Supreme Court of India
PUNJAB STATE ELECTRICITY BOARD & ORS.versusGURMAIL SINGH
- Citation
- 2008 INSC 514
- Decided
- 22 April 2008
- Disposal
- Case Partly allowed
- Bench
- S B SINHA
Holding
The Board's order is not wholly illegal, but the respondent must be placed on the same LDC pay scale as the employee immediately below him, and he cannot treat his induction post as both LDC and UDC.
Summary
Gurmail Singh, a senior employee of the Punjab State Electricity Board (PSEB), was promoted to Upper Division Clerk (UDC) in 1986 and later opted for UDC as his induction post, thereby losing the revised Lower Division Clerk (LDC) pay scale that his junior colleagues received. He filed a writ petition challenging the Board's circulars and the denial of the revised LDC scale, alleging violation of the principle of stepping up under Fundamental Rule 22(1)(a) and equality under Article 14. The High Court allowed his petition, but the Supreme Court held that the Board's circulars were within its statutory power and not ultra vires, yet the respondent was being paid less than his juniors. Using its extraordinary powers under Article 142, the Court directed that the respondent be placed on the same LDC pay scale as the employee immediately below him, while clarifying that he cannot treat his induction post as both LDC and UDC. The appeal was therefore partly allowed, setting aside the High Court's order.
Issues considered
- The validity and jurisdiction of the PSEB's circulars and scheme for time‑bound promotion.
- Whether the respondent is entitled to the revised LDC pay scale despite having opted for UDC as his induction post.
- Whether the High Court erred in granting relief by ignoring Article 14 and the principle of stepping up under Fundamental Rule 22(1)(a).
- Whether the Board's order is illegal or ultra vires of the Electricity (Supply) Act, 1948.
- Whether the Supreme Court should exercise discretionary jurisdiction under Articles 136/142 in this service matter.
Legislation cited
- Constitution of Indias. Article 136, s. Article 14, s. Article 142
- Electricity (Supply) Act, 1948s. 15, s. 79(c)
- Fundamental Ruless. Rule 22(1)(a)
Subjects
Service lawPay scaleTime‑bound promotionFundamental Rule 22Stepping upEqualityArticle 14Electricity BoardCircularsInduction postJudicial review
Judgment
(2008] 6 S.C.R. 868
A PUNJAB STATE ELECTRICITY BOARD & ORS.
v.
GURMAIL SINGH
(Civil Appeal No. 2898 of 2008)
APRIL 22, 2008
B
[S.S. SINHA AND V.S. SIRPURKAR, JJ.]
Service Law:
Fundamental Rule 22(1)(a} - Principle of stepping up of
C pay - Applicability of - Conditions of service - Scheme for
time bound promotion to higher scale of pay- Circulars issued
by Appellant-Board - Employees given the option to opt for
one or the other induction post - Board did not release revised
LDC scale to Respondent because of his promotion as UDC
D - Respondent had opted for UDC as his induction post - Writ
petition filed by Respondent allowed by High Court - On
appeal, held: Respondent might have made a mistake in
giving a wrong option but in implementation of the policy
decision of the Board, Respondent was receiving amount far
E less than that received by his juniors - Though order of the
Board cannot be said wholly illegal and without jurisdiction
warranting interference at the hands of High Court, but,
Respondent directed to be put at the same scale of pay from
the same day which was being paid to the employee next below
F him in the post of LDC - Electric Supply Act, 1948 - Punjab
State Electricity Board Ministerial Services (Class Ill)
Regulations, 1985 - Constitution of India, 1950 -Art.142.
Constitution of India, 1950 - Article 14 - Constitutional
scheme of equality - Held: Cannot be applied in illegality
G
A scheme for grant of time bound promotion to a
higher scale of pay was formulated by the Appellant-
Board wherefor a circular was issued on 23-4-1990. By
circular dated 3-10-1990, pay scales of the Lower Division
H 868
. PUNJAB STATE ELECTRICITY BOARD & ORS. v. 869
GURMAIL SINGH
).
Clerks (LDCs) was revised w.e.f. 1.1.1986. In continuation A
of the circular dated 3-10-1990, the Board issued a memo
dated 7-10-1992 whereby it was clarified that the LDCs
who had been promoted as Upper Division Clerks (UDCs)
would not be given the revised scale of LDCs. Another
circular was issued by the Board on 18-7-1994 directing B
that the LDCs promoted as UDCs would not be given any
""' option to decide UDC/LDC as their induction post, but
some relaxation may be given while considering
individualcases who had been promoted after 1-1-1986.
Yet another Circular was issued on 31-10-1995 in terms c
whereof, it was clarified that for grant of time bou.nd
promotional scheme, an employee was entitled for benefit
of one induction post only.. during
.
his whole service.
Respondent who had been promoted as UDC w.e.f.
