ANJANI KUMAR SINHA Vs. BIHAR STATE ELECTRICITY BOARD

JUDGEMENT

(1.) THIS writ application basically relates to a dispute of seniority between two petitioners on the one hand and another set of employees of Bihar State Electricity Board (hereinafter referred to as the Board) on the other hand who were originally made respondents 5 to 23 but were subsequently deleted from the list of respondents at the risk of the petitioners. The prayer of the petitioners is for quashing the order no.2754 dated 28.5.1996, a copy whereof has been annexed as An -nexure -1 by which the competent authority accepted the representation of the affected employees and ordered for modification of final gradation list dated 4.3.1992 (Annexure -15) so as to restore seniority of the affected employees over the petitioners and some others as per tentative gradation list dated 19.11.1990 (Annexure -13). The petitioners have also sought for quashing of the consequential gradation list published vide letter no. 987 dated 27.7.1996, a copy whereof has been annexed as Annexure -2.

(2.) THE relevant facts for the purpose of deciding the dispute between the parties and which are not in dispute are as follows. Petitioner nos. 1 and 2 were appointed as Routine Clerks in the service of the respondent Board on 9.3.1977 and 25.5.1976 respectively. As per rules they had to complete 5 years of service as Routine Clerk in order to be eligible for promotion to the post of Routine Clerk. As per undisputed policy as reflected by notification dated 8.8.1968 issued under the provisions of Section 79(c) of the Electricity (Supply) Act, 1948 (hereinafter referred to as 'the Act '), 20% of the vacancies in the rank of Lower Division Assistant (LD Assistant) were required to Board to cover such eventuality -presently, neither vires of the Notification 8.5.1978 nor any policy of the respondent Board under challenge -what the petitioners seek to establish is a question of fact -petitioners having appeared and being unsuccessful in the competitive examination, it is not open to them to claim seniority over those who were successful and directly recruited -petitioners also lacking in minimum length of service for being eligible for promotion -for deciding seniority on the principle of same transaction as contained in Notification dated 8.5.1978, the relevant material is not only the date on which the vacancies were determined but also the date when decision was taken to fill up such vacancies -no relief admissible to petitioners for quashing of modified gradation list Since it would directly affect the seniority and consequent rights of the affected direct recruits who have not been afforded any opportunity of hearing. (Paras 9 to 15 and 17) (1996) 2 SCC 19; 1991 Supp.(2) SCC 183; AIR 1991 SC 1244; 1995(1) PLJR 265 -Applied. AIR 1983 SC 769 -Distinguished. AIR 1992 SC 1277 -Referred to. Service Law -Seniority -Gradation list -observance of principles of natural justice while modifying gradation list -tentative gradation list which was in favour of direct recruits, modified on the basis of objections received from promotees -no provision at that stage for receiving counter objections to meet the objections that may be filed against the tentative gradation list -if the final gradation list contained changes in comparison to the tentative gradation list, those affected by such changes has a right to file representation -a decision based on versions of both the parties cannot be held to be a decision in violation of principles of natural justice. (Para 15) Shiva Kirti Singh, J. - This writ application basically relates to a dispute of seniority between two petitioners on the one hand and another set of employees of Bihar State Electricity Board (hereinafter referred to as the Board) on the other hand who were originally made respondents 5 to 23 but were subsequently deleted from the list of respondents at the risk of the petitioners. The prayer of the petitioners is for quashing the order no.2754 dated 28.5.1996, a copy whereof has been annexed as Annexure -1 by which the competent authority accepted the representation of the affected employees and ordered for modification of final gradation list dated 4.3.1992 (Annexure -15) so as to restore seniority of the affected employees over the petitioners and some others as per tentative gradation list dated 19.11.1990 (Annexure -13). The petitioners have also sought for quashing of the consequential gradation list published vide letter no. 987 dated 27.7.1996, a copy whereof has been annexed as Annexure -2. 2. The relevant facts for the purpose of deciding the dispute between the parties and which are not in dispute are as follows. Petitioner nos. 1 and 2 were appointed as Routine Clerks in the service of the respondent Board on 9.3.1977 and 25.5.1976 respectively. As per rules they had to complete 5 years of service as Routine Clerk in order to be eligible for promotion to the post of Routine Clerk. As per undisputed policy as reflected by notification dated 8.8.1968 issued under the provisions of Section 79(c) of the Electricity (Supply) Act, 1948 (hereinafter referred to as 'the Act '), 20% of the vacancies in the rank of Lower Division Assistant (LD Assistant) were required to be filled up by promotion of Routine Clerks in the cadre of the Secretariat of the Board. For such promotion 5 years completed service was one of the minimum requirements and promotion depended upon result of the qualifying departmental examination on the basis of seniority combined with merit. Petitioners belong to such promotional quota for the post of LD Assistant. The other source of recruitment for filling up the remaining vacancies was by way of limited competitive examination open for all grades of Board employees without any eligibility qualification of a minimum service. The private respondents who were subsequently deleted from the list of respondents belong to this mode of recruitment to the post of LD Assistant and the parties have described such a mode as direct recruitment in contrast to recruitment by promotion. Understood in this sence, the dispute is between promotees, who are petitioners and the direct recruits, who are no longer respondents.

(3.) FROM Annexure -4 to the writ application, a note -sheet dated 27.8.1982, it appears that before offering appointment to the successful 22 direct recruits, the Secretary considered the total vacancies available with the Board for appointment to the post of LD Assistant and around that date the total vacancies were noted to be 41. Accordingly, 8 posts which clearly correspond to 20% quota for promotees were ordered to be kept vacant for promotion from Routine Clerks and 10 posts were ordered to be kept vacant against scheduled caste/scheduled tribe quota. Against the remaining 23 posts again available for direct recruitment offer of appointment was directed to be given to the successful 22 candidates whose results, as noticed earlier, had already been published on 19.8.1982. Prior to note -sheet dated 27.8.1982 (Annexure -14) the Board had issued a notice dated 19.4.1982 for holding departmental examination for promotion to the post of LD Assistant for such eligible Routine Clerks who had completed 5 years of service. As per said notice the departmental examination was scheduled to be held on 25th and 26th April, 1982 but the same was postponed and ultimately held on 5th and 7th December, 1982. The petitioners having completed the minimum length of service of 5 years appeared in the departmental examination, result whereof was published vide Annexure -8 on 3.5.1983. As per rules governing such a promotion the petitioners and two others were promoted to the post of LD Assistant vide order dated 1.10.1984 contained in Annexure -10.