Full Judgment Text
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PETITIONER:
KARNATAKA ELECTRICITY BOARD
Vs.
RESPONDENT:
GULAM MOHIUDDIN
DATE OF JUDGMENT12/04/1977
BENCH:
ACT:
Electricity. (Supply) Act, 1948--Sec. 79--Statutory
Regulations--Whether can be overriden by administrative
resolutions--Mysore State Electricity Board Recruitment and
Promotion of employees of the Board Regulations 1960 Passing
of SAS examination if necessary for promotion.
HEADNOTE:
The respondent was serving as an Accountant in ’the
Electricity Department of the former State of Hyderabad. On
the reorganisation of the States in pursuance of the States
Reorganisation Act, 1956, he was allotted to the new State
of Mysore with effect from 1st November, 1956. Option was
given to the respondent to continue in the Government serv-
ice or to opt to the BOard. On 1st October, 1957, the re-
spondent opted to the service under the Board and ceased to
be an employee of the Government with effect from that date.
In 1960, the Board framed Recruitment and Promotion Regula-
tion in exercise of its powers conferred under s. 79(c) of
the Indian Electricity Supply Act, 1948. The regulations
were subsequently amended on 16.12.1966. The amended
The regulations prescribed that the posts of Accounts Super-
intendents were to be filled on the basis of seniority-cum-
merit on their having passed SAS examination. In December,
1966, some persons junior to the respondent were promoted on
their having passed the SAS examination, while promotion was
denied to the respondent as he had not passed the examina-
tion. After the respondent’s representations were rejected
he filed a Writ Petition. The Single Judge dismissed the
Petition. The Division Bench refused to throw out the Writ
Petition on the ground of delay. It found on consideration
of the two resolution of the Board one dated 19.5.1969 and
another dated 5.1.1970 that the respondent being an allottee
was exempted from complying with the requirements of passing
the examination.
Allowing the appeal.
HELD: (1) The Division Bench rightly refused to deny
relief to the respondent on the ground of delay and laches.
[510 B]
(2) Section 79 of the Act empowers the Board to make
regulations not inconsistent with the Act and rules made
thereunder to provide for all or any of the matters referred
to hi cls. (a) to (k) of the section. Sub-s. (c) empowers
the Board to make regulations regarding the duties of offi-
cers and servants of the Board and their salaries, allow-
ances and other conditions of service. By virtue of the
said powers the Board framed Mysore State Electricity Board
Recruitment and Promotion of Employees of the Board Regula-
tions, 1960. The minimum qualification prescribed is pass-
ing of SAS examination. The resolution. of the Board dated
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19.5.1969 merely provides that the candidates appointed to
the Government Board services for the first time after 1st
November, 1956, must pass the department examination for
purposes of earning increments and promotion. The said
resolution does not deal with cases of allottees. It is
silent about allottees and, therefore, it is not possible to
infer from that resolution that the allottees were exempted
from passing the departmental examination. In any case, the
passing of the resolution cannot have the effect of relax-
ing statutory regulations. Apart from that by the subse-
quent resolution of 1970, the Board made it absolutely clear
that the SAS examination had to be passed. [510 C-D, G-H,
511 E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 144 of 1977.
Appeal by Special leave from the Judgment and order
dated the 2nd January, 1976 of the Karnataka High Court in
Writ Appeal No. 430 of 1974.
509
V.N. Satyanarayana, K. Rajendra Chowdhary and Veena
Devi (Mrs.) Khanna for the Appellant.
S.S. JavaIi, B.P. Singh and A. K. Srivastava for Re-
spondent.
The Judgment of the Court was delivered by
KAILASAM, J.--This appeal is by the Karnataka Electrici-
ty Board by its Secretary by Special leave granted by this
Court against the judgment of the Karnataka High Court
allowing the writ petition filed by the respondent and
issuing a writ of mandamus to the appellant to consider the
case of the respondent for promotion as an Accounts Superin-
tendent as on 30th December, 1966, and to promote him to
that post with effect from that date. .
