Chattisgarh High Court
Anil Kumar Shrivastava vs State Of Chhattisgarh on 20 December, 2024
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2024:CGHC:50560
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Order reserved on : 04.10.2024
Order delivered on : 20.12.2024
WPS No. 2583 of 2021
1. Anil Kumar Shrivastava S/o Shri V. P. Shrivastava Aged About
59 Years R/o F-8, Ralas Enclave Near Gaytri Hospital,
Dagnia, Raipur, Chhattisgarh
... Petitioner
versus
1. State Of Chhattisgarh Through Secretary, Energy
Department, Mantralaya, Naya Raipur Chhattisgarh
2. Chairman Chhattisgarh State Power Holding Company
Limited, Raipur, Vidyut Seva Bhawan, Danganiya, Raipur,
Chhattisgarh 492013
3. Managing Director Chhattisgarh State Power Holding
Company Limited, Raipur, Vidyut Seva Bhawan, Danganiya,
Raipur, Chhattisgarh 492013
4. General Manager (H. R.) Chhattisgarh State Power Holding
Company Limited, Raipur, Vidyut Seva Bhawan, Danganiya,
Raipur, Chhattisgarh 492013
5. Suresh Kumar Bajpayee (Add. C. E.) Through General
Manager (H. R.) Chhattisgarh State Power Holding Company
Limited, Raipur, Chhattisgarh
6. Kalesh Chandra Agrawal (Add. C. E.) Through General
Manager (H. R.) Chhattisgarh State Power Holding Company
Limited, Raipur, Chhattisgarh
7. Vimal Kumar (Add. C. E.) Through General Manager (H. R.)
Chhattisgarh State Power Holding Company Limited, Raipur,
Chhattisgarh
8. K. S. Ramakrihsna (Add. C. E.) Through General Manager
Digitally
(H. R.) Chhattisgarh State Power Holding Company Limited,
signed Raipur, Chhattisgarh
by
SHAYNA
KADRI
2 / 31
9. Kanti Kumar Mohabe Superintendent Engineer, Through
General Manager (H. R.) Chhattisgarh State Power Holding
Company Limited, Raipur, Chhattisgarh
10. Devendra Kumar Tuli Superintendent Engineer, Through
General Manager (H. R.) Chhattisgarh State Power Holding
Company Limited, Raipur, Chhattisgarh
11. Yogesh Kumar Rtd. Superintendent Engineer, Through
General Manager (H. R.) Chhattisgarh State Power Holding
Company Limited, Raipur, Chhattisgarh
12. Jayesh Boade Superintendent Engineer, Through General
Manager (H. R.) Chhattisgarh State Power Holding Company
Limited, Raipur, Chhattisgarh
13. Mushtak Ahmed Superintendent Engineer, Through General
Manager (H. R.) Chhattisgarh State Power Holding Company
Limited, Raipur, Chhattisgarh
... Respondents
For Petitioner : Ms. Surya Kawalkar Dangi, Advocate
For Respondent No.1 : Mr. Rishabh Bisen, Panel Lawyer
For Respondents No. 2 to 4 : Mr. Jitendra Pali, Advocate
For Respondents No. 5 to 13 : None though served
SB: Hon’ble Mr. Justice Parth Prateem Sahu
CAV Order
1. Petitioner has filed this writ petition seeking following reliefs:-
“10.1 That, this Hon’ble Court may kindly
be pleased to quash the revised
provisional seniority list of Executive
Engineer as on 01.04.2018 issued on
19.09.2019 (Annexure P/1) and the
consequential promotion orders of the
private respondents (Annexure P/2).
Further, this Hon’ble Court may be pleased
to direct the respondents to revive the
previous gradation issued on 24.07.2019
(Annexure P/6)
10.2. That, this Hon’ble Court may kindly
be pleased to hold that the judgment
passed by this Hon’ble Court in WPS No.
993 / 2008 will bind the State of
3 / 31Chhattisgarh and not the High Court of
M.P.
10.3 That, this Hon’ble Court may kindly
be pleased to grant any other relief (s),
which is deemed fit and proper in the
aforesaid facts and circumstances of the
case.
10.4. This Hon’ble Court may kindly be
pleased to set aside the order dated
24.10.2019 (Annexure P/11) as illegal and
bad in law.”
2. Learned counsel for petitioner submitted that petitioner was
initially appointed on 11.5.1985 on the post of Assistant
Engineer in the then Madhya Pradesh State Electricity Board.
After bifurcation of State of Madhya Pradesh, services of
petitioner were allocated to newly carved out State of
Chhattisgarh. In the year 2008, the State Electricity Board
was dissolved and in its place five new companies were
formed. Petitioner was deputed in Chhattisgarh State Power
Holding Company Limited. It is contention of learned counsel
for petitioner that while serving in erstwhile State of Madhya
Pradesh, petitioner along with private respondents herein was
granted time bound promotion, as per Time bound Promotion
Scheme higher pay-scale was granted to them. In the
gradation list, as on 1.4.1990, name of petitioner was above
the name of private respondents herein and even after
allocation of their services to the State of Chhattisgarh, in the
gradation list prepared in Chhattisgarh, name of petitioner
was placed above the private respondents herein.
4 / 31
Chhattisgarh Vidhyut Abhiyanta Sangh, a registered
association of Engineers working in the Chhattisgarh State
Electricity Board, filed writ petition bearing WPC No.993/2008
claiming seniority in the cadre of Executive Engineer from the
date of grant of benefit of time bound promotion under the
Time Bound Promotion Scheme. Said writ petition filed by
association was opposed by respondent State on the ground
that seniority on the cadre can be granted only when the
employees concerned assumed the charge in the said cadre.
