Madhya Pradesh High Court
Madhya Pradesh Vidyut Mandal Abhiyanta ... vs The State Of Madhya Pradesh Judgement ... on 12 September, 2013
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR.
WRIT PETITION NO.9860/2012(S)
Madhya Pradesh Vidyut Mandal
Abhiyanta Sangh & others.
-Versus-
State of M.P. & others.
WRIT PETITION NO.11083/2012(S)
Devendra Kumar Tiwari
-Versus-
State of M.P. & others.
WRIT PETITION NO.12298/2012(S)
Arvind Kumar Upadhyay
and others.
-Versus-
State of M.P. & others.
WRIT PETITION NO.12302/2012(S)
J.P. Soni
and others.
-Versus-
State of M.P. & others.
And.
WRIT PETITION NO.22145/2012(S)
Deepak Kumar Shrivastava
and others.
-Versus-
State of M.P. & others.
PRESENT : Hon'ble Shri Justice K.K. Trivedi.
2
Shri Manoj Sharma, learned counsel for the
petitioners.
Shri Rahul Jain, learned Govt. Advocate for
respondent No.1.
Shri Anoop Nair, learned counsel for respondents
No. 2 and 3.
Shri B.L. Nag, learned counsel for the interveners.
......[in W.P.No.9860/2012(S)]
Shri Manoj Sharma, learned counsel for the
petitioners.
Shri Rahul Jain, learned Govt. Advocate for
respondent No.1.
Shri Anoop Nair, learned counsel for respondents
No. 2 and 3.
......[in W.P.No.11083/2012(S)]
Shri Manoj Sharma, learned counsel for the
petitioners.
Shri Rahul Jain, learned Govt. Advocate for
respondent No.1.
Shri Anoop Nair, learned counsel for respondents
No. 2 and 3.
......[in W.P.No.12298/2012(S)]
Shri Manoj Sharma, learned counsel for the
petitioners.
Shri Rahul Jain, learned Govt. Advocate for
respondent No.1.
Shri Anoop Nair, learned counsel for respondents
No. 2 and 3.
......[in W.P.No.12302/2012(S)]
Shri Manoj Sharma, learned counsel for the
petitioners.
3
Shri Rahul Jain, learned Govt. Advocate for
respondent No.1.
Shri Anoop Nair, learned counsel for respondents
No. 2.
......[in W.P.No.22145/2012(S)]
ORDER
(12.9.2013) 1: This order will also govern the disposal of Writ Petition No.11083/2012(S), Writ Petition No.12298/2012(S), Writ Petition No.12302/2012(S) and Writ Petition No. 22145/2012(S) as the common questions are involved and all the matters were heard together and are being decided by this common order. For the purpose of this order, the facts are taken from Writ Petition No.9860/2012.
2: The petitioners are the Association of Engineers and the Engineers working in the establishment of Madhya Pradesh Power Management Company Limited and other Companies established after bifurcation of the Madhya Pradesh State Electricity Board (hereinafter referred to as the Board for brevity). All the petitioners are aggrieved by the orders, by which the Rules of Promotion have been adopted by the respondents Companies, for the purposes of grant of promotion and by the different Companies different orders are issued in this respect, therefore, in the different writ petitions such orders are called in question. The ground of attack to such an order is basically on the premises that under the statutory provisions such service conditions of persons like petitioners are protected and could not be changed to their detriment, therefore, the orders adopting the Rules of the State services by the Companies are bad in law. Another ground for challenge is that even if such an adoption was 4 permissible, it would be prospective in nature and would not be applicable for those posts or vacancies which accrued prior to coming into force of orders of adoption. Since these two grounds are common in all the writ petitions, all the matters were heard together. However, the fact remains that in some of the cases, subsequent promoted officers have also been impleaded as party and their orders of promotion are also sought to be challenged.
