Ashok Kumar Singh And Ors v. State Of Bihar And Ors

Ram Nandan Prasad, J.

1. The petitioners as well as respondents 6 to 80 are the employees of the Bihar State Electricity Board (hereinafter to be referred as the Board). In May, 1972 the Board put out an advertisement inviting applications from 1st Class Diploma-holders in Electrical/Mechnical Engineering with three years course for appointment as apprentice category I for a period of 12 months during which they would be given intensive training and respondents Nos. 6 to 76 applied and were selected for that post and after having successfully undergone training they were appointed as Operators/Technicians under the Board for managing its power stations at various places. A year later the Board put out an advertisement in May, 1973 again inviting applications for the post of apprentice category I, from Science graduates with Physics, Chemistry and Mathematics on condition that they will undergo training for 12 months and may on successful completion of the training and on passing of necessary tests be appointed temporarily as operator or on equivalent post and in response to the same the petitioners applied and were selected as apprentice category I and having successfully completed training were appointed on the post of operators/technicians during 1974-76. In 1976 the Board framed the Bihar State Electricity Board Junior Engineers (Generation-euro Transmission Cadre) Regulation 1976 and in exercise of he power conferred upon it under proviso to Rule 8 of the Regulations (Annexure 4) the Board appointed by its order dated 6.7.1977 (Annexure 5) 109 persons, including respondent Nos. 6 to 76, who were diploma holders in Electrical/Mechanical/Electronics/Telecommunication Engineering as Junior Engineers in the cadre of Junior Engineers which has been created under the aforesaid Regulation of 1976. Respondents 77 to 80 who were previously employees of the Patna Electric Supply Undertaking (PESU) which was taken over by the Board had also been absorbed in the cadre of Junior Engineers. The petitioners were left to remain in the original cadre of operator-cum-technicians. The grievance of the petitioners is that they were unjustly and illegally discriminated against and left out from being placed in the cadre of Junior Engineers and this action of the Board is violative of Articles 14 and 16 of the Constitution. Their prayer in this application is for issuance of a writ of Mandamus of any other appropriate writ directing the Board to encoder them also as Junior Engineers from 6 July, 1977, and place them on the same footing as the respondents. They have also prayed for quashing Rule 8 including its proviso of the Junior Engineers (G.T.O. Cadre) Regulation 1976 (as contained in a Annexure 4) and also Rules 7 and 9(v) of the Bihar State Electricity Board Junior Electrical Engineers (General Cadre) Rules, 1982 as ultra vires.

2. For appreciating the points raised in this writ application, a few facts relating to the background of the setting up of the cadre of Junior Engineers in the Board and absorption of the respondents in the same is necessary. The Board itself came into existence on the first of April, 1958. In due course, it tools over the various Electricity Supply undertakings which used to supply Electricity in different parts of Bihar including the Patna Electricity Supply Undertaking (in short PESU). For efficient functioning it was considered necessary to form a separate organisation generation and bulk transmission of power and indeed the Government of Bihar gave such a direction to the Board in July 1975 under Section 78A of the Electric Supply Act, 1948. In 1976 the Board/with a view to gear up its generation and transmission machinery, constituted a generation-cum-transmission organisation (hereinafter to be referred as the G.T.O. Organisation) in accordance with the direction of the Government of Bihar as mentioned above. This was done by the Board in exercise of its power under Section 79 of the aforesaid Act and it framed the necessary regulations for setting up this G.T.O. organisation. The same year with a view to properly manage the G.T.O. organisation and creation of suitable cadres at different levels, the Board in exercise of its power under Section 79 of the Electricity (Supply) Act, 1948 (hereinafter referred to as the Act) framed two sets of regulations, the first being the Bihar State Electricity Board (Generation-cum-Transmission Cadre) Rules, 1976 (which replaced the generation cadre Regulation 1971) in respect of officers of the rank of Assistant Engineers/Assistant Superintendents and above, and the second being the Bihar State Electricity Board Junior Engineers (Generation-cum-Transmission Cadre) Regulation, 1976. Rule 8 of this latter Regulation relates to the manner of filing up posts in the cadre of Junior Engineers. At the time of setting up of this cadre, it appears that 226 posts of Junior Engineers were sanctioned and were available and Clause (a) of Rule 8 provide that initially all the 226 pasts shall be filled from amongst the Junior Engineer in the employment of the Board who hold diploma in Electrical/Machnical/Electronic/Telecommunication Engineering (three years course) and have an experience of at least five years of working as Junior Engineers. Clause (b) of Rule 8 provides that after the above posts have been filled up in the manner indicated in Clause (a) further vacancies shall be filled from diploma holder in Electrical/Mechanical/Telecommunication/Electronic Engineering three years course after competitive test and/or interview. Subsequently by notification No. 1750 dated 4th November, 1976 the Board added a proviso to Rule 8(a) which states that if sufficient number of Junior Engineers having experience of at least five years of working as junior engineers are not available initially, the Board may suitably relax the period of experience so as to fill up all the 226 posts in the cadre. By its notification No. 1091 dated 6.7.1977, the Board added another proviso to Rule 8 of the Junior Engineer, G.T.O. Regulation 1976. This proviso states that if sufficient number of Junior Engineers fulfilling the above conditions are not available from amongst the Junior Engineers of the Board, the Board may fill up the vacancies from amongst the diploma holders working as controllers/Assistant Controllers/Operations/Technician grade I in the power stations of the Board who are recommended by the Engineer-in-Chief as suitable for encadrement as Junior Engineers in the G.T.O organisation (This proviso is contained in Annexure 4 of the writ application). In exercise of the power under the proviso to Rule 8(a) the Board by its order dated 6.7.1977 (Annexure-5) appointed 109 diploma holders including respondents Nos. 6 to 76 as Junior Engineers in the Junior Engineers G.T.O cadre created under the Regulation of 1976. The petitioner being merely science graduates and not having any diploma in engineering, were thus left out. Further, in 1982 the Board in exercise or the same power under Section 79 of the Electricity (Supply) Act 1948 framed the Junior Engineer (General cadre) Rule 1982 which was notified on 11.10.1982 and Rule 7 of the same finally shut the door against the petitioners (Science graduates) disentitling them from being considered for and being placed in the cadre of Junior Engineers.

3. Before proceeding further, it is desirable to indicate that the case of the respondent Nos. 77 to 80 stands on a different footing than of respondent Nos. 6 to 76. As already mentioned above, the last 4 respondents (respondents 77 to 80) were originally employees of PESU and such of its employees who opted for it were abosrbed in the service of the Board in the Year 1974. At the time of absorption, these four respondents were holding the post of Supervisor in PESU and on absorption they were fitted into the pay scale of Junior Engineers (of the Board) but it was ordered that person who were not diplom-holders, which was the position of these four respondents, will continue to be designated as Junior/Senior Supervisor and shall not be part of the cadre of Junior Engineers. These respondents and others filed representation that they should be treated as part of the cadre of Junior Engineers and they also filed a writ application being C.W.J.C. No. 818 of 1978 and it was ordered in the writ application (Annexure-7) that these persons (respondents 77 to 80) would also be treated as being in the cadre of the Junior Electrical Engineers. Thus, it was on account of order of the Court as passed in the aforesaid writ application, that respondent Nos. 77 to 80 have continued to remain in the cadre of Junior Engineers of the Board. It may, however, be noted that although these four respondents did not hold the diploma Junior Engineer, they were not totally lacking in technical qualification in as much as they held certificates of I.T.I. Electricity Diploma course of Electrical Engineering or trade course of Electricity and had also long standing in service in PESU. They had, therefore, come to the cadre of Junior Engineers in accordance with Courts order and not by virtue of the classification made by the Board in exercise of the power conferred upon it under Rule 8(a) and its provisos.

4. In the context of the contentions raised by the petitioners the following points arise for determination:

(i) Whether the action of the Board in treating Diploma holders as distint class different from the petitioners arid/appointing/them in the cadre of Junior Engineers (by Annexure-4 & 5) is arbitrary and unreasonable and whether such classification in effect amounts to practicing discrimination against the petitioners and is violative of Articles 14 and 16 of the Constitution

(ii) Whether the classification in question has any nexus to the object to be achieved, namely building up of a suitable and efficient cadre of engineers in the Board

(iii) Whether the regulations and rules framed by the Board which enable it to place the respondents in the cadre of Junior Engineers and leave out the petitioner from the same was beyond its power and, therefore, ultra vires