5-7"1986 made. representation to the Board stating that D
he had not been released revised LDC scale because of
the promotion, as such LDCs junior to him were getting
higher scale than him. By letter dated 29-1 ~1996, he opted
for UDC as his induction .post, stating that he had
completed 9 years of service as UDC on 4-7-1995 and E
therefore prayed that.he be given 9 years time bound scale
of UDC from 5-7-1995 and his salary be also settled
accordingly. Appellaht-Board rejecte~ the representation
of Respondent. Respondent filed writ petition questioning
the legality and/or validity of the said order which was F
allowed by the High Court. Hence the present appeal.
.-'!
,' · . Partly allowing the. appeal, the Court
HELD:1.1. Representations had been received from
various employees in response to the Circular dated 18-
G
7-1994 opting for retaining the post of LDC as induction
post, vis-a-vis the hardship which would be faced by them.
Each such representation had been considered on its own
merits. Also another circular was issued in 1992 with a
view to remove the anomaly between scales of pay of LDC
H
870 SUPREME COURT REPORTS [2008] 6 S.C.R.
A and UDC. The option granted, however, was in respect of
those who had been promoted before 1.1.1986. No such
option was granted for those who had been promoted
after 1.1.1986. It may seem unfortunate but that was the
legal position. This Court would, however, assume that
B despite absence of such a circular, the employees could
give an option on their own. Such an option could be
exercised even while making a representation for the
purpose of consideration of the Board on the ground of
hardship. Unfortunately, Respondent thought it fit to opt
c for the post of UDC as his induction post. [Paras 21, 22,
23] [884-A-E]
1.2. An employee given the option to opt for one or
the other induction post or one or the other scheme is
supposed to know his right or benefit. An employee
D cannot be permitted to opt for one or the other scheme
again and again. Schemes are framed for the benefit of
the employees ordinarily as a one time measure. If by
reason of a wrong option, an employee suffers, he himself
is to be blamed therefor and not the employer. Ordinarily,
E the power of judicial review should not be exercised in a
case of this nature. [Paras 24, 26] [884-G; 885-A; 886-D]
Meghalaya State Electricity Board & Anr. v. Jagadindra
Arjun (2001) 6 SCC 446; Sohan Singh Sodhi v. Punjab State
Electricity Board (2007) 5 SCC 528; PSEB & Ors. v. Surinder
F Kumar RSA No.819 of 1989; Punjab State Electricity Board
& Ors. v. Supinder Kumar Modgil, Order dated 31-3-2000 in
SLP (C)_l2000 (CC No.211912000) and Chanan Singh v.
Punjab State Electricity Board, Patiala RSA No.337 of 1988-
referred to.
G
2. The High Court failed to take into consideration,
the legal principle that Article 14 being a positive concept,
constitutional scheme of equality cannot be applied in
illegality. The High Court should have considered the effect
of the circulars vis-a-vis validity or legality thereof. The
H
PUNJAB STATE ELECTRICITY BOARD & ORS. v. 871
GURMAIL SINGH
matter might have been different if the said circulars were A
issued without jurisdiction or otherwise found to be
unconstitutional or ultra vi res the provisions of Electricity
(Supply) Act. [Paras 26, 27] [886-D, E, F]
State of Punjab & Anr. v. Ku/dip Singh & Anr. (2002) 5
SCC 756- referred to. B
3.1. The present case is not a fit case where this Court
should exercise its discretionary jurisdiction under Article
136 of the Constitution. Respondent is a well-qualified
person. He has passed the departmental examination. He C
is in service for more than 32 years. He was promoted to
the post of Upper Division Clerk as far back as on 5. 7.1986.
He might have made a mistake in giving a wrong option
but it has not been denied or disputed that in the
implementation of the policy decision of the Board dated
3.10.1990, respondent had been receiving an amount D
which is far less than the one which was being received
by his juniors. This Court, having regard to its extra-
ordinary power under Article 142 of the Constitution, may
also pass some order which would meet the ends of
justice, not on ipse dixit but on the premise that even in E
terms of Fundamental Rules 22(1 )(a), there exists a
provision for stepping up of pay. The said principle would
be applicable when a junior to a senior officer belonging
to the same category and the post from which they have
been promoted and in the promoted cadre, the junior F
officer on being promoted later than the senior, gets a
higher pay. [Para 28] [886-F, G; 887-A-D]
3.2. Although the order of the Appellant-Board cannot
be said to be wholly illegal and without jurisdiction
warranting interference at the hands of the High Court G
but, Respondent should be put at the same scale of pay
from the same day which was being paid to the employee
who was next below him in the post of LDC. However, the
Respondent shall not be entitled to treat his induction post
both as LDC and UDC. The amount payable to - H
872 SUPREME COURT REPORTS (2008] 6 S.C.R.
A Respondent in terms of these observations may be
recalculated. [Para 30] [889-C, D, E]
Union of India & Ors. v. P Jagdish & Ors. (1997) 3 SCC
177 and Union of India & Anr v R. Swaminathan & Ors. (1997)
(7) sec 690 - referred to.
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2898 of 2008.
