Telangana High Court
D. Prabhakar S/O D. Prabhudas Died Per ... vs Transmissioncorportion Of Telangana, ... on 25 July, 2023
HIGH COURT FOR THE STATE OF TELANGANA
WRIT PETITION No.1896 OF 2007
D.Prabhakar s/o.D.Prabhudas, 58 years,
I/c General Manager (Rtd.), Corporate Office,
Northern Power Distribution Company of AP Limited,
Warangal R/o.Nakalgutta,
Hanumakonda, Warangal District (died per LRs) and 7 others.
....Petitioners
VERSUS
Transmission Corporation of Telangana Limited
Rep. by its Chairman and Managing Director,
Vidyut Soudha, Hyderabad and 2 others.
... Respondents
DATE OF JUDGMENT PRONOUNCED: 25 .07.2023
THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO
1. Whether Reporters of Local Yes/No
newspapers may be allowed to see the
Judgments?
2. Whether the copies of judgment may Yes/No
be marked to Law
Reporters/Journals?
3. Whether Their Ladyship/Lordship Yes/No
wish to see the fair copy of the
Judgment?
________________________
J. SREENIVAS RAO, J
JSR, J
W.P.No.1896 of 2007
2
THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO
+ WRIT PETITION No.1896 OF 2007
% Dated .07.2023
# D.Prabhakar s/o.D.Prabhudas, 58 years,
I/c General Manager (Rtd.), Corporate Office,
Northern Power Distribution Company of AP Limited,
Warangal R/o.Nakalgutta,
Hanumakonda, Warangal District (died per LRs) and 7 others
....Petitioners
VERSUS
$ Transmission Corporation of Telangana Limited
Rep. by its Chairman and Managing Director,
Vidyut Soudha, Hyderabad and 2 others
... Respondents
! Counsel for Petitioners : Mr.MSrikanth
^ Counsel for Respondents : Mr.G.Vidyasagar
< GIST:
> HEAD NOTE:
? CITATIONS:
1. (1998) 5 SCC 87
2. (1998) 4 SCC 291
JSR, J
W.P.No.1896 of 2007
3
THE HON'BLE SRI JUSTICE J. SREENIVAS RAO
WRIT PETITION No.1896 OF 2007
ORDER:
This writ petition is filed to declare the Proceedings vide Lr.Nos.CGM/HRD/GM(S)/AS-I/697/7/PO-I/WP.No.4506/06-1 to 4 and 7 dated 09.11.2006 and also Lr.No.CGM(HRD)/JS/AS(Estt.)/PO-A/WP No.1896/2007/728- A3/11-1 dated 23.07.2011 of respondent No.3, as illegal, arbitrary and contrary to the Regulation No.30-A of the A.P. State Electricity Board Service Regulations Part-I as well as the judgment of this Court as confirmed by the Hon'ble Supreme Court.
2. Heard Sri M.Srikanth, learned counsel for the petitioners, and Sri G.Vidyasagar, learned senior counsel appearing for the respondent Corporation.
3. The brief facts of the case:
3.1. The petitioners were appointed in erstwhile A.P. State Electricity Board (APSEB) as Lower Division Clerks and thereafter promoted time to time in various categories i.e., Upper JSR, J W.P.No.1896 of 2007 4 Division Clerk, Junior Accounts Officer, Assistant Accounts Officer and Account Officer. Petitioner No.1 was promoted as Senior Accounts Officer and later posted as In-charge General Manager, vide Memo No.CGM(HRD)/GM(S)/AS(I)/F.28/05/PO-
I/05 dated 25.05.2005. Petitioner Nos.2 and 3 were posted as In-charge Senior Accounts Officers, vide Memo No. CGM(HRD)/GM(S)/AS(I)/F.SAO.29-PO-I/05, dated 25.05.2005. Petitioner No.4 was promoted as In-charge Senior Accounts Officer, vide Memo No. CGM(HRD)/GM(S)/AS(I)/F.SAO/520-PO- I/04, dated 30.09.2004 and petitioner No.5 was promoted as In- charge Senior Accounts Officer vide Memo No. CGM(HRD)/GM(S)/AS(I)/F.SAO/520-PO-I/04-1, dated 29.10.2004 and they were discharging the duties as General Manager/Senior Account Officers.