5. Point Nos. (i) and (ii) are connected and I will deal with them together.

6. The contention of the petitioners is that having been appointed as apprentice grade I, like diploma holders they under went the same training and performed the same functions as diploma holder in the capacity of operator/technicians/instrument mechanics and they also functioned likewise on the posts to which they and the diploma holder were promoted in due course in the line of promotion available to them and the Boards action in taking out the respondents from the original cadre to which the petitioners and the respondents belonged, and placing them in the cadre of Junior Engineers is discriminatory. It has been urged that once the Board appointed candidates with different academic or technical qualifications to the same cadre, having the same pay scale and similar duties all such candidates formed one class and they cannot be further classified for the purposes of promotions on the basis of their educational qualifications. This according to the petitioners amounts to constitution a fresh cadre within a cadre according to them, academic or technical qualifications could be germane only at the time of recruitment and for the purposes of promotion, efficiency and experience alone should count. It was also argued that there is no rational basis for saying that talent, efficiency and expertise would be discernible only amongst the diploma-holders and that it would be totally absent amongst science graduates (petitioners) who have undergone the same intensive training and have gained the same experience. It was thus contained that the reason for making the alleged qualification a basis for promotion and placing the respondents in a separate cadre is a colorable device/to/deprive the petitioners of the opportunities of higher pay scale and amenities which have been made available to the respondents and the qualification has no nexus to the object to be achieved.

7. I have already indicated above that for improving generation and bulk transmission, the Board set up the G.T.O. organisation in 1976. Having done so, the Board with a view to building up a suitable and efficient cadre of engineers for the G.T.O., set up a cadre from the level of assistant Engineers/Assistant Superintendent and upwards upto Engineer-in-Chief by framing the Bihar State Electricity Board (Generation-cum-Transmission cadre) Rules, 1976 and it also set up a cadre of Junior Engineers by framing the Bihar State Electricity Board Junior Engineers (Generation-cum-Transmission cadre) Regulations, 1976.

It is worth noticing that the cadres which were set up by these two regulations are cadre* of engineers which obviously implies that the members of the cadre must at least have the basic qualification and training of engineering.

8. A perusal of the aforesaid two regulations in question, shows that the starting point of the personnel structure of the G.T.O. organisation is the Junior Engineer. Rule 5 of the Junior Engineer (G.T.O. cadre) Regulation 1976 shows that at the initial stage the strength of the cadre was 226 and Rule 8(a) provides the manner of filling up these posts. Rule 8(a) reads as follows:

8(a) Initially all the 226 posts in the cadre shall be filled up from amongst the Junior Engineers in the employment of the Board who hold diploma in Electrical/Mechanical/Electronic/Telecommunication Engineering (Three years course) and have an experience of at least 5 (five) years of working as Junior Engineers in construction, maintenance and operation of a power station or transmission lines and Grid Sub-stations. The Board shall have full power to assign any Junior Engineer with the above qualifications to the cadre.

It was submitted by the Advocate-General on behalf of the Board and its officers (respondents 1 to 5), that since sufficient number of suitable and experienced Junior Engineers were not available the two proviso to Rule 8(a) were introduced in order to relax the criterion of period of experience. It has been submitted on behalf of the respondents that it was in the above context that the persons holding diploma in engineering, who were originally in the cadre of Operator/Technician grade-1, to which the petitioners also belonged, were taken by the Board into the cadre of Junior Engineers by Annexure-3. The Advocate-General argued that by doing so the Board did not practice any discrimination against the petitioner (Science graduates) but it merely filled up its cadre of Junior Engineers by a class of person who had the basic qualification for this post. It was also pointed out by the learned Advocate-General that once the cadre of the Junior Engineers had been setup, the Board was fully entitled to look for suitable persons from different sources and one of these was the cadre of operators/Technicians grade-1. It was urged that by making appointments according to the proviso to Rule 8(a) the Board did not practice any discrimination because obviously it could not appoint any of the petitioners in the cadre of Junior Engineers as they lacked the basic qualification of engineering. The learned Advocate-General also submitted that classification on the basis of basic educational qualification is a just and valid classification and is not violative of Articles 14 and 16 of the Constitution.

9. Rule 6 of the G.T.O. Cadre Regulation (officers) indicates the different leave of officers in this cadre which is as follows:

(a) Chief Administrator-cum-Engineer-in-Chief

(b) Chief Engineer/General Manager.

(c) Superintending Engineer/Superintendent/Deputy General Manager.

(d) Executive Engineers/Deputy Superintendent.

(e) Assistant Engineers/Assistant Superintendent.

