the

higher post of Executive Engineer/Manager (Technical)-Civil.

Petitioners seek performing of the current duty charge to the higher

post of Manager (T)-Civil from their present posts at the time of filing

of the writ petition where the petitioners were working as Assistant

Executive Engineers/Assistant Managers (T)-Civil. The second head

of the relief is the claim of the petitioners for preparation of seniority

list in the present post which they are occupying of Assistant Executive

Engineers, and which relief is predicated again only for appointment to

the current duty charge post of the higher post of Executive

Engineer/Manager (T)-Civil. The writ petition originally was filed on

12.5.2003.

3. After hearing counsel for the petitioners at great length

with respect to the claim of the petitioners to seek appointment as

current duty charge appointments to the post of Manager (T)-Civil, it

transpired that the claim of the petitioners to the current duty charge

post of Manager (T)-Civil was on the basis of respondent nos. 5 to 7

not possessing the degree qualification in Civil Engineering and hence

these respondent nos. 5 to 7 being allegedly unfit for appointment to

the current duty charge to the post of Executive Engineer/Manager (T)-

Civil, however, it transpired that for appointment to the post of

Executive Engineer/Manager (T)-Civil there was also a requirement of

five years experience, and petitioners, admittedly, did not have five

years experience requirement. Petitioners hence did not qualify as

regards the experience requirement of the post of Executive

Engineer/Manager (T)-Civil as petitioners did not have the necessary

five years experience. It was also seen that the current duty charge of

the post of Executive Engineer/Manager (T)-Civil was without any

extra monetary remuneration, and as admitted by the petitioners in para

9 of the writ petition. Accordingly, learned counsel for the petitioners,

on instructions from the petitioners, has not pressed the relief of

petitioners being given the appointment as current duty charge holders

of the higher/promotion post of Executive Engineer/Manager (T)-Civil.

4. I may at this stage itself note that the writ petition, as

originally filed on 12.5.2003, was thereafter amended when petitioners

amendment application, being C.M. Appl. No. 7140/2006 was allowed

vide order dated 27.2.2008. On account of allowing of the amendment

to the writ petition, the petitioners added the grounds for challenging

the amended recruitment rules for appointment and promotion to the

post of Executive Engineer/Manager (T)-Civil, and which amended

rules were challenged by the petitioners on the ground that amended

rules were prejudicial to the petitioners and such amendments

prejudicial to the petitioners could not be carried out in view of the

Tripartite Agreement dated 28.10.2000 whereby Delhi Vidyut Board

(DVB), of which petitioners originally were the employees, was

unbundled into five companies. Petitioners after unbundling of DVB

became employees of Delhi Transco Limited/respondent no. 3. The

prejudicial amendments as per the petitioners were firstly of

requirement of clearing a written examination, secondly the experience

in the feeder cadre post being increased from five years to seven years,

and thirdly that 10% of the posts were to be filled in from diploma

holders whereas as per unamended rules 100% of the posts were to be

filled by degree holders.

5. The writ petition was thereafter argued in detail on behalf

of the petitioners by questioning the amended recruitment rules and

also for questioning the appointments of respondent nos. 5 to 7 to the

post of Executive Engineer/Manager (T)-Civil. I may, however, note

that the relief clauses of the amended writ petition were not happily

worded, in that the reliefs clauses had typing mistakes, wherein in

relief clauses (v) and (vi) the expression used was „proposed

recruitment regulations‟ although the recruitment rules/regulations

have already been finalized. The expression „proposed‟ was thus taken

as removed. The reliefs prayed by the petitioners as per the amended

writ petition read as under:-

"It is, therefore, most respectfully prayed that this Hon‟ble Court may graciously be pleased to (A) allow this writ petition of the petitioners with costs; (B) issue appropriate writ or writs, direction or directions, order or orders.