3.2. The petitioners submitted representation to the respondent authorities requesting them to regularize their services in the above said posts and fix the pay as per the Regulation 30-A of the A.P. State Electricity Board Service Regulations Part-I (for short, 'the Regulations'). Respondent No.3 rejected the representation of the petitioners and passed the impugned order on 09.11.2006, stating that the respondent JSR, J W.P.No.1896 of 2007 5 Corporation has issued Memo No.GM(HRD & Trg)/DS(P)/AS(P)/PO.III.1/153/03, dated 28.11.2003 wherein it is mentioned that "not to give any relaxation either in respect of educational qualification or number of years of service stipulated in service regulations while considering for promotion/appointment in all the categories of posts". Thereafter pursuant to the interim order dated 18.01.2008 granted by this Court in this writ petition, respondent No.3 passed speaking orders vide Lr.No.CGM(HRD)/JS/AS(Estt.)/PO- A/WP 1896/2007/728-A3/11-1, dated 23.07.2011 rejecting the claim of the petitioners. Questioning the said orders, the petitioners filed the present writ petition.
4. Submissions of the respective counsel:
4.1. Learned counsel for the petitioner submitted that similarly situated persons, who are working in NPDCL, filed W.P.No.24852 of 2004 for regularization of their services and to grant relaxation on par with the similarly situated persons in various cadres including promotion to the category of Personal Officer. The said writ petition was allowed on 31.12.2004 and the petitioners therein were promoted as Personal Officers.
JSR, J W.P.No.1896 of 2007 6 4.2. Learned counsel further submitted that in W.P.No.1085 of 2006, this Court allowed the writ petition in terms of Regulation 30-A of the Regulations and the respondent Corporation implemented the said order and extended all the benefits in favour of the petitioners therein. In another judgment in W.P.No.12568 of 2006, this Court allowed the writ petition on 23.06.2006 directing the respondents therein to fix the pay of the petitioners therein in terms of Regulation 30-A of the Regulations within six weeks from the date of receipt of copy of the order. 4.3. When the respondents are not given regular promotions to the petitioners to the respective cadres, filed W.P.No.4506 of 2006 seeking two reliefs, ie., (1) For regular promotion to the cadres in which they have been working on in the in-charge basis i.e., General Manager and Senior Accounts Officers and (2) they were entitled to be paid in the pay scales of the post of General Manager and Senior Accounts Officers in accordance with Regulation 30-A of the Regulations. The said writ petition was disposed of on 10.08.2006 with a direction to consider the case of the petitioners for promotion following the judgment of this Court in W.P.No.1085 of 2006 dated 28.03.2006.
JSR, J W.P.No.1896 of 2007 7 4.4. Learned counsel further submits that the respondent Corporation without properly considering the orders passed by this Court as well as Apex Court erroneously rejected the claim of the petitioners for regularization of their posts in the cadre of in-charge General Manager and in-charge Senior Accounts Officer, and also not extended the monetary benefits by fixing the pay through impugned orders and the same are contrary to law. 4.5. He vehemently contended that in similar circumstances, this Court disposed W.P.No.12568 of 2006 dated 26.06.2006 directing the respondent Corporation to regularize the services of the petitioners therein and extend the benefits as per Regulation 30-A of the Regulations in terms of the orders in W.P.No.1085 of 2006 dated 28.03.2006. Aggrieved by the above said order dated 26.06.2006 in W.P.No.12568 of 2006, the respondent Corporation filed W.A.No.320 of 2010 and the same was dismissed by the Hon'ble Division Bench of this Court by its orders dated 27.04.2011. The respondent Corporation carried the matter before the Hon'ble Apex Court and filed two SLP(C) Nos.848 and 849 of 2012 questioning the orders in W.A.No.683 of 2010 dated 06.09.2010 and W.A.No.320 of 2010 dated 27.04.2011 and the Hon'ble Supreme Court dismissed both JSR, J W.P.No.1896 of 2007 8 appeals by its common order dated 22.07.2014 and respondent Corporation implemented the orders of this Court. Hence, the rejection order passed by respondent No.3 dated 09.11.2006 and 23.07.2011 respectively, contrary to law and the same are liable to be set aside.
