Case: Md. Islam &amp; Ors Vs. The Bihar State Electricity Board &amp; Ors

regulate the service conditions of its employees was neither ipso facto nor mutatis mutandis applicable to the employees of the respondent No.1-Electricity Board unless the same was adapted by the respondent No.1- Electricity Board. Even if adapted, it would depend on the manner and to the extent adapted. 10. With this position being clear, a perusal of the notification dated 25.06.2003 issued by the State of Bihar will indicate, the benefit of the same is being sought by the appellants is in relation to its applicability w.e.f 09.08.1999 as provided therein. However, the notification on the face of it indicates the category of employees to whom it would apply as also the category to which it does not apply. The relevant portion reads as hereunder:- It shall be extended to all the regular employees of Group B, C and D of the State Government of Bihar. This may also be made applicable, by a special order of the state Government, to holders of isolated posts of Group A. This shall not be applicable to the teachers of nationalised schools and employees of the Public Undertakings or the autonomous institutions, assisted, partially or fully, by the State Government. (emphasis supplied) 11. A perusal of the same would indicate that, apart from the legal position relating to the applicability of its own service conditions to the employees of the respondent No.1-Electricity Board, the notification dated 25.06.2003 itself clarifies that it shall not be applicable to the employees of public sector undertakings or autonomous institutions. The undisputed position is that the respondent No.1 is a statutory Board which is therefore an autonomous public undertaking. If that be the position, the mere issue of the notification dated 25.06.2003 by the State of Bihar would not create any right in favour of the employees of the respondent no.1-Electricity Board for the benefits provided under such notification. It is in that light, the notifications dated 05.04.2005 and 07.10.2005 become relevant in the matter of granting benefit of the ACP Scheme to the employees of the respondent No.1-Electricity Board since there can be no claim until it is adapted. In that regard, a perusal of the notification dated 05.04.2005 (Annexure P3) indicates that the Committee constituted by the Board had submitted its recommendations which were considered by the Board and had thereupon taken a decision to replace the then existing system of Selection Grade and Time-bound Promotion with Assured Career Progression Scheme. The pay-scale for the purpose of ACP Scheme was to be notified later. Though, the notification dated 05.04.2005 adapting the ACP Scheme was notified, immediately thereafter a notification dated 07.10.2005 (Annexure P4) was issued which reads as hereunder: BIHAR STATE ELECTRICITY BOARD, PATNA (DEPARTMENT OF GENERAL ADMINISTRATION) NOTIFICATION Notification XVIII/ Misc.-932/2003/108/ dated 7.10.2005 In pursuance of Boards Resolution no. 8165 dated 22.9.2005 the Board in exercise of power conferred upon the Board under Section 79(C) of the electricity supply Act, 1948 has decided to adapt Bihar State Employees Condition of Service (Assured Career Progression Scheme) Rules 2003 only for the staff appointed after issuance of Boards notification No. 25 dated 5.4.2005. Boards notification no. 25 dated 5.4.2005 stands modified to the above extent. By order of the Bihar State Electricity Board Sd/- (Bishwanath Prasad) Secretary. (emphasis supplied) 12. A perusal of the notification dated 07.10.2005 indicates that the decision of the Board to adapt the ACP Scheme of 2003 was only for the staff appointed after the issuance of the Boards notification No.25 dated 05.04.2005. The same indicates that respondent No.1-Electricity Board did not adapt the ACP Scheme of 2003 retrospectively w.e.f 09.08.1999 as was done by the State government for its employees but had given prospective effect from the date the respondent no. 1-Electricity Board had adapted the same through the notification dated 05.04.2005. 13. If that be the position, the appellants, in any event, cannot contend that the Scheme should be applicable from the very same date on which it had been made applicable to the State Government employees when the respondent no.1-Electricity Board had the discretion to either adapt or not to adapt the Scheme. When the Board had decided to adapt, in such event it has also the discretion to alter the date of its applicability as against the date notified by the State Government. Any judicial review on the date chosen for applicability would arise only if such choice of date is demonstrated to be malafide or with ulterior motive. In the instant case, the date chosen is the date on which the scheme was adapted and the advantage or disadvantage thereof would befall on all employees across the board depending on which side of the fence they are as on such date. 14. In the instant appeal as already noted, even as on the date the notification dated 05.04.2005 was issued to adapt the scheme, all except the appellant No.1 had retired from service. Though, appellant No.1 was in service upto 31.07.2008 neither the appellant No.1 nor the other appellants or the other writ petitioners had raised any grievance till the year 2011 as the position was clear that the Board in its discretion had adapted the Scheme w.e.f 05.04.2005. Further, as indicated in the counter-affidavit filed by the respondent No.1- Electricity Board, the amended Rules 2006 had thereafter been brought to amend certain provisions of the ACP Scheme of 2003 which ceased to exist after 31.12.2008 with the adaption of the modified ACP Scheme of 2010 w.e.f 01.01.2009 with certain modifications. If all these aspects of the matter are kept in view, the grievance put forth by the appellants or the other writ petitioners before the High Court was rightly not accepted. 15. In that light, a perusal of the judgment dated 09.01.2008 passed by the learned Single Judge and the judgment dated 18.12.2008 by the Division Bench would indicate that the High Court adverted to all aspects of the matter and has thereafter arrived at the conclusion in accordance with law which does not call for interference.