//
you're reading...
legal issues

Service matter – Promotion – Merger bars promotion permanently – Graduate Engineer appointed as junior engineer on 23.09.1986 in the Rural Electricity Cooperative Society, Rewa – Merged in Madhya Pradesh State Electricity Board (hereinafter referred to as ‘MPSEB’) – his promotion for Asst. Engineer was denied due to non- existence of Society by merging – High court dismissed the writ and D.B. held that there is no permanent promotion – Apex court held that due merge the rules and regulations of Madhya Pradesh State Electricity Board (hereinafter referred to as ‘MPSEB’) applies – at the time of absorption their category was fixed as junior to junior engineers from the that stage , they are entitled for promotion as per the rules and regulations , otherwise it is unconstitutional Apex court allowed the appeal = Panchraj Tiwari … Appellant (s) Versus M. P. State Electricity Board and others … Respondent (s) = 2014 (March . Part) judis.nic.in/supremecourt/filename=41284

Service matter – Promotion – Merger bars promotion permanently – Graduate Engineer appointed as junior engineer on  23.09.1986 in the Rural Electricity  Cooperative  Society,  Rewa –  Merged in Madhya  Pradesh  State Electricity Board (hereinafter referred to as ‘MPSEB’) – his promotion for Asst. Engineer was denied due to non- existence of Society by merging – High court dismissed the writ and D.B. held that there is no permanent promotion – Apex court held that due merge the rules and regulations of Madhya  Pradesh  State Electricity Board (hereinafter referred to as ‘MPSEB’) applies – at the time of absorption their category was fixed as junior to junior engineers from the that stage , they are entitled for promotion as per the rules and regulations , otherwise it is unconstitutional Apex court allowed the appeal =

 

Whether on integration/merger/amalgamation, is  it  permissible  to  have

   complete denial of promotion forever in the integrated  service,  is  the

   short question arising for consideration in this case. 

 

Appellant a graduate started his career as junior engineer on  23.09.1986

   in the Rural Electricity  Cooperative  Society,  Rewa.  During  1995,  it

   appears a policy decision was taken by the State Government  to  dissolve

   all  such  societies  and  merge  the  same  with  Madhya  Pradesh  State

   Electricity Board (hereinafter referred to as ‘MPSEB’). Accordingly,  the

   Managing Committee of the Rural Electricity Cooperative Society, Rewa was

   superseded in May, 1995 and a Superintending Engineer of  the  MPSEB  was

   appointed as Officer            In-charge. However, it took a  few  years

   to complete the formalities of the merger. Finally the Rural  Electricity

   Cooperative Society, Rewa was completely merged  with  the  MPSEB  w.e.f.

   15.03.2002.=

 

Instant is a case where there is complete denial  of  promotion  forever

   which cannot be comprehended under the constitutional scheme of  Articles

   14 and 16 of the Constitution of India. In this context, we  shall  refer

   to a beautiful discussion on this aspect in S. S. Bola  case  (supra)  at

   paragraph 153. The relevant portion reads as follows:

 

 

           “153.        xxx        xxx                xxx               xxx

 

 

 

 

 

 

       AB. A distinction between right to be considered for promotion and an

      interest to be considered for promotion has  always  been  maintained.

      Seniority is a facet of interest. The rules prescribe  the  method  of

      recruitment/selection. Seniority is governed by the rules existing  as

      on the date of consideration for promotion. Seniority is  required  to

      be worked out according to the existing rules. No  one  has  a  vested

      right to promotion or seniority. But an officer  has  an  interest  to

      seniority acquired by working out the rules. The seniority  should  be

      taken away only by operation of valid law. Right to be considered  for

      promotion is a rule prescribed by conditions of service. A rule  which

      affects chances of promotion of a  person  relates  to  conditions  of

      service. The rule/provision in an Act merely affecting the chances  of

      promotion would not be regarded as varying the conditions of  service.

      The chances of promotion are not conditions of service. A  rule  which

      merely affects the chances of promotion does not amount to  change  in

      the conditions of service. However, once a declaration of law, on  the

      basis of existing rules, is made  by  a  constitutional  court  and  a

      mandamus is issued or direction given for its enforcement by preparing

      the seniority list, operation  of  the  declaration  of  law  and  the

      mandamus and directions issued by the  Court  is  the  result  of  the

      declaration of law but not the operation of the rules per se.”