3: Facts giving rise to filing of the present petition are that the Board was required to be dissolved in different Companies in terms of the provisions made under the Indian Electricity Act, 2003 (hereinafter referred to as the 2003 Act for brevity). As a consequence of enactment of such a Parliamentary Act, certain laws were made by the State Legislature as well. At the same time, exercising the power conferred under the Act, the State Government made the Madhya Pradesh Electricity Reforms First Transfer Scheme Rules, 2003 (hereinafter referred to as the 2003 Rules for brevity). While making the Act as also while making the Scheme, protection was granted in the matter of those employees and officers who were already working in the erstwhile Board. Their services stood transferred to the respective Companies formed in the State. The First Transfer Scheme also prescribes protection of service conditions of such employees. Prior to coming into force of the 2003 Act, the State Legislative Assembly already enacted an Act known as Madhya Pradesh Vidyut Sudhar Adhiniyam, 2000 (hereinafter referred to as the 2000 Act for brevity) wherein the reorganisation of the Board was prescribed and in the said Act also the provisions were made relating to the service conditions of the employees of the erstwhile Board. The Board has previously adopted the Madhya Pradesh Public Service Promotion Rules, 2002 (hereinafter referred to as the Promotion Rules for short) by passing a resolution. However, 5 certain modifications were done and the said Promotion Rules were amended by passing the resolution by the erstwhile Board, in the matter of fixing the criteria and the bench-mark for promotion on the higher post. These amended provisions of the Promotion Rules were in vogue when certain vacancies occurred, but because of the change of the policy, the respondents-Companies have adopted the Promotion Rules as a whole afresh, without even taking note of the necessity of the amendment or modification in the said Rules and has started the process of appointment by promotion and since these Promotion Rules, as adopted, would come in the way of the persons like petitioners for promotion, this being a change of certain service conditions, that, too, for filling in the vacancies which occurred before the change made in the Promotion Rules, it is contended that such an action of the respondents is per se illegal. It is the claim of the petitioners that in view of the law laid down by the Apex Court, such change in service conditions would not be permissible and, even if it is made applicable, it would be prospective and not retrospective and would not be applicable in respect of those vacancies which occurred before the coming into force of Promotion Rules as adopted by the respondent-Company under the impugned orders, therefore, it is claimed that orders issued in this respect are bad in law and are liable to be quashed. The petitioners have claimed the reliefs to this extent in following manner :-
"It is, therefore, humbly prayed that this Hon'ble Court be pleased to :-
(i) Call for the entire material record leading to the issuance of the impugned order/circular dated 29.05.2012 (Annexure P-1) " and the impugned order dated 07.07.2012 (Annexure P-1A)"6
(ii) Set aside the impugned order/circular dated 29.05.2012 (Annexure P-1) and the impugned order dated 07.07.2012 (Annexure P-1A)"
(iii) Restrain the respondent form taking any action in pursuance to the impugned circular dated 29.05.2012 (Annexure P-1) vis-a-vis any DPC(S) pertaining to promotions of petitioners.
(iv) command and direct the Respondents to restore the previous bench-mark grade and other matters as provided in the circular dated 26.12.2006 (Annexure P-9).
(v) Any other relief/order or direction, as this Hon'ble Court deems fit and proper looking to the facts and circumstances of the case deemed fit and proper in the interest of justice may please be awarded along with the cost of the proceedings."
4: Refuting such allegations made by the petitioners, a return has been filed by the respondents and almost same stand is taken in all the writ petitions. It is contended that such a petition is not maintainable. No prejudice is caused to the officers and employees like petitioners. In all such cases, persons like petitioners were considered, those who were found fit, have been promoted by separate orders and this being so, it cannot be said that the Promotion Rules as adopted by the respondents are not applicable in the case of persons like petitioners. It is further contended that the Fundamental Right available to the persons like petitioners is only right to be considered for promotion and not the promotion itself. Since they have been considered, and some of them have already been granted promotion, the entire allegations made by the petitioners are misconceived. It is, thus, contended that the petition is liable to be dismissed. Some of the interveners have applied to intervene in the writ 7 petition to oppose the claim of the persons like petitioners, but nothing different has been stated by them than the stand taken by the official respondents, therefore, it is not necessary to record such submissions of the interveners.
5: It is, vehemently, contended by learned counsel for the petitioners that the 2003 Act prescribes a Scheme of Reorganisation of the Electricity Board as is contained in Part- XIII. It is contended that under Section 131 of the 2003 Act, it is categorically provided that with effect from the date on which a Transfer Scheme is prepared by the State Government to give effect to the objects and purpose of the Act, and is published, or such further dates as may be stipulated by the State Government, any property, interest in properties, rights and liabilities which immediately before the effective date belonged to the Board, shall vest in the State Government on such terms as may be agreed between the State Government and the Board. Reading provisions of Section 133 of the 2003 Act, it is contended that a Scheme is required to be made for transfer of the officers and employees to the transferee on the vesting of properties, rights and liabilities in such transferee as provided under Section 131 of the 2003 Act. However, specifically a protection is given that such terms and conditions on the transfer shall not in any way be less favourable than those which would have been applicable to the employees if there had been no such transfer under the Transfer Scheme. Drawing attention to the provisions of the Scheme made under the 2003 Rules, it is contended by learned counsel for petitioners that Rule 7 of 2003 Rules, contemplates the transfer of personnel subject to the terms and conditions contained in Section 133 of the Central Act and Section 24 of the State Act. It is pointed out that the erstwhile Board had already decided to adopt the Promotion Rules and for the said purposes after taking a decision, an order was 8 issued on 5.1.2006 adopting the Promotion Rules as it is. However, an amendment was made after taking a decision by the Board of Directors of the erstwhile Board on 20.2.2006 and it was decided to include one more member of reserved category in the Departmental Promotion Committee (hereinafter referred to as the DPC for short). Yet another amendment was made on 26.12.2006 reducing the bench- mark for the purpose of considering the cases for promotion on merit-cum-seniority basis and this was done only when the matter was discussed by the erstwhile Board in its meeting. These changes made in the Promotion Rules were accepted to be applicable by all the representatives of the subsequent Companies formed after dissolution of the Board in a meeting with the Secretary of the Energy Department of Government of Madhya Pradesh and it was specifically resolved that those amendments were not to be recalled. It was decided in such meeting that posts were to be created for each and every Company separately and total number of vacancies were indicated. That being so, even if any amendment was to be made or new adoption of the Promotion Rules was to be done, that would not affect the vacancies which were already created prior to passing of the said order. It is, thus, contended that entire action in this respect taken by the respondents is nothing, but denying the opportunity of promotion to the persons like petitioners and valuable right of rightful consideration is denied to them.
