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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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