SH PRAMOD KUMAR AND ORS. vs BSES YAMUNA POWER LIMITED AND ORS.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: October 05, 2023
+ W.P.(C) 9832/2019
SH PRAMOD KUMAR AND ORS.
….. Petitioners
Through: Mr. Vinay Kumar Garg, Sr. Adv.
with Mr. Sagar Saxena, Mr. Parv
Garg, Mr. Pawas Kulshreshtha &
Mr. K.S. Rekhi, Advs.
versus
BSES YAMUNA POWER LIMITED AND ORS.
….. Respondents
Through: Mr. Sandeep Prabhakar &
Mr. Vikas Mehta, Advs. for
R-1 & R-3 to R-8
Mrs. Avnish Ahlawat, SC with
Mr. Uday Singh Ahlawat,
Mr. N. K. Singh, Mrs. Tania Ahlawat and Mrs. Palak Rohmetra, Advs. for R-2/GNCTD
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
J U D G M E N T
V. KAMESWAR RAO, J
1. The present petition has been filed by the petitioners under Article 226 of the Constitution of India with the following prayers:-
In the aforesaid premises and in the interest of justice, it is therefore most respectfully prayed that this Hon’ble Court may be graciously pleased to:
a) Issue an appropriate writ/order against Respondent no.l and thereby quash the promotion of respondent nos. 3 to 8 ahead of petitioner no. 1 and the promotion of respondent nos. 6 to 8 ahead of petitioner nos. 2, 3 & 4 to the post of Vice President with two additional increments as well as consequential revision in seniority list in the respondent no. 1 organization being violative of Articles 14 & 16 of Constitution of India and respondent no. 1 be directed to promote the petitioners as Vice President w.e.f.01.04.2018 with all consequential benefits;
b) Or In the alternative direct the respondent no. 1 to promote the petitioners ahead of their juniors with all consequential benefits;
c) Issue an appropriate writ/order and thereby direct respondent no. 1 to maintain established seniority of the petitioners as to CTC employees and other GPA employees;
d) Such other and further orders be also passed as this Hon’ble Court may deem fit and proper in the facts and circumstances, of the present case and to meet ends of justice.
2. The facts as noted from the petition are as follows:
2.1 The petitioners Nos.1, 2 & 3 were directly recruited as Assistant Engineer/A.XEN, in the year 1995 in Group A services by passing the required examination/interview by the UPSC. Pursuant to the said recruitment of the petitioner Nos.1, 2 & 3 as Assistant Engineer/A. XEN, they joined the services of the Delhi Electric Supply Undertaking (DESU) on May 15, 1995, December 26, 1995 and April 30, 1996 respectively. Whereas, petitioner No.4 was also directly recruited as an Assistant Engineer/A.XEN in the year 1996, Group A service, by passing the required examination/interview conducted by the UPSC and he also joined the services of the DESU on November 22, 1996. It is stated at that time, DESU was under the control of Central Government.
2.2 Thereafter, DESU was re-constituted as Delhi Vidyut Board (DVB) in the year 1997 under the control of Government of NCT of Delhi.
2.3 On November 03, 2000, the respondent No.2 i.e., the Government of NCT of Delhi, declared a policy to restructure DVB for the purpose of restoring the operational and financial viability and to meet the future demand for sufficient supply of energy. For this purpose, Delhi Electricity Reforms Act, 2000 (DERA) was enacted.
2.4 As a result, DVB was unbundled into five companies including three Distribution Companies (‘DISCOMS’), one of which is the respondent No.1, i.e., BSES Yamuna Power Ltd., the other DISCOMS being BSES Rajdhani Power Limited and TATA Power Delhi Distribution Ltd.
2.5 Accordingly, the petitioners were transferred to the respondent No.1 in the year 2002 and their posts were subsequently redesignated by the respondent No.1 upon their transfer.
2.6 To safeguard the service conditions of the transferred employees of the erstwhile DVB going to respondent No.1, Delhi Electricity Transfer Scheme Rules of 2001 (TS Rules), the DERA as well as a Tripartite Agreement (entered between the GNCTD, DVB and the Employees Union) , were formulated / executed.
2.7 Pursuant to the afore-said arrangement, petitioners were assured that all benefits accruing to them in accordance with the TS Rules, DERA and the Tripartite Agreement would be guaranteed to them without any discrimination, partiality or injustice.
2.8 In 2003, the petitioner No.1 was promoted to the post of Manager in the pay scale of 12500-19100 w.e.f. August 30, 2004, which was a re-designated post of Executive Engineer under erstwhile DVB. Thereafter, the petitioner No.1 was further re-designated as Deputy General Manager by the respondent No.1. Petitioner No.1 was, thereafter, again promoted as Assistant Vice President in the year 2010 and this post was re-designated post of Superintending Engineer as in government employment.
2.9 Subsequently, the petitioner was promoted to the post of Additional Vice President w.e.f. November 01, 2013, on current duty charge, which was regularized w.e.f. April 01, 2015 and this post was equivalent to the post of Chief Engineer in government employment and since then the petitioner No.1 has been discharging his duties on the said post of Additional Vice President till date. Similarly, petitioner Nos.2, 3 and 4 were also promoted to the post of Additional Vice President.
2.10 The employees like the petitioners, who were recruited by UPSC and were employees of erstwhile DVB are called Government Pay and Allowances (GPA) employees and the employees, who have been directly recruited by the respondent No.1, are called Cost to Company (CTC) employees.
2.11 As per the seniority list dated January 01, 2016 as well as March 18, 2016 published by the respondent no.1 of the Additional Vice Presidents (E/M), name of petitioner No. 1 was at Sl. No. 10, whereas, name of petitioner No. 2 was at Sl. No.14, name of the petitioner no. 3 was at Sl. No. 15 and name of the petitioner no. 4 was at Sl. No. 20.
2.12 As per the practice and policy of the respondent no. 1, employees of both cadres i.e., GPA and CTC, are promoted to the post of Vice President after three years of completion of working as Additional Vice President though in some cases, such promotion of CTC employees have taken place in less than three years.
