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PETITIONER: PUNJAB STATE ELECTRICITY BOARD,PATIALA & ANR. ETC.

       Vs.

RESPONDENT: RAVINDER KUMAR SHARMA & ORS., ETC.

DATE OF JUDGMENT27/10/1986

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1987 AIR  367            1987 SCR  (1)  72  1986 SCC  (4) 617        JT 1986   743  1986 SCALE  (2)690  CITATOR INFO :  RF         1989 SC 307  (5,8)

ACT:     Constitution  of  India, 1950--Articles 14  &  16--State Electricity Board--Service rule--Promotion from post of line men to line superintendent--Differentiation between  diploma and  non-diploma  qualified line men--Fixation of  quota  on such basis--Held illegal and unconstitutional.     Civil Services--P.W.D. (Electricity Branch)  Provisional Class III (Subordinate Posts) Rules, 1952--Line Men to  Line Superintendent-Promotion of--Differentiation between diploma and   non-diploma   holders  in  fixation   of   quota   for promotion--Whether valid and constitutional.

HEADNOTE:     Plaintiff-respondent Ravinder Kumar Sharma joined  serv- ice  as a Line-Man under the  respondent-Electricity  Board. The  terms and conditions of the service of the Line-Man  as well  as  of the Line-Superintendent were  governed  by  the P.W.D. (Electricity Branch) Provisional Class III  (Subordi- nate  posts)  Rules 1952. The Line-Man  are  either  diploma holders  or I.T.I. trained or non-diploma holders  and  they form  and constitute one common cadre known as Line-Man  and were in the same scale of pay. The seniority list of all the Line-Man is common and joint. By order dated 12.7.1977,  the respondent-Board  promoted Gutdial Singh, Jaswant Singh  and Ramesh  Kumar shown in the common seniority list at S.  Nos. 1451, 1546 and 2309 respectively, to the pest of Line-Super- intendent even though the plaintiff-respondent’s position in the  seniority list was at S. No. 995 and he was  senior  to the  said  officials.  By order dated  17.8.1977  the  Chief Engineer of the respondent-Electricity Board further promot- ed  Sudesh Kumar and Virender Kumar whose name stand  at  S. No.  1877 and 2279 in the joint seniority list.  The  Plain- tiff-respondent  filed a suit alleging that this  policy  of promotion from Line-Man to Line-Superintendent on a pick and choose  basis by fixing a quota between the diploma  holders and non-diploma holders is wholly illegal,  unconstitutional and  arbitrary  as  it adversely  affected  the  promotional prospect of the non-diploma holders Line-Men and prayed  for a decree declaring that the orders dated 12.7.1977 and

