ISDICTION Civil Appeal No 3092 of 1985 etc
From the Judgment and Order dated 121985 of the Alla habad High Court in WP No 1535 of 1972
338 SN Kacker RB Mehrotra Gopal Subramanium Mrs section Dixit section Balakrishnan and Ifran Ahmad for the Appellants
TS Krishnamoorthi Iyer Mukul Mudgal section Balakrishnan and Rajesh for the Respondents
The Judgment of the Court was delivered by KHALID J
This appeal by special leave and the connect ed special leave petition and the writ petition directed against the judgment and order of the Allahabad High Court dated February 1 1985 raise a question of construction of Regulation 7ivb of the UP State Electricity Board Service of Engineers Integration  Seniority Regulations 1976 framed under section 79c of the 
By the judgment a Division Bench of the High Court has disallowed a batch of writ petitions seeking to quash an order of the UP Public Services Tribunal Lucknow dated April 3 1978
Allowing a representation made by respondent No 1 presently working as Superintending Engineer in the UP State Electricity Board the Tribunal held that in terms of Regulation 7ivb 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 result respondent no1 who figures at serial No 12 in the integrated seniority list of Assistant Engineers Civil ie below other Superintending Engineers including the six petitioners in the connected special leave petition No 883585 would take his place at serial no1 in the seniority list ie above them
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 recruit ment as held by the Public Services Tribunal and the High Court
That turns on a construction of the amended Regula tion 7ivb of the Regulations
Regulation 7ivb as originally 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 advance increments which were allowed to them at the time 339 of recruitment by the Board
In doing so no officer shall however be given advantage beyond the date of his initial regular ap pointment in the Government department or the other organisations
 On June 19 1976 the Electricity Board in exercise of the powers under section 79c of the amended Regulation 7ivb to remove certain anomalies and to give effect to the intention or  the Board in framing the rule of seniority
It was felt by the Board that the expres sion other organisations  in the unamended Regulation 7ivb was susceptible of a construction that in the matter of determination of inter se seniority among directly recruited Engineers vis a vis Engineers on deputation with the Board from the Central Government or the State Govern ment the seniority of the Engineers had to be reckoned by giving them the benefit of as many years of service as the number of advance increments given to them by reason of their special experience or qualifications
The Board ac cordingly substituted the words UP or Central Government Department in consideration of the service for which advance increments were so allowed  for the words Government de partment or other organisations  in Regulation 7ivb
The amended Regulation 7ivb 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 advantage of as many years of service as is the number of 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 regular appointment in the UP or Central Government Department in consideration of the service for which 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 ie Civil Engineers and the Electrical and Mechanical Engineers of the Irrigation  Power Depart ment were transferred to the UP State Electricity Board constituted under section 5 of the which came into existence on April 1 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 340 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 PL Kelkar who by reason of his previous experience was given a higher start of Rs 490 in the scale of Rs 250 850 which meant that he was given nine advance increments as against two increments given to others
Prior to his joining the Electricity Board respondent no1 had varied experience in different govern mental and other organisations
After obtaining his degree in Bachelor of Engineering in the year 1957 he was recruit ed 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 scale of Rs 250 600
Thereaf ter on June 9 1960 he accepted appointment as Engineering Assistant Grade I in the Indian Refinery Limited Guwahati a Government of India undertaking on a scale of Rs300525 after leaving the services of 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 Associated Cement Company Limited Bombay on an initial salary of Rs 305 per month with annual incre ments
After the interviews of the candidates held on August 17 1964 the Board in its letter of appointment dated August 22 1964 offered respondent No 1 two advance incre ments and stated that his seniority vis a vis the other candidates selected for appointment would be determined later
It seems that 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 Rs490 ie nine advance increments because of his previous experience
It may be mentioned here that the Board also granted a higher initial pay of Rs490 ie nine advance increments to Prakash Chandra Jain and Rs430 ie seven advance incre ments to Naresh Chandra Gupta
As against respondent No 1 who had been directly re cruited by the Board wef October 7 1964 and is now working as a Superintending Engineer in the Electricity Board the six petitioners in the connected special leave petition No 883585 namely VN Mathur Mohd Wasi Ahmad Madan Mohan Brajesh Sahai Amba Prasad and OP 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 Department
It seems that respondent No 1 as well as the petitioners were 341 confirmed as Assistant Engineer wef April 1 1975
