REPORTABLE   IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION  CIVIL APPEAL No.3439 of 2007

Bhakra Beas Management Board ....Appellant   Versus Krishan Kumar Vij & Anr.               ...Respondents

W I T H Civil Appeal No.3438 of 2007;  Civil Appeal No.3440 of 2007;  

AND  Civil Appeal No.3418 of 2007.

J U D G M E N T   Deepak Verma, J.  1. This Judgment and Order shall govern disposal  of  

C.A.No.3439 of 2007, C.A.No.3438 of 2007, C.A. No.  3418  of  2007  and  C.A.  No.3440  of  2007  as  they  project common question of law to be answered by  this Court.  Precisely, we are required to consider  whether in the light of the Order/Circular issued  by  the  appellant-  Bhakra  Beas  Management  Board  (hereinafter  shall  be  called  as  'Board'),  respondent No.1 - employee  would be entitled to  the  benefit  of  higher  scale  of  pay/upgradation/stepping  up  of  salary  sans pre- requisite qualification for the grant of the same.

2. For  the  sake  of  convenience,  facts  appearing  in  Civil Appeal No.3439 of 2007 are being taken into

consideration.  Respondent No.1, Krishan Kumar Vij  had

C.A.Nos.3439/07 etc. .... (contd.)

- 2 - initially joined the services of the State of Punjab,  Department of Irrigation as Tracer in 1949. He was  thereafter promoted as a Draftsman in the year 1950.  He was further promoted as Divisional Head Draftsman,  some  time  in  the  year  1962.  Thereafter,  he  was  transferred in the services of the Board.  There also,  he  earned promotion as Circle Head Draftsman  and  then  as  the  Assistant  Design  Engineer.   Regular  promotion to respondent No.1 on the post of Asstt.  Design Engineer  in Punjab Service of Engineers (II)  was granted with retrospective effect from 1.6.1976.  Finally, on attaining the age of superannuation, he  retired  from  service  on  31.1.1987.   Even  though,  respondent no.1 had earned several promotions, while  in  service,  he  still  complained  of  stagnation  in  service as he was not able to earn further promotion.  This was the  cause for triggering off the instant  litigation. 3. Brief history giving rise to this litigation is as  

under :- 4. State  of  Punjab  was  of  the  opinion  that  there  

existed   stagnation  amongst  various  cadres  of  regular  employees.  Pursuant  thereto,  an  Office

Order was issued by the Punjab State Electricity  Board (for short 'PSEB')  on 23.4.1990, adopted by  the Board vide  

C.A.Nos.3439/07 etc. .... (contd.)

- 3 - Order dated 26.06.1992.  The aims and objects of the  said  Office Order issued by the PSEB are reproduced  hereinbelow :

"The Punjab State Electricity Board  have  been  seized  of  the  problems  of  stagnation  prevailing  amongst  the  various cadres of regular employees and  its  consequent  effect  in  their  efficiency.  It is felt that an employee  should  under  ideal  service  conditions  get  normally  two  promotions  from  his  initial  recruitment  level  during  his  service.  However,  this  is  not  always  possible  owing  to  non-availability  of  promotional  posts.   The  aspiration  of  the employees can however, be met to a  great  extent,  by  allowing  time-bound  higher scales to the employees at two  stages  in  their  service  career.  The  Punjab  State  Electricity  Board  has,  therefore, decided to introduce scheme  to  allow  time-bound  benefit  of  promotional scales after the completion  of 9/16 years of regular service in the  PSEB,  provided  the  maximum  benefit  on  being  placed  in  the  time-bound  promotional scales does not exceed five  increments  including  promotional  increment(s)  to  the  subordinate  employees  having  a  maximum  scale  upto  Rs.3500/-  except  the  categories  where  the benefit of time-bound placement to  higher scale is applicable on the Punjab  Government  pattern  as  in  the  case  of  teachers etc."

