Full Judgment Text
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PETITIONER:
U.P. STATE ELECTRICITY BOARD, LUCKNOW
Vs.
RESPONDENT:
P.L. KELKAR, ETC. ETC.
DATE OF JUDGMENT07/05/1987
BENCH:
KHALID, V. (J)
BENCH:
KHALID, V. (J)
SEN, A.P. (J)
CITATION:
1987 AIR 1701 1987 SCR (3) 335
1987 SCC (3) 161 JT 1987 (2) 564
1987 SCALE (1)1192
ACT:
U.P. Electricity Board Service of Engineers (Integration
and Seniority) Regulations, 1976--Regulation
7(iv)(b)--Directly recruited Engineers--Seniority of--Ad-
vance increments allowed at the time of recruitment--Advan-
tage of--Whether to be taken into account while determining
the seniority.
HEADNOTE:
The first respondent in the Appeal, a Superintending
Engineer, was directly recruited by the U.P. Electricity
Board as an Assistant Engineer on October 7, 1964. He was
given nine advance increments by reason of his varied expe-
rience in different governmental and other organisations, as
against two advance increments given to others. The peti-
tioners in the connected special leave petition also working
as Superintending Engineers were Assistant Engineers in the
Irrigation and Power Department and were placed on deputa-
tion with the Electricity Board by the State Government from
the year 1960 onwards, and were confirmed as Assistant
Engineers with effect from April 1, 1975. There was no
seniority list of Assistant Engineers in the Board nor were
there any rules of seniority at the time when the first
respondent joined service.
The Electricity Board, in exercise of the power con-
ferred under section 79(c) of the Electricity (Supply) Act,
1948 framed the U.P. Electricity Board Service of Engineers
(Integration and Seniority) Regulations 1976. Regulation
7(iv)(b) provided that’ ’while determining the seniority
under clauses (ii) and (iii), Engineers directly recruited
by the Board before the commencement of these regulations
shall be given advantage of as many years of service as was
the number of advance increments which were allowed to them
at the time of recruitment by the Board." It also provided
that "in doing so, no officer shall, however, be given
advantage beyond the date of his initial regular appointment
in the Government department or the other organisations."
The Board amended the regulation to remove certain
anomalies and to give effect to the intention of the Board
in framing the rule of seniority. The amended regulation
substituted the words "U.P.
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336 C.R.
Government or Central Government Department in consideration
of the service for which advance increments were so
allowed."
The Board, in accordance with the amended regulation,
published the integrated seniority list in which the name of
the first respondent figured at SI. No. 12 below other
officers working as Superintending Engineers including the
petitioners in the connected special leave petition.
The first respondent made a representation to the U.P.
Services Tribunal challenging the amended regulation which
was allowed. The Tribunal held that in terms of Regulation
7(iv)(b) of the Regulations, the first respondent having
been granted seven advance increments was entitled to the
benefit of as many years of service as the number of advance
increments given to him at the time of his recruitment.
A batch of writ petitions seeking to quash the order of
the Tribunal was filed in the High Court, which upheld the
order of the Tribunal.
The Appeal by special leave by the Electricity Board,
the connected Special Leave Petition of the aggrieved peti-
tioners and the Writ Petition challenged the construction
and application of Regulation 7(iv)(b).
Dismissing the Appeal, the Special Leave Petition and
the Writ Petition, the Court
HELD: (1) Regulation 7(iv)(b) of the U.P. State Elec-
tricity Board of Service of Engineers (Integration and
Seniority) Regulations, 1976 comprises of two parts. The
first part referred to the advantage of advance increments.
This advantage is based on special qualification and past
experience and its consequent effect on seniority. The
Regulation before its amendment, mentioned ’Government
departments or other organisations’ but after its amendment
it was changed to ’in the U.P. or Central Government Depart-
ment.’ This change showed a deliberate attempt to deny its
benefit to employees who came from service not comprised in
either U.P. or Central Government Departments. It would be
neither just nor fair to give a limited meaning to the
second part of the amended regulation and thereby to deny
its benefit to those Engineers who came from other depart-
ments or corporations etc. [343D-F; 344B]
2. The first part of the regulation does not speak of
Engineers in the U.P. or Central Government Departments. It
speaks only of Engineers
337
directly recruited by the Board before the commencement of
the regulation, which expression takes in, Engineers who
came into the service of the Board from all sources. It
would not be proper to completely eliminate Engineers who
came from other sources from the benefit of the regulation
giving a restricted meaning to the expression ’in doing so’.