2.13 The respondent No.7, of CTC Cadre was promoted within two years to the post of Vice President in the year 2019 and respondent No.8 also of CTC Cadre was promoted in less than three years to the post of Vice President in the year 2018. Moreover, both respondent Nos.7 and 8 were junior to the petitioners. In view thereof, the petitioners were entitled to be promoted to the post of Vice President w.e.f. April 01, 2018. However, the petitioners were not promoted to that post and aggrieved by the same, they were constrained to submit multiple representations before the respondent No.1
2.14 Despite having received the afore-said representations, the respondent No.1 neither replied nor promoted them to the post of Vice President. On June 18, 2019, the petitioners were surprised to find that GPA employees junior to them were promoted to the post of Vice President with two additional increments and thereby petitioners were put below their juniors i.e., respondent Nos.3, 4, 5 and 6, in the hierarchy as well as in the seniority list.
3. Mr. Vinay Kumar Garg, learned Senior Counsel appearing for the petitioners submitted that the promotion of juniors to the post of Vice President ahead of the petitioners is totally illegal, arbitrary and discriminatory as it is a settled law that promotion has to take place as per seniority list in order to properly maintain the seniority list.
4. He also stated that there has been absolutely no difference between the engineers who came from DESU/DVB and those recruited directly by BSES and even respondent No.1 never discriminated between the two. So, the petitioners cannot be treated differently and with discrimination. As such, the acts of the respondent No.1 violate the fundamental rights of the petitioners under Articles 14 and 16 of the Constitution of India.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.1
5. It is primarily the case of the respondent No.1 and so contended by Mr. Sandeep Prabhakar, learned counsel appearing on behalf of the respondent No.1, that the instant petition under Article 226 of the Constitution of India is not maintainable and thus the same should be dismissed in limine. It is his submission that the petitioners are seeking to avail benefits which were never available to them during their employment with the erstwhile DVB.
6. It has been further submitted that the petitioners being the transferred employees can only seek enforcement of conditions of service which were prevalent on the date of statutory transfer, i.e., July 01, 2002.
7. He has substantiated his argument by submitting that the petitioners are seeking promotion to the post of Vice President which was never in existence in the erstwhile DVB. The highest Group A promotion post which was available in the erstwhile DVB was of Chief Engineer. The post of Vice President was created for the very first time in the year 2008 by the private successor entity, i.e., the respondent No.1.
8. It has also been submitted that apart from the petitioners (who are GPA employees), there are CTC employees who have been employed after July 01, 2002, by the private successor companies like respondent No.1. CTC employees have their private contracts with the respondent No.1. Moreover, they have separate and distinct service rules, regulations and policies which govern their employment with the respondent No.1. Also their classification, hierarchy and eligibility requirements for promotion are also different than the GPA employees. Even the selection of CTC employees to the post of Vice President is based on merits, i.e., all eligible CTC employees have to participate in the selection as per rules applicable to them and only successful candidates are selected by the Departmental Promotion Committee (DPC). So, employees from one stream cannot claim parity with respect to any employment terms or conditions of service, with the employees of other stream.
9. It has been submitted that all the petitioners have already been promoted to the post of Chief Engineer which is equivalent to the post of Additional Vice President and their promotion to that post was strictly in adherence with the requirements under DERA, TS Rules and the Tripartite Agreement. The eligibility of petitioners to the post of Vice President and Senior Vice President are not regulated or governed by any statutory provisions and as a corollary their claim for promotion to such post is governed by purely private management decision of the respondent No.1. Thus, respondent No.1 is free to create, modify and even abolish these posts for which the petitioners are seeking reliefs under the present petition.
10. It is contended by Mr. Prabhakar that the petitioners do not have any vested statutory rights to seek promotion to the post of Vice President and Senior Vice President. Moreover, there is no statutory or public law element which exists in respect of promotion in the respondent No.1. So, the rights which have been sought to be invoked by the petitioners under the present petition are purely of private character and respondent No.1 being a private entity is not discharging any public duty. Therefore, the present petition should be dismissed.
11. That apart, the following submissions have also been made to substantiate that the respondent No.1 is a private entity and as such does not discharge any public duty:
9.1 The Govt. of NCT of Delhi (GNCTD) which is respondent No.2, has no share capital in the respondent No.1. The Delhi Power Company Limited (DPCL), which is a holding company, holds 49% of the share capital of the respondent No.1. Whereas, entire 100% shareholding of the DPCL, have been allocated to the GNCTD in terms of the TS Rules.
9.2 Reliance Infrastructure holds 51% of the share capital and has the management control of the respondent No.1.
9.3 In terms of Shareholders Agreement dated June 27, 2002, BSES has 51% shareholding and management control of the respondent No.1, whereas 49% of the shareholding is with the DPCL.
9.4 Clause 143 of the Articles of Association of respondent No.1, provides that in case of conflict or inconsistency between the provisions of Articles of Association and the Shareholder Agreement, the latter will prevail. Clause 2.2 and 2.3 of Article II (Capital Structure), provide that BSES to hold minimum of 51% shares and Holding Company to hold upto maximum of 49% shares, respectively; Whereas, Article III, clearly provides that the entire Management control as well as right to appointment of majority of the Directors and appointment of M.D./whole-time Director/ C.E.O., rests with BSES/respondent No.1; Also, day-to-day management and conduct of the affairs of the Company vest in M.D. or whole-time Directors or the C.E.O.; Article V, provides BSES is to help and assist the company to raise finance required for the business of the Company; Article VII, provides that BSES is to assist the company to provide financial budgetary as required under the Companies Act,2013; Article XII provides that nothing in the Shareholding Agreement can be construed to constitute a partnership or agency relationship between the parties to the Shareholder Agreement and neither party can have any authority to bind the other party in any manner in relation to third parties.
9.5 There is no financial assistance by the GNCTD to meet the expenditure of respondent No.1. The expenditure incurred by the respondent No.1 is regulated by Delhi Electricity Regulatory Commission (DERC) after prudence check in terms of the Electricity Act, 2003 (Act of 2003) and is recovered from the consumers through the tariff determined by the DERC. The expenditure incurred by the respondent No.1 is solely funded by the tariff allowed to the respondent No.1 and other non-tariff income allowed by the regulator without any financial assistance by the GNCTD.
9.6 DERC, which is constituted under the DERA, is an independent body which only has a regulatory role, i.e.,to determine the tariff and carrying out, inter alia, the functions as stated in the DERA, such as, to promote competition, efficiency and economy in the activities of the electricity industry to achieve the objectives and purposes of the DERA, to promote competitiveness and make avenues for participation of private sector in the electricity industry in GNCTD and to ensure fair deal to the customers, etc.
