SHRI M.C. PANDEY Vs. HIMACHAL PRADESH STATE ELECTRICITY BOARD, SIMLA AND OTHERS

JUDGEMENT

(1.) M.C. Pandey has filed this petition under Articles 226 and 227 of the Constitution, wherein he has called in question the joint seniority list issued by the Himachal Pradesh State Electricity Board on June 22, 1973 and has also sought for a direction to the said Board and its Chairman (respondents 1 and 2) not to bring in the respondents 3 and 4 in the cadre of Electrical Engineers. The petitioner claimed that he is B. Sc. Engineering (Electrical) from Bhagalpur College and joined as Sectional Officer (Store Purchase Division) in the Department of MPP & Power, Himachal Pradesh on July 14, 1966. Thereafter on Dec. 4, 1967 the petitioner was promoted on ad hoc basis as Assistant Engineer (Electrical). While the petitioner was working in the Department of MPP & Power the Government took the decision of winding up that department, and the State Electricity Board was formulated for which notification dated April 2, 1971 (Annexure R. 1A) was issued by the Government. In the first instance the services of the petitioner were placed on foreign service with effect from Sept. 1, 1971. Thereafter his services were terminated and he was absorbed in the cadre of Assistant Engineers (Electrical) of the Board. He was offered fresh terms of appointment on Sept. 20, 1971 (Annexure R. 1C) and he accepted those terms and conditions (Annexure R. 1D). Thereafter on Jan. 1, 1972 the petitioner was regularised as Assistant Engineer (Electrical). According to petitioner on April 24, 1973, upon enquiry, the. Officer on Special Duty of the State Electricity Board informed the service associations about the rules (Annexures PA. 1 and PA. 2) which were being followed by the Electricity Board for recruitment to the cadre of Assistant Engineers. As the petitioner submits, there were two different cadres of Assistant Engineers, one on the Electrical side and the other on the Civil and Mechanical side. According to petitioner he was Assistants Engineer, Electrical cadre, while the respondents 3 and 4 belonged to the cadre of Civil and Mechanical Engineers. Accordingly promotion to the post of Superintending or Executive Engineer (Electrical) was to be made from the cadre of Assistant Engineers (Electrical), while promotions to these posts on the Civil and Mechanical side were to be made from the Assistant Engineers (Civil or Mechanical). There is no provision for transfer of Assistant Engineer of one cadre as Assistant Engineer of another cadre. In fact the respondents 3 and 4 did not fulfil the basic qualification of being graduates in engineering. Hence they could not be directly recruited to the cadre of Assistant Engineers (Electrical). Never the less on June 23, 1973 a fresh seniority list was issued by the respondents 1 and 2, and the respondents 3 and 4 were shown in that list as transferred from Civil and Mechanical cadre to Electrical cadre and one of them was given a seniority higher to that of the petitioner. This induction or transfer of respondents 3 and 4, according to petitioner, is illegal, wrong and ultra vires because the respondents 3 and 4 were not qualified to hold the Electrical posts as they were not graduates in Electrical Engineering. Besides, there is no provision of transfer of Assistant Engineer from one cadre to another and the appointment was made arbitrarily without regard to the object sought to be achieved by such transfer. One these grounds, the joint seniority list issued on June 22, 1973 is sought to be quashed and further direction is solicited prohibiting the respondents 1 and 2 from bringing the respondents 3 and 4 into the cadre of Assistant Engineer (Electrical).

(2.) The respondents 1 and 2 have contested the petition on the allegations, that the contract of service given to the petitioner was a fresh one with the Stale Electricity Board and such whatever rules applied to them during their previous service with the Department of MPP & Power no longer remained valid. The petitioner could not have a claim of seniority, nor could he question the power of the Board to transfer Assistant Engineer from one cadre to another. It was, however, admitted that the petitioner was regularised by the Board as Assistant Engineer (Electrical) with effect 1 from Jan. 1, 1972. As regards the rules (Annexure PA. 2) pointed out to the associations as applicable to the recruitment to be made in the cadre of Assistant Engineers (Electrical), it is pleaded that the Board no doubt adopted these rules under "administrative instructions". At the same time it is pleaded that these are not statutory instructions, meaning thereby that the same are not binding on the Board. Regarding respondents 3 and 4, it is contended that they were better qualified for encadrement as Assistant Engineers (Electrical) because of their experience on Electrical side and because of public interest involved, in bringing them into that cadre to keep up the efficiency of the service. On these grounds, it is pleaded that the petitioner has no case and the petition has to be dismissed being without merit.

(3.) It appears undisputed, in view of the return submitted by the respondents 1 and 2 that the petitioner has been regularised as Assistant Engineer (Electrical on Jan. 1, 1972. It is also admitted that there are two different cadres, one for the Assistant Engineers Electrical) and the other for the Assistant Engineers (Civil and Mechanical). As regards recruitment rules, it is pleaded that the same are administrative instructions and not statutory. At any rate, the respondents 1 and 2 claim a right to transfer an officer from one cadre to another for which there is no prohibition in the rules.