R.K. Aminbhavi vs Maharashtra State Electricity Board

A.P. Shah, J.—The short question which arises for determination in this petition under Article 226 is whether the petitioner is entitled to the higher grade benefit in accordance with the General Order No. 74 of the respondent Maharashtra State Electricity Board.

The General Order No. 74 (for short "G.O. 74") was issued by the respondent on 30th April, 1974. The said General Order provides that if an employee has remained on a given post for ten years or more without the advantage of promotion to a higher post or higher grade for want of clear vacancy, such employee shall be given the higher grade benefit. On 6th May, 1983 the respondent amended G.O. 74 and the condition of ten years service for the benefit of higher grade was reduced to six years, with effect from 1st April, 1980. In short the amended G.O. 74 provides that an employee who has completed six years on 1st April, 1980 and who has not got promotion to a higher post for no fault of his own, but for want of a clear vacancy of for want of a channel of promotion or an employee who may complete six years service in a given post after 1st April, 1980 and who may not get promotion for the same reason is entitled to promotion to the next higher grade in the channel of promotion. There was further amendment to G.O. 74 by correction slip Nos. 1 and 15, dated 30th April, 1990. By the said amendment it is provided that in respect of employees who have channel of promotion the first benefit shall be granted under the provisions of G.O. 74 after the completion of six years continuous service in a given post and the second benefit shall be granted from the date of completion of six years reckoned from the date of absorption in the post of which the first benefit is granted or from the date on which the first benefit was granted whichever is earlier.

Now turning to the facts of the case it is clear that the petitioner had joined the services of respondent sometime in the year 1959 as Lower Division Clerk. The petitioner was promoted to the post of Divisional Accountant vide order, dated 17th July, 1975. He reported on the said post on 9th August, 1975. He was allowed to cross the efficiency bar in the year 1980. In view of the amendment of 6th May, 1983 the petitioner became entitled for benefit of higher grade on 9th August, 1981. It is the case of the petitioner that he was not aware of the amendment of 1983 reducing the period of ten years to six years. He was under bona fide impression that pre-condition for entitlement for next higher grade benefit was completion of ten years in the existing post. The petitioner, therefore, applied for benefits of G.O. 74 on 8th July, 1985 i.e., after completion of ten years in the post of Divisional Accountant. As there was no reply from respondent for considerably long time, the petitioner again wrote to the respondent a letter on 16th December, 1987 demanding benefit of higher grade of Accounts Officer. By reply letter, dated 19th July, 1989 the Special Officer (Establishment) informed the petitioner that as the departmental action initiated against the petitioner is in process the case of the petitioner''s promotion for the post of Accounts Officer under G.O. 74 will be decided only after the receipt of the decision of the competent authority. At this stage, it is required to be stated that a charge-sheet was issued to the petitioner on 4th July, 1988. In the departmental inquiry that was held pursuant to the said charge-sheet the petitioner was found guilty and awarded punishment under order, dated 7th August, 1990 of withholding one increment for a period of one year without its cumulative effect.

After the completion of the domestic inquiry, the petitioner again request the Respondent that atleast now decision be taken on his application for higher grade benefit as per G.O. 74. The Deputy Establishment Officer (II-A), however, wrote a letter informing the petitioner that the competent selection committee found him fit for grant of higher grade with effect from 9th August, 1981. On 22nd March, 1991, the petitioner made a further representation wherein he made a grievance that great injustice has been done to him by denying the benefit of G.O. 74. Finally, by order dated 26th March, 1996, the Joint Director (Estt.) rejected the claim of the petitioner. The order of the Joint Director reads as follows :

"Your case for review of the decision taken by earliest selection committee in grant of higher grade of the Accounts Officer was placed before the competent selection committee in its meeting held on 29-12-1995. The committee went through your 11 records, in detail. The committee noted that you were due for grant of higher grade benefit under the provision of G.O. 74 w.e.f. 9-8-1981. However, you had exercised your option for the same on 9-8-1985 and as such the committee came to know that you yourself were sluggish and indolent about your claim upto 9-8-1985. Therefore, your plea that on the date of your completion of 6 years i.e., on 8-8-1982, you were not facing any investigation, disciplinary action could not be accepted as you delayed submitting your claim of higher grade benefit till date as 9-8-1985. The committee noted that the decision taken by earlier competent selection committee was well reasoned and conscious and based on accepted norms. The committee therefore found that there was no reason to interfere/review the decision taken by the earlier C.S.C. In view of the above, your request for considering your case for grant of higher grade of the post of Accounts Officer, w.e.f. 9-8-1981 it is regretted, cannot be acceded to".