5. The  said  scheme  of  time-bound  benefit  of  promotional scale commenced from 1.1.1986 but the  payment of arrears was spread over two years i.e.

arrears from 1.1.1986 to 28.2.1989 were to be paid  in 1990-91 and  1991-1992. As per this Circular,  the benefit   of   first  time-bound  placement  would  be  

C.A.Nos.3439/07 etc. .... (contd.)

- 4 - available to an employee on completion of 9 years of  regular service on the  post and second time-bound  promotional scale would be available after completion  of sixteen years of service.  Para 7 thereof  refers  to  those  employees  who  do  not  fulfil  the  qualification/passing  of  examination  essential  for  promotion to the  next higher post, but they shall  also be placed into the time bound promotional/devised  promotional scale to be specified by the Board in the  schedule  as  referred  to  in  para  5.  It  has  been  mentioned  in  para  5  that  the  Board  shall  draw  schedules  indicating  the  lowest  post(s)  for  direct  recruitment  in  respect  of  various  cadres  for  the  purpose of this order, separately. 6. Pursuant  to  the  said  order,  another  order  was  

issued  by  P.S.E.B.  on  24.5.1990  (hereinafter  for  brevity shall be referred to as 'Order of 1990')  specifying  the  promotional  scales  for  Assistant  Engineers  and  the  conditions  precedent  for  eligibility thereof, adopted by the Board.

7. The relevant part of the said Order of 1990, is

reproduced hereinbelow: "2.  The above higher scales will only be available  to the  directly recruited Assistant Engineers as  per regulation.  (emphasis supplied by us)  7-A(i) read with regulation–9 of PSEB, Service of  7-A(i) read with Regulation–9 of PSEB, Service of

C.A.Nos.3439/07 etc. .... (contd.)

- 5 -  Engineers(Electrical)Regulation–1965 Engineers (Civil) Regulations – 1965 The  cases  of  Assistant  Engineers  appointed  by  promotion as per provisions of the Regulation 7-A  (ii) read with Regulation – 10 of the Regulations  ibid  will  be  governed  by  Guidelines  circulated  vide  Secretary  Finance  Officer  Order  No.  197/PRC/FIN-1988 dated 23.04.1990. Note:  The departmental (Technical Subordinate and  Drawing Staff) who while in service of the Board  have been promoted to the post of AE(Electrical)

(Civil)   against quota reserved for promotion from amongst  them under  Regulation 7–a(ii)read with  

            Regulation 7-(A)ii) read with Regulation 10 (7) of the PSEB--------------------- Regulation 10 (4) of the PSEB--------------------- Service of Engineers (Electrical) Regulations-1965 Service of Engineers (Civil) Regulations - 1965   shall  be  deemed  to  have  been  appointed  as  Assistant Engineers like the Assistant  Engineers  appointed through direct appointment under

Regulation 7 A (i) read with Regulation – 9 of the  Regulation 7-a(i) read with Regulation–9 of the   Service of Engineers (Electrical)  Service of Engineers (Civil) Ibid  for  the  purpose  of  grant  of  above  next  higher scales  after  9/16  years  of  regular  service  as  Assistant  Engineer/Assistant  Executive  Engineer/  Executive  Engineer,  prescribed period to be counted from the date of  joining the  post  of  Assistant  Engineer  on  regular basis.  Similarly, Graduates in

Electrical/MechanicalEngineering/AMIE qualified   Civil Engineering/AMIE qualified

 hands  who  possesses  this  qualification  before  joining the service  of  the  Board  and  subsequently  promoted  as  Assistant  Engineers  against quota reserved for promotion from amongst  

C.A.Nos.3439/07 etc. .... (contd.)

- 6 -  them in terms of provisions of  Regulation 7–a(ii)read with Regulation 10(9) of Regulation 7–a(ii) read with Regulation 10(6) of       Service of Engineers(Electrical) Regulations-1965 Service of  Engineers (Civil) Regulations-1965

will be treated likewise. " Regulation  7  A  has  wrongly  been  described  in  the  Order/Circulars instead, it be read as Regulation 7  (a), wherever it appears. 8. Clause  2  of  the  aforesaid  Order  of  1990  

categorically  stipulates  that  it  would  be  applicable  only  to  directly  recruited  Assistant  Engineers  as  per  Regulation  7(a)(i)  read  with  Regulation 9 of the Regulations and to none others.

