Judgment:
T. Vaiphei, J.
1. In this writ petition, the petitioner is questioning the validity of the Notification dated 31.03.2004 issued by the respondent No. 2, relaxing the qualifying service of two years as Superintending Engineer (Civil) for promotion to the post of Additional Chief Engineer (Civil) and the promotion of respondent Nos. 3 and 4 to the post of Additional Chief Engineer (Civil).
2. The material facts for disposal of this writ petition are not in dispute. The petitioner was initially appointed as Assistant Engineer in the Meghalaya State Electricity Board on 21.06.1976 and was promoted to the post of Assistant Executive Engineer on 18.04.1985 and was further promoted to the post of Executive Engineer under the same Board on 09.07.1984. The respondent No. 3 on the other hand, was promoted to the post of Executive Engineer (Civil) on 01.06.1996. In the final inter-se seniority list of Assistant Executive Engineer (Civil) which was published on 08.11.89, the petitioner was placed at serial No. 7 while in the inter-se seniority list of Executive Engineer (Civil) published on 18.06.97, his name found a place at serial No. 3 while the respondent No. 3 was placed at serial No. 7 and the respondent No. 4 at serial No. 12. In the year 2000, the respondent No. 3, who was admittedly junior to the petitioner, was promoted to the post of Superintending Engineer (Civil) by the order dated 22.08.2000. The petitioner challenged the said promotion order by filing a writ petition before this Court which was registered as W.P.(C) No. 129(SH) 2001. By the order dated 25.01.2002, this Court allowed the writ petition and quashed the promotion of the respondent No. 3 and further directed the respondents-Board to re-do the entire promotion process in accordance with law. The respondents preferred an appeal against this judgment before the Division Bench of this Court in Writ Appeal No. 1 (SH)2002, which was dismissed. The Special Leave Petition preferred before the Apex Court was also dismissed by the Apex Court in SLP No. 16260/2002.
3. Following the dismissal of the SLP by the Apex Court, the respondents by the order dated 12.09.2002 cancelled the promotion of the respondent No. 3, who was thereupon posted as Project Officer in terms of the order dated 16.09.2002. It appears that the respondents, by the office order dated 23.12.2002, created the post of Superintending Engineer (Civil) for the petitioner, and by the order dated 23.12.2003 promoted him to the post of Superintending Engineer (Civil) with effect from 27.03.2002. Contending that the order of this Court was not fully complied with, the petitioner approached this Court by filing a contempt petition, which was registered as COP No. 17 (SH) 2002, but this Court disposed of the contempt petition by holding that if the petitioner was aggrieved by his non-promotion to the post of Superintending Engineer (Civil) with effect from 22.08.2000 instead of 27.03.2002, it would be open to him to approach the authorities concerned for necessary action and might take up appropriate legal remedy if they failed to take appropriate action. In the meantime, the respondents issued the impugned Notification relaxing the qualifying service of two years as Superintending Engineer for promotion to the post of Additional Chief Engineer as a special case to enable the Departmental Promotion Committee to recommend suitable officers for the vacant posts of Additional Chief Engineer (Civil). At this stage, it may be noted that the respondent Nos. 3 and 4 were, in the meantime promoted to the post of Superintending Engineer (Civil) on 15.01.2003 vide the office orders dated 15.01.2003 and 23.04.2004 respectively. At this stage, it may also be observed that the petitioner, who had also by then been promoted to the post of Superintending Engineer (Civil) on 27.03.2002, was admittedly senior to the respondent Nos. 3 and 4. It was under the aforesaid circumstances that this writ petition came to be filed by the petitioner.
4. The case of the respondents as projected in their counter affidavit is that the relaxation of the qualifying service of two years as Superintending Engineer (Civil) for promotion to the post of Additional Chief Engineer (Civil) was made as a one-time exercise to fill up the vacant post of Additional Chief Engineer (Civil) to tide over the shortage of eligible candidates in the interest of work and not for the purpose of achieving the private interest of the respondent Nos. 3 and 4. According to the respondents, the relaxation was applicable not only to the private respondents but also to the petitioner. According to the respondents, they are fully authorized to do so by the provisions of Clause 113 of the Meghalaya State Electricity Board Service Regulations, 1996 ('the Regulations' for short). It is pointed out by the respondents-Board that the petitioner was also considered by the Departmental Promotion Committee, but he was not recommended due to low grading in his Annual Performance Appraisal Reports (APARs). It is also pointed out by the respondents that promotion to the post of Additional Chief Engineer is made on the basis of grades or marks obtained by the candidates in the APARs for the last preceding five years on merit-cum-seniority and not on seniority, and that when the service particulars of the petitioner and the respondent Nos. 3 and 4 were examined on the basis of their APARs for the last preceding five years by the Departmental Promotion Committee for their promotion to such posts, the private respondents were found to be more meritorious for since they obtained higher gradings in the APARs than the petitioner. The D.P.C., therefore, recommended the private respondents the promotion whereupon the impugned promotion order came to be issued. The respondents denied that the Assam State Electricity Board Engineering Service Regulations, 1973 in which the method for the promotion to the post of Additional Chief Engineer (Civil) is seniority-cum-merit is prescribed, is applicable to the case of the petitioner and assert that it is the Meghalaya State Electricity Board Service Regulations, 1996, under which the method of promotion is merit-cum-seniority, which is applicable to the petitioner. According to the respondents, no case is made out for the interference of this Court.
