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Clauses (2) and (3) of Regulation 17 are clear that promotion to the post of Junior Engineer from amongst the Operating Staff is to be made on the basis of selection based on a written examination followed by a practical and oral test to which only such candidates would be admitted as have qualified in the written test and the names of the candidates who qualified in the practical and written tests were to be placed in the order of merit. If the private respondents could not be promoted whereas their juniors 15 were promoted because of their merit determined in the tests as provided in Clauses (2) and (3) of Regulation 17, the promotion of such juniors cannot be held to be in any way illegal.

                                                 Non-Reportable 

             IN THE SUPREME COURT OF INDIA

              CIVIL APPELLATE JURISDICTION

             CIVIL APPEAL NO. 3448 OF 2008

Rakesh Sharma & Ors.,                                 ...     Appellants

                             Versus

Chairman/Managing Director,

Uttaranchal Power Corporation & Ors.,              ... Respondents

                              WITH

             CIVIL APPEAL NO. 3476 OF 2008,

                              WITH

  SPECIAL LEAVE PETITION (C) NOs.5278-5279 of 2009

                               AND

      SPECIAL LEAVE PETITION (C) NO.4827 of 2009

                        J U D G M E N T

A. K. PATNAIK, J.

IN CIVIL APPEAL NOs. 3448 OF 2008 AND 3476 OF 2008

     These   two   appeals   are   against   two   separate   orders 

passed   by   the   Division   Bench   of   the   High   Court   of 

Uttaranchal on 28.02.2006 and arise out of the same set of 

facts and are accordingly being disposed of by this common 

judgment.

                                         2

2.    The   facts   very   briefly   are   that   written   tests   and 

      interviews   were   conducted   in   the   years   1977,   1979 

      and   1981   for   promotion   of   Operating   Staff   (Technical 

      Grade-II)   to   the   post   of   Junior   Engineer   in   the   Uttar 

      Pradesh State Electricity Board (for short `the UPSEB') 

      under   Regulation   17   of   the   Uttar   Pradesh   State 

      Electricity         Board         Subordinate         Electrical         and 

      Mechanical Engineering Service Regulations, 1972 (for 

      short   `the   Regulations').     Mandip   Singh   and   others, 

      who had taken the written test and interview in 1977, 

      moved   the   Allahabad   High   Court   in   a   batch   of   Writ 

      Petitions   and   on   28.08.1989   a   Division   Bench   of   the 

      High Court by its order directed the UPSEB to declare 

      the select list of candidates who had appeared in 1977 

      examination   and   the   interview   and   after   exhausting 

      the same to make appointments from the select list of 

      the candidates who had appeared in the 1979 written 

      examination   and   interview.     On   24.09.1999,   the 

      UPSEB   issued   an   Office   Memo   cancelling   the 

      examination   conducted   in   1985   because   it   was   not 

      possible to promote  the Technical Cadre employees to 

                              3

the   post   of   Junior   Engineer   on   the   basis   of 

examination conducted in the year 1985 till the order 

dated   29.08.1989   of   the   Allahabad   High   Court   in   the 

case of Mandip Singh & others was complied with.  On 

09.11.2000,   the   new   State   of   Uttaranchal,   now 

renamed   as   Uttarakhand,   was   carved   out   of   the 

erstwhile   State   of   Uttar   Pradesh   and   the   Uttaranchal 

Power   Corporation   Limited   (for   short   `the   UPCL') 

became   the   successor   of   UPSEB   for   the   State   of 

Uttarakhand   and   started   functioning   with   effect   from 

01.04.2001   and   adopted   the   Regulations   for   its 

employees.     On   05.04.2003,   the   Selection   Committee 

of UPCL recommended that there was no hindrance for 

promoting the candidates selected on the basis of 1985 

examination   as   there   were   vacancies   to   the   post   of 

Junior   Engineer   after   promotion   of   the   selected 

candidates of the years 1977 and 1979.   Thereafter, a 

list   of   employees,   who   had   taken   the   examinations 

conducted by the UPSEB in the years 1977, 1979 and 

1985,   was   prepared   and   they   were   promoted   to   the 

post   of   Junior   Engineer   by   the   Board   of   UPCL   after 

                                    4

      relaxation under Regulation 31 of the Regulations.

