Madhya Pradesh High Court
M.P. Vidyut Mandal Abhiyanta Sangh vs The State Of Madhya Pradesh on 11 December, 2024
NEUTRAL CITATION NO. 2024:MPHC-JBP:60647
1 WP-11677-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 11677 of 2024
M.P. VIDYUT MANDAL ABHIYANTA SANGH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sanjay K. Agrawal - Senior Advocate Shri Yashwardhan Jain - Advocate for the
petitioners.
Shri Prashant Singh - Advocate General for the respondent No.1 - State.
Shri Anoop Nair - Senior Advocate with Ms. Divyani Singh - Advocate for the
respondent Nos.2 to 4.
ORDER
(Reserved on : 19.09.2024)
(Pronounced on : 11.12.2024)
The present petition has been filed by a registered Association of
Engineers of erstwhile M.P. Electricity Board as well as by five others
employees holding the substantive post of Assistant Engineer in the
respondent No.2 – Company, i.e. M.P. Power Generating Company Ltd.,
which is one of the six successor companies of erstwhile MPSEB.
2. Challenge is made in the present petition to notice Annexure P-9,
whereby the respondent No.2 – Company has invited expression of interest
for engagement of experts in the said on work contract basis. Learned
counsel for the petitioner while assailing the said notice Annexure P-9
submits that by the said notice engagement of the experts to provide expert
services, consultancy services and advisory services to 20 retired
officers/personnel of the respondent No.2 – Company or of National
Thermal Power Corporation (NTPC) or of Bharat Heavy Electricals Limited
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12/13/2024
11:28:04 AM
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(BHEL) or power utilities and undertakings of other States having work
experience in the capacity of Superintending Engineer or equivalent and
above is invited. It is contended that though the advertisement is captioned as
advertisement for services of experts, but as per Clause 2.2 of the
advertisement, the scope of work is not restricted to experts, but extended to
expert as well as advisory as well as consultancy services. It is contended
that the work which is to be taken from the said experts/consultants is not a
work of special and temporary requirement of expertise or consultancy, but is
the regular work for duties which are rendered by the Superintending
Engineers and the Chief Engineers in power stations and transmission
stations. By placing reliance on the last portion of paragraph 2 of
advertisement, it is contended that the following has been provided under the
said paragraph 2 :-
“MPPGCL is engaging experts who are required to
provide services for COH, AOH, R&M works/
Regular monitoring/ Efficiency enhancement /
Outage analysis for reduction of outages/ Chemical
and Ash Utilisation/Environment/Fuel
Management/Material Management etc. at all-
Thermal Power Stations. The expert at Hydel Power
Stations of MPPGCL are required to provide
services for regular monitoring/ Outage analysis for
reduction of outages/ COH, AOH, R&M works/
Material Management etc. The services of experts
will be required to be provided at TPS/ HPS of
MPPGCL as and where required and directed.
3 . SCOPE OF WORK: The detailed – indicative
scope of services are as under:
A . O&M ACTIVITIES OF THERMAL POWER
PLANTS.
The associated Experts under different O&M
activities of Thermal Power Plants shall mainly
i n c l u d e monitoring, supervision-execution of
activities associated with Boiler/ Turbine /Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12/13/2024
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Electrical / Testing / C&I Maintenance of Power
Stations for Preventive/ Breakdown/ Opportunity
Based/ Condition Based Maintenance and
Overhauling (AOH/COH). The scope includes
trouble shooting, analysis of outages(partial and
total) and actions for reduction of outages and
inefficiency, DSM/availability analysis & ways to
optimise the same, and support the activities to be
done in safe manner and to enable efficient
operation. The activities shall be taken upby the
expert as assigned. It also includes consumption
optimisation analysis, quality improvement drive
etc.”
(empasis supplied)
3. By placing reliance on the said provisions in the advertisement, it is
contended that the experts are required to provide services for regular
monitoring, efficiency enhancement, outage analysis, reduction of outages,
fuel management and material management at all thermal power stations.
They are also expected to provide services on the similar lines in hydel
power stations of the respondent No.2 – Company. By further placing
reliance on Clause 3 of the said advertisement Annexure P-9, it is contended
that the scope is not limited to consultancy for specific work, which could
have arisen in the department on any temporary basis, but it also extends to
O & M activities, i.e. operation and maintenance activities, which are the
perpetual and regular activities to be carried out in power stations. Thus, it is
contended that in the name of engaging experts or consultants the
Department in fact wants to take work of Chief Engineer or Superintending
Engineer from such retired persons, who have retired up to March, 2024.
4. Learned counsel for the petitioner further submits that the
promotional channel is duly provided as per the Circular of erstwhile M.P.
