Shiv Nath Singh vs U.P.State Electricity Board Shascti Bhawan Lucknow & Ors.

D.K. Seth, J.—Having been appointed Overseer in the U.P. Government Electricity Board by order dated 24th December, 1957, the petitioner joined on 27th December, 1957 in Rihand Hydel Civil Division, Allahabad/Mirzapur and contained to work as Overseer till the said Rihand organisation merged with the U.P. State Electricity Board, (UPSEB for short) after its establishment. Five other persons named in paragraph 3 of the writ petition were also appointed in 1957. Their appointment was approved by the U.P. Public Service Commission (UPPSC for short) in 1960. The Services of the petitioner and the respondent No. 3 were approved by the UPPSC in 1962. The respondent No. 3 joined in 1960 and, therefore, was junior to the petitioner. In the Seniority list published on 31st August, 1971, the petitioner was shown junior to the respondent No. 3. Upon a Claim Petition No. 1430 (1) of 1976 filed by the respondent No. 3 before the U.P. Public Service Tribunal (''Tribunal'' for short), by order dated 12th April, 1978, refixation of seniority was ordered. The petitioner''s case was also considered. Two Writ Petitions, namely, Writ Petition Nos. 1727 of 1978 and 1549 of 1979 were moved by the UPSEB against the order of the "Tribunal. The said two writ petitions stood dismissed by order dated 4th May, 1984. By order dated 4th October, 1986, the respondent No. 2 refixed the seniority of the petitioner at SI. No. 6B while that of the respondent No. 3 at SI. No. 6A in the Seniority List dated 31st August, 1971. On 30th June, 1987, the petitioner made a representation aggrieved by the order dated 4th October, 1986 but no step was taken on the basis of the said representation. According to the Promotion Rules 25% of the posts of Assistant Engineer are being filled up by the departmental candidates. The 5 persons named in paragraph 3 of the writ petition were given promotion in 1973. The respondent No. 3 was also promoted as a departmental candidate in 1980. Though the petitioner was eligible for promotion, his case was ignored despite the fact that he was entitled to be promoted alongwith the said 5 persons named in paragraph 3 in 1973. On 31st October, 1988, the petitioner made a representation to the Chairman, UPSEB requesting him to promote the petitioner to the post of Assistant Engineer (Civil) with effect from July, 1973 together with all consequential benefits. The petitioner was promoted to the post of Assistant Engineer on 6th October, 1986 despite his entitlement since 1973. By order dated 5th April, 1990, the respondent No. 1 rejected the aforesaid representation. It is this order dated 5th April, 1990 which has been challenged by means of this writ petition on the ground that the same was rejected without assigning any reasons and is arbitrary, unfair and unreasonable ignoring the petitioner''s claim of seniority above the respondent No. 3 in violation of the principle of equality as enshrined under Articles 14 and 16 of the Constitution of India. Therefore, the petitioner has prayed for quashing of the order dated 5th April 1990 (Annexure ''8'') and a direction to promote the petitioner to the post of Assistant Engineer (Civil) with effect from 1973 and to grant further promotion to the post of Executive Engineer from the date on which the said 5 persons named in Paragraph 3 were promoted to the said post and a further direction to decide the petitioner''s representation dated 30th June, 1987 and also to give all arrears and other benefits in the posts of Assistant Engineer (Civil) as well as in the post of Executive Engineer from the respective dates according to the petitioner''s seniority.

