Non-Reportable  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3448 OF 2008

Rakesh Sharma & Ors.,                   …     Appellants Versus

Chairman/Managing Director, Uttaranchal Power Corporation & Ors.,     … Respondents

WITH

CIVIL APPEAL NO. 3476 OF 2008,

WITH

SPECIAL LEAVE PETITION (C) NOs.5278-5279 of 2009

AND

SPECIAL LEAVE PETITION (C) NO.4827 of 2009

J U D G M E N T

A. K. PATNAIK, J.

IN CIVIL APPEAL NOs. 3448 OF 2008 AND 3476 OF 2008

These  two  appeals  are  against  two  separate  orders  

passed  by  the  Division  Bench  of  the  High  Court  of  

Uttaranchal on 28.02.2006 and arise out of the same set of  

facts and are accordingly being disposed of by this common  

judgment.

2. The  facts  very  briefly  are  that  written  tests  and  

interviews  were  conducted  in  the  years  1977,  1979  

and 1981 for promotion of Operating Staff (Technical  

Grade-II) to the post of Junior Engineer in the Uttar  

Pradesh State Electricity Board (for short ‘the UPSEB’)  

under  Regulation  17  of  the  Uttar  Pradesh  State  

Electricity  Board  Subordinate  Electrical  and  

Mechanical Engineering Service Regulations, 1972 (for  

short  ‘the  Regulations’).   Mandip  Singh  and  others,  

who had taken the written test and interview in 1977,  

moved the  Allahabad High Court  in a batch of  Writ  

Petitions and on 28.08.1989 a Division Bench of the  

High Court by its order directed the UPSEB to declare  

the select list of candidates who had appeared in 1977  

examination  and  the  interview  and  after  exhausting  

the same to make appointments from the select list of  

the candidates who had appeared in the 1979 written  

examination  and  interview.   On  24.09.1999,  the  

UPSEB  issued  an  Office  Memo  cancelling  the  

examination  conducted  in  1985  because  it  was  not  

possible to promote the Technical Cadre employees to  

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the  post  of  Junior  Engineer  on  the  basis  of  

examination conducted in the year 1985 till the order  

dated 29.08.1989 of the Allahabad High Court in the  

case of Mandip Singh & others was complied with.  On  

09.11.2000,  the  new  State  of  Uttaranchal,  now  

renamed  as  Uttarakhand,  was  carved  out  of  the  

erstwhile State of Uttar Pradesh and the Uttaranchal  

Power  Corporation  Limited  (for  short  ‘the  UPCL’)  

became  the  successor  of  UPSEB  for  the  State  of  

Uttarakhand and started functioning with effect from  

01.04.2001  and  adopted  the  Regulations  for  its  

employees.  On 05.04.2003, the Selection Committee  

of UPCL recommended that there was no hindrance for  

promoting the candidates selected on the basis of 1985  

examination  as  there  were  vacancies  to  the  post  of  

Junior  Engineer  after  promotion  of  the  selected  

candidates of the years 1977 and 1979.  Thereafter, a  

list  of  employees,  who  had  taken  the  examinations  

conducted by the UPSEB in the years 1977, 1979 and  

1985,  was  prepared and they  were  promoted  to  the  

post  of  Junior  Engineer  by the Board of  UPCL after  

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relaxation under Regulation 31 of the Regulations.

3. These promotions were challenged in Civil Writ Petition  

Nos. 3 of 2003 (S/S), 979 of 2002 (S/S), 7195 of 2001  

(S/S)  and  803  of  2003  (S/S)  in  the  High  Court  of  

Uttaranchal.  The four Writ Petitions were heard by a  

learned Single Judge and allowed by a common order  

dated 25.10.2004.  The learned Single Judge held that  

the promotions of employees of the cadre of Technical  

Grade-II to the post of Junior Engineer on the basis of  

1985  examination  cannot  be  said  to  be  legal  after  

cancellation of 1985 examination by the Office Memo  

dated  24.09.1999  of  the  UPSEB,  unless  either  

Regulation  17,  which  provides  for  promotion  on the  

basis  of  written  examination  and  interview,  was  

amended  or  the  order  of  cancellation  of  the  1985  

examination was recalled.  The learned Single Judge  

directed  the  UPCL  to  hold  examination  afresh  

complying with the provisions of Regulation 17 of the  

Regulations.   The learned Single  Judge quashed the  

seniority  list  of  Junior  Engineers  dated  17.11.2001  

which was based  on the promotions held on the basis  

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of  1985  examination  and  further  observed  that  the  

promotions  made  on  the  basis  of  the  examinations  

held  in  the  years  1977  and  1979  shall  remain  

unaffected.   The  learned  Single  Judge,  however,  

observed that those already promoted or holding the  

charge of Junior Engineers will not be disturbed and  

their functioning shall be subject to the result of the  

fresh examination to be held.   