9. In the case in hand, we are concerned only with  Civil Engineers, directly recruited to the posts of  Assistant Engineers (Civil).

10.Pursuant to the above two Orders, respondent no.1  had made several representations claiming grant of  time-bound promotional scale of Rs.4500-6300 w.e.f.  1.1.1986.   

11.Since  several  representations  made  by  respondent  no.1  did  not  bring  required  result,  he  was  constrained to file C.W.P. No. 6945 of 2003 in the  High Court  of Punjab and Haryana, which came to be  disposed of on 8.5.2003, with a direction  to the  Board to decide the  

C.A.Nos.3439/07 etc. .... (contd.)

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representation in the light of relevant  law, rules  and instructions by passing a speaking order.  In the  aforesaid Writ Petition, no notice was issued to the  appellant-Board.  In  consequence  of  the  directions  passed  by  the  High  Court  as  mentioned  hereinabove,  respondent  No.1's  representation  was  considered  at  length by the Board but  was decided against him on  22.8.2003  which  was  again  challenged  by  respondent  No.1 before the Division Bench of the High Court of  Punjab and Haryana. The High Court vide the impugned  judgment  and  order  passed  on  6.12.2004  allowed  respondent No.1's Writ Petition whereby and whereunder  the order dated 22.8.2003, passed by the Board was set  aside  with  further  direction  to  grant  to  the  said  respondent the next higher pay scale after completion  of 16 years of service.  It is this order which is  being assailed by the Board before us.  12.According  to  respondent  No.1,  since  he  had  

completed requisite  length of service of 16 years

on the post of Assistant Design Engineer, thus had  become  entitled  for  the  higher  pay  scale.   It  appears, he took the cue for filing the 2nd Writ  Petition on the strength of orders passed by the  High  Court  in  another  petition  filed  by  other  employee, as mentioned hereinbelow.

C.A.Nos.3439/07 etc. .... (contd.)

- 8 -  13.It is pertinent to mention here that one of such  

employees  Rajinder  Singh  Patpatia  had  also  independently filed C.W.P.No. 9162 of 1994, which  was  allowed  on  26.8.1999  by  the  learned  Single  Judge  of  the  High  Court  of  Punjab  and  Haryana.  Letters Patent Appeal No.1127 of 1999 filed by the  Board, against the aforesaid judgment and order of  the learned Single Judge was dismissed on 13.1.2001  by  the  Division  Bench  of  the  said  High  Court.  Challenging  the  order  of  Division  Bench  as  also  that of the learned Single Judge of the High Court,  the  Board  had  preferred  Special  Leave  Petition  No.2393 of 2002 in this Court, which was dismissed  on 15.2.2002.  An application  for review of the  said order was filed by the Board in this Court but  was similarly dismissed and met the same fate.   

14.We have heard learned Senior Counsel  Shri Jawahar  Lal Gupta, Mr. D.S. Nehra and  Ms. Nidhi Gupta,  Advocate  for  the  appellant-Board.   Shri  Mahabir

Singh,  Ms.  Reena  Singh,  Mr.Sanjeev  Kumar,  Mr.  Mahipal, advocates, Mr. T.S. Doabia, Sr. Advocate,  Mr.Anil  Mittal,  Mr.Rajiv  Kataria,  advocates  appeared for the respondents at length and perused  the records.

15.Mr.  Jawahar  Lal  Gupta,  learned  Senior  Counsel  appearing   for    appellant    strenuously  challenged,    

C.A.Nos.3439/07 etc. .... (contd.)

