Jharkhand High Court
Amit Kumar Singh vs Jharkhand Urja Vikas Nigam Limited ... on 24 September, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 4007 of 2022
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Amit Kumar Singh, son of Late Binod Prasad Singh,
residing at Flat No. A-1, Narayani Enclave, Amethiya
Nagar, Namkum, P.O. & P.S. Namkum, Town and
District-Ranchi. ..... Petitioner
Versus
1. Jharkhand Urja Vikas Nigam Limited through its
Chairman-cum-Managing Director, having office at
Engineer's Building, HEC Campus, P.O. & P.s. Dhurwa,
District-Ranchi.
2. The Managing Director, Jharkhand Bijli Vitran
Nigam Limited, having office at Engineer's Building, HEC
Campus, P.O. & P.S. Dhurwa, District-Ranchi.
3. General Manager (HR), Jharkhand Urja Vikas
Nigam Limited, having office at Engineer's Building, HEC
Campus, P.O. & P.S. Dhurwa, District-Ranchi.
..... Respondents
With
W.P.(S) No. 3459 of 2021
-------
1. Ghasi Ram Sardar, son of Charan Singh Sardar,
resident of village-Tilkagarh (Munda Tola), P.O.
Tatanagar, P.S. Parsudih, Jamshedpur, District-East
Singhbhum.
2. Prakash Kumar, son of Rampad Prajapati, resident of
village- Banta, P.O.-Banta, P.S. Silli, District-Ranchi.
..... Petitioners
Versus
1. Jharkhand Urja Vikas Nigam Limited through its
Chairman-cum-Managing Director, having office at
Engineer's Building, HEC Campus, P.O. & P.s. Dhurwa,
District-Ranchi.
2. Jharkhand Bijli Vitran Nigam Limited through its
Managing Director, having office at Engineer's Building,
P.O. & P.S. Dhurwa, District-Ranchi.
3. General Manager (HR), Jharkhand Bijli Vitran Nigam
Limited, having office at Engineer's Building, P.O. & P.S.
Dhurwa, District-Ranchi. ..... Respondents
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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
-------
For the Petitioner : Mr. Manoj Tandon, Adv.
Ms. Neha Bhardwaj, Adv.
(in W.P.(S) No. 4007 of 2022)
Mr. Amritansh Vats, Adv.
(in W.P.(S) NO. 3459 of 2021)
For the Respondents : Mr. Manish Kumar, Sr. S.C.
Ms. Sunita Kumari, A.C. to
Sr. S.C.
-------
CAV On 14.08.2024 Pronounced on: 24/09/2024
Heard learned counsel for the parties.
2. Since both these writ applications involves common
issue; as such both were heard together and being disposed
of by this common judgment.
3. These writ petitions have been preferred by the
respective petitioner for grant of notional appointment from
the date of appointment of similarly situated employees i.e.
16.11.2009, recruited through common recruitment
process being Advertisement Notice No. 01/2008 floated by
the then Jharkhand State Electricity Board (JSEB); with all
consequential benefits like increments etc. as per their
merit in the selection process irrespective of their date of
joining since the same was not under their control.
4. The brief facts of the case are that an advertisement
was published by JSEB inviting eligible candidate for
appointment on the post of Assistant Engineer (IT). The
result was published whereby these petitioners have been
declared successful. However, in spite of declaration of
result, the petitioners were not appointed, therefore, they
knocked the door of this Court by filing writ application
being W.P.(S) No. 5079 of 2009. Thereafter, this Court has
allowed the writ application and directed the respondents
to appoint these petitioners on the post of Assistant
Engineer (IT).
On 07.09.2011, the respondent-JSEB challenged the
said order passed by the writ court in appeal; however, the
Division Bench has dismissed the appeal. Thereafter, due
to non-compliance of the order of the writ court, the
petitioners have preferred contempt application; wherein,
on 21.10.2011, the joining letter was handed to the
petitioners in the High Court premises by the respondent-
Board. In light of the aforesaid joining letter, the petitioners
have jointed their post.