In the counteraffidavit, the UPSEB has made out a case that the petitioner was appointed Temporary Overseer subject to the approval of the UPPSC. After the merger of Rihand Organisation of the U.P. Government Electricity Department with UPSEB, the petitioner appeared in the selection held in UPSEB for recruitment of the post of Overseer in 1965. He was then selected by order dated 23rd September, 1965 and was placed at SI. No. 17 in the merit list. Accordingly his seniority was fixed in the seniority list dated 30th September 1971. According to the merit in the said selection held in 1965, the respondent No. 3, was placed at SI. No. 39 and the petitioner was placed at SI. No. 45 in the seniority list inasmuch as the name of respondent No. 3 found place at SI. No. 7 in the said merit list. Since the appointments of the 5 persons named in Paragraph 3 of the writ petition were approved by the UPPSC in 1960, the petitioner could not claim parity with them. Pursuant to the order of the Tribunal, the seniority of respondent No. 3 was fixed at SI. No. 6A while that of the petitioner at SI. No. 6B. The appointments of the petitioner and the respondent No. 3 were approved by the UPPSC in the year 1962. Pursuant to the representation dated 30th June, 1987 made by the petitioner, by order dated 7th February, 1989, the seniority of the petitioner and the respondent No. 3 were refixed in SI. Nos. 6C and 6K respectively. Therefore, the prayer relating to direction for disposal of his representation dated 30th June, 1987 has been rendered infructuous. The said 5 persons named in Paragraph 3 were promoted to the post of Assistant Engineer (Civil) in the year 1973. According to the Promotion Rules, the promotion can not be claimed as a matter of right. Inasmuch as the promotion is subject to the subjective determination of the Departmental Selection Committee based on the principle of merit. Since the said 5 persons named in Paragraph 3 were approved by the UPPSC in the year 1960, there is no scope for treating the petitioner at par with the, when the petitioner''s appointment was approved in 1962 by the UPPSC. The selection for promotion took place on 7th July, 1973 when the petitioner could not come within the eligibility circle because of his position in the Seniority List on that occasion. In the year 1978, the petitioner''s case was considered for promotion to the post of Assistant Engineer (Civil) but due to nonavailability of sufficient number of post on account of lower seniority, the petitioner could not be selected. His case was again considered in 1980 and 1984 but due to his poor performance and record of service, he was not found suitable for promotion. The petitioner was again considered for promotion in December, 1984 and was finally approved for promotion to the post of Assistant Engineer (Civil) pursuant to the order dated 31st June, 1986. The post of Assistant Engineer is an initial recruitment post and not a promotion post in the cadre of Engineers'' Service though a percentage of post has been reserved for promotion from the cadre of Junior Engineer. Therefore, the petitioner cannot be entitled to the same seniority in the cadre of Junior Engineer. According to the Rules, the seniority is assigned in the cadre of Engineers'' service in the year in which an incumbent is actually selected for promotion to the post of Assistant Engineer. The representation of the petitioner made on 21st October, 1988 was rightly rejected by order dated 5th April, 1990. The petitioner''s case was again considered by the Departmental Selection Committee in its meeting held on 1st May, 1988 for promotion to the post of Assistant Engineer (Civil) from an earlier date when the persons junior to the petitioner were considered for promotion. The Departmental Selection Committee in consideration of the record of service of the petitioner did not find him suitable for promotion from an earlier date. Therefore, there was no arbitrariness or discrimination as contended by the petitioner. Therefore, the writ petition is liable to be dismissed.

In the rejoinder affidavit, the petitioner, while reiterating the statements made in the writ petition had admitted that he was promoted in 1986 and sought to elucidate and elaborate the facts already pleaded in the writ petition. He further claimed that his seniority as shown in the seniority list dated 30th September, 1971 hasbeen correctly fixed upon rectification thereof by order dated 29th June, 1991 he is entitled to the benefit of his seniority for the purpose of fixation ofthe date from which his promotion to the post of Assistant Engineer (Civil) shall be effective. According to him he was entitled to be considered for promotion along with 5 persons named in Paragraph 3. The allegation of poor performance is incorrect and is not based on any materials. There cannot by any justification of giving an earlier date on which the promotion of respondent No. 3 was made effective while denying the same to the petitioner. The petitioner reiterated his claim for promotion from 1973 along with the said 5 persons and while the respondent No. 3 was given the same benefit. Much stress was laid on the existence of relevant records relating to consideration of petitioner''s case for promotion in the rejoinderaffida"vit.

Mr. R.N. Singh, learned Counsel for the petitioner contended that since the Seniority list was ultimately corrected in 1989, therefore, the petitioner was eligible for consideration for promotion before the respondent No. 3 and alongwith the said five persons named in paragraph 3. In the meantime, the petitioner having retired in May, 1992 the absence of the said five persons as parties in the writ petition would be immaterial inasmuch as the petitioner would be entitled only to monetary benefits and nothing else. He contends further that there being no material to show that the petitioner''s case was considered for promotion even in 1980, the case made out in the counteraffidavit cannot be accepted. In the facts and circumstances of the case, promotional benefit to the post of Assistant Engineer (Civil) should be given to the petitioner with effect from 1973 and also consequent promotion to the post of Executive Engineer with effect from the date when the batchmates were given promotion to the said post. In view of petitioner''s retirement, the monetary benefit should be accorded to the petitioner being the difference of pay.

