INDERJIT SINGH SODHI AND OTHERS versus THE CHAIRMAN, PUNJAB STATE ELECTRICITY BOARD AND ANOTHER on 3 December 2020

[2020] 11 S.C.R. 966

INDERJIT SINGH SODHI AND OTHERS

v.

THE CHAIRMAN, PUNJAB STATE ELECTRICITY BOARDAND ANOTHER

(Civil Appeal No. 3837 of 2020)

DECEMBER 03, 2020

[L. NAGESWARA RAO, HEMANT GUPTA AND

AJAY RASTOGI, JJ.]

Punjab State Electricity Board Service of Engineers (Civil)Regulations, 1965 – Appellants, promoted from the post of JuniorEngineer, claimed time bound promotional scale while working asAssistant Engineers – Allowed by Single Judge – Order set aside –On appeal, held: Claim of the appellants was for time boundpromotional scale after completion of 9-16 years’ service only atpar with two juniors to them in the category of Assistant Engineer(Civil) who were appointed by way of direct recruitment – Appellantscategorically admitted that the said persons were appointed by wayof direct recruitment – While appellants were promoted to the postof Assistant Engineer in their term as per their seniority in the cadreof Junior Engineer – Promotee employees are entitled to time boundpromotion scale in terms of the First Circular only – Second Circularwhich was issued to grant time bound promotional scale to directlyrecruited Assistant Engineers would not apply to the appellants asthey are instead covered by First Circular – No error in the orderpassed by High Court.

Dismissing the appeals, the Court

HELD: 1.1 The appellants were promoted to the post ofAssistant Engineers under Regulation 7(a)(ii) read withRegulation 10 of the Civil Regulations. Shri Kirpal Singh Mangatand Shri Raj Kumar Garg, who were junior to the appellants inthe category of Assistant Engineer (Civil) were appointed by wayof direct recruitment to such posts on the basis of theirqualifications under Regulation 7(a)(i) of the Civil Regulations.Two sets of circulars were issued by the Punjab State Electricity INDERJIT SINGH SODHI v. THE CHAIRMAN, PUNJAB STATEELECTRICITY BOARD & ANOTHER

INDERJIT SINGH SODHI v. THE CHAIRMAN, PUNJAB STATEELECTRICITY BOARD & ANOTHER

Board for grant of time bound promotional scales w.e.f. 1.1.1986.The circular dated 23.04.1990 is the First Circular. Circular dated24.05.1990 is the Second Circular. The Second Circular was issuedto grant time bound promotional scale to directly recruitedAssistant Engineers. However, the promoted employees weresaid to be entitled to time bound promotional scale as per theFirst Circular itself. The said Second Circular was issued toequally apply to the Civil and Electrical Branch of the Board.The Note to the said Circular mentions that the Circular has beenissued under the Civil and Electrical Regulations. The claim ofthe appellants was based upon the First Circular for 9/16 years’time bound promotion scale though the appellants have referredto the Second Circular in para 18 of the writ petition. The SecondCircular was not even annexed with the writ petition, howeverthe same has been annexed by two other appellants. There is nochallenge to the legality and validity of the Second Circular. Stillfurther, the appellants have never claimed that there should beequal pay being members of the same cadre. The claim of theappellants was for time bound promotional scale after completionof 9-16 years’ service only at par with Kirpal Singh Mangat andRaj Kumar Garg. The appellants were promoted within 9 or 16years from their initial appointment, therefore, they are notentitled to time bound promotional scale. Kirpal Singh Mangatand Raj Kumar Garg were appointed by direct recruitment asAssistant Engineer (Civil), whereas the appellants have beenpromoted to the post of Assistant Engineer (Civil). Hence, theSecond Circular would not be applicable to them. The promoteeemployees are entitled to time bound promotion scale in termsof the First Circular only. Hence, the appellants are not entitledto claim any parity with Kirpal Singh Mangat and Raj Kumar Garg.Some other employees have been granted benefit by virtue ofthe orders passed by the High Court. However, the principlelaid down in the aforesaid judgments run counter to thesubsequent judgment of this Court in Krishan Kumar Vij. TheSpecial Leave Petition in many of these cases were dismissedbut such dismissals would not be a binding precedent for thisCourt. The dismissal of special leave petitions is of noconsequence on the question of law. [Paras 5-9, 16-18][971-F;972-A, G; 976-H; 977-A-B; 979-B-H]