5. Subsequently, a gradation list of Assistant Engineer
(IT), which included the petitioners, has been published
wherein, the inter-se seniority of the petitioners of notional
date of joining has not been maintained in spite of the fact
that petitioners have made several representations to that
effect. Vide resolution dated 31.05.2017, petitioners were
promoted from the post of Assistant Engineer (IT) to
Executive Engineer (IT) wherein, the seniority of the
petitioners were maintained but date of joining as
compared to similarly situated employees appointed
through common recruitment process has not been
maintained.
Petitioners have been representing since the year
2015 vide representations dated 30.11.2015, 15.09.2020
and 22.03.2021 requesting therein to grant notional
seniority w.e.f. 16.11.2009 with consequential benefits at
par with the similarly situated employees appointed
through common recruitment process. However, all efforts
of these petitioners went in vain which forced these
petitioners to knock the door of this Court.
6. Learned counsels for the respective petitioners
submit that there were several posts advertised including
Assistant Engineer (Transmission); Assistant Electrical
Engineer (General Cadre), Assistant Engineer (IT) and
Assistant Executive Engineer (Distribution). After the result
was published, the respondents appointed number of
persons, but these petitioners were not appointed. This led
to a filing of W.P.(S) No. 5079 of 2009 by the petitioners and
others. The writ petition was allowed with the direction to
the respondent authorities to appoint the petitioners and
others on their respective posts.
It has further been submitted that the respondents
preferred an appeal before the Division Bench and the said
appeal was also dismissed. Thereafter, in compliance to the
judgment passed by the Division Bench, the petitioners
along with others were appointed on 20.10.2011.
7. It has further been contended that on the hand, the
petitioners' appointment was delayed by the respondents;
and on the other hand, the other candidates were allowed
to join on the post of Assistant Engineer (General Cadre).
Thus, the joining of the petitioners was delayed by almost
two years. Thereafter, the petitioner again moved before
this court.
8. Learned counsel for the respondents relying on its
counter-affidavit submits that the petitioners were selected
in the combined list of post code A-3 i.e. Assistant Engineer
(IT) and figured at the merit list of post code A-3. But
neither the post was sanctioned for Assistant Engineer (IT)
nor cadre rule/separate cadre for Assistant Engineer (IT)
was existing in the Board. Therefore, it was decided by the
Board not to appoint on the post code A-3.
9. He further submits that though the post of Assistant
Engineer (IT) was advertised, but the post was not
sanctioned by the Board besides no cadre rules of Assistant
Engineer (IT) was existing in the Board and without cadre
rule, it would not have been legally fair to appoint on that
post code A-3 and for that reason, the petitioners were not
given offer of appointment in 2009 itself. In fact, none of
the selected candidates for the post of post code A-3
Assistant Engineer (IT) were given offer of appointment
letter; rather appointment letter was sent only to those
candidates who have been selected for post code A-1 and
post code A-2 having Bachelor degree in Electrical
Engineering only and had obtained marks as prescribed in
the cadre rules.
10. He further submits that after the petitioners filed writ
petition before this Court and in compliance of the High
Court's order in W.P. (S) No. 5079 of 2009 and LPA No 226
of 2011 dated 07.09.2011 and subsequently Board's
Resolution No. 819, these petitioners were offered letter of
appointment on the post of Assistant Engineer (IT) vide
Letter No. 5636 dated 20.10.2011.
He lastly submits that the petitioners joined on the
post of Assistant Engineer (IT) in the JSEB on 21.11.2011
vide Notification No. 6478 dated 07.12.2011.
11. Having heard learned counsel for the parties and
after going through the documents available on record, it
appears that pursuant to the advertisement published by
the respondent-JSEB for appointment on the post of
Assistant Engineer (IT) vide Advertisement No. 01/2008
dated 20.09.2008 of which the result was published on
March, 2009, the petitioners were declared successful but
not selected and therefore, they moved before this Court for
a direction for appointment pursuant to the Advertisement
No. 1/2008 and the Co-ordinate Bench of this Court
allowed the writ application, directing the respondents to
appoint the petitioners on the post of Assistant Engineer
(IT) code A-3.
