Shri A.P. Angadi, Executive ... vs Maharashtra State Electricity ...
2003 Latest Caselaw 506 Bom

JUDGMENT

R.M. Lodha, J.

1. The petitioner joined the service of respondent in the year 1961 as Overseer. After intermediate promotion he was promoted as Shift Engineer in the year 1971 and later on to the post of Assistant Power Station Superintendent on 13.2.78. The petitioner was granted regular promotion to the post of Deputy Superintendent on 13.6.80, that later on came to be redesignated as Executive Engineer (Generation).

2. By means of this writ petition, the petitioner challenges denial of higher pay scale benefits of Senior Executive Engineer (Generation) with effect from 13.6.86. The claim is based on General Order No. 74 issued by the respondent. The petitioner's case is that by General Order No. 74 issued on 30th April, 1974, it was provided that if an employee works on the same post for six years or as per the later amendment 10 years or more without getting any promotion for the reason that there is no promotion channel open or the promotional post is not available, such employee is entitled to the grant of the scale of promotional post without being actually promoted to the post.

3. The respondent - MSEB is contesting petitioner's claim and the nub of its defence is that under G.O. No. 74, the higher pay scale benefits of promotional post cannot be claimed by an employee as a matter of right but such employee must be found suitable for promotion to the promotional post. As regards petitioner, it is submitted by the respondent that his case was considered for granting benefit of G.O. No. 74 by the Selection Committee in the years 1991 and 1992 but he was not found suitable on the basis of the Criteria laid down by the Selection Committee. According to the respondent, the competent Selection Committee while considering the cases for grant of benefits of G.O. No. 74 adopted the criteria that such employee ought to have overall grading of "very good" for two years and "good" for three years. The Selection Committee found that petitioner failed to obtain requisite rating.

4. Before we deal with the matter further, we may observe that the matter came before us on 6th March, 2003 and on that date Mr. Chavan, learned counsel for respondent did not dispute that G.O. No. 74 has been made applicable to the employees higher than the Assistant Engineers. He also did not dispute that petitioner's claim for higher pay scale benefits for Senior Executive Engineer (Generation) was required to be considered as on 13.6.86. We, accordingly, on 6th March, 2003 passed the following order:-

"In the light of the order passed by this Court on 6.2.2003 and the observations made therein, Dr. Kulkarni, the learned senior counsel for the petitioner placed before us Office Order No. GAD/E-VII/STF/Gen/A/232/9203 Dated 27.2.1975 marked "X" for identification purposes to show that the G.O. 74 has been made applicable to the employees higher that Asstt. Engineers Mr. Chavan, learned counsel appearing for respondent, in the light of the above office order dated 27.2.1975 noted above, does not dispute this position. Thus, there is no dispute by the respondent that G.O. 74 has been made applicable to the employees higher than Asstt. Engineers and the controversy raised in the writ petition needs to be considered accordingly.

2. during the course of hearing, the learned counsel for the respondent did not dispute that petitioner's claim for higher pay scale benefits for Sr. Executive Engineer (Generation) was to be considered as on 13.6.1986. We asked the learned counsel for respondent to show us the material in the confidential rolls of the petitioner adverse to him upto 13.6.1986 on the basis of which the Selection Committee could have held the petitioner unfit for promotion, the learned counsel appearing for the respondent prayed for time. We accordingly direct the learned counsel for the respondent to file an additional affidavit-in-reply setting out therein the remarks in the confidential rolls of the petitioner of the last eight years preceding 13.6.1986 and if adverse, whether these were communicated to the petitioner and also to state on oath whether the said material was placed before the Selection Committee for consideration."

5. In pursuance of the aforesaid order, a further reply affidavit was filed by respondent on 26th March, 2003. In the said affidavit it is stated that due to some inadvertence on the part of the office of first respondent, confidential record of the petitioner has been destroyed and, therefore, confidential reports of the petitioner are not available. The relevant portion of the affidavit in this regard reads thus-

"However, it appears that in case of the Petitioner due to some inadvertence on the part of Office of the Respondent No. 1 the confidential reports of the Petitioner had been destroyed and therefore the confidential reports of the Petitioners are not available. As a result of this I am unable to put on record the material in the confidential report of the Petitioner prior to March 1986, which the Competent Selection Committee considered while rejecting the claim of Petitioner for higher pay scale under the G.O. 74."

6. In para 8 of the said affidavit, it is stated that though the confidential reports of the petitioner are not available with the office, the proceedings and minutes of the meetings of the Competent Selection Committee dated 9th August, 1991 and 13th November, 1992 when the petitioner's case was considered for grant of benefit of G.O. 74, are available. Similarly, the proceedings of the meeting of minutes of the meeting of the Competent Selection Committee held on 30th October, 1991 wherein the petitioner's case for regular promotion to the post of Senior Executive Engineer (Generation Cadre) was considered, are also available.

