Madhya Pradesh High Court

Naresh Chandra Pawar vs The State Of Madhya Pradesh on 3 April, 2019

1 W.P. No.14594/2014 and other connected matters

IN THE HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR

Case No. W.P. No.14594/2014
Parties Name Ram Sajeevan Tiwari
vs.
State of MP and others

W.P. No.19666/2014
Ram Vilash Patel
vs.
State of MP and another

W.P. No.10719/2014
Praveen Kumar Tiwari
vs.
State of M.P. and others

W.P. No.849/2015
Ashutosh Prasad Mishra
vs.
State of MP and another

W.P. No.5898/2015
Surya Prakash Pandey
vs.
State of MP and others

W.P. No.6233/2015
Amar Singh Thakur
vs.
State of MP and others

W.P. No.6694/2015
Kanhai Prasad
vs.
State of MP and others

W.P. No.6812/2015
Nagendra Nigam
vs.
State of MP and others

W.P. No.6889/2015
Ramjiyawan Verma
vs.
State of MP and others

W.P. No.6890/2015
2 W.P. No.14594/2014 and other connected matters

Ramayan Prasad Shukla
vs.
State of MP and others

W.P. No.7010/2015
Moti Lal Verma
vs.
State of MP and others

W.P. No.7022/2015
Lalita Bai
vs.
State of MP and others

W.P. No.7029/2015
Munna Lal Sharma
vs.
State of MP and others

W.P. No.7811/2015
Rohni Prasad Mishra
vs.
State of MP and others

W.P. No.7812/2015
Vishwanth Singh
vs.
State of MP and others

W.P. No.7813/2015
Yadvendra Singh
vs.
State of MP and others

W.P. No.7814/2015
Usha Singh
vs.
State of MP and others

W.P. No.7816/2015
Darshan Lal Sharma
vs.
State of MP and others

W.P. No.7817/2015
Bharat Sharan Sharma
vs.
State of MP and others
3 W.P. No.14594/2014 and other connected matters

W.P. No.7917/2015
Smt. Kanti Devi Verma
vs.
State of MP and others

W.P. No.7920/2015
Yagyasen Patel
vs.
State of MP and others

W.P. No.8704/2015
Vanshroop Verma
vs.
State of MP and others

W.P. No.10376/2015
Ashok Kumar Pandey
vs.
State of MP and others

W.P. No.10522/2015
Mohd. Nabab Khan
vs.
State of MP and others

W.P. No.10524/2015
Brajlal Raikwar
vs.
State of MP and others

W.P. No.10525/2015
Rakesh Kumar Jain
vs.
State of MP and others

W.P. No.10743/2015
Tulsiram Sen
vs.
State of MP and others

W.P. No.12002/2015
Laxmi Narayan Sharma
vs.
State of MP and others

W.P. No.12133/2015
Chhotelal Verma
vs.
State of MP and others
4 W.P. No.14594/2014 and other connected matters

W.P. No.12994/2015
Todulal Dhamgaye
vs.
State of MP and others

W.P. No.14415/2015
Shriram Vishwakarma
vs.
State of MP and others

W.P. No.14610/2015
Ayodhya Prasad Verma
vs.
State of MP and others

W.P. No.17341/2015
Jugul Kishore Verma
vs.
State of MP and others

W.P. No.17719/2015
Santosh Kumar Soni
vs.
State of MP and others

W.P. No.17736/2015
Pushpendra Kumar Pandey
vs.
State of MP and others

W.P. No.17906/2015
Sharad Kant Khare
vs.
State of MP and others

W.P. No.17913/2015
Suryadeen Bharti
vs.
State of MP and others

W.P. No.18286/2015
Shashi Prabhakar Shukla
vs.
State of MP and others

W.P. No.18566/2015
Jai Pal Rajpoot
vs.
5 W.P. No.14594/2014 and other connected matters

State of MP and others

W.P. No.18657/2015
Ram Sajeevan Verma
vs.
State of MP and others

W.P. No.19099/2015
Alla Bhasori
vs.
State of MP and others

W.P. No.20146/2015
Kishori Lal Verma
vs.
State of MP and others

W.P. No.20147/2015
Ganesh Prasad Pandey
vs.
State of MP and others

W.P. No.20151/2015
Kamlesh Kumar Namdeo
vs.
State of MP and others

W.P. No.20178/2015
Shyam Lal Sharma
vs.
State of MP and others

W.P. No.20284/2015
Praveen Kumar Tiwari
vs.
State of MP and others

W.P. No.20438/2015
Ram Kumar Tiwari
vs.
State of MP and others

W.P. No.20894/2015
Mani Raj Bharti
vs.
State of MP and others

W.P. No.21970/2015
Ram Khilawan Verma
6 W.P. No.14594/2014 and other connected matters

vs.
State of MP and others

W.P. No.21973/2015
Shobnath Kushwaha
vs.
State of MP and others

W.P. No.21974/2015
Rajneesh Kumar Dwivedi
vs.
State of MP and others

W.P. No.22263/2015
Santosh Kumar Verma
vs.
State of MP and others

W.P. No.22357/2015
Ram Narayan Mishra
vs.
State of MP and others

W.P. No.22359/2015
Ramdhar Verma
vs.
State of MP and others

W.P. No.22400/2015
Chhote Lal Kushwaha
vs.
State of MP and others

W.P. No.22401/2015
Sampati Kumar Dahiya
vs.
State of MP and others

W.P. No.240/2016
Bhupendra Singh Baghel
vs.
State of MP and others

W.P. No.2545/2016
Smt. Savitri Singh
vs.
State of MP and others

W.P. No.3478/2016
7 W.P. No.14594/2014 and other connected matters

Mohd. Ahmad Jameel Khan
vs.
State of MP and others

W.P. No.3479/2016
Momin Khan
vs.
State of MP and others

W.P. No.4025/2016
Uday Kumar Kushwaha
vs.
State of MP and others

W.P. No.5031/2016
Babu Rao Athnere
vs.
State of MP and others

W.P. No.8437/2016
Geeta Dwivedi
vs.
State of MP and others

W.P. No.9197/2016
Madhav Prasad
vs.
State of MP and others

W.P. No.13933/2016
Chandra Bhan Vishwakarma
vs.
State of MP and others

W.P. No.17458/2016
Anrath Singh Thakur
vs.
State of MP and others

W.P. No.18133/2016
Shayam Lal Uikey
vs.
State of MP and others

W.P. No.19148/2016
Dharmendra Kumar Jain
vs.
State of MP and others
8 W.P. No.14594/2014 and other connected matters