3.    These promotions were challenged in Civil Writ Petition 

      Nos. 3 of 2003 (S/S), 979 of 2002 (S/S), 7195 of 2001 

      (S/S)   and   803   of   2003   (S/S)   in   the   High   Court   of 

      Uttaranchal.    The four  Writ  Petitions  were heard  by  a 

      learned  Single Judge and allowed by a common order 

      dated 25.10.2004.  The learned Single Judge held that 

      the promotions of employees of the cadre of Technical 

      Grade-II to the post of Junior Engineer on the basis of 

      1985   examination   cannot   be   said   to   be   legal   after 

      cancellation   of   1985   examination   by   the   Office   Memo 

      dated   24.09.1999   of   the   UPSEB,   unless   either 

      Regulation   17,   which   provides   for   promotion   on   the 

      basis   of   written   examination   and   interview,   was 

      amended   or   the   order   of   cancellation   of   the   1985 

      examination   was   recalled.     The   learned   Single   Judge 

      directed   the   UPCL   to   hold   examination   afresh 

      complying   with   the   provisions   of  Regulation   17   of  the 

      Regulations.     The   learned   Single   Judge   quashed   the 

      seniority   list   of   Junior   Engineers   dated   17.11.2001 

      which was based  on the promotions held on the basis 

                                      5

      of   1985   examination   and   further   observed   that   the 

      promotions   made   on   the   basis   of   the   examinations 

      held   in   the   years   1977   and   1979   shall   remain 

      unaffected.     The   learned   Single   Judge,   however, 

      observed   that   those   already   promoted   or   holding   the 

      charge   of   Junior   Engineers   will   not   be   disturbed   and 

      their   functioning   shall   be   subject   to   the   result   of   the 

      fresh examination to be held.  

4.      Rakesh  Sharma and others,  who had been  promoted 

      as   Junior   Engineers   on   the   basis   of   the   1985 

      examination, challenged the order of the learned Single 

      Judge   before   the   Division   Bench   of  the   High   Court   of 

      Uttaranchal in Special Appeal Nos. 96 of 2004 and 103 

      of   2004   but   the   Division   Bench   of   the   High   Court 

      dismissed   the   Special   Appeals   by   order   dated 

      28.02.2006.     The   Division   Bench   agreed   with   the 

      reasons   given   by   the   learned   Single   Judge,   but 

      observed   that   promotees   on   the   basis   of   the   1985 

      examination   shall   be   treated   as   working   on  ad   hoc 

      promotion and shall be allowed to continue subject to 

      their   appearance   and passing  in  the  examination  and 

                                     6

      the  interview  in  accordance   with   Regulation  17  of  the 

      Regulations and those selected afresh will be treated to 

      have been appointed from the date of promotion.   The 

      UPCL also filed Special Appeal Nos.105, 107, 112 and 

      113   of   2008   against   the   order   dated   28.02.2006   and 

      by   a   separate   order   dated   28.02.2006   the   Division 

      Bench of the High Court sustained the order of learned 

      Single Judge and disposed of the Special Appeals with 

      the   direction   that   those   promotees,   who   had   retired, 

      shall not be affected by the order of the learned Single 

      Judge. 

5.    Mr.   P.   P.   Rao,   learned   counsel   for   the   appellants   in 

      Civil   Appeal   No.3476   of   2008,   and   Mr.   D.   K.   Garg, 

      leaned   counsel   for   the   appellants   in   Civil   Appeal 

      No.3448   of   2008,   submitted   that   the   selection   of 

      candidates   for   promotion   to   the   post   of   Junior 

      Engineer   made   on   the   basis   of   written   examination 

      and   interview   held   in   1985   was   in   accordance   with 

      Regulation   17   of   the   Regulations   and   the   High   Court 

      has not found the selection of candidates to be illegal. 