9.7 There is no State protected or State conferred monopoly given to the respondent No.1. Moreover, any entity is free under the Act of 2003, to apply for electricity distribution and retail supply license from the DERC. Section 14 of the Act of 2003 deals with the provision of grant of license and which inter alia provides that the appropriate commission may grant license to two or more persons for distribution of electricity through their own distribution system within the same area.
9.8 The Act of 2003 and rules framed thereunder contemplate open access and framework for a new entrant in the distribution business. Some of the open access consumers in the area of respondent No.1 are; (i) DMRC (ii) Holiday Inn (iii) Max Balaji (iv) Gangaram Hospital (v) BLK Hospital and (vi) Northern Railways. So, under the Act of 2003, there is no State conferred or State protected monopoly in respect of distribution of electricity in a given area of supply.
9.9 There is no deep or pervasive control of GNCTD on the respondent No.1, i.e., the management control of the respondent No.1 is with the majority shareholder / Reliance Infrastructure Limited, a private company having 51% shareholding and management control in the respondent No.1.
9.10 Reliance placed by the petitioners on the provisions of Act of 2003 and powers and functions discharged by the DERC to allege any control by the GNCTD is grossly misconceived, as even private individual and organizations are today subject to diverse obligations under the law. From incorporation to dissolution, business has to act in compliance with law. Nevertheless, that does not make every entity or activity, an authority under Article 12 of the Constitution of India. The regulation by a statute does not make respondent No.1 amenable to Writ jurisdiction. Reliance has been placed upon the judgment of the Supreme Court in the case of Rama Krishan Mission and Anr. v. Kago Kunya and Ors., (2019) 16 SCC 303 to contend the same.
9.11 Even in terms of the provisions of the Act of 2003, GNCTD has no control over the functions of the respondent No.1. Reliance has been placed upon the judgment of the Division Bench of this Court in the case of United RWAs Joint Action v. Union of India & Ors., 2015 SCC OnLine Delhi 13089 to contend the same.
9.12 Functions of the all the DISCOMs, like respondent No.1, are regulated under various electricity statutes but that does not make DISCOMs a government entity. Reliance has been placed upon the judgment of the Supreme Court in the case of Federal Bank Limited v. Sagar Thomas, (2003) 10 SCC 733 to contend the same.
9.13 The respondent No.1 is not discharging any public functions, the breach of which entitles the petitioner to prefer the instant petition. Moreover, the petitioners have submitted that in the present case, the petitioners are not invoking the public functions test to urge for the maintainability of the writ petition. Nevertheless, it has been submitted that the functions of the respondent No.1 are not related to the government or public functions.
9.14 The distribution of electricity in terms of the Act of 2003, is not a public functions but is merely a function providing commercial service for commercial considerations.
9.15 Right to receive supply of electricity is predicated upon the consumer agreeing to pay tariff determined by the DERC. Reliance has been placed on the judgment of the Supreme Court in the case of Jatya Pal Singh v. Union of India, (2013) 6 SCC 452, wherein a writ petition was filed against VSNL and a question arose as to whether VSNL, which was an erstwhile department of the government, after disinvestment, can be amenable to a Writ jurisdiction under Article 226 of the Constitution of India. In this context, the Supreme Court had the opportunity to deal with the distinction between private functions and a body performing public functions and the Supreme Court opined that merely because a function was earlier being discharged or performed by a government department would not be a criteria for holding it to be a public function.
9.16 Moreover, no department of the government was ever transferred to the respondent No.1, i.e., till October 01, 1993, DESU was a department of the Municipal Corporation of Delhi (MCD) and in terms of Chapter XIII of the Delhi Municipal Corporation Act, 1957 (DMC Act), the electricity generation, transmission and distribution was undertaken by DESU.
9.17 With effect from October 01, 1993 the DMC (Amendment) Act, 1993 repealed Chapter XIII containing Sections 274 to 286 of the DMC Act and thus DESU started operating as an autonomous body under the Delhi Administration. Thereafter, on February 24, 1997, DVB was constituted under Section 5 of Electricity Supply Act, 1948 and w.e.f. July 01, 2002 all assets of DVB vested in the GNCTD, were transferred to the successor entity of the DVB in terms of the TS Rules.
9.18 DVB was not a department of the GNCTD. GNCTD has no power or authority in any manner to interfere with the day to day activity of the respondent No.1. Moreover, respondent No.1 regulates its employees and their conditions of service as per its business requirement. The provisions of TS Rules, give ample powers to the respondent No.1, to frame its own rules; the only protection available to the petitioners is that the terms and conditions of the GPA employees cannot be less favorable then those existing prior to July 01, 2002.
12. In essence, the submission is that the petitioners are seeking a public law remedy for an alleged private wrong. Only those decisions which have a public element can be judicially reviewed under writ jurisdiction. The petitioners have failed to appreciate that if the rights are purely of a private character, no mandamus can be issued. In this case, it has to be seen whether (a) the private body has been cast with a public duty (b) the decision sought to be corrected is a decision taken in discharge of the public duty (c) the public duty must have been owed to the petitioners.
13. It has also been submitted that the issue as to whether respondent No.1 can be considered as State under Article 12 of the Constitution of India does not arise in the facts of the present case. Moreover, even if it is presumed that the respondent No.1 discharges public functions, a writ would still not lie to enforce purely private law rights.
14. It has further been submitted that there are differences between public duties and contractual duties (which are a matter of private law). The public duties are enforceable by a Writ of mandamus and can thus form the subject matter of a Writ petition under Article 226 of the Constitution of India. Moreover, under Article 226, a Writ of mandamus can even be issued against a private authority in case it discharges public functions. The term public function can be defined as one which seeks to achieve collective benefits for public and is accepted by the public at large. More so, a body exercises public function, when it intervenes or participates in social or economic affairs of public interests. On the other hand, contractual rights can be enforced only through contractual remedies like by filing the suit for damages, injunction, specific performance and declaration. High Courts, while exercising their jurisdiction under Article 226 cannot issue a writ of mandamus in matters of private law as writs are extraordinary remedies which are normally issued to enforce public duties and not when there are alternative remedies available.
