Madhya Pradesh High Court
Mukesh Chandra Gupta vs M.P.State Electricity Board on 2 May, 2019
1
HIGH COURT OF MADHYA PRADESH
Writ Appeal No.47/2014
(Mukesh Chandra Gupta and Others Vs. M.P. State Electricity Board and Others)
Gwalior, dated : 02.05.2019
Shri D.P. Singh, learned counsel for the appellants.
Shri Vivek Jain, learned counsel for the
respondent/Electricity Board.
The issue raised in the present appeal as to whether integration/merger/amalgamation, it is permissible to have complete denial of promotion forever in the integrated service, has been answered by the Hon'ble Supreme Court in the case of Panchraj Tiwari Vs. M.P. State Electricity Board and others in Civil Appeal No.4371of 2008 decided on 4 th March, 2014, wherein it is held:
"12. It is the case of the appellant that since the Board of Governors had already been dissolved and since it had been decided to absorb the employees of the society in the Board, there was no point in following the process of selection in terms of the regulations of the society. Thus, the rejection was challenged before the High Court.
18. Instant is a case where there is complete denial of promotion forever which cannot be comprehended under the constitutional scheme of Articles 14 and 16 of the Constitution of India. In this context, we shall refer to a beautiful discussion on this aspect in S. S. Bola case (supra) at paragraph 153. The relevant portion reads as follows:
"153. xxx xxx xxx xxx AB. A distinction between right to be considered for promotion and an interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruitment/selection. Seniority is governed by the rules 2 HIGH COURT OF MADHYA PRADESH Writ Appeal No.47/2014 (Mukesh Chandra Gupta and Others Vs. M.P. State Electricity Board and Others) existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an Act merely affecting the chances of promotion would not be regarded as varying the conditions of service. The chances of promotion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a constitutional court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the Court is the result of the declaration of law but not the operation of the rules per se." (Emphasis supplied)
19. In the above circumstances, we set aside the judgment in appeal. The absorbed employees of the Rural Electricity Cooperative Societies, having due regard to their date of appointment/promotion in each category in the respective societies, shall be placed with effect from the date of absorption, viz., 15.03.2002 as juniors to the junior-most employee of the Electricity Board in the respective category. Thereafter, they shall be considered for further promotions as per the rules/regulations of the MPSEB. All other principles/conditions of absorption shall remain as such. However, it is made clear that on such promotions, in the exigencies of service, the employee concerned would also be liable to be transferred out of the circle, if so required.
20. The appellant accordingly shall be entitled to retrospective promotions at par with and with effect from the dates on which the junior-most graduate engineer in the parent service on the date of absorption obtained such promotions. However, we make it clear that benefits till date need to be worked out only notionally."
Further more, it is observed from the impugned order passed 3 HIGH COURT OF MADHYA PRADESH Writ Appeal No.47/2014 (Mukesh Chandra Gupta and Others Vs. M.P. State Electricity Board and Others) by the learned Single Judge that the same is decided on the anvil of decision by a Division Bench in a Writ Petition in the case of M.P. Electricity Board Vs. Brajendra Singh Kushwah and Others as reported in (2012) MPHT 183 (DB).
The judgment in Brajendra Singh Kushwah (supra) has been set aside by the Hon'ble Supreme Court in SLP(C)28516/2013 on 27.04.2015 wherein on the basis of the statement made by respondent-Board, the SLP has been disposed of in following terms:
"It is submitted that the Answering Respondent in compliance of the Judgment of this Hon'ble Court passed in judgment dated 4th March, 2014, in Civil Appeal No.4371 of 2008 vide order dated 24.12.2014 and clarification order dated 18.04.2014 has decided to grant the benefits to the petitioners at par with the employees of the Answering Respondents in the matter of pay scale, dearnest allowance and other fringe benefits w.e.f. 4th March 2014 after calculating the benefits till 3rd March, 2014 notionally".
In view whereof since the controversy raised in present appeal is set at rest by the decision of the Supreme Court in the case of Panchraj Tiwari and Brajendra Singh Kushwah (supra), the impugned order passed in Writ Petition No.304/15 4 HIGH COURT OF MADHYA PRADESH Writ Appeal No.47/2014 (Mukesh Chandra Gupta and Others Vs. M.P. State Electricity Board and Others) is set aside. The appeal is disposed of in the terms of the judgments passed in the case of Panchraj Tiwari and Brajendra Singh Kushwah (supra).
Let the dues of the appellant be settled within a period of three months from the date of communication of the order. There shall be no cost.
(Sanjay Yadav) (Vivek Agarwal) mani Judge Judge SUBASRI MANI 2019.05.02 18:13:14 -07'00'