5. In support of his contention, he relied upon the following judgments.
1. Secretary-cum-Chief Engineer, Chandigarh vs. Hari Om Sharma and others1.
2. Selvaraj vs. Lt.Governor of Island, Port Blair and others2
6. Per contra, learned senior counsel appearing for the respondent Corporation submits that petitioner No.1 was posted as in-charge General Manager through memo dated 25.05.2005 and petitioner Nos.2 to 5 were posted as in-charge Senior Accounts Officer through Memo dated 25.05.2005, 30.09.2004 and 29.10.2004 respectively. In the said orders, there is a specific condition that the in-charge arrangements does not confer any right on them for promotion as General 1 (1998) 5 SCC 87 2 (1998) 4 SCC 291 JSR, J W.P.No.1896 of 2007 9 Manager/Senior Accounts Officer as the case may be for claiming regularization of their services, as the orders issued only for administrative convenience. In view of the said condition, the petitioners are not entitled to claim any relief much less the relief sought in the writ petition. Further, the petitioners are not entitled additional benefit as per Regulation 30-A(1) and (2) of the Regulations. He further submits that the respondent Corporation has taken a decision and issued Memo dated 28.11.2003 wherein it is stated that not to give any relaxation either in respect of educational qualification or number of years of service stipulated in service regulations while considering the promotion.
6.1. He further submitted that pursuant to the interim order granted by this Court dated 18.01.2008 in W.P.M.P.No.2388 of 2007 in W.P.No.1896 of 2007, the respondent Corporation examined the claim of the petitioners and passed speaking order dated 23.07.2011 informing that they are not entitled for extending benefit under Section 30-A of the Regulations and the petitioners are not entitled the relief as sought in the writ petition.
JSR, J W.P.No.1896 of 2007 10
7. Having considered the rival submissions made by the respective parties and upon perusal of the material available on record, the following issues arise for consideration:
1. Whether the petitioners are entitled to the benefit of Regulation 30-A of the T.S. Electricity Board Service Regulations, Part-I, pay fixation and other monetary benefits as claimed by them?
2. Whether the impugned rejection orders dated 09.11.2006 and consequential speaking order dated 23.07.2011 passed by respondent No.3 are in accordance with law?
POINT NOs.1 and 2:
8. It is an undisputed fact that the petitioners were appointed in the erstwhile A.P. State Electricity Board as Lower Division Clerks and subsequently they were promoted in various categories i.e., Upper Division Clerks, Junior Accounts Officer, Assistant Accounts Officer and thereafter, petitioner No.1 was posted as in-charge General Manager and petitioner Nos.2 to 5 were posted as in-charge Senior Accounts Officer through Memos dated 25.05.2005, 30.09.2004 and 29.10.2004 respectively, and pursuant to the said orders, the petitioners were discharging JSR, J W.P.No.1896 of 2007 11 their services in their respective posts. The petitioners have made a claim before the respondent Corporation that they are entitled to the benefit of Regulation 30-A of the A.P.S.E.B. Regulations Part-I and that their pay should be fixed in the pay scale of posts which they were holding on in-charge basis from the date of assuming charge with all consequential benefits. It is very much relevant to extract the Regulation 30-A of the Regulations Part-I, which reads as follows:
"Notwithstanding anything contained in these Regulations where a Board servant holding a post in a substantive, officiating or temporary capacity is promoted or appointed in a substantive, officiating of temporary capacity to another post carrying duties and responsibilities of greater importance than those attaching the post held by him, his initial pay in the time scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post by one increment at the stage at which such pay has accrued."