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]7. At the outset, it is necessary to take note that the learned Single Judge, as also the Division Bench of the High Court has referred to the fact that respondent No.1-Electricity Board had not adapted the ACP Scheme of 2003 until the notification dated 05.04.2005 was issued. By such time most of the appellants had retired, they had benefitted from the earlier scheme and as such could not avail dual benefits is also the view expressed by the High Court.8. Having noted the contention on the said aspect, we are of the opinion that the said issue would become relevant only if at the first instance the Court is satisfied that the ACP Scheme of 2003 is accepted to be applicable to employees of respondent No.1- Electricity Board w.e.f 09.08.1999 as was made applicable to the government servants, the benefit of which is being sought by the appellants herein. Hence, it is necessary to examine this aspect of the matter relating to the date on which the scheme will be applicable to employees of respondent No.1-Electricity Board.9. In that regard, the fact which cannot be disputed is that even though at an earlier point in time the Electricity Board had adapted the Bihar Service Code of the State Government due to which all Service Conditions, Rules and notifications applicable to the employees of the State Government had become applicable to the employees of the respondent No.1-Electricity Board, the respondent No.1- Electricity Board had thereafter in exercise of the power conferred under Section 79 (C) of the Electricity (Supply) Act, 1948 had framed its own service regulations. The indisputable position is that, the appellants, therefore, were guided by the service regulations of respondent No.1-Electricity Board. Therefore, the notification relating to service conditions if any issued by the State of Bihar to regulate the service conditions of its employees was neither ipso facto nor mutatis mutandis applicable to the employees of the respondent No.1-Electricity Board unless the same was adapted by the respondent No.1- Electricity Board. Even if adapted, it would depend on the manner and to the extent adapted.10. With this position being clear, a perusal of the notification dated 25.06.2003 issued by the State of Bihar will indicate, the benefit of the same is being sought by the appellants is in relation to its applicability w.e.f 09.08.1999 as provided therein. However, the notification on the face of it indicates the category of employees to whom it would apply as also the category to which it does not apply.11. A perusal of the same would indicate that, apart from the legal position relating to the applicability of its own service conditions to the employees of the respondent No.1-Electricity Board, the notification dated 25.06.2003 itself clarifies that it shall not be applicable to the employees of public sector undertakings or autonomous institutions. The undisputed position is that the respondent No.1 is a statutory Board which is therefore an autonomous public undertaking. If that be the position, the mere issue of the notification dated 25.06.2003 by the State of Bihar would not create any right in favour of the employees of the respondent no.1-Electricity Board for the benefits provided under such notification. It is in that light, the notifications dated 05.04.2005 and 07.10.2005 become relevant in the matter of granting benefit of the ACP Scheme to the employees of the respondent No.1-Electricity Board since there can be no claim until it is adapted. In that regard, a perusal of the notification dated 05.04.2005 (Annexure P3) indicates that the Committee constituted by the Board had submitted its recommendations which were considered by the Board and had thereupon taken a decision to replace the then existing system of Selection Grade and Time-bound Promotion with Assured Career Progression Scheme. The pay-scale for the purpose of ACP Scheme was to be notified later.12. A perusal of the notification dated 07.10.2005 indicates that the decision of the Board to adapt the ACP Scheme of 2003 was only for the staff appointed after the issuance of the Boards notification No.25 dated 05.04.2005. The same indicates that respondent No.1-Electricity Board did not adapt the ACP Scheme of 2003 retrospectively w.e.f 09.08.1999 as was done by the State government for its employees but had given prospective effect from the date the respondent no. 1-Electricity Board had adapted the same through the notification dated 05.04.2005.13. If that be the position, the appellants, in any event, cannot contend that the Scheme should be applicable from the very same date on which it had been made applicable to the State Government employees when the respondent no.1-Electricity Board had the discretion to either adapt or not to adapt the Scheme. When the Board had decided to adapt, in such event it has also the discretion to alter the date of its applicability as against the date notified by the State Government. Any judicial review on the date chosen for applicability would arise only if such choice of date is demonstrated to be malafide or with ulterior motive. In the instant case, the date chosen is the date on which the scheme was adapted and the advantage or disadvantage thereof would befall on all employees across the board depending on which side of the fence they are as on such date.14. In the instant appeal as already noted, even as on the date the notification dated 05.04.2005 was issued to adapt the scheme, all except the appellant No.1 had retired from service. Though, appellant No.1 was in service upto 31.07.2008 neither the appellant No.1 nor the other appellants or the other writ petitioners had raised any grievance till the year 2011 as the position was clear that the Board in its discretion had adapted the Scheme w.e.f 05.04.2005. Further, as indicated in the counter-affidavit filed by the respondent No.1- Electricity Board, the amended Rules 2006 had thereafter been brought to amend certain provisions of the ACP Scheme of 2003 which ceased to exist after 31.12.2008 with the adaption of the modified ACP Scheme of 2010 w.e.f 01.01.2009 with certain modifications. If all these aspects of the matter are kept in view, the grievance put forth by the appellants or the other writ petitioners before the High Court was rightly not accepted.15. In that light, a perusal of the judgment dated 09.01.2008 passed by the learned Single Judge and the judgment dated 18.12.2008 by the Division Bench would indicate that the High Court adverted to all aspects of the matter and has thereafter arrived at the conclusion in accordance with law which does not call for interference.