6: Per contra, again it is reiterated by learned counsel appearing for the respondents-Companies that the right accrued to the petitioners was not disturbed in any manner. The Promotion Rules were adopted much before. Merely because certain changes were incorporated by the erstwhile Board, in the Promotion Rules, there was no effect on the consideration for grant of promotion and since these 9 petitioners were all considered, even some of them have been promoted, the submission as made by the petitioners sans merit. It is putforth that law is well settled that right of consideration is not to be denied and since this has not been done, the stand taken by the petitioners that vacancies which occurred prior to adoption of the Promotion Rules afresh are to be filled in under the provisions of the earlier modified Promotion Rules as made applicable by the erstwhile Board, cannot be accepted.
7: Heard learned counsel for the parties at length and perused the record.
8: First of all, it has to be seen whether law has granted any protection to the persons like petitioners in the matter of their service conditions or not. Undisputedly, before coming into force of the 2000 and 2003 Act, the Board was the only one statutory body which was having all the projects and activities relating to electricity production and supply in its folds. The Board was to be dissolved in terms of the provisions of the 2000 Act. Before even coming into force of the 2003 Act, the State Legislature has enacted the 2000 Act with the purpose of establishing State Electricity Regulatory Commission, restructuring of the electricity, rationalisation of generation, transmission, sub-transmission, distribution and supply of electricity in the State, regulating the licensing and transmission of electricity, regulating the purpose, transmission, sub-transmission, distribution, supply and utilisation of electricity, providing quality of service and the tariff and other charges considering the interest of the consumers and utility and taking measures conducive to the development and management of the electricity industries in the State in an efficient, economic and competitive manner. Apart from the provisions made under the 2000 Act for establishment of different Companies for the purposes of 10 looking after the work and business of the electricity industry as provided in Chapter-VI under Section 23 of the 2000 Act, specific provisions were made under Section 24 of the 2000 Act, relating to services of the employees of erstwhile Board. The provisions of this Section are materially important, therefore, the same are reproduced as under :-
"24. Provisions relating to personnel.-(1) The State Government may provide for the transfer of the personnel of Board to the First or Second Transferee, as the case may be, on the vesting of properties, rights and liabilities in the said Transferee, as a part of the undertaking transferred under Section 23 and such transfers shall be effective in the like manner as in the case of transfers under Section 23.
(2) Upon such transfers the personnel, shall hold office or service under the First or Second Transferee, as the case may be, on terms and conditions that may be determined in the transfer scheme subject to the following, namely:-
(a) that the terms and conditions of the service applicable to them in the First or Second Transferee shall not in any way be less favourable than or inferior to those applicable to them immediately before the transfer;
(b) that the personnel shall have continuity of service in all respects; and
(c) that all benefits o service accrued before the transfer shall be recognized and taken into account for all purposes including the payment of any all terminal benefits.
(3) Notwithstanding anything contained in the Industrial Disputes Act, 1947(No.14 of 1947) or any other law as is applicable and except for the provisions made in this Act, the transfer of the employment of the personnel in terms of provisions of this part shall not entitle such employees to any compensation or damage under this Act, or any other Central or State law or under the general law, save as provided in the transfer scheme.
Explanation.- For the purposes of this Part and the Transfer Scheme the term "Personnel" shall mean and include all persons who on the effective date are the employees of the Board, by whatever name called."
119: When the 2003 Act came into force, various provisions were made by Parliament, some of which were for the purposes of constitution of the State Electricity Regulatory Commission. In different part of the 2003 Act, functions of the electricity industries were described and for that constitution of separate company was prescribed. However, in part 13 of the 2003 Act, the reorganisation of the Board which were in vogue when the Act came in force, was prescribed. Section 131 of the 2003 Act prescribes the vesting of properties of the Board in the State Government concerned. Again there was a provision made for safeguarding the service conditions of the employees and officers of the Board and for that specific provisions were made under Section 133. Since these two provisions of the 2003 Act are materially important, the same are reproduced hereunder for appreciation :-
"131. Vesting of property of Board in State Government.-(1) With effect from the date on which a transfer scheme, prepared by the State Government to give effect to the objects and purposes of this Act, is published or such further date as may be stipulated by the State Government (hereinafter in this Part referred to as the effective date), any property, interest in property, rights and liabilities which immediately before the effective date belonged to the State Electricity Board (hereinafter referred to as the Board) shall vest in the State Government on such terms as may be agreed between the State Government and the Board.
