HIMACHAL PRADESH STATE ELECTRICITY BOARDversusSOMDUTT UPPAL AND ANR.

A         .HIMACHAL PRADESH STATE ELECTRICITY BOARD
                                         v.
                        SOMDUTT UPPAL AND ANR.

                              DECEMBER 17, 1992

B                  [KULDIP SINGH AND P.B. SAWANT, JJ.]

           Civil Service-Himachal Pradesh State Electricity Board Recruitment
    and Promotion Regulations for Ministerial Services of the Board, 1972-Rule
    8, Appendices. A & B - Seniority in the post of Superintendent-Whether on
C   the basis of date of passing SAS Examination or on the basis of seniority in
    lower feeding cadre of UDC/Assistant/lntemal Auditors/Head Clerks-Letters
    dated 2.8.1968 and 31.7.1976-Importance of-Applicability of 1973 Regula-
    tions.

          The case of the respondent No. 2 (in CANos. 2698-99 of 1992 who
D was also the appellant in C.A.Nos. 2700-01 of 1992) .before the Central
    Administrative Tribunal was that he was junior as U.D.C. to respondent
    No. I (in all appeals). But he took his examination for the post of the
  ..Superintendent in June 1972 and passed the same on 30.10.1972. After
   ·passing the examinatiOn, a meetting of the Departmental Promotion Com•
    mittee ('DPC') was held in which he was· selected and appointed regularly
E in officiatin·g capadty tO the post of Superintendent w.e.f. 6.4.1973~
    Respondent No. ·2 was also confirmed in the substantive capacity w.e.f.
    1.11.1989: Respondent No~ 1, passed the examination in December 1973.
    He was considered for appointment as Superintendent by the DPC and
    was appointed to that post in officiating capacity w.e.f. 24.8.1974. He was
F appointed in substantive capacity to the said post w.e.f. 7.7.1990. Hence,
    respond~nt No. 2 contended before the Tribunal that he was entitled to
    seniority over respondent No. 1, in the cadre of Superintendents..

          The Tribunal relying upon two documents - a letter dated 2.8.1968
    (addressed by the Chief Engineer ofthe Department of M.P.P. &. Power of
G   the State Government to the Superintendent on the subject of training)
    and a promotion order dated 31.7.1976 (to the post of Superintendent on
    the cadre of Finance and Accounts Wing of one Narinder Pal Sharma),
    held that the passing of the qualifying examination was not a pre-requisite
    for being promoted to the post of Superintendent and that the letter dated
H   2.8.1968 was prior to the coming into operation of the 1972 Regulations.
                                        674
                          H.P.S.E.B. v. SOMDUIT UPPAL                         675

           In the two groups of appeals, viz., C.A. Nos'. 2698-99of1992 filed by A
     the 'Board' and C.A.Nos. 2700-01 of 1992 filed by the aggrieved employee
     of the Board, the short point involved in this case was whether the
     seniority in the higher post of Superintendent was to be determined on the
     basis of the date of passing the 'Subordinate Accounts Service' (S.A.S.')
     Examination or on the basis of their seniority in the lower feeding cadre B
     of Upper Division Clerks (UDC)/Assistants/Internal Auditiors/Head
     Clerks.

           Allowing the appeals of the employee, this Court

           HELD: 1.1. The promotion to the post of the Superintendent is             C
     governed by the Himachal Pradesh State Electricity Board Recruitment
     and Promotion Regulations for Ministerial Services of the Board, 1972
     which are made in exercise of powers c~nferred by section 79(c) read with
     Section 15 of the Electricity (Supply) Act, 1948. The Regulations came into
     force w.e.f. 1.7.1972. [677-B) .
                                                                                     D
           1.2. To be eligible for promotion to the post of Superintendent, the
     employee concerned must have put in a minimum of four years' service as
     UDC/Assistant/lnternal Auditor/Head Cfork at the time of appearing for
     the examination, and he must pass the examination. [677-E]

           1.3. The senionty of an employee in the cadre of Superintendents
                                                                                     E
     would depend upon the date on which he enters that cadre after satisfying
     the two conditions. The seniority in the lower feeding cadre of UDC .etc. is
     irrelevant for considering the seniority in the cadre of Superintendents
     except when both the eligible employees pass the examination on the same
                                                                                     F
.,   date. [677-F]

            1.4. The letter dated 2.8.1968 (addressed by the Chief Engineer to the
     Superintendent) and letter dated 31.7.1976 (the promotion order) are
     int.ernal communications from one officer to another and their contents
     cannot override the express provisions of the Regulations made under the        G
     Act. The contents of the letter dated 2.6.1968 at no time were adopted,
     ratified or approved by., the Board. In any case, the said letter cannot
     override the statutory regulations. [678-F,G]

          1.5. In the present case, the examination was taken and the appoint·
     ment was made under the 1972 Regulations. Further the 1973 Regulations          H



•
    676                 SUPREME COURT REPORTS (1992) SUPP. 3 S.C.R.