                                                         (Emphasis supplied)

 

 

 

19. In the above circumstances, we set aside the  judgment  in  appeal.  The

   absorbed employees of the Rural Electricity Cooperative Societies, having

   due regard to their date of appointment/promotion in each category in the

   respective societies, 

shall be  placed  with  effect  from  the  date  of

   absorption, viz., 15.03.2002 as juniors to the  junior-most  employee  of

   the Electricity Board in the respective category. 

Thereafter, they  shall

   be considered for further promotions as per the rules/regulations of  the

   MPSEB. 

All other principles/conditions  of  absorption  shall  remain  as

   such. 

However,  it  is  made  clear  that  on  such  promotions,  in  the

   exigencies of service, the employee concerned would also be liable to  be

   transferred out of the circle, if so required.

 

 

 

20. The appellant accordingly shall be entitled to retrospective  promotions

   at par with and with effect from  the  dates  on  which  the  junior-most

   graduate engineer in  the  parent  service  on  the  date  of  absorption

   obtained such promotions. However, we make it clear  that  benefits  till

   date need to be worked out only notionally.

 

21. The appeal is allowed as above. There is no order as to costs.

 

2014 (March . Part) judis.nic.in/supremecourt/filename=41284

H.L. GOKHALE, KURIAN JOSEPH
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4371 OF 2008
Panchraj Tiwari … Appellant (s)

Versus

M. P. State Electricity Board and others … Respondent (s)

 

J U D G M E N T

KURIAN, J.:

 

 

1. Whether on integration/merger/amalgamation, is it permissible to have
complete denial of promotion forever in the integrated service, is the
short question arising for consideration in this case.

2. Appellant a graduate started his career as junior engineer on 23.09.1986
in the Rural Electricity Cooperative Society, Rewa. During 1995, it
appears a policy decision was taken by the State Government to dissolve
all such societies and merge the same with Madhya Pradesh State
Electricity Board (hereinafter referred to as ‘MPSEB’). Accordingly, the
Managing Committee of the Rural Electricity Cooperative Society, Rewa was
superseded in May, 1995 and a Superintending Engineer of the MPSEB was
appointed as Officer In-charge. However, it took a few years
to complete the formalities of the merger. Finally the Rural Electricity
Cooperative Society, Rewa was completely merged with the MPSEB w.e.f.
15.03.2002.

3. The principles of merger were clarified by the MPSEB after prolonged
correspondence as per Annexure P-12 dated 15.06.2004. For the purpose of
ready reference, we shall extract the contents:

“Please refer to this office order cited under reference. It is
requested to issue necessary orders for absorption of employees of REC
societies falling under your area of jurisdiction on the same terms &
conditions of the societies. The terms & conditions of the societies
may be obtained from DE (STC), Jabalpur.

Further other terms & conditions of which employees can be
absorbed:-

1. The regular employees of the above societies shall be taken over
on the same terms & conditions as existing in the Society except
that no deputation allowance shall be paid.

2. Their pay scale will be the same which they were getting before
the absorption.

3. The above employees may not be transferred out of the circle
concerned, so that no anomaly arises.

4. Their age of superannuation will be the same as applicable in
the societies.

5. Pension/gratuity will be payable to the employees absorbed in
the Board as per the rules/regulation of the concerned society.

6. Their designation will be maintained as it was in the society.”

(Emphasis supplied)

4. The principles of absorption as extracted above would clearly show that
the employees of the society have been taken over and absorbed in the
MPSEB. However, their pay-scale on the date of absorption was protected,
their designation was maintained as it was in the society at the time of
absorption and the age of superannuation, pension and gratuity of such
employees were to be governed by the rules/bylaws of the society
concerned.

5. Though it may appear that there are some conditions which are normally
not found in the principles of integration, the fact remains that the
employees of the erstwhile society which merged with the MPSEB, have been
absorbed in the service of MPSEB.

6. Integration/merger of services means creation of a homogenous service by
the merger of service personnel belonging to different services. Though
it is difficult to have a perfect coalescence of the services on such
merger, the principle of equivalence is to be followed while absorbing
the employees, to the extent possible.

