Kailash Kumar Namdeo vs M.P.Power Generating Company ...
2023 Latest Caselaw 8357 MP

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IN           THE                 HIGH                COURT OF                              MADHYA PRADESH
                                                   AT JABALPUR
                                                            BEFORE
                      HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                        ON THE 12TH OF JUNE, 2023
                                              W.P. No.6933 of 2019 (S)

BETWEEN:-

KAILASH KUMAR NAMDEO S/O MANSARAM
NAMDEO, AGED ABOUT 58 YEARS, OCCUPATION :
GOVT. SERVICE (EXECUTIVE ENGINEER POSTED AT
MPPGCL, SARNI, DISTRICT BETUL), R/O OLD B-23,
MPPGCL COLONY, OFFICERS COLONY, POST OFFICE
SARNI, DISTRICT BETUL - 460447 (M.P.)
                                                                                                                  ......PETITIONER
(BY SHRI K.N. PETHIA - ADVOCATE)

AND

1.                    M.P. POWER GENERATING COMPANY
                      LTD. THROUGH ITS CHIEF MANAGING
                      DIRECTOR, SHAKTI BHAWAN, RAMPUR,
                      JABALPUR (M.P.)
2.                    CHIEF ENGINEER (HR & A) M.P. POWER
                      GENERATING COMPANY LTD., BLOCK
                      NO.9, SHAKTI BHAWAN, VIDYUT NAGAR,
                      RAMPUR, JABALPUR (M.P.)
3.                    EXECUTIVE DIRECTOR (HR & A) M.P.
                      POWER GENERATING COMPANY LTD.
                      BLOCK NO.9, SHAKTI BHAWAN, VIDYUT
                      NAGAR, RAMPUR, JABALPUR (M.P.)
                                                                                                            ......RESPONDENTS

(BY SHRI RAHUL DIWAKER - ADVOCATE)
................................................................................................................................................
Reserved on                : 27.04.2023
Pronounced on : 12.06.2023
................................................................................................................................................
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             This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
                                    ORDER

This petition has been filed under Article 226 of the Constitution of India challenging the order dated 19.02.2019 (Annexure- P/11) whereby the petitioner though granted the benefit of third time scale of pay, but from some other date.

2. The issue involved in the case is that the petitioner claimed third higher pay scale, though, it was granted to him but not from the date when according to the petitioner, he became eligible for the same. It has been granted at some later date i.e. w.e.f. 01.04.2018 vide order dated 19.02.2019 (Anneuxre-P/11) whereas according to the petitioner, it should have been granted to him w.e.f. 26.12.2010 after completing 30 years of services from the date of initial appointment as Junior Engineer. Although, this fact has been disputed by the respondents by filing reply taking a stand therein that the petitioner has been granted the benefit w.e.f. 01.04.2018 according to his entitlement because the case of the petitioner was earlier considered in the year 2016, 2017 and also in the year 2018, but in absence of securing benchmark, he could not be considered for granting third higher pay scale. The respondents have also raised an objection with regard to maintainability of the petition on the ground of delay and laches and submitted that the petition is liable to be dismissed on the ground that it suffers from delay and laches as no sufficient explanation has been given for filing the petition after a delay of almost 4 years.

3. To resolve the controversy involved in this case, the facts in

nutshell are that the petitioner was initially appointed as Diploma Trainee vide order dated 26.12.1980 and after completing one and half years, he was regularized to the post of Junior Engineer. The respondent/Department issued a policy for upgrading the pay scale of the employees who are not getting promotion in time and as per the said policy i.e. issued in the year 1989 for granting higher pay scale to the employees and that policy was later on amended on 19.07.1990. The said policy dated 19.07.1990 is available on record as Annexure-P/3.

4. The petitioner claimed that first higher pay scale was granted to him after completion of 9 years of services and second after completion of 18 years. The petitioner was granted first upgradation after 9 years of services and second upgradation after 18 years of services. However, there was some dispute with regard to granting second higher pay scale after completing 18 years of services, then the dispute went to the High Court and the High Court decided the same in a petition i.e. W.P. No.15915/2015 and other connected petitions in which it is observed that granting second higher pay scale, the services rendered by the employee as Junior Engineer should also be counted and as such, after counting those services, second higher pay scale was granted to the petitioner.

