Maharashtra Krishi Udyog Vikas ... vs Maharashtra Agro Industries ...
2001 Latest Caselaw 8 Bom

ORDER

A. M. Khanwilkar, J.

Rule. Returnable forthwith by consent.

Heard both sides.

1. This petition has been filed by the Officers' Association challenging the action of the respondent-Corporation vide order dated 19.5.2000 cancelling the orders of promotion and upgradation issued in favour of the concerned officers and for further direction that the concerned officers should be allowed to work on their respective posts to which they were promoted/ upgraded.

2. Briefly stated the respondent-Corporation is a Government of Maharashtra Undertaking engaged in the business of manufacturing, distribution and sale of fertilizers, agricultural equipments etc. It is the State within the meaning of Article 12 of the Constitution. The Petitioner is an Association registered under the Trade Unions Act, 1926. All the

officers employed in the respondent-Corporation are members of the petitioner-union. The present petition has been filed on behalf of 102 officers whose names are mentioned in Ex. A to the petition. The said officers have been working for many years in the middle management cadre and junior management cadre. In the circumstances, the petitioner-Association took up the matter with the appropriate authority representing that the officers be either promoted in the posts which were lying vacant and for upgradation of certain junior management cadre to middle management cadre so that the officers would be accommodated in the upgraded posts. The stand taken by the Association was that in the absence of promotional prospects the service was bound to degenerate, for stagnation was bound to mar the desire of the officers to serve efficiently. In response to the said representation, the respondent No. 2, who is in-charge of the management of the respondent-Corporation, eventually took decision to promote 15 officers and upgrade 87 posts of junior management cadre to middle management cadre. In the circumstances, 15 officers were promoted and 87 officers were upgraded, pursuant to the said decision taken in May, 1999. All the officers, either promoted or upgraded, were taken on probation for a period of one year from the date of joining the promotional/ upgraded posts. The said officers after joining the respective posts worked to the complete satisfaction of their superiors and none of them received any adverse remark. It is stated that all of a sudden, by the impugned order dated 19.5.2000, the orders of promotion/upgradation passed in favour of said 102 officers came to be cancelled. No prior notice or opportunity was given to any of these officers before passing the impugned order. It is in this background that the present writ petition has been filed for the aforesaid reliefs. The learned counsel for the petitioner has relied upon the decision of the Apex Court in the case of Raghunath Prasad Slngh v. Secretary, Home (Police) Department, Government of Bihar and Ors., to contend that reasonable promotional opportunity should be available for every wing of public service to generate efficiency in service and foster the appropriate attitude for achieving excellence in service. The petitioner also contends that once the decision to promote/upgrade was taken the same could not have been reversed without giving an opportunity to the officers who were directly affected by such a change. The petitioners have also placed on record that because of the promotion/upgradation there was increase in the salary and over all pay packet of the concerned officers on an average increased by around Rs. 500/- p.m. According to the petitioner the total financial implication of the said decision was only Rs. 6,50,000/- per annum approximately which was insignificant to the total turnover and the profit of the respondent-Corporation. The petitioners have also made a grievance that the respondent-Corporation has discriminated between the employees of the corporation. Inasmuch as the Corporation has granted benefit to one set of workmen of the staff union and has in fact entered into an agreement with the said union that all those workmen who have completed 8 years of service in one grade shall get the benefit of upgradation from 1.4.1990 and

the said workmen have been bestowed with the said benefit under the said agreement. On the other hand, the officers of the Corporation have not been extended such a benefit, but for the decision taken by the respondent No. 2 - Managing Director who promoted/upgraded in all 102 officers. Thus, the case of discrimination has been made out in the writ petition.

3. In response to the petition the respondents have filed reply affidavit of Tarachand Sahebram Tambolia. Deputy General Manager (Admn.). The principal stand taken in the said affidavit is that the promotion/upgradation decision was taken by the respondent No. 2 without obtaining prior approval of the Board of Directors and the Government. In other words, it was contended that the said decision was without authority of law and could not be made binding on the respondent-Corporation.

