Meghalaya State Electricity Board & Ors Vs. Thuleswar Barbaruah &
Ors [2006] Insc 857 (24
November 2006)
S.B.
Sinha & Markandey Katju
(Arising
out of S.L.P. (C) No.21230 of 2005) S.B. Sinha, J.
Leave
granted.
Respondents
herein joined services of the Assam State Electricity Board (the Board). The
terms and conditions of their services used to be governed by the regulations
framed under the Electricity (Supply) Act, 1948 ('the 1948 Act', for short)
known as Assam State Electricity Board General Regulations, 1960 ('the 1960
Regulations', for short) and Assam State Electricity Board Engineering Service
Regulation, 1973 ('the 1973 Regulations', for short). Regulation 4 of the 1960
Regulations authorised the Board to prescribe the manner in which the record of
services of its employees was required to be maintained, pursuant whereto the
format of ACR and related guidelines were prescribed. The Board adopted the
existing rules, regulations, orders and procedures of the old Board. On or
about 22.1.1975, however, the Government of Meghalaya, in exercise of its power
conferred upon it under Section 5 of the 1948 Act, constituted the Appellant
Board, whereupon the Respondents herein were placed with the Appellant by the
Assam State Electricity Board. The 1973 Regulations, however, were amended in
1984, pursuant whereto the Respondents were promoted to the post of Assistant
Engineer. In between 7.1.1987 and 14.1.1992, Respondent Nos. 1 to 8 were
promoted to the post of Assistant Executive Engineer (Civil). On 19.4.1996 the
Board recommended promotion of Respondent Nos. 4 to 6 to the post of Executive
Engineer. On or about 18.6.1997 the inter se seniority list of Assistant
Executive Engineers (Civil) was published. Appellant Board framed its own
Regulations on 14.8.1997; Regulation 37 whereof provides for the eligibility
for promotion. Sub-Regulation (3) of Regulation 37 reads as under:
"(3)
All qualified and eligible employees equal to the number of vacancies both
existing and estimated to arise up to 31st December every year shall be
prepared during the period from September to December every year." The
said Regulation was amended, in terms whereof it was provided that a list of
qualified and eligible employees equal to three times the number of vacancies
plus one, of both existing vacancies and those estimated to arise up to 31st
December of the year shall be prepared during the period from September to
December of the year. The cut-off date for determining the eligibility criteria
for promotion to various grades/cadres was fixed before the 1st April of the
current year by a memorandum issued on 20th November, 1998. Further amendment was carried on 12th November, 1999, providing for categories to which
promotion would be effected on the basis of merit-cum-seniority rule, which is
in the following terms:
"1.
The DPC shall initially arrive at the average of marks obtained in the latest
of 5(five) years APARs in respect of each candidate who figures in the list
referred to in Regulation 37(3).
2.
Such average mark shall then be rounded off to the nearest decimal.
3.
However, if the candidates obtain the same grade, the ranking shall be done
according to seniority.
The
existing provision of Regulation 40(2) stands amended as stated above, with
immediate effect." For filling up 10 vacancies to the post of Executive
Engineer, a Departmental Promotion Committee (DPC) was constituted, the
break-up whereof is as follows : 3 posts of Executive Engineer, 2 anticipated
vacancies, 3 posts of Executive Engineers to be promoted to the post of
Superintending Engineer, resulting in 3 more vacancies.
In
total there were 28 eligible candidates. As in terms of the Regulations three
times the number of vacancies, i.e., 30 candidates were to be taken into
consideration, cases of all of them were considered by the DPC. Respondent Nos.
1 to 8 were amongst them. On the basis of the recommendations of the
Departmental Promotion Committee, order of promotion was issued on 15.01.2003.
