Madhya Pradesh High Court
Ravindra Kumar Shukla vs The State Of Madhya Pradesh on 19 April, 2018
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
1. Writ Petition No.10339/2011
Ravindra Kumar Shukla
Versus
State of M.P. & others
Shri Manoj Sharma, learned counsel for the
petitioner.
Shri Saket Agrawal, learned Panel Lawyer for
respondents No.1.
Shri Rajas Pohankar, learned counsel for
respondents No.3 to 8.
2. Writ Petition No.13318/2011
Prakash Pachori
Versus
State of Madhya Pradesh & others
Shri Manoj Sharma, learned counsel for the
petitioner.
Shri Saket Agrawal, learned Panel Lawyer for
respondent No.1.
Shri Rajas Pohankar, learned counsel for
respondents No.2 to 8.
3. Writ Petition No.10908/2011
Raj Kumar Singh and others
Versus
State of M.P. & others
Shri Manoj Sharma, learned counsel for the
petitioners.
Shri Saket Agrawal, learned Panel Lawyer for
respondent No.1.
2 W.P. No.10339/2011
Shri Rajas Pohankar, learned counsel for
respondents No.2 to 10.
ORDER
(19.04.2018) All these above writ petitions are being decided by this common order as the common question of law as well as the facts are involved in all these writ petitions. However, for the sake of brevity, the facts are taken from Writ Petition No.10339/2016.
2. The petitioner has filed the present writ petition challenging the orders dated 25/04/2011, 30/05/2011 as well as order dated 03/02/2001 passed by respondents No.2 to 4.
3. The petitioner is an employee of M.P. State Electricity Board. He was appointed on 07/05/1986 on the post of Assistant Engineer (Civil) by direct recruitment. The petitioner was a Graduate Trainee/Graduate Apparentice prior to appointment as Assistant Engineer. The Board has introduced a policy on 17/03/1999 for grant of higher pay scale as well as time bound promotion for various categories of Engineers and Chemists in its employment. As per 3 W.P. No.10339/2011 Clause-1 of the said policy, Assistant Engineer who has completed nine years of service is entitled for the scale of Executive Engineer and shall be termed as Additional Executive Engineer and shall become a holder of Class-I post. However, in spite of change of designation, such an incumbent would be working as Assistant Engineer. Similarly, upon completion of 18 years of service, the benefit of second higher pay scale would be granted. The said scheme further provides that Assistant Engineer who has completed 15 years of service including the training period, shall be promoted to the next higher post of Executive Engineer by upgrading the existing post. The second time- bound promotion is also stipulated in the matter of an Assistant Engineer having completed 23 years of service. Thus, the policy dated 17/03/1999 dealt with both the issues namely grant of higehr pay-scale-I and higher pay-scale-II as well as first time bound promotion and second time bound promotion.
4. In terms of the said policy, the petitioner was granted the benefit of higher pay scale and was re-designated as Additional Executive Engineer (civil) vide order dated 4 W.P. No.10339/2011 21/06/1999. Thus, the petitioner w.e.f.21/06/1999 or even prior from which date the benefit of higher pay scale has been given to him, has become a Class-I Officer of the respondent Board. He was further promoted to the post of Executive Engineer under time-bound scheme on 01/03/2000. On the basis of the said time-bound promotion, the petitioner is functioning as a regular Executive Engineer and the respondents have also treated him as an Executive Engineer. Further in terms of the policy, the petitioner has granted second higher pay scale of the post of Superintending Engineer vide order dated 29/06/2004. Erstwhile, M.P. Electricity Board which got renamed as M.P. State Electricity Board upon reorganization of the erstwhile State of Madhya Pradesh as the two States viz. Madhya Pradesh and Chhattisgarh.