i. quashing the Office Orders dated 1st January, 2003 and 10th February, 2003 assigning the current day charge of the post of Manager (T) Civil to respondent nos. 5 to 7, ii. declaring the seniority list of feeder post of Assistant Engineers/Assistant Executive Engineers is liable to be first prepared and the promotions to the next higher post of Executive Engineer (Civil)/Manager (T)-Civil is liable to be made in accordance with the said seniority list;

iii. also declaring the petitioners entitled to be promoted to the post of Executive Engineer (Civil)/Manager (T)-Civil even on current duty charge basis with effect from the dates from which respondents Nos. 5 to 7 were so promoted with all consequential benefits;

iv. directing the respondents to first prepare the seniority list of feeder post of Assistant Engineers/Assistant Executive Engineers and then only to make promotions to the next higher post of Executive Engineer (Civil)/Manager (T)-Civil in accordance with the said seniority list; and

v. to quash the proposed recruitment regulations for the post of Manager (Civil), prepared after unbundling and approved by the Board of Directors of Delhi Transco Limited in its 14th Meeting held on 24.9.2003.

vi. to quash the promotions of respondents No. 5 and 7 which was done on the basis of proposed recruitment regulations and under the shelter of judgment dated 2.2.2005.

vii. to restrain the Respondent No. 3 to promote anybody on the post of Manager (Civil) on the basis of proposed recruitment regulations (C) Issue such other or further writ or writs, direction or directions order or orders, as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case."

6. It is seen that in the amended writ petition reliefs prayed

by the petitioners essentially again were under two heads. The first

head was with respect to the claim of the petitioners to be appointed as

current duty charge holders to the post of Executive

Engineers/Managers (T)-Civil and as already stated above, these reliefs

are no longer pressed on behalf of the petitioners. We are therefore left

with the relief clauses which pertain to the claim of the petitioners to

be seniors to the respondent nos. 5 to 7 in terms of the unamended

recruitment rules for the post of Executive Engineer/Manager (T)-

Civil, and therefore, of petitioners claim for their being appointed as

Executive Engineer/Manager (T)-Civil and instead of the appointments

of respondent nos. 5 to 7 as Executive Engineer/Manager (T)-Civil.

7. After counsel for the petitioners was heard at great length,

counsel for the petitioners, on instructions from the petitioners, states

that the relief clauses with respect to the challenge to the amended

recruitment rules is confined now for challenging the same for

claiming the seniority of the petitioners qua respondent no. 7 only, i.e

the petitioners do not press the reliefs of their claims of being senior to

respondent nos. 5 and 6. Therefore, this Court is now only called upon

to decide the issue of validity of the amended recruitment rules for the

post of Executive Engineer/Manager (T)-Civil and whether such rules

are liable to be quashed, because, the amendments made to the

recruitment rules as existing are prejudicial to the petitioners, and that

these amendments could not have been carried out in view of the

Tripartite Agreement dated 28.10.2000 of unbundling of DVB.

8. Let us now, therefore, examine the issue of the claim of

the petitioners to be entitled to promotion to the post of Executive

Engineer/Manager (T)-Civil in preference to the appointment of

respondent no.7. Respondent no. 7 was appointed to the post of

Manager (Civil) in terms of the order of the respondent no. 3 dated

26.5.2005, and which order reads as under:-

"DELHI TRANSCO LIMITED Shakti Sadan, Kotla Road, New Delhi-02 No: DTL/1010/HR (A&G)/86 Dated: 26.05.2005 Office Order Consequent upon the recommendation of the DPC and with the approval of Competent Authority Shri Nand Kishore Emp. No. 29810 Asstt Manager (Civil) is hereby promoted to the post of Manager (Civil) on regular basis in

the pay scale of Rs.12,500-19,100/- with immediate effect against the 90% quota of the sanctioned strength earmarked for Degree Holders. On his promotion, Shri Nand Kishore shall report to GM (Civil) for further posting. His relieving/Joining reports be send to all concerned quarters.

(G. Srinivasan) Dy. Manager (Admn.)-G"

9. It is required at this stage to be noted that there is no

specific prayer in the writ petition for quashing of the order dated

26.5.2005 whereby respondent no. 7 was promoted to the post of

Manager (Civil). It is clarified that Manager (Civil) is equivalent to

Manager (Technical), and which is the next promotion post from the

feeder cadre lower post of Assistant Executive Engineer/Assistant

Manager (T)-Civil, and to which post the respondent no.7 was

appointed. Be that as it may that petitioners have not challenged

specifically the order dated 26.5.2005 of appointment of the respondent

no. 7 to the post of Manager (Civil), yet arguments were heard further

with respect to the claim of the petitioners of challenge to the amended

recruitment rules and the claim of the petitioners of higher seniority

than that of the respondent no. 7.