State Electricity Board vide Annexure P-4, whereby a promotional channel
has been laid down and Assistant Engineer is eligible to be promoted to
Executive Engineer who in turn has to be promoted to Superintendent
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12/13/2024
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Engineer, Additional Chief Engineer and Chief Engineer. It is contended that
the companies are wilfully keeping these posts vacant and not carrying out
promotions on the said posts, but by adopting a via media and as a bypass to
regular promotions the company is now taking officers on senior levels of
Superintendent Engineer/Chief Engineer in the name of experts and
consultants. By placing reliance on the chart Annexure P-5, it is contended
that various positions on senior level are vacant. It is contended that on
various posts, there are a number of vacancies and the department is not
carrying out regular promotions. It is also contended that though some
current charge has been given to officers holding lower posts, but still
various posts in senior cadres like Chief Engineer (Generation), Chief
Engineer (Civil), Superintending Engineer (Generation and Civil), etc. are
wilfully being kept vacant and now the work against the said posts will be
taken from the blue-eyed boys of the management in the name of
engagement as consultant. It is contended that the work to be taken from the
consultants is of perpetual nature and is not a temporary work, which may
have arisen in the department or and is not work of such a nature for which
the existing manpower of the department is not equipped so that consultants
or experts are to be taken for temporary basis.
5. It is the case of the petitioner that the decision could be taken to
engage experts only if the regular promotional posts at senior level were
filled up and despite filling up such senior level posts it was found by the
department that still there is need for experts and consultants. It is contended
that on one hand the department is keeping the senior promotional post
vacant by not considering the employees holding junior posts and on the
other hand, the department is taking retired officers as consultants and
experts just to hamper the chances of promotion of the regular employees
working on junior level posts. It is further contended that experts and
consultants could have been taken for a temporary purpose or unforeseen
situation arising in the department for which some external expert could have
been found by the department to be better equipped to handle the situation on
temporary basis. It is contended that routine work of the department has to be
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12/13/2024
11:28:04 AM
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carried out by the routine workforce of the department and not from the
retired officers, who are taken to perform the routine work of the department
in the name of consultants and experts.
6. By placing reliance on various judgments of this Court and of the
Supreme Court, it is contended that despite the matter of reservation and
promotion being pending before the Supreme Court, but indeed there is no
actual bar in the promotion, but still the State Government has restrained the
company from carrying out promotions by issuing the orders Annexure R-1
in the year 2016 and again Annexure R-4 in the year 2024, though the
Supreme Court itself subsequently in State of M.P. Vs. Vinay Kumar Babele
(S.L.P. (Civil) No. 5868/2023) clarified the position that there is as such no
stay on promotions and the departments can very well carry out promotion
exercise subject to outcome of other pending matters before the Supreme
Court.
7. By placing reliance on Annexure P-12 dated 06.10.2012, which are
the instructions of General Administration Department, it is contended that
consultants and experts can be taken only for such works and functions and
duties for which posts are not sanctioned, i.e. experts can be engaged for
some special work. By placing reliance on GAD Circular dated 24.05.2022
Annexure P-13, it is contended that the maximum permissible payment that
can be made to consultants and experts taken against Class-I posts is based
1.25 lakhs per month, but the consultants and experts that are being taken in
terms of Annexure P-9 would be paid on the basis of pay minus pension,
which would be much more than the maximum permissible limit of Rs.1.25
lakhs per month.
8. Learned counsel for the petitioners further placed reliance on note
sheet Annexure P-6 specially page 100 thereof in contending that the scope
of work is to assist in all technical matters in all civil engineering works in
various thermal, hydel, solar and other power projects, monitor technical
issues related to civil engineering works of the company, provide advice on
various technical matters related to civil works at all power stations, assist
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
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the company in preparation of draft reports relating to all technical matters
etc., which are all the routine functions of officers of the rank of Chief
Engineer and Superintendent Engineer.
9. It was further contended that the departmental minister has sent a
letter placed on record as Annexure P-8 hereby the departmental minister has
instructed the company that the procedure for engagement of
experts/consultants be kept in abeyance. Despite that the company had gone
ahead and issued the notice Annexure P-9.
10. By placing reliance on judgment of the Supreme Court in the case
of Shrilekha Vidyarthi (Kumari) v. State of U.P. , (1991) 1 SCC 212 : AIR
1991 SC 537, especially para 35 and 36 thereof, it is contended that the Court
can always step in if the policy of the State is arbitrary and irrational.
11. Learned counsel for the petitioner further refers to the reply filed
by the respondents specially para 5.8 thereof wherein it is mentioned as
under:-
“With regard to this para it is submitted that due to ban on
promotion, the Company is not in a position to take any steps
for promotion. As a result, the Company is facing serious
problems in implementing various projects for
establishments of power plants and in operation and
maintenance for generation of electricity. The process of
engagement of experts on any contract, has been initiated
which is not against any sanctioned post of regular
employees of MPPGCL.”