[343H; 344A]
3. The Board’s advertisement in the instant case, invit-
ing applications provided higher start for those having
special qualifications and experience irrespective of the
source of the service held by them. The second part of the
regulation has, therefore, to be construed only as a proviso
to the first part confining its scope to the employees of
the U.P. as well as Central Government Departments and not
to affect the generality as contemplated in the first part.
[344B]
4. The Tribunal was right in holding, and the High Court
in agreeing with it, that the second part was in the nature
of proviso limited to persons who had been in service of
either U.P. or other Central Government Departments and who
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had been given advance increments in consideration of such
service. [344G-H]
5. In the instant case, the first respondent was given
nine increments taking into consideration his special quali-
fication and experience as against two increments common to
all, and thus, giving him seven extra increments. It is
apparent that if these extra increments on the basis of his
experience and special qualification did not carry with it
seniority in the Board, he would not have either applied or
accepted the job. It cannot be assumed that he would have
joined the Board willingly as a new entrant. Under these
circumstances. the Tribunal was right in holding that the
first respondent should be deemed to have been appointed
with effect from October 7, 1957, giving him the advantage
of extra increments under the second part of Regulation
7(iv)(b). The seniority will have to be fixed in accordance
with the number of increments excluding the original two
increments given to the entrants in the Board both from U.P.
and the Central Government Departments and from other
sources. [344E-G; 345B]
JUDGMENT:
CIVIL ORIGINAL APPELLATE JURISDICTION: Civil Appeal
No. 3092 of 1985 etc.
From the Judgment and Order dated 1.2.1985 of the Alla-
habad High Court in W.P. No. 1535 of 1972.
338
S.N. Kacker, R.B. Mehrotra, Gopal Subramanium, Mrs. S.
Dixit, S. Balakrishnan and Ifran Ahmad for the Appellants.
T.S. Krishnamoorthi Iyer, Mukul Mudgal, S. Balakrishnan
and Rajesh for the Respondents.
The Judgment of the Court was delivered by
KHALID, J. This appeal by special leave and the connect-
ed special leave petition and the writ petition directed
against the judgment and order of the Allahabad High Court
dated February 1, 1985 raise a question of construction of
Regulation 7(iv)(b) of the U.P. State Electricity Board
Service of Engineers (Integration & Seniority) Regulations,
1976, framed under s. 79(c) of the Electricity (Supply) Act,
1948. By the judgment, a Division Bench of the High Court
has disallowed a batch of writ petitions seeking to quash an
order of the U.P. Public Services Tribunal, Lucknow dated
April 3, 1978. Allowing a representation made by respondent
no. 1, presently working as Superintending Engineer in the
U.P. State Electricity Board, the Tribunal held that in
terms of Regulation 7(iv)(b) of the Regulations, respondent
no. 1 having been granted seven advance increments was
entitled to the benefit of as many years of service as the
number of advance increments given to him at the time of his
recruitment. The High Court has upheld the order of the
Public Services Tribunal. As a result, respondent no.1 who
figures at serial no. 12 in the integrated seniority list of
Assistant Engineers (Civil) i.e. below other Superintending
Engineers including the six petitioners in the connected
special leave petition no. 8835/85, would take his place at
serial no.1 in the seniority list i.e. above them.
The short question involved in this appeal is whether
respondent no. 1 on a proper construction was entitled to
the benefit of as many years of service-as the number of
advance increments given to him at the time of his recruit-
ment, as held by the Public Services Tribunal and the High
Court. That turns on a construction of the amended Regula-
tion 7(iv)(b) of the Regulations. Regulation 7(iv)(b) as
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originally framed provided:
"While determining the seniority under clauses
(ii) and (iii) above, Engineers directly
recruited by the Board before the commencement
of these regulations shall be given advantage
of as many years of service as is the number
of advance increments which were allowed to
them at the time
339
of recruitment by the Board. In doing so, no
officer shall however be given advantage
beyond the date of his initial regular ap-
pointment in the Government department or the
other organisations."
