GEB ENGINEERS ASSOCIATION v. UTTAR GUJARAT VIJ COMPANY LTD & Ors.

of respondent No.2 was shown at Sr.No.71. It was submitted that the contention of the other side was that the promotional post was an ex-cadre post which was a misconceived contention because in the seniority list of 1995 mentioned above, against the name of respondent No.2, there was no such mention. It was, therefore, the case of the petitioner that the respondent No.2 was accommodated at Mehsana by giving a special favour, and thus Articles 14 and 16 of the Constitution was violated.

3.2. The petition was contested by the respondents. Respondent No.1 as well as private respondent No.2 filed their respective affidavits-in-reply. In the reply of respondent No.1, it was inter alia contended that in December 1992, it was considered necessary to form a Special Squad for detecting pilferage and theft of electricity, as it was noticed that big consumers of electricity like industries when found to have committed theft of the electricity, it was resulting into heavy loss of revenue, and therefore, Special Squad was formed under the control and supervision of a person of C/SCA/12067/1994 CAV JUDGEMNT the rank of Additional Chief Engineer (Vigilance). It was considered necessary by the Board to upgrade the said post, and accordingly the same was upgraded to the ex-cadre post of Chief Engineer (Vigilance). It was the case of the respondent No.1 that on the same lines the Board passed a resolution dated 30.04.1994, whereby one additional ex- cadre post of Superintending Engineer under the Anti-theft Checking Squad having its headquarters at Mehsana was sanctioned. The resolution No. 9715 in question of the Board is on record of the petition, which inter alia speaks of sanctioning of additional post of Superintending Engineer under the Anti-theft Checking Squad at Mehsana on the regular establishment.

3.3. According to respondent No.1, as was done in respect of the post of Superintending Engineer (Vigilance) which was made ex-cadre post, in respect of the post in question, namely, the Superintending Engineer under the Anti-theft Checking Squad, Mehsana, the promotion was given on the criteria of pure merits. The promotion to the said posts were not to affect the rights of the other senior members on the seniority list. In the affidavit-in-reply it was further stated as under:

The cases of all eligible Executive Engineers including the respondent No.-2 were considered and examined by the committee keeping in mind the nature of functions to be discharged by the person who will be selected for being promoted as Superintending Engineer (Vigilance). The members of the Selection Committee have examined the cases of all Executive Engineers who are in the seniority list including the respondent no-2 and for the reasons narrated hereunder, this Hon’ble court will be satisfied that the choice of the respondent no-2 is obvious and in the larger interests of the Board and its honest consumers.

3.4 The affidavit-in-reply proceeded further to mention that the honesty and integrity of respondent No.2 was exemplary, and he had to his credit highest number of theft detection cases; that the Chairman of the Board had also written a letter in November 1987 appreciating the zeal and performance of respondent No.2, who had successfully organized theft detection parties.

3.5 Regarding the performance of the petitioners, it was mentioned that so far as the petitioner No.2 is concerned, he was charge-sheeted on 19.09.1984 for misconduct. C/SCA/12067/1994 CAV JUDGEMNT Similarly, petitioner No.8 was also charge-sheeted on 05.09.1977, and punishment of warning was issued. Petitioner No.2 was suspended on the charge of misconduct and later charge-sheeted in the year 1986. It was, therefore, pointed out that the petitioners were not worthy for consideration for promotion as claimed by them.

3.6 The private respondent No.2 also filed his affidavit in reply. He submitted that he was more meritorious than petitioners nos. 2 to 10. The post of Superintending Engineer, according to him, was a select grade post under General Standing Order No. 7 dated 04.10.1960, and the promotion to the said select grade post was required to be made on the basis of merit, though the seniority of the person is also to be taken into account. He asserted that the petitioners had no good merits and it was incorrect to say that there were no adverse remarks in the confidential reports of petitioner No.2. Respondent No.2 in his affidavit highlighted the work done by him in respect of theft detection. It was submitted that the post of Superintending Engineer for the theft checking squad was specifically created for particular purpose, and it was not upgraded post. He submitted that his promotion to the said post specially created was on merit- cum-seniority basis. It was denied that his promotion was in contravention of any rules.

