Shri Jaysing Rangarao Raut vs Maharashtra State Electricity ...
2004 Latest Caselaw 728 Bom

JUDGMENT

S.U. Kamdar, J.

1. By the present petition, the petition is seeking quashing of an order dated 12-12-1991 by which it has been inter alia held that the petitioner shall not be entitled to pay fixation benefits and he shall also not be entitled to arrears for the period of deemed date promotion since he has the period of deemed date promotion since he has not performed duties in the said post. By a further writ of mandamus, the petitioner is seeking direction that the petitioner should be paid back wages consequent of his deemed date promotion to the cadres of Assistant Accountant with effect from 1-10-1969. Some of the material facts, briefly stated, are as under:-

2. On 17-10-1958 the petitioner joined service as Lower Division Clerk with the 1st respondent. Sometime in or about 1967, the petitioner was prosecuted both under the Criminal Procedure Code and also was subjected to departmental enquiry on the charge that the petitioner has participated in an illegal strike. On 2.12.1968, pursuant to the department enquiry, services of the petitioner came to be terminated. Essentially the services were terminated on the ground that the petitioner was convicted and sentenced and a fine of Rs. 51/- was imposed upon the petitioner. The said departmental enquiry became a subject matter of an industrial dispute and proceedings were initiated in the Industrial Tribunal. The Industrial Tribunal by an order dated 26.9.1980 set aside the order of termination and directed reinstatement of the petitioner with continuity of service and consequential benefits. On 6.10.1980, the petitioner resumed his duty in the 1st respondent company as Upper Division Clerk. Sometime in February 1981, the petitioner passed an examination of Higher Accounts held by the respondent No. 1 for the promotion to the post of Divisional Accountant. Thus, in 1984, the petitioner became entitled to the promotion to the post of Divisional Accountant. According to the petitioner, the petitioner became entitled to the said promotion of Divisional Accountant as per the date of his next junior in the Upper Division Clerk. On 27.2.1989, the Labour court by its judgment granted the petitioner's claim for medical reimbursement, bonus and leave encashment. On 12-12-1991 the petitioner was given a deemed date of promotion to the cadre of Assistant Accountant with effect from 1.10.1969 with pay fixation. However, in the said order it was clarified that the petitioner will not be entitled to any arrears of back wages on the basis of such deemed date promotion. Thereafter the petitioner made various representations for obtaining the back wages and ultimately on the failure of respondent No. 1 to grant such benefits has filed the present writ petition in this Court inter alia challenging the said order dated 12.12.1991 in so far as it relates to the ground of benefits of the arrears of back wages.

3. The learned counsel for the petitioner has inter alia contended that the since a deemed date is granted, he is entitled to all the benefits as if he was promoted on the said date which shall include the benefit of back wages and arrears thereof in accordance with the pay scale of such higher cadre and/or higher post. In support of the aforesaid contention, the petitioner has relied upon a Division Bench judgment of this Court dated 17th March 1988 in Writ Petition No. 1745 of 1985, H.S. Chinchole and Ors. v. The Superintending Engineer, M.S.E.B. Sangli Circle and ors., decided by Pendse and Sugla, JJ. and Particularly he has relied upon paragraph 5 of the judgment which reads as under:-

"5. Mr. Ghaisas then submitted that even if the deemed dates of promotion are considered to be accurate, still the respondents Nos. 1 to 3 are declining to pay the difference in salary for Upper Division Clerks and of the Lower Division Clerks for the period commencing from the deemed date of promotion to the date of actual promotion. In our judgment, the grievance of the petitioner on this count is just and deserves acceptance. The normal rule is when an employee is denied promotion to the higher cadre without any sound reason, then such employee would be entitled to a difference is salary when actually such employee is promoted to the higher post. The employee cannot be deprived of the difference in salary for no fault of his. Mr. Adik submitted that the Maharashtra State Electricity Board has famed regulation in exercise of powers conferred by Section 79(c) of the Electricity (Supply) Act, 1948 and a note added to regulation 23 on February 27, 1973, inter-alia, provides that even when an employee is wrongfully not promoted to the higher post, he would not be entitled to the difference in salary from the deemed date of promotion to the date of actual promotion. We have perused the note to Regulation 23 and we are unable to appreciate how a note to a regulation can be relied upon to deprive the petitioners of their dues. A note cannot form part of the Regulation but is only an administrative direction and such note, in our judgment, cannot deprive the petitioners of their just dues. In our judgment, the petitioners are entitled to payment of arrears of pay for the period commencing from their deemed dates of promotion till the date of actual promotion and respondents Nos. 1 to 3 shall pay the dues within six weeks from today."