A1.2 The appellants being only Diploma holders werepromoted under Regulation 7(a)(ii) read with Regulation 10.4 ofthe Regulations. They had the opportunity to compete for directrecruitment after 12 years of service, which they never availedor remained unsuccessful. The appellants would have beenentitled to claim parity with Kripal Singh Mangat and Raj KumarBGarg only if they were qualified and promoted against the postsreserved for those employees by direct recruitment.Consequently, the appellants cannot claim time bound promotionafter completion of 9/16 years at par with Kirpal Singh Mangatand Raj Kumar Garg. It has been categorically admitted by theCappellants that the said persons were appointed by way of directrecruitment under Regulation 7(a)(i) as provided underRegulation 9 of the Regulations. The appellants, on the contrary,have been promoted to the post of Assistant Engineer in theirterm as per their seniority in the cadre of Junior Engineer. Thus,Second Circular which would be applicable to Kirpal Singh MangatDand Raj Kumar Garg would not apply to the appellants as theyare instead covered by the First Circular. In terms of the Firstand Second Circulars, the employees of the Board who have notearned promotion within 9 years from their initial recruitmentare entitled to time bound promotional scale. If they have beenEpromoted within the initial 9 years, the next promotion cannot begranted to them after completion of 3 years. [Paras 20-22][981-F-H; 982-A-D]

1.3 Therefore, the High Court in the impugned judgmentwas correct in law holding that in view of the judgment in KrishanFKumar Vij, the appellants are not entitled to time boundpromotional scale on the basis of parity in the other cases. Inview of the said facts, no error is found in the order passed by theHigh Court which may warrant any interference of this Court.[Paras 23, 25][982-D-F]

Bhakra Beas Management Board v. Rajinder SinghGPatpatia and Anr. (2002) 1 Recent Service Judgments32; Krishan Kumar Vij v. State of Punjab (Writ PetitionNo. 19306 of 2003) – referred to.

Bhakra Beas Management Board v. Krishan Kumar Vij& Anr. (2010) 8 SCC 701 [2010] 10 SCR 462;H

Kunhayammed & Ors v. State Of Kerala (2000) 6 SCC359:[2000] 1 Suppl. SCR 538 – relied on.

Case Law Reference

[2010] 10 SCR 462relied onPara 12[2000] 1 Suppl. SCR 538relied onPara 18

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3837of 2020.

From the Judgment and Order dated 09.04.2014 of the High Courtof Punjab & Haryana at Chandigarh in LPA No. 1085 of 2011.

With

Civil Appeal Nos. 3835 & 3836 of 2020.

P.S. Patwalia, Sr. Adv., B. K. Satija, Ms. Neha Mehta, HimanshuSatija, Anil Mittal, Vibhuti Sushant Gupta, Ram Naresh Yadav, SatinderS. Gulati, Mrs. Priya Puri, Ms. Rashmi Sachdeva, Vibhav Srivastava,Ms. Yati Sharma, Advs. for the appearing parties.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The present appeals are directed against a common order ofthe Punjab and Haryana High Court dated 09.04.2014 whereby the intra-Court appeals filed by the Punjab State Electricity Board were allowedand the order of Learned Single Judge, allowing the writ petitions for thegrant of 9/16 years’ time bound revised promotional scale to the appellantswas set aside.

2. The facts of the appeals are similar but for the sake of reference,facts are taken from the appeal preferred by Inderjit Singh Sodhi andothers. The appellants herein have claimed time bound promotional scalewhile working as Assistant Engineers. They were promoted to the saidpost from the post of Junior Engineer. The services of the appellants aregoverned by the Punjab State Electricity Board Service of Engineers(Civil) Regulations, 1965[1].

