PUNJAB STATE POWER CORPORATION LIMITED & ANR. versus BAL KRISHAN SHARMA & ORS.

PUNJAB STATE POWER CORPORATION LIMITED & ANR.

BAL KRISHAN SHARMA & ORS.

(Civil Appeal No. 6995 of 2021)

NOVEMBER 23, 2021

[UDAY UMESH LALIT AND BELA M. TRIVEDI, JJ.]

Punjab State Electricity Board Service of Engineers (Civil)Recruitment Regulations, 1965: Time bound benefit – PSEB passedan office order on 19.07.1989 for regular employees introducing ascheme to allow time bound benefit of higher scale on theircompletion of 9/16 years of services – On 29.03.1991, another officeorder was passed upgrading 20% of the cadre posts of JuniorEngineer-II (Civil) in the scale of Rs.1640/3200 (revised) to that ofJunior Engineer-I (Civil) in the scale of 1800/3500 w.e.f. 01.01.1986– Thereafter, in continuation, consolidation and supersession oforders dated 19.07.1989 and 29.03.1991, the PSEB issued officeorder dated 23.04.1990 introducing scheme to allow “time boundbenefit of promotional scales” after completion of 9/16 years ofregular service in PSEB w.e.f. 01.01.1986 subject to certainconditions – Respondents (original petitioners) in the writ petitionprayed for granting the pay scale of Rs. 2200-4250 with initialstart of Rs. 2400/- per month with effect from 01.01.1986 and furtherto grant the pay scale of Rs. 3000-5600 on completion of 16 yearsof their services on the basis of office orders dated 19.07.1989,29.03.1990 and 23.04.1990, however made no challenge to officeorder dated 29.03.1990 in the petition, which was held to beunenforceable by the High Court on the ground that it was notpublished in the Gazette as required under s.79 of the Electricity(Supply) Act, 1948 – Contention raised by the respondents was thatoffice order dated 29.03.1990 was issued in the disguise ofupgrading the respondents posts, which in fact was issued forcreating new posts of promotion, so as to deprive the respondentsthe benefit of office order dated 23.04.1990; that issuance of suchorder was changing the conditions of service of the respondentsand, therefore, the same was required to be published in the gazetteas required under s.79 of the 1948 Act – Held: Office order dated29.03.1990, which was issued only for upgrading 20% of the posts

CDEF

Aof Junior Engineer-II (Civil), in the higher pay scale, could neitherbe construed as creating new posts of promotion nor could it beconstrued as changing the conditions of service of the JuniorEngineers (Civil) – The said upgradation merely conferred afinancial benefit by raising the pay scale of the Junior Engineers(Civil), without there being advancement to higher position, andBwithout there being change in the duties and responsibilities – Therewas also nothing on record to suggest that the Junior Engineershad to undergo any process of selection for getting the benefit ofthe said office order – Hence, it could not be said that the PSEBhad robbed the respondents of their legitimate right of promotionCby issuing the said office order or that such order could not havebeen issued without corresponding amendment in the Regulations– In view of Regulation 17 of the said Regulations, the PSEB wasauthorised to fix the scales of pay of the posts specified thereinincluding that of the Junior Engineers, from time to time – PSEBhaving already framed the Regulations of 1965 in exercise of powersDconferred under s.79(c) of the Act, and the Regulations having alsobeen published in the Official Gazette, there was no need for thePSEB to notify office order dated 29.03.1990 – An employee couldbe said to be suffering from stagnation as per the office order dated23.04.1990 only if he possessed the requisite qualification for theEnext higher post and was unable to get the higher post on accountof non availability of such post – Thus, the claim of the respondentsbased on office order dated 23.04.1990, for getting the pay scaleof the next higher post of Assistant Engineer i.e. Rs. 2200-4250 onthe completion of 9 years of their service and the pay scale of anothernext higher post of the Executive Engineer i.e. Rs. 3000-5600 onFthe completion of 16 years of their service, without assuming theresponsibilities of the said promotional posts, was misconceived.

Service law: Upgradation and Promotion – Differencebetween – Held: There is vast difference between the upgradationand the promotion – Ordinarily upgradation of post would involveGtransfer of post from lower to higher grade and placement of anincumbent of that post in the higher grade – Such placement wouldnot involve any selection process to be followed, but would merelyconfer financial benefit by raising the scale of pay of the post –However, in case of promotion, there would be an advancement toHa higher position or rank along with an advancement to higher

grade – Therefore, the word “promotion” would mean advancementor preferment in honour, dignity, rank and grade.