15. It is further submitted that this Court cannot entertain a writ petition against a private limited company and issue mandamus, specifically qua disputes relating to promotion and other conditions of service, when the petitioners are unable to establish violation of any statutory rights and absence of alterative efficacious remedies.
16. Reliance has been placed upon the following set of judgments to contest the maintainability of the present petition:
(a) Ramakrishna Mission & Anr. (supra);
(b) K.K. Saksena v. International Commission on Irrigation and Drainage and Ors., (2015) 4 SCC 670;
(c) Jatya Pal Singh and Ors. v. Union of India and Ors., (2013) 6 SCC 452;
(d) Binny Ltd. and Anr. v. V. Sadasivan and Ors., (2005) 6 SCC 657;
(e) Federal Bank Ltd. v. Sagar Thomas and Ors., (2003) 10 SCC 733;
(f) Pradeep Kumar Biswas v. Indian Institute of Chemical Biologu and Ors., (2002) 5 SCC 111,
(g) Rani Bhatia v. St. Stephens Hospital Society & Ors., 2013 SCC Online Del 4865;
(h) Anil Dutta Mishra v. Gandhi Smarak Sangrahalya Samiti & Ors. 2013 SCC Online Del 3291;
(i) United Rwas Joint Action (supra);
(j) Ladley Mohan v. Union of India & Ors., W.P.(C) No.1479/1995, decided on, May 04, 2010;
(k) Asulal Loya v. Union of India & Ors., 2009 (1)AD DELHI 356.
17. According to Mr. Prabhakar, the main issue which arises in this petition is, whether the petitioners have any vested right to be promoted on their seniority basis to the post of Vice-President, which is a very senior level and newly created post and to be filled strictly on the basis of selection on merits only. The equivalent post of Vice-President did not exist in the erstwhile DVB, specifically, at the time of its unbundling pursuant to the enactment of DERA read with TS Rules, and was only created in 2008 and thereafter. So, only the provisions of Tripartite Agreement were applicable to such posts which were existing at the time of unbundling and not to the newly created posts by the private successor companies.
18. Pursuant to unbundling of DVB, the petitioners became the employees of new private / successor entity and are commonly known as GPA Employees and their transfer to the new companies was governed by DERA, the TS Rules and the Tripartite Agreement. Various posts which were prevalent at the time of unbundling were re-designated in respondent No.1, so as to be in line with designations of a private company. The post of Assistant Engineer was re-designated as Assistant Manager, Executive Engineer was re-designated as Deputy General Manager, Superintending Engineer was re-designated as Assistant Vice-President and Chief Engineer (highest post in the erstwhile DVB) was re-designated as Additional Vice-President.
19. The post of Chief Engineer was the highest post / level to which a GPA employee, in the erstwhile DVB, could have been promoted to and not above. Moreover, Rule 6 (7) of TS Rules, provides that the transferee companies were also entitled to frame their own regulations governing the conditions of service of the personnel transferred to the transferees companies, subject to the condition that such Rules could not be in any way less favourable.
20. By virtue of Tripartite Agreement, some safeguards were also provided to the transferred employees, which are as follows:
(i) Service conditions of all the employees would have to be governed by the CCS (CCA) Rules, FR/SR etc.
(ii) Employees would also have to be entitled to such benefits in the transferred companies which would not be less favourable than the ones which they were getting in the erstwhile DVB.
(iii) All personnel to have continuity of service in all respects.
(iv) Benefits of services accrued before the transfer would have to be fully recognized and taken into account for all purposes including the payment of any and all terminal benefits.
21. It has also been submitted that though some safeguards and protections as stipulated above were provided to the transferred employees with respect to their service conditions, yet, at the same time, sufficient functional autonomy, flexibility and authority were also given to the respondent No.1, specifically, to frame its own regulations governing the condition of service of the transferred employees under Rule 6 (7) of the TS Rules.
22. In any case, the respondent No.1 as a private company also had complete liberty, with respect to a new post or position, which was not in existence under the erstwhile DVB, to: (a) prescribe or decide its own criteria of selection or promotion, (b) follow the principles of corporate governance and (c) make appointments and promotions to very senior level (newly created posts) on the criteria of selection on merit.
23. The respondent No.1 had created new promotional posts of Vice-President and Senior Vice-President, in order to achieve the objectives of working in an efficient, commercial, economic and competitive manner. These posts were also created in order to have the most efficient organization structure as per the industry benchmark and was also purely in conformity with the objectives and provisions of DERA.
24. The promotions up to the level Chief Engineer (Additional Vice-President) have always been carried out as per the applicable recruitment and promotional rules, the provisions of DERA, the TS Rules and the Tripartite Agreement. However, there was no such requirement with respect to the newly created posts of Vice-President created in 2008 and Senior Vice-President created in 2009.
25. Moreover, promotions / re-designations / selections to all the newly created posts, are done strictly in accordance with selection on merits. It has been submitted that the selection to such posts was totally a discretion of respondent No.1 and as such it was not precluded by any of the conditions stipulated in the DERA, TS Rules or the Tripartite Agreement.
26. Mr. Prabhakar has vehemently contended that no GPA employee can claim promotion to such newly created functional posts of Vice-President or the Senior Vice-President as a matter of right or on the basis of seniority-cum-fitness. The promotion to the said posts is only allowed purely by way of selection on merit.
27. It is his case that it is possible for both sets of employees to be promoted to the newly created post of Vice-President and Senior Vice-President, provided that they found to be eligible for such promotion by the selection panel on selection on merit basis. Respondent Nos. 3 to 8 were found more suitable than the petitioners for the post of Vice-President on selection on merit basis, therefore, it cannot be said that any discrimination has been taken place while promoting respondent Nos. 3 to 8 over the petitioners.
28. Respondent Nos. 7 & 8 are CTC employees and were promoted w.e.f. April 01, 2018 to newly created posts of Vice-President after completing the minimum eligibility criteria of promotion, i.e., three years in the grade of Additional Vice-President and also strictly on the basis of selection on merits by a selection panel. The re-designation of the respondent Nos. 3 to 6, who are GPA employees, to the post of Vice-President, was purely on the basis of criteria of selection on merits. The petitioners were also considered for being elevated to the post of Vice-President; however, respondent Nos. 3 to 6 were found more suitable candidates than the petitioner for elevation to that post by the selection panel on the basis of pure criteria of selection on merits. A senior officer including an outside member of the selection panel had duly assessed the suitability of all the candidates, including the petitioners, based on their qualifications, experience, ACR and personal interview and made recommendations of 8 suitable candidates out of total 15 who had appeared for the selection. Therefore the elevation of the respondent Nos. 3 to 6 to the post of Vice-President was not mala fide, arbitrary, biased or discriminatory in nature.