W.P. No.19262/2016
Om Prakash Sharma
vs.
State of MP and others

W.P. No.1036/2017
Yagya Bhan Patel
vs.
State of MP and others

W.P. No.18557/2017
Lakhan Lal Sahu
vs.
State of MP and others

W.P. No.18718/2017
Panchraj Tiwari
vs.
State of MP and others

W.P. No.19557/2017
Sita Ram Patel
vs.
State of MP and others

W.P. No.934/2018
Uma Shakar Dwivedi
vs.
State of MP and others

W.P. No.21946/2018
Bhagwat Prasad Mishra
vs.
State of MP and others

W.P. No.21948/2018
Sitaram Tiwari
vs.
State of MP and others

W.P. No.22480/2018
Lakhraj Singh
vs.
State of MP and others

W.P. No.22487/2018
Manoj Kumar Mishra
vs.
State of MP and others
9 W.P. No.14594/2014 and other connected matters

W.P. No.22739/2018
Santosh Kumar Gupta
vs.
State of MP and others
W.P. No.22746/2018
Natthu Rao Jain
vs.
State of MP and others

W.P. No.22750/2018
Suresh Kumar Malviya
vs.
State of MP and others

W.P. No.25187/2018
Mahesh Pratap Singh
vs.
State of MP and others

W.P. No.25288/2018
Arjun Kumar Sen
vs.
State of MP and others

W.P. No.25292/2018
Ram Lakhan Sharma
vs.
State of MP and others

W.P. No.25293/2018
Prem Lal Vishwakarma
vs.
State of MP and others

W.P. No.27452/2018
Smt. Ram Bai
vs.
State of MP and others

W.P. No.29913/2018
Chhote Lal Singh
vs.
State of MP and others

W.P. No.303/2019
Deomani Rajak
vs.
State of MP and others
10 W.P. No.14594/2014 and other connected matters

W.P. No.304/2019
Dashrath Prasad Pandey
vs.
State of MP and others

W.P. No.326/2019
Ram Pratap Sahu
vs.
State of MP and others

W.P. No.1140/2019
Sheshmani Tiwari
vs.
State of MP and others

W.P. No.1240/2019
Prem Lal Kachi
vs.
State of MP and others

W.P. No.2735/2019
Ram Jiyawan Verma
vs.
State of MP and others

W.P. No.2839/2019
Smt. Vimla Mishra
vs.
State of MP and others

W.P. No.3679/2019
Bhaiya Lal Sondhiya
vs.
State of MP and others

W.P. No.3687/2019
Babulal Singh
vs.
State of MP and others

W.P. No.4414/2019
Manohar Lal Pawar
vs.
State of MP and others

W.P. No.4415/2019
Veeran Shri
vs.
11 W.P. No.14594/2014 and other connected matters

State of MP and others

W.P. No.4774/2019
Smt. Kusum Verma
vs.
State of MP and others

W.P. No.5574/2019
Chhote Lal
vs.
Managing Director

W.P. No.5575/2019
Ramadhar Verma
vs.
Managing Director

W.P. No.5702/2019
Ganpati Jain
vs.
Managing Director

W.P. No.5823/2019
Shivnarayan Borban
vs.
Managing Director

W.P. No.6232/2019
Shabana Begam
vs.
State of M.P. and others

W.P. No.5972/2019
Smt. Shanta Yadav
vs.
Managing Director

W.P. No.6227/2019
Naresh Chandra Pawar
vs.
State of M.P. and others

Date of Judgment 03/04/2019
Bench Constituted Single Bench
Judgment delivered by Justice Sujoy Paul
Whether approved for No
reporting
12 W.P. No.14594/2014 and other connected matters

Name of counsels for parties For the Petitioners: Shri Ajeet Singh,
Advocate.

For the respondents: Shri Mukesh
Kumar Agrawal, Shri Anoop Nair, Shri
Ved Prakash Tiwari, Shri A.P. Shroti,
Shri Rohit Jain with Shri Mohd.
Siddiqui, Advocates.
Law laid down

Significant paragraph
numbers

ORDER

(03.04.2019)

These matters were analogously heard on the joint request of the parties.

The facts are taken from WP No.18718/2017.

2. The petitioner was initially appointed as Junior Engineer in Gramin

Vidyut Sahkari Samiti, Rewa on 23.9.1986 (Annexure P/5). The State

Government has taken a decision regarding abolition of Gramin Vidyut

Sahkari Samiti and consequently the services of the petitioner were

mereged with the M.P. State Electricity Board (MPSEB) by order dated

18.5.2004 (Annexure P/6) with effect from 15.3.2002. The petitioner has

prayed for following reliefs in this petition:

"(i) It is, therefore, prayed that this Hon'ble Court may kindly
be pleased to quash the impugned orders dated 15.12.2014
(Annexure P/1), order dated 09-10-15 (Annexure P-2), order
dated 27-07-2015 (Annexure P-3) and other dated 25-03-17
(Annexure P-4) and the respondents be directed to give the
benefits of third higher pay scale to the petitioner by counting his
previous service from the date of his entitlement in terms of order
dated 04-01-2016 with all service benefits including arrears.

(ii) Respondents be further directed to give the benefits of
Revision of Pay Regulation, 2001 as well as benefits of 6th Pay
Commission w.e.f. 01-01-2006 by modifying the pay fixation
dated 11-02-15 with arrears and merge the EPF account into the
GPF account w.e.f. 15-03-2002 and give the benefit of pension at
par with the original employees of MPEB by counting his
previous service.

13 W.P. No.14594/2014 and other connected matters

(iii) This Hon'ble Court be further pleased to pass any such
other orders as this Hon'ble Court may deem fit under the
circumstances of the case."