Rule 7 of this regulation provides for the manner of direct recruitment to the cadre of officers. This is not relevant here. Rule 8 of this regulation provides for manner of recruitment by promotion from Junior Engineers and classe (ii) of this rule provides that 50% vacancies at the lowest level of the cadre (Assistant Engineers/Assistant Superintendent) shall be filled up by promotion from amongst Junior Engineers in the service of the Board having 8 years experience. This obviously implies that all Junior Engineers in the G.T.O. organisation, including those that may have been taken in this organisation from the cadre of operators grade-1 one holding diploma in Engineering, would in due course be climbing up the ladder from the post of Assistant Engineers upwards and some of them (depending upon merit, seniority and length of service available to them) may be appointed to the post of Chief Engineer or Engineer-in-Chief, Could a person lacking in any kind of qualification of engineering be expected to perform properly and successfully the duties and function at the level of Chief Engineer or Superintending Engineer or Executive Engineer. He submitted that Annexures-4 and 5 were not meant to provide separate or a different avenue of promotion to Diploma-holders who were originally recruited as apprentice Grade-1, but the Board by, issuing these notification merely tapped an available source for filling up its cadre of Engineers for the G.T.O. organisation and all persons who fulfilled the basic qualifications were taken from this source. These notifications, therefore, were not meant for and did not have the effect of. promoting diploma-holders in the operator grade-1 cadre of the post of Junior Engineers but it had the effect of picking up all persons having requisite qualification and appointing them to the newly setup cadre of Junior Engineers under the G.T.O. organisation. In other words, what was effected by Annexures-4 and 5 is not promotion but appointment from an available source. He further submitted that no restriction could be placed on the power of the Board in filling up the posts of Junior Engineers in the G.T.O. organisation cadre with persons having requisite basic qualification from what ever source available and the Board through Annexures-4 and 5 filled up the initial posts of Junior Engineers from one such available source. He therefore, urged that no exception to such action of the Board could be taken under law and the question of practicing discrimination against the petitioners does not arise because they lacked the basic eligibility criterion. The Advocate-General thus refuted the petitioners contention that by appointing the diploma-holders to the post of Junior Engineers, a cadre within a cadre had been created. He submitted that the Board for achieving its object of building up a suitable manning structure for the G.T.O. organisation created two cadre, firstly a cadre of Junior Engineers at the lowest level and secondly the cadre of higher level officers from Assistant Engineer upwards and that both these cadres form part of the personnel structure of the G.T.O. organisation, in my opinion, this submission is quite correct. While the necessary nexus to the objection view was available amongst the diploma-holders, it was no amongst the petitioners who are merely science graduates.

10. Both the parties relied on some decisions of the Supreme Court in support of their contortions. The decision which appears to be most appropriate on the point under consideration is that of State of Jammu and Kashmir v. Tritoki Nath Khosa reported in : (1974)ILLJ121SC . In the State of Jammu & Kashmir the cadre of Assistant Engineers had been filed up from two sources, first by direct recruits holding degree in Civil Engineering and second by promotion of such persons in the subordinate service (working as Supervisor etc) who held degree or diploma in Civil Engineering or certificate of ground engineering. In 1970, the State framed Engineering Service Recruitment rules and Rule 3(f) provided that only those Assistant Engineers would be eligible for promotion to the post of Executive Engineer who possess a Bachelors degree in engineering or hold the qualification of AMIE and who had put in at least 8 years. The effect of this rule was that diploma-holders who had becomes Assistant Engineers on promotion were deprived of being promoted to the post of Executive Engineer. The vires of this rule on the ground of being violative of Articles 14 and 16 of the Constitution had been challenged by the promotee Assistant Engineers and the High Court up held their contention and the State of Jammu & Kashmir came up in appeal before the Supreme Court.