Coordinate Bench of this Court after considering decision of
Hon’ble Supreme Court on the issue dismissed the writ
petition vide order dated 10.8.2018. Said order dated
10.8.2018 was not challenged either by the association or
respondents to said writ petition and as such, the issue with
respect to granting seniority from the date when benefit of
time bound promotion as per scheme was granted, has
attained finality. She further submits that in the gradation list
prepared in the month of July, 2019 also name of petitioner
was placed at Sr. No.3 i.e. above private respondents herein.
Surprisingly, respondent Nos. 2 to 4 vide order dated
19.9.2019 issued an order that time bound promotion granted
to the Executive Engineers as per scheme of the year 1999
be treated as regular promotion and accordingly published
provisional gradation list as on 01.04.2018 and in this
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provisional gradation list name of petitioner is placed at Sr.
No.12. Petitioner submitted objection to provisional gradation
list, however, the decision on objection raised by petitioner
was not intimated to him. Rejection of representation of
petitioner by respondent concerned only came to knowledge
of petitioner when respondents filed reply to writ petition and
immediately thereafter petitioner amended writ petition to that
extent bringing said facts also on record and challenging the
order of rejection of representation.
3. She next contended that Annexure P-1 is passed by
respondent Holding Company only considering the decision of
the High Court of Madhya Pradesh in writ petition which was
affirmed in writ appeal as well in special leave petition by
Hon’ble Supreme Court. Special Leave Petition filed by the
Electricity Company of Madhya Pradesh was dismissed in
limine and Hon’ble Supreme Court has not passed detailed
order considering the law and therefore, said order cannot be
treated as law laid down by Hon’ble Supreme Court on any
issue. In support of her contention, she placed reliance upon
the decision of Hon’ble Supreme Court in case of UP State
Road Transport Corporation vs. Omaditya Verma and others,
reported in (2005) 4 SCC 424.
4. She further contended that respondent Company with whom
petitioner is working is situated within territorial jurisdiction of
6 / 31
the High Court of Chhattisgarh, once the order is passed by
the High Court of Chhattisgarh on the same issue denying
benefit of seniority in the cadre of which only financial benefit
under the scheme of time bound promotion was granted and
not promotion, then respondents No.2 to 4 are bound by the
order passed by this Court. In support of her contention she
placed reliance on decisions rendered in cases of
Commissioner of Income Tax vs. Thana Electricity Supply
Ltd., 1993 SCC Online Bom 591; Bishnu Ram Borah vs.
Parag Saikia, (1984) 2 SCC 488; Deputy Commissioner of
Income Tax vs. Raghuvir Synthetics Limited, Ahmedabad,
reported in (2017) 13 SCC 733.
5. Learned counsel for respondent Nos.2 to 4 vehemently
opposed submissions of learned counsel for petitioner and
submit that after publication of gradation list, petitioner has
not challenged the same. Final gradation list was published
on 24.10.2019 and writ petition is filed by petitioner only after
grant of time bound promotion on the post of Executive
Engineer vide order dated 31.3.2021. Order of promotion in
favour of private respondents is on the post of Additional
Chief Engineer, therefore, promotion granted to private
respondents is not to be disturbed. Submission of learned
counsel for petitioner that order of High Court of Madhya
Pradesh ought not to have been considered, is misplaced.
7 / 31
Time-bound promotion scheme is formulated in the erstwhile
Madhya Pradesh Electricity Board of whom petitioner and
private respondents were also employees and the benefit of
time-bound promotion was granted to respondents during
their posting in erstwhile State of MP. As the issue decided by
High Court of MP is on the same rules with which similarly
situated employees of the State of MP, petitioner as also
private respondents are governed and further considering that
the order passed by the learned Single Judge was affirmed by
the Division Bench in writ appeal and thereafter by Hon’ble
Supreme Court in special leave petition filed by the employer,
the law laid down by High Court of MP has been considered
and accordingly respondents have acted upon. There is no
error on the part of respondent No.2 to 4. Petitioner was
promoted vide order dated 6.2.2023 along with two others,
hence, he is not entitled for any benefit as claimed in this writ
petition. He also contended that Madhya Pradesh Power
Management Company Limited has sent a communication to
respondent No. 3 – Managing Director, Chhattisgarh State
Power Holding Company Limited, Raipur about filing of writ
petition as also order passed therein and order of Hon’ble
Supreme Court dismissing S.L.P. filed by employer therein.
He submits that in the said letter / communication, it is also
mentioned that as the order of High Court of Madhya Pradesh
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was upheld by Hon’ble Supreme Court and T.B.P.S. Scheme
was implemented in the undivided Madhya Pradesh Electricity
Board, therefore, in order to implement directive of Hon’ble
Supreme Court / High Court, it is imperative that all similar
situated persons working in the undivided Madhya Pradesh
Electricity Board be considered similarly and the order be
implemented. He further contended that they advice to revise
seniority on the basis of aforementioned judicial
pronouncement in the matter relating to officers working in
erstwhile Madhya Pradesh Electricity Board before bifurcation
and now working in C.S.E.B. / Chhattisgarh Power
Companies. He also pointed out further directive was
received by Energy Department, Government of Chhattisgarh
to obey order passed by Hon’ble Apex Court.
6. At this stage, learned counsel for petitioner submits that as
this Court has rejected relief claimed by the association
claiming benefit of promotion from the date on which benefit
of time bound promotion, therefore, effect of promotion is to
be granted and name of petitioner ought to have been
considered first above private respondents herein. Hence,
petitioner is entitled for the benefit of promotion w.e.f.
