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CASE NO.: Appeal (civil)  2409 of 2007

PETITIONER: Sohan Singh Sodhi

RESPONDENT: Punjab State Electricity Board, Patiala

DATE OF JUDGMENT: 09/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.    2409                 2007 [Arising out of S.L.P. (C) No.  21020 of 2006]

S.B. SINHA, J.

   1.  Leave granted.

   2.  This Appeal is directed against the judgment and Order dated  31.3.2006 passed by the High Court of Punjab and Haryana at Chandigarh in  R.S.A. No. 4871/2003 dismissing an appeal arising from a judgment and  order dated 24.4.2003 of the learned A.D.J., Patiala setting aside the  judgment and order of the trial judge dated 7.2.2001.

   3.  The basic facts of the case are not in dispute.  Appellant was  appointed as a lineman on 8.8.1964.    He was promoted to the post of Junior  Engineer on 15.3.1974.   He was not a diploma holder.   Respondent Board  which is constituted in terms of Section 15 of the The Electricity (Supply)  Act, 1948 and incorporated under Section 12 thereof provided for scale of  pay on the basis of the qualifications held by the incumbents.   One Ravinder  Kumar who was a non-diploma holder filed a suit questioning the purported  discrimination in promotion of Lineman to Line Superintendent between  diploma holder linemen vis.-‘-vis. non diploma holder linemen.                    4. The matter came up before this Court in Civil Appeal Nos. 3341 and  3342 of 1983, Punjab  State Electricity Board, Patiala & Anr. etc.  v  Ravinder Kumar Sharma and Ors. reported in AIR 1987 SC 367 wherein this  Court held:- "8. The only issue raised in this appeal is whether  defendant 1, that is, the Punjab State Electricity  Board, is competent to discriminate between  diploma holders and non-diploma holders Line Men  forming the common cadre of Line Men having a  common seniority list in promoting these line men  on the basis of quota fixed by the order of the State  Electricity Board even though the requisite  qualification for promotion for Line Man to the post  of Line Superintendent is either the holding of  diploma or certificate for electrical engineering from  a recognised institute or the non-diploma holders  having passed one and half year’s course in the trade  of Electrician/Line Man/ Wire Man from recognised  Industrial Training Institute and are matriculates and  have worked for four years as Line Man  continuously and immediately before promotion, as  has been provided by the office order No.  97/ENG/BET/G-33 dated 22-10-1968."

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    5. The only issue which was raised before this Court was as to whether,  the Punjab State Electricity Board could make any discrimination for the  purpose of promotion between diploma holder and non-diploma holders on  the basis of quota fixed by the Order of the State Electricity Board even  though the requisite qualification for promotion from line man to the line  superintendent is either the holding of the Diploma or Certificate of  Electrical Engineering from a recognized institute or having passed 1= year  course in Electrical Trades of Electrician/Lineman/Wireman.

    6. The claim of Ravinder Kumar was based on a circular letter issued by  the respondent Board which was considered by this Court in the said  decision in the following terms:- "11.    This observation applies with full force to the  present case, and it has been rightly held by the High  Court of Punjab and Haryana that the promotion of  defendants 3 to 7 who are junior to the plaintiff- respondent from Line Man to the post of Line  Superintendent is wholly bad and discriminatory and  directed that the petitioner be deemed to have been  promoted to the post of Line Superintendent from the  date the said defendants 3 to 7 had been promoted  from Line Man to Line Superintendent.  In our  considered opinion there is no infirmity in the  judgment of the High Court affirming the judgment  and decree of the Courts below and we agree with the  reasonings and conclusions arrived at by the Courts  below. The two appeals on special leave are,  therefore, dismissed with costs quantified at Rs.  5000/- to be paid by the appellant of C.A. No. 3341 of  1983 to respondent 1."

   7.  We may, however, notice that the matter came up before a three  judges Bench of this Court in P. Murugesan & Ors. v State of Tamil Nadu &  Ors. [(1993) 2 SCC 340] wherein Ravinder Kumar (supra) was specially  overruled relying inter alia on a decision of a Constitution Bench of this  Court in State of Jammu and Kashmir v Triloki Nath Khosa and Ors. [1974  (1) SCC 19].

