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R. R. K. Trivedi, J.—Vidyut Mazdoor Sanghathan, Lucknow, filed Special Appeal No. 414 of 1996 challenging order dated 151996 passed by learned Single Judge, in Civil Misc. Writ petition No. 15034 of 1996. By this order operation of the Uttar Pradesh Rajya Vidyut Parishad Parichalkiya Karamchari Varg Sewa Niyamawali, 1995, was stayed during pendency of the writ petition.
Special Appeal No. 578 of 1996 was forced by U.P, Electricity Board against the order dated 151996 passed in the same writ petition. During hearing of Special Appeal No. 414 of 1996 on 16 71996, learned counsel for the parties agreed that the Special appeal should be heard along with connected bunch of writ petitions for final disposal. Thus, in pursuance of the aforesaid order dated 1671996, aforesaid two appeal and the entire hunch of writ petitions known as Meter Readers'' Bunch was listed before us for hearing and final decision. As the questions of law and facts involved in all these writ petitions are identical, the two appeals and all the writ petitions consisting of this bunch can be conveniently decided by a common judgment. Along with the special appeals, the three writ petitions, on which arguments have been advanced by learned counsel for the parties, are specifically mentioned in this judgment. However, the judgment will cover the entire bunch except those writ petitions which involve different controversy. Writ petition No. 15034 of 1996 shall be the leading case.
Generation of electric energy and its distribution in the country initially was mainly on private sector through licensees appointed under the Indian Electricity Act, 1910 and Indian Electricity Rules, 1956. After the country attained independence, the Electricity (Supply) Act, 1948 was enacted for rationalisation of production and supply of electricity and for taking measures conducive to electric development. Section 5 of the Electricity (Supply) Act, 1948 (hereinafter referred to as the Act) provided for constitution and composition of the State Electricity Boards. U.P. Electricity Board (hereinafter referred to as the Board) was constituted by the State Government on 3031959. Provisions of the Indian Electricity Act, 1910 were amended by the Electricity Laws (U.P. Amendment) Act, 1974, i.e. U.P. Act No. 36 of 1974. The Indian Electricity (U.P. Amendment and Validation) Act, 1975, i.e. U.P. Act No. 16 of 1975, the Indian Electricity (U.P. Amendment) Act, 1976, i.e. U.P. Act No. 14 of 1976 and the Electrical Undertakings and Establishments run by the State of U.P., local authorities and erstwhile licensees were taken over. Thus, for the State of U.P., Board acquired a monopoly in respect of the generation and distribution of electrical energy. The employees of the State Government, local authorities and erstwhile licensees also started serving the Board on deputation basis. To safeguard their interest provisions were made by inserting new Sections 6A in and by further amending the provisions of Indian Electricity Act, 1910. The provisions in this regard shall be noticed at the relevant place in later part of this judgment. In due course the Board has become a big organisation having its power generation and distribution units spread all over the State which followed tremendous increase in the number of employees resulting in various disputes between the Board and its employees.
The dispute which has come for determination before this bench in shape of bunch of writ petitions is not new. It has also old history which started with passing of order dated 2951963 by the Board creating a combined cadre of meter readers, substation operators and switch board attendants and also making them inter changeable. However, for some reason or the other this order was not implemented. The Board passed another order on 2431977 and superseded its earlier order, dated 2951963 and created a combined cadre of four categories of employees, namely, meter readers, sub station operators, switch board operators and junior meter testers. This order further provided a combined seniority of the employees of all the four categories and making their service interchangeable. Meter readers challenged this order by filing several writ petitions in this Court. However, the Division Bench of this Court by judgment dated 2091977 in Civil Misc. Writ Petition No. 2462 of 1975 dismissed all the petitions. Some writ petitions were also filed before the Lucknow Bench which were also dismissed by another Division Bench by a separate judgment dated 1231979. The order of the Board dated 2431977 was upheld. Though the order dated 2431977 was upheld, it could not be implemented and the Board vide order dated 20101982 stayed the interchangeability of the four categories of the employees for which a combined cadre was created by order dated 24031977. Another order was passed on 19101985 directing the authorities to comply with the order dated 20101982 and not to transfer the employees of the four categories from their cadre to other cadre.
The Director (Personnel) of the Board then passed an order on 951994 mentioning therein that the Board after having superseded its orders dated 2431977, 20101982 and 19101985, has provided that in accordance with its earlier order dated 29 51963, the services of the three categories of employees (meter readers, substation operators and switch board operators) have been made interchangeable. Aggrieved by this order, number of writ petitions were filed in this Court which were dismissed by a learned Single Judge on 2991994. Aggrieved by the order of the learned Single Judge, meter readers filed Special Appeal No. 755 of 1994 and other appeals which were heard by a Division Bench and were allowed by order dated 2281995. The Division Bench took the view that the order of the Board for interchangeability of service has been passed without creating a combined cadre of the three categories of the employees. The earlier order of the Board creating combined cadre was superseded and there ought to have been a fresh order. The second reason for allowing the appeal was noncompliance of Section 41 of U.P. Industrial Disputes Act which requires for an opportunity to be given to the employees before changing their service conditions. It was also held that the order of interchangeability could not be justified even under the provisions of Section 79 of the Act as no statutory regulations have been framed by the Board and the order impugned in the writ petition is only an administrative order.