Allowing the appeal, the Court

HELD: 1. It cannot be gainsaid that there is vast differencebetween the upgradation and the promotion. Ordinarilyupgradation of post would involve transfer of post from lowerto higher grade and placement of an incumbent of that post in thehigher grade. Such placement would not involve any selectionprocess to be followed, but would merely confer financial benefitby raising the scale of pay of the post. However, in case ofpromotion, there would be an advancement to higher positionor rank along with an advancement to higher grade. Therefore,the word “promotion” would mean advancement or prefermentin honour, dignity, rank and grade. [Para 12][558-E-F]

Bharat Sanchar Nigam Ltd. v. R. Santhakumari Velusamyand Ors. (2021) 9 SCC 510 – relied on.

2. The office order dated 29.03.1990, which was issued onlyfor upgrading 20% of the posts of Junior Engineer-II (Civil), inthe higher pay scale, could neither be construed as creating newposts of promotion nor could it be construed as changing theconditions of service of the Junior Engineers (Civil). The saidupgradation merely conferred financial benefit by raising thepay scale of the Junior Engineers (Civil), without there beingadvancement to higher position, and without there being changein the duties and responsibilities. There was also nothing onrecord to suggest that the Junior Engineers had to undergo anyprocess of selection for getting the benefit of the said office order.Hence, it could not be said by any stretch of imagination that thePSEB had robbed the respondents of their legitimate right ofpromotion by issuing the said office order or that such order couldnot have been issued without corresponding amendment in theRegulations, as held by the High Court. [Para 13][559-F-H; 560-A]

3. The PSEB has already framed the Regulations 1965 inexercise of the powers conferred by clause (c) of Section 79 ofthe said Act, and the said Regulations have been notified in the

EFG

AOfficial Gazette. Regulation 17 of the said Regulations states thatthe members of the service will be entitled to such scale of payas may be authorised by the Board from time to time. Thus, inview of Regulation 17 of the said Regulations, the PSEB wasauthorised to fix the scales of pay of the posts specified thereinincluding that of the Junior Engineers, from time to time. EvenBotherwise it is well settled proposition of law that in absence ofany Rules or Regulations governing the service conditions ofthe employees, the Electricity Board has power to issueadministrative orders. [Para 14][560-B-D]

Sohan Singh Sodhi v. Punjab State Electricity Board,CPatiala (2007) 5 SCC 528 : [2007] 6 SCR 250; PunjabState Electricity Board and Ors. v. Gurmail Singh (2008)7 SCC 245 : [2008] 6 SCR 868 – relied on.

4. In the instant case, apart from the fact that therespondents had not challenged the validity of the said office orderDdated 29.03.1990 in the writ petition on the ground that it wasnot notified as per Section 79 of the said Act, the PSEB havingalready framed the Regulations of 1965 in exercise of powersconferred under Section 79(c) of the said Act, and the saidRegulations having also been published in the Official Gazette,Ethere was no need for the PSEB to notify the office order dated29.03.1990 which pertained to the upgradation of 20% of the postsof Junior Engineer-II (Civil), as was permissible under Regulation17 of the said Regulations. [Para 16][561-H; 562-A-B]

Bhakra Beas Management Board v. Krishan Kumar VijFand Anr. (2010) 8 SCC 701 : [2010] 10 SCR 462 –relied on.

5. An employee could be said to be suffering from stagnationas per the office order dated 23.04.1990 only if he possessed therequisite qualification for the next higher post and was unable toGget the higher post on account of non availability of such post.Thus, the claim of the respondents based on the office order dated23.04.1990, for getting the pay scale of the next higher post ofAssistant Engineer i.e. Rs. 2200-4250 on the completion of 9years of their service and the pay scale of another next higher

PUNJAB STATE POWER CORPORATION LIMITED & ANR. v.BAL KRISHAN SHARMA & ORS.