- 9 -  

attacked and hammered the impugned judgment broadly on  the following grounds :  (i)  Respondent  No.1's  Writ  Petition  could  not  have been entertained,  belatedly after a lapse of  8  years, thus was liable to be dismissed on the ground  of delay and laches.    (ii) Respondent No.1 herein had already earned  3/4  promotions  before  he  attained  the  age  of  superannuation.  Thus, his case would not fall under  the category of stagnated employee.    (iii) Order of 1990 has wrongly been interpreted  by the Division Bench of the High Court.    (iv) Clause 2 of Order of 1990 clearly stipulated  that the same would be applicable only to directly  recruited  Assistant  Engineers  (Civil)  and  to  none  others. Admittedly, respondent No.1 does not fall in  that category, consequently would not be entitled for

it.  (v)  The Division Bench  also lost sight of the  fact  that  unless  an  employee  had  pre-requisite  qualification for promotion, the  question of grant of  time-bound  higher pay scale or upgradation in salary,  would not arise.    16. Per contra, the learned counsel for respondent no.1  contended  that  issue  is  no  more res integra in the  

C.A.Nos.3439/07 etc. .... (contd.)

- 10 -  

light of the order passed in the matter of Rajinder  Singh  Patpatia  by  learned  Single  Judge  of  the  High  Court,  confirmed  in  LPA  by  Division  Bench,  further  approved  by  this  Court,  by  dismissing  the  Board's  Special  Leave  Petition  at  the  threshold  and  then  rejection of review  petition.  It has been  contended  by  them  that  stagnation  would  be  applicable  at  all  stages and to all the employees, who have not been  granted promotion, otherwise the very purpose of the  word 'stagnation' would stand defeated. 17. They have also submitted before us that there was  no  question  of  granting  promotion  to  them  but  the  actual relief on the strength of the order/circular  which could have been granted to the employees was  stepping up, upgradation/ revision of the pay scale  without being actually promoted to next higher post.  In  other  words,  they  have  contended  that  no

interference is called for in the impugned judgment  and the appeals being devoid of merits and substance,  deserve to be dismissed. 18. As mentioned herein above while granting relief to  respondent no.1, Division Bench has placed reliance on  the earlier Division Bench judgment rendered in the  case of Rajinder Singh Patpatia, whereby and whereunder  the  Board's  Writ  Appeal  was dismissed and the order  

C.A.Nos.3439/07 etc. .... (contd.)

- 11 -  

dated  26.8.1999  passed  by  Learned  Single  Judge  was  confirmed.  Special Leave Petition (C) No. 2393 of 2002  was dismissed on 15.2.2002 and a Review Petition filed  by the  Board  also came to be dismissed by this Court.  They have thus contended that the same reliefs ought to  have been granted to respondent no.1 also as he was  similarly  situated  and  the  High  Court  committed  no  error in doing so. 19. Thus,  we  are  required  to  first  consider  this  aspect  of  the  matter,  where  earlier  Special  Leave  Petition  and  Review  having  been  dismissed  at  the  preliminary stage by this Court, what would be its  effect on the impugned judgment.  Whether the same can  still be assailed and challenged even though, earlier  view of the High Court in identical matter has a seal  of approval of this Court. 20. However,  this  issue  should  not  detain  us  any

longer in view of well considered judgment of a three- Judge Bench of this Court reported in 2000(6) SCC 359  titled  Kunhayammed & Ors Vs.  State of Kerala & Anr.  wherein  this  Court  categorically  held  that  mere  dismissal of a Special Leave Petition at a preliminary  stage  does  not  constitute  a  binding  precedent,  and  accordingly,  any  order  passed  by  the  High  Court  placing  reliance  on  earlier  order,  can  still  be  

C.A.Nos.3439/07 etc. .... (contd.)

- 12 -  

challenged subsequently. 21. The relevant para of the aforesaid judgment in  

Kunhayammed (supra)   authored  by  most  illustrious  learned Judge (Hon'ble Mr. Justice R.C. Lahoti as he  then was) in his lucid and concise language has held  as under:  (at page 377 ) :