3. The post of Assistant Engineer as per Regulation 7 is requiredto be filled up (1) by direct recruitment in terms of Regulation 9; (2) bypromotion in terms of Regulation 10 or (3) by transfer of an officeralready in services of a Government or another Government or 1 for short, ‘Civil Regulations’

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AUndertaking of the Government. The qualification required for directrecruitment under Regulation 9 is BE in Civil Engineering from arecognised institution or university. The Regulations further permit servingSection Officers who possess three- or four-years diploma in CivilEngineering and minimum 12 years qualifying service to apply for thepost by way of direct recruitment. Regulation 10, on the other hand,Bprovides for the promotion of the candidates with not less than 10 years’experience subject to the condition that their number do not exceed 30per cent of the total number of the cadre posts of the Assistant Engineers.

4. The relevant extract of the Civil Regulations read as under:- C“7. Recruitment to the Service shall be made by the AppointmentAuthority by any of the methods indicated below as may bedetermined in each case:- (a) In case of posts of Asstt. Engineers.

(i) By direct appointment as provided in Regulation 9D

(ii) By Promotion as provided in Regulation 10

(iii) By transfer of an officer already in the service of a Governmentor any other State Electricity Board or an Undertaking ofGovernment.

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QUALIFICATION FOR DIRECT APPOINTMENT

9. No Person shall be appointed as AE (Civil) on training bydirect appointment unless he has passed BE in Civil EngineeringFfrom recognised Institution/Univ.(Equivalency as notified by theInstitution of Engineers Association of Indian Universities/Pbi.University/Pbi.Univ. Calendar.)

PSEB Serving sectional officers (Civil) who possess ¾ yearsdiploma in Civil Engineering & have minimum 12 years qualifyingGservice as Sectional Officer (Civil) with satisfactory service recordshall also be eligible to apply for the post.

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QUALIFICATION FOR APPOIONTMENT BY

PROMOTION

10.1 (a) Sectional Officers (Civil) under the Board having theirrecord above average and with not less than 10 years experienceto their credit shall be eligible for appointment to the service asAssistant Engineer, subject to the condition that their number doesnot exceed 20% of the total number of cadre posts of AssistantEngineers excluding the posts with B.D.M.B./B.C.B. anddeputation posts or posts where PSEB cannot directly post itsofficers i.e. Hydel/Design Directorate, Chandigarh.

(b) Over and above this reservation, Sectional Officers (Civil)with requisite service/experience may be considered for additionalvacancies of Assistant Engineers for field work without any fixedpercentage.

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3. Persons appointed by promotion as Assistant Engineers underSub Regulation (1) and (2) above shall not be eligible for promotionto the posts of Assistant Executive Engineer and above, unlessthey possess the qualification prescribed in Regulation-9.

4. 9% of the cadre posts of Assistant Engineers (Civil) shall bereserved for Departmental employees (Technical Subordinatesand Drawing Staff) who while in the service of the Board havequalified Section (A) and (B) of A.M.I.E. Examination and havecompleted three years service. (This shall take effect from 15thApril, 1983).”

5. The appellants were promoted to the post of Assistant Engineersunder Regulation 7(a)(ii) read with Regulation 10 of the Civil Regulationsas stated in para 4 of the writ petition which reads as under:

“4. That the petitioners were appointed as AE Class II service byway of promotion under Regulation 7(a)(ii) i.e. by way ofpromotion out of Junior Engineers Grade I Service: whereas KirpalSingh Mangat and Raj Kumar Garg have been appointed underRegulation 7(a)(i) i.e. by way of direct recruitment provided underRegulation 9 of the PSEB Regulations 1965.”

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A6. Shri Kirpal Singh Mangat and Shri Raj Kumar Garg, whowere junior to the appellants in the category of Assistant Engineer (Civil)were appointed by way of direct recruitment to such posts on the basisof their qualifications under Regulation 7(a)(i) of the Civil Regulations.A representation was submitted by the appellants claiming parity withKirpal Singh and Raj Kumar Garg with regard to the time boundBpromotional scale. Such representation was decided on 06.11.2012,wherein, it was inter alia said to the following effect:

“And whereas, Er. Inderjit Singh Sodhi, AEE (Retd.) was promotedfrom the post of S.O./Civil to AE/Civil w.e.f. 19.8.77 as per avenueof his promotion in terms of Reg.7 read with Reg. 10 of PSEBCService of Engineers (Civil) Regulations, 1965 and furtherpromoted as AEE(Civil) w.e.f. 22.3.85. Whereas Er. Kirpal SinghMangat and Er. Raj Kumar Garg both AEE now senior ExecutiveEngineer (Civil) while working as S.O./ Civil applied for the postof AE/Civil under direct recruitment category and were selectedDfor the post of AE/Civil and given fresh appointment letter.

