G. Solmon Raju vs A.P. State Electricity Board and Others

S.R. Nayak, J.—The Writ Petitioner is, at present, working as Lower Division Clerk (for short "L.D.C.") in the respondent-Electricity Board. In this Writ Petition he seeks a declaration that the action of the respondent-Board in not promoting him to the post of Upper Division Clerk (for short "U.D.C."), from the date when his juniors were promoted, as arbitrary and discriminatory. Further, the petitioner seeks a Mandamus to the respondent-Board to promote him to the post of U.D.C. from the date when his immediate juniors were promoted and also fix the pay of the petitioner on par with his immediate juniors in the cadre of U.D.C. with all consequential benefits including arrears of pay.

The averments made in the affidavit filed in support of the Writ Petition disclose that the petitioner was appointed as L.D.C. in the services of the respondent-Board in the month of April, 1964. Thereafterwards, the services of the petitioner were terminated on 12-7-1966 on certain alleged misconduct. The petitioner raised an Industrial Dispute - I.D. No. 14 of 1975 - before the Labour Court, Guntur. The Labour Court held against the petitioner. That brought the petitioner to this Court by way of Writ Petition No. 289 of 1976. The said Writ Petition was disposed of by this Court on 9-6-1978 partly allowing the Writ Petition and directing the respondent-Board to reinstate the petitioner into service after relaxing the age qualification and to condone the break in service from the date of joining duty. It is stated in the affidavit that in pursuance of the direction issued by this Court in Writ Petition No. 289 of 1976, the petitioner was reinstated into service on 5-10-1978. It is also stated in the affidavit that as directed by this Court the rules were also relaxed in favour of the petitioner as regards the age qualification, and the break in service for the period from 13-7-1976 to 4-10-1978 was condoned by the respondent-Board. Thereafterwards, the petitioner again filed Writ Petition No. 6213 of 1979 in this Court complaining that though the respondent-Board condoned the break in service, as directed by this Court in earlier writ proceedings, failed to fix the pay scale properly. The said Writ Petition was disposed of by this Court on 31-12-1985 directing the respondent-Board to fix the pay scale of the petitioner which he would have drawn had he continued in service without any break. This Court also clarified that the other benefits accruing to the petitioner as a result of continuity of the service should be given to the petitioner except the back wages for the period from 13-7-1966 to 4-10-1978.

In the present Writ Petition the petitioner has averred that as per the regulations governing the promotion from tine cadre of L.D.C. to the cadre of U.D.C. he had acquired a right to be considered for promotion from the cadre of L.D.C. to the cadre of U.D.C. immediately after completion of five years of continuous service in the respondent-Board. He has complained in the affidavit that when the disciplinary proceedings were pending against him, his immediate juniors, viz., M/s. R.R.K. Sarma, K. Someswara Rao, B. Chakravarthy, M. Bharadwaja, A. Kondaiah, G. Nageswara Rao and several others were considered for promotion and they were promoted as U.D.Cs.

The Board has filed a detailed counter resisting the claim of the petitioner.

Heard the learned Counsel for the parties.

The learned Counsel for the petitioner, in the back-ground of the facts stated by him in the affidavit, submitted that in view of the decisions of this Court rendered in Writ Petition Nos. 289 of 1976 and 6213 of 1979 the petitioner has a right to be considered for promotion from the cadre of L.D.C. to the cadre of U.D.C. with a retrospective date, i.e., the date on which his immediate juniors were considered and promoted to the cadre of U.D.C.

The respondent-Board in its counter has contended that the candidature of the petitioner could not be considered for promotion to the cadre of U.D.C. inasmuch as he has not passed the prescribed departmental tests. It seems that the said contention of the Board is based on a set of Rules/Regulations which came into force with effect from 4th March, 1970. But the case of the petitioner is as per the then regulations governing promotion from the cadre of L.D.C. to the cadre of U.D.C. immediately after completion, of five years continuous service, the Board was required to consider the candidature of those L.D.Cs. for promotion to the next higher cadre, i.e., U.D.C. and inasmuch as the petitioner had completed five years continuous service in the cadre of L.D.C. in the year 1969 itself, the Board is under an obligation to consider the candidature of the petitioner in the light of the regulations holding the field in the year 1969.

The orders made by this Court in Writ Petition No. 289 of 1976 and Writ Petition No. 6213 of 1979 make it very clear that the past services of the petitioner put in the cadre of L.D.C. are kept intact and in the light of those decisions the petitioner has, certainly, a right to be considered for the post of U.D.C. provided he satisfies the other qualifications prescribed under the regulation then in force. Every official has got a right to be considered for promotion according to his seniority and if he is not considered when it was due, for any reason, he is entitled to claim consideration with effect from the date on which it was due. Where an official is passed over because of the pendency of a departmental enquiry, after exoneration or acquittal, as the case may be, such an employee is entitled to have his case considered for retrospective promotion with effect from the date when it was due and also to get all consequential benefits, if such employee is found fit for promotion otherwise. Similar views are taken by the High Court of Karnataka in the cases of M.G. Sirsikar v. State of Mysore, 1966 (2) MLJ 584 and Shaik Mahaboob v. Railway Board, SLR 1982(1) Kar 455; the High Court Kerala in the case of Allappat Narayan v. State of Kerala, SLR 1977 (2) Ker 657, and the High Court of Punjab and Haryana in the case of Dharam Pal Singh v. State of Punjab, SLR 1983 (1) P & H 648. I am in respectful agreement with the views taken by the Karnataka High Court, Kerala High Court and Punjab & Haryana High Court.

At this juncture it is also relevant to note that even when a departmental enquiry culminates in the imposition of punishment other than reduction in rank, removal or withholding of promotion, the official concerned is entitled to consideration for promotion with effect from the date on which his immediate junior was promoted and to get all consequential benefits, if found fit for such promotion. In the light of these legal principles, it cannot be said that the petitioner has no right to be considered for promotion with retrospective date, i.e., the date on which his immediate juniors were considered and promoted to the cadre of U.D.C. However, the prayer of the petitioner to issue a direct Mandamus to the respondent-Board to promote him and to extend all consequential reliefs flowing there from cannot be acceded to particularly in the light of the stand taken by the Board in its counter to the effect that the petitioner has not passed the prescribed departmental tests. Therefore, it is necessary for the Board to consider the claim of the petitioner for promotion to the cadre of U.D.C. in the light of all the rules and regulations governing the promotions and which were holding the field in the year 1969.

For the reasons stated above, this Writ Petition is allowed in part and a Writ of Mandamus shall issue to the respondent-Board to consider the claim of the petitioner for promotion from the cadre of L.D.C. to the cadre of U.D.C. in the light of the rules and regulations governing such promotions and which were holding the field in the year 1969. This exercise of consideration shall be done by the respondent-Board within a period of three months from to-day. Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs.