Naginder Singh (deceased) through his LRs. vs State Of H.P & Ors.

Jiya Lal Bhardwaj, Judge (Oral)

The original petitioner Naginder Singh, by way of present petition had prayed for the following substantive reliefs:-

The original petitioner, who died on 28.05.2021 got substituted by his legal representatives namely, Kamla Devi, wife and Arun Kumar, son on 30.09.2022.

For the purpose of adjudicating the claim in the present petition, the parties are referred to as they were arrayed in the writ petition originally filed.

Shorn of unnecessary details, the key facts of the case are that the petitioner was appointed as Oil and Cleaner with Himachal Pradesh State Electricity Board (for short the respondent-Board) on 14.11.1985 and was posted at Binwa Power House, Uttrala, Baijnath, on regular basis. Thereafter, he was promoted as Electrician in January 1989 and was posted at Bhabanagar, District Kinnaur, Himachal Pradesh. In August, 2005, he was promoted as Foreman and posted at Chaba Power House, Sunni, District Shimla, Himachal Pradesh. As per the Notification dated 02.05.1996 (Annexure A-1), the respondent-Board had notified the Recruitment and Promotion Regulations in respect of the post of Foreman (Special) and as per these Regulations, the post of Foreman (Special) was to be filled up by promotion from amongst the Foreman in the respective categories/cadre having minimum eight years regular service in the grade. Since there were only six posts of Foreman (Special), which were to be filled up by promotion, the respondent-Board had adopted 13 point Model Roster for promotion. In the final seniority list of Foreman, Power House (E), as it stood on 01.01.2011 (Annexure A-3), the petitioner figures at Serial No.5. As per 13 point Model Roster adopted by the respondent-Board, a meeting of Departmental Promotion Committee (for short the ‘DPC’) was convened on 06.03.2012, when persons at Serial Nos.1, 2 and 6 as per final seniority list of Foreman, Power House (E) as it stood on 01.01.2011 (Annexure A-3) were promoted to the post of Foreman (Special), as per the Model Roster for promotion appended with the petition as Annexure A-4 by applying fourth cycle. As per fourth cycle, the first two posts were to be filled up from (unreserved category) General category candidates and the third post was reserved for Scheduled Caste (for short ‘SC’) category and a person, namely, Ramesh Chand, who was at Serial No.6 and belongs to SC category, was promoted to the post of Foreman (Special). Thereafter, no DPC was convened till 2015.

It has further been averred that as per the provisional seniority list of Foreman, as it stood on 01.01.2015 (Annexure A-5), the name of the petitioner was at Serial No.2 and since two posts were lying vacant of Foreman (Special), he was expecting that his name will be considered in the DPC to be held in the months of April and May, 2015. However, the respondent-Board ignored his legitimate and rightful claim for promotion to the post of Foreman (Special) as per provisional seniority list of Foreman on the basis of which promotions were made and respondent No.4, who was at Serial No.9 was considered for promotion to the post of Foreman (Special) by adopting the fifth cycle, which provides that the first post will go to General category (unreserved category) and the second post will go to the SC category. The petitioner has placed on record the copy of promotion order dated 27.07.2015 (Annexure A-7) in respect of respondent No.4, who was at Serial No.9 in the provisional seniority list (Annexure A-5, page 22).

The petitioner made a representation to the respondent-Board to make his promotion vide Annexure A-8, but the respondent-Board did not take any decision and the petitioner has, therefore, approached this Court by way of present petition. The petitioner has averred in the petition that the action on the part of the respondent-Board by not considering him for the post of Foreman (Special) is illegal, unjust, unconstitutional and in violation of the settled principles of service jurisprudence. Further, the action on the part of the respondent-Board while promoting respondent No.4 to the post of Foreman (Special) is illegal, unjust, unconstitutional and in violation of the regulations and Model Roster applicable for promotion to the post of Foreman (Special) in the cadre service. The respondent-Board either has not followed 13 point Model Roster or has deliberately ignored the legitimate claim of the petitioner and there was no question of giving promotion to the SC category candidate when the promotion had to be made on the basis of the settled seniority position and further, since the post of Foreman (Special) was a non-selection post, it had to be filled up only on the basis of seniority, notwithstanding adverse entries in the personal file of the petitioner. Once the petitioner was admittedly senior to respondent No.4 and there were no adverse entries in his personal file, the respondent-Board erred in failing to consider him for promotion to the post of Foreman (Special) and thus, prayed for quashing the promotion of respondent No.4 as per office order dated 27.07.2015 (Annexure A-7) with a direction to the respondent-Board to promote him to the post of Foreman (Special) with effect from 27.07.2015, with all consequential benefits.