[Emphasis Supplied]

3. Shri Ajeet Singh, learned counsel for the petitioners submits that in

these petitions, the petitioners are similarly situated and have prayed for

similar reliefs. If any other uncommon relief is involved in any matter, such

petitioners may be permitted to raise the same in separate fresh petition/s.

4. To elaborate, Shri Ajeet Singh, learned counsel for the petitioners

submits that petitioner in the instant case was absorbed with effect from

15.3.2002. The respondents have passed the impugned order dated

15.12.2014 (Annexure P/1) whereby it was directed that services of the

absorbed employees shall be counted from the date of absorption for the

purposes of grant of higher pay-scale whereas respondents should have

counted the services rendered by the absorbed employees in erstwhile

societies for the purposes of counting their eligibility for grant of higher

pay-scale. Learned counsel for the petitioners submits that para 4 of this

order dated 15.12.2014 makes it clear that such absorbed employees shall

get benefit of certain allowances and medical benefits etc. from the date of

issuance of order i.e. 15.12.2014 whereas they were entitled to get the

benefits from the date of absorption. The very same document dated

15.12.2014 was subject matter of challenge before this Court in WP

No.3547/2015 (
Uma Shankar Dwivedi vs. State of M.P. and others
)

decided on 06.10.2015. This Court by order dated 16.10.2015 has set aside

the same order dated 15.12.2014. The employer assailed it before the Apex

Court in Civil Appeal No.9146-9148/2018. The Apex Court with little
14 W.P. No.14594/2014 and other connected matters

modification mentioned in para 4 of the order which is related with Pay

Revision Regulations, 2001 did not disturb the remaining part of order

passed by this Court. Thus, for all practical purposes, the impugned order

dated 15.12.2014 except the modification mentioned herein above had

attained finality. In the teeth of this order, it is no more open to the

respondents to deprive the petitioners from fruits of medical benefits and

other allowances from the date of absorption. Putting it differently, it is

argued that petitioners are entitled to get these benefits from the date of

their absorption.

5. Further more, it is urged that clause 6 of this order dated 15.12.2014

must also be treated as set aside in view of order passed by this Court in the

case of
Umashankar Dwivedi
(Supra).
Shri Ajeet Singh by taking this

court to the judgment of Supreme Court in the case of Panchraj Tiwari vs.

MPSEB reported in (2014) 5 SCC 101 contended that once service is

merged with another service, the merged service gets its birth in the

integrated service and loses its original identity. Thus, petitioners for all

practical purposes became employees of the respondent-employer and their

origin has lost its significance. Thus, petitioners are entitled to get the

benefit of revision of pay-scale and pension. It is argued that two revisions

have taken place in the past. The first revision is pursuant to 'M.P. State

Electricity Board (Class III and Class IV Employees) Revision of Pay

Regulations, 2001 ('Regulations'). Learned counsel for the petitioners

submits that in clause 1(c)(vi), it was made clear that these Regulations

were not applicable to employees of the Societies who were absorbed in the

Board to whom the pre-revised pay-scales were not applicable. The
15 W.P. No.14594/2014 and other connected matters

Regulations came into being with effect from 1 st January, 2001. The

petitioners who were absorbed subsequent thereto became employees of

MPSEB from the date of their absorption. These Regulations and revised

pay-scales arising thereto should be made applicable on the petitioners.

6. The second pay revision took place with effect from 01.01.2006. It

is submitted that by order dated 18.08.2009 Annexure P/17, the revision of

pay-scale was made applicable to the absorbed employees. In clause 3(c),

it was clarified that the arrears of revision of pay shall be payable to the

absorbed employees with effect from 01.08.2009 whereas, for the regular

employees of the MPEB, it was paid from due date i.e. 01.01.2006.

Learned counsel submits that this issue also travelled before the Indore

Bench. By order of Indore Bench in WP No.1962/2010 decided on

13.09.2011 (Annexure-P/17) the said action of employer was disapproved.

The employer unsuccessfully challenged the order of writ court before the

Division Bench in review jurisdiction. Thereafter, by communication dated

14.1.2015 Annexure P/18, similarly situated absorbed employees, who

were petitioners before the Indore Bench, were given the benefit of revision

of pay-scale and arrears with effect from 1.1.2006. The next contention of

learned counsel for the petitioners is for grant of pension. The basis for this

argument is the same i.e. once petitioners became employees of

respondents-Electricity Board, there is no justification in not extending the

same pensionary benefits which were extended to the employees of

M.P.S.E.B. Reliance is placed on the judgment of Indore Bench in WPS

No115/2005 (Bijli Karmachari Snagh vs. M.P.S.E.B.) decided on

07.05.2015. Shri Singh urged that Writ Appeal and SLP(C)
16 W.P. No.14594/2014 and other connected matters

No.24772/2016 filed against this judgment were dismissed. It is submitted

that in the light of this judgment, the benefits have already been extended

in favour of the similarly situated employees.

7. In nutshell, petitioners have prayed for counting their services

rendered in erstwhile societies for the purposes of grant of time-scale of

pay and categorically pleaded in the prayer clause that this relief may be

granted in terms of the order dated 2.1.2016 (Annexure P/22). In addition,

as noticed, the petitioners have prayed for grant of revision of pay as per

Regulations of 2001 from the date of absorption, benefit of revision of pay

as per 6th Pay Commission with effect from 1.1.2006 or from the date of the

absorption of the petitioners. The petitioners have prayed for a direction to

merge the EPF Account into GPF Account with effect 15.3.2002 and give

the benefit of pension at par with the original employees of M.P.S.E.B. by

counting their previous services.

8. Shri Mukesh Kumar Agrawal, learned counsel for the employer

submits that the event of absorption took place on two occasions. First

absorption is relating to eight societies namely: Multai, Manawar, Banda,

Pichor, Gohad and Mungawali. This merger had taken place by order dated

18.05.2004 w.e.f 15.03.2002. Another merger had taken place on

13.08.2010 relating to societies of Sidhi, Amarpatan, Loundi, and

Nowgaon.

