Full Judgment Text
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PETITIONER:
R. HARIHARAN & ORS.
Vs.
RESPONDENT:
K. BALACHAIIDRAN NAIR & ORS.
DATE OF JUDGMENT: 11/09/2000
BENCH:
V.N.Khare, S.N.Phukan
JUDGMENT:
V.N. KHARE. J.
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The appellants herein, are Engineers in the service of
Kerala State Electricity Board (hereinafter referred to as
the ’"Board") and have preferred these appeals against the
judgment rendered by the Division Bench of the Kerala High
Court whereby the writ petition and the writ appeal filed by
the respondents were allowed and the Board was directed to
re-fix the seniority in the light of legal position
indicated therein. As a result of the said judgment, the
appellants contend that they would be treated as junior to
the respondents.
The Board was established under Section 5 of the
Electricity’ (Supply) Act, 1949 on 7th March, 1957. Prior
to 1.10.1966, 7 employees were appointed by the Board on
various categories of posts like Oyersecr, Tracer etc. The
Kerala Public Service Commission (Additional Functions) Act,
1963 (hereinafter referred to as the "Act") came into force
with effect from 1.10.1966. The Act provided for exercise
of certain additional functions by the Kerala Public Service
Commission in respect of appointments of officers and
servants of the Board and their conditions of service.
During the period 1972 to 1974 the appellants - four in
number, were recruited through the Public Service Commission
on different dates to different categories of posts like
Overseer, Tracer etc. On 18.4.1975, the Board issued an
Order that out of 50 per cent quota of direct recruits in
the cadre of Asstt, Engineer 40 pel- cent were to be
appointed from open market and remaining 10 per cent were to
be recruited from qualified Engineering Graduates in the
employment of the Board. The case of the respondents is
that the recruitment of these two categories of direct
recruits were to be made with the consultation of the Public
Service Commission. During, the period 1976 to 1980, the
Public Service Commission did not take any step tor
recruitment to fill up the 10 per cent quota set apart for
the in-service Engineering graduates who were
in employment with the Board. Since the appellants
and others - totaiing, eleven in numbers, were Engineering
Graduates in the service of tile Board.. the Board on
different dates beginning from 26.12.1976 to 1.8.1979
appointed them to the posts of Assistant Engineer (Civil)
against 10 per cent quota reserved for the in-service
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Engineering Graduates in the Board. The letter of
appointment indicated that appointments of the appellants
were provisional during the period of probation and in case
they pass two Departmental tests viz., ’Departmental test
tor Executive Staff" and "Account Test Lower" and further on
satisfactory completion of the probationary’ period, their
.services would be regularised.
On successful completion of the probationary’ period,
the Board by separate orders regularised the appointments of
all the II Assistant Engineers including the appellants from
the date of their joining duties as Assistant Engineers.
The writ petitioners who are the respondents lierein were
recruited in the cadre of Assistant Engineers (Civil)
through the Public Service Commission and had joined their
duties on 2 i. 10.1981. Although the services of 11
employees including the appellants were regularised by the
Board, yet the Public Service Commission declined to give
its
concurrence to the regularisation of the services with
effect from the date of their joining duties. There being
difference of opinion between the Board and the Public
Service Commission on the question of date of regularisation
of services of the appellants, the Board referred the matter
to die State Government under sub-section (2) of Section 3
of the Act. The State Government on receipt of the
reference from the Board again referred the matter to the
Public Service Commission. Thereafter, the State Government
after considering the matter, by an order dated 12.5.82
overruled the advice of the Public Service Commission and
approved the regularisation of the services of the
appellants with direction that inter-sc seniority of the
Assistant Engineers whose services have been regularised
shall be determined from the date on which each Assistant
Engineer acquired the necessary qualification. Consequent
upon the order of the State Govt. dated 12.5.19S2 a
gradation list of Assistant Engineers was prepared wherein
the appellants were shown above to the respondents herein.
After a lapse of 5 years the respondents herein who are
direct recruits and joined duties on 21.10.1981, filed a
writ petition O.P. No.7730 of 1987 for quashing the Govt.
Order dated 12.5.1982 and the consequent gradation list
Ext.l2 to the
writ petition. In the said writ petition 10 Assistant
Engineers including the 4
appellants were arrayed as respondents 15 to 24. A
learned Single Judge of the Kerala High Court dismissed the
writ petition on the ground that the challenge to the
seinority list was highly belated and further there was no
violation of quota of 10 per cent earmarked for in-service
Engineering Graduates. Against the said judgment the
respondents herein filed a Writ Appeal before a Division
Bench of the High Court. During the pendency of the Writ
Appeal two other Assistant Engineers (Civil) who were also
directly recruited and had joined their duties on 21.10.1981
filed another Writ Petition No. 12363/93 seeking quasiling
of the Govt. Order dated 12.5.1982 and the gradation list
Ext.P.12. The writ appeal and the writ petition filed by
the writ petitioners were consolidated and heard together.
