Karnataka Electricity Board Vs. Gulam
Mohiuddin  INSC 115 (12 April 1977)
Electricity. (Supply) Act, 1948--Sec.
79--Statutory Regulations--Whether can be overriden by administrative
resolutions--Mysore State Electricity Board Recruitment and Promotion of
employees of the Board Regulations 1960 Passing of SAS examination if necessary
The respondent was serving as an Accountant
in 'the Electricity Department of the former State of Hyderabad. On the
reorganisation of the States in pursuance of the States Reorganisation Act,
1956, he was allotted to the new State of Mysore with effect from 1st November,
1956. Option was given to the respondent to continue in the Government service
or to opt to the Board. On 1st October, 1957, the respondent opted to the
service under the Board and ceased to be an employee of the Government with
effect from that date.
In 1960, the Board framed Recruitment and
Promotion Regulation in exercise of its powers conferred under s. 79(c) of the
Indian Electricity Supply Act, 1948. The regulations were subsequently amended
on 16.12.1966. The amended The regulations prescribed that the posts of
Accounts Superintendents were to be filled on the basis of seniority-commerit
on their having passed SAS examination. In December, 1966, some persons junior
to the respondent were promoted on their having passed the SAS examination,
while promotion was denied to the respondent as he had not passed the examination.
After the respondent's representations were rejected he filed a Writ Petition.
The Single Judge dismissed the Petition. The Division Bench refused to throw
out the Writ Petition on the ground of delay. It found on consideration of the
two resolution of the Board one dated 19.5.1969 and another dated 5.1.1970 that
the respondent being an allottee was exempted from complying with the
requirements of passing the examination.
Allowing the appeal.
HELD: (1) The Division Bench rightly refused
to deny relief to the respondent on the ground of delay and laches.
[510 B] (2) Section 79 of the Act empowers
the Board to make regulations not inconsistent with the Act and rules made
thereunder to provide for all or any of the matters referred to hi cls. (a) to
(k) of the section. Sub-s. (c) empowers the Board to make regulations regarding
the duties of officers and servants of the Board and their salaries, allowances
and other conditions of service. By virtue of the said powers the Board framed
Mysore State Electricity Board Recruitment and Promotion of Employees of the
Board Regulations, 1960. The minimum qualification prescribed is passing of SAS
examination. The resolution. of the Board dated 19.5.1969 merely provides that
the candidates appointed to the Government Board services for the first time
after 1st November, 1956, must pass the department examination for purposes of
earning increments and promotion. The said resolution does not deal with cases
of allottees. It is silent about allottees and, therefore, it is not possible
to infer from that resolution that the allottees were exempted from passing the
departmental examination. In any case, the passing of the resolution cannot
have the effect of relaxing statutory regulations. Apart from that by the subsequent
resolution of 1970, the Board made it absolutely clear that the SAS examination
had to be passed. [510 C-D, G-H, 511 E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 144 of 1977.
Appeal by Special leave from the Judgment and
order dated the 2nd January, 1976 of the Karnataka High Court in Writ Appeal
No. 430 of 1974.
509 V.N. Satyanarayana, K. Rajendra Chowdhary
and Veena Devi (Mrs.) Khanna for the Appellant.
S.S. JavaIi, B.P. Singh and A. K. Srivastava
The Judgment of the Court was delivered by
KAILASAM, J.--This appeal is by the Karnataka Electricity Board by its
Secretary by Special leave granted by this Court against the judgment of the
Karnataka High Court allowing the writ petition filed by the respondent and
issuing a writ of mandamus to the appellant to consider the case of the
respondent for promotion as an Accounts Superintendent as on 30th December,
1966, and to promote him to that post with effect from that date. .
The respondent was serving as an Accountant,
Grade II, in the Electricity Department of the former .State of Hyderabad. On
the reorganisation of the States in pursuance of the States Reorganisation Act,
1956, he was allotted to the new State of Mysore (now Karnataka) with effect
from 1st November, 1956. The post which he held came to be equated with that of
I Division Clerk in the former State of Mysore.