9. Shri Agrawal urged that the petitioners in these batch of petitions

became employees of MPSEB pursuant to two different mergers. It is

submitted that so far benefit of revision of pay-scale as per regulations of

2001 is concerned, the Apex Court in Civil Appeal No. 9146-9148/2018
17 W.P. No.14594/2014 and other connected matters

Uma Shankar Dwivedi
's case clearly opined in para 4 that parity can be

claimed in limited cases.

10. In the light of this para, Shri Agrawal submits that if petitioners are

similarly situated then the matter is different. Otherwise, the order passed

by Madhya Pradesh High Court in the case of
Uma Shankar

Dwivedi
(supra) WP No. 3547/2015 dated 06.10.2015 stood modified in

view of para 4 of said order passed by Apex Court.

11. Shri Agrawal urged that subject to fulfillment of conditions

mentioned in para 4 of the judgment in
Uma Shankar Dwivedi
's case, the

regulations of 2001 can be made applicable to the absorbed employee from

the date they became employees of respondent employer.

12. So far benefit of 6th and 7th Pay Commission is concerned, in view of

para 5 of judgment of Supreme Court in
Uma Shankar Dwivedi
(supra),

Shri M.K. Agrawal fairly admitted that the erstwhile employees of societies

are entitled to get the benefit of such revision of pay-scale from the date

they became employees of the respondent/employer.

13. Shri Agrawal submits that the petitioners were earlier governed by

different pension scheme/EPF scheme. The amount of contribution, method

of collection, authority with whom amount was deposited, mode of

payment of pension and its calculation, everything was different. They can

switch over to a different pension scheme only when law/rule permits. The

petitioners have not filed any application praying to switch over from

earlier scheme to the pension rules applicable to the MPSEB. In absence

thereof, no relief is due to the petitioners.

14. Shri Anoop Nair appeared in WP No. 934/2018 and urged that
18 W.P. No.14594/2014 and other connected matters

petitioners are not entitled to get the benefit of pension as prayed for by

them.

15. Shri J.K. Pillai, appeared in certain matters on behalf of P.F.

Organization. He urged that earlier when petitioners were employees of

erstwhile societies, the employer use to deduct the employees contribution

and add their own contribution and deposit it before the P.F. authorities.

The day petitioners became employees of present employer, the said

arrangement discontinued. The present employer is exempted from the

purview of employees Provident Fund and Miscellaneous Provisions Act

1952. Present employer has created its own trust on which P.F.

Organization has no power of Superintendence. Thus a practical difficulty

exists relating to switch over from one method/system of P.F. to another

method governed by different set of rules.

16. Shri Ved Prakash Tiwari appeared in WP No. 22379/2018 and

borrowed the arguments advanced by the other counsel for the employer.

17. Shri A.P. Shroti, learned counsel for the employer has filed written

submissions. It is urged that M.P. Power Management Co. Ltd. is the

holding company of all the Distribution Companies (DISCOMs) including

the answering respondent company and, therefore, the order dated

15.12.2014 is applicable mutatis mutandis to all the companies. The

petitioners have not challenged the order dated 18.06.2014 which had

attained finality and in absence thereof, petitions deserve to be dismissed.

The petitioner - Praveen Kumar Tiwari filed W.P. Nos.10719/2014 and

20284/2015 challenging inter alia the inaction to pay pension and order

dated 15.12.2014. Although this pleading is not taken in the reply filed,
19 W.P. No.14594/2014 and other connected matters

since it is self-evident, this Court can take notice of the same. A list of

cases is prepared to show that the order dated 15.12.2014 has not been

challenged in those cases.

18. Regarding claim for pension, GPF, higher pay scale and up-

gradation, it is argued that in the case of Panchraj Tiwari (supra), the terms

of absorption were reproduced by Supreme Court. In para 17 of the said

judgment, it was made clear that although absorbed employees from the

date of absorption shall be treated as juniors to the juniormost employees

of the Electricity Board, all other principal conditions of absorption shall

remain as such. The petitioners/erstwhile employees of the society were

members of EPF Scheme and, therefore, the petitioners are not entitled to

get the benefit of GPF Scheme. Indore Bench order dated 07.05.2015

passed sub silentio the order dated 18.06.2014 which was based on the law

laid down by the Apex Court in the case of Panchraj Tiwari (supra). This

judgment did not consider Para 3.1 and 3.5 of judgment of Panchraj

Tiwari (supra) though it was referred in the said Indore Bench judgment.

Hence, said judgment cannot be treated as binding precedent regarding

issue of pension and other conditions of absorption. It is stated that benefit

of pay/higher pay scale was not available to the employees of the Rural

Electricity Co-operative Society. After becoming employees of the

MPSEB, they became entitled for up-gradation of pay on completion of

nine years of service and were accordingly granted benefit of up-gradation.

19. The stand of Shri Shroti regarding 5th and 6th Pay Commission

benefits is that as directed in Civil Appeal of M.P. P.K.V.V. Company Vs.

Uma Shankar Dwivedi, the cases are being decided by the answering
20 W.P. No.14594/2014 and other connected matters

respondent society-wise and individual orders are being issued.

20. No other point is pressed by learned counsel for the parties.

21. I have bestowed my anxious consideration on the rival contentions

and perused the record.

22. As noticed, there is a chequered history of litigations for various

claims of erstwhile employees of societies who were absorbed in

M.P.S.E.B. Before dealing with the claim point-wise, it is condign to refer

certain findings given by the Supreme Court. In Panchraj Tiwari (supra),

the Apex Court opined as under:

"6.3. Once a service is merged with another service, the merged
service gets its birth in the integrated service and loses its original
identity. There cannot be a situation, where even after merger,
absorption or integration, such services which were merged or
absorbed, still retain their original status. If so, it is not an
absorption or merger or integration, it will only be a working
arrangement without any functional integration.

7. In the instant case, the undisputed factual and legal position is
that there is absorption of the employees of the Rural Electricity
Cooperative Society, Rewa with M.P. SEB. The Society has been
deregistered, there is only one service thereafter and thus there is
functional integration. On the basis of the protection of the
designation and pay scale, the employees have to be posted in the
equivalent category. Since it is not specifically provided as to the
position of such employees in the integrated service, it is a settled
equitable principle that such employees are placed as junior to the
juniormost officer of the category concerned in M.P. SEB on the
date of absorption viz. 15-3-2002.