31.3.2021, the date from when juniors to petitioner were
promoted.
9 / 31
7. I have heard learned counsel for the respective parties and
also perused the documents placed along with the record.
8. Challenge in this writ petition is to the seniority list of the
Executive Engineer prepared by the respondent-employer as
on 01.04.2018 issued on 19.09.2019 (Annexure P/1) and
based upon which, consequential promotion orders of private
respondents (Annexure P/2). Further relief is sought that
judgment passed in W.P.S No. 993 of 2008 is binding upon
the State of Chhattisgharh, to set-aside order dated
24.10.2019 (Annexure P/11) whereby representation
submitted by petitioner against gradation list was rejected.
9. From the submission made by learned counsel for
respondent, it is apparent that preparation of gradation list
Annexure P/1 is based on order dated 19.04.2018 passed by
High Court of Madhya Pradesh in Writ Petition No. 10339 of
2011 and connected matters which was affirmed in Writ
Appeal and S.L.P. filed against which was dismissed. In the
gradation list dated 19.09.2019, name of petitioner has been
placed at serial No. 12 whereas in the earlier gradation list
prepared by respondent as on 01.04.2018 dated 24.07.2019,
his name was placed at serial No. 3 (Annexure P/6). Based
on the gradation list (Annexure P/1) dated 19.09.2019, four
Superintending Engineers were appointed on promotion on
the post of Additional Chief Engineer (Civil) vide order dated
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30.03.2021 (Annexure P/2). In the said promotion order, all
the four persons who were promoted were placed below
petitioner in the gradation list dated 24.07.2019.
10. After preparation of gradation list (Annexure P/6) dated
24.07.2019, fresh gradation list was prepared within four
months i.e. on 19.09.2019 based on the decision of High
Court of Madhya Pradesh, however, while reviewing the
gradation list dated 24.07.2019, respondent No. 4 has not
taken into consideration decision of this Court in W.P.S. No.
993 of 2008 wherein respondent No. 3 is also party
respondent to that writ petition. The said writ petition was filed
seeking seniority from 07.05.1999, the date on which benefit
of time bound promotion scheme was granted to Assistant
Engineers and other employees in the erstwhile State of
Madhya Pradesh by Madhya Pradesh Electricity Board.
Respondent No. 3 herein and sole respondent in earlier writ
petition has opposed the prayer made. Court upon
considering rival submissions made by counsel for the
respective parties therein as also decision of Hon’ble
Supreme Court on the point, had dismissed the claim /
petition filed by Chhattisgarh Vidyut Mandal Abhiyanta Sangh,
Registered Society and Association of Engineers vide its
order dated 10.08.2018. In the said order, Court has also
considered Clause of T.B.P.S. dated 07.05.1999 that by
11 / 31
change of name of post of persons who were benefited with
the time bound promotion scheme will not effect their work
and will not effect gradation list of Assistant Engineers.
Operative portion of order is extracted below for ready
reference :
“12. The aforesaid clause of the policy
clearly states that time bound promotion
would not affect the seniority and gradation
and it will be as per their substantive post
and the officers promoted under this
scheme will be remain posted in their
respective posts.
13. In view of the aforesaid clause in the
policy itself and in view of the settled legal
position, officers promoted under the TBPS
policy are not entitled for seniority from the
date of their promotion under the TBPS
policy on the posts of Executive Engineer
and Superintending Engineer. In view of the
above, as the petition suffers from delay
and laches and is also not maintainable at
the instance of Association, I do not find
any merit in the petition. The writ petition
deserves to be and is accordingly
dismissed leaving the parties to bear their
own cost(s)”
11.From the contents of the order, it is apparent that High Court
of Chhattisgarh in Writ Petition No. 993 of 2008 has
considered claim of Association of Engineers on merits also
and dismissed the claim observing that officer promoted
under T.B.P.S. policy are not entitle for seniority from the date
of their promotion under the T.B.P.S. policy on the post of
Executive Engineer and Superintending Engineer and on
12 / 31
other grounds also. Respondents along with the reply have
also enclosed copy of order of promotion dated 07.09.2022
which is an order of promotion based on recommendation of
review DPC-2021 promoting Executive Engineers (General)
to the post of Superintending Engineers (General). In this
order also, there is mention that order of promotion is in
accordance with the order passed by High Court of
Chhattisgarh in W.P.S. Nos. 4050 of 2021, 4586 of 2021,
5545 of 2021, 5587 of 2021 and 1813 of 2022 and the
decision taken by Board of Directors, CSPGCL. Under the
note No. 1, similar observation is made. The order of High
Court, as referred in the aforementioned writ petition, is not
the order on merits of claim of petitioner therein. Relevant
portion of order is extracted below for ready reference :
“2. To the limited relief sought for, the writ
petition at this juncture stands disposed of
directing the respondent no.2 to 6 to take
appropriate decision on the claim of the
petitioner for grant of seniority on the post
of Assistant Engineer and the
consequential reliefs for further promotion
in terms of the order passed by the Madhya
Pradesh High Court in an identical set of
bunch of writ petitions decided in respect of
counter parts of petitioner working in the
State of Madhya Pradesh under the M.P.
Power Holding Company.”