29. It has additionally been submitted that all the appointments and promotions of a Group-A Officer up to the post of Chief Engineer used to be governed by the Recruitment and Promotion Regulations (R & P Regulations) which were applicable to the erstwhile DVB and admittedly all the GPA employees of erstwhile DVB, have been duly granted each and every benefit available to them in the erstwhile DVB and also they have been duly promoted till the level of Chief Engineer re-designated as Additional Vice-President, in conformity with the R & P Regulations. So, only right and protection, which was available to the petitioners under the Tripartite Agreement was that their terms and conditions which were existing in the erstwhile DVB could not have been altered with.
30. It has also been submitted that there are currently 24 positions of Vice-President (14 of GPA employees and 10 of CTC employees) and 04 positions of Senior Vice President (01 of GPA employee and 03 of CTC employees) are in existence with respondent No.1. He submitted that no such positions or their equivalent were in existence during the time of erstwhile DVB. He also submitted that the post of Member (Technical) was neither a promotional post nor governed by the R & P Regulations and it was only a selection post made by the GNCTD.
31. Promotion up to the level of Chief Engineer has always been carried out in conformity with the applicable R&P Regulations, the provision of DERA, the TS Rules and the Tripartite Agreement. However, there was no such requirement with respect to new positions of Vice-President and the Senior Vice-President. The selection to these new positions can only be done on merits and no GPA employee can claim an inherent right to such new positions.
32. Reliance has also been placed upon the following judgments of this Court to contend that the petitioners, being GPA employees, belonging to erstwhile DVB, cannot claim parity with the CTC employees, who have joined the respondent No.1, after the bundling of the DVB:
i. Rajbir Lamba v. BSES Rajdhani Power Ltd. and Ors., W.P.(C) No.18713/2005, decided on April 28, 2008;
ii. Rajeev Kumar Garg v. BSES Rajdhani Power Ltd., W.P.(C) No.1828/2013, decided on March 20, 2013.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.2
33. The primary submission of Mrs. Avnish Ahlawat, learned Standing Counsel appearing on behalf of the respondent No.2 (GNCTD) was that employees of erstwhile DVB have been transferred in terms of Rule 6 of TS Rules, on “as-is-where-is’ basis, the place of work, suitability, experience and other relevant consideration to the six companies i.e. IPGCL/PPCL, Delhi Transco Limited, (DTL) BSES Rajdhani Power Ltd., BSES Yamuna Power Ltd. and North Delhi Power Ltd. (now known as Tata Power Delhi Distribution Limited).
34. As per Rule 6, the petitioners after unbundling of the erstwhile DVB on July 01, 2002, stand transferred to and absorbed in respondent No.1 and as such ceased to be employees of DVB in accordance with TS Rules, which fact was also observed by this Court, in its Judgment, dated August 27, 2012. She has referred to the judgment of the Supreme Court dated May 03, 2010 in Civil Appeal No 4269/2006, NDPL vs. Govt of NCT of Delhi &Ors., wherein it was categorically held that erstwhile employees of DVB, became the employees of successor companies wherever they stand transferred under TS Rules from July 01, 2002, on as is where is basis.
35. So, it is her submission that since the petitioners are employees of respondent No.1, any direction, if to be given qua promotion or seniority with retrospective effect or other benefits, will be given against respondent No.1. Moreover, no relief has been claimed by the petitioners against the respondent No.2 and rightly so, since, respondent No.2 was never the employer of petitioners. So, accordingly, the instant petition is liable to be dismissed against respondent No.2.
ADDITIONAL SUBMISSIONS ON BEHALF OF PETITIONERS
36. Mr. Garg in his rejoinder arguments to the arguments of the respondent Nos.1 and 2 submitted that the petition is very well maintainable as the powers conferred to this Court under Article 226 of the Constitution of India are very wide.
37. He submitted that even though there is no bar upon the respondent No.1, for creating new positions or making appointments or promotions to the senior level posts that were not existing in the erstwhile DVB, the respondents are under an obligation to ensure that any new rule or regulation being introduced is not less favorable to the erstwhile DVB employees and similarly it has to ensure that the said rules do not have any adverse effect on the service conditions of the petitioners. To contend this, reliance has been placed upon Rule 6(3) of the TS Rules, which as per them, prohibits the respondent No.1 from framing regulations governing the conditions of service of the personnel transferred, to their detriment. `
38. Reliance has also been placed upon Section 16(1)(a) of DERA, to submit that, the terms and conditions of service of erstwhile employees of DVB cannot be in any way unfavourable or inferior to those applicable to them immediately before their transfer.
39. It has also been submitted that Section 3(1) of DERA provides for the formation of Electricity Regulatory Commission and it is pursuant thereto, DERC was constituted. Under Section 12 of DERA, the DERC is guided by the directions issued by the government qua matters of public policy involving the public interest. Moreover, Section 12(3) of DERA, allows the government to issue policy directions concerning any subsidy to be allowed for supply of electricity to any class or classes of person, provided, it compensates the company affected to the extent of subsidy granted.
40. Section 14 of the Act of 2003 permits DERC to grant license to any person for distribution of electricity as a licensee. Section 18 of the Act of 2003 provides that DERC can also make amendments to conditions of a license and as per Section 19, DERC can also revoke the grant of license. Sections 23, 24, 45, 50 and 51 of the Act of 2003, provide more sweeping powers to it to regulate the activities of the licensee.
41. He has submitted that the aforementioned scheme of arrangement reveals that the government through DERC, holds a deep and pervasive control over the respondent No.1. Moreover, the scheme of DERA, TS Rules, Tripartite Agreement and also the provisions of the Act of 2003 manifest that there is total control in the matters of constitution, day to day functions and the administration of the DISCOMs including the respondent No.1, which is a licensee of the government through DERC, performing such work which was being performed directly by the government through the erstwhile DVB.