The argument which have been advanced by Mr. Mukhoty in the present case had also been advanced on behalf of the respondents (Assistant Engineers) in Khosos case namely, hat academic or technical qualification could be germane only at the time of recruitment and once persons of different types of qualifications were recruited in the cadre, they formed one integrated class and there could be no further classification for the purpose of promotion, that the respondent (diploma-holders Assistant Engineers) had worked for long on the post of Assistant Engineers and discharged the same functions on the basis of similar experience as the degree holders Assistant Engineers, and the degree holders could not be said to be more efficient merely because they held a degree in Engineering and, therefore, classification on the basis of educational degree was discriminatory and classification has no nexus to the object namely efficiency in the engineering service because talent and efficiency a could be found in the rank of diploma-holders also and as such there can be no classification for restricting the field of choice of promotion to the post of Executive Engineer to only engineering graduates. The Supreme Court did not accept the contentions raised on behalf of the respondents-(diploma-holders engineers). The Supreme Court in Khosas case observed that educational qualifications nave been recognised by the Court as safe criterion for determining the validity of classification and in this context made reference to its earlier decisions in State of Mysore v. Narsing Rao : (1968)IILLJ120SC ; Ganga Ram v. Union of India : [1970]3SCR481 and Union of India v. Dr. Mrs. S.B. Kohli : [1973]3SCR117 . It also observed that judicial scrutiny can extend only to the consideration whether the classification rests on a reasonable basis and whether is bars nexus with the object in view, it cannot extend to embarking upon a nice and mathematical evaluation on the basis of classification as this may lead the courts to substitute their own judgment for that of the Legislature of the rule making authority on the need to classify, and this would not be permissible or proper. Having considered the points raised in the appeal the Supreme Court laid down as follows:

Judged from this point of view, it seems to us impossible to accept the respondents submission that the classification of Assistant Engineers into Degree-holders and Diploma-holders (sic) on any unreal or unreasonable basis. The classification, according to the appellant, was made with a view to achieving administrative efficiency in the Engineering Services. If this be the object, the classification is clearly correlated to it for higher educational qualifications are at least presumptive evidence of a higher mental equipment. This is not to suggest that administrative efficiency can be achieved through the medium of those possession comparatively higher education qualifications but that is besides the point. What is relevant is that the object to be achieved here is not a mere pretence for in indiscriminate imposition of inequalities and the classification cannot be characterized as arbitrator (sic). That is the farthest that judicial scrutiny can extend.

The decision of Supreme Court in Khosas case negatives the contentions raised on behalf of the petitioner.

11. On (sic) of the petitioners. Mr. Mukhoty strongly relied on the decision of the the Supreme Court in R.D. Gupta and Ors. v. Lt. Governor of Delhi : [1987]3SCR808 . The Ministerial cadre in the New Delhi Metropolitan Counsel (NDMC in short) is constituted of three Wings, namely the General wing, the Water works wing and the Electricity Wing and all the three Wings constitute a unified cadre having a common seniority list and the staff in the three Wings are interchangeable and postings are made in the three Wings from the common pool according to administrative convenience. The DESU (Delhi Electric Supply Union) had given enhanced pay to some of its employees on the basis of Shiv Shankar Committes report and the NDMC on the assumption that the staff working in its electricity wing were pertaining the same and similar functions as those in DESU, passed a resolution whereby enhanced pay was allowed to the Ministrial staff of the electricity wing of NDMC. The staff of the other two wings i.e. the general wing and water work Wings challenged this resolution of the NDMC. Their Lordship first observed that the DESU stood on a different footing and was governed by a different statute and had a different set up then that of the NDMC and as such there was no justification for treating the electricity Wing of the NDMC at par with the staff of DESU. They further observed that the set up of the ministerial staff of the NDMC is that of an integrated unit comprising all the three wings and the only reason which prompted the NDMC to pass the impugned resolution of giving enhanced pay to the staff of the electricity wing was that it had been so done in respect of the ministrial staff of DESU. Obviously, therefore, there was no object to be achieved neither any nexus for the alleged classification of persons who were given the enhanced pay. Their Lordships, therefore, held that the resolution whereby the staff of the electricity wing were given higher pay scale (as per Shiv Shankar Committee Report) was discriminatory and hence not sustainable and that the ministerial staff of the general wing and the water works wing were entitled to get the same pay scale as the staff of the electricity wing. In my view this case has no similarity with present case. The points of the difference are as follows.

