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BHOODEV SINGH & OTHERS versus CHAIRMAN,U.P.S.E.B. & OTHERS

High Court of Judicature at Allahabad

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Bhoodev Singh & Others v. Chairman,U.P.S.E.B. & Others - WRIT - A No. 40958 of 1998 [2006] RD-AH 2323 (31 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

COURT NO.34

Civil Misc. Writ Petition No. 40958 of 1998

Bhoodev Singh & Ors.

Versus

U.P. State Electricity Board & Ors.

Hon'ble Dr. B.S. Chauhan, J.

Hon'ble Dilip Gupta, J.

(By Hon'ble Dr. B.S. Chauhan, J.)

This case arises out of a claim of the petitioners for their appointment as Junior Engineers and on respective posts of operating staff commensurate to the trades in which they claim themselves to be trained apprentices under the provisions of the Uttar Pradesh State Electricity Board Subordinate Electrical and Mechanical Engineering Service Regulations, 1972 (hereinafter called the ''Regulations 1972'). This petition had been decided earlier by a Division Bench judgment of this Court, where after the petitioners went up to the Supreme Court as a result whereof the judgment of this Court was set aside on 14th March, 2001 and the Hon'ble Apex Court has remanded the matter under the aforesaid judgment to this Court for deciding the case in accordance with the recruitment Rules which are applicable to the controversy. The Hon'ble Apex Court, while remanding the matter to this Court has, however, upheld and approved the ratio of the Full Bench decision of this Court in the case of Arvind Gautam Vs. State of U.P. & Ors., 1999 (2) UPLBEC 1397. The said Full Bench judgment also stood approved by the Apex Court in the case of U.P. Rajya Vidyut Parishad Apprentice Welfare Association & Anr. Vs. State of U.P. & Ors., (2000) 5 SCC 438.

The petitioners no. 1 and 2 claim that they had completed their training of Junior Engineer Apprentice and the petitioners no. 3 to 34 claim that they had completed their training as Operating Staff Apprentice while engaged with the Uttar Pradesh State Electricity Board, which now stands transformed to the Uttar Pradesh Power Corporation Limited. Upon completion of their training, the respondent Electricity Department did not enter into any contract of employment with the petitioners who were claiming appointment as being qualified under Section 2 of the Apprentices Act, 1961 (hereinafter called the ''Act 1961'). The Electricity Department issued an advertisement on 17.10.1998 inviting applications for filling up the vacancies of Junior Engineers, Sub-Station Officers, Fitters, Draftsman Mechanical, Machinists, Lineman, Plumbers, Instrument Mechanic, Wireman, Diesel Mechanic, Boiler Operators, Electricians and other posts.

The petitioners, who were claiming preference by way of direct appointment having received training as apprentice, instituted the present writ petition after publication of the aforesaid advertisement praying principally for the following relief:-

"issue a writ, order or direction in the nature of mandamus directing the respondents to consider the appointment of the candidates on the respective posts and in which they are trained apprentices giving the preference, ignoring the age bar and giving them preference over the candidates who are not trained apprentices."

When the matter was heard on the earlier occasion, one of the issues, that was raised, was as to whether the petitioners who had completed their apprentice training were required to face any written examination for the purposes of their selection. This petition was, therefore, tagged along with the petition of Arvind Gautam Vs. State of U.P. & Ors., and a Full Bench was constituted to resolve the said issue which was answered by the Full Bench in the decision reported in 1999  (2) UPLBEC 1397 (supra). This writ petition was also called out before the same Full Bench and after noting that learned counsel for the petitioners was not present, the Full Bench disposed of this writ petition on 27.05.1999 by the following order:-

"The case has been called out.

Learned counsel for the petitioner is not present.

The controversy involved in this petition is identical to the one raised in Civil Misc. Writ Petition No.23076 of 1998, Arvind Gautam Versus State of U.P. and others, decided and disposed of by this Bench by the order of date.

Thus, this writ petition also is decided and disposed of in terms of and subject to the decision of the date rendered in the case of Arvind Gautam Versus State of U.P. and others (Supra)."

The petitioners thereafter approached the Hon'ble Apex Court by filing a Special Leave Petition. Another Special Leave Petition was filed before the Hon'ble Apex Court by similarly situate trainees who raised the same issue by taking recourse to the observations made by the Apex Court in paragraph 13 in the case of U.P.S.R.T.C. Vs. U.P. Parivahan Nigam Shikshuk Berojgar Sangh, AIR 1995 SC 1115 to urge that such apprentice trainees would not be required to appear in any written examination. The Apex Court in its decision in U.P. Rajya Vidyut Parishad Apprentice Welfare Association (supra), after analysing the impact of the aforesaid decision as also the view taken by the Full Bench of our Court in Arvind Gautam' case (supra) and in the case of  Manoj Kumar Mishra Vs. State of U.P. & Ors., 1997 (2) UPLBEC 1374, held as under:-

"A question had arisen before the Allahabad High Court in a later case as to whether the direction that the trainees need not undertake examination was applicable only to the petitioners in the case before this Court or whether para 13 laid down any general principle that apprentices need not take the examination. This question went before a Full Bench of the Allahabad High Court in Arvind Gautam Vs. State of U.P., (1999) 2 UPLBEC 1397 (All) (FB). The Full Bench held that what was mentioned in para 13 was in the specific factual background of the "cases on hand" and that the apprentices are to go through the examination as also the interview, as provided in the Recruitment Rules. The Full Bench had also approved the judgment in the case of Manoj Kumar Mishra Vs. State of U.P., (1997) 2 UPLBEC 1374, which took a similar view in regard to the interpretation of para 13 of the judgment of this Court mentioned above.

