Holding

Regulation 7(iv)(b) gives the advantage of advance increments to all directly recruited engineers, and its second part is a limited proviso applicable only to those from U.P. or Central Government departments, so the respondent is entitled to the seniority as held by the Tribunal.

Summary

The respondent, P.L. Kelkar, was directly recruited by the U.P. State Electricity Board as an Assistant Engineer in 1964 and was granted nine advance increments because of his prior experience, whereas other engineers received only two. The Board framed the Service of Engineers (Integration and Seniority) Regulations, 1976, wherein Regulation 7(iv)(b) allowed engineers to receive seniority equal to the number of advance increments, but not beyond the date of their initial regular appointment in a U.P. or Central Government department. After amending the regulation to replace "other organisations" with "U.P. or Central Government Department," the Board placed Kelkar below other superintending engineers in the seniority list. Kelkar challenged this, and the Public Services Tribunal held that he should be deemed to have joined the Board in 1957, granting him seniority based on his seven extra increments. The High Court upheld this decision. The Supreme Court examined the construction of Regulation 7(iv)(b) and held that its first part applies to all directly recruited engineers, while the second part is merely a proviso limited to those from U.P. or Central Government departments, not excluding others. Consequently, Kelkar’s seniority as determined by the Tribunal was affirmed and the appeal dismissed.

Issues considered

How should Regulation 7(iv)(b) of the U.P. State Electricity Board Service of Engineers (Integration and Seniority) Regulations, 1976 be construed, particularly the effect of its amendment replacing "other organisations" with "U.P. or Central Government Department"?
Whether the respondent, who received nine advance increments, is entitled to seniority equal to the number of extra increments (seven years) and backdated service from 1957.

Legislation cited

Electricity (Supply) Act, 1948s. 79(c)

Subjects

seniorityadvance incrementsservice integrationinterpretation of regulationspublic service tribunalconstruction of statutory provisionelectricity board

Judgment

-
U.P. STATE ELECTRICITY BOARD, LUCKNOW
.',A A
v.
P .L. KELKAR, ETC. ETC.

MAY 7, 1987

[A.P. SEN AND V. KHALID, JJ.] B

-
"• ..
U. P. · Electricity Board Service of Engineers (Integration and
Seniority) Regulations, 1976-Regulation 7(iv)(b)-Directly recruited
Engineers--Seniority of-Advance increments allowed at the time of
recruitment-Advantage of-Whether to be taken into account while
determining the seniority.
c
The first respondent in the Appeal, a Superintending Engineer,
-. ~ was directly recruited by the U.P. Electricity Board as an Assistant
Engineer on October 7, 1964. He was given nine advance increments by
reason of his varied experience in different governmental and other
organisations, as against two advance increments given to others. The D
petitioners in the connected special leave petition also working as
~
Superintending Engineers were Assistant Engineers in the Irrigatien
y and Power Department and were placed on deputation with the Electri-
city Board by the State Government from the year 1960 onwards, and
were confirmed as Assistant Engineers with effect ·from April 1, 1975.
There was no seniority list of Assistant Engineers in the Board nor were E
there any rules of seniority at the time when the first respondent joined
service.
--~
The Electricity Board, in exercise of the power conferred under
section 79(c) of the Electricity (Supply) Act, 1948 framed the U.P.
Electricity Board Service of Engineers (Integration and Seniority) F
Regulations 1976. ~egulation 7(iv)(b) provided that "while determining
the seniority under clauses (ii) and (Iii), Engineers directly recruited by
the Board before the commencement of these regulations shall be given
advantage of as many years of service as was the number of advance
increments which were allowed to them at the time of recruitment by
the Board." It also provided that "in doing so, no officer shall, how- G
ever, be given advantage beyond the date of his initial regular appoint·
j. "r ment in the Government department or the other organisations."

The Board amended the regulation to remove certain anomalies
and to give effect to the intention of the Board in framing the rule of
seniority. The amended regulation substituted the words "U.P. H
335
-
336 SUPREME COURT REPORTS [1987) 3.S.C.R.

A Government or Central Government Department in consideration of
the service for which advance increments were so allowed."

The Board, in accordance with the amended regulation, pub-
lished the integrated seniority list in which the name of the first respon-
dent figured at SI. No. 12 below other officers working as Superintend-
B ing Engineers including the petitioners in the connected special leave ~·
•-
petition.

