National Thermal Power ... vs G. Srinivasan
2002 Latest Caselaw 945 Del

JUDGMENT

Anil Dev Singh, J.

1. This appeal under Clause 10 of the Letters Patent, read with Section 10 of the Delhi High Court Act, 1966, is directed against the order of the learned Single Judge dated February 12, 2002. By that order the respondent has been held to have been promoted to the post of Manager w.e.f. January 1, 1998 and consequently the appellant has been directed to consider the respondent for promotion to the post of Senior Manager (E-6) in accordance with the Rules and Regulations of the appellant, by placing his case before the Corporate Promotion Committee (for short 'the CPC'). The facts leading to the appeal are as follows:-

2. The respondent is an employee of the appellant. On March 31, 1998 he was working as the Deputy Manager (Commercial), Corporate Centre, Delhi. By Office Order No. 57/98 dated March 31, 1998, the respondent was promoted to the post of Manager (Commercial), SRHQ, Bangalore, in the pay scale of Rs. 7500-300-9900 w.e.f. January 1, 1998. The order provided that the promotion will be effective from january 1, 1998 only if the respondent joined at the new place of posting within two months from the date of issue of the order, and in case he joined the new place of posting beyond two months but within six months from the date of issue of the promotion order, the promotion will be effective from the actual date of joining at the new place of posting. The order also stipulated that in the event of the respondent not joining at the new place of posting within six months from the date of issue of the order, the promotion order will stand automatically cancelled the withdrawn, and his case for promotion will be considered afresh by the next CPC as per policy. It appears that the respondent represented against his posting to Bangalore. The representation was rejected by the Staff Council at its meeting held on May 19, 1998. The decision taken by the Staff Council at its meeting held on May 19, 1998. The decision taken by the Staff Council was communicated to the respondent on May 22, 1998. The respondent on being communicated the outcome of his representation filed another representation on May 27, 1998 for cancellation of his transfer from Delhi to Bangalore. It appears that the appellant reacted favorably to the representation of the respondent and issued an Office Order dated May 29, 1998 whereby the respondent was posted to Dadri instead of SRHQ, Bangalore. The Office Order dated May 29, 1998 remained unaltered to the exception of place of posting. The respondent submitted yet another representation to the Staff Council agitating his transfer to Dadri. The representation, however, was rejected by the Staff Council as well as the Chairman-cum-Managing Director of the appellant on the ground that Dadri is very close to Delhi and the respondent had been transferred keeping in view his personal difficulties as explained in this representation. By order dated June 1, 1998, the appellant relieved the respondent from Corporate Commercial Department w.e.f. June 2, 1998 and was advised to report to AGM, (I/c) Dadri, for further instructions. Pursuant to the order dated June 1, 1998, the respondent joined his place of posting at Dadri on June 10, 1998.

3. On January 14, 2002, the respondent represented to the appellant for considering him for promotion to the post of Senior Manager in E-6 grade. On January 18, 2002, the respondent again submitted a representation to the appellant with the same request as was made by representation dated January 14, 2002. Since the respondent was not being considered for promotion to the post of Senior Manager, he filed writ petition, being CWP No. 783/2002. In reply to the writ petition, the appellant filed an affidavit of its Deputy Manager (HR). The appellant in the reply-affidavit took the stand that the promotion of the respondent was effective from the date when the actually joined at the place of his posting, viz., June 10, 1998. As a sequitur it was pleaded that for promotion to the post of Senior Manager the respondent was not eligible, as the respondent had not completed the minimum period of four years of service in E-5 grade. The learned Single Judge, however, was of the view that the order of promotion of the respondent was effective from January 1, 1998, the net result of which would be that the period of four years, which is the eligibility period entitling the respondent for promotion to the next higher grade, started running from January 1, 1998 and completed on January 1, 2002. The learned Single Judge, therefore, directed that appellant to consider the respondent for promotion to the post of Senior Manager (E-6 grade) in accordance with the Rules and Regulations of the appellant by placing his case before the CPC. The appellant being aggrieved by the judgment and order of the learned Single Judge, as already noted, filed the instant Letters Patent Appeal. We have heard the learned counsel for the parties.

4. The first question which falls for our consideration is whether the promotion of the respondent to the post of Manager (E-5) will be effective from January 1, 1998, or it shall be effective from June 10, 1998 when the respondent joined his place of posting at Dadri. For determination of this question it will be necessary to recount the facts starting from the order dated March 31, 1998. As already noted, vide order of the appellant dated March 31, 1998, the respondent was promoted to the post of Manager (Commercial) w.e.f. January 1, 1998. The order reads as under:-

"Shri G. Srinivasan, 029696, Dy. Manager (Commercial), CC, is hereby promoted to he post of Manager (Commercial), SRHQ, Bangalore, in the pay scale of Rs. 7500-300-9900/- with effect from 01/01/98.