12. It is contended that the shortage of manpower cannot be made a
ground to appoint external experts and consultants. Shortage of manpower
can be a reason to carry out promotion, but it is not a valid reason to appoint
external experts.
13. Per contra, learned Advocate General appearing for respondent
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12/13/2024
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Nos.2 to 4 as well as Shri Anoop Nair – Senior Advocate stated that the
petition at the instance of petitioner No.1 being association cannot be
entertained, because no resolutation has been placed on record that all
members of the association have resolved that they would be bound by the
whatever decision, which will be passed in the present petition.
14. It is further contended that the resolution that is placed on record is
by the elected office bearers and not by the general body comprising of all
the members. Even the situation of the elected office bearers has been
disputed by some other members of the association and in this regard the
letter Annexure R-5 sent by one of the members has been placed on record.
In this regard reliance is placed on judgment of Division Bench of this Court
in the case of Swakshtagrahi Sangh, Janpad Panchayat Niwas v. Union of
India, (2022) 2 MPLJ 526 and Prabhat v. Barkatulla University, ILR 2011
MP 1692.
15. Learned counsel for the respondent further submits that the
petitioner Nos.2 to 6, even if their petition is entertained in private capacity
are holding a much junior post of Assistant Engineer in substantive capacity
and they are not contenders to hold the post of Chief Engineer and
Superintending Engineer, even on current charge basis and therefore, they
have no locus in the present matter in their personal capacity.
16. It is further argued by learned Advocate General that the Circular
Annexure P-12 and P-13 issued by the State are issued for the department of
the State and they will not apply automatically to the public sector
undertaking of the State, because the purpose of creating public sector
undertaking is in view of special needs of organization structure of these
undertakings and unless the Circulars of the State are adopted by these
undertakings, they will not apply automatically and the Circular Annexure P-
12 and P-13 have never been adopted by the respondent No.2.
17. Learned Advocate General further submits that the basic purpose
of issuing the impugned expression of interest is to take services of the
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
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experts at power stations as and when and where required and directed and
thus, they are not being posted against any regular sanctioned posts of Chief
Engineer or Superintendent Engineer. It is further contended that the note has
been provided at page 123, which is common for all functions, that the
engaged personnel shall provide any other advisory monitoring and support
services required for efficient function of power stations as and when and
where required, assigned or directed. Thus, it is not a posting against any
post of Chief Engineer or Superintendent Engineer. Learned Advocate
General further submits that the contract is terminable and it is not an
employment, but it is only a contract for specified period with a specific
removal clause.
18. By placing reliance on para 5.13 of the reply, it is contended that
after letter of Minister relied by the petitioner, the company and Energy
Department of the State had taken up the matter and after examining the
issue, go ahead was given and a note was issued in the matter by the
Chairman. It is contended that the Minister had only directed to examine the
matter and till examination of the matter takes place, advised the
Department/Company not to proceed ahead. After the matter was re-
examined, the company gave a go ahead to the matter.
19. Learned Advocate General further submits that the State has
restrained promotions vide letters Annexure R-1 and R-4, which are not put
to challenge in the present petition and therefore, in absence of challenging
the said letters no relief can be granted to the petitioners.
20. It is further argued that as per Circular of the erstwhile MPSEB the
petitioners may be eligible for consideration of promotion only and not for
promotion as such, because promotion is not vested right and only
consideration for promotion may be such a right. By placing reliance on para
5.22 of the reply, it is further reiterated that the engagement of personnel is
not against any regular vacancy, but it is only to add to learning of junior
officers and such engagement will not cut down the future prospects and
learning experience of employees in any manner.
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12/13/2024
11:28:04 AM
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21. Learned Advocate General further submits that all officers in the
feeder cadre cannot be given promotion or given current charge of
promotional posts, because certain critical works are to be performed by the
Assistant Engineers and Executive Engineers and all Assistant Engineers and
Executive Engineers cannot be promoted to the senior posts, because in that
event the work on the feeder posts, which is also of critical, important and
sensitive nature would be affected. Thus, the Department cannot put every
Assistant Engineer in the charge of Executive Engineer, because in that
event the personnel would not be available in the post of Assistant Engineer
and Executive Engineers to man the routine functions of power houses and
generating stations. Thus, it is contended that the decision to give current
charge to the persons holding feeder cadre posts and to grant regular
promotion to such posts depends on the administrative requirement of the
organization and the company cannot be forced to promote or give current
charge all the employees and officers in feeder cadre. It is also argued that
the impugned notice Annexure P-9 is the policy matter of the company and
the scope of interference against the policy matter is very limited. Reliance is
placed on the judgements of the Supreme Court in the cases of State of
Punjab and others Vs. Ram Lubhaya Bagga and others (1998) 4 SCC 117,
State of Orissa Vs. Bihari Charan Khuntia reported in 2003 (10) SCC 144
and Union of India Vs. Pushpa Rani, reported in 2008 (9) SCC 242 . Reliance
was also placed on the judgement of Single Bench on this Court passed
recently in WP No. 20865/2024, Prantiya Shasakiya Mahavidyalayeen
Pradhyapak Sangh Vs. State of Madhya Pradesh & Ors.
