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PETITIONER: H.P. STATE ELECTRICITY BOARD

       Vs.

RESPONDENT: SHRI K. R. GULATI

DATE OF JUDGMENT:       03/02/1998

BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.B. PATTANAIK, J.      This appeal  is directed  against  the  judgment  dated 14th   July,   1995   passed   by   the   Himachal   Pradesh Administrative Tribunal  in O.A.  No. 1374  of 1992.  By the impugned judgment  the Tribunal  has directed  the appellant Board to  treat the  respondent as  having been  promoted as Stenographer in  the pay  scale of  Rs. 106-200  with effect from 31st  May, 1966 and give him all consequential benefits flowing therefrom  in his  own stream of Stenography. It was further directed  that there  should be no recovery from the respondent who  has worked  against  various  posts  in  the meantime.      The brief facts leading to the filing of application by the respondent  before the Tribunal may be stated hereunder. The respondent  joined the  Public Works  Department of  the Government of Himachal Pradesh as a Clerk in November, 1958. While so  continuing he  was appointed  as a Steno-typist on July 18,  1964 and  was confirmed against the said post with effect from  1st January,  1972. ON  2nd  April,  1971,  the Himachal Pradesh  State Electricity (hereinafter referred to as ’the  Board) was  constituted in exercise of powers under Section 5 of the Indian Electricity (Supply) Act, 1948. With effect  from 31st  August, 1971 the Department of Multi Purpose Project  &  Power  of  the  Government  of  Himachal Pradesh was  closed. On account of the creation of the Board on and from the said date, on abolition of the Multi Purpose Project & Power Department of the Government, the Board took over the  services of  all the  erstwhile employees  of  the department on fresh contract of employment being executed by those employees  but it  was  clearly  stipulated  that  the employees will continue as employees of the Government until their final  absorption by the Board or their services stand terminated in accordance with law. It may be stated that the department  of   Multi  Purpose   Project  &  Power  of  the Government issued  the notice of discharge of the respondent from the service on account of the closure of the department by letter  dated 31st August, 1971. On September 9, 1971 the appellant Board  issued  an  offer  of  appointment  to  the respondent  intimating  therein  that  the  Board  would  be

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prepared to take the respondent on semi permanent basis as a Lower Division  Clerk in  the grade of Rs. 110-250 and in ad hoc capacity as Stenographer in the grade of Rs. 160-400. it was also clearly stipulated that the respondent will have no right for continuance against the post of Stenographer until the is appointed against the said post on regular basis by a competent authority  of the Board. The respondent was called upon to  indicate as to whether he would be agreeable to the terms and  conditions mentioned  in the offer of appointment as stated  above. By  letter dated  9th November,  1971, the respondent himself made an application for the post of Lower Division  Clerk   on  permanent   basis  under   the   State Electricity Board  and to  allow him  to continue  on ad hoc basis against  the post  of Stenographer. The Board framed a set of  Regulations to  regulate the  recruitment, promotion and confirmation  of  the  ministerial  services  under  the Board, in exercise of powers conferred by Section 79(c) read with Section 15 of the Electricity (Supply) Act, 1948 called the Himachal Pradesh State Electricity Board Recruitment and Promotion (Regulations)  for Ministerial  Employees  of  the Board, 1972  ( hereinafter referred to as ’the Regulations’) which became  operative with effect from 1st July, 1972. The respondent became an employee of the Board as a Junior Scale Stenographer by  order dated 7th June, 1973 with effect from 1st January,  1972. Under  the  Regulations  appointment  to different posts  under the  Board could  be made  by  direct recruitment as  well as  by promotion  and the  criteria for promotion was  on the  basis of  recommendation  of  a  duly constituted departmental promotion committee which committee in turn  would recommend  in case  of non-selection  post by virtue of  the seniority  of the  employee  and in case of a selection post  by virtue  of merit  which is  apparent from Regulation 5  providing procedure  for appointment.  It  was also  indicated   therein  that   the  department  promotion committee shall  be guided  by the procedure approved by the Board for  selection post.  Regulation 8  provided that  the method of  recruitment,  promotion,  minimum  qualification, period of probation etc. for each of the Board’s service are as set  forth in  the Appendices ’A’ and ’B’. Under Appendix ’A’ the  post of  Head Clerk/Head Assistant in the pay-scale of Rs.  225-500 could be filled up by promotion from amongst the UDCs  who opted  for administration  wing as  well as by promotion from amongst the Stenographers in Junior scale who have qualified  in the  departmental examination  meant  for clerks. The  post of Head Clerk was a non-selection pos. The ratio between  the two  feeder cadres  as indicated above in 9:1. In  other words, as against 10 vacancies in the post of Head Clerk,  9 would be filled up from the UDCs and one from the Stenographer  Junior  Scale.  The  respondent  had  been promoted as  a Head  Clerk in  accordance with the aforesaid procedure on  23rd August,  1974. While he was so continuing by order  dated 27th  March, 1976,  18 posts of Junior Scale Stenographers stood  upgraded to Senior Scale Stenographers. As the  respondent had  already been  promoted as Head Clerk since 23rd  August, 1974  he was  not considered  for  being appointed to  any one  of these  upgraded  posts  of  Senior Stenographers. Feeling  aggrieved by the aforesaid action of the Board  he filed  a writ petition some times in June 1976 which was registered as Civil Writ Petition No. 336 of 1976. The Himachal  Pradesh  High  Court  allowed  the  said  writ petition filed  by the  respondent by  judgment  dated  11th September, 1981,  by  coming  to  the  conclusion  that  the respondent having  been promoted  to the  post of Head Clerk merely on  ad hoc  basis  could  legitimately  claim  to  be appointed against  the upgraded post of Senior. Stenographer

