MD. ISLAM & ORS. versus THE BIHAR STATE ELECTRICITY BOARD & ORS. on 23 August 2022

[2022] 7 S.C.R. 57

MD. ISLAM & ORS.

v.

THE BIHAR STATE ELECTRICITY BOARD & ORS.

(Civil Appeal No. 5764 of 2022)

AUGUST 23, 2022

[DR. D. Y. CHANDRACHUD AND A. S. BOPANNA, JJ.]

Judicial Review – When not – Date of applicability of ACPScheme – Bihar State Employees Conditions of Service (AssuredCareer Progression Scheme) Rules 2003 – ACP Scheme notified in2003 by State of Bihar for its employees retrospectively w.e.f09.08.99, adapted by Respondent No.1-Electricity Board throughnotification dtd.05.04.05 – Subsequent notification issued byrespondent no.1 notified that the ACP Scheme would be applicableonly for the staff appointed after issuance of the earlier notificationdtd. 05.04.05– Challenged by appellants-employees in 2011 interalia seeking directions to respondent no.1 to also introduce the benefitof the ACP Scheme w.e.f 09.08.99, writ petitions dismissed – Onappeal, held: Appellants were guided by service regulations of theElectricity Board – Any notification relating to service conditionsissued by State of Bihar was neither ipso facto nor mutatis mutandisapplicable to the employees of Electricity Board unless the samewas adapted – Even if adapted, it would depend on the manner andto the extent adapted – Further, the notification issued by State ofBihar itself clarified that it shall not be applicable to the employeesof public sector undertakings/autonomous institutions – RespondentNo.1 is an autonomous public undertaking – Thus, mere issuanceof the said notification would not create any right in favour of itsemployees – Appellants cannot contend that the Scheme should beapplicable from the very same date on which it was made applicableto the State Govt. employees – Judicial review of the date chosenfor applicability would arise only if such choice of date is malafideor with ulterior motive– Furthermore, even when notification dtd.05.04.05 was issued, all other appellants except the appellant no.1had retired – Though, appellant no.1 was in service upto 31.07.08,neither him nor others raised any grievance till 2011 as it was clearthat the Board in its discretion had adapted the Scheme w.e.f05.04.05 – High Court adverted to all aspects of the matter– Decision

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[2022] 7 S.C.R.

Aof High Court does not call for interference– Electricity (Supply)Act, 1948 – s.79(C).

Dismissing the appeal, the Court

HELD: The fact which cannot be disputed is that eventhough at an earlier point in time the Electricity Board had adaptedBthe Bihar Service Code of the State Government due to which allService Conditions, Rules and notifications applicable to theemployees of the State Government had become applicable tothe employees of the respondent No.1-Electricity Board, therespondent No.1- Electricity Board had thereafter in exercise ofCthe power conferred under Section 79 (C) of the Electricity(Supply) Act, 1948 had framed its own service regulations. Theindisputable position is that, the appellants, therefore, wereguided by the service regulations of respondent No.1-ElectricityBoard. Therefore, the notification relating to service conditionsif any issued by the State of Bihar to regulate the serviceDconditions of its employees was neither ipso facto nor mutatismutandis applicable to the employees of the respondent No.1-Electricity Board unless the same was adapted by the respondentNo.1- Electricity Board. Even if adapted, it would depend on themanner and to the extent adapted. With this position being clear,Ea perusal of the notification dated 25.06.2003 issued by the Stateof Bihar will indicate, the benefit of the same is being sought bythe appellants is in relation to its applicability w.e.f 09.08.1999 asprovided therein. However, the notification on the face of itindicates the category of employees to whom it would apply asalso the category to which it does not apply. The notification datedF25.06.2003 itself clarifies that it shall not be applicable to theemployees of public sector undertakings or autonomousinstitutions. The respondent No.1 is a statutory Board which istherefore an autonomous public undertaking. If that be theposition, the mere issue of the notification dated 25.06.2003 byGthe State of Bihar would not create any right in favour of theemployees of the respondent no.1-Electricity Board for thebenefits provided under such notification. The notifications dated05.04.2005 and 07.10.2005 become relevant in the matter ofgranting benefit of the ACP Scheme to the employees of therespondent No.1-Electricity Board since there can be no claimH