During the pendency of the writ appeal and the writ petition
the appellants were promoted to the posts of Executive
Engineers. The Division Bench after hearing the matter was
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of the view that tile date of the order of the first
appointment of the appellants would be the date when their
services were regularised i.e. 12.5.1982 and. therefore,
the respondents who joined their duty on 21.210.1981 have to
be treated senior to the appellants. The High Court allowed
the writ appeal and the writ petition and directed the Board
to re-fix the seniority in the light of what was stated in
the judgment,
Shri P.P.Rao, learned senior counsel, appearing for
the appellants advanced.three submissions. The first
submission is that under the Act there is no requirement of
consultation with the Public Service Commission in regard to
suitability of the candidate to be a.ppomted to the post of
Assistant Engineers in the Board and, therefore, the
seniority of the appellants has to be determined with effect
from the date of their first ad-hoc appointments. The
second submission is that if it is held that consultation
with the Public Service Commission was necessary with
respect to the appointment of the appellants in the Board,
the State Government in exercise of its over-ridding power
conferred by sub-section (2) of Section 3 of the Act cured
the defect ofnon consultation with the Public Service
Commission by over-ruling the advice of the Public Service
Commission and ordering for regularisation of the services
of the appellants with effect from the dates the appellants
acquired qualification. The third submission is that in any
event if it is held that the Kerala State and Subordinate
Rules 1958 are applicable to the appointment of Assistant
Engineers in the Board, the Government has power under rule
39 of the said Rules to retrospectively remove the hardship
by regularising the services of the appellants.
Learned counsel appearing for the respondents argued
that under the Act, consultation with the Public Service
Commission in regard to the suitability for appointment to
the post of Assistant Engingeers is mandatory and once the
Public Service Commission declined to give concurrence to
the regularisation of services of the appellants with effect
from the date of their joining duties, the seniority of the
appellants has to be determined from the date they were
regularised in the service of the Board. The further
argument of learned counsel for the respondents is that
under rule 27 of the Rules the ad-hoc appointment of the
appellants cannot be taken into consideration for the
purpose of determining intcr-se seniority of Assistant
Engineers and as such the respondents are to be treated as
senior to the appellants in the cadre of Assistant
Engineer(Civil).
Learned counsel for the appellants in support of his
argument referred to Section 3 of the Act and argued that
sub-clauses (a) and (b) of sub-sectio (1) of Section 3 of
the Act being in para materia with clause (3) (a) and (b) of
Article 320 of the Constitution. The State legislature
having not enacted any substantive provision like clause (1)
of Article 320 in Section 3 of the Act, there was no
obligation on the part of the Board to consult the Public
Service Commission with regard to suitability of the
candidates for appointment as Assistant. Engineers in. the
Board. H^ further argument is that the Board is competent
to appoint Assistant Engineers under Section 15 of the
Electricity Supply Act Clause (a) of sub-section (1) of
Section ^ requires the Board to consult the Public Service
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Commission on all matters relating to method of recruitment
to services and posts under the Electricity Board and clause
(b) of sub-section (1) of Section 3 of the Act casts duty on
the Board to consult the Public Service Commission on the
principles to bo followed in making appointments to services
and posts under the Board and in making promotions and
transfers from one service to.another. According to
appellants only on aforesaid situations the Public Service
Commission is required to be consulted and not on the matter
relating to the suitability of the candidates for
appointments as Assistant Engineers in the Board. No doubt,
the argument is attractive and at the first glance appeared
carrying substance. But on a deeper consideration, we fmd
that second part of clause (b) to sub-section (1) of Section
3 of the Act requires the Board to consult the Public
Service Commission in the matter of appointment to the posts
of Assistant Engineers in the Board. The object of the Act
is to provide certain additional functions by the Kerala
Public Sendee Commission in respect of
appointment of officers and servants of the Kerala
Electricity’ Board and in laying down their conditions of
servrce. Section 3 of the Act provides for the functions of
Public Service Conmmission of services under the Board,
which is extracted below:-
"3. functions of the Public Service Commission in
respect of services under the Electricity Board. - (1)
Notwithstanding anything contained in the Elecriciy (Supply)
Act (Central Act 54 of 1948), or the rules of regulations
made thereunder regarding the recruitment and conditions of
service of officers and servants of the Electricity Board,
the Public Service Commission shall be consulted-
(a) on all matter relating to method of recruitment to
services and posts under the Electriciy Board;
(b) on the principles to be followed in making
appointments to services and posts under the Electricity
Board and in making promotions and transfers from one
service to another and on the suitability of candidateg for
such appoinmens promotions or transfers;
© on any claim by or in respect of a person who is
serving or has sensed under the Electricity Board that any
costs incurred by him in defending legal proecedings
instituted against him in respect of sets done or purporing
to be done in the execution of his duty should be paid out
of the funds of the Etectriciy Board;
(d) on the claim for the award of a pension in respect
of injuries sustained by a person while serving under the
Electricity Board and any question as to the amount of such
award;
and it shall be the duty- of the Public Service
Coimnission to advice on any matter so referred to them:
Provided that the Governmen may make rules specifying
the matters m which either ge.neraHy or in any particular
class of cases or in. any particular circumstances, it
shall not be necessary for he Public Service Commission to
be consulted.
