Judgment:
1...W.A.No.1220 of 2009 W.A.No.1266 of 2012 M.P.State Electricity Board & ORS.Gangadhar Dhokekar Pramod Kumar Nema 08.08.2013 Shri Anoop Nair, Counsel for the appellants.
Shri K.N.Pethia, Counsel for the respondent.
These appeals are arising out of a common order dated 24.9.2009 in W.P.No.1515 of 2007(S) by which an order issued by the appellants for withdrawing the benefit of higher pay scale granted to the respondents on the ground that the respondents could not clear the accounts training, was set aside.
The learned Single Judge has found that withdrawal of the aforesaid higher pay scale was not justified as the respondents had cleared the accounts training examination in second attempt which was permitted by the appellants and directed to continue, in the higher pay scale, to the respondents conferred by them vide order dated 28.9.2005 with all consequential benefits.
This order has been assailed by the appellants on grounds that vide order dated 19.7.1990 of the Electricity Board, the Board had granted the benefit of two options for higher pay scales to the class III & IV employees on completion of 9/18/25 years of service.
The aforesaid higher pay scale was payable to the respondents only after passing of accounts examination and until and unless the examination is passed by the respondents, they were not entitled for the higher pay scale.
The appellants have also referred clause (xxiv) of the same order which provide that such promotion can be held up for want of minimum qualifications of such employee and he shall not be eligible for higher pay scale.
It is submitted that in the light of the aforesaid order of the Board, the higher pay 2...W.A.No.1220 of 2009 W.A.No.1266 of 2012 M.P.State Electricity Board & ORS.Gangadhar Dhokekar Pramod Kumar Nema 08.08.2013 scale allowed to the respondents was rightly withdrawn as they could not clear the accounts training examination in the fiRs.attempt.
Shri Pethia, learned counsel appearing for the respondents has supported the order.
He has referred paragraph 7 and 8 of the impugned order in support of his contention and also to the circular and standing order dated 11.7.1990, which provides implementation of accounts training to an employee and clause (iii) of such circular provides that such an employee shall be entitled for three chances for passing of accounts training.
It is further submitted that the higher pay scale was granted to the respondents on an undertaking which is filed along with Annexure P-1 on page 66-A of the paper book and in view of the aforesaid undertaking, respondents had undergone the accounts training successfully, though in second attempt.
It was submitted that such higher pay scale was granted to the respondents on an undertaking that they shall clear the accounts training successfully in three attempts, then there was no question of withdrawing such pay scale merely on the ground that the respondents could not clear the same in fiRs.attempt.
To appreciate the rival contention, it would be appropriate to refer paragraphs 6,7 and 8 of the order passed by the writ Court in W.P.No.1514 of 2007(S) in which the factual position has been narrated:- 6.
In the present case, it is not in dispute that the petitioner was appointed in the year 1980 as Office Assistant Grade-III and was promoted to the post of Officer Assistant Grade-II vide order dated 19.4.1990.
The petitioner was 3...W.A.No.1220 of 2009 W.A.No.1266 of 2012 M.P.State Electricity Board & ORS.Gangadhar Dhokekar Pramod Kumar Nema 08.08.2013 considered on completion of 9 years of service for grant of higher pay scale and the fiRs.higher pay-scale was granted to the petitioner by an order dated 04.11.1999 with effect from 28.6.1999.
The benefit of second higher pay-scale was granted to the petitioner vide order dated 28.9.2005 and the same was withdrawn by the impugned order dated 28.6.2006.
The solitary reason assigned in the impugned order dated 28.6.2006 is that the petitioner has failed to qualify the Accounts Training Examination.
In the present case, the petitioner has successfully qualified the Accounts Training and a notification in support of the same is on record as Annexure P/8 dated 15.7.2006.
The petitioner was conferred the benefit of higher pay scale on account of a decision taken by the Board circulated vide order dated 19.7.1990.
The aforesaid decision of the Board has superseded all the previous circulars except the order dated 26.5.1990.
By virtue of the aforesaid executive instructions, the benefit of higher pay scale has to be conferred to class-III and class-IV employees.”
7. This Court has carefully gone through the aforesaid circular issued by the respondents/Board and the aforesaid circular does not provide that the higher pay-scale has to be given an employee on completion of the Accounts Training.
The aforesaid circular only provides that an employee who has been conferred the benefit of higher pay-scale has to clear the Accounts Training conducted by the Board.
not only this, the subsequent circular issued by the Board dated 29.8.2003, Annexure P/7 reads as under :- “ MADHYA PRADESH STATE ELECTRICITY BOARD //CIRCULAR// No.01-07/V/5/4581 Jabalpur dated 29.8.2003.