until it is adapted. A perusal of the notification dated 07.10.2005indicates that the decision of the Board to adapt the ACP Schemeof 2003 was only for the staff appointed after the issuance of theBoard’s notification No.25 dated 05.04.2005. The same indicatesthat respondent No.1-Electricity Board did not adapt the ACPScheme of 2003 retrospectively w.e.f 09.08.1999 as was done bythe State government for its employees but had given prospectiveeffect from the date the respondent no.1-Electricity Board hadadapted the same through the notification dated 05.04.2005. Theappellants, in any event, cannot contend that the Scheme shouldbe applicable from the very same date on which it had been madeapplicable to the State Government employees when therespondent no.1-Electricity Board had the discretion to eitheradapt or not to adapt the Scheme. When the Board had decidedto adapt, in such event it has also the discretion to alter the dateof its applicability as against the date notified by the StateGovernment. Any judicial review on the date chosen forapplicability would arise only if such choice of date is demonstratedto be malafide or with ulterior motive. In the instant case, thedate chosen is the date on which the scheme was adapted andthe advantage or disadvantage thereof would befall on allemployees across the board depending on which side of the fencethey are as on such date. In the instant appeal, even as on thedate the notification dated 05.04.2005 was issued to adapt thescheme, all except the appellant No.1 had retired from service.Though, appellant No.1 was in service upto 31.07.2008 neitherthe appellant No.1 nor the other appellants or the other writpetitioners had raised any grievance till the year 2011 as theposition was clear that the Board in its discretion had adaptedthe Scheme w.e.f 05.04.2005. Further, as indicated in the counter-affidavit filed by the respondent No.1- Electricity Board, theamended Rules 2006 had thereafter been brought to amendcertain provisions of the ACP Scheme of 2003 which ceased toexist after 31.12.2008 with the adaption of the modified ACPScheme of 2010 w.e.f 01.01.2009 with certain modifications. Thegrievance put forth by the appellants or the other writ petitionersbefore the High Court was rightly not accepted. The High Courtadverted to all aspects of the matter and has thereafter arrivedat the conclusion in accordance with law which does not call forinterference.[Paras 9-15][63-B-E; 64-A-C; 65-A-G; 66-A]

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AUnion of India and Another v. S. Dharmalingam (1994)1 SCC 179 : [1993] 3 Suppl. SCR 446 – referred to.

Case Law Reference

[1993] 3 Suppl. SCR 446referred toPara 7BCIVIL APPELLATE JURISDICTION: Civil Appeal No. 5764of 2022.

From the Judgment and Orders dated 18.12.2018 of the HighCourt of Judicature at Patna in Letters Patent Appeal No. 342 of 2018.

Amit Pawan, Anand Nandan, Hassan Zubair Waris, Suchit SinghCRawat, Ms. Shivangi, Aakarsh, Advs. for the Appellants.

Navin Prakash, Abhishek Vikas, Raj Kishor Choudhary, PranabPrakash, Advs. for the Respondents.

The Judgment of the Court was delivered by DA. S. BOPANNA, J.

1. The appellants are before this Court claiming to be aggrievedby the judgment dated 18.12.2018 passed by the Division Bench, HighCourt of Judicature at Patna in LPA No.342/2018. Through the saidjudgment, the Division Bench has dismissed the appeal filed by theEappellants herein while upholding the judgment dated 09.01.2018 passedby the learned Single Judge of that Court, in Civil Writ Jurisdiction CaseNo.13837/2011. The learned Single Judge had dismissed the writ petitionalong with the analogous petitions which were considered and disposedof by a common judgment.

F2. The appellant No.1 was an employee who retired from theservice of respondent No.1 – the Bihar State Electricity Board on31.07.2008. The appellants No.10 and 11 are the spouse of the deceasedemployees. The spouse of the appellant No.10, 11 and the other appellantsretired on 31.01.2005. The appellants, through their writ petitions filed inthe year 2011 had sought for issuance of directions to respondent No.1-GElectricity Board to introduce the benefit of the Assured CareerProgression Scheme (‘ACP’ for short) with effect from 09.08.1999 andas a consequence thereof to pay all monetary benefits. The said reliefwas prayed to be granted by quashing the resolution no.8165 dated22.09.2005 and the notification dated 07.10.2005 issued by the respondentHNo.1 Electricity Board.

3. The brief facts leading to the case is that the appellants wereappointed in the respondent No.1-Electricity Board as Junior Engineers/Overseers over a period of time and were subsequently promoted to thepost of Assistant Engineers. As noted, the petitioners before the learnedSingle Judge had retired on attaining the age of superannuation ondifferent dates between 31.12.2000 to 31.01.2005, and insofar asappellants 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, theGovernment of Bihar through the Finance Department notified on25.06.2003, the Bihar State Employees Conditions of Service (AssuredCareer Progression Scheme) Rules 2003, (‘ACP Scheme’ for short).The same was introduced by the State of Bihar for its employees on25.06.2003 but the scheme provided that it shall come into force w.e.f09.08.1999. The notification had specified that the scheme shall not beapplicable to the teachers of Nationalised Schools and employees of thepublic undertakings or autonomous institutions, assisted partially or fully,by the State Government. Thus, the scheme, by itself was not applicableto the respondent No.1 - Electricity Board until they chose to adapt thesame. It is in that view, the respondent No.1 - Electricity Board throughthe notification dated 05.04.2005 adapted the ACP Scheme of 2003.Subsequent thereto, a notification dated 07.10.2005 was issued, notifyingthat the said ACP Scheme of 2003 would be applicable only for the staffappointed after the issuance of the earlier notification dated 05.04.2005.This was with a view to clarify that the scheme though adapted was notw.e.f 09.08.1999 as was in the case of Government employees.

