Rakesh Ranjan Verma and Others vs The State of Bihar and Others

N.P. Singh, J.—The Petitioners have filed this writ application to direct the Bihar State Electricity Board (hereinafter referred to at ''the Board'') to implement the direction given by the State Government by its communication dated 18.7.1988 in purported exercise the power u/s 78A of the Indian Electricity (Supply) Act, 1948 (hereinafter referred to as ''the Act''). By the aforesaid communication the Board has been directed to absorb the Petitioners against the vacant posts of Junior Electrical Engineers.

The Board issued an advertisement dated 26.5.1983 inviting applications for appointment against 447 posts of Junior Electrical Engineers. The Petitioners along with other made applications. On 22.10.1983 a competitive test was held. The result was published 28.4.1984, in which 840 candidates including the Petitioners were declared successful. After interview panel of 790 candidates including the Petitioners was prepared. Appointment letters were issued to first 447 candidates. As no posts of Junior Electrical Engineers were available for remaining 343 candidates including the Petitioners they could not be appointment. Later, they were appointed against the posts of Operator. In the decision to appoint these Petitioners as Operators, as well as in their appointment letters as Operators, it was specially mentioned that at later stage they shall not claim that they be appointed against the posts of Junior Electrical Engineers.

However, later the Petitioners made claim before the Board and the State Government that they should be absorbed against the vacant posts of Junior Electrical Engineers on the basis of the aforesaid merit list prepared in the year 1984.

It appears that by a communication addressed to the Secretary of the Board the state Government called for the details in respect of the Petitioners. On 11.4.1988 the Secretary of the Board addressed a letter to the Secretary, Department of Energy, stating as to how the Diploma Holders had appeared at the written test for selection to the posts of Junior Engineers and on the basis of the said examination a merit list of 790 applicants had been prepared. It was also mentioned that out of the said merit list 447 applicants had been appointed as Junior Electrical Engineers and the remaining applicants, who could not be appointed as Junior Electrical Engineers, were appointed against the post of Operators on an undertaking given by them that in future they shall not make a claim that they be appointed as Junior Electrical Engineers. Thereafter, the communication dated 18.7.1988 (Annexure-6) was issued by the Department of Energy to the Board saying that as the Petitioners had appeared At a written test for being appointed against the posts of Junior Electrical Engineers, any undertaking given by them on the event of their appointments as Operators was an unreasonable restriction, as such, they be absorbed against the posts of Junior Electrical Engineers, which became available later during the years 1984 and 1985. Towards the end it was said that the said direction was being issued in exercise of the power u/s 78A of the Act.

Yet another communication of a similar nature was issued by the State Government on 5.5.1989 (Annexure-7) reiterating the earlier direction that the Diploma Holder Operators i.e. the Petitioners be absorbed against the posts of Junior Electrical Engineers against the vacancies of the year 1984 and 1985 on the basis of the merit list prepared in the year 1984. It was also said that the posts of Operators held by these Petitioners be designated as posts of Junior Electrical Engineers and the Petitioners be absorbed against such posts. Towards the end it was reiterated that the said direction be treated as one u/s 78A of the Act.

When the directions given by the State Government were not complied with by the Board the present writ application was filed for a direction to the Board to implement the direction given by the State Government, which was binding on it.

In the counter affidavit filed on behalf of the Board it has been asserted that as in the merit list, which was prepared on the basis of the advertisement issued in the year 1983 in respect of the posts of Junior Electrical Engineers, the position of the Petitioners was lower they could not be appointment. Thereafter, on the recommendation of a committee they were appointed against the posts of Operators in Thermal Power Stations with a specific condition that they shall not later claim for appointments as Junior Electrical Engineers. It has been pointed out that when these Petitioners accepted the said condition they were appointed Operators by the Board, It has also been stated that the panel/merit list which was prepared in the years 1984 lost its validity after lapse of the year in the year 1985. As it shall not be proper nOW to appoint the Petitioners against the posts of Junior Electrical Engineers from a stale panel, the posts of Junior Electrical Engineers, which became vacant later have been advertised and fresh applications have been invited. Regarding the direction of the State Government to absorb these Petitioners, the stand of the Board is that no such direction is permissible u/s 78A of the Act.

