Md. Islam vs The Bihar State Electricity Board

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5764 OF 2022 (Arising out of SLP(Civil) No.9603/2019)

Md. Islam & Ors. .…Appellant(s)

Versus

The Bihar State Electricity Board & Ors. …. Respondent(s)

JUDGMENT

A.S. Bopanna,J.

1. The appellants are before this Court claiming to be

aggrieved by the judgment dated 18.12.2018 passed by the

Division Bench, High Court of Judicature at Patna in LPA

No.342/2018. Through the said judgment, the Division Bench

Signature Not Verified has dismissed the appeal filed by the appellants herein while Digitally signed by Sanjay Kumar Date: 2022.08.23

upholding the judgment dated 09.01.2018 passed by the learned 17:11:50 IST Reason:

Single Judge of that Court, in Civil Writ Jurisdiction Case Page 1 of 12 No.13837/2011. The learned Single Judge had dismissed the

writ petition along with the analogous petitions which were

considered and disposed of by a common judgment.

2. The appellant No.1 was an employee who retired from the

service of respondent No.1 – the Bihar State Electricity Board on

31.07.2008. The appellants No.10 and 11 are the spouse of the

deceased employees. The spouse of the appellant No.10, 11 and

the other appellants retired on 31.01.2005. The appellants,

through their writ petitions filed in the year 2011 had sought for

issuance of directions to respondent No.1- Electricity Board to

introduce the benefit of the Assured Career Progression Scheme

(‘ACP’ for short) with effect from 09.08.1999 and as a

consequence thereof to pay all monetary benefits. The said relief

was prayed to be granted by quashing the resolution no.8165

dated 22.09.2005 and the notification dated 07.10.2005 issued

by the respondent No.1 Electricity Board.

3. The brief facts leading to the case is that the appellants

were appointed in the respondent No.1-Electricity Board as

Junior Engineers/Overseers over a period of time and were

subsequently promoted to the post of Assistant Engineers. As

noted, the petitioners before the learned Single Judge had retired

Page 2 of 12 on attaining the age of superannuation on different dates

between 31.12.2000 to 31.01.2005, and insofar as appellants

herein, except for appellant No.1 who retired on 31.07.2008, all

others had retired prior to 31.01.2005. When this was the

position, the Government of Bihar through the Finance

Department notified on 25.06.2003, the Bihar State Employees

Conditions of Service (Assured Career Progression Scheme)

Rules 2003, (‘ACP Scheme’ for short). The same was introduced

by the State of Bihar for its employees on 25.06.2003 but the

scheme provided that it shall come into force w.e.f 09.08.1999.

The notification had specified that the scheme shall not be

applicable to the teachers of Nationalised Schools and employees

of the public undertakings or autonomous institutions, assisted

partially or fully, by the State Government. Thus, the scheme, by

itself was not applicable to the respondent No.1 - Electricity

Board until they chose to adapt the same. It is in that view, the

respondent No.1 - Electricity Board through the notification

dated 05.04.2005 adapted the ACP Scheme of 2003. Subsequent

thereto, a notification dated 07.10.2005 was issued, notifying

that the said ACP Scheme of 2003 would be applicable only for

the staff appointed after the issuance of the earlier notification

Page 3 of 12 dated 05.04.2005. This was with a view to clarify that the scheme

though adapted was not w.e.f 09.08.1999 as was in the case of

Government employees.

4. Though, the initial notification dated 05.04.2005 and the

subsequent notification clarifying the date of its applicability

were notified on 07.10.2005, as on such date, insofar as the

appellants herein are concerned, all the other appellants except

appellant No.1 had retired and even though appellant No.1 was

in service and had retired on 31.07.2008, they did not make any

grievance with regard to the same until the year 2011 when the

writ petition was filed. In the writ petition, the respondents were

notified and respondent No.1- Electricity Board had filed a

detailed objection explaining its stand on the applicability of the

ACP Scheme of 2003 w.e.f 05.04.2005. The learned Single Judge

having adverted to the rival contentions, had noted that the

scheme would not be applicable until the respondent No.1

Electricity Board adapts the same. In that light, having noted

that the adaption of the scheme was w.e.f 05.04.2005, had

declined relief to the appellants. In addition, the learned Single

Judge had also taken into consideration the benefit that the

appellants had derived under the earlier scheme which was in

Page 4 of 12 vogue. The fact that the appellants not having assailed the

notification issued by respondent No.1-Electricity Board until

they retired from the service and long thereafter was also held

against the writ petitioners.