The electricity wings staff were not shown to possesses any academic or other qualifications different from or superior to the staff of the general wing or the water works wing. Hence, there was no basis for putting the electricity wing staff into a different class and give them a higher pay scale. Secondly, the ministerial staff of the electricity wing were not shown to be performing any work different from the other two wings nor were they expected to do so in future and the only reason why they were given a nig her scale was on the wrong assumption that their case stood similar to the ministerial staff of DESU. Thus there was neither any object to be achieved nor any nexus, as regards the staff of the electricity wing. Thirdly, while in the present case the point at issue is whether the respondents could be considered as a separate class to serve as a source of recruitment on the basis of technical qualification from the post of Junior Engineers, no such question was under consideration in the NDMC case Fourthly, though the respondents even after being appointed as Junior Engineers continued to do the same type of work as before for the time being (vide paragraph 2 of Annexure 5), this was a temporary measure on the ground of expadiency because they were at that time manning the operation and maintenance of the various power units and could not be suddenly withdrawn without replacements being found, but it is obvious that in due course they would be performing their technical functions in the GTO organisation as junior Engineers and even of higher posts. In the NDMC case there was nothing to show that at any point of time in future the electricity wing staff would be performing functions which would be different from the other two wings and which may be technical in nature. Thus, in my opinion, the argument of Mr. Mukhoty on the point of similarity of the present case with the NDMC case seems to lack substance.

12. In support of his contention that persons having the same cadre and performing the same type of work and discharging similar duties should be given the same pay scale and other service benefits. Mr. Mukhoty cited the case of Bhagwan Das and Ors. v. State of Haryana reported in : [1987]3SCR714 . In that case it was found that supervisors appointed on temporary basis under the National Adult Education Scheme were not being given the same pay scale as supervisors in the regular cadre of the Education Department of the Government of Haryana although they we e doing the same type of work and discharging similar duties. Upholding the well settled principle of equal pay for equal work, their, Lordships found that denial of equal pay to the Supervisor under the National Adult Education Scheme was discriminatory and it was of no consequence that their post was of temporary nature. Obviously, this case has no application to the present case. If respondents 6 to 76 while continuing in the original cadre of operator technician grade I had been given a different pay scale than the petitioners, this could be struck down on the ration enumerated in Bhagwan Dass case. But the position is quite different in as mush as the respondents are no longer members of the cadre to which the petitioners belong but they, on the basis of their educational qualification, have been appointed to a different cadre and are getting the pay scale and other benefits of that cadre. The other cases cited on behalf of the petitioners by Mr. Mukhoty are distinguishable on the touch stone of the reasonings stated above, the fundamental difference being that in the present case the respondent Nos. 6 to 76 on the basis of their technical educational qualification, which is not possessed by the petitioners, were considered as a suitable class and a served as a source for recruitment to a newly created separate cadre of Junior Engineers and hence there could be no question of discrimination between persons in the same cadre.

13. Another case cited by Mr. Mukhoty is . This again relates to grant of different scale of pay to persons in the same cadre. It is not so in the present case because the respondents as a class have been appointed to a separate and distinct cadre of Junior Engineers. The case reported in : (1987)IILLJ25SC : T.R. Kapur v. State of Haryana was cited in support of the contention that the employer was not competent to alter the conditions of service by issuing notification whereby those in the same cadre are rendered ineligible for promotion. In the case, according to the existing rules the University degree in engineering was not necessary for promotion from the post of Assistant Engineer to the post of Executive Engineer and as such even diploma holders who by promotion since 1964 had become Assistant Engineer were eligible for promotion to the point of Executive Engineer. The Government of Haryana by a notification dated 22nd June, 1984 amended the relevant rule with effect from July 1964 whereby a degree in Engineering was made an essential qualification for promotion of Assistant Engineer to the post of Executive Engineer. In this context, the Supreme Court held that the notification was violative of Articles 14 and 16 of the Constitution, obviously the facts of that case have no application to the present case. In the present case it is not the position that mere science graduates were earlier eligible to the promoted to the cadre of Junior Engineers and this has now been blocked. So the ration of T.R. Kapurs case has no application in the present case.

14. In course of this argument Mr. Mukhoty cited several decisions as noted below:

(a) : (1968)ILLJ576SC : Roshan Lal Tandon v. Union of India.

(b) : (1987)ILLJ433SC T.R.C. Scientific Officers Association v. Union of India.

(c) : (1973)ILLJ42SC : State of Mysore v. Krishna Murti.

(d) : (1981)ILLJ494SC : State of U.P. v. Ramgopal Shukla.

(e) : [1978]2SCR621 : Menka Gandhi v. Union of India.

(f) : AIR 1987 SC 367 [LQ/SC/1986/409] : Punjab State Electricity Board v. Kumar Sharma and Ors.