5. The first contention of Ms A Paul, the learned Counsel for the petitioner is that the impugned Notification granting the relaxation is arbitrary and tailor-made solely for achieving the private interest of the private respondents and not in public interest and that the impugned Notification was issued by the respondent-authorities in such a manner that the fruits of litigation filed by the petitioner, which was even affirmed by the Apex Court, have been deliberately rendered neutralised to settle an old score with him for dragging them to Courts. But for the impugned Notification, according to the learned Counsel for the petitioner, the private respondents could not have been promoted to the post of Additional Chief Engineer (Civil), and stolen a march over the petitioner, who consistently maintained his seniority over them. It is also contended by the learned Counsel for the petitioner that the qualifying service of two years in the post of Superintending Engineer for promotion to the post of Additional Chief Engineer (Civil) is an essential condition of recruitment in contradistinction to conditions of service and that while the condition of service can be relaxed by the respondent-authorities, the condition of recruitment cannot be relaxed by exercising the power of relaxation under Clause 113 of the Regulation. To buttress her contention, the learned Counsel for the petitioner cites the case of Sandeep Kumar Sharma v. State of Punjab and Ors. and Syed Khalid Rizvi and Ors. v. Union of India and Ors. 1993 Supp. (3) SCC 575. Per contra, Mr. KS Kynjing, the learned senior counsel for the respondents-Board contends that the power of relaxation engrafted in Clause 113 of the Regulation is of the widest amplitude and cannot be construed to limit or abridge the power of the Board to deal with any case of any employee of the Board when it appears to it to be just and equitable. In the instant case, according to the learned senior counsel, the relaxation made does not suffer from any arbitrariness or discrimination inasmuch as the relaxation is not confined to the case of the private respondents but also to every other employee similarly situated including the petitioner. The learned senior counsel further submits that the respondents-Board had to take recourse to this power when no eligible candidates were available for promotion to the post of Additional Chief Engineer (Civil) to fill up the vacant posts and that it was with a view to tide over these shortages that relaxation of the qualifying services had to be made, which is undisputedly in public interest and in the interest of the work. The learned senior counsel also points out that the case of the petitioner was also considered by the Departmental Promotion Committee alongwith the case of the private respondents and that when it was found that he had lower grading in the APARs than that of the private respondents, that his case was not recommended for promotion, for which the petitioner cannot have any legitimate grievance to make. Finally, he submits that both the impugned Notification and the impugned promotion do not suffer from any illegality, arbitrariness or are not vitiated by procedural impropriety calling for the interference of this Court.
6. On going through the pleadings of the parties and after hearing the submissions made by the counsel for the rival parties, the first point for consideration is whether the impugned Notification of relaxation suffers from any illegality or arbitrariness. Before proceeding further the contention made by the petitioner regarding the applicability or otherwise of the Meghalaya State Electricity Board Service Regulations, 1996 needs to be examined first. The case of the petitioner is that he joined the service under the Assam State Electricity Board on 21.06.76 and, as such, he is to be governed by the provisions of the Assam State Electricity Board Engineering Service Regulations, 1973. It is not in dispute that under the Assam State Electricity Board Engineering Service Regulations, 1973 seniority-cum-merit is the method of promotion for the post of Additional Chief Engineer (Civil), whereas under the Meghalaya State Electricity Board Service Regulations, 1996, the method of promotion is one of merit-cum-seniority. Clause (2) of Part-I of the Meghalaya State Electricity Board Service Regulations, 1996 provides that the Regulations shall apply to all the employees of Meghalaya State Electricity Board which came into force when it was published in the Gazette of Meghalaya on 14.08.97. It may be noted that the petitioner or for that matter, any employee, cannot have any vested right to a particular condition of service. Appointment of a person is governed by statutory rules or regulations and not be contract. Therefore, the service condition of an employee can be unilaterally altered without his consent. Consequently, a mere right to take advantage of the provisions of a law is not an accrued right. Similarly, mere chances of promotion are not conditions of service and the fact that there is reduction in the chances of promotion of a particular employee does not amount to a change in the condition of service. The petitioner, therefore, cannot claim that he has the vested right to be governed by a particular service regulation. The term 'Conditions of Service' means all those conditions which regulate the holding of a post by a person right from the time of his appointment of his retirement and even beyond, in matters like pensions, etc. Such conditions of service can always be unilaterally changed by the employer. Therefore, once the provisions of the Assam State Electricity Board Engineering Service Regulation has been replaced by the provisions of the Meghalaya State Electricity Board Service Regulations, 1996, the employees of the respondents-Board shall necessarily have to be governed by the new Regulation. Consequently, the contention of the petitioner in this behalf is rejected.