4. On the basis of the ratio of the Division Bench Judgment it has bene contended that once the deemed date of promotion is fixed, he is, as a matter of course entitled to get the benefit of arrears of pay for the period commencing from such deemed date of promotion till the date of actual promotion irrespective of the fact that he has functioned in said upper clerk division cadre or not. The learned counsel appearing for the respondent as against the same has relied upon the Employees' Service Regulations of the 1st respondent Board and particularly Rule 23 of the said regulations. Said Rule 23 reads as under:-

"23. For the purpose of fixation of pay, promotion of an employee from a lower to a higher post takes effect from the date on which the employee actually takes over charge of the higher post.

Note: Where solely due to administrative reasons like delay in relief or wrongful supersession the promotion/appointment of a senior employee comes into effect after his junior actually takes over charge of the higher post, he (i.e. senior employee) should, on the orders of the Competent Authority for the purposes of fixation of pay, be deemed to have been promoted from the date on which the junior has taken over charge of the higher post and his (senior employee's) pay fixed accordingly with next date of increment failing on the date on which he would have been actually promoted and taken over charge on the deemed date of promotion/appointment subject to the condition that no arrears shall be payable for the period from the deemed date of promotion to the date on which the senior employee actually takes over the charges of the higher post with the proviso not to reopen the cases prior to 1-1-1965 and also not to pay arrears for the period the senior members did not work in the promoted post."

5. The learned counsel for the respondent has also relied upon the judgment of the Supreme Court in the case of State of Haryana and Ors. etc. v. O.P. Gupta, etc. in which the Hon'ble Supreme Court of India has, inter alia, held that an employee cannot demand the arrears of salary on the basis of the deemed date because he has in fact not worked on those post in respect of which he is claiming arrears. Paragraphs 5 and 8 of the said judgment read as under:-

"5. Having regard to the above contentions, the question arises: whether the respondents are entitled to the arrears of salary? It is seen that their entitlement to work arises only when they are promoted in accordance with the Rules. Preparation of the seniority list under Rule 9 is a condition precedent for consideration and then to pass an order of promotion and posting to follow. Until that exercise is done, the respondents cannot be posted in the promotional posts. Therefore, their contention that though they were willing to work, they were not given the work after posting them in promotional posts had no legal foundation. The rival parties had agitated their right to seniority. Ultimately, this Court had directed the appellant to prepare the seniority list strictly in accordance with Rule 9 untrammelled by any other inconsistent observation of the Court or the instructions issued in contravention thereof. Since the order had become final in 1990, when the appeal had been disposed of by the Court by the above direction, the State in compliance thereof prepared the seniority list in accordance with the rules and those directions and promotions were given to all eligible persons and posting were made accordingly on December 1, 1992. In the interregnum some had retired. As stated earlier, though the deemed date has been given as 1-1-1983, the respondents cannot legitimately claim to have worked in those posts for claiming arrears and, as a fact, they did not work even on ad hoc basis.

8. In these appeals unless the seniority list is prepared and finalised and promotions are made in accordance with the rules on the basis of the above seniority list, the question of entitlement to work in the promotional posts does not arise. Consequently, the payment of arrears of salary does not arise since, admittedly the respondents had not worked during that period. The High Court was, therefore, wholly illegal in directing payment of arrears of salary. The order of the High Court accordingly is quashed."

6. We have considered the submissions of the parties. We are of the view that in the light of the judgment of the Hon'ble Supreme Court of India in the case of State of Haryana and Ors., etc. v. O.P. Gupta, etc. (supra) in which the Supreme Court has in terms held that a person is not entitled to arrears of pay and salary on the basis of the deemed date which has been granted to the party unless he has actually functioned or worked on the said higher post. In the light of the ratio of the judgment of the Hon'ble Supreme Court of India, we are further of the view that the judgment of the Division Bench dated 17th March 1988 in Writ Petition No. 1745 of 1985, H.S. Chinchole and Ors. v. The Superintending Engineer, M.S.E.B. Sangli Circle and Ors., decided by Pendse & Sugla, JJ. is no longer a good law and is impliedly overruled. Thus, we hold that the Division Bench judgment being not a good law, cannot be made applicable to the case of the petitioner and in the light of the judgment of the Hon'ble Supreme Court of India, the petitioner is not entitled to any benefits of arrears of salary and back wages on the basis of a deemed date promotion since he has admittedly not performed and/or worked on a higher post.

7. Accordingly, we uphold the order dated 12.12.1991 passed by respondent No. 1 and dismiss the writ petition. Rule discharged. No order as to costs.

Parties to act on an ordinary copy of this order duly authenticated by the Private Secretary of this Court.