Respondents No.2 and 3 filed reply to the petition and in preliminary submissions submitted that the petitioner is presently working as Foreman, Power House Electrical (PHE), with effect from 19.08.2005. The next promotional channel of the petitioner is to the post of Foreman (Special) (PHE) as per the R&P Rules of Foreman (Special), framed/notified by the Board, vide Notification dated 02.05.1996 and amended vide Notification dated 20.02.2010. At present, six number of posts of Foreman (Special) (PHE) are sanctioned in the Board, which are filled up 100% by promotion from amongst the eligible Foreman (PHE) in order of seniority in the feeder post and the reservation roster applicable in the Board, vide Office Memorandum dated 13.10.1998, specifically meant for promotion for cadre strength up to 13 posts. It has further been averred that during July 2015, one vacant post of Foreman (Special) (PHE) has been filled up by promoting respondent No.4, who belongs to Scheduled Caste reserved category, vide order dated 27.07.2015. As per seniority list of Foreman (PHE) as it stood on 01.01.2015 (Annexure R-3), the name of respondent No.4 was appearing at Serial No.9, besides point earmarked to SC category candidate in the reservation roster dated 13.10.1998 upto cadre strength of 13 posts. The respondent-Board has filled up two numbers of posts of Foreman (Special) by rotation in 5^th cycle, wherein first post goes to General category candidate and second post goes to SC category candidate and two Foreman (PHE) Shri Prakash Chand and respondent No.4 have been promoted to the post of Foreman (Special) (PHE), vide order dated 11.05.2015 and 27.07.2015 respectively, against above points. Since respondent No.4 has been promoted against earmarked post by following reservation point, there is no question arising regarding injustice caused to the petitioner. Further, the respondent-Board is a public sector undertaking and has to go by Rules and regulations and so far as the present petition is concerned, no case has been made out by the petitioner and as such his claim is not maintainable.

On merits, it has been submitted that the DPC was held during March 2012 to fill up three vacant posts of Foreman (Special) (PHE) from amongst eligible Foreman (PHE). It has further been submitted that promotion has been made as per roster point and rotation-wise in 4^th cycle of model roster upto 13 posts, wherein the third post goes to the SC category and one Shri Ramesh Chand, Foreman (PHE) was promoted against the earmarked post specified in the reservation policy adopted by the Board, as per order dated 13.10.1998. It has also been averred that two posts of Foreman (Special) (PHE) were to be filled up and only one DPC was held on 04.04.2015 for the current year, wherein eight numbers of Foreman (PHE), including the petitioner, have been considered for promotion to the post of Foreman (Special) (PHE) and no DPC during July 2015 has been held in the Board and vide DPC dated 04.04.2015, against the availability of two vacant posts of Foreman (Special) (PHE), two posts have been filled up by promotion from feeder category (i.e., Foreman, PHE) by rotation in 5^th cycle, wherein first post goes to General category and second post goes to SC category, and two Foreman (PHE), namely, Shri Prakash Chand and Shri Jagdish Chand (respondent No.4) have been promoted to the post of Foreman (Special) (PHE), vide orders dated 11.05.2015 and 27.07.2015 respectively. The representation made by the petitioner was considered by respondent No.3 and the report was sent to respondent No.2, vide letter dated 09.11.2015, but meanwhile, the petitioner had filed the present petition before this Court.

Respondents No.1 and 4 had adopted the reply filed by respondents No.2 and 3.

The petitioner filed rejoinder to the reply filed by respondents No.2 and 3 and controverted the averments made therein.

I have heard the learned counsel for the parties and also gone through the record carefully.

It is not in dispute that when the DPC was convened on 04.04.2015, two posts of Foreman (Special) were lying vacant. As per the seniority list of Foreman (PHE) as it stood on 01.01.2015 (Annexure A-5, page 22) the petitioner was at Serial No.2 and Annexure R-3, page 51). It is also not in dispute that before convening the DPC, the earlier DPC was convened on 06.03.2012, to fill up three posts of Foreman (Special) and as per the roster point and rotation wise, 4^th cycle of Model Roster was adopted.

