ASHOK KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioners as well as respondents 6 to 80 are the employees of the Bihar State Electricity Board (hereinafter to be referred as the Board). In May, 1972 the Board put out an advertisement inviting applications from 1st Class Diploma -holders in Electrical/Mechnical Engineering with three years course for appointment as apprentice category I for a period of 12 months during which they would be given intensive training and respondents Nos. 6 to 76 applied and were selected for that post and after having successfully undergone training they were appointed as Operators/Technicians under the Board for managing its power stations at various places. A year later the Board put out an advertisement in May, 1973 again inviting applications for the post of apprentice category I, from Science graduates with Physics, Chemistry and Mathematics on condition that they will undergo training for 12 months and may on successful completion of the training and on passing of necessary tests be appointed temporarily as operator or on equivalent post and in response to the same the petitioners applied and were selected as apprentice category I and having successfully completed training were appointed on the post of operators/technicians during 1974 -76. In 1976 the Board framed the Bihar State Electricity Board Junior Engineers (Generation -euro Transmission Cadre) Regulation 1976 and in exercise of he power conferred upon it under proviso to Rule 8 of the Regulations (Annexure 4) the Board appointed by its order dated 6.7.1977 (Annexure 5) 109 persons, including respondent Nos. 6 to 76, who were diploma holders in Electrical/Mechanical/Electronics/Telecommunication Engineering as Junior Engineers in the cadre of Junior Engineers which has been created under the aforesaid Regulation of 1976. Respondents 77 to 80 who were previously employees of the Patna Electric Supply Undertaking (PESU) which was taken over by the Board had also been absorbed in the cadre of Junior Engineers. The petitioners were left to remain in the original cadre of operator -cum -technicians. The grievance of the petitioners is that they were unjustly and illegally discriminated against and left out from being placed in the cadre of Junior Engineers and this action of the Board is violative of Articles 14 and 16 of the Constitution. Their prayer in this application is for issuance of a writ of Mandamus of any other appropriate writ directing the Board to encoder them also as Junior Engineers from 6 July, 1977, and place them on the same footing as the respondents. They have also prayed for quashing Rule 8 including its proviso of the Junior Engineers (G.T.O. Cadre) Regulation 1976 (as contained in a Annexure 4) and also Rules 7 and 9(v) of the Bihar State Electricity Board Junior Electrical Engineers (General Cadre) Rules, 1982 as ultra vires.

(2.) For appreciating the points raised in this writ application, a few facts relating to the background of the setting up of the cadre of Junior Engineers in the Board and absorption of the respondents in the same is necessary. The Board itself came into existence on the first of April, 1958. In due course, it tools over the various Electricity Supply undertakings which used to supply Electricity in different parts of Bihar including the Patna Electricity Supply Undertaking (in short PESU). For efficient functioning it was considered necessary to form a separate organisation generation and bulk transmission of power and indeed the Government of Bihar gave such a direction to the Board in July 1975 under Section 78A of the Electric Supply Act, 1948. In 1976 the Board/with a view to gear up its generation and transmission machinery, constituted a generation -cum -transmission organisation (hereinafter to be referred as the G.T.O. Organisation) in accordance with the direction of the Government of Bihar as mentioned above. This was done by the Board in exercise of its power under Section 79 of the aforesaid Act and it framed the necessary regulations for setting up this G.T.O. organisation. The same year with a view to properly manage the G.T.O. organisation and creation of suitable cadres at different levels, the Board in exercise of its power under Section 79 of the Electricity (Supply) Act, 1948 (hereinafter referred to as the Act) framed two sets of regulations, the first being the Bihar State Electricity Board (Generation -cum -Transmission Cadre) Rules, 1976 (which replaced the generation cadre Regulation 1971) in respect of officers of the rank of Assistant Engineers/Assistant Superintendents and above, and the second being