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73 17.8.1977  promoting  the  defendants 3 to  7  are  illegal, discriminatory  and null and void as it arbitrarily  affects the  rights of the plaintiff who is senior to them and  that he  be promoted to the post of Line Superintendent from  the date defendant Nos. 3 to 7 were promoted.     The  defendant Nos. :1 and 2 contested the claim of  the plaintiff contending that the terms and conditions of  serv- ice of Line-Man and the Line-Superintendent are governed  by the  P.W.D. (Electricity Branch) Provisional  Service  Class III  (Subordinate  Posts)  Rules 1952 framed  by  the  State Government  under  Art. 309 of the  Constitution,  that  the Electricity  Board  by various orders prescribed  quota  for diploma holders Line-Men for promotion to the post of  Line- Superintendent,  that according to this quota the  defendant Nos. 3 to 7 have been promoted and that the fixation of  the quota  on the basis of educational qualification  cannot  be questioned as arbitrary or discriminatory-     The  Subordinate  Judge First Class  decreed  the  suit, holding that the plaintiff was entitled to promotion to  the post of Line-Superintendent and the orders dt.12.7.1977  and 17.8.1977  whereby the defendant Nos. 3 to 7  were  promoted even  though they were junior to the plaintiff  are  illegal and in violation of the rights of the plaintiff and,  there- fore, the plaintiff was declared to have been promoted  from the date when his said juniors were promoted.     The  appeal  filed by the State  Electricity  Board  was dismissed  by  the Additional District  Judge  holding  that there was no reasonable nexus by fixing quota for  promoting diploma-holders Line-Men to the post of  Line-Superintendent even  though the non-diploma holders as well as the  diploma holders formed the joint cadre of Line-Man for promotion  to the  post of Line-Superintendent- The judgments and  decrees of the Courts below were affirmed by the High Court. Dismissing the Appeals and the Special Leave Petition,      HELD: 1. There is no dispute, rather it is not  contro- verted  that  in the joint seniority list  of  Line-Men  the plaintiff-respondent’s  name  was mentioned at  S.  No.  995 whereas  names of defendant Nos. 3 to 7 appear in  the  said list at S. Nos. 1451, 1546, 2309, 1877 and 2279  respective- ly-  Therefore, all the defendant Nos. 3 to 7 are junior  to the plaintiff-respondent- It is also clear and evident  from the  Office Order No. 97 dated 22.10.68 that the  qualifica- tion  for promotion to the post of Line-Superintendent  from Line-Man  is either holding certificate or diploma in  Elec- trical Engineering from any recognised institute or 74 having  passed 11/2 years course in the electrical trade  of Electrician/  Line-Man/Wire-Man from  recognised  Industrial Training  Institute and are matriculates and have worked  as Line-Man for four years continuously and immediately  before the promotion. [80A-C]     2. The plaintiff-respondent who is an Arts Graduate  and have  I.T.I.  Certificate (in the trade of  electrician  two years’ duration) and also have National Apprentice  Certifi- cate in the trade of Line-Man 3 years’ duration is  eligible for  promotion to the post of Line-Superintendent as he  has fulfilled all the requisite qualifications. All the line-men either diploma holders or non-diploma holders are performing the same kind of work and duties and they belong to the same cadre  having common/joint seniority list for  promotion  to the post of Line-Superintendent. The Orders dated  12.7.1977 being  Order No. 73 promoting defendant Nos. 3, 4 and  5  as well as Office Order No. 898 dated 37.8.77 promoting defend- ant Nos. 6 and 7 on the basis of quota from diploma  holders

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as  fixed by the order of the State Electricity Board  dated 9.5.74  is  wholly arbitrary,  illegal,  discriminatory  and violative  of the equality clause contained in Arts. 14  and 16 of the Constitution in as much as it purports to  promote defendant  Nos.  3  to 7 who are admittedly  junior  to  the plaintiff-respondent  in  service as Line-Man in  the  State Electricity Board. [80D-G] Shujat Ali’s case [1975] 1 SCR 449 at 480 followed.     3.  There  is no infirmity in the judgment of  the  High Court affirming the judgment and decree of the Courts below. [81E]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil  Appeal Nos.  3341- 42/83 & S.L.P. No. 2693/84 .     From  the  Judgment & Order dated 25-1-83  of  the  High Court  of  Punjab  & Haryana in Regular  Second  Appeal  No. 254/83 Hardev Singh and R.S. Sodhi for the Appellants. C.S. Vaidyanathan for the Appellants in C.A.No. 3342/83. Respondent-in-person. The Judgment of the Court was delivered by B.C. RAY, J. These two appeals by special leave one by the 75 Punjab  State  Electricity Board, Patiala and the  other  by Gurdial  Singh  & Ors. who  were  defendant-respondent  Nos. 3,4,6  and 7 in Civil Suit No. 293T/16-1-181/17-7-80  passed in  R.S.A. No. 254/38 whereby the judgments and the  decrees of  the courts below were affirmed decreeing  the  plaintiff respondent’s suit declaring that the plaintiffrespondent  be deemed to have been promoted from the date when his  juniors as  mentioned  in  the suit were promoted to  the  posts  of Line-Superintendents. The  case of the plaintiff in short is that  the  plaintiff- respondent  Ravinder Kumar Sharma joined the  service  under the  respondent No. 1, Punjab State Electricity Board  as  a Line-Man on 25th December, 1969 and he worked as  apprentice Line-Man from 29.12.1969 to 28.12.1970 on a fixed salary  of Rs.  140 per month. Thereafter he was allowed regular  scale of  pay  of Rs. 110-330 since the date of his joining  as  a Line-Man.  The  terms and conditions of the service  of  the LineMen  as well as of the Line-Superintendent are  governed by the rules framed by the Punjab Government in exercise  of its powers under Art. 309 of the Constitution of India which were termed as P.W.D. (Electricity Branch) Provisional Class III  (Subordinate posts) Rules 1952. Subsequently the  State Electricity  Board came into being and the  Electricity  De- partment  came under the administration of the  State  Elec- tricity Board.     The  Plaintiff has stated in the plaint that as a  Line- Man  he had been performing his duties efficiently and  hon- estly  and there was never any complaint against  his  work. His  work  and conduct had always been  appreciated  by  his superiors  from  time to time. He  possesses  the  following qualifications:-- 1. B.A. 2. I.T.I. (in the trade of Electrician 2 year’s duration). 3. National Apprentice Certificate in the trade of  Line-Man (3 year’s duration).      All  the Line-Men under the defendant No. 1,  that  is, Punjab State Electricity Board are either diploma holders or I.T.I.  trained  or non-diploma holders and  they  form  and constitute  one  common cadre known as Line-Man and  in  the