"27. A petition for leave to appeal to this  Court  may  be  dismissed  by  a  non-speaking  order or by a speaking order. Whatever be  the  phraseology  employed  in  the  order  of  dismissal, if it is a non-speaking order,  i.e.,  it  does  not  assign  reasons  for  dismissing  the  special  leave  petition,  it  would neither attract the doctrine of merger  so as to stand substituted in place of the  order put in issue before it nor would it be  a declaration of law by the Supreme Court  under Article 141 of the Constitution for  there is no law which has been declared. If  the  order  of  dismissal  be  supported  by  reasons  then  also  the  doctrine  of  merger  would  not  be  attracted  because  the  jurisdiction exercised was not an appellate  jurisdiction  but  merely  a  discretionary  jurisdiction  refusing  to  grant  leave  to  appeal.  We  have  already  dealt  with  this

aspect earlier. Still the reasons stated by  the  Court  would  attract  applicability  of  Article 141 of the Constitution if there is  a law declared by the Supreme Court which  obviously would be binding on all the courts  and  tribunals  in  India  and  certainly  the  parties thereto. The statement contained in  the order other than on points of law would  be binding on the parties and the court or  tribunal, whose order was under challenge on  the principle of judicial discipline, this  Court being the Apex Court of the country.  No court or tribunal or parties would have  the liberty of taking or canvassing any view  contrary to the one expressed by this Court.  The order of  Supreme Court would mean that  

C.A.Nos.3439/07 etc. .... (contd.)

- 13 -  it has declared the law and in that light  the case was considered not fit for grant of  leave.  The  declaration  of  law  will  be  governed by Article 141 but still, the case  not being one where leave was granted, the  doctrine of merger does not apply. The Court  sometimes leaves the question of law open.  Or  it  sometimes  briefly  lays  down  the  principle, may be, contrary to the one laid  down by the High Court and yet would dismiss  the  special  leave  petition.  The  reasons  given are intended for purposes of Article  141. This is so done because in the event of  merely  dismissing  the  special  leave  petition,  it  is  likely  that  an  argument  could be advanced in the High Court that the  Supreme Court has to be understood as not to  have differed in law with the High Court."

      It  was  further  held  in  para  40  reproduced  hereinbelow :

 (page  382)   "40.  .....  In  any  case,  the  dismissal  would  remain  a  dismissal  by  a  non-speaking  order  where  no  reasons  have  been assigned and no law has been declared  by the Supreme Court. The dismissal is not  of  the  appeal  but  of  the  special  leave  petition. Even if the merits have been gone  into, they are the merits of the special  leave petition only. In our opinion neither  doctrine of merger nor Article 141 of the

Constitution  is  attracted  to  such  an  order."

Thus, according to the law laid down by the Bench of  three learned Judges of this Court, it is clear that  dismissal of a matter by this Court at the threshold,  with  non-speaking  order,  would  not  fall  in  the  category of binding precedent. Meaning thereby that  the impugned order of the Division Bench can still be  challenged  on  merits by  the Appellant Board.  Thus,  

C.A.Nos.3439/07 etc. .... (contd.)

- 14 -  

the earlier order of the High Court and this Court  passed in Rajinder Singh Patpatia's case, creates no  bar from re-examining the matter on merits. 22. We have already mentioned hereinabove with regard  to Clause 2 of Order of 1990 read with Regulation 9  which restricts the benefit only to directly recruited  Assistant  Engineers/Assistant  Executive  Engineers,  meaning thereby that one must possess the requisite  qualification  as  prescribed  under  the  Regulations,  then only the benefit would accrue to the employee,  not otherwise. 23. The note appended thereto clearly stipulates that  even  those  employees  who  were  promoted  under  Regulation 7(a)(ii) read with Regulation 10(4) shall  be  deemed  to  have  been  appointed  by  direct  recruitment.  This  legal  fiction  is  limited.  It  is

applicable  only  to  those  employees  who  have  been  promoted in conformity with the provisions contained  in clause 4. Thus, the employees who had passed both  parts (A) and (B) of the AMIE Examination and were  promoted against 9% posts reserved for that class were  fictionally  treated  as  direct  recruits.  Thus,  it  clearly stipulates that only those Assistant Engineers  who were either directy recruited or  had acquired the  requisite   qualifications   prescribed   for   direct  

C.A.Nos.3439/07 etc. .... (contd.)