We, are, therefore, of the opinion that the view taken in Manoj Kumar Mishra case as also the view taken by the Full Bench in Arvind Gautam case is a correct one and that apprentices have to go through the procedure of examination/interview and that they are however entitled to the benefits of Entries (1) to (4) laid down in Transport Corpn. case."

In the Special Leave Petition filed by the petitioners, the Hon'ble Apex Court reiterated and affirmed the view taken in the decision referred to hereinabove and held that the statement made by the Hon'ble Apex Court in paragraph 13 of the UPSRTC case (supra) was not of universal application and further held that the decision rendered in the case of Tamil Nadu Electricity Board Vs. P. Arul & Ors., Civil Appeal Nos. 5285-5328 of 1996, decided on 03.10.1996 is too widely worded and cannot be held to be the law laid down in all cases of appointments of this nature.

The Hon'ble Apex Court, however, while allowing the appeal of the petitioners after approving the view of the Full Bench held that the High Court ought to have disposed of the writ petition after dealing with the relevant Regulations and Rules which were applicable to the controversy and since the aforesaid exercise has not been undertaken by the High Court, therefore, this writ petition was remitted back to this Court for hearing again on the aforesaid limited question in the light of the observations made by the Hon'ble Apex Court in the decision dated 14.03.2001. The aforesaid order of remand of the Hon'ble Apex Court attaches finality to the other issues and the scope of the present writ petition is now limited on the issues on which this Court is required to pronounce upon under the said judgment.

It is in these circumstances that we have been called upon to re-hear this writ petition after taking note of the relevant Rules and Regulations.

The petitioners as well as the respondent U.P. State Electricity Board (now Power Corporation) have filed affidavits and a supplementary affidavit as well. The supplementary affidavit filed by the petitioners discloses that during the pendency of this litigation, the Electricity Board advertised posts of Junior Engineers by way of direct recruitment and it is alleged that 126 Junior Engineers have been appointed out of the approximate 500 vacancies that where available. This fact was also brought to the notice of the Hon'ble Apex Court and the Apex Court in the judgment dated 14.03.2001 has commented upon the same by saying as follows:-

"We fail to understand how an advertisement could be issued for filling up of the post of Junior Engineer under the State Electricity Board directly from open market which is not contemplated under Regulation 5 (b) (1)."

However, the matter was left to be decided by this Court after examining the principal question as to whether the requirement of written examinations is provided for in the Regulations even in the matter of the selections of the apprentice trainees. In essence, this Court was called upon to decide as to whether the petitioners who were claiming appointment were required to undertake any written examination for appointment or not.

During the pendency of the writ petitions, the amendment to the pleadings was sought by the petitioners to the extent that even in 2001, the vacancies had been advertised by the respondents which were liable to be filled up and as the UPSEB came to an end as it stood  replaced by the Uttar Pradesh Power Corporation (hereinafter called the ''Corporation'), an application for substitution was also filed before the Supreme Court. Both the applications had been rejected by the Hon'ble Apex Court while deciding the appeals filed by the present petitioners and after hearing the parties, vide judgment and order dated 14th March, 2001, remanded the matter to decide after scrutinising the particular recruitment Rules applicable in a particular department as to whether it provided for written test or not. Hence the present petition.

Again, an application for substitution supported by an affidavit has been filed before us.

Shri V.B. Upadhyay, learned Senior Counsel appearing for the petitioners has submitted that these applications require to be allowed in the facts and circumstances of the case. However, Shri C.K. Rai, learned Standing Counsel, Shri Ranjit Saxena and Shri A.K. Mehrotra, learned counsel appearing for the Corporation have vehemently opposed the applications. Substitution of the Corporation was necessary so that the orders passed by the Court may be binding and enforceable against the Corporation being successor of the UPSEB. However, those applications have been rejected and the Corporation could not be substituted when the appeals were pending before the Apex Court. This writ petition still remains only against the UPSEB, which is no more in existence. It is further submitted that in these circumstances, to entertain the said applications as the same had already been rejected by the Hon'ble Apex Court would amount to sitting in appeal against the said order rejecting the said applications by the Hon'ble Apex Court or reviewing the said orders.  Hence the applications are to be dismissed.

So far as the effect of the order is concerned, it is settled legal proposition that when a higher Court sets aside the judgment and order of the Court below and remands the case, only those parties which had been before the higher Court, can be heard and no one else.

A Constitution Bench judgment of the Hon'ble Supreme Court in Cumbum Roadways (P) Ltd., Madurai Vs.  Somu Transport (P) Ltd., AIR 1966 SC 1366, wherein the Hon'ble Apex Court observed as under:-

"On principle, therefore, it does not appear right that the High Court should set aside orders in appeal passed by the Appellate Tribunal when the parties to those appeals do not bring-up the matter before the High Court, simply because as the matter of convenience the Appellate Tribunal deals with all the appeals relating to one route by the consolidated order. Therefore, we are of the opinion that the remand should only be confined to those parties which came to the High Court and not extend to others, as the High Court would have no jurisdiction to interfere with the orders of the Appellate Tribunal either in favour or against the parties which have not come to it." (emphasis added).