(2) Any property, interest in property, rights and liabilities vested in the State government under sub-section (1) shall be revested by the State Government in a Government company or in a company or companies, in accordance with the transfer scheme so published along with such other property, interest in property, rights and liabilities of the State Government as may be stipulated in such scheme, on such terms and conditions as may be agreed between the State Government and such company or companies 12 being State Transmission Utility or generating company or transmission licensee or distribution licensee, as the case may be :
Provided that the transfer value of any assets transferred hereunder shall be determined, as far as may be, based on the revenue potential of such assets at such terms and conditions as may be agreed between the State Government and the State Transmission Utility or generating company or transmission licensee or distribution licensee, as the case may be.
(3) Notwithstanding anything contained in this section, where,-
(a) the transfer scheme involves the transfer of any property or rights to any person or undertaking not wholly owned by the State Government, the scheme shall give effect to the transfer only for fair value to be paid by the transferee to the State Government;
(b) a transaction of any description is effected in pursuance of a transfer scheme, it shall be binding on all persons including third parties and even if such persons or third parties have not consented to it.
(4) The State Government may, after consulting the Government company or company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee, referred to in sub-section (2) (hereinafter referred to as the transferor), require such transferor to draw up a transfer scheme to vest in a transferee being any other generating company or transmission licensee or distribution licensee, the property, interest in property, rights and liabilities which have been vested in the transferor under this section, and publish such scheme as statutory transfer scheme under this Act.
(5) A transfer scheme under this section may-
(a) provide for the formation of subsidiaries, joint venture companies or other schemes of division, amalgamation, merger, reconstruction or arrangements which shall promote the profitability and viability of the resulting entity, ensure economic efficiency, encourage competition and protect consumer interests;
(b) define the property, interest in property, rights and liabilities to be allocated-
(i) by specifying or describing the property, rights and liabilities in question; or 13
(ii) by referring to all the property, interest in property, rights and liabilities comprised in a described part of the transferor's undertaking; or
(iii) partly in one way and partly in the other;
(c) provide that any rights or liabilities stipulated or described in the scheme shall be enforceable by or against the transferor or the transferee;
(d) impose on the transferor an obligation to enter into such written agreements with or execute such other instruments in favour of any other subsequent transferee as may be stipulated in the scheme;
(e) mention the functions and duties of the transferee;
(f) make such supplemental, incidental and consequential provisions as the transferor considers appropriate including provision stipulating the order as taking effect; and
(g) provide that the transfer shall be provisional for a stipulated period.
(6) All debts and obligations incurred, all contracts entered into and all matters and things engaged to be done by the Board, with the Board or for the Board, or the State Transmission Utility or generating company or transmission licensee or distribution licensee, before a transfer scheme becomes effective shall, to the extent specified in the relevant transfer scheme, be deemed to have been incurred, entered nto or done by the Board, with the Board or for the State Government or the transferee and all suits or other legal proceedings instituted by or against the Board or transferor, as the case may be, may be continued or instituted by or against the State Government or concerned transferee, as the case may be.
(7) The Board shall cease to be charged with and shall not perform the functions and duties with regard to transfers made on and after the effective date.
Explanation.- For the purpose of this Part,-
(a) "Government company" means a Government company formed and registered under the Companies Act, 1956 (1 of 1956);
(b) "company" means a company to be formed and registered under the Companies Act, 1956 (1 of 1956) to undertake generation or transmission or distribution in accordance with the scheme under this Part.14
133. Provisions relating to officers and employees.-(1) The State Government may, by a transfer scheme, provide for the transfer of the officers and employees to the transferee on the vesting of properties, rights and liabilities in such transferee as provided under Section 131. (2) Upon such transfer under the transfer scheme, the personnel shall hold office or service under the transferee on such terms and conditions as may be determined in accordance with the transfer scheme :
Provided that such 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 under the transfer scheme :
Provided further that the transfer can be provisional for a stipulated period. Explanation.- For the purposes of this section and the transfer scheme, the expression "officers and employees" shall mean all officers and employees who on the date specified in the scheme are the officers and employees of the Board or transferor, as the case may be."
A perusal of provisions of Section 133 of 2003 Act referred to herein above will make it clear that again service conditions of the employees and officers of the erstwhile Board were protected and at least no such new conditions were to be made detriment to their interest.
10 : For the purposes of implementation of the Scheme of 2003 Act as also 2000 Act, 2003 Rules were made embodying First Transfer Scheme. In this Scheme, again transfer of personnel from erstwhile Board to the newly formed company was prescribed. Again the very same protections were made available under the Scheme and since the entire Scheme is materially important as prescribed in Rule 7, the same is reproduced hereunder :-
"7. Transfer of Personnel.-(1) The transfer of personnel shall be subject to the terms and conditions 15 contained in Section 133 of the Central Act and section 24 of the Act.
(2)(a) On the Date of Transfer, notified by the State Government for transfer of the specific Undertakings under Rule 6, the personnel of the Board shall stand assigned to the services of the Genco, Transco, Discom-1, Discom-2, Discom-3, as the case may be, on as is where is basis, namely, that they will continue to serve in the place where they are posted on the date of the transfer, till further orders of the State Government.