12. Respondent No. 4 herein is also party respondent as
respondent No. 3 in those writ petitions, however, respondent
13 / 31
No. 3 has not brought to the notice of Court of decision taken
by High Court of Chhattisgarh in W.P.S. No. 993 of 2008
dated 10.08.2018 rejecting claim on merits. In the
aforementioned facts fo the case, question arise for
consideration of this Court is whether decision of High Court
of Madhya Pradesh will have binding effect upon respondents
when, there is a decision on the same issue of High Court of
Chhattisgarh in W.P.S. No. 993 of 2008 and further that what
will be the effect of order passed by Hon’ble Supreme Court
when S.L.P. filed by Madhya Pradesh Electricity Board,
challenging order of Division Bench of High Court of Madhya
Pradesh in Writ Appeal No. 933 of 2018 when dismissed in
limine.
13. On the second point, order of Hon’ble Supreme Court
dismissing S.L.P. in limine without discussing merits of the
case and passing detailed order dealing with the point raised
for consideration would not be treated as law laid down by
Hon’ble Supreme Court.
14. Hon’ble Supreme Court in case of U.P. State Road
Transport Corporation through its Chairman vs.
Omaditya Verma and others reported in (2005) 4 SCC 424
while dealing with the point whether dismissal of S.L.P. in
limine would amount to res judicata or will have effect of
14 / 31
merger of High Court order with that of Supreme Court order,
has observed as under :
“7. In fact, we have reproduced the relevant
portions of the two notifications in the
beginning of this judgment. The main
purpose of reproduction of both
notifications was to show that the route in
question i.e. Muzaffarnagar to Chhajlet
covers the notified route from Bijnore to
Noorpur which is notified route since 1951.
We fail to understand how permit could be
granted by the resolution dated 14/15-6-
1993 from Muzaffarnagar to Chhajlet in
face of the notified scheme of 1951 from
Bijnore to Noorpur. The scheme was of
total exclusion. In fact the resolution dated
14/15-6-1993 is totally unmindful of the
1951 notification that the route from Bijnore
to Noorpur which falls on the route from
Muzaffarnagar to Chhajlet is notified route.
This fact was nowhere brought to the notice
of the authorities either before the Regional
Transport Authority or the State Transport
Authority or before the High Court of
Allahabad or for that matter to the Apex
Court. This Court by order dated 21-7-1995
only remanded the matter back to the
Tribunal for its decision. In those appeals
before the State Transport Appellate
Tribunal, the present appellant i.e. U.P.
SRTC was not a party. The dispute before
this Court was between the operators and
the authorities and U.P. SRTC was not
made a party when the whole matter was
remanded before the Tribunal. Had U.P.
SRTC been made a party before the Apex
Court they would have brought to the notice
of the Apex Court that a portion of the route
from Bijnore to Noorpur is notified route.
When the entire matter was remanded back
to the Tribunal by the Apex Court by order
15 / 31dated 21-7-1995, another notification was
issued on 3-9-1994 whereby the route from
Muzaffarnagar to Bijnore via Jansath,
Meerapur and Dewal was also notified.
Strangely enough U.P. SRTC was not a
party before the Apex Court or before STAT.
It is for the first time in 1993 before the High
Court that U.P. SRTC was impleaded as a
respondent. It is true that when the
resolution dated 14/15-6-1993 was passed
at that time the route from Muzaffarnagar to
Bijnore via Jansath, Meerapur and Dewal
was not notified but the route from Bijnore
to Noorpur was already notified on 12-2-
1951 and we do not understand how the
Regional Transport Authority and the State
Transport Authority could ignore this fact
that the portion from Bijnore to Noorpur
which falls on the route from Muzaffarnagar
to Chhajlet was notified, permits were
granted on this notified route. This
ignorance appears to be bona fide as
nobody seems to have been cognizant of
the notification dated 12-2-1951. The
appellant U.P. SRTC could have been alive
to the situation and should have moved the
Tribunal and should have brought this fact
to their notice but the appellant did not
choose to take any step. We cannot
appreciate their lack of vigilance. Be that as
it may, the authorities issuing permits from
Muzaffarnagar to Chhajlet should have at
least known that a portion of the route
falling from Bijnore to Noorpur is a notified
route. It is true that this matter has travelled
up to the Apex Court and it has gone
through various litigation but nobody
brought to the notice of the authorities that
the route from Bijnore to Noorpur is a
notified one and no permit could be granted
on this route. It is needless to state that
once it is a nationalised route, there is
16 / 31prohibition to permit any private vehicle to
ply except by amending the scheme. It is
the mandate of the law and that cannot be
ignored. More so, at the time when this
order was passed by the Division Bench of
the High Court the route from
Muzaffarnagar to Bijnore via Jansath,
Meerapur and Dewal stood notified on 3-9-
1994. We regret to say that the Division
Bench of the High Court has overlooked
this aspect of the matter and proceeded to
decide the matter on the assumption that
the effect of this notification dated 3-9-1994
has already been taken into consideration.
We fail to appreciate this aspect. Once the
route from Muzaffarnagar to Bijnore via
Jansath, Meerapur and Dewal has already
been notified on 3-9-1994 how can the High
Court direct the appellant to grant permit on
the aforesaid route. It is true that when
resolution which was passed on 14/15-6-
1993, by then the notification dated 3-9-
1994 had not come into operation but once
the scheme under notification dated 3-9-
1994 came into operation and the whole
route from Muzaffarnagar to Bijnore stood
notified and the route from Bijnore to
Noorpur was already notified by notification
dated 12-2-1951, how can mandamus be
issued by the High Court directing the
authorities to grant permits to the 38
operators. This Court while remanding the
matter did not go into all these questions.