I do not consider it necessary, to refer to each of these cases for showing that they are not applicable to the present case. The distinct features of the present case have already been mentioned above namely, that it is not a case of promotion and that the classification made has not resulted in creation of a cadre within a cadre but has provided the source for recruitment on the basis of requisite technical qualification to a newly created cadre. When the aforesaid cases are considered in this context they can be easily distinguished. Indeed, Roshan Lals case had been discussed by the S.C. itself in Khosas case and found not applicable where classification is based on educational qualification. But before I close, I will refer to one more case cited by Mr. Mukhoty reported in : (1976)IILLJ115SC : Md. Sujat All v. Union of India. Mr. Mukhoty has drawn attention to the observations of their Lordships in paragraphs 26, 27 and 28 of the judgment on the point of equalitity and equal opportunity and has submitted that the reasonable classification doctrine should not be allowed to submerge and drown the precious guarantee of the fundamental right. He repeated this submission that the classification in the present case was mala fide and made with a view to depriving the petitioners from the benefits of promotional avenue in the cadre of Junior Engineers and to higher ranks. In Sujat Alis case, their Lordships referred to the decisions of the Court where educational qualifications have been recognised as forming a valid criterion for classification : (1968)IILLJ120SC : State of Mysore v. Narsingha Rao; : [1973]3SCR117 : Union of India v. Dr. Mrs. S.B. Kohli and : (1974)ILLJ121SC : State of Jammu and Kashmir v. T.N. Khosa. However, their Lordships also observed that while considering the question of qualification as a basis for classification, the Courts must read with caution and in this context quoted the observations of justice Krishna Iyer in Khosas case which is as follows:

Mini.--classifications based on Micro-distinctions are false to our egolitarian faith and only substantial and straight forward classifications plainly promoting relevant goals can have constitutional validity. To over do classification is to undo equality.

15. The recent decision of the Supreme Court reported in AIR 1989 SC 19 [LQ/SC/1988/516] State of U.P. v. J.P. Chaurasia and Ors. has upheld the grant of different pay scales even in the same cadre of persons performing similar duties. Under the Allahabad High Court Officers and Staff Rules, the Bench Secretaries were placed in two grades, Grade I Bench Secretaries having higher scale of pay and grade II Bench Secretaries with lower pay scale who could be promoted to grade I on the basis of seniority and merit. The persons in both groups were performing the same and similar duties with same kind of responsibility. The Bench Secretaries who were placed in the lower grade challenged the roles on the ground that it offended the principle of equality i.e. equal pay for equal work and was violatives of Articles 14 and 16 of the Constitution. The Allahabad High Court upheld their contention and so the State of U.P. appealed to the Supreme Court. The Lordships of the Supreme Court observed that "in service matter merit or experience could be the proper basis for a classification to promote efficiency in administration" and that "the same amount of physical work may entail different quality of work" and it is on this basis that selection grade and super time scales are provided is several services. Thus the Supreme Court has up held even the creation of two grades and two different pay scale in the same cadre if the classification is rational.

16. Now if we consider the present case on the touchstone of the principles laid down by the Supreme Court in its various decisions as mentioned above, I find that the action of the Board in treating the respondents 6 to 76 as a class distinct from the petitioners on the basis of the basic requisite technical qualification is a reasonable and rational classification for the purpose of achieving the object in view namely setting up of the personnel structure of the GTO organisation from the lowest ranks of Junior engineers to, the highest post of Engineer-in-Chief. Undoubtedly, persons who do not have the basic qualification of engineering could not be expected to be suitable for appointment in the G.T.O. organisation because the work and functions of the officers in this organisation would not be limited merely to maintainance and running of power station but would include designing, planning, formulation of policy etc. It cannot be denied, therefore, that the basic requirement of having a minimum qualification in engineering (diploma) bears correlation and valid nexus to the object of setting up of the personnel structure of the G.T.O. organisation. The petitioners who lacked the basic requisite qualification of engineering obviously could not be appointed even at the lowest level (junior Engineers) in the G.T.O. organisation, as that would defeat the object to be achieved. It cannot, therefore, be said that the action of the Board in not appointing the petitioners to the cadre of junior Engineer is discrimatory is violative of Articles 14 and 16 of the Constitution. In the result, both point Nos. 1 and 11 are answered in the negative i.e., against the petitioners.

