Dakshin Haryana B.V.
Nigam Ltd. & Ors. Vs. Mauj Khan & Ors.  INSC 952 (6 May 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3311 OF 2008 [Arising
out of SLP (C) No.12451 of 2006] Chief Engineer / Operation Dakshini Haryana
Bijli Vitran Nigam Ltd. & Anr. .....Appellants Versus Mauj Khan & Ors. .....Respondents
S.B. Sinha, J.
of a rule governing the conditions of service of the employees of the
appellant-Corporation, is the question involved in this appeal which arises out
of a judgment and order dated 28th October 2005 passed by a learned Single
Judge of the High Court of Punjab & Haryana at Chandigarh.
The basic fact
involved in the matter is not in dispute.
No.1 was appointed directly in the cadre of Upper Division Clerk (U.D.C.) on
06th May 1975. The terms and conditions of the said offer of appointment in the
scale of Rs.150-8-166/10-216/230-10-300 were :
"3. It should be
noted that the first two years of your service in the Board will be treated as
probationary period for the purpose of D.A. Examination which you will be
required to pass within two years of your joining this Department.
4. You will be
considered for confirmation against permanent vacant post after you have
completed two years probationary period and passed the Departmental Accounts
5. The failure to
clear the examination within five successive chances held immediately after six
months of your joining the service of the Board, may involve the loss of your
the respondent never appeared in the Departmental Examination. The rules
prescribed for appearance at the Departmental Examinations are contained in the
Manual of Orders of the Haryana State Electricity Board, of which the
appellant-Corporation was a constituent before its bifurcation. Clause 13
thereof reads as under :
Confirmation, grant of Annual Increment, Retention in Service, Promotion
etc.:- 3 (i) Promotion. A junior clerk, a Meter Clerk or a Cashier in the
Scale of Rs.50-3-8-/4-100 (or such other scale for such posts as may be
hereafter introduced or substituted for the scale of Rs.50-3- 80/4-100) shall
not be appointed to a post carrying a scale higher than that of the junior
Clerk, Meter Clerk or Cashier, until and unless he has passed the examination
in papers I to IV. The maximum number of chances allowed to take the
examination in one's service is fixed as five.
Note:- Those Junior
Clerks, Meter Clerks or Cashiers who have already passed in papers III and IV
of the examination according to the old rules will have to appear in papers I
and II of these Rules only in order to qualify themselves for the promotion to
the grade of a Senior Clerk.
(ii) Confirmation:- A
Senior clerk if he has been directly recruited as such, will not be appointed
in a substantive capacity in his post unless he has passed the examination in
papers I to IV. If he fails to pass the examination in papers I to IV within
three years of his appointment in the Branch, his increments falling due after
the first two increments from his first appointment, will be withheld until he
passes the examination and will not be granted with retrospective effect on his
passing the examination. On passing the examination he will with effect from
the date following that on which the examination ended, be entitled to the date
of pay which would have been admissible to him had his increment not been
withheld for his failure to pass the examination.
The failure of the
senior clerk to pass the examination in five successive examinations held
immediately after the expiry of six months from the date of his first
appointment may involve the loss of his appointment"
inter alia, on the premise that he had not passed the Departmental Examination
and thus was not entitled to obtain the benefit of the increment, the same was
not granted. Indisputably again, the services of the respondent no.1 were not
Haryana State Electricity Board issued a circular letter pursuant whereto all
the employees were to be granted the benefit of additional increment on
completion of 8/18 years of regular satisfactory service and higher standard
pay scale on completion of 10/20 years or more regular satisfactory service and
promotion to the next higher post.
all these benefits were denied to the respondent no.1, he filed a suit before
the Civil Judge, Gurgaon which was marked as Civil Suit No.464 of 1999 for
declaration with consequential relief of mandatory injunction. The learned
trial Judge, while declining the relief of grant of increments in the scale of
pay, opined that failure to appear in the Departmental Accounts Examination
would not stand in the way of the plaintiff from obtaining the benefit of
additional increment and/or higher scale of pay stating :
"16. The only
stand taken by defendants in declining the above said benefits to plaintiff is
that he has not passed the Departmental Accounts Examination. In my considered
opinion, said ground taken by defendants is that without any basis in as much
as grant of additional increments 5 on completion of 8/18 years of service and
grant of higher standard pay scale on completion of 10/20 years or more of
regular service is not subject to the passing of Departmental Accounts
Examination. Ld. Law Officer appearing for defendants could not quote any provision
of law which require UDCs to clear said examination for the purpose of grant of
above said benefits. Even in the rules of 1952 of anywhere also, there is no
provision regarding requirement of passing of Departmental Examination for
availing the above said benefits. With regard to grant of additional increments
and higher standard pay scale, the relevant documents which have been placed on
file are Ex.PW1/8, Ex.PW1/11 and Ex.PW1/12.
