1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.151 OF 1997 Arun Ganpat Walke .. Petitioner Vs. The Maharashtra State Electricity Board through its Chairman .. Respondent Mr.D.K.Ghaisas for the petitioner None for the respondents CORAM : J. N. PATEL & K. K. TATED, JJ DATE : 17/02/2010 ORAL JUDGMENT (PER J.N.PATEL, J) : 1. Heard. 2. The petitioner seeks to challenge the office order dated 21.03.1988 by virtue of which the petitioner came to be reverted to the post of Computer Operator and posted in EDP Section, Head Office, Bombay. 3. It is the case of the petitioner that w.e.f. 17.06.81, he has been working as a Computer Operator with the respondent and posted at Bombay and he 2 was at Serial No.1 in order of seniority. According to the petitioner, by order dt. 20.01.87 issued under GAD/II-A/2699, issued by the Deputy Establishment Officer, the petitioner came to be promoted to the post of Shift-in-Charge and was posted at Pune EDP Centre of the respondent. It is the case of the petitioner that while he was working as Shift-in- Charge, the respondent on 29.7.87 issued a Circular under No.AD/EDP/CO-28/4740 inviting applications for the post of Senior System Officer and as the petitioner was qualified and eligible for the post of Senior System Officer, on 10.08.87, the petitioner submitted his application for the said post. It is submitted that the higher officials of the petitioner were against the petitioner s applying for the said post of ’ Senior System Officer as the petitioner would have got that post within a very short span of service as Shift-in-Charge and that the petitioner s’ record both in the cadre of Computer Operator as well as in the cadre of Shift-in-Charge was almost satisfactory and there were no any adverse remarks, much less communicated to the petitioner about his work in both the categories. The petitioner came to be reverted to the post of Computer Operator by order dt.21.3.88 while the petitioner was awaiting his transfer from Pune to Bombay on the ground of family problem. 4. It is the case of the petitioner that on receiving the said order dt.21.3.88 the petitioner preferred an appeal against the reversion on 12.9.88, made representations to higher officials and concerned Minister of the State 3 Government but except for assurances given to him, no steps were taken to redress the grievances of the petitioner and it is only on 21.12.96 by office order no.205 that the petitioner again came to be promoted as Shift-in-Charge and was posted at Computer Centre, Akola. It is the case of the petitioner that he has been agitating the issue for so many years and as he did not get justice, he has filed this petition. 5. On the other hand, it is the contention of the respondents that the petitioner was temporarily promoted as Shift-in-Charge and posted at EDP Centre at Pune with the approval of Head of Department but without being selected by competent selection Committee as there was no separate EDP cadre in existence and no qualifications were prescribed for the post of Shift-in-Charge or other post and as the petitioner s service ’ was not satisfactory, the petitioner was reverted back to the original post as Computer Operator at Mumbai by Order No.10475 dated 21.3.88 and on receiving the order, the petitioner joined at Mumbai on 11.5.88 as Computer Operator and has not made any issue of the same for last 8 years and, therefore, the petitioner having accepted his post as Computer Operator at Mumbai and having joined the post, cannot be heard after lapse of 8 years. 6. It is the contention of the respondent that the Electronic Data Processing (EDP) department of respondent came into existence in 1975 with one 4 centre at Mumbai for purpose of computerizing the consumer billing work and this was expanded in phased manner by starting centres at various places viz. Pune, Nagpur, Aurangabad, Kolhapur and Nasik. Initially a decision was taken to train its own employees who were willing to work in EDP department and accordingly some of the employees of respondent who were willing to work in EDP department were transferred in EDP department on Ex Cadre basis who retained their lien in their parent cadre and few were directly recruited. As the EDP department was new department, there was no EDP cadre staff set up till 1992 and therefore, in order to streamline the working of the EDP department, the respondent board decided to form a separate EDP Cadre and accordingly correction slips no.215, 44 and 358 dated 3.6.92 and G.O. 128(P) dated 4.7.92 were issued by respondent Board detailing the EDP Cadre staff set up resulting in complaint being filed by the employees Union namely Maharashtra Vidyut Mandal Kamgar Sangh restraining the respondent Board from giving effect to the G.O. 128(P) dated 4.7.92 and other correction slips issued in that behalf. But the said complaint was finally dismissed by Industrial Court, Mumbai vide order dt.26.8.93 as well as by the High Court vide order dated 27.10.93 in Writ Petition No.3504 of 1993. It is thereafter in 1993, the qualifications, pay scale and other prerequisite for recruitment and promotion in EDP cadre came to be made as per the G.O. 128 (P) dated 4.7.92. 5 7. The learned counsel appearing for the petitioner submitted that the contention of the respondent that the petitioner came to be reverted from the post of Shift-in-Charge to the post of Computer Operator as during the relevant time, performance of the petitioner was not satisfactory is not correct. It is submitted that nothing is placed on record to show that at any stage, the petitioner was communicated any adverse remarks which would go to show that the petitioner s performance was ’ not satisfactory. On the other hand, the petitioner was granted an increment as per Regulation 31 of the Employees Service Regulation of the Board. 