Meghalaya High Court
Shri. Debabrata Bhattacharjee vs The Meghalaya State Electricity Board ... on 6 June, 2014
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
WP(C) No.42/2013
Shri. Debabrata Bhattacharjee,
Executive Engineer (Retd),
House No.9, Mandakini Path,
Kalyanpur, Guwahati. :::: Petitioner
-Vs-
1. The Meghalaya State Electricity Board,
represented by its Chairman,
Lumjingshai, Short Round Road,
Shillong-793001.
2. The Member Secretary,
Meghalaya State Electricity Board,
Lumjingshai, Short Round Road,
Shillong-793001.
3. The Principal Chief Engineer (Civil),
Meghalaya State Electricity Board,
Lumjingshai, Short Round Road,
Shillong-793001.
4. The Chief Accounts Officer,
Meghalaya State Electricity Board,
Lumjingshai, Short Round Road,
Shillong-793001. :::: Respondents.
BEFORE
THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH
For the Petitioner : Mr. S Sen, Adv
For the Respondents : Mr. KS Kynjing, Sr. Adv
Mr. S.M. Sunar, Adv
Date of hearing : 06.06.2014
Date of Judgment & Order : 06.06.2014
JUDGMENT AND ORDER(ORAL)
By this writ petition, the petitioner is assailing the order of the
Meghalaya State Electricity Board (for short 'Me.SEB') dated 24.06.2009 that
"the petitioner was not promoted to the post of Executive Engineer till his
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retirement from Board's service on 31.08.2005, therefore, he will not be
entitled to any financial benefit, while the other 4(four) Assistant Executive
Engineers will be entitled to financial benefits w.e.f. the respective date(s)
they joined the post of Executive Engineer on promotion" and also for a
direction to the respondents to release all consequential service benefits to
the petitioner with retrospective effect from 30.05.2002 i.e. the date of his
promotion in the rank of Executive Engineer, which had been granted to the
other four similarly situated Executive Engineers.
2. Heard Mr. S Sen, learned counsel for the petitioner and Mr. KS
Kynjing, learned senior counsel assisted by Mr. SM Surong, learned counsel
for the respondents-Board.
3. The concise fact leading to the filing of the present writ petition
is noted for decision of the issue which calls for consideration in the present
writ petition.
4. The petitioner is a diploma holder. The Assam State Electricity
Board was independently functioning before Meghalaya attained Statehood
and only in the year 1975, the State Electricity Board became Meghalaya
State Electricity Board (Me.SEB) and the petitioner became employee of the
Me.SEB from 1995. The petitioner was promoted to the rank of Assistant
Executive Engineer on 31.12.1990 along with some degree holders
(Assistant Executive Engineer). On 18.06.1997, a provisional gradation list of
Assistant Executive Engineers wherein, the petitioner and 4(four) others
diploma holders were placed below those degree holders Assistant
Executive Engineers promoted in the year 1990, was published. The
petitioner also filed several representations against the gradation list of the
Assistant Executive Engineers published on 18.06.1997. While the said
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representations of the petitioner against the said gradation list of the
Assistant Executive Engineers published on 18.06.1997 were pending, the
Departmental Promotion Committee (DPC) was held on 30.05.2002 on the
basis of the said gradation list wherein, the petitioner and 4 (four) others
diploma holders were en bloc below the degree holders Assistant Executive
Engineers and as a result, the petitioner and 4(four) others diploma holders
Assistant Executive Engineers were not promoted to the post of Executive
Engineers.