10. It is also noted that petitioners have already got

promotions to the post of Manger (Civil) way back in the year 2009.

Petitioners got promotions to the post of Manager (Civil) vide order of

the respondent no.3 dated 10.7.2009. Respondent no. 7, as already

stated above, got promotion with effect from 26.5.2005 and initially

the issue as argued was the claim of the petitioners to seniority by their

promotions being delayed from 26.5.2005 to 10.7.2009 and that

petitioners should therefore have got promotions on 26.5.2005 when

respondent no. 7 got promotion to the post of Manager (Civil). Even in

this regard there was thereafter amendment in the arguments and the

prayer clause of the petitioners because it was found that as per the

unamended rules for appointment/promotion to the post of Executive

Engineer/Manager (T)-Civil there was a requirement of five years of

service in the feeder cadre post and that petitioners did not have five

years experience as on 26.5.2005. Petitioners regular appointments to

the feeder cadre post of Assistant Executive Engineer/Assistant

Manager (T)-Civil were as on 1.3.2002, 6.3.2002, 13.2.2002, 6.2.2002

and therefore in any case petitioners would not have got promotion on

26.5.2005 when the respondent no. 7 was promoted to the post of

Manager (Civil) , inasmuch as, even as per the unamended recruitment

rules since five years experience was required in the feeder cadre post

and that the petitioners would have only completed five years

experience in February/March, 2007, i.e after 26.5.2005 when

respondent no. 7 got promotion, and hence the only issue remained is

of claim of seniority of the petitioners earlier from February/March,

2007 instead of later from 10.7.2009 when the petitioners were

promoted to the posts of Executive Engineer/Manager (T)-Civil i.e

effectively issue of seniority of around two years and three odd

months. It is argued that petitioners seek the relief because petitioners

as also respondent no. 7 have to be considered in future to the next

promotion post of Deputy General Manager, and at that stage issue will

arise with respect to inter se claim of seniority.

11. It is undisputed that appointment of a person to the post of

Executive Engineer/Manager (T)-Civil is not an automatic promotion

post. It is not as if a person will be appointed to the post of Executive

Engineer/Manager (T)-Civil on having qualifications of a degree in

Civil Engineering and five years of experience as required under the

unamended rules, because, the higher/promotion post of Executive

Engineer/Manager (T)-Civil is admittedly a selection post. Learned

counsel for the petitioners on taking instructions from petitioner no. 3

Sh. Vijay Kumar states that to the selection post and higher promotion

post of Executive Engineer/Manager (T)-Civil last five years ACRs

have to be considered and the seniority will only matter if the ACRs

grading of all the eligible candidates are equal and whereafter seniority

will take precedence. Therefore, once the post of Executive

Engineer/Manager (T)-Civil is a selection post wherein the

Departmental Promotion Committee (DPC) has to be held and ACRs

of candidates have to be considered in addition to seniority, petitioners

had to necessarily plead and establish that their ACRs for the last five

years prior to the year 2007, were better/superior than that of the

respondent no. 7, and only in such circumstances would petitioners

have a claim with respect not to promotion, but only of consideration

of promotion to the higher post of Executive Engineer/Manager (T)-

Civil, but petitioners have not pleaded such a cause of action and

reliefs accordingly arising. Petitioners by the present writ petition also

should have prayed for holding of a DPC as in around the year

February/March, 2007 and for petitioners to be considered for

promotions by the DPC for the higher/promotion post of Executive

Engineer/Manager (T)-Civil, but even such a relief is not prayed in the

writ petition.

