IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIRST DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO : 242 of 2004 Between: Khaja Muniruddin, s/o Khaja Hameeduddin, D-9, City-III, South Circle, APCPDCL, Hyderabad. ..... PETITIONER AND 1 A.P. Central Power Distribution Co. Ltd., rep. by its Chairman & Managing Director, Singareni Bhavan, Red Hills, Hyderabad. 2 The Superintending Engineer (Operation), Operation Circle (South), A.P. Central Power Distribution Co. Ltd., Mint Compound, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ or order or direction, especially one in the nature of Writ of Mandamus- (i) declaring the action of the respondents in not promoting the petitioner to the post of Additional Assistant Engineer as illegal and arbitrary; (ii) Consequently, direct the respondents to promote the petitioner as Additional Assistant Engineer on par with his Juniors duly considering the period of E.O.L. from 25-4- 1998 to 26-3-2003 as 'Qualifying Service', and (iii) Pass any such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.K.VASUDEVA REDDY Counsel for the Respondent No.: P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court made the following : THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.242 OF 2004 ORDER: The petitioner, a Sub-Engineer in the Central Power Distribution Company of Andhra Pradesh Limited (for brevity, ‘the APCPDCL’), is aggrieved by it’s action in not promoting him to the post of Additional Assistant Engineer and seeks a consequential direction to promote him to the said post on par with his juniors, duly considering the period of extraordinary leave availed by him from 25.04.1998 to 26.03.2003 as “qualifying service”. The petitioner was appointed as a Lineman Trainee on 27.01.1992 and thereafter, as a Sub-Engineer on 17.06.1993 in the service of the erstwhile Andhra Pradesh State Electricity Board (for brevity, ‘APSEB’). Upon the splitting of the APSEB into APTRANSCO, APGENCO and Distribution Companies, the petitioner’s services were allotted to the APCPDCL. The Rules and Regulations of the erstwhile APSEB are applicable to the Distribution Companies, including the APCPDCL. Under BPMS No.34 dated 12.05.1997, the erstwhile APSEB had issued orders for grant of extraordinary leave to it’s employees to take up employment abroad. BPMS No.34, to the extent it is relevant for the purposes of this case, reads as hereunder: “2. After careful examination, the Andhra Pradesh State Electricity Board has decided to follow a uniform liberal policy in the matter of permitting Board employees irrespective of categories to which they belong i.e. Technical/Non-Technical or Clerical to secure and accept jobs abroad and issues the following orders:- i) Board employees desirous of seeking jobs abroad, irrespective of categories to which they belong technical/non- technical or clerical be permitted to apply and secure employment abroad without applying for voluntary retirement or resigning from service. However, such of those scarce categories of staff/officers whose services are considered essential to the Board shall not be permitted to secure job abroad. ii) The period of absence during employment abroad will be treated as extraordinary leave without allowances but, such period of absence will not be construed as a break in service. It will not be counted for service benefits such as increment, pay, leave etc. However, if contribution towards pension is paid by the foreign employer or employee such periods will count for pension. iii) That no Board dues are pending recover from the Board employee. iv) That no prosecution is pending or contemplated in Court of Law against the Board employee. v) If the absence of the employee exceeds five years he ceases to be a Board employee. vi) On return from leave the Board employee shall not claim any preference over others in their parent unit for promotion or higher pay by virtue of the experience gained in foreign employment.” In pursuance of the above policy of the erstwhile APSEB, the petitioner availed extraordinary leave to pursue job opportunities abroad. He applied for leave from 25.04.1998 in this regard and reported back for duty on 20.02.2003, i.e., prior to the expiry of five years stipulated under clause 2(v) of BPMS No.34, i.e. 26.03.2003. Thereafter, the APCPDCL took up promotions to the post of Additional Assistant Engineers, which is a promotion post based on seniority alone. As per the APSEB Service Regulations Part-III, a minimum service of eight years in the feeder cadre of Sub-Engineer is required for promotion to the post of Additional Assistant Engineer. The petitioner was denied promotion to the post though his contemporaries and juniors were promoted. Aggrieved thereby, he made representations dated 31.03.1998, 20.02.2003 and 05.05.2003 but to no avail. Hence, the writ petition. In it’s counter, the respondent Company, while accepting that the Rules required a minimum service of eight years in the feeder cadre for promotion to the post of Additional Assistant Engineer, contended that the petitioner had not completed the same as the period of extraordinary leave availed by him had to be excluded while reckoning his total service. Reliance was sought to be placed on clause 2(vi) of BPMS No.34 in this regard. The APCPDCL therefore sought to justify the denial of promotion to the petitioner on the sole ground of his alleged ineligibility. Heard Sri K.Vasudeva Reddy, learned counsel for the petitioner and Sri P.R.Balarami Reddy, learned standing counsel for APCPDCL. A plain reading of BPMS No.34 indicates that the erstwhile APSEB, being desirous of adopting a uniform liberal policy in the matter of permitting it’s employees to take up employment abroad, formulated the guidelines contained therein. Clause 2(i) demonstrates that such employees were not required to apply for voluntary retirement or resign from the service to avail such employment opportunities abroad. Clause 2(ii) makes it clear that the period of absence during the employment abroad would be treated as extraordinary leave without allowance. It further clarifies that the period of absence would not be construed as a break in service but at the same time, would not be counted for service benefits, such as, increment, pay, leave, etc. Clause 2(v) specifies that the extraordinary leave should not exceed five years failing which the employee would cease to be a Board employee. Clause 2(vi) states to the effect that such an employee would not be given any preference basing upon the experience gained by him due to such foreign employment in the matter of promotion or higher pay. BPMS No.34, as extracted herein above, clearly demonstrates that it was not contemplated that the extraordinary leave availed by an employee for undertaking employment abroad should be deleted and not taken into account for computing the total period of his service. Clause 2(ii) puts it beyond doubt by stating that the absence during the period of extraordinary leave would not be construed as a ‘break in service’. Thus, for all practical purposes, an employee who avails extraordinary leave for undertaking employment abroad in terms of BPMS No.34 is deemed to have continued in the service of the Board, except for the limited service benefits denied to him, such as, increment, pay, leave, etc. The reliance sought to be placed by the APCPDCL on clause 2(vi) is completely misconceived in as much as the said clause denies preference being extended to such an employee in the matter of promotion or higher pay and does not aid the stand of the APCPDCL that the period of extraordinary leave should be excluded in computing the total period of service of such employee. The interpretation sought to be placed upon BPMS No.34 by the APCPDCL is therefore contrary to its very language and purport. The action of the APCPDCL in denying the petitioner his due promotion on the ground that he was ineligible, by excluding the period of extraordinary leave availed by him under BPMS No.34, is therefore unsustainable. The writ petition is accordingly allowed directing the respondents to promote the petitioner as an Additional Assistant Engineer on par with his juniors duly taking into account the period of extraordinary leave availed by him under BPMS No.34 dated 12.05.1997. In the circumstances, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. 21st August, 2009. VGSR / PGS