On June 19, 1976 the Electricity Board in exercise of the
powers under s. 79(c) of the Electricity (Supply) Act, 1948
amended Regulation 7(iv)(b) to remove certain anomalies and
to give effect to the intention or’ the Board in framing the
rule of seniority. It was felt by the Board that the expres-
sion ’other organisations’ in the unamended Regulation
7(iv)(b) was susceptible of a construction that in the
matter of determination of inter se seniority among directly
recruited Engineers vis-a-vis Engineers on deputation with
the Board from the Central Government or the State Govern-
ment, the seniority of the Engineers had to be reckoned by
giving them the benefit of as many years of service as the
number of advance increments given to them by reason of
their special experience or qualifications. The Board ac-
cordingly substituted the words ’U.P. or Central Government
Department in consideration of the service for which advance
increments were so allowed’ for the words ’Government de-
partment or other organisations’ in Regulation 7(iv)(b). The
amended Regulation 7(iv)(b) now provides:
"While determining the seniority under clauses
(ii) and (iii) above, Engineers directly
recruited by the Board before the commencement
of these regulations shall be given advantage
of as many years of service as is the number
of advance increments which were allowed to
them at the time of recruitment by the Board.
In doing so, no officer shall however be given
advantage beyond the date of his initial
regular appointment in the U.P. or Central
Government Department in consideration of the
service for which advance increments were so
allowed."
Put very briefly, the essential facts are these. By a
Government resolution dated March 30, 1959 all the officers
of State Government i.e. Civil Engineers and the Electrical
and Mechanical Engineers of the Irrigation & Power Depart-
ment were transferred to the U.P. State Electricity Board
constituted under s. 5 of the Electricity (Supply) Act, 1948
which came into existence on April 1, 1959. The services of
these officers were placed on deputation with the Board. In
1964, the Electricity Board issued an advertisement calling
for applications for appointment to 20 posts of Assistant
Engineers (Civil). It was indicated that a higher start
would be allowed to candidates with special qualifi-
340
cations or experience and that the selected candidates were
to become permanent on completion of three years’ probation.
Among those selected was respondent no. 1 P.L. Kelkar who by
reason of his previous experience was given a higher start
of Rs. 490 in the scale of Rs. 250-850 which meant that he
was given nine advance increments as against two increments
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given to others. Prior to his joining the Electricity Board,
respondent no.1 had varied experience in different govern-
mental and other organisations. After obtaining his degree
in Bachelor of Engineering in the year 1957, he was recruit-
ed as a Junior Engineer, Public Works Department (Building)
of the State of Madhya Pradesh on a scale of Rs. 150-300. In
1959 he was promoted as Assistant Engineer, Department of
Housing, Madhya Pradesh on a scale of Rs. 250-600. Thereaf-
ter on June 9, 1960 he accepted appointment as Engineering
Assistant Grade I in the Indian Refinery Limited, Guwahati,
a Government of India undertaking, on a scale of Rs.300525
after leaving the services of the State Government of Madhya
Pradesh. On May 10, 1961, he left Government service to take
up employment in the private sector as Assistant Civil
Engineer with the Associated Cement Company Limited, Bombay
on an initial salary of Rs. 305 per month with annual incre-
ments. After the interviews of the candidates held on August
17, 1964, the Board in its letter of appointment dated
August 22, 1964 offered respondent no. 1 two advance incre-
ments and stated that his seniority vis-a-vis the other
candidates selected for appointment would be determined
later. It seems that respondent no. 1 declined the offer and
accordingly the Board by its letter dated August 29, 1964
decided to grant him a higher initial pay of Rs.490 i.e.
nine advance increments because of his previous experience.
It may be mentioned here that the Board also granted a
higher initial pay of Rs.490 i.e. nine advance increments to
Prakash Chandra Jain and Rs.430 i.e. seven advance incre-
ments to Naresh Chandra Gupta.
As against respondent no. 1 who had been directly re-
cruited by the Board w.e.f. October 7, 1964 and is now
working as a Superintending Engineer in the Electricity
Board, the six petitioners in the connected special leave
petition no. 8835/85 namely, V.N. Mathur, Mohd. Wasi Ahmad,
Madan Mohan, Brajesh Sahai, Amba Prasad and O.P. Sharma who
are also now working as Superintending Engineers in the
Electricity Board were Assistant Engineers in the Irrigation
& Power Department, were placed on deputation with the Board
by the State Government from the year 1960 onwards. They
were in due course confirmed as Assistant Engineers in the
Irrigation & Power Department. It seems that respondent no.
1 as well as the petitioners were
341
confirmed as Assistant Engineer w.e.f. April 1, 1975. There
was no seniority list of Assistant Engineers in the Board
nor any rules of seniority at the time when respondent no. 1
joined service. On April 29, 1976 the Board in exercise of
the powers under s. 79(c) of the Electricity (Supply) Act,
1948 framed the U.P. State Electricity Board Service of
Engineers (Integration & Seniority) Regulations, 1976. As
already stated, the unamended Regulation 7(iv)(b) provided
that while determining seniority, Engineers directly re-
cruited by the Board before the commencement of the Regula-
tions shall be given advantage of as many years of service
as was the number of advance increments which were allowed
to them at the time of their recruitment i.e. although
respondent no. 1 was recruited on October 7, 1964, it should
be deemed that he joined service of the Board on October 7,
1957. As a result of this representation the Board was
constrained to amend Regulation 7(iv)(b) as indicated above.