16. The instant is a case where there is complete denial of
promotion forever which cannot be comprehended under the
constitutional scheme of
Articles 14
and
of the Constitution of
India. In this context, we shall refer to a beautiful discussion on
this aspect in S.S. Bola case[(1997) 8 SCC 522] at para 153. The
relevant portion reads as follows: (SCC p. 634)

AB. A distinction between right to be considered for promotion
and an interest to be considered for promotion has always been
maintained. Seniority is a facet of interest. The rules prescribe
themethod of recruitment/selection. Seniority is governed by the
rules existing as on the date of consideration for promotion.
Seniority is required to be worked out according to the existing
rules. No one has a vested right to promotion or seniority. But an
officer has an interest to seniority acquired by working out the
rules. The seniority should be taken away only by operation of
21 W.P. No.14594/2014 and other connected matters

valid law. Right to be considered for promotion is a rule
prescribed by conditions of service. A rule which affects chances
of promotion of a person relates to conditions of service. The
rule/provision in an Act merely affecting the chances of
promotion [Ed.: The words between the two asterisks are
emphasised in original.] would not be [Ed.: The words between
the two asterisks are emphasised in original.] regarded as
varying the conditions of service. The chances of promotion are
not conditions of service. A rule which merely affects the chances
of promotion does not amount to change in the conditions of
service. However, once a declaration of law, on the basis of
existing rules, is made by a constitutional court and a mandamus
is issued or direction given for its enforcement by preparing the
seniority list, operation of the declaration of law and the
mandamus and directions issued by the Court is the result of the
declaration of law but not the operation of the rules per se."

(emphasis supplied)

17. In the above circumstances, we set aside the judgment in
appeal. The absorbed employees of the Rural Electricity
Cooperative Societies, having due regard to their date of
appointment/promotion in each category in the respective
societies, shall be placed with effect from the date of absorption
viz. 15-3-2002 as juniors to the juniormost employee of the
Electricity Board in the respective category. Thereafter, they shall
be considered for further promotions as per the rules/regulations
of M.P. SEB. All other principles/conditions of absorption shall
remain as such. However, it is made clear that on such
promotions, in the exigencies of service, the employee concerned
would also be liable to be transferred out of the circle, if so
required.

18. The appellant accordingly shall be entitled to retrospective
promotions on a par with and with effect from the dates on which
the juniormost graduate engineer in the parent service on the date
of absorption obtained such promotions. However, we make it
clear that benefits till date need to be worked out only notionally.

23.
In
Uma Shankar Dwivedi
(supra), the Supreme Court in Para 4 has

held held as under:

"4. We make it clear that in case Appellant No.1 has extended the
benefit of the pay revision Regulations of 2001, despite the
exclusion in the Notification dated 27.04.2006, to those
employees where the pre-revised pay scales had not been applied,
the respondent/employees belonging to the Rewa Society will not
be discriminated."

24. Claim regarding benefit of Revision of Pay Regulations, 2001:

(i) Shri Ajeet Singh, learned counsel for the petitioners by placing

reliance on the judgment of this Court in
Uma Shankar Dwivedi
(supra)

and judgment of Indore Bench in W.P. No.1962/2010 (Electricity Supply
22 W.P. No.14594/2014 and other connected matters

Employees Union Vs. State of M.P
.) stated that all the petitioners are

entitled to get the benefit of pay scale arising out of Regulations of 2001

from the date of their absorption. By order dated 14.01.2015 (Annexure-

P/18), the order of the Indore Bench in W.P. No.1962/2010 has been

implemented and arrears arising thereto have been paid to the employees.

(ii) Pausing here for a moment, the opening sentence of the order dated

14.01.2015 (Annexure-P/18) shows that it relates to employees of

Manawar Society who were absorbed in M.P.S.E.B. Pertinently, before

absorption, in their parent society also they were getting the same pay scale

which their counter-parts in M.P. S.E.B. were getting at the time of

absorption. This is a very important and distinguishable feature and,

therefore, at the outset, this fact has been highlighted. This Court in W.P.

No.No.3547/2017 (
Uma Shankar Dwivedi Vs. State
) directed that the

initial pay at the time of merger would be the same as they were getting

when they were working in the society on the date of merger. However, it

was clarified that such employees would be eligible to get benefit of

revision of pay scale in accordance with the provisions of 5 th and 6th Pay

Commission. The arrears arising out of benefit of 5 th and 6th Pay

Commission are required to be paid to the petitioners.

(iii) As noticed, in the appeal, the Apex Court clarified it in Para 4

(reproduced above) and made it clear that the parity has a limited

application. Thus, it is noteworthy that even this Court in the case of
Uma

Shankar Dwivedi
(supra) did not grant benefit of revised pay scale as per

Regulations of 2001 and the Apex Court in no uncertain terms made it

clear that if appellant No.1 extended the benefit of pay revision under
23 W.P. No.14594/2014 and other connected matters

Regulations of 2001 to such employees who were not enjoying the pre-

revised pay scales, employees of Rewa Society cannot be given step

motherly treatment.

This aspect came up for consideration before the

Division Bench of this Court in 2012 (5) MPHT 183 (Gwalior Bench)

(
M.P.S.E.B. Vs. Brajendra Singh Kushwah and others
), it was held as

under:

"22. The judgment dated 13-9-2011 in W.P. No. 12029/2010, on which
heavy reliance has been placed by the writ Court while rendering the
impugned order, has been delivered on the following two assumptions:

--

(i) That, the employees serving the REC Society (Manawar) were at
par with the employees of the MPSEB in the matter of pay scales; and

(ii) Since the REC Society (Manawar) employees were treated at par
with the MPSEB employees in the matter of pay scales, the bar
contained in Clause 1(c)(vi) of the Regulations of 2001 will not apply.