A do not in any manner modify or afft:ct the 1972 Regulations. The
    provisions of 1973 Regulations had not affected the position of respondent
    No. 2, as against that of respondent No. 1. Respondent No. 2 passed the
    examination earlier than respondent No. 1. [678-H]

          1.6. The Tribunal erroneously assumed that respondent No. 2, had not
B completed four years before appearing for the examination which was the
  qualifying period for such appearance. Record shows that respondent No. 2
  had served as UDC in regular capacityw.e.f. 24.2.1967 and as Head Clerk/As-
  sistant w.e.f. 19.12.1968 in an ad hoc capacity, and as officiating Head
  Clerk/Assistant w.e.f.16.2.1972. Hence on the date ofexamination, more than
C ~ve year's service was to his credit in the requisite capacity ·[679-G1
          1.7. What the Tribunal forgot was that whereas 1973 Regulations
    came into effect after April 1973, respondent No. 2, was appointed to the
    post of Superintendent on and from 6.4.1973. In any event, the 1973
    Regulations on which reliance is placed by the Tribunal would not govern
D   the present case. [679-E]

          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2698-99
    of 1992.

          From the Judgment and Order dated 9.7.1991 of the Himachal
E Pradesh Administrative Tribunal in T.A. NO. 754 of 1986 and Review
    Petition No. 23 of 1991.

                                      WITH

          Civil Appeal Nos. 2700-2701of1992.
F
         Dr. AM. Singhvi, S.K. Jain, P.K Bansal and Indra Makwana for the
    Appellant.

          Devendra Singh for the Respond~nts.

G         The Judgment of the Court was delivered by

          SAWANT,J. These are two groups of appeals, viz., C.A. Nos. 2698-99
    of 1992 filed by the Himachal Pradesh State Electricity Board (the 'Board')
    and C.A. Nos. 2700-01 of 1992 filed by the aggrieved employee of the
    Board, Shri Mehta. The short point involved in this case is whether the
H   seniority in the higher post of Superintendent is to be determined on the
                    H.P.S.E.B. v. SOMDU'IT UPPAL [SAWANT, J.]                 677

       basis of the date of passing the 'Subordinate Accounts Service' {'S.A.S.') A
       Exanlination or on the basis of their seniority in the lower feeding cadre
       of Upper Division Clerks (UDC)/Assistants/Internal Auditors/Head
       Clerks. The promotion to the post of the Superintendent is governed by
       the Himachal Pradesh State Electricity Board Recruitment and Promotion
       Regulations for Ministerial Services of the Board, 1972 (the '1972
-.     Regulations') which are made in exercise of powers conferred by Section B
       79 (c) read with Section 15 of the Electricity {Supply) Act, 1948 and which
       came into force w.e.f. 1.7.1972. Rule 8 of the 1972 Regulations provides
       that the method of recruitment to the posts under the Board shall be by
       written or oral test or by both, or by promotion. It further states that the
       method of recruitment, promotion, minimum qualifications, period of
       probation etc. for each of the Board's services shall be as set forth in C
       Appendices A & B of the 1972 Regulations. Clause 10 of Appendix A lays
       down the method of selection to the post of Superintendent. It states that
       at Superintendent level, there would be a Subordinate Accounts Service.
       The eligibility for this Service shall be passing of S.A.S. Examination. All
       UDCs having four years' service shall be eligible for appearing in the
       examination in addition to Assistants/Internal Auditors/Head Clerks. For D
       the initial constitution, however, Superintendents having three years' ser-
       vice on the Accounts side may also be considered. The said clause 10,
       therefore, makes it clear that to be eligible for promotion to the post of
     · Superintendent, two conditions have to be satisfied. The first is that the
       employee concerned must have put in a minimum of four years' service as
       UDC/ Assistant/Internal Auditor/Head Clerk at the time of appearing for E
       the examination, and the second is that he must pass the examination. It is
       obvious that no employee can be promoted to the post of Superintendent
       unless he satisfies the two conditions. Hence, the seniority of an employee
       in the cadre of Superintendents would depend upon the dat.e on which he
       enters that cadre after satisfying the two conditions. The seniority in the
       lower feeding cadre of UDC etc. is. irrelevant for considering the seniority · F
       in the cadre of Superintendents except when both the eligible employees
       pass the examination on the same date.

            2. There is no disppte that Shri D.R. Mehta who is respondent No.
      2 in the Board's appeali; viz., C.A. Nos. 2698-99 of 1992 and is appellant    G
      in C.A. Nos. 2700-01 of 1992, was junior as U.D.C. to Shri Uppal who is
      respondent No.1 in. both the groups of appeals. However, he took his
      examination for the post of the Superintendent in June 1972 and passed
      the same on 30.10.1972. After passing the examination, a meeting of the
      Departmental Promotion Committee ('DPC') was held in which he was
      selected and appointed regularly in officiating capacity to the post of       H
    678                 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A   Superintendent w.e.f. 6.4.1973. He was also confirmed in the substantive
    capacity w.e.f. 1.11.1989. As against this, respondent No. 1, Uppal passed
    the examination in December 1973. He was considered for appointment as
    Superintedent by the DPC and was appointed to that post in officiating
    capacity w.e.f. 24.8.1974. He was appointed in substantive capacity to the


                                                                                  -
    said post w.e.f. 7.7.1990. Hence, respondent No. 2, Mehta was entitled to
B   seniority over respondent No. 1, Shri Uppal, in the cadre of Superinten-
    dents.

