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.
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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
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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
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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
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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
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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.
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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
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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.
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.............................J.
(R. V. Raveendran)
.............................J.
(A. K. Patnaik)
New Delhi,
August 03, 2011.