This dispute was also raised before the Industrial Tribunal V, Lucknow, under the provisions of U.P. Industrial Disputes Act, 1947. The award of the Tribunal has been published in Extraordinary Gazette of U.P., dated 27121973. One employee Sheikh Islam Ahmad who was appointed as junior meter tester and reader was transferred on 10101979 as sub station attendant which was challenged before the Industrial Tribunal, Allahabad as Adjudication Case No. 91 of 1980. The Tribunal gave its award on 1761981 and held that the transfer order in respect of workman Sheikh Islam Ahmed from the post of junior meter tester and repairer to the post of sub station operator is neither proper nor legal and he is entitled to remain on the same post continuously and draw the wages of the said post. The award was challenged by the U.P. State Electricity Board by filing Civil Misc. Writ Petition No. 12684 of 1981 which was dismissed by this Court vide judgment dated 2871983.
In order to resolve the aforesaid highly contentious issue, the Board has now framed the Uttar Pradesh Rajya Vidyut Parishad Parichalkiya Karamchari Varg Sewa Viniyamawali, 1995 thereinafter referred to as the Regulations of 1995) which has been published in U.P. Gazette dated 1691995. By framing there Regulations, the Board has provided the source and manner of recruitment, the grouping of various scattered cadres under one cadre, determination of their seniority, chances of promotions, transfers, disciplinary actions, retirements etc. Aggrieved by these Regulations, various writ petitions have been filed by labour organistions and also by individuals. The labour organisation, appellant in Special Appeal No. 414 of 1996, is in opposition of these petitions. In these petitions, counter and rejoinder affidavits have been exchanged between the parties and the writ petitions are ripe for hearing.
We have heard Shri R.K. Jain, Shri S.C. Budhwar, Shri G.C. Bhattacharya, Shri V.B. Singh, Shri B.N. Singh and Shri Ravi Kant for petitioner who are respondents in the two appeals, Shri Ranjit Saxena for respondent Board and Shri Dhruv Narain for U.P. Vidyut Mazdoor Sangh, applicant for impleadment in the writ petitions and for appellants in the appeals. The submissions of learned counsel for the parties on some points were common and some arguments were independent and separate on certain aspects. Arguments were duly supported by various authorities. Instead of reproducing the arguments of the learned counsel separately, use are straightway formulating the questions which arose during hearing of the writ petitions and are required to be determined for deciding this bunch of writ petitions, as it shall save time and repetition of the same arguments shall be avoided. The authorities relied on by the counsel for the parties shall be considered at the relevant places.
In our opinion, after hearing learned counsel for the parties, the following questions require determination by this Court for deciding the controversy raised in this bunch of writ petitions:
(1). Whether amendment of Section 79(c) of the Act by U.P. Act No. 12 of 1983 inserting clause (III) to the Proviso which gave primacy to the impugned Regulations framed by the Board, over various Central Laws, suffer from vice of repugnancy and hit by Article 254 of the Constitution and is void?
(2). Whether the amendment in Section 79(c) of the Act by U.P. Act No. 12 of 1983 suffers from excessive delegation of the legislative power as it confers unguided and uncontrolled power of legislation and is violative of Articles 14 and 16 of the Constitution?
(3). Whether the impugned Regulations cannot be made applicable to employees of the Board which is an industrial establishment as there is no notification issued by the appropriate Government as required by Section 13B of the Industrial Employment Standing Orders Act, 1946?
(4). Whether the impugned Regulations which provide for drastic change in service conditions cannot apply to the petitioners as they were not given opportunity of hearing before framing the Regulations?
(5). Whether the Regulations are bad, having been framed in violation of Section 41 of U.P. Industrial Dispute Act, 1947 and Section 9Aof the Industrial Disputes Act, 1947 ?
(6). Whether employees of erstwhile licensee from a different class and their services conditions could not be changed by the impugned Regulations ?
(7). Whether the meter readers, substation operators and switch board assistants belong to different cadres and have been illegally grouped together and made interchangeable which is wholly unworkable and impracticable ?
(8). Whether Regulation 38 which provides for transfer suffers from the vice of arbitrariness and unreasonableness as no guidelines for affecting transfers have been provided ?
(9). Whether the requirement of confirmation in service for determining seniority and for giving promotions is wholly irrational and unreasonable and Regulations 22 and 16B (2) are hit by Article 14 and are liable to be struck down ?
(10). Whether there was no systematic study before framing the Regulations putting various skilled and unskilled categories of employees under one cadre?
(11). Whether by impugned Regulations, workmen are being deprived of those benefits which accrued to them by long struggle through labour movements ?
(12). Whether the Regulations have been framed under a policy decision taken by the Board and it should not be interfered with by the Court under Article 226 of the Constitution ?
(13). Whether the impugned Regulations could not be given retrospective effect so as to change the service conditions of the workmen to their disadvantage ?
(14). What is the impact of the judgments of this Court in writ petitions earlier filed by meter readers challenging the Board''s decision to group the three cadres in one cadre ?
(15). What is the impact of the award of the labour Courts and Labour Tribunals on these Regulations ?
(16). To what relief, the present petitions are entitled in these writ petitions ?
Section 79 of the Act confers power on the Board to make Regulations not inconsistent with the Act and the Rules on the matters enumerated therein. Clause (c) of Section 79 of the Act contemplates about the Regulations with regard to the duties of officers and other employees of the Board and their salaries, allowances and other conditions of service. This clause was amended by Section 8 of the Electricity Laws (Uttar Pradesh Amendment) Act, 1983 by inserting the following proviso after the existing proviso to Section 79. The Proviso so inserted reads as under:
"Provided further that the regulations made under Clause (c) in regard to conditions of service of officers and servants of the Board
(i) may be made with retrospective effect;
(ii) may in relation to officers and servants who were originally employed under the State Government and after their resignation were absorbed in the service of the Board in pursuance of State Government Order No. 3670E/71XXXIIIPB, dated July 1, 1971, provide that the Board may initiate or recommence any disciplinary proceedings in respect of their acts and omissions during the period when they were employed under the State Government except in cases where disciplinary proceedings were finally concluded on merits while they were so employed under the Government;
(iii) shall, in relation to such servant of the Board as arc workmen employed in any industrial establishment under the control of the Board, have effect notwithstanding anything contained in any other law for the time being in force."