5. Parliament has enacted an Act known as Electricity Act, 2003 (hereinafter referred to as 'the Act of 2003') by which comprehensive changes have been introduced in the existing law and provisions pertaining to electricity. Section 133 of the Act of 2003 provides for transfer of the assets of erstwhile company. Proviso of the said Section provides that 5 W.P. No.10339/2011 terms and conditions on the transfer shall not in any way be less favourable than those which would have been applicable to them if there had been no such transfer. If the erstwhile Board has to be broken into which is now technically termed as unbundling of the Board into various entities/companies in the matter of transfer of services of the personnel, a caveat has introduced by the Statute at the National as well as State level in the Adhiniyam is that the terms and conditions on the transfer shall not in any way be less favourable to such an employee who is suffering the said transfer. The State Government, therefore, on 01/10/2003 notified the rules known as M.P. Electricity Reforms First Transfer Scheme Rules, 2003 wherein it has been specifically stipulated that transfer of personnel shall be subject to terms and conditions contained in Section 133 of the Act of 2003. Further similar notification has been issued by making amendment in the relevant provision of Scheme of 2003 by notification dated 13/06/2005.
6. Thereafter the Madhya Pradesh State Electricity Board has published a gradation list of Assistant Engineers (Civil) on 25/04/2011 as on 01/01/2011. In the said list the name of 6 W.P. No.10339/2011 the petitioner has been shown at serial No.59. The gradation list includes Assistant Engineers, Additional Executive Engineers and Executive Engineers (TBPS) under one head, substantively in the cadre of Assistant Engineer. As in the said gradation list the name of the petitioner was included as an Assistant Engineer, therefore, the petitioner has submitted representation on 21/05/2011. The said representation was rejected by the respondents vide order dated 30/05/2011. Against the rejection order, the petitioner has again submitted a representation on 02/06/2011, however, as no action has been taken in the matter, the petitioner has, therefore, filed the present writ petition.
7. The respondents have filed their reply and in the said reply the respondents have stated that there is a difference between the regular promotee and a time-bound promotee. The respondents have stated that a scheme was introduced on 17/03/1999 known as Time Bound Promotion Scheme and the financial benefits in the form of grant of first higher pay scale and second higher pay scale were introduced as a policy decision in addition to the then existing regular promotion policy of the Board. Clause 1 and 3 of the said scheme very 7 W.P. No.10339/2011 clearly emphasized that the change designation of the beneficiary of the said scheme dated 17/03/1999 shall not have any effect on the seniority and other service conditions of the beneficiary employees and officers. The said provisions also make it clear that the time bound promotion scheme and the related financial benefits introduced vide order dated 17/03/1999 cannot be and should not be equated with the Board's existing promotion policy for regular promotions which is fully based on sanctioned post and the vacancies in the respective substantive post. It is further submitted that promotion for the regular promotion on the substantive post also involves maintenance of roster for providing reservation to the reserved category of the employees/officers whereas the time bound promotion scheme introduced vide order dated 17/03/1999 was purely an additional and parallel scheme for benefit of employees and officers of the respondent-board without consideration of vacancies or reservation etc for making promotions of employees with the provisions and limitations mentioned therein, who have completed specified length of service, but, could not get regular promotion due to non-availability of 8 W.P. No.10339/2011 vacancies on respective substantive posts. These details leave no ambiguity that the time bound promotion scheme vide order dated 17/03/1999 and the regular promotion scheme are entirely two different and parallel schemes to achieve different objectives and cannot be placed at par with each other for the purpose of promotion on next higher substantive post, and for the purpose of seniority.