42. That apart, the work performed under a license is statutorily monitored, controlled and is monopolistic. Moreover, the Articles of Association and Memorandum of Association of respondent No.1 demonstrate that its subscribers are all government officials posted in different departments. So, it is their fundamental case that respondent No.1 satisfies the parameters laid down by the Supreme Court and this Court, in the following judgments, to determine whether an entity belongs to the definition of the State as enshrined under Article 12 of the Constitution of India:
(i) Rajasthan State Electricity Board v. Mohan Lal, (1967) 3 SCR 377;
(ii) Ajay Hasia v. Khalid Mujib Sehravardi, 1981 (1) SCC 722,
(iii) Raman Daya Ram Shetty vs. International Airport Authority of India & Ors., 1979 (3) SCC 489,
(iv) S.P. Rekhi v. UOI, 1981 (1) SCC 449,
(v) Pradeep Kumar Biwas v. Indian Institute of Chemical biology and others, (2002) 5 SCC 111),
(vi) Sabhajit Tewary v. Union of India (1975) 1 SCC 485,
(vii) Delhi Stock Exchange v. K.C. Sharma, (2002) 98 DLT 234;
(viii) U.P. State Coop. Land Development Bank Ltd. v. Chandra Bhan Dubey, (1999) 1 SCC 741, and
(ix) K.K. Saksena v. International Commission on Irrigation & Drainage, (2015) 4 SCC 670.
43. Reliance has also been placed upon the judgment of the Supreme Court in the case of Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889, to contend that that relationship between a Government and its Servant is not like an ordinary contract of service between a master and a servant, but it is something in the nature of status. The duties are fixed by the law and in the enforcement of these duties, society has an interest. The petitioners herein, are not seeking any benefit/post, which is created by respondent No.1 but are only exercising claims against the benefit which was assured to them when they joined the service of government.
44. It is his submission that it cannot be said that the respondent No.1 organization is a private company. However, respondent No.1 is a joint venture with the respondent No. 2 i.e. GNCTD. Moreover, respondent No.1 has claimed itself to be a joint venture on its official website. Hence, it is clear that the respondent No.1, is joint venture organization with the respondent no.2, i.e., GNCTD. Therefore, it cannot take the plea that it is a private company and thus has full autonomy to formulate new rules and policy for promotion and deny promotion to the petitioners.
45. The petitioners had laid their claims over the post on the premise that in terms of the declared policy of the respondent No.1, they are entitled to be promoted from the post of Additional Vice President to Vice President upon completion of three years as Additional Vice President and from Vice President to Senior Vice President on completion of three years as Vice President.
46. Mr. Garg submitted that in the report of the Wage Revision Committee (WRC) headed by a retired Judge of this Court, it was noted that to avoid stagnation of Group A employees on a particular post, it shall be in the interest of their career growth that the intermediate posts are created as non functional posts between two functional posts. The WRC, therefore, directed all the entities under DERA, including respondent No.1, to incorporate uniform promotion policy. It is their case that the respondent No.1 has specifically acknowledged applicability of these recommendations, which fact, has been recorded in order dated August 13, 2018 of this Court in W.P. (C) No.5875 of 2008.
47. Thereafter the respondent No.1 submitted documents regarding the service conditions of the GPA employees, as well as of the CTC employees, before the WRC. The report discloses about the documents submitted by respondent No.1, in which, it has claimed that after 15 years since privatization of DVB, the service conditions and benefits of the GPA employees have improved and disclosed about the promotion criteria applicable to the GPA employees. In those documents also, it has been admitted by respondent No.1, that the post of Vice-President onwards has been created by them. It was further provided that the promotion of GPA employees to the posts of Additional Vice-President onward is time bound with maximum number of experience required and not on CTC basis as claimed by the respondent No.1. It is the submission of Mr. Garg that it is an admitted fact and has been reiterated by respondent No.1, in the chart submitted by it before this Court, wherein it has been clearly demonstrated that the post of Additional Vice-President, Vice-President and Senior Vice-President are to be filed by GPA employees on the basis of criteria mentioned therein.
48. It was also his submission that posts headed by GPA and CTC employees can be interchanged. Therefore, the petitioners cannot be discriminated viz-a-viz their admitted juniors and denied promotions on the basis of a criteria not admittedly applicable to the petitioners.
49. Reliance has also been placed upon the judgment in the case of S.K. Ghosh & Anr. v. UOI, AIR 1968 SC 1385, wherein the Supreme Court had quashed discriminatory action of the erring authority to promote juniors ahead without any cogent reason. He has also taken the aid of another judgment of the Supreme Court, in the case of Union of India v. Atul Shukla & Ors., Civil Appeal No.4717-4719/2013 and State of Punjab & Ors. v. The Senior Vocational Staff Masters Association & Ors., to submit that two categories of employees should be treated equally.
50. That apart, it is contended by Mr. Garg that the present petition is also maintainable against the respondent No.2, as, it holds 49% shares in the respondent No.1, and, moreover, it is also one of the signatories of the Tripartite Agreement and thus it has the authority to give directions to the respondent No.1. Reliance has also been placed upon an order of the DoPT, wherein, DoPT, vide Order dated December 31, 2010, had stated that any change, modification and formulation of new rules, especially for recruitment and promotion, the department/entity has to take the approval from the concerned ministry, in this case, the Ministry of Power or GNCTD. So, approval of respondent No.2 is a pre-requisite before any change is to be made by the respondent No.1.
51. To substantiate the afore-said contention, it has been submitted that the WRC was constituted by the respondent No.2. The WRC had submitted its report on July 29, 2019 and after the approval of Lieutenant Governor of GNCTD, the respondent No.2 has notified the same.
52. The WRC had recommended that the Chief Engineer/GM having two (2) years experience on the post shall be designated to the post of Executive Director, which is equivalent to the post of Vice President. Similarly, petitioners have duly completed 3 years of service as Additional Vice President (earlier Chief Engineer) on April 01, 2018, therefore they are since then eligible for promotion to the post of Vice President. However, the respondent No. 1 has denied them their due promotion and instead promoted their juniors ahead of them. It is their case that the onus to implement the WRC recommendations and to make sure that the service conditions of the petitioners were in no way altered to their detriment, was upon the respondent No.2/GNCTD and thus, the present petition is duly maintainable against respondent No.2.
