High Court · 1999

Order

In this writ petition, the petitioner seeks a declaration by way of Mandamus, declaring the action of respondents 1 to 4 in not extending to him, the pay-scale of Artisan Welder, Grade-II, and in not promoting him to the said category, as arbitrary and illegal, and consequently to direct the respondents to promote him as Artisan Welder, Grade-II, and extend the pay-scale attached to the said post, with retrospective effect from 25.06.1988.

2. The petitioner was initially appointed in the respondent/Organisation on 10th of August 1981, as Grade-IV Artisan. His appointment was consequential to the successful completion of his apprenticeship training in Bhart Heavy Electricals Limited. In the year 1984, he was promoted to the post of Artisan Welder, Grade-III. On earlier occasion, when the claim of his junior in the category of Artisan Welder, Grade-III was considered and he was promoted to Grade-II, the petitioner has filed a writ petition in W.P.No.13647 of 1988. This Court, by a judgment dated 23rd June 1999, while dismissing the said writ petition, has observed that the said order will not preclude the respondents to consider the case of the petitioner for promotion, if he is otherwise qualified for consideration. However, the petitioner’s case was considered for promotion in normal promotions, and he was promoted to the category of Grade-II in 1996, but he did not accept the said promotion. Further, even in the year 2000, promotion was again given to the petitioner, but he returned the promotion order by making an endorsement to the following effect, “This promotion order does not protect my service, seniority, wages & frinze benefits. I condemn this order and will accept it only if it is given with retrospective effect from 25th June 1988.”

3. In this writ petition also, it is the grievance of the petitioner that as much as his junior was promoted to Grade-II on 25.06.1988, he is entitled for promotion retrospectively from that date, and he is also entitled for the pay in the scale attached to the post of Artisan Welder, Grade-II from the date on which his junior was promoted i.e. from 25.06.1988.

4. In the detailed counter affidavit filed by the General Manager (Personnel & Administration) of Bharat Heavy Electricals Limited, it is categorically stated that as per the normal promotion policy, minimum periods of service required for promotion from one Grade to another Grade are prescribed. It is stated, for example, from Grade-IV to Grade-III, it is three years, and from Grade-III to Grade-II, it is five years. With reference to promotions effected in the year 1988, it is the case of the respondents that selections were made as per the guidelines in the special promotion policy, namely, ‘Fast Track Promotion’ or ‘Flier Promotion’, which is a merit oriented promotion policy, where normal eligibility period is advanced by one year. It is stated that the principle of ‘suitability-cum-merit’ is followed with a view to encourage and motivate the best performers. In the counter it is stated that though the case of the petitioner was considered by the Departmental Promotion Committee, he was not selected in the said promotion scheme in the year 1988, but however, in the normal promotions, when he was promoted in 1996, he refused to accept the same. It is also stated that further opportunity was given to the petitioner by giving promotion in 2000, and even at that stage, he refused to accept it.

5. Heard learned counsel Sri V.Narayana Reddy, appearing for petitioner, and Sri S.V.Bhatt, learned counsel appearing for the respondents.

6. In this writ petition, it is the case of the petitioner that as much as his junior was promoted on 25.06.1988, there is no reason or justification in denying promotion to him on the said date. But it is fairly accepted by the learned counsel for petitioner that promotion was offered to the petitioner in the year 1996 and 2000, but as the same was not extended retrospectively from 25.06.1988, petitioner did not accept it.

7. In this case, it is to be seen that the only basis for the claim of the petitioner for promotion and upgradation of scale, was the promotion of his junior from Grade-III to Grade-II in the year 1988. From the various averments made in the counter affidavit, it is clear that the promotions extended in the year 1988 were not normal promotions, but are the special promotions given under the policy called, ‘Fast Track Promotion’ or ‘Flier Promotion’, under which, promotions were granted by way of selections by considering the claims of all the eligible persons to promote to higher category. When the case of the petitioner was also considered in the year 1988, but as he was not selected as per the said promotion policy, namely, ‘Fast Track Promotion’ or ‘Flier Promotion’, he cannot seek any directions by way of Mandamus to upgrade his scale and promote him, only on the ground that his junior was promoted to the post of Grade-II on

25.06.1988. It is now well settled that within a category, there can be a slot for accelerated promotions by testing the merit. In such category of promotions, juniors will have opportunity for earlier promotion if they perform well in the selections made by the Departmental Promotion Committee. As a junior to the petitioner was promoted in such selections, the petitioner cannot claim, as a matter of right, the scale attached to the post of Artisan Welder, Grade-II or promotion to the said post. From the counter affidavit, it is also evident that the respondents have fairly considered the case of the petitioner for promotion and promoted him in 1996 and 2000 in normal promotions, but for the reasons best known to him, he has not accepted the same. As much as the promotion which was given to the junior of the petitioner in the year 1988 is under a special promotion scheme by testing the merit, I do not find any merit in this writ petition for grant of relief as prayed for. Strictly speaking, the petitioner is not seeking upgradation, but is seeking promotion to the post of Artisan Welder, Grade-II. When the promotion was given to the petitioner in normal course, having not accepted the same, he did not make out any case so as to issue directions for promotion retrospectively from 25.06.1988.

8. Though the learned counsel for petitioner has placed reliance on a judgment of Hon’ble Supreme Court in the case of State of Mysore v. Krishna Murthy [1] , but as much as the case of the petitioner was also considered in the special promotion scheme in the year 1988 itself, but he was not found eligible for promotion, the ratio decided in the said judgment would not render any assistance to him, having regard to the facts and circumstances of this case.

9. For the aforesaid reasons, the writ petition is devoid of merit and it is accordingly dismissed.

10. But however, it is made clear that if the petitioner is eligible for promotion, having regard the earlier promotions granted to him in the years 1996 and 2000, it is open for the respondents to give effect to such promotion, without being influenced by any of observations made in this order. ______________________ R. SUBHASH REDDY, J 5th March 2009. [1] AIR 1973 SC 1146