7. Though integration of services thus postulates equation of posts, it is
not invariably necessary to prepare the seniority list on the basis of
the pay drawn by the incumbent in the equated category. It is always open
to the authority concerned to adopt a just and the equitable principle on
fixation of seniority.

8. Once a service is merged with another service, the merged service gets
its birth in the integrated service and loses its original identity.
There cannot be a situation, where even after merger, absorption or
integration, such services which were merged or absorbed, still retain
their original status. If so, it is not an absorption or merger or
integration, it will only be a working arrangement without any functional
integration.

9. In the instant case, the undisputed factual and legal position is that
there is absorption of the employees of the Rural Electricity Cooperative
Society, Rewa with the MPSEB. The Society has been deregistered, there is
only one service thereafter and thus there is functional integration. On
the basis of the protection of the designation and pay-scale, the
employees have to be posted in the equivalent category. Since it is not
specifically provided as to the position of such employees in the
integrated service, it is a settled equitable principle that such
employees are placed as junior to the junior-most officer of the category
concerned in the MPSEB on the date of absorption, viz., 15.03.2002.

10. It is provided in the conditions of service of the MPSEB as per
Circular dated 15.11.1990 that a graduate Junior Engineer having
satisfactory service of four years of regular service can be considered
for promotion to the post of Assistant Engineer after appropriate
training. The appellant started his career as a graduate engineer in the
Rural Electricity Cooperative Society, Rewa in 1986. He also claimed
promotion on the basis of such circular. The Board of Directors of the
appellant’s society passed a Resolution on 27.12.1994 for his promotion
as Assistant Engineer. By that time the steps for dissolution of society,
it appears had already started. The Board of Directors was dissolved in
May, 1995 and a Superintending Engineer of the MPSEB was appointed as
Officer In-charge of the society. The said officer forwarded the proposal
of promotion of the appellant as an Assistant Engineer to the MPSEB.

11. It appears, the Registrar of the Cooperative Societies as well as MPSEB
have taken the stand that the appellant had not been duly selected for
promotion as Assistant Engineer in terms of Rule 18 of the Society. The
Rule reads as follows:

“18. SELECTION AND APPOINTMENT

The selection of suitable candidate for filling-up a post in the
society as well as for making selection for promotion of eligible
candidates shall be made by a selection committee to be constituted by
the Board, consisting of the Chairman, a member of the Board to be
elected by the Board, divisional Deputy Registrar of Cooperative
Society, Divisional Engineer, M.P. Electricity Board and the Managing
Director of the Society.

 
Dearness allowances to employees borne on regular establishment shall
be admissible as applicable to the employees of M.P.E.B. from time to
time with previous approved of the Registrar Cooperative societies
M.P.

 
Dearness allowances to employees borne on regular estt. shall be
admissible as sanctioned by the M.P.E.B. to the similar categories of
employees.”

(Emphasis supplied)

 
12. It is the case of the appellant that since the Board of Governors had
already been dissolved and since it had been decided to absorb the
employees of the society in the Board, there was no point in following
the process of selection in terms of the regulations of the society.
Thus, the rejection was challenged before the High Court.

13. Learned Single Judge dismissed the writ petition on the ground that
writ against a cooperative society was not maintainable. However, in
appeal, it was admitted by the Board that the society had already merged
with the Electricity Board and, hence, case was heard on merits before
the Division Bench. It is the stand of the High Court in appeal that the
principles of integration, as extracted above, cast no obligation on the
Electricity Board to give promotion to the appellant. The obligation was
only to absorb the appellant by protecting the designation and pay-scale
and continue as such. In other words, since the appellant was absorbed as
a Junior Engineer, he should continue forever as Junior Engineer till his
retirement. We are afraid that the stand cannot be justified.

14. As held by this Court in R.S. Makashi and others v. I. M. Menon and
others[1], the courts will not interfere with the decision and principles
of integration unless it is shown that they are arbitrary, unreasonable
or unfair. No doubt, there is no vested right for an employee to have a
particular position in the integrated or merged service. On equitable
considerations, it is always open to the authorities concerned to lay
down the principles with regard to the fixation of seniority as held by
this Court in S. S. Bola and others v. B.D. Sardana and others[2] and
Prafulla Kumar Das and others v. State of Orissa and others[3]. However,
in the instant case, equivalence has been decided since designation and
pay-scale was protected. What remains is only the seniority.

