K. Naba Kishore Singh vs North Eastern Electric Power Corporation Ltd.

N.S. Singh, J.—These 3 (three) writ petitions/cases invoice common questions of facts and laws and, as such, these cases were taken up together for hearing and, accordingly, the same are disposed of finally on its own merit with the following common judgment and order.

The 3 (three) writ petitioners namely, (1) Shri K. Naba Kishore Singh in W.P. (C) No. 75 (SH) 1999. (2) Shri Nabendu Sukla Baidya in W.R (C) No. 76(SH) 1999 and (3) Shri Kiran Chandra Das in W.P. (C) No. 77 (SH) 1999 sought for a direction to the official respondent Nos. 1 to 6 to promote them to the post of Assistant Manager/ equivalent with effect from December, 1993 or from 1st July, 1996 or from 1st January, 1997 in case of writ petitioner Shri K. Nabakishore Singh and, in cases of Shri Nabendu Sukla Baidya and Shri Kiran Chahdra Das with effect from April/May, 1994 or from 1st July, 1996 or 1st January, 1997 respectively; and also for quashing the proceedings of the Departmental Promotion Committee constituted vide, office Order No. 04 under Memo No. NEEPCO/DPC/ G-59/97/28-30 dated 25th August, 1997 and impugned promotion order bearing No. 534 dated 1.10.1997 coupled with a prayer for a further direction to the respondents concerned to make appropriate amendment in the new Revised Recruitment Rules circulated on 26.9.1997 as in Annexure-3 to the writ petition to safe-guard and protect the vested rights of the petitioners; and to quash the impugned inter se seniority list as in Annexure-7 to the writ petition and, also to consider the case of the petitioners for next promotional post of Deputy Manager (Civil) by highlighting the following facts.

The petitioner Shri K. Nabakishore Singh in W.P. (C) No. 75 (SH) 1999 is a degree holder in Civil Engineering and he was initially appointed as S.D.O, (Civil) on 21.11.1988 and, likewise, the petitioner Shri Nabendu Sukla Baidya in W.P. (C) No. 76 (SH) 1999 was also appointed as S.D.O. (Civil) on 21.11.1988 and similarly, the petitioner Shri Kiran Chandra Das in W.P. (C) No. 77(SH) 1999 who is also a degree holder in Civil Engineering appointed as S.D.O. (Civil) on 19.4.1989 and whereas, the private respondent No. 7 was appointed as S.D.O. (Civil) on 19.4.1989, the respondent No. 8 was appointed on 13.10.1989 as S.D.O. (Civil), the respondent No. 9 was appointed as S.D.O. (Civil) on 3.1.1990 and whereas, the respondent Nos. 10 to 27 were appointed as S.D.O. (Civil) on 10.5.1990 and the respondent No. 28 was appointed as S.D.O. (Civil) on 3.1.1991 and, accordingly, a related seniority list was published on 18th October, 1993 in respect of the batch upto 1990 and the three writ petitioner whose seniority position were at Sl. Nos. 16, 17 & 21 in the said seniority list ofl 993 but, as per seniority list upto 1991 batch dated 20.5.1997, the seniority position of the petitioners Shri K. Nabakishore Singh, Shri Nabendu Sukla Baidya and Shri Kiran Chandra Das were at SI. Nos, 5, 6 and 9 respectively and, by virtue of the impugned promotion order dated 1.10.1997 in respect of the writ petitioners to the post of Assistant Manager (Civil), the petitioners have been given appointment in the said grace with effect from 1.7.1997 and, without any justification, they were placed at SI. Nos. 26, 27 and 29 respectively below their juniors namely, the respondent Nos. 7 to 28.

At the hearing, Mr. S.P. Mahanta, learned counsel appearing for the writ petitioners submitted that by virtue of the impugned promotion order dated 1.10.1997, as many as 44 employees/persons were promoted to the post(s) of Assistant Manager (Civil) on the recommendation of the DPC concerned constituted/held on 23.9.1997 as per Revised Promotion Rules (circulated on 26.9.1997). According to Mr. Mahanta, learned counsel, the said DPC held in between 25.8.1997 to 23.9.1997, the selection was not guided in accordance with the existing old rules but, it was guided with the Revised Promotion Rules which was not in force or in existence at the relevant period during which the said DPC was held and, even though, the Revised Promotion Rules were circulated on 26.9.1997 with the retrospective effect from 2.4.1997 for which the petitioners submitted representations one after another but the management replied to the representations of the petitioners vide, their reply dated 16.4.1999 thus, intimating the petitioners that their seniority had been fixed on the basis of merit position assigned by the DPC and, that there is no scope to review. However, the petitioners requested the authority concerned to re-examine it but the same remained unattended till date and, having no alternative, these three writ petitioners filed their respective writ petitions.