12. It is thus seen that the petitioners have neither specifically

sought quashing of the order dated 26.5.2005 appointing the

respondent no. 7 as Manager (Civil), and petitioners have also not

sought holding of a DPC in February/March, 2007 for consideration of

petitioners to the post of Executive Engineer/Manager (T)-Civil, and

that petitioners have most crucially not pleaded that their ACRs were

equal to or better than that of the respondent no. 7 and therefore if DPC

was held for consideration by selection to the higher/promotion post of

Executive Engineer/Manager (T)-Civil, then petitioners in fact would

have got appointed to the promotion post of Executive

Engineer/Manager (T)-Civil and not the respondent no.7. The present

writ petition, therefore, is liable to be dismissed on this limited ground

only that there is complete absence of pleadings whether with respect

to requisite prayer clauses and with respect to a cause of action of

holding of DPC and consideration of the petitioners for selection by

DPC to the higher/promotion post of Executive Engineer/Manager (T)-

Civil and of the petitioners entitlement to be selected as petitioners had

equal or better ACR‟s of five years prior to 2007 than as compared to

the respondent no.7.

13. Let me now examine the issue as to whether even if

pleadings exists of petitioners having better ACRs for last five years

than the respondent no. 7 so that petitioners had to be favorably

considered by the DPC of February/March, 2007 for being appointed

to the higher/promotion post of Executive Engineer/Manager (T)-Civil,

then whether the amended recruitment rules are illegal and hit because

petitioners are prejudiced, and which could not have been done in view

of the Tripartite Agreement dated 28.10.2000 which resulted in

unbundling of DVB.

14. Learned counsel for the petitioners has argued the issue of

prejudice on the ground that the unamended recruitment rules required

only 5 years experience but now 7 years experience is required in the

feeder cadre post of Assistant Executive Engineer/Assistant Manager

(T)-Civil, for being promoted to the post of Executive

Engineer/Manager (T)-Civil. Petitioners further argued the issue of

prejudice on the ground that now an examination is required for

promotion to the post of Executive Engineer/Manager (T)-Civil

whereas there was no such requirement of examination in unamended

recruitment rules. The third aspect of prejudice which is argued is that

original promotion to the post of Executive Engineer/Manager (T)-

Civil was only of degree holders in Civil Engineering but now 10%

candidates would also be diploma holders in Civil Engineering. Let us

examine that whether such aspects can be called as „prejudicial‟

amendments to the service conditions of the petitioners who were

employed by and working for erstwhile DVB.

15. So far as the issue of holding of the examination is

concerned, this aspect has already been held against the petitioners in

terms of the judgment dated 3.5.2005 passed by a learned Single Judge

of this Court, Hon‟ble Mr. Justice Vikramajit Sen, as he then was, in

bunch of writ petitions with lead case W.P.(C) No. 8564/2004. The

judgment dated 3.5.2005 was taken up in challenge before a Division

Bench in an LPA but this challenge was also unsuccessful as the

Division Bench vide order dated 1.8.2005 dismissed the challenge.

Therefore, so far as the aspect of holding of examinations by the

respondent no.3 for promotion to the post of Executive

Engineer/Manager (T)-Civil, it cannot be argued that such change in

the recruitment rules is a prejudicial amendment and which could not

have been done in view of the Tripartite Agreement dated 28.10.2000.

16. Let us now examine as to whether if 10% of the

candidates to be considered for the posts of promotion to the Executive

Engineers/Managers (T)-Civil from diploma holders will amount to

serious prejudice to the petitioners and which will violate the Tripartite

Agreement dated 28.10.2000. The prejudice had to be a serious and

grave prejudice. Any and every prejudice is not a legal prejudice

giving rise to a cause of action. Respondent no.3 has stated in its

counter-affidavit that it was because of the lack of availability of

requisite number of personnel which were then available with the

respondent no.3 in the year 2003 when the rules were amended,

whereby appointments could not take place by promotions to fill in the

higher posts of Executive Engineer/Manager (T)-Civil, accordingly,

10% of diploma holders were added for being considered, so as to

avoid, to the extent possible, going in for appointments of Executive

Engineer/Manager (T)-Civil (in the absence of promotion) by

deputation or direct recruitment.

17. (i) In my opinion, merely because just 10% additional

candidates being diploma holders are also considered as per the

amended recruitment rules for appointment to the post of Executive

Engineer/Manager (T)-Civil, whereas the earlier position as per the

unamended rules was that 100% of the candidates have to be degree

holders, this is not such a great prejudice in the facts of the present case

because respondent no.3 has rightly contended that as per the

circumstantial position with respect to the lack of competent personnel

who were then available with the respondent no.3, hence this

amendment was brought about as stated above, and accordingly it

cannot be held that the amended rules are gravely and seriously

prejudicial to the petitioners and hence violative of the Tripartite

Agreement dated 28.10.2000. Any and every prejudice cannot be held

to be violative of the terms of the Tripartite Agreement dated

28.10.2000.