4.  Rakesh Sharma and others, who had been promoted  

as  Junior  Engineers  on  the  basis  of  the  1985  

examination, challenged the order of the learned Single  

Judge before the Division Bench of the High Court of  

Uttaranchal in Special Appeal Nos. 96 of 2004 and 103  

of  2004  but  the  Division  Bench  of  the  High  Court  

dismissed  the  Special  Appeals  by  order  dated  

28.02.2006.   The  Division  Bench  agreed  with  the  

reasons  given  by  the  learned  Single  Judge,  but  

observed  that  promotees  on  the  basis  of  the  1985  

examination  shall  be  treated  as  working  on  ad  hoc  

promotion and shall be allowed to continue subject to  

their appearance and passing in the examination and  

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the interview in accordance with Regulation 17 of the  

Regulations and those selected afresh will be treated to  

have been appointed from the date of promotion.  The  

UPCL also filed Special Appeal Nos.105, 107, 112 and  

113 of 2008 against the order dated 28.02.2006 and  

by  a  separate  order  dated  28.02.2006  the  Division  

Bench of the High Court sustained the order of learned  

Single Judge and disposed of the Special Appeals with  

the direction that those promotees,  who had retired,  

shall not be affected by the order of the learned Single  

Judge.  

5. Mr.  P.  P.  Rao,  learned counsel  for  the  appellants in  

Civil  Appeal  No.3476  of  2008,  and  Mr.  D.  K.  Garg,  

leaned  counsel  for  the  appellants  in  Civil  Appeal  

No.3448  of  2008,  submitted  that  the  selection  of  

candidates  for  promotion  to  the  post  of  Junior  

Engineer  made  on  the  basis  of  written  examination  

and  interview  held  in  1985  was  in  accordance  with  

Regulation 17 of the Regulations and the High Court  

has not found the selection of candidates to be illegal.  

They submitted that the selection of candidates made  

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in  the  year  1985 was cancelled  by  the  Office  Order  

dated  24.09.1999  of  the  UPSEB  because  if  the  

directions of the Division Bench of the Allahabad High  

Court in the case of Mandip Singh & Ors. v. UPSEB &  

Ors.  to  first  appoint  the  candidates  selected  on  the  

basis of examinations and interviews held in 1977 and  

1979, had to be complied with, the candidates selected  

on the basis of the examination and interview held in  

1985 could not be appointed.  Learned counsel for the  

appellants further submitted that the High Court was  

under an erroneous impression that the Office Order  

dated 24.09.1999 cancelling the examination of 1985  

had not been recalled.  They referred to the minutes of  

the 14th Board of Directors’ Meeting of UPCL held on  

26.12.2003 and 24.01.2004 to show that the Board of  

UPCL  had  resolved  that  the  employees  who  have  

qualified  in  the  1985  examination  and  had  been  

absorbed in the services of the UPCL would be eligible  

to  be  promoted  to  the  post  of  Junior  Engineer.  

Learned counsel for the appellants submitted that the  

Board  of  UPCL,  therefore,  had in  effect  recalled  the  

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cancellation of the 1985 examination for promotion to  

the  post  of  Junior  Engineer  and,  therefore,  the  

candidates, who have been selected on the basis of the  

1985 examination were promoted to the post of Junior  

Engineer  in  accordance  with  Regulation  17  of  the  

Regulations  and  their  appointments  could  not  have  

been declared to be invalid by the High Court.

6. Mr.  B.  Datta,  learned  counsel  for  the  private  

respondents in both the appeals, on the other hand,  

submitted that the Board of the UPCL has committed a  

breach of the directions of the judgment of the Division  

Bench  of  the  Allahabad  High  Court  in  the  case  of  

Mandip Singh & Ors. v. UPSEB & Ors. and has resolved  

in its meetings held on 26.12.2003 and 02.01.2004 to  

promote  the  employees  who  had  qualified  in  1985  

examination.   He  submitted  that  the  UPCL  should  

have held another written examination and interview  

in accordance with Regulation 17 of the Regulations.  