Similar view had been taken by the Hon'ble Supreme Court in Hanuman Transport Corporation Vs. Meenakshi G. Ramabhai, Civil Appeal No. 794 of 1963, decided on 20.2.1963. A similar view has been reiterated in The Anamalais Bus Transports (P) Ltd., Pollachi Vs. Sri Tiruppurkarur Transports (P) Ltd., Tiruppur & Ors., AIR 1966 Mad 470. The same view has been taken by the Rajasthan High Court in M/s. Rajasthan Barytes Ltd. & Anr. Vs. State of Rajasthan & Ors., (1999) 2 RLW 835. Thus, submissions made on behalf of the respondents has merit to this limited extent.

The submissions advanced in this regard on behalf of the respondents are not tenable for the reason that even in the aforesaid situation, the proceedings would not abate for non-impleadment of the Corporation for the reason that the pending litigations are saved under Section 23(8) of the U.P. State Electricity Reforms Act, 1999. In exercise of powers under Section 23(8), paragraph 8 has been specifically framed under the U.P. Electricity Reforms Transfer Scheme, 2000, which reads as under:-

"8. Pending suits, proceedings.- (a) All proceedings of whatever nature by or against the Board pending on the date of the transfer shall not abate or discontinue or otherwise in anyway prejudicial be affected by reason of vesting or re-vesting of the transfer scheme mentioned in the Act and in this Scheme but the proceedings may be continued, prosecuted and enforced by or against the Government or after the transfer of the Undertakings, by or against the transferee to whom the same are assigned in accordance with the transfer scheme only.

(b) Such proceedings may be continued in the same manner and to the same extent as it would or might have been continued, prosecuted and enforced by or against the Board if the transfers specified in this Scheme had not been made."

Thus, in view of the statutory provisions referred to hereinabove, no order is required to be passed on these applications. The rights of respondents are well protected by the Statute itself.

While considering a similar controversy in Special Leave to Appeal (Civil) Nos. 6337, 6338 of 2000, Naresh Kumar Mathuria & Ors. Vs. U.P. Power Corporation & Ors., decided on 10.07.2002, a Bench of three Hon'ble Judges of the Apex Court held that the directions given in Bhudev Singh that written test was mandatory even for apprentices was good. The order reads as under:-

"In view of the positive statement in the counter affidavit indicating that the relevant rules require a written test to be conducted for the post in question; and in view of our earlier three-Judges Bench decision in the case of Bhudev Singh Vs. UPSEB, JT 2001 (Supp.1) 542, there is no merit in these petitions. They accordingly stand dismissed."

It is evident from the aforesaid judgment that the Hon'ble Supreme Court itself has laid down time and again and reiterated that a candidate cannot claim exemption from the written test if it is required for others under the relevant Rules.

A Division Bench of this Court in Rajendra Singh & Ors. Vs. U.P. State Electricity Board, Shakti Bhawan, Lucknow & Ors., (2000) 86 FLR 155 has taken a categorical view after considering all judgments, including the case of U.P.S.R.T.C. (Supra) that the apprentices cannot be treated differently from the other candidates seeking employment and they cannot be exempted from appearing in the written test if other candidates are asked to appear as per the rules of the department.  The Court after considering large number of judgments came to the conclusion that the apprentice in UPSEB had to appear in the written test and they should not be treated differently from other candidates. It is pertinent to be noted that the same advertisement dated 17.10.1999 (though published in newspapers of January, 1999) which is under challenge in this petition had been under challenge in Rajendra Singh (supra) and the issue involved therein had been the same which is involved herein before us. While deciding the said case, the Full Bench judgement of this Court in Arvind Gautam Vs. State of U.P. & Ors.,  1999 (2) ALR 739  has also been taken into consideration.

In U.P. State Electricity Board Vs. Shiv Mohan Singh & Anr., (2004) 8 SCC 402, the Hon'ble Apex Court reconsidered the whole issue considering and relying upon all its earlier judgments, and came to conclusion that right of apprentice is only limited to having preference being other things equal. In the said judgment, the Apex Court full approved the judgment of this Court in Rajendra Singh (supra).

The issue involved herein has been considered by the Hon'ble Supreme Court in Mukesh K. Tripathi Vs. Sr. Divisional Manager, LIC & Ors., AIR  2004 SC 4179 and held that an apprentice and is neither an employee nor a workman as apprentice has defined in Section 2 (aa) of Act 1961, to mean "a person who is undergoing an apprenticeship training in a designated trade in pursuance of a contract of apprentices. Section 18 of the Act 1961 provides that apprentices are trainees and not employees.

In Executive Officer Vs. E. Triupalu & Ors., AIR 1996 SC 1311, the Hon'ble Supreme Court held that where rules provide for preference to a particular class of candidates, that preference under the Rules cannot be applied irrespective of the merit of candidates, the inmates have to be given appointment. It means that the merit of the candidates being equal, preference would be given to the inmates of the class which is to be given preferential right and it certainly does not mean an automatic appointment without considering the cases of other candidates. Therefore, even if it is provided for a preferential right, they have a preferential right only when they compete with other candidates and are found on equal footings, otherwise not.

Similar view has been reiterated in Government of Andhra Pradesh Vs. P. Dilip & Anr., (1993) 2 SCC 310; and Secretary, A.P. Public Service Commission Vs. Y.V.V.R. Srinivasulu & Ors., (2003) 5 SCC 341.