22. Heard learned counsel for the parties.
23. First the objection is to maintainability of the petition is taken up.
The petitioners have placed on record a resolution as Annexure P/2 which
authorizes filing of the present petition. It is evident that this resolution is
passed by only 9 members of the Committee of the petitioner No.1 society,
though its membership as per the list Annexure P-3 is stated to be more than
Signature Not Verified
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JYOTISHI
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1550. The resolution does not mention that all the members have agreed to
be bound by the decision which will be taken in the present petition. Neither
the resolution annexure P-2 states so, and not even the bye-laws of the
society/association have been placed on record to authorize the Committee to
enter into litigation binding all the members. In absence of any enabling
provision in the bye-laws, the resolution ought to have been signed by all the
members constituting General Body of the association, that has not been
done. In Swakshtagrahi Sangh, Janpad Panchayat Niwas v. Union of India,
(2022) 2 MPLJ 526, the Division Bench held as under :-
“8. Therefore, to bind the members by the decision in a litigation
brought before the Court on behalf of such members by any
Association, it is necessary that such Association must clearly
resolve that who authorized the Association to file such litigation.
The resolution should also mention that the members will abide
any decision rendered in such litigation. In the present case, a
perusal of the resolution clearly shows that the same does not
fulfil the stipulated requirement. Hence, the learned Single Judge
has not committed any error while rejecting the writ petition.”
Similarly, in Prabhat v. Barkatulla University, ILR 2011 MP 1692 , it
was held by the Division Bench as under :-
“2. A writ petition for enforcement of the rights of its
members, as distinguished from the rights of the Association
as a body, can be filed by the Association acting through its
office bearer or member, whether the Association is
registered or unregistered, incorporated or not, only when the
Association can satisfy the Court that if an adverse decision
is given in that petition all the members of that Association
or “Body of Individuals” will be bound by the decision. The
reason is, that otherwise, immediately after adverse decision
any other member of that Association may come before the
Court in an independent writ petition, saying that he has notSignature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
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been heard and he had not authorized such Association or
office-bearer or member to represent him in the litigation.
3. Therefore firstly the members of the Association must be
clearly determinate and identifiable; and secondly either there
should be Rules of such Association, or a legally binding
special resolution of its general body for such representation
in the litigation, so as to bind the members by the decision in
such litigation.”
Moreover, in the present case, nothing has been placed on record
whether the petitioner No.1 is recognized by the respondents as a
representative Union or recognized association to enter into correspondence
to take up the grievances of its members. In the absence of any recognition
by the employer, coupled with absence of proper resolution of the
association as discussed above, the present petition at instance of the
petitioner No.1 is held to be not maintainable. Thus, this petition is
entertained only at the instance of petitioners No. 2 to 6 who are before this
Court in their private capacity.
24. An objection was raised by the respondents that the petitioners
No. 2 to 6 are holding the substantive posts of Assistant Engineers, and even
the assertion in the petition is that a via-media is being adopted to take retired
officers to perform the duties of Superintending and Chief Engineers, which
the petitioners are neither holding at present, nor are in immediate feeder
posts, as they are not even substantively holding the posts of Executive
Engineer, which is the feeder post for Superintending Engineer.
25. In respect of above, it is trite to note here that the respondents
have taken plea in the present case that every employee cannot be given
Signature Not Verified
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JYOTISHI
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promotion and current charge of higher posts, and that filling all the posts of
Executive Engineer and Superintending Engineer is difficult, as some
engineers have to be kept at feeder level for basic operations, and in the
entire company at present as against 5976 sanctioned posts, only 3537
employees are working. The following has been pleaded in para 5 of
Addditional return by the respondents No. 2 to 4 :-
“……… There is shortage of higher level due to retirements but
filling all the posts of EE/SE is difficult as some engineers have
to be kept at feeder level for basic operations. At present against
total sanctioned post 5976 only 3537 employees are working.”