He also submitted that the private respondents were  

not  promoted even though they qualified  in the  oral  

tests  and  instead  their  juniors  in  the  cadre  of  

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Technical Grade-II were promoted on the basis of the  

1985 examination, which have been held to be illegal  

by the High Court.

7. We have  considered  the  submissions  of  the  learned  

counsel for the parties and we find that in the batch of  

Writ  Petitions in the case of  Mandip Singh & Ors. v.  

UPSEB & Ors.,  the  Division  Bench of  the  Allahabad  

High Court in its judgment dated 29.08.1989 did not  

hold  that  the  selection  of  candidates  made  for  

promotion on the basis  of  1985 examination was in  

contravention of Regulation 17 of the Regulations or  

was  in  any  way  illegal.   The  High  Court  only  

considered the grievances of the candidates, who had  

appeared  in  the  1977  and  1979  examinations  and  

issued writs of mandamus granting some reliefs.  Para  

14 of the judgment of the Division Bench in  Mandip  

Singh & Ors. v. UPSEB & Ors. is quoted hereinbelow:  

“In the result, the writ petitions are allowed.  A mandamus is issued directly to the U.P.  State Electricity Board to declare the list of  the  candidates  appeared  in  1977  examination and after exhausting the same  to make appointments from the list  of  the  candidates  appeared in  1979 examination.  The months from the date of production of a  

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copy of this order.  A further mandamus is  issued  directing  the  UP  State  Electricity  Board to declare the list of temporary Junior  Engineers  and  thereafter  to  make  appointments  from that  list  in  accordance  with law.  A mandamus is also issued to the  U.P.  State  Electricity  Board  to  reduce  the  marks  for  interview  and  oral  test  and  to  make  selection  accordingly  and  this  shall  also  be  done  within  two months from the  date of production of a copy of this order.  The  U.P.  State  Electricity  Board  is  also  directed  to  relax the  qualifications  only  in  accordance  with  law  and  taking  into  consideration the Regulation 31.”

8. We  further  find  that  although  in  the  judgment  in  

Mandip  Singh  &  Ors. v.  UPSEB  &  Ors.  the  Division  

Bench of the Allahabad High Court did not declare the  

selections made on the basis of 1985 examination and  

interview to be in any way illegal, the UPSEB cancelled  

the selections by Office Order dated 24.09.1999, which  

is quoted hereibelow :

“Uttar Pradesh State Electricity Board

No.3726(   )–AR-09(Ga)/Sachiv-99-20 F90G/88 (TC) Dated September 24, 1999

Office Order

As per the note  dated 17.12.1996 made by  U.P.  State  Power  Corporation  the  examinations held in the year 1985 could not  

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be  given  effect.   Unless  the  judgment  and  order  dated  29.08.1989  passed  by  Hon’ble  High Court of Allahabad (Allahabad Bench) in  Writ  Petition No. 4858/85 entitled Mandeep  Singh  vs.  UPSEB  is  not  complied  with.  Besides this,  100 marks were fixed for  viva  voce.  After having kept the recommendations  made by Power  Service  Commission on the  aforesaid point the examinations held in the  year  1985  for  the  promotion  of  Technical  Grade-II on the post of Junior Engineer are  hereby cancelled.

Sd/- Illegible”

9.    It  will  be  clear  from  the  Office  Order  dated  

24.09.1999 that the only reason given by the UPSEB  

to  cancel  the  selection  on  the  basis  of  the  1985  

examination for promotion of Technical Grade-II staff  

to the post of Junior Engineer is that if the judgment  

of the High Court in the case of Mandip Singh & Ors. v.  

UPSEB & Ors.  was to be complied with, the selection  

made on the basis of 1985 examination could not be  

given effect to because there would be no vacancies in  

the  post  of  Junior  Engineer  in  which  the  selected  

candidates of 1985 could be accommodated.

10.    We also find from the records that after the new  

State  of  Uttarakhand  was  formed  and  the  UPCL  

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became the successor of the UPSEB for the State of  

Uttarakhand, several posts of  Junior Engineers were  

required to be filled up.  Therefore, the Board of the  

UPCL  deliberated  over  the  matter  afresh  in  its  

Meetings  held  on  26.12.2003  and  02.01.2004  and  

resolved as follows :

“As the erstwhile U.P. State Electricity Board  did  not  take  cognizance  of  the  examination  conducted in 1985 for promotion to the post of  Junior  Engineer  from Operating  Staff  as  per  the Hon’ble High Court of Allahabad decision  which stated that  first  the  list  of  candidates  appeared in 1977 examinations be exhausted,  and not for  any other reason, the employees  qualified the 1985 Examination and absorbed  in  the  Corporation  services  would  be eligible  for promotion to the post of Junior Engineer.”

