Hon'ble Ritu Raj Awasthi, J.
Heard Sri S.K. Kalia, learned Senior Advocate assisted by Sri Rajan Roy for the petitioners and Sri J.N. Mathur, learned Senior Advocate, assisted by Sri Sanchit S. Asthana and Ms. Vanshaja Shukla for the Power Corporation as well as for the private respondents.
This writ petition by a group of Assistant Engineers working in the U.P. Power Corporation challenges the promotions of respondent nos. 3 to 24 on the post of Executive Engineer (Electrical/Mechanical), which were made vide order dated 10.1.2011. Further prayer is, that respondent nos. 1 and 2 be directed to consider the petitioners for promotion to the post of Executive Engineer (Electrical/Mechanical) in accordance with rules w.e.f. 10.1.2011.
At the outset, we would like to put on record, that counsel for both the parties have clearly stated that the order of status quo passed by the Apex Court in Special Leave Petition No. 25543 of 2010 is not attracted in the present controversy, and therefore, the promotions cannot be withheld in pursuance of the aforesaid order.
The terms and conditions of service of the petitioners and the private respondents are governed by the Rules known as U.P. State Electricity Board Services of Engineers Regulation, 1970 (hereinafter referred to as 'the Regulations of 1970').
Under Rule 5(2) read with Regulation 18 and Rule 4 to Appendix-D of the Regulations of 1970, promotions on the post of Executive Engineer are to be made from amongst permanent Assistant Engineers, who have completed not less than seven years' service as Assistant Engineer on July 1, of the year of selection.
The provisions of reservation for Scheduled Castes and Scheduled Tribes in the matter of direct recruitment and promotions as were then applicable under the U.P. Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as 'the Reservation Act, 1994) and the Government Orders dated 8.3.1973 and 20.3.1974 were applicable in the services under the U.P. Power Corporation Limited also. Consequently 21% reservation for Scheduled Castes and 2% for Scheduled Tribes was prescribed in the matter of promotion in the Corporation.
Earlier the total strength of the cadre of Executive Engineer (Electrical/Mechanical) was 792, out of which, 181 posts were reserved for Scheduled Castes and Scheduled Tribes. Later on, on information being gathered under Right to Information Act on 17.2.2010, it came to light that out of the then sanctioned post of 792 of Executive Engineer (Electrical/Mechanical), 219 posts were occupied by the Scheduled Castes officers on the basis of reservation and thus, 38 reserved category officers were working in excess of their quota on the promotional posts of Executive Engineer (Electrical/Mechanical).
In June, 2010, 22 new posts of Executive Engineer (Electrical/Mechanical) were created, thereby bringing the total strength of the posts in the cadre to 814. In the recruitment year 2010-2011, by mid of December, 2010, 95 vacancies of Executive Engineer (Electrical/Mechanical) became available for promotion.
On 4.1.2011, a meeting of the D.P.C. was convened for the purpose of promotion to the vacant posts of Executive Engineer (Electrical/Mechanical). Incidentally, on 4.1.2011 itself, a Division Bench of this Court pronounced the judgment in a bunch of writ petitions, the leading writ petition being Writ Petition No. 1389 (SB) of 2007 in re: Prem Kumar Singh and others vs. State of U.P. and other connected matters, declaring the provision of reservation in promotion in the State of U.P. as contained in Section 3(7) of the Reservation Act, 1994 as also the provision of consequential seniority as unconstitutional.
The effect of the aforesaid declaration was that after 4.1.2011, no reservation could have been provided in promotions by the Corporation.
Despite the aforesaid pronouncement, the respondent nos. 1 and 2 made 117 promotions to the post of Executive Engineer (Electrical/Mechanical) on 10.1.2011, which included 22 promotions of Assistant Engineers (Electrical/Mechanical) under the alleged reservation quota.
In the counter affidavit filed by the Corporation, it has been stated that out of total sanctioned strength of 814 posts of Executive Engineer (Electrical/Mechanical), 212 posts were already occupied against the quota of 187 posts under the reserved category and, therefore, no post under the reserved category was available in the selection year 2010-11.
In addition to the aforesaid excess quota of Executive Engineers under the reserved category, the Power Corporation made further promotions of 22 Assistant Engineers under the reserved category on 10.1.2011 in pursuance of the D.P.C. which was held on 4.1.2011. Thus, the total number of Assistant Engineers under the reserved category exceeded by 47 posts as against the prescribed quota of 187 posts. The total strength of the cadre of Executive Engineer being of 814 posts, the promotion of 25 Assistant Engineers under the reserved category on the post of Executive Engineer having already made before 4.1.201, and making further promotions under the said category to the extent of 22 posts of Assistant Engineers are the admitted facts in Annexure-CA-1 of the counter affidavit filed by the Corporation.
The private respondents have also not disputed the aforesaid factual position.