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by exercising  his option  to revert to his substantive post Jr. Stenographer.  The High  Court, therefore,  directed the Board to consider the respondent’s case for promotion to the post  of   Sr.  Scale   Stenographer  under  the  Rules  and Regulations existing when those posts became available. This decision of the learned Single Judge of the Himachal Pradesh High Court  became final as the Letters Patent Appeal No. 35 of 1981  filed by  the Board stood dismissed by the Division Bench on  18th  November,  1991.  A  departmental  promotion committee pursuance  to the  direction of  the High Court in the aforesaid judgment considered the case of the respondent for promotion  to the  post of senior Scale Stenographer but being of  the view  that the  respondent has lost touch with the stenography  and typing  ever since  his  promotion  and absorption as  a Head  Clerk in  August, 1974,  would not be suitable for  the post of Senior Scale Stenographer, did not recommend his  case for the post of senior stenographer. The departmental promotion committee, therefore, recommended the promotion of  the respondent to the post of Head Clerk/ Head Assistant. The  respondent then  filed a  contempt  petition alleging that  the direction  of the High Court has not been carried out  which stood dismissed by order dated 27th June, 1983 on  a finding  that in  the facts  and circumstances it cannot be  held that  there has  been  a  violation  of  the court’s direction.  The respondent  along with  three others filed a  second contempt  petition, which  was registered as CCP No.  2 of  1984 but  that also  stood dismissed by order dated 25th  May, 1984.  The respondent,  therefore, filed  a fresh writ  petition which  was  registered  as  Civil  Writ Petition No.  431 of 1984 but later on chose to withdraw the same as  Board itself  issued certain  office orders on July 12, 1985 and the writ petition was dismissed as withdrawn by order dated  12th September, 1985. The respondent then filed a fresh  writ petition  along with  one Narotam  Dutt Sharma which was  registered as  CWP No.  1088  of  1985  and  that petition  stood  transferred  to  the  State  Administrative Tribunal on  constitution of the Tribunal and was registered as Transfer  Application No.  741 of  1986. Shri  Sharma had made a  representation to  the Secretary  of the  Board. The Tribunal being  cognizant of  the fact that a representation by one  of the  petitioners is  pending  before  the  Board, disposed of  the application  by order  dated July  11, 1991 directing the  Board  to  consider  the  representation  and render a reasoned decision within two months. The Board took a final  decision on  the representation  of Shri Sharma and passed a  reasoned order  on 19th  November, 1991  which was plead before  the Tribunal and the Tribunal merely took that decision into  consideration  and  held  that  the  Transfer Application No.  741 of  1986 has  become  infructuous.  The respondent  then   filed  a  fresh  application  before  the Tribunal which  was registered  as O.A. No. 1374 of 1992 out of which the present appeal arises. The Tribunal disposed of the application  in favour  of the respondent by order dated 14th July,  1995 by issuing directions as already stated and hence the present appeal.      In the impugned judgment the Tribunal came to hold that the direction  of the  High Court dated 11th September, 1981 in CWP  No. 336  of 1976  holding that  the  respondent  was entitled to be considered for promotion in his own stream of stenography did  not authorise  the  departmental  promotion committee to  hold him  unsuitable for  the post  of  Senior Stenographer  and   to  recommend   the  promotion   of  the respondent to  the post  of Head Clerk which was done by the Board by  order  dated  11th  August,  1982.  The  tribunal, therefore, reiterated  that the  respondent being the holder