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(2) In the case of any difference of opinion b-tween
the Public Sendee. Conmiission and the Electricity Board on
any matter, the Electricity Board shall refer the matter to
the Government and the decision of the government thereon
shall be final:
Provided that the Giovernment before taking a decision
against the advice of the Commission shall refer the matter
to the Commission."
Section 4 empowers the Government to frame rules in
consultation with the Public Service Commission for carrying
out the purposes of the Act and also to frame rules on the
matters where it shall not be necessary for the Public
Service Commission to be consulted, in exercise of the said
power Government of Kerala has framed rules which is known
as’Kerala Public Service Commission (Additional Functions)
(Consultations) Rules 1966. Rule 3 of the rules provide the
matters where the Public Service Commission is not required
to be consulted. Rule 5 then provides that it would not be
necessary for the Board to consult the Commission where
appointment of a person is made temporarily for a
total period not exceeding three months or where appointment
has to be made in public interest owing to an emergency
which has arisen to fill immediately a vacancy in the post
and there would be undue delay in making the appointment
after such consultation. Rule 5 further provides that the
concurrence of ’the’ Commission shall be obtained for the
continuance of such temporary appointment beyond three
months. ;
Now coming to clauses (a) and (b) of sub-section (I
)-of Section ’3 of the Act it is no doubt true that clause
(a) provides for consultation on all matters pertaining to
method of recruitment to sendees. A perusal of clause (b)
of sub-section (1) of Section 3 of the Act shows that clause
(b) is in two parts. The first part of clause (b) runs as
under:
" on the principles to be followed in making
appointments to services and posts under the Electricity
Board and in making promotions and transfers from one
service to another."
The second part of clause (b) runa as under:
" and on the suitability of. candidatea for such
appomiments, promotions or transfers."
So tar as the first part of clause (b) is concerned,
we are in. agreement wit) the contention of learned counsel
for the appellant that it pertains to laying down the
principles to be followed in making appointments to the
service and does not provide for consultation with regard to
appointments in service, But the same is not the position in
the case of second part of clause (b).. extracted above.
The language employed in clause (b) is plain and simple and
there is no ambiguity in it. Both the parts of clause (b)
operate on different fields, the first part of clause (b)
requires consultation by the Public Service Commission on
the principles followed in making appointments, promotions
and transfers, whereas later part of clause (b) casts duty
on the Board to consult the Public Service Commission on the
matters pertaining to appointments, promotions and transfers
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of th6 employees voi’ the Board meaning thereby that the
Public Service Commission is required to be consulted on the
suitability of the candidates for appointments, promotions
or transfers. It is true that there is no substantive
provision like clause (I) of Article 320 of the Constitution
in Section 3 of the Act. However, later part of clause (b)
is complete and substantive provision in itself and as such
Section 3 of the Act does not require enactment any further
provision like clause (1) of Article 320 of the 12
Constitution providing for judging the suitability of
candidates by the Public Service Commission in the matter of
appointments. This interpretation of ours is in consonance
with the object of the Act for which the Act has been
enacted. If we put any other interpretation and hold that
the Public Service Commission is not required to be
consulted in the matters of appointments, promotions or
transfers, the same would be repugnant to the object of the
Act which means that the provisions of the Act are
meaningless and without any purpose. Further, the rules
framed by the State Government in exercise of its powers
under Section 4 of the Act has already provided the
situations where appointments in the Board would require no
consultation with the Public Service Commission. There is
no mention in the rules that there would be no consultation
with the Public Service Commission in respect of
appointments of Assistant Engineers in the Board. It is
settled principle of interpretation that the court shall
lean towards an interpretation which advances object of the
Act. We are, therefore, of the view that second part of
clause (b) ofsub-section(l) of Section 3 provides for
consultation with the Public Service Commission in the
matter of appointments of Assistant Engineers in the Board.
This view of ours also finds support from a decision of this
Court in State of Jammu and Kashmir vs. Mrs.Ral Pulari
Rsadan and others [1979 ISCC 461], wherein a
Constitution Bench of this Court held that clause (b) of
sub-section (2) of Section 133 ofJammu & Kashmir
Constitutiion which is analogous to clause (b) of
sub-section (1) of Section 3 of the Act requires
consultation with the Public Service Commission in the
matter of suitability of candidates tor appointments,
promotions and transfers in the service.