Section 15 of the Act, which vests power in the Board to make appointments of officers and employees is as follows:

Appointment of staffs-Board may appoint a Secretary and such other officers and employees as may be required-to enable the Board to carry out its functions under this Act:

Provided that the appointment of the Secretary shall be subject to the approval of the State Government.

On a plain reading the Board can make appointments of officer and employees as may be required to enable the Board to carry on us functions under the Act. However, so far the appointment of the Secretary is concerned, that shall be subject to the approval of the State Government. Chapter IV of the Act prescribes the powers and duties of the Board. The State Government u/s 78A of the Act may, after previous publication, by notification in the official gazette frame rules to give effect to the provisions of the said Act. Section 76A, the scope whereof is under controversy in the present writ application, is as fellows:

18A. Directions by the State Government:

(1) 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

(2) If any dispute arises between the Board and the State Government as to whether a question is or is not a question of policy, it shall be referred to the Authority whose decision thereon shall be final

Section 79 vests power in the Board to make regulation in respect of subjects mentioned in Clauses (a) to (k). It may be mentioned that in exercise of the power u/s 79 the Board has made the Bihar State Electricity Board Junior Engineers (Generation-cum-Trans mission Cadre) Regulations, 1976 (hereinafter referred to as ''Regulations''). The Regulation; provides the procedure for appointment of Junior Engineers.

The stand of the Board is that the directions given by the State Government by aforesaid communications dated 18.7.1988 and 5.5.1989 to appoint the Petitioners who are working as Operators, which posts they had joined after furnishing undertakings individually that at later stage they shall not claim to be appointed against the posts of Junior Electrical Engineers, cannot be a direction in respect of a policy, matter, as such not covered within the scope of Section 78A of the Act.

It is a matter of common knowledge that during the last four decades many functions of the State Government have been entrusted to Government Corporations and statutory authorities under different enactments. The Board is one such statutory body established under the Act itself. In different enactment some sort of supervisory power has been vested in the State Government or the Central Government, as the case may be. In exercise of those powers the Central Government as well as the State Government can issue directions so that-such Boards and Corporations perform their duties as enjoined by the provisions of the different enactments. But at times controversy is bound to arise as to whether the direction is within the authority vested in the Slate Government or the Central Government.

Section 78A of the Act says. 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. As such the direction by the State Government must be related to functioning of the Board and in which some policy is involved. The scope of Section 78A of the Act has been considered by different High Courts. Reference in this connection may be made to a Full Bench Judgment of Kerala High Court in the ease of A.M. Mani v. Kerala State Electricity Board represented by Its Secretary Trivendrum and Ors. AIR 1968 Ker 76. it was pointed out that in the terms of the section aforesaid, the direction must be in respect of the function of the Board mid that the primary and essential functions of the Beard arc generation, distribution, utilization of electricity and the Development of water power etc. It was further said as follows:

The section itself contains a limitation that the directions must be on question of policy. We feel that it is also implicit in the nature and conception of the Board, and the purpose of its incorporation that its autonomy is not to be fettered, if not entirely disproved by all manner of directions issued by the Government. The word functions in its widest sense includes all powers and duties as implied by the marginal note to Section 27. But in its ordinary sense, especially when used with reference to an authority, it generally means the functions which the authority was constituted to perform,, what we night call its primary and essential functions not incidental functions necessary for currying on its essential functions. The expression functions" in Section 78A of the Act can only have relation to the primary and essential functions of the Board.

In that very Judgment it was observed that the directions u/s 78A of the Act cannot extend to fixing the rank and seniority of an employee of the Board.