4. We are therefore considering the matter only in the context of the abovesaid stand taken by the respondents. The stand taken by the Respondents has been countered on behalf of the petitioner with reference to the relevant regulation. According to the petitioner there is no necessity of obtaining approval of the Government with regard to the promotion/ upgradation of the officers in question. It is contended that Regulation 7 of the Maharashtra Agro Industries Development Corporation Ltd. Employees Service Rules and Regulations provides for procedure for promotion. It is not in dispute that the required procedure was complied with before the respondent No. 2 issued order of promotion in favour of 15 officers. The Selection Committee was constituted which was headed by the Managing Director and services of each of the officer were found meritorious having proven ability for being promoted to higher post. The petitioner relies upon the Memorandum and Articles of Association viz. Article 77(5) to contend that since the basic pay of the officers was not more than Rs. 2,500/- p.m. the question of obtaining prior approval of the Government did not arise. Article 77(5) reads thus :

"77(5) To appoint and at their discretion, remove or suspend such Managers, Secretaries, Officers, Clerks, Agents and Servants for permanent, temporary or special services as it may from time to time, think fit and to determine its powers and duties and fix their salaries or emoluments and to require security in such instances and to such amount as it thinks fit; provided that no appointment, the basic pay of which is more than Rs. 2,500/- p.m. will be made without the prior approval of the Government."

5. We have no hesitation in accepting the contention that there was no necessity of obtaining approval of the State Government before granting promotion to 15 officers. Same principle would apply even with regard to the upgradation of 87 officers. In neither situation prior approval of the State Government would be necessary having regard to the express provision under Article 77(5) referred to above.

6. Coming to the next point raised on behalf of the respondents that approval of the Board has not been obtained by the Managing Director before issuing orders of promotion/upgradation, even this contention of the respondents deserves to be staled to be rejected. It is seen that the Board of Directors act through the Managing Director. This position would appear from the Regulation 2.11 which defines management means the Board of Directors acting through the Managing Director or other officers of the Corporation to whom necessary powers have been delegated. The respondents, besides stating on affidavit that prior approval of the Board has not been obtained, has not referred to any regulation which would mandate that each appointment by way of promotion/upgradation was required to be placed before the Board of Directors for approval. In our view the background in which the Managing Director took the decision in May, 1999 to promote and upgrade 102 officers is relevant. The purpose of such decision was to provide reasonable promotional opportunities to the officers who were stagnated in their posts for sufficiently long time. This was done only with a view to generate efficiency in the service and to foster appropriate attitude in the said officers for achieving excellence in service, for in public service reasonable promotional opportunity would be inherent. We cannot countenance that a person remains in the same post for unreasonably long time without having any promotional opportunity. It is not in dispute that 15 promotions have been granted only against such posts which were lying vacant. It is not the respondent's case that the persons who have been promoted were not qualified or competent for promotion. On the other hand, each of them has been promoted after following necessary procedure and being recommended by the Selection Committee. In the circumstances, there can be no valid reason to take exception to either the promotion or upgradation of the officers in question. There was no reason for the Board of Directors to not to approve such promotion or upgradation in the wake of the aforesaid undisputed position, albeit ex-post facto. At any rate the petitioners would be Justified in contending that the Corporation has adopted discriminatory attitude between the workmen of staff union and the officers of the petitioner-union. This allegation has gone uncontroverted. Even for this reason we are inclined to accept the petitioner's plea that the petitioners would deserve similar benefit which has been made available to the workmen of the staff union that those who completed 8 years of service in one grade shall get benefit of upgradation. There can be no doubt that the Corporation, which is expected to be a model employer, should treat all its employees and offer service conditions which would be on parity. In the circumstances, the officers of the petitioner-union are entitled for the similar benefit of upgradation on the same principle on which it is extended to the workmen of the staff union. In our view the principle underlying the agreement between the staff union and the Corporation with regard to upgradation would apply proprio vigore even with regard to the officers of the petitioner Association. We are persuaded to take this view particularly in the light of the observations made by the Apex Court in Raghunath Prasad Singh's case (supra) that reasonable promotional opportunities should be available in every wing of public service so as to generate efficiency in services and foster the appropriate attitude to grow for achieving excellence in service. There is no dispute that the financial implication by virtue of promotion/upgradation of the officers in question is only to the extent of Rs. 6,50,000/- per annum approximately, which is wholly insignificant when compared to the total turnover and profit of the respondent-Corporation.

7. We are also of the view that taking into consideration the fact that 102 officers have already joined their respective posts of promotion/ upgradation and are working on the said posts since May, 1999 to the utmost satisfaction of their superiors without any adverse remarks, there

fore, it would be wholly inappropriate to sustain the impugned order issued by the Respondents, that too when it has been issued without affording any opportunity of being heard in the matter to the officers who were directly affected by the said decision. Taking any view of the matter we find that the impugned action of the respondents of can celling the promotion/upgradation order is wholly illegal and unjustified.

8. In the circumstances the impugned order dated 19.5.2000 is quashed and set aside and the respondents are directed to allow the officers of the petitioner-Association to work on their respective posts to which they were promoted/upgraded.

9. In the result, rule is made absolute in above terms. No order as to costs.