S P AGARWAL Vs. LT GOVERNOR

JUDGEMENT

(1.) Very interesting points have been raised in this writ petition, namely, (1) whether on account of Section 511-B(2)(i) of D.M.C.Act, on the issuing of notification dated 24th February,1997 the petitioner who was working as Additional General Manager automatically acquired the status of Member, Delhi Vidyut Board (In short the Board); (2) whether on account of the notification dated 24th February,1997 issued under Section 5 of the Electricity (Supply) Act,1948 (hereinafter called the Act) the post of Additional General Manager in fact was re-designated as Member Board; (3) whether the right which accrued to the petitioner on account of the notification dated 24th February,1997 could not be taken away retrospectively by a subsequent notification of 27th February,1997; (4) whether after redesignation of the post as Member Board there does not exist any post of AGM; (5) whether in the absence of any specific letter of appointment issued in favour of the petitioner he cannot claim the post of Member Board; and finally (6) whether the petitioner in this writ petition has claimed declaration or mandamus for appointment to the post of Member Board which is not permissible.

(2.) In order to answer these questions let us have quick glance to the relevant facts and rules necessary for the determination of the same. The petitioner was Chief Engineer in the erstwhile Delhi Electric Supply Undertaking (in short DESU). He was due for promotion to the post of Additional General Manager (Technical) (in short the AGM). The said promotion was withheld. Aggrieved by that order the petitioner approached this Court by way of writ petition bearing CW.No.4349/95. This Court vide order dated 29th June,1995 held that denial of promotion to petitioner was based on extraneous and malafide considerations, and therefore, the order of withholding the promotion of DESU was quashed. That writ petition was allowed. Thereafter the petitioner was promoted to the post of AGM (Technical) vide order dated 19th September,1996 effective from 1st July,1995. He was posted as AGM(T-G). After petitioner's promotion the work was distributed between the two AGM (Technical) i.e. between the petitioner and Mr.Y.P.Singh another AGM (Technical). The petitioner was given the charge of generation, products including new works planning & consideration and other civil works. Rest of the charge was given to Mr.Y.P.Singh. This division took place vide order dated 20th October,1996. The Government reconstituted the DESU into a State Electricity Board. The powers under the Electricity (Supply) Act,1948 and the Indian Electricity Act,1910 were delegated to the Lt.Governor of Delhi by notification dated 29th January,1997 of the Government of India. The Act was made applicable to the National Capital Territory of Delhi (in short N.C.T. of Delhi) from 24th February,1997 by a notification of the same date. The Lt.Governor in exercise of the powers vested in him under Section 5 of the Act issued a notification on 24th February,1997 constituting the Electricity Board for the N.C.T. of Delhi under the name of Delhi Vidyut Board. Clause 2 of that notification deals with the constitution of the Board consisting of seven members i.e. a Chairman, two Member (Technical), one Member (Administration), one Member (Financial), Secretary to the Government, in charge of Electricity (ex-officio) Member, Secretary to the Government, in charge of Finance, (ex-officio) Member. Clause 4 of the said notification deals with the transfer scheme. Sub Clause (2) of Clause 4 provides that the post of General Manager (Electricity), AGM (Technical & Distribution), AGM (Technical & Generation), AGM (Admn.) and Financial Adviser and Chief Accounts Officer of the DESU shall be re-designated as Chairman, Member (Distribution), Member (Generation), Member (Admn.) and Member (Finance) of the Board. Under Clause 4(5) of the said Notification all financial, administrative and disciplinary powers were to be exercised by the respective Members of the Board. However, vide notification 27th February,1997, the Lt.Governor of Delhi made amendments in the notification of 24th February,1997. Clause 4(2) as it stood vide notification dated 24th February,1997 stood omitted. Because of the notification of 27th February,1997, the respondent refused to redesignate the petitioner as Member Board. Respondent's defence was simple that in the absence of any specific order having been passed under Section 5(2) of the Act in favour of the petitioner by the Lt.Governor his post did not automatically got redesignated as Member Board. In the case of Mr.Y.P.Singh such an order was passed by the Competent Authority on 24th February,1997 itself. It is this stand taken by the respondent that the petitioner felt aggrieved and approached this Court.

(3.) To appreciate the legal submissions reference can be made to Section 511-B(2)(i) of the D.M.C. Act and Section 5 of the Act which are reproduced as under:- Section 511-B(2)(i) :