WPSB/550/2017
2023 Latest Caselaw 1594 UK

            IN THE HIGH COURT OF UTTARAKHAND
                                AT NAINITAL
                  HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                                        AND
                     HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                 WRIT PETITION (S/B) NO. 579 OF 2017
                              09TH JUNE, 2023
BETWEEN:
Uttarakhand Power Corporation Ltd.                              .....Petitioner.
And

Shri B.M. Bhatt & others                                        ....Respondents.

WITH WRIT PETITION (S/B) NO. 543 OF 2017 WRIT PETITION (S/B) NO. 550 OF 2017 WRIT PETITION (S/B) NO. 552 OF 2017 WRIT PETITION (S/B) NO. 554 OF 2017 WRIT PETITION (S/B) NO. 563 OF 2017 WRIT PETITION (S/B) NO. 476 OF 2019 WRIT PETITION (S/B) NO. 132 OF 2022 WRIT PETITION (S/B) NO. 340 OF 2022 Mr. Dharmendra Barthwal, Mr. M.C. Pant, Mr. Bhagwat Mehra, Mr. Abhijay Negi, Mr. Piyush Garg, learned counsels for the petitioners.

Mr. Rajendra Dobhal, learned Senior Counsel assisted by Mr. I.P. Gairola, Mr. Vinay Kumar, Mr. Bhupesh Kandpal, Mr. Shashank Pandey, learned counsels for the private respondents.

The Court made the following:

COMMON ORDER:(per Hon'ble The Chief Justice Sri Vipin Sanghi)

Correction Application (IA No.19220 of 2023), Modification Application (IA No.14889 of 2023), Interim Order Vacation Application (IA No.16829 of 2023), Clarification Application (IA No.15513 of 2023)

These applications have been filed by the applicants

to seek modification of our orders dated 31.03.2023 and

19.04.2023.

2. Before we deal with these applications, we may

take note of the earlier orders passed in these proceedings.

In these proceedings, the judgment and order dated

07.11.2017, passed by the Uttarakhand Public Services

Tribunal, has been assailed. The dispute in these petitions

relates to the inter se seniority in the cadre of Assistant

Engineer (AE). The Tribunal, while disposing of the claim

petitions before it, set-aside the promotions granted to the

individual writ petitioners, and simultaneously, directed

drawing of a fresh seniority list in terms of the directions

issued by the Tribunal.

3. The writ petition came up before this Court on

13.12.2017. In the order passed in Writ Petition (S/B) No.579

of 2017, the operation of the impugned judgment was stayed

by this Court to the extent that the orders of promotions were

set-aside. However, it was made clear that "there will be no

stay of the order directing the preparation of the seniority

list; but, we also make it clear that this will be without

prejudice to the contentions of the petitioner and also subject

to the result of the writ petition. The seniority list to be

prepared should be produced before this Court in a sealed

cover".

4. On 26.04.2018, without disturbing the earlier

order, the Court further directed that neither the pendency of

the writ petition, nor the interim order, aforesaid, shall come

in the way of the petitioner-UPCL in carrying out promotions

to the post of Executive Engineer in terms of the seniority list

dated 03.01.2015, which was impugned before the Public

Services Tribunal. However, those promotions were to be

subject to the result of the writ petition.

5. The UPCL did file the seniority list in a sealed cover

before this Court. It was not made clear by the UPCL that the

list filed was only a tentative list, and not the final list.

Therefore, the only impression given was, and conclusion

which could be drawn was, that the list prepared was in

accordance with the order passed by the Tribunal, and that it

was final.

6. The matter was taken up on 31.03.2023, when we

took up the application being IA No.19219 of 2023, filed by

some of the private respondents, who were due to retire, and

they pleaded that since there was no stay operating insofar

as the implementation of the seniority list- to be prepared in

terms of the order of the Tribunal, is concerned, the same

should be given effect to. This Court, in its order dated

31.03.2023, inter alia, observed as follows:-

"From the aforesaid order, it would be seen that the directions setting aside the promotions was stayed. At the same time, the Court made it clear that the seniority list may be prepared without prejudice to the rights and contentions of the petitioner and also subject to the result of the writ petition.

The seniority list was to be produced before the Court in a sealed cover. The same has been filed before this Court, but the sealed cover has not been opened. In our view, the same should have been opened, since the Court expressly stated that there is

no stay directing preparation of the seniority list, and that the seniority list would be subject to outcome of the writ petition.

