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Dismissal of SLP Has No Consequence On Question Of Law: SC

           It is good to learn that the Supreme Court most recently on December 3, 2020 in a latest, learned, laudable and landmark judgment titled Inderjeet Singh Sodhi vs Chairman, Punjab State Electricity Board [Civil Appeal No. 3837 of 2020] (@ SLP(C) No. 23877 of 2014) has cogently, categorically and convincingly observed that the dismissal of special leave petition is of no consequence on the question of law. We all must bear it in mind from now on. This was so observed by a three Judge Bench of the Apex Court comprising of Justices L Nageswara Rao, Henmant Gupta and Ajay Rastogi. Very rightly so!

To start with, Justice Hemant Gupta who authored this notable judgment for himself, Justice L Nageswara Rao and Justice Ajay Rastogi sets the ball rolling by first and foremost observing in para 1 that, “The present appeals are directed against a common order of the Punjab and Haryana High Court dated 09.04.2014 whereby the intra-Court appeals filed by the Punjab State Electricity Board were allowed and the order of Learned Single Judge, allowing the writ petitions for the grant of 9/16 years’ time bound revised promotional scale to the appellants was set aside.”

To say the least, the Bench then observes in para 2 that, “The facts of the appeals are similar but for the sake of reference, facts are taken from the appeal preferred by Inderjit Singh Sodhi and others. The appellants herein have claimed time bound promotional scale while working as Assistant Engineers. They were promoted to the said post from the post of Junior Engineer. The services of the appellants are governed by the Punjab State Electricity Board Service of Engineers (Civil) Regulations, 19651 (for short, ‘Civil Regulations’).”

While elaborating further, it is then stated in para 3 that, “The post of Assistant Engineer as per Regulation 7 is required to be filled up (1) by direct recruitment in terms of Regulation 9; (2) by promotion in terms of Regulation 10 or (3) by transfer of an officer already in services of a Government or another Government or Undertaking of the Government. The qualification required for direct recruitment under Regulation 9 is BE in Civil Engineering from a recognised institution or university. The Regulations further permit serving Section Officers who possess three- or four-years diploma in Civil Engineering and minimum 12 years qualifying service to apply for the post by way of direct recruitment. Regulation 10, on the other hand, provides for the promotion of the candidates with not less than 10 years’ experience subject to the condition that their number do not exceed 30 per cent of the total number of the cadre posts of the Assistant Engineers.”

While continuing on a similar vein, the Bench then observes in para 4 that, “The relevant extract of the Civil Regulations read as under:- “7. Recruitment to the Service shall be made by the Appointment Authority by any of the methods indicated below as may be determined in each case:-

(a) In case of posts of Asstt. Engineers.

(i) By direct appointment as provided in Regulation 9

(ii) By Promotion as provided in Regulation 10

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

xx                        xx                    x x

QUALIFICATION FOR DIRECT

APPOINTMENT

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

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

xx                       xx                   xx

QUALIFICATION FOR APPOINTMENT BY PROMOTION

10.1 (a) Sectional Officers (Civil) under the Board having their record above average and with not less than 10 years experience to their credit shall be eligible for appointment to the service as Assistant Engineer, subject to the condition that their number does not exceed 20% of the total number of cadre posts of Assistant Engineers excluding the posts with B.D.M.B./B.C.B. and deputation posts or posts where PSEB cannot directly post its officers i.e. Hydel/Design Directorate, Chandigarh.

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

2.                      xxxx xxxx xxxx xxxx xxxx

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

4. 9% of the cadre posts of Assistant Engineers (Civil) shall be reserved for Departmental employees (Technical Subordinates and Drawing Staff) who while in the service of the Board have qualified Section (A) and (B) of A.M.I.E. Examination and have completed three years service. (This shall take effect from 15th April, 1983).”