Learned counsel for the petitioners submitted that clause (III) of the Proviso added to Section 79 confers primacy to Regulations made thereunder order the various Central Laws dealing with the welfare of labour including conditions of work, Provident Fund, employer''s liability, workmen''s compensation, inability and old age pensions and maternity benefits and thus any Regulations framed by the Board under the power conferred by clause (III) of the Proviso shall be inconsistent with various Central Laws and is hit by Article 254 of the Constitution and is void to the extent of repugnancy. In this connection it has also been submitted that certain conditions provided and regulated by various Central Laws are the result of long struggle of labour movement and the benefits which have been so achieved cannot be taken away by Regulations framed by subordinate authority which has been conferred unguided, uncontrolled arbitrary powers. In this connection learned counsel for petitioners have referred to the provisions of the Industrial Disputes Act, 1947, Factories Act, Industrial Employment (Standing Orders) Act, 1946, Payment of Wages Act and Workmen''s Compensation Act. It has also been submitted that the Electricity Supply Act, 1948 is a very old law dealing with the subject ''electricity'' and any provision in this Act could not exclude the various industrial laws which are special Acts dealing with the labour problems. In this connection reliance has been placed in case of Vijoy Kumar Sharma and others v. State of Kamataka and others, AIR 1990 SC 2072 and U.P. State Electricity Board v. Hari Shankar,AlR1979SC65.
We have considered the submissions of the learned counsel for the parties. In order to determine as to whether any provision of law made by the State Legislature is repugnant to any provision of law made by the Parliament or any provision of existing law, it has to be seen whether the two laws operate in the same field. If the two laws do not cover the entire field of the same subjectmatter, then there cannot be repugnancy. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject to attract the Article. It cannot be disputed that the Electricity Supply Act, 1948 has been enacted with the object of rationalisation of the production and supply of electricity and for taking measures conducive to electrical development and this Act has been enacted under Entry 38 providing for supply of electricity in List III of the 7lh Schedule of the Constitution. Thus the dominant purpose behind enacting the Act is rationalisation of the production and supply of electricity and for taking measures conducive to electrical development and if any enactment is made with the aforesaid dominant purpose with regard to a distinct matter though of a cognate and allied character, there is no question of any repugnancy and Article 254 will not apply. It may be further noted that Clause (III) of the Proviso does not enact any law by itself. It only confers power on the Board to frame Regulations which shall have effect notwithstanding anything contained in any other law for the time being in force. Thus with reference to clause (III) of the second Proviso to Section 79 of the Act, it is difficult to trace any kind of repugnancy. In any case the Regulations framed by the Board under clause (III) of the Proviso shall only be a legislative exercise to achieve the dominant purpose for which the Act has been enacted, i.e. the rationalisation of production and supply of electricity and for taking measu.es conducive to electrical development, the Regulations thus formulated in exercise of the delegated legislative power cannot cover the entire field of the Central enhancements mentioned above and framed under Entries 22 and 21 of List III of the 7th Schedule of the Constitution which is entirely a different subjectmatter than the subject contemplated by Entry 38. Legal position in this regard has been made clear by Hon''ble Supreme Court in Vijai Kumar Sharma ''s case (supra) in para 34 in the following words:
"34. The aforesaid review of the authorities makes it clear that whenever repugnancy between the State and Central Legislation is alleged, what has to be first examined is whether the two legislations cover or relate to the same subject matter. The test for determining the same is the usual one, namely, to find out the dominant intention of the two legislations. If the dominant intention, i.e. the pith and substance of the legislations is different, they cover different subjectmatters. If the subject matters covered by the legislations are thus different, then merely because the two legislations refer to some allied or cognate subjects they do not cover the same field. The legislation, to be on the same subjectmailer must further cover the entire field covered by the other. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation. But such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same, subject to attract the Article."
The submissions of the learned counsel for the parties, if viewed with the test laid down by Hon''ble Supreme Court in the aforesaid paragraph 34, make it clear that Article 254 of the Constitution is not applicable in the present case. Various labour laws enacted to resolve industrial disputes have been framed by the Parliament under Entry 22 and 24 of List III of the 7th Schedule and they cover entirely different fields whereas the Regulations contemplated under Clause (III) of the Proviso inserted by U.P. Act No. 12 of 1983, only incidentally deals to achieve their dominant purpose for which the Act has been enacted under Entry 38 of the List. In our opinion, the submissions of the learned counsel for parties alleging repugnancy thus cannot be accepted.
At this place it may also be mentioned that the Electricity Law (U.P. Amendment) Act, 1983 (U.P. Act No. 12 of 1983) was reserved for the consideration of and was assented to by the President on 1851983. Thus even assuming that the aforesaid State Legislation contained any provision repugnant to the provisions of law made by Parliament of any existing law, the U.P. Act 12 of 1983 shall prevail in this State and for this reason too the submissions of the learned counsel for the parties have no substance.
