Krishna Verma and Another vs Director, Uttaranchal Power Corpn. and Others

P.C. Pant, J.—In all the above four petitions, common question of law and fact is involved as such these are being disposed of by this common judgment.

These writ petitions are filed under Article 226 of the Constitution of India, for mandamus directing promotion of petitioners to the post of Junior Engineer. In Writ Petition No. 7195 (S/S) of 2001, Mahabir Prasad Gairola and Ors. v. Uttar Pradesh Power Corporation and Ors., seniority list dated 17.11.2001 has also been sought to be quashed and mandamus has been sought not to interfere in the functioning of petitioners as officiating Junior Engineers.

Brief facts of the case, as alleged by the petitioners, are that they are Technical Grade-II in various Divisions, of Uttaranchal Power Corporation. Earlier, they were employees of Uttar Pradesh State Electricity Board (for sake of brevity U.P.S.E.B.). In the year 1985, a departmental examination was conducted by U.P.S.E.B. for the purposes of promotion from the post of Technical Grade-II to the post of Junior Engineer. However, subsequently said examination was declared cancelled by said Board vide its office order dated 24.9.1999 (copy Annexure-1 to the writ petitions). Uttaranchal Power Corporation did not conduct any separate departmental examination for promotion to the post of Junior Engineer and many members of cadres of Technical Grade-II were given charge of Junior Engineers on the basis of their seniority for performing the duties of Junior Engineers. On 17.11.2001 (copy Annexure-2 to the writ petitions), respondent No. 1, i.e., Uttaranchal Power Corporation issued a letter along with the seniority list of employees of cadre of Technical Grade-II, for preparation of their promotion to the post of Junior Engineer. In the said list against the names of members of cadre of Technical Grade-II, year of writen examination passed for promotion was mentioned including the year of 1985. The petitioners have alleged that the written examination which had already been cancelled could not have been taken into consideration, as such on the basis of said examination holding of oral test is illegal and in violation of Rule 17 (2) (3) (4) of the U. P. State Electricity Board Subordinate Electrical and Mechanical Engineering Service Regulations, 1972. The respondents should have held another written examination for promotion instead considering those who qualified the written test in the year 1985. With these grounds, the promotions from the post of Technical Grade-II to the post of Junior Engineer have been challenged.

The respondents have filed their counter-affidavit in which it has been stated that no regular promotion has been made to the post of Junior Engineer but only temporary charge has been given to the members of the Technical Grade-II on the basis of the recommendations made by the Selection Committee. It is further stated that still many employees of U. P. Power Corporation are working with Uttaranchal Power Corporation on deputation, as such till allocation of the employees between Uttaranchal Power Corporation and U. P. Power Corporation is finalized, the respondent No. 1 is not in a position to conduct the departmental examination for promotion. However, this fact has not been denied in the counter-affidavit that the written examination of 1985 has been cancelled. Rather, it is admitted that said examination was cancelled but the promotions are defended on the ground that due to the shortage of Junior Engineers, working of the Uttaranchal Power Corporation was suffering. In the rejoinder-affidavit filed in Writ Petition No. 3 (S/S) of 2003, Krishna Verma and Anr. v. Director, Uttaranchal Power Corporation and Ors., it has been stated that now during the pendency of the writ petition vide order dated 11.2.2004 regular promotion has been given to the employees of cadre of Technical Grade-II to the post of Junior Engineers on the basis of same impugned examination. A copy of said order is filed as Annexure- R.A. 1 to the rejoinder-affidavit.

I heard learned counsel for the parties and perused the affidavits, counter-affidavits and rejoinder-affidavits along with the annexures annexed thereto.

The short question for consideration before this Court is whether, the impugned promotions were wrongly made by the respondents in violation of the rules, if so, its effect?

Admittedly, all the petitioners are employed with respondents as Technical Grade-II. It is also not disputed that in the cadre of Junior Engineer, apart from the direct recruitment, by promotion from feeding cadre of Technical Grade-II, posts of Junior Engineers are filled. The entire dispute revolves round the point of compliance of Rule 17 of U. P. State Electricity Board Subordinate Electrical and Mechanical Engineering Service Regulations, 1972, in making the promotions. Before further discussion, it would be proper to quote the relevant Sub-rule (2) and Sub-rule (3) of Rule 17 of the aforesaid Regulations, which read as under :

17 (2). The selection shall be based on a written test followed by a practical and oral test to which only such candidates would be admitted as have qualified in the written test.