Coming to the next argument of learned counsel for the
appellants, we find that originally the appellants were
appointed through Public Service Commission on various
categories of posts like Overseers, Tracers etc. The Board
had reserved 10% posts of Assistants Engineers to be filled
in from the qualified Engineering Graduates in the
employment of the Board. During the period 1976 to 1980,
the Public Service Commission did not take any steps for
recruitment to fill up the 10% quota set apart in the
service for the Engineering Graduates who were in the
employment in the Board. Since there was an emergent
requirement for Assistant Engineers in the Board, the Board
appointed the appellants who were in the service of the
Board and possessed the requisite qualifications, to the
post of Assistant Engineers on probation on the following
terms:
1. He will be a probationer in the post of Assistant
Engineer (Civil) for aperiod of 6 months on duly within a
continuous period of one year,from the date of joining duly.
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2. He should pass the two Departmental tests viz.
"Departmental test for Executive Staff" and "Account Test
Lower " within the period of probation failing which the
declaration of satisfactory completion of his probation may
be postponed until he acquires these two tests or clause 5
below may be resorted to.
3. His appointment as Assistant Engineer (Civil) is
in the scale of pay of Rs. 800-30-890-40-1250.
4. He is eligible to get the allowances admissible to
the post held by him from time to time.
5. His appointment which is provisional during the
period of probation, shall be regularised only on
satisfactory performance of duties assigned to him during
the period of probation. His services are liable to be
terminated at any time during the period of probation, if
his performance of duties is found to be unsatisfactory.
6. His duties and functions, in general as Assistant
Engineer (Ble) will be in accordance with those laid down in
B.O. No.EB.IL24780/75/25-2-1977 as amended or modified from
time to time. He will have to attend to such works also as
may be entrusted to him/her from time to time by superior
officers.
The appellants passed the departmental examination and
various tests and after successful completion of the
probationary period their services as Assistant Engineers
were regularised by the Board by an order dated
14.11.79 with effect from the date of joining their
duties. One of such orders issued in favour ofShri
V.Venkiteswara lyer, is extracted below:
"Kerala State Electricity Board Proceedings of the
Chief Engineer (Civil) K S E Board, Trivandurm.
Sub : Estt - Sri. V. Venkiteswara lyer, Asst.
Engmeer © Declaration of probation - Orders issued -
Older No. EBC4/807/77 Dated : 14-11-1979
Read : This office Memo No. EBC4/807/77/5-5-79 to
Sri V.Venkiteswra lyer.
ORDER
Sri V.Venkiteswara lyer, first Gr, Overseer (Ele)
Office of the Chief Engineer (Ele) KSE Board, Trivandrum was
provisionally appointed as Assistant Engineer (Civil) and
posted in this office vide this office memo read above and
he had reported for duty on the A.N. of 5-5.79. As per the
condition of appointment he will be a probationer in the
post of Assistant Engineer (Civil) from the date of his
joining duty in that post and the period of probation was
then fixed as 6 months within a continuous period of one
year.
The Executive Engineer, T.P.H. Office - has reported
in Office note (i) dated 6-11-79 that the period of
probation has been completed by Sri V. Venkiteswara lyer.
Assistant Engineer (Civil) satisfactorily.
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Hence, it is hereby declared that Sri V.Venkiteswara
lyer liaa completed the probation eatiefaotorily and that
his provisional appointment as Assistant Engineer (Civil) is
regulatriced from. the date of the joining duty-.
.Sd/
CHIEF ENGINEER (CIVIL)
However, the Public Service Commission did not agree
for regularisation of services of the appellants with effect
from the date of joining their duties and as such the matter
was referred to the State Government. The State Government
after consultation with the Public Service Commission found
that the appellants had possessed the prescribed
qualifications and were suitable to be appointed as
Assistant Engineers and further they gained considerable
experience and competence, and as such over-ruled the advice
of the Public Service Commission and approved the
regularisation of services of the appellants with effect
from the date they acquired the requisite qualifications.
Admittedly, the appellants had acquired the qualifications
prior to 21.10.81, which is the date of joining duty by the
respondents herein. In this background the question that
arises is whether the Government could grant regularisation
of services of the appellants as Assistant Engineers with
effect from the date of acquisition of their qualifications.
Sub-section (2) of Section 3 of the Act provides that in
case of any difference of opinion between the Public Service
Commission and the Electricity Board on any matter, the
Electricity Board is required to refer the matter to the
Government and the decision of the Government thereon is to
be treated as final. The said power of the State Government
has not been
questioned. Further, under Section 4 of the Act, the
State Government is empowered to lay down the matters where
consultation with the Public Service Commission is not
necessary. The State Government in exercise of its power
has already provided that in certain classes of appointments
it is not necessa