7. It is not in dispute before us that though as per G.O. No. 74, the petitioner's case for higher pay scale benefits of the post of Senior Executive Engineer (Generation) was to be considered as on 13.6.86, the Selection Committee considered petitioner's case only on 9th August, 1991 and 13th November, 1992 and considered the petitioner's service record of the five years immediately preceding that period. The petitioner's case for higher pay scale benefits of Senior Executive Engineer (Generation) as on 13.6.86 on the basis of the material immediately preceding that period was never examined by the Selection Committee. Non-consideration of petitioner's case for benefits of higher pay scale of Senior Executive Engineer (Generation) as on 13.6.86 was, thus, not justified as the Selection Committee considered petitioner's case only on 9th August, 1991 and 13th November, 1992 and took into consideration the material immediately preceding five years which was not relevant. As a matter of fact original service record of the relevant period i.e., five years preceding 13.6.1986 was not shown to us and could not have been shown as it is admitted by the respondent that the entire service record of the petitioner has been destroyed. There is absolutely nothing on record which could disentitle the petitioner from the benefits of G.O. No. 74. When the matter came before us on 27th March, 2003, we passed the following order:-

"By our order dated 6th March, 2003 we directed the learned counsel for the respondent to file an additional affidavit in reply setting out therein the remarks in the confidential rolls of the petitioner of the last eight years preceding 13.6.86 and if adverse, whether these were communicated to the petitioner and also to state on oath whether the said material was placed before the Selection Committee for consideration.

2. Though, in response to the aforesaid order, further reply affidavit has been filed by respondent but it is admitted in the said affidavit that due to some inadvertence on the part of the office of the first respondent, the confidential reports of the petitioner are not available. It, thus, appears prima facie that there is no material which may justify that petitioner was not suitable for higher pay scale benefits for Senior Executive Engineer (Generation) with effect from 13.6.86. Since the first respondent is a public body, it is expected of it to redress the grievance of the petitioner on its own, particularly, in the facts and circumstances of the present case where there is no material justifying denial of higher pay scale benefits for Senior Executive Engineer (Generation) to the petitioner effective from 13.6.86. We grant one opportunity to the first respondent board to redress petitioner's grievance on its own, failing which we observe that this court shall consider the grievance of the petitioner on merits and after hearing the petitioner and respondent, appropriate order shall be passed. We, however, clarify that if action of respondent is found unjustified and any order of interest or cost may have to be borne by the authorities/officers personally due to whose action the petitioner was denied benefit of higher pay scale benefits for Senior Executive Engineer (Generation) and which compelled the petitioner to file this petition before this court.

3. S.O. to 19.4.2003.

Ordinary copy of this order duly authenticated by Court Associate may be supplied to the learned counsel for the first respondent on payment of usual copying charges."

8. Pursuant thereto, further affidavit has been filed by the respondent on 17th April, 2003 and it is reiterated that competent Selection Committee considered petitioner's case for grant of benefit of G.O. No. 74 on 9th August, 1991 and 13th November, 1992 and as per criteria laid down by them, the petitioner was not found fit. It is also stated that the petitioner's case was reconsidered in the year 1998 by the competent authority for grant of benefits of G.O. No. 74 for the higher pay scale of Senior Executive Engineer (Generation) but petitioner was not found fit. Even now respondent submits that petitioner's case was considered but he was not found fit for promotion to the post of Senior Executive Engineer (Generation) on 13.6.1986 and, therefore, not entitled to higher scale. We are afraid, for want of availability of original record, the respondent's case can hardly be accepted that petitioner was not found otherwise fit for promotion on the basis of overall performance. The petitioner has categorically stated that at no point of time, he was communicated with the adverse remarks. Rather, petitioner's case is that, petitioner was initially promoted on 13.6.1980 he promoted as Deputy Superintendent on regular basis. His post was then redesignated to Executive Engineer (Generation). The said facts are not denied. Nothing adverse having been shown to us, we are of the view that he became entitled on 13.6.86 for the consideration of benefits of higher pay scale of Senior Executive Engineer (Generation) under G.O. No. 74. As noted above even the learned counsel for respondent admitted before us that petitioner's claim for higher pay scale benefits for Senior Executive Engineer (Generation) was to be considered as on 13.6.1986. He received appreciation letters from time to time. On 6.4.87, the petitioner received appreciation letter from the Chairman of the Board and on 9.6.87, he received appreciation letter from Chief Engineer of the Board. Even the rating list shown by the learned counsel for the respondent shows that for the year 1979-80, he was awarded "4" while for the years 1980-81, 1981-82, 1982-83, 1983-84 and 1984-85, the petitioner was awarded "3". According to assessment, marking "4" is rated as "Very Good" and "3" is rated as "Good". Thus, consistently, prior to 1986, the petitioner has got the rating "Good". The contention of the respondent that for grant of benefit of G.O. No. 74, the criteria fixed was that the concerned employee's rating must be 'very good' for two years and 'good' for three years does not seem to be in consonance with the G.O. No. 74 and the rules framed thereunder which interalia provides that such employee should be otherwise fit for promotion on the basis of overall performance. The Division Bench of this court in Appeal No. 892 of 1991, Maharashtra State Electricity Board v. Dinkar Sadashiv Sane, decided on March 29, 1993 while dealing with G.O. 74 held thus-