From the Judgment and Order dated 6.10.2003 of the High
Court of Punjab and Haryana at Chandigarh in CWP No. 18357/
c 2002.
WITH
Civil Appeal No. 2899 of 2008.
Satinder S. Gulati, Kamaldeep Narang and Dr. ·Kailash
D Chand for the Appellants.
Rani Chhabra, Vipin Gogia and Jaspreet Gogia for the
Respondent.
The Judgment of the Court was delivered by
E
S.B. SINHA, J. 1. Leave granted ..
2. These two appeals, involving similar questions of fact
of law, were taken up for hearing together and are being
disposed of by this common judgment.
F
3. The factual matrix of the matter, however, would be ,.
noticed from the case of Gurmail Singh.
Appellant Board is constituted and incorporated under the
Electricity (Supply) Act, 1948. It is entitled to frame regulations
G incorporating terms and conditions of service of its employees
in terms of Section 79 (c) of the Act. The regulations so framed
are known as Punjab State Electricity Board Ministerial Services
(Class Ill) Regulations, 1985.
4. Respondent herein was appointed as a Steno-Typist
H on or about 28.8.1976. There existed a common cadre of the
PUNJAB STATE ELECTRICITY BOARD & ORS. v 873
GURMAIL SINGH [S.B. SINHA, J.]
Steno-Typist and.Lower Division Clerk. He was appointed on a A
scale of pay of Rs.110-250 which was revised to Rs.400-600
w.e.f. 1.1.1978 and Rs.950-1800 w.e.f. 1.1.1986. On the said
·post, he was placed on a scale of pay of Rs.1200-2200/-.
A scheme for grant of time bound promotion to a higher
scale of pay was formulated by the Board wherefor a circular B
bearing No.17/90 was issued by its Finance Department on
23.4.1990. In terms of the said scheme, promotional scale was
to .be given to the employees upon completion of 9/16 years of
regular service. The revision in the scale of pay of LDCs was
directed by an order dated 3.10.1990 w.e.f. 1.1.1986. The said C
revision of scale of pay, however, was to be granted on the basis
of total number of years of service as LDC in the said cadre.
The same was, however, implemented in respect of three
categories of employees, namely, who have not been granted
any promotion despite completion of minimum 10 years of D
service as LDC and Senior Clerk or five years of service as
LDC and remaining of the LDCs not falling in the first two
categories. The ratio for grant of the said promotional scale
was fixed at 40:40:20 respectively. Material part of the said
circular is as under : E
"In continuation to this officer order Nol.129/Fin/PRC-1988
dated 11.11.1988, No.147/ Fin/PRC-1988 dated 21.03.89,
No.168/Fin/PRC-1988 dated 15.6.89, No.169/Fin/PRC-
1989 .dated 26.6.8!1, No.181/Fin/PRC-1988 dated
20.10.89, No.189 Fin/PRC-1988 dated 19.01.1990, F
No.190 Fin/PRC-1988 dated 23.01.1990, No.211 Fin/
PRC-1988 dated 4. 7 .1990 and office order No.271 Fin/
PRC-1988 dated 13.8.1990, the Punjab State Electricity
Board is pleased to further revise the scales of pay of the
following categories of employees w.e.f 01.01.1986 as G
under:
xxx xxx xxx
3. The Punjab State Electricity Board has also decided
.that (i) ... (ii) For UDCs joining PSEB, as a result of either H
874 SUPREME COURT REPORTS [2008] 6 S.C.R.
A through direct recruitment or by promotion from amongst
LDCs after passing the Departmental Accounts
Examination, the date of joining as UDC will be taken as
the date of first induction in the PSEB for the purpose of
grant of 9/16 years time bound scales."
B 5. On or about 7.10.1992, the Board in continuation of
Finance Circular No.58/90 dated 3.10.1990 issued a memo
on or about 7.10.1992 whereby and whereunder it was clarified
that in the list of LDCs circulated by the Board, the names of
LDCs who had been promoted as UDCs included, then those
C UDCs would not be given the revised scale of LDCs stating :
"In accordance with the above instructions, a list of
employees to whom scale of Junior Assistant (1500-2640)
is payable w.e.f. 01.01.1988 has been prepared by this
office and is being sent to your office for further action.
D
While preparing this list, LDCs who have been promoted
upto 31.12.87 their names have not been included in this
list. Still if any employees has been promoted to higher
post (UDC/Stenographer Divisional Accountant, Revenue
Accountant) or have been appointed by direct recruitment
E by selection by the Board and have joined that post or the
service or any employees have been terminated or have
left the Board or has died but his name has been included
in the list, this scale will not be given to those employees.
Names and serial No. of all such employees be informed
F to this office.
While preparing the list due care has been taken to include
names of all LDCs who were posted, still if name of any
LDC has not been included in the list be informed to this
office along with his serial number, date of birth and date
G
of joining the Board. LDC/Steno-typist who have forgone
promotion as UDC, are not entitled to this scale.