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And whereas, from the record it is evidence that interese thesepersons named Er. Inderjit Singh Sodhi, Er. Kirpal Singh and Er.Raj Kumar Garg came into service on 3.1.62, 12.9.64. 14.10.64Edates and all of them got an opportunity to go to the directrecruitment quota of Assistant Engineers. The Board advertisedthe posts for Assistant Engineers/Civil to be filled through directrecruitment in which the existing Board employees can also applyand in that contest Er. K. S. Mangat and Er. Raj Kumar Garg hadFalso applied and got selected as Assistant Engineer/Civil and weregiven the new appointment letters from the effective dates andthey continue to serve as per the Board regulations framed fromtime to time.

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G7. Two sets of circulars were issued by the Punjab State ElectricityBoard for grant of time bound promotional scales w.e.f. 1.1.1986. Therelevant extract from the circular dated 23.04.1990[2] reads thus:

“Features of the Scheme

1. The benefit of first time bound placement into promotional/devised promotional scale, as determined and notified on thebasis of principles, enunciated above, would become availableto an employee on completion of 9 (Nine) years of regularservice on a post and the second time bound promotional/devised promotional scale would become available aftercompletion of 16 (sixteen) years of service. If an employeegets normal promotion to the next higher post beforecompletion of 9 years service from the date of directrecruitment then he will not be given first time boundpromotional/devised promotional scale. He will be eligible toget second time bound promotional/devised promotional scaleafter the completion of 16 years of service counted from thedate of direct recruitment provided he does not earn secondnormal promotion before the completion of the above said16 years of service. Further an employee placed into thefirst promotional/devised promotional scale on account ofhis length of service will not be placed into the secondpromotional/devised promotional scale before completion ofatleast three years from the date of his placement into thefirst promotional/devised promotional scale.

For example an employee who has completed 17 years ofservice in an inducting post and was not promoted upto1.1.1986, will be allowed 1st time bound promotional/devisedpromotional scale on 1.1.1986 and the 2nd time boundpromotional/devised promotional scale will be admissible on1.1.1989 i.e. after completion of three years service in thefirst time bound promotional/devised promotional scale.

2. At the time of placement in the time bound promotional/devised promotional scale to each employee in any cadrethe prescribed period will be counted from the date ofcommencement of service to the lowest post on whichregular appointment has been made through direct recruitmentin the concerned cadre.

3. At the time of placement in the time bound promotional/devised promotional scale, the employee will be allowedpromotional increment(s), as are admissible on promotion

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974SUPREME COURT REPORTS

Aunder the provisions of Regulations 8 of PSEB (Revised Pay)Regulations, 1988 and as amended from time to time.

4. If an employee already in the service of the Board is directlyappointed to a higher post through open selection then forthe purpose of grant of time bound promotional/devisedBpromotional scale in that cadre counting of the period ofservice will commence from the date of joining the abovepost by direct recruitment.

5. The Board shall draw up schedule (s) indicating the lowestpost(s) for direct recruitment in respect of various cadresCfor the purpose of this order, separately.

6. In cases, an employee has already availed of the benefit ofplacement to the time bound promotional/devised promotionalscale(s) and is promoted to the next higher post, his paywould be fixed at the next stage in the same scale. In caseDhe is promoted to a post which is lower than the scale inwhich he has already been placed on time bound promotional/devised promotional scale, he will not be entitled to anyincrement and continue to draw the pay of the scale in whichhe has already been placed.