The inability to fill the posts of Executive Engineers and
Superintending Engineers by promotion or by giving current charge directly
affects the chances of promotion of the Assistant Engineers who are on the
feeder post to the promotional post of Executive Engineer. Therefore, it
cannot be said that the petitioners holding the substantive posts of Assistant
Engineers have no valid cause of action. The petition is, therefore, held
maintainable at the instance of the petitioners No. 2 to 6.
26. On merits of the matter, though the respondents have not left
any stone unturned to deny that the impugned process has been initiated to
employ persons on the vacant posts of Superintending and Chief Engineers,
but there is ample material on record to indicate that the impugned process
has been initiated to tide over the shortage of manpower at senior positions
(Superintending Engineer and Chief Engineer). Though the parties are at
loggerheads by relying on differing charts Annexure P-5 and Annexure R-2
Signature Not Verified
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JYOTISHI
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to submit that what is the extent of actual vacancy, but it is undisputed that
there is a huge vacancy on the posts of Superintending and Chief Engineers.
Paragraph-2 of the impugned advertisement as quoted in para-2 of this order
above, makes it clear that the advertisement is not for any temporary or
unanticipated specialized or consultancy work, which was not in the scope of
routine work of the Company, for which specialists or consultants are being
hired. Rather, it is the routine work that is undertaken by Superintending and
Chief Engineers in power generating stations and their ancillary
establishments like transmission facilities, load dispatch centres, etc. The
aforesaid para-2 makes it evident that MPPGCL is engaging personnel for
Regular monitoring, Efficiency enhancement, reduction of outages,
Chemical and Ash Utilisation, Environment/Fuel/Material Management etc.
at all Thermal Power Stations and Hydel stations. It is also provided that the
Experts will provide Operation and Maintenance activities of Thermal Power
Plants including monitoring, supervision-execution of activities associated
with Boiler/ Turbine / Electrical / Testing / C&I Maintenance of Power
Stations for Preventive/ Breakdown/ Opportunity Based/ Condition Based
Maintenance and Overhauling (AOH/COH). The scope includes trouble
shooting, analysis of outages (partial and total) and actions for reduction of
outages and inefficiency, DSM/availability analysis & ways to optimise the
same, and support the activities to be done in safe manner and to enable
efficient operation.
27. At the time of hearing, the counsel for the respondents were
unable to explain that which of the above works is such specialised work that
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JYOTISHI
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is not routinely performed in power generating stations. All the aforesaid
works are routine work in power generating stations which is itself by very
nature, specialized in nature involving aforesaid activities, then how these
tasks and duties to be performed routinely can be said to be the works to be
performed by consultants and experts, and not by regular officers of the
Company.
28. Moreover, the pleadings of the respondents also duly lift the veil
and establish that these positions are being advertised only because at present
the Company is unable to carry out promotions due to reservation in
promotion issue pending before the Supreme Court and therefore, senior
positions are vacant. It has been pleaded as well as orally argued that there is
huge vacancy in the Company, and every feeder post officer cannot be
promoted or given to officiate on temporary basis, on promotional post as
the basic works in feeder posts shall suffer. The pleading made in para 5.8 of
the reply are as under :-
“With regard to this para it is submitted that due to
ban on promotion, the Company is not in a position
to take any steps for promotion. As a result, the
Company is facing serious problems in
implementing various projects for establishments of
power plants and in operation and maintenance for
generation of electricity. The process of
engagement of experts on any contract, has been
initiated which is not against any sanctioned post of
regular employees of MPPGCL.”
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
Signing time: 12/13/2024
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Most importantly, in para 5.11 of the return, it has been stated as
under :-
“With regard to this para it is submitted that
MPPGCL is facing acute shortage of expert
manpower for supervision and monitoring of
activities. Presently, many of these activities are
being done by giving current charge of higher post
to the eligible engineers to the extent possible.
However, MPPGCL is not in condition to give
current charge of higher posts to all the eligible
engineers at lower level. At functional level
engineers there is necessity of Assistant Engineers
and Executive Engineers also. To clarify, it is to
submit that some posts of Assistant Engineers, such
as Control Panel operation in power plants, site
work of maintenance within a division etc. have to
be necessarily be done by the Assistant Engineers
only. For administrative reasons also, an Executive
Engineer cannot be placed under another Executive
Engineers. Therefore, current charge to all the AEs
is not feasible.”
In paragraph-5 of the Additional Return, it has been stated as under
:-
“……… There is shortage of higher level due to
retirements but filling all the posts of EE/SE is difficult as
some engineers have to be kept at feeder level for basic
operations. At present against total sanctioned post 5976
only 3537 employees are working.”
29. The pleadings duly establish that officers in the feeder posts are
available, but they are not being promoted due to promotion reservation issue
Signature Not Verified
Signed by: RAJESH KUMAR
JYOTISHI
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pending before the Supreme Court, and not given even officiating charge
because they need officers on feeder levels to perform basic operations.