Those steno-typists who have opted for cadre of
stenographer, they are not entitled to this scale and names
H of such employees and their serial number in the list be
PUNJAB STATE ELECTRICITY BOARD & ORS. v. 875
GURMAIL SINGH [S.B. SINHA, J.]
informed. A
While fixing of these employees in this revised scale of
1500-2640 from 01.01.88, instructions issued by the
Board from time to time be kept in view.
It is also informed that above scale granted to these LDCs B
can be reviewed by the Board."
6. Another circular was issued by the Board on or about
18. 7 .1994 directing that those LDCs who are promoted as
UDCs would not be given any option to decide UDC/LDC as
their induction post, but some relaxation may be given while C
considering individual cases who had been promoted after
1.1.1986 in the following terms :
"Thereafter Union of Employees submitted demands that
those qualified Lower Division Clerks who have been D
promoted as Upper Division Clerks after 01.01.1986 be
also given opportunity to exercise option as he been given
to Lower Division Clerks who were promoted before
01.01.86.
The Board has considered the entire case and has decided E
that they cannot be given opportunity to exercise such
option because Lower Division Clerks have already
accepted three pay scales structure on the pattern of Punjab
Government and they were working as Lower Division
Clerks on 01.01.86 and not as Upper Division Clerks. F
However, keeping in view the hardship to the employees,
it has been decided that case of Lower Division Clerks
promoted as Upper Division Clerks after 01.01.86 on
passing departmental examination will not be considered
on merits.
G
All such cases will be considered by the competent official
by giving relaxation in rules and the case will be referred
with self-contained proposal to the Secretary Finance
Department, Punjab State Electricity Board, Patiala along
with service record of the employee and financial burden H
37f, SUPREME COURT REPORTS [2008) 6 S.C.R.
A involved through Head of the Department.
It is submitted that all concerned employees be informed
about this decision of the Board so that employees may
send their case for consideration by the competent official.
Such cases be disclosed within four months by the
B employees so that proper decision be taken in the case."
7. Respondent made a representation to the Board. He,
therein, did rrot state that his induction post should be treated
as LDC. He, in fact, preferred UDC as his induction post by a
c letter dated 8. 7.1995. In terms of the said letter, 1.1.1986 was
fixed as the cut off date. A decision was taken in favour of the
employees. However, they were required to make their
representation within the timeframe fixed thereunder. On or about
15.11.1994, the respondent filed a representation stating :
D "It is respectfully submitted that the Director Personnel
PSEB Patiala Vide memo No.51385/51785/ECM-161
dated 7.10.92 granted scale of 1500-2640 w.e.f. 01.01.88
to LDCs having seniority No.3121 to 3651 and my name
was at serial No.270 (Seniority No.3461) in this list.
E However, I was not released this scale because of
promotion as UDC from 05.07.86, as such LDCs who are
junior to me and having seniority No.3462 to 3651 have
been granted pay scale of Rs.1500-2640 from 01.01.88
i.e. higher scale than me and were having more basic pay
than me. After that the Board has granted scale of Rs.1640-
2925 to the LDCs on completion of 16 years of service
and LDCs junior to me are getting this scale and more
salary than me.
Because of these pay anomalies, the Board has granted
opportunity to the LDCs promoted as UDC before
01.01.1986 to exercise option to keep their induction post
as LDC or UDC. Now through letter under reference, the
Board has decided not to grant such option to the LDC
promoted as UDC after 01.01.1986 but it was decided
that .hardship caused to these employees will be
PUNJAB STATE ELECTRICITY BOARD & ORS . v. 877
GURMAIL SINGH [S.B. SINHA, J.)
considered on merits. A
It is, therefore, .submitted that hardship caused to me by
drawing higher pay scale and my basic pay by employees
junior to me be removed and I be granted pay scale of
Rs.1500-2640 w.e.f. 01.01.88 and pay scale of Rs.1640-
2925 on completion of 16 years service and my salary be 8
fixed accordingly because I have· been bearing this
hardship for the last 6/7 years. Kindly remove this hardship
at an early date."
· 8. Another Finance Circular was issued on "31.10.1995 in c
terms whereof, it was clarified that for giving the benefit of time
bound promotional scheme after 9/16/23 years of regular
service, the induction post is to be treated as under:
'
"After considering this case and as per scheme made by
the Board vi de office order No.197/Fin/PRC-988 dated D
23.4.1990, it is clarified specially that one employee is
entitled for getting benefits of one inductiori postor;ily during
his whole service. On the points raised by some officers
the clarification is being given as per following :
I. _Those Divisional Accountantswho are getting 8 years
E
proficiency step up and 9 years first time bound
promotional scale are covered within 25% quota as
SAS Accountant and there.after they pass SAS Part-
II examination, in such case .which. post .is to be
considered as their induction post and from which F
,,. date?
Those employees who have taken benefit of one
induction post for 9 years promotional benefit, the
said post would be considered as his induction post.