From the aforesaid facts, it is evident that the right of apprentice trainees is limited only to the preference, other things being equal. They cannot claim any other right or claim different treatment for other non-apprentice candidates. We find no force in the submissions made by Shri Upadhayay, learned Senior Counsel that from time to time, the Government has issued certain directions/guidelines/orders to appoint the apprentice trainees and not to make recruitment from general candidates and for that purpose reference may be made to the Government Orders dated 21.09.1977, 21.08.1978, 27.08.1978, 12.10.1979, 30.05.1981, 03.01.1998, 06.05.1998 and 26.05.1998 contained in Annexures 3, 4, 5, 7 to 14. All these orders speak of preference and the judgment and order passed subsequent to UPSRTC case (supra) specifically provide for making appointment giving preference.

The aforesaid controversy has to be examined in the light of the submissions made by the respective counsel for the parties on the basis of the provisions of the Act, Rules and Regulations.

Shri V.B. Upadhyay, learned Senior Counsel appearing for the petitioners has placed reliance upon the following provisions in support of his contention that for recruitment to the post of Junior Engineers and Operating Staff, there is no requirement of holding the written test:-

(1) Section 15 of the Electricity (Supply) Act, 1948 (hereinafter referred to as the ''Act 1948') deals with the appointment of staff and provides that the Board may appoint a Secretary and such other officers and employees as may be required to enable the Board to carry out its function under the Act. Section 78 of the said Act deals with the power to make Rules and provides that the State Government may, after previous publication, by notification in the Official Gazette, make Rules to give effect to the provisions of the Act. Section 78-A deals with directions by the State Government and stipulates that in the discharge of its functions, the Board shall be guided by such directions on questions of policy as may be given to it by the State Government. Section 79 of the Act 1948 deals with the power to make Regulations and it has been provided that the Board may, by notification in the Official Gazette, make Regulations not inconsistent with the Act and the Rules made thereunder to provide for all or any of the matters specified in the Section. He has placed reliance upon Section 79 (c) which relates to the duties of officers and other employees of the Board and the salaries, allowances and other conditions of service. He, therefore, contended that there is no provision in the aforesaid Act 1948 which requires holding of written examination for recruitment to the post of Junior Engineers and the Operating Staff.

(2) The Electricity Department Operating Staff Service Rules, 1955 (hereinafter referred to as the ''Rules 1955'), which have been framed under Article 309 of the Constitution of India regulating recruitment to post in, and the conditions of service of persons appointed to the Electricity Department (Operating Staff) service. In particular, he has placed reliance upon Rules 4, 5 and 6 of the aforesaid Rules 1955. Rule 4 deals with the strength of service and class of post while Rules 5 and 6 deal with the Appointing Authority and the Source of Recruitment. Rule 6 provides that recruitment to the service shall be made in accordance with the procedure laid down. His contention is that even these Rules 1955 do not provide for holding a written test.

(3) The Regulations dated 18.12.1970 framed by the U.P. State Electricity Board under Section 79  (c) of the Act 1948 dealing with the Operating Staff also does not provide for any specific procedure for holding the written test.

(4) The U.P. State Electricity Board Operating Staff Cadre Service Regulations, 1995 framed under Section 79 (c) and (k) of the Act 1948, (Part III) deals with recruitment while Parts IV and V deal with eligibility and direct recruitment, and the said Regulations do not provide of holding of any written test.

(5) The U.P. State Electricity Board (Limitation of Functions) Regulations, 1978 (hereinafter referred to as the ''Regulations 1978') have been framed under Section 79 (c) of the Act 1948. In respect of the Operating Staff, Regulation  (3) (2) does provide that the Commission will examine, interview, select and recommend suitable candidates  in respect of the Operating Staff Cadre post in accordance with the criteria prescribed in the relevant Regulations and if there are no Regulations, in order of merit yet ''examine' does not mean holding of a written test.

(6) The Uttar Pradesh Electricity Reforms Act, 1999 (hereinafter referred to as the ''Reforms Act 1999') came into effect from 12.01.2000. Sections 52, 53, 54 and 55. Section 52 of the said Act deals with the power to make Regulations and it provides that the U.P. Electricity Regulatory Commission (hereinafter referred to as the ''Commission') may make Regulations  not inconsistent with this Act  or the Rules made thereunder in the efficient performance of its functions under the Act. Section 53 deals with the power to make Rules  and stipulates that the State Government may, by notification, make Rules for carrying out the purposes of this Act. Section 54 deals with the effect of the Reforms Act 1999 on the Indian Electricity Act, 1910 and the Act 1948 and provides that except as provided in Section 55, the provisions of the Reforms Act 1999, notwithstanding that the same are inconsistent with or contrary to the provisions of the aforesaid Act, shall prevail in the manner and to the extent provided in sub-section (3). Sub-section (3) (vi) of Section 54 stipulates that in matters provided in Sections 5 to 15, 16, 17, 18, 19, 20, 23 to 26, 27, 37, 40 to 43, 44, 45 to 54, 56 to 69, 72, 75 and 76 to 83 of the Electricity (Supply) Act, 1948 to the extent this Act has made specific provisions, the provisions to the Electricity (Supply) Act 1948 shall not apply in the State. Section 55 deals with savings and provides as follows:-

"55. Savings.- (1) Notwithstanding anything contained in this Act, the powers, rights and functions of the Regional Electricity Board, the Central Electricity Authority, the Central Government and authorities other than the State Electricity Board and the State Government under the Indian Electricity Act, 1910 or the Electricity (Supply Act, 1948, or rules made thereunder shall remain unaffected and shall continue to be in force."

