BSES YAMUNA POWER LTD Vs. S C KANSAL

JUDGEMENT

(1.) The challenge in this intra court appeal is to the judgment dated 13 th July, 2011, as corrected on 20 th July, 2011, of the learned Single Judge allowing WP(C) No. 2859/2002 preferred by the respondent by directing the appellant to issue appropriate orders clarifying that the promotion of the respondent as Assistant Engineer (AE) is as of the year 1995 when such promotion became due and by further directing the appellant to consider the case of the respondent for promotion as Executive Engineer on completion of eight years as AE i.e. as of 2003. Notice of the appeal was issued. The counsel for the respondent stated that the respondent will not enforce the order of the learned Single Judge till decision of this appeal. The counsels have been heard.

(2.) The respondent filed the writ petition aforesaid pleading that he is a Degree holder in Electrical Engineering of 1976 batch; that he joined the services of the erstwhile Delhi Vidyut Board (DVB) being the predecessor of the appellant as Inspector in July, 1979; that he was promoted to the post of Superintendent in the year 1991 and on completion of three years, as per the Recruitment and Promotion Rules (R & P Rules), became eligible for promotion to the post of AE in July, 1994; that vide Office Order dated 24 th August, 1995 he alongwith 28 others, also working as Superintendent, were assigned current duty charge of the post of AE and continued to so discharge duties of AE till the filing of the writ petition but without full benefit; that the Office Order dated 24 th August, 1995 was under challenge in CWP No. 3080/1995 titled K.K. Sharma Vs. MCD; that in the year 1999 the post of Inspector and Superintendent were amalgamated and converted into the post of Junior Engineer; that no attempt was being made to make regular appointments to the post of AE - instead promotions to the said post were made ad hoc and that too by giving preference to diploma holders over degree holders; all this was contrary to R & P Rules; that to the same effect, vide Office Order dated 15 th April, 2002, 73 employees had been promoted to the post of AE though on ad hoc basis and none of whom were Degree holder. Relief of quashing of Office Order dated 15 th April, 2002 and issuance of mandamus for filling up the post of AE, were sought in the writ petition.

(3.) The appellant filed a counter affidavit in the writ petition pleading that the respondent was a Superintendent (T) re-designated as JE and was holding the post of AE (E/M) on look after basis since 24 th August, 1995; that his name appeared at serial No. 705 in the seniority list of Superintendent (T); that he alongwith 28 others were vide Office Order dated 24 th August, 1995 assigned only current duty charge to man the vacant post of AE in view of the orders in CWP No.s 1652/1993 and 3153/1993 (sic for 5153/1993) filed by S.K. Goel and A.K. Mittal respectively; that the Office Order 24 th August, 1995 did not confer any right for regularization/promotion/ad hoc appointment to the post of AE or for any other benefit; that as per R & P Rules, 50% of the vacancies in the grade of AE (E/M) were to be filled up by direct recruitment and 50% by promotion; subsequently the promotion quota was enhanced from 50% to 66%; regular promotion was to be made on the basis of the selection to be done by DPC/UPSC; however the ad hoc promotion was resorted to since the post of AE being a supervisory post could not be kept vacant for long; such ad hoc promotions were made on the basis of seniority cum fitness and eligibility criteria laid down in R&P Rules; that the petitioner could not claim any right on the basis of higher qualification over his seniors unless the seniors were not eligible under the R&P Rules; that ad hoc promotion had been made in unreserved category till serial no. 626 while the name of the respondent appeared at serial No. 705; that the respondent would be promoted as per his turn.