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recruitment were chosen to be granted higher scale if  they had been promoted against the post falling within  the quota of 9% of the cadre strength of the said  post.  24.  Order  of  1990  contemplates  that  it  is  to  be  followed as per Regulation which provides that only  such persons as have been promoted under Regulation  7(a)(ii) read with Regulation 10(4) shall be treated  as direct recruits. In other words, it does not apply  to  the  promotees  irrespective  of  their  academic  qualifications nor they can be treated at par with the  direct recruits. There was a purpose of treating them  so, otherwise, it would have the effect of violating  the constitutional mandate contained in Articles 14  and 16 of the Constitution of India, on the premise  that unequals have been treated as equals. It is with

that  intention,  to  avoid  criticism  and  future  litigation  that  such  persons  who  possessed  qualifications  for  direct  recruitment  and  could  be  promoted  against  the  posts  falling  vacant,  would  become  entitled  to  claim  the  benefit.   Since  respondent   no.1  did  not  fall  in  this  category,  obviously, he was not  entitled  to the higher scale.  25. Thus, there appears to be no illegality committed  by   the   Board   in   rejecting   respondent  no.1's  

C.A.Nos.3439/07 etc. .... (contd.)

- 16 -  

representation.  So, in our considered opinion, the  High  Court  has  clearly  erred  in  setting  aside  and  quashing  the  same.   Critical  examination  of  the  impugned judgment passed by the Division Bench of the  High Court completely defeats primary purpose of  the  Order  of  1990  and  provisions  applicable  to  the  employees of the Board.   No doubt, it is true that  the Order of 1990 was issued only with an intention to  remove the stagnation but this would not give blanket  or absolute right to any employee to be entitled to  higher  pay  scale  even  if  he  does  not  fulfil  pre- requisite qualifications for holding the higher post.  In  other  words,  if  he  possesses  the  required  qualifications but is unable to get the higher post on  account of non-availability of such post, then only he  can be categorised as suffering from stagnation as per

Order of 23.4.1990.       26. Obviously, an employee who does not fulfil the  qualification as per Regulation 10(4) for the higher  post would be ineligible for promotion and/or higher  pay  scale.  In  that  eventuality,  such  an  employee  cannot complain of stagnation. 27. Moreover, even while adopting the Order of 1990,  it was made clear by the Board vide its Order dated  26.6.1992  that  the  time  bound  promotional/devised  

C.A.Nos.3439/07 etc. .... (contd.)

- 17 -  

promotional  scales  after  9/16  years'  service  are  admissible only in respect of the posts in which the  initial induction is through direct recruitment.   28.  It  is  pertinent  to  mention  here  that  the  Regulations  had  been  notified  in  the  year  1965.  Respondent no.1 was in service with the Board for two  decades or so after promulgation of the Regulations.  All the employees claiming benefit of the Order of  1990 had retired long after the promulgation of the  Regulations.   Thus,  they  were  fully  aware  and  conscious  of  the  fact  that  the  relevant  Regulation  puts a partial embargo and impediment on their future  career for promotion.  They were  aware  that unless  they  are  able  to  acquire  these  requisite  qualifications,  the  benefit  of  the  Order  of  1990  cannot be extended to them.  Even though, they had

enough opportunity and time to do so, but they did not  improve  their  respective  qualification.   In  such  a  fact situation, they cannot complain of stagnation.  They have to thank their own stars that despite having  knowledge  of  the  provisions  of  the  Regulations  applicable to them, they did not make any attempt to  acquire the qualifications. 29. It  is  also  to  be  noted  that  even  though  respondent no.1 was  junior to Rajinder Singh Patpatia  

C.A.Nos.3439/07 etc. .... (contd.)