Dr. Kulkarni, learned counsel for the petitioner strenuously contended that the petitioner is entitled to the benefit of G.O. 74 at two stages viz., on 9th August, 1981 after completion of 6 years and on 9th August, 1990 on completion of 9 years. Dr. Kulkarni urged that rejection of petitioner''s application on the ground of delay in making application is wholly illegal. The learned counsel pointed out that no period was prescribed for claiming benefit under G.O. 74. Secondly, the counsel pointed out that the amendment of 1983 was not brought to the notice of the petitioner and therefore he was under an honest impression that he would receive the higher grade benefit only after completion of 10 years. It was, therefore, contended by the counsel that the rejection of the petitioner''s application on the ground of delay is unsustainable in law. Dr. Kulkarni also brought to my notice that when the petitioner first became due for higher grade benefit on 9th August, 1981, no departmental action was initiated against the petitioner. In fact, no such action was been contemplated as the alleged misconduct was of the year 1982. Dr. Kulkarni urged that the charge-sheet was issued to the petitioner long after he became entitled to benefit of G.O. 74 and therefore denial of higher grade benefit on the basis of pending disciplinary proceedings is clearly illegal and arbitrary. On the other hand, Mr. Joshi, learned counsel for the respondent submitted that an employee cannot be considered under G.O. 74 when departmental proceedings are initiated against him. Mr. Joshi urged that initiation of departmental proceedings does not necessarily mean the issuance of a charge-sheet to the employee. Mr. Joshi brought to my notice certain internal correspondence to show that the respondent was contemplating an inquiry against the petitioner since 1983. He, therefore, submitted that the petitioner''s application to the Board made in 1985 was rightly kept out of consideration. Mr. Joshi urged that entitlement of an employee under G.O. 74 has to be considered with reference to the date of his application and not the date when he becomes eligible for promotion. Therefore, Mr. Joshi submitted that the Board was right in refusing the higher grade benefit to the petitioner.

The question is whether the respondent was justified in denying benefit of G.O. 74 of the petitioner. It is common ground that the petitioner became eligible for the first benefit of G.O. 74 on 9th August, 1981. Undoubtedly, there is some delay on the part of the petitioner in applying for the benefit. But he has satisfactorily explained the cause for the delay. Moreover, at the relevant time there was no provision requiring the employee to apply for such benefit, although a provision in that behalf appears to have been introduced in 1990. Even-though the application was submitted in 1985, in my opinion the respondent was required to consider the petitioner''s claim for higher grade benefit with reference to the date on which he had completed 6 years in a given post. Merely, because there is delay in considering his claim, the benefit cannot be denied only on the ground that when the application was placed for consideration, some departmental action was in contemplation against the petitioner. It is not disputed that in August, 1981 when the petitioner had completed 6 years of service, there was no departmental proceedings against the petitioner. The misconduct for which punishment was imposed on the petitioner was of 1982 and the charge-sheet was issued only in 1988. If the benefit is to be granted with reference to the date of completion of a particular period then normally the situation prevailing on that day should be considered for the purpose of deciding the entitlement of the petitioner. Even assuming that the Board was right in postponing the decision on petitioner''s application till the conclusion of the departmental proceedings, I do not see any justification for denying the benefit altogether even after the conclusion of the departmental inquiry wherein a minor penalty was imposed on the petitioner.

At this stage a reference may be made to an unreported judgment of the Division Bench of this Court in O.S. Appeal No. 892 of 1991, Maharashtra State Electricity Board v. Dinkar Sadashiv Sane, decided on March 29, 1993, which has some bearing on the issue raised in the present petition. There the Division Bench minutely considered the scope of G.O. 74. It was observed in paragraph 5 of the judgment, -

"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 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 services in a given post but the service record may be adverse at the time when the 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 and 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".

The Division Bench clearly held that the employee is entitled to higher grade provided he is not found unfit of promotion at the end of the requisite period. I have, therefore, no hesitation in accepting the petitioner''s claim for the higher grade benefit under G.O. 74.

In view of the foregoing discussion, the prayers made in the petition for higher grade benefit are liable to be granted. The petitioner has claimed the higher grade benefit at two stages (i) on completion of six years on 9th August, 1981 and (ii) on completion of nine years on 9th August, 1990. Mr. Joshi points out that the petitioner has not filed a formal application for the second benefit on 9th August, 1990. Mr. Joshi says that such application is required to be made within two months. Considering the peculiar facts and circumstances of the case, the delay is liable to be condoned. Accordingly, the respondent is directed to grant the higher grade benefit accrued to the petitioner on 9th August, 1981 within two months from today. The respondent is also directed to consider the petitioner''s application for the grant of the second benefit accrued on 9th August, 1990 within the said period and release the same in case the petitioner is otherwise found to be eligible for such benefit.

Petition is accordingly made absolute. No order as to costs.