Union Territory Of J&K And Another vs Anupam Dutt And Another

Sindhu Sharma, J

This Intra Court Appeal is filed by the Union Territory of J&K through Power Development Department against the judgment dated 14.02.2020 passed in SWP No. 2206 of 2011.

By virtue of the impugned judgment, the writ petition was allowed and the petitioners (respondents herein) were held entitled for promotion to the post of Junior Engineer (Electric) Grade-I in terms of Government Order No. 199-PDD of 2010 dated 29.07.2020 as has been given to 70 Junior Engineer(Electric) by the aforesaid Government Order dated 29.07.2020 along with benefits paid to them within a period of two months.

The respondents were initially appointed as Junior Engineer (Electric) Grade-II on 30.12.1988. At the time of their appointment, there was no statutory recruitment rules regulating the service conditions of the Junior Engineer in the Power Development Department. As per the seniority list issued by the department vide Government Order No. 314-PDD of 2007 dated 23.10.2007, they figured at serial No. 84, 87, 93, 94, 95 and 96 in the order of their seniority. The recruitment rules, i.e., Jammu and Kashmir Engineering Subordinate Service Recruitment Rules, 1997 were framed in the year 1997 vide SRO No. 180 dated 26.05.1997. These rules provided the procedure for promotion to the post of Junior Engineer Grade-I. The qualification prescribed for promotion to the post of Junior Engineer Grade-I (Civil) Mechanical/Electrical was B.E Civil/AMIE Section A & B/3 years Diploma in Civil and Mechanical Engineering from Recognised Institute and the method of recruitment provided was 100% by promotion from Class-III of Category-A from amongst:

a) Degree holders having at least 5 years continuous service as Jr. Engineers Grade-II viz. 1760-3200 and

b) Diploma Holder having at least 10 years continuous service as Jr. Engineers Grade-II viz. Rs. 1760-3200.

Note:--the posts earmarked for Jr. Engineer Grade-I shall be 1/3rd of the total strength of Junior Engineers Grade Rs. 1760-3200 and Rs. 1400- 2300 put together.

The respondents claimed that in terms of these Rules of 1997 after rendering five years of continuous service as Junior Engineer (Electric) Grade-II, they were entitled for promotion to the post of Junior Engineer (Electric) Grade-I w.e.f 31.12.1993, but the same was not granted to them, though they were promoted and working as Assistant Engineers (Electrical) in In-charge capacity and subsequently as In-charge Assistant Executive Engineers. Their contention was that they were also eligible for substantive promotion to the posts of Junior Engineer (Electric) Grade-I but were not promoted to the said post. The appellant, however, promoted 111 persons, who were juniors to the respondents as Junior Engineer Grade-I ignoring the claim of the petitioners who are senior to them.

The promotion to the post of Junior Engineer Grade-I was denied to the respondents on the plea that they were already holding the higher post of Assistant Engineers though in In-charge capacity in their own pay and grade. The respondents aggrieved of the promotion of the persons junior to them represented before the department. This controversy which affected 85 Engineers in the department, came to the notice of the Chief Secretary of the State, who convened a meeting in his office Chamber on 23.10.2009 to discuss this issue.

In the high level meeting held in the office of the Chief Secretary, the contention of the petitioner was accepted and in order to reduce the hardship of these 85 left out junior Engineers, (Grade-II), it was decided that all the left out Engineers would be promoted. It was decided that the department could use 70 available vacancies and also utilize 04 vacancies of Assistant Engineers and 11 vacancies of Assistant Executive Engineers so as to accommodate 85 Junior Engineer (Electric) Grade-II, who were left out in the promotions made in the year 2005.

Accordingly, the respondents issued Government Order No. 199-PDD of 2010 dated 29.07.2010 but placed only 70 Junior Engineer (Electric) Grade-II (degree holders) as Junior Engineer (Electric) Grade-I, till the same they were promoted and placed as In-charge/regular Assistant Executive Engineers. These fifteen Junior Engineers were amongst the 85 Engineers whose case for promotion was considered in the meeting held by the Chief Secretary, but were again left out despite the decision taken to accommodate all the 85 Junior Engineers. These fifteen left out Engineers approached the writ court seeking a writ of Mandamus directing the respondents to promote the petitioners as Junior Engineers (Electrical) Grade w.e.f 30.12.1993.

