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PETITIONER: MADHYA PRADESH ELECTRICITY BOARD

       Vs.

RESPONDENT: S.S. MODH & OTHERS

DATE OF JUDGMENT:       03/09/1997

BENCH: K. VENKATASWAMI, V. N. KHARE

ACT:

HEADNOTE:

JUDGMENT: Present:                Hon’ble Mr. Justice K. Venkataswami                Hon’ble Mr. Justice V.N. Khare G.L. Sanghi, Sr. Adv., Vivek Gambhir and S.K. Gambhir, Advs. with him for the appellant S.S. Khanduja, Adv. for the Respondents                       J U D G M E N T      The following Judgment of the Court was delivered: K. Venkataswami J.      The first  respondents in  the appeal  moved  the  High Court of  Madhya Pradesh  at Jabalpur,  by filing  M.P.  No. 281/80 under  Article 226/227  of the  Constitution of India challenging the correctness of the order dated 18.4.1979 and for a  positive direction  to the appellant to absorb him as Assistant  Engineers   like  all   other  Junior   Engineers belonging to  his cadre in the Chambal Hydel Project and for consequential benefits accruing therefrom.      Brief  facts   leading  to   the  filing  of  the  said Miscellaneous Petition may now be noted.      The first respondent was appointed as a Sub-Overseer in the year  1951 in  Chambal Hydel Scheme, Gandhisagar, by the erstwhile State  of Madhya  Bharat. In the year 1954, he was promoted as  Overseer by  the  State  Government.  Upon  re- organization of  the State  of  Madhya  Pradesh,  the  first respondent was  absorbed as Overseer in the year 1956 and as such he  was working  in Chambal  Hydel Scheme. While so, on 4.12.1960,  a   decision  was  taken  for  the  transfer  of Gandhisagar Power  Station to  the appellant  Board  (Madhya Pradesh Electricity  Board), hereinafter  referred to as the ‘Board’ with  effect from  19.11.1960. it  was also  decided that the Chambal Project Authorities will maintain the Power Station on  behalf of  the appellant  till 31.3.1961. It was also decided that the transmission lines and sub-stations be handed over  by the Chambal Project Authorities to the Board by  20.1.1961  and  with  effect  from  the  said  date  all employees  associated   with  the   execution  of  the  work pertaining to  the transmission system and sub-stations will be deemed  to have  been provisionally  transferred  to  the appellant  Board.      The services  of the  first respondent were transferred

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visionally in  the light  of the decision taken by the State Government as  mentioned above to the Board with effect from 1.4.1961 along  with other  employees of Chambal Project. At the time of absorption, the respondent no. 1 was holding the post of  Overseer (S.G.)  in the pay-scale of Rs. 290-370/-. The post  of Chambal  Project was  equated with  the post of overseer under  the Board carrying the pay-scale of Rs. 170- 315/-. However,  as the  pay-scale of  Overseer  (S.G.)  was higher than  the pay-scale  of  the  post  of  Supervisor  / Overseer under  the Board,  it was decided to treat the post of Overseer (S.G.) as isolated so that the effect, and order was passed  on 10.6.63.  As the  transfer of the services of the employees  of the  Chambal Hydel  Project/Scheme to  the Board was  only provisional,  the employees were required to exercise through  option in  writing within  30 days  of the Notification dated  22.1.1962. Such employees were given the option either  (i) to  accept the  services under  the  M.P. Electricity Board  in accordance  with the  Board’s  Service Regulation and  Conditions of  Service as a whole or (ii) if the terms  offered by  the Board are not acceptable to treat their services  terminated after  expiry of 30 days from the data of  exercising  such  option.  Accordingly,  the  first respondent opted  for the  service of  the Board  and gave a declaration in  writing on  21.2.1962 accepting the services under the  M.P. Electricity  Board in  accordance  with  the Board’s Service  Regulations &  Conditions of  Service as  a whole.      However, after  exercising the  option as  above, first respondent has  been claiming  that he  ought to  have  been absorbed as Assistant Engineer from 1.4.1961 as according to him all  his other colleagues, except himself, were absorbed as Assistant  Engineers. This  claim of the first respondent was not  accepted by  the Board  right from the beginning on the ground  that he  did not possess the minimum educational qualification required  for  being  appointed  as  Assistant Engineer under  the Board.  Hence the impugned communication dated 18.4.1979  was sent to him. The letter dated 18.4.1979 reads as follows :      "Sub:  Representation  of  Shri  SS      Modh Line Sup. Cr. I.           Shri S.S.  Modh, LS  Cr. I has      passed   two   years   course   for      Electrical Engg.  Examination  1949      from  the   Gambhirmal   Industrial      Institute,  Indore.  The  said  two      years course  is not  recognized by      the Institute of Engineers (India).      The  Secretary,   M.P.E.  Board  of      Technical  Education,   Bhopal  has      also confirmed  that the  two years      course   for    Electrical    Engg.      Examination    1949     from    the      Gambhirmal  Industrial   Institute,      Indore is  not  equivalent  to  the      three years diploma course. In view      of above,  Shri S.S.  Modh  is  not      eligible for  promotion to the post      of Assistant  Engineer. As  regards      his absorption  under the  MPEB, it      has been  examined and seen that no      injustice was  done in his case. He      may please be informed suitably.             S/- Jt. Secretary (T)            M.P. Electricity Board          Central Training Institute

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          M.P. Electricity Board"      However, as  and when  his promotion  was due,  he  was given promotion  in a  different manner  not in  the regular promotional  avenue   so  as   to  safeguard  his  financial interest.      It is  under these  circumstances the  first respondent moved the High Court by filing M.P. No.281/80.      The Board  brought to  the notice of the High Court the reason for  not absorbing  the first respondent as Assistant Engineer and  it was  also brought to the notice of the High Court  that  all  others  who  were  absorbed  as  Assistant Engineers were  either degree  holders or holders of diploma recognized by  the Institute  of Engineers  (India). It  was also made  clear before  the High  Court that the promotions given to  the first  respondent has  nothing to  do with the representations made  by the first respondent claiming to be absorbed as Assistant Engineer.      The High  Court on  a wrong premise held that the first respondent and  others formed  a consolidated cadre and were discharging identical  duties and,  therefore, the Board was not justified  in discriminating  the first respondent in no absorbing him  as Assistant Engineer. Before the High Court, Annexures P-3  and P-5  corresponding to  Annexures VII  and VIII filed  herein were  produced  to  show  that  Overseers (S.G.) and Junior Engineers formed two different categories. However,  the   High  Court   misconstruing  the   documents erroneously held  that they  formed one  category. The  High Court in this connection observed as follows:-      "From documents  (Annexures P-3 and      P-5),  it   appears  that   it  was      intended   to   create   posts   of      Overseer (S.G.)  by reducing  equal      number of posts of Junior Engineers      and as  long as  this was not done,      select grade  Overseers were  to be      counted    against    the    Junior      Engineer’s     post.     Otherwise,      Overseers were  having the prospect      of being  promoted to  the post  of      Junior   Engineers.    Thus,   both      Overseers   (S.G.)    and    junior      Engineers  formed   a  consolidated      cadre. They were also classified as      belonging to class III Non-Gazetted      cadre. These  facts are  stated  in      paras 5,  6 and  7 of  the petition      and are not disputed."              (Emphasis supplied)      From a  reading of the above extracted portion from the High Court  judgment. It  will be  seen that  the High Court fell intro  error in  treating Overseers  (S.G.) and  Junior Engineers as  one cadre.  We have  perused the Annexures VII and VIII  and it is seen that Overseers were promoted to the post of  Overseers (S.G.) which was on a separate pay-scale. It appears,  for want  of  vacancies  in  Overseers  (S.G.). temporarily the  persons selected  as Overseers  (S.G.) were counted against  Junior Engineers’  post. This  was  wrongly construed by  the High  Court the mean that Overseers (S.G.) and Junior Engineers formed one cadre.      The High Court also has noticed the fact that the first respondent was  not possessing the minimum qualification for the purpose  of Assistant  Engineer. That  was  an  admitted position as the High Court itself observed as follows:      "It appears  that  the  respondent-      Board’s  stand   is  that   is  has