The Power Corporation was required to explain under the orders of the Court as to how such promotions could be made and why the promotions in excess of the quota have been made, to which in the counter affidavit, no satisfactory explanation has been given, but an attempt has been made to justify the action by protecting the promotions already made by creating 47 supernumerary posts, so that the reserved category candidates who have been promoted in excess of their quota be adjusted against the supernumerary posts and they be absorbed as and when the vacancy arises. This was done vide order dated 28.3.2011.
Learned counsel for the petitioners in support of his submission that promotions of reserved category Assistant Engineers could not have been made in excess of their quota, has placed reliance upon the judgments in the cases of Union of India and another vs. Hemraj Singh Chauhan and others (2010) 4 SCC 290, R.S. Garg vs. State of U.P. and others (2006) 6 SCC 430, Vishwajeet Singh (Dr.) and others vs. State of U.P. and others (2009) 2 UPLBEC 1443, Dharmpal Singh Chauhan and another vs. State of U.P. and others, 2008(26) LCD 1691, and Heera Lal vs. State of U.P. and others (2010) 3 UPLBEC 1761.
Sri J.N. Mathur, learned Senior Advocate, appearing for the respondents, though made an effort to justify the aforesaid action of the Corporation, but could not satisfy the Court, that (1) how promotions could have been made on the post of Executive Engineer under the reserved category, when the quota was already full and there was no vacancy for the reserved category candidates; and (2) why and how further promotions could have been made of 22 Executive Engineers after 4.1.2011 when this Court already declared the provisions of reservation in promotion as unconstitutional.
If for a moment, we do not take into account the declaration made by this Court regarding the reservation in promotion being unconstitutional and that consequential seniority can also not be given, still we find that the action of the respondent-Corporation was wholly without jurisdiction and authority, and grossly against the rules and, of course, against the interest of the General Category candidates. It goes without saying that the quota of reservation having been prescribed by the Act and the Government Orders, could not have been increased nor the Corporation could have made appointment/promotion of reserved category candidates which has the effect of increasing the quota, as there was no vacancy/post for reserved category candidates. It being a fact that when 25 promotions were made earlier i.e. prior to the declaration made by this Court on 4.1.2011, there were no vacancies available for the reserved category candidates, therefore, such promotions also could not have been made even if the reservation policy was applicable. So is the case of 22 promotions, which were made after 4.1.2011, as obviously there were no vacancies for reserved category candidates, either on 4.1.2011 when D.P.C. was held nor on 10.1.2011 when the promotion orders have been passed.
Reservation in promotion since has been declared invalid by this Court, which matter is engaging attention of the Court, but since this matter is being considered assuming that reservation in promotion was permissible, we refrain ourselves from commenting upon the same in the present petition, but we are constrained to observe that the action of the respondent-Corporation in making promotion in excess of the quota of reserved category, ignoring the claim of general category, cannot be appreciated and has to be deprecated.
The Corporation very well knew that there was no vacancy for reserved category candidates, even then on its own whims, they promoted 25 Executive Engineers under the reserved category at the first stroke and then again 22 candidates under the same category. No reasons have come forward as to why such an action was taken and why such a discriminatory attitude was adopted by the Corporation in dealing with the Assistant Engineers of the Corporation, who belong to General Category. Making promotions in this manner is apparently not only discriminatory but also arbitrary. The General Category candidates, who belong to 1988-89 batch have been deliberately ignored though they could not have been ignored, there being no vacancy available for reserved category. Making promotions against general vacancies, of the reserved candidates, treating such vacancies reserved, smacks of mala fides and bias of the Corporation. The petitioners, thus, have been dealt with in a most unfair manner and, of course, unreasonably by the Corporation. In fact, the matter requires consideration by the concerned superior authorities of the Corporation to enquire that why such promotions were made and on whose instance, so that the erring officers may be dealt with suitably.
A person who enters into service, looking to the future prospects of promotion joins the post. Promotion may not be a fundamental right but consideration for promotion cannot be denied and, therefore, any action, act or order which deprives an employee from being considered for promotion when such consideration becomes due, cannot be upheld and has to be struck down.
At this juncture, Sri J.N. Mathur as well as Sri S.K. Kalia submitted that there is no challenge to the promotions of 25 Assistant Engineers to the post of Executive Engineer, who were promoted prior to 4.1.2011 and the writ petition is confined only to the promotions of 22 Assistant Engineers, who were promoted after 4.1.2011. We, therefore, confine our order to the promotions of aforesaid 22 Assistant Engineers.
Having come to the conclusion that no promotions could have been made of the reserved category candidates as aforesaid, we set aside the promotion orders dated 10.1.2011 of respondent nos. 3 to 24, contained in Annexure-1 to the writ petition, who shall stand reverted to their substantive posts.
We are informed that 31 vacancies still exist and the petitioners alongwith other persons, who fall within the field of eligibility and fulfill the norms of consideration, therefore need be considered for promotion against the existing vacancies. We order accordingly. This shall be done within a maximum period of one month from the date of receipt of a certified copy of this order.
The writ petition is allowed. No order as to costs.
Dated: 19.7.2011 Sachin/LN