These pleadings also make it clear that the persons being engaged are to man
the duties that were meant to be manned by Superintending and Chief
Engineers but there is shortage of officers at that level.
30. The aforesaid stand taken by the respondents cannot be said to
be valid. Though promotion is not a vested right, but once the promotional
positions are vacant and there is need for work on those positions, then
officers on the feeder posts have a legitimate expectation to be considered
for promotion either on substantive or on officiating basis, to man such
promotional positions.
31. The action of the respondents to take personnel on contract basis
as “Experts” could have been valid if the promotional positions had been
filled up either on substantive basis or on officiating or on current charge
basis (even if there is legal impediment on substantive promotions). If
despite such filling up of positions, any expertise tasks were required to be
carried out by external experts, the action of the respondents could have been
valid. The respondents have failed to come out with a single instance in their
detauled reply that they require any specific expertise that is not possessed by
their officers, for which they require to engage “experts”.
32. A requirement of officers at feeder level can be a valid ground
to conduct regular recruitment on these feeder positions, rather than to force
employees on feeder positions to remain stagnated and give duties of senior
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positions by engaging external personnel in the name of engaging “experts”.
The respondents are attempting to do something indirectly that could not be
done directly. In para-17 of the Additional reply, it has been admitted by the
respondents that the shortage of engineers at recruitment level (i.e. Assistant
Engineers) is 389 against 844 sanctioned whereas at promotional posts
Executive Engineers to Executive Directors, it is 224 against sanction of 471.
Therefore, merely because 389 posts of Assistant Engineers are lying vacant,
this cannot be a valid ground to stagnate the available Assistant Engineers
and all other officers in the name of requirement of work at feeder positions,
and deny them even current duty charge or officiating charge even though
224 posts from Executive Engineer to Executive Directors are lying vacant.
As and when regular promotions are opened up, the respondents would
consider these Assistant Engineers and Executive Engineers and
Superintending Engineers for promotion to the posts of Executive Engineers,
Superintending Engineers and Chief Engineers. They would not bring any
officers on feeder positions from outside the cadre.
33. This Court refrains for commenting on the issue whether at
present substantive promotions can be made or not, nor comments on the
effect of pendency of issue of reservation in promotion before the Supreme
Court. This is not required to be decided in this petition because even if
substantive promotion cannot be made, then officiating charge of
promotional posts can always be given to feeder cadre employees, because in
any event, as and when substantive promotion exercise is taken up, it will be
from amongst the feeder cadre officers only. It can never be a valid excuse to
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bring in external personnel to man these regular senior positions.
34. It was vehemently argued that it is the policy of the respondents
that how they will bring personnel to man their positions and discharge
duties, and that it being policy matter, the Court should not venture therein.
35. It is well settled that matters relating to creation and abolition of
posts, formation and structuring/restructuring of cadres, prescribing the
source/mode of recruitment and qualifications, criteria of selection,
evaluation of service records of the employees fall within the exclusive
domain of the employer. What steps should be taken for improving
efficiency of the administration is also the preserve of the employer. The
power of judicial review can be exercised in such matters only if it is shown
that the action of the employer is contrary to any constitutional or statutory
provision or is patently arbitrary or is vitiated due to mala fides. The Court
can always consider whether the policy is arbitrary or violative of law. In the
present case, this Court has already reached to a conclusion that the policy
adopted by the respondents is arbitrary and cannot be therefore, given the
shelter of being outside purview of judicial review being policy matter. In
the case of Jacob Puliyel Vs. Union of India and Others, reported in 2023
SCC Online SC 533, it has been held as under :-
23. There is no doubt that this Court has held in more than one
judgment that where the decision of the authority is in regard to a
policy matter, this Court will not ordinarily interfere since decisions
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the correctness of a policy decision. However, this does not mean
that courts have to abdicate their right to scrutinise whether the
policy in question is formulated keeping in mind all the relevant
facts and the said policy can be held to be beyond the pale of
discrimination or unreasonableness, bearing in mind the material
on record. In Delhi Development Authority (supra), this Court held
that an executive order termed as a policy decision is not beyond
the pale of judicial review. Whereas the superior courts may not
interfere with the nitty-gritty of the policy, or substitute one by the
other but it will not be correct to contend that the court shall lay its
judicial hands off, when a plea is raised that the impugned decision
is a policy decision. Interference therewith on the part of the
superior court would not be without jurisdiction as it is subject to
judicial review. It was further held therein that the policy decision is
subject to judicial review on the following grounds:
a) if it is unconstitutional;
b) if it is dehors the provisions of the Act and the regulations;
c) if the delegatee has acted beyond its power of delegation;
d) if the executive policy is contrary to the statutory or a larger
policy.
