Back
2009 Supreme(SC) 986
IN THE SUPREME COURT OF INDIA
S.B. Sinha and Cyriac Joseph, JJ.
Chief Engineer / Operation Dakshini Haryana Bijli Vitran Nigam Ltd. & Anr. – Appellants
Versus
Mauj Khan & Ors. - Respondents
CIVIL APPEAL NO. 3311 OF 2008
[Arising out of SLP (C) No.12451 of 2006]
Decided on : May 06, 2009
IMPORTANT POINT
A warning alerts the employee against his lapses and helps him correct.
Headnote:(a) Manual of Orders of the Haryana State Electricity Board – Clause 13 – Respondent not passing DA examination – Not entitled to be confirmed in service. (Para 16)
(b) Service law – Circular announcing additional benefits to employees pouting up certain years of service – Courts holding respondent entitled to – ‘Service’ in the circular meaning regular service after confirmation – Respondent not confirmed and hence not borne on regular service not entitled to the benefits. (Para 17)
(c) Service law – Respondent not passing DA examination – Was liable to be terminated – Employers not terminating him – Not giving him any warning about examination or his liability to be terminated – Instead continuing him in service even without confirming him – Respondent, inspite of not passing the exam., found to be a competent officer – Held, although appellants rightly denied him the additional benefits he should be given pensionary benefits. (Para 18)
Facts of the case:
Respondent No.1 was appointed directly in the cadre of Upper Division Clerk (U.D.C.) on 06th May 1975 with a probation period of two years within which he was required to pass DA examination.
Respondent never appeared in the Departmental Examination.
No increment was granted and he was not confirmed.
The 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.
Respondent was denied all these benefits. He filed a suit.
Trial court directed for consideration of respondent’s case. It was also directed that while considering the entitlement of plaintiff to the benefits, his non- passing of Departmental Accounts Examination will not be taken as a ground to reject his claim.
The first second appellate courts have dismissed the appeals.
Finding of the Court:
Respondent having not been confirmed not entitled to the additional benefits. However, appellants should not deny him pensionary benefits.
Result:
Appeal partly allowed.
JUDGMENT
S.B. Sinha, J.
1. Leave granted.
2. Interpretation 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.
3. Respondent 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 Examination.
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 appointment."
4. Indisputably, 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 :
"13. Confirmation, grant of Annual Increment, Retention in Service, Promotion etc.:-
(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 ones 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"
5. Indisputably, 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 confirmed.
6. The 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 pos