17 (3). The names of the candidates who qualify in the practical and oral test shall be placed in a list in their order of merit. For computing the merit of a candidate the marks obtained by him both in the written test and the practical and oral test shall be added.

From the record it appears that a written examination was held for promotions from the post of Technical Grade-II to the posts of Junior Engineers by the then U.P.S.E.B. in the year 1977-79, thereafter in the year 1985 and lastly in the year 1999. Out of these three examinations, the examination of 1985 appears to have been challenged by means of Writ Petition No. 6856 of 1985, Mundeep Singh and Anr. v. U. P. State Electricity Board, before the Allahabad High Court. And keeping in view of the order dated 29.8.1989 passed in said writ petition, the U.P.S.E.B., vide its order dated 24.9.1999 (copy Annexure-1 to Writ Petition No. 803 (S/S) of 2003) cancelled the examination. The said order of the U.P.S.E.B. reads as under :

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It is also not disputed during arguments that for the purposes of promotion, the employees of the cadre of Technical Grade-II, who had passed the written test through 1985 examination, has been considered and promoted by the respondents. As such, on the face of it the impugned promotions cannot be said to be legal as after cancellation of examination, unless either the Rule 17 is amended or the order of the U.P.S.E.B. is recalled, the candidates who qualified the written examination of 1985. could not have been taken as successful in written test under the rules.

Mr. Ranjit Saxena and Mr. B. D. Upadhyaya, learned counsel for the respondents raised the first objection as to the maintainability of the writ petition on the ground that without impleading the successful candidates for promotion, the relief claimed cannot be granted to the petitioners. To substantiate their contention they have referred to the principle of law laid down in Sukhpal Singh and Others Vs. Punjab State Agrl. Marketing Board and Others, and Ramrao and Others Vs. All India Backward Class Bank Employees Welfare Association and Others, . In both these cases, it has been held that orders of appointment/promotion cannot be cancelled unless the persons promoted or appointed are impleaded. But since in none of the four writ petitions before this Court, the promotions of other promoted Junior Engineers has been sought to be quashed, rather mandamus for promotion of petitioners has only been sought, as such the writ petitions cannot be thrown away on the ground of non-impleadment of promoted Junior Engineers.

On behalf of the respondents it is also contended that since petitioners were also beneficiaries of the cancelled examination of 1985 as they also appeared for interview for their promotion, as such now they are barred by the principle of estdppel from challenging the promotion of other employees of Technical Grade-ll to the post of Junior Engineers. This Court feels that there is some substance in the argument of learned counsel for the respondents for the reason that on one hand they have made attempt of their promotion by appearing in the interview on the basis of same cancelled examination of 1985 and on the other hand they have challenged the promotion of others on the ground that from the cancelled examination no interview could have been held for promotion. As such it cannot be said that\\the petitioners" have come with clean hands to that extent. However, since no relief is sought for quashing the promotion of other Junior Engineers who were promoted from Technical Grade-II, therefore, though the above contention has some force, it is not fatal to the writ petition.

In the circumstances and in view of the above discussion, the only course open for this Court, in the matter in dispute, is to direct the respondents to hold examination afresh complying the provisions of Regulation 17 of the U. P. State Electricity Board Subordinate Electrical and Mechanical Engineering Service Regulations, 1972, as the cancelled examination of 1985 cannot be recognized as a valid examination for the purposes of promotion. Therefore, all the four writ petitions are disposed of with the direction that the respondents shall hold written and oral test afresh, as required under the rules within a period of three months from amongst the qualified members of Technical Grade-II. However, those already promoted or holding the charge of Junior Engineers shall not be disturbed and their functioning shall be subject to the result of the fresh examination directed to be held as above. The seniority list dated 17.11.2001. is hereby quashed as far as it relates to the basis of examination held in the year 1985. The promotions made on the basis of examinations held in the year 1977 and 1999 shall remain unaffected. No order as to costs.