the Bihar State Electricity Board Junior Engineers (Generation -cum -Transmission Cadre) Regulation, 1976. Rule 8 of this latter Regulation relates to the manner of filing up posts in the cadre of Junior Engineers. At the time of setting up of this cadre, it appears that 226 posts of Junior Engineers were sanctioned and were available and Clause (a) of Rule 8 provide that initially all the 226 pasts shall be filled from amongst the Junior Engineer in the employment of the Board who hold diploma in Electrical/Machnical/Electronic/Telecommunication Engineering (three years course) and have an experience of at least five years of working as Junior Engineers. Clause (b) of Rule 8 provides that after the above posts have been filled up in the manner indicated in Clause (a) further vacancies shall be filled from diploma holder in Electrical/Mechanical/Telecommunication/Electronic Engineering three years course after competitive test and/or interview. Subsequently by notification No. 1750 dated 4th November, 1976 the Board added a proviso to Rule 8(a) which states that if sufficient number of Junior Engineers having experience of at least five years of working as junior engineers are not available initially, the Board may suitably relax the period of experience so as to fill up all the 226 posts in the cadre. By its notification No. 1091 dated 6.7.1977, the Board added another proviso to Rule 8 of the Junior Engineer, G.T.O. Regulation 1976. This proviso states that if sufficient number of Junior Engineers fulfilling the above conditions are not available from amongst the Junior Engineers of the Board, the Board may fill up the vacancies from amongst the diploma holders working as controllers/Assistant Controllers/Operations/Technician grade I in the power stations of the Board who are recommended by the Engineer -in -Chief as suitable for encadrement as Junior Engineers in the G.T.O organisation (This proviso is contained in Annexure 4 of the writ application). In exercise of the power under the proviso to Rule 8(a) the Board by its order dated 6.7.1977 (Annexure -5) appointed 109 diploma holders including respondents Nos. 6 to 76 as Junior Engineers in the Junior Engineers G.T.O cadre created under the Regulation of 1976. The petitioner being merely science graduates and not having any diploma in engineering, were thus left out. Further, in 1982 the Board in exercise or the same power under Section 79 of the Electricity (Supply) Act 1948 framed the Junior Engineer (General cadre) Rule 1982 which was notified on 11.10.1982 and Rule 7 of the same finally shut the door against the petitioners (Science graduates) disentitling them from being considered for and being placed in the cadre of Junior Engineers.

(3.) Before proceeding further, it is desirable to indicate that the case of the respondent Nos. 77 to 80 stands on a different footing than of respondent Nos. 6 to 76. As already mentioned above, the last 4 respondents (respondents 77 to 80) were originally employees of PESU and such of its employees who opted for it were abosrbed in the service of the Board in the Year 1974. At the time of absorption, these four respondents were holding the post of Supervisor in PESU and on absorption they were fitted into the pay scale of Junior Engineers (of the Board) but it was ordered that person who were not diplom -holders, which was the position of these four respondents, will continue to be designated as Junior/Senior Supervisor and shall not be part of the cadre of Junior Engineers. These respondents and others filed representation that they should be treated as part of the cadre of Junior Engineers and they also filed a writ application being C.W.J.C. No. 818 of 1978 and it was ordered in the writ application (Annexure -7) that these persons (respondents 77 to 80) would also be treated as being in the cadre of the Junior Electrical Engineers. Thus, it was on account of order of the Court as passed in the aforesaid writ application, that respondent Nos. 77 to 80 have continued to remain in the cadre of Junior Engineers of the Board. It may, however, be noted that although these four respondents did not hold the diploma Junior Engineer, they were not totally lacking in technical qualification in as much as they held certificates of I.T.I. Electricity Diploma course of Electrical Engineering or trade course of Electricity and had also long standing in service in PESU. They had, therefore, come to the cadre of Junior Engineers in accordance with Court's order and not by virtue of the classification made by the Board in exercise of the power conferred upon it under Rule 8(a) and its provisos.