Uttar Pradesh Power Corporation Ltd v. Rajesh Kumar) pr eceded by
Case Details
WP(C) 3263/2011 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL)
Decision
Both the writ petitions filed by the same petitioner are interco nnected and thus have been heard together and are being disposed of by this comm on judgment and order. 2. While in WP(C) No. 3263/2011 (the first writ petition), the challenge is to the promotion of the private respondents to the post of Superintending Engin eer ahead of the petitioner with subsequent promotion to the post of Additional Chief Engineer, the challenge in WP(C) No. 3238/2013 (the second writ petition), is the gradation list in the rank of Additional Chief Engineer so far as the sa me has shown the petitioner below the private respondents. Thus, the answer to t he first writ petition will guide the outcome of the second writ petition. 3. I have heard Mr. S.K. Goswami, learned counsel for the petitioner as wel l as Dr. B. Ahmed, learned Standing Counsel, Irrigation Department and so also M r. D.K. Mishra, learned Sr. Counsel, assisted by Mr. J. Chutia, learned counsel for the respondent No. 6. I have also heard Mr. K. Das, learned counsel, represe nting the respondents No. 4, 5 to 10 and 14 and Mr. A.M. Bujarbarua, learned cou nsel appearing on behalf of the respondent No. 5. 4. Although various issues like granting promotion to the private responden ts, more particularly, the reserved category candidates without identifying the quantifiable datas on which the Apex Court has emphasized in its judgment report ed in (2012) 7 SCC 01 (Uttar Pradesh Power Corporation Ltd. Vs. Rajesh Kumar) pr eceded by (2006) 8 SCC 212 (M. Nagraj Vs. Union of India); improper assessment i n respect of the selection conducted for promotion to the Superintending Enginee r and Additional Chief Engineer etc. have been raised by the learned counsel for the petitioner, which have been sought to be countered by the learned counsel f or the private respondents as well as the official respondents by raising the qu estion of delay and latches, estoppels etc. coupled with the argument that quant ifiable data is easily available on the basis of the materials on record, but wi thout going into those details, the answer to the writ petitions is confined to the basic plea of excessive reservation as alleged to the deprivation of the pet itioner, to the rightful promotion to the post of Superintending Engineer and th ereafter Additional Chief Engineer. Be it stated here that presently there are t wo posts of Chief Engineer and taking into consideration the number of incumbent s within the zone of consideration, the petitioner irrespective of his later dat e of promotion is now entitled to get consideration for such promotion along wit h some of the private respondents, the zone of consideration being in the ratio of 1:4. 5. The promotion to the rank of Superintending Engineer has been affected o n the basis of the minutes of the Selection Committee meeting held on 8.9.2009. It is an admitted position that the total cadre strength in the rank of Superint ending Engineer is 29. As recorded in the minutes of the meeting, the position o f the petitioner amongst the candidates within the zone of consideration was at serial No. 13. It appears that while making the selection on the basis of the (cid:28)m erits with due regard to seniority (cid:29) as envisaged under the rules, the Selection Committee assessed the merits of the candidates fixing the bench mark of 10 in r eference to the departmental OM dated 23.6.2007. The test of (cid:28)merit with due reg ard to seniority (cid:29) was applied recommending promotion seniority wise to those who had secured the minimum benchmark of 10. 6. On perusal of the minutes of the Selection Committee meeting dated 8.9.2 009, it appears that the petitioner’s position stood at serial No. 9 and below h im there were some other incumbents including the reserved category private resp ondents, which also included the respondent No. 8 namely Sri Lokhabhiram Saikia. In the list, the last 4 candidates at serial No. 33, 34, 35 and 36, all belong to ST(P) category. They all have been promoted including the said Sri Saikia, wh o secured total 15 marks as against 14 secured by the petitioner. 7. On perusal of the minutes of the Selection Committee, it is found that t he Selection Committee made the recommendation in favour of the reserved categor y candidates taking into account the reservation points/roster including back-lo g position. On the basis of such calculation, the Selection Committee was of the opinion that total 6 numbers of vacancies were required to be filled up by ST(P ) candidates. 8. Mr. Goswami, learned counsel for the petitioner has submitted that such a formula adopted by the Selection Committee without any reference to the percen tage of reservation was totally misplaced. However, Dr. Ahmed, learned Standing Counsel, Irrigation Department has submitted that the Selection Committee rightl y arrived at back-log position and there was no excessive reservation. He also s ubmitted that irrespective of reservation, Sri Saikia having secured better mark s than the petitioner (15 against 14), irrespective of such reservation, he was entitled to get promotion on his own merit. 9. Mr. Mishra, learned Sr. Counsel, Mr. A.M. Bujarbarua and Mr. K. Das, lea rned counsel representing the private respondents submitted that the particular exercise undertaken by the Selection Committee cannot be faulted with, in absenc e of any factual errors or violation of any rules and law holding the field. As regards the promotion of Sri Saikia i.e. the respondent No. 8, Mr. K. Das, learn ed counsel representing the said respondent submitted that if any fresh exercise is required to be carried out on the basis of the case projected by the petitio ner, then also the petitioner cannot claim better merit position than the said r espondent. He also submitted that irrespective of the status of the respondent N o. 8 even otherwise also, on merit, he is entitled to get the promotion and the said position should not be disturbed. 