In the case of The Andhra Pradesh State Electricity Board and Another Vs. N. Ramachandra Rao and Another, in respect of the scope of Section 78A of the Act, it was pointed, but as follows:

The State Government, u/s 78A can only issue directions on questions of policy for the guidance of the Board in the discharge of its functions. The power to give directions on matters of policy by the State Government would not take away this statutory power given u/s 15 to the Board for appointing its employees to carry out its functions under the Act. By the addition of the proviso, the Parliament restricted the power of the Board u/s 15 only in so far as it relates to the appointment of its Secretary being made subject to the approval of the Suite Government. On a harmonious construction of Section 15 and 78A, we hold that the spheres of the aforesaid two sections are distinct and different and one is not controlled or governed by the other. We cannot read something which is not there in the Section 78A. A reading of the relevant provisions of the Act would clearly disclose that the Board is an autonomous corporate body having statutory powers u/s 15 of the Act to appoint nil other employees of the Board, except its Secretary as may be required to enable it to carry out its functions under the Act. Hence, of a consideration of the relevant provision of the Act, we have no hesitation to hold that the Board for the applications and appoint 50 percent of the Accountants by direction requirement

Wade in his book on Administrative Law (5th Edn. at Page 143) Observed):

There was to be a distinction between broad policy and day-by-day administration, the former being the sphere in which the Government might intervene and the latter belongs to the sphere of independent self-management

The Board is a statutory authority constituted by the State Government u/s 5 or the Act and shall be deemed to be "State" within the meaning of Article 12 of the Constitution. Section 15 in clear and unambiguous words vests power in the Beard to appoint its officers and employees as may be required to enable the Board to carry out the functions under the said Act. As already pointed out above, only the appointment of the Secretary of the Board shall be subject to the approval of the State Government, So far the other officers and the employees of the Board are. concerned, no approval is required to be taken of the Slate Government for their appointment by the Board In this background the scope of Section 78A(1) has to be considered so that the power of appointment in respect of officers and employee by the Board u/s 15 is not denuded by Section 78A of the Act. When the framers of the Act have vested power u/s 15 in the Board to appoint such officers are employees as may be required to enable the Board to carry out its functions and no approval for such appointment is required to betaken from the State Government except in the case of appointment of the Secretary it shall be reasonable to assume, that power u/s 78A of the Act is to be exercised by the State Government only when some policy is involved. That power is not to be exercised for directing that particular individual or a group of persons be appointed as officers of the Board.

In the facts of the present case it shall appear that an advertisement was issued as early as on 26.5.1983 for appointment of Junior Electrical Engineers. A panel of 790 candidates including the Petitioners was prepared in the years 1984. From that panel 447 applicants were appointed against 447 vacant posts. As no posts of Junior Electrical Engineer were available for remaining 343 candidates including the Petitioners they could not be appointed as Junior Electrical Engineers. Later a decision was taken by the Board to appoint out of such 343 left out applicants including the Petitioner against the posts of Operators under the Hoard on the condition that at any later stage they shall not claim that they be appointed against the posts of Junior Electrical Engineers. On the basis of individual undertaking given by the Petitioners that they shall not late make claim to be appointed against the posts of Junior Electrical Engineers, they were appointed as Operators. In spite of the undertaking given by the Petitioners and the condition prescribed by the Board while appointing Petitioners as Operators the Petitioners made a claim before the Beard as well as before the State Government that they be absorbed against the vacant posts of Junior Electrical Engineers on the basis of merit list prepared in the years 1984. When the claim made on their behalf was not accepted by the Board, the State Government issued the aforesaid communication dated 18.7.1988 to the Board in purport exercise of the power u/s 78A of the Act directing the Board that the Petitioner and such others, who had appeared at written test held in the year 1983 be appointment against the posts of Junior Electrical Engineers and the undertaking given by them on the of their appointments as Operators being and as enable restriction, be ignored. The same direction was repeated by the State Government by another communication dated 5.5.1989 my view, in a direction to appoint the left candidates from a panel or merit list due non-availability of the posts at the referee time after four to five years, no question of policy is involved. The Board being an autonomous authority clothed with the power to make appointments of its officers and employees u/s 15 of the Act is not bound to follow such directions, which, in my view, mounts to an encroachment on the power which has been vested in the Board by Section 15 of the Act.

