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2013 DIGILAW 1278 (MP)

M. P. Electricity Board, Jabalpur v. S. K. Dubey

2013-10-24

AJIT SINGH, ALOK ARADHE, K.K.TRIVEDI

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ORDER Aradhe, J. -- 1. By an order dated 12.4.2013 passed in review petition, learned Single Judge has referred the following questions for consideration by a Larger Bench : “(1) Whether a Junior Engineer promoted to the post of Assistant Engineer under the Time Bound Promotion Scheme till is absorption, can be treated as Assistant Engineer for all purposes? (2) Whether against such a Assistant Engineer promoted under Time Bound Promotion Scheme, the disciplinary action could have been taken only by the Board/Chief Engineer in view of the notification dated 2.9.2003 (sic 5.10.1991)?” 2. The background facts, leading to reference, briefly stated, are that the respondent was initially appointed on the post of Junior Engineer and later on promoted to the post of Assistant Engineer under the Time Bound Promotion Scheme. A show cause notice was issued to him on 31.7.2008 by the Superintending Engineer for misconduct. Vide order dated 20.10.2008, the Superintending Engineer imposed the punishment of stoppage of two annual increments without cumulative effect. The aforesaid order was challenged by the respondent in Writ Petition No.15123/2008 (S) inter alia on the ground that the Superintending Engineer was not competent to impose punishment as the competent authority under the order dated 2.9.2003 issued by M.P. Poorv Kshetra Vidyut Vitaran Co.Ltd. is the Executive Director/Chief Engineer. Learned Single Judge in view of the concession given bythe counsel for the review petitioners, by order dated 19.1.2009 allowed the writ petition and quashed the order of punishment dated 20.10.2008 and granted liberty to them to pass a fresh order. 3. The petitioners, thereafter filed the Review Petition No.172/2009 seeking review of the order dated 19.1.2009, inter alia, on the ground that in view of the order dated 7.5.1999 issued by erstwhile M.P. Electricity Board, the competent authority to impose the punishment on the Assistant Engineer who is promoted under the Time Bound Promotion Scheme till his absorption against the regular vacancy, is Superintending Engineer. Learned Single Judge, during course of hearing of the review petition, by order dated 12.4.2013 referred the questions, stated supra, for consideration by a Larger Bench. 4. Learned counsel for the petitioners submitted that though a Junior Engineer is granted the benefit of promotion under the Time Bound Promotion Scheme yet he carries out the duties and functions of the post of Junior Engineer. 4. Learned counsel for the petitioners submitted that though a Junior Engineer is granted the benefit of promotion under the Time Bound Promotion Scheme yet he carries out the duties and functions of the post of Junior Engineer. It is further submitted that once a Junior Engineer is absorbed against regular vacancy of Assistant Engineer, he would only then have power and functions of Assistant Engineer. While inviting the attention of this Court to the order dated 7.5.1999, it was submitted tht the Superintending Engineer continues to be disciplinary authority in respectr of Junior Engineer till the Junior Engineers promoted to the post of Assistant Engineer undr the Time Bound Promotion Scheme are absorbed against the regular vacancy of Assistant Engineer. It is also urged that in order to remove frustration, the employees are given a higher grade in terms of emoluments while retaining them in the same category. In support of his submissions, learned counsel for the appellants has placed reliance on the decision in Dwijen Chandra Sarkar and another v. Union of India and others [ (1999)2 SCC 119 ]. 5. On the other hand, learned counsel for the respondent submitted that the order dated 7.5.1999 provides that a Junior Engineer shall be Class II Officer and, therefore, the disciplinary authority in respect of such an Assistant Engineer to impose punishment is Chief Engineer in view of the order dated 2.9.2003. Learned senior counsel for the intervener has submitted that promotion to the post of Assistant Engineer under the Time Bound Promotion Scheme is not automatic and it is subject to selection and in view of the order dated 2.9.2003, the Executive Director/Chief Engineer is the competent authority to impose punishment on the Assistant Engineers who have been promoted under the Time Bound Promotion Scheme. 