.G
.11. Those Divisional Accountants who a.tter taking benefit
of 9 years first time bound promotional scale and
thereafter clear the four papers of SAS Part-II and
SA Accountant (in qualified quota) and get promotion,
whether they should again be considered as SA H
-·
878 SUPREME COURT REPORTS [2008) 6 S.C.R.
A Accountant and be given said induction post after 91
16 years first and second promotional scale or their
post of Divisional Accountant be considered as
induction post for grant of time bound promotional
scale after 16 years?
B In such cases also the benefits of induction post of
Divisional Accountant are entitled for.
Ill. Those Junior Scale Stenographers who are posted/
promoted to the post of Steno-typist after passing
c Stenography test, is their post be considered as their
induction post?
In such cases the junior scale stenographer is to be
considered as induction post subject to the condition
that the concerned employee has not taken benefit
D of 9/16 years time bound promotional scale of steno-
typist."
9. Yet again, the respondent by a letter dated 29.1.1996
opted for UDC as his induction post, stating :
E "With respect it is requested that I joined as Upper Division
Clerk on 5.7.1986 and in this way I completed 9 years of
my service as Upper Division Clerk on 4.7.1995.
Therefore, I be given 9 years time bound scale of Upper
Division Clerk from 5. 7.1995 and my salary be also settled
F according to that."
10. Respondent, thereafter, raised an industrial dispute.
The Board was directed to consider his representation pursuant
whereto and in furtherance thereof by an order dated
30.10.2002, representation of the respondent was rejected,
G inter alia, on the premise that :
(i) He had not completed 10 years of service as LDC
and, thus, did not fall in the upper ratio of 40% of
LDCs;
H (ii) He had already been promoted w.e.f. 5.7.1986;
PUNJAB STATE ELECTRICITY BOARD & ORS. v. 879
GURMAIL SINGH [S.B. SINHA, J.]
(iii) He had already taken 9 years time on promotional A
scale keeping his induction post as UDC on
8.7.1995; and
(iv) By reason of FC No.34/95 he was entitled to the
benefit of revision of scale of pay only at one induction
level. B
11. The writ petition filed by the respondent questioning
the legality and/or validity of the said order has been allowed by
reason of the impugned judgment.
12. Mr. Gulati, learned counsel appearing on behalf of the C
respondent,. in support of the appeal, inter alia, would submit :
(if· The High Court committed a serious error insofar as
·· it failed to take into consideration that the Board, in
exercise of its regulation making power, was entitled
0
not only to make regulations but also to issue circulars
from time to time. As the validity of the circular letters
issued by the Board had not been questioned, the
impugned judgment is wholly unsustainable.
(ii) The High Court failed to consider the purport of the E
circulars and in any event having not quashed any of
them was not correct in granting the reliefs in favour
of the respondents herein.
13. Ms. Rani Chhabra, learned counsel for the respondent,
on the other .hand, would submit that · F
i) · Other employees having been granted the benefit of
requisite option, there was absolutely no reason why
the respondent should be discriminated against;
ii) As the Punjab High Court, in a similar set of facts G
· had granted relief to the employees which having
been upheld by this Court, there is no reason as to
why the respondent should have been treated
differently;
H
880 SUPREME COURT REPORTS [2008] 6 S.C.R.
A iii) As despite the aforementioned judgment of the High
Court, a further option was denied to the respondent,
the High Court with a view to avoid anomaly was
right in passing the impugned judgment;
(iv) In any event, the benefit of circular letter dated 48/92
B having been granted to a large number of employees
and, in fact, in the case of Gurjant Singh, he having
been allowed to opt both LCD as also UDC as
induction posts, there is no reason as to why the
similar benefit should not be granted to the
c respondent.
14. Mr. Gogia, learned counsel for the respondent in the
connected matter, would submit that the case of the respondent
stands on identical footing with that of Gurjant Singh who was
junior to him and, thus, it would lead to an anomalous situation
0
that he shall draw a higher salary than the respondent.
15. Indisputably, the Board being a statutory authority was
entitled to frame its own regulations. Section 15 of the Electricity
(Supply) Act, 1948 empowers the Board to appoint Secretary
E as also such other officers and employees as may be required
to enable it to carryout its functions under the Act. Section 79 of
the Act provides for a regulation making power. Clause (c) of
Section 79 thereof empowers the Board to make regulation with
regard to the duties of officers and other employees as also
F their salaries, allowances and other conditions of service. It is
not in dispute that, in exercise of the said power, the Board has
made 1985 Regulations, Regulations 13 whereof reads as
under:
"PAY OF MEMBERS OF SERVICE
13. Members of the service shall be entitled to such scales
to pay as may be sanctioned by the Board from time to
time. The scales of pay at present i; force in respect of
specified posts are given in Appendix-'A' ."