Mr. V.K. Birla, leanred Counsel for the respondent, on the other hand, contends that even if the petitioner is given the benefit of his seniority as refixed in 1991, he cannot claim promotion as a matter of right. The promotion in effect was a recruitment where 25% quota was filled in from the departmental candidates while 75% was filled up by direct recruitment. The seniority in the post of Assistant Engineer cannot have any relation with seniority in the post of Overseer being a source of recruitment. He contends further that the promotion is strictly on merit as may be decided by the Departmental Promotion Committee (''DPC for short). Relying on the original records produced before this Court. Mr. Birla contends that the petitioner''s case was considered for promotion in the year 1980 as would appear from the Minutes of the proceedings to which he had drawn our attention. Upon examining the said record, it appears that the same are minutes of the DPC meeting held on 8th October, 1980 for considering promotion of Junior Engineer (Civil) to the post of Assistant Engineer (Civil). The DPC had considered the proceedings of the Screening Committee meeting held on 26th March, 1980 for the said purpose. It appears from the report of the Screening Committee that it had considered the relevant provision/regulation for recruitment which prescribes that the selection is based on merits with due regard to seniority. 45 Junior Engineers (Civil) who had put up 10 years or more service were considered and separate lists were prepared for candidates who should be considered for promotion and were placed in AnnexureA. The name of the petitioner figures in SI. No. 18 in the said list. The candidates recommended for promotion having been found suitable were described in Annexure''B'' in which petitioner''s name does not find place. Petitioner''s name figures in SI. No. 10 of Annexure ''G'' amongst the candidates whose cases were passed over. Therefore, according to Mr. Birla, the writ petition is liable to be dismissed.

Admittedly the petitioner''s seniority was rectified in 1991 and was correctly fixed by placing the petitioner above respondent No. 3. but the 5 persons named in para 3 having their appointments approved in 1960 cannot be said to be batchmates of the petitioner though recruited in 1957 when the petitioner''s appointment was approved by the UPPSC in 1962. Therefore, by no stretch of imagination, the petitioner admittedly cannot claim parity with those 5 person who were considered in 1973 for promotion to the post of Assistant Engineer (Civil). Therefore, the petitioner has to confine his case with that of the respondent No. 3.

Admittedly the post of Assistant Engineer is not promotional post. The post is to be filled up by direct recruitment, a fact which is not disputed by Mr. R.N. Singh. But 25 per cent of the said post are to be filled by candidates drawn from the Department. Though called promotion, the same is in effect a recruitment. Para 1 (a) of Appendix ''B'' of the Recruitment Regulations Prescribes:

"For purpose of recruitment under clause II of subclause (1) of Regulations, a selection based on merit with due regard to seniority shall be made from amongst overseers (J.Es) who have put in at least 10 years of service and who have passed such qualifying examination as may be prescribed."

As soon a selection is based on merits with due regard to seniority, the promotion cannot be claimed as a matter of right. Therefore, simply because the petitioner is senior to respondent No. 3, therefore, he is entitled to pro motion to the post of Assistant Engineer at least on the same day when the promotion of respondent No. 3 was made effective. The promotion is dependent on merit has to Be determined by the DPC.

The case of the petitioner was considered alongwith that of the respondent No. 3 for promotion in the meeting of the DPC held on 8th October, 1980. The petitioner''s name found place in the list of candidates considered unsuitable prepared by the Screening Committee whereas that of respondent No. 3 found place in the list of candidates found suitable. In support of the said list, the Screening Committee had placed relevant documents which included summary of Annual Confidential Reports. It appears from the summary as appearing in the original record produced before this Court that the performance of respondent No. 3 was good since 197576 while in 197677 once it is ''Excellent'' and 197778 twice it is ''Very good'' and 197879 and 197980 were ''Very good'' all through. While that of the petitioner, once it is ''just satisfactory'' in 197576,197677 and in 197778 twice it is Adverse'' and once ''Satisfactory'' while in 197879 twice it is ''Very good'' and once it is ''Good'' and 197980 it is ''Good''. Therefore, as it appears from the record that the performance of respondent No, 3 was admittedly better than that of the petitioner.