5. The petitioner, therefore, has claimed third higher pay scale which was to be granted to him after completion of 30 years of services. The claim of the petitioner was considered in the year 2016 and was rejected by the respondent/Department as he was not found fit to be granted said benefit for the reason that he failed to secure benchmark. His claim was again considered in the year 2017 but the same thing happened in that year also and his claim was rejected. The petitioner

although did not challenge the rejection of third time scale of pay and finally in the year 2019, his claim was considered and he was granted the benefit of third time scale of pay w.e.f. 01.04.2018. The petitioner is, therefore, challenging the order dated 19.02.2019 mainly on the ground that rejection of his claim in the year 2016 was not proper because that was based upon uncommunicated adverse remarks and in absence of proper communication of those adverse remarks, he could not have been considered but because of considering the same, the petitioner could not achieve the benchmark and therefore, the order of 2016 and also of 2017 in which the authority has considered the uncommunicated adverse remarks, deserve to be quashed. The petitioner has also claimed that the third higher pay scale has to be granted to him immediately after completing 30 years of services from the date of his initial appointment in which he was appointed i.e. Junior Engineer and services rendered on the said post, was also required to be counted but the respondents refused to count those services and therefore, the order granting benefit of third higher pay scale is challenged to the extent that instead of 01.04.2018, it should have been granted w.e.f. 26.12.2010.

6. The respondents have filed reply taking stand therein that the benefit of third time pay scale has rightly been granted to the petitioner w.e.f. 01.04.2018 because only in the year 2019, the petitioner was found fit to be recommended for grant of third time scale of pay because his claim was earlier rejected in a meeting held by the Committee in the year 2016, 2017 even in 2018. The respondents have also taken a stand and raised objection about the maintainability of the petition on the ground that despite communicating the orders passed by the authority in the year 2016, 2017 and 2018, rejecting the petitioner's claim for grant of third time scale of pay, he did not challenge those

decisions but only after getting the benefit vide order dated 19.02.2019 whereby benefit of third time scale of pay has been granted w.e.f. 01.04.2018, he challenged the same. Therefore, the petition deserves to be dismissed, according to them, as the same suffers from delay and laches. In the reply, it is also stated that the benefit of services rendered by the petitioner as Junior Engineer, cannot be counted for granting third time pay scale.

7. Learned counsel for the petitioner submits that in the light of law laid down by the Supreme Court in a case reported in (2008) 8 SCC 725 parties being Dev Dutt vs. Union of India and others, the uncommunicated adverse ACRs cannot be considered for granting promotion and the benefit of higher pay scale, therefore, the decision taken by the respondents rejecting the claim of the petitioner is not sustainable and is liable to be set aside. He further relies upon a case reported in (2009) 16 SCC 146 parties being Abhijeet Ghosh Dastgir vs. Union of India, saying that the Supreme Court has observed that if adverse ACRs are considered and claim rejected then the decision taken on the consideration of those ACRs, is illegal and deserves to be set aside. He submits that under such circumstances and considering the fact that the petitioner has been retired, it would not be proper on the part of the Court to direct the petitioner to approach the respondent/authority by making representation for upgrading the adverse remarks. Instead of doing so, it is appropriate that the respondent/authority may be directed to ignore the adverse ACRs which were not communicated to the petitioner and on the basis of same, the petitioner may be granted the benefit of third time scale of pay after completing 30 years of services.

8. Shri Diwaker on the other hand has opposed the submission made by the counsel for the petitioner and submitted that primarily this petition can be dismissed on the ground of delay and laches as the rejection of the claim of the petitioner in the years 2016, 2017 and 2018 was duly communicated to him, but he did not challenge the same. The present petition has been filed in the year 2019 when the petitioner has been granted the benefit of third time scale of pay w.e.f. 01.04.2018. He further submits that even otherwise in view of the law laid down by the Supreme Court, the respondents cannot be directed to grant the benefit only after completing 30 years of service, but if uncommunicated ACRs have been considered, the proper remedy available for the petitioner is to make a representation before the competent authority for upgrading the adverse ACRs and if these ACRs are upgraded then only the claim of the petitioner can be reconsidered, otherwise the decision taken by the authority would be continued. He submitted that under such circumstances, the petition is misconceived and it merits dismissal.