      They  submitted that  the  selection of candidates  made 

                              7

in   the   year   1985   was   cancelled   by   the   Office   Order 

dated   24.09.1999   of   the   UPSEB   because   if   the 

directions of the Division Bench of the Allahabad High 

Court in the case of  Mandip Singh & Ors.  v.  UPSEB &  

Ors.  to   first   appoint   the   candidates   selected   on   the 

basis of examinations and interviews held in 1977 and 

1979, had to be complied with, the candidates selected 

on the basis of the examination  and interview held  in 

1985 could not be appointed.  Learned counsel for the 

appellants further  submitted  that the High  Court was 

under   an   erroneous   impression   that   the   Office   Order 

dated   24.09.1999   cancelling   the   examination   of   1985 

had not been recalled.  They referred to the minutes of 

the   14th  Board   of   Directors'   Meeting   of   UPCL   held   on 

26.12.2003 and 24.01.2004 to show that the Board of 

UPCL   had   resolved   that   the   employees   who   have 

qualified   in   the   1985   examination   and   had   been 

absorbed in the services of the UPCL would be eligible 

to   be   promoted   to   the   post   of   Junior   Engineer. 

Learned counsel for the appellants submitted that the 

Board   of   UPCL,   therefore,   had   in   effect   recalled   the 

                                   8

      cancellation of the 1985 examination for promotion to 

      the   post   of   Junior   Engineer   and,   therefore,   the 

      candidates, who have been selected on the basis of the 

      1985 examination were promoted to the post of Junior 

      Engineer   in   accordance   with   Regulation   17   of   the 

      Regulations   and   their   appointments   could   not   have 

      been declared to be invalid by the High Court.

6.    Mr.   B.   Datta,   learned   counsel   for   the   private 

      respondents   in   both   the   appeals,   on   the   other   hand, 

      submitted that the Board of the UPCL has committed a 

      breach of the directions of the judgment of the Division 

      Bench   of   the   Allahabad   High   Court   in   the   case   of 

      Mandip Singh & Ors. v. UPSEB & Ors. and has resolved 

      in its meetings held on 26.12.2003 and 02.01.2004 to 

      promote   the   employees   who   had   qualified   in   1985 

      examination.     He   submitted   that   the   UPCL   should 

      have   held   another   written   examination   and   interview 

      in   accordance   with   Regulation   17   of   the   Regulations. 

      He   also   submitted   that   the   private   respondents   were 

      not   promoted   even   though   they   qualified   in   the   oral 

      tests   and   instead   their   juniors   in   the   cadre   of 

                                        9

      Technical   Grade-II   were   promoted   on   the   basis   of   the 

      1985   examination,   which   have   been   held   to   be   illegal 

      by the High Court.

7.    We   have   considered   the   submissions   of   the   learned 

      counsel for the parties and we find that in the batch of 

      Writ   Petitions   in   the   case   of  Mandip   Singh   &   Ors.  v. 

      UPSEB   &   Ors.,  the   Division   Bench   of   the   Allahabad 

      High   Court   in   its   judgment   dated   29.08.1989   did   not 

      hold   that   the   selection   of   candidates   made   for 

      promotion   on   the   basis   of   1985   examination   was   in 

      contravention   of   Regulation   17   of   the   Regulations   or 

      was   in   any   way   illegal.     The   High   Court   only 

      considered  the   grievances   of   the   candidates,   who   had 

      appeared   in   the   1977   and   1979   examinations   and 

      issued writs of mandamus granting some reliefs.  Para 

      14   of   the   judgment   of   the   Division   Bench   in  Mandip  

      Singh & Ors. v. UPSEB & Ors. is quoted hereinbelow: 

         "In the result, the writ petitions are allowed. 

         A   mandamus   is   issued   directly   to   the   U.P. 

         State  Electricity  Board  to declare the list  of 

         the         candidates         appeared         in         1977 

         examination and after exhausting the same 

         to   make   appointments   from   the   list   of   the 

         candidates   appeared   in   1979   examination. 

         The months from the date of production of a 

                                           10

         copy of  this order.   A further  mandamus is 

         issued   directing   the   UP   State   Electricity 

         Board to declare the list of temporary Junior 

         Engineers             and         thereafter          to         make 

         appointments   from   that   list   in   accordance 

         with law.  A mandamus is also issued to the 

         U.P.   State   Electricity   Board   to   reduce   the 

         marks   for   interview   and   oral   test   and   to 

         make   selection   accordingly   and   this   shall 

         also   be   done   within   two   months   from   the 

         date   of   production   of   a   copy   of   this   order. 