8. The respondents have further stated that vide order dated 01/03/2000 the petitioner was promoted to the post of Executive Engineer (Civil) under TBPS which was made in accordance with the Time Bound Promotion Scheme introduced on 17/03/1999 and cannot be termed as regular promotion on the substantive post of Executive Engineer. The promotion under TBPS was based on the length of service. The gradation list on the substantive post of Assistant Engineer (Civil) issued by the respondent-Board vide order dated 25/04/2011 also includes the name of such AE(Civil) who were subsequently re-designated as Additional Executive Engineer (Civil) promoted to the post of Executive Engineer (Civil) TBPS in accordance with the scheme introduced by the Board vide order dated 17/03/1999. Thereafter 9 W.P. No.10339/2011 clarification was issued by the Board 03/02/2001. The Gradation list shall only be published as per the substantive post only and the the promotion under Time Bound Promotion Scheme shall not be counted for the purpose of gradation list. So far as applicability of Section 133 of the Act of 2003 is concerned, the respondents have stated that the petitioner has never been promoted on substantive post of Executive Engineer (Civil) as regular promotion and his substantive post still remain as Assistant Engineer (civil) despite his promotion to the post of Executive Engineer (Civil)-TBPS in accordance with the Time Bound Promotion Scheme introduced by the Board. The respondents have also stated that while doing so, the provisions of Section 133 of the Act of 2003 and Section 4 of the Adhiniyam are being followed up in totality. The scope of regular promotion on the substantive post and that of Time Bound Promotion Scheme are altogether different and, therefore, the promotion of the petitioner on the post of EE (Civil)-TBPS cannot be equated and considered at par with the regular promotion on the substantive post of EE (Civil).
10 W.P. No.10339/2011
9. The petitioner has filed rejoinder denying the allegations made by the respondents in the return. An additional return has also been filed by the respondents which is also taken on record.
10. Learned counsel for the petitioner argues that the petitioner by an open competitive examination came to be appointed as Assistant Engineer (Civil) by direct recruitment as a Graduate Trainee/Apparantice vide order dated 07/05/1986. On 17/03/1999 a policy decision was taken for grant of higher pay scale and time bound promotion. It is argued that a bare perusal of the policy dated 17/03/1999 issued by the erstwhile M.P.E.B. deals with two aspects wherein an Assistant Engineer on completion of nine years of service has been re-designated as Additional Executive Engineer. It is, however, clarified that such a re-designation will not change the substantive status and an incumbent so re- designated and he/she shall continue working as Assistant Engineer without affecting their seniority as Assistant Engineer or affecting their pay and emoluments. However, the re-designated post viz. Additional Executive Engineer has been treated as Class-I post. A similar provision after 11 W.P. No.10339/2011 completion of 18 years of service in the matter of Executive Engineer to be re-designated as Additional Superintending Engineer after having received the higher pay scale of Superintending Engineer is also provided in the said policy decision. Learned counsel for the petitioner also argues that what is material for the instant purpose is para-2 of the siad policy which specifically stipulates that beside the above nine year and 18 years re-designation of posts, a principle and policy is laid down that an Assistant Engineer after completion of 15 years of services including the training period, shall be promoted to the next higher post of Executive Engineer by upgrading the existing post of Assistant Engineer on which an incumbent is to hold lien. Thus, it is clear from bare perusal of the policy dated 17/03/1999 that so far as the Assistant Engineers are concerned, upon completion of 15 years of services, they are substantively to be promoted to the next higher post of Executive Engineer on substantive post of Executive Engineer which post has been specially created for them by upgrading the existing post of Assistant Engineer.
11. Learned counsel for the petitioner contends that vide order dated 21/06/1999 the petitioner was redesignated as 12 W.P. No.10339/2011 Additional Executive Engineer. This re-designation pertains to be first part of the policy, however, in terms of para-2 of the policy decision vide order dated 01/03/2000 the petitioner was promoted as Executive Engineer (Civil). It is also not worthy to mention that the petitioner has been appointed on probation of two years in terms of circular which are applicable for regular promotion after following the due process for regular promotion in terms of the extent rules of the respondents. It is also submitted that in terms of the promotion order dated 01/03/2000 the petitioner joined as a regular Executive Engineer (Civil) and after joining, various work allocation orders have been issued to the petitioner clearly designating him and treating him as Executive Engineer (Civil). By order dated 29/06/2004, higher pay scale of Superintending Engineer has been granted to the petitioner wherein, itself, it is specifically mentioned that higher pay scale does not confer the right to appointment as Superintending Engineer and the petitioner's seniority of the cadre of Executive Engineer (Civil) shall be determined fact. Thus, from bare perusal of he facts, it is absolutely clear that the petitioner under a policy decision of respondents 13 W.P. No.10339/2011 themselves has been promoted substantially on the post of Executive Engineer (Civil) and has been performing duties, functions and responsibility of Executive Engineer (Civil) ever since his promotion viz 01/03/2000 and holding a lien against the permanent post of Executive Engineer (Civil). It is argued that the orders impugned in this case are the gradation list of Assistant Engineer (Civil) showing position as on 01/01/2011 wherein copy of the same is marked to the petitioner showing him as Assistant Engineer. A representation preferred against his blatant act of demotion of the petitioner after showing on higher post for more than a decade, meeting with rejection on 30/05/2011 so also a decision of Board dated 03/02/2001 which is sought to be used as a justification of the impugned conduct is impugned.