5. The petitioner and 4(four) others diploma holders Assistant
Executive Engineers filed a joint writ petition being WP(C)No.261(SH)2002
challenging the said order for promoting the degree holders Assistant
Executive Engineers to the post of Executive Engineer. The said writ petition
i.e. WP(C)No.216(SH)2002 was finally allowed vide judgment and order
dated 28.04.2004 wherein, the respondents had been directed to take
appropriate steps to consider the cases of the petitioners (petitioners of
WP(C)No.261(SH)2002) for promotion after fixation of their positions at
appropriate positions to the rank of Executive Engineer from the date on
which their juniors were promoted and also further directed that the
respondent authorities shall re-fix the seniority of the petitioners and the
private respondents i.e. Assistant Executive Engineers (degree holders) in
the cadres of Assistant Executive Engineer in terms of Clause 6(a) of the
regulations and after passing such order, their cases shall be considered for
promotion to the rank of Executive Engineer by holding appropriate DPC
under Clause 39 of the Meghalaya State Electricity Board Employees
(Recruitment and Condition of Service) Regulations, 1996. In the said
judgment and order of the Gauhati High Court dated 28.04.2008, it is made
clear that if the petitioners are found eligible to be promoted to the rank of
Executive Engineer, their such promotions would be related back to the date
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on which their juniors were promoted granting only notional seniority and for
the purpose of financial benefits, they would entitle to such financial benefits
from the date of joining to the promoted post.
6. It is stated that in pursuance of the directions of the Gauhati
High Court in the judgment and order dated 28.04.2008 passed in
WP(C)No.261(SH)2002, the seniority list of the Assistant Executive
Engineers were re-fixed on 19.06.2008. In that seniority list, the petitioner
and 4(four) others (diploma holders) Assistant Executive Engineers were
placed above the Assistant Executive Engineers (degree holders), who were
appointed in the same year. After fixation of the seniority list duly constituted
DPC was held on 25.06.2008 to consider the case of the petitioner and
4(four) others for promotion to the post of Executive Engineer; and the
petitioner and 4(four) others were recommended for promotion to the post of
Executive Engineers (Electrical). By an order dated 01.07.2008 of the
Me.SEB, it had been clarified that petitioner and 4(four) others Assistant
Executive Engineers (diploma holders) were promoted against the upgraded
post of Executive Engineer(Elect) with retrospective effect from 30.05.2002
for the purpose of notional seniority only. The said order dated 01.07.2008 is
available at Annexure-D to the writ petition and it reads as follows:-
"MEGHALAYA STATE ELECTRICITY BOARD
Lumjingshai, Short Road, Shillong-793001
Phone No.2590196 (O) Ext-150
.......................................................................
No.BDS/PER 1/78/2008/84 1st July, 2008.
"Office Order"
Pursuant to the Hon'ble GHC (Shillong Bench) judgment dt.28.04.2008 passed in WP(C)No.261(SH)2002, and on the recommendation of the Departmental Promotion Committee MeSEB dt.25th June, 2008, the following promoted AEE's whose seniority have been provisionally re-fixed vide O/O No.BDS/PER 1/78/2008/18 dt. The 19th June/2008 are Page 4 of 8 promoted to the rank of EE (Elect) against the upgraded post of EE (Elect) notified vide O/o No.BDS/PER/1/78/2008/64 dt.1st July, 2008 with retrospective effect from 30.05.2002 for the purpose of notional seniority only.
1. Shri. D Bhattacharjee (Retired)
2. Shri. A Ghose
3. Shri. J Das
4. P Sinha and
5. B.S.R. Chyne However, for the purpose of financial benefit they will be entitled to such benefit from the date of joining the promoted post of EE (EL) as duly recommended by the DPC held on 4.9.2003 and 23.5.2005, vide O/O BDS/PER/promotion/172/98/Pt/8(G)(H) and (1) dt.25.9.2003 and O/BDS/PER/Promotion 172/98/Pt/99 (E) dt.23.5.2005 respectively.
