Jitendra Bahadur Singh vs Tehri Hydro Development Corporation Ltd. and Others

Sudhanshu Dhulia, J.—The petitioner is an Assistant Engineer of E-5 level in Tehri Hydro Development Corporation Limited (from hereinafter referred to as the ''THDC''). The initial appointment of the petitioner was on 3.8.1990 as an Assistant Engineer at E-1 level. Subsequently, the petitioner was promoted in the year 1994 to E-2 level, thereafter in 1997 to E-3 level and later to E-4 and E-5 level, in the year 2000 and 2003, respectively. The dispute raised in the present writ petition pertains to the promotion of petitioner from E-5 to E-6 level. According to the petitioner, a Departmental Promotion Committee was constituted in the year 2006 for the purposes of making promotions from E-5 to E-6 level. 58 Technical Executives of E-5 grade, including the petitioner, faced the Departmental Promotion Committee, out of which 53 were promoted to the E-6 level. According to the petitioner, there have been two junior persons to him working at E-5 level who have been promoted to E-6 level whereas the petitioner has not been recommended for this promotion. Petitioner alleges malice and arbitrariness of the Corporation and the powers that be, for not promoting him to E-6 level.

The case regarding malice, as made out by the petitioner runs as follows:

According to the petitioner he is appointed as an ''Estate Officer'' under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (from hereinafter referred to as the ''Act'') and there was pressure on him for passing ''certain orders'' by the powers that be, to which he did not yield and as a consequence he has been penalized by the authorities in THDC and the E-6 level promotion has been denied to him.

THDC in its reply to the writ petition has stated that promotions from E-5 level to E-6 level are based on merit-cum-seniority. The merit of the officers at the feeding cadre is assessed where a candidate is given marks out of a total of 100 marks. This includes 70 marks out of 100 on the report based on the past record and the remaining 30 marks are based on the interview faced by the candidate in the Departmental Promotion Committee. According to the respondents, the petitioner was interviewed on 21.8.2007 as were other officers. Thereafter the Departmental Promotion Committee had drawn a merit list on the basis of the graded marks obtained by the eligible executives. As Sri J.B. Singh i.e. the petitioner failed to get the requisite grades for the promotion, he was not promoted to the E-6 level with effect from 1.4.2007. The respondents have given example of other officers, who are also senior to the petitioner and who have also been denied this promotion. The fact that promotions were based on merit has not been denied by the petitioner.

It is hence the defence of the respondents that the petitioner could not be promoted from E-5 level to E-6 level, as he was not found ''suitable'' by the Departmental Promotion Committee.

The grounds raised by the petitioner about the Corporation Authorities interfering in his quasi judicial work as an Estate Officer is also not well-founded. We may just examine this aspect as well since so much emphasis has been made on this issue by the petitioner. The Estate Officer has been defined u/s 2 (b) of the Act, which reads as follows:

Definitions. -

(b) ''estate officer'' means an officer appointed as such by the Central Government u/s 3;

Estate Officer is consequently appointed u/s 3 of the Act. Section 3 of the Act reads as follows:

Appointment of estate officers. - The Central Government may, by notification in the Official Gazette, -

(a) appoint such persons, being Gazetted Officers of Government [or of the Government of any Union territory] or officers of equivalent rank of the [statutory authority], as it thinks fit, to be estate officers for the purposes of this Act:

[Provided that no officer of the Secretariat of the Rajya Sabha shall be so appointed except after consultation with the Chairman of the Rajya Sabha and no officer of the Secretariat of the Lok Sabha shall be so appointed except after consultation with the Speaker of the Lok Sabha:

Provided further that an officer of a statutory authority shall only be appointed as an estate officer in respect of the public premises controlled by that authority; and]

(b) define the local limits within which, or the categories of public premises in respect of which, the estate officers shall exercise the powers conferred, and perform the duties imposed, on estate officers by or under this Act.

Sections 3-A, 4 and 5 of the Act which are also necessary read as follows:

[3-A. Eviction from temporary occupation. - Notwithstanding anything contained in Section 4 or Section 5, if the estate officer, after making such inquiry as he deems expedient in the circumstances of the case, is satisfied that any persons who were allotted temporary occupation of any public premises are in unauthorised occupation of the said premises, he may, for reasons to be recorded in writing, make an order for the eviction of such persons forthwith and, thereupon, if such persons refuse or fail to comply with the said order of eviction, he may evict them from the premises and take possession thereof and may, for that purpose, use such force as may be necessary.]

Issue of notice to show cause against order of eviction .- (1) If the estate officer is of opinion that any persons are in unauthorised occupation of any public premises and that they should be evicted, the estate officer shall issue in the manner hereinafter provided a notice in writing calling upon all persons concerned to show cause why an order of eviction should not be made.