Heard learned advocate Mr. D.S. Vasavada for the petitioners and learned advocate Mr. Hemang Rawal holding brief on behalf of learned advocate Mr. A.D. Oza for the respondent No.1. Though served, none appeared for respondent No.2.

4.1 It was submitted by learned advocate for the petitioner that the action of promoting respondent No.2 was arbitrary because it ignored the admitted seniority positions and as many as 126 Executive Engineers were bypassed. He questioned the very rationale in justifying out of turn placement of respondent No.2, and submitted that the same was in violation of petitioners’ rights under Articles 14 and 16 of the Constitution. It was submitted that the post created was not an ex-cadre post as claimed, and no such post could have been created. He submitted that by promoting respondent No.2, the doors of promotion for the petitioners who are seniors were permanently closed.

4.2. On the other hand, learned advocate for the respondent No.1 submitted that the Board was within its right to create a special post. The post of Superintending Engineer C/SCA/12067/1994 CAV JUDGEMNT at Mehsana for the theft checking squad was created for special purpose and that respondent No.2 was most suitable to man the said post, therefore, he was promoted.

Considering the facts of the case and rival submissions made by respective learned advocates, it appears from the record that the post of Superintending Engineer was not an upgraded post as sought to be contended by the petitioners. The post was created for specific purpose as was reflected in the Resolution No. 9715 dated

30.04.1997 which reads as under:

The Board approves the upgradation of the post of Additional Chief Engineer to that of Chief Engineer and also approves the sanction of an additional post of the Superintending Engineer under the Anti-Theft Checking squad at Mehsana on the regular establishment. Sd/- The Assistant Secretary (Board), Gujarat Electricity Board, Baroda.

5.1 The post in question was created by virtue of the above resolution. For creating ex-cadre post, documentary format cannot be insisted upon. In Ran Singh Malik v. State of Haryana [(2002) 3 SCC 182], the Supreme Court observed that in absence of the documents creating the post, other contemporaneous documents can be looked into to determine whether a particular post is created as an ex-cadre post. In the facts and circumstances of the present case when the post of Superintending Engineer was created for executing the extra work of theft detection with a special in view and placement/promotion thereon was on the basis of merit criterion alone, the above resolution has to be construed as creating the said post as ex-cadre post only.

5.2 On the post of Superintending Engineer specially created as above, respondent No.2 herein was placed. His placement/promotion was looking to his outstanding performance in the work of theft detection. The fact that respondent No.2 had to his credit sufficient performance in the area is an undeniable fact. Even prior to the Constitution of theft checking squad at the headquarters at Mehsana, the work of theft checking was done by the Operation and Maintenance Department. Respondent No.2 was Executive Engineer working in that Department and had the experience to attend the work of theft checking and he was on many occasions assigned the task of such C/SCA/12067/1994 CAV JUDGEMNT checking and he had permanently done the work with one K.K. Ramlavat who was an Additional Chief Engineer at Mehsana. Respondent No.2 had earned accolades from M.L.A. Of the area and higher-ups of the Board. Not only that in the State Legislative Assembly, upon the question being asked by a Member, the name of respondent No.2 was mentioned as one of the hard-working, efficient and committed officer.

5.3 Even during the period in which the action of theft detection was not on the prime list, even at that time, respondent No.2 had shown commitment in detection of thefts. In that regard, the below quoted uncontroverted facts were mentioned in the reply.

Right from August 1992, the respondent No.2 who was only required to work as Executive Engineers (O&M) Mehsana, had volunteered to carry out this onerous task and was being entrusted by the Board the difficult task of leading theft checking squads all through out the state. ..... It is pertinent to note that between August 1992 to September 1994, the total amount recoverable from the consumers for their detection in theft cases or mal-practice is Rs.5484.70 Lacs. .... It will become clear that the theft checking squad headed by Shri K.K.Ramlavat, who was working as Additional Chief Engineer (Vigilence) who is promoted as Chief Engineer (Vigilence) and the respondent No.2 have covered virtually the whole State of Gujarat. .... It is interesting to peruse the amount of approximate assessment which such consumers are now liable to pay because of detection of theft. .... The amount of theft to be recovered by the Board is an amount of Rs.1.45 lacs, 1.40 lacs, 1336.66 lacs etc. It is also interesting to note that the device used by such consumers for committing theft of electricity. In some cases, the consumers have even resorted to the use of remote control device. In a remote control device even the qualified Engineers can not immediately detect theft since the theft is committed without touching the apparatus installed by the Board and prima-facie neither seals nor any other part of the apparatus is found to be tempered with. For detecting theft in high- tension consumption, where the bills are in crores of rupees, a special skill is required for detecting the theft being committed by such consumers.

