Madhya Pradesh High Court
Uma Shankar Dwivedi vs Madhya Pradesh Electricity Board on 4 March, 2013
Author: K. K.Trivedi
Bench: K. K.Trivedi
HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
W.P.No.5458/2011
Uma Shankar Dwivedi
Vs.
M.P. Electricity Board and another
ORDER
Post it for : .03.2013
(K.K. Trivedi)
JUDGE
.03.2013
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition No. 5458/2011 Uma Shankar Dwivedi
-Versus-
M.P. Electricity Board and another PRESENT :
Hon'ble Shri Justice K. K.Trivedi Shri Ajeet Singh, learned counsel for petitioner Shri Mukesh Agrawal, learned counsel for the respondents.
ORDER (___.3.2013) This petition under Article 226 of the Constitution of India is directed against the order dated 19.2.2011 by which the petitioner is communicated that he is not entitled to grant of higher pay scale on completion of requisite years of service as he was initially appointed in cooperative society which has been merged in the respondent/Board on 15.3.2002 with a clear stipulation that service conditions of the employees of the said cooperative society on merger in the M.P. Electricity Board would not be adversely affected or changed. It is stated in the said order that since there was no provision made in the service condition of the erstwhile cooperative society for grant of higher pay scale, the application of the petitioner is returned.
2. The facts giving rise to filing of this writ petition are that the certain cooperative societies in the rural areas were established for the purpose of electrification work. The M.P. Electricity Board (herein after referred to as 'the Board') took decision to merge all those societies in the Board. For the said purposes, terms and conditions were fixed and it w as said that the persons employed in the said cooperative societies would be merged in the services of the Board but their service condition as were prevalent in the cooperative society will not be changed to their detriment. The orders in this respect were issued and the services of the petitioner came in the folds of Board. When the pay revision of the post of the petitioner was done, the benefit was extended to the petitioner. Despite this the claim of the petitioner for grant of higher pay scale was not considered. It is contended that in fact the scheme was made by the Board long back, keeping in view the fact that there were employees serving in one pay scale for long time and were not granted any upgradation in the pay scale or promotion, therefore it was decided that the employees of the Board will get the benefit of next higher pay scale on completion of 9/18/25 years of services. Such a scheme formulated in the year 1990 remain operative and the benefit was extended to the employees serving in the Board. However, even when the petitioner was absorbed in the services of respondent/Board and had completed the requisite years of service, he was not extended the benefit of next higher pay scale. When an application was made in this respect, the same was rejected, therefore, the petitioner is required to approach this Court by way of filing this writ petition.
3. The respondents on service of notice of writ petition have filed their return. They contended that since the petitioner was an employee of a rural electrification cooperative society, was absorbed in the services of the Board pursuant to the order passed by the M.P. Electricity Regulatory Commission, Bhopal, therefore, the petitioner cannot be treated at par with the employees of the regular establishment of the Board. It is contended that the scheme of higher pay scale to a particular employee on completion of requisite years of service was never made by the cooperative society in which initially the petitioner was appointed. It is further put forth that the scheme made by the respondent/Board is exclusively for the regular employee of the Board and, therefore, such a benefit is not to be extended to the petitioner. It is further contended that the petitioner was absorbed in the services of the Board with a clear stipulation that there would be no change in his service conditions as were available in the cooperative societies and, therefore, if such a protection is granted to the petitioner by virtue of agreement, the petitioner is estopped now to claim the benefit of application of scheme of the respondent/Board, exclusively made for employees of the Board. It is contended that in view of this, the petitioner is not entitled to the relief claimed.
4. Though a rejoinder to such a stand taken by the respondents in their return has been filed by the petitioner but much or less the same facts have been stated. The additional return filed by the respondents is also on the same line. Only this much has been said by filing the document on record by the petitioner that the controversy involved in the present case has been put at rest by the coordinate bench of this Court at Gwalior and, therefore, the petitioner would be entitled to grant of relief claimed in the petition.
5. Heard learned counsel for the parties and perused the record.
6. The only controversy is whether by virtue of any agreement, the petitioner is estopped to claim the benefit of service conditions available in the Board where his services had been finally absorbed. For the said purposes the terms and conditions prescribed in the order of absorption are required to be examined. One such order has been placed on record by the petitioner. The M.P. Electricity Regulatory Commission Bhopal has passed an order on 20.2.2002 pursuance to which the decision was taken to merge cooperative societies in the Board and cases of employees of said societies were considered by the respondents for absorption in the Board services and all those who were found fit to be absorbed in the services of the Board were absorbed in the services. The condition in the order of absorption was specifically made that such persons were absorbed in the Board on the same terms and conditions as were existing in the society services except that no deputation allowance shall be paid. Meaning thereby, the absorption was not going to change the service conditions of the employees of the cooperative society who were absorbed in the Board to their detriment but it does not mean that the benefit of services available in the Board would not be extended to persons like petitioner. No such condition was stipulated in the order of absorption so issued by the respondent/Board in respect of persons like petitioner. This particular aspect was looked into by the Gwalior Bench of this Court in the case of Electric Supply Employees Union Vs. State of M.P. and Others [W.P.No.12029/2010(O)] decided on 13.9.2011. Though in context to grant of pay scale, such consideration was done by the Gwalior Bench of this Court but the law is very clear on this. If there is no specific bar created with respect to the application of service conditions all other service conditions available in the Board would be applicable to all those cooperative employees who were absorbed in the services of the respondent/Board. Thus, the stand taken by the respondents that the petitioner was not entitled to claim the benefit of grant of higher pay scale on completion of requisites years of service cannot be accepted.
7. Yet another aspect is required to be examined. Even when there was a direction given by the M.P. Regulatory Commission, there was a policy made by the respondent Board to take in its fold the employees of the erstwhile cooperative society on taking over of such society. Of course, this was to be done after due verification of the service records and scrutiny of case of individual. Once the order of absorption was issued, the absorbed employee also become an employee of the Board. If his previous service condition are protected, it cannot be said that he would not be entitled to get the benefit of service condition available in the Board. If this is allowed, it will mean that absorbed employees are treated a class separate than the regular establishment of the respondent/Board. In that way, the persons like petitioner would be discriminated against the vice of Article 14 of the Constitution of India. This could not have been permitted by any policy made by the respondents. Virtually, there was no policy made in this respect and even when the policy was made, no such restriction was placed by the respondent/Board. No steps motherly treatment was to be made to the persons like petitioner who came on absorption in the services of the Board. Once an absorption is completed, the persons like petitioner also become the part and parcel of the main stream in the establishment of the respondent/Board and as such would be entitled to the application of the service conditions of the Board except those which are saved by conditions made in order of absorption. In view of this, the order impugned issued by the respondent cannot be sustained.
8. Consequently, the impugned order dated 19.2.2011 (Annexure P-1) is hereby quashed. The respondents are directed to consider the claim of the petitioner for grant of benefit of higher pay scale on completion of requisite years of service as applied for by the petitioner in terms of the policy made by the Board and to grant the said benefit to the petitioner from the date of eligibility if found fit. The necessary action be taken within two months from the date of order. In case the petitioner is found fit, all the arrears of salary be calculated after re- fixation of pay in higher pay scale as awarded and be paid to him within the aforesaid period.
9. The writ petition is allowed to extent indicated herein above. There shall be no order as to costs.
(K. K. Trivedi) Judge Preeti/