Md. Islam & Ors. VS The Bihar State Electricity Board & Ors - Supreme Court

Md. Islam & Ors. VS The Bihar State Electricity Board & Ors - Supreme Court

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



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 REPORTABLE

 IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO.5764 OF 2022
(Arising out of SLP(Civil) No.9603/2019)
Md. Islam & Ors. .…Appellant(s)
Versus
The Bihar State Electricity
Board & Ors. …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
1. The appellants are before this Court claiming to be
aggrieved by the judgment dated 18.12.2018 passed by the
Division Bench, High Court of Judicature at Patna in LPA
No.342/2018. Through the said judgment, the Division Bench
has dismissed the appeal filed by the appellants herein while
upholding the judgment dated 09.01.2018 passed by the learned
Single Judge of that Court, in Civil Writ Jurisdiction Case
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No.13837/2011. The learned Single Judge had dismissed the
writ petition along with the analogous petitions which were
considered and disposed of by a common judgment.
2. The appellant No.1 was an employee who retired from the
service of respondent No.1 – the Bihar State Electricity Board on
31.07.2008. The appellants No.10 and 11 are the spouse of the
deceased employees. The spouse of the appellant No.10, 11 and
the other appellants retired on 31.01.2005. The appellants,
through their writ petitions filed in the year 2011 had sought for
issuance of directions to respondent No.1- Electricity Board to
introduce the benefit of the Assured Career Progression Scheme
(‘ACP’ for short) with effect from 09.08.1999 and as a
consequence thereof to pay all monetary benefits. The said relief
was prayed to be granted by quashing the resolution no.8165
dated 22.09.2005 and the notification dated 07.10.2005 issued
by the respondent No.1 Electricity Board.
3. The brief facts leading to the case is that the appellants
were appointed in the respondent No.1-Electricity Board as
Junior Engineers/Overseers over a period of time and were
subsequently promoted to the post of Assistant Engineers. As
noted, the petitioners before the learned Single Judge had retired
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on attaining the age of superannuation on different dates
between 31.12.2000 to 31.01.2005, and insofar as appellants
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, the Government of Bihar through the Finance
Department notified on 25.06.2003, the Bihar State Employees
Conditions of Service (Assured Career Progression Scheme)
Rules 2003, (‘ACP Scheme’ for short). The same was introduced
by the State of Bihar for its employees on 25.06.2003 but the
scheme provided that it shall come into force w.e.f 09.08.1999.
The notification had specified that the scheme shall not be
applicable to the teachers of Nationalised Schools and employees
of the public undertakings or autonomous institutions, assisted
partially or fully, by the State Government. Thus, the scheme, by
itself was not applicable to the respondent No.1 - Electricity
Board until they chose to adapt the same. It is in that view, the
respondent No.1 - Electricity Board through the notification
dated 05.04.2005 adapted the ACP Scheme of 2003. Subsequent
thereto, a notification dated 07.10.2005 was issued, notifying
that the said ACP Scheme of 2003 would be applicable only for
the staff appointed after the issuance of the earlier notification
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dated 05.04.2005. This was with a view to clarify that the scheme
though adapted was not w.e.f 09.08.1999 as was in the case of
Government employees.
4. Though, the initial notification dated 05.04.2005 and the
subsequent notification clarifying the date of its applicability
were notified on 07.10.2005, as on such date, insofar as the
appellants herein are concerned, all the other appellants except
appellant No.1 had retired and even though appellant No.1 was
in service and had retired on 31.07.2008, they did not make any
grievance with regard to the same until the year 2011 when the
writ petition was filed. In the writ petition, the respondents were
notified and respondent No.1- Electricity Board had filed a
detailed objection explaining its stand on the applicability of the
ACP Scheme of 2003 w.e.f 05.04.2005. The learned Single Judge
having adverted to the rival contentions, had noted that the
scheme would not be applicable until the respondent No.1
Electricity Board adapts the same. In that light, having noted
that the adaption of the scheme was w.e.f 05.04.2005, had
declined relief to the appellants. In addition, the learned Single
Judge had also taken into consideration the benefit that the
appellants had derived under the earlier scheme which was in
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vogue. The fact that the appellants not having assailed the