5. The Division Bench of the High Court had also taken into

consideration all these aspects of the matter and dismissed the

appeals by upholding the order of the learned Single Judge. The

appellants, therefore, being aggrieved by the concurrent view

expressed by the High Court are before this Court in this appeal.

6. Heard the learned counsel for the parties and perused the

appeal papers.

7. At the outset, it is necessary to take note that the learned

Single Judge, as also the Division Bench of the High Court has

referred to the fact that respondent No.1-Electricity Board had

not adapted the ACP Scheme of 2003 until the notification dated

05.04.2005 was issued. By such time most of the appellants had

retired, they had benefitted from the earlier scheme and as such

could not avail dual benefits is also the view expressed by the

High Court. The learned counsel for the appellants while

assailing such a conclusion has sought to rely on the notification

dated 23.03.2006 issued by the Government of Bihar, through

Page 5 of 12 the Finance department, produced as an additional document

along with I.A. No. 115835 of 2019 to point out that the State

Government while indicating that the Scheme shall come into

effect from 09.08.1999 had clarified that the financial

progression granted under Selection Grade/Time-Bound

Promotion Scheme which came into force prior to 01.01.1996

shall not be treated to be a financial progression for the purposes

of the ACP Scheme. In that regard, the learned counsel also

placed reliance on the decision in the case Union of India and

Another vs. S. Dharmalingam (1994) 1 SCC 179 wherein it is

held that the earlier benefit derived would not be a bar for the

subsequent entitlement and the rule cannot be held as

conferring double benefit.

8. Having noted the contention on the said aspect, we are of

the opinion that the said issue would become relevant only if at

the first instance the Court is satisfied that the ACP Scheme of

2003 is accepted to be applicable to employees of respondent

No.1- Electricity Board w.e.f 09.08.1999 as was made applicable

to the government servants, the benefit of which is being sought

by the appellants herein. Hence, it is necessary to examine this

Page 6 of 12 aspect of the matter relating to the date on which the scheme will

be applicable to employees of respondent No.1-Electricity Board.

9. In that regard, the fact which cannot be disputed is that

even though at an earlier point in time the Electricity Board had

adapted the Bihar Service Code of the State Government due to

which all Service Conditions, Rules and notifications applicable

to the employees of the State Government had become applicable

to the employees of the respondent No.1-Electricity Board, the

respondent No.1- Electricity Board had thereafter in exercise of

the power conferred under Section 79 (C) of the Electricity

(Supply) Act, 1948 had framed its own service regulations. The

indisputable position is that, the appellants, therefore, were

guided by the service regulations of respondent No.1-Electricity

Board. Therefore, the notification relating to service conditions if

any issued by the State of Bihar to regulate the service conditions

of its employees was neither ipso facto nor mutatis mutandis

applicable to the employees of the respondent No.1-Electricity

Board unless the same was adapted by the respondent No.1-

Electricity Board. Even if adapted, it would depend on the

manner and to the extent adapted.

Page 7 of 12

10. With this position being clear, a perusal of the notification

dated 25.06.2003 issued by the State of Bihar will indicate, the

benefit of the same is being sought by the appellants is in relation

to its applicability w.e.f 09.08.1999 as provided therein.

However, the notification on the face of it indicates the category

of employees to whom it would apply as also the category to

which it does not apply. The relevant portion reads as

hereunder:-

“It shall be extended to all the regular employees of Group 'B', 'C' and 'D' of the State Government of Bihar. This may also be made applicable, by a special order of the state Government, to holders of isolated posts of Group 'A'. This shall not be applicable to the teachers of nationalised schools and employees of the Public Undertakings or the autonomous institutions, assisted, partially or fully, by the State Government” (emphasis supplied)