Mr. S.P. Mahanta, learned counsel submitted that the petitioners in these three writ petitions who are seniors in the grade of Sub-Divisional Officer (Civil) have been placed below the private respondents who are juniors to them in the grade of SDO (Civil) initially inasmuch as, these petitioners were appointed as SDO (Civil) in the year 1988 and 1989 and whereas, the private respondents were appointed in the post of SDO (Civil) in the year 1990 and 1991 and these writ petitioners became juniors in the grade of Assistant Manager (Civil) by virtue of the related impugned seniority list.

Supporting the case of the petitioners, Mr. Mahanta, learned counsel argued that the case of the petitioners and the private respondents shall be governed by the related Old Recruitment Rules of the year 1983 as the related vacancies of the post arose while Old Rule was in force and this aspect was not examined by the respondents while fixing the seniority of the private respondents including the petitioners at the time of the preparation of the related inter seniority list impugned herein. It is also argued by Mr. Mahanta, learned counsel that the service conditions/rules cannot be given retrospective effect of the new recruitment rules with effect form 2.4.1995. Supporting the case of the petitioners, Mr. Mahanta had relied upon the decisions of the Apex Court reported in Accountant General and Another Vs. S. Doraiswamy and Others,

At the hearing, Mr. K.P. Sharma, learned counsel appearing for the NEEPCO/respondents, contended that pursuant to the decisions taken by the Board and Directos of NEEPCO, the related new Recruitment Rules has been approved on 21.3,1997 by giving its operation with effect from 2.4.1997 and the vacancies for the post of Assistant Manager (Civil) were created as on 28.8.1997 and, as such, there is no infirmity in the impugned seniority list as the new Recruitment Rule was in force at the relevant time, even though, the circulation of the new Recruitment Rule was made on 26.9.1997. Supporting his contention, Mr. Sharma, learned counsel has drawn my attention to a related decision of the Apex Court rendered in I.C.A.R. Vs. Satish Kumar and Another, and submitted that in the present case in hand, the writ petitioners and the private respondents are not governed by statutory rules as they are governed by the rules framed by the NEEPCO/respondents which envisages about the service conditions of its employees and such rule framed by the NEEPCO/respondents are not statutory rules and they can be amended by resolution of a competent body and any legislation or framing of rules under Article 309 of the Constitution is not required for NEEPCO and, apart from it, by virtue of the rules for regulating seniority of the employees, the candidates selected for promotion whose seniority shall be according to merit list and the promotion shall be on the basis of merit, efficiency with seniority taking the secondary role etc. etc. It is also argued by Mr. Sharma, learned counsel that the authority concerned had properly assessed the related ACRs of the writ petitioners and that of the private respondents and, the seniority list was prepared as per related service rules and, as such, there is no infirmity in the impugned seniority list.

Now this Court is to see and examine as to whether these petitioners have enforceable legal rights in the instant case or not; and whether the selection process for appointment of the petitioners and the private respondents to the post of Assistant Manager (Civil) under the impugned appointment order dated 1.10.1997 and that of fixation of the inter se seniority list of Assistant Manager (Civil) degree vide, seniority list dated-24.9.1998 as in Annexures 6 and 7 to the writ petition were made in accordance with the related Service Rules or not.

It is not disputed that the selection committee hereinafter referred to as DPC was constituted vide, related office order/letter dated 25.8.1997 for the purpose of selection of those Assistant Manager (Civil) degree against 44 clear vacant posts and DPC was held on 23.9.1997 and the related Service Rules namely, NEEPCO Promotion Policy and Rules (Revised), 1997 was not published at the time of holding of the DPC for such selections mentioned above as the said Revised Rules of 1997 was published only on 26.9.1997 vide, office order No. 620. A thus, giving effect of it on and from 2.4.1997 as the same was alleged to have been approved by the Board of Directos of NEEPCO in its meeting held on 21.3.1997. It is also not disputed that prior to the notification of the said Revised Rules of 1997, the rules namely, NEEPCO Promotion Policy and Rules for regular Employees, 1983 was inforced and applicable to the employess of NEEPCO and that Rules of 1983, Rule B Clause l(a) provides thus :

"Promotion shall generally be made as and when vacancies occur in the various cadres of the organisation."