Another criticism against the amendment brought about by U.P. Act No. 12 of 1983 by inserting Second Proviso in Section 79 or the Act is that the provisions suffer from excessive delegation of legislative power on the Board and it confers unguided and uncontrolled arbitrary power of Legislation and thus is violative of Article 14 of the Constitution, in our opinion, this criticism against the proviso added by U.P. Act No. 12 of 1983 has also no substance. Section 79 says that the Board may make Regulations not inconsistent with, the Act and the Rules made thereunder. The rule making power has been conferred on the State Government by Section 78 of the Act. Thus it cannot be said that the power given to the Board to frame Regulation is uncontrolled and unsifted. It is subject to the provisions of the Act and the Rules framed under Section 78 of the Act. Further, Section 79A requires that the Regulations made by the Board under Section 79 shall be laid as soon as may be before the State Legislature. This is a further check on any arbitrary exercise of the delegated legislative power. Thin attack has also been made against some provision of the impugned Regulations of 1995. However, the allegations with regard to Regulations shall be dealt with separately in the later part of this judgment. So far as the amendment brought about by U.P. Act No. 12 of 1983 in Section 79 is concerned, we do not find any excessive delegation of the legislative authority which may be exercised in arbitrary manner.
The next serious criticism is that the impugned Regulations cannot be made applicable to the employees of the Board which is an industrial establishment as there is no notification in this behalf by the appropriate Government in the official Gazette as required under Section 13B of the Industrial Employment (Standing Orders) Act, 1946. It has also been submitted that Section 9A of Industrial Disputes Act, 1947 (Central) requires that before change in the conditions of service applicable to any workman in respect of any matter specified in Fourth Schedule, a notice in the prescribed manner ought to have been given. It is stated that no notice has been given to the workmen before framing the Regulations by which the conditions of their service have been changed materially. It has been submitted that the requirement of the notice was mandatory as it is not covered by any of the exceptions contemplated under Clause A and B of the Proviso to Section 9A aforesaid. It has been further submitted that Section 41 of the U.P. Industrial Disputes Act, 1947, also contains identical provision of notice before change of conditions in service but none of the aforesaid provisions have been complied with before framing the Regulations. However, in our opinion, in view of the provisions contained in Clause (III) of the Second Proviso to Section 79 of the Act, the Regulations framed by the Board shall have effect notwithstanding anything contained in Section 13B of the Industrial Employment (Standing Orders) Act, 1946 or Section 9A of the Central Industrial Disputes Act and Section 41 of the U.P. Industrial Disputes Act. It has also been found earlier that Second Proviso has been inserted to Section 79 of the Act by legal and valid enactment and if it provides that the provisions contained in the Regulations shall have effect, no other provision contained in any other law can come in the way of the aforesaid legislative intent. Thus for giving effect to the impugned Regulations, neither any notification is required under Section 13B of the Standing Order Act nor any notice was required under Section 9A or Section 41 of the Industrial Disputes Act. This submission also thus cannot be accepted.
It has also been submitted that the service conditions of the employees of the erstwhile licensees cannot be changed by the impugned Regulations. It has been submitted that such employees form a different class and the impugned Regulations cannot be applied to them. The State Legislature by the Indian Electricity (U.P. Amendment) Act, 1976, amended the provisions of Indian Electricity Act, 1910. By Section 3 of the Amending Act, Section 6A was inserted after Section 6 of the Indian Electricity Act, 1910. Subclause (i) of clause (8) of subsection (3) of Section 6Aso inserted contained provisions with regard to the employees of the erstwhile licensees. Subclause (i) is being reproduced below:
"Every person who has been immediately before the appointed day in the employment of the licensee shall become on and from the appointed day, an employee of the Board on the same terms and conditions and with the same rights as to pension, gratuity and other matters as would have been admissible to him if the undertaking had not been transferred to and vested hi the Board and continue to do so unless and until this employment under the Board is terminated or until his remuneration or other terms and conditions of the employment are duly altered by the Board:
Provided that the Board may appoint an officer or committee to review the genuineness of all appointments made or increments of wages or salary given to the employees within the period of one year immediately preceding the appointed day and if after considering the report of any such officer or committee and any representations that may be received in that behalf from the persons affected, an appointment made or increment given does not appear to the Board to be genuine, it may terminate the services of the such employee or cancel the increment as the case may be:
Provided further that any person aggrieved by the decision of the reviewing officer or the committee as the case may be, may appeal to the Board whose decision shall be final.
It is not disputed that the undertakings of all the erstwhile licensees were taken over by the Board and the employees of the erstwhile licensees were absorbed in terms of Section 6A mentioned above. Subclause, (i) clearly provides that the emoluments and terms and conditions of such employees of erstwhile licensees as absorbed in the service of the Board could be altered by the Board. The employees of the erstwhile licensees have thus no right now to question the authority of the Board to change the terms and conditions of employment. The submission made in this respect by learned counsel has no substance.
The next important question which is the entire bone of contention between the parties in these writ petitions is as to whether meter readers, substation operators and switch board assistants belonged to different cadres and they have been illegally grouped together and their service have been made interchangeable. In this connection, it has also been argued that there was no systematic study before framing these Regulations putting various skilled and unskilled categories of employees in one cadre. As against it the submission of learned counsel for the Board is that the Regulations have been framed by the Board in exercise of statutory power and the Regulations framed have statutory force. The Regulations have been framed under a policy decision taken by the Board which should not normally be interfered with by this Court. Before entering into discussion about the contentions advanced, it will be appropriate to discuss the legal position regarding the authority of the Board to frame Regulations changing the terms and conditions of the employment and bringing several groups of employees under one common cadre. In case of Roshan Lal Tandon and another v. Union of India and others, AIR 1967 SC 1889 a Constitution Bench of Hon''ble the Supreme Court expressed the legal position with regard to the railway employees in paragraph 6 in the following words:
"We pass on to consider the next contention of the petitioner that there was a contractual right as regards the condition of service applicable to the petitioner of the time be entered Grade ''D'' and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board. It was said that the order of the Railway Board dated January 25, 1958, Annexure ''B'', laid down that promotion to Grade ''C'' from Grade ''D'' was to be based on senioritycumsuitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner. In our opinion, there is no warrant for this argument. It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is mere one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emoluments of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 31) imposes constitutional restrictions upon the power of removal granted 10 the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servants is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned."
