Chhattisgarh Vidyut Mandal Abhiyanta Sangh, v. Chhattisgarh State Power Holding Company Ltd.

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (S) No.993 of 2008 Chhattisgarh Vidyut Mandal Abhiyanta Sangh, registered Society & Association of Engineers working in CG State Electricity Board, duly registered by the Registrar, Firms & Societies, bearing Regn. No.CG/197, through its Zonal Representative and authorized signatory Sharad Shrivastava, S/o Late Shri B.B. Shrivastava, aged 51 years, Occupation Service, Presently posted Additional Superintending Engineer (Communication), CSEB, Bilaspur (C.G.) ---- Petitioner

Versus

Chhattisgarh State Power Holding Company Ltd., Having its Registered Office at Sewa Bhawan, Dangniya, Raipur (C.G.) Through its Managing Director ---- Respondent For Petitioner:

Mr. Ashish Shrivastava, Advocate.

For Respondent:

Mr. B.D. Guru, Advocate.

Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 10/08/2018

1. The petitioner, which is an Association named and styled as Chhattisgarh Vidyut Mandal Abhiyanta Sangh, filed this writ petition claiming that members of the petitioner Association, who have been promoted on the posts of Executive Engineer and Superintending Engineer by order dated 7-5-1999 under the Time Bound Promotion Scheme (TBPS) issued by the erstwhile Electricity Board on 17-31999, be granted the benefit of seniority from the date of granting time bound promotion to them under the TBPS policy dated 17-3-1999.

2. Mr. Ashish Shrivastava, learned counsel for the petitioner Association, would submit that members of the petitioner Association have been granted the benefit of time bound promotion scheme from 7-5-1999, but they have not been given seniority from the date of their TBPS promotion on 7-5-1999 and they have been given seniority from the

subsequent date as such, they are entitled for seniority from the date of their promotion dated 7-5-1999.

3. Mr. B.D. Guru, learned counsel for the respondent, would submit that the petitioner Association is not entitled to file the instant writ petition without indicating for whose benefit the writ petition has been filed, even the names of Assistant Engineers and Superintending Engineers who are claiming seniority have not been mentioned in the writ petition separately. Even the service dispute is purely personal to a particular officer and it cannot be generalised to a petition, that too by an Association. Even otherwise, the TBPS policy clearly provides that the person promoted under the said scheme / policy will be only entitled for higher grade and he will be entitled for seniority once he is absorbed and he assumes the charge on the said post, as such, the writ petition is not maintainable and deserves to be dismissed.

4. I have heard learned counsel for the parties and considered the rival submissions made herein-above and also went through the record with utmost circumspection.

5. In order to decide the plea raised at the Bar, it would be appropriate to consider the meaning of Time-Bound Promotion. Time-bound promotion is a grant of higher pay scale to the persons holding the post as on account of large number of employees who are not likely to get their promotion in the near future because of their comparatively low position in the seniority list and in order to relieve frustration among them, the employees are to be given a higher grade in terms of emoluments while retaining them in the same category. Such a timebound promotion does not affect the normal seniority of those higher up.

6. The Supreme Court in the matter of Dwijen Chandra Sarkar and

another v. Union of India and others 1 highlighting the object of timebound promotions pertinently observed as under:- "11. However, the position in regard to "time-bound" promotions is different. Where there are a large number of employees in any department and where the employees are not likely to get their promotion in the near future because of their comparatively lowposition in the seniority list, the Government has found it necessary that in order to remove frustration, the employees are to be given a higher grade in terms of emoluments - while retaining them in the same category. This is what is generally known as the time bound promotion. Such a time-bound promotion does not affect the normal seniority of those higher up."

7. The Supreme Court in the matter of Union of India and others v. M. Mathivanan2 followed the principles laid down in Dwijen Chandra Sarkar (supra) with approval.

8. In the matter of Sanjay K. Sinha-II and others v. State of Bihar and others3, Their Lordships of the Supreme Court have held that in order to become a member of the service the person concerned has to satisfy at least two conditions - first, appointment must be in substantive capacity, and second, the appointment has to be to the post in the service according to the Rules and within the quota to a substantive vacancy.

9. Finally, in the matter of Sunaina Sharma and others v. State of Jammu and Kashmir and others 4 the Supreme Court has held that normally seniority must be reckoned only from the date person entered into service after noticing the earlier judgments on the point and held as under:- "15. From the judgments referred to hereinabove it is apparent that the normal rule is that a person is entitled to seniority only from the date when the said person actually (1999) 2 SCC 119 (2006) 6 SCC 57 (2004) 10 SCC 734 (2018) 11 SCC 413

joins the post. True it is, that there are exceptions and sometimes "in service" candidates can be granted promotion from a date anterior to their being regularly promoted/appointed. However, this can be done only if the rules enable retrospective appointment and on fulfilling the other requirement of the Rules."