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of  the  post  of  Steno-typist  on  substantive  basis  was entitled to  be considered  for promotion  in his own stream and that  not having been done, the rights of the respondent have been infringed. The Tribunal also took into account the fact that  the respondent  has been promoted in the clerical line not  only to the post of Head Clerk but to the clerical line not  only to  the post  of Head  Clerk but to the still higher post of Office Superintendent, and thought it fit not to quash  the said  promotion  notwithstanding  the  earlier finding  that   the  respondent  was  only  entitled  to  be considered for  promotion in  his own stream of stenography. The  Tribunal  then  considered  the  question  as  to  what direction could  e given  and being  of the  view  that  the respondent was  senior to one Shri S.S. Kaushal in the cadre of Steno-typist  was entitled  to be promoted to the post of Stenographer in  the pay  scale of  Rs. 106-200  with effect from 31st  May,  1996  and  would  be  entitled  to  further consequential benefits  above Shri  Kaushal. Ultimately, the Tribunal directed  the Board  to  treat  the  respondent  as having been  promoted as  Stenographer with effect from 31st may, 1966  and further  directed to  give all  consequential benefits flowing  therefrom in his own stream of stenography only. It  was  further  observed  that  there  would  be  no recovery from  the respondent who in the meantime has worked against several clericals posts.      Mr.  Raju   Ramchandran  the   learned  senior  counsel appearing for the Board contended that on 31st May, 1966 the Board itself  had not  been constituted  and the  Board came into existence  only in  August,  1971.  On  that  date  the respondent was an employee of the State of Himachal Pradesh. In the absence of State of Himachal Pradesh being a party to the proceedings  and in  the absence  of said Shri Kaushal a party to  the proceedings the Tribunal could not have issued the impugned  direction of  promoting the  respondent  as  a Stenographer with  effect from  31st may,  1966 and the said direction on  the face  of it  is without  jurisdiction. Mr. Raju  Ramchandran   the  learned   senior  counsel   further contended that  under the Board when the respondent accepted the post  of Lower  Division Clerk and under the Regulations of the Board even a junior stenographer could be promoted to the post  of Head  Clerk, there  was no  infirmity with  the promotion of  the respondent  as Head  Clerk since  23rd  of August, 1974  and under such circumstances non-consideration of the  respondent for  one of  the upgraded posts of senior stenographer in  1976 does  not constitute  an infraction of his  right   of  consideration   under  Article  16  of  the Constitution. Mr.  Raju Ramachandran  also further contended that the  respondent having  filed a writ petition which was registered as  CWP No.  431 of 1984 challenging the decision of the departmental promotion committee which considered the case of  the respondent for promotion in accordance with the direction of the High Court in CWP No. 336 of 1976 but found him unsuitable  to hold  the post  of senior stenographer in view of  respondent having  lost touch  with stenography and ultimately with  drawing the said writ petition itself would indicate  that   the  respondent   accepted   the   position continuance in  the clerical  line. Mr. Raju Ramchandran the learned senior  counsel lastly contended that the respondent ever since  his promotion  to the post of Head Clerk in 1974 having continued  in  the  clerical  line  and  having  been promoted to  the next  higher grades  and  in  the  meantime having retired  on attaining  the age of superannuation, the impugned direction  the Tribunal will be futile exercise and will not  be in the interest of justice. The learned counsel for the  respondent on the other hand vehemently argued that