H 16. We may also notice the relevant portion of Appendix A
PUNJAB STATE ELECTRICITY BOARD & ORS. v. 881
GURMAIL SINGH [S.B. SINHA, J.]
to have a broad idea as regards the different scales of pay A
payable to the UDCs and LDCs :
"6. Upper Division Rs.1200-30-1560-40-2000-50-
Clerk 2200
(With initial start of Rs.1350/-)
B
7. Lower Division i) Rs.950-25-1200-30-1560-40-
Clerk 1800
(With initial start of Rs.1000/-)
ii) Rs.1500-2600 (To 40% after
10 years of service c
iii) Rs.1640-2925 (Second time
bound scale after .16 years of
service)"
The validity of the provisions of the said regulations is not D
in question. The power of the Board to issue circulars from time
to time in~upport of the matters which are not governed by the
statute or statutory regulations is also not in dispute. The Board,
as noticed hereinbefore, had been issuing such regulations from
time to time. It is now well settled that the Board, even in absence E
of any exfress provision of statute, may issue such circular.
..
17. In Meghalaya State Electricity Board & Anr. v.
Jagadindra Arjun [(2001) 6 SCC 446, it was held :
"11. As per Section 79(c), MSEB may frame regulations F
.l, not i(lconsistent with the provisions of the Act and the Rules
providing for the duties of officers and other employees of·
the Board and their salary, allowances and other conditions
of service~ It is to be stated that this is an enabling provision.
MSEB may frame regulations as provided in Section 79(c) G
of ttie Act, but in the absence of any regulations, MSEB
can lay down service conditions by administrative order/
instructions. Section 15 of the Act empowers the Board to
appoint its employees as may be required to enable MSEB
to carry out its functions under the Act except the Secretary
H
882 SUPREME COURT REPORTS [2008] 6 S.C R.
A who is to be appointedwith previous approval of the State
Government. The power to lay down service conditions by
regulations is expressly conferred upon MSEB, so it has
power to prescribe service conditions. Section 78-A also
provides that except on question of policy for which the
B State Government has issued directions, the Board is
entitled to discharge its functions prescribed under the
Act which would include appointment of staff to enable it
to carry out its functions and also lay down service
conditions. Hence, if there are no rules or regulations
C pertaining to service conditions of its employees, the same
could be prescribed by administrative order and such
power of the employer which is a statutory corporation
would be implied."
18. Yet again in Sohan Singh Sodhi v. Punjab State
D Electricity Board [(2007) 5 SCC 528), M.P. Electricity Board
(Supra) was noticed. It was stated :
"10. The power of the State Electricity Board to issue
circulars in exercise of its powers under Section 79(c) of
the Electricity (Supply) Act, 1948 is not in dispute. It has
E the power to frame regulations. If it can frame regulations,
in absence of any regulations, issuance of executive
orders is permissible in law. The power of framing
regulations prescribing conditions of service of its
employees appointed by the Board in terms of Section 15
F of the Act cannot be disputed. Thus, in absence of any
rules or regulations governing the service conditions of its
employees, issuance of administrative order is
permissible in law vide Meghalaya SEB v. Jagadindra
Arjun."
G
Power of the Board to issue circulars, therefore, was not
in dispute. The validity of the said circular letters was not in
question.
19. It is true that some anomaly stares on the face of the
H records. It furthermore appears that a learned Single Judge of
PUNJAB STATE ELECTRICITY BOARD & ORS. v. 883
GURMAIL SINGH [S.B. SINHA, J.]
the Punjab and Haryana High Court in PSEB & Ors. v. Surinder A
Kumar[RSA No.819of1989 judgment dated 19th March, 1999]
opined that the employees concerned were entitled to the benefit
of the three scales proportionately 20:40:40 with effect from
1.1.1986.
However, in that case, the employee joined the service on B
26.8.1975. He on 7.7.1983 was working as UDC but the Board
was treating him as LDC. The benefit of 16 years' service from
the date of joining as LDC was granted to him. It was in the
aforementioned situation, the employee therein was being
treated as a Lower Division Clerk. c
The special leave petition thereagainst has been
dismissed by a Bench of this Court by an order dated 31.3.2000
in Punjab State Electricity Board & Ors. v. Supinder Kumar
Modgil [SLP (C)_/2000 (CC No.2119/2000)].
D
+ 20. Our attention has further been drawn to a decision of
another learned Single Judge of the High Court in Chanan
Singh v. Punjab State Electricity Board, Patiala RSA No.337
of 1988 wherein, inter alia, it was held :
"A senior person who has proved his merit vis-a-vis the E
others in the same cadre would be placed in the lower
scale of pay while the juniors who were either not qualified
or had been found unsuitable for promotion would be
placed in higher scale of pay. Such a course of action
would be arbitrary, unfair and would even amount to denial F
.,,,
of equality of opportunity in promotion. I am reluctant to
accept any interpretation of the order of revision of pay
scales which would deny the benefit of higher scale to a
senior and result in grant of a higher scale to a junior. Mr.
