Pradesh Electricity Board Vs. S.S. Modh & Ors  INSC 707 (3 September
VENKATASWAMI, V. N. KHARE
Mr. Justice K. Venkataswami Hon'ble Mr. Justice V.N. Khare G.L. Sanghi, Sr.
Adv., Vivek Gambhir and S.K. Gambhir, Advs.
him for the appellant S.S. Khanduja, Adv. for the Respondents
following Judgment of the Court was delivered:
first respondents in the appeal moved the High Court of Madhya Pradesh at Jabalpur, by filing M.P. No.281/80
under Article 226/227 of the Constitution of India challenging the correctness
of the order dated 18.4.1979 and for a positive direction to the appellant to
absorb him as Assistant Engineers like all other Junior Engineers belonging to
his cadre in the Chambal Hydel Project and for consequential benefits accruing
facts leading to the filing of the said Miscellaneous Petition may now be
first respondent was appointed as a Sub-Overseer in the year 1951 in Chambal Hydel
Scheme, Gandhisagar, by the erstwhile State of Madhya Bharat. In the year 1954, he was promoted as Overseer by the State
Government. Upon re- organization of the State of Madhya Pradesh, the first respondent was absorbed
as Overseer in the year 1956 and as such he was working in Chambal Hydel
Scheme. While so, on 4.12.1960, a decision was taken for the transfer of Gandhisagar
Power Station to the appellant Board (Madhya Pradesh Electricity Board),
hereinafter referred to as the `Board' with effect from 19.11.1960. it was also
decided that the Chambal Project Authorities will maintain the Power Station on
behalf of the appellant till 31.3.1961. It was also decided that the
transmission lines and sub-stations be handed over by the Chambal Project
Authorities to the Board by 20.1.1961 and with effect from the said date all
employees associated with the execution of the work pertaining to the
transmission system and sub-stations will be deemed to have been provisionally
transferred to the appellant Board.
services of the first respondent were transferred visionally in the light of
the decision taken by the State Government as mentioned above to the Board with
effect from 1.4.1961 along with other employees of Chambal Project. At the time
of absorption, the respondent no. 1 was holding the post of Overseer (S.G.) in
the pay-scale of Rs. 290-370/-.
post of Chambal Project was equated with the post of overseer under the Board
carrying the pay-scale of Rs. 170- 315/-. However, as the pay-scale of Overseer
(S.G.) was higher than the pay-scale of the post of Supervisor / Overseer under
the Board, it was decided to treat the post of Overseer (S.G.) as isolated so
that the effect, and order was passed on 10.6.63. As the transfer of the
services of the employees of the Chambal Hydel Project/Scheme to the Board was
only provisional, the employees were required to exercise through option in
writing within 30 days of the Notification dated 22.1.1962. Such employees were
given the option either (i) to accept the services under the M.P.Electricity
Board in accordance with the Board's Service Regulation and Conditions of
Service as a whole or (ii) if the terms offered by the Board are not acceptable
to treat their services terminated after expiry of 30 days from the data of
exercising such option. Accordingly, the first respondent opted for the service
of the Board and gave a declaration in writing on 21.2.1962 accepting the
services under the M.P. Electricity Board in accordance with the Board's
Service Regulations & Conditions of Service as a whole.
after exercising the option as above, first respondent has been claiming that
he ought to have been absorbed as Assistant Engineer from 1.4.1961 as according
to him all his other colleagues, except himself, were absorbed as Assistant
Engineers. This claim of the first respondent was not accepted by the Board
right from the beginning on the ground that he did not possess the minimum
educational qualification required for being appointed as Assistant Engineer
under the Board. Hence the impugned communication dated 18.4.1979 was sent to
him. The letter dated 18.4.1979 reads as follows :
Representation of Shri SS Modh Line Sup. Cr. I. Shri S.S. Modh, LS Cr. I has
passed two years course for Electrical Engg. Examination 1949 from the Gambhirmal
Industrial Institute, Indore. The said two years course is not
recognized by the Institute of Engineers (India).
Secretary, M.P.E. Board of Technical Education, Bhopal has also confirmed that the two years course for Electrical
1949 from the Gambhirmal Industrial Institute, Indore is not equivalent to the three years diploma course. In
view of above, Shri S.S. Modh is not eligible for promotion to the post of
Assistant Engineer. As regards his absorption under the MPEB, it has been
examined and seen that no injustice was done in his case. He may please be
Secretary (T) M.P. Electricity Board Central Training Institute M.P.
Electricity Board" However, as and when his promotion was due, he was
given promotion in a different manner not in the regular promotional avenue so
as to safeguard his financial interest.
under these circumstances the first respondent moved the High Court by filing
Board brought to the notice of the High Court the reason for not absorbing the
first respondent as Assistant Engineer and it was also brought to the notice of
the High Court that all others who were absorbed as Assistant Engineers were
either degree holders or holders of diploma recognized by the Institute of Engineers (India). It was also made clear before the
High Court that the promotions given to the first respondent has nothing to do
with the representations made by the first respondent claiming to be absorbed
as Assistant Engineer.