There was no 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 section 79c of the framed the UP State Electricity Board Service of Engineers Integration  Seniority Regulations 1976
As already stated the unamended Regulation 7ivb provided that while determining seniority Engineers directly re cruited by the Board before the commencement of the Regula tions 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 ie 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 Regulation 7ivb as indicated above
On May 19 1977 the Board rejected the representation made by respondent No 1
A few months thereafter ie on Septem ber 28 1977 the Board in acccordance with the amended Regulation 7ivb published the integrated seniority list in which the name of respondent No 1 figures at serial No 12 ie below other officers at present working as Superin tending 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 for and were not selected by the Board as Assistant Engineers Civil in 1968
Respondent No 1 PL Kelkar has averred in paragraphs 7 8 and 9 of the counter affidavit that the aforesaid petitioners who were working on deputation with the Electricity Board did not consider it beneficial to leave their parent department viz Irrigation  Power Department and join the services of the Board at the relevant time 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 the post and the selection was made by a Selec tion Board on the basis of interview and record of past service and adds However all the petitioners except petition ers nos
4 and 5 Panba Prasad and OP Sharma were not selected for the post of Assistant Engineer Civil as per the selection list published by the Board
The reason for the non selection 342 was obviously that they were not found fit for the post on the basis of their record and interview
 When this averment 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 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 direc tion and place before the Court the relevant records and also file an affidavit
Learned counsel for the petitioners in the connected special leave petition however was baffled at the suggestion that the petitioners should have at all applied for the post of Assistant Engineer Civil adver tised 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 MS Rizvi Deputy Secretary UP State Electricity Board has sworn an affidavit bringing the relevant facts on record
It is averted 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 UP State Electricity Board were invited and that inter views of the candidates who had applied in pursuance of the said advertisement were conducted during December 1968 and January 1969
In paragraph 3 the respective dates of promo tion of the petitioners as Executive Engineers are given
In paragraph 4 however it is stated that the records relating to the applications in the interviews are not traceable inspite of the best efforts made by the senior officers of the Electricity Board
In his rejoinder respondent No 1 PL Kelkar contro verts the facts alleged
He submits 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 III77 filed by Shri NP Malik  Ors
vs UP State Elec tricity Board it was averted in para 11 as follows That respondents Nos 2 to 15 applied against advertisement for selection of direct recruits as Civil Engineers in 1968
After an interview they were found to be unfit and were not selected for the substantive post
The list of 343 persons selected under section 30
No 2208 ASEB159 A1968 dated 1469 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
 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 rele vant records of the interviews held in the year 1968 are not available 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 7ivb before and after its amendment
The regulation comprises of two parts
The first part refers to the advantage of advance increments
This advantage is based on special qualification and past experience and its conse quent effect on seniority
The grant of subsequent incre ments by the Board after joining its service is not governed bythis regulation
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  occurring in the regulation
What is contended is that this expression indi cates the manner in which the first part is to be construed
The regulation before its amendment mentioned Government departments or other organisations but after its amendment it was changed to in the UP or Central Government Depart ment 
This change shows a deliberate attempt to deny its benefit to employees who came from service not comprised in either UP or Central Government departments
We do not think that it would be either just or 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
It is necessary to note that the first part of the regulation does not speak of Engineers in the UP 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 344 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 re stricted meaning to the expression in doing so 
It is useful to note
that the Board s advertisement inviting applications 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 UP as well as Central Government and not to affect the generality as contemplated in the first part
The injustice that will be meted out to the Engineers who came 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 PL Kelkar
He was ap pointed as a Junior Engineer PWD MP on July 19 1957 and was promoted as Assistant Engineer and posted in Housing Department on May 20 1959
On June 9 1960 he was appointed Engineer Assistant Grade I in Indian Refinery Limited Guwahati after leaving the services of the MP 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 UP State Electricity Board