It is apt to reproduce the roster point, (Annexure A-2, page 13), which also finds mention at page 50 of the paper book as under:-

A perusal of the aforesaid roster clearly reveals that three posts of Foreman (Special) were filled up taking the roster point from 4^th cycle, in which two posts were to be filled up from unreserved category and third post from SC category. As per the final seniority list of Foreman, as it stood on 01.01.2011, a person junior to the petitioner, namely, Ramesh Chand, Serial No.6 was recommended for promotion to the post of Foreman (Special), since third post was to be filled up from SC category to which he belongs and the petitioner was at Serial No.5. It is relevant to mention here that after the promotion of Sh. Ramesh Chand and two other persons, namely, Khem Chand and Kamal Prakash, who were at Serial Nos.1 and 2 in the final seniority list of Foreman as it stood on 01.01.2011, the provisional seniority list of Foreman was again circulated, as it stood on 01.01.2015, in which, the petitioner was at Serial No.2 and respondent No.4 was at Serial No.9. As per the Model Roster point 13, which is not disputed by the respondent-Board, after the posts had fallen vacant, two posts were to be filled up from 4^th cycle, which were meant for General category candidates, but the respondent-Board, instead of completing the 4^th cycle had jumped to the 5^th cycle, which is illegal, arbitrary and discriminatory.

As per the note appended to the Model Roster for promotion for cadre strength up to 12 posts, the roster is to read from entry one under column Cadre Strength till the last post and then horizontally till the last entry in the horizontal row, i.e. like 'L'. However, the respondent-Board, instead of following the 4^th cycle had jumped to 5^th cycle, which is illegal, arbitrary and discriminatory. In case 4^th cycle was followed in continuation of last promotion since Cadre Strength of only six posts of Foreman (Special) exists in the respondent-Board, two posts were to be filled up from unreserved category i.e. General category and since the petitioner was at Serial No.2 of the seniority list of Foreman as it stood on 01.01.2015, he ought to have been promoted as Foreman (Special) instead of respondent No.4.

The petitioner when earlier was not considered for promotion to the post of Foreman (Special) and junior to him was promoted did not rake up the issue for the reason that as per the Model Roster for promotion, the third post was reserved for SC category candidate and when the DPC was convened again and respondent No.4 was promoted to the post of Foreman (Special), he had made representation to the respondent-Board to make his promotion as Foreman (Special), but when no decision was taken thereon and he approached this Court by way of the present petition.

It has been vehemently argued by the learned counsel representing the petitioner that in case no sanctity is given to the Model Roster for promotion for cadre strength up to 12 posts, the very purpose of issuing the said Model Roster is frustrated and the respondent-Board has wrongly jumped to 5^th cycle, while making promotion to the post of Foreman (Special) without completing the 4^th cycle. The said submission is correct and as per the findings returned above, the petitioner was to be considered for the post of Foreman (Special) by adopting the 4^th cycle from the stage when last promotion was made and was incomplete and as per the roster point, the posts up to sixth point were to be filled up and thereafter the same had to be followed in 'L' shape, till the last entry in the horizontal row. However, the respondent-Board did not adopt that procedure, which is not only contrary to the Model Roster for promotion, but also violative of Article 14 of the Constitution of India for the reason that the rightful claim of the petitioner for promotion to the post of Foreman (Special), has been denied and as such, promotion of respondent No.4 made while adopting 5^th cycle, is illegal and as such, is quashed.

Learned counsel representing the respondent-Board has vehemently argued that since respondent No.4 has been promoted being a reserved category candidate while applying 5^th cycle, no illegality has been committed by the respondent-Board. However, the said contention cannot be accepted for the reason that once the 4^th cycle was not complete upto 6^th post and thereafter to apply horizontally as per the note appended in the Model Roster, the respondent-Board could not have jumped to 5^th cycle and in case the said submission is accepted, then the very purpose of issuing the Model Roster, to be applied in case of cadre strength of 12 posts, is of no utility.

Consequently, the present petition is allowed and impugned office order dated 27.07.2015 (Annexure A-7) issued by the respondent-Board while making promotion of respondent No.4 to the post of Foreman (Special) (PHE) is quashed and set aside and the respondent-Board is directed to promote the petitioner to the post of Foreman (Special) (PHE) with effect from 27.07.2015, with all consequential benefits, i.e. seniority, increments, promotions and other service benefits. Needful shall be done by the respondent-Board within three months from today. Since the original petitioner has died and his legal representatives have been brought on record, the benefits be released in favour of the legal representatives. In case the arrears on account of promotion are not released in favour of the petitioners within the aforesaid period, the same shall carry interest @ 6% per annum from today till its realization.

The petition is accordingly disposed of. No order as to costs. Pending applications, if any, also stand disposed of.