10. In R.K. Sabharwal Vs. State of Punjab reported in (1995) 2 SCC 745, the Apex Court held that the prescribed percentage cannot be achieved or changed in reference to the roster points. Reservation is always on post basis and not vaca ncy based and the reservation and the percentage thereof is to be achieved in re ference to the total cadre strength. When all the roster points in a cadre are f illed the required percentage of reservation is achieved. Once the total cadre h as full representation of the SC/ST and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies bel ong. In the instant case as has been admitted by the learned counsel for the 11. parties, total cadre strength in the post of Superintending Engineer is 29 and t he percentage of reservation provided for ST(P) is 10%. Calculating on that basi s, only 3 posts can be filled up by ST(P) category candidates. However, the Sele ction Committee recommended 4 ST(P) category candidates including the respondent No. 8, who is the last in the list and also by far junior to the petitioner. Th e said reserved category candidates have secured 11, 12, 12 and 15 marks in the selection. Thus they have secured the required the benchmark, which is 10. Howev er, in the principle that has been followed in the matter of promotion applying the test of (cid:28)merit with due regard to seniority (cid:29) irrespective of any higher mark s secured by a junior, a senior cannot be superceded when he has secured the ben chmark. 12. In the instant case, the Selection Committee having fixed the benchmark of 10 and the petitioner having secured the said benchmark was entitled to get t he promotion as per his seniority, but he was deprived of the same by promoting a reserved category candidate (respondent No. 8) in excess of the reservation. A s noted above, only three ST(P) candidates could have been promoted, but the off icial respondents promoted 4 exceeding percentage of reservation and in the proc ess, the petitioner was deprived of his promotion. It will be pertinent to menti on here that except the petitioner, no other officer is before us challenging th e particular recommendation made by the Selection Committee in its meeting held on 8.9.2009 and thus we are not concerned with their cases. 13. Pursuant to the said recommendation, some of the private respondents wer e promoted to the post of Superintending Engineer on 31.12.2009 including the af oresaid 4 reserved category candidates belonging to ST(P). The petitioner was al so promoted four months thereafter vide notification dated 26.4.2010, but on the basis of a subsequent selection. Thus, the case of the petitioner is that his p romotion affected vide notification dated 26.4.2010 should relate back to the pr omotion that was affected vide notification dated 31.12.2009. Since it is an adm itted position that, but for the excessive reservation provided, the petitioner would have got his promotion at par with others, who were promoted vide notifica tion dated 31.12.2009, it is hereby provided that his promotion to the rank of S uperintending Engineer shall now relate back to 31.12.2009, on which date some o f the private respondents including the 4 ST(P) candidates were promoted. 14. Once the petitioner’s promotion to the rank of Superintending Engineer i s antedated so as to effective at par with others, who were promoted vide notifi cation dated 31.12.2009, his case for future promotion to the next higher rank o f Additional Chief Engineer will also have to be considered by a review DPC. It will be pertinent to mention here that the respondents No. 5 and 6 have been pro moted to the rank of Additional Chef Engineer vide orders dated 30.12.2010 and 1 8.5.2010. Other private respondents along with the petitioner have been promoted vide order dated 2.2.2013. Once the petitioner’s promotion to the rank of Super intending Engineer is made effective at par with others, who were promoted vide notification dated 31.12.2009, as a natural corollary, his case for promotion to the rank of Additional Chief Engineer will have to be considered afresh by a re view DPC in reference to the promotion of the respondents No. 5 and 6, who were promoted on the basis of an earlier selection to the rank of Additional Chief En gineer. Once this exercise is carried out and even otherwise also the case of al l the eligible candidates in the rank of Additional Chief Engineer will also hav e to be considered for promotion to the two vacant posts of Chief Engineer, whic h could not be done because of pendency of this proceeding. 15. As noted above, even otherwise also, the petitioner is very much within the zone of consideration for promotion to the post of Chief Engineer. As submit ted, the retirement of the petitioner from service on attaining the age of super annuation is fast approaching, which is stated to be due in August, 2014. It is expected that the official respondents shall carry out the required exercise as expeditiously as possible. 16. At this stage Mr. Goswami, learned counsel for the petitioner submits th at all the private respondents are junior to the petitioner according to the dat e of joining in the service. 17. The writ petitions are disposed of directing the respondents to conduct a review DPC towards considering the case of the petitioner for promotion to the post of Additional Chief Engineer with retrospective effect following the same norms as were followed in respect of other promotees and thereafter to the post of Chief Engineer along with others as indicated above. The required exercise in this regard shall be carried out as expeditiously as possible, preferably withi n 31.12.2013. 18. In view of this judgment and order, the gradation list in the rank of Su perintending Engineer shall stand revised and depending upon the outcome of the review DPC, the gradation list of Additional Chief Engineer shall also stand rev ised. As regards the promotion of the respondent No. 8, which has been made in e xcess of the percentage of reservation, the matter is left open to the sound dis cretion of the authority to save the situation by making suitable arrangement. I t is submitted that the said respondent has not been promoted to the post of Add itional Chief Engineer in view of pendency of a departmental proceeding. 19. Both the writ petitions are answered in the above manner.