He applied pursuant to such advertisement
He was selected by the Board and appointed as per order dated August 22 1964
He joined service on October 7 1964
He was given nine increments taking into consideration his special qualifica tion and experience
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 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 wef October 7 1957 instead of October 7 1964 when he joined the service of the Board
The Tribunal according to us justifiably repelled the contention that he was not entitled to the above advantage under the second part of the Regulation 7ivb
In our view the Tribunal was justified also in holding that second part is in the nature of proviso limited to persons who had been in service of either UP or the Central Government Departments and who had been given ad vance increments in consideration of such service
The High Court considered the question in detail with refer ence 345 to the regulation under consideration and agreed with the Tribunal in 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 amend ment
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
In our judgment therefore seniority will have to be fixed in accordance with the number of increments excluding the original two increments given to the entrants in the Board both from the UP and the Central Government Departments and from other sources
We do not think it necessary to answer other aspects of the case for this judgment
We do not think any interference is called for with the judgment of the High Court
We confirm the judg ment dismiss the appeal writ petition and the special leave petition with no order as to costs
NPV Appeal and Petitions dis missed


Summary:
The first respondent in the Appeal a Superintending Engineer was directly recruited by the UP Electricity Board as an Assistant Engineer on October 7 1964
He was given nine advance increments by reason of his varied expe rience in different governmental and other organisations as against two advance increments given to others
The peti tioners in the connected special leave petition also working as Superintending Engineers were Assistant Engineers in the Irrigation and Power Department and were placed on deputa tion with the Electricity 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 there any rules of seniority at the time when the first respondent joined service
The Electricity Board in exercise of the power con ferred under section 79c of the framed the UP Electricity Board Service of Engineers Integration and Seniority Regulations 1976
Regulation 7ivb 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 however be given advantage beyond the date of his initial regular appointment 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 UP 336 CR 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 published the integrated seniority list in which the name of the first respondent figured at SI
No 12 below other officers working as Superintending Engineers including the petitioners in the connected special leave petition
The first respondent made a representation to the UP Services Tribunal challenging the amended regulation which was allowed
The Tribunal held that in terms of Regulation 7ivb of the Regulations 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
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
The Appeal by special leave by the Electricity Board the connected Special Leave Petition of the aggrieved peti tioners and the Writ Petition challenged the construction and application of Regulation 7ivb
Dismissing the Appeal the Special Leave Petition and the Writ Petition the Court HELD 1 Regulation 7ivb of the UP State Elec tricity Board of Service of Engineers Integration and Seniority Regulations 1976 comprises of two parts
The first part referred to the advantage of advance 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 organisations  but after its amendment it was changed to in the UP or Central Government Depart ment  This change showed a deliberate attempt to deny its benefit to employees who came from service not comprised in either UP 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 depart ments or corporations etc
343D F 344B 2
The first part of the regulation does not speak of Engineers in the UP or Central Government Departments
It speaks only of Engineers 337 directly recruited by the Board before the commencement of the regulation 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 
343H 344A 3
The Board s advertisement in the instant case invit ing applications 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 UP as well as Central Government Departments and not to affect the generality as contemplated in the first part
344B 4
The Tribunal was right in holding and the High Court in agreeing with it that the second part was in the nature of proviso limited to persons who had been in service of either UP or other Central Government Departments and who had been given advance increments in consideration of such service
344G H 5
In the instant case the first respondent was given nine increments taking into consideration his special quali fication 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 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 of extra increments under the second part of Regulation 7ivb
The seniority will have to be fixed in accordance with the number of increments excluding the original two increments given to the entrants in the Board both from UP and the Central Government Departments and from other sources
344E G 345B