23. The above said two features persuaded the Single Bench of this
Court while rendering the judgment dated 13-9-2011 in WP No.
12029/2010 by issuing directions for treating the employees of REC
Society (Manawar) at par with the MPSEB employees in the matter of
pay scale and accordingly issued the directions for grant of all benefits
to such absorbed employees as were extended to the original
employees of the Board.

24. In the present case, the distinguishing feature is the pay disparity
which existed not only since prior to the date of absorption but also
continued subsequent thereto on account of the terms and conditions
contained in the order of the Commission granting sanction for
revocation of 10 REC Societies and the consequential orders of
absorption. It is neither pleaded nor it is the case of the petitioners that
there was parity of pay scale before or after absorption between the
absorbed employees vis-a-vis the original employees of the Board.
Resultantly the petitioners not having challenged the terms and
conditions contained in the order of sanction for revocation of licence
dated 20-2-2002 and also contained in the order of absorption issued
by the Board, are now estopped from challenging the necessary
fallout/consequence of pay disparity stemming out of the said
unchallenged terms and conditions.

25. Learned counsel for the Board has placed reliance on various
decisions including the Division Bench decision of this Court dated 27-
7-2007 in Writ Appeal No. 1361/2006 rendered at the Principal Seat,
wherein the Division Bench while dealing with facts and circumstances
similar to the ones existing in this case, upheld the order of the Single
Bench passed in Writ Petition No. 463/1999 by holding in paragraphs
18 and 19 of its decision as follows:

"18. Submissions of Mr. Ruprah, learned counsel is that as the
24 W.P. No.14594/2014 and other connected matters

applicant's case was considered by the society for promotion and at the
time of absorption it was mentioned that they would be absorbed on
the same terms and conditions as existing in the society and he was
Junior Engineer and, therefore, he was entitled to be promoted as
Assistant Engineer as such Junior Engineers who have been similarly
placed under the services of the Board have been promoted. As is
perceivable the Board had issued further guidelines/terms and
conditions as per order/circular dated 5-6-2004. On reading of the
further terms and conditions it cannot be said that the employee who
has been absorbed in the Board will get the benefit of the Board as if
he was an employee of the Board from very inception. The Board at
the time of absorption has fixed the terms and conditions and on a
perusal of such terms and conditions it is quite clear that the Junior
Engineer shall be given the designation but would not be considered
for promotion by applying the Board's regulations as if he was in the
Board's services. The said terms and conditions fixed by the Board are
in consonance with the decision rendered in
Ram Parvesh Singh

(supra) wherein it has been held that the Board has no obligation
towards the employees of the previous owner's undertaking.

Be it noted
to arrive at such a conclusion their Lordships have placed reliance on
the decision rendered in
Bhola Nath Mukherjee v. Government of W.B.
,
(1997) 1 SCC 562.

19. In view of our preceding analysis we do not find any merit in the
present writ appeal and accordingly the same stands dismissed.
However, in the peculiar facts and circumstances of the case there shall
be no order as to costs."

26. In view of the above, it appears that the decision of the Single
Bench rendered on 13-9-2011 in WP No. 12029/2010 was based upon
different set of facts and circumstances where the parity between the
absorbed REC Societies employees and the original employees of the
Board was not disputed. Thus
,
the said decision
in W.P. No.
12029/2010 and the reliance placed thereupon is of no avail to the
petitioners/respondents herein, in the present case where no such parity
existed either before or after absorption. Thus, this Court is impelled to
hold that the reliance placed by the Writ Court on the order dated 13-9-
2011 passed in W.P. No. 12029/2010 while passing the impugned order
is misplaced.

27. In the conspectus of the above facts and circumstances and the
findings rendered, the Writ Appeal No. 137/2012, MPSEB v.
Brajendra Singh Kushwah is allowed whereas Writ Appeal No.
202/2012, Brajendra Singh Kushwah v. MPSEB is dismissed and the
impugned order dated 27-1-2012 passed in Writ Petition No.
2459/2010 is set aside. No order as to costs."

[Emphasis Supplied]

(iv) This judgment of Gwalior Bench was assailed by the employees

before the Apex Court in SLP (C) No.28516/2013 decided on 27.04.2015.

The respondent-Board in Para 5 of counter-affidavit filed before the
25 W.P. No.14594/2014 and other connected matters

Supreme Court decided to grant the benefit to the petitioners and,

therefore, in terms of the counter affidavit, SLP was disposed of.

(v) In 2013 SCC OnLine MP 10181 (Mukesh Chandra Gupta and

others Vs. M.P. State Electricity Board and others) decided on

09.12.2013, the argument of absorbed employees was based on a Division

Bench judgment of Indore Bench in W.A. No.685/2011 (
M.P. State

Electricity Board Vs. Electricity Supply Employees Union
) decided on

22.04.2013. This Court in Para 8 & 9 opined as under:

"8. No doubt, the Indore Bench considered the judgment of

Brajendra Singh Kushwah
(supra). A perusal of page 5 of the
judgment shows that in the Rural Electrification Cooperative
Society, Manawar the employees were getting pay scale at par with
the respondent-Board. In other words, the pay scales granted to the
employees of Cooperative Society were similar to that of the
employees of the Board before absorption. The absorption order
gave protection to employees that existing terms and conditions
will follow. Since in Manawar Society the pay scales were same,
the conditions of absorption were directed to be implemented.

However, in
Brajendra Singh Kushwah
(supra) the conditions were
different. Therefore, Indore Bench in para 8 of the judgment opined
that the present case stands on different factual footing because the
members of respondent No. 1-Union were getting the same pay
scale as employees of the Board prior to their absorption.

9. In the present case, admittedly, the pay scales of the petitioners
were inferior in the erstwhile society and, therefore, Indore Bench
judgment is of no assistance to them. The judgment in
Brajendra
Singh Kushwah
(supra) will hold the field.

It is apt to quote paras 24
and 26 of the judgments in
Brajendra Singh Kushwah
(supra), which
reads as under:-

[Emphasis Supplied]

(vi) A careful reading of the judgments passed in
Brajendra Singh

Kushwah and Mukesh Chandra Gupta
(supra) makes it clear like noon day

that absorbed employees of Manawar Society were getting pay scale at par

with the employees of the respondent Board. Thus, as per the terms and

conditions of the absorption, they had protection of their service conditions

and for this reason, the erstwhile employees of Manawar Society were

given the benefit of same pay scale on their absorption.