On 1st October, 1957, the Mysore State
Electricity Board now Karnataka State Electricity Board was constituted under
the Indian Electricity (Supply.) Act. An option was given to the respondent to
continue in the Government service or to opt to the Board. On 1st October,
1957, the respondent opted to the Service under the Board and ceased to be an
employee of the Government with effect from that date.
In the year 1960 the Board framed Recruitment
and Promotions Regulations in the exercise of its powers conferred on it under
section 79(c) of the Act. The Regulations were subsequently amended on 16th
December, 1966. The amended Rules prescribed that the posts of Accounts
Superintendents were to be filled by promotion of I Division Clerks on the
basis of seniority-cum-merit on their having passed Part I and II of the S.A.S.
On 30th December, 1966, some persons junior
to the respondent were promoted on their having passed the S.A.S.
examination while promotion was denied to the
respondent as he had not passed the examination. The respondent made several
representations one such representation being on 24th December, 1970. On 21st
November, 1972, the respondent's representations were rejected. The respondent
thereafter filed a writ petition before the High Court on 13th February, 1973.
The learned Single Judge who heard the petition dismissed it and the respondent
preferred an appeal to a Bench of the Karnataka High Court. On behalf of the
appellant, Karnataka Electricity Board, it was contended before the court that
the writ petition ought to be dismissed on the ground of inordinate delay and
laches on the part of the respondent and also on the ground that in view of the
later Resolution of the Board dated 5th January, 1970, it was no longer open to
the respondent to rely on the Resolution dated 19th May, 1969. The Bench of the
Karnataka High Court held that the writ petition cannot 6--502SCI/77 510 be
thrown out on the ground of delay. On a consideration of the two Resolutions of
the Board, namely that of 19th May, 1969 and 5th January, 1970, it found that
the respondent as an allottee was exempted from complying with the requirements
of passing the examination and therefore allowed the writ petition.
We do not see any ground for not accepting
the view of the High Court that in the circumstances of the case the relief to
the respondent should not be denied on the ground of delay and laches.
The only ground therefore on which the order
of the High Court was challenged by the appellant is that the court was in
error in construing the relevant provisions of the Regulations and the
Resolutions and holding that the respondent is exempted from passing the S.A.S.
examination before qualifying for the promotion. Before referring to the two
Resolutions the relevant provisions of the law and Regulations made thereunder
may be referred to. The Electricity (Supply) Act, 1948, by section 79 empowers
the Board to make Regulations not inconsistent with the Act and the rules made
thereunder to provide for all or any of the matters referred to in clauses (a)
to (k) of the section, Sub-clause (c) empowers the Board to make Regulations regarding
the duties of officers and servants of the Board and their salaries, allowances
and other conditions of service.
By virtue of the powers conferred on the
Board it framed Mysore State Electricity Board Recruitment and Promotion of
Employees of .the Board Regulation, 1960. The method of recruitment prescribed
for promotion to Accounts Superintendents is prescribed in Chapter V of
Annexure-2. The method of recruitment is by promotion from the cadre of I Grade
Clerks on the basis of seniority-cum-merit, The minimum qualification
prescribed is that the candidate ought to have passed S.A.S. examination Part I
and Part II. This provision which was enacted in 1960 continued to be in force
during the relevant time. If this Regulation is applicable, the respondent's
plea has to be rejected as it is incumbent on him to pass the S.A.S.