15. It is open to the authority concerned to lay down equitable principles
with regard to fixation of seniority in the merged cadre. Once a service
gets merged with another service, the employee concerned has a right to
get positioned appropriately in the merged service. That is the plain
meaning of ‘absorption’. The MPSEB, having absorbed the appellant and
other employees, cannot maintain a stand that even after absorption they
will retain a distinct identity in the equated cadre without any
promotion as enjoyed by their compeers in the parent service. That is a
plain infraction of the equity clause guaranteed under Articles 14 and 16
of the Constitution of India.

 

16. Chances of promotion are not conditions of service, but negation of
even the chance of promotion certainly amounts to variation in the
conditions of service attracting infraction of Articles 14 and 16 of the
Constitution of India. No employee has a right to particular position in
the seniority list but all employees have a right to seniority since the
same forms the basis of promotion.

17. An employee has always an interest to seniority and a right to be
considered for promotion. If after integration, only the chances of
promotion are affected, it would have been only a case of heartburn of an
individual or a few individuals which is only to be ignored, as held by
this Court in Tamil Nadu Education Department Ministerial and General
Subordinate Services Association and others v. State of Tamil Nadu and
others[4].

18. Instant is a case where there is complete denial of promotion forever
which cannot be comprehended under the constitutional scheme of Articles
14 and 16 of the Constitution of India. In this context, we shall refer
to a beautiful discussion on this aspect in S. S. Bola case (supra) at
paragraph 153. The relevant portion reads as follows:
“153. xxx xxx xxx xxx

 

 
AB. A distinction between right to be considered for promotion and an
interest to be considered for promotion has always been maintained.
Seniority is a facet of interest. The rules prescribe the method of
recruitment/selection. Seniority is governed by the rules existing as
on the date of consideration for promotion. Seniority is required to
be worked out according to the existing rules. No one has a vested
right to promotion or seniority. But an officer has an interest to
seniority acquired by working out the rules. The seniority should be
taken away only by operation of valid law. Right to be considered for
promotion is a rule prescribed by conditions of service. A rule which
affects chances of promotion of a person relates to conditions of
service. The rule/provision in an Act merely affecting the chances of
promotion would not be regarded as varying the conditions of service.
The chances of promotion are not conditions of service. A rule which
merely affects the chances of promotion does not amount to change in
the conditions of service. However, once a declaration of law, on the
basis of existing rules, is made by a constitutional court and a
mandamus is issued or direction given for its enforcement by preparing
the seniority list, operation of the declaration of law and the
mandamus and directions issued by the Court is the result of the
declaration of law but not the operation of the rules per se.”
(Emphasis supplied)

 

19. In the above circumstances, we set aside the judgment in appeal. The
absorbed employees of the Rural Electricity Cooperative Societies, having
due regard to their date of appointment/promotion in each category in the
respective societies, shall be placed with effect from the date of
absorption, viz., 15.03.2002 as juniors to the junior-most employee of
the Electricity Board in the respective category. Thereafter, they shall
be considered for further promotions as per the rules/regulations of the
MPSEB. All other principles/conditions of absorption shall remain as
such. However, it is made clear that on such promotions, in the
exigencies of service, the employee concerned would also be liable to be
transferred out of the circle, if so required.

 

20. The appellant accordingly shall be entitled to retrospective promotions
at par with and with effect from the dates on which the junior-most
graduate engineer in the parent service on the date of absorption
obtained such promotions. However, we make it clear that benefits till
date need to be worked out only notionally.

21. The appeal is allowed as above. There is no order as to costs.
..…….…..…………J.
(H. L. GOKHALE)

 

..……………………J.
(KURIAN JOSEPH)
New Delhi;
March 4, 2014.

 
———————–
[1] (1982) 1 SCC 379
[2] (1997) 8 SCC 522
[3] (2003) 11 SCC 614
[4] (1980) 3 SCC 97

———————–
REPORTABLE
———————–
10

 

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,904,298 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,870 other followers

Follow advocatemmmohan on WordPress.com