9. It reveals from the record that the petitioners have submitted a representation to the respondent Corporation requesting to extend the above said Regulation to them. When the respondent Corporation failed to take any decision, the petitioners have approached this Court and filed W.P.No.4506 of 2006 seeking a direction to the respondents to consider the case JSR, J W.P.No.1896 of 2007 12 of the petitioners for regular promotion as General Manager and Senior Accounts Officer from the respective dates on which they were deputed on in-charge basis in the higher posts by granting relaxation of the Service Regulations regarding the requisite period of service on par with those promoted on regular basis relaxing the Service Regulations and the same was disposed of in terms of the orders passed in W.P.No.24852 of 2004 dated 31.12.2004.
10. It further reveals from the record that in another similar matter W.P.No.12568 of 2006 the petitioners therein sought direction directing the respondent to act according to Regulation 30-A of the Regulations by fixing their pay in the scale of GM (Revenue) from the date of discharging the high responsibilities of greater importance. Learned Single Judge of this Court disposed the writ petition in terms of the order passed in W.P.No.1085 of 2006 dated 28.03.2006 specifically holding that there is no reason for depriving the benefit of pay fixation to the petitioner in terms of Regulation 30-A of the Regulations and directed the respondent to fix the pay of the petitioner in terms of Regulation 30-A within six weeks from the date of receipt of a copy of this order, by its order dated 28.03.2006. Aggrieved by JSR, J W.P.No.1896 of 2007 13 the said order, the respondent Corporation filed W.A.No.320 of 2010 and the Division Bench of this Court dismissed the writ appeal by its judgment dated 27.04.2011, the relevant portion of the judgment is extracted as under:
"Writ Petition No. 12568 of 2006 was filed seeking a direction to extend the benefits of Regulation 30-A of the Andhra Pradesh State Electricity Board Service Regulations - Part-I to the respondents - writ petitioners. The writ petition was decided without any deliberation in view of the fact that the issue involved was covered by judgment dated 28-03-2006 rendered in Writ Petition No. 1085 of 2006. The judgment in Writ Petition No.12568 of 2006 impugned herein, was sought to be reviewed vide Review WPMP No. 11276 of 2010 but of no avail because of its dismissal by the learned single Judge by order dated 30-03-2010. The dismissal of the review petition was questioned in Writ Appeal No. 683 of 2010 which was dismissed by judgment dated 06-09-2010. Yet, the present appeal against the judgment passed in Writ Petition No. 12568 of 2006 notwithstanding the fact that it is founded on judgment dated 28-03-2006 passed in Writ Petition No. 1085 of 2006 which has attained finality and a coordinate Bench has declined to interfere with the impugned judgment in Writ Appeal No. 683 of 2010 referred to above."
11. Aggrieved by the above said order dated 27.04.2011 as well as orders passed in W.A.No.683 of 2010 dated 06.09.2010, the respondent Corporation filed SLP (C) No.848 and 849 of 2012 and the Hon'ble Supreme Court was pleased to dismiss the said JSR, J W.P.No.1896 of 2007 14 appeals by its order dated 22.07.2014. The order passed by the learned Single Judge of this Court in W.P.No.12568 of 2006 dated 23.06.2006 has become final and respondent Corporation implemented the said order.
12. In the case on hand, the petitioners are claiming service benefits under Regulation 30-A of the Regulations, especially relying upon the orders passed by this Court as well as the Hon'ble Supreme Court as mentioned supra. Respondent No.3 passed the impugned orders rejecting the claim of the petitioners only on the ground that respondent Corporation has taken a decision and issued memo dated 28.11.2003, not to give any relaxation either in respect of educational qualification nor number of years of service as stipulated in Service Regulations while considering the promotions/appointments in all the categories and further stated that the petitioners are not having qualifications for regularization of their services in the post of General Manager and Senior Accounts Officers and they are not entitled to seek the benefit of Regularization under 30-A of the Regulations.