And, Rule 4 of the said Old Rules of 1983 provides about the qualifying period of promotion from one grade to the next higher grade in various promotion groups and in case of the present petitioners. Sub-Divisional Officer (Civil) should have at least 5 (five) years service for such promotion to the post of Assistant Manager (Civil) degree and, according to the petitioners, they are eligible from the month of December, 1993 in case of petitioners Shri K. Nabakishore Singh and Shri Nabendu Sukla Baidya and, from 1994 in case of the petitioner Shri Kiran Chandra Das. The related Rule No. 3A & B and Rule 5 of the said Old Rules of 1983 are relevant in the instant case and, accordingly, these are quoted below :

"3. Basis of promiton :

A. Non-executive Group:

(1) All promotions in respect of all groups of regular posts shall be effected centrally by the corporate office.

(2) Promotions within the grades in the Non-Supervisory and Supervisory groups will be based on seniority subject to suitability, i.e., the senior most person shall be promoted, unless he is round unfit for promotion.

(3) Subject to acquiring necessary skill and qualifications to skilled jobs, promotions from unskilled category in the non-supervisory group shall also be based on seniority subject to suitability.

(4) Promotions from non-supervisory to supervisory group/ except clerical and accounts staff shall be by selection on the basis of merit. The inter se seniority of such person(s) selected for promotion by merit shall remain unchanged

B. Executive/Management Group :

Promotions upto and including the level of E.E. and all other posts in the grade pay of Rs. 1100-1500 p.m. within Executive Group shall be on basis of seniority subject to suitability. Promotions to the post of S.E. and all other posts in the grade pay of Rs. 1500-2000 p.m. and above shall be purely on the basis of merit with seniority taking the secondary role. The inter se seniority of such persons selected for promotion by merit shall remain unchanged.

Time for considering promotion :

The promotions shall, subject to vacancies being available be taken up for consideration normally twice a year so as to be effective from 1st January and 1st July of each year which will also be the date for reckoning the eligibility periods."

The above Rules of 1983 (Old Rule) was in force at the relevant time when the vacancies for the post of Asstt. Manager (Civil) degree arose and the New Recruitment Rules of 1997 was not in force at the relevant time when the selection process was made, even though, the said Rule of 1997 was approved by the Board of Directors in its meeting held on 21.3.1997 giving effect of it from 2.4.1997 which was published only on 26.9.1997. For just determination of the real points in controversy in the matter, it is highly needed to highlight the manner of publication and notification of the said Recruitment Rules/New Rules, 1997 and, accordingly, the said notification dated 26th September, 1997 is quoted below:

"North Eastern Electric Power Corporation Limited brookland compoud : Lower New Colony, Shillong -- 793003 Office Order No. 620(A) Dated, Shillong, the 26th Sept., ''97

Reference is invited vide which the draft NEEPCO Promotion Policy and Rules were circulated to all Unions and Associations and All Functional Directors of NEEPCO for informations and suggestions.

Keeping in view, suggestions received from Unions and Associations and others as well as considering all relevant factors, the NEEPCO Promotion Rules and Policy have been revised as approved by the Board of Directors.

We are enclosing herewith approved copy of the revised NEEPCO Promotion Policy and Rules for information and necessary action.

Adequate member of printed copies of the NEEPCO Promotion Policy and Rules will be sent as soon as same are received.

Sd/- Illegible (I.P. Barooah) Sr. Manager (Personnel) IR&A

Memo No. NEEPCO/CPO/32/78-79/18, 668(A)/Dated, 26th Sept., ''97

Distributions:

(1) All HODs, NEEPCO Ltd., Shillong/New Delhi/Calcutta/ Guwahati for kind information and compliance.

(2) All Project Heads, NEEPCO Ltd. KHEP/DHEP/RHEP AGBPP/ AGTPP, for kind information and compliance.

Copy to:

(1} The Chairman and Managing Director, NEEPCO Ltd., Shillong for kind information.

(2) The Director (Finance/Personnel/Technical) NEEPCO Ltd., Shilling for kind information.

Sd/-Illegible (I.P. Barooah) Sr. Manager (Personnel) IR&A."

