MAHESH UPADHYAY Vs. STATE OF U P

JUDGEMENT

(1.) The brief facts of this case are that the petitioner was appointed as Assistant Engineer (E) in the Haryana Vidyut Prasar Nigam Ltd. (HVPNL) on 11.8.2004. While he was working with HVPNL, the U.P. Power Corporation Ltd. (UPPCL) invited applications from engineers of 9 different Power Corporations including the HVPNL, for joining UPPCL on deputation. In the meantime, on 25.3.2009, the petitioner was promoted as Assistant Executive Engineer in the HVPNL. Then on 18.11.2009, the Managing Director of HVPNL recommended the name of the petitioner for being taken on deputation by the UPPCL. In pursuance thereof, on 3.12.2009 the UPPCL wrote to the Pashchimanchal Vidyut Vitran Nigam Ltd. (PVVNL) for giving charge to the petitioner on deputation for a period of one year. Since the petitioner was initially posted on deputation as Assistant Engineer, he represented to the UPPCL on 14.12.2009 stating that since he was Assistant Executive Engineer in HPVNL, which is a Class I post, his posting on deputation as Assistant Engineer, which falls in the category of Class II post, is not proper and therefore he requested that he be considered for deputation on the higher post of Executive Engineer. In pursuance thereof, on the very next day i.e. 15.12.2009, the Director (Personnel) UPPCL wrote to the Managing Director PVVNL to post the petitioner on deputation as Executive Engineer. Pursuant thereto on 17.12.2009 the deputation of the petitioner on the post of Executive Engineer was approved by the HVPNL. On 23.12.2009 the Chairman-Managing Director of UPPCL also approved the deputation of the petitioner on the post of Executive Engineer in the UPPCL. Then by order dated 26.12.2009, the Committee constituted under orders of the Apex Court dated 21.3.2007 passed in Public Interest Litigation No. 79 of 1997 also approved the transfer/posting on deputation of the petitioner as Executive Engineer at Ghaziabad. Consequently by order dated 29.12.2009 the petitioner was posted as Executive Engineer at Ghaziabad on a vacant post on which post he took charge on 4.1.2010. On 6.7.2010 he was transferred to a different division in Ghaziabad itself.

(2.) On 6.10.2010, before the period of deputation of the petitioner was to come to an end, he moved an application requesting for his absorption in UPPCL., on which application the UPPCL wrote to the HVPNL on 10.11.2010 to give its no objection to such absorption of the petitioner. Pursuant thereto, on 15.12.2010 HPVNL sent its no objection certificate to the UPPCL for permanent absorption of the petitioner, with the condition that he will not be allowed terminal benefits of his service in HPVNL and will have no right to claim his lien on the post of Assistant Executive Engineer in HVPNL after his absorption in UPPCL. It is admitted that till that date there was no provision for absorption in UPPCL and it was only on 19.5.2011 that the Uttar Pradesh Power Corporation Limited Mey Pratiniyukti Par Aane Wale Sewako (Shashan Va Anya Pradesh Key Vidyut Nigamo Avam Sarvajanik Upkramo Jaha Vitran Avam Pareshan Ka Karya Sanchalit Kiya Jata Ho) Ka Samviliyan Viniyam, 2011 (hereinafter referred to as the Absorption Regulation, 2011) came into force. In the meantime, on 18.12.2010 the period of deputation of the petitioner was extended for a further period of one year. The matter relating to absorption of the petitioner in UPPCL came up before the Board of UPPCL on 12.10.2011 and by order dated 24.12.2011 it was communicated to the petitioner that he has been absorbed on the post of Assistant Engineer (E & M).

(3.) On receipt of the said order of absorption, the petitioner represented to the UPPCL on 9.1.2012 stating that during the period of deputation he had been working on the post of Executive Engineer and as such he should be absorbed as Executive Engineer, which is a class I post, as the petitioner had been working in HPVNL as Assistant Executive Engineer, which was also a Class I post. In the said representation it was contended by the petitioner that the post of Assistant Engineer, on which the petitioner was being absorbed is a Class II post and as such he prayed that "for the foregoing reasons and circumstances, the undersigned, by means of this representation, respectfully, seek your indulgence to withdraw the letter dated 24.12.2011 thereby cancelling the appointment of the undersigned on the post of Executive Engineer. Also, till such orders, as aforesaid, are passed, the letter dated 24.12.2011 be stayed/not given effect to, and suitable/appropriate orders be passed so as to extend the deputation period of the undersigned and he be permitted/allowed to continue to work, as earlier, on deputation on the post of Executive Engineer." A reminder in this regard was also sent by the petitioner on 17.2.2012. When no orders were passed on the said application of the petitioner, the petitioner filed this writ petition, with the prayer for a direction in the nature of certiorari quashing the order dated 24.12.2011 passed by the UPPCL and further to issue a writ in the nature of mandamus commanding the respondents to absorb the petitioner on the post of Executive Engineer in the UPPCL or on any other equivalent post and pay the salary and other consequential benefits of the post as and when it falls due.