Respondent Nos. 1 to 3, however, aggrieved by and dissatisfied therewith, filed
a writ petition before the Gauhati High Court, Shillong Bench, wherein, inter alia,
the following prayer was made :
"Issue
Rule calling upon the respondents as to why the impugned New Meghalaya State
Electricity Board (Service) Regulations, 1996, subsequent amendments conveyed
under Office Memorandum dated 7th Oct, 1997, 20th Nov. 1998 and 12th Nov. 1999
(Annexure XII, XIV and XV), the Gazette APAR Format (Annexure- XII), the
impugned Promotion order dated 15.1.2003 (Annexure XVII) the proceedings and
recommendations of DPC and the confidential Reports of the petitioners for the
last 5 years commencing from 1997 on the APAR format, if any, be not set aside
and quashed and as to why the petitioners should not be continued to be
governed by the Old ASEB (General) Regulations, 1960 (Annexure- I), ASEB
Engineering Service Regulation, 1973 since adopted and modified by Me.S.E.B. vide
Annexure IV and V." A learned Single Judge of the High Court by a judgment
and order dated 18.3.2005 dismissed the said writ petition opining that the
orders of promotion issued by the Board did not become vitiated only because no
DPC was held in the year 2000-2001 as the vacancies arose only in the year
2002. It was noticed :
"...Since
no statement made by the petitioners with regard to the number of vacancies
that arose in the year 2000-2001, this contention of the respondents is that
till December 2002 there were seven vacant posts of Executive Engineer (Civil)
and three resultant vacancies due to promotion this contention has to be
accepted." It was furthermore opined that the selection of candidates as
per amended regulations for placing their names before the Departmental
Promotion Committee was not against the provisions of the 1948 Act and, thus,
constitution of DPC and selections made pursuant thereto were not illegal. An
intra-court appeal was preferred thereagainst. The Division Bench, however, by
the impugned judgment dated 19.5.2005, while noticing that the life of a panel
remains valid for one year, opined :
"Admittedly,
in the case in hand, the petitioners were eligible and qualified for
consideration for promotion during the year 2000 and the seniority list would
show that their names appeared at serial Nos. 2, 3, 4, 5, 6, 10, 13 and 22,
whereas the names of Private Respondents appeared at serial Nos. 1, 12, 15, 16,
21, 23, 25, 28, 29 and 30, but the respondent Board did not prepare the Panel
as required under the Regulations during the year 2000 and no DPC was
constituted for selection of the eligible candidate for promotion to the next
higher grade.
The
Respondents Board did not make any endeavour to prepare the list and place it
before the DPC during the year 2001 and as a result thereof, there was
accumulation of vacancies and the DPC was constituted and held on 13.12.2002
and on their recommendations, the Private Respondents were promoted vide order
dated 15.1.2003, which cannot be sustained in view of the decisions and the law
laid down by the Apex Court and by this Court." The only question which
arises for our consideration is as to whether the Board was bound to constitute
Departmental Promotion Committee during the year 2000-2001 only because the
Respondent Nos. 1 to 8 herein became eligible for promotion. The seniority list
of Respondents, vis-`-vis, those candidates who are selected, is not in
dispute. It is furthermore not in dispute that all the 28 candidates, whose
cases were considered by the DPC, were qualified therefor. They had acquired
the minimum eligibility criteria, as provided for in the Regulations, in 1998.
We
have noticed hereinbefore that the learned Singh Judge arrived at a finding of
fact that vacancies arose in the year 2002. If vacancies arose in 2002, a'
fortiori the DPC was required to be reconvened only in that year.
Only because
there exists a provision for convening a Departmental Promotion Committee every
year, the same by itself would not mean that the same was required to be
convened irrespective of the fact as to whether any vacancy arose or not.
It may
be that in terms of the extant regulations a panel was required to be formed,
but, the same, in our opinion, would not be applicable in the instant case as
no vacancy arose in 2000. The Division Bench, in our opinion, could not have
interfered with the judgment of the learned Single Judge without arriving at a
finding that the finding of fact arrived at by it in regard to the year in
which the vacancies arose, was wrong.
For
the aforementioned reasons, the impugned judgment cannot be sustained, which is
accordingly set aside. The appeal is allowed. However, as the respondents are
not represented before us, there shall be no order as to costs.
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