This principle and
26 W.P. No.14594/2014 and other connected matters

benefit of such parity based on the Regulations of 2001 can be extended

only for such employees who are covered by Para 4 of the order passed by

Supreme Court in the case of
Uma Shankar Dwivedi
(supra). This aspect

is answered accordingly.

25. Claim regarding 6th Pay Commission :

(i) This aspect is no more res integra.
In
Uma Shankar Dwivedi

(supra), this Court opined that absorbed employees are entitled to get 5 th

and 6th Pay Commission benefits. The Apex Court in Para 5 of said

judgment opined as under:

"5. As far as implementation of recommendations of Sixth
and Seventh Pay Commissions are concerned, there cannot be
any dispute. The benefits will be extended to the employees of
the REC Societies with effect from the date of the benefits of
the Sixth and Seventh Pay Commission have been given to the
employees of Appellant No.1. If there is any arrears to be paid
in this regard, the same shall be paid within three months from
today."

[Emphasis Supplied]

(ii) In this view of the matter, it can be safely concluded that absorbed

employees are entitled to get the benefit of corresponding pay scale as per

the recommendations of 6th Pay Commission from due date with arrears of

pay.

26. Claim regarding counting previous service for grant of higher
pay scale/financial up-gradation and claim of family pension as
per policy applicable to the regular employees of M.P.S.E.B. :

(i) This Court in
Uma Shankar Dwivedi
(supra) opined that if previous

service conditions of the absorbed employees are protected, it cannot be

said that they would not be entitled to get the benefit of service condition

available in the Board.
If this is allowed, it will mean that absorbed

employees are treated as a class separate than the regular establishment of

27 W.P. No.14594/2014 and other connected matters

the respondent-Board. Thus, it will amount to discrimination which runs

contrary to
Article 14
of the Constitution of India. This cannot be

permitted by framing any policy etc. In no uncertain terms, a finding was

given that there was no policy made in this respect and even when the

policy was made, no such restriction was placed by the respondent-Board,

once absorption is completed, the petitioners became part and parcel of

main stream in the establishment of the Board and as such would be

entitled to the application of service conditions of the Board. In Paras 6.3

and 7 of the judgment of Panchraj Tiwari (supra), the Apex Court has

taken the same view.

27. In view of aforesaid judgments, it is clear that upon absorption in

M.P. S.E.B., the petitioners became employees of the Board for all

purposes. They cannot be discriminated on the basis of their birth mark.

Otherwise, it will amount to divide a homogeneous class and create a class

within the class which is impermissible in the teeth of
Article 14
of the

Constitution. In Para 7 of the judgment of Panchraj Tiwari (supra), their

Lordships held that on such integration of service and upon joining in

M.P.S.E.B., the absorbed employees shall be placed as junior to the

juniormost officer on the date of absorption viz. 15.03.2002. Thus, the

petitioners will get bottom seniority on the date of absorption. The

ancillary question is : whether services rendered by them in the erstwhile

employment can be counted for the purpose of qualifying service for

pension and qualifying service/eligibility condition for the purpose of grant

of time scale of pay ? The question of grant of pension is no more res

integra. The Indore Bench in W.P. (s) No.1151/2005 considered this aspect
28 W.P. No.14594/2014 and other connected matters

in great detail. Various judgments passed by the High Court and judgment

of Apex Court in Panchraj Tiwari (supra) were considered by Indore

Bench. After meticulous examination of legal position, the Indore Bench

opined as under:

"11- Meaning thereby, the employees who have been absorbed
were treating at par with the employees of the M.P. State
Electricity Board in the matter of pay scale, dearness allowance
and other fringe benefits, meaning thereby, for all purposes the
employees of the Societies are the employees of M.P. State
Electricity Board and the same benefits which have been
extended to the employees of M.P. State Electricity Board have
been extended to the employees who have been absorbed
pursuant to closure of the Society where they were initially
appointed.

12- Learned counsel for the petitioner has fairly admitted before
this Court that all the benefits have been granted to the
employees of the Society, however, in the matter of grant of
pension, the respondents are not paying the pensionary dues to
the employees who absorbed in the services of the Board.

13- This Court in the light of the judgment delivered in the
earlier round of litigation and also keeping in view the order
passed by the Hon'ble Supreme Court in the case of
Brajendra
Singh Kushwaha
(Supra) and the order passed in the case of
Panchraj Tiwari (Supra) is of the considered opinion that once
the employees have absorbed in the services of the M.P. State
Electricity Board they are the employees of M.P. State
Electricity Board for all purposes. A instrumentality of the State
cannot be permitted to discriminate between its employees by
treating the absorbed employees as a different class of
employees. There is one only class of employees i.e. employees
working in the M.P. State Electricity Board. There is a
pensionary scheme for the employees of the M.P. State
Electricity Board, and therefore, the members of the petitioner -
Union, meaning thereby, all the employees absorbed in the
services of M.P. State Electricity Board are certainly entitled for
the benefits of pension scheme and other fringe benefits for
which the employees of M.P.State Electricity Board are entitled.

14- Resultantly, the writ petition stands allowed. The
respondents are directed to extend the pensionary benefits and
other fringe benefits to the absorbed employees who are now the
employees of M.P. State Electricity Board. The exercise of
passing necessary orders in respect of pensionary benefits and
other fringe benefits be passed within a period of ninety days
from the date of receipt of certified copy of this order. The writ
petition stands allowed. No order as to costs."

[Emphasis Supplied]

28. It is relevant to note that the employer took the same stand before
29 W.P. No.14594/2014 and other connected matters

Indore Bench that the absorbed employees and regular employees of the

Board are governed by different set of Pension Scheme etc. This stand

could not find favour before the Indore Bench. The said order of W.P.

No.1151/2005 was assailed in W.A. No.334/2015 (M.P. State Electricity

Board (Now known as
M.P. Paschim Kshetra Vidyut Vitaran Co. Ltd.

Indore Vs. Bijali Karmchari Sangh
) decided on 14.06.2016.

