U.P. STATE ELECTRICITY BOARD, LUCKNOW v. P .L. KELKAR, ETC. ETC.

B The Judgment of the Court was delivered by

KHALID, J. This appeal 1,y special bave and the connected special leave petition and the writ petition directed against the judg- ment 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) C 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 D Superintending Engineer in the U.P. State Electticity Board, the Tri- bunal 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 E result, respondent no. 1 who figures at serial no. 12 in the integrated seniority list of Assistant Engineers (Civil) i.e. below other Superin- tending 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.

F 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 recruitment, 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 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

...,.

U.P. STAIB ELECT. BOARD v. P.L. KELKAR [KHALID, J.J 339 ) 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 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 B 7(iv)(b) to remove certain anomalies and to give effect to the intention of the Board in framing the rule of seniority. It was felt by the Board 'r that the expression 'other organisations' in the unamended Regulation 7(iv )(b) was susceptible of a construc.tion that in the matter of determi- .... nation of inter se seniority among directly recruited Engineers vis-a-vis Engineers on deputation with the Board from the Central Government c or the State Government, the seniority of the Engineers had to be . 't reckoned by giving them the benefit of as many years of service as the number of advance increments give~to them by reason of their special experience or qualifications. The Board accordingly substituted the words 'U .P. or Central Government Department in consideration of the service fot which advance increments were so allowed' for the D '( words 'Government department 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 --A 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 '1 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 Department were transferred to the U .P. State G Electricity Board constituted under s. 5 of the Electricity (Supply) Act, 1948 which came into existence on April I, 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- H

- 340 SUPREME COURT REPORTS [1987] 3.S.C.R.

A 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 previ- ous experience was given a higher start of Rs. 490 in the scale of Rs. 250-850 which meant that he wa~ given nine advance increments as against two increments given to others. Prior to his joining the Elec- B tricity Board, respondent no. 1 had varied experience in different governmental and other organisations. After obtaining his degree in Bachelor of Engineering in the year 1957, he was recruited 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 C scale of Rs. 250-600. Thereafter on June 9, 1960 he accepted appoint- - ment as Engineering Assistant Grade I in the Indian Refinery Limited, Guwahati, a Government of India undertaking, on a scale of Rs.300- 525 after leaving the services Qi 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 D Associated Cement Company Limited, Bombay on an initial salary of Rs.305 per month with annual increments. After the interviews of the condidates held on August 17, 1964, the Board in its letter of appoint- ment dated August 22, 1964 offe,red respondent no. 1 two advance increments and stated that his seniority vis-a-vis the other candidates selected for appointment would be determined later. It seems that E 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 experi- ~-) -- ence. 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 increments to Naresh Chandra F Gupta.

As against respondent no. 1 who had been directly recruited by the Board w.e.f. October 7, 1964 and is now working as a Superintend- ing Engineer in the Electricity Board, the six petitioners in the con- nected special leave petition no. 8835/85 namely, V.N. Mathur, Mohd. G 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 Depart- H ment. It seems that respondent no. 1 as well as the petitioners were

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... U.P. STAIB ELECT. BOARD v. P.L. KELKAR [KHALID, J.] 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 recruited by the Board before the commencement of the 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 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 C 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 September 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. 12 i.e. D below other officers at present working as Superintending 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 E _. ,... 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 Elect:icity Board did not consider ·it 1 beneficial to leave their parent department viz. Irrigation & Power Department and join the services of the Board at the relevant time p 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 t!)e f )"- post and the selection was made by a Selection Board on the basis of G interview and record of past service and adds:

"However, all the petitioners except petitioners nos. 4 and 5 Amba 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 reascn for the non-selection H

- 342 SUPREME COURT REPORTS [1987] 3.S.C.R.

A was obviously that they were not found fit for the post on the basis of their record and interview.··

When this averrnent 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 B 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 direction and place before the Court the relevant records and also file an affidavit. Learned counsel for the petitioners in the connected

C special leave petition however was baffled at the suggestion that the petitioners should have at all applied for the post of Assistant Engineer (Civil) advertised 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 Secret- D ary, U.P. State Electricity Board has sworn an affidavit bringing the relevant facts on record. It is averred 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 interviews of the candidates who had applied in pursuance of the said- advertisement were con- E ducted during December 1968 and January 1969. In paragraph 3 the respective dates of promotion of the petitioners as Executive Engineers are given. In paragraph 4 however it is stated that the re- cords relating to the applications in the interviews are not traceable inspite of the best efforts made by the senior officers of the Electricity Board. F In his rejoinder, respondent no. I P.L. Kelkar controverts the facts alleged. He s•1bmits that the affidavit filed by the Electricity Board does not state the facts correctly. It is then stated:

"In fact in Petition No. 4888 (F) III/77 filed by Shri N.P. G Malik & Ors. v. U.P. State Electricity Board it was averred -.i:' ; in para 11 as follows:

"That respondents Nos. 2 to 15 applied against advertise- ment for selection of direct recruits as Civil Engineers in

1968. After an interview they were found to be unfit and H were not selected for the substantive post. The list of

- U.P. STATE ELECT. BOARD v. P.L. KELKAR (KHALID, J.] 343 ) persons selected under s. 3.0. No. 2208-A/SEB/159-A/1968 A 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." B ~~ 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

~ relevant records of the interviews held in the year 1968 are not avail- c able 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 D '( parts. The first part refers to the advantage of advance increments. This advantage is based on sp!'cial qualification and past experience and its consequent effect on seniority. The grant of subsequent incre- ments by the Board after joining its service is not governed by this regulation. E -;. 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' occur- ring in the regulation. What is contended is that this expression indi- ·~ cates the manner in which the first part is to be construed. The regula- lion, before its amendment mentioned Government departments or other organisations but after its amendment it was changed to 'in the U.P. or Central Government Department'. This change shows a deli- berate 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 I 'r 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 H

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- 344 SUPREME COURT REPORTS [1987] 3.S.C.R.

A 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 restricted meaning to the expression 'in doing so'. It is useful to note that the Board's advertisement invit- ing applications provided higher start for those having special quali- fications 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 CentraJ Government and not to affect the gener- ality 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 appointed as a Junior Engineer, P.W.D., M.P. on July 19, 1957 and was promoted as Assistant Engineer and posted in Hous- ing Department on May 20, 1959. On June 9, 1960 he was appointed Engineer Assistant Grade I in Indian Refinery Limited, Guwahati, D 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, Fi 1964. He joined service on October 7, 1964. He was given nine incre- ments taking into consideration his special qualification and experi- ence. 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 justifi- ably 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 just!fied also in holding that second part is in the nature of proviso limited to pasons who had been in service of either U.P. or the Central Government Departments and who had been given advance increments in consideration of such service.

H The High Court considered the question in detail with reference

- U.P. STATE ELECT. BOARD v. P.L. KELKAR [KHALID, J.] 345

) to the regulation under consideration am! agreed with the Tribunal in A 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 amendment. 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. B In our judgment, therefore, seniority will have to be fixed in accord- ance with the number of increments excluding the original two incre- ments 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 judg- ment. We do not think any interference is called for with the judgment of the High Court. We confirm the judgment, dismiss the appeal, writ C petition and the special leave petition, with no order as to costs.

N.P.V. Appeal and Petitions dismissed.