(ii) I may also note that the real prejudice to the petitioners would

only be if on account of amendment of the recruitment rules

petitioners‟ eligibility in terms of the unamended recruitment rules

would prevent them for seeking promotion in terms of the amended

recruitment rules. That is however not so because petitioners even as

per the amended recruitment rules would continue to be eligible for

consideration for promotion to the higher/promotion post of Executive

Engineer/Manager (T)-Civil. Therefore, in the opinion of this Court, it

cannot be argued that petitioners are prejudiced and service conditions

have been amended adversely to their interest because it is not as if

under the amended rules petitioners‟ earlier eligibility criteria did not

remain a valid eligibility criteria for promotion/appointment to the

higher post of Executive Engineer/Manager (T)-Civil. The argument

of the petitioners therefore is rejected that by the amendment of the

rules by adding 10% of the diploma holders as candidates for

promotion to the posts of Executive Engineers/Managers (T) - Civil,

the amended recruitment rules are hit by the Tripartite Agreement

dated 28.10.2000. The second argument of the petitioners is also

therefore rejected.

18. The aforesaid discussion and reasoning given with respect

to challenge to the amended recruitment rules will also apply to the

argument of amended recruitment rules requiring instead of 5 years

experience, 7 years of working experience, in the feeder cadre post

because and once again in the facts of the present case by seeking to

require additional experience it is not that respondent no.3 has caused

such grave and serious prejudice to the petitioners inasmuch as if the

requirement of an examination can be taken as a valid additional

qualification to be obtained by the candidates which would not violate

the Tripartite Agreement dated 28.10.2000, then for getting better

candidates if two years additional experience is required by the

amended rules in the feeder cadre post, then in my opinion, the

requirement of the employer to have better candidates at the higher

level post by additional experience of two years will not result in such

serious and grave prejudice to the petitioners for the petitioners to

question the amended recruitment rules.

19. Since the judgment of the learned Single Judge dated

3.5.2005 in W.P. (C) No. 8564/2004, and the order of the Division

Bench dated 1.8.2005 in LPA No. 1662/2005 would also be relevant so

far as deciding the issue of alleged illegality of the amended rules as

regards the requirement of additional two years experience as also the

aspect of 10% diploma holders being considered, let me reproduce

these two orders and which read as under:-

1. Order dated 3.5.2005 "Clause 3(b) of the Tripartite Agreement which reads as follows is at the fulcrum of the dispute:

The terms and conditions of service upon transfer to the corporate entitles, such as promotions, transfers, leave and other allowances, etc. regulated by existing regulations/service rules e.g. FR/SR will be guaranteed to continue the same and any guaranteed to continue the same and any modifications shall be by mutual negotiations and settlement with recognize unions/associations without detriment to the existing benefits. The grievance of the Petitioners are that the existing Service Rules have been altered by the Respondents without negotiating with the Petitioners. Attention has been drawn to several representations made by the Delhi Transco Limited Employees‟ Association (Regd.) in the context of the R&P Regulations.

Briefly stated no changes and amendments that have been effected in the assailed Service Regulations which stipulate that appointments to Class-II posts shall be by Selection-50% by promotion failing which by direct recruitment and 50% by direct recruitment. The change that has been effected is by an Office Order dated 8.3.200 which specifies that the criteria for selection will be covered by the following parameters out of a total matrix of 100 i.e. Qualification (15), Experience (10), C. R.Assessment (5) and performance in departmental training (25). It has been explained by learned counsel for the Respondent that now persons desirous of being selected to Class-II posts will have to go to successfully complete a departmental training. The grievance of the Petitioner is that they have already put in 29 years of service and shall be disadvantaged in such training/examination since they may not be abrest with the latest theoretical knowledge. The need to underto departmental training is a salutary introduction. No employee can have a vested right in remaining inefficient or in not endeavouring to improve his knowledge, functioning and working. I do not find anything in the new Regulations which is detrimental to the interests of the Petitioners. Selection implies that the most proficient will be successful.