To put it succinctly, the Bench then observes in para 5 that, “The appellants were promoted to the post of Assistant Engineers under Regulation 7(a)(ii) read with Regulation 10 of the Civil Regulations as stated in para 4 of the writ petition which reads as under:

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

Needless to say, the key point of para 7 is that it points out that, “Two sets of circulars were issued by the Punjab State Electricity Board for grant of time bound promotional scales w.e.f. 1.1.1986.” Similarly, the key point of para 8 is that it points out that, “Another Circular dated 24.05.1993 is part of the record of the other two appeals preferred by Surinder Kumar Pathak and R.K. Arora and another.”

Truth be told, it is then envisaged in para 9 that, “The Second Circular was thus issued to grant time bound promotional scale to directly recruited Assistant Engineers. However, the promoted employees were said to be entitled to time bound promotional scale as per the First Circular itself. The said Second Circular was issued to equally apply to the Civil and Electrical Branch of the Board. The Note to the said Circular mentions that the Circular has been issued under the Civil and Electrical Regulations. For the purpose of better understanding, the format has been changed to put the Regulations in one line as an alternative Regulations.”

On a similar vein, it is then noted in para 10 that, “Similar claim for time bound promotional scale was raised by one Rajinder Singh Patpatia, a promoted Assistant Engineer working with Bhakra Beas Management Board. The writ petition filed by him before the Punjab and Haryana High Court was allowed by the learned Single Judge on 26.08.1999 and the intra-Court Appeal against the same was dismissed on 13.08.2001 vide judgment reported as Bhakra Beas Management Board v. Rajinder Singh Patpatia and Anr4. The Special Leave Petition against such order of the Division Bench was also dismissed on 15.2.2002.”

Furthermore, it is then disclosed in para 11 that, “Another writ petition was filed by one named T. R. Bansal, junior to the appellants as Assistant Engineer (Civil) which was allowed by the Division Bench of the High Court on 1.02.2005. The Special Leave Petition against the said order was dismissed by this Court on 15.07.2010. Subsequently, Writ Petition no. 468 of 2004 preferred by T.S. Behl and others was also allowed on 10.02.2006 by the Division Bench of the Punjab and Haryana High Court.”

While citing the relevant case laws, the Bench then goes on to add in para 12 that, “A Writ Petition No. 19306 of 2003, Krishan Kumar Vij v. State of Punjab was filed before the Punjab and Haryana High Court claiming time bound promotional scale. The writ petitioners were employed with Bhakra Beas Management Board. The said Board had adopted the Circular issued by Punjab State Electricity Board on 26.6.1992. The writ petition was allowed by the Division Bench of the High Court on 6.12.2004. The order of the High Court was however later set aside by this Court in a judgment reported as Bhakra Beas Management Board v. Krishan Kumar Vij & Anr (2010) 8 SCC 701.”

More forthrightly, the Bench then points out in para 16 that, “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 9/16 years’ time bound promotion scale though the appellants have referred to the Second Circular in para 18 of the writ petition. The Second Circular was not even annexed with the writ petition, however the same has been annexed by two other appellants Surinder Kumar Pathak and R.K. Arora. There is no challenge to the legality and validity of the Second Circular. Still further, the appellants have never claimed that there should be equal pay being members of the same cadre. The claim of the appellants was for time bound promotional scale after completion of 9-16 years’ service only at par with Kirpal Singh Mangat and Raj Kumar Garg.”

Adding more, the Bench then makes it clear in para 17 that, “We find that the appellants were promoted within 9 or 16 years from their initial appointment, therefore, they are not entitled to time bound promotional scale. Kirpal Singh Mangat and Raj Kumar Garg were appointed by direct recruitment as Assistant Engineer (Civil), whereas the appellants have been promoted to the post of Assistant Engineer (Civil). Hence, the Second Circular would not be applicable to them. The promotee employees are entitled to time bound promotion scale in terms of the First Circular only. Hence, the appellants are not entitled to claim any parity with Kirpal Singh Mangat and Raj Kumar Garg.”