Thus, written examination is not required at all.

(7) The Uttar Pradesh Electricity Reforms Transfer Scheme, 2000 (hereinafter referred to as the ''Transfer Scheme 2000') and in particular upon clause 2(e) which deals with definition of ''personnel' and clause 6 (10) which deals with transfer of personnel and for the sake of convenience, they are reproduced below:-

"2. Definitions.- In this Scheme, unless the context otherwise requires:-

(a) ...... (b) ........

(e) "Personnel" means workmen, employees, staff and officers of the board by whatever name called and includes those trainees, if any for the recruitment in the board and those on deputation from the board to other organizations or institutions.

6. Transfer of Personnel.- (1) .............

(2) ........... ...........

(10) Subject to the provisions of the Act and this Scheme, the Transferee shall frame regulations governing the conditions of service of personnel transferred to the transferee under this Scheme and till such time, the existing service conditions of the Board shall mutatis mutandis apply."

The Rules 1955 and the policy decisions of the State Government under Section 78-A of the Act 1948 have been saved under Section 55 of the Act 1999 and they do not provide for holding of any written test. In such circumstances, the Act 1961 shall govern the petitioners.

Shri Ranjit Saxena and Shri Anil Mehrotra, learned counsel appearing for the respondents, however, submitted that both in respect of Junior Engineers and the Operating Staff, it is necessary to hold the written examinations and in support of their contentions, they have submitted as follows:-

(1) Provisions of Section 79 (k) of the Act 1948 gives power to the Board to frame Regulations in respect of any other matter arising out of the Board's functions for which it is necessary or expedient to make Regulations. Section 15 of the said Act gives power to the Board to appoint a Secretary and such other officers and employees as may be required to enable the Board to carry out its functions. Thus, the Board is clearly authorised to make Regulations in respect of appointment of staff. In this context, reliance has been placed upon the decision of the Hon'ble Apex Court in U.P.S.E.B. Vs. Abdul Shakoor Hashmi, AIR 1981 SC 1708.

(2) Even otherwise, the Regulations framed under the provisions of the Act 1910 or the Act 1948 are saved under the provisions of the Reforms Act 1999 in view of the provisions of Section 13 of the Act 1948 and Clauses 6(10) and 6(11) of the Transfer Scheme 2000. Clause 6(11)  is quoted below:-

" (11) In respect of all statutory and other schemes and employment related matters including the provident fund, gratuity fund, pension and any other superannuation fund or any other special fund created or existing for the benefit of the personnel, the relevant Transferee shall stand substituted for the Board for all purposes and all the rights, powers and obligations of the Board in relation to any and all such matters shall become those of the Transferee concerned and the services of the personnel shall be treated as having been continuous for the purpose of the application of this sub-clause."

(3) The three Companies namely, the Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited; Uttar Pradesh Jal Vidyut Nigam Limited and the Uttar Pradesh Power Corporation Limited, have adopted the aforesaid Regulations and, therefore, in any view of the matter, the Regulations 1978 which prescribe for holding of the examination, interview and selection in respect of the Operating Staff continue to remain in force.

(4) In respect of Junior Engineers, the Regulations 1972 clearly provide for holding of the written test.

(5) The advertisement was issued in the year 1998 prior to the coming into force of the Reforms Act 1999 and, therefore, the Regulations 1978 which provide for holding of the examination, interview and selection will be clearly applicable.

Thus, according to the learned counsel for the respondents, holding of a written examination, both for the Junior Engineers and the Operating Staff is a must and, therefore, the petitioners have to appear at the written test along with the other candidates.

It is in the light of the aforesaid submissions made by the learned counsel for the parties that we have to examine whether there is a provision for holding a written test for the Junior Engineers and the Operating Staff.

It is true that the Act 1948 or the Rules 1955 do not prescribe any procedure for holding the written test but the Regulations 1978 dealing with the Junior Engineers and the Operating Staff clearly provide that the Commission will examine, interview, select and recommend suitable candidates in accordance with the criteria prescribed.

The petitioners have relied upon the provisions of Act 1961 and certain other letters issued by the officers of the Electricity Board to urge that the petitioners are entitled to a contract of employment without undergoing any written examination as was done by the respondents in the case of certain candidates selected, whose names appear in the newspaper Hindi Daily "Dainik Jagran" dated 12.06.1997 and further in view of the letter of the Chief Engineer dated 27.06.2000 (Annex. SA-28 to the supplementary affidavit). The petitioners in the supplementary affidavit  have further stated that the U.P. State Electricity Board Operating Staff Service Regulations, 1995 are contrary to the Rules and as such they would not be applicable in the case of petitioners no. 3 to 34.

On the other hand, the respondent Corporation has filed a written submission wherein it is stated that so far as Junior Engineers apprentice trainees are concerned, their appointment is governed by Regulations 13 and 14 of the Regulations 1972. The said Regulations also govern the selection and appointment of Operating Staff as well who are defined in Regulation 3(10) of the said Regulations 1972.