The order will be effective from the above date only if he joins at the new place of posting within two months from the date of issue of this order. In case he joins the new place of posting beyond two months but within six months from the date of issue of this order, the promotion will be effective from the actual date of joining at the new place of posting. However, in case he does not join at the new place of posting within six months from the date of issue of this order, the promotion order will stand automatically cancelled and withdrawn and his case for promotion will be considered afresh by the next CPC, as per policy.

This issues with the approval of the Competent Authority."

5. Thus, it is apparent that the respondent was promoted subject to the condition that the order would be effective from January 1, 1998 only if the respondent joined at the new place of posting within two months from the date of issue of the order, and in case he joined the new place of posting beyond two months but within six months from the date of issue of the order, the promotion would be effective from the actual date of joining at the new place of posting. In case, however, he did not join at the new place of posting within six months from the date of issue of the order, the promotion would stand automatically cancelled and withdrawn and his case for promotion would be considered afresh as per policy by the next CPC. The order dated March 31, 1998 was modified by a subsequent order dated May 29, 1998. This order reads as under:-

"Shri G. Srinivasan, Emp.No. 02969, Dy. Manager (Comml), Corporate Centre, who was promoted to the level of Manager vide Office Order No. 57/98 dated 31.03.1998 issued under Ref.No. 01/PERS/12(105), is hereby posted to Dadri instead of SRHQ, Bangalore.

Other terms & conditions of the Office Order dated 31.03.1998 remain unaltered.

This issues with the approval of the Competent Authority."

6. Thus, from the above it is clear that the respondent was posted to Dadri instead of SRHQ, Bangalore, and the other terms and conditions of the Office Order dated March 31, 1998 remained unaltered. It is not in dispute that the respondent was relieved from the post at Delhi on June 2, 1998 and he joined at Dadri on June 10, 1998, i.e., within eight days of his being relieved from the post which he was holding. Since he joined at his new place of posting, viz., Dadri, within two months from the office order dated May 29, 1998, his promotion according to the office order dated March 31, 1998 was effective from January 1, 1998. The learned senior counsel for the appellant submitted that the respondent would have been considered to have been promoted w.e.f. January 1, 1998 only if he had complied with the terms and conditions of his promotion order dated March 31, 1998. Since the respondent joined the new place of posting on June 10, 1998 which was beyond the period of two months of the date of issue of the order dated March 31, 1998, his date of promotion had to be reckoned only from June 10, 1998 according to the policy of promotion incorporated in Circular No. 323/95 dated March 2, 1995.

7. We have considered the submission of the learned senior counsel for the appellant. However, we are not persuaded to take that view. It appears to us that the view taken by the learned Single Judge is correct. At this stage, it will be apposite to refer to para 7.4 of the aforesaid promotion policy of the appellant. Para 7.4 reads as under:-

"7.4 In case of transfer on Promotion, the promotion will be effective from the standard date or notified date, provided the concerned executive joins at the new place of posting within a period of not more than two months from the date of issuance of the promotion order failing which the promotion will be regulated as under:

a) In case the concerned executive joins at the new place of posting beyond two months but within 6 months from the date of issuance of the promotion order, the promotion will be effective only from the actual date of joining at the new place of posting. However, in exceptional cases, based on merits of the case, the promotion can be considered to be notionally effective from a date prior to the actual date of joining, as may be decided by the Competent Authority. The financial benefits on account of promotion will be allowed only from the actual date of joining the new place of posting.

b) In case the concerned executive does not join at the new place of posting within 6 months from the date of issuance of the order, the promotion order would stand automatically cancelled and withdrawn and his case for promotion to the next higher grade will be considered afresh by the next CPC, as per policy."