"5. A plain reading of the General Order makes it clear that the Board was desirous of extending special benefit to such employees who remained in the given post for 10 years or more and was denied advantage of promotion to a higher post for no fault of theirs. The denial of promotion is either because of want of clear vacancies or the cadre did not provide for any channel of promotion. In either case the employee could not be promoted for no fault of his and the Board felt that even if the promotion to a higher post is not possible, the employee can be given benefit of higher employee can be given benefit of higher grade. (With this object of the rules it is clear that when an employee, as soon as he completes service of 10 years in a particular post, could not be promoted because of want of clear vacancy or non-availability of promotional channel then benefit of higher grade should be made available forthwith but on condition that such employee had not disentitled himself from securing promotion for any other reason. In case the employee is guilty of any charge or the confidential record of such employee indicates that he is misfit for promotion or the employee has not passed the necessary examination then in such case the employee cannot demand higher grade as a matter of right. The Board cannot deny advantage of higher grade in case the employee is not disentitled by any reason from being considered for promotion to the higher posts. It is not open for the Appellant to consider the comparative merits of the employees who are entitled to higher grades and then determine to whom the higher grade should be awarded. The higher grade should be available to each and every employee who falls within the scope of the General Order. It is possible that there may be more than one employee who is entitled to the higher grade because of completion of 10 years or more in a given post and not being promoted to the higher post because of want of clear vacancies or lack of promotional avenues. In such cases each and every employee is entitled to higher grade. It is not open for the Board to consider at the time of entitlement to higher grades as to whether such employee will be promoted at the time when the actual vacancy arises. It is possible that there may be nothing adverse against an employee at the time of completion of his 10 years of service in a given post but the service record may be adverse at the time when occasion comes to grant promotion and at the time it is open for the Board to consider whether an employee who has been provided with higher grade is also entitled to actual promotion. In our judgment, looking to the object of the General Order and the impact of the rules, it is clear that an employee is entitled to the higher grade provided such employee is not found unfit for promotion at the time of completion of 10 years of his service in a given post. An employee is unfit for promotion provided he is not holding the necessary qualification or disciplinary proceedings are pending against him or action has been taken in pursuance of the disciplinary proceedings disentitling him for being considered for promotion. We refer only to illustrative cases and the Board shall not deny advantage of the circular to the employee unless there is positive material to hold that the employee has disentitled himself from consideration for promotion. In our judgment, this is a proper approach to apply the advantage of the General order. The observations made by the Trial Judge in respect of the ambit of the circular are set aside and the Board must give effect to the circular in accordance with the observations made in this Judgment."

9. Considering G.O. No. 7, the Division Bench of this court observed that the respondent-MSEB shall not deny advantage of the circular to the employee unless there is positive material to hold that the employee has disentitled himself from consideration of promotion. The petitioner here holds necessary qualification for promotion to the post of Senior Executive Engineer (Generation). No disciplinary proceeding was pending against him on the relevant date. The petitioner did not suffer punishment in any disciplinary proceedings. He was not communicated any adverse remarks in confidential record. His rating by the Selection Committee for the relevant period i.e. five years immediately preceding 13.6.1986 shows at least 'Good'. We are, thus, satisfied that petitioner has been wrongly denied the benefit of higher any scale of Senior Executive Engineer (Generation) with effect from 13.6.86.

10. Consequently, we quash and set aside the orders dated 30th September, 1991 and 3rd February, 1993 and direct respondent to grant petitioner benefit of higher pay scale of Senior Executive Engineer (Generation) under G.O. 74 until he superannuated on 31.3.93. The payment of benefit as aforedirected should be given to the petitioner within four weeks from today.

11. Since the petitioner has been unjustifiably denied higher pay scale benefits of Senior Executive Engineer (Generation) at the fag end of his career and he was compelled to file this writ petition, we direct the respondent to pay cost of Rs. 5000/- to the petitioner.

Certified copy expedited.