Perusal of said
documents shows that an employee is entitled to additional increments and
higher standard pay scale on completion of regular satisfactory service as
defined in the policy of the Government.
In this situation, it
was argued by ld. Law Officer that since plaintiff did not clear the
Departmental Accounts Examination, therefore, as per the terms and conditions
of offer of appointment, he shall be deemed to be on probation till the time he
clears the Departmental Examination and as such, he cannot be said to be
confirmed as UDC. Thus, above service benefits as claimed shall not be
admissible in favour of plaintiff.
There is no merit in
this contention in as much as the service of plaintiff were not dispensed with
by defendants on the ground of his non- passing the Departmental Accounts
He has been
continuing in the services of department for the last more than 29 years and as
such, notwithstanding the non-passing of Departmental Accounts Examination, he
shall be deemed to have been confirmed in the post of 6 UDC. Thus, plaintiff
is entitled to be considered for the benefit of additional increments, higher
standard pay scale and promotion.
17. On the same
reasons, plaintiff is also entitled to be considered for promotion to the next
higher post as there is no embargo against promotion of plaintiff for not
passing the Departmental Accounts Examination. An employee is to be promoted to
next higher post taking into consideration the length of service, his
performance and act and conduct in the post he is working just prior to
the aforementioned finding, it was directed :
"18. In the
facts and circumstances of present case, no direction can be issued to
defendants for giving the above said benefits to plaintiff straight away.
Rather in my opinion, plaintiff is entitled to be considered for the said
benefits because before conferment of above benefits in favour of plaintiff,
defendants would be required to see as to whether plaintiff has regular
satisfactory service to his credit as per the policy of State Govt. and whether
he is fit for promotion.
However, it is made
clear here that while considering the entitlement of plaintiff to above said
benefits, defendants shall not take non- passing of Departmental Accounts
Examination as a ground to reject the claim of plaintiff for above said
the parties preferred appeals thereagainst. By a judgment and order dated 30th
October 2004, the learned Additional District Judge, 7 Gurgaon, dismissed both
the appeals. A second appeal preferred thereagainst by the appellants has been
dismissed by the High Court by reason of the impugned judgment.
Arvind Nayar, learned counsel appearing on behalf of the appellants would
submit :- (i) Having regard to the stipulations contained in the offer of
appointment, respondent no.1 was not entitled either to increment or to
confirmation in service or promotion to the next higher post; and (ii) Thus,
period of probation would be deemed to have been extended as respondent no.1
was not entitled to any increment in the scale of pay and thus having not put
in a regular service was also not entitled to the benefit of additional
increment on completion of 8/18 years of regular satisfactory service or higher
standard pay scale on completion of 10/20 years of regular satisfactory service
and promotion to next higher post.
B.K. Satija, learned counsel appearing on behalf of the respondent no.1, on the
other hand, would urge that failure of the senior clerk to pass the 8
examination would not debar him from obtaining the benefit of the policy
decision adopted by the Haryana State Electricity Board in regard to obtaining
additional increment and/or higher scale of pay on completion of 8/18 years of
regular satisfactory service and/or higher standard pay scale on completion of
10/20 years or more of regular satisfactory service.
attention has also been drawn to a clarification issued by the State Government
in respect of the following question:
who were not being 21. Yes, the benefit of promoted to the next higher posts
due higher standard pay to not qualifying prescribed test or non scales is to
be given possession of essential qualifications in such like cases."
for promotion to the
next post, whether benefit of Higher standard pay scale is to be given to such
employee or not? The said clarification has been accepted by the Haryana State
Electricity Board by issuance of Circular No.117 dated 26th February 1996.
It was urged that the
learned trial Judge as also the appellate court having directed consideration
of the grant of benefit of the said circulars only, this Court, keeping in view
the fact that the respondent no.1 had been in service of the
appellant-Corporation for a period of more than 33 years, 9 should not
exercise its discretionary jurisdiction under Article 136 of the Constitution
no.1 was appointed directly to the post of officiating Upper Division Clerk on
a salary of Rs.150/- per month in the scale of pay of
Rs.150-8-166/10-216/230-10-300. Indisputably, he was put on probation for a
period of two years. The said probationary period was fixed for the purpose of
passing the Departmental Accounts Examination.
service of the employee was to be considered for confirmation only upon
completion of the said two years' probationary period as also passing of the
Departmental Accounts Examination. For the said purpose, only five successive
chances were required to be given to him to appear in the examination which
were to be held after six months of his joining of service. It has not been
denied or disputed that the matter relating to passing of the examination as
also the other conditions of service is governed by the service rules. Rule 13
provides for confirmation, grant of annual increment, retention in service, promotion
etc. For the purpose of obtaining any benefit in terms thereof, passing of the
examination in papers I to IV is imperative.
