1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1312 OF 1998. Y.V.S.Venkojirao, Aged 57 years, Occ.Service as an Asstt. Engineer, R/o 1-8-686, Tulsi Nivas, Anandnagar, Nanded. ... Petitioner. Versus 1. The Maharahstr State Electricity Board, through its Secretary(Tech), Prakashgad, Bandra (East), Mumbai-400 051. 2. Superintending Engineer, Aurangabad (O & M Circle), Aurangabad. 3. Establishment Officer (3A), M.S.E.B. Prakashgad, Bandra(E), Mumbai. ... Respondents. ... Mr.H.A.Joshi, advocate holding for Mrs.Smita Deshpande, advocate for the petitioner. Mr.A.S.Shelke, advocate for the Respondent No.2. ... CORAM : B.R.GAVAI AND : S.V.GANGAPURWALA,JJ. Date : 27.07.2010. 2 ORAL JUDGMENT (Per B.R.Gavai,J.) 1. By the present petition, the petitioner is claiming that he is entitled for the first benefit of a higher pay scale with effect from 1.1.1982 and the second benefit from 1.4.1992. 2. The petitioner came to be appointed as Sub Engineer with the Respondent M.S.E.B. in the year 1965. The petitioner was promoted as Assistant Engineer in the year 1978. 3. According to the petitioner, the petitioner is entitled to the benefits of General Order No.111(p) dated 13.5.1982 i.e. a placement in the higher pay-scale on account of an employee being not promoted in higher grade due to certain reasons. 4. Vide the aforesaid General Order, the Respondent M.S.E.B. has provided for destagnation. The said provision provides that the benefit of higher pay-scale shall be granted to an employee after six years of service in one post. It is further provided that the benefit of 3 higher pay-scale should be granted only twice and that the second higher pay-scale will be given after six years of satisfactory service in the higher post. It is not in dispute that by subsequent amendment the period of six years has been now enhanced to nine years, for second benefit. 5. Mr.Joshi, learned counsel for the petitioner submits that in view of the aforesaid General Orders (supra) since the petitioner had been officiating in the cadre of Assistant Engineer with effect from 1978, he was entitled to the benefit under the destagnation scheme for a higher pay-scale with effect from September 1984. He submits that though subsequently the said benefit has been given from 1.4.1989, the benefit has been refused to the petitioner with effect from 1984 only on the ground that the petitioner's Confidential reports were not satisfactory. Relying on the judgment of the Apex Court in case of "Dev Dutt Vs. Union of India (UOI) and Ors." (2008) 8 SCC-725, Mr.Joshi, submits that if the promotional benefit is denied 4 to the petitioner on the basis of adverse confidential reports, it was necessary for the authorities to have communicated the same to the petitioner. He submits that in the absence of communication of the adverse Confidential reports, the same could not have been taken into consideration by the authorities for denying the benefit to the petitioner. 6. Mr.Shelke, learned counsel, on the contrary submits that the grant of benefit under the destagnation of wages is not automatic. He further submits that benefit could be granted only if the performance of the candidate is found to be satisfactory. He submits that since the petitioner's performance was not found satisfactory, he was not given benefit from 1984 and since in 1989, his performance was found to be satisfactory, the benefit is extended to him. He submits that the judgment relied on by the petitioner is of no assistance to the case of the petitioner inasmuch as the case before the Apex Court was regarding grant of promotion actual and not the promotional benefits in lieu of actual 5 promotion. 7. Sub-clause (3) of clause (4) would be relevant for considering the case at hand, which reads thus : "(3) Before an incumbent is given the higher scale as per this scheme, a competent selection committee of M.S.E.B. will assess his performance. Only when the Board is satisfied about the service/performance of the incumbent, he will be granted higher scale. In other words, the benefit of higher scale is not automatic." It can thus be seen that before giving the benefit of higher pay-scale, the Selection Committee of the M.S.E.B. is required to assess the performance of the candidate and only when the Board is satisfied about performance of the incumbent, he is entitled to be given higher pay- scale. 6 8. The only ground on which higher pay- scale is denied to the petitioner from the year 1984, as could be gathered from the affidavit-in- reply is as under : "The competent selection committee, after considering the confidential reports of the relevant periods, did not find the petitioner suitable for grant of higher grade from due date." It could thus be seen that only ground for denial to the higher pay-scale to the petitioner in lieu of actual promotion is adverse Confidential reports. 9. We are not much impressed to the contentions of Mr.Shelke, that the judgment of the Apex Court in the case of Dev Dutt Vs. Union of India (UOI) and others (supra) would not be applicable to the facts of the present case because the said judgment deals with actual promotion and not the promotional benefit in lieu of actual promotion. While considering a case of 7 actual promotion, the Respondent authority would always be entitled to assess performance of a candidate. Likewise, the provision which we have cited supra empowers to assess the performance of the candidate before giving benefit of higher pay-scale in lieu of promotion. The benefit of higher pay-scale is given to an employee as a destagnation measure, since on one count or the other he can not be promoted. In that view of the matter, we are unable to accept the contention of learned counsel for the Respondent that the principles laid down in the case of Dev Dutt would not be applicable to the present case. 10. The Apex Court in case of "Dev Dutt Vs. Union of India (UOI) and Ors."(2008) 8 SCC 725, cited supra has observed thus : "14. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the 8 military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no bench mark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a 'good' or 'average" or 'fair' entry certainly has less chances of being selected than a person having a 'very good' or 'outstanding' entry." The Apex Court has further observed : "28. In our opinion, our natural sense of what is right and wrong tells us that it was wrong on the part of the respondent in not communicating the 'good' entry to the appellant since he was thereby 9 deprived of the right to make a representation against it, which if allowed would have entitled him to be considered for promotion to the post of Superintending Engineer. One may not have the right to promotion, but one has the right to be considered for promotion, and this right of the appellant was violated in the present case." The Apex Court further observes thus : "39. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a 10 reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non- arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders." It has been further observed thus : "45. In our opinion, non- communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may 11 affect his chances for promotion or get other benefits (as already discussed above). Hence, such non- communication would be arbitrary, and as such violative of Article 14 of the Constitution." It can thus, be clearly seen that in case of Dev Dutt cited supra, the Apex Court in an unequivocal terms held that non-communication of an entry in the adverse Confidential Report of the public servant, has civil consequences because it affects the chances of candidate for promotion. 11. Admittedly, in the present case the benefits have been denied to the petitioner only on the ground that for the relevant period his Confidential Reports were not satisfactory. Had the petitioner been communicated the same adverse reports, he could have either made a representation against them or improved his performance which would have enabled him to be considered for grant of benefits at an earlier 12 point of time. We are of the considered view that in the light of the view taken by the Apex Court cited supra, the non-communication of the adverse reports had adversely affect the rights of the petitioner and denial of the benefits under the General order, only on that ground would not be sustainable in law. 12. In the result, we find that since the petitioner has completed six years from September 1978 in the cadre of Assistant Engineer, he is entitled for the first benefit under the General Order cited supra with effect September 1984. 13. In so far as the second benefit is concerned, we direct the Respondents to grant the benefit to the petitioner after the completion of nine years in the cadre in which he is placed as per the first benefit. It is needless to state that the benefit would not be denied solely on the ground that the Confidential remarks of the petitioner are not satisfactory, if the said remarks were not communicated to the petitioner. 13 14. Rule made absolute in aforesaid terms with no order as to costs. (S.V.GANGAPURWALA,J.) (B.R.GAVAI,J.) asp/office/wp131298