8. It is further contended by the learned counsel that the petitioner has sufficiently explained as to why he could not approach the court as soon as he was served with the reversion order, as the petitioner has preferred an appeal to the Secretary as well as made representations to the Hon ble Chairman of the respondent. The petitioner also had made ’ representations to the Minister in-charge in the matter and therefore, this cannot be a reason to deny the relief sought for in the petition particularly when this court as admitted the petition. 9. The office order dt.20.1.87 clearly provides that the employees working in EDP Section at Bombay are hereby promoted to officiate in the posts and posted to the place as shown here below in Column No.4 & 5 below 6 and that the petitioner s name is at Serial No.1 which is shown as under: ’ Sr. No. Name Present designation & pay scale Promoted to the post and pay scale Posted at 1. Shri A.G. Walke Computer Operator, Bombay Rs.1060-55-1830 Shift-in-charge Rs.1550-70-2390 Pune EDP Centre 10. The order also records that their promotion is on purely temporary basis until further orders and without prejudice to the seniority and claims of others, if any and as the petitioner was posted within Bombay, he was found eligible for T.A. on transfer, joining time pay and allowance etc. Therefore, there cannot be any doubt that the petitioner had no substantive right to hold the post of Shift-in-Charge by way of promotion. 11. It is true that the office order dt.21.3.88 impugned in this petition under which the petitioner came to be reverted to the post of Computer Operator and posted in EDP Section, Head Office, Mumbai does not spell out any reason for his reversion and transfer to EDP Section, Head Office, Mumbai but in the affidavit in reply, the respondents have admitted that the petitioner was reverted from the post of Shift-in-Charge to the post of Computer Operator vide order dt.21.3.88 as the petitioner s performance ’ was not satisfactory and, therefore, the petitioner has contended that his reversion was by way of punishment and, therefore, bad in law for the reason that the petitioner was not given any opportunity to offer 7 explanation as he was not communicated any adverse remarks. In our view, even if it is accepted that the petitioner was not communicated any adverse remarks about his performance, order of reversion to the original post of Computer Operator and posting him in the said cadre at Mumbai cannot be faulted with for the simple reason that the promotion of the petitioner was purely temporary in nature, and the reversion was not penal. Further, it has not deprived the petitioner of his seniority in the cadre and future prospects of promotion or in breach of any constitutional or statutory rights governing the service conditions of the petitioner, therefore, not amenable to judicial review. 12. The petitioner has alleged bias and malafides against higher officials of the respondent Board in reverting him so that the petitioner does not get promoted to the next higher post of Senior System Officer. Except for making such bald allegations, the petitioner has not been able to substantiate his claim and how it helps the petitioner in assailing the reversion order by specific pleading and by joining such high officials as party respondents. 13. The petitioner also did not initiate any proceedings which challenges reversion for the period of almost 8 years without any justification. The mere fact that the petitioner preferred an appeal made representations to various authorities by itself would not justify the delay on the part of the 8 petitioner in filing this petition but as this court has admitted the petition, we find that on merits also the petitioner does not have any case. The petitioner has been promoted after the respondent board decided to form a separate EDP department and it is after 1993 the qualifications, pay scale and other prerequisite for recruitment and promotion in EDP cadre came into existence vide G.O. 128 (P) dated 4.7.1992. It appears that as the petitioner was working as Computer Operator which falls in Operating Wing, he came to be promoted as Shift-in-Charge by following proper procedure. 14. The contention of the petitioner that he was given one increment under Regulation No.31 of the Employees Service Regulation of the Board is specifically denied by the respondent and it is their contention that the increment which came to be given to the petitioner was under service Regulation No.30 of the M.S.E.B. Service regulations and not under Regulation 31. Regulation 30 of the M.S.E.B. Service Regulations provides that an increment in a time scale normally shall become due on the first day of the month in which it falls due on expiry of the incremental period and shall be drawn as a matter of course accordingly unless it is withheld as a measure of punishment or due to non fulfillment of any of the prescribed conditions and therefore, it is quite clear that the increment which was given to the petitioner was drawn as a matter of course when it had become due and not under Regulations 31 as 9 contended which governs the period the persons are on probation while they are appointed or promoted to the post. 15. Therefore, it can be seen that merely because the petitioner was given an increment does not necessarily mean that his promotion to the post was in order and his performance was satisfactory. Therefore, we do not find any merits in the petition. 16. Petition is dismissed with no order as to costs. ( J. N. Patel, J) ( K. K. Tated, J)