12. Learned counsel for the respondents argue that the time bound promotion scheme and regular promotion are running in parallel and a person regularly promoted occupies next higher substantive post with all consequential benefits while TBPS promotees do not get same privilege. Thereafter a clarification was issued by the respondent-board in the year 2001 in which it has been clearly mentioned that seniority of 14 W.P. No.10339/2011 an employee on the substantive post shall be taken into consideration.
13. I have heard learned counsel for the parties and perused the record.
14. The respondent-Board has framed a scheme on 17/03/1999 thereby extending the benefit of time bound promotion scheme to the employees who have completed service of nine years and 18 years. In pursuance of the said policy decision, the petitioner got promoted on the post of Executive Engineer on 01/03/2000. Thereafter a seniority list of Assistant Engineer was published by the respondents in the year 2011 in which designation of the petitioner has been shown as Assistant Engineer. The matter was heard at length on 21/03/2017 and on that date the respondents have produced the record. After perusal of the record, this Court has found that the time bound promotion scheme, itself, has not been approved by the Full Board under which the beneift of promotion has been claimed. Though this is not a stand taken by the respondents, this Court directed learned counsel for the respondents to clarify that without ratification of the policy dated 17/03/1999 how number of persons have been 15 W.P. No.10339/2011 given the benefit of TBPS on the post of Assistant Engineer, Executive Engineer and Superintending Engineer. Learned counsel for the respondents were directed to file an additional reply explaining the aforesaid issues.
15. At the time of hearing of this writ petition, the petitioner has produced photocopy of the record. From the record following paragraphs of minutes of the meeting are relevant for the purpose :
"i) The then Chairman of the erstwhile M.P. State Electricity Board on 16/03/1999 wrote to the Minister of Energy, Government of Madhya Pradesh (Page 138 of the file) that a detailed meeting took place between the Board and the Office bearers and executive committee member to the M.P. Vidyut Mandal Abhiyanta Sangh on 19/03/1999 at Jablpur wherein all the points of charter of demands submitted by the Sangh were discussed in detail and agreement was reached. For this, approval was sought from the Minister of Energy.
16 W.P. No.10339/2011
ii) The approval came in the form of letter dated 18/03/1999 (at page 153 of the file) approving all the points which were submitted for consideration.
iii) The policy itself has been issued by the order of the Board and the recital itself shows that the Board has decided to formulate the said policy. In fact such objection ought not to have been raised in the first place. However, even in the teeth of documents, some sort of divergent note sheets were being made indicating that the TBP Scheme has not been approved by the Bull Board. In the note sheet dated 21/07/2001 of the Additional Secretary in this regard (page 59 para 142 thereof) indicates that the TBPS Scheme has not been approved and could be decided to be withdrawn. However, withdrawing the scheme with retrospective effect would cause a chaos as large number of officers 17 W.P. No.10339/2011 and employees ranging in thousands have been promoted and after promotion, many of them are drawing next higher pay scale also which would create unrest and disturb industrial peace. It is recommended that the Board regularize the Scheme for the past period and may discontinue it for future dates.