examination. The Resolution of the Board relied on by the respondent is 19th
May, 1969 and the material paragraph runs as follows :-"It is hereby
directed that the candidates appointed to Government/Board Service for the
first time after the date of States Re-organisation i.e., 1st November 1956 (as
they are not allottees) should pass the Departmental Examinations and Kannada
Language Tests for purposes of earning increments and for promotion." The
Resolution requires the passing of the examination and Kannada language test
for the purpose of earning increments and for promotion for candidates
appointed after/st November, 1956. But as it is not made applicable to the
allottees, it is contended that the allottees are by implication exempted from
passing the Departmental Examination I and Kannada language test. This
contention cannot be accepted for the Resolution is silent regarding the
allottees and is not made applicable to them. It is not possible to infer from
the Resolution that the 511 allottees are exempted from passing the
Departmental Examination and the Kannada language test. the Resolution was'
passed by the Board in pursuance of certain proceedings of the Government
referred to in the Resolution itself.
Paragraph 2 of the Resolution reads thus:
"Approval is accorded for the adoption
of the Government Order Nos. (1) GAD 123 SSH 65 dated 21-11-1966 (2) GAD 2 SSR
67 dated 3-8-1957 and (3) GAD 72 SSR 67 dated 20-71968." The three
Government orders referred to in the Resolution relate to the requirement of
passing of the Departmental Examination and Kannada language test as a
consequence of the judgment of the High Court of Mysore and the Supreme Court.
The' orders specifically states that unless. in the Recruitment Rules relating
to the service concerned Departmental Examination had been incorporated and
prescribed and unless it is clearly specified for what purpose the tests are
prescribed viz., whether for increments or promotions, the passing of
Departmental tests cannot be legally insisted upon for grant of increments or
for according promotion to higher posts. The three Government orders make it
clear that the relaxation of the rule relating to passing of the Departmental
Examinations and Kannada language test is only as regards services where the
rules do not specifically require the passing of the examinations and the
language test. These G.O.s do not apply in the present case as the Regulations
framed by the Board under section 79(c) specifically prescribe the passing of
the S.A.S. test. We are unable to construe the Resolution dated 19th May, 1969
as exempting the allottees from passing the test. In any event the plea of the
respondent will have to fail on the ground that the Regulations framed under
section 79(c) of the Board requiting the passing of the examination was not
relaxed by amending the Regulations. The passing of the Resolution by the Board
cannot have the effect of modifying a Regulation which was passed by the Board
in the exercise of the powers conferred by the statute. Apart from this
circumstance by a subsequent Resolution the Board itself considered the question
in all its aspects and resolved that passing of the S.A.S. examination for
promotion to the cadre of Accounts Superintendents as before be insisted.
Whatever might have been the purport of the Resolution dated 19th May, 1969,
the Board by a subsequent Resolution had resolved on insisting on the passing
of the examination. The High Court found that the later Resolution did not
affect the earlier Resolution on the ground that the subsequent Resolution did
not make any reference to the earlier Resolution and that there is no reference
to the allottees at all. Relying on the words "the passing of the S.A.S.
Examination for-promotion to the cadre of Accounts Superintendents as before he
insisted" the court found that it would .mean that where the passing of
the S.A.S. Examination was insisted prior to that Resolution in the same shall
continue to be insisted in future also, and if passing of the S.A.S.
Examination was not insisted prior to that Resolution in the case of allottees
for promotion to the cadre of Accounts Superintendents.
The Resolution dated 5th January, 1970,
cannot be understood as altering the position existing "as before".
This reasoning is 512 erroneous for, as pointed out by us the earlier
Resolution was not intended to cover the case of allottees and merely because
the allottees were excluded from the operation of the Resolution the inference
that the allottees were exempted from the passing 'of the' examination is not
Further before the Resolution there is
nothing to indicate that the allottees were not required to pass the examination.
The conclusion of the High Court cannot be upheld as the binding nature of the
Regulations passed by the Board under section 79(c) has not been taken due note
of. This is the view taken by the Single Judge of the High Court.
In the result we allow the appeal, set aside
the judgment of the lower appellate court and restore that of the Single judge.
There will be no order as to costs.
P.H.P. Appeal allowed.