E7.In case of employees who do not fulfill the qualification/passing of examination essential for their promotion to thenext higher post, they shall also be place into the time boundpromotional/devised promotional scale to be specified by theBoard in the schedule as referred to in para 5 (above).

F8.No anomaly of pay would be claimed by any senior employeeviz-a-viz any other employee merely on the strength of lattergetting his placement into the time bound promotional/devisedpromotional scale.

9. The authority competent to grant time bound promotional/devised promotional scales after 9 years and 16 years serviceGshall be the promoting authority of the employees concerned.

2. The Punjab State Elecy. Board has further decided to allowbenefit of promotional increment(s) to an employee on completionof 23 years of regular service provided:- H

INDERJIT SINGH SODHI v. THE CHAIRMAN, PUNJAB STATE975ELECTRICITY BOARD & ANOTHER [HEMANT GUPTA, J.](i)He has not been benefited by the scheme of 9/16 years timeAbound promotional scale.

(ii) He has not earned three regular promotions in his career.

(iii) He has not earned third promotion in his regular servicebetween 16th and 23rd years of service.

B

(iv) The increments referred to in para-2 above are in the natureof advance promotional benefit to be absorbed in next regularpromotion.”

8. Another Circular dated 24.05.1990[3] is part of the record of theother two appeals preferred by Surinder Kumar Pathak and R.K. Aroraand another. It reads as under:- C

“In supersession of office order no. 195/PRC/Fin-1988 dated31.3.1990, the Punjab State Electricity Board is pleased to orderthat an Assistant Engineer/Assistant Executive Engineer wouldbe placed in the next higher scale of Rs. 3000-5000 and allowed aminimum pay of Rs. 3500/- in the 10th year i.e. on completion of9 (nine) years regular service as Assistant Engineer/AssistantExecutive Engineer. Similarly, he would be placed in the next higherscale of Rs. 4500-6300 in the 17th (Seventeenth) year i.e. oncompletion of 16 (sixteen) years regular service as AssistantEngineer/Assistant Executive Engineer.

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The next higher scale will thus be allowed as under:- F

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3 hereinafter referred to as “Second Circular”.

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A2. The above higher scales will only be available to the directlyrecruited Asstt. Engineers as per Regulation 7-a(i) read withRegulation-9 of PSEB, Service of Engineers (Electrical)Regulations-1965/ 7-a (i) read with Regulation 9 of PSEB ServiceEngineers (Civil) Regulations-1965. The cases of AssistantEngineers appointed by promotion as per provisions of Regulation-B7-a(ii) read with Regulation-10 of the Regulations ibid will begoverned by guidelines circulated vide Secretary/Finance OfficeOrder No. 197/PRC/Fin-1988 dated 23.4.1990.

Note:- The departmental employees (Technical) Subordinates andDrawing Staff) who while in service of the Board have beenCpromoted to the post of AE (Electrical)/ (Civil) against quotareserved for promotion from amongst them under Regulation 7-a(ii) read with Regulation-10(7) of the PSEB Service of Engineers(Electrical) Regulations-1965/ Regulation 7-a(ii) read withRegulation 10(4) of the PSEB Service of Engineers (Civil)DRegulations-1965 shall be deemed to have been appointed asAsstt. Engineers like the Asstt. Engineers appointed through directrecruitment under Regulation 7-a(i) read with Regulation-9 of theService of Engineers (Electrical)/

Regulation 7-a(i) read with Regulation -9 of the service ofEEngineers (Civil) ibid for the purpose of grant of above next higherscales after 9-16 years of regular service as Assistant Engineer/Assistant Executive Engineer/ Executive Engineer/Xen, prescribedperiod to be counted from the date of joining the post of Asstt.Engineer on regular basis. Similarly Graduates in Electrical/Mechanical Engineering/ Civil EngineeringAMIE qualified/FAMIE qualified hands who possess this qualification before joiningthe service of the Board and subsequently promoted as AssistantEngineers against quota reserved for promotion from amongstthem in terms of provisions of Regulation 7-a(ii) read withRegulation 10(9) of Service of Engineers (Electrical) Regulations-G1965/

Regulation 7-a(ii) read with Regulation 10(6) of Service ofEngineers (Civil) Regulations-1965 will be treated likewise.”