6. We have considered the respective submissions made by learned counsel for the parties. The Supreme Court in Patna University and others v. Awadh Kishore Pd. Yadav and others [1994 Supp.(2) SCC 250], has held that the provision relating to promotion under the Time Bound Promotion Scheme is generally adopted to mitigate the hardship of stagnation in service e.g., when the opportunities of getting promotion tothe higher grades are not likely to be available for years for various reasons including lack of adequate post in the higher grades compared to the proliferation of posts in the feeder categories. However, such promotions are not at par with promotion from a lower post to a higher post. In Dwijen Chandra Sarkar (supra), similar view has been expressed and it has been held that employees are given Time Bound Promotion in order to remove frustration and in terms of emoluments while retaining them in the same category. However, the promotion under the Time Bound Promotion Scheme cannot be equated with the promotion made on regular basis. Similar view has been taken in the case of Director General, Indian Council for Agricultural Research and others v. D. Sundara Raju [ (2011)6 SCC 605 ]. 7. From perusal of the order dated 7.5.1999, it is evident that the aforesaid order has been issued taking into account the delay in promotion of the Junior Engineers to the post of Assistant Engineer. The aforesaid order clearly provides that the Junior Engineer promoted to the post of Assistant Engineer shall carry out the same duties and functions as he was doing earlier and such a Junior Engineer will continue to work on the same place with the duties and functions of Junior Engineer. The aforesaid order also provides that once such Junior Engineer is absorbed in the regular vacancy, he would have the power and functions of the Assistant Engineer. The promotion under Time Bound Promotion Scheme has been granted with a view to avoid frustration amongst the Junior Engineers. By the aforesaid promotion, higher grade in terms of emoluments has been awarded to a Junior Engineer without any change in post. Such Junior Engineer continues to hold his substantive post and to perform functions of the post of Junior Engineer. Therefore, Junior Engineer promoted under the Time Bound Promotion Scheme to the post of Assistant Engineer cannot be treated at par with the Assistant Engineer promoted on regular basis. Accordingly, the first question is answered. 8. It is trite law that if a provision is made to deal with specific situation, the same would prevail over the general provision {See : Maya Mathew v. State of Kerala and others [ (2010)4 SCC 498 ]}. At this stage, it is appropriate to notice the order dated 2.9.2003, which deals with the revised delegation of power. 8. It is trite law that if a provision is made to deal with specific situation, the same would prevail over the general provision {See : Maya Mathew v. State of Kerala and others [ (2010)4 SCC 498 ]}. At this stage, it is appropriate to notice the order dated 2.9.2003, which deals with the revised delegation of power. Under the aforesaid delegation of power, the Executive Director/Chief Engineer has been granted powers to punish and impose minor penalty for Class I Officers of the rank of Executive Engineer and equivalent and has been given full power in respect of officers below the rank of Executive Engineers and equivalent. The order dated 2.9.2003, issued by the M.P. Poorv Kshetra Vidyut Vitaran Co.Ltd. as well as the order dated 7.5.1999 issued by the erstwhile M.P. Electricity Board, operate in different fields. The order dated 2.9.2003 pertains to Assistant Engineers promoted on regular vacancy and does not apply to the Assistant Engineers who are promoted under the Time Bound Promotion Scheme as in respect of such Assistant Engineer specific provision is made in the order dated 7.5.1999, which provides that the Superintending Engineer would be disciplinary authority against such a Junior Engineer till his absorption on the post of Assistant Engineer against the regular vacancy. Even otherwise, specific provision made with reference to Assistant Engineers promoted under the Time Bound Promotion Scheme would prevail over the order dated 2.9.2003, which contains general provisions. Thus, it is apparent that Superintending Engineer is the disciplinary authority to take action against the Assistant Engineer who has been promoted under the Time Bound Promotion Scheme in view of the order dated 7.5.1999. Accordingly, the second question is answered. 9. Let the matter be placed before the learned Single Judge.