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the respondent has all along been agitating the fact that he should be  considered for promotion in his own stream namely in the  stenography line  and  notwithstanding  the  earlier direction of  the High Court in favour of the respondent the Board has  been ignoring  the same and as such the rights of an employee  under Article  16 of  the Constitution has been grossly infringed  and the  Tribunal was  fully justified in issuing  the   impugned  directions.  The  learned  counsel, however, fairly stated that the direction of the Tribunal to the effect  that the  respondent  should  be  treated  as  a Stenographer with  effect from 31st May, 1966 in the absence of the  State Government  and Shri  Kaushal being a party to the proceedings  was probably  not proper.  But in any event the rights  of  the  respondent  for  being  considered  for promotion in  the  stenography  line  could  not  have  been infringed in  the manner  in which  the Board has refused to consider particularly  when the  promotional  posts  in  the stenography line  are non-selection posts where promotion is based merely  on the  seniority, justifies the direction the Tribunal and  this Court  can modify  the same to the extent required  since   part   of   the   direction   has   become unimplementable by the Board. The learned counsel also urged that no doubt the respondent has retired in the meantime but by considering  his case  for promotion  in stenography line may ultimately  get him  some pensionary  benefits and  that should not be denied to him.      Having considered  the  rival  submissions  and  having examined the  Regulations of  the Board as well as different orders passed by the Boar promoting the respondent as a Head Clerk and  further promoting  him to  still higher grades in the  clerical   line  the   questions  that  arise  for  our consideration are: 1.   Whether non-consideration  of the  respondent for being      promoted   against   an   upgraded   post   of   Senior      Stenographer constitutes  an infraction of his right of      consideration under Article 16 of the Constitution? 2.   Whether in  the facts  and circumstances  of the preset      case it  can be  said that  the respondent accepted his      continuance in the clerical line, and therefore, should      not be  allowed to  claim again  his reversion  to  the      stenography line? 3.   Whether the  impugned directions of the Tribunal are at      all justified  particularly in the context of the facts      in relation to a state of affairs in the year 1966 when      the Board itself had not come into existence and in the      absence of  the State  Government as  a  party  to  the      proceedings and  so also in the absence of Shri Kaushal      as a party to the Proceedings? 4.   The respondent  having continued  in the  clerical line      since his  promotion as Head clerk in the year 1974 and      having been  granted further promotion in the said line      and ultimately  having retired,  whether it  is at  all      necessary to  direct the  Board to  reconsider his case      for promotion in the Stenography line?      So far  as the  first question  is concerned,  it is an admitted  fact   that  the  respondent  had  been  regularly absorbed as  a Junior  Stenographer under the Board by order dated 7th  June, 1973 with effect from 1st June, 1972. Under the Regulations read with Appendix ’A’ promotion to the post of Head Clerk no doubt was permissible both from the UDCs as well as  from the  stenography junior scale in the ration of 9:1 and the respondent had been promoted to the post of Head Clerk on  23rd August,  1974 but  the said  promotion of the respondent was  merely on  an ad  hoc basis  and he  had  no substantive right  to the post of Head Clerk on the date the

