H. P. State Electricity Board vs K. R. Gulati

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(SC) 150

1998(1) Supreme 450
Supreme Court of India
(From H.P. Administrative Tribunal, Shimla)
S. Saghir Ahmad & G.B. Pattanaik, JJ.
H.P. State Electricity Board -Appellant
versus
Shri K.R. Gulati -Respondent
Civil Appeal No. 10189 of 1995
Decided on 3-2-1998
Counsel for the Parties :
For the Appellant : Raju Ramachandran, Sr. Advocate, K.K. Lahiri, Ejaj Maqbool, Braj K. Mishra, Gaurav Kumar, Advocates.
For the Respondent : Devendra Singh, Ms. Diva Singh, Ms. Manu Mridul, Advocates.

Headnote:Indian Electricity (Supply) Act, 1948-Sections 5, 15, 79(c)-H.P. State Electricity Board Recruitment and Promotion (Regulations) for Ministerial Employees of the Board 1972-Creation of Board on abolition of the Multi Purpose Project and Power Department of the Government-Board took over the services of all the erstwhile employees of the department on fresh contract of employment being executed by those employees-Respondent was a Steno-typist in the Public Works Department-Notice of discharge of the respondent from the service on account of closure of the department by letter dated 31.8.1971-Respondent made an application for the post of Lower-Division Clerk in the Board-Appointment-Promotion as Head Clerk from the post of Junior Scale Stenographer in 1974-By order dated 27.3.1976, posts of Junior Scale Stenographers stood upgraded to Senior Scale Stenographers-Respondent’s claim of-Whether could be allowed?-(Yes)-Order of the Administrative Tribunal directing the Board to treat the respondent as having been promoted as Stenographer w.e.f 31.5.1966 when even the Board was not constituted - Whether sustainable ?-(No)-The direction on the face of it is without jurisdiction.
       Held : The respondent had been regularly absorbed as a Junior Stenographer under the Board by order dated 7th June, 1973 with effect from 1st June, 1972. Under the Regulations read with Appendix ‘A’ promotion to the post of Head Clerk no doubt was permissible both from the UDCs as well as from the stenography junior scale in the ratio of 9:1 and the respondent had been promoted to the post of Head Clerk on 23rd August, 1974 but the said promotion of the respondent was merely on an ad hoc basis and he had no substantive right to the post of Head Clerk on the date the posts of junior stenographers were upgraded to the senior scale stenographers i.e. on 27th March, 1976. The respondent being a substantive junior scale stenographer had therefore a right to be considered for promotion to the post of senior scale stenographer in March, 1976, and by such non-consideration there has been an infringement of Article 16 of the Constitution. (Para 6)
       Further held : Whether the departmental promotion committee could have held the respondent unsuitable for the post of senior stenographer merely on the ground that he has lost touch in stenography. The answer to this must be in the negative. Since under the Regulations as well as the Appendix, the criteria for promotion to the non-selection post being seniority the departmental promotion committee could not have held the respondent unsuitable for the post of senior stenographer. The decision of the departmental promotion committee, therefore, was wholly erroneous. (Para 7)
       Consequently held the impugned order the direction of the Tribunal to treat the respondent as having been promoted as a Stenographer with effect from 31st May, 1966 is wholly without jurisdiction inasmuch as such a direction could not have been given to the Board when the Board itself was not in existence on that date. Secondly, on that date the respondent was an employee of the State Government and the State Government was not a party to the proceedings before the Tribunal. Thirdly, the aforesaid direction has been given as one S.S. Kaushal who was junior to the respondent in his erstwhile post of Steno-typist got promotion to the post of Stenographer and that Shri Kaushal was not a party to the proceedings. Lastly, a cause of action, if at all, which arise on 31st May, 1966 could not have been assailed before the Tribunal by filing an application in the year 1992 and by allowing such belated and stale claim, would upset the entire cadre management and will not be in the interest of justice. Learned counsel for the respondent, therefore in course of hearing very fairly stated that the said direction of the Tribunal was probably not proper and we have, therefore, no hesitation in holding that the aforesaid direction is wholly unjustified and unsustainable in law and we accordingly quash the same. (Para 9)

Judgment

G.B. Pattanaik, J.-This appeal is directed against the judgment dated 14th July, 1995 passed by the Himachal Pradesh Administrative Tribunal in O.A.No. 1374 of 1992. By the impugned judgment the Tribunal has directed the appellant Board to treat the respondent as having been promoted as Stenographer in the pay scale of Rs. 106-200 with effect from 31st May, 1966 and give him all consequential benefits flowing therefrom in his own stream of Stenography. It was further directed that there should be no recovery from the respondent who has worked against various posts in the meantime.

2. The brief facts leading to the filing of application by the respondent before the Tribunal may be stated hereunder. The respondent joined the Public Works Department of the Government of Himachal Pradesh as a Clerk in November, 1958. While so continuing he was appointed as a Steno-typist on July 18, 1964 and was confirmed against the said post with effect from 1st January, 1972. On 2nd April, 1971, the Himachal Pradesh State Electricity Board (hereinafter referred to as ‘the Board) was constituted in exercise of powers under Section 5 of the Indian Electricity (Supply) Act, 1948. With effect from 31st August, 1971 the Department of Multi Purpose Project and Power of the Government of Himachal Pradesh was closed. On account of the creation of the Board on and from the said date, on abolition of the Multi Purpose Project and Power Department of the Government, the Board took over the services of all the erstwhile employees of the department on fresh contract of employment being executed by those employees but it was clearly stipulated that the employees will continue as employees of the Government until their final absorption by the Board or their services stand terminated in accordance with law. It may be stated that the department of Multi Purpose Project and Power of the Government issued the notice of discharge of the respondent from the service on account of the closure of the department by letter dated 31st August, 1971. On September 9, 1971 the appellant Board issued on offer of appointment to the respondent intimating therein that the Board would be prepared to take the respondent on semi permanent basis as a Lower Division Clerk in the grade of Rs. 110-250 and in ad hoc capacity as Stenographer in the grade of Rs. 160-400. It was also clearly stipulated that the respondent will have no right for continuance against the post of Stenographer until he is appointed against the said post on regular basis by a competent authority of the Board. The respondent was called upon to indicate as to whether he would be agreeable to the terms and conditions mentioned in the offer of appointment as stated above. By letter dated 9th November, 1971, the respondent himself made an application for the post of Lower Division Clerk on permanent basis under the State Electricity Board and to allow him to continue on ad hoc basis against the post of Stenographer. The Board framed a set of Regulations to regulate the recruitment, promotion and confirmation of the ministerial services under the Board, in exercise of powers conferred by Section 79 (c) read with Section 15 of the Electricity (Supply) Act, 1948 called the Himachal Pradesh State Electricity Board Recruitment and Promotion (Regulations) for Ministerial Employees of the Board, 1972 (hereinafter referred to as ‘the Regulations’) which became operative with effect from 1st July, 1972. The respondent became an employee of the Board as a Junior Scale Stenographer by order dated 7th June, 1973 with effect from 1st January, 1972. Under the Regulations appointment to different posts under the Board could be made by direct recruitment as well as by promotion and the criteria for promotion was on the basis of recommendation of a duly constituted departmental promotion committee which committee in turn would recommend in case of non-selection post by virtue of the seniority of the employee and in c

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