In Avishek Goenka v. Union of India , (2012) 5 SCC 275, the Supreme
Court has held as under :-
22. We have clearly stated that it is not for this Court to examine the
merit or otherwise of such policy and regulatory matters which have
been determined by expert bodies having possessing requisite technical
know-how and are statutory in nature. However, the Court would step
in and direct the technical bodies to consider the matter in accordance
with law, while ensuring that public interest is safeguarded and
arbitrary decisions do not prevail.
In Arun Kumar Agrawal v. Union of India, (2013) 7 SCC 1 , the
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Supreme Court held as under:-
“41. … This Court sitting in the jurisdiction cannot sit in judgment
over the commercial or business decision taken by parties to the
agreement, after evaluating and assessing its monetary and financial
implications, unless the decision is in clear violation of any statutory
provisions or perverse or taken for extraneous considerations or
improper motives. States and its instrumentalities can enter into
various contracts which may involve complex economic factors. State
or the State undertaking being a party to a contract, have to make
various decisions which they deem just and proper. There is always an
element of risk in such decisions, ultimately it may turn out to be a
correct decision or a wrong one. But if the decision is taken bona fide
and in public interest, the mere fact that decision has ultimately proved
to be wrong, that itself is not a ground to hold that the decision was
mala fide or taken with ulterior motives.”
In State of Punjab and others Vs. Ram Lubhaya Bagga and others
(1998) 4 SCC 117 , the Supreme Court has held that the Court can consider
whether the policy is arbitrary or violative of law. It was held as under :-
“25. ………. so far as questioning the validity of governmental policy is
concerned in our view it is not normally within the domain of any
court, to weigh the pros and cons of the policy or to scrutinize it and
test the degree of its beneficial or equitable disposition for the purpose
of varying, modifying or annulling it, based on howsoever sound and
good reasoning, except where it is arbitrary or violative of any
constitutional, statutory or any other provision of law….”
It is settled that in some limited cases, the Courts can look to the
legality of a decision which is being defended in the garb of it being a policy
decision.
36. It is not at all in dispute that the respondent Company has adopted
the M.P. Public Service Promotion Rules 2002 that duly provide for
consideration for promotion in the manner laid down in detail in the said
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rules. In fact, the case has been defended by the respondents on the very
ground that the reservation provisions in the said rules being subject matter
of a case pending before the Supreme Court, regular promotions are not
being made. The notification dated 29.5.1990 (Annexure P-4) issued by
erstwhile M.P. Electricity Board clearly establishes a promotional channel
from Assistant to Executive, Superintending and Chief Engineer. The
Promotion Rules of 2002 give a right to be considered for promotion in the
following manner as per Rule 6 (4) and 7 (4) :-
6. Promotion-on the basis of seniority subject to
fitness:-
(4) The meeting of the Departmental Promotion
Committee shall be held every year. It shall consider the
suitability of the public servants for promotion
separately with reference to the vacancies of each year
starting with the earliest year onwards. The
Departmental Promotion Committee shall consider the
suitability of the public servants for promotion to fill up
the unfilled vacancies of the earlier year or years
separately and prepare the select list for the relevant
year accordingly. Thereafter, the Departmental
Promotion Committee shall consider the suitability of
the public servants for promotion to fill up the existing
and anticipated vacancies of the current year.
7. Promotion on the basis of merit-cum-seniority:-
(5) The meeting of the Departmental
Promotion/Screening Committee shall be held every
year. It shall consider the suitability of the public
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servant for promotion separately with reference to the
vacancies of each previous year starting with the
earliest year onwards. The Departmental Promotion
Committee/Screening Committee shall consider, the
suitability of the public servants for promotion to fill up
the unfilled vacancies of the-earlier year or years
separately and prepare the select list for the relevant
year accordingly. Thereafter the Departmental
Promotion Committee/Screening Committee shall
consider the suitability of the public servants for
promotion to fill up the existing and anticipated
vacancies of the current-year.
Any other mode adopted to fill up or for manning the promotional posts
would certainly be violative of the statutory provisions of the said Rules and
the respondents cannot escape by simply stating that it is their policy matter.
Once the promotion rules apply, and promotional posts in the cadre are
vacant, a person in the feeder cadre has a legitimate expectation to get
considered for promotion or for considered to get officiating charge of that
higher post when substantive promotions are not being carried out without
such consideration being made on existing officers, bringing manpower from
exterior sources cannot be said to be legal. Only if a need survived despite
considering existing officers, then such a mode could have been valid. In
Sivanandan C.T. v. High Court of Kerala, (2024) 3 SCC 799 , a Constitution
Bench of the Supreme Court recently held as under :-
44. In a constitutional system rooted in the rule of law,
the discretion available with public authorities is
confined within clearly defined limits. The primary
principle underpinning the concept of rule of law isSignature Not Verified
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consistency and predictability in decision-making. A
decision of a public authority taken without any basis in
principle or rule is unpredictable and is, therefore,
arbitrary and antithetical to the rule of law. [ S.G.