The aforesaid contentions have to be examined in the light of the provisions of Section 79 (c) of the Act, 1948. The said provision is quoted herein below:-

"79. Power to make regulations.-  The Board may, by notification in the Official Gazette, make regulations not inconsistent with this Act and the rules made thereunder to provide for all or any of the following matters, namely:-

(a).............. (b).............

(c) the dues of officers and other employees of the Board, and their salaries, allowances and other conditions of service."

The Electricity Board (now Power Corporation) has been conferred power to frame Regulations. The petitioners claim themselves to be apprentice trainees of the then Electricity Board which had framed the Regulations 1972 (supra) and which were very much in force when the petitioners instituted the present writ petition. The mode of recruitment for an apprentice was to be in accordance with such procedure as may be prescribed by the Board from time to time. The Electricity Board has filed an affidavit through Shri Gopal Ram, then posted as Executive Engineer and P.A. in the office of the Chief Engineer, now U.P. Power Corporation Limited.  The affidavit has been sworn on 30.07.2001 wherein it is stated that the word "Supervisor"  occurring in Regulation 13 of the Regulations 1972 has been replaced and substituted by the words "Junior Engineer" by a notification dated 28.11.1973 issued under Section 79 (c) of the Act 1948.

It has been submitted by Shri V.B. Upadhyay, learned Senior Counsel that as the Rules/Regulations have gone a sea change because of the repealing of the Electricity Act, 1910, Electricity (Supply) Act, 1948 and Rules and Regulations framed there under have also been changed. The recruitment is to be made by the U.P. State Electricity Board (Limitation of Functions) Regulations, 1978, which defines "Commission" in Clause 2(ii) means the Electricity Service Commission Uttar Pradesh State Electricity Board and Clause 3 thereof provides that the Commission shall be consulted for various purposes including the direct recruitment to the posts of Junior Engineer, Operating Staff cadre etc. etc. Sub-clause (2) of Clause 3 reads as under:-

"The Commission will examine, interview, select and recommend suitable candidates in accordance with the criteria prescribed in the relevant Regulations and if there are no Regulations, in order of merit. Actual appointment orders will be issued by the appointing authority concerned." (Emphasis added).

It is submitted by Shri Upadhyay that the word ''examine' contained in the aforesaid clause does not mean written examination. It may be an oral examination. However, if the contention of Shri Upadhyay is accepted, then the word ''interview' becomes redundant and in such circumstances, both the words ''examine' and ''interview' have to be given different meanings which serves the purpose of the provision.

It is a settled legal principle of interpretation of Statute that no word is redundant and every word in a statutory provision is to be given an effective meaning after determining the intent of the Legislature.

In Shyam Kishori Devi Vs. Patna Municipal Corporation & Anr., AIR  1966 SC 1678, the Hon'ble Supreme Court held as under:-

"It is well known rule of construction that a Court must construe a section, unless it is impossible to do so, to make it workable rather than to make it unworkable. In the words of Lord Bramwell, the words of a statute never should in interpretation be added to or subtracted from, without almost a necessity."

No word can be rendered ineffective or purposeless.  Courts are required to carry out the legislative  intent  fully   and  completely.  While construing  a provision, full effect is  to be given  to  the language used  therein,  giving reference  to the context and other provisions of the Statute.  By construction, a provision should not be reduced  as  a "dead letter"  or  "useless lumber.    An  interpretation   which  renders  a provision  an  exercise  in futility,  should  be avoided,  otherwise  it would mean that  enacting such a provision in legislation was " an exercise  in futility" and the product came as a "purposeless   piece"   of    legislation   and provision  had  been enacted without any  purpose and entire exercise to enact such a provision was "most unwarranted  besides  being  uncharitable."  (Vide   Sri Ram Ram Narain  Medhi Vs.  The State  of  Bombay,  AIR   1959  SC  459;   R.G. Jacob Vs. Republic of India, AIR  1963 SC 550; Patel  Chunibhai Dajibha Vs.  Narayanrao Khanderao  Jambekar & Anr., AIR 1965 SC 1457; Anandji Haridas & Co. Pvt. Ltd. Vs. Engineering Mazdoor Sangh & Anr., AIR  1975 SC 946; The Commissioner of Sales Tax, U.P. Vs. M/s. Madanlal Dan & Sons, Bareilly, AIR 1977 SC 523; M/s. Annapurna Biscuit Manufacturing Co., Kanpur Vs. Commissioner of Sales Tax, U.P. Lucknow, AIR 1981 SC 1656; Vazir Sultan Tobacco Co. Ltd. Vs.  Commissioner of Income-tax, Andhra Pradesh, Hyderabad, AIR 1981 SC 2105; M.V.   Elisabeth  & Ors.  Vs. Harwan Investment  & Trading Pvt.  Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, AIR 1993  SC 1014;  Institute of Chartered Accountants of India Vs. Price Waterhouse & Anr., (1997) 6 SCC 312;  Sultana  Begum  Vs. Prem  Chand Jain, AIR 1997 SC 1006;  State  of  Bihar & Ors.  Vs.  Bihar Distillery  Ltd. & Ors., AIR 1997  SC 1511;  South Central Railway Employees Co-operative Credit Society  Employees'  Union,  Secunderabad  Vs.   Registrar   of   Co-operative Societies  & Ors., (1998) 2 SCC 580;   Subash Chander Sharma & Anr. Vs.   State  of  Punjab  &  Ors.,  AIR  1999 SC 2076;  Bharathidasan  University  & Anr.  Vs.    All  India   Council  for  Technical Education  &  Ors.,  AIR  2001 SC 2861;   and The Mor Modern Co-operative  Transport Society Ltd.   Vs.  Financial  Commissioner & Secretary to Govt., Haryana & Anr., AIR  2002 SC 2513).