Goyal points out that the grant of a higher scale to the G
extent of 50% of the posts of Head Office Assistants is not
promotion. Even if it is assumed to be so, the getting of
higher scale carries with it the pecuniary benefits. A senior
person is entitled to all those benefits which a junior in the
cadre is getting. The pay of a senior, in this case, cannot H
884 SUPREME COURT REPORTS [2008] 6 S.C.R.
A be less than that of his junior."
21. It is, however, not denied or disputed that
representations had been received from various employees in
response to the Finance Circular dated 18. 7.1994 opting for
retaining the post of LDC as induction post, vis-a-vis the hardship
B which would be faced by them. Each such representation had
been considered on its own merits.
22. We have also noticed hereinbefore that another
Finance circular was issued in 1992 with a view to remove the
c anomaly between scales of pay of LDC and UDC. The option
granted, however, was in respect of those who had been
promoted before 1.1.1986.
23. No such option was granted for those who had been
promoted after 1.1.1986. It may seem unfortunate but that was
D the legal position. We would, however, assume that despite
absence of such a circular, the employees could give an option
on theiF own. Such an option could be exercised even while
making a representation for the purpose of consideration of the
Board on the ground of hardship. Unfortunately, the respondent
E herein thought it fit to opt for the post of UDC as his induction
post. Our attention although has been drawn to the case of
Gurjant Singh, it is evident, that in terms of Finance Circular
No.34/95 dated 31.10.1995, an employee was entitled to get
the benefit of one induction post only during his entire service.
F In this behalf, Regulation 13 is also significant in the sense that
it was for the Board to fix scales of pay to which we have adverted
to hereinbefore. "
24. Respondent, however, it will bear repetition to state,
by his letter dated 29.1.1996 opted for 9 years' time bound scale
G of Upper Division Clerk from 9. 7 .1995 to which we have
adverted to heretobefore.
An employee given the option to opt for one or the other
induction post or one or the other sche:ne is supposed to know
his right or benefit. An employee cannot be permitted to opt for
H
PUNJAB STATE ELECTRICITY BOARD & ORS. v. 885
GURMAIL SINGH [S.B. SINHA, J.]
one or the other scheme again and again. Schemes are framed A
for the benefit of the employees ordinarily as a one time
measure. If by reason of a wrong option, an employee suffers,
he himself is to be blamed therefor and not the employer.
25. In State of Punjab & Anr. v. Ku/dip Singh & Anr. [(2002)
5 SCC 756], the power of the Board to issue circulars was B
__.,.
reiterated, stating :
"9. From the contents of the two circulars, it is manifest
that an employee in order to be eligible to get the selection
grade pay has to complete 15 years' of service and he is c
not to be given such scale of pay before he fulfils the said
eligibility criteria. It follows as a consequence that no
employee can claim selection grade pay before completing
15 years of service on any ground including the ground
that an employee junior to him has already been given
D
such grade of pay. The position is further clarified in the
+ circular issued in May 1987 wherein it is provided that in
the event of a junior employee getting the selection grade
pay earlier, the post in the said grade may be kept vacant
for the senior employee who may be given the benefit of
the pay prescribed for the selection grade pay only after E
he completes 15 years of service. The interest of the senior
employee in such cases is safeguarded by making the
provision that the inter se seniority between the two
employees will remain undisturbed despite the junior
employee getting the selection grade pay earlier than the F
~
)'. senior employee.
10. In view of the position communicated in the circulars
the claim of an employee for a selection grade post was
to be dealt with only in accordance with the provisions in
G
the circular. The reasons stated in the judgment/order of
the High Court that the respondents were entitled to the.
higher grade paywith effect from 1-1-1978 as employees
junior to them were granted such pay by that date is
extraneous and irrelevant for the purpose. The High Court
H
886 SUPREME COURT REPORTS [2008] 6 S.C.R.
A overlooked the provisions in the circulars while directing
the appellants herein to grant selection grade pay to the
respondents before they completed 15 years of service.
The High Court was clearly in error in issuing a writ of
mandamus apparently against the government circulars
B which were binding on the parties. The judgment/order
passed by the High Court is, therefore, unsustainable. ~-
Accordingly, the appeal is allowed, the judgment/order is
set aside and the writ petition filed by the respondents is
dismissed. It is made clear that if the respondents have
c already drawn any amount in pursuance of the judgment/
order of the High Court, the same will not be recovered
from them."
26. Here also the High Court had failed to take note of the
effect and purport of the said circular.
D
Ordinarily, the power of judicial review should not be
exercised in a case of this nature.
Furthermore, the High Court failed to take into
consideration, the legal principle that Article 14 being a positive
E concept, constitutional scheme of equality cannot be applied in
illegality.