This Court only remanded the matter to the
Tribunal as disputed questions of facts
were involved. The other special leave
petitions were dismissed in limine. That
does not amount to merger of the High
Court order with that of this Court’s order.
The dismissal in limine does not amount to
upholding of the law propounded in the
decision sought to be appealed against.
17 / 31
This is a settled proposition of law now.
Reference may be made to:
Indian Oil Corpn. Ltd. v. State of Bihar
[(1986) 4 SCC 146 : 1986 SCC (L&S)
740] :
“Held :
The dismissal of a special leave
petition in limine by a non-speaking
order does not justify any inference
that by necessary implication the
contentions raised in the special leave
petition on the merits of the case have
been rejected by Supreme Court. The
effect of a non-speaking order of
dismissal of a special leave petition
without anything more indicating the
grounds or reasons of its dismissal
must, by necessary implication, be
taken to be that Supreme Court had
decided only that it was not a fit case
where special leave should be granted.
It cannot be assumed that it had
necessarily decided by implication all
the questions in relation to the merits
of the award, which was under
challenge before Supreme Court in the
special leave petition.
A writ petition is a wholly different and
distinct proceeding. Although questions
which can be said to have been
decided by Supreme Court expressly,
implicitly or even constructively while
dismissing the special leave petition
cannot be reopened in a subsequent
writ proceeding before the High Court,
but neither on the principle of res
judicata nor on any principle of public
policy analogous thereto, would the
order of Supreme Court dismissing the
special leave petition operate to bar
the trial of identical issues in a
separate proceeding namely, the writ
18 / 31proceeding before the High Court
merely on the basis of an uncertain
assumption that the issues must have
been decided by Supreme Court at
least by implication. The exercise of
discretionary jurisdiction of the High
Court to grant leave under Article 226
is to be guided by established legal
principles. It will not be a sound
exercise of that discretion to refuse to
consider a writ petition on its merits
solely on the ground that a special
leave petition filed by the petitioner in
the Supreme Court had been
dismissed by a non-speaking order.”
(SCC p. 146)
Supreme Court Employees’ Welfare
Assn. v. Union of India [(1989) 4 SCC
187 : 1989 SCC (L&S) 569] :
“Articles 226 and 136 — Res
judicata — Supreme Court dismissing
SLP in limine — Held, decision of High
Court against which the SLP had been
filed would not thereby operate as res
judicata — Civil Procedure Code,
1908, Section 11″ (SCC p. 195)
P. Nallammal v. State [(1999) 6 SCC
559 : 1999 SCC (Cri) 1133] :
“– Arts. 136 and 141 — Effect
of grant/dismissal of SLP — Dismissal
of SLP does not amount to upholding
of the law propounded in the decision
sought to be appealed against” (SCC
p. 560)
CIT v. Shree Manjunatheaware
Packing Products & Camphor Works
[(1998) 1 SCC 598] :
” — Art. 136 — Summary
dismissal of SLP — Effect — Held,
19 / 31does not mean approval of the view
taken by the High Court” (SCC p. 599)”
15. From the aforementioned law annunciated by Hon’ble
Supreme Court, it is clear that though S.L.P. filed by appellant
/ employer therein was dismissed in limine, however, it will not
have the effect of approval of the view taken by High Court of
Madhya Pradesh and therefore, order of Hon’ble Supreme
Court in S.L.P. Civil Diary No. 3367 of 2019 is not to be read
as the law laid down by Hon’ble Supreme Court.
16. This takes me to deal with the first point as formulated above.
17. It is not in dispute that though prior to 01.11.2000, petitioner
and private respondents were employees of Madhya Pradesh
Electricity Board, however, after reorganization of the State of
Madhya Pradesh and carving out of State of Chhattisgarh,
employee working within the State of Madhya Pradesh and
that of State of Chhattisgarh separated. In the State of
Chhattisgarh, Chhattisgarh State Electricity Board was
constituted, however, after passage of time, Chhattisgarh
State Electricity Board was dissolved and four companies
were constituted including one of which is Chhattisgarh State
Power Holding Company Limited, Raipur of which petitioner
and private respondents are employee. After long lapse of
time of reorganization of State, employees working in both the
States have filed writ petitions almost seeking similar reliefs.
20 / 31
Writ petition filed in High Court of Madhya Pradesh came up
for hearing on 19.04.2018 and was decided in favour of
employees therein. Writ petition filed in State of Chhattisgarh
by an employee working within the State of Chhattisgarh and
in Chhattisgarh State Power Holding Company Limited,
Raipur, a different employer, came up for hearing on
10.08.2018 in W.P.S. No. 993 of 2008. Said writ petition was
considered on merits and as discussed above, it was
dismissed holding that “officers promoted under the T.B.P.S.
policy are not entitled for seniority from the date of their
promotion under the T.B.P.S. policy on the post of Executive
Engineer and Superintending Engineer.”
18. In the aforementioned facts of the case, respondent-Company
who is also party to the writ petition is bound by the order
passed by High Court of Chhattisgarh. Once there is a judicial
order of High Court of Chhattisgarh, it has to be acted upon
and implemented in its words and spirit. Merely because
some other High Court has taken a different view will not in
itself be sufficient for respondent-Company to adopt the said
view by-passing order of High Court of Chhattisgarh which is
having binding effect under the law upon the respondent-
Company.