(b) The State Government may issue orders from time to time directing the personnel rendering services in the Board relating to undertakings classified in two or more of the Schedules, to be assigned to the undertakings classified under a specified schedule and thereupon such personnel [shall be deemed to have been] assigned to the services of such undertakings for all intent and purposes.
(3) The assignment under sub-rules (1) and (2) above to the transferees shall continue till the personnel are absorbed in the services of the specific Transferee, in accordance with the provisions of the [Act/Central Act], these Scheme Rules, and orders to be issued by the State Government under these Scheme Rules.
(4) The State Government shall in consultation with the Genco, Transco, Discoms and the Board finalise the transfer to and permanent absorption of the Personnel in a Transferees taking into account the suitability, ability and experience of the personnel, number and nature of the vacancies and other relevant factors and issue appropriate orders, as it may think fit, for such permanent absorption within the provisional period mentioned in Rule 10. [However, no personnel shall be retrenched at the time of reorganisation and transfer under these scheme rules and their service, rank and their seniority shall be protected.] [(5) For the purpose of sub-rule (4), the State Government shall, in consultation with Genco, Transco, Discoms and the Board, constitute a Committee as the State Government may consider appropriate to-
16(a) receive representations from the personnel after their assignment to the companies under clause
(a) and (b) of sub-rule (2) and before their absorption in the transferee,
(b) hear the aggrieved personnel who may take assistance from the representatives of the Employees Association or Unions of Board, as the case may be; and
(c) make recommendation after hearing on such transfer and absorption, within such time as State Government may by notification specify for the purpose giving due weightage to the career prospects and the representation of the personnel.] (6) The State Government shall take a decision on the transfer and permanent absorption of the Personnel in the Transferee after considering the [reasoned and cogent recommendations] of the Committee appointed for the purpose and shall issue orders for such transfer and permanent absorption of the Personnel.
(7) Upon the finalisation and issue of orders in terms of the sub-rule (6), the personnel shall form part of the service of the Transferee concerned, in the post, scale of pay or seniority in accordance with the orders that may be issued for this purpose, without any further act, deed or thing to be done by the State Government or the Board or the Transferee or any other person including the personnel.
[Such transfer shall not adversely affect the existing service conditions including cadre, scale of pay and such other benefits, irrespective of the cadre strength of the Transferee.] [(8) Subject to the provisions of the Act/Central Act and these Scheme Rules, the transferee shall be entitled to modify or frame new regulations governing the conditions of service of personnel transferred to the transferee under these Scheme Rules :
Provided that such 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 under the transfer scheme including their rank, scale of pay, salary, allowances, other pecuniary benefits and terminal benefits etc.] 17 (9) In respect of all statutory and other schemes and employment related matters including the provident fund, gratuity fund, pension and any other superannuation fund or any other special fund created or existing for the benefit of the personnel, the relevant transferee shall stand substituted for the Board for all purposes and all the rights, powers and obligations of the Board in relation to any and all such matters shall become those of the transferee concerned and the services of the personnel shall be treated as having been continuous for the purpose of the application of these Scheme Rules.
[(10) In regard to the funding of the pension funds and other personnel related funds by the transferees to the extent they are not funded on the date of the transfer of the personnel from the Board including the due payment of the amounts to personnel who rtire after the date of the transfer, by the respective transferees to which these personnel are transferred following arrangements, but not limited to them, shall be made and till such time such payments shall be duly made by the Board :-
(a) All the personnel of the Board who retire after the date of the transfer shall be the pensioners of the respective transferees to which these personnel are transferred and they shall be paid pension and other terminal benefits regularly by the respective transferees. The priority of payment of the terminal benefits to such pensioners shall be at par with the payment of salary and wages to the personnel of the respective transferees. However, the contributions towards the pension and other terminal benefits for the past service rendered by the personnel up to the date of transfer in MPSEB/MPEB, shall be made by Transco and contributions for the part of service rendered under the transferee shall be provided by the respective transferee.
(b) A separate fund shall be created by the transferees for payment of pension and other terminal benefits of the pension and other terminal benefits of the personnel who retire after the date of the transfer through regular subscription of appropriate amount into a Terminal Benefits Trust being created by the State Government.
(c) the amount of pension and other terminal benefits payable each year, as well as subscription to the fund to the built-up for payment of pension and other terminal benefits in future, to the personnel of 18 the Board; who retire after the date of transfer shall be a charge on the revenues of the respective transferee, till the requisite fund is built up with the Terminal Benefit Trust.
(11) In regard to the funding and due payment of the terminal benefits to the existing pensioners of the Board as on the date of the transfer following arrangements, but not limited to them, shall be made and till such time such payments shall be duly made by the Board:-
(a) all the existing pensioners of the Board, as on the date of transfer of the personnel, shall be treated as deemed transferred to the Transco and they shall be paid terminal benefits regularly by the Transco. The priority of payment of the pension and other terminal benefits to the existing pensioners shall be at par with the payment of salary and wages to the personnel of the Transco.
(b) A separate fund shall be created by Transco for payment of pension and other terminal benefits of the existing pensioners through regular subscription of appropriate amount into a Terminal Benefits Trust being created by the State Government.