More significantly, the Bench then minces no words to state in para 18 and here only the key part is stated that, “We find that some other employees have been granted benefit by virtue of the orders passed by the High Court. However, the principle laid down in the aforesaid judgments run counter to the subsequent judgment of this Court in Krishan Kumar Vij. The Special Leave Petition in many of these cases were dismissed but the such dismissals would not be a binding precedent for this Court. This argument was also raised and examined in Krishan Kumar Vij wherein this Court relied upon the judgment of this Court reported as Kunhayammed & Ors v. State Of Kerala (2000) 6 SCC 359. Therefore, the dismissal of special leave petitions is of no consequence on the question of law.”

More directly, the Bench then waxes eloquent to observe in para 19 that, “The First and Second Circulars of the Punjab State Electricity Board were examined by this Court, wherein, it was observed that the Second Circular is applicable only in respect of employees appointed by way of direct recruitment. The benefit would not be extended to the promoted employees. This Court found that the legal fiction is limited in respect of the employees promoted under Regulation 7(a)(i) read with Regulation 10(4). It is applicable to only those employees who have been promoted in conformity with the provisions contained in Clause 4 of the Regulation 10 of the Regulations which deal with promotion of the employees who have passed both parts (A) and (B) of A.M.I.E. Examination and were promoted against 9% posts reserved for that Class of direct recruitment.”

It would be imperative to mention here that para 20 then reveals that, “Shri Krishan Kumar Vij, in the reported judgment, was not possessing A.M.I.E. qualification and thus was never appointed in terms of Regulation 7(a)(i) read with Regulation 10.4 of the Regulations. In the present appeals, there is no assertion that any of the appellants have qualified both parts of A.M.I.E. Examination which is treated to be equivalent to the Engineering Degree. The appellants being only Diploma holders were promoted under Regulation 7(a)(ii) read with Regulation 10.4 of the Regulations. They had the opportunity to compete for direct recruitment after 12 years of service, which they never availed or remained unsuccessful. The appellants would have been entitled to claim parity with Kripal Singh Mangat and Raj Kumar Garg only if they were qualified and promoted against the posts reserved for those employees by direct recruitment. Consequently, the appellants cannot claim time bound promotion after completion of 9/16 years at par with Kirpal Singh Mangat and Raj Kumar Garg.”

No less pertinent is what is then stated in para 21 that, “The claim of the appellants of discrimination and arbitrariness on the basis of time bound promotional scale granted to Kirpal Singh Mangat and Raj Kumar Garg is not found to be sustainable. It has been categorically admitted by the appellants that the said persons were appointed by way of direct recruitment under Regulation 7(a)(i) as provided under Regulation 9 of the Regulations. The appellants, on the contrary, have been promoted to the post of Assistant Engineer in their term as per their seniority in the cadre of Junior Engineer. Thus, Second Circular which would be applicable to Kirpal Singh Mangat and Raj Kumar Garg would not apply to the appellants as they are instead covered by the First Circular.”

Attention must also be paid to what is then stated in para 22 that, “In terms of the First and Second Circulars, the employees of the Board who have not earned promotion within 9 years from their initial recruitment are entitled to time bound promotional scale. If they have been promoted within the initial 9 years, the next promotion cannot be granted to them after completion of 3 years.”

As a corollary, the Bench then observes in para 23 that, “Therefore, the High Court in the impugned judgment was correct in law holding that in view of the judgment in Krishan Kumar Vij, the appellants are not entitled to time bound promotional scale on the basis of parity in the other cases.”

While putting a relevant point briefly, the Bench then observes in para 24 that, “The argument that the appellants are entitled to promotion scale after 23 years was not the case setup either in the writ petition or even in the present appeals. Such an argument has in fact been raised for the first time in the written submissions. We find that such a factual argument cannot be permitted to be raised at this stage.”

Finally, the Bench then concludes by holding in para 25 that, “In view of the said facts, we do not find any error in the order passed by the High Court which may warrant any interference of this Court. All the appeals are thus accordingly dismissed.”

In totality, what we can surmise from this extremely learned, laudable, latest and laudable judgment is that dismissal of SLP has no consequence on question of law. The legal position on this thus stands clarified. The relevant case laws have also been discussed above with a prominent one being that of Kunhayammed & Ors vs State of Kerala & Anr on 19 July, 2000.

Sanjeev Sirohi

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