53. The Post of Assistant Manager, Manager and Senior Manager to which CTC employees are posted are equivalent to the post of Assistant Manager of the GPA employees. The post of Dy. General Manager and General Manager of the CTC employees is equivalent to the post of Dy. General Manager of the GPA employees. Thereafter, the next post, i.e., Additional Vice President is common for both CTC and GPA employees. Similarly, the next two hierarchal posts are also common, i.e., Additional Vice President and Vice President. However, for GPA employees, the post of Vice President is a Cluster / Non-functional post, unlike CTC employees. It is further submitted that similar to GENCO and DTL who have created the post of Executive Director as a Cluster and non-functional post between Chief Engineer / General Manager and Director (Technical) at the same scale of Chief Engineer, the respondent No.1 has also created the post of Vice President as a Cluster and non-functional post between Additional Vice President (Chief Engineer) and Senior Vice President (HAG scale) for GPA employees at the scale of Additional Vice President.
54. So, on the basis of aforesaid submissions, Mr. Garg has sought the reliefs as mentioned in paragraph 1 above.
ANALYSIS AND FINDINGS
55. Having heard the learned counsel for the parties and perused the record, I note that the petitioners are challenging the promotion of respondent Nos.3 to 8 ahead of petitioner No.1 and of respondent Nos.6 to 8 ahead of petitioner Nos.2, 3 & 4 to the post of Vice President with a further prayer to promote them as Vice President w.e.f April 1, 2018 with all consequential benefits.
56. It may be stated that an issue has been raised by this Court and also by Mr. Prabkahar, the counsel for the respondent No.1 on the maintainability of the prayers sought in the petition. The said objection has to be seen from the perspective that it is the case of the respondent No.1 that the posts of Vice President and Senior Vice President are not regulated or governed by any statutory provisions and the claim for promotion to the said post is purely a private management decision of the respondent No.1.
57. Mr. Garg has argued extensively on why the petition would be maintainable, as has been noted in the paragraphs above. The issue of maintainability of the petition is closely connected with the issue / claim of the petitioners regarding their promotion to the post of Vice President.
58. The substantive plea of Mr. Garg, is that the next higher post to the post of Chief Engineer in the utilities of the erstwhile DVB including GENCO and DTL, is Executive Director (cluster and non-functional post) which has been re-designated as Vice President by the respondent No. 1. He stated the post of Executive Director in GENCO and DTL now re-designated as Vice President by the respondent No.1 should be a non-functional post and, the petitioners having fulfilled the requisite qualification for promotion, i.e., completed three years of service as Additional Vice President (earlier Chief Engineer) on April 1, 2018, are entitled to promotion to the post of Vice President.
59. Though the submission of Mr. Prabhakar that the petitioners seeking promotion are invoking remedies in the nature of private rights prima facie looks appealing, but as this Court has heard the parties on merits at length, I proceed to decide the present petition on its merit.
60. It is stated that the post of Vice-President having been created similar to the post of Executive Director in GENCO and DTL-functionaries of the erstwhile DVB, a promotion channel is available to petitioners beyond the post of Chief Engineer. One document that has been placed on record by the petitioners to substantiate their submission is Annexure-P8, the contents of which are reproduced as under:
Promotion Criteria for GPA Employees
Cadres
As per DVB Norms
As per BYPL Norms
(As an illustration)
Max. Experience years Required
Promotion on Criteria
Promotions on the basis of MOUs
Promotion on Criteria
Assistant Engineer / Assistant Manager
Direct Recruitment / Promotion by seniority
Not applicable
Not applicable
Not applicable
Executive Engineer (XEN/Dy. General
Degree/Diploma 8/11 Years
Seniority, Service rendered availability of vacancy
MOU-19/09/2013 Degree/Diploma 6/8 Years
Ratio:
Direct / Seniority 9:3
Time bound. No limitation of number of vacancies
Manager
Ratio:
Direct / Seniority
9:1
MOU- 23/01/2015 Degree / Diploma 4/6 Years
Ratio:
Direct / Seniority
N/A
Time bound. No limitation of number of vacancies
Superintending Engineer / Assistant Vice President
Only for degree holders. After completion of 5 years service as XEN
Seniority service rendered availability of vacancy followed by progress of selection
MOU- 10/06/2015 Degree / Diploma 4/6 Years
Time bound. No limitation of number of vacancies
Chief Engineer / Addl. Vice President
Only for degree holders. After completion of 5 years service as SE
Seniority service rendered availability of vacancy followed by progress of selection
MOU- 10/06/2015 Related duration with predetermined formula
Time bound. No limitation of number of vacancies
Vice President
No cadre
N.A.
MOU- 29/03/2015 Related duration with predetermined formula
Time bound and process of Selection
AGMT/PB (SC)
No cadre
N.A.
Vacancy based and no time limitation one position of the rank of V.P. (SC) was created on the analogy of DTL/IPGCL
Who are working as VP subject to appropriate selection and availability of position of V.P. (SG)
Sr. V.P./
No cadre
N.A.
Vacancy based and no time limitation One position of the rank of Sr. V.P. was created for the senior most VP (SG) in GPA cadre
Who are working V.P. (SG) subject to appropriate Selection appropriate selection and availability of position at Sr. VP
61. A perusal of the above reveals that the post of Chief Engineer was the highest post to which the petitioners could have been promoted. In that sense, the service conditions as were applicable to the petitioners, who were employees of the DVB, have not been curtailed. Though the post of Vice President in BSES was created in the year 2008, it was on October 16, 2020 (w.e.f January 1, 2016) that the promotion criteria has been formulated, with the post of Vice-President, as a functional post in the scale of ?1,82,200 2,24,100 + two increments subject to availability of vacancy. The same is clear from the following table in the order dated October 16, 2020:-
62. Both GPA and CTC employees are eligible for consideration. If that be so, GPA employees like the petitioners herein cannot claim promotion to the post as a matter of right on the ground that the post needs to be a non-functional post. They also cannot claim that denial of such promotion would infringe the service conditions applicable to them in the erstwhile DVB, which have been protected by DERA, TS Rules and the Tripartite Agreement.