On May 19, 1977 the Board rejected the representation made
by respondent no. 1. A few months thereafter i.e. on Septem-
ber 28, 1977 the Board in acccordance with the amended
Regulation 7(iv)(b) published the integrated seniority list
in which the name of respondent no. 1 figures at serial no.
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12 i.e. below other officers at present working as Superin-
tending Engineers including the aforesaid petitioners in the
connected special leave petition.
We however wish to mention that there is a controversy
as to whether the petitioners in the connected special leave
petition applied for and were not selected by the Board as
Assistant Engineers (Civil) in 1968. Respondent no. 1 P.L.
Kelkar has averred in paragraphs 7, 8 and 9 of the counter-
affidavit that the aforesaid petitioners who were working on
deputation with the Electricity Board did not consider it
beneficial to leave their parent department viz. Irrigation
& Power Department and join the services of the Board at the
relevant time although the Board had again advertised the
posts of Assistant Engineer (Civil) in the year 1965. He
then goes on to aver in paragraph 9 that in order to build
up the Civil Engineering cadre of the Board the Electricity
Board readvertised the posts of Assistant Engineer (Civil)
in the year 1968 and asserts that most of the petitioners
applied for the post and the selection was made by a Selec-
tion Board on the basis of interview and record of past
service and adds:
"However, all the petitioners except petition-
ers nos. 4 and 5 Panba Prasad and O.P. Sharma
were not selected for the post of Assistant
Engineer (Civil) as per the selection list
published by the Board. The reason for the
non-selection
342
was obviously that they were not found fit for
the post on the basis of their record and
interview."
When this averment was brought to our notice by learned
counsel for respondent no. 1 we called upon the Electricity
Board to place before us the relevant records relating to
the interviews held in the year 1968 and also to file a
detailed affidavit. Learned counsel for the Electricity
Board assured us that the Board will comply with the direc-
tion and place before the Court the relevant records and
also file an affidavit. Learned counsel for the petitioners
in the connected special leave petition however was baffled
at the suggestion that the petitioners should have at all
applied for the post of Assistant Engineer (Civil) adver-
tised in the year 1968 when they were for a number of years
actually functioning as officiating Executive Engineers in
the Irrigation and Power Department. To set the matter at
rest, we asked the parties to exchange affidavits on the
subject although the hearing concluded on March 24, 1987 and
the case was reserved for judgment. On April 3, 1987 M.S.
Rizvi, Deputy Secretary, U.P. State Electricity Board has
sworn an affidavit bringing the relevant facts on record. It
is averted in paragraph 2 that the records in possession of
the Board revealed that in July 1968 applications for the
posts of Assistant Engineer (Civil) in the service of the
U.P. State Electricity Board were invited and that inter-
views of the candidates who had applied in pursuance of the
said advertisement were conducted during December 1968 and
January 1969. In paragraph 3 the respective dates of promo-
tion of the petitioners as Executive Engineers are given. In
paragraph 4 however it is stated that the records relating
to the applications in the interviews are not traceable
inspite of the best efforts made by the senior officers of
the Electricity Board.
In his rejoinder, respondent no. 1 P.L. Kelkar contro-
verts the facts alleged. He submits that the affidavit filed
by the Electricity Board does not state the facts correctly.
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It is then stated:
"In fact in Petition No. 4888 (F) III/77 filed
by Shri N.P. Malik & Ors. v. U.P. State Elec-
tricity Board it was averted in para 11 as
follows:
"That respondents Nos. 2 to 15 applied against
advertisement for selection of direct recruits
as Civil Engineers in 1968. After an interview
they were found to be unfit and were not
selected for the substantive post. The list of
343
persons selected under s. 3.0. No. 2208-
A/SEB/159-A/1968 dated 1.4.69 shows that they
were not selected.
"In reply to the above submission in paragraph
11, it was averred by the Board before the
Public Services Tribunal that the ’contents of
paragraph 11 are admitted."
In view of the above reply, respondent no. 1 submits
that it is wholly irrelevant whether the records are now
available or not because the above affidavit in the Public
Services Tribunal was made after perusing the records. We
are rather surprised that the Electricity Board should file
an affidavit by the Deputy Secretary stating that the rele-
vant records of the interviews held in the year 1968 are not
available unless they have been done away with.
