CWPOA/5100/2019 on 9 October 2026

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWPOA No.5100 of 2019 Decided on: 09.10.2026 Rakesh Sharma

...Petitioner Versus Himachal Pradesh Electricity Board Limited and others

...Respondents

Coram

Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting? 1 For the petitioner: Mr. Raju Ram Rahi, Advocate. For the respondents: Mr.

Virender

Singh

Kanwar, Advocate. Jiya Lal Bhardwaj, Judge

(Oral)

The petitioner by way of present petition has prayed for the following substantive reliefs:- “i) That the respondents may be directed to consider the case of the applicant for promotion to the post of Junior Engineer (Telephone) as per R&P Rules (Annexure-A/9) and as per the directions issued by respondent No.4 to respondent No.3 vide letter dated 24-2-2014 (Annexure-A/15) in the interest of justice. ii) That the respondents may be directed to consider the case of the applicant for promotion to the post of Junior Engineer (Telephone) from the date his juniors have been considered/promoted with all consequential benefits such as seniority, arrears, fixation etc.”

Whether reporters of Local Papers may be allowed to see the judgment?

2. Shorn of unnecessary details, the key facts of the case are that the petitioner was engaged as Telephone Mechanic on daily wage basis as per office order dated 25.11.1991 (Annexure A/5) with the respondents-Board and thereafter as per office memorandum dated 27.03.1997 (Annexure A/7), he was offered the post of Telephone Mechanic, purely on temporary basis in the pay scale of Rs.1365-45-1500-50-2000-60-2060-70-2410/-. Later on, he was confirmed in the pay scale of Rs.1365-2410/-, as per office order dated 16.09.2002 (Annexure A/8).

3. The petitioner made a representation on 30.04.2012 (Annexure A/10) to the respondents-Board stating therein that he has not been considered for the post of Junior Engineer (Electrical) as well as Junior Engineer (Telephone), whereas his juniors have been promoted to the post of Junior Engineer (Electrical), vide order dated 28.03.2012 issued by the Chief Engineer North. Thereafter, he sent reminders on 26.10.2012 (Annexure A/11) and 11.11.2013 (Annexure A/12). Thereafter, he made another representation to the respondents-Board to incorporate his name in the seniority list of Telephone Mechanic on

30.01.2014 (Annexure A/13) and the Executive Director of the respondents-Board taking cognizance on the said representation wrote to the Chief Engineer (Op) South, HPSEBL, Shimla-4 to incorporate the name of the petitioner, being controlling authority, in the seniority list of Telephone Mechanic at an appropriate place, taking into account his initial date of joining on the post. Further he was asked to send necessary proposal regarding posting of the petitioner in Power Line Carrier Communication (in short ‘PLCC’) unit of the respondents-Board against vacancy instead of City (E) Division, Shimla. Acting on the said communication dated 09.12.2013, the revised provisional seniority list of Telephone Mechanic, as it stood on 01.05.2013 was prepared on the basis of the record and the name of the petitioner was shown below one Nisha Kant and he was assigned seniority at serial No.3(a), as evident from a perusal of Annexure A/16. Thereafter, the final seniority list of Telephone Mechanic as it stood on 01.05.2013 was circulated vide letter dated 14.10.2014 (Annexure A/18) and the name of the petitioner was shown at serial No.3(a) as earlier shown in the provisional seniority list. Since the petitioner was not considered for promotion despite assigning him seniority, he has approached this Court by way of the present petition.

4. The petitioner has challenged the action of the respondents-Board inter alia on the grounds that the action of the respondents-Board in not considering him for promotion to the post of Junior Engineer (Telephone), though his juniors were considered, is illegal inasmuch as bad in law. Once, the petitioner was fully eligible as per the Recruitment and Promotion Rules (in short ‘R&P Rules’), he ought to have been considered for promotion and thus sought a direction to the respondents-Board to promote him as per the R&P Rules from the date when his juniors have been considered/promoted with all consequential benefits such as seniority, arrears, fixation etc.

5. The respondents-Board filed reply to the petition and in the preliminary submissions averred that the petitioner was appointed to the post of Telephone Mechanic against direct recruitment quota on 27.03.1997. The petitioner is an ITI holder and as per footnote appended below the R&P Regulations of PLCC staff, the next promotion channel is to the post of Junior Engineer (Telephone). The cadre/seniority of Telephone Mechanic is maintained by the

Superintending Engineer, under whose control, the PLCC unit of the respondents-Board has been functioning from time to time and he is the sole cadre controlling authority of Telephone Mechanic in the respondents-Board and at present the same is being controlled by respondent No.4. The petitioner was left out candidate from seniority list of Telephone Mechanic since his initial joining on regular basis in the respondents-Board till the year 2013 and the petitioner never represented to any authority due to the reasons best known to him. The petitioner had represented for his seniority in January, 2014, which was considered by the competent authority and the petitioner has been assigned seniority in the grade of Telephone Mechanic at an appropriate place. It has further been averred that the seniority assigned to the petitioner has been objected/challenged by junior incumbents by filing CWP No.8554 of 2014, titled, Ram Dass & Ors. vs. HPSBL & Ors., before this Court, which is pending adjudication. No person junior to the petitioner has been promoted to the post of Junior Engineer (Telephone). However, after assigning the seniority to the petitioner at an appropriate place, the matter to fill up the vacant posts of Junior Engineer

(Telephone) is under consideration of the respondents-Board, in which the petitioner will be considered for promotion to the post of Junior Engineer (Telephone), as per his seniority in the cadre and other eligibility criteria prescribed in the relevant R&P Rules. Since no junior to the petitioner has been promoted to the post of Junior Engineer (Telephone) and as such no discrimination has been meted out to him. Further no legal or vested rights of the petitioner have been infringed or violated in any manner by the respondents- Board, so as to warrant any interference. No enforceable cause of action has accrued in favour of the petitioner and against the respondents-Board and further the petitioner has not exhausted all the remedies available to him under the relevant service Rules.