In case of Rajasthan State Electricity Board, Jaipur v. Mohan Lal and others, AIR 1967 SC 1857, a Constitution Bench of Hon''ble Supreme Court discussed the position of the Electricity Board and found that it is a State within the meaning of Article 12 of the Constitution of India. In para 6 of the judgment, Hon''ble Supreme Court expressed the position of the Electricity Board in the following words:
".....The decisions of the Court support our view that the expression "other authorities" in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law. It is not at all material that some of the powers conferred may be for the purpose of carrying on commercial activities. Under the Constitution, the State is itself envisaged as having the right to carry on trade or business as mentioned in Article 19(1) (g). In Part IV, the State has been given the same meaning as in Article 12 and one of Directive Principles laid down in Article 46 is that the State shall promote with special care the educational and economic interest of the weaker sections of the people. The State, as defined in Article 12, is thus comprehended to include bodies created for the purpose of promoting the educational and economic interests of the people. The State, as constituted by our Constitution, is further specifically empowered under Article 298 to carry on any trade or business. The circumstances that the Board under the Electricity Supply Act is required to carry on some activities of the nature of trade or commerce does not, therefore, give any indication that the Board must be excluded from the scope of the word "State" as used in Article 12. On the other hand, there are provisions in the Electricity Supply Act which clearly show that the powers conferred on the Board include power to give directions, the disobedience of which is punishable as a criminal offence. In these circumstances, we do not consider it at all necessary to examine the cases cited by Mr. Desai to urge before us that the Board cannot be held to be an agent or instrument of the Government. The Board was merely an authority to which the provisions of Part III of the Constitution were applicable."
In Sukhdev Singh and others v. Bhagatram Sardar Singh Raghuvanshi and another, AIR 1975 SC 1331, the Constitutional Bench of the Supreme Court discussed the position of the Rules and Regulations framed by a statutory corporation in the following words:
"There is no substantial difference between a rule and a regulation inasmuch as both are subordinate legislation under powers conferred by the Statute. A regulation framed under a statute applies uniform treatment to everyone or to all members of same group or class. The Oil and Natural Gas Commission, the Life Insurance Corporation and Industrial Finance Corporation are all required by the statute to frame regulations inter alia for the purpose of the duties and conduct and conditions of service of officers and other employees. These regulations impose obligation on the statutory authorities. The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restriction on the employer and the employee with no option to vary the conditions. An ordinary individual in a case of master and servant contractual relationship enforces breach of contractual terms. The remedy in such contractual relationship of master and servant is damages because personal service is not capable of enforcement. In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies. In the case of statutory bodies it has been said that the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by Courts by declaring dismissal in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man''s rights are affected by decision taken under statutory powers, the Court would presume the existsnce of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute."
From the three judgments of Hon''ble Supreme Court mentioned above, the legal position which emerges is that the Board is a State within the meaning of Article 12 of the Constitution and the Regulations framed by it in exercise of power conferred by Section 79 of the Act have statutory character and have force of law. The petitioners who are employees of the Board get a statutory status under the Regulations. The Board is entitled to change the terms and conditions of its employees unilaterally. Thus the Board''s authority to frame Regulations so as to change the service conditions and bring various groups of employees under one common cadre cannot be questioned. As employer the Board is entitled to introduce new scheme governing service matters. Further, it has also to be kept in mind that to scheme governing service matters can be foolproof and satisfy the entire body of the employees. Some section or the other of the employees are bound to remain unsatisfied. In such circumstances it has to be seen whether majority of the employees are satisfied with the scheme introduced by the employer.
In the present cases, the challenge is by meter readers. They have been questioning the Board''s authority to treat them at par with substation operators and switch board attendants. As noticed earlier there have been several grounds of litigation on this question before this Court. Successive Division Benches vide judgments dated 2091977, 1231979 and 1121985 rejected the contention of the meter readers and held that the power of the Board to integrate various cadres into one is not mala fide and is being upheld. There is no provision of law which prohibits the integration of the operating staff into one cadre. Aforesaid view taken by the Division Bench is sufficient for us to reject the contention advanced by the petitioners of this bunch of petitions, but as some new points were raised and fresh material has also been brought before us by the parties, we thought it appropriate to reconsider the issue.
The contention on behalf of the petitioners is that there was no systematic and serious application of mind before creating a single integrated cadre known as Yantrik Sanvarg (Technical Cadre) classified as P4 fur different cadres of the employees. At serial No. 23 under class P4, substation operators, switch board attendants, meter readers, junior electrician Grade I, electrician Grade I and II, centrifugal mechanic, meter tester and repairer, meter testercummechanic have been included. The contention of the petitioners is that the meter reader''s post is unskilled post and it requires no technical training and they have been illegally included in the aforesaid group along with technically trained persons. It has also been submitted that if the meter readers are asked to work as switch board attendants or switch board operators, there shall be risk of their life. The intsrchangeability of the aforesaid three cadres was tried to be enforced by the Board but ultimately it was given up as it was found to be unworkable and impracticable. It has been submitted that the qualification, method of recruitment and other service conditions of the three cadres were different from the very beginning and they could not be grouped together with various other employees mentioned in Class P4. In this connection reference has been made to Electricity Department Operating Staff Service Rules, 1955 and the Report of the Central Wage Board for Electricity Undertaking, 1969. In support of the aforesaid contention reliance has also been placed on the award dated 1761981 of the Industrial Tribunal (I), U.P., at Allahabad in Adjudication Case No. 91 of 1980Sheikh Islam Ahmad through Bijli Mazdoor Sangh v. U.P. State Electricity Board. In this case designation of the workman was changed from junior meter tester and repairer to sub station attendant. The award of the Tribunal was against the Board. This award was confirmed by this Court in Writ Petition No. 13684 of 1981 by judgment dated 2071983.
