Mahesh Kumar Bajpai and Others vs Madhya Pradesh State Electricity Board and Others

Sujoy Paul, J.—By filing this petition, the petitioners Testing Assistant Grade-II in the respondents department prayed that they be given appointment as Diploma Trainee as per circular No. 01-05/I/146 dated 09-11-1989 Annexure P/2. Shri Dwivedi, learned counsel for the petitioners submits that as per the circular Annexure P/2 it was decided that such class-III and Class-IV employees who are working inferior to the post of junior engineer and have acquired the diploma in engineering during service needs to be considered for appointment as diploma trainee. By placing reliance on Annexure P/1 dated 02-04-2003, it is contended that petitioners are subjected to discrimination. Their juniors have been appointed pursuant to Annexure P/2 as diploma trainees. Thus, mandamus is prayed for to direct respondents to appoint the petitioners as diploma trainees.

Per contra, the stand of Shri Jain, learned counsel for the respondents is that Annexure P/2 does not provide any channel of promotion, it is a mode of direct recruitment. Any direct recruitment can be made provided there exists vacancy in the wing in which petitioners are working. By relying on Annexures R-7/1 to R-7/4, it is contended that petitioners are working in the transmission wing and the vacancy position shows that there were 69 surplus employees in the category of junior engineer as on March, 2006.

I have heard learned counsel for the parties and perused the record.

The language of Annexure P/2 makes it clear that it is enabling provision. Right of consideration of an employee as per this enabling provision is always subject to availability of vacancy. Employees with whom parity is prayed for by the petitioners, belong to generation wing. Both the wings have different cadre and different cadre strength. An employee of one wing cannot compare his case with the employee of another wing. Putting it differently, there may be vacant post in one wing whereas in another wing post may be surplus. Thus, no parity can be sought from an employee of different wing.

During the course of arguments Shri Dwivedi fairly admits that certain petitioners during pendency of petition have been given the benefit from later date as per Annexure P/2. This itself shows that such benefit must have been given when vacancy occurred. No mandamus can be issued to compel the employer to enforce Annexure P/2 despite non-availability of vacancy. Thus, I find no merit in the petition. No mandamus can be issued to the employer to create post or appoint the person despite non-availability of post. However, this will not preclude consideration of case of petitioners as per availability of post. Petition is dismissed. No costs.