Md Imteyaz and Ors Vs. Jharkhand Urja Vikas Nigam Limited Through Its Chairman Cum Managing Director and Anr - Court Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5673 of 2014 1. Md. Imteyaz 2. Sanjay Kumar Singh 3. Durga Prasad Das 4. Cornelius Marandi ….... Petitioners Versus 1. Jharkhand Urja Vikas Nigam Limited, Ranchi 2. General Manager, Personnel cum General Administration, Jharkhand Urja Vikas Nigam Limited, Ranchi ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners : Mr. Ashutosh Anand For the Respondents : Mr. Om Prakash Tiwari 04/23.06.2015 Heard learned counsel for the parties. There are four petitioners in the instant case who seek promotion to the post of Executive Engineer by claiming relaxation of 50% qualifying service in terms of the Office order No. 1194 dated 7.7.2012 (Annexure-4) issued by the Secretary, Jharkhand State Electricity Board, which prescribes the necessary 'kalavadhi' or time period which an incumbent seeking promotion to the next substantive post is required to have completed for such consideration. Petitioners contend that for promotion to the next higher post of Executive Engineer the 'Kalavadhi' required is five years. According to them there could be relaxation of 50% if the desired 'kalavadhi' is not spent by the incumbent from the previous substantive post to the promotional post to which petitioners seek to be promoted. In that case 50% of the 'kalavadhi' is to be reckoned from the post junior to the substantive post which the petitioners were holding. Petitioners in their individual cases have been appointed as Junior Engineer from the category of Diploma Holder sometime in the year 2000 and as per the statements made on their behalf, they have been promoted as Assistant Executive Engineer w.e.f 1.7.2010, 21.6.2010. 15.10.2011 and 8.12.2010 respectively. When the last promotional exercise was held by the Departmental Promotion Committee (D.P.C.), two persons from their category were -2- promoted as Electrical Executive Engineer, as per the recommendation of D.P.C. in its meeting dated 28.8.2014. Admittedly those two persons are ranked senior to the petitioners. With the aforesaid grievance that despite vacancies existing, cases of these petitioners were also not recommended by the D.P.C., petitioners came before this Court in the present writ application. Learned counsel for the respondent- Board was allowed time to file counter affidavit. They have explained the requirement of 'kalavadhi' in their counter affidavit for promotion from the post of Assistant Executive Engineer to that of Electrical Executive Engineer as five years. The Grade Pay Rs.5600/- of the Assistant Executive Engineer , requires five years 'kalavadhi' to be considered for promotion to the next Grade Pay of Rs.6600/- to the post of Electrical Executive Engineer. It is also contended that the relevant Office order provides that if the post is vacant and no person is available for promotion who has completed the requisite 'kalavadhi' then on the basis of qualifying service in the current post and one rank lower post, i.e. equal to joint 'kalavadhi' is to be reckoned for being considered for such promotion. They have also stated that there are direct recruit Assistant Executive Engineer who have not completed the requisite 'kalavadhi' of five years, though they were senior to the promoted Executive Engineer from Diploma Holders category. The D.P.C. in its meeting held on 28.8.2014, after recommending the case of two such persons from the Diploma Holders category, considered it proper to have reply to the specific quarries i.e. (i) cadre ratio between the Diploma Holders and the Direct recruits (ii) opinion of the Senior Law Advisor and (iii) a review on the question of grant of 50% 'kalavadhi' to the Diploma Holders for promotion with regard to the seniority position vis-a-vis Degree Holders Assistant Executive Engineers. -3- Learned counsel for the petitioners submit that the claim of the petitioners have unnecessarily being deferred when posts were already vacant and it seems that respondents and the D.P.C are only inclined to wait till the Degree Holders direct recruits gain eligibility / requisite 'kalavadi' for promotion to the post of Executive Engineer, which may result in denying the legitimate claim of the present petitioners. Rejoinder to the counter affidavit have also been filed by the petitioners. Having taken note of the outline of the factual matrix of the case from the respective stand of the parties and the pleadings on record, it appears that promotional exercise to the post of Executive Engineer from the post of Assistant Executive Engineer under the respondent Board is to be made not only reckoning the required 'Kalavadhi' of individual candidates who fall in the zone of consideration, but also taking into account the total cadre structure and the proportionate quota for promotion to the post of Electrical Executive Engineer from the source of Diploma Holders as well as Degree Holders and / or any other source. The D.P.C on 28.8.2014 considered it proper to defer the matter awaiting specific answer on the queries sought for which appear to be relevant to take an informed decision. It however also appears that if there is an earmarked quota for Diploma Holders and direct recruits - Degree Holders for promotion to the post of Electrical Executive Engineer, the cadre balance has to be maintained while undertaking any such exercise so that an incumbent from either of the feeder source i.e. Diploma Holders and direct recruits- Degree Holders do not suffer adversely in the matter of promotion against their quota. In such circumstances, it appears that petitioners on apprehension have rushed to the Court after the D.P.C deferred their matter for consideration awaiting answer to the queries sought for on the -4- aforesaid grounds. Be that as it may, an employee has right to be considered for promotion but cannot be said to have right to be promoted. If the petitioners are falling in the zone of consideration and satisfy the requirement of 'kalavadhi' in terms of the Office Order of the respondent- Board and if there are vacancies available in their quota, the Competent Authority under the respondent- Board is expected to undertake the exercise within a reasonable time so that the eligible persons who may have a chance to be promoted do not have a sense of stagnation or denial in promotional avenues. In such circumstances, it is better to direct the respondent- Board / successor Company to which the petitioners' services now belong to complete the exercise for such promotion in accordance with law and if the petitioners are also found to be in the zone of consideration along with all other eligible persons, their cases be also considered in such exercise within a reasonable time. Since the D.P.C held its meeting in August, 2014 itself and no decision has been taken thereafter till June 2015, it is desirable that such a considered decision be taken at the level of respondents based upon the decision of the D.P.C within a period of 10 weeks from the date of receipt of copy of this order. The writ petition is disposed of in the aforesaid manner.            (Aparesh Kumar Singh, J.)  Ranjeet / A. Mohanty