19. In the gradation List (Annexure P/1) it only mentions that only
because there is an order of High Court of Madhya Pradesh,
21 / 31
gradation list is revised which, in the opinion of this Court, is
erroneous decision taken by the respondent-Company. If at
all, respondent-Company considered that private
respondent/other employees are entitled for seniority from the
date of T.B.P.S., it was for them to challenge decision of Co-
ordinate Bench of this Court in W.P.S. No. 993 of 2008 dated
10.08.2018 before higher Court or could have sought review
of the order on the ground available to them, if any. The order
passed in the aforementioned writ petition remained
unchallenged and it has attained finality.
20. In case of Bishnu Ram Borah and Another vs. Parag
Saikia and others, reported in (1984) 2 SCC 488, Hon’ble
Supreme Court while considering grounds raised by
appellants therein that Board of Revenue has not complied
with the direction issued by High Court has observed thus :
“11. It is regrettable that the Board of
Revenue failed to realize that like any other
subordinate tribunal, it was subject to the
writ jurisdiction of the High Court under
Article 226 of the Constitution. Just as the
judgments and orders of the Supreme
Court have to be faithfully obeyed and
carried out throughout the territory of India
under Article 142 of the Constitution, so
should be the judgments and orders of the
High Court by all inferior courts and
tribunals subject to their supervisory
jurisdiction within the State under Articles
226 and 227 of the Constitution. We cannot
but deprecate the action of the Board of
Revenue in refusing to carry out the
22 / 31directions of the High Court. In Bhopal
Sugar Industries Limited v. ITO [AIR 1961
SC 182 : (1961) 1 SCR 474 : (1961) 1 SCJ
191 : (1960) 40 ITR 618] , the Income Tax
Officer had virtually refused to carry out the
clear and unambiguous directions which a
superior tribunal like the Income tax
Appellate Tribunal had given to him by its
final order in exercise of its appellate
powers in respect of an order of
assessment made by him. The Court held
that such refusal was in effect a denial of
justice and is furthermore destructive of one
of the basic principles in the administration
of justice based as it is in this country on
the hierarchy of courts……..”
21. Hon’ble Supreme Court in case of Deputy Commissioner of
Income Tax vs. Raghuvir Synthetics Limited reported in
(2017) 13 SCC 733 while considering divergence of opinion
between various High Courts’ and that of view take by Gujarat
High Court to be binding upon assessee who is having
registered office in the State of Gujarat and observed thus :
“9. We find that there was a divergence of
opinion between the various High Courts;
one view being taken by the Madras High
Court in CIT v. Kisenchand Chellaram
(India) (P) Ltd. [CIT v. Kisenchand
Chellaram (India) (P) Ltd., 1979 SCC
OnLine Mad 343 : (1981) 130 ITR 385
(Mad)] , Andhra Pradesh High Court in
Warner Hindustan Ltd. v. CIT [Warner
Hindustan Ltd. v. CIT, 1987 SCC OnLine AP
473 : (1988) 171 ITR 224] , Kerala High
Court in Federal Bank Ltd. v. CIT [Federal
Bank Ltd. v. CIT, (1989) 180 ITR 241 (Ker)]
and Karnataka High Court in Hindustan
Machine Tools Ltd. v. CIT [Hindustan
23 / 31Machine Tools Ltd. v. CIT, 1988 SCC
OnLine Kar 103 : (1989) 175 ITR 220] that
the preliminary expenses incurred on
raising a share capital is a revenue
expenditure.
10. On the other hand, a contrary view was
expressed by the Allahabad High Court in
CIT v. Modi Spg. & Wvg. Mills Co. Ltd. [CIT
v. Modi Spg. & Wvg. Mills Co. Ltd., 1972
SCC OnLine All 446 : (1973) 89 ITR 304] ,
Himachal Pradesh High Court in Mohan
Meakin Breweries Ltd. v. CIT [Mohan
Meakin Breweries Ltd. v. CIT, 1979 SCC
OnLine HP 26 : (1979) 117 ITR 505] , Delhi
High Court in Bharat Carbon and Ribbon
Mfg. Co. Ltd. v. CIT [Bharat Carbon and
Ribbon Mfg. Co. Ltd. v. CIT, 1980 SCC
OnLine Del 418 : (1981) 127 ITR 239] ,
Calcutta High Court in Brooke Bond India
Ltd. v. CIT [Brooke Bond India Ltd. v. CIT,
1981 SCC OnLine Cal 346 : (1983) 140 ITR
272] and Kesoram Industries & Cotton Mills
Ltd. [Kesoram Industries and Cotton Mills
Ltd. v. CIT, 1991 SCC OnLine Cal 388 :
(1992) 196 ITR 845] , Bombay High Court
in Bombay Burmah Trading Corpn. Ltd. v.
CIT [Bombay Burmah Trading Corpn. Ltd. v.
CIT, 1982 SCC OnLine Bom 395 : (1984)
145 ITR 793] , Punjab & Haryana High
Court in Groz Beckert Saboo Ltd. v. CIT
[Groz Beckert Saboo Ltd. v. CIT, 1985 SCC
OnLine P&H 500 : (1986) 160 ITR 743] ,
Gujarat High Court in Ahmedabad Mfg. &
Calico (P) Ltd. v. CIT [Ahmedabad Mfg. &
Calico (P) Ltd. v. CIT, 1986 SCC OnLine
Guj 154 : (1986) 162 ITR 800] and Alembic
Glass Industries Ltd. v. CIT [Alembic Glass
Industries Ltd. v. CIT, 1992 SCC OnLine
Guj 229 : (1993) 202 ITR 214] , Andhra
Pradesh High Court in Vazir Sultan Tobacco
Co. Ltd. v. CIT [Vazir Sultan Tobacco Co.