iv) Further page 61 of the record file deals with similar situation and also specifically points that SC/ST candidates have also been promoted under the Scheme and after probation of two years, have been confirmed under TBP Scheme, so also in the matter of TBPS of Medical Officers the scheme has been approved by the Full Board. The most important piece of document is the resolution of the Board dated 15/09/2003 which is at page 76 of the record file. At para 178 under item No.10 while dealing with Time Bound Promotion Scheme wherein 18 W.P. No.10339/2011 proposals were put up by giving various options such as Time Bound Promotion Scheme be withdrawn etc., wherein after due deliberation, the Full Board resolved that all orders pertaining to introduction of Time Bound Promotion Scheme, forthwith be kept in abeyance and not acted upon in future until further orders.
The benefits already granted be regularized as one time measure and in fact those employees and officers who could not get Time Bound Promotion owing to certain procedural delay and deficiency in paper work though their juniors have availed the same, ought to be extended the same benefit immediately.
v) In fact, various Assistant Engineers vide order dated 05/07/2004 were granted this benefit in terms of the Board's Resolution. Further from the record, it is also clear from the pages 18 to 21 that same procedure 19 W.P. No.10339/2011 was followed in the matter of TBPS as in the regular promotion.
The cases were considered under the regular promotion criteria and even some officers got rejected.
This pertains to SC/ST Assistant Engineers (Civil).
vi) At page 16 of the record file order dated 09/06/1999 are the orders of Assistant Engineers (Civil) (SC/ST) who have been given benefit and it is, thus, absolutely incorrect to contend that the roster of SC/ST was not followed.
vii) Consideration of General Category candidates is from pages 27 to 34 which resulted into the promotion order dated 01/03/2000 (page 22) (Name of petitioner at Sr. No.49 at page 31 of the record file). A copy of the aforementioned pages of the Record File for ready reference is annexed herewith as Document C. (For convenience the running 20 W.P. No.10339/2011 paging of documents annexed herewith is done in blue ink while the pages of record as mentioned hereinabove are same as in record file to compare them, if required.).
16. From the aforementioned narration, the argument sought to be built up (although nowhere as a part of pleadings of the respondents in their return/additional return), that TBPS Scheme itself has not been approved by the Full Board, falls flat. Not only TBPS Scheme was the approval by the Board, consciously the same has been directed to be kept in abeyance for the time being till further orders, in the Board meeting dated 15/09/2003. The said minutes of the meeting also show that the benefits already granted be regularised as one time measure. The petitioners were promoted under TBPS in the year 2001 i.e. prior to 2003, therefore, their promotion is regularised as per the decision taken by the Board Directors. In fact, Officers who have been left out due to some technical reasons of non-availability of record etc., have been granted the benefit of TBPS forthwith. Identical procedure as for regular promotion has been followed in the 21 W.P. No.10339/2011 case of TBP Scheme as well. SC/ST Officers have been duly considered and promoted. Thus, there is absolutely no difference between regular promotee Executive Engineer (Civil) and TBPS Executive Engineer (Civil). The clinching feature being that TBPS Executive Engineer (Civil) is holding substantive post of Executive Engineer, which has been provided to him by upgrading the post of Assistant Engineer to the higher post of Executive Engineer in the policy decision, itself.
17. The respondents have placed reliance on a decision of this Court in the case of M.P. State Electricity Board, Jabalpur and others Vs. S.K. Dubey reported in 2014 (1) MPLJ 348 to show that the promotion under time bound promotion scheme are not at par with the regular promotions. The said decision is distinguishable both on facts and on law. The Full Bench in the review petition was dealing with a reference made by Single Bench of this Court specially in the case of Junior Engineers promoted to the post of Assistant Engineer under the TBPS Scheme. It is clarified at the very outset that the Time Bound Promotion Scheme of Junior Engineers is different from the Time Bound Promotion Policy 22 W.P. No.10339/2011 in the case of Assistant Engineers, as at hand. There is a specific stipulation in the case of Junior Engineers that Time Bound Promotion orders in their case would only give them designation and not substantive promotion to the post of Assistant Engineers and they would continue to discharge their duties, functions and responsibilities as Junior Engineers. As and when their turn for regular promotion would come, they would be absorbed against the regular post and will not be subjected to scrutiny of selection etc at that stage. The same was subject matter of some litigation wherein respondents went up till Supreme Court. The Full Bench of this Court clearly mentioned this position in para-7 of the order. The various case laws relied upon by the Full Bench of this Court are also not applicable to the instant fact situation.