- 18 -  

who  was  granted  relief  by  the  High  Court,  still  respondent No.1 took such a long time to approach the  High Court.  The aforesaid legal and factual aspect of  the matter specially the interpretation of the order  of 1990 read with the Regulations was not properly and  reasonably appreciated by the Division Bench.  In this  regard, it is necessary  to quote the stand of the  appellant-Board right from the very beginning when it  had  proceeded  to  reject  the  representation  of  respondent no.1. 30.  The  relevant portion of the reason of the Board  so assigned to reject the respondent's representation  is  reproduced hereinbelow :

"in  view  of  the  principles/features  enunciated  in  the  scheme  for  grant  of  time-bound  placement  into  the

promotional/devised   promotional  scale  after 9/16 years of regular service as  introduced on the PSEB  pattern, the case  of  Diploma  Holder  SDOs  does  not  fall  within the ambit of grant of 1st and 2nd  Time-bound  Promotional  Scale  after  completion of 9/16 years regular service  as  admissible  to the directly recruited  Degree  Holder   AEs  and  departmental  employees  (Technical  Subordinate  and  Drawings Staff) who have been promoted on  the  basis  of  the  AMIE/Degree  in  Engineering against their share quota on  the PSEB pattern."

The aforesaid reasoning of the Board entirely rests on  C.A.Nos.3439/07 etc. .... (contd.)

- 19 -  

the Order of 1990 and the Regulations applicable  to  such employees.   31. During the course of the hearing, a question was  posed   to  the  learned  counsel  for  the  appellant  Board:-  if  an  employee  is  able  to  acquire  the  requisite qualification and has also served the Board  for the minimum required length of years as Assistant  Engineer whether such an employee would be entitled to  get  the benefit of the order of 1990 or not.   32. Mr. J.L Gupta, learned senior counsel appearing  for  the  Board  categorically  submitted  that  such  employees  would  be  entitled   to  get  the  benefit  provided,  they  fulfilled  the  requisite  conditions.  Learned counsel for the appellant has agreed that if  an employee has acquired qualifications for grant of  promotion and has suffered stagnation, then  he would

be entitled for stepping up/revision of his pay scale.  Meaning  thereby  that  all  such  employees  who  have  cleared both parts of the AMIE examination, but have  not put in required experience of working as Assistant  Engineer in consonance with the order of 1990 and the  Regulations,  the  Board  would  be  fully  justified  in  rejecting their claims. 33. If the interpretation of the High Court to the  Order of 1990 is to be implemented, then it would lead  

C.A.Nos.3439/07 etc. .... (contd.)

- 20 -  

to unsustainable consequences. It would then mean that  every Assistant Engineer irrespective of his conduct,  qualifications, performance or behaviour would become  entitled  to  the  higher  scale  on  completion  of  particular length of service.  If that be so, then  even  those  employees  with  poor  service  record  and  doubtful integrity would also become entitled to claim  higher  scale  merely  because  they  had  completed  a  particular  length  of  service.  If  such  an  interpretation  is to be given to the Order of 1990,  then it would not only be improper but would also be  against public policy and interest of the Board.  It  is too well settled that a statute or any enacting  provision  must  be  so  construed   as  to  make  it  effective and operative.  Any such construction which  reduces the statute to a futility has to be avoided.

34. It has been stated by Lord Dunedin, in the case  of Murray v. IRC (1918) AC 541 at p. 553 that, 'it is  our duty to make what we can of statutes, knowing that  they  are  meant  to  be  operative  and  not  inept  and  nothing short of impossibility should in my judgment  allow a judge to declare a statute unworkable'.  The  principle was reiterated by him in a later judgment in  the case of  Whitney v. IRC  (1926) AC 37 at p.52,  where  he  observed,  'a  statute  is  designed  to be  

C.A.Nos.3439/07 etc. .... (contd.)

- 21 -  

workable  and  the  interpretation  thereof  by  a  court  should  be  to  secure  that  object  unless  crucial  omission  or  clear  direction  makes  that  end  unattainable. 35. The  aforesaid  observations  make  it  abundantly  clear  that  the  courts  will,  therefore,  reject  the  construction  which  is  likely  to  defeat  the  plain  intention of the legislature even though there may be  some inexactitude in the language used.  If the choice  is between two interpretations, the narrower of which  would  fail  to  achieve  the  manifest  purpose  of  the  legislation should be avoided.   36. In view of this, to attain the fruitful results  of the Order of 1990 we have to give it a meaningful  and proper construction which would achieve the object  for  which  it  was  passed,  rather  than  to  give  a

narrower  construction  which  may  defeat  the  very  purpose of passing the said order. 37. In somewhat similar circumstances, a Bench of two  learned Judges of this Court in the case of M.V. Joshi  v.  M.U. Shimpi AIR 1961 SC 1494 = 1961 (3) SCR 986  eloquently said as under :

"....  But  these  rules  do  not  in  any  way  affect  the  fundamental  principles  of  interpretation, namely, that the primary test  is – the  language  employed  in  the Act and  

C.A.Nos.3439/07 etc. .... (contd.)