11.   The facts discussed above clearly establish that the  

selection  of  candidates  on  the  basis  of  the  1985  

examination and interview have not been held by the  

Allahabad High Court to be illegal in the batch of Writ  

Petitions in the case of Mandip Singh & Ors. v. UPSEB  

& Ors.  and the  UPSEB had also  not  cancelled  the  

selection of candidates for promotion on the basis of  

1985 examination on the ground that the selection was  

in contravention of Regulation 17 of the Regulations or  

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was in any other way irregular  and the only reason  

given  by  the  UPSEB  in  its  Office  Order  dated  

24.09.1999 for cancelling the selection on the basis of  

1985  examination  was  that  the  selection  cannot  be  

given effect to without complying with the directions of  

the High Court in the case of  Mandip Singh & Ors. v.  

UPSEB & Ors.  If the successor of UPSEB, namely, the  

UPCL,  found  that  a  number  of  posts  of  Junior  

Engineers had to be filled up and this could be done by  

promoting  the  candidates,  who  had  qualified  in  the  

1985 examination and who had been absorbed in the  

services  of  the  UPCL  and  resolved  accordingly,  the  

High Court could not have held in the impugned order  

that the promotions of the candidates on the basis of  

1985 examination were contrary to Regulation 17 of  

the Regulations or in any way illegal.  For these very  

reasons, we also cannot accept the contention of the  

learned counsel for the respondents that the Board of  

UPCL has committed a breach of the directions in the  

judgment of the Allahabad High Court in Mandip Singh  

& Ors. v. UPSEB & Ors.   

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12.   We also do not find any merit in the grievances of the  

private respondents that they were not promoted but  

their juniors in Technical Grade-II have been promoted  

on the basis of the 1985 examination.  Clauses (2) and  

(3)  of  Regulation  17  of  the  Regulations   are  quoted  

hereinbelow:  

“(2) The selection shall be based on a written test  followed by a practical and oral test to which only  such  candidates  would  be  admitted  as  have  qualified in the written test.

(3) The names of the candidates who qualify in  the practical and oral test shall be placed in a list  in their order of merit.  For computing the merit  of a candidate the marks obtained by him both in  the written test  and the practical  and oral  test  shall be added.”

Thus,  Clauses (2)  and (3)  of  Regulation 17 are clear that  

promotion to the post of Junior Engineer from amongst the  

Operating Staff is to be made on the basis of selection based  

on a written examination followed by a practical  and oral  

test to which only such candidates would be admitted as  

have  qualified  in  the  written  test  and  the  names  of  the  

candidates who qualified in the practical and written tests  

were  to  be  placed  in  the  order  of  merit.   If  the  private  

respondents could not be promoted whereas their  juniors  

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were  promoted  because  of  their  merit  determined  in  the  

tests as provided in Clauses (2) and (3) of Regulation 17, the  

promotion of such juniors cannot be held to be in any way  

illegal.  

13.    For the aforesaid reasons, the appeals are allowed  

and the judgments of the learned Single Judge in Writ  

Petition Nos. 3 of 2003 (S/S), 979 of 2002 (S/S), 7195  

of 2001 (S/S) and 803 of 2003 (S/S) and the impugned  

judgment of the Division Bench of the High Court are  

set aside.  There shall be no order as to costs.  

IN     SPECIAL LEAVE PETITION (C) NOs.5278-5279 of 2009    AND 4827 of 2009

These Special  Leave Petitions were listed for  hearing  

along with Civil Appeal Nos.3448 of 2008 and 3476 of 2008.

2. At the time of hearing of the Civil Appeals, Mr. D. K.  

Garg, learned counsel for the petitioners, submitted that the  

Special  Leave Petitions  be listed  after  the  disposal  of  the  

Civil Appeals.

3. We have today disposed of  Civil  Appeal  Nos.3448 of  

2008 and 3476 of 2008.  These Special Leave Petitions may  

now be listed for hearing.  

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.……………………….J.                                                            (R. V. Raveendran)

………………………..J.                                                            (A. K. Patnaik) New Delhi, August 03, 2011.    

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