9. The Second Circular was thus issued to grant time boundpromotional scale to directly recruited Assistant Engineers. However,H

the promoted employees were said to be entitled to time boundpromotional scale as per the First Circular itself. The said Second Circularwas issued to equally apply to the Civil and Electrical Branch of theBoard. The Note to the said Circular mentions that the Circular hasbeen issued under the Civil and Electrical Regulations. For the purposeof better understanding, the format has been changed to put theRegulations in one line as an alternative Regulations.

10. Similar claim for time bound promotional scale was raised byone Rajinder Singh Patpatia, a promoted Assistant Engineer workingwith Bhakra Beas Management Board.The writ petition filed by himbefore the Punjab and Haryana High Court was allowed by the learnedSingle Judge on 26.08.1999 and the intra-Court Appeal against the samewas dismissed on 13.08.2001 vide judgment reported as Bhakra BeasManagement Board v. Rajinder Singh Patpatia and Anr[4]. The SpecialLeave Petition against such order of the Division Bench was alsodismissed on 15.2.2002.

11. Another writ petition was filed by one named T. R. Bansal,junior to the appellants as Assistant Engineer (Civil) which was allowedby the Division Bench of the High Court on 1.02.2005. The SpecialLeave Petition against the said order was dismissed by this Court on15.07.2010. Subsequently, Writ Petition no. 468 of 2004 preferred byT.S. Behl and others was also allowed on 10.02.2006 by the DivisionBench of the Punjab and Haryana High Court.

12. A Writ Petition No. 19306 of 2003, Krishan Kumar Vij v.State of Punjab was filed before the Punjab and Haryana High Courtclaiming time bound promotional scale. The writ petitioners wereemployed with Bhakra Beas Management Board. The said Board hadadopted the Circular issued by Punjab State Electricity Board on26.6.1992. The writ petition was allowed by the Division Bench of theHigh Court on 6.12.2004. The order of the High Court was howeverlater set aside by this Court in a judgment reported as Bhakra BeasManagement Board v. Krishan Kumar Vij & Anr[5].

13. Mr. Patwalia, learned Senior Counsel for the appellants arguedthat once the appellants have been promoted to the post of AssistantEngineer, at par with other juniors who may have been appointed by 4 (2002) 1 Recent Service Judgments 32

5 (2010) 8 SCC 701

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Away of direct recruitment, there cannot be any discrimination in the matterof pay scale and that they are entitled to equal treatment in the matter ofpay. It was pointed out that the appellants were appointed as JuniorEngineers in 1961-62 and were promoted after 14 years to the post ofAssistant Engineers. In terms of Regulation 7 of Civil Regulations, theappellants possessed the qualifications for direct recruitment. Hence,Bthe appellants could not be treated differently in comparison to the directlyappointed Assistant Engineers. The directly recruited Assistant Engineerswere granted time bound promotional scale, whereas, the appellants whowere senior to them have been denied such benefits. It was thus contendedthat it is a blatant arbitrary and discriminatory act of the respondentsCwhich was unsustainable in law. It was further argued that there was aconsistent view of the High Court in the cases of T. R. Bansal and T. S.Behl, who were similarly placed promoted Assistant Engineers with thePunjab State Electricity Board. They were found to be entitled to timebound promotional scale w.e.f. 1.01.1986 vide the orders of the HighCourt in separate writ petitions filed by them. However, while dismissingDthe case of the appellants, the High Court relied upon a judgment of thisCourt in Krishan Kumar Vij which dealt with the claim of an AssistantEngineer in the Bhakra Beas Management Board, thus the judgmentrelied on was not on similar facts.