7. In so far as the power of relaxation of the service regulation is concerned, Clause 113 of the Regulation undoubtedly confers such a power upon the Board, which reads thus:
No regulation made in exercise of the powers conferred by Sub-section (c) of Section 79 of the Electricity (Supply) Act, 1948 shall be construed to limit or abridge the power of the Board to deal with the case of any person serving under the Board in such manner as may appear to it to be just and equitable.
Provided that where any such regulation is applicable to the case of any person or a class of persons, the cases shall not be dealt with in any manner less favourable to the person or class of persons than that provided by that regulation.
The aforesaid provision rather saves the power of the Board to relax any provisions of the Regulation in dealing with the case of any person under the Board in such manner as it may appear to it to be just and equitable. The object and purpose of conferring this power on the Board is to mitigate undue hardship in any particular case to any person serving under the Board subject to the condition that the same must be done in a just and equitable manner. This power may be exercised to meet a particular situation in respect of an individual or a class of individuals to the extent the Board may consider necessary in a just and equitable manner. Having said that, the discretionary power, such as the one provided in Clause 113, like any discretionary power, cannot be exercised in an arbitrary manner. For example, while exercising this discretionary power of relaxation, the respondent-authority cannot act in such a manner as to cause injustice to any other similarly situated person, otherwise it will not be an exercise of discretionary power in a just or equitable manner.
8. The validity of the relaxation granted by the State Government of Haryana in favour of a particular employee came up for consideration before the Apex Court in : J.C. Yadav v. State of Haryana. In that case Rule 22 of the Haryana Service of Engineers Class IPWD (Public Health Branch) Rules, 1961 provides that where the Government is satisfied that the operation of any of these rules causes undue hardship to any particular case, it may, by order, dispense with or relax the requirement of that rule to such extent and subject to such conditions as it may be considered necessary for dealing with the case in a just and equitable manner. The facts of the case are that the appellants were found suitable for promotion by the Screening Committee, the Public Service Commission and the State Government, and the contesting respondents therein were not found suitable even otherwise for promotion. The State Government granted relaxation of the rules in favour of the appellants. It happened that on the formation of the new State of Haryana, no promotion from class II officers could be made to class I service without granting any relaxation since 1966 to 1978. In 1971-72, eleven vacancies in the post of Executive Engineers were to be filled up by promotion from Class II officers, but none of then had completed the requisite period of service prescribed by the rules for promotion. In 1976-77 and 1977-78, 16(sixteen) and 19(nineteen) vacancies respectively in the post of Executive Engineers were filled up by promotion by granting relaxation as no officer of Class II service possessing requisite numbers of service was available for promotion. In 1978-79,7 (seven) officers of Class II service were promoted to the post of Executive Engineer but only one of them possessed the requisite period of service and all others were granted relaxation. Under the circumstances, in the absence of relaxation, no promotion could be made to the post of Executive Engineer and the officers who were found suitable would have suffered great hardship. In 1973 also the State Government, with a view to meet the particular situation exercised its powers of relaxation in favour of the appellant. The Apex Court held that the power to grant relaxation may be exercised in case of an individual to remove hardship being caused to him or to a number of individuals who may be similarly placed and that the power may also be exercised to meet a particular situation where, on account of the operation of the rules, hardship was being caused to a set of individual officer. In such situation, the Apex Court observed, it was beyond comprehension that the power of relaxation under Rule 22 was exercised arbitrarily or that it caused hardship or injustice to anyone. The Apex Court also observed that a narrow construction of the rules would nullify the power of the Government to relax the rules to meet a particular situation. The aforesaid decision of the Apex Court rendered by a three Judge Bench has thus categorically approved even relaxation of the condition of recruitment even assuming that prescribing a minimum qualifying service for promotion to a higher post is a condition of recruitment.