- 22 -  when the words are clear and plain the court  is bound to accept the expressed intention of  the legislature."

At the cost of repetition, we reiterate that the clear  and plain reading of the Order of 1990 is as has been  interpreted by us hereinabove. 38. No doubt, it is true that the Order  of 1990 is  not happily worded, but even then the only inevitable  conclusion that can be deciphered from the same is  that the benefit thereof would accrue to only those  directly  recruited  Assistant  Engineers/Assistant  Executive  Engineers  who  have  pre-requisite  qualification  for  appointment  to  the  higher  post.  Obviously, if an employee does not have the required  qualification, then under what circumstances he would  be entitled to claim benefit of the Order of 1990.  A  statute  is  designed  to  be  workable  and  the

interpretation  thereof by a court should be to secure  that object unless crucial omission or clear direction  makes  that  end  unattainable.  In  our  considered  opinion,  the  Order  of  1990  cannot  be  logically  interpreted  in  any  other  manner  than  what  we  have  done.  It is also too well settled that when the words  of the statute are clear, plain or unambiguous and are  reasonably susceptible to only one meaning, the courts  are  bound to give  effect to  that meaning only which  

C.A.Nos.3439/07 etc. .... (contd.)

- 23 -  

serves  the  cause  and  purpose  irrespective  of  the  consequences. 39. Yet, another question that draws our attention is  with regard to delay and laches.  In fact,  respondent  no.1's petition deserved to be dismissed only on that  ground but surprisingly the High Court overlooked that  aspect of the matter and dealt with it in a rather  casual  and  cursory  manner.  The  appellant  had  categorically raised the ground of delay of over eight  years in approaching the High Court for grant of the  said relief.  But the High Court has simply brushed it  aside  and  condoned  such  an  inordinate,  long  and  unexplained delay in a casual manner.   Since, we have  decided the matter on merits, thus it is not proper to  make avoidable observations, except to say that the  approach  of  the  High  Court  was  neither  proper  nor

legal. 40. It is not in dispute that all the respondents of  various appeals  have since demitted the office on  attaining the age of superannuation.   While they were  in service, may be on account of orders of the High  Court,  to  save  itself  from  being  hauled  up  for  committing contempt of court, Board has made payments  to them towards arrears etc.  After such a long lapse  of time, more so, when  the respondents  have  already  

C.A.Nos.3439/07 etc. .... (contd.)

- 24 -  retired,  it  will  be  harsh  on  our  part  to  direct  recovery thereof.  Thus, we direct that  the amounts  already paid to the respondents would not be recovered  by the Board.   41. At the cost of repetition, we may reiterate that  the  effect  of  the  Order  of  1990  read  with  the  Regulations  would  be  that  only  those  employees  who  fulfilled the pre-requisite qualification for further  promotion  along  with  certain  length  of  service  as  required would only be entitled to the benefit as per  the Order of 1990. The other Assistant Engineers, even  though  they  had  completed  the  requisite  length  of  service would not be entitled to claim the benefit,  unless they had fulfilled the basic qualifications and  minimum experience as required. 42. In the facts and circumstances of the case, we  are of the considered opinion that the impugned order

cannot  be  sustained.   It  has  to  be  set  aside  and  quashed  and  we  accordingly  do  so.  The  appeals  are  accordingly  allowed  as  indicated  hereinabove.  The  parties to bear their costs.

    ......................J. [DALVEER BHANDARI]

New Delhi.        ......................J. August 19, 2010 [DEEPAK VERMA]