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Judgment
D.P. Wadhwa, J.
(1) The petitioners in this petition filed under Article 226 of the Constitution seek a direction in the nature of mandamus directing the respondents 1 to 3 to hold meeting of the departmental promotion committee to consider their cases for promotion to the post of Assistant Engineers and, if found suitable, to promote them to that post prior to the promotion of respondents 4 to 13. For this prayer the petitioners rely on rule 11 (a)(ii) of the relevant recruitment rules to the post of Assistant Engineers. Petitioners number 5 and are diploma holders in electrical engineering and are presently holding the post of Suprintendent (Tech) in the Delhi Electric Supply Undertaking, the second respondent. The third respondent is the Additional General Manager (Admn.) of D.E.S.U. Respondents 4 to13 are holding degrees in electrical engineering and have since been promoted to the post of Assistant Engineer, it is alleged, under interim orders of this Court passed in Writ Petition No. 4062/92 filed by these respondents 4 to 13.
(2) As to how the post of Assistant Engineer is to be filled up by promotion, Rule 11 of the recruitment rules is relevant which is as under :-
(I)"Superintendent (Technical) with 3 yrs, regular service in the grade for those possessing degree in Electrical/Mechanical Engineering from a recognised university or equivalent and 7years regular service in the grade for those possessing Diploma in Electrical/Mechanical Engineering of recognised University or equivalent.
(II)Failing (i) above. Superintendent (Tech) with 5 yrs. combined regular service in the grade of Superintendent (Tech) and Inspector for those possessing degree in Electrical/Mechanical Engineering of a recognised University or equivalent or 10 yrs. combined regular service in the grade for those possessing diploma in Electrical/Mechanical Engineering from a recognised University or equivalent."
(3) To understand contention of the petitioners we feel it will be appropriate to set cut our order dated 26/02/1993 made in C.W.P. No. 4062/92"C.W. No. 4062/92:Rule.C.M. No. 7472/92:The petitioners numbering nine (and one more in C.W. No.4348/92) were working as Inspector (Electrical) and they were promoted to the post of Superintendent (Technical) on 29-8-1989 on the officiating basis after they were selected by regular D.P.C. Their services were regularised in these posts with effect from30-3-1991. The next promotional post is that of Assistant Engineer and as per recruitment rules there has to be three years regular service in the feeder grade. The contention raised is that the officiating period be also treated as regular service and the petitioners are thus entitled to promotion to the post of Assistant Engineer vacancies being existing there. Desu has, however, contended to the contrary with reference to office Memorandum the relevant portion of which is to be following effect :-
"16.5If the proceedings of the D.P.C. for promotion contain findings in sealed envelop in respect of persons under suspension or against whom departmental proceedings are pending, the vacancy that would have gone to the officer, if his name had been included in the panel, should be filled on an officiating basis by the next person in the approval list. After termination of the suspension/disciplinary proceedings against him. If it was held that suspension was wholly unjustified and the officer was completely exonerated in the disciplinary proceedings and if the sealed envelope contains recommendation in his favor, then he should be promoted to the higher post, if necessary by reverting the junior most officiating person. Where ,however, the post which could have gone to the officer, but for his suspension if the departmental proceedings ceases to exist before the conclusion of the departmental proceedings, he can only be promoted to the first vacancy that may be available in future and if the officer concerned is found fit in the higher grade, as if he had been promoted in accordance with his position in the select list/panel."
BYan interim order we had directed that the petitioners be also considered by D.P.C. for promotion to the post of Assistant Engineer though their results would not be declared. Apprehension expressed by Mr. Shekhar is that the persons against whom disciplinary proceedings were pending and whose results are kept in sealed cover and when they are exonerated, they will have to take up the positions of Assistant Engineer now being occupied by the petitioners, if they are so promoted by interim orders of this Court. In the circumstances, Therefore, we accordingly direct that the results of the D.P.C. in respect of the petitioners be declared and if found eligible they may be promoted to the post of Assistant Engineer subject to the further orders of this Court. They will hold on to those posts only till their seniors against whom disciplinary proceedings are pending are exonerated or otherwise become entitled to the promotion to the post of Assistant Engineer. However, we make it clear that in case any vacancy still remains in the post of Assistant Engineer, the petitioners as per their inter se seniority shall continue to occupy that post till further orders of this Court."
The petitioners now say that the aforesaid order works to their prejudice. They filed a SLP in the Supreme Court against this order and the Supreme Court passed the following order :-
"WE have heard learned Counsel for the petitioner and we are of the opinion that the apprehension placed before us is misplaced. The impugned order does not convey that even senior who are eligible for promotion under the rules should be overlooked and juniors should be promoted. That is not the purport of the impugned order. Therefore, if any promotion is given disregarding the claim of any senior who satisfies the eligibility criteria for promotion, he or she will be at liberty to make a grievance before the appropriate forums. No order on the application for impleadment in view of .the above clarification. The petition will stand disposed of accordingly."
(4) The main question in the first writ petition was if the period for which the petitioners worked on officiating post could be counted towards their regular service or not. They had claimed they were promoted to the post of Assistant Engineer though on officiating basis but after regular D.P.C.I he petitioners now before us say that they were promoted as Superintendent(Technical) on officiating basis in 1989 and on regular basis in 1991. Then as per rules these respondents were entitled to be promoted as Assistant Engineers after completing 3 years in regular service, i.e., in 1994. The petitioners now contend that since para (i) would not be applicable, respondents I to 2 had to fall back upon para (ii) of rule 11 as stated above. They say if para (ii) is applied then they would have completed 10 years of combined regular service in the grabs of Inspector and Superintendent (Technical)much before the respondents 4 to 13 would have dons. They, Therefore, contend that they should have been promoted earlier to the post of Assistant Engineers than the respondents 4, 13. Prima facie we are of the opinion that the stand taken by the petitioners is not correct. For one thing, as pointed out by the respondents, the petitioners were promoted to the post of Superintendent (technical) on temporary basis and not on regular basis. On the other hand, respondents 4 to 13 who are working as Superintendent(Technical) on officiating basis were promoted on regular basis by office order dated 17/07/1991. This was done when certain posts of Inspector(Electrical) were upgraded. That would not, Therefore, mean that when the respondents 3 to 14 were working on officiating basis they were not doing so against any regular post. In any case the question raised by the petitioners need consideration. We, Therefore, issue rule and direct that this petition be heard along with C.W.P. No. 4062/92.
(5) Having regard to all the relevant circumstances we are of the opinion that the petitioners are not entitled to any relief at this stage. C.Ms., Therefore, are dismissed. Petition dismissed