Learned counsel for the Board, on the other hand, submitted that from Regulations of 1955 it is clear that meter readers were included in the list of skilled staff and in respect of qualification and appointment there was no substantial difference in three groups of employees, namely; switch board attendant, substation operator and meter readers. Learned counsel has submitted that more than 50% of the meter readers were employed as sub station operators and they were subsequently asked to work as meter readers. Board took the decision for creating a combined cadre of meter readers, substation operators and switch board attendants on 2951963. Another decision was taken on 2431977. The writ petitions were filed and dismissed. Against the award of the Tribunal and the judgment of this Court dated 2871983, special leave petition was filed in Supreme Court in which order was passed on 3011984 that the award of the Tribunal and the judgment of the High Court will not constitute a precedent for other cases of the employees of the Board. Thus no advantage can be claimed by petitioner from the award of the Tribunal. With regard to the report of the Central Wage Board of 1969 it has been stated that the object of creation of the Board was to recommend the wage structure. The Wage Board had not by itself made any recommendation but has left it for the individual Boards and the Electricity Undertakings to create different cadres. It has been further submitted that the report of the Board was valid only for a period of five years which has already expired long back. Learned counsel for the Board further submitted that by order dated February 8,1978 payment of two payscales on the basis of those possessing I.T.I. qualification and other for those who did not possess I.T.I. qualification was given up following the recommendations of the Central Wage Board Report of 1969 and the award of the Tribunal dated 141969. By the aforesaid order a uniform scale of pay was introduced to all the employees included in class P4 of the Regulations. The order dated 821978 is Annexure 10 to the counter affidavit filed by Shri Masud Hassan Jafri.
Learned counsel has also placed before us the order dated 9121975 defining the duties of the supervisory and operating staff. Copy of the order has been filed as Annexure 11 to the counter affidavit. While defining the duties of meter readers, substation operators and switch board attendants, it was clearly provided that the meter reader will perform the duties of sub station operator switch board attendant whenever required and for S.S.O. and S.B.A it was mentioned that they may be required to work as meter readers. The contention of the learned counsel is that the duties of meter readers, S.S.O. and S.B.A were thus interchangeable from the very beginning but meter readers were resisting the same. The learned counsel has further submitted that while revising payscales by order, dated 231988, S.S.O. and S.B.A., junior meter tester and repairer and meter reader were all included in one payscale under the head "technical employees cadre grade II." The document is Annexure 1 to the supplementary counter affidavit. A tentative seniority list has also been filed as Annexure 1 to the supplementary affidavit which is with regard to Shakti Nirman Khand, Dak Patthar. From perusal of this list, it appears that most of the junior electricians, meter readers, sub stations operators are I.T.I. trained persons. From the material relied on by the learned counsel for the parties in support of their submissions, it has to be assessed by us as to whether the meter readers who are petitioners in the present bunch of petitions are being illegally included as technicians though they are unskilled workers.
After thoroughly looking into the material we are not prepared to accept the contention of the petitioners. It is not disputed that majority of the meter readers were initially appointed as substation attendants and switch board attendants and they were subsequently transferred as meter readers. After transfer as meter readers their effort has been to stick to this job. We can appreciate the anxiety on the part of the Board to make the service transferable to other group to avoid corruption and creation of vested interest by remaining at one job at the same place for number of years, e meter readers were mentioned as skilled workers in Staff Regulations of 1955. They are being paid from the beginning the same pay scale which was paid to S.S. As and S.B.As. We have also perused the report of the Central Wage Board. While dealing with the subject categorisation the report of the Wage Board at para 8.39 reads as under:
"The Board have examined the question of categorisation of workers according to the nature of their jobs and the degree of the skill so that the undertakings could fit them in the appropriate new scales as recommended. It was found that the existing scales of pay as well as designation of workers vary widely from undertaking to under taking and it is really difficult for the Board to make specific recommendations in regard to categorisation because of the complexities involved. The Sub Committee on standardisation of nomenclatures with job descriptions has examined this aspect and felt that "each undertaking will process the fitment of each of its employees in its proper category and the allocation of a standard nomenclature. This will be done scrutinizing the possible standard nomenclature and the corresponding job descriptions and allowing the procedures adopted by the SubCommittee as explained in this Report in Section (procedures adopted for the study) and Appendix D and as illustrated in the study in depth Gujrat Electricity Board. "The Board, therefore, recommends that this matter categorisation should be left to the respective undertakings which should decide this question on the basis of proper examination and processing through Committee consisting of the representatives of the management and of the recognised unions."
Thereafter the Board has mentioned the guidelines for determining the category of the various employees. In a tentative form of the report meter reader has been bracketted along with Hawaldar and has been categorised as semi skilled. The contention of the petitioners that they are unskilled employees belied by the Report of 1969 relied on by them. Further, in pursuance of the recommendations of the wage Board, the Board did the exercise of categorisation and bracketted meter readers along with S.S.As and S.B.As as far back as in 1978. Petitioners accepted this categorisation and the payscale at par with the other technical employees. The order of the Board passed in 1978 has become final. The distinction between these technical employees, on the basis of I.T.I. certificate also disappeared and even those who did not possess the I.T.I. certificate were also given the same payscale.