17. It is pertinents to mention that the petitioners argument that they have been deprived of promotional avenue is not quite correct. The fact that persons appointed as aprentice Grade-I have also been provided ample promotional avenue has been accepted in paragraph 13 of the writ application itself, and the line of promotion has also been indicate. Since respondents 6 to 76 have come out of the cadre of Operators/Technicians the petitioners have gained a two fold advantage, first the prospect of promotion for them would be much quicker and secondly the ratio of higher posts available to them now is much greater than what would have been if the respondents had remained in the same cadre. In my opinion, therefore, the convention that the petitioners have suffered a set back as regards their chance of promotion is misconceived.

18. The last line of attack of Mr. Mukhoty is that the rules and regulations whereby the G.T.O. organisation was set up and the two cadres of officers, first of Junior Engineers and the second of Assistant Engineers and upwards were created and also the rules framed in 1982 were not legally and validly framed and hence are ultra vires. The admitted position is that all the rules/regulations were framed, by the Board in exercise of the power under Section 79 of the Electricity (Supply) Act 1948. The ground of attack is two fold. Firstly, that the Section 79 gives power to the Board for framing only regulations and not rules, and secondly that the rules/regulations so framed have not been placed before the State Legislature as required under Section 79-A of the Act and consequently they are invalid and inoperative. In reply, the learned Advocate-General submitted that while at some places the word rules instead of regulation has been used, the position has been made clear that they were being framed in exercise of the power under Section 79 of the Act, hence even if there is a mistake in labelling them, it would be immaterial because their validity has to be tested on the touch-stone of the competence and the power of the Board to frame them. In this context he also submitted that under the General Clauses Act the words rules and regulations are interchengable. He has rightly submitted that the competence and jurisdiction of the Board under Section 79 of the Act for framing certain provisions, whether labelled rules or regulations, is beyond question and hence if the framing has been done in exercise of such power it cannot be regarded as being invalid. This submission is quite correct. All the provisions in question were framed by the Board under Section 79 of the Electricity Supply Act and the name assigned to them Rules or Regulations is immaterial.

19. As regards the requirement of placing the rules/regulations before the State Legislature in compliance of Section 79-A of the Act, it is not applicable to the rules/regulations under consideration Section 79-A was introduced in the Act in 1983 by amending Act 20 of 1983. The Rules regulation under consideration were framed in 1976 and 1982 at that time there was no such requirement of placing them before the State Legislature. Hence, for the reasons stated above, the contention of Mr. Mukhoty in respect of validity of the concerned Rules/Regulations has no substance. So, point No. (iii) no is also decided against the petitioners.

20. By way of last resort Mr. Mukhoty referred to the second proviso to Rule 8(a) the junior Engineers Cadre Regulation, 1976 which states that if sufficient number of junior Engineers fulfiling the condition (as laid down in the rules) is not available, the Board may fill up the vacancies from amongst diploma holders who are recommended by the Chief Administrator-cum-Engineer-in Chief G.T.O. organisation as suitable for encadrement as junior Engineer. Mr. Mukhoty has argued that respondent Nos. 6 to 76 and others were by one stroke of pen appointed to the post of junior Engineers (as per Annexure-5) without there being any recommendation about their suitability by the Engineer-in-Chief and hence their appointment cannot be regarded as proper and valid. The procedural lacuna of lack of recommendation by the Engineer-in-Chief is a mere irregularity and cannot have the effect of invalidating the appointment of the respondents. Moreover, it has rightly been urged by the Advocate-General, that the petitioners in the present writ application are seeking a writ of mandamous for obtaining certain reliefs for themselves namely their encadrement in the cadre of junior Engineers and they cannot be permitted at this stage of argument to convert it into an application for a writ of quo-warranto. I agree with this submission.

21. While meeting the contentions raised by Mr. Mukhoty, the learned Advocate-General also, pointed out that the writ application by the petitioners is not maintainable in as much as at the time of their appointment the petitioners being merely science graduates had given an undertaking that they would not put forward any claim for appointment as oversears (Junior Engineers) and that their line of promotion would be on the operation and maintenance side of the power stations (vide Annexure-8). He argued that the contractual terms, on the basis of which the petitioners obtained their appointments under the Board, debar them from claiming the relief of being placed in the cadre of Junior Engineers. The argument of the Advocate-General in this regard appears to be right.

22. For the reasons stated above, I find that there is no merit in the application and the petitioners prayer cannot be allowed. The writ application is accordingly dismissed but in the circumstances the parties shall bear their own costs.