4. Though, the initial notification dated 05.04.2005 and thesubsequent notification clarifying the date of its applicability were notifiedon 07.10.2005, as on such date, insofar as the appellants herein areconcerned, all the other appellants except appellant No.1 had retiredand even though appellant No.1 was in service and had retired on31.07.2008, they did not make any grievance with regard to the sameuntil the year 2011 when the writ petition was filed. In the writ petition,the respondents were notified and respondent No.1- Electricity Boardhad filed a detailed objection explaining its stand on the applicability ofthe ACP Scheme of 2003 w.e.f 05.04.2005. The learned Single Judgehaving adverted to the rival contentions, had noted that the scheme wouldnot be applicable until the respondent No.1 Electricity Board adapts thesame. In that light, having noted that the adaption of the scheme wasw.e.f 05.04.2005, had declined relief to the appellants. In addition, the AB

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Alearned Single Judge had also taken into consideration the benefit thatthe appellants had derived under the earlier scheme which was in vogue.The fact that the appellants not having assailed the notification issued byrespondent No.1-Electricity Board until they retired from the serviceand long thereafter was also held against the writ petitioners.

B5. The Division Bench of the High Court had also taken intoconsideration all these aspects of the matter and dismissed the appealsby upholding the order of the learned Single Judge. The appellants,therefore, being aggrieved by the concurrent view expressed by theHigh Court are before this Court in this appeal.

C6. Heard the learned counsel for the parties and perused the appealpapers.

7. At the outset, it is necessary to take note that the learned SingleJudge, as also the Division Bench of the High Court has referred to thefact that respondent No.1-Electricity Board had not adapted the ACPDScheme of 2003 until the notification dated 05.04.2005 was issued. Bysuch time most of the appellants had retired, they had benefitted fromthe earlier scheme and as such could not avail dual benefits is also theview expressed by the High Court. The learned counsel for the appellantswhile assailing such a conclusion has sought to rely on the notificationdated 23.03.2006 issued by the Government of Bihar, through the FinanceEdepartment, produced as an additional document along with I.A. No.115835 of 2019 to point out that the State Government while indicatingthat the Scheme shall come into effect from 09.08.1999 had clarifiedthat the financial progression granted under Selection Grade/Time-BoundPromotion Scheme which came into force prior to 01.01.1996 shall notFbe treated to be a financial progression for the purposes of the ACPScheme. In that regard, the learned counsel also placed reliance on thedecision in the case Union of India and Another vs. S. Dharmalingam(1994) 1 SCC 179 wherein it is held that the earlier benefit derivedwould not be a bar for the subsequent entitlement and the rule cannot beheld as conferring double benefit.G

8. Having noted the contention on the said aspect, we are of theopinion that the said issue would become relevant only if at the firstinstance the Court is satisfied that the ACP Scheme of 2003 is acceptedto be applicable to employees of respondent No.1- Electricity Boardw.e.f 09.08.1999 as was made applicable to the government servants,Hthe benefit of which is being sought by the appellants herein. Hence, it is necessary to examine this aspect of the matter relating to the date onwhich 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 eventhough at an earlier point in time the Electricity Board had adapted theBihar Service Code of the State Government due to which all ServiceConditions, Rules and notifications applicable to the employees of theState Government had become applicable to the employees of therespondent No.1-Electricity Board, the respondent No.1- ElectricityBoard had thereafter in exercise of the power conferred under Section79 (C) of the Electricity (Supply) Act, 1948 had framed its own serviceregulations. The indisputable position is that, the appellants, therefore,were guided by the service regulations of respondent No.1-ElectricityBoard. Therefore, the notification relating to service conditions if anyissued by the State of Bihar to regulate the service conditions of itsemployees was neither ipso facto nor mutatis mutandis applicable tothe employees of the respondent No.1-Electricity Board unless the samewas adapted by the respondent No.1-Electricity Board. Even if adapted,it would depend on the manner and to the extent adapted.