High Court on a wrong premise held that the first respondent and others formed
a consolidated cadre and were discharging identical duties and, therefore, the
Board was not justified in discriminating the first respondent in no absorbing
him as Assistant Engineer. Before the High Court, Annexures P-3 and P-5
corresponding to Annexures VII and VIII filed herein were produced to show that
Overseers (S.G.) and Junior Engineers formed two different categories.
the High Court misconstruing the documents erroneously held that they formed
one category. The High Court in this connection observed as follows:-
"From documents (Annexures P-3 and P-5), it appears that it was intended
to create posts of Overseer (S.G.) by reducing equal number of posts of Junior
Engineers and as long as this was not done, select grade Overseers were to be
counted against the Junior Engineer's post. Otherwise, Overseers were having
the prospect of being promoted to the post of Junior Engineers. Thus, both
Overseers (S.G.) and junior Engineers formed a consolidated cadre. They were
also classified as belonging to class III Non-Gazetted cadre. These facts are
stated in paras 5, 6 and 7 of the petition and are not disputed."
(Emphasis supplied) From a reading of the above extracted portion from the High
Court judgment. It will be seen that the High Court fell intro error in
treating Overseers (S.G.) and Junior Engineers as one cadre. We have perused
the Annexures VII and VIII and it is seen that Overseers were promoted to the post
of Overseers (S.G.) which was on a separate pay-scale.
appears, for want of vacancies in Overseers (S.G.).
the persons selected as Overseers (S.G.) were counted against Junior Engineers'
post. This was wrongly construed by the High Court the mean that Overseers
(S.G.) and Junior Engineers formed one cadre.
High Court also has noticed the fact that the first respondent was not
possessing the minimum qualification for the purpose of Assistant Engineer.
That was an admitted position as the High Court itself observed as follows:
appears that the respondent- Board's stand is that is has prescribed some
minimum educational qualifications for the post of Assistant Engineer, which
qualification the petitioner does not have. This position is also not disputed
by the petitioner who submits that educational qualification are relevant for
purposes of direct recruitment only and not for absorption or promotion."
The High Court did not rightly accept the submission that the minimum qualification
was relevant for direct recruitment only and not for absorption or promotion.
High Court also noticed the fact that the first respondent did not object to
his absorbing as an Overseer (S.G.) and accepted the same without any protest.
It was also brought to the notice of the High Court that all his
representations before the authorities were for his promotions. The appellant
also raised the question of laches on behalf of the first respondent in
approaching the court, the delay of nearly 19 years.
Court proceeded on a wrong premise that the first respondent and others who
were absorbed as Assistant Engineer belonged to same cadre and misconstruing
the promotion given in due course by the Board as one recognizing the merit in
the case of the first respondent.
High Court granted the relief directing the Board to absorb the first
respondent as Assistant Engineer right from the date of absorption, namely
1.4.1961 and also to give all consequential benefits including the monetary
have notice that the first respondent admittedly was not qualified to be
appointed as Assistant Engineer and, therefore, he has no case to claim to be
absorbed as Assistant Engineer. The requisite qualification was a given below
:- "Candidate must be a Graduate in Elec. & Mech. Engg. from a recognised
College or University or the Diploma in Electrical Engineering of the Indian
Institute of Science, Bangalore; the Degree or Diploma of any other Institution
in Elec. Engg. will be considered provided the same is accepted by the Institute of Engineers (India) as exempting from Section A &
B of the Associate Membership Examination. Candidates who have passed Section A
& B of the A.M.I.E. Examination provided they have basis Engineering
qualification gained after matriculation or a three or four years Collegiate
Engineering Course will be considered." The first respondent was not
possessing the requisite qualification.
High Court also proceeded on a wrong assumption that certain allegations made
by the first respondent in the Writ Petition had not been controverted by the
appellant herein. Factually, all the allegations were controverted in the
return filed on behalf of the appellant before the High Court. We have perused
the affidavit and the return filed by the first respondent and the appellant
respectively before the High Court and we are satisfied that the High Court was
not right in observing that allegations in paragraph 5 to 7 of the Writ
Petition were not controverted by the Board.
have also noticed that the employees of the Project were given option to accept
the service of the Board without any objection and to serve in accordance with
the Board's Service Regulations & Conditions of Service as a whole. The
first respondent has submitted written declaration to that effect. When the
service regulations provide that candidates holding engineering degree or
equivalent thereto to be appointed as Assistant Engineer, the first respondent
without possessing such qualification cannot put forward a claim to be observed
as Assistant Engineer. His claim lacks foundation.
High Court was aware of the fact that the first respondent did not possess the
minimum qualification for being absorbed as Assistant Engineer. Nevertheless
the High Court has granted relief by observation as follows:- "The only
reason for treating the petitioner separate from others in his category, is his
lesser educational qualifications. This, however, is not permitted. Under the
circumstances, it must be held that the petitioner has been treated illegally
by the respondent-Board by not absorbing him as an Assistant Engineer like all
others in his category. The petitioner is, thus, clearly entitled to the
benefits from the same date when all others in his category have been
given." The above observation cannot be sustained in the face of the
admitted fact that the first respondent has no qualification required for being
appointed as Assistant Engineer.
circumstances, we have no hesitation to hold that the judgment of the High
Court cannot be sustained and accordingly the same is set aside. The appeal is
there will be no order as to cost.
granting interim stay, this Court has directed the appellant to deposit certain
amounts in a nationalised bank and permitted the first respondent to withdraw
the amount of interest accruing therefrom. As we are allowing the appeal, the
appellant will be entitled to withdraw the deposited amount and in the facts of
this case, the appellant shall not recover the interest received by the first
respondent, accrued from the amount deposited by the appellant.