The first respondent made a representation to the U.P. Services
Tribunal challenging the amended regulation which was allowed. The
Tribunal held that in terms of Regulation 7(iv)(b) of the Regulations,
C the first respondent having been granted seven advance increments was
>
entitled to the benefit of as many years of service as the number of •
advance increments given to him at the time of his recruitment.
--f

A batch of writ petitions seeking to quash the order of the Tribunal
was filed in the High Court, which upheld the order of the Tribunal.
ID
The Appeal by special leave by the Electricity Bllard, the con- )'
nected Special Leave Petition of the aggrieved petitioners and the Writ
Petition challenged the construction and application of Regulation
7(iv)(b).

E Dismissing the Appeal, the Special Leave Petition and the Writ
Petition, the Court

HELD: (1) Regulation 7(iv)(b) of the U.P. State Electricity Board of
Service of Engineers (lntPgration and Seniority) Regulations, 1976 com-
prises of two parts. The first part referred to the advantage of advance
F increments. This advantage is based on special qualification and past
experience and its consequent effect on seniority. The Regulation before
its amendment, mentioned 'Government departments or other organi·
sations' but after its amendment it was changed to 'in the U.P. or
Central Government Department.' This change showed a deliberate
attempt to deny its benefit to employees who came from service not ~ ...
G comprised in either U.P. or Central Government Departments. It would '"!
be neither just nor fair to give a limited meaning to the second part of the
amended regulation and thereby to deny its benefit to those Engineers
who came from other departments or corporations etc. [343D-F; 344B)

2. The first part of the regulation does not speak of Engineers in the
H U.P. or Central Government Departments. It speaks only of Engineers

11-,.
...,,

U.P. STATE ELECT. BOARD v. P.L. KELKAR 337

directly recruited by the Board before the commencement of the regula- A
tion, which expression takes In, Engineers who came into the service of
the Board from all sources. It would not be proper to completely
eliminate Engineers who came from other sources from the benefit of
the regulation giving a restricted meaning to the expression 'in doing
so'. (3438; 344A]
• B
3. The Board's advertisement in the instant case, inviting applica-
tions provided higher start for those having special qualifications and
experience irrespective of the source of the service held by them. The

-
second part of the regulation has, therefore, to be construed only as a
proviso to the first part confining its scope to the employees of the U.P.
as well as Central Government Departments and not to affect the gener- c
ality as contemplated in the first part. [344B)

4. The Tribunal was right in holding, and the High Court in agree-
ing with it, that the second part was in the natnre of proviso limited to
persons who had been in service of either U.P. or other Central Govern-
ment Departments and who had been given advance increments in D
consideration of such service. [344G-H)

S. In the instant case, the first respoodent was given nine increments
taking into consideration his special qualification and experience as
against two increments common to all, and thus, giving him seven extra
increments. It is apparent that if these extra increments on the basis of E
his experience and special qualification did not carry with it seniority in
-- ,.+.. the Board, he would not have either applied or accepted the job. It
cannot be assumed that he would have joined the Board willingly as a
new entrant. Under these circumstances. the Tribunal was right in
holding that the first respondent should be deemed to have been
appointed with effect from October 7, 1957, giving him the advantage F
of extra increments under the second part of Regulation 7(iv)(b). The
seniority will have to be rIXed in accordance with the number of incre-
ments excluding the original two increments given to the entrants in the
Board both from U.P. and the Central Government Departments and
from other sources. [344E-G; 34SB)
G
CIVIL ORIGINAL APPELLATE JURISDICTION: Civil
Appeal No. 3092 of 1985 etc.

From the Judgment and Order dated 1.2.1985 of the Allahabad
High Court in W .P. No. 1535 of 1972.
H
·-
338 SUPREME COURT REPORTS [1987] 3.S.C.R.

A S.N. Ka~ker, R.B. Mehrotra, Gopal Subramanium, Mrs. S.
Dixit, S. Balakrishnan and Ifran Ahmad for the Appellants.

T.S. Krishnamoorthi Iyer, Mukul Mtidgal, S. Balakrishnan and
Rajesh for the Respondents.