8. According to the aforesaid policy, in case of transfer on promotion, the promotion is to be effective from the date notified in the order itself, but the condition is that the promotee must join at the new place of posting within a period not more than two months from the date of issuance of the promotion order. In case the promotee does not join within two months at the new place of posting, in that event the date of promotion will be effective only from the actual date of joining at the new place of posting provided the promotee joins within six months from the date of issuance of the promotion order. However, in exceptional cases the appellant can make the promotion effective from a date prior to the actual date of joining. In a case where a promotee does not join within a period of six months at the new place of posting, the promotion order automatically stands cancelled. It is noteworthy that the order dated May 29, 1998 specifically stated that other terms and conditions of the order dated March 31, 1998 shall remain the same. Reading the aforesaid condition in the light of the policy notified vide Circular No. 323/95 dated March 2, 1995, we are of the considered opinion that the respondent could join his place of posting at Dadri within two months from May 29, 1998, i.e., up to July 29, 1998. The respondent, however, joined his post at Dadri on June 10, 1998 much before the expiry of two months. The argument of the learned senior counsel for the appellant is that the respondent could derive the advantage of the promotion order w.e.f. January 1, 1998 only if he had joined at Dadri within two months from March 31, 1998, that is to say, by May 31, 1998. In case the argument of the learned senior counsel for the appellant is accepted, it will amount to setting an impossible task for the respondent to perform. When the appellant itself relieved the respondent on June 2, 1998, how could the respondent join at Dadri by May 31, 1998. At least the appellant should have relieved the respondent on May 29, 1998, the very day the order of transfer to Dadri was passed, or the order dated May 29, 1998 should have stated that the respondent stands relieved with immediate effect, in case the appellant was requiring or expecting the respondent to join at Dadri within two days by May 31, 1998. It appears that even the understanding of the appellant was that the respondent could join his place of posting within two months of the issue of the order dated May 29, 1998 without affecting the effective date of promotion w.e.f. January 1, 1998. This is clear from the counter-affidavit filed by the appellant is reply to the writ petition, being CWP No. 2017/1999, preferred by the respondent in which he claimed promotion as Manager w.e.f. April 1, 1995, besides challenging his order of transfer from Delhi to Bangalore. Para 2 of the counter-affidavit needs to be noticed. Para 2, to the extent it is relevant, reads as under:-

"2. The petitioner has filed the present petition seeking appropriate direction from this Hon'ble Court to promote him as Manager (Commercial) w.e.f. 1.4.1995 and further seeking quashing of his transfer order from Delhi to Bangalore. It is stated here that the petitioner already stands promoted to the next higher post w.e.f. 1.1.1998. Hence the petitioner should not have any grievance on the account nor can he claim any promotion w.e.f. 1.4.1995 allegedly on the ground that he was entitled to be promoted to the post of Manager..."

9. From a reading of the aforesaid averments made by the appellant in the counter-affidavit it is obvious that the stand of the appellant was that the respondent stood promoted to the next higher post w.e.f. January 1, 1998, even though the appellant knew that the respondent had joined his place of posting at Dadri on June 10, 1998. The counter-affidavit was filed in December 1998, which means that the affidavit was filed about seven months after the appellant issued order dated May 29, 1998 whereby the respondent was directed to join at Dadri instead of Bangalore. Therefore, the understanding of the appellant at least till December 1998 was that the respondent stood promoted from January 1, 1998 and he joined his place of posting at Dadri within the stipulated period of two months in consonance with the order dated March 31, 1998 read with order dated May 29, 1998 and the Policy of the appellant dated March 2, 1995. Otherwise, the stand of the appellant would have been that the respondent did not stand promoted w.e.f. January 1, 1998 as he did not join within the stipulated period of two months. Keeping in view the order dated May 29, 1998, the aforesaid policy dated March 2, 1995, and the understanding of the appellant as reflected from para 2 of the counter-affidavit filed by it in Writ Petition No. 2017/1999, we are of the view that the respondent joined his place of posting at Dadri within the stipulated period of two months and his promotion to the post of Manager is effective from January 1, 1998.

10. The second issue which arises fro determination is as to when the respondent completed the eligibility period entitling him to be considered for promotion to the post of Senior Manager by the CPC. Para 5.1 of the Policy of the appellant dated March 2, 1995 needs to be referred to for resolving the issue. Para 5.1 reads as under:-

PARA 5.1 (SUB-PARA UNDER PARA 5.0 "ELIGIBILITY PERIOD")

"5.1 The eligibility period for consideration of executives in the grade as mentioned below for promotion to the next higher grade shall be as under:-

  Executive in the grade of   Eligibility Period
 E2    1 Year 
 E1, E2A, E3 & E4  3 Years 
 E5 & E6    4 Years
 

It is on completion of the minimum period of service in the grade as prescribed above, as on 30th April (inclusive of the grace period of one month) that an executive will become eligible for consideration for promotion to the next higher grade.
 

(According, the eligibility period, wherever referred in Corporate Personnel Circular No. 302/93 dated 11.06.1993 stands modified as above)."
 

11. According to the aforesaid para, the respondent in order to be eligible for the next higher post of Senior Manager must have four years experience in the lower grade. Since we have determined that the effective date of his promotion to the E-5 Grade (Manager Grade) is January 1, 1998, the respondent completed the period of four years on January 1, 2002. Therefore, the respondent qualified for being considered for the post of Senior Manager on January 1, 2002. The learned Single Judge, therefore, was right in issuing direction to the appellant to consider the respondent for promotion to the post of Senior Manager (E-6) by placing his case before the CPC.

12. In view of the aforesaid discussion, we do not find any ground to interfere with the order passed by the learned Single Judge. Accordingly, the appeal fails and is hereby dismissed.