11. A perusal of the same would indicate that, apart from the

legal position relating to the applicability of its own service

conditions to the employees of the respondent No.1-Electricity

Board, the notification dated 25.06.2003 itself clarifies that it

shall not be applicable to the employees of public sector

undertakings or autonomous institutions. The undisputed

position is that the respondent No.1 is a statutory Board which

Page 8 of 12 is therefore an autonomous public undertaking. If that be the

position, the mere issue of the notification dated 25.06.2003 by

the State of Bihar would not create any right in favour of the

employees of the respondent no.1-Electricity Board for the

benefits provided under such notification. It is in that light, the

notifications dated 05.04.2005 and 07.10.2005 become relevant

in the matter of granting benefit of the ACP Scheme to the

employees of the respondent No.1-Electricity Board since there

can be no claim until it is adapted. In that regard, a perusal of

the notification dated 05.04.2005 (Annexure P3) indicates that

the Committee constituted by the Board had submitted its

recommendations which were considered by the Board and had

thereupon taken a decision to replace the then existing system

of ‘Selection Grade and Time-bound Promotion’ with ‘Assured

Career Progression Scheme’. The pay-scale for the purpose of

ACP Scheme was to be notified later. Though, the notification

dated 05.04.2005 adapting the ACP Scheme was notified,

immediately thereafter a notification dated 07.10.2005

(Annexure P4) was issued which reads as hereunder:

“BIHAR STATE ELECTRICITY BOARD, PATNA (DEPARTMENT OF GENERAL ADMINISTRATION) NOTIFICATION

Notification XVIII/ Misc.-932/2003/108/ dated 7.10.2005 Page 9 of 12 In pursuance of Board's Resolution no. 8165 dated 22.9.2005 the Board in exercise of power conferred upon the Board under Section 79(C) of the electricity supply Act, 1948 has decided to adapt Bihar State Employees Condition of Service (Assured Career Progression Scheme) Rules 2003 only for the staff appointed after issuance of Board's notification No. 25 dated 5.4.2005. Board's notification no. 25 dated 5.4.2005 stands modified to the above extent.

By order of the Bihar State Electricity Board

Sd/-

(Bishwanath Prasad) Secretary” (emphasis supplied)

12. A perusal of the notification dated 07.10.2005 indicates

that the decision of the Board to adapt the ACP Scheme of 2003

was only for the staff appointed after the issuance of the Board’s

notification No.25 dated 05.04.2005. The same indicates that

respondent No.1-Electricity Board did not adapt the ACP Scheme

of 2003 retrospectively w.e.f 09.08.1999 as was done by the State

government for its employees but had given prospective effect

from the date the respondent no. 1-Electricity Board had adapted

the same through the notification dated 05.04.2005.

13. If that be the position, the appellants, in any event, cannot

contend that the Scheme should be applicable from the very

same date on which it had been made applicable to the State

Government employees when the respondent no.1-Electricity

Page 10 of 12 Board had the discretion to either adapt or not to adapt the

Scheme. When the Board had decided to adapt, in such event it

has also the discretion to alter the date of its applicability as

against the date notified by the State Government. Any judicial

review on the date chosen for applicability would arise only if

such choice of date is demonstrated to be malafide or with

ulterior motive. In the instant case, the date chosen is the date

on which the scheme was adapted and the advantage or

disadvantage thereof would befall on all employees across the

board depending on which side of the fence they are as on such

date.

14. In the instant appeal as already noted, even as on the date

the notification dated 05.04.2005 was issued to adapt the

scheme, all except the appellant No.1 had retired from service.

Though, appellant No.1 was in service upto 31.07.2008 neither

the appellant No.1 nor the other appellants or the other writ

petitioners had raised any grievance till the year 2011 as the

position was clear that the Board in its discretion had adapted

the Scheme w.e.f 05.04.2005. Further, as indicated in the

counter-affidavit filed by the respondent No.1- Electricity Board,

the amended Rules 2006 had thereafter been brought to amend

Page 11 of 12 certain provisions of the ACP Scheme of 2003 which ceased to

exist after 31.12.2008 with the adaption of the modified ACP

Scheme of 2010 w.e.f 01.01.2009 with certain modifications. If

all these aspects of the matter are kept in view, the grievance put

forth by the appellants or the other writ petitioners before the

High Court was rightly not accepted.

15. In that light, a perusal of the judgment dated 09.01.2008

passed by the learned Single Judge and the judgment dated

18.12.2008 by the Division Bench would indicate that the High

Court adverted to all aspects of the matter and has thereafter

arrived at the conclusion in accordance with law which does not

call for interference.

16. In that view, the appeal being devoid of merit is accordingly

dismissed with no order as to costs.

17. Pending applications, if any, shall stand disposed of.

….…..……………………….J. (DR. D.Y. CHANDRACHUD)

……………………………….J. (A.S. BOPANNA)

New Delhi, August 23, 2022 Page 12 of 12