(c) The amount of pension and other terminal benefits payable during each year, as well as subscription to the fund to be built-up for payment of pension and other terminal benefits in future, to the existing pensioners as on the date of transfer, shall be a charge on the revenues of the Transco till the requisite fund is built up with the Terminal Benefit Trust.
For the purpose of sub-rule 10 and 11, the term :
Explanation.-(i) "Existing Pensioner" means all the persons eligible for the pension as on the date of the transfer from the Board and shall include such family members of the personnel who are entitled for pension and other terminal benefits, and
(ii) "Terminal Benefits" means the gratuity, pension, dearness allowance and other applicable relief, medical benefit, and other applicable benefits including the right to have the appropriate revisions in the above benefits consistent with the practice that were prevalent in the Board.] Note : For the purpose of sub-rule (10) and (11) above, the appointed date for appointment of 19 terminal benefits liabilities among the successor companies of Madhya Pradesh Electricity Board shall be treated as 1st June, 2005.] (12) The provisions of sub-rules (9), (10) and (11) above shall not apply to any personnel, other than the existing personnel and existing pensioner of the Board, as on the date of transfer. All personnel recruited and appointed by the transferee shall be governed by, Contributory Provident Fund Scheme or any other appropriate scheme, which the transferee concerned may establish, for the purpose, and not by the pension schemes of the existing personnel and existing pensioners, under sub-rules (9), (10) and (11) above.
(13) All proceedings including disciplinary proceedings pending against the personnel prior to the date of the transfer from the Board to the transferee or from such transferee to another transferee, as the case may be, or which may relate to misconduct, lapses or acts of commission or omission committed before the date of the transfer, shall not abate and may be continued by the relevant transferee.
(14) The personnel transferred to the transferees, shall be deemed to have entered into an agreement with the transferee concerned to repay loans, advances and other sums due or otherwise perform obligations undertaken by them to the Board which remain outstanding as on the date of transfer, on the same terms and conditions as contained in the with the Board.
(15) Nothing contained in these Scheme Rules shall apply to personnel of the State Government or the Central Government or other organization on deputation to Board as on the date of the transfer but such personnel shall continue on deputation to the concerned transferee(s) to whose services they are assigned on as is where is basis or otherwise as per the orders of the State Government from time to time, issued in this behalf."
11 : In context of what was prescribed under the statutory Act and the Rules, it has to be examined whether any right was created in favour of the petitioners by erstwhile Board in the matter of consideration for promotion or not. It is not in 20 dispute that before issuing the notification, abolishing the erstwhile Board, the said Board was functional in the State and was competent to take any decision. By different notification issued, the Board was made defunct and was winded up. Such a notification was issued on 26.4.2012 under the provisions of Section 131 of the 2003 Act and Section 23 of the 2000 Act by the State Government. An order prescribing the condition of absorption of personnel from the Board to the successor entity was issued on 10.4.2012. It is also not in dispute that the State Government made the Promotion Rules 2002 and published them on 11.6.2002 in the Gazette. It is also not in dispute that criteria of considering the cases for promotion on the basis of merit-cum-seniority was prescribed in Rule 7 of the Promotion Rules and a bench-mark was fixed for the said purposes. It is also not in dispute that after publication of the Promotion Rules, some amendment was made by issuance of a clarificatory order on 6.7.2002 by the State Government and it was specifically provided that the meaning of Rule 7(8) of the Promotion Rules would be as described by the State. A prescription was made as to how assessment would be done by the DPC for evaluating the marks of the Annual Confidential Reports (hereinafter referred to as the ACR for brevity) grading. It was further prescribed that if there is a dispute with respect to the particular grading in the ACR, that has to be decided by the DPC and while doing so, the DPC would be competent to increase or decrease one mark. It is also not in dispute that benchmark criteria was prescribed and reiterated in the circular of the State Government issued on 29.9.2004, in respect to the consideration to be done under the provisions of Promotion Rules. It is also not disputed by the respondents that on 5.1.2006, the erstwhile Board adopted the Promotion Rules of the State Government as it is, except the change of nomenclature of the authorities as indicated in the said Rules. However, soon thereafter the Board decided that there must 21 be one more member of reserved category included in the DPC and for the said purposes, a clarificatory and amending provision was made by circular dated 20.2.2006. Again by taking a decision in the Board of Directors on 26.12.2006, the circular was issued and criteria for consideration for promotion evolving the norms of merit-cum-seniority, the benchmark was changed and from the post of Executive Engineer to Superintending Engineer instead of 13 marks, it was decided that 11 marks would be the benchmark. So on so forth, for the next higher post the benchmark was reduced by one mark. These were the service conditions in the matter of consideration for promotion available to the employees and officers of the Board when a decision was taken to abolish the same and transfer the services of persons like petitioners in the respective Companies. Whether such a condition could be changed or not and whether adoption of the Promotion Rules afresh by the impugned order without the changes already adopted by the erstwhile Board, would amount to change in service conditions or not, is the mute question, which is to be decided first.