notification issued by respondent No.1-Electricity Board until
they retired from the service and long thereafter was also held
against the writ petitioners.
5. The Division Bench of the High Court had also taken into
consideration all these aspects of the matter and dismissed the
appeals by upholding the order of the learned Single Judge. The
appellants, therefore, being aggrieved by the concurrent view
expressed by the High Court are before this Court in this appeal.
6. Heard the learned counsel for the parties and perused the
appeal papers.
7. At the outset, it is necessary to take note that the learned
Single Judge, as also the Division Bench of the High Court has
referred to the fact that respondent No.1-Electricity Board had
not adapted the ACP Scheme of 2003 until the notification dated
05.04.2005 was issued. By such time most of the appellants had
retired, they had benefitted from the earlier scheme and as such
could not avail dual benefits is also the view expressed by the
High Court. The learned counsel for the appellants while
assailing such a conclusion has sought to rely on the notification
dated 23.03.2006 issued by the Government of Bihar, through
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the Finance department, produced as an additional document
along with I.A. No. 115835 of 2019 to point out that the State
Government while indicating that the Scheme shall come into
effect from 09.08.1999 had clarified that the financial
progression granted under Selection Grade/Time-Bound
Promotion Scheme which came into force prior to 01.01.1996
shall not be treated to be a financial progression for the purposes
of the ACP Scheme. In that regard, the learned counsel also
placed reliance on the decision in the case Union of India and
Another vs. S. Dharmalingam (1994) 1 SCC 179 wherein it is
held that the earlier benefit derived would not be a bar for the
subsequent entitlement and the rule cannot be held as
conferring double benefit.
8. Having noted the contention on the said aspect, we are of
the opinion that the said issue would become relevant only if at
the first instance the Court is satisfied that the ACP Scheme of
2003 is accepted to be applicable to employees of respondent
No.1- Electricity Board w.e.f 09.08.1999 as was made applicable
to the government servants, the benefit of which is being sought
by the appellants herein. Hence, it is necessary to examine this
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aspect of the matter relating to the date on which 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
even though at an earlier point in time the Electricity Board had
adapted the Bihar Service Code of the State Government due to
which all Service Conditions, Rules and notifications applicable
to the employees of the State Government had become applicable
to the employees of the respondent No.1-Electricity Board, the
respondent No.1- Electricity Board had thereafter in exercise of
the power conferred under Section 79 (C) of the Electricity
(Supply) Act, 1948 had framed its own service regulations. The
indisputable position is that, the appellants, therefore, were
guided by the service regulations of respondent No.1-Electricity
Board. Therefore, the notification relating to service conditions if
any issued by the State of Bihar to regulate the service conditions
of its employees was neither ipso facto nor mutatis mutandis
applicable to the employees of the respondent No.1-Electricity
Board unless the same was adapted by the respondent No.1-
Electricity Board. Even if adapted, it would depend on the
manner and to the extent adapted.
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10. With this position being clear, a perusal of the notification
dated 25.06.2003 issued by the State of Bihar will indicate, the
benefit of the same is being sought by the appellants is in relation
to its applicability w.e.f 09.08.1999 as provided therein.
However, the notification on the face of it indicates the category
of employees to whom it would apply as also the category to
which it does not apply. The relevant portion reads as
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 be
made applicable, by a special order of the state Government, to
holders of isolated posts of Group 'A'. This shall not be
applicable to the teachers of nationalised schools and
employees of the Public Undertakings or the autonomous
institutions, assisted, partially or fully, by the State
Government”
(emphasis supplied)
11. A perusal of the same would indicate that, apart from the
legal position relating to the applicability of its own service
conditions to the employees of the respondent No.1-Electricity
Board, the notification dated 25.06.2003 itself clarifies that it
shall not be applicable to the employees of public sector
undertakings or autonomous institutions. The undisputed
position is that the respondent No.1 is a statutory Board which