10. With this position being clear, a perusal of the notification dated25.06.2003 issued by the State of Bihar will indicate, the benefit of thesame is being sought by the appellants is in relation to its applicabilityw.e.f 09.08.1999 as provided therein. However, the notification on theface of it indicates the category of employees to whom it would apply asalso the category to which it does not apply. The relevant portion readsas 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 bemade applicable, by a special order of the state Government, toholders of isolated posts of Group ‘A’. This shall not beapplicable to the teachers of nationalised schools andemployees of the Public Undertakings or the autonomousinstitutions, assisted, partially or fully, by the StateGovernment”

(emphasis supplied)

11. A perusal of the same would indicate that, apart from the legalposition relating to the applicability of its own service conditions to the AB

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64SUPREME COURT REPORTS

Aemployees of the respondent No.1-Electricity Board, the notification dated25.06.2003 itself clarifies that it shall not be applicable to the employeesof public sector undertakings or autonomous institutions. The undisputedposition is that the respondent No.1 is a statutory Board which is thereforean autonomous public undertaking. If that be the position, the mere issueof the notification dated 25.06.2003 by the State of Bihar would notBcreate any right in favour of the employees of the respondent no.1-Electricity Board for the benefits provided under such notification. It isin that light, the notifications dated 05.04.2005 and 07.10.2005 becomerelevant in the matter of granting benefit of the ACP Scheme to theemployees of the respondent No.1-Electricity Board since there can beCno claim until it is adapted. In that regard, a perusal of the notificationdated 05.04.2005 (Annexure P3) indicates that the Committee constitutedby the Board had submitted its recommendations which were consideredby the Board and had thereupon taken a decision to replace the thenexisting system of ‘Selection Grade and Time-bound Promotion’ with‘Assured Career Progression Scheme’. The pay-scale for the purposeDof ACP Scheme was to be notified later. Though, the notification dated05.04.2005 adapting the ACP Scheme was notified, immediately thereaftera notification dated 07.10.2005 (Annexure P4) was issued which readsas hereunder:

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

NOTIFICATION

Notification XVIII/ Misc.-932/2003/108/ dated 7.10.2005In pursuance of Board’s Resolution no. 8165 dated 22.9.2005 theBoard in exercise of power conferred upon the Board underFSection 79(C) of the electricity supply Act, 1948 has decided toadapt Bihar State Employees Condition of Service (AssuredCareer Progression Scheme) Rules 2003 only for the staffappointed after issuance of Board’s notification No. 25 dated5.4.2005. Board’s notification no. 25 dated 5.4.2005 standsmodified to the above extent.

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By order of theBihar State Electricity Board Sd/- (Bishwanath Prasad) Secretary”(emphasis supplied)

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12. A perusal of the notification dated 07.10.2005 indicates thatthe decision of the Board to adapt the ACP Scheme of 2003 was onlyfor the staff appointed after the issuance of the Board’s notificationNo.25 dated 05.04.2005. The same indicates that respondent No.1-Electricity Board did not adapt the ACP Scheme of 2003 retrospectivelyw.e.f 09.08.1999 as was done by the State government for its employeesbut had given prospective effect from the date the respondent no. 1-Electricity Board had adapted the same through the notification dated05.04.2005.

13. If that be the position, the appellants, in any event, cannotcontend that the Scheme should be applicable from the very same dateon which it had been made applicable to the State Government employeeswhen the respondent no.1-Electricity Board had the discretion to eitheradapt 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 applicabilityas against the date notified by the State Government. Any judicial reviewon the date chosen for applicability would arise only if such choice ofdate is demonstrated to be malafide or with ulterior motive. In the instantcase, the date chosen is the date on which the scheme was adapted andthe advantage or disadvantage thereof would befall on all employeesacross the board depending on which side of the fence they are as onsuch date.

14. In the instant appeal as already noted, even as on the date thenotification dated 05.04.2005 was issued to adapt the scheme, all exceptthe appellant No.1 had retired from service. Though, appellant No.1was in service upto 31.07.2008 neither the appellant No.1 nor the otherappellants or the other writ petitioners had raised any grievance till theyear 2011 as the position was clear that the Board in its discretion hadadapted the Scheme w.e.f 05.04.2005. Further, as indicated in the counter-affidavit filed by the respondent No.1- Electricity Board, the amendedRules 2006 had thereafter been brought to amend certain provisions ofthe ACP Scheme of 2003 which ceased to exist after 31.12.2008 withthe adaption of the modified ACP Scheme of 2010 w.e.f 01.01.2009with certain modifications. If all these aspects of the matter are kept inview, the grievance put forth by the appellants or the other writ petitionersbefore the High Court was rightly not accepted.

15. In that light, a perusal of the judgment dated 09.01.2008 passedby the learned Single Judge and the judgment dated 18.12.2008 by the A

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ADivision Bench would indicate that the High Court adverted to all aspectsof the matter and has thereafter arrived at the conclusion in accordancewith law which does not call for interference.

16. In that view, the appeal being devoid of merit is accordinglydismissed with no order as to costs.

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

Divya Pandey

(Assisted by : Deepak Panwar, LCRA)

Appeal dismissed.

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