post of the Executive Engineer i.e. Rs. 3000-5600 on thecompletion of 16 years of their service, without assuming theresponsibilities of the said promotional posts, was thoroughlymisconceived. What they were entitled to, as per the scheme toalleviate the stagnation as contained in the office order dated23.04.1990, was the time bound promotional/devised promotionalscale as indicated in the Schedule drawn up by the Board. Thesaid Schedule had specified the first time bound scale to beallowed after 9 years of service as Rs. 1800-3500, and the secondtime bound scale to be allowed after 16 years of service as 2200-4250 for the post of Junior Engineer Grade-II (Civil), subject tothe pre-conditions mentioned therein. The same having alreadybeen granted to the respondents, the pay scales as claimed bythe respondents in the writ petition could not have been grantedby the High Court. [Paras 18, 20][563-D, G-H; 564-A-C]

Union of India and Ors. v. M.V. Mohanan Nair (2020)5 SCC 421 – relied on.

State of Haryana Etc. v. Shamsher Jang Bahadur Etc.(1972) 2 SCC 188 : [1973] 1 SCR 249; MohammadShujat Ali and Ors. v. Union of India and Ors. (1975)3 SCC 76 : [1975] 1 SCR 449 – referred to.

Case Law Reference

From the Judgment and Order dated 30.08.2018 of the High Courtof Punjab and Haryana at Chandigarh in LPA No.2062 of 2014 (O&M).

AMs. Uttara Babbar, Manan Bansal, Advs. for the Appellants.

Vikas Mahajan, Sr. Adv., Vishal Mahajan, Vivek Mahajan, ViditAnand, Vinod Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered by

BBELA M. TRIVEDI, J.

1. Leave granted.

2. The present appeal is directed against the judgment and orderdated 30.08.2018 passed by the Division Bench of the High Court ofPunjab and Haryana at Chandigarh in LPA No. 2062 of 2014 (O&M),Cwhereby the Division Bench has dismissed the appeal filed by theappellant(s)-Punjab State Power Corporation Limited (previously PunjabState Electricity Board, hereinafter referred to as ‘PSEB’), arising outof the order dated 03.07.2014 passed by the Single Bench in CWP No.3232 of 1993.D3. The PSEB in order to settle the issue of stagnation in variouscadres of regular employees, had passed an office order on 19.07.1989introducing scheme to allow time bound benefit of the higher scaleon their completion of 9 and 16 years of services. In continuation of thesaid order, the PSEB also issued circular dated 20.07.1989 grantingthe benefit of the first and second time bound higher scales to theEemployees including the Junior Engineers-II, as per the Schedule-Iattached thereto, with effect from 01.05.1989. Since the PSEB had foundthat there was considerable stagnation in the cadre of Junior Engineers(Civil), it had referred the matter to the Pay Revision Committee. Keepingin view the recommendations of the said Pay Revision Committee, theFPSEB passed an office order on 29.03.1990, upgrading 20% of the cadreposts of Junior Engineer-II (Civil) in the scale of Rs. 1640/3200 (revised)to that of Junior Engineer-I (Civil) in the scale of Rs. 1800/3500 witheffect from 01.01.1986. Thereafter in continuation, consolidation andsupersession of the orders dated 19.07.1989 and 29.03.1990, the PSEBvide the office order dated 23.04.1990 issued consolidated instructionsGto alleviate the problem of stagnation in the cadre. It was stated in thesaid order dated 23.04.1990 that the PSEB had decided to introduce thescheme to allow “time bound benefit of promotional scales” aftercompletion of 9/16 years of regular service in the PSEB w.e.f 01.01.1986subject to the conditions mentioned therein. Some of the features of theHscheme as contained in the said order dated 23.04.1990 were as under:

“5. The Board shall draw up schedule (s) indicating the lowestpost(s) for direct recruitment in respect of various cadres for thepurpose of this cadres, separately.

6. In case, an employee has already availed of the benefit ofplacement to the time bound promotional/devised promotionalscale(s) and is promoted to the next higher post, his pay would befixed at the next stage in the same scale. In case he is promotedto post which is lower than the scale in which he has alreadybeen placed on time bound promotional/devised promotional scale,he will not be entitled to any increment and continue to draw thepay of the scale in which he has already been placed.

7. In case of employees who do not fulfill the qualification/passingof examination essential for their promotion to the next higherpost, they shall also be placed into the time promotional/devisedpromotional scale to be specified by the Board in the schedule asreferred to in para 5 (above).”