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same  scale of Rs. 110-330. The seniority list of all  these Line-Men  is common and joint. It has been  further  alleged that defendant No. 1 had been promoting officials from Line- 76 Men to the Line-Superintendent on a pick and choose basis-in consideration  of the qualifications by fixing a  quota  be- tween  the diploma holders and non-diploma holders and  this has resulted in arbitrary discrimination between the diploma holders  and non diploma holders Line-Men thereby  adversely affecting the promotional prospect of the non-diploma  hold- ers Line-Men. It has been further stated that this policy of the defendant No. 1 was set aside by the Punjab and  Haryana High  Court  in L.P. No. 618, 619 of 1975 fixing  the  quota between diploma holders and non-diploma holders Line  Super- intendents  by orders dated 12.1.1965 and 27.6.1974.  Though the  minimum  qualification  for promotion  of  Line-Man  to Line-Superintendent is however matriculation. The  plaintiff also  stated that by order dated 12.7. 1977  the  respondent No.  1 promoted Gurdial Singh whose name appeared at S.  No. 1451  in  the common seniority list and also  the  defendant Jaswant Singh whose name appeared at S. No. 1546 in the said list as well as Ramesh Kumar standing at S. No. 2309 in  the said seniority list to the post of Line-Superintendent  even though the plaintiffs position in the seniority list was  at S.  No. 995 and he was senior to these officials.  Thus  the plaintiff  was passed over while his juniors were  promoted. This  policy  of  pick and choose, it has  been  stated,  in promoting the officials is wholly illegal and  discriminato- ry. It has been further pleaded that by office order No. 899 dated  17.8.1977  the defendant No. 2, that  is,  the  Chief Engineer  of the Electricity Board further  promoted  Sudesh Kumar and Virender Kumar whose name stand at S. No. 1877 and 2279 in the joint seniority list as Line-Superintendent from the  Line-Man. The petitioner, therefore, pleaded  that  the action  of defendants Nos. 1 and 2 in fixing the  quota  be- tween  diploma holders and non-diploma holders Line-Men  for the purpose of promotion to the post of  Line-Superintendent and  promoting the defendants 3 to 7 to the posts  of  Line- Superintendent from Line-Man is wholly illegal,  unconstitu- tional and arbitrary. The plaintiff, therefore, prayed for a decree  declaring  that  the  orders  dated  12.7.1977.  and 17.8.1977  promoting  the  defendants 3 to  7  are  illegal, discriminatory  and null and void as it arbitrarily  affects the  rights  of the plaintiff who is senior to them  in  not being  promoted  to the cadre  of  Line-Superintendent.  The plaintiff also prayed for a direction that he be promoted to the post of Line-Superintendent from the date defendant Nos. 3 to 7 were promoted to the said post.     The  defendant Nos. 1 and 2 contested the claim  of  the plaintiff by filing written statement stating that the terms and conditions of service of Line-Men and  Line-Superintend- ent  are  governed by the rules framed by the  Punjab  State Government under Art. 309 of the 77 Constitution  and are termed as P.W.D. (Electricity  Branch) Provisional Service Class III (Subordinate posts) Rule 1952. It has been further stated that the State Electricity  Board by office order dated 14.5.1970 prescribed a quota of 5% for diploma holders Line-Men for promotion to the post of  Line- Superintendent-  This quota of diploma holders Line-Men  was increased  to 20% by the Board by order dated  2.7.1973.  On 9.5.1974 the quota of diploma holders Line-Men for promotion to  the  Line-Superintendent was further  increased  to  33% whereas  the  quota  for promotion  of  non-diploma  holders Line-Men  to  the post of Line-Superintendent was  fixed  at