12 : It is seen that the Promotion Rules prescribe a strict criteria for consideration of promotion. The period of qualifying service was explained in the explanation appended to the sub-rule (3) of Rule 7 of the Promotion Rules. The benchmark prescribed for the eligibility for promotion from Class-I to higher pay scale of Class-I post is Very Good. Sub- rule (5) of Rule 7 of the Promotion Rules is materially important indicating the vacancy conditions and, therefore, the same is required to be reproduced as under:-
"7(5). The meeting of the Departmental Promotion/ Screening Committee shall be held every year. It shall consider the suitability of the public servant for promotion separately with 22 reference to the vacancies of each previous year starting with the earliest year onwards. The Departmental Promotion Committee/Screening Committee shall consider the suitability of the public servants for promotion to fill up the unfilled vacancies of the earlier year or years separately and prepare the select list for the relevant year accordingly. Thereafter, the Departmental Promotion Committee/Screening Committee shall consider the suitability of the public servants for promotion to fill up the existing and anticipated vacancies of the current year."
In view of this, if the changes made by the erstwhile Board are looked into, it will be crystal clear that a vast change was made by the erstwhile Board in such a service condition. For the purpose of demonstrating such change, it is profitable to reproduce the circular so issued by the erstwhile Board which reads thus :-
"MADHYA PRADESH STATE ELECTRICITY BOARD CIRCULAR No.01-13/5585/96 Jabalpur, dtd.26.12.06 It has been decided to modify Circular No.01-13/3434/01 dtd.05.01.06 read with No.01-13/3434/05 dtd.20.02.06 to the following extent :-
(i) The posts of Class-I cadre from EE to CE/ED and equivalent lying vacant due to non-availability of reserved category candidates shall be filled up provisionally by promoting unreserved category candidates against vacant post of reserved category. Whenever reserved category officers are available for promotion in feeder cadre, such promoted unreserved category officer/officers shall demoted to the former post, if in excess than the post allocated to unreserved category.
(ii) The minimum bench mark grade required for promotion of Class-I to other Class-I cadre is modified as below:CE to ED 14 Addl. CE to CE 13 SE to Addl. CE 12 EE to SE 11
The last ACR grading during 5 years should not be adverse.23
(iii) The select list should contain officers having minimum bench mark grade as mentioned above upto 20. There shall not be any preference in seniority for promotion to the officer getting maximum bench mark grade of 20.
(iv) The reserved category officer shall be entitled for relaxation of 1 mark for promotion, if required number of officers having minimum bench mark grade are not available.
(v) There hall not be any zone of consideration for promotion for unreserved category officers from Class-I to other Class-I cadre.
By order of the Board (S) (P.K. Vaishya) Secretary M.P. State Electricity Board Jabalpur, dtd.26.12.06."
13 : Now the question is whether such is permissible or not and it has to be examined in context of law laid down by the Apex Court. In case of P.D. Aggarwal and others Vs. State of U.P. And others [(1987) 3 SCC 622] the Apex Court has looked into these situations and while referring to the decision rendered in the case of Mohammad Shujat Ali Vs. Union of India [(1975) 3 SCC 76] has held that it is true that a Rule which confers a right of actual promotion or a right to consider for promotion is a Rule prescribing a condition of service. Similar was the situation with respect to the applicability of an amended provision of the Rules, duly considered by the Apex Court in the case of B.L. Gupta and another Vs. M.C.D. (1998) 9 SCC 223] wherein dealing with almost the similar circumstances with respect to the amendment of a Rule made in the year 1978 and in the year 1995, it has been held that the Rule would be applicable with prospective effect and, therefore, any amendment made in such Rule would be prospective and not retrospective. It is held that the vacancy which had occurred prior to the amendment of the Rules would be governed by the old rules and not by the amended rules.
2414 : Lastly, the Apex Court in the case of State of Uttar Pradesh and others Vs. Mahesh Narain and others [(2013) 4 SCC 169] has again considered these aspects and has categorically held that all such appointment would be done only and only on the basis of unamended provision of the Rules, the change in the said Rules would amount to change of service conditions, which would be applicable with prospective effect and not with retrospective effect. Thus, there is no hesitation in holding that amendment would not be made in such service conditions which were available to the petitioners on account of their transfer and absorption in the newly formed companies. The change of service condition is not permissible in terms of the statutory provisions of the 2000 and 2003 Act read with 2003 Scheme made by the State referred to herein above. Of course, the new conditions can be levelled, but the same would be applicable to the new entrants who are to be inducted in service of the Companies after coming into force of the new Rules by virtue of adoption subsequently done.