9. Considering the submission made by the counsel for the parties and perusal of record, the core question emerges for consideration is whether the benefit granted to the petitioner of third time scale of pay w.e.f. 01.04.2018 requires to be modified and instead of 01.04.2018, he should have been granted the said benefit w.e.f. 26.12.2010 after completing 30 years of services from the date of his appointment as Junior Engineer.

10. The petitioner has claimed that he was appointed on the post of Junior Engineer w.e.f. 26.12.1980 and thereafter he was granted first upgradation after completing 9 years of services w.e.f. 26.12.1980 and as such, the benefit was granted w.e.f. 26.12.1989 vide order dated 21.05.1991 (Annexure-P/5). However, from the record it is clear that on

19.07.1990 (Annexure-P/3), the respondents have passed an order providing benefit of first and second higher pay scale to the Class-III & IV employees. The petitioner has opted the said order and therefore, he was granted first upgradation vide order dated 21.05.1991 (Annexure- P/5) considering his appointment w.e.f. 26.12.1980 and second upgradation was granted to him w.e.f. 27.12.1998 after completing 18 years of services and the benefit was granted on 29.09.2016 (Annexure- P/9). The petitioner not only accepted these two upgradations but also not raised any grievance with that respect. It is clear that under the order dated 19.07.1990 (Annexure-P/3) the respondents granted the benefit of two upgradations that too after completing 9 years and 18 years of services, but the benefit of third upgradation was made available when order dated 23.11.2015 was issued by the respondents i.e. Annexure-P/4 providing third time scale of pay after completing 30 years of services on the existing post. Although, the petitioner's 30 years services according to his initial appointment was completed on 26.12.2010, but according to the respondents, the petitioner's claim was considered in the year 2016 for granting third time scale of pay as per order dated 23.11.2015 (Annexure-P/4), but he could not achieve the benchmark, therefore, his claim was rejected and the petitioner was accordingly informed vide communication dated 22.09.2016 (Annexure-P/10). Thereafter the petitioner granted the benefit of third time scale of pay vide order dated 19.02.2019 (Annexure-P/11) w.e.f. 01.04.2018. The petitioner, therefore, has assailed the orders dated 22.09.2016 (Annexure-P/10) and 19.02.2019 (Annexure-P/11) on the ground that the claim of the petitioner was rejected earlier taking note of his ACRs which were not communicated to him and as such, the decision taken by the respondents on the basis of uncommunicated ACRs which were

adverse and came in the way of petitioner for considering him to be fit for granting third time scale of pay, therefore, the said decision is liable to be set aside in the light of law laid by the Supreme Court in case of Dev Dutt (supra) and also Abhijit Ghosh Dastgir (supra).

11. Shri Pethia, therefore, has contended that the benefit of third time scale of pay should have been granted to the petitioner w.e.f. 26.12.2010, but not from the date i.e. w.e.f. 01.04.2018. Shri Pethia has also contended that the circular/order issued on 23.11.2015 containing the condition that the benefit of third time scale of pay granted after completing 30 years of services on the existing post is not proper and said circular is not applicable to the petitioner because it has prospective effect but it cannot be implemented retrospectively.

12. Shri Diwaker on the other hand has contended that the petitioner was earlier informed in 2016 and 2017 that his claim for granting third time scale of pay is already considered and rejected as he failed to achieve benchmark and, therefore, the petition suffers from delay and laches and as such, it is liable to be dismissed on this count alone.