(2) The notice shall -

(a) specify the grounds on which the order of eviction is proposed to be made; and

(b) require all persons concerned, that is to say, all persons who are, or may be, in occupation of, or claim interest in, the public premises, -

(i) to show cause, if any, against the proposed order on or before such date as is specified in the notice, being a date not earlier than seven days from the date of issue thereof, and

(ii) to appear before the estate officer on the date specified in the notice alongwith the evidence which they intend to produce in support of the cause shown, and also for personal hearing, if such hearing is desired.]

(3) The estate officer shall cause the notice to be served by having it affixed on the outer door or some other conspicuous part of the public premises, and in such other manner as may be prescribed whereupon the notice shall be deemed to have been duly given to all persons concerned.

Eviction of unauthorised occupants. - (1) If, after considering the cause, if any, shown by any person in purchasing of a notice u/s 4 and [ any evidence produced by him in support of the same and after personal hearing, if any, given under clause

(b) of Sub-section (2) of Section 4], the estate officer is satisfied that the public premises are in unauthorised occupation, the estate officer may make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated, on such date as may be specified in the order, by all persons who may be in occupation thereof or any part thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.

(2) If any person refuses or fails to comply with the order of eviction [on or before, the date specified in the said order or within fifteen days of the date of its publication under Sub-section (1), whichever is later,] the estate officer or any other officer duly authorised by the estate officer in this behalf [may after the date so specified or after the expiry of the period, aforesaid, whichever is latter, evict the person] from, and take possession of, the public premises and may, for that purpose, use such force as may be necessary.

Sections 5-A and 5-B of the Act further give powers to the Estate Officer to remove unauthorised constructions and to order demolition of unauthorised construction respectively. Similarly, u/s 5-C powers have been given to the Estate Officer to seal unauthorised constructions. Section 6 of the Act gives powers to the Estate Officer for disposal of property left on public premises by unauthorised occupants. Section 6 of the Act reads as follows:

Disposal of property left on public premises by unauthorised occupants. - (1) Where any persons have been evicted from any public premises u/s 5, [or where any building or other work has been demolished u/s 5-B], the estate officer, may after giving fourteen days'' notice to the persons from whom possession of the public premises has been taken and after publishing the notice in at least one newspaper having circulation in the locality, remove or cause to be removed or dispose of by public auction any property remaining on such premises.

[1-A] Where any goods, materials, cattle or other animal have been removed from any public premises u/s 5-A, the estate officer may, after giving fourteen days'' notice to the persons owning such goods, material, cattle or other animal and after publishing the notice in at least one newspaper having circulation in the locality, dispose of, by public auction, such goods, materials, cattle or other animal.

(1-B) Notwithstanding anything contained in Sub-sections (1) and (1-A), the giving or publication of any notice referred to therein shall not be necessary in respect of any property which is subject to speedy and natural decay, and the estate officer may, after recording such evidence as he may think fit, cause such property to be sold or otherwise disposed of in such manner as he may think fit.]

(2) Where any property is sold under Sub-section (1), the sale proceeds thereof shall, after deducting the expenses of the sale and the amount, if any, due to the Central Government or the [statutory authority] on account of arrears of rent or damages or costs, be paid to such person or persons as may appear to the estate officer to be entitled to the same:

Provided that where the estate officer is unable to decide as to the person or persons to whom the balance of the amount is payable or as to the appointment of the same, he may refer such dispute to the Civil Court of competent jurisdiction and the decision of the Court thereon shall be final.

[(2-A) The expression ''costs'', referred to in Sub-section (2), shall include the cost of removal recoverable u/s 5-A and the cost of demolition recoverable u/s 5-B.]

A bare perusal of the above relevant Sections of the Act show that the powers given to the Estate Officer under the Act are immense. The Estate Officer is a prosecuting authority, an executing authority as well as a quasi judicial authority, all rolled into one. The Act envisages an in house mechanism of evicting unauthorised occupants from public premises. There is no material which has been placed on record which shows that the petitioner in his capacity as an Estate Officer was ever pressurised by the Corporation authorities to pass a particular kind of order. The documents annexed by the respondents, on the other hand, show that the petitioner was only directed not to delegate his authorities to other persons. Therefore, the case which has been made by the petitioner that he has been penalised for not abiding by the instructions of the Corporation authorities which according to the petitioner amounted to an interference in his quasi judicial work, is not well-founded, on the basis of the evidence available on record. It is clear that the Departmental Promotion Committee has not promoted the petitioner to E-6 level, as he was not found suitable. No specific grounds of malice have been alleged against any officer, nor has anyone been impleaded as a party in the writ petition. Moreover, no case is made out by the pleadings available on record of any mala fide against the Corporation authorities. The Departmental Promotion Committee which was constituted in the year 2006 to approve promotion to the post of Assistant Engineer E-6 level consisted of experts which have judged the suitability of the candidates, based on the available record before them. This Court does not find any fault in the procedure adopted by the Departmental Promotion Committee nor is there any violation of any provision of law. The writ petition, therefore, is totally devoid of merit and the same is liable to be dismissed and is hereby dismissed. No order as to costs.