The Division

Bench after considering the judgment of Apex Court in
Panchraj Tiwari

and Brajendra Singh Kushwah
(supra) opined as under:

"The Hon'ble Single Judge has reproduced the relevant part of all
the judgments, hence the issue regarding the service conditions of
the employees and societies who were absorbed in the Board is
no more res integra and has been settled by this Court as well as
by the Supreme Court. It is not in dispute that the employees who
were absorbed are treated at par with the employees of the Board
shall get the benefits which includes pensionary benefits and
other fringe benefits also. Further contention of the appellant is
also liable to be rejected in respect of that the employees of
petitioner-society covered under the
Employees Provident Fund
Act and Payment of Gratuity Act, 1972
because once it has been
held that after absorption they are treated at par with the
employees of Board then they shall get the same benefits which
has been granted to the employees of the Board."

[Emphasis Supplied]

29. The writ Court and Division Bench in said writ appeal considered

the judgment of Panchraj Tiwari (supra) in extenso and, therefore, I am

unable to persuade myself with the argument of Shri Shroti that said

judgment may be treated as sub silentio. In view of this binding judgment

passed in W.A. No.334/2015 against which SLP No.24772/2016 was

dismissed on merits on 30.11.2018, I am inclined to hold that the judgment

of Indore Bench in Bijali Karmchari Sangh decided on 07.05.2015 will

apply mutatis mutandis to present batch of petitions.
Thus subject to

fulfilling the formalities, petitioners are entitled to get pensions and fringe

benefits as per the judgment of
Bijlai Karmchari Sangh
(supra).

30 W.P. No.14594/2014 and other connected matters

30. There is no scintilla of doubt that services rendered by the petitioners

in the society are taken into account for the purpose of qualifying service

for determining pension/retiral dues. The question is : whether those

services can be counted for the purpose of grant of higher pay scale ? In

the relief clause, the petitioners have categorically prayed that their

previous services from the date of entitlement in terms of the order dated

04.01.2016 may be directed to be counted for the purpose of grant of third

higher pay scale. A careful reading of terms and conditions for grant of

third time scale of pay (higher pay scale) mentioned in circular dated

04.01.2016 (Annexure-P/22) shows that the service shall be counted in any

cadre from the date of appointment to the post, which is a regular post of

that cadre. For example, it is mentioned that in a ministerial grade, O.A.

Grade III is entry post whereas for Line Staff, it is Line Attendant.

Similarly, in Engineering/Officer Cadre, Junior Engineer/Assistant

Engineer or equivalent is the entry post. As per Clause (ii) of the terms and

conditions, the service can be counted from the date of appointment in any

cadre. As per FR-9(iv), "Cadre" means "the strength of service or a part of

service sanctioned as a separate unit". By no stretch of imagination, it can

be said that previous service of the petitioners before absorption was

rendered in the cadre of M.P.S.E.B. In absence thereto, those services

cannot be taken into account for the purpose of grant of higher pay scale.

Thus, this claim is devoid of merits and deserves rejection.

31. Claim regarding benefit of medical reimbursement and
allowances:

The petitioners have challenged the order dated 15.12.2014 [(Annexure-

P/1) Clause (4)] whereby while granting the benefits of medical
31 W.P. No.14594/2014 and other connected matters

reimbursement, allowances arising out of working during National

Festivals and other allowances and benefits were extended from the date of

order viz. 15.12.2014. This is trite in view of the judgment of Supreme

Court in Panchraj Tiwari (supra) that once petitioners are absorbed in

M.P.S.E.B., they became employees of M.P.S.E.B.. Their origin/birth mark

pales into insignificance. The respondents themselves decided to grant

them aforesaid benefit from 15.12.2014. There is no justification in

depriving them from these benefits from the date of absorption. Thus, I am

constrained to hold that action of the employer in extending the aforesaid

benefits mentioned in Clause (4) of the order dated 15.12.2014 from the

date of issuance of order is bad in law. Indeed, the petitioners are entitled

to get the said benefits from the date of absorption.

32. In view of the foregoing analysis, these batch of petitions are

disposed of with following directions:

(i) The petitioners may claim and shall be entitled to get the pay scale

prescribed in the Regulations of 2001 provided their cases are

covered by Para 4 of the order passed by the Supreme Court in the

case of
Uma Shankar Dwivedi
(supra).

If their cases are covered, the

petitioners may file applications claiming the said benefits and if

they are similar qua the employees of Manawar Society and their

cases are covered by Para 4 of the judgment of
Uma Shankar

Dwivedi
(supra), it shall be the duty of the respondents to extend the

similar benefit of pay scale to the petitioners from due date.

(ii) The petitioners are entitled to get the benefit of 6 th Pay Commission

in terms of revised pay scale. If the revised pay scale has not been

32 W.P. No.14594/2014 and other connected matters

given to the petitioners as per the recommendation of 6 th Pay

Commission, it shall be the duty of the respondents to extend the

same from due date with arrears.

(iii) The previous service rendered in the society shall not be counted for

the purpose of grant of higher pay scale/financial up-gradation.

(iv) The petitioners shall be entitled to get the benefit of pensionary

scheme and other fringe benefits, which are applicable for the

employees of M.P.S.E.B. as per the judgment of Indore Bench in

W.A. No.334/2015 (
M.P. State Electricity Board (Now known as

M.P. Paschim Kshetra Vidhyut Vitran Company Ltd. Indore) Vs.

Bijali Karmchari Sangh
).

(v) The petitioners shall get the benefits mentioned in Clause (4) of the

order dated 15.12.2014 (Annexure-P/1) from the date of their

absorption.

(vi) The entire exercise be completed within six months from the date of

completion of formalities by the petitioners for grant of aforesaid

benefits.

(vii) The petitioners are at liberty to file separate proceedings for other

reliefs which have not been pressed and decided in the present

petitions.

33. The petitions are partly allowed. No cost.

The Registry shall keep the photocopy of this order in all

connected matters.

(Sujoy Paul)
Judge
YS/Biswal

SHIBA NARAYAN BISWAL
2019.04.04 13:38:48 +05'30'