15 : Now the question is whether the vacancies were occurred prior to the adoption of 2002 Rules without any modification, as has been done by the impugned order or have occurred after the said impugned order. It is pointed out by learned counsel for the petitioners that vacancies were already informed much before the passing of the orders impugned, as a decision in that respect was already taken. These sanction orders were issued at the time of establishing the Companies and handing over them the staff from the erstwhile Board and while abolishing the Board. Therefore, it has to be held that vacancies were there prior to coming into force of the new adoption of Promotion Rules and, therefore, same were to be filled in only under the unamended service conditions. As has been pointed out, the Apex Court has already looked into 25 these situations in the case of B.L. Gupta (supra) and while looking to the law laid down by the Apex Court in that respect on earlier occasion in the case of A.C. Calton Vs. Director of Education [(1983) 3 SCC 33] has held in paragraph 9 of the report in B.L. Gupta's case (supra) which read thus :-
"9. When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr. Mehta to a decision of this Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission [(1990) 3 SCC 157]. In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah v. J. Sreenivasa Rao [(1983) 3 SCC 284], P. Ganeshwar Rao v. State of A.P. [1988 Supp. SCC 740] and A.A. Calton v. Director of Education [(1983) 3 SCC 33] it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules. Though the High Court has referred to these judgments, but for the reasons which are not easily decipherable its applicability was only restricted to 79 and not 171 vacancies, which admittedly existed. This being the correct legal position, the High Court ought to have directed the respondent to declare the results for 171 posts of Assistant Accountants and not 79 which it had done."
16 : In view of this, again it has to be held that the proceedings for consideration of promotion was required to be done under the amended provisions of the Promotion Rules as were in vogue when the persons like petitioners were transferred and absorbed in the new Companies after abolition of the erstwhile Board.
17 : Learned counsel for respondents has tried to contend that consideration for promotion alone is the condition of 26 service and, therefore, it would not be justified to take a contrary view and to hold that even a promotion itself would amount to a service condition. Referring to the law laid down by the Apex Court in the case of Ram Chandra Shankar Vs. State of Maharashtra [(1974) 1 SCC 317] and in the case of Mohammad Shujat Ali (supra), learned counsel for the respondents would contend that since the petitioners were granted an opportunity to be considered, they cannot claim the promotion as of right. True it is that the law is explained in this respect, but what are the circumstances in which each and every case is to be made applicable, have to be examined. Herein in the case in hand, there is a complete change of criteria of consideration which violates the rights to be considered in appropriate manner and, therefore, in the considered opinion of this Court, the reliance placed by learned counsel for the respondents is misconceived. Similar is the situation with the law laid down by the Apex Court in the case of Registrar General, High Court of Judicature of Madras Vs. R. Perachi and others [(2011) 12 SCC 137] wherein also findings recorded by the Apex Court with respect to the right of promotion are based on different circumstances which are not available in the present case. Again reliance on such a case is misconceived. Similarly, learned counsel for the respondents-Companies has placed his reliance heavily on a decision rendered by this Court in Writ Petition No.7341/2007 (Ajit Kumar Singh Vs. State of Madhya Pradesh and others, decided on 12.9.2012) and Writ Petition No.15515/2006 (Y.P. Rai Vs. M.P. State Electricity Board and others, decided on 20.8.2013). In the considered opinion of this Court, again the facts and circumstances in the aforesaid cases were totally different than those available in the present case and, therefore, analogy of the law laid down by this Court would not be attracted at all in the present controversy. Here is a complete statutory bar in making changes in service 27 conditions of erstwhile employees and officers of the Board on their absorption in the new Companies, on account of transfer.
18 : In view of the aforesaid, the writ petitions are allowed. It is declared that the new adopted M.P. Public Service Promotion Rules, 2002, as done by the impugned order dated 29.5.2012 would not be applicable to the employees and officers of the erstwhile Board and their cases for promotion would be considered in terms of the Promotion Rules as amended by the said Board. The consequential action of promotion taken by the respondents in respect of such officers on the basis of merit-cum-seniority criteria as prescribed under the 2002 Rules, without any amendment is hereby quashed. Let the fresh consideration of the cases of persons eligible to be considered for promotion on the next higher post be done in terms of the modified criteria adopted by the erstwhile Board and fresh list of officers found fit for promotion be issued within a period of three months from the date of passing of this order. Those who are working on the promotional post by virtue of subsequent order of promotion issued, would not be entitled to any seniority on the promotional post from the date of such promotion earlier granted and will get the seniority and benefit of promotion only from the date they are promoted in terms of the direction issued by this Court, if found fit.
19 : The writ petitions are allowed to the extent indicated herein above. There shall be no order as to costs.
(K.K.Trivedi) Judge A.Praj.
28HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR WRIT PETITION NO.9860/2012(S) Madhya Pradesh Vidyut Mandal Abhiyanta Sangh & others.
-Versus-
State of M.P. & others.
WRIT PETITION NO.11083/2012(S) Devendra Kumar Tiwari
-Versus-
State of M.P. & others.
WRIT PETITION NO.12298/2012(S) Arvind Kumar Upadhyay and others.
-Versus-
State of M.P. & others.
WRIT PETITION NO.12302/2012(S) J.P. Soni and others.
-Versus-
State of M.P. & others.
And.
WRIT PETITION NO.22145/2012(S) Deepak Kumar Shrivastava and others.
-Versus-
State of M.P. & others.
.
O R D E R
( .9.2013)
Post it for /9/2013
(K. K.Trivedi)
Judge
29