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33%.  It  has been stated that according to this  quota  the defendant Nos. 3 to 7 have been promoted and the fixation of quota  on the basis of educational qualification  cannot  be questioned as arbitrary or discriminatory.     After  heating both the parties the  Subordinate  Judge, 1st Class, Patiala, held that the plaintiff was entitled  to promotion to the post of Line-Superintendent and the  orders dated  12.7.1977 and 17.7.1977 whereby the defendant Nos.  3 to  7  were  promoted even though they were  junior  to  the plaintiff are illegal and in violation of the rights of  the plaintiff.  The suit was decreed and the plaintiff  was  de- clared to have been promoted from the date when his  juniors mentioned  in the plaint were promoted to the post of  Line- Superintendent.     Against this judgment and decree the Punjab State  Elec- tricity  Board, Patiala filed an appeal being C.A. No.  4368 of  1982.  The  Additional District,  Judge,  Patiala  after heating the parties dismissed the appeal with costs  holding that  there  was  no reasonable nexus by  fixing  quota  for promoting  diploma-holders  Line-Men to the  post  of  Line- Superintendent even though the non-diploma holder as well as the  diploma holders formed the joint cadre of Line-Men  for promotion  to the post of Line-Superintendent. The  judgment of  the trial court was affirmed and it was also  held  that the appeal was not competent inasmuch as there was no  reso- lution  of the board authorising the filing of  the  appeal. The  cross objection filed by the  plaintiff-respondent  was allowed.      Against  this judgment and decree the defendant Nos.  I and 2 preferred an appeal being R.S.A. 254 of 1983. The said appeal was dismissed by the High Court of Punjab and Haryana and  the  judgment and decrees of the court below  were  af- firmed. It is against this judgment and decree the aforesaid two  appeals  on special leave petition have been  filed  in this Court. 78 The only issue raised in this appeal is whether the  defend- ant  No. 1, that is, the Punjab State Electricity  Board  is competent  to discriminate between diploma holders and  non- diploma  holders Line-Men forming the common cadre of  Line- Men having a common seniority list in promoting these  Line- Men  on the basis of quota fixed by the order of  the  State Electricity  Board even though the  requisite  qualification for promotion for Line-Man to the post of  Line-Superintend- ent  is  either the holding of diploma  or  certificate  for electrical  engineering from a recognised institute  or  the non-diploma holders having passed one and half year’s course in  the trade of Electrician/Line-Man/Wire Man  from  recog- nised Industrial Training Institute and are matriculates and have  worked  for four years as  Line-Man  continuously  and immediately  before promotion, as has been provided  by  the office order No. 97/ENG/BET/G-33 dated 22.10.1968 the  rele- vant excerpt of which is quoted herein below:--               "Far Direct Recruitment:               a)  Possess  3 years, certificate  or  diploma               course  in  Electrical  Engineering  from  any               recognised  Institute,  or  a  certificate  of               having  passed the N.’C.C. Test  conducted  by               the  State  Board of  Technical  Education/All               India Council for Technical Education.               b)  Have passed action of the  Institution  of               Engineering  (India)  Exam.  with   Elementary               Electrical Engineering as the optional paper.               For Pormotion               c)  (i) Have passed 11/2 years course  in  the