In these facts and circumstances, in our opinion, it is not open for petitioners to say that they have been illegally grouped with S.S.As. and S.B.As. by the impugned Regulations. The historical background noted above provided an administrative exigency to have an integrated cadre for all those working as operating staff. The petitioners have failed to establish that the categorisation adopted by the impugned Regulations in any way suffers from mala fide and arbitrariness. This Court as well as the Apex Court in number of judgments have already held that in policy decisions the judicial review is not possible. A brief mention of some of the cases is made here.
In Inder Singh and others v. Vyas MuniMishra and others, 1987 (55) FLR 483, Hon''ble Supreme Court expressed the legal position in the following words:
"At the outset it may be said that the High Court exceeded its jurisdiction in directing the merger of the two posts. It may be that the Task Force Committee and the Review Committee had recommended for the merger, but it was for the State Government to consider whether such merger should be made or not. The State Government after consideration of the relevant reports and recommendations accepted the recommendation of the Second Pay Commission only with regard to the revision of the pay scale of the Ganna Gram Sewak with the slight modification by an increase of Rs. 5/ at the initial stage of the recommended payscale. The question whether two posts should be merged into one or not is absolutely within the jurisdiction and authority of the Executive Government. However, much the High Court was influenced by the principle of equal pay for equal work for both men and women as contained in Article 39 (b) of the Constitution, the High Court was not justified in exceeding its jurisdiction for giving effect to the said doctrine."
In case of Union of India and others v. Syed Mohd. Raza Kazmi and others, JT 1992 (3) SC 309. Hon''ble Supreme Court observed : Tribunal or the Court not to interfere and dictate the avenues of promotion. It is for the department to decide on policies of promotion consistent with the interests of employees. Court will interfere if there is arbitrariness or resultant discrimination.
In case of Union of India and others v. S.L. Datta and others, 1991 (1) SCC 505 it was held that the Court should rarely interfere where the question of validity of a particular policy is in question and all the more so where considerable material in the fixing of policy are of a highly technical or scientific nature.
The impugned Regulations have been framed under a uniform policy in respect of the entire body of the employees of the Board putting them under different heads according to their nature of jobs, skill and qualification. This exercise was long due from the Board and we do not find any ground on which basis the validity and legality of the impugned Regulations may be doubted. Meter readers have to accept it at some stage and, in our opinion, that stage has now come.
On behalf of the petitioners it was also argued that merely because of parity of the pay scales of meter readers, sub station operators and switch board attendants and other employees of different cadres, their services could not be made interchangeable or intertransferable. In this regard reliance has been placed in case of ViceChancellor Lalit Narain Mithila University v. Dayanand Jha, AIR 1986 SC 1200. However the submission of the learned counsel does not appear to be correct. In the case before the Court, transfer of a principal of a college was directed on post of reader in another college merely on the basis that the two posts carried same payscale. It was not found sufficient by the Court as the two posts did not bear the same characteristics.
''However, in the present case as pointed out earlier the post of meter reader and sub station operators and switch board attendants carry same characteristics in various other aspects also which are, the initial appointment, qualification, status and the nature and responsibility of the duties attached to the post. The judgment relied on by the learned counsel for the petitioners thus is not helpful in any manner.
It was also submitted for petitioner that before categorisation was finalised affecting service of the petitioners, they ought to have been provided opportunity of hearing. Reliance has been placed on case of K.I. Shephard and others v. Union of India and others, (1987) 4 SCC 431. It is submitted that as the principles of natural justice were violated, the Regulations framed are liable to be quashed. In K.I. Shephard''s case during the scheme making process under Section 45 of the Banking Regulations Act, 1949 for amalgamation of banking company, some of the employees were excluded from service in the transferee bank. The Court found that the preparation of the scheme under Section 45 is an administrative work and as the right of some employees was affected, they ought to have been given opportunity of hearing before finalising the scheme. However, in the present case, the Regulations have been framed in exercise of the delegated legislative power. There is no dispute about the legal position that while exercising legislative functions, principles of natural justice are not applicable. The case of K.I. Shephard relied on behalf of the petitioners is thus distinguishable.
The validity of the Regulations has also been questioned with regard to certain specific Regulations. It has been submitted that the criterion adopted for giving promotion under Regulation 16(b) (2) and for determining seniority under Regulation 22 on the basis of confirmation in service are illegal and hit by Articles 14 and 16 of the Constitution and are liable to be struck down. The submission is that the confirmation on the post depends upon various factors including whim of the employer and if confirmation in the service is made basis for giving promotion and determining seniority, it is open for misuse and the benefits may be granted to certain members of the service on pick and chose basis. It has also been submitted that if an employees has become member of a service after being duly selected for the same and has already service for a long period on the post, he should not be deprived of the benefit of the service already rendered by him. Both the aforesaid provisions effect the important rights of the temporary employees. Reliance has been placed in case of P.D. Agarwal and others v. State of U.P. and others, AIR 1987 SC 1676.
Learned counsel for the Board, on the other hand, submitted that under the Regulations minimum three promotions have been tried to be ensured for the employees on the operating staff and no prejudice has been caused to them. It has also been submitted that mere chance of promotion is not a condition of service and the submission made on behalf of the petitioners is misconceived.