The only remaining question is whether Clause 3(b) of the Tripartite Agreement has been transgressed. Counsel for the Petitioner is unable to show that the Association which had made repeated representations to the Respondents for negotiations was a recognized Union/Association. It will be virtually impossible for the Management to enter into parley with each and every employee or several Unions/Associations. The Delhi Transco Limited Employees‟ Association should have sought recognition in order to enforce, strictly and in a semantic manner, the terms of the Tripartite Agreement. As I find the changes made in the Service Regulations to be progressive, and since there is no recognized Union/Association, I do not consider this case to be appropriate for exercising the extraordinary jurisdiction and discretion embodies in Article 226 of the Constitution. The Writ petition stands dismissed."

2. Order dated 1.8.2005 "CM 10635/05 Allowed subject to just exceptions.

CM 10634/05

Notice. Ms. Ahlawat waives service of notice.

Heard learned counsel for the parties.

Delay in filing the appeal is condoned.

Application is allowed.

CM 10633/05 & LPA 1662/05 The present appeal is filed against the order made by the learned single judge in W.P.(C) 8564/04 and other connected matters decided on 3.5.2005. Before the learned single Judge question was raised that Tripartite Agreement cannot be changed without consulting the persons who are likely to be adversely affected.

There is no change in the agreement as such but the learned single Judge has pointed out that the system adopted for selection is much better. Learned counsel has pointed out the parameters out of a total matrix, of 10 marks divided into qualification, experience assessment and performance in departmental training appears that so far as the training/examination is concerned the petitioner has raised a grievance that has already put in 29 years of service and shall disadvantaged a such training/examination. The need undergo departmental/training is a salutary introduction as pointed by the learned single Judge. It is not only this department but almost in all the departments of Government it is required to be implemented.

It is also pointed out that the petitioner association not a recognized association and there is no reason for employer to directly deal with such association.

Appeal is dismissed."

20. The present writ petition therefore in the opinion of this

Court besides being wholly misconceived, has resulted in gross

wastage of judicial time on account of unjustified issues being raised

by the petitioners and that too in the complete absence of pleadings and

relief clauses. This Court has been more than liberal to the petitioners

because this Court has examined the petition in the complete absence

of pleadings of the petitioners for being entitled to be considered for

the higher/promotional post of Executive Engineer/Manager (T)-Civil

because admittedly the higher/promotion post is a selection post and

petitioners have not pleaded and filed their five years ACRs as being

equal to or better than the respondent no.7. Also, the claim and cause

of action with respect to the petitioners being appointed as duty charge

holders was completely frivolous as the duty charge post not only did

not carry additional remuneration but also the petitioners in fact

themselves did not have one eligibility criteria of the higher post of

Executive Engineer/Manager (T)-Civil on which petitioners claimed to

be appointed as duty charge holders because petitioners did not have

the necessary 5 years experience. Also, although the writ petition was

amended in 2006 by which time respondent nos. 5 to 7 had been

specifically promoted by different promotional orders but yet the

petitioners did not seek the relief of quashing of such promotion orders

of the respondent nos. 5 to 7. The lack of application from the

petitioners exists even in the amended writ petition‟s prayer clause

calling the actual amended regulations only as proposed regulations,

but that the regulations were not proposed regulations but had in fact

been approved by the Resolution of the respondent no.3 of the year

2003. All of the aforesaid aspects were basically either to obfuscate

the issue or to unnecessarily drag on the litigation. Therefore, the

present is a fit case for not only dismissing of the writ petition, but this

writ petition is dismissed with costs of Rs. 40,000/- i.e Rs. 10,000/- qua

each of the four petitioners. Half of the costs will be paid to the

respondent no.3 and half of the costs will be deposited by the

petitioners with the Friendicoes, No.271 & 273, Defence Colony,

Flyover Market, Jangpura Side, New Delhi-110024 within a period of

six weeks from today.

21. The writ petition is dismissed and disposed of in the

above terms.

MARCH 24, 2017                            VALMIKI J. MEHTA, J
AK/ib