Even though, this office notification or order pertaining to the publication of the NEEPCO Promotion Rules, 1997 hereinafter referred to New Rule is not a statutory Rule framed under Article 309 of the Constitution, it shall have legal value force for its operation from the date of publication of it. I am of the view that the said Revised Rule of 1997 was non-existent in the eye of law due to non-circulation of it when the said DPC was constituted and held on 25.8.1997 and 23.9.1997 respectively as discussed above and the said Revised Rules of 1997 shall not be applicable for such selection and appointment to the post of Assistant Manger (Civil) degree as the Old Rule of 1983 was in force at the relevant time which shall be made applicable in that case. It is well settled that vacancies which occurred prior to the amended rules would be governed by Old Rules and, apart from it, the selection process is to be completed in accordance with law as it stood at its commencement. At this stage, reference can be made to two decisions of the Apex Court rendered in Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others, and in another case between Sukhdarshan Singh ect. etc. Vs. State of Rajasthan,

The stand and plea taken by the official respondents that the case of the petitioners as well as private respondents shall be governed by the New Rules of 1997 and it shall be in force on and from 2.4.1997 by virtue of it though, it was circulated and published only on 26.9.1997 and the contention of Mr. K.P. Sharma, learned counsel in support of its plea which according to me, such plea is not reasonable and the same is not based on common sense. At this stage, I hereby recalled the words of J.R. Lucas of Merton College who said about Lord Denning who brought common sense to the interpretation of law in a book called "Lord Denning a Biography" by Edmund Heward. In an article in The Time on 17 September, 1980 J.R. Lucas of Merton College, Oxford, said :

"Although some think that the law should always be clear, in practice it is not, and we have recourse to judges for authoritative interpretations. The only question is whether in interpreting what is unclear the law should be guided by common sense and give weight to considerations of expediency, justice and morality. Lord Denning thinks it should. Others think not.

Mr. Lucas argued that a non-common sense decision is no more certain than one based on common sense. For the layman the law would be more predictable it based on common sense. Since laws apply to laymen there is a good argument for the development of the law to be influenced by common sense as well as legal reasoning. In a doubtful case there is a strong case for the use of common sense as it makes the law easier to predict and worthier of respect. A perceptive paragraph appeared in the Sunday Mirror on 16th October, 1966 ; ''It is not that Lord Denning is excessively liberal. It is merely that he always seems to decide a case the way you or I would... But an odd man out who has the gift of bending it (the law) in the right direction, is something for which we can be truly grateful.''"

Therefore, the submission of Mr. Sharrna, learned counsel in support of the pleas taken by the official respondents is not legal reasoning.

The official respondents also utterly failed to show and establish the correct vacancy position of the said post of Assistant Manager (Civil) degree and when those vacancies occurred except the certain statements made in the counter affidavit in paragraphs 7 & 8 about some vacancies for the said posts during the year 1994 to 1996. It is also noteworthy to mention here that the private respondents despite due service of notice upon them, they did not come forward before this Court and apart from it they did not resist the writ petitions filed by the present 3 writ petitioners. Be that as it may, this Court need not go more into depth as this Court is of the view that all the selection processes for the said vacant posts of Assistant Manger (Civil) by the said DPC constituted under a related office letter dated 25,8.1997 in Its alleged meeting held on 23.9.1997 and fixation of inter se seniority of the Assistant Manager (Civil) degree under the related impugned orders dated 1.10.1997 and 24.9.1998 as in Annexures 6 & 7 to the writ petition are null and void ab-initio as the same were made on the basis of the NEEPCO Revised Rules, 1997 which was inoperative and non-existent at the relevant period as the same was published only on 26.9.1997. I am also of the view that the impugned office letter dated 16.4.1999 as in Annexure 9 to the writ petition rejecting the request of the petitioners for review of the inter se seniority list of Assistant Manager (Civil) is also not tenable in the eye of law in view of the existing circumstances and discussion made above and, accordingly, this impugned appointment order dated 1.10.1997, seniority list published on 24.9.1998 and office letter dated 16.4.1998 as in Annexures 6, 7 & 9 are hereby declared as illegal, null and void and, accordingly, these are quashed with a direction to the official respondents/NEEPCO respondents concerned to re-examine the matter and hold a fresh DPC for selection and appointment of Assistant Manager (Civil) degree and fill up these vacant posts in terms of the NEEPCO Old Rules, 1983 which was in force at the relevant time and the vacancy of the said post of Assistant Manager (Civil) occurred prior to the NEEPCO Revised Rules 1997, in other words, those vacancies occurred while NEEPCO Old Rules, 1983 was in force and, this shall be done as early as possible, in other words, the whole exercise should be completed within a period of 2 (two) months from the date of receipt of this judgment and order. It is also made clear that present status of the three writ petitioners as well as the private respondent as Assistant Manager (Civil) should not be disturbed by the official respondents pending final disposal of such fresh selection and appointment as discussed above. All the related interim orders passed in these three cases and in the connected miscellaneous cases are hereby merged with this judgment and order.

For the reasons, observations and direction made above, these 3 (three) writ petitioners are disposed of but, no order as to costs.