Even those who had
earlier appeared and passed papers III and IV of the examination in terms of
the old rules, were required to appear in papers I and II in terms of the said
rules in order to qualify themselves for promotion to 10 the grade of a senior
clerk. The rules further, in no uncertain terms, state that appointment in a
substantive capacity in the post held by the employee was subject to his
passing of the said examination. It was furthermore stipulated that in the
event he failed to pass the said examination within a period of three years of
his appointment in the Branch, his increments falling due after the first two increments
from his first appointment, shall be withheld until he passed the examination.
Even after passing the examination, increment was to be granted prospectively
and not retrospectively.
It, as noticed
hereinbefore, further stipulated that failure to pass the examination would
entail loss of his appointment.
15. Indisputably, the
matters relating to recruitment to a post, the period of probation,
confirmation subject to passing of the Departmental Examination are governed by
the statutory rules. Only on successful completion of the probationary period
and passing of the examination, the services of an employee could be confirmed.
Unless, services of an employee are confirmed, he could be treated to be in the
regular service of this Board.
learned trial Judge as also the appellate Court, in our opinion, thus, have
rightly held that as the respondent no.1 did not pass the Departmental Accounts
Examination, he was not entitled to be confirmed in service. The learned
Judges, however, in our opinion, committed a serious error in opining that the
circular letter relating to grant of additional increment and/or higher
standard pay scale would be applicable in the case of the respondent no.1.
neither the circular letter, in terms whereof the said benefits were to be
granted, was brought to our notice nor the connected rule was placed before us,
but, on a plain reading of the judgment of the learned trial Judge as also the
first Appellate Court, it is evident that the aforementioned benefits could be
conferred on the respondent no.1 only if he had completed the period stipulated
therein in regular service. Unless, the services of an employee are confirmed
so as to bring him on the cadre of regular employees, the question of completion
of 8/18 years, 10/20 years of regular satisfactory service would not arise. In
that view of the matter, it was wholly unnecessary for the appellants to
mention about the passing of the Departmental Examination by the concerned
employee for the purpose of availing the said benefit.
purported clarification issued by the State of Haryana to which our attention
has been drawn, in our opinion, is also not 12 relevant. The clarification
furnished by the State Government was in relation to those employees who were
not being promoted to the next higher post. The same must have reference to
those junior clerks whose services were confirmed but who had not been promoted
to the post of U.D.C. or higher posts. Once services are confirmed, an employee
would be borne on the regular cadre. He thus being in the regular service,
satisfactory completion of the stipulated period therein would entitle him to
the benefits thereof.
therefore, are of the opinion that the impugned judgment cannot be sustained.
however, remains that the appellants deliberately or otherwise despite a clear
provision contained in the rules did not terminate the services of the
respondent no.1. He was allowed to continue in service.
It is neither denied
nor disputed that despite the fact that he did not pass the Departmental
Accounts Examination, he was otherwise a competent officer. In fact, he has
been permitted to officiate on a higher post. In a situation of this nature, in
our opinion, the appellants had a duty to give him a warning. His case should
have been treated in terms of the rules. Failure on the part of the State to do
so, in our opinion, has seriously prejudiced 13 him. Had such warning being
given, he could have appeared in the examination.
It is the case of the
appellants that the respondent no.1 did not appear at the examination at all.
It has been held that the respondent is not entitled to the benefit claimed. He
was bound to pass the test within the prescribed period. On failure to pass the
test, his services were liable to be terminated.
Under the Rules, he
was not entitled to any warning regarding the failure to pass the test.
However, he was
allowed to continue in service and received the salary. What is denied is only
the benefit of additional increment which can be granted on fulfilling certain
conditions. In such circumstances, there may not be justification for payment
of compensation. Instead, the appellants should be directed not to deny
pensionary benefits to the respondent on the ground that his services were not
regularized/confirmed. Such direction is necessary only if there is a move to
deny pensionary benefits.
appeal is allowed subject to the aforementioned order. However, in the facts
and circumstances of the case, there shall be no order as to costs.