Ltd. v. CIT, 1988 SCC OnLine AP 412 :
24 / 31
(1988) 174 ITR 689] and Rajasthan High
Court in CIT v. Aditya Mills [CIT v. Aditya
Mills, 1989 SCC OnLine Raj 356 : (1990)
181 ITR 195] and CIT v. Multi Metals Ltd.
[CIT v. Multi Metals Ltd., 1990 SCC OnLine
Raj 456 : (1991) 188 ITR 151] , that the
said expenses are capital expenditure and
cannot be allowed as revenue expenditure.
11. Even though it is a debatable issue but
as the Gujarat High Court in Ahmedabad
Mfg. & Calico (P) Ltd. [Ahmedabad Mfg. &
Calico (P) Ltd. v. CIT, 1986 SCC OnLine
Guj 154 : (1986) 162 ITR 800] had taken a
view that it is capital expenditure which was
subsequently followed by Alembic Glass
Industries Ltd. v. CIT [Alembic Glass
Industries Ltd. v. CIT, 1992 SCC OnLine
Guj 229 : (1993) 202 ITR 214] and the
registered office of the respondent
assessee being in the State of Gujarat, the
law laid down by the Gujarat High Court
was binding.”
22. So far as submission made by learned counsel for
respondents No. 2 to 4 based on communication made by
Madhya Pradesh Power Management Company Limited
dated 13.09.2019 is concerned, perusal of it would show that
it only mentions that Chhattisgarh State Electricity Board /
C.S.E.B. or subsidiary companies can take appropriate
proceedings or the decision with respect to the employees
working with them. Said letter / communication would not
have any binding effect because employer in the State of
Madhya Pradesh is different whereas employer in the State of
Chhattisgarh is different. Submission of learned counsel for
25 / 31
respondent No. 2 to 4 that there was an advice given by
Madhya Pradesh Power Management Company Limited and
based on directives issued by Energy Department,
Government of Chhattisgarh, there was no other option but to
provide benefit on the basis of revised seniority list to the
Executive Engineer (Civil), in view of decision of this Court in
Writ Petition No. 993 of 2008, is not sustainable.
23. In view of the afore-discussions, facts of the case and law laid
down by Hon’ble Supreme Court, in the opinion of this Court,
respondent-Company has acted arbitrarily and illegally in by-
passing order passed by High Court of Chhattisgarh in W.P.S.
No. 993 of 2008 dated 10.08.2018 and only following the
order of High Court of Madhya Pradesh dated 19.04.2018 and
therefore, decision taken by respondent-Company for revising
gradation list dated 24.07.2019 w.e.f. 01.04.2018 vide order
dated 19.09.2019 w.e.f. 01.04.2018.
24. According to return to the two amended paragraph of writ
petition, after filing of writ petition, petitioner was also
promoted to the post of Additional Chief Engineer (Civil) on
06.02.2023 and while working on the said post, he stood
retire from service on 30.09.2023. In the aforementioned
changes circumstances, during pendency of writ petition, it is
to be considered that what relief can be granted to petitioner
herein.
26 / 31
25. Private respondents have been promoted vide order dated
30.03.2021 on the post of Additional Chief Engineer, pursuant
to revised gradation list dated 19.09.2019 wherein gradation
list prepared is of Executive Engineer (Civil) w.e.f.
01.04.2018. Gradation list dated 24.07.2019 w.e.f. 01.04.2018
mentions name of petitioner above private respondent i.e.
four persons who have been promoted vide order dated
30.03.2021 (Annexure P/2) they were placed at serial No. 4,
5, 7 and 8.
26. Hon’ble Supreme Court in case of Sheshambal (Dead)
through Lrs. vs. Chelur Corporation Chelur Bhilding and
others reported in (2010) 3 SCC 470 while considering power
of Court to mould the relief has observed thus :
“19. To the same effect is the decision of
this Court in Om Prakash Gupta case
[(2002) 2 SCC 256] where the Court
declared that although the ordinary rule of
civil law is that the rights of the parties
stand crystallised on the date of the
institution of the suit yet the court has
power to mould the relief in case the
following three conditions are satisfied:
(SCC p. 263, para 11)
“11. … (i) that the relief, as claimed
originally has, by reason of subsequent
events, become inappropriate or
cannot be granted;
(ii) that taking note of such subsequent
event or changed circumstances would
shorten litigation and enable complete
justice being done to the parties; and
27 / 31
(iii) that such subsequent event is
brought to the notice of the court
promptly and in accordance with the
rules of procedural law so that the
opposite party is not taken by surprise.”
27. Hon’ble Supreme Court in case of Gaiv Dinshaw Irani and
Others vs. Tehmtan Irani and Others reported in (2014) 8
SCC 294 in paragraph 49, 51 and 53 has observed thus :
“49. The abovementioned principle has
been recognised in a catena of decisions.
This Court by placing reliance on
Pasupuleti Venkateswarlu case [(1975) 1
SCC 770] , held in Ramesh Kumar v.
Kesho Ram [1992 Supp (2) SCC 623] that:
(SCC pp. 626-27, para 6)
“6. The normal rule is that in any
litigation the rights and obligations of
the parties are adjudicated upon as
they obtain at the commencement of
the lis. But this is subject to an
exception. Wherever subsequent
events of fact or law which have a
material bearing on the entitlement of
the parties to relief or on aspects which
bear on the moulding of the relief
occur, the court is not precluded from
taking a ‘cautious cognizance’ of the
subsequent changes of fact and law to
mould the relief.”