On behalf of the Petitioners reference was made to the judgment of the Supreme Court in the case of S.S. Moghe and Ors. v. Union of India and Ors. AIR 1981 SC 1495 and it was pointed out that in that casein connection with Rule 6 of the Aviation Research Centre (Technical) Services Rules, which declared that all persons holding, as on an appointed day, any one of the categories of the posts specified in Rule 4, whether in a permanent or temporary or officiating capacity or on deputation basis, shall be eligible for appointment to the service at the initial constitution thereof. In that connection it was said by the Supreme Court:

When a Hew service is proposed to be constituted by the Government, it is fully within the competence of the Government to decided a matter of policy the sources from which the personnel required for manning the services are to be drawn

To issue a direction in respect of sources from where personnel required fur manning the Services are to be drawn when a new service is proposed to be constituted by the Government, certainly will be the policy decision. But in the facts of the present case, the direction to Appoint certain pet sons who had applied for being appointed as Junior Engineers by the Board but could not be appointed against the vacancies then existing, the Petitioner being lower in the merit list, does not involve any policy.

Our attention was also drawn to a judgment of the Supreme Court in the case of Col. A.S. Sangwan v. Union of India and Ors. 1980 (2) SLR 1 where it was pointed out that the Government was competent to take policy decision for filling up the posts of Brigadiers and said power extends to change re-change or adjust such policy which has to be fair and reasonable. In my view, the aforesaid judgment has no bearing on the facts and circumstances of the present case.

The learned Advocate General, who appeared for the State Government, urged that at times the State Government may have to issue directions even in respect of appointments to be made by the Board, like to follow the provisions of Constitution while making appointments or to follow a particular procedure, which is necessary to be followed in the public interest. In my view, even in matters of appointments it is open to the State Government to issue directions, which can be held to be on question of policy. For example if appointments are being made by the Board in exercise of the power u/s 15 without any advertise meat, without consideration of Inter se merits Of the applicants by a proper selection committee without following the requirements of Articles 14 and 16 of the Constitution, say direction by the State Government shall be within the scope of section 78A of the Act. But a Direction to appoint the left over candidates of any particular merit list or panel does not involve any such policy matter on the other hand, it can be said that such direction, are themselves violative of Articles 14 and 15 of the Constitution It has been pointed out by the Supreme Court from time to time that whenever vacancies exist in public officer, at opportunity should be given to all persons who become eligible on the date such posts are to be filled up, for being considered for appointments against such posts. It has also been impressed by Courts that primary object of the authority making appointments should be to select the best amongst the applicants subject to the policy of reservation for being appointed against such posts. In the case of State of U.P. and Anr. v. Ram Gopal Shukla AIR 1981 SC 1041 statutory rule framed under Article 309 of the Constitution giving validity to a State panel was held to be violative of Articles 14 and 16 of the Constitution and, so ultra vires. In that connection it was said:

Those letters and objections point out unmistakably that the selection was unnecessarily postponed only to accommodate the 300 persons included in the Select List of 1966. There appears to be no rational basis for such a departure from the ordinary operation of the 1970 Rules which envisaged the preparation of a new List every year and for singling out one particular list for according preferential treatment to the persona whose names were contained therein. The classification in this case, therefore, cannot be said to be a reasonable classification bused on intelligible differentia having a nexus to the object sought to be achieved.

It was further said:

A rule which contemplates that unless the list of 300 persons is exhausted no other person can be selected, obviously is unjust and it deprives other persons in the same situation of the opportunity of being considered for promotion.

Now, in the instant case directions are being issued in the year 1988 and 1989 by the State Government to appoint the Petitioners whose names had been included in the panel prepared for appointments of Junior Electrical Engineers in the year 1984. In my view, such direction is not covered within the scope of Section 78A of the Act. Such direction is also in violation of Articles 14 and 16 of the Constitution.