9. In Jit Singh and Ors. v. State of Punjab and Ors. , which was referred to by the Apex Court in J.C. Yadav's case (supra), the State Government's order granting relaxation under Rule 40 of the Punjab Police Service Rules, 1959 in respect of the period of service was questioned. In this case, the promotion of Inspectors to the post of Deputy Superintendent of Police was involved. Under the Police Service Rules, 1959, an Inspector having six years continuous service was eligible to the post of Deputy Superintendent of Police. The State Government, in exercise of the power under Rule 14, granted relaxation to Inspectors who had been found fit for promotion, as a large number of vacancies had occurred in the cadre of Deputy Superintendent of Police and no suitable persons having the requisite period of service were available. Promotions made pursuant to the relaxation were challenged before the High Court. The High Court dismissed the writ petition on the ground that the petitioners before it were not qualified for promotion. On appeal before the Apex Court, the judgment of the High Court was upheld. The Apex Court took the view that since the appellants before it were not eligible for promotion as their names were not included in the Select List prepared by the Public Service Commission and further as they had not completed six years of continuous service prior to respondents, they were not entitled to any promotion. The appeal was accordingly dismissed by the Apex Court, but while considering the question of validity of relaxation, the Apex Court made an observation to the effect that Rule 40 did not permit any general relaxation of the nature ordered by the State Government. This observation was not concurred with by the three Judge Bench in J.C. Yadav's case (supra) by holding that 'Though Rule 22 is not happily worded, as apparently it gives an impression that no general relaxation can be granted by the State Government, but on a close scrutiny of the scope of the power we find a narrow construction of the rules would nullify the Government's power of relaxing rules to meet a particular instruction' Thus, the power of relaxation given to an employer has to be construed in a liberal manner and it should not be interpreted in a manner to defeat the very object and purpose of such power. However, as noted earlier, the power has to be exercised not arbitrarily or it should not cause hardship or injustice to any one.
It is against the backdrop of the principles laid down in J.C. Yadav's case (supra) that I propose to examine the validity of the impugned Notification. The impugned Notification is at Annexure-15 to the writ petition, which is reproduced hereinbelow:
In pursuance of the provisions of Regulation 113 of the MeSEB Service Regulations, 1996 and Board's Resolution on Agenda Item No. 5(2)/2004) (B) dated 25.02.2004, the Meghalaya State Electricity Board is pleased to relax the provision of Amendment to Annexure-III 'B', Serial 2, Column 4 of the Me SEB Service Regulations, 1996 notified vide Office Memorandum No. GA-1I/21/97/Pt-11/82 dated 31.05.2002, as a special cases a one time relaxation for the present only, as follows:
The Existing provision on 'Experience' shown as the candidates must have worked as Superintending Engineer (C) for at least 2(two) years' is hereby condoned in respect of Superintending Engineer (C) as a special case, to enable the Departmental Promotion Committee to recommend eligible/suitable officers for promotion to the rank of Additional Chief Engineer (Civil).
The above provision of Annexure-III 'B' of Schedule-I is relaxed to the above extent only for the present case of promotion to the existing vacancy of Additional Chief Engineer (Civil).
10. The contents of the Notification extracted above unmistakably shows that the relaxation was done as a special case and as a one time relaxation and is applicable to all the Superintending Engineers (Civil) including the petitioner, who have not completed two years of service in the grade. Therefore, the petitioner cannot complain that the relaxation is tailor-made for the private respondents only and cannot also complain that the same is arbitrary or discriminatory. On the face of it, the impugned Notification does not suffer from any infirmity or is violative of Articles 14 and 16 of the Constitution of India. In paragraph 7 of the counter affidavit, the respondent-authorities pointed out that the said condition was relaxed to enable the Departmental Promotion Committee to fill up the vacant posts of Additional Chief Engineers in the interest of work and not to favour the respondent Nos. 3 and 4 for extraneous consideration and that following this relaxation, the case of the petitioner was also considered by the D.P.C. alongwith the case of the respondent Nos. 3 and 4. In paragraph 11 of the counter affidavit, the respondent-authorities further pointed out that the case of the petitioner was placed before the Departmental Promotion Committee alongwith the respondent Nos. 3 and 4 in which the Departmental Promotion Committee recommended the respondent Nos. 3 and 4 for promotion to the rank of Additional Chief Engineer (Civil) as their performance recorded in the APARs in the last five years were found more meritorious than that of the petitioner, and that the Departmental Promotion Committee did not accordingly recommend the petitioner for the promotion as the same is based on merit-cum-seniority. These assertions made by the respondent-authorities have not been controverted by the petitioner. On the contrary, nowhere in the pleadings is any assertion made by the petitioner that his performance as recorded in the APARs were better than that of the private respondents. All that he claims is that there has been no adverse remark with regard to his service records and his service career has been unblemished vide para 25 of the writ petition. In the method of promotion, which is found to be based on merit-cum-seniority and not seniority-cum- merit, such record alone is hardly sufficient. On the basis of my aforesaid findings, it cannot, therefore, be said that the impugned Notification of relaxation or the impugned promotion orders suffer from arbitrariness, illegality of procedural impropriety.
11. In the premises set forth above, there is no merit in this writ petition, which is dismissed. However, on the facts of the case, the parties are directed to bear their own Costs.
.