51. This Court in Rajesh D. Darbar v.
Narasingrao Krishnaji Kulkarni [(2003) 7
SCC 219] , a matter regarding the elections
in a registered society, held that the courts
can mould relief accordingly taking note of
subsequent events. Furthermore, in Beg
Raj Singh v. State of U.P. [(2003) 1 SCC
726] while deciding on the issue of renewal
of a mining lease held that: (SCC pp. 729-
30, para 7)
28 / 31
“7. … A petitioner, though entitled to
relief in law, may yet be denied relief in
equity because of subsequent or
intervening events i.e. the events
between the commencement of
litigation and the date of decision. The
relief to which the petitioner is held
entitled may have been rendered
redundant by lapse of time or may
have been rendered incapable of being
granted by change in law. There may
be other circumstances which render it
inequitable to grant the petitioner any
relief over the respondents because of
the balance tilting against the petitioner
on weighing inequities pitted against
equities on the date of judgment.”
53. Thus, when the relief otherwise
awardable on the date of commencement
of the suit would become inappropriate in
view of the changed circumstances, the
courts may mould the relief in accordance
with the changed circumstances for
shortening the litigation or to do complete
justice.”
28. Position of law on the aspect of moulding relief by writ Court
exercising its jurisdiction under Article 226 of the Constitution
has been considered by Hon’ble Supreme Court in case of
Food Corporation of India vs. S. N. Nagarkar reported in
(2002) 2 SCC 475.
29. In case of Dwarka Nath vs. ITO reported in (1965) 3 SCR
536, Hon’ble Supreme Court has opined that :
“4. We shall first take the preliminary
objection, for if we maintain it, no other
question will arise for consideration. Article
226 of the Constitution reads:
29 / 31
“…every High Court shall have power,
throughout the territories in relation to
which it exercises jurisdiction, to issue
to any person or authority, including in
appropriate cases any Government,
within those territories directions, orders
or writs, including writs in the nature of
habeas corpus, mandamus, prohibition,
quo warranto and certiorari, or any of
them, for the enforcement of any of the
rights conferred by Part III and for any
other purpose.”
This article is couched in comprehensive
phraseology and it ex facie confers a wide
power on the High Courts to reach injustice
wherever it is found. The Constitution
designedly used a wide language in
describing the nature of the power, the
purpose for which and the person or
authority against whom it can be exercised.
It can issue writs in the nature of prerogative
writs as understood in England; but the
scope of those writs also is widened by the
use of the expression “nature”, for the said
expression does not equate the writs that
can be issued in India with those in England,
but only draws an analogy from them. That
apart, High Courts can also issue directions,
orders or writs other than the prerogative
writs. It enables the High Courts to mould
the reliefs to meet the peculiar and
complicated requirements of this country.
Any attempt to equate the scope of the
power of the High Court under Article 226 of
the Constitution with that of the English
Courts to issue prerogative writs is to
introduce the unnecessary procedural
restrictions grown over the years in a
comparatively small country like England
with a unitary form of government to a vast
country like India functioning under a federal
structure. Such a construction defeats the
30 / 31
purpose of the article itself. To say this is not
to say that the High Courts can function
arbitrarily under this Article. Some limitations
are implicit in the article and others may be
evolved to direct the article through defined
channels. This interpretation has been
accepted by this Court in Basappa v.
Nagappa [(1962) 2 SCR 169] and Irani v.
State of Madras [(1955) 1 SCR 250] .”
30. In case of B. C. Chaturvedi vs. Union of India reported in
(1995) 6 SCC 749, Hon’ble Supreme Court has observed that
the Court, while exercising jurisdiction under Article 226 of the
Constitution, has inherent power to do complete justice. Doing
complete justice is requirement of the fact situation of the
present case and held thus :
“The mere fact that there is no provision
parallel to Article 142 relating to the High
Courts, can be no ground to think that they
have not to do complete justice, and if
moulding of relief would do complete justice
between the parties, the same cannot be
ordered. Absence of provision like Article
142 is not material. The High Courts too can
exercise power of review, which inheres in
every court of plenary jurisdiction. Power to
do complete justice also inhere in every
court, not to speak of a court of plenary
jurisdiction like a High Court.
31. Division Bench of High Court of Allahabad in case of State
Election Commission, U.P. Lucknow and others vs. Brij
Kumar and others reported in (2013) SCC Online All 13771
has observed thus :
31 / 31
“42. We are of the view that in case the
nucleus of the pleadings includes the relief
granted by the Court, it cannot be said that
while granting the said relief the Court has
traveled beyond the scope of writ petition
and has granted the relief which has not
been prayed. In the given facts and
circumstances of a particular case the Court
while exercising its power under Article 226
of the Constitution of India is fully
empowered to mould the relief to do
complete justice to the parties and for that
purpose it cannot be said that the Court has
no power to grant the relief which has not
been specifically prayed.”
32. In view of the aforementioned discussions, as this Court has
held the decision of revising gradation list to be illegal and
arbitrary and considering entirity of the facts of the case that,
as on date petitioner retired in the month of September, 2023,
and therefore, instead of setting aside entire gradation list and
promotion order, I find it appropriate to mould the relief as
sought for in this writ petition.
33. Respondent are directed to promote petitioner notionally
w.e.f. 30.03.2021 on the post of Additional Chief Engineer i.e.
the date, when juniors to petitioner were promoted. He will be
entitle for all consequential benefit, as also fixation of pay,
except pay of said post for the intervening period.
34. Accordingly, this writ petition is allowed to the extent as
indicated above.
Sd/-
(Parth Prateem Sahu)
Shayna Judge