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    prescribed some minimum educational      qualifications  for   the  post  of      Assistant      Engineer,      which      qualification the  petitioner  does      not have. This position is also not      disputed  by   the  petitioner  who      submits      that       educational      qualification  are   relevant   for      purposes of direct recruitment only      and   not    for   absorption    or      promotion."      The High  Court did  not rightly  accept the submission that the  minimum  qualification  was  relevant  for  direct recruitment only and not for absorption or promotion.      The High  Court also  noticed the  fact that  the first respondent did  not object  to his  absorbing as an Overseer (S.G.) and  accepted the  same without  any protest.  It was also brought  to the  notice of  the High Court that all his representations  before   the  authorities   were  for   his promotions. The appellant also raised the question of laches on behalf  of the first respondent in approaching the court, the delay of nearly 19 years.      The High  Court proceeded  on a  wrong premise that the first respondent  and others  who were absorbed as Assistant Engineer  belonged  to  same  cadre  and  misconstruing  the promotion  given   in  due   course  by  the  Board  as  one recognizing the  merit in  the case of the first respondent. the High  Court granted  the relief  directing the  Board to absorb the first respondent as Assistant Engineer right from the date of absorption, namely 1.4.1961 and also to give all consequential benefits including the monetary benefits.      We have notice that the first respondent admittedly was not qualified  to be  appointed as  Assistant Engineer  and, therefore, he  has no  case  to  claim  to  be  absorbed  as Assistant Engineer.  The requisite qualification was a given below :-      "Candidate must  be a  Graduate  in      Elec.  &   Mech.   Engg.   from   a      recognised College or University or      the    Diploma     in    Electrical      Engineering of the Indian Institute      of Science,  Bangalore; the  Degree      or Diploma of any other Institution      in Elec.  Engg. will  be considered      provided the  same is  accepted  by      the Institute  of Engineers (India)      as exempting  from Section A & B of      the      Associate       Membership      Examination.  Candidates  who  have      passed  Section   A  &   B  of  the      A.M.I.E. Examination  provided they      have       basis        Engineering      qualification     gained      after      matriculation or  a three  or  four      years Collegiate Engineering Course      will be considered."      The first  respondent was  not possessing the requisite qualification.      The High  Court also  proceeded on  a wrong  assumption that certain allegations made by the first respondent in the Writ Petition  had not  been controverted  by the  appellant herein. Factually,  all the allegations were controverted in the return  filed on behalf of the appellant before the High Court. We have perused the affidavit and the return filed by the first  respondent and  the appellant respectively before

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the High  Court and we are satisfied that the High Court was not right  in observing that allegations in paragraph 5 to 7 of the Writ Petition were not controverted by the Board.      We have  also noticed that the employees of the Project were given option to accept the service of the Board without any objection  and to  serve in  accordance with the Board’s Service Regulations  & Conditions of Service as a whole. The first respondent  has submitted  written declaration to that effect. When the service regulations provide that candidates holding engineering  degree  or  equivalent  thereto  to  be appointed  as   Assistant  Engineer,  the  first  respondent without possessing  such qualification  cannot put forward a claim to  be observed as Assistant Engineer. His claim lacks foundation.      The High  Court was  aware of  the fact  that the first respondent did  not possess  the minimum  qualification  for being absorbed  as Assistant Engineer. Nevertheless the High Court has granted relief by observation as follows:-      "The only  reason for  treating the      petitioner separate  from others in      his   category,   is   his   lesser      educational  qualifications.  This,      however, is  not  permitted.  Under      the circumstances,  it must be held      that  the   petitioner   has   been      treated    illegally     by     the      respondent-Board by  not  absorbing      him as  an Assistant  Engineer like      all others  in  his  category.  The      petitioner   is,    thus,   clearly      entitled to  the benefits  from the      same date  when all  others in  his      category have been given."      The above  observation cannot  be sustained in the face of the  admitted fact  that  the  first  respondent  has  no qualification required  for  being  appointed  as  Assistant Engineer.      In the  circumstances, we  have no  hesitation to  hold that the  judgment of the High Court cannot be sustained and accordingly the  same is  set aside.  The appeal is allowed. However, there will be no order as to cost.      While granting  interim stay,  this Court  has directed the appellant  to deposit  certain amounts in a nationalised bank   and permitted  the first  respondent to  withdraw the amount of  interest accruing  therefrom. As  we are allowing the appeal,  the appellant  will be entitled to withdraw the deposited  amount  and  in  the  facts  of  this  case,  the appellant shall  not recover  the interest  received by  the first respondent,  accrued from  the amount deposited by the appellant.