J.V. Gupta, J. - (1.) THIS order will also dispose of civil writ petition No. 6776 of 1986 as the question involved is common in both the cases.
(2.) THE Petitioner, Baldev Singh, has been in the service of the Respondents on the post of T. Mate (WC) since 5th August, 1980, whereas the other Petitioner, Suresh Kumar, is in the service of the Respondents on the said post since 2nd of January, 1981. Vide Annexure P -1, dated 28th of January, 1986, the Senior Sub -Station Engineer sent a letter to the Executive Engineer giving the names of four persons along with their biodata. According to the said letter, Baldev Singh joined the service on 5th August, 1980, whereas Suresh Kumar joined the service on 2nd of January, 1981. The other two Respondents - -Parmod Kumar joined on 12th of January, 1983, and Ganga Samp joined as T. Mate on 23rd of July, 1984. According to the Petitioners, in spite of the fact that both the Petitioners were senior to the Respondents, Ganga Samp was promoted as T.P.O. (WC) vide Annexure P -2, dated 29th of January, 1986, and Parmod Kumar, Respondent, was promoted vide Annexure P -3, dated 19th of February, 1986, ignoring the seniority of the Petitioners. The main grievance of the Petitioners is that their juniors have been promoted arbitrarily and illegally whereas the Petitioners being senior were entitled to be promoted and their claim has been rejected arbitrarily In the return Sled on behalf of the Bhakra Beas Management Board, preliminary objection has been raised "that no legal right of the Petitioners has been infringed by their non -appointment to the post of Teleprinter Operator. The appointment to the post of Teleprinter Operator is made by selection and not on the basis of seniority cum -merit. Respondent No. 5 was originally appointed as T. Mate against the post of Teleprinter Operator w.e.f. 11th of July, 1984, and actually performed the duties as such. He being experienced Teleprinter Operator and educational qualified was rightly appointed/promoted as such." It has been further stated in the return that the appointment from the post of T. Mate to the post of Teleprinter Operator is made purely on the basis of merit and selection and the question of seniority -cum -merit does not arise. The Petitioners' candidature for the post of Teleprinter Operator was duly considered along with other candidates. Respondents No. 4 and 5 i.e. Parmod Kumar and Ganga Sarup were found more merited and were selected for appointment to the post of Teleprinter Operator. It has further been stated in para 11 that the Petitioners could not be promoted as Teleprinter Operator or Electric . Mistry because of lack of proficiency in the respective trades.
(3.) LEARNED Counsel for the Petitioners submitted that even if there were no statutory rules with respect to the promotion of the Petitioner it was their fundamental right being senior to the Respondents and, therefore, their claim has been rejected arbitrarily in support of his contention he referred to State of Orissa v. Ram Chandra Dev : A.I.R. 1964 S.C. 685 and Calcutta Gas Co. v. State of West Bengal : A.I.R. 1962 S.C. 1044 Reference was also made to Shri Shadi Lal v. The Deputy Commissioner, Gurgaon 1974 (1) S.L.R. 217 to contend that promotion to the post should be made on the basis of seniority and if senior most eligible has merit, he shall be selected irrespective of better merit of his juniors. On the other hand, learned Counsel for the Respondent submitted that is the absence of any statutory rules, no writ of mandamus could be issued in favour of the Petitioners since there was no statutory duty cast upon the Respondent to promote the Petitioners. Moreover argued the learned Counsel it was not a case of promotion but of selection and, therefore, Respondents No. 4 and 3 have been rightly selected for the post. In support of his contention he referred to Lekhraj Sathramdas Lalvani v. N.M. Shah, Deputy Custodian -cum -Managing Officer, Bombay : AIR 1966 SC 334 and Praga Tools Corporation v. C.V. Imanual : A.I.R. 1969 S.C. 1306.;