B The Judgment of the Court was delivered by

KHALID, J. This appeal 1,y special bave and the connected
special leave petition and the writ petition directed against the judg-
ment and order of the Allahabad High Court dated February 1, 1985
raise a question of construction of Regulation 7(iv)(b) of the U.P.
State Electricity Board Service of Engineers (Integration & Seniority)
C Regulations, 1976, framed under s. 79(c) of the Electricity (Supply)
-
Act, 1948. By the judgment, a Division Bench of the High Court has
disallowed a batch of writ petitions seeking to quash an order of the
U .P. Public Services Tribunal, Lucknow dated April 3, 1978. Allowing
a representation made by respondent no. 1, presently working as
D Superintending Engineer in the U.P. State Electticity Board, the Tri-
bunal held that in terms of Regulation 7(iv)(b) of the Regulations,
respondent no. 1 having been granted seven advance increments was
entitled to.the benefit of as many _years of service as the number of
advance increments given to him at the time of his recruitment. The
High Court has upheld the order of the Public Services Tribunal. As a
E result, respondent no. 1 who figures at serial no. 12 in the integrated
seniority list of Assistant Engineers (Civil) i.e. below other Superin-
tending Engineers including the six petitioners in the connected special
leave petition no. 8835/85, would take his place at serial no. 1 in the
seniority list i.e. above them.

F The short question involved in this appeal is whether respondent
no. 1 on a proper construction was entitled to the benefit of as many
years of service- as the number of advance increments given to him at
the time of his recruitment, as held by the Public Services Tribunal and
the High Court. That turns on a construction of the amended Regula-
tion 7(iv)(b) of the Regulations. Regulation 7(iv)(b) as originally
G framed provided:

"While determining the seniority under clauses (ii) and (iii)
above, Engineers directly recruited by the Board before
the commencement of these regulations shall be given
advantage of as many years of service as is the number of
H advance increments which were allowed to them at the time
...,.

U.P. STAIB ELECT. BOARD v. P.L. KELKAR [KHALID, J.J 339
) of recruitment by the Board. In doing so, no officer shall A
however be given advantage beyond the date of his initial
regular appointment in the Government department or the
other organisations."

On June 19, 1976 the Electricity Board in exercise of the powers under
,. ~ s. 79(c) of the Electricity (Supply) Act, 1948 amended Regulation B
7(iv)(b) to remove certain anomalies and to give effect to the intention
of the Board in framing the rule of seniority. It was felt by the Board
'r that the expression 'other organisations' in the unamended Regulation
7(iv )(b) was susceptible of a construc.tion that in the matter of determi-
.... nation of inter se seniority among directly recruited Engineers vis-a-vis
Engineers on deputation with the Board from the Central Government c
or the State Government, the seniority of the Engineers had to be
.
't reckoned by giving them the benefit of as many years of service as the
number of advance increments give~to them by reason of their special
experience or qualifications. The Board accordingly substituted the
words 'U .P. or Central Government Department in consideration of
the service fot which advance increments were so allowed' for the D
'( words 'Government department or other organisations' in Regulation
7(iv)(b ). The amended Regulation 7(iv)(b) now provides:

"While determining the seniority under clauses (ii) and (iii)
above, Engineers directly recruited by the Board before
the commencement of these regulations shall be given E
advantage of as many years of service as is the number of
--A advance increments which were allowed to them at the time
of recruitment by the Board. In doing so, no officer shall
' however be given advantage beyond the date of his initial
'1 regular appointment in the U.P. or Central Government
Department in consideration of the service for which F
advance increments were so allowed."

Put very briefly, the essential facts are these. By a Government
resolution dated March 30, 1959 all the officers of State Government
. i.e. Civil Engineers and the Electrical and Mechanical Engineers of
•,.. the Irrigation & Power Department were transferred to the U .P. State G
Electricity Board constituted under s. 5 of the Electricity (Supply)
Act, 1948 which came into existence on April I, 1959. The services of
these officers were placed on deputation with the Board. In 1964, the
Electricity Board issued an advertisement calling for applications for
appointment to 20 posts of Assistant Engineers (Civil). It was indicated
that a higher start would be allowed to candidates with special qualifi- H
-
340 SUPREME COURT REPORTS [1987] 3.S.C.R.