Sub: Imparting Accounts Training to O/A.Gr.I/SK.Gr.II and OA Gr.II.
The Board vide circular No.01-05/I/8 dated 30.01.89 has issued instructions that office Assistant shall be required to undergo 03 months Accounts Training one either at the level of OA Gr.II of OA Gr.I.Further in case of employees who were not promoted to the post of OS Gr.II after 01.01.89, it will be necessary for them to undergo 03 months Accounts Training and also pass the associated examination before they are considered from promoted to the next higher post of OA Gr.I/SK Gr.II or grant of higher pay scale.
The employes working as OA Gr.I/SK.
Gr.II as on 01.01.89 and who have not undergone accounts training as OA Gr.II or OA Gr.I shall be considered 4...W.A.No.1220 of 2009 W.A.No.1266 of 2012 M.P.State Electricity Board & ORS.Gangadhar Dhokekar Pramod Kumar Nema 08.08.2013 for promotion to the next higher post of Section Officer/Stock Verifier but will be required to undergone and pass 03 months Accounts Training before they are considered for promotion to the post of Administrative Office or Accounts Officer.
Further vide circular No.01-05/V/5140 dated 11.07.90 and No.01-07/V/F/13 dated 09.05.95 it was clarified that the availing the opportunity of Accounts Training and if any OA Gr.II/I fails to avail all the 4 chances then he/she would not be given further chances for undergoing Accounts Training and a note will be made to this effect in the Service Book/Confidential Report.
It is gathered that there are still a number of employees who have not undergone Accounts Training could not avail the opportunity for various reasons.
It has not been decided that employees who have been given 04 chances in the past but could not avail the opportunity may be given one more chance with the clear instructions to the controlling officers concerned that employees must be relieved to join Accounts Training whenever he/she is deputed for the same.
It should also be made very clear to them that this is the last chance given to them to clear the Accounts Training and if they fail to avail this opportunity they would do so at their risk and the consequences resulting out of this will have to be faced by them.
It is requested that the Board's decision stated above may be circulated amongst all concerned employees working under your jurisdiction.
BY ORDER
ADDITIONAL SECRETARY (P).M.P.State Electricity Board, Jabalpur dated 29.8.2003.”
The aforesaid circular makes it very clear that three chances are to be given to an individual to undergo the Account Training an in the present case, the petitioner has successfully qualified the Accounts Training in the second attempt.
The circular relied upon by the learned counsel for the respondents/Board dated 30th January,1989 also does not provide that the benefit of higher pay scale has to be conferred to an employee from the date he clears the Accounts Training.
The aforesaid circular provides that in case an employee has not cleared the Accounts Training, he shall not be considered for grant of subsequent higher pay-scale/subsequent promotion.
The aforesaid circular nowhere provides that the benefit of higher pay-scale to an employee has to be given from the date he has cleared the Accounts Training Examination.
5...W.A.No.1220 of 2009 W.A.No.1266 of 2012 M.P.State Electricity Board & ORS.Gangadhar Dhokekar Pramod Kumar Nema 08.08.2013 8.
Resultantly, as the petitioner has already qualified the Accounts Training Examination in the second attempt within the limit framed by the respondents/Board, the impugned order passed by the respondents is hereby quashed.
This Court has already granted an interim order on 07/02/2007 and by virtue of the aforesaid interim order the petitioner is continuing in the higher pay-scale granted to him, therefore, the petitioner shall continue in the higher pay-scale as conferred by the respondents vide order dated 28.9.2005 with all consequential benefits.”
Para (xv) and para (xxiv) of the order dated 19.7.1990 reads thus :- (xv) He has passed necessary examination prescribed if any by the Board required to be passed as per rules of the Board to get promotion to the higher grade.
(xxiv) In the case of employee, whose promotion to higher post is held up for want of minimum qualifications such employee shall not be eligible to opt for higher pay scale.”
The circular dated 11.7.1990 in respect of implementation of the accounts training, para (iii) provides thus :- “(iii) How many chance would be given to avail the opportunity of accounts training.
An G.A.Gr.
II/Gr.I would be provided only 3 chance for availing the opportunity of accounts Training.
If any one is unable to avail opportunity of training in the fiRs.offer he will be given two more chance in the subsequent batches.
If any OA Gr.II/O.A.Gr.I.if any avail all the 3 chances then he would not be given further undergoing the accounts training & a note to this effect will be made in his service record/confidential report.”