14. Mr. Patwalia raised another argument in the written submissionsEthat in terms of the Second Circular, the promotee employees are to beconsidered for time bound promotional scale in terms of First Circular.According to the Clause 2(iii) of the First Circular, an employee oncompletion of 23 years’ service is also entitled to the benefits of the saidScheme in case he is not benefited from the Scheme of 9/16 years.F

15. On the other hand, Mr. Gulati, learned Counsel for therespondents argued that time bound promotional scale would be applicableto the promotee officer such as the appellants only in terms of the FirstCircular which contemplates that an employee shall be entitled topromotional scale on completion of 9 years of regular service on a postGand subsequent second time bound promotional scale after completionof 16 years of service. If in case an employee gets normal promotion tothe next higher post before completion of 9 years’ service, he would notbe entitled to first time bound promotional scale. He would however beeligible to get second promotional scale after completion of 16 years’service, counted from the date of direct recruitment, provided that heH

does not earn second normal promotion before the completion of abovesaid 16 years’ service. It was also contended that the Second Circularwas not disputed by any of the appellants at any stage.

16. We do not find any merit in the argument raised by Mr. Patwalia.The claim of the appellants was based upon the First Circular for 9/16years’ time bound promotion scale though the appellants have referredto the Second Circular in para 18 of the writ petition. The Second Circularwas not even annexed with the writ petition, however the same hasbeen annexed by two other appellants Surinder Kumar Pathak and R.K.Arora. There is no challenge to the legality and validity of the SecondCircular. Still further, the appellants have never claimed that there shouldbe equal pay being members of the same cadre. The claim of theappellants was for time bound promotional scale after completion of 9-16 years’ service only at par with Kirpal Singh Mangat and Raj KumarGarg.

17. We find that the appellants were promoted within 9 or 16years from their initial appointment, therefore, they are not entitled totime bound promotional scale. Kirpal Singh Mangat and Raj Kumar Gargwere appointed by direct recruitment as Assistant Engineer (Civil),whereas the appellants have been promoted to the post of AssistantEngineer (Civil). Hence, the Second Circular would not be applicable tothem. The promotee employees are entitled to time bound promotionscale in terms of the First Circular only. Hence, the appellants are notentitled to claim any parity with Kirpal Singh Mangat and Raj KumarGarg.

18. We find that some other employees have been granted benefitby virtue of the orders passed by the High Court. However, the principlelaid down in the aforesaid judgments run counter to the subsequentjudgment of this Court in Krishan Kumar Vij. The Special Leave Petitionin many of these cases were dismissed but the such dismissals wouldnot be a binding precedent for this Court. This argument was also raisedand examined in Krishan Kumar Vij wherein this Court relied upon thejudgment of this Court reported as Kunhayammed & Ors v. State OfKerala (2000) 6 SCC 359.Therefore,the dismissal of special leavepetitions is of no consequence on the question of law. The following washeld in Krishan Kumar Vij:

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“22. We have already mentioned hereinabove with regard to Clause2 of the 1990 Order read with Regulation 9 which restricts thebenefit only to directly recruited Assistant Engineers/AssistantExecutive Engineers, meaning thereby that one must possess therequisite qualification as prescribed under the Regulations, thenonly the benefit would accrue to the employee, not otherwise.The Note appended thereto clearly stipulates that even thoseemployees who were promoted under Regulation 7(a)(ii) readwith Regulation 10(4) shall be deemed to have been appointed bydirect recruitment. This legal fiction is limited. It is applicable onlyto those employees who have been promoted in conformity withthe provisions contained in Clause 4. Thus, the employees whohad passed both Parts (A) and (B) of the AMIE examination andwere promoted against 9% posts reserved for that class werefictionally treated as direct recruits. Thus, it clearly stipulates thatonly those Assistant Engineers who were either directly recruitedor had acquired the requisite qualifications prescribed for directrecruitment were chosen to be granted higher scale if they hadbeen promoted against the post falling within the quota of 9% ofthe cadre strength of the said post.

23. The 1990 Order contemplates that it is to be followed as perregulation which provides that only such persons as have beenpromoted under Regulation 7(a)(ii) read with Regulation 10(4)shall be treated as direct recruits. In other words, it does not applyto the promotees irrespective of their academic qualifications norcan they be treated on a par with the direct recruits. There was apurpose for treating them so, otherwise, it would have the effectof violating the constitutional mandate contained in Articles 14and 16 of the Constitution of India, on the premise that unequalshave been treated as equals. It is with that intention, to avoidcriticism and future litigation that such persons who possessedqualifications for direct recruitment and could be promoted againstthe posts falling vacant, would become entitled to claim the benefit.Since Respondent 1 did not fall in this category, obviously, he wasnot entitled to the higher scale.