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             Electrical              Trades              of               Electrician/Line-Man/Wire-Man from  recognised               Industrial Training Institutes and are matric-               ulates and have worked for 4 years as a  Line-               Man continuously and immediately before promo-               tion.               (ii)  Have  passed 11/2 years  course  in  the               Electrical              Trades              of               Electrician/Line-Man/Wire-Man from  recognised               Industrial  Training Institutes and  are  non-               matriculates  but  are  capable  of  preparing               estimates, writing up measurement books  accu-               rately,  keeping store accounts etc. and  have               worked for 4 years as a Line-Man  continuously               and immediately before promotion.               79               (iii)  Persons holding diploma  in  Electrical               Engineering of 3 to 4 years duration recruited               as  Line-Man  against the reservation  of  60%               fixed  for  recruitment  of  persons   holding               certificate of 11/2 years course in the  Elec-               trical Trades of Electrician/Line-Man/Wire-Man               from  recognised  Industrial  Training  Insti-               tutes,  have  worked as Lint-Man for  3  years               continuously and immediately before promotion.               On promotion as Line-Superintendent they  will               be  given  weightage of 2  years’  service  as               compared  to non-diploma holders, at the  time               of  fixation  of their seniority  and  pay  in               accordance with the instructions contained  in               Board’s  Memo  No.  88774/84/BET/(33)L   dated               29.12.1967.               D  (i)  Matriculates Line-Man having  a  total               continuous service of 9 years as at A.L.M. and               Line-Man out of which they should have  worked               as  Line-Man  for  4  years  continuously  and               immediately before promotion’.               (ii) Non-matriculates Line-Man having a  total               continuous  service of 11 years as A.L.M.  and               Line-Man out of which they should have  worked               as  Line-Man for four years, continuously  and               immediately  before promotion,  provided  they               are capable of preparing estimates, writing up               measurement  books  accurately  keeping  store               accounts  and in addition are conversant  with               Consumer Accounts or possess a special experi-               ence for transmission line work.     The State Electricity Board by its order dated 14.5.1970 introduced the following quota for promotion to the cadre of Line-Superintendents: 1. Direct recruitment from the open market 62% 2. Diploma holders Line-Men 5% 3. Line Men non-diploma holders 33%. This quota of promotion for diploma holders Line-Man to  the pest of Line-Superintendent was further increased by  office order No. 244 dated 2.7.1975 by fixing the quota fox  promo- tion  of diploma holders Line-Men already in Service of  the Board  from  5% to 20%. Again by office order No.  78  dated 9.6.1974  the State Electricity Board further increased  the quota  of promotion of diploma holders Line-Man  already  in the service of the Board from 20% to 33%. 80     There is no dispute, rather it is not controverted  that the  position of the plaintiff-respondent in the joint  sen- iority  list of Line-Men in the scale of Rs. 110-330 of  the