The word ''examine', therefore, in the opinion of this Court, does not exclude the holding of a written examination and the Commission is not precluded from undertaking the exercise of a written examination.  From the facts and Rules indicated hereinabove, it is evident that the examination has to be held. Undoubtedly, examinations have to be held for direct recruitment on the posts of Junior Engineers and Operating Staff Cadre etc.  The petitioners will have to compete in the said written examination alongwith all other eligible candidates who are not apprentice trainees. They do not enjoy any immunity from the same, which also is supported by the conclusions drawn in the case of Manoj Kumar Mishra as approved by the Full Bench in the case of Arvind Gautam (supra). In the absence of any bar in the Rules, we are of the considered opinion that the Electricity Board/Power Corporation does have the authority to make provisions for holding examinations once the same is specifically provided under the Regulations 1978, referred to hereinabove. The power to examine will also include impliedly the power of the Commission to lay down the procedure for holding examinations which can also include written examination. It is not the case of the petitioners that the candidates other than apprentices who apply for direct recruitment on the post in question, are not subjected to examinations. There does not appear to be any valid reason for providing a different procedure for apprentice trainees only.  The apprentice trainees would, at the best, after competing in examinations, be entitled to the preference to the extent indicated hereinabove.

The advertisement was issued by the Electricity Department on 17th October, 1998 inviting applications for filling up the vacancies of Junior Engineers and Operating Staff. The Reforms Act 1999 came into effect from 12.01.2000 after issuance of the advertisement and the last date for submission of the applications.

The eligibility has to be determined on the last date of submission of the applications. In Y.V. Rangaiah & Ors. Vs. J.  Sreenivasa  Rao  & Ors., AIR 1983 SC  852;   A.A. Calton Vs.  The Director of Education &  Anr.,  AIR 1983 SC 1143;   P.   Ganeshwar Rao &  Ors. Vs.  State of Andhra Pradesh & Ors., AIR 1988 SC 2068;  P.  Mahendran & Ors.  Vs.  State of Karnataka & Ors., AIR  1990  SC  405; and Ramesh Kumar Chaudha & Ors. Vs. State of M.P. & Ors., (1996) 11 SCC 242, the  Hon'ble  Supreme Court has  taken the view that candidates have to be assessed  for selection as per the eligibility criteria existing on the date of advertisement of vacancies  for the reason that selection  process starts with  advertisement and all those  persons who apply  in  response  to the  same,  would  be eligible to be considered.

Thus, in our considered opinion, the Regulations 1978 will govern the advertisement and, therefore, the Operating Staff were required to appear in the written test.

We shall now have to determine the position with regard to the Junior Engineers.

It has been contended by the learned counsel for the respondents that the candidates initially used to be recruited as Apprentice Supervisor in the erstwhile  U.P. State Electricity Board under Regulations 13, 14 and 15 of the Regulations 1972. By an amendment made vide notification dated 28.11.1973, the word "Supervisors" was substituted by the words "Junior Engineers". In fact, the Regulations 1972 were renamed as "U.P. State Electricity Board Junior Engineer (Electrical and Mechanical) Service Regulations, 1972" by the notification dated 29.11.1977.  The Board by an order dated 19.10.1976 decided that instead of initially appointing Diploma holders to the post of Apprentice Supervisors and thereafter Junior Engineers on completion of one year training, the selected candidates after the examination and the interview, may be appointed as Junior Engineers (Trainee) in the pay scale of Junior Engineers and may be given regular charge of Junior Engineer on completion of one year's satisfactory training. Thus, according to them, the Junior Engineer (Trainee) for the recruitment on which the advertisement has been issued by the Electricity Service Commission from time to time, are the same as those who were initially called "Apprentice Junior Engineers" and the recruitment on the post of Junior Engineers is made from amongst the Junior Engineer (Trainee) after completion of training in accordance with the Regulations 5 and 10 of the Regulations 1972. However, after 1978, all the recruitments in the erstwhile U.P. State Electricity Board are being made by the Electricity Service Commission which has been constituted under the Regulations 1978. Thus, even for the Junior Engineers, the Regulations 1978 will apply.

It has also been brought on record that for the recruitment of Junior Engineers in the electrical and mechanical trade, the procedure of holding written examinations has to be followed. The said letters are annexed as Annexures SA-3 and SA-4 respectively.  One such significant letter is dated 22nd March, 1985 which clearly states that the recruitment process includes a written test followed by an interview in respect of recruitment of Junior Engineer trainees, referred to in Regulations 1972, mentioned hereinabove.  Another letter dated 10.12.1998 issued by the Additional Secretary of the Board is also on record to the same effect. The Board has also filed an Office Memorandum of 20.07.1973 which also indicates that the appointment was preceded by a written examination. It is, thus, clear that the Regulations do not provide any waiver of holding a written examination for the appointment of apprentice trainees. On the other hand, such apprentice trainees have been subjected to the written examinations in the past which is evident from the facts narrated, hereinabove.  

Thus, in view of what has been stated above, it is clear that the Junior Engineers have also to appear at the written examination.