Accordingly, we direct that the seniority list lying in a sealed cover be opened. The same may be given effect to, without prejudice to the rights and contentions of the parties, and subject to further orders in the writ petition."

7. Though, the seniority list submitted by the UPCL

was opened, it was not given effect to in terms of the order

dated 31.03.2023. Consequently, on 19.04.2023, we

observed, inter alia, as follows:-

"We direct listing of the matter on mentioning, since it was informed that though the sealed cover was opened, the seniority list has not been given effect to in terms of the order dated 31.03.2023. The purpose of directing opening of the sealed cover was to enable its implementation without prejudice to the rights and contentions of the parties, and subject to further orders in the writ petition.

Accordingly, we direct the UPCL to give effect to the seniority list in terms of the order dated 31.03.2023, without any further delay."

8. Now the aforesaid applications have been filed to

seek modification of the orders dated 31.03.2023 and

19.04.2023, inter alia, by the UPCL itself, stating that the list

filed before this Court in a sealed cover was a tentative list,

and not the final seniority list inasmuch, as the objections

were not invited to the said list.

9. First and foremost, we find it curious that the UPCL

had doubts about its own list. It is clear that the UPCL is

wishing to wash its hands of the list filed by it in terms of the

orders passed by this Court. We are now informed that the

list was merely a tentative, inasmuch, as the objections were

not invited.

10. It has been argued by learned counsels for the

private petitioners that even the said tentative list not in

accordance with the order passed by the Tribunal. It is

argued that the intent of this Court, when it passed the

orders, was that the seniority list prepared in terms of the

impugned judgment be given effect to, subject to further

orders. However, since, according to them, the seniority list

now prepared is not in terms of the judgment of the Tribunal,

the same should not be given effect to, without giving an

opportunity to the affected persons to file their objections

thereto, and without a decision being taken on the said

objections.

11. On the other hand, it is argued by Mr. Kumar, who

appears for the private respondents, that the UPCL has been

misleading this Court by filing a seniority list in a sealed

cover, and without informing the Court that the same was not

final. He further submits that the respondents have been

suffering due to the inordinate delay, and they have not been

granted promotion- some of the affected persons have

retired, or about to retire, without granting promotion to the

post of Executive Engineer.

12. It is also argued that some of the juniors have been

given promotion, and that situation has been perpetuated due

to the delay and inaction on the part of the UPCL.

13. We have heard learned counsels, and we are of the

view that the UPCL has not actually complied with the orders

passed by this Court on 13.12.2017, and even, thereafter.

14. The UPCL was directed to proceed with the

preparation of the seniority list in terms of the impugned

judgment, and to file the same before this Court in a sealed

cover. This, obviously, meant that the seniority list should

have been prepared so that it was final, and not merely

tentative seniority list (subject to the outcome of the present

petitions). Before it being filed in this Court, the UPCL should

have completed all formalities by calling objections from the

affected persons, and deciding the same. The UPCL is now

wishing to wash its hands of the list filed by it, on the ground

that it is tentative, and objections are pouring in, in respect of

the said seniority list.

15. In our view, the UPCL has to be appropriately

penalized for its aforesaid disobedience of the order dated

13.12.2017, and also for being instrumental in denying

promotions to persons who deserve to be promoted in terms

of the Rules.

16. We, therefore, subject the UPCL to costs of Rs.1.00

Lakhs. The costs be deposited in this Court within two weeks.

We shall decide as to the persons to whom the said costs

should be disbursed, on the final hearing of the writ petitions.

The costs shall be recovered by the UPCL from those officers/

officials who are responsible for non-compliance of the order

dated 13.12.2017.

17. We direct the UPCL to invite objections to the

seniority list, which was filed in this Court in a sealed cover,

and which has been opened, electronically. Electronic notice,

in this regard, shall be issued to all concerned persons today

itself, and objections should be invited electronically within

five days. The objections which are received shall also be

considered and decided within a week thereafter.

18. It is made clear that no further time shall be

granted, and in case of non-compliance of this order, the

Managing Director, UPCL, shall personally remain present in

Court on the next date.

19. List on 23.06.2023.

(VIPIN SANGHI, C.J.)

(ALOK KUMAR VERMA, J.) Dated: 09th June, 2023 NISHANT