   8.  It was categorically held therein:-   "19. The learned counsel for the respondents relied  upon the decision in Punjab State Electricity Board v.  Ravinder Kumar Sharma , a decision rendered by a  Bench comprising A.P. Sen and B.C. Ray, JJ. The  category of linemen in the service of the Punjab State  Electricity Board comprised both diplomaholders and  others who may be referred to as non-diplomaholders.  They constituted one single category having a  common seniority list. By means of the rules issued  under the proviso to Article 309, a quota was  prescribed for diplomaholders, the result of which was  that diplomaholders who were far junior to the non- diplomaholders were promoted ignoring the non- diplomaholders. The rule was held to be bad by the  learned Subordinate Judge, Patiala. On appeal, the  Additional District Judge, Patiala affirmed the  judgment. It was affirmed by the High Court as well.  The matter was brought to this Court. This Court  affirmed the judgment of the High Court. A perusal of  the judgment shows that the attention of the Bench  was not drawn either to T.N. Khosa  or to other  decisions. Reference was made only to the  observations in Shujat Ali  quoted hereinbefore and it

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was held that the distinction made between the  diplomaholders and non-diplomaholders was  discriminatory and bad. Apart from the distinction on  facts between that case and the case before us, it is  evident that non-consideration of T.N. Khosa  and  other decisions relevant under the subject has led to  the laying down of a proposition which seems to run  counter to T.N. Khosa. With great respect to the  learned Judges who decided that case, we are unable  to accept the broad proposition flowing from the  case."

   9.  The learned Trial Judge relied on the decision of Ravinder Kumar  (supra) in holding that as both the plaintiff-appellant and Ravinder Kumar  are non-diploma holders and belong to the same cadre, the appellant could  not have been discriminated against.  The First Appellate Court, however,  relied on the decision of three Judges Bench of this Court in P. Murugesan  (supra).

   10. Mr. Gurnam Singh, learned counsel appearing on behalf of the  appellant would inter alia contend that as the said Ravinder Kumar Sharma  is junior to the appellant, the action on the part of the respondent which is a  State within the meaning of Article 12 of the Constitution of India not to  grant the same scale of pay is violative of Article 14 of the Constitution of  India.

   11. The power of State Electricity Board to issue circulars in exercise of  its powers under Section 79(c) of the The Electricity (Supply) Act, 1948 is  not in dispute.   It has the power to frame regulations. If it can frame  regulations, in absence of any regulations, issuance of executive orders is  permissible in law.  The power of framing regulations prescribing conditions  of service of its employees appointed by the Board in terms of Section 15 of  the Act cannot be disputed.  Thus, in absence of any rules or regulations  governing the service conditions of its employees, issuance of administrative  order is permissible in law vide Meghalaya State Electricity Board and  Another v Jagadindra Arjun [(2001) 6 SCC 446].

   12. The circular issued by the Board provided for parity in the scale of  pay in the induction post and not on a higher post.  The said circular,  therefore, has no application in this case.  The jurisdiction of the Board to  lay down different scales of pay for the employees on the basis of  educational qualification per se is not discriminated. {See Triloki Nath  Khosa (supra),  See also State of Punjab and Another v Kuldip Singh and  Another  [(2002) 5 SCC 756] }.

13.     In P. Murugesan (supra), it was clearly held:- "\005.Looked at from this broad angle, it may appear there  is some force in what the respondents contend viz., that  once the graduate engineers and diplomaholder engineers  constitute one class, perform same duties and discharge  same responsibilities, placing a restriction on the  ˜diplomaholders alone (limiting their chances of  promotion to one out of four promotions, as has been  done by the impugned Amendment) is not justified but  this may be a too simplistic way of looking at the issue.  We cannot fail to take note of the fact that right from  1974 i.e., since the decision of the Constitution Bench in  Triloki Nath Khosa 1 this Court has been holding  uniformly that even where direct recruits and promotees  are integrated into a common class, they could for  purposes of promotion to the higher cadre be classified  on the basis of educational qualifications . "

  14.  No doubt Ravinder Kumar was junior to the appellant but his case has  become final due to the decision in Ravinder Kumar (supra).   However, that

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decision has been overruled by a larger bench of this Court, and hence the  appellant before us can get no benefit from the fact that his junior has been  promoted.  Article 14 will have no application in such a case.

  15.  In Government of W.B. v Tarun K. Roy & Others [(2004) 1 SCC  347], a three judges Bench of this Court, noticing several other decisions  opined that parity in the pay cannot be claimed when the educational  qualification is different.    16.  There is no merit in this appeal, which is dismissed accordingly.