The grievance of 70 Junior Engineers out of 85 was redressed but the rest of the respondents, who were similarly situated being junior to these 70 Junior Engineers and senior to 111 Junior Engineers who were promoted vide Government Order No. 199-PDD of 2010 dated 29.07.2010 were again left out. Though in the meeting held by The Chief Secretary of the State, decision was taken to promote all the 85 left out Junior Engineers (Electric) Grade-II, including the petitioners as a onetime exception, but the appellant promoted only 70 Junior Engineers. The respondents were, thus, left out without any reason despite the fact that 111 persons who were junior to them and 70 similarly placed were promoted.

The learned single judge allowed the writ petition by holding the respondents are entitled for promotion to the post of Junior Engineers (Electric) Grade-I, on the same terms as has been done in case of 70 Junior Engineers (Electric) Grade-II in terms of Government Order No. 199-PDD dated 29.07.2010 and also directed that the benefits as paid to 70 Junior Engineers (Electric) Grade-II be also paid to them..

The appellant-Power Development Department is aggrieved of the impugned judgment on the ground that granting promotion to the respondents would disturb the entire system of seniority in the department. It is also submitted that since the respondents did not raise any grievance earlier regarding the promotion and had approached this Court after a long time, therefore, no relief could be granted to them. Lastly, it was submitted that the objections filed by the appellant were not considered in proper perspective by the writ court. Reliance has been placed on the judgment of Hon’ble the Supreme Court in ‘State of J&K v/s Nisha Sharma and others’, in Civil Appeal No. 700992019 emphasizing that while granting promotion, the entire system of seniority could get affected.

We are not inclined to accept the submissions made by the appellant for the reasons that the petitioners were among of 85 persons who had approached the appellant, in the first instance, for promotion to the post of Junior Engineers (Electric) Grade-I when 111 persons junior to them were appointed as Junior Engineers (Electric) Grade-II, substantively ignoring their seniority. The appellant had accepted their seniority and settled the issue at highest level by taking a decision to promote 85 persons including petitioners as Junior Engineers (Electric) Grade-I.

The Government order No. 199-PDD of 2010 dated 29.07.2020 was issued by the appellant in furtherance of its decision to remove the hardships of 85 Junior Engineers who were wrongly denied promotion. However, vide this order, only 70 Junior Engineers were promoted but fifteen Junior Engineers including respondents were left out. There was no justification provided for ignoring the claim of the respondents for promotion against their own decision especially when 111 persons who were junior to the petitioners had already been promoted, thus, the question of delay does not arise, nor can the appellant raise the plea of seniority when they have themselves accepted the claim of the respondents for promotion and issued Government Order No. 199-PDD of 2010 dated 29.07.2010 promoting 70 similar Junior Engineers (Electric) Grade-II.

The writ court, therefore, rightly held that the respondents were entitled to the promotion in terms of Government Order dated 29.07.2020. The question of delay cannot be considered at this stage as the appellant themselves accepted that the appellant were wrongly denied the promotion. The contention of the appellant is that the impugned judgment would disturb the entire system of seniority, is without any merit as they themselves have admitted the seniority of the respondents and promoted 70 Junior Engineers vide Government Order dated 29.07.2020 but did not grant the benefits of the same to the respondents who were also similarly placed.

We are inclined to agree with the view of the learned writ court holding that the respondents were entitled to be appointed as Junior Engineers (Electric) Grade-I, in terms of Jammu and Kashmir Engineering Subordinate Service Recruitment Rules, 1997.

In view of the aforesaid discussion, the impugned judgment dated 14.02.2020 passed by the learned single Judge cannot be assailed on any legally tenable ground.

We, accordingly, find no merit in this appeal and the same is, therefore, dismissed.