The respondent was serving as an Accountant, Grade II,
in the Electricity Department of the former .State of Hyd-
erabad. On the reorganisation of the States in pursuance of
the States Reorganisation Act, 1956, he was allotted to the
new State of Mysore (now Karnataka) with effect from 1st
November, 1956. The post which he held came to be equated
with that of I Division Clerk in the former State of Mysore.
On 1st October, 1957, the Mysore State Electricity Board now
Karnataka State Electricity Board was constituted under the
Indian Electricity (Supply.) Act. An option was given to the
respondent to continue in the Government service or to opt
to the Board. On 1st October, 1957, the respondent opted to
the Service under the Board and ceased to be an employee of
the Government with effect from that date.
In the year 1960 the Board framed Recruitment and Promo-
tions Regulations in the exercise of its powers conferred on
it under section 79(c) of the Act. The Regulations were
subsequently amended on 16th December, 1966. The amended
Rules prescribed that the posts of Accounts Superintendents
were to be filled by promotion of I Division Clerks on the
basis of seniority-cum-merit on their having passed Part I
and II of the S.A.S. examination.
On 30th December, 1966, some persons junior to the
respondent were promoted on their having passed the S.A.S.
examination while promotion was denied to the respondent as
he had not passed the examination. The respondent made
several representations one such representation being on
24th December, 1970. On 21st November, 1972, the respond-
ent’s representations were rejected. The respondent there-
after filed a writ petition before the High Court on 13th
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February, 1973. The learned Single Judge who heard the
petition dismissed it and the respondent preferred an appeal
to a Bench of the Karnataka High Court. On behalf of the
appellant, Karnataka Electricity Board, it was contended
before the court that the writ petition ought to be dis-
missed on the ground of inordinate delay and laches on the
part of the respondent and also on the ground that in view
of the later Resolution of the Board dated 5th January,
1970, it was no longer open to the respondent to rely on the
Resolution dated 19th May, 1969. The Bench of the Karnataka
High Court held that the writ petition cannot
6--502SCI/77
510
be thrown out on the ground of delay. On a consideration of
the two Resolutions of the Board, namely that of 19th May,
1969 and 5th January, 1970, it found that the respondent as
an allottee was exempted from complying with the require-
ments of passing the examination and therefore allowed the
writ petition.
We do not see any ground for not accepting the view of
the High Court that in the circumstances of the case the
relief to the respondent should not be denied on the ground
of delay and laches.
The only ground therefore on which the order of the
High Court was challenged by the appellant is that the court
was in error in construing the relevant provisions of the
Regulations and the Resolutions and holding that the re-
spondent is exempted from passing the S.A.S. examination
before qualifying for the promotion. Before referring to
the two Resolutions the relevant provisions of the law and
Regulations made thereunder may be referred to. The Elec-
tricity (Supply) Act, 1948, by section 79 empowers the Board
to make Regulations not inconsistent with the Act and the
rules made thereunder to provide for all or any of the
matters referred to in clauses (a) to (k) of the section,
Sub-clause (c) empowers the Board to make Regulations re-
garding the duties of officers and servants of the Board and
their salaries, allowances and other conditions of service.
By virtue of the powers conferred on the Board it framed
Mysore State Electricity Board Recruitment and Promotion of
Employees of .the Board Regulation, 1960. The method of
recruitment prescribed for promotion to Accounts Superin-
tendents is prescribed in Chapter V of Annexure-2. The
method of recruitment is by promotion from the cadre of I
Grade Clerks on the basis of seniority-cum-merit, The
minimum qualification prescribed is that the candidate ought
to have passed S.A.S. examination Part I and Part II. This
provision which was enacted in 1960 continued to be in force
during the relevant time. If this Regulation is applicable,
the respondent’s plea has to be rejected as it is incumbent
on him to pass the S.A.S. examination. The Resolution of
the Board relied on by the respondent is 19th May, 1969 and
the material paragraph runs as follows :--
"It is hereby directed that the candi-
dates appointed to Government/Board Service
for the first time after the date of States
Re-organisation i.e., 1st November 1956 (as
they are not allottees) should pass the De-
partmental Examinations and Kannada Language
Tests for purposes of earning increments and
for promotion."