18. Learned counsel for the petitioner has drawn attention of this Court to Section 133 of the Electricity Act, 2003 and M.P. Vidyut Sudhar Adhiniyam, 2000. The statutory protection of the petitioner and the transfer scheme has been framed under the said Act. The proviso to Section 133 states that on being transferred the service conditions of 23 W.P. No.10339/2011 the employees shall not be alter to their detriment and, therefore, the benefit in the form of substantive promotion under TBPS cannot be, thus, taken away in exercise of unbundling of the erstwhile M.P. State Electricity Board into successor companies. The service conditions cannot be tempered with and the process of unbundling cannot be used to subject to the petitioner to inferior service conditions. So far as clarification dated 03/02/2001 is concerned, the same would not be applicable in the case of the petitioner as the petitioner stood promoted under the Time Bound Promotion Scheme on the post of Executive Engineer on 01/03/2000. Substantive vested right of the petitioner as prescribed in the policy decision dated 17/03/1999 and in pursuance whereto the petitioner got duly promoted on 01/03/2000, cannot be withdrawn retrospectively as such the exercise is beyond the competence of the respondents.
19. The Supreme Court in the case of Punjab State Electricity Board and others Vs. Narata Singh and another, reported in (2010) 4 SCC 317 in para-32 has held as under :
24 W.P. No.10339/2011
"32. The argument that respondent 1 is already given the benefit of his previous service rendered as work charged employee under the Board while counting qualifying service for the purpose of pension and would not be entitled to the benefit of Memo dated 25/11/1985 adopting policy decision of the Government of Punjab because the same was subsequently cancelled, has no force. It is true that the policy decision mentioned in Memo dated 25/11/1985 was rescinded by the Board in the year 2004. However, the resolution of the year 2004 does not indicate at all, that it is retrospective in nature nor is it the case of the learned counsel for the appellants that the Resolution of the year 2004 has retrospective effect. Therefore, on the basis of the Resolution of the year 2004, Respondent 1 cannot be denied the benefit of counting of previous service rendered by him as work-charged employee under the Government of Punjab for the 25 W.P. No.10339/2011 purpose of determining qualifying service under the Board for grant of pension."
Thus, as per this judgment, wherein the benefit given to an employee cannot be withdrawn retrospectively and, therefore, the clarification dated 03/02/2001 cannot be construed to have retrospective effect.
20. Similar, controversy has been raised by the Junior Engineers before the Indore Bench of this Court in the bunch of writ petitions. One of such writ petition is W.P. No.108/2006(s) (Ramprakash Pal Vs. M.P. State Electricity Board and others). The said writ petitions were allowed by this Court vide order dated 28/02/2006 holding that the time bound promotion is at par with the regular promotion and the judgment of this Court was maintained upto the Apex Court. Thus, the case of the petitioners is also covered by the said judgment.
21. Thus, in light of the aforesaid discussions, all the writ petitions are allowed. The impugned orders dated 25/04/2011, 30/05/2011 as well as order dated 03/02/2001 26 W.P. No.10339/2011 passed by respondents No.2 to 4 are hereby quashed. The respondents are directed to include the name of the petitioner in the gradation list of the Executive Engineer at proper place and he be treated as Executive Engineer for all practical purposes and he will also entitle to all the benefits relating to his designation, post and status.
(Ms. Vandana Kasrekar) JUDGE ts Digitally signed by TULSA SINGH Date: 2018.04.19 16:30:00 +05'30'