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1968 Supreme(MP) 95
High Court of Madhya Pradesh
P.V. Dixit, C.J. & G.P. Singh, J.
Madhya Pradesh Electricity Board
Vs.
M.P. Vidyut Karmchari Sangh & others
M.P. No. 26 of 1947
Decided on : 7.7.1968
B.L. Seth for petitioner;
Gulab Gupta & G.P. Tiwari for respondents
Headnote:(1) M.P. Electricity Board (General Service) Regulations, 1952 - Reg. 5 - passing of an examination may be made an eligibility requirement - Electricity (Supply) Act, 1948 - S. 79 (c).
In principle, no objection can be taken in regard to the eligibility requirement of passing an examination for promotion. When, as laid down by Regulation-5, all appointments, whether by promotion or by direct recruitment, are to be made strictly on merit, then some method for determining the relative excellence of those presumably qualified for promotion has to be evolved. The Board has no doubt the power under section 79 (c) of the Electricity (Supply) Act, 1948, to prescribe eligibility requirements for promotion. [Para 4]
(2) Electricity (Supply) Act, 1948 - S. 79 (c) - Regulations made under - cannot be amended by executive orders - M.P. Electricity Board General Service; Regulations. 1952 - Reg. 5 and 7.
The circulars issued by the Board in 1961 and 1955 merely embodies the decisions of the Board to hold departmental examinations for determining the eligibility for promotion, are on the face of them no better than an executive orders Those circulars nowhere say as to how and in what manner the Committee, spoken of in Regulation 7 (c), should consider the result of the examination in making the selection entrusted to it. They do not at all touch the power of the Selection Committee to make selection by adopting tests in their discretion, and have not the effect of amending Regulation-7. So long as the present Regulation 7 (c) stands and no regulation is framed by the Board in the exercise of its powers under section 79 (c) of the Electricity (Supply) Act, 1948, amending the Regulations framed in 1952, and incorporating in the Regulations the passing of examination as an eligibility requirement for promotion the Board is not competent to call upon its employees to appear and pass the departmental examination, to make promotions on the basis of the results of the examination or to revert those who had not passed that examination. [Para 5]
(3) Industrial Relations Act, 1960 (M.P.) - Ss. 31 (3) & 62 (1) - application made within three months of the last approach notice - is within time.
Where the application under section 31 (3) of the Act is made within three months form the date of the last approach as required by section 62 (1) of the Act, it is within limitation. [Para 7]
Act Referred
INDUSTRIAL RELATIONS ACT : S.31(3), S.62(1)
MADHYA PRADESH ELECTRICITY BOARD GENERAL SERVICE REGULATIONS : Reg.7, Reg.5
Dixit, C.J.
1. By this application under Articles 226 and 227 of the Constitution, the Madhya Pradesh Electricity Board, Jabalpur, (hereinafter called the Board), seeks a writ of Certiorari for quashing an order of the Industrial Court made in the following circumstances.
2. Section 79 (c) of the Electricity (Supply) Act, 1948, empowers the Board to make regulations providing for the duties of officers and servants of the Board, and their salaries, allowances and other conditions of service. In exercise of this power, the Board has framed regulations entitled the Madhya Pradesh Electricity Board (General Service) Regulations, 1952. Regulation 5 lays down that subject to such standing orders as may be framed by the Board, all appointments against sanctioned posts, whether by promotion or by direct recruitment, shall be made strictly on merit. By Regulation-7 it is provided that all appointments shall be made by the Board either by direct recruitment or by promotion. Clause (c) of Regulation-7 further says that in making appointments in regard to Class-III employees, selection shall be made by a Committee which will consist of the Member-in-charge as the Chairman the Secretary and an officer of the Board nominated by the Member-in-charge. It appeals that in 1955 the Electricity Board of the old C.P. and Berar issued a circular on 10th February 1955 laying down that clerks will be required to appear and qualify themselves at a departmental examination for being considered eligible to superior ministerial posts. On 13th March 1961 the petitioner - Board issued a similar circular with regard to the holding of departmental examinations, stating that Upper Division Clerks and Select Grade Clerks may appear and qualify themselves at the examination for being considered for the posts of Select Grade Clerks and Superintendents. The respondent No. 1, the M.P. Vidyut Karmchari Sangh, a union of the employees of the Board, opposed the introduction of departmental examination. But de3pite their opposition eight departmental examinations were held; some clerks who had been promoted on officiating basis to higher posts were reverted because of their failure to qualify themselves at the examination, and other clerks who had passed the examination were promoted. On 12th October 1965 the respondent Union approached the Board for abolition of the examination and then on 11th November 1965 filed an application before the Labour Court, Jabalpur, under section 31 (3) of the Madhya Pradesh Industrial Relations Act, 1960.
3. The Labour Court held that the "system of departmental examinations was illegal, without any propriety and against the principles of natural justice; that the introduction of the system of departmental examinations in regard to those employees who bad entered service or who had been promoted before 13th March 1961 amounted to a "change" in the terms and conditions of their employment; and that reversion of persons who entered service before 13th March 1961 for not passing the departmental examination was illegal. The Board then preferred a revision petition before the Industrial Court. The Industrial Court found that the holding of departmental examinations for determining the eligibility of clerks to superior posts was neither illegal nor unfair; but that the Board had not made any regulation for the holding of departmental examinations and prescribing that Upper Division Clerks and Select Grade Clerks would be required to pass the examination before they could be considered fur the posts of Select Grade Clerks and Superintendents; that the circular issued by the Board on 13th March 1961 was merely an executive order and did not have the effect of validly amending the regulations framed by the Board under section 79 (c) of the Electricity (Supply) Act, 1948; and that the earlier circular issued by the Board in 1955 was also no better than an executive order and did not amend the Regulations. On this view, the Industrial Court h