The vacancies advertised by the respondents which are the subject matter of the writ petition  may have been filled up long back. It has also been pointed out that the vacancies had been advertised subsequent thereto. There are no pleadings to find out whether all the vacancies had been filled up or not. Shri V.B. Upadhyay, learned Senior Counsel for the petitioners made submissions in respect of the recruitment process for filling up the vacancies advertised subsequent to the filing of the writ petition in 1998. There are no pleadings in respect of the said vacancies and therefore, it is difficult for this Court to determine as to whether the vacancies had been advertised as the copy of the advertisement has not been filed and whether the said vacancies have already been filled up and who are the candidates selected in that recruitment, as none of them is a party before us. There are no proper pleadings to determine the controversy involved in respect of such advertisements.

There can be no dispute to the settled legal proposition that the Court or Tribunal is not permitted to decide a case going out of pleadings of the parties nor the evidence led on a non-existing plea is permitted to be taken into consideration. (Vide Sri Mahant Govind Rao Vs. Sita Ram Kesho & Ors., (1898) 25 IA 195 (PC); Messers Trojan & Co. Vs. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Kishori Lal Vs. Mt. Chaltibai, AIR  1959 SC 504; Samant N. Balakrishna Vs. George Fernandez & Ors., AIR  1969 SC 1201; Dalim Kumar Sain & Ors. Vs. Smt. Nandarani Dassi & Anr., AIR 1970 Cal. 292; Dattatraya Vs. Rangnath Gopalrao, Kawathekar, (Dead) by his L.Rs & Ors., AIR  1971 SC 2548; Bhoona Bi & Anr. Vs. Gujar Bi, AIR 1973 Mad 154; Dr. R.K. S. Chauhan Vs. State of U.P. & Ors., 1995 Supp (3) SCC 688; Commissioner of Income Tax, Calcutta Vs. Park Hotel, (P) Ltd., 15 Park Street, Calcutta-16, (1996) 2 SCC 15; Syed Dastagir Vs. T. R. Gopalakrishna Setty, AIR 1999 SC 3029; Sankaran Pillai (Dead) by LRs Vs. V. P. Venuguduswami & Ors., AIR  1999 SC 3060; J. Jermons Vs. Aliammal & Ors., AIR 1999 SC 3041; Life Insurance Corporation of India & Ors. Vs. Jyotish Chandra  Biswas, (2000) 6 SCC 562; OM Prakash Gupta Vs. Ranbir B. Goyal, (2002) 2 SCC 256; and Ashutosh Gupta Vs. State of Rajasthan & Ors., (2002) 4 SCC 34).

It is not possible for the Court to decide an issue, not raised/agitated by the authority for the reason that other party did not have opportunity to meet it and such a course would violate the principles of natural justice. (Vide New Delhi Municipal Committee Vs. State of Punjab, AIR 1997 SC 2847).  Similarly, in V. K. Majotra Vs. Union of India & Ors., (2003) 8 SCC 40, the Apex Court held as under:-

"The Courts would be well advised to decide the petitions on the points raised in the petition and if in a rare case keeping in view the facts and circumstances of the case any additional points are to be raised then the concerned and affected parties should be put to notice on the additional points to satisfy the principles of natural justice. Parties cannot be taken by surprise."

In view of the above, it is neither necessary nor desirable to examine the issue of subsequent recruitment process.

However, in the facts and circumstances of this case, we also examined the alternative submission made by Shri V.B. Upadhyay, learned Senior Counsel appearing for the petitioners that after the coming into force of the Reforms Act, 1999 and the Transfer Scheme 2000, the Regulations 1978 do not survive and, therefore, there is no existing provision for holding of a written test. Shri V.B. Upadhyay, learned Senior Counsel placed much reliance upon Section 55 of the Reforms Act 1999 and contended that only the Rules framed under the Act 1910 or the Act 1948 were protected but the Regulations were not protected. On the other hand, Shri Ranjit Saxena and Shri Anil Mehrotra, learned counsel for the respondents placed reliance upon the provisions of Clauses 6(10) and 6(11)  of the Transfer Scheme 2000 and contended that all the Regulations shall continue till such time as new Regulations were not framed by the Transferee.  In the present case, learned counsel for the petitioners has not placed anything on record to indicate that the Transferee had framed separate Regulations while it has been specifically stated on behalf of the respondents that all the three Transferee Companies had subsequently adopted the Regulations 1978. In these circumstances, in our opinion, the Regulations 1978 will continue to operate and, therefore, both Junior Engineers and Operating Staff had to appear at the written examination.

Even otherwise, it is settled legal proposition that in the absence of any statutory Rules/Regulations, recruitment may be made on the basis of executive instructions and in absence thereof, by following a procedure which may be in consonance with the mandate of Articles 14 and 16 of the Constitution (Vide Ramesh K. Sharma Vs. Rajasthan Civil Services & Ors., 2000 AIR SCW 4206). Thus, it cannot be held that the respondents had acted arbitrarily or have violated the mandate of the Constitutional provisions. Petitioners' right in all such circumstances is limited to have preference over non-apprentice candidates, if other things are equal.

The resistance of the petitioners, therefore, to the holding of written examination for apprentice trainees is unsustainable and must fail.

For the reasons and conclusions drawn hereinabove, we do not find any merit in the writ petition which is accordingly dismissed.

31.01.2006

AHA/AKSI


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