K.L. NIJHAWAN Vs. HARYANA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) THE petitioner, who was in the Revenue Department of Haryana State Electricity Board, seeks to challenge the promotion orders issued to respondents 5 to 10 on the ground that they were juniors to him in the clerical cadre and that he should be promoted to the higher post in the clerical cadre. The writ petition had been filed after the institution of a civil suit in which the petitioner had sought for a direction to promote him as Head Clerk in clerical cadre or in the alternative to give to him the benefit under the Assured Career Progression Scheme in the accounts cadre. The suit had been dismissed making reference to the fact that he had earlier sought for repatriation to the clerical cadre which was denied and when he filed earlier writ petition, he was given a liberty to make a representation. That representation had been given and when a reasoned order had also been passed the writ petition has been filed challenging the said order. When the appeal was filed, the appellate Court adverted to the fact that the plaintiff had actually filed the instant writ petition in CWP No. 14537 of 1991 and, therefore, no relief need be given to him and his right will abide by the decision of this Court in this writ petition. The plaintiff has appealed to this Court through RSA No. 3020 of 2001, in which, I have formulated the following substantial questions of law: -

(2.) IT is brought out on record which was admitted by both parties that in the establishment of the Board, the plaintiff/petitioner could be considered in two distinct streams of employment. The clerical cadre that allowed for an upward mobility from LDC to UDC, Commercial Assistant, Assistant, Head Clerk and Superintendent. In the commercial cadre, the hierarchy was Divisional Accountant, SAS Accountant, Accounts Officer, Senior Accounts Officer and Head of the Department. The petitioner's contention was that he was appointed as LDC on 20.07.1963, earned promotion as UDC and confirmed on 28.07.1968, but he took the accounts examination and moved over from the clerical cadre to commercial cadre and appointed as Divisional Accountant. He wanted to go back to the clerical cadre when he could not improve his promotion prospects which required him to pass a departmental examination in accounts. When he sought for repatriation to the clerical cadre by pointing out to some of his juniors, who had been promoted to still higher posts, he was asking for consideration of promotion in the clerical cadre. This was denied to him by a reasoning that he had voluntarily opted to move over to the commercial cadre and having exercised the option and earned also a higher scale of pay and promotion, he could not ask for a repatriation. The argument was that the petitioner had been in service from the year 1963 and knew fully well, two streams of cadre were in place in the Electricity Board and having opted for a shift in the year 1979, cannot exercise as option to be repatriated to clerical cadre.

(3.) THERE is no difficulty in accepting the fact that the petitioner was senior to the private respondents in the clerical cadre. If he had persisted in the same line and if anyone of his juniors had been promoted, the issue of being considered for promotion from the date when his juniors were promoted would arise. In this case, however, it is an admitted fact that there are two different cadres in the establishment, namely, accounts and clerical cadres. When he was appointed in the year 1979 as Divisional Accountant, he was getting absorbed in another line and it ought not to be taken merely as temporary officiation. He earned a new qualification by participating in departmental examination and had joined as Divisional Accountant. Cases of exercise of lien when a person is appointed on deputation or in an employment in an ex -cadre post or a situation where a person holds an ad hoc promotion are wholly different from a case such as what obtains in this case, such as it obtains to a person opting for a different stream in the same establishment after acquiring additional qualification and seeks for return to his original cadre. Such a return will be impermissible unless rules themselves allow for such a course. The reliance in the judgment of this Court in Dalbir Singh's case (supra) is misplaced because this Court was considering the case of a person, who was on deputation with the local government department as Law Officer and he held a lien to the post of Superintendent Grade -II. An appointment to a higher post as Under Secretary was denied to him although the channel of promotion was through a substantive post which he was entitled to hold from his parent cadre. S. Aryan's case (supra), the Supreme Court was explaining that there was nothing like lien on a post unless a person was made permanent in a post. It sought to explain the difference between the fact that person is regularized was not same thing as confirmation of service. I do not know as to how this judgment could help the petitioner in any way, for unless the post to which the petitioner was appointed in the accounts cadre was a post on deputation or an ad hoc appointment, it could not be stated that the petitioner had a lien to the clerical cadre. When he had opted consciously to the accounts cadre, he had to only look for future prospects in the same stream and cannot seek for return to his original post. This can result in very serious turnover in any establishment, if the career -switch to and fro were to be entertained at the instance of the employee at his whims. The relief claimed in the plaint and the writ petition was, therefore, not possible at all.