24. Thus, there appears to be no illegality committed by the Boardin rejecting Respondent 1’s representation. So, in our consideredopinion, the High Court has clearly erred in setting aside andquashing the same.

25. The critical examination of the impugned judgment passed bythe Division Bench of the High Court completely defeats primarypurpose of the 1990 Order and provisions applicable to theemployees of the Board. No doubt, it is true that the 1990 Orderwas issued only with an intention to remove the stagnation butthis would not give blanket or absolute right to any employee to beentitled to higher pay scale even if he does not fulfil prerequisitequalifications for holding the higher post. In other words, if hepossesses the required qualifications but is unable to get the higherpost on account of non-availability of such post, then only he canbe categorised as suffering from stagnation as per Order of 23-4-1990.”

19. The First and Second Circulars of the Punjab State ElectricityBoard were examined by this Court, wherein, it was observed that theSecond Circular is applicable only in respect of employees appointed byway of direct recruitment. The benefit would not be extended to thepromoted employees. This Court found that the legal fiction is limited inrespect of the employees promoted under Regulation 7(a)(i) read withRegulation 10(4). It is applicable to only those employees who havebeen promoted in conformity with the provisions contained in Clause 4of the Regulation 10 of the Regulations which deal with promotion of theemployees who have passed both parts (A) and (B) of A.M.I.E.Examination and were promoted against 9% posts reserved for thatClass of direct recruitment.

20. Shri Krishan Kumar Vij, in the reported judgment, was notpossessing A.M.I.E. qualification and thus was never appointed in termsof Regulation 7(a)(i) read with Regulation 10.4 of the Regulations. Inthe present appeals, there is no assertion that any of the appellants havequalified both parts of A.M.I.E. Examination which is treated to beequivalent to the Engineering Degree. The appellants being only Diplomaholders were promoted under Regulation 7(a)(ii) read with Regulation10.4 of the Regulations. They had the opportunity to compete for directrecruitment after 12 years of service, which they never availed orremained unsuccessful. The appellants would have been entitled to claimparity with Kripal Singh Mangat and Raj Kumar Garg only if they werequalified and promoted against the posts reserved for those employeesby direct recruitment. Consequently, the appellants cannot claim timebound promotion after completion of 9/16 years at par with Kirpal SinghMangat and Raj Kumar Garg.

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GH

A21. The claim of the appellants of discrimination and arbitrarinesson the basis of time bound promotional scale granted to Kirpal SinghMangat and Raj Kumar Garg is not found to be sustainable. It has beencategorically admitted by the appellants that the said persons wereappointed by way of direct recruitment under Regulation 7(a)(i) asprovided under Regulation 9 of the Regulations. The appellants, on theBcontrary, have been promoted to the post of Assistant Engineer in theirterm as per their seniority in the cadre of Junior Engineer. Thus, SecondCircular which would be applicable to Kirpal Singh Mangat and RajKumar Garg would not apply to the appellants as they are instead coveredby the First Circular.C

22. In terms of the First and Second Circulars, the employees ofthe Board who have not earned promotion within 9 years from theirinitial recruitment are entitled to time bound promotional scale. If theyhave been promoted within the initial 9 years, the next promotion cannotbe granted to them after completion of 3 years.

D23. Therefore, the High Court in the impugned judgment wascorrect in law holding that in view of the judgment in Krishan KumarVij, the appellants are not entitled to time bound promotional scale on thebasis of parity in the other cases.

24. The argument that the appellants are entitled to promotionEscale after 23 years was not the case setup either in the writ petition oreven in the present appeals. Such an argument has in fact been raisedfor the first time in the written submissions. We find that such a factualargument cannot be permitted to be raised at this stage.

25. In view of the said facts, we do not find any error in the orderFpassed by the High Court which may warrant any interference of thisCourt. All the appeals are thus accordingly dismissed.

G

Divya Pandey

Appeals dismissed

H