K.L. AGARWAL Vs. H.S.E.B.

JUDGEMENT

(1.) Shri K.L. Agarwal was the Executive Engineer at the time of filling of the writ petition but now this Court has been informed that he has been promoted to the post of Superintending Engineer. Yet the controversy is not over as the petitioner if becomes successful in the present writ petition can be further considered for promotion from the back date to the post of Chief Engineer. He could not be promoted as Superintending Engineer at the relevant time when private respondents were promoted to that post.

(2.) The petitioner has filed the present writ petition seeking the directions of this Court that a declaration be given that action of respondent No. 1 in promoting respondents No. 2 to 14 prior to the promotion of the petitioner to the post of Superintending Engineer is illegal and the said order may be quashed and further directions be given to the respondent No. 1 to consider the case of the petitioner for promotion to the post of Superintending Engineer w.e.f. the date when juniors to him were promoted to that post. It was also prayed by the petitioner that a writ of certiorari be issued and his A.C.R. for the year 1988-89 vide which the performance of the petitioner was treated as below average be quashed. Also it was prayed by the petitioner that this A.C.R. for the year 1995-96 be quashed and it may be ranked as good.

(3.) The case set up by the petitioner is that he was inducted into service of the Haryana State Electricity Board (hereinafter referred to as the Board) as Apprentice Engineer on 23.6.1967. Thereafter, he was promoted to the post of Assistant Engineer in the year 1967. Then he was promoted to the post of Assistant Executive Engineer and then to the post of Executive Engineer in February, 1978. He has been discharging his duties against the post of Executive Engineer in an efficient manner. From the post of Executive Engineer one can be promoted to the post of Superintending Engineer. The conditions of service of the employees of the Board including the engineering staff are regulated by the provisions of Punjab State Electricity Board Service of Engineers (Electrical) Recruitment Regulations, 1965. As per Regulation 6(d), the post of Superintending Engineer can be filled up by way of selection from the post of Executive Engineer on the conditions that the officer must be of outstanding ability and the consideration on the basis of seniority-cum- suitability as Executive Engineer. The regulation was amended w.e.f. 19.2.1988 and it was decided that the promotion to the post of Superintending Engineer will be on the basis of principle of seniority-cum-merit. Also according to the promotion policy accepted and applied by the Board it was clearly envisaged that those Executive Engineers who have 70% good and above ACRs during the last 10 years were to be considered suitable for appointment by promotion. According to the petitioner, he has 70% good and above reports during the last 10 years on the relevant day and, therefore, he had a superior right of promotion than that of respondents No. 2 to 14. His ACR for the year 1988-89 relates to the period 1.4.1988 to 24.1.1989. It was communicated to him on 3.1.1995. He filed the reply/representation against the same on 22.2.1995. He also gave a reminder on 19.4.1995. The representation made by the petitioner was exhaustive but for mala fide consideration the same was rejected and the petitioner was informed on 12.1.1996. Moreover, the remarks recorded against the petitioner in the ACR for the year 1988-89 were cryptic and meaningless. No definite opinion was given by the Reporting Officer. These remarks were communicated to him after a lapse of seven years. There was extraneous consideration as the authorities wanted to ignore him, otherwise he was eligible for consideration for promotion to the post of Superintending Engineer. The report was procured purposely and belatedly so as to condemn the petitioner. Moreover, the report for this period was written without application of mind and it should be ignored and the petitioner is entitled to a good report for that period. The petitioner has also given challenge to the ACR for the year 1995-96 which related to the period 12.6.1995 to 3.1.1996. This was communicated to the petitioner on 31.7.1996. The petitioner made a representation on 13.9.1996. He gave the reminder for the decision of his representation which was decided on 17.1.1997. The petitioner submitted that he repeatedly claimed a personal hearing while determining his claim against the ACR for the year 1995-96 but he was not allowed the same. Therefore, he made further representation in this regard. A communication was addressed to the petitioner on 20.2.1997 whereby the Member, Administration & Project Finance summoned the petitioner for personal hearing in response to the adverse remarks communicated to him on 3.3.1997. The personal hearing could not materialise because of the transfer of the Member, Administration & Project Finance and consequently another communication dated 10.3.1997 was issued to the petitioner to afford him personal hearing in connection with the ACR. The petitioner was summoned for personal hearing on 21.3.1997. He appeared before the Member, Administration & Project Finance on the appointed day and fully explained the matter to him. The petitioner came to know that the aforesaid member recorded favourable findings and recommended that the adverse remarks communicated to the petitioner on 31.7.1997 should be expunged. Otherwise, the work and conduct of the petitioner during this period was assessed on three occasions. Firstly, from 12.6.1995 to 3.1.1996. This report was recorded by the Superintending Engineer.