10. After having noticed the meaning and purport of Time-Bound Promotion and principles governing grant of seniority, reverting to the facts of the present case, it is quite apparent that members of the petitioner Association, for whose benefit the writ petition has been filed, have not been named anywhere in the writ petition nor any document has been filed in that respect along with the writ petition indicating that they are the affected persons and for redressal of their grievance, this writ petition has been filed. The benefit of time bound promotion has been granted by the then M.P. Electricity Board by order dated 7-5-1999 and the present writ petition has been filed on 72-2008 by the Association. It has conveniently been declared in para 4 of the writ petition that there is no delay in preferring the writ petition, whereas in the matter of seniority, prompt filing of writ petition is imperative, as issuing any direction to grant seniority at the belated stage will unsettle the settled matter, as such, the writ petition suffers from delay and laches.

11.The Time Bound Promotion Scheme policy dated 17-3-1999 states as under: - मधयपदशववदतमणडल आदश कममक-01-13/3676/397 जबलपदर, वदनमक-17/03/1999 मणडलमवववभनशदणणकदअवभयनतमओमतथमरसमयनजजकदपददनवतमवतरममनम हदनदवमलदववलमबकदधयमनमरखतदहएमणडलदमरमससदमतरपसदवनमनसलसखतवनणरय सलयदगयदहह-

(1) वरककसदवमकदपशचमतऐसदसभणयहमयकअवभयनतम/ पमलणरसमयनजजकद कमयरपमलनअवभयनतम/ वररषरसमयनजकमउचचतरवदतनममनपदमयहदनदपरपदकम नमम सहमयक अवभयनतम/ पमलण रसमयनज म "

अवतररक कमयरपमलन अवभयनतम/ "

अवतररकवररषरसमयनज वकयमजमवम। इसबदलदहएपदनममकद पशचमतभणवदकमयरसहमयकअवभयनतम/ पमलणरसमयनजकमहणकमयरकरतदरहमगदतथम वदतनतथमअनयभतजमभणइसपररववतरतपदनममकमकदईपभमवनहहपडदगमसमथ हणइससदसहमयकअवभयनतमअज/ पमलणरसमयनजजककवररषतमसचणएवमवररषतमपर भणकदईपभमवनहहपडदगम। (2) उपरदकनयदपदनमम"

अवतररककमयरपमलनअवभयनतम/ "

अवतररकवररषरसमयनज कदशदणणएककमपदममनमजमवदगम। (3) वरककसदवमकमलकदपशचमतऐसदकमयरपमलनअवभयनतमअज/ वररषरसमयनजजकद, अधणकणअवभयनतम/ मदखयरसमयनजकमउचचतरवदतनममनपमपहदनदपर, पद-नमम "

अवतररकअधणकणअवभयनतम/ अवतररकमदखयरसमयनज"

करवदयमजमवद।पदनममपररवतरनजसमवकइमवगतवकयमजमचदकमहज, वकसणभणअनयसदवमसमबमधण शतरम/ मददजकदपभमववतनहहकरदगम। 2.

उपरदकवनणरयजकदसमथसमथवनमनमनदसमरनणवतवनधमररणभणवकयमगयमहजह- 01/ पवशकणअवसधवमलमकर15 वरककसहमयकअवभयनतम/ पमलणरसमयनजजकदपद परसदवमअवसधपसणरकरचदकदअवभयनतमअज/ रसमयनजजकदपदउचचणककतकर कमयरपमलनअवभयनतम/ वररषरसमयनजकदपदपरपददनवतपदमनककजमवदगण।इसण पकमरपवशकणअवसधवमलमकरकदल23 वरककसदवमअवसधपसणरकरचदकदसहमयक अवभयनतम/ पमलणरसमयनजकदपदसदकमयरपमलनअवभयनतम/ वररषरसमयनजजकमदपद उचचणककतकरअधणकणअवभयनतम/ मदखयरसमयनजकदपदपरपददनवतपदमनकक जमवदगण। 02/ वतरममनमसजनसहमयकअवभयनतमओमकदकमयरपमलनअवभयनतमकदपदपरउपरदक वनणरयकदफलसवरपपददनवतहदगणउनहमवदतणयउचचतरवदतनममन18 वरककसदवम पसणरकरनदककवदनमकसद( अथवमबमदकदउसवदनमकसदसजससदवदअपनमववकलप पसतदतकरम) वदयमजमवम। 3.

उपरदकवनणरयजकदकमयमरनवयनहदतदयथदवचतवनयम/शतरम/ वनदरशअलगसदजमरणवकयद जमवमगद। आदशमनदसमर सहण/- हसतमकरअसपष सवचव, मधयपदशववदतमणडल, जबलपदर

12. The aforesaid clause of the policy clearly states that time bound

promotion would not affect the seniority and gradation and it will be as per their substantive post and the officers promoted under this scheme will be remain posted in their respective posts.

13. In view of the aforesaid clause in the policy itself and in view of the settled legal position, officers promoted under the TBPS policy are not entitled for seniority from the date of their promotion under the TBPS policy on the posts of Executive Engineer and Superintending Engineer. In view of the above, as the petition suffers from delay and laches and is also not maintainable at the instance of Association, I do not find any merit in the petition. The writ petition deserves to be and is accordingly dismissed leaving the parties to bear their own cost(s). Sd/- (Sanjay K. Agrawal) Judge Soma