         The   U.P.   State   Electricity   Board   is   also 

         directed   to   relax   the   qualifications   only   in 

         accordance   with   law   and   taking   into 

         consideration the Regulation 31."

8.    We   further   find   that   although   in   the   judgment   in 

      Mandip   Singh   &   Ors.  v.  UPSEB   &   Ors.  the   Division 

      Bench of the Allahabad High Court did not declare the 

      selections made on the basis of 1985 examination and 

      interview to be in any way illegal, the UPSEB cancelled 

      the selections by Office Order dated 24.09.1999, which 

      is quoted hereibelow :

              "Uttar Pradesh State Electricity Board

         No.3726(   )-AR-09(Ga)/Sachiv-99-20 F90G/88 (TC)

         Dated September 24, 1999

                                     Office Order

         As   per   the   note   dated   17.12.1996   made   by 

         U.P.         State          Power            Corporation               the 

         examinations held in the year 1985 could not 

                                          11

                be   given   effect.     Unless   the   judgment   and 

                order   dated   29.08.1989   passed   by   Hon'ble 

                High Court of Allahabad (Allahabad Bench) in 

                Writ   Petition   No.   4858/85   entitled   Mandeep 

                Singh   vs.   UPSEB   is   not   complied   with. 

                Besides   this,   100   marks   were   fixed   for   viva 

                voce.  After having kept the recommendations 

                made   by   Power   Service   Commission   on   the 

                aforesaid   point   the   examinations   held   in   the 

                year   1985   for   the   promotion   of   Technical 

                Grade-II   on   the   post   of   Junior   Engineer   are 

                hereby cancelled.

                                                        Sd/- Illegible"

9.                  It   will   be   clear   from   the   Office   Order   dated 

           24.09.1999   that   the   only   reason   given   by   the   UPSEB 

           to   cancel   the   selection   on   the   basis   of   the   1985 

           examination   for   promotion   of   Technical   Grade-II   staff 

           to the post of  Junior  Engineer is that  if  the judgment 

           of the High Court in the case of Mandip Singh & Ors. v. 

           UPSEB   &   Ors.  was   to   be   complied   with,   the   selection 

           made   on   the   basis   of   1985   examination   could   not   be 

           given effect to because there would be no vacancies in 

           the   post   of   Junior   Engineer   in   which   the   selected 

           candidates of 1985 could be accommodated.

10.              We   also   find   from   the   records   that   after   the   new 

           State   of   Uttarakhand   was   formed   and   the   UPCL 

                                      12

       became   the   successor   of   the   UPSEB   for   the   State   of 

       Uttarakhand,   several   posts   of   Junior   Engineers   were 

       required   to   be   filled   up.     Therefore,   the   Board   of   the 

       UPCL   deliberated   over   the   matter   afresh   in   its 

       Meetings   held   on   26.12.2003   and   02.01.2004   and 

       resolved as follows :

          "As   the   erstwhile   U.P.   State   Electricity   Board 

          did   not   take   cognizance   of   the   examination 

          conducted in 1985 for promotion to the post of 

          Junior   Engineer   from   Operating   Staff   as   per 

          the   Hon'ble   High   Court   of   Allahabad   decision 

          which   stated   that   first   the   list   of   candidates 

          appeared in 1977 examinations be exhausted, 

          and   not   for   any   other   reason,   the   employees 

          qualified   the   1985   Examination   and   absorbed 

          in   the   Corporation   services   would   be   eligible 

          for promotion to the post of Junior Engineer."

11.        The   facts   discussed   above   clearly   establish   that   the 

       selection   of   candidates   on   the   basis   of   the   1985 

       examination   and   interview   have   not   been   held   by   the 

       Allahabad High Court to be illegal in the batch of Writ 

       Petitions in the case of  Mandip Singh & Ors.  v.  UPSEB  

       &   Ors.    and   the   UPSEB   had   also   not   cancelled   the 

       selection   of   candidates   for   promotion   on   the   basis   of 

       1985 examination on the ground that the selection was 

       in contravention of Regulation 17 of the Regulations or 

                               13

was   in   any   other   way   irregular   and   the   only   reason 

given   by   the   UPSEB   in   its   Office   Order   dated 

24.09.1999 for cancelling the selection on the basis of 

1985   examination   was   that   the   selection   cannot   be 

given effect to without complying with the directions of 

the  High  Court   in  the  case   of  Mandip  Singh  &  Ors.  v. 