13. It is very much relevant to mention here that in earlier JSR, J W.P.No.1896 of 2007 15 W.P.No.4506 of 2006, the petitioners sought direction directing the respondents to consider their case for regular promotion as General Manager/ Senior Accounts Officer and extend all the service benefits. The said writ petition was disposed of with the consent of both the parties on 10.08.2006 in terms of the orders passed in W.P.No.24582 of 2004 dated 31.12.2004. Respondent Corporation extended the benefit of Regulation 30-A of the Regulations in favour of the similarly situated employees and also to the petitioners in W.P.No.24582 of 2004, W.P.No.1085 of 2006 and W.P.No.12568 of 2000. The rejection orders dated 09.11.2006 and consequential order dated 23.07.2011 passed by respondent No.3 in terms of Memo dated 28.11.2003 amounts to clear discrimination and also violative of Article 14 of the Constitution of India. It is an undisputed fact that the petitioners are discharged their services in the post of General Manager as well as Senior Accounts Officers from the date of their posting i.e., on 25.05.2004, 30.09.2004, 29.10.2004 and the respondent Corporation utilized their services in the higher post on in-charge basis and denying the claim of the petitioner for their pay fixation and not extending the benefit of Regulation 30-A of the Regulations is contrary to law and also against the JSR, J W.P.No.1896 of 2007 16 orders passed by this court as well as Apex Court as mentioned supra.
14. In Hari Om Sharma's case, the Hon'ble Supreme Court has held in para 8 as follows:
"Learned counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer-I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any benefit pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma holders available for promotion to the post of Junior Engineer-I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to officiate on that post or, as in instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act."
15. In the above judgment, the Hon'ble Supreme Court specifically held that imposing of the condition while promoting the employee on stop-gap arrangement and obtained JSR, J W.P.No.1896 of 2007 17 undertaking from the employee that he would not claim salary of higher post, such undertaking held illegal. In this instant case also, the respondent Corporation denying the claim of the petitioners while promoting the petitioners as in-charge General Manager/existing Senior Accounts Officers on the sole ground that in their posting orders specifically mentioned that they could not get any relaxation either in respect of educational qualification or number of years of service stipulated in Service Regulations while considering for promotions/appointment in all categories of posts and hence, seeking for regular promotion could not be considered. The imposition of the said condition and also impugned orders passed by respondent No.3 rejecting the claim of petitioners basing on the Memo dated 28.11.2003 is contrary to law. The principle laid down by the Hon'ble Supreme Court in the above said judgment is squarely applicable to this instant case.
16. In Selvarja (2 supra), the Hon'ble Supreme Court has held at para 4 as follows:
"The decision of the Central Administrative Tribunal rejecting iliac claim of the appellant to the aforesaid limited extent is therefore required to be set aside. The appeals are allowed to the limited extent that the respondents will JSR, J W.P.No.1896 of 2007 18 be called upon to make available to the appellant the difference of salary in the time scale of 1640-2900 during the period from 29-1-1992 to 19-9 1995 during which time the appellant actually worked. It is made clear that the payment of the aforesaid difference amount of salary shall not be treated to amount to any promotion given to the appellant on the said post. It is only on the ground that he had actually worked, as such this relief is being given to him. The difference of salary as aforesaid shall be paid over to the appellant within eight weeks from today. No costs"
17. In the above said judgment, the Hon'ble Apex Court allowed the appeal setting aside the order of the Central Administrative Tribunal rejecting the appellant's claim therein and held that the respondents are required to pay the difference of salary to the appellant for the duration which he actually worked.
18. This Court already observed supra that the respondent Corporation extended the benefit of Regulation 30-A of the Regulations to the similarly situated employees and also implemented the orders of this Court and Apex Court.
19. In view of forgoing reasons, the impugned order dated 09.11.2006 and consequential order dated 23.07.2011 are liable to be set aside and accordingly set aside and the respondents are directed to fix the pay of the petitioners in terms of Regulation 30-A of the Regulations and extend all the benefits, within a JSR, J W.P.No.1896 of 2007 19 period of two (2) months from the date of receipt of a copy of this order.
20. With the above directions, the writ petition is allowed without costs.
Miscellaneous applications, if any pending, shall stand closed.
_______________________ J. SREENIVAS RAO, J Date : 25.07.2023 L.R. copy to be marked - Yes mar