We have given above the necessary back-ground facts for
appreciating the dispute involved in these cases. A decision
in these cases depends upon the correct interpretation of
Regulation 7(iv)(b) before and after its amendment. The
regulation comprises of two parts. The first part refers to
the advantage of advance increments. This advantage is based
on special qualification and past experience and its conse-
quent effect on seniority. The grant of subsequent incre-
ments by the Board after joining its service is not governed
by,this regulation.
It is the second part of the regulation that gives a
little difficulty and it was on this that considerable
arguments were addressed before us. Special reliance was
placed upon the expression ’in doing so’ occurring in the
regulation. What is contended is that this expression indi-
cates the manner in which the first part is to be construed.
The regulation, before its amendment mentioned Government
departments or other organisations but after its amendment
it was changed to ’in the U.P. or Central Government Depart-
ment’. This change shows a deliberate attempt to deny its
benefit to employees who came from service not comprised in
either U.P. or Central Government departments. We do not
think that it would be either just or fair to give a limited
meaning to the second part of the amended regulation and
thereby to deny its benefit to those Engineers who came from
other departments or corporations etc. It is necessary to
note that the first part of the regulation does not speak of
Engineers in the U.P. or the Central Government Departments.
It speaks only of Engineers directly recruited by the Board
before the commencement of this regulation, which expression
takes in, Engineers who came into the service of the
344
Board from all sources. That being so, it would not be
proper to completely eliminate Engineers who came from other
sources from the benefit of the regulation giving a re-
stricted meaning to the expression ’in doing so’. It is
useful to note. that the Board’s advertisement inviting
applications provided higher start for those having special
qualifications and experience irrespective of the source of
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the service held by them. The second part of the regulation
has therefore to be construed only as a proviso to the first
part confining its scope to the employees of the U.P. as
well as Central Government and not to affect the generality
as contemplated in the first part.
The injustice that will be meted out to the Engineers
who came from outside if the restricted meaning is given to
the second part of the regulation, can be best illustrated
by referring to the case of Shri P.L. Kelkar. He was ap-
pointed as a Junior Engineer, P.W.D., M.P. on July 19, 1957
and was promoted as Assistant Engineer and posted in Housing
Department on May 20, 1959. On June 9, 1960 he was appointed
Engineer Assistant Grade I in Indian Refinery Limited,
Guwahati, after leaving the services of the M.P. Government.
Thereafter, he was appointed as Assistant Engineer on May
10, 1961, in Associated Cement Company Limited, Bombay. It
was while working in that company that he came across the
advertisement made by he U.P. State Electricity Board. He
applied pursuant to such advertisement. He was selected by
the Board and appointed as per order dated August 22, 1964.
He joined service on October 7, 1964. He was given nine
increments taking into consideration his special qualifica-
tion and experience. Two increments were common to all.
Thus, the extra increments given to him were seven. It is
apparent that if this extra increment on the basis of his
experience and special qualification did not carry with it,
seniority in the Board, he would not have either applied or
accepted the job. It cannot be assumed that he would have
joined the Board willingly as a new entrant. Under these
circumstances, the Tribunal was justified in holding that he
should be deemed to have been appointed w.e.f. October 7,
1957, instead of October 7, 1964, when he joined the service
of the Board. The Tribunal according to us justifiably
repelled the contention that he was not entitled to the
above advantage under the second part of the Regulation
7(iv)(b). In our view, the Tribunal was justified also in
holding that second part is in the nature of proviso limited
to persons who had been in service of either U.P. or the
Central Government Departments and who had been given ad-
vance increments in consideration of such service.
The High Court considered the question in detail with refer-
ence
345
to the regulation under consideration and agreed with the
Tribunal in the construction put by it regarding the second
part of the regulation. We have also given our anxious
consideration to the regulation before and after the amend-
ment. We also come to the conclusion that the interest of
justice will be advanced by agreeing with the High Court and
the Tribunal in the construction given by them to this
regulation. In our judgment, therefore, seniority will have
to be fixed in accordance with the number of increments
excluding the original two increments given to the entrants
in the Board both from the U.P. and the Central Government
Departments and from other sources. We do not think it
necessary to answer other aspects of the case for this
judgment. We do not think any interference is called for
with the judgment of the High Court. We confirm the judg-
ment, dismiss the appeal, writ petition and the special
leave petition, with no order as to costs.
N.P.V. Appeal and Petitions dis-
missed.
346
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