UPSEB & Ors.  If the successor of UPSEB, namely, the 

UPCL,   found   that   a   number   of   posts   of   Junior 

Engineers had to be filled up and this could be done by 

promoting   the   candidates,   who   had   qualified   in   the 

1985 examination and  who had  been absorbed in the 

services   of   the   UPCL   and   resolved   accordingly,   the 

High Court could not have held in the impugned order 

that  the  promotions   of  the   candidates   on the  basis   of 

1985   examination   were   contrary   to   Regulation   17   of 

the   Regulations   or   in   any   way   illegal.     For   these   very 

reasons,   we   also   cannot   accept   the   contention   of   the 

learned counsel for the respondents that the Board of 

UPCL has committed a breach of the directions in the 

judgment of the Allahabad High Court in Mandip Singh  

& Ors. v. UPSEB & Ors.  

                                      14

12.      We also do not find any merit in the grievances of the 

       private   respondents   that   they   were   not   promoted   but 

       their juniors in Technical Grade-II have been promoted 

       on the basis of the 1985 examination.  Clauses (2) and 

       (3)   of   Regulation   17   of   the   Regulations     are   quoted 

       hereinbelow: 

       "(2) The selection shall be based on a written test 

       followed by a practical and oral test to which only 

       such   candidates   would   be   admitted   as   have 

       qualified in the written test.

       (3)   The   names   of   the   candidates   who   qualify   in 

       the practical and oral test shall be placed in a list 

       in their order of merit.   For computing the merit 

       of a candidate the marks obtained by him both in 

       the   written   test   and   the   practical   and   oral   test 

       shall be added."

Thus,   Clauses   (2)   and   (3)   of   Regulation   17   are   clear   that 

promotion to the post of Junior Engineer from amongst the 

Operating Staff is to be made on the basis of selection based 

on   a   written   examination   followed   by   a   practical   and   oral 

test   to   which   only   such   candidates   would   be   admitted   as 

have   qualified   in   the   written   test   and   the   names   of   the 

candidates   who   qualified   in   the   practical   and   written   tests 

were   to   be   placed   in   the   order   of   merit.     If   the   private 

respondents   could   not   be   promoted   whereas   their   juniors 

                                              15

were   promoted   because   of   their   merit   determined   in   the 

tests as provided in Clauses (2) and (3) of Regulation 17, the 

promotion of such juniors cannot be held to be in any way 

illegal. 

13.                For   the   aforesaid   reasons,   the   appeals   are   allowed 

             and the judgments of the learned Single Judge in Writ 

             Petition Nos. 3 of 2003 (S/S), 979 of 2002 (S/S), 7195 

             of 2001 (S/S) and 803 of 2003 (S/S) and the impugned 

             judgment of the Division Bench of the High Court are 

             set aside.  There shall be no order as to costs. 

IN

       SPECIA
                    L LEAVE PETITION (C) NOs.5278-5279 of 2009 

AND 4827 of 2009

             These   Special   Leave   Petitions   were   listed   for   hearing 

along with Civil Appeal Nos.3448 of 2008 and 3476 of 2008.

2.           At   the   time   of   hearing   of   the   Civil   Appeals,   Mr.   D.   K. 

Garg, learned counsel for the petitioners, submitted that the 

Special   Leave   Petitions   be   listed   after   the   disposal   of   the 

Civil Appeals.

3.           We   have   today   disposed   of   Civil   Appeal   Nos.3448   of 

2008 and 3476 of 2008.  These Special Leave Petitions may 

now be listed for hearing. 

                                         16

                                                      .............................J.

                                                           (R. V. Raveendran)

                                                      .............................J.

                                                           (A. K. Patnaik)

New Delhi,

August 03, 2011.

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