13. Although, Shri Pethia has placed reliance upon a judgment of the Division Bench passed in M.P. No.2984 of 2022 (Dinesh Kumar Pare Vs. The Union of India and others) saying that it is recurring cause of action, therefore, the delay cannot be made a ground for rejecting the claim of the petitioner. He has also placed reliance upon an order of this Court passed in W.P.(S) No.107 of 2004 (Dinesh Prasad Vishwakarma Vs. Madhya Pradesh Electricity Board and another) saying that the High Court has already considered this aspect that if benefit is granted to the junior, the same may also be granted to the

petitioner and the petition was disposed of directing the authority to consider the representation of the petitioner therein taking note of said aspect and that order of writ Court has also been followed by the High Court in W.P. (S) No.15917 of 2015 (S) (Santosh Kumar Gaikwad Vs. M.P. Power Generating Company) and also in W.P. No.19047 of 2016 (Sanjay Anant Godbole Vs. M.P. Power Generation Company and another). Although, those cases are not applicable for the petitioner for the reason that in those cases, the Court has considered that some of the juniors have been granted benefit counting their services which they have rendered as Junior Engineer, but no positive direction has been issued by the High Court and even on record there is no documents available showing whether any such benefit is granted to any of the juniors or the claim of the petitioner in which direction has been issued has been considered by the authority or not. Even otherwise, in the present case, the foundation of rejecting the claim of the petitioner is something different. The claim was considered at the relevant point of time but was rejected on the ground that the petitioner failed to achieve benchmark.

14. Shri Diwaker has contended that the petition deserves to be dismissed on the ground of delay in challenging the decision of the authority rejecting the claim of the petitioner as he was timely informed the same. I find substance in the submission made by the counsel for the respondents. It is not a case in which the petitioner is raising any objection about not considering him for grant of third time scale of pay, but here it is a case in which the claim of the petitioner was considered by the authority, rejected and said decision was duly communicated in time, however, that has not been challenged by the petitioner. The analogy which has been laid down by the Division Bench of this Court

is also not applicable in the present case because it is not a case in which the petitioner is asking the benefit not in time but at later stage. Here the claim for granting the benefit of third time scale of pay has already considered and rejected but that order has not been assailed and, therefore, there is a delay in challenging the said decision of the respondents and as such, the petition suffers from delay and laches and it is liable to be dismissed on the ground of delay.

15. However, the contention of the petitioner is that the circular/order dated 23.11.2015 is not applicable to him as the same is made effective prospectively and, therefore, the same be quashed, especially the clause depriving the petitioner to get the benefit. If the contention of counsel for the petitioner is accepted then claim for granting third time scale of pay is not available to the petitioner for the reason that the provision of granting only two upgradations available and that has been opted by the petitioner. If the circular/order dated 23.11.2015 is not applicable to the petitioner then there is no other provision under which the petitioner can claim third time scale of pay.

16. In the present case, the claim of the petitioner was considered and rejected by the authority on the ground that he could not achieve the benchmark and the petitioner is claiming that the said decision is illegal for the reason that he was not communicated the ACRs and, therefore, that decision is liable to be set aside in the light of law laid down by the Supreme Court in the Dev Dutt (Supra) and Abhijit Ghosh Dastgir (Supra). In such circumstances, the petitioner is free to make a representation to the authority for upgrading his ACRs. If the same is done and those ACRs are upgraded by the authority, the petitioner can raise his claim saying that his claim can be reconsidered

on the basis of upgraded ACRs.

17. As per the reply submitted by the respondents since the ACRs were made available to the petitioner under Right to Information Act, therefore, he is free to make a representation before the authority. If the same is done, the respondents are directed to consider the same but shall not be rejected only on the ground of delay in making so. If representation is reconsidered and allowed, ACRs are upgraded then the petitioner can claim revision in the decision for grant of third time scale of pay with retrospective date. But at this stage, the claim of the petitioner since rejected in the year 2016 the same cannot directed to be reconsidered as there is apparent delay in challenging the said decision. In my opinion, the petition deserves dismissal on the ground of delay and laches. Although, the liberty is available to the petitioner as has been observed hereinabove.

18. With the aforesaid, this petition is dismissed. No order as to costs.

(SANJAY DWIVEDI) JUDGE

ac/-

ANIL CHOUDHARY 2023.06.14 11:17:32 +05'30'