Jaisinghani v. Union of India, 1967 SCC OnLine SC 6]
The rule of law promotes fairness by stabilising the
expectations of citizens from public authorities. This
was also considered in a recent decision of this Court
i n SEBI v. Sunil Krishna Khaitan [SEBI v. Sunil
Krishna Khaitan, (2023) 2 SCC 643] , wherein it was
observed that regularity and predictability are hallmarks
of good regulation and governance. [SEBI v. Sunil
Krishna Khaitan, (2023) 2 SCC 643] This Court held
that certainty and consistency are important facets of
fairness in action and non-arbitrariness : (Sunil Krishna
Khaitan case [SEBI v. Sunil Krishna Khaitan, (2023) 2
SCC 643] , SCC pp. 678-79, para 59)
“59. … Any good regulatory system must promote
and adhere to principle of certainty and
consistency, providing assurance to the individual
as to the consequence of transactions forming part
of his daily affairs. [Union of India v. Raghubir
Singh, (1989) 2 SCC 754. Also see, The Nature of
the Judicial Process, Benjamin N. Cardozo, p.
33:”I am not to mar the symmetry of the legal
structure by the introduction of inconsistencies and
irrelevancies and artificial exceptions unless for
some sufficient reason, which will commonly be
some consideration of history or custom or policy
or justice. Lacking such a reason, I must be logical
just as I must be impartial, and upon like grounds.
It will not do to decide the same question one way
between one set of litigants and the opposite way
between another. “(emphasis supplied)] … This
does not mean that the regulator/authorities cannot
deviate from the past practice, albeit any such
deviation or change must be predicated on greater
public interest or harm. This is the mandate of
Article 14 of the Constitution of India which
requires fairness in action by the State, and non-
arbitrariness in essence and substance. Therefore,
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to examine the question of inconsistency, the
analysis is to ascertain the need and functional
value of the change, as consistency is a matter of
operational effectiveness.”
45. The underlying basis for the application of the
doctrine of legitimate expectation has expanded and
evolved to include the principles of good
administration. Since citizens repose their trust in the
State, the actions and policies of the State give rise to
legitimate expectations that the State will adhere to its
assurance or past practice by acting in a consistent,
transparent, and predictable manner. The principles of
good administration require that the decisions of public
authorities must withstand the test of consistency,
transparency, and predictability to avoid being regarded
as arbitrary and therefore violative of Article 14.
46. From the above discussion, it is evident that the
doctrine of substantive legitimate expectation is
entrenched in Indian administrative law subject to the
limitations on its applicability in given factual
situations. The development of Indian jurisprudence is
keeping in line with the developments in the common
law. The doctrine of substantive legitimate expectation
can be successfully invoked by individuals to claim
substantive benefits or entitlements based on an existing
promise or practice of a public authority. However, it is
important to clarify that the doctrine of legitimate
expectation cannot serve as an independent basis for
judicial review of decisions taken by public authorities.
Such a limitation is now well recognised in Indian
jurisprudence considering the fact that a legitimate
expectation is not a legal right. [Union of
India v. Hindustan Development Corpn., (1993) 3 SCC
499; Bannari Amman Sugars Ltd. v. CTO, (2005) 1
SCC 625; Monnet Ispat & Energy Ltd. v. Union of
India, (2012) 11 SCC 1; Union of India v. P.K.
Choudhary, (2016) 4 SCC 236 : (2016) 1 SCC (L&S)
640; State of Jharkhand v. Brahmputra Metallics Ltd. ,
(2023) 10 SCC 634.] It is merely an expectation to avail
a benefit or relief based on an existing promise or
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practice. Although the decision by a public authority to
deny legitimate expectation may be termed as arbitrary,
unfair, or abuse of power, the validity of the decision
itself can only be questioned on established principles
of equality and non-arbitrariness under Article 14. In a
nutshell, an individual who claims a benefit or
entitlement based on the doctrine of legitimate
expectation has to establish : (i) the legitimacy of the
expectation; and (ii) that the denial of the legitimate
expectation led to the violation of Article 14.
37. In view of the foregoing, the present petition deserves to be and is
hereby allowed. The impugned notice Annexure P-9 and the process initiated
thereby stands quashed.
(VIVEK JAIN)
JUDGE
rj
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