6. On merits, it has been averred that no person junior to the petitioner has been promoted and as such prayed for dismissal of the petition.

7. The petitioner filed rejoinder to the reply filed by the respondents-Board and controverted the averments made therein.

8. The petitioner has placed on record the final seniority list of Telephone Mechanics as it stood on

01.01.2007 (Annexure A/22). It has further been averred that the juniors to the petitioner have been promoted to the post of Junior Engineer (Telephone) in the year 2011 and he could not represent immediately as he met with an accident on 08.11.2011 and remained admitted till 16.06.2012. He has also placed on record the medical record to support his contention. The petitioner has specifically mentioned in the rejoinder that the respondents-Board had promoted juniors to him in the year 2011 and mentioned the names of Anil Rakesh and Khem Raj, who are at serial No.9 and 10, respectively, in the seniority list.

9. I have heard the learned counsel for the parties and also perused the record carefully.

10. It is not in dispute that the petitioner was appointed as Telephone Mechanic, vide office memorandum dated 27.03.1997 (Annexure A/7) and earlier to that he was working on daily wage basis. The respondents-Board on receipt of the representation made by the petitioner had reflected his name in the seniority list and he was shown below Nisha Kant, who was at serial No.3 and the petitioner was assigned seniority at serial No.3(a), as evident from a perusal of the final seniority list circulated vide letter dated

14.10.2014 (Annexure A/18). As per the final seniority list of the year 2007, which has been appended with the rejoinder as Annexure A/22, as it stood on 01.01.2007 (page 61), the name of Nisha Kant is at serial No.7 and the names of three persons namely Prem Lal, Anil Rakesh and Khem Raj are at serial No. 8, 9 and 10 respectively. The petitioner has mentioned in the rejoinder that the persons at serial No. 9 and 10 have been promoted in the year 2011 and there is no counter to the said fact by the respondents-Board. No doubt, in the reply to the petition filed by the respondents-Board, it has categorically been mentioned that no junior to the petitioner was ever promoted, but in case the respondents- Board has promoted the aforementioned persons, whose names have been mentioned in the rejoinder, the petitioner is entitled to the same treatment, more particularly when he has been assigned seniority in the final seniority list at serial No.3(a).

11. Learned counsel representing the petitioner submits that the writ petition filed by the persons, feeling aggrieved by the final seniority list, which finds mention in the reply, has been dismissed by this Court on 08.04.2015.

12. Learned counsel representing the respondents-

Board argued that since the petitioner has been assigned seniority and no person was promoted as contended by the learned counsel representing the petitioner, no relief can be granted to him. However, the said contention cannot be accepted in view of the fact that the petitioner in the rejoinder has specifically mentioned the names of two persons namely Anil Rakesh and Khem Raj, who were at serial No.9 and 10, respectively, in the final seniority list of Telephone Mechanics, as it stood on 01.01.2007 and promoted to the post of Junior Engineer (Telephone). Since the petitioner was assigned the seniority below Nisha Kant, who was at serial No.7, the petitioner being senior is entitled for his promotion from the date when the aforesaid persons were promoted to the post of Junior Engineer (Telephone). Had the respondents-Board not rectified the seniority or assigned the correct seniority to the petitioner and the same was done on the direction of the Court, the petitioner could have been denied the benefit of promotion and once the respondents-Board has accepted their mistake that the petitioner was not assigned the seniority, he cannot be deprived of promotion from the date when his juniors were promoted to the post of Junior Engineer (Telephone) and such action on the part of the respondents-Board is arbitrary, discriminatory and offends Articles 14 & 16 of the Constitution of India.

13. It is settled law that the junior cannot be promoted earlier to his senior, except where the senior is ineligible or his Annual Confidential Reports (in short ‘ACRs’) are not better than the juniors, if it is a selection post. In the present case, it is not the case of the respondents-Board that the ACRs of the petitioner are not better than the aforesaid two persons, who were junior and stated to be promoted in the year 2011. Therefore, in such circumstances, the petitioner is entitled to the relief of his promotion from the date when his juniors have been promoted, with all consequential benefits.

14. The plea taken by the respondents-Board that the petitioner has not exhausted all the remedies cannot be entertained keeping in mind the fact that the matter is pending before this Court for the last more than 11 years and any further relegation of the petitioner to the authorities would only amount to a denial of justice.

15. Consequently, the present petition is allowed and the respondents-Board is directed to promote the petitioner to the post of Junior Engineer (Telephone) from the date, when juniors to him namely Anil Rakesh and Khem Raj, have been promoted, with all consequential benefits

16. The petition is accordingly disposed of. No order as to costs. Pending miscellaneous application(s), if any, also stand disposed of.

th October,

(Jiya Lal Bhardwaj) (Anurag) Judge