In the meantime, the petitioner has been promoted in 1986 to the post of Assistant Engineer (Civil) which he has accepted and had made a representation that his promotion should be effected since 1973 but such a prayer could not be granted because of the fact that the petitioner was not eligible in 1973 on the basis of his claim that the said 5 persons were his batchmates as observed earlier.

The petitioner having found unsuitable while considered for promotion in 1980 when the promotion is on merit, he cannot claim benefit of his seniority above the respondent No. 3. Even if the respondent No. 3 is given benefit of his promotion effective from 1975 on account of his performance, the petitioner cannot claim the same fight for the simple reason that the petitioner was promoted in 1986 while the respondent No. 3 was promoted in 1980 apart from the fact that the petitioner''s performance was not good until 1979.

The merit is to be considered by the DPC which takes into account various aspects. The Court cannot place it in the shoes of the DPC to assess the merit. Nothing has been shown or pleaded either in the writ petition or otherwise that there was any mala fide or arbitrariness in the matter of refusal of promotion to the petitioner. The petitioner has solely based his claim on his seniority above the respondent No. 3. Even if on scrutiny the Court is of a different opinion from those refrain from deciding in view of the observation of the DPC, the Court cannot substitute made hereinbefore on the merits of the its view in place of those of the DPC unless case. There is no denial of the fact, as it is the same appears to be perverse or an evident in the facts and circumstances of the bitrary. An examination of the record does case that there was lack of diligence on the not show that there is any thing to describe part of the petitioner in espousing his cause the action of the DPC in not granting though, however, fortunately for him he had promotion to the petitioner in 1980 an got his seniority corrected and rectified in bitrary or otherwise. 1991 but that seniority is of no avail when the

There being no equality in be luesn of promotion is dependent on between the petitioner and respondent No. 3 me"1 having regard to semotnty. When in the matter of promotion to the post of petitioner is claiming promotion since 1973, Assistant Engineer, the petitioner cannot he made his claim only in 1988 after having invoke Articles 14 or 16 of the Constitution accepted the promotion The delay in of India and plead discrimination. In make representation in 1988 when he is asmuch as the respondent No.3 was claiming the same from 1973 is too long and promoted in 1980 when the petitioner was has remained unexplained disentitling the considered unsuitable. Whereas the petitioner to invoke writ jurisdiction, petitioner was promoted in 1986. Simply now it is an established petition on the ground of seniority after having promoted at a latter date on the basis of merit through selection by DPC, it is not sum a open to the petitioner to claim parity with found guilty of delay or laches, the respondent No 3 and resort to 16 In the facts and circumstances of equality clause It is for the DPC to consider the case as observed earlier, we, therefore, from winch date the promotion do not find merit in the case as made should be effective having regard to the performance of the incumbent. There is no denial that the DPC is empowered to decide the said question. The materials produced do not show, neither the petitioner has made out any case that the DPC has acted arbitrarily in the matter of grant of promotion effective in 1986 to the petitioner and in not making the same effective on any earlier date. The decision of the DPC is dependent on the subjective determination on the basis of the performance of the candidate and in exercise of writ jurisdiction, the Court cannot delve into and undertake a exercise of subjective determination itself. Inasmuch as such an exercise would be a decision in relation to factual determination which the writ Court cannot do.

Over and above, the petitioner was claiming his right since 1973 and he waited till 1987 to make the representation which is too long a time unexplained. Even then having accepted promotion in 1986, the representation was make in 1988 long after two years. No explanation is offered for the delay in making the representation after two years. That apart, the acceptance of promotion in 1986 whether operates as estoppel is a question to be decided which, however, we

By now it is an established principle of law that the exercise of writ jurisdiction is a discretion. The court may not exercise such discretion in the event the petitioner is out by the petitioner.

The writ petition, therefore, fails and is accordingly dismissed. There will, however, be no order as to costs.