63. It follows that promotion to the post of Vice-President is not based on seniority alone. It is a promotion based on merit. It is not the case of the petitioners that they have not been considered. In fact, it is represented by the respondent No. 1 that the petitioners were considered, but their juniors were found to be more meritorious. That apart, it is the conceded case of the petitioners that they attained eligibility for the post of Vice President only on April 1, 2018, i.e., after January 1, 2016, when it was declared that promotion to the post of Vice-President has to be on the basis of merit, as the same is a functional post. If the plea of the petitioners that they have the right to the post of Vice-President being a non-functional post on completion of three years without undergoing the selection process is accepted, then it would mean that the petitioners are aggrieved by the office order dated October 16, 2020, which admittedly has not been challenged by them in these proceedings.
64. In essence, any promotion / appointment to the post of Vice-President which is a functional post has to be on the basis of merit and would entail a selection process determining the relative merits of the candidates in the zone of consideration. It is noted at this juncture that the respondent No.1 has submitted that as and when further vacancies arise in the post of Vice President, the petitioners would again be considered for selection based on their merit.
65. Yet another plea of the petitioners is that GPA employees have been completely overlooked and that CTC employees have been promoted in violation of the TP Scheme and the Tripartite Agreement. I must state such a plea seems to be contrary to the facts on record. It is the case of the petitioners themselves that respondent Nos. 3 to 6 who are GPA employees junior to the petitioners have been promoted to the post of Vice-President. It is also the stand of the respondent No.1 as noted from the additional affidavit filed by them that out of the 24 Vice-Presidents at the respondent No.1, 14 are GPA employees and 10 are CTC employees. Therefore, there is no case of GPA employees being overlooked for promotion.
66. Insofar as the reliance placed by Mr. Garg on the judgment in S.K. Ghosh (supra) is concerned, the Supreme Court therein was dealing with the facts, wherein the two petitioners S.K. Ghosh and A.M. Narula appeared in the examination held in October, 1945 for recruitment to the Indian Audit and Accounts Service and other Allied Central Services. On the basis of the result of the examination, both of them were selected for appointment to the post of Postal Superintendents’ Service Class-II. Both the petitioners joined their respective positions. On May 24, 1948, the Government sanctioned the creation of Indian Postal Service Class-I with four grades. The decision of the Government was communicated to the Director General, Posts and Telegraphs, which laid down the manner of recruitment to the Service and the various sources from which recruitment was to be made. The normal rule laid down was that appointments to junior time-scale were to be made by direct recruitment against 75% of the vacancies and the remaining 25% were to be filled by promotion by selection of the best officers in the Postal Superintendents’ Service Class-II, seniority being regarded only when all other qualifications were practically equal.
67. In the meantime, direct recruitment to Class-I Service was also made on the basis of competitive examinations held in the years 1948 and 1949, and a number of direct recruits were selected which includes the respondent Nos.3 to 7 before the Supreme Court. The question of fixing the seniority arose inter-se between the direct recruits and the recruits who were promoted from Class-II service i.e. the petitioners before the Supreme Court. At the time when the seniority was fixed, the same was fixed as per the office memorandum dated June 22, 1949. Two petitioners were placed at Sl. Nos. 31 and 32, while the five respondents were placed at Sl. Nos. 33, 36, 41, 42 and 44. Paragraph 2 of the OM dated June 22, 1949 contained the decision that seniority in respect of persons employed in any particular grade must, as a general rule, be determined on the basis of the length of service on that grade, as well as service in an equivalent grade. Therefore, the Ministry issue an OM dated December 22, 1959 laying down the general principle for determining seniority of government employees, to be applicable prospectively. Subsequently, the petitioners as well as respondents Nos. 3 to 7 were promoted as Directors. As per the parties, the two grades of Director of Postal Services were amalgamated into one at the time of the promotions. The case of the petitioners was that respondent Nos. 3 to 7 were promoted after the petitioners were promoted and as such the petitioners were senior to them. Subsequently, by an Order dated 5th June, 1965, the Government suddenly revised the seniority of these various officers.
68. The Court noted that Rule 3 of the Appendix 6A prescribes that the method of recruitment to posts in the grade shall be by selection from among the officers of senior time scale on the basis of selection. As such, appointment to the grade of Directors of Postal Services is made by selection and not on the basis of promotion in accordance with seniority. The presumption exists that the promotion of the petitioners and Respondents 3 to 7 to the grade of Directors must have been made in accordance with these instructions and rules, so that the appointment of all these concerned parties as Directors was based on merit to be taken into account at the time of selection and not on seniority in the time-scale of Class I Service. The seniority in the grade of Directors of Postal Services was not dependent on the inter se seniority in the junior time-scale and any alteration in the seniority in the latter could not form the basis for revising the seniority in the former grade. Accordingly, the Supreme Court held that revision of seniority in the grade of Director of Postal Service by the order dated January 17, 1966 was not based on any rule or appropriate principle applicable for determination of seniority in that grade and must be held to be arbitrary, as the same affects the civil rights of the petitioners in respect of the future promotion and must therefore be struck down.
69. The said judgment has no applicability to the facts of this case, more so, when it is a settled law, when promotion is based on selection, then merit is the criteria. Moreover, it is the case of the respondent No.1 that the petitioners were also considered for promotion but the so-called juniors to the petitioners got the posts on their merit, and have been promoted, which aspect has not really been contested by the petitioners.
70. Insofar as the judgment in the case of Atul Shukla (supra) is concerned, the Supreme Court has held that when officers are part of a cadre, their birth marks, based on how they joined the cadre, i.e., whether through direct recruitment or promotion, is irrelevant. They must be treated equal in all respects including for the purposes of salary, age of superannuation and other benefits. The said judgment is not applicable to this case. It is not the case of the petitioners that they have been treated differently on the above aspects. The case is relatable to promotion based on merit. The petitioners having been found lacking on merit compared to respondent Nos. 3 to 8, were not promoted.
71. In The Senior Vocational Staff Masters Association (supra) on which learned counsel for the petitioners has placed reliance, the issue before the Supreme Court was of pay parity. It was in that context, the Supreme Court held that when two categories of employees are treated as equal initially, they should continue to be so treated unless a different treatment is justified by some cogent reasons. Such cogent reasons clearly exist in this case, as the respondent Nos. 3 to 8 have been found to be more meritorious, and were thus promoted over and above the petitioners.
72. In view of the discussion above, this petition is liable to be dismissed. It is ordered accordingly. No costs.
V. KAMESWAR RAO, J
OCTOBER 05, 2023/aky
W.P.(C)9832/2019 Page 39 of 39