27. The High Court, therefore, should have considered the
effect of the circulars vis-a-vis validity or legality thereof. The
matter might have been different if the said circulars were issued
F without jurisdiction or otherwise found to be unconstitutional or
ultra vires the provisions of Electricity (Supply) Act. "
28. Having, however, held so, the question which arises is
whether it is a fit case where we should exercise our discretionary
jurisdiction under Article 136 of the Constitution of India. We
G
think we should not. Respondent is a well-qualified person. He
has passed the departmental examination. He is in service for
more than 32 years. He was promoted to the post of Upper
Division Clerk as far back as on 5.7.1986. He might have made
a mistake in giving a wrong option but it has not been denied or
H
PUNJAB STATE ELECTRICITY BOARD & ORS. v. 887
GURMAIL SINGH [S.8. SINHA, J.]
disputed that in the implementation of the policy decision of the A
Board dated 3.10.1990, respondent had been receiving an
amount which is far less than the one which was being received
by his juniors.
In the case of Gurdeep Singh, we have seen that whereas
the representation of his juniors had been allowed, his B
representation had been rejected. This may meet the
requirements of law but we, having regard to our extra-ordinary
power under Article 142 of the Constitution of India, may also
pass some order which would meet the ends of justice. We say
so not on ipse dixit but on the premise that even in terms of C
Fundamental Rules 22(1 )(a), there exists a provision for
stepping up of pay. The said principle would be applicable when
a junior to a senior officer belonging to the same category and
the post from which they have been promoted and in the
promoted cadre, the junior officer on being promoted later than D
the senior, gets a higher pay.
Technically the same may or may not be permissible but
we may notice that this Court in Union of India & Ors. v. P
Jagdish & Ors. [(1997) 3 sec 177] applied the same principle,
stating: E
"This being the principle of stepping up contained in the
Fundamental Rules and admittedly the respondents being
senior to several other Senior Clerks and the respondents
having been promoted earlier than many of their juniors F
who were promoted later to the post of Head Clerks, the
principle of stepping up should be made applicable to the
respondents with effect from the date their juniors in the
erstwhile cadre of Senior Clerks get promoted to the cadre
of Head Clerks and their pay was fixed at a higher slab G
than that of the respondents. The stepping up should be
done in such a way that the anamoly of juniors getting
higher salary than the seniors in the promoted category of
Head Clerk would be removed and the pay of the seniors
like the respondents would be stepped up to a figure equal H
888 SUPREME COURT REPORTS [2008] 6 S.C.R.
A to the pay as fixed for their junior officer in the higher post
of Head Clerk. In fact the Tribunal by the impugned order
has directed to apply the principle of stepping up and we
see no infirmity with the same direction subject to the
aforesaid clarifications. This principle of stepping up which
B we have upheld would prevent violation of equal pay for
equal work but grant of consequential benefit of the
difference of salary would not be correct for the reason
that the respondents had not worked in the post to which
35% [sic Rs.35 as] special pay was attached in the lower
c cadre. But by reason of promotion the promotee-juniors
who worked on the said posts, in fact, performed the hard
duties and earned special pay. Directions to pay arrears
would be deleterious to inculcation of efficiency in service.
All persons who were indolent to share higher
responsibilities in lower posts, on promotion would get
D
accelerated arrears that would be deleterious to efficiency
of service."
29. It is not a case where the junior has been getting a
higher pay because of his earlier officiation in the higher post
E by way of officiating promotion. We may notice that in such an
event, this Court in Union of India & Anr. v. R. Swaminathan &
Ors. [(1997) (7) SCC 690], opine~:
"2. The aggrieved employees have contended with some
justification that local officiating promotions within a Circle
F have resulted in their being deprived of a chance to
officiate in the higher post, if such chance of officiation
arises in a different Circle. They have submitted that since
there is all-India seniority for regular promotions, this all-
India seniority must prevail even while making local
G officiating appointments within any Circle. The question is
basically of administrative exigency and the difficulty that
the administration may face if even short-term vacancies
have to be filled on the basis of all-India seniority by calling
a person who may be stationed in a different Circle in a
H region remote from the region where the vacancy arises,
PUNJAB STATE ELECTRICITY BOARD & ORS. v. 889
GURMAIL SINGH [S.B. SINHA, J.]
and that too for a short duration. This is essentially a matter A
of administrative policy. But the only justification for local
promotions is their short duration. If such vacancy is of a
long duration there is no administrative reason for not
following the all-India seniority. Most of the grievances of
the employees will be met if proper norms are laid down B
for making local officiating promotions. One thing, however,
is clear. Neither the seniority nor the regular promotion of
th"ese employees is affected by such officiating local
arrangements. The employees who have not officiated in
the higher post earlier, however, will not get the benefit of c
the proviso to Fundamental Rule 22."
30. Although the order of the Board cannot be said to be
wholly illegal and without jurisdiction warranting interference at
the hands of the High Court but, we are of the opinion that the
respondents should be put at the same scale of pay from the D
same day which was being paid to the employees who was
next below him in the post of LDC. We would, however, clarify
that the respondent shall not be entitled to treat his induction
post both as LDC and UDC. The amount payable to the
respondent in terms of these obseNations may be recalculated E
within a period six weeks.
31_ To the aforementioned extent, the appeals are allowed.
In the facts and circumstances of the case, there shall be no
order as to costs.
F
B.B.B. Appeal partly allowed.
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