Sd/- illegible Member Secretary 1st July, 2008"
7. The petitioner had already retired from service on superannuation on 31.08.2005. However, by the said order of the Me.SEB dated 01.07.2008, the petitioner was promoted to the post of Executive Engineer (Elect) with retrospective effect from 30.05.2002. But, by the said order dated 01.07.2008, no financial benefit was granted to the petitioner, even if he had been promoted to the post of Executive Engineer with retrospective effect from 30.05.2002. Mr. KS Kynjing, learned senior counsel appearing the respondents-Board by referring to the judgment and order of the Gauhati High Court dated 28.04.2008 passed in WP(C)No.261(SH)2002 contended that the petitioner would not be entitled to any financial benefit inasmuch as, the Gauhati High Court clearly stated in the said judgment and order dated 28.04.2008, the promotions of the petitioner and 4(four) others to the post of Executive Engineer would be related back to the date on which Page 5 of 8 their juniors were promoted granting only notional seniority and for the purpose of financial benefits, they would entitle to such financial benefits from the date of joining to the promoted post. In the present case, as the petitioner had already retired on superannuation on 31.08.2005, the petitioner may not be able to join the promoted post even after the petitioner had been promoted to the post of Executive Engineer w.e.f. 30.05.2002.
8. In the present case, the question calls for consideration is what would be the benefit of promotion of the petitioner to the post of Executive Engineer w.e.f. 30.05.2002. The benefit available to the petitioner may be to the extent of getting higher amount of pension inasmuch as, the petitioner shall deem to have been retired on superannuation from service in the post of Executive Engineer on 31.08.2005 inasmuch as, the petitioner was promoted to the post of Executive Engineer from 30.05.2002. As the said judgment and order of the Gauhati High Court dated 28.04.2008 had attained finality, this Court is not considering the financial benefit in the way of arrear pay in the scale of the Executive Engineer to the petitioner. In the given case, the petitioner shall deem to have been promoted to the post of Executive Engineer w.e.f. 30.05.2002. No doubt, the amount of pension is to be calculated under Rule 39 of the Meghalaya Civil Services (Pension) Rules, which is applicable to the employees of Me.SEB. The expression "emoluments" means pay as defined in Rule 9(21) of the Fundamental Rules (F.R.) under Rule 28 of the Meghalaya Civil Services (Pension) Rules. Under Rule 9(21)(a) of the F.R. "Pay" means the amount drawn monthly by a Govt. servant. Therefore, the expression "emoluments" mentioned in Rule 28 of the Meghalaya Civil Services (Pension) Rules means the pay of the Govt. servant. In the present case, because of legal friction of the judgment and order of the Gauhati High Court dated 28.04.2008 passed in WP(C)No.261(SH)2002 wherein, it is clearly held that the promotion of the Page 6 of 8 petitioner to the post of Executive Engineer would be from the date of promotion of his juniors and consequence order of the Me.SEB dated 01.07.2008, the petitioner shall deem to have been promoted to the post of Executive Engineer w.e.f. 30.05.2002. Over and above, the said order of the Me.SEB dated 01.07.2008 clearly stated that the petitioner had been promoted to the post of Executive Engineer with retrospective effect from 30.05.2002. Therefore, because of legal friction of the judgment and order dated 28.04.2008 of the Gauhati High Court and also the said order of the Me.SEB dated 01.07.2008, the pay of the petitioner at the time of his retirement on superannuation on 31.08.2005 would be the pay of the promoted post of Executive Engineer.
9. In the above factual backdrop, this writ petition is disposed of by directing the respondents to calculate the amount of pension of the petitioner by taking the emoluments of the petitioner under Rule 28 of the Meghalaya Civil Services (Pension) Rules as his pay as Executive Engineer at the time of retirement on superannuation on 31.08.2005. This Court in the peculiar circumstances also made clear that the average emoluments mentioned in Rule 29 of the Meghalaya Civil Services (Pension) Rules would also be the same as an emoluments defined in Rule 28 of the Meghalaya Civil Services (Pension) Rules because of the legal friction of the judgment and order of the Gauhati High Court dated 28.04.2008 and also the said order of the Me.SEB dated 01.07.2008. So as to enable the respondents to complete the exercise as per directions of this Court, it is left to the respondents, if necessary, may resort to Rule 92 of the Meghalaya Civil Services (Pension) Rules. However, it is made clear that the whole exercise should be completed within a period of 6(six) months from the date of receipt of a certified copy of this judgment and order.
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10. Writ petition is allowed only to the extent indicated above.
JUDGE Lam Page 8 of 8