Although in the prayer portion of the writ application a direction has been ought against be Board to comply with the direction given by the State Government by the aforesaid two communications, still during heading of the writ application it was urged that in alternative this Court can direct the Board to absorb the Petitioners against the vacant posts of Junior Electrical Engineers. In support of the contention that tinder special facts and circumstances persons, who are already working in Board, can be absorbed against the equivalent posts or against posts superiors to the posts held by such persons, reference as made to a judgment of the Supreme Court in the case of Surya Narain Yadav and Others Vs. Bihar State Electricity Board and Others, . From a bare reference to the aforesaid judgment it shall appear that the Board had been representing to the trainee engineers of that case from time to time that after their training was completed, they would be (sic) in regular appointment of the Board. The Board had also taken a firm decision to absorb them on permanent basis with out conducting any further examination. Thereafter, they were directed to appear at a competitive examination. After noting the before said circumstances and applying the principal of estoppel enunciated in well known case of Union of India (UOI) and Others Vs. Indo-Afghan Agencies Ltd., Century Spining and Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council AIR 1971 SC (sic) and Motilal Padampat Sugar Mill Co. Limited v. State of Uttar Pradesh AIR 1971 SC 621, it was held that be Board was bound to regularise the appointments of such appointees, who had been taken as trainee engineers initially and had continue to be in the employment of the Board in the present case as already pointed above, other any assurance Was given nor it was presented to the Petitioners that later they shall be appointed or absorbed against the posts of Junior Electrical Engineers. On the other hand, they were appointed as Operators undertaking being given by them individually that at later stage they shall not claim that they be appointed against posts of Junior Electrical Engineers.

In the Service Jurisprudence, normally, there are two modes of recruitment, one by direct recruitment, the other by promotion. The Petitioners are challenging the steps taken by the Board to fill up this vacant posts of Junior Engineers by process of direct recruitment. They want to be absorbed from the lower-posts of Operators to the posts of Junior Electrical Engineers for which they had applied in the year 1983 and their names had been in clouded in the panel prepared la the year 1984. in support of the stand that the Petitioners can be absorbed against such posts our attention was drawn to Rule 7 of the Bihar State Electricity Board Junior Electrical Engineer (General) Cadre Rules, 1982, the relevant part whereof is as follows:

Manner of filling up posts In the Cadre. Posts in the Cadre shall be filled up by direct recruitment from diploma holders) in Electrical Engineering and by absorption of those Boards employees who, while serving the Board on lower posts secure diploma in Electrical Engineering. Appointment by direct recruitment and by absorption shall be made against vacancies in a calendar year, in the ratio of 75 25. In case, however, if no employee of the Board is available for absorption in a Calendar year, all the vacancies shall be tilled up by direct recruitment.

During hearing of the writ application it transpired that curlier Rule 7 has now been substituted by a new Rule by a notification dated 14.10.1988 issued u/s 79(c) of the Act, which is as follows:

Appointments to the posts of Junior Elec. Engineers from amongst the employees of the Board having Diploma in Elec. Engineering will be made on the basis of the recommendation of a Selection Committee which will be constituted by the Chairman for the purpose The Selection Committee will examine the records and interview the candidates who obtain diploma in Electrical Engineering while in the service of the Board along with those employees who had obtained diploma in Electrical Engineering before joining the service of the Board.

In view of the substituted Rule 7 a Selection Committee has to consider the cases of Diploma holders, who had acquired the diploma before joining the lower posts under the Board, or have acquired diploma while in the service of the Board, for being appointed against the posts of Junior Electrical Engineers. In view of this amended Rule which, we are informed, came in force in 1988 itself, now there is no question of absorption of the Petitioners outright without consideration of inter se merit by the Selection Committee.

For the reasons mentioned above, it is not possible to hold that the two communications dated 18.7.1988 and 5.5.1989 shall be deemed to be a direction on question of policy by the State Government so that this Court may issue a writ of mandamus directing the Board to comply with those directions. It is also not possible for this Court to issue a direction to the Board to absorb the Petitioners straightway against the posts of Junior Electrical Engineers of course, it will be open to the Board to consider the cases of the Petitioners along with others for appointments to the posts of Junior Electrical Engineers in accordance with the now Rule 7 referred to above.

This writ application is, accordingly, dismissed. In the circumstances of the case, there shall be no orders for costs.

Sachchidanand Jha, J.

I agree.