The Resolution requires the passing of the examination
and Kannada language test for the purpose of earning incre-
ments and for promotion for candidates appointed after/st
November, 1956. But as it is not made applicable to the
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allottees, it is contended that the allottees are by impli-
cation exempted from passing the Departmental Examination I
and Kannada language test. This contention cannot be ac-
cepted for the Resolution is silent regarding the allottees
and is not made applicable to them. It is not possible to
infer from the Resolution that the
511
allottees are exempted from passing the Departmental Exami-
nation and the Kannada language test. the Resolution was’
passed by the Board in pursuance of certain proceedings of
the Government referred to in the Resolution itself.
Paragraph 2 of the Resolution reads thus:
"Approval is accorded for the adoption
of the Government Order Nos. (1) GAD 123 SSH
65 dated 21-11-1966 (2) GAD 2 SSR 67 dated
3-8-1957 and (3) GAD 72 SSR 67 dated 20-7-
1968."
The three Government orders referred to in the Resolution
relate to the requirement of passing of the Departmental
Examination and Kannada language test as a consequence of
the judgment of the High Court of Mysore and the Supreme
Court. The’ orders specifically states that unless. in the
Recruitment Rules relating to the service concerned Depart-
mental Examination had been incorporated and prescribed and
unless it is clearly specified for what purpose the tests
are prescribed viz., whether for increments or promotions,
the passing of Departmental tests cannot be legally insist-
ed upon for grant of increments or for according promotion
to higher posts. The three Government orders make it clear
that the relaxation of the rule relating to passing of the
Departmental Examinations and Kannada language test is only
as regards services where the rules do not specifically
require the passing of the examinations and the language
test. These G.O.s do not apply in the present case as the
Regulations framed by the Board under section 79(c) specifi-
cally prescribe the passing of the S.A.S. test. We are
unable to construe the Resolution dated 19th May, 1969 as
exempting the allottees from passing the test. In any event
the plea of the respondent will have to fail on the ground
that the Regulations framed under section 79(c) of the Board
requiting the passing of the examination was not relaxed by
amending the Regulations. The passing of the Resolution by
the Board cannot have the effect of modifying a Regulation
which was passed by the Board in the exercise of the powers
conferred by the statute. Apart from this circumstance by a
subsequent Resolution the Board itself considered the ques-
tion in all its aspects and resolved that passing of the
S.A.S. examination for promotion to the cadre of Accounts
Superintendents as before be insisted. Whatever might have
been the purport of the Resolution dated 19th May, 1969, the
Board by a subsequent Resolution had resolved on insisting
on the passing of the examination. The High Court found
that the later Resolution did not affect the earlier Resolu-
tion on the ground that the subsequent Resolution did not
make any reference to the earlier Resolution and that there
is no reference to the allottees at all. Relying on the
words "the passing of the S.A.S. Examination for-promotion
to the cadre of Accounts Superintendents as before be in-
sisted" the court found that it would .mean that where the
passing of the S.A.S. Examination was insisted prior to that
Resolution in the same shall continue to be insisted in
future also, and if passing of the S.A.S. Examination was
not insisted prior to that Resolution in the case of allot-
tees for promotion to the cadre of Accounts Superintendents.
The Resolution dated 5th January, 1970, cannot be understood
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as altering the position existing "as before". This
reasoning is
512
erroneous for, as pointed out by us the earlier Resolution
was not intended to cover the case of allottees and merely
because the allottees were excluded from the operation of
the Resolution the inference that the allottees were exempt-
ed from the passing ’of the’ examination is not justified.
Further before the Resolution there is nothing to indicate
that the allottees were not required to pass the examina-
tion. The conclusion of the High Court cannot be upheld as
the binding nature of the Regulations passed by the Board
under section 79(c) has not been taken due note of. This is
the view taken by the Single Judge of the High Court.
In the result we allow the appeal, set aside the judg-
ment of the lower appellate court and restore that of the
Single judge. There will be no order as to costs.
P.H.P. Appeal allowed.
513