A cations or experience and that the selected candidates were to become
permanent on completion of three years' probation. Among those
selected was respondent no. 1 P.L. Kelkar who by reason of his previ-
ous experience was given a higher start of Rs. 490 in the scale of Rs.
250-850 which meant that he wa~ given nine advance increments as
against two increments given to others. Prior to his joining the Elec-
B tricity Board, respondent no. 1 had varied experience in different
governmental and other organisations. After obtaining his degree in
Bachelor of Engineering in the year 1957, he was recruited as a Junior
Engineer, Public Works Department (Building) of the State of
Madhya Pradesh on a scale of Rs. 150-300. In 1959 he was promoted as
Assistant Engineer, Department of Housing, Madhya Pradesh on a
C scale of Rs. 250-600. Thereafter on June 9, 1960 he accepted appoint-
-
ment as Engineering Assistant Grade I in the Indian Refinery Limited,
Guwahati, a Government of India undertaking, on a scale of Rs.300-
525 after leaving the services Qi the State Government of Madhya
Pradesh. On May 10, 1961, he left Government service to take up
employment in the private sector as Assistant Civil Engineer with the
D Associated Cement Company Limited, Bombay on an initial salary of
Rs.305 per month with annual increments. After the interviews of the
condidates held on August 17, 1964, the Board in its letter of appoint-
ment dated August 22, 1964 offe,red respondent no. 1 two advance
increments and stated that his seniority vis-a-vis the other candidates
selected for appointment would be determined later. It seems that
E respondent no. 1 declined the offer and accordingly the Board by its
letter dated August 29, 1964 decided to grant him a higher initial pay
of Rs.490 i.e. nine advance increments because of his previous experi-
~-) --
ence. It may be mentioned here that the Board also granted a higher
initial pay of Rs.490 i.e. nine advance increments to Prakash Chandra
Jain and Rs.430 i.e. seven advance increments to Naresh Chandra
F Gupta.

As against respondent no. 1 who had been directly recruited by
the Board w.e.f. October 7, 1964 and is now working as a Superintend-
ing Engineer in the Electricity Board, the six petitioners in the con-
nected special leave petition no. 8835/85 namely, V.N. Mathur, Mohd.
G Wasi Ahmad, Madan Mohan, Brajesh Sahai, Amba Prasad and O.P.
Sharma who are also now working as Superintending Engineers in the
Electricity Board were Assistant Engineers in the Irrigation & Power
Department, were placed on deputation with the Board by the State
Government from the year 1960 onwards. They were in due course
confirmed as Assistant Engineers in the Irrigation & Power Depart-
H ment. It seems that respondent no. 1 as well as the petitioners were

-----~ ,_. ________
...
U.P. STAIB ELECT. BOARD v. P.L. KELKAR [KHALID, J.] 341

confirmed as Assistant Engineer w.e.f. April 1, 1975. There was no A
seniority list of Assistant Engineers in the Board nor any rules of
seniority at the time when respondent no. 1 joined service. On April
29, 1976 the Board in exercise of the powers under s. 79(c) of the
Electricity (Supply) Act, 1948 framed the U.P. State Electricity Board
Service of Engineers (Integration & Seniority) Regulations, 1976. As
already stated, the unamended Regulation 7(iv)(b) provided that B
while determining seniority, Engineers directly recruited by the Board
before the commencement of the Regulations shall be given advantage
of as many years of service as was the number of advance increments
which were allowed to them at the time of their recruitment i.e.
- although respondent no. 1 was recruited on October 7, 1964, it should
be deemed that he joined service of the Board on October 7, 1957. As
a result of this representation the Board was constrained to amend C
Regulation 7(iv)(b) as indicated above. On May 19, 1977 the Board
rejected the representation made by respondent no. 1. A few months
thereafter i.e. on September 28, 1977 the Board in acccordance with
the amended Regulation 7(iv)(b) published the integrated seniority list
in which the name of respondent no. 1 figures at serial no. 12 i.e. D
below other officers at present working as Superintending Engineers
including the aforesaid petitioners in the connected special leave
petition.