         3. However, in the impugned decision, the Central Administrative
  Tribunal ('the Tribunal') took the view, firstly that the •passing of the
  qualifying examination was not a pre-requisite for being promoted to the
c  post of Superintendent. For this purpose, the Tribunal relied upon two
   documents. The first is a letter dated 2.8.1968 addressed by the Chief
   Engineer of the Department of M.P.P. & Power of the State Government
  to the Superintendent in his own office, on the subject of training, whereby
   the Superintendent was informed by the Chief Engineer that seniority was
D not considered for sponsoring. the candidates in undergoing the S.A.S.
  Part-I training and that" the training would not confer any special rights on
  the trainees. The second document is a promotion order dated 31.7.1976
  to the post of Superintendent on the cadre of Finance and Accounts Wing
  of one Narinder Pal Sharma wherein it is menti()ned that the promotion
  given to the said Sharma was subject to the condition that he should qualify
E in the examination within a period of three years. Admittedly, both these
  letters are internal communications from one officer to another and their
  contents cannot override the express provisions of the regulations made
  under the Act. Secondly, the letter of 2.8.1%8 is obviously prior to the
  coming into operation of the 1972 Regulations. In fact, the letter refers to
F the period when the Board itself had not come into existence and when
  the matter was being handled by the predecessor of the Board, viz.; the
  Department of M.P.P. & Power of the State Government. The contents of
  this letter at no time were adopted, ratified or approved by the Board. In
  any case, as stated earlier, the said letter cannot override the statutory
  regulations.
G
          4. The tribunal has also relied upon 1973 Regulations which came
    into effect only from April 1973. In the· present case, the examination was
    taken and the appointment was made under the 1972 Regulations. Further,
    the 1973 Regulations ·do not in any manner modify or affect the 1972
H   Regulations. Clause 8 (ii) of the ~973 Regulations reads as follows:
              H.P.S.E.B. v. SOMDUTI UPPAI.. {SAWANT, J.]                 679

        "A person who passes SAS bxam. in an earlier exam. shall                1...
        have precedence in appointment to the service over a
        person who passes in a later exam. As amongst persons
        who pass the same exam., the total length of service as
        UDC/Assistant/Divisional Accounts (sic.) shall be deter-
        mining factor in offering the appointment."
                                   ...                                          B
      The provisions of this clause in fact are against the view taken by the
Tribunal. Admittedly, in the present case, respondent No.2, Mehta passed
the examination earlier than respondent No. 1, Uppal. It was not a case of
both passing the same examination. The Tribunal, unfortunately, also did
not notice clause 15 of the 1973 Regulations which reads as follows:             C
        "Op. and after the commencement of these rules and qntil
        persons are appointed to 'the service in accordance with
        the provisions of the rules, such posts may continue to be
        held by persons appointed thereto .as if these rules have
        not come into force:"                                                   D

      5. Furthermore, what the Tribunal forgot was that whereas 1973
Regulations came into effect after April. 1973, respondent No. 2, Mehta
was appointed to the post of Superintedent on and from 6.4.1973. As stated
earlier, in any event, the 1973 Regulations on which reliance is placed by      E
the Tribunal would not govern the present case. We have already pointed
out earlier that in fact the provisions of 1973 Regulations had not affected
the position of respondent No. 2, Mehta as against that of respondent No.
1, Uppal.
                                                                                 F
      6. We also find from the impugned decision of the Tribunal that it
has erroneously assumed that respondent No. 2, had not completed four
years before appearing for the examination which was the qualifyllig period
for such appearance. The indisputed record shows that respondent No. 2
had served as UDC in regular capacity w.e.f. 24.2.1%7 and as Head
Cleric/Assistant w.eJ. 19.12.1968 in an ad hoc capacity, and as officiating     G
Head Clerk/Assistant w.e.f. 16.9.1972. Hence on the date of examinatioq,
more than five year's service was to his credit in the requisite capacity.

     7. In the circumstances, the impugned judgments of the Tribunal, viz.,
the main judgment dated 9.7.1991 and the judgment in review dated               H
    680               SUPREME COURT REPORTS (1992] SUPP. 3 ~.C.R.

A   15.11.1991 are hereby set aside and respondent No. 2, Mehta is directed
    to be given seniority over respondent No. 1, Uppal.

          The appeals are allowed accordingly. In the circumstances of the
    case, there will be no order as to costs.

    V.P.R.                                                 Appeals allowed.
                                                                              -