For resolving the controversy raised it is necessary to examine the provisions contained in Regulations 16, 22 and 23. It cannot be disputed that once law has conferred authority on the Board to frame Regulations, the Regulations may be framed providing the chances of promotion. The employee has, however, right to be considered for promotion if he is eligible for the next higher post. Regulation 23 contains provision for confirmation in service, it provides that any person appointed by way of direct recruitment shall be kept on probation for a period of two years. The period of probation is initially for a period of six months and extension cannot be for more than a year. After completion of the period of probation he may be confirmed by the appointing authority by passing a special order if he has satisfied the other conditions of the Board. After completing the period of probation and until he is confirmed, he shall be termed as a temporary employee of the Board. The Proviso to Regulation 23 (1) provides that the person appointed by promotion shall not be kept on probation. Regulation 22 contains provisions for determination of seniority. Clause IV of Regulation 22 provides that where appointments are made on certain post by direct recruitment and also by promotion of the departmental employees, the person appointed by promotion shall be shown senior to the direct recruits in the same proportion in which the appointments are to be made from the two sources. Clause V and VI contain provisions for determination of seniority of the persons appointed from reserved categories and all the employees of the erstwhile licensees. No where in Regulations 22 it has been provided that the confirmation on the post shall be the basis for determining seniority. The provisions contained in Regulation 22 for determining seniority are based on accepted and well known principles and we do not see any illegality in them.
Regulation 16 contains provision for providing promotions to the employees of the Board. Regulation 16(b) has three clauses. In clause (1) it is provided that if the field of eligibility for promotion is confined to a Division level, the promotion shall be made on the basis of seniority list of that Division. In clause (2) of Regulation 16(b), however, it is provided that if the field of eligibility extends to several cadres of the service in same payscale, then the names of the employees shall be arranged from the date of their confirmation on the post. The relative position of the confirmed employees of the same cadre shall be the same which was in the seniority list of that cadre. In Clause (3), it is provided that if the field of eligibility for promotion extends to the post of lower grade also, then in such case the employees of the different cadres in same pay scale shall be shown first according to their seniority, then the names of the employees of the lower cadre shall be mentioned according to their seniority. The objection is against the criterion provided in clause (2) of Regulations 16(b). In our opinion, if the field of eligibility is extended to several cadres a shortlisting of the eligible candidates becomes necessary for proper selection of the candidates for promotion. Such a criterion has already been held to be valid and legal in various cases. As already seen in clause (1) of Regulation 16(b), if the field of eligibility is confined to one cadre, the confirmation on the post has not been considered to be a relevant factor. It has been only made applicable where the eligibility extends to several cadres and in such a case shortlisting of the eligible candidates becomes necessary. In such circumstances, it cannot be said that criterion adopted is illegal or arbitrary and in anyway in violation of Article 14 of the Constitution of India. The ratio of the judgment in P.D. Agarwal''s case (supra) is with regard to the determination of the seniority and cannot be applied in the present case. We have examined the provisions contained in Regulation 22 which contains provision for determination of seniority and we have not been able to notice that confirmation on the post has been made criterion for determining seniority. The contention of the learned counsel for petitioner thus cannot be accepted.
Another Regulation which has been attacked by the learned counsel for petitioners is Regulation 38 containing provision for transfer. We have examined the subregulations (1) to (7) closely and in our opinion the provisions contained therein are in consonance with the well accepted norms for effecting transfers based on the public interest and administrative exigencies. Subregulation (2) of Regulation 38 provides that if for two posts the eligibility and scale of pay is the same and for discharging the duty of a post no special experience is required, the members of one post may be transferred to another post. In our opinion, the provision contains several guidelines for passing orders of transfer leaving it open to the concerned employees to establish that he cannot be transferred to a particular post as the necessary conditions are not satisfied. If all the provisions contained in Regulation 38 are examined closely, the criticism raised against it by learned counsel for petitioners cannot be accepted. In our opinion, the submissions in this regard have no substance.
It was also submitted on behalf of the petitioners that by the impugned Regulations rights of the workmen which have been acquired after long labour struggle, have been curtailed or taken away. This criticism, however, against the impugned Regulations, was vague and general, specific instances as to how and which right has been taken away could not be pointed out before us. Most of the benefits, right and protection for which a workman is normally entitled have already been preserved in the impugned Regulations. Further, under the impugned Regulations the employees of the Board get a legal status and in case of any breach of the Regulations, it is always open to them to challenge the illegal actions or any kind of harassment before the appropriate forum and seek redress. We do not find any merit in the aforesaid submission also.
Shri V.B. Singh submitted that Writ Petition No. 6621 of 1996 arises out of a different matter and should be excluded from this bunch. We have considered his submission. The writ petition has been filed for challenging the order dated 1111995, filed as Annexure 8 to the writ petition. The order is for giving effect to the provisions of the impugned Regulations 1995 and is addressed to various authorities of the Board. Thus, in our opinion, the writ petition has rightly been included in this bunch.
For the reasons stated above, we do not find the petitioners of Writ Petition No. 15034 of 1996,24237 of 1996 and 27433 of 1996 and all the writ petitions included in this bunch, entitled for any relief and the writ petitions are hereby dismissed. The interim orders passed in all the writ petitions are vacated. As Special Appeals No. 414 of 1996 and 578 of 1996 have been filed against the interim order dated 151996, passed in Writ Petition No. 15034 of 1996 and all the interim orders passed in the writ petitions including the interim order dated 151996 have been vacated, nothing has been left to be decided in the aforesaid appeals. The appeals are also accordingly disposed of finally and all the interim orders passed in the aforesaid two appeals are also vacated. However, there will be no order as to costs.