We however wish to mention that there is a controversy as to
whether the petitioners in the connected special leave petition applied E
_. ,... for and were not selected by the Board as Assistant Engineers (Civil)
in 1968. Respondent no. 1 P.L. Kelkar has averred in paragraphs 7, 8
and 9 of the counter-affidavit that the aforesaid petitioners who were
•. _. working on deputation with the Elect:icity Board did not consider ·it
1 beneficial to leave their parent department viz. Irrigation & Power
Department and join the services of the Board at the relevant time p
although the Board had again advertised the posts of Assistant
Engineer (Civil) in the year 1965. He then goes on to aver in paragraph
9 that in order to build up the Civil Engineering cadre of the Board the
Electricity Board readvertised the posts of Assistant Engineer (Civil)
in the year 1968 and asserts that most of the petitioners applied for t!)e
f )"- post and the selection was made by a Selection Board on the basis of G
interview and record of past service and adds:

"However, all the petitioners except petitioners nos. 4 and
5 Amba Prasad and O.P. Sharma were not selected for the
post of Assistant Engineer (Civil) as per the selection list
published by the Board. The reascn for the non-selection H
-
342 SUPREME COURT REPORTS [1987] 3.S.C.R.

A was obviously that they were not found fit for the post on
the basis of their record and interview.··

When this averrnent was brought to our notice by learned
counsel for respondent no. 1 we called upon the Electricity Board to
place before us the relevant records relating to the interviews held in
B the year 1968 and also to file a detailed affidavit. Learned counsel for
the Electricity Board assured us that the Board will comply with the
direction and place before the Court the relevant records and also file
an affidavit. Learned counsel for the petitioners in the connected

C
special leave petition however was baffled at the suggestion that the
petitioners should have at all applied for the post of Assistant
Engineer (Civil) advertised in the year 1968 when they were for a
number of years actually functioning as officiating Executive
-
Engineers in the Irrigation and Power Department. To set the matter
at rest, we asked the parties to exchange affidavits on the subject
although the hearing concluded on March 24, 1987 and the case was
reserved for judgment. On April 3, 1987 M.S. Rizvi, Deputy Secret-
D ary, U.P. State Electricity Board has sworn an affidavit bringing the
relevant facts on record. It is averred in paragraph 2 that the records in
possession of the Board revealed that in July 1968 applications for the
posts of Assistant Engineer (Civil) in the service of the U.P. State
Electricity Board were invited and that interviews of the candidates
who had applied in pursuance of the said- advertisement were con-
E ducted during December 1968 and January 1969. In paragraph 3 the
respective dates of promotion of the petitioners as Executive
Engineers are given. In paragraph 4 however it is stated that the re-
cords relating to the applications in the interviews are not traceable
inspite of the best efforts made by the senior officers of the Electricity
Board.
F
In his rejoinder, respondent no. I P.L. Kelkar controverts the
facts alleged. He s•1bmits that the affidavit filed by the Electricity
Board does not state the facts correctly. It is then stated:

"In fact in Petition No. 4888 (F) III/77 filed by Shri N.P.
G Malik & Ors. v. U.P. State Electricity Board it was averred -.i:' ;
in para 11 as follows:

"That respondents Nos. 2 to 15 applied against advertise-
ment for selection of direct recruits as Civil Engineers in
1968. After an interview they were found to be unfit and
H were not selected for the substantive post. The list of
-
U.P. STATE ELECT. BOARD v. P.L. KELKAR (KHALID, J.] 343
) persons selected under s. 3.0. No. 2208-A/SEB/159-A/1968 A
dated 1.4.69 shows that they were not selected.

"In reply to the above submission in paragraph 11, it was
averred by the Board before the Public Services Tribunal
that the 'contents of paragraph 11 are admitted."
B
~~
In view of the above reply, respondent no. 1 submits that it is
wholly irrelevant whether the records are now available or not because
~ the above affidavit in the Public Services Tribunal was made after
perusing the records. We are rather surprised that the Electricity
Board should file an affidavit by the Deputy Secretary stating that the

~
relevant records of the interviews held in the year 1968 are not avail- c
able unless they have been done away with.

