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PETITIONER: SHRI BALBIR SINGH

       Vs.

RESPONDENT: STATE OF H.P. & ORS.

DATE OF JUDGMENT:       14/08/1999

BENCH: R.P.Sethi, M.B.Shah

JUDGMENT:

SETHI,J.

     The  appellant was promoted, on adhoc basis, as Junior Engineer vide orders dated 21st July, 1986.  He was promoted as  Junior  Engineer on officiating basis vide orders  dated 2nd  July,  1988.   The Engineer-in-Chief  Himachal  Pradesh P.W.D.   directed his reversion to the Electrician  Grade-I, the  post  held  by  him   before  his  promotion.   Feeling aggrieved,  the  appellant approached the  Himachal  Pradesh Administrative  Tribunal, Shimla (hereinafter referred to as "the Tribunal") for quashing the impugned orders.  The claim of  the  appellant  was resisted by the respondents  on  the ground  that  his promotion was erroneously made by  way  of reservation  for  a  Scheduled  Tribe  candidate  under  the mistaken  belief  that such reservation was permissible  for promotion  from  Electrician Grade-I to the cadre of  Junior Engineer  (Electrical).   After finding that no  reservation was permissible under the Rules and Instructions relating to reservation  of  Scheduled  Castes/Tribes,   the  order  was rectified  and  the appellant was reverted to  his  original post.   The petition was dismissed by the Tribunal vide  the impugned  order  herein, hence this appeal.  It is  admitted that  promotions and appointments of Electrician Grade-I  to the  post  of Junior Engineer (Electrical) are regulated  by the  Himachal Pradesh P.W.D.  Subordinate Services  Class-II Junior  Engineer (Electrical) (Technical) Recruitment Rules, 1979   (hereinafter  referred  to  as  "the  Rules").    The aforesaid  Rules provide that 90% of the total posts of  the cadre  are to be filled by direct recruitment and 10% by way of  promotion  as  prescribed  under Rule 4  of  the  Rules. According  to  the  respondents reservation  roster  is  not required  to be applied in promotion posts where the element of  direct  recruitment exceeds 66-2/3%.  The appellant  was alleged  to  be  not entitled to promotion on the  basis  of reservation  of  the post for a Scheduled  Tribe  candidate. The  Office  Order  dated  21st July, 1986  shows  that  the appellant  was promoted as Junior Engineer in the  pay-scale of  Rs.700-25-850/30-1000/40-1200 purely on adhoc basis with effect  from  the  date of his joining the said  post.   The Office  Order dated 27th September, 1987 indicates that  the appellant  along  with  others was promoted  on  officiating basis  until  further  orders with immediate effect  in  the public  interest.   One  Shri B.L.  Walia,  Junior  Engineer filed a writ petition against the promotion of the appellant which  was seriously contested by the respondent-State.   By way  of objections filed in the High Court, the promotion of

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the  appellant was justified by stating:  "As already stated abvoe,  the respondent No.3 was working as Electrician Grade I  and possessed 2 years diploma I.T.I.  after Matriculation and as such he was eligible to be considered for the post of Junior  Engineer (Elect.) under sub.clause C of Rule 4(b) of the  Rules  known as Subordinate Services Class  III  Junior Engineer  (Elect.)  Technical Recruitment Rules, 1979.   The plea  of the petitioner that respondent No.3 is not eligible to  be promoted is totally wrong and is not sustainable.  It may  also  be  relevant to state here that  respondent  No.3 stands  confirmed as Electrician Grade I w.e.f.  28.11.85 by an  order  dated  17.12.1985 till the date of  promotion  of petitioner  as  Junior Engineer Electrician, Seven posts  of Junior  Engineer (Elect.) were filled up by promotion  meant for  various  categories including Electrician, Grade I  for 10% promotion quota.  As per Govt.  instructions Grade I out of  seven  posts,  one  post was to be filled  up  from  the Schedule  tribe  candidate, but the post meant for  Schedule Tribe  was  not filled up due to incomplete records  in  the office  of  the respondent No.2.  Respondent No.3  Sh.Balbir Singh   actually  belongs  to  this   category  and   on   a representation from him, the whole matter was re- considered and finding that respondent No.3 was wrongly deprived of his promoted due to incomplete records, at the relevant time, he was  promoted to the post of Junior Engineer Electrical  and the  petitioner  who  was the junior-most promotee  and  was holding ad hoc promotion was reverted."

     The  writ  petition challenging the promotion  of  the appellant  was  disposed  of by the High Court  of  Himachal Pradesh  vide order dated 28th August, 1988 by holding:  "In view  of  the  affidavit-in-reply  as well in  view  of  the statement made by the learned Deputy Advocate General to the effect  that there is only one common seniority list of  all the Electricians Grade-I, there is no substance in this writ petition and it is summarily rejected."

     It is surprising to note that prior to the disposal of the  writ petition filed by Shri Walia, the appellant herein was  reverted  vide  order dated 2.7.1988 allegedly  on  the ground  that  he  had  been  promoted  erroneously  under  a mistaken    belief.    The    record    reveals   that   the respondent-State had taken a conscious decision of promoting the appellant and was, therefore, not justified in reverting him   allegedly  on  the   ground  of  non-availability   of reservation  as  per  instructions of the  Government.   The respondents  cannot be permitted to blow hot and cold in the same  breath  inasmuch as in the petition filed by  Mr.Walia they  justified  the promotion of the appellant  by  stating that  he was deprived of his promotion erroneously and  when the question of his promotion came, it took the same plea of erroneously  promoting him under mistaken belief.  It is  on record  that  till the promotion of the appellant as  Junior Engineer  seven  such posts had been filled up by  promotion meant  for  various categories including Electrical  Grade-I from  10%  promotion quota.  He had been promoted  upon  his representation  which  was duly considered  and  appropriate orders  passed in his favour.  It is conceded before us that after  his  promotion  the appellant has  continuously  been holding  the  post  of the Junior  Engineer.   The  Tribunal appears to have misdirected itself by not taking note of the relevant  facts of the case and the stand of the  Government justifying  the promotion of the appellant which was  upheld

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by  the  High Court in the writ petition filed against  him. Under  the  peculiar circumstances of this case, as  noticed hereinabove,  the  appeal  is allowed by setting  aside  the orders of the Tribunal dated 11.8.1989 and the orders of the respondent-State  dated 2.7.1988 by which the appellant  was reverted to the post of Electrician Grade-I.  No order as to costs.