12. Pursuant thereto, after much exercise during
contempt proceedings, the petitioners were handed over
their joining letter and pursuant thereto, the petitioners
joined their post on 21.11.2011. However, it appears that in
the gradation list of Assistant Engineer (IT), which includes
the petitioners also, the inter-se seniority of these
petitioners of notional date of joining was not mentioned
and pursuant thereto petitioners represented before the
respondent-Board.
13. On 31.05.2017, petitioners were also promoted from
the post of Assistant Engineer (IT) to Executive Engineer
(IT); however, though the seniority of these petitioners were
maintained but date of joining as compared to similarly
situated employees appointed through common
recruitment process were not maintained which prima facie
appears to be illegal and arbitrary, inasmuch as, the
respondents should have treated the date on which other
candidates were appointed, as the date of appointment of
these petitioners also.
In this regard reference may be made to the case of
C. Jayachandran versus State of Kerala & Ors reported
in 2020 (5) SCC 230; wherein at para 39 the Hon'ble Apex
Court has held as under:-
"39. The appellant was wrongfully excluded from the process
of appointment on account of an illegal and arbitrary grant of
moderation of marks. The Government in its Order dated 22-12-
2010 cancelled the appointment of three District and Sessions
Judges who were granted benefit of moderation. Badharudeen
was earlier assigned general category seat but since the
appellant was higher in merit, Badharudeen was pushed down
and adjusted against OBC category seat at Sl. No. 42.
Badharudeen has not challenged his pushing down at Sl. No.
42 either before the learned Single Bench of the High Court or
before the Division Bench of the High Court or even before this
Court. Therefore, as respondent, he cannot be permitted to
dispute the grant of seniority to the appellant at Sl. No. 41. The
judgment referred to by the learned counsel is not helpful to the
arguments raised as the appellant therein sought seniority as
direct recruit from the time when the vacancies occurred. To
raise such an argument, reliance was placed upon judgment of
this Court reported in Union of India v. N.R. Parmar [Union of
India v. N.R. Parmar, (2012) 13 SCC 340 : (2013) 3 SCC (L&S)
711] , wherein this Court held that a person is disentitled to
claim seniority from the date he was not borne in the service.
The said finding is in the context of the claim of the appellant to
claim seniority from the date of availability of the vacancies;
whereas in the present case, the appellant is claiming seniority
from the date the other candidates in the same selection
process were appointed but the appellant is excluded on
account of an illegal act of the High Court of the moderation of
marks. Therefore, the said judgment is not of any help to the
arguments raised."
14. Similar issue was also involved before the coordinate
Bench of this Court in W.P.(S) No. 1778 of 2017 and W.P.(S)
No. 206 of 2022; wherein the grievance of those petitioners
was that the respondents were not granting the
seniority/notional seniority with effect from the date of
appointment of similarly situated employees recruited
through common recruitment process. The coordinate
Bench of this Court in both the writ applications have
directed the respondents to issue suitable order treating
the date on which other candidates were appointed as the
date of appointment of the petitioner and it was also
directed that the respondents should give notional date of
appointment with effect from the date which other
candidates were appointed.
15. Having regard to the aforesaid discussions and also
the judgment passed by the Hon'ble Apex Court and by the
Coordinate Bench of this Court, both these writ
applications are allowed, mainly for the reasons that the
name of these petitioners were wrongfully excluded from
the process of appointment, for no fault of these
petitioners.
16. Accordingly, the respondent-Board is directed to treat
the date on which other candidates pursuant to
Advertisement No. 01 of 2008 dated 20.09.2008 were
appointed, as the date of appointment of these petitioners.
The respondents are further directed to issue
appropriate order giving notional date of appointment with
effect from the date on which other candidates pursuant to
the said advertisements were appointed.
17. As a result, these writ applications stand disposed
of, in the manner indicated hereinabove. Pending I.A.s, if
any, also stands disposed of.
(Deepak Roshan, J.)
Jharkhand High Court at Ranchi
Dated:- 24/09/2024
Amardeep/
NAFR/AFR/