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is therefore an autonomous public undertaking. If that be the
position, the mere issue of the notification dated 25.06.2003 by
the State of Bihar would not create any right in favour of the
employees of the respondent no.1-Electricity Board for the
benefits provided under such notification. It is in that light, the
notifications dated 05.04.2005 and 07.10.2005 become relevant
in the matter of granting benefit of the ACP Scheme to the
employees of the respondent No.1-Electricity Board since there
can be no claim until it is adapted. In that regard, a perusal of
the notification dated 05.04.2005 (Annexure P3) indicates that
the Committee constituted by the Board had submitted its
recommendations which were considered by the Board and had
thereupon taken a decision to replace the then existing system
of ‘Selection Grade and Time-bound Promotion’ with ‘Assured
Career Progression Scheme’. The pay-scale for the purpose of
ACP Scheme was to be notified later. Though, the notification
dated 05.04.2005 adapting the ACP Scheme was notified,
immediately thereafter a notification dated 07.10.2005
(Annexure P4) was issued which reads as hereunder:
 “BIHAR STATE ELECTRICITY BOARD, PATNA
(DEPARTMENT OF GENERAL ADMINISTRATION)
 NOTIFICATION
 Notification XVIII/ Misc.-932/2003/108/ dated 7.10.2005
Page 10 of 12
 In pursuance of Board's Resolution no. 8165 dated
22.9.2005 the Board in exercise of power conferred upon the
Board under Section 79(C) of the electricity supply Act, 1948
has decided to adapt Bihar State Employees Condition of
Service (Assured Career Progression Scheme) Rules 2003
only for the staff appointed after issuance of Board's
notification No. 25 dated 5.4.2005. Board's notification
no. 25 dated 5.4.2005 stands modified to the above
extent.
 By order of the
 Bihar State Electricity Board
 Sd/-
(Bishwanath Prasad)
 Secretary”
 (emphasis supplied)
12. A perusal of the notification dated 07.10.2005 indicates
that the decision of the Board to adapt the ACP Scheme of 2003
was only for the staff appointed after the issuance of the Board’s
notification No.25 dated 05.04.2005. The same indicates that
respondent No.1-Electricity Board did not adapt the ACP Scheme
of 2003 retrospectively w.e.f 09.08.1999 as was done by the State
government for its employees but had given prospective effect
from the date the respondent no. 1-Electricity Board had adapted
the same through the notification dated 05.04.2005.
13. If that be the position, the appellants, in any event, cannot
contend that the Scheme should be applicable from the very
same date on which it had been made applicable to the State
Government employees when the respondent no.1-Electricity
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Board had the discretion to either adapt 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 applicability as
against the date notified by the State Government. Any judicial
review on the date chosen for applicability would arise only if
such choice of date is demonstrated to be malafide or with
ulterior motive. In the instant case, the date chosen is the date
on which the scheme was adapted and the advantage or
disadvantage thereof would befall on all employees across the
board depending on which side of the fence they are as on such
date.
14. In the instant appeal as already noted, even as on the date
the notification dated 05.04.2005 was issued to adapt the
scheme, all except the appellant No.1 had retired from service.
Though, appellant No.1 was in service upto 31.07.2008 neither
the appellant No.1 nor the other appellants or the other writ
petitioners had raised any grievance till the year 2011 as the
position was clear that the Board in its discretion had adapted
the Scheme w.e.f 05.04.2005. Further, as indicated in the
counter-affidavit filed by the respondent No.1- Electricity Board,
the amended Rules 2006 had thereafter been brought to amend
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certain provisions of the ACP Scheme of 2003 which ceased to
exist after 31.12.2008 with the adaption of the modified ACP
Scheme of 2010 w.e.f 01.01.2009 with certain modifications. If
all these aspects of the matter are kept in view, the grievance put
forth by the appellants or the other writ petitioners before the
High Court was rightly not accepted.
15. In that light, a perusal of the judgment dated 09.01.2008
passed by the learned Single Judge and the judgment dated
18.12.2008 by the Division Bench would indicate that the High
Court adverted to all aspects of the matter and has thereafter
arrived at the conclusion in accordance with law which does not
call for interference.
16. In that view, the appeal being devoid of merit is accordingly
dismissed with no order as to costs.
17. Pending applications, if any, shall stand disposed of.
….…..……………………….J.
(DR. D.Y. CHANDRACHUD)
 ……………………………….J.
 (A.S. BOPANNA)
New Delhi,
August 23, 2022

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