5.4 It was shown on facts that special skill was required for theft detection which was committed by the consumers in variety of means and by using different kind of devices. Respondent No.2 was having experience and expertise in respect of such C/SCA/12067/1994 CAV JUDGEMNT apparatus installed and used by the consumers and tampered with to commit theft. It was his special merit which weighed with the respondent authorities in selecting respondent No.2 for promoting him on the special post created for the purpose.

5.5 Furthermore, following uncontroverted facts were mentioned in the affidavit-in- reply of the second respondent.

In the year 1991=92 928 cases of power theft were detected, which in the year 1992-93 rose to 9640. Even the number of detected cases of mal-practices rose from 3253 in 1991-92 to 7,000 in 1992-93 and other cases of detection rose from 4815 in 1991-92 to 24,326 in 1992-93. The revenue from such cases assessed in 1991-92 to Rs.1108.46 lacs rose in the year 1992-93 to Rs.2474.73 lacs. In the year 1993-94 the figures of assessment of revenue in such cases rose to Rs.3556.50 lacs in 1993-94 and to Rs.4583.91 lacs for part of the year 1994-95 i.e. upto October 1994. In achieving these results part played by Mr. Ramlavat and me has been highly appreciated by the Boarding the edition of 11-1-1994 of the daily Gujarat Samachar a report was published referring to the record made by the Electricity Board in detecting power thefts and other mal-practices in the year 1993. The said report mentions specifically the names of the Board’s Director of Security Shri Ghelot, Additional Chief Engineer Shri Ramlavat and myself and in general to all other members of the squad.

5.6 The post of Superintending Engineer was created at Mehsana to had the theft checking squad. The post was not a cadre post on which respondent No.2 was promoted/placed in view of his merited performance in theft detection. The promotion of respondent No.2 on the said post specially created cannot be linked with promotions which may be granted on the basis of seniority list of Executive Engineers. The promotion of respondent No.2 was on the criteria of merit and his merits considered were specially attributable to the post created. Therefore, the said promotion could not have been linked with seniority posts of Executive Engineers in the seniority list. The post being specially created post, it was not one which could have been offered in regular promotional channel. When the respondents have assessed the merits of respondent No.2 who was admittedly experienced person and had acknowledged efficiency in the field of theft detection, his promotion to the special post could not be questioned on the ground of violating seniority posts. The promotions which would be available as per the promotional criteria from the seniority list could not be said to have C/SCA/12067/1994 CAV JUDGEMNT been affected by creating ex-cadre post for special purpose and promoting respondent No.2 to that post on the basis of merit criteria. In the facts and circumstances, it cannot be said that the promotion to respondent No.2 was arbitrary.

Even otherwise, it was pointed out in the affidavit-in-reply that petitioners had in their service record adverse remarks and some of them were also charge-sheeted and subjected to departmental enquiry. Therefore, even if the comparative merits is to be seen in considering promotion of respondent No.2, his promotion to the said post could not have been excepted. In the above facts, no breach of Article 14 or 16 could be alleged.

6.1 In the aforesaid facts and circumstances, the action of the respondents in promoting the petitioner to specially created post which was in the nature of ex-cadre post cannot be said to be arbitrary, unreasonable or illegal. The criteria being one of merit and the other persons not coming up on merits, the promotion was eminently justified. Moreover, there was no allegation of malafides. Therefore, the contention that there was breach of Article 14 or Article 16 is devoid substance.

For the foregoing reasons, the petition is merit less and is dismissed. Rule is discharged. sndevu

(N.V.ANJARIA, J.)