The undertaking which was obtained from the respondents, at the time of allowing training along with the option form dated 19.7.1990, reads thus :- “ FORM OF UNDERTAKING (order No.01-05/IWC/143 dated 19.7.1990) 6...W.A.No.1220 of 2009 W.A.No.1266 of 2012 M.P.State Electricity Board & ORS.Gangadhar Dhokekar Pramod Kumar Nema 08.08.2013 I, Gangadhar Hansraj Dhokeker, (full name) working as O.A.GR.II (Design.) in the office of Addl.
Secy.(P)II at Jabalpur (place of posting) have gone through the provisions of ord.No.01-05/I/WC/143 dated 19.7.1990 and while accepting the benefit of April in of higher pay scale under this order.
I hereby agree to the terms & conditions as stated therein.
I further hereby give an undertaking that on my absorption against the regular post I shall join the post at the place of my posting and on my refusal to do so, I shall forfeit the benefit under aforesaid order and shall stand reverted to my original lower grade of OA Gr.II and shall draw pay which I would have given drawn had.
I not been given benefit of this order.
Sd/- Jabalpur Signature of the employee date:
12. 2.1998 Name: Gangadhar Dhokeker Design:OA Gr.II Office to which Addl.
Sec.
Attached (P)II,MPEB,JBP Undertaking for grant of Higher pay scale (As per Circular No.01-02/V/33 dated 31.3.1997) I, Gangadhar Dhokekar, O.A.GR son of Shri Hansraj Dhokekar, attached to the O/o the Addl.
Sec.(P)II MPEB, JBP was appointed to the post of OA Gr.II w.e.f 15.04.1989.
I have applied for grant of higher pay scale of OA Gr.I, under 9 yeaRs.rules (1st/2nd Option) w.e.f.16.04.98 but I have not undergone and passed 3 months accounts Training, which is a prerequisite condition for grant of higher pay scale of OA.GR.I, to the OA.Gr.II promoted after 01.01.89.
I, hereby undertake that if, the higher pay scale as applied for by me is granted by the Board I will undergo 3 months accounts Training as and when deputed and also pass the associated examination, and on my failure to undergo training and pass the associated examination, the Board shall be at liberty to withdraw the higher pay scale granted to me from the date of issue of the order deputing me for accounts Training.
Jabalpur.
Sd/- Signature of the employee 7...W.A.No.1220 of 2009 W.A.No.1266 of 2012 M.P.State Electricity Board & ORS.Gangadhar Dhokekar Pramod Kumar Nema 08.08.2013 Name: Gangadhar Dhokeker Design:OA Gr.II Ofice to which Addl.
Sec.
Attached (P)II,MPEB,JBP From the perusal of the aforesaid, it is apparent that such higher pay scale was allowed to the respondents on a condition that they shall pass accounts training successfully.
As per the circular dated 11.7.1991, three opportunities could have been allowed to the employee to pass accounts training successfully.
In this case, the respondents have undergone the accounts training as was permitted to them by an order issued by the appellants which is filed as Annexure P-9 dated 7.5.2005 by which the respondents were permitted to appear in 47th batch of Accounts Training and it appears that the respondents had cleared the aforesaid accounts training successfully.
not the only question arises that whether the respondents were under an obligation to clear the accounts training in fiRs.attempt or any succeeding attempt provided in this regard was sufficient to avail the benefit of higher pay scale.
None of the parties has produced before us the initial order by which the said higher pay scale was allowed to the respondents.
The conditions of the aforesaid orders are not before this Court but from the perusal of the undertaking which was furnishing by the respondents before the appellants stipulates that the respondents shall undergo accounts training and in case they fail to undergo accounts training successfully, the Board shall be at liberty to withdraw the higher pay scale.
In this case it is not in dispute that as per Annexure P-9, the respondents had appeared in the second attempt for the accounts training in 8...W.A.No.1220 of 2009 W.A.No.1266 of 2012 M.P.State Electricity Board & ORS.Gangadhar Dhokekar Pramod Kumar Nema 08.08.2013 which they were successful.
Once they had appeared in the accounts training as per the permission granted by the Board and remain successful in accounts training, then there is no question of withdrawal of the higher pay scale.
After considering the aforesaid, if the learned Single Judge has allowed the writ petition, no fault is found.
Both the appeals are found without merit and are dismissed, with no order as to costs.
(Krishn Kumar Lahoti) (Alok Aradhe) Acting Chief Justice Judge vj