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posts of  Junior stenographers  were upgraded  to the senior scale stenographers i.e. on 27th march, 1976. The respondent being a  substantive junior scale stenographer had therefore a right to be considered for promotion to the post of senior scale  stenographer   in  March,  1976,  and  by  such  non- consideration there  has been  an infringement of Article 16 of the  Constitution. In  fact the High Court held so by its judgment dated 11th September, 1981 passed in CWP No. 336 of 1976 which  was upheld  by the Division Bench by order dated 18th November,  1981 in dismissing the Letters Patent Appeal No. 35 of 181.      It is in this context an ancillary question required to be  answered   namely  whether  the  departmental  promotion committee could  have held the respondent unsuitable for the post of senior stenographer merely on the ground that he has lost touch in stenography. The answer to this must be in the negative.  Since  under  the  Regulations  as  well  as  the Appendix, the  criteria for  promotion to  the non-selection post being  seniority the  departmental promotion  committee could not  have held  the respondent unsuitable for the post of senior  stenographer. The  decision of  the  departmental promotion committee, therefore, was wholly erroneous.      Coming now to the second question, it would appear form the facts  already narrated  as well  as the records of this appeal which  we have  carefully scrutinised, the respondent has all along been continuing in the clerical line eversince 23rd of August, 1974. Subsequent to the decision of the High Court in  CWP No.  336 of 1976 and the recommendation of the departmental promotion  committee which  considered the case of the  respondent pursuance  to the  direction given by the High Court  in the aforesaid writ petition, the Board passed an order  on 11th August, 1982 reverting the resonant to the scale of  junior stenographer  with effect from June 8, 1976 and by  yet another  office order  said respondent was again promoted to  the post  of Head  Clerk. The respondent having failed in  the contempt  proceedings initiated at his behest did file  a writ  petition No.  431 of 1984 but withdrew the same on  September 12,  1985. Under  these circumstances, we are  inclined   to  accept   the  submission   of  Mr.  Raju Ramchandran the  learned senior  counsel appearing  for  the Board that  the respondent  accepted his  promotion  in  the clerical line  and continued  thereunder and as such was not entitled to  re-open the  matter again  by  filing  a  fresh petition before the Tribunal. On the facts and circumstances of the  present case,  we are of the considered opinion that the respondent  could not  have  re-agitated  the  claim  by filing a  fresh application  before the Tribunal challenging the very  same cause  of action  which arose on 11th August, 1982 against  which the  respondent did file a writ petition No. 431  of 1984  and withdrew  the same  on 12th September, 1985.      Coming Now  to the  third question  on the  face of the impugned order  the direction  of the  Tribunal to treat the respondent as  having been  promoted as  a Stenographer with effect from  31st May,  1966 is  wholly without jurisdiction inasmuch as  such a  direction could  not have been given to the Board when the Board itself was not in existence on that date. Secondly,  on that date the respondent was an employee of the  State Government  and the State Government was not a party to  the proceeding  before the  Tribunal. Thirdly, the aforesaid direction  has been  given as one S.S. Kaushal who was junior to the respondent in his erstwhile post of Steno- typist got  promotion to  the post  of Stenographer and that Shri Kaushal  was not  a party to the proceedings. Lastly, a cause of  action, if  at all,  which arise on 31st may, 1966

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could not  have been  assailed before the Tribunal by filing an application in the year 1992 and by allowing such belated and stale claim, would upset the entire cadre management and will not  be in the interest of justice. Learned counsel for the respondent,  therefore in  course of hearing very fairly stated that  the said direction of the Tribunal was probably not proper  and we  have, therefore, no hesitation n holding that the  aforesaid  direction  is  wholly  unjustified  and unsustainable in law and we accordingly quash the same.      The only  question that  survives for  consideration is whether in  the facts and circumstances as narrated above it would at  all be  necessary for  this  Court  to  issue  any direction to  the Board  in modification of the one given by the Tribunal and to direct that the question of promotion of the respondent  in the  stenography line be reconsidered. As has been  stated earlier  the respondent has been continuing in the clerical line eversince 1974 on being promoted to the post of  Head Clerk.  In the  meantime he  has  got  further promotions in  the said line and has ultimately retired from the services on attaining the age of superannuation. At this length of time it would not be in the interest of justice to direct the Board to reconsider the question of his promotion in the  stenography line  and give consequential promotional benefits thereon notwithstanding our conclusion on the first question formulated above.      In the  aforesaid premises,  we allow  this appeal, set aside  the   impugned  judgment   of  the  Himachal  Pradesh Administrative Tribunal in O.A. No. 1374 of 1992 and dismiss the said O.A. There will be no order as to costs.