We have given above the necessary back-ground facts for
appreciating the dispute involved in these cases. A decision in these
cases depends upon the correct interpretation of Regulation 7(iv)(b)
before and after its amendment. The regulation comprises of two D
'( parts. The first part refers to the advantage of advance increments.
This advantage is based on sp!'cial qualification and past experience
and its consequent effect on seniority. The grant of subsequent incre-
ments by the Board after joining its service is not governed by this
regulation.
E
-;. It is the second part of the regulation that gives a little difficulty
and it was on this that considerable arguments were addressed before
us. Special reliance was placed upon the expression 'in doing so' occur-
ring in the regulation. What is contended is that this expression indi-
·~ cates the manner in which the first part is to be construed. The regula-
lion, before its amendment mentioned Government departments or F
other organisations but after its amendment it was changed to 'in the
U.P. or Central Government Department'. This change shows a deli-
berate attempt to deny its benefit to employees who came from service
not comprised in either U.P. or Central Government departments. We
do not think that it would be either just or fair to give a limited
I 'r meaning to the second part of the amended regulation and thereby to G
deny its benefit to those Engineers who came from other departments
or corporations etc. It is necessary to note that the first part of the
regulation does not speak of Engineers in the U .P. or the Central
Government Departments. It speaks only of Engineers directly
recruited by the Board before the commencement of this regulation,
which expression takes in, Engineers who came into the service of the H

.-. -....,,.,.,..---
..
_,
-
344 SUPREME COURT REPORTS [1987] 3.S.C.R.

A Board from all sources. That being so, it would not be proper to
completely eliminate Engineers who came from other sources from the
benefit of the regulation giving a restricted meaning to the expression
'in doing so'. It is useful to note that the Board's advertisement invit-
ing applications provided higher start for those having special quali-
fications and experience irrespective of the source of the service held by
B them. The second part of the regulation has therefore to be construed
only as a proviso to the first part confining its scope to the employees
of the U.P. as well as CentraJ Government and not to affect the gener-
ality as contemplated in the first part.

The injustice that will be meted out to the Engineers who came
C from outside if the restricted meaning is given to the second part of the
regulation, can be best illustrated by referring to the case of Shri P.L.
Kelkar. He was appointed as a Junior Engineer, P.W.D., M.P. on July
19, 1957 and was promoted as Assistant Engineer and posted in Hous-
ing Department on May 20, 1959. On June 9, 1960 he was appointed
Engineer Assistant Grade I in Indian Refinery Limited, Guwahati,
D after leaving the services of the M.P. Government. Thereafter, he was
appointed as Assistant Engineer on May 10, 1961, in Associated
Cement Company Limited, Bombay. It was while working in that
company that he came across the advertisement made by he U .P. State
Electricity Board. He applied pursuant to such advertisement. He was
selected by the Board and appointed as per order dated August 22,
Fi 1964. He joined service on October 7, 1964. He was given nine incre-
ments taking into consideration his special qualification and experi-
ence. Two increments were common to all. Thus, the extra increments
given to him were seven. It is apparent that if this extra increment on
the basis of his experience and special qualification did not carry with
it, seniority in the Board, he would not have either applied or accepted
F the job. It cannot be assumed that he would have joined the Board
willingly as a new entrant. Under these circumstances, the"Tribunal
was justified in holding that he should be deemed to have been
appointed w.e.f. October 7, 1957, instead of October 7, 1964, when he
joined the service of the Board. The Tribunal according to us justifi-
ably repelled the contention that he was not entitled to the above
G advantage under the second part of the Regulation 7(iv)(b ). In our
view, the Tribunal was just!fied also in holding that second part is in
the nature of proviso limited to pasons who had been in service of
either U.P. or the Central Government Departments and who had
been given advance increments in consideration of such service.

H The High Court considered the question in detail with reference
-
U.P. STATE ELECT. BOARD v. P.L. KELKAR [KHALID, J.] 345

) to the regulation under consideration am! agreed with the Tribunal in A
the construction put by it regarding the second part of the regulation.
We have also given our anxious consideration to the regulation before
and after the amendment. We also come to the conclusion that the
interest of justice will be advanced by agreeing with the High Court
and the Tribunal in the construction given by them to this regulation.
B
In our judgment, therefore, seniority will have to be fixed in accord-
ance with the number of increments excluding the original two incre-
ments given to the entrants in the Board both from the U .P. and the
Central Government Departments and from other sources. We do not

- think it necessary to answer other aspects of the case for this judg-
ment. We do not think any interference is called for with the judgment
of the High Court. We confirm the judgment, dismiss the appeal, writ C
petition and the special leave petition, with no order as to costs.

N.P.V. Appeal and Petitions dismissed.