AI Structured Summary
Not yet generated for this judgment
Judgment
1) Heard Mr. D.P. Chaliha, learned Senior counsel assisted by Mr. U.P. Chaliha, learned counsel for the petitioner. Also heard Mr. H.K. Sarma, learned Standing counsel for the APDCL. None appears on call for the private respondents No.13 and 15 to 23.
2) It is pointed out that the learned Standing counsel for the respondent No.1 that the respondents No.2, 3 and 4 have ceased to exist on winding up of ASEB. Accordingly, the name of respondents No.2, 3 and 4 is striked out.
3) By this writ petition filed under Article 226 of the Constitution of India, the petitioner has prayed for setting aside the order dated 13.12.2012, by which the inter-se seniority as originally fixed in respect of the officers in the rank of Assistant General Manager (Electrical) was finalized, wherein the name of the petitioner appears at Sl. No.47 and the petitioner has also prayed for a direction to the respondent No.1 to review the seniority position and to fix the same in accordance with regulation 12 of Assam State Electricity Board Engineering Service Regulations, 1973 or such equivalent Regulation adopted by the APDCL.
4) The learned Senior counsel for the petitioner has submitted that the case of the petitioner is that on 19.05.1980, the petitioner along with others were provisionally appointed as Engineers Trainees (Electrical) under Regulation 5(6) of the ASEB (General Service) Regulation, 1960 and the name of the petitioner appears at Sl. No. 12 of the said order. Thereafter, by order dated 02.06.1980, the name of the petitioner appeared at Sl. No.6 of the said order and he was provisionally appointed as Assistant Engineer (Elec).
5) Thereafter, by office order dated 30.06.1981, the service of the petitioner as Assistant Engineer (Elec.) was regularized and the name of the petitioner appeared at Sl. No.44 of the said order. It was further provided therein that the said appointment would be on probation for a period of 2 years w.e.f. from the date of their regularization. It is further submitted that subsequently by another order dated 30.06.1981, the service of 47 other persons were regularized as Assistant Engineer (Elec./ Mech.) and it was further provided that their appointment would also be on probation for a period of 2 years from the date of their regularization.
6) It is further submitted that yet by another order dated 01.07.1981 another batch of 46 persons were appointed as Assistant Engineers (Elec./ Mechanical) and it was provided that their appointment would be on probation for a period of 2 years. Thereafter, by office order dated 20.10.1986, 71 nos. of SDOs/ Assistant Engineers (Electrical/ Mechanical) were declared as Assistant Executive Engineers w.e.f. from the date shown against each appointees.
7) Referring to the said order, the learned counsel for the petitioner has submitted that while the name of the petitioner appeared at Sl.71, the name of various subsequent appointees vide order dated 30.06.1981 and 01.07.1981 were placed as senior to the petitioner. It is submitted that by an office order dated 19.01.1993, inter-se seniority of the Assistant Executive Engineers (Electrical) of the ASEB was provisionally fixed, wherein the name of the petitioner appeared at Sl. No.215 whereas the name of the purported subsequent appointees were placed as senior to the petitioner. Accordingly, aggrieved by the said order, the petitioner had submitted representations dated 08.02.1983, 18.08.1988 and 18.10.1988. Thereafter, by Office Order dated 13.12.2012, the claim of the petitioner was considered and by recording that no valid reason was found for changing the inter-se seniority as fixed provisionally, the gradation list was finalized wherein the name of the petitioner was reflected at Sl.47. By another order dated 13.12.2012, informed the petitioner, amongst others, that his claim was not tenable.
8) The learned Senior counsel for the petitioner has further submitted that as the petitioner has already superannuated from service, the petitioner still be entitled to notional benefit upon re-determining his seniority from the date when the junior to the petitioner was placed as senior to the petitioner.
9) The learned Standing counsel for the respondent No.1 has submitted that the petitioner had previously filed WP(C) 2912/2011 to challenge the final gradation list published vide an Office Order dated 18.08.1998, by which the inter-se provisional seniority list dated 19.01.1993 had been maintained. It is submitted that the said writ petition was dismissed by order dated 31.05.2011 for non-prosecution. Hence, it is submitted that as the challenge to the gradation list dated 18.08.1998 was unsuccessful, the said gradation list had attained finality, which was maintained while the provisional seniority list of Assistant General Manager (Elec.) was notified. Hence, it is submitted that the petitioner cannot be permitted to challenge the said final inter-se seniority list as notified on 12.12.2012, after the petitioner was unsuccessful in the earlier writ petition. He also further submits that as the previous gradation list of 18.08.1998 had attained finality, if the present challenge is entertained it would disturb the inter-se seniority already fixed after 20 years of the publication of such gradation list.
10) In support of his submission, the learned Standing counsel for the respondent No.1 has referred to the case of KR Mudgal and others Vs. RP Singh and others, AIR 1986 SC 2086 : (1986) 4 SCC 531, wherein the Supreme Court of India had remarked that it was unfortunate that the appellants in that case were required to defend their appointment after nearly 3 decades and such kind of fruitless and harmful litigation should be discouraged.
11) In reply, the learned Senior counsel for the petitioner has submitted that every time the draft gradation list is published, it gives rise to a fresh cause of action for the petitioner to maintain the challenge.
12) Upon consideration of the arguments advanced by on behalf of both sides, in the present case the claim made by the petitioner is that his seniority was disturbed when the inter-se seniority in the post of Assistant Executive Engineer was determined vide office order dated 20.10.1986 issued by the Office of the Chairman, ASEB through the Personnel Manager, ASEB. Thereafter, the provisional inter-se seniority list was published on 19.01.1993, where the name of the petitioner appeared at Sl.215 of the list of Assistant Executive Engineer (Electrical). The petitioner had submitted his representation on 18.02.1993. However, while disposing of the said representation, the ASEB vide Office Order dated 18.08.1998, had determined the inter-se seniority of the officers in the rank of Assistant Executive Engineer (Electrical), wherein the name of the petitioner had appeared at SL. 159. There is no denial of the claim made by the respondent No.1 that the petitioner had unsuccessfully challenged the said Office Order dated 18.08.1998 by filing WP(C) 2912/02, which is stated to have been dismissed for non-prosecution by this Court by order dated 31.05.2019.
13) In the considered opinion of this Court, the seniority position of the petitioner below that of the private respondent herein appears to have been crystallized by dismissal of the said writ petition as indicated herein before. Accordingly, in the considered opinion of this Court, unless the petitioner can show that in the subsequent gradation list which was notified on 13.12.2012 has disturbed his inter-see seniority position vis-à-vis the gradation list as notified by office order dated 18.08.1988, the petitioner would not be entitled to any relief in the present writ petition.
14) Upon considering the submissions made by the learned Senior counsel for the petitioner that without disturbing the seniority list notional benefits would be granted to the petitioner on re-determining of his seniority, this Court is of the considered view that if the subsequent provisional seniority list dated 13.12.2012 has not disturbed the seniority position of the petitioner vis-à-vis the private respondents in reference to the seniority list notified on 18.08.1998, there is no requirement for the respondent No.1 to re-consider and/ or to re-determine the inter-se seniority list of Assistant General Manager (Elec.) to provide notional benefits to the petitioner, which cannot be done unless this Court has reason to hold that the seniority position of the petitioner as on 18.08.1998 was disturbed by notifying the provisional seniority list by Office Order dated 13.12.2012.
15) Therefore, this Court is inclined to hold that the petitioner is not entitled to any relief sought for in the writ petition and the writ petition stands dismissed and the rule issued on 09.04.2013 stands discharged.
16) No cost.