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Punjab  State Electricity Board from 1.6.1967  to  31.8.1974 which  has been filed as additional document by  the  Punjab State  Electricity Board in C.A. No. 3341 of 1983  that  the plaintiff-respondent’s  name  was mentioned at  S.  No.  995 whereas  names of defendant Nos. 3 to 7 appear in  the  said list in S. Nos. 1451, 1546, 2309, 1877 and 2279  respective- ly. Therefore all the defendant Nos. 3 to 7 are  undoubtedly junior  to the plaintiff-respondent as LineMen in the  joint seniority List of Line-Men comprising of both diploma  hold- ers  and non-diploma holders Line-Men in the same cadre.  It iS also clear and evident from the office Order No. 97 dated 22.10.1968 that the qualification for promotion to the  post of Line-Superintendent from Line-Men is either holding  cer- tificate  or  diploma  in electrical  engineering  from  any recognised institute or having passed 1-1/2 years Course  in the  electrical trade of  Electrician/Line-Man/WireMan  from reCognised  Industrial Training Institute and  are  matricu- lates and have worked as Line-Man for four years continuous- ly and immediately before the promotion. The petitioner  who is  an  Arts Graduate and have I.T.I.  Certificate  (in  the trade  of electrician 2 years’ duration) and also  have  Na- tional  Apprentice  Certificate in the trade of  Line-Man  3 years’  duration  is eligible for promotion to the  post  of Line-Superintendent  as he has fulfilled all  the  requisite qualifications.  There is no gain saying that all the  Line- Men  either diploma holders or non-diploma holders are  per- forming the same kind of work and duties and they belong  to the  same  cadre having a common/joint  seniority  list  for promotion  to  the post of Line-Superintendent.  The  orders dated 12.7.1977 being order No. 73 promoting defendant  Nos. 3,  4 and 5 as well as office order No. 898 dated  17.8.1977 promoting defendant Nos. 6 and 7 on the basis of quota  from diploma holders as fixed by the order of the State Electric- ity  Board  dated  9.5.1974 is  wholly  arbitrary,  illegal, discriminatory  and  violative of the equality  clause  Con- tained  in  Arts.  14 and 16 of the  Constitution  of  India inasmuch as it purports to promote defendant Nos. 3 to 7 who are admittedly junior to the respondent No. 1 in service  as Line-Man in the State Electricity Board. It has been rightly held by following the decision in Shujat Ali’s case [1975] 1 S.C.R 449 at 480 that the promotion of defendant Nos. 3 to 7 who are admittedly junior to the plaintiffrespondent in  the service  as Line-Man to the post of Line-Superintendent  are illegal,  arbitrary  and discriminatory and so  bad.  It  is pertinent to refer to the observations of this Court in  the said case which read as follows: 81               "But  where  graduates and  non-graduates  are               both regarded as fit and, therefore,  eligible               for  promotion,  it is difficult to  see  how,               consistently with the claim for equal opportu-               nity  any differentiation can be made  between               them  by laying down a quota of promotion  for               each  and  giving  preferential  treatment  to               graduates over non-graduates in the matter  of               fixation of such quota. The result of fixation               of  quota  of promotion for each  of  the  two               categories of Supervisors would be that when a               vacancy arises in the post of Assistant  Engi-               neer,  which,  according to the quota  is  re-               served for graduate Supervisors, a  non-gradu-               ate  Supervisor  cannot be  promoted  to  that               vacancy,  even  if he is senior to  all  other               graduate  Supervisors and more  suitable  than               they.  His opportunity for promotion would  be

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             limited  only to vacancies available for  non-               graduate   Supervisors.  That  would   clearly               amount to denial of equal opportunity to him."     This  observation apply with full force to  the  present case,  and  it has been rightly held by the  High  Court  of Punjab and Haryana that the promotion of defendant Nos. 3 to 7 who are junior to the plaintiffrespondent from Line-Man to the post of Line-Superintendent is wholly bad and  discrimi- natory  and directed that the petitioner be  deemed to  have been  promoted to the post of Line-Superintendent  from  the date  the  said  defendants 3 to 7 had  been  promoted  from Line-Man  to Line-Superintendent- In our considered  opinion there  is  no infirmity in the judgment of  the  High  Court affirming  the judgment and decree of the courts below.  and we  agree with the reasonings and conclusions arrived at  by the  courts  below. The two appeals on  special  leave  are, therefore, dismissed with costs, quantified at Rs.5000 to be paid  by the appellant of C.A. No. 3341 of 1983 to  the  re- spondent No. 1.     The  Punjab State Electricity Board, Patiala also  filed special leave petition (Civil) No. 2693 of 1984 against  the judgment and order dated 14.2.1984 passed in Civil  Revision No.  407  of 1984 by the High Court of  Punjab  and  Haryana dismissing the Revision Petition. This Revision Petition was filed  against the order rejecting the appellant’s  applica- tion  for correction of the decree. As we have already  dis- missed  the appeals there is no merit in this special  leave petition and the same is accordingly dismissed- A.  P .J.                               Appeals  &  Petition dismissed. 82