4. The Schedule-1 annexed to the said order dated 23.04.1990particularly pertaining to the time bound scales of the Junior Engineer-II(Civil) read as under:

SCHEDULE-1

5. The said scale of pay of Junior Engineer-II (Electrical/Civil)circulated vide the office order dated 23.04.1990 was partially modifiedby the PSEB (Finance Section) vide the order dated 31.08.1990.Accordingly, the PSEB granted the respondents who were working as

Athe Junior Engineers (Civil) the pay scale of Rs. 2000-3500 after 9 yearsof their services and the pay scale of Rs. 2200-50-2400-60-2700-75-3000-100-4000-125-4250 after 16 years of their services. Beingaggrieved by the same, the respondents (original petitioners) filed writpetition being CWP No. 3232/1993 before the High Court seekingdirections against the PSEB to grant them the pay scale of Rs. 2200-50-B2400-60-2700-75-3000-100-4000-124-4250 with effect from 01.01.1986and further to grant the pay scale of Rs. 3000-100-4000-125-5000-150-5600 on completion of 16 years of their service and to pay the arrearsthereof along with interest, in view of the orders passed by the PSEBdated 19.07.1989, dated 30.03.1990 and dated 23.04.1990 (annexed toCthe petition as Annexures P-1, P-2 and P-4 respectively). According tothe respondents, in the PSEB, the promotion from the post of JuniorEngineer (Civil) was to the post of Assistant Engineer and from the postof Assistant Engineer to the post of Executive Engineer, and thereforethey were entitled to the pay scale of Assistant Engineer, i.e. Rs. 2200-4250 with an initial start of Rs. 2400 per month as per the office orderDdated 19.07.1989, as all of them had already completed 9 years of service,and they were entitled to the pay scale of Executive Engineer, i.e. Rs.3000 and 5600, on the completion of 16 years of service. Their furthercontention in the writ petition was that the subsequent creation of postsof Junior Engineer-I (Civil) vide order dated 29.03.1990 by upgradingEthe 20% cadre posts of Junior Engineer-II (Civil), was the denial of thebenefit of the pay scale of Rs. 2200 and 4250 which had accrued to therespondents as per the office order dated 19.07.1989.

6. The Single Bench of the High Court allowed the said petitionvide the judgment and order dated 03.07.2014, holding inter alia that theFoffice order dated 29.03.1990 upgrading 20% posts of Junior Engineer-II (Civil) was not notified in the Official Gazette as required under Section79 of the Electricity (Supply) Act, 1948 (hereinafter referred to as thesaid Act), and therefore could not be enforced, and that PSEB could notdeny the benefit claimed by the petitioners (the respondent herein) basingreliance on the said office order dated 29.03.1990. The aggrieved PSEBGpreferred an appeal being LPA No. 2062 of 2014 before the DivisionBench which dismissed the same vide the impugned judgment dated30.08.2018, by making perfunctory observations as under:“The action of the Board, to our mind, is the one whichrobs the respondents of their legitimate right to promotion. It isH

indeed reflection of their concern when they acknowledge theright of an employee to gain at least two promotions in the servicecareer, but after doing so they have craftily denied the benefit bycreating an intermediary pay structure of Rs. 1600-2000-3500.

Evidently such course could not have been adopted withoutcorresponding amendment in the regulations and as long as theregulations exists in the present form, the employees would beentitled to promotion to the next higher post and if for some reasonssuch promotion cannot fructify, they would be entitled to thepay scale admissible to such post.

Learned counsel for the appellant contends that even if thecreation of post is not permissible, the higher pay structure asprescribed to Junior Engineer (I) would be permissible throughintroduction of scheme.

We have already observed that this is craftily devised viamedia to subvert the right of an employee. If higher pay structurehas to be made permissible in time bound frame, then it has to beequivalent to that of the promotional post otherwise it will lose allsignificance of symbolic promotion, offered to an employee forfailure of the employer to provide venue for substantivepromotion.”

7. Since the High Court has relied upon Section 79 of the saidAct, for holding the office order dated 29.03.1990 as unenforceable, thesame is reproduced as under for ready reference.

“79. Power to make regulations:-

The Board may, by notification in the Official Gazette, makeregulations not inconsistent with this Act and the rules madethereunder to provide for all or any of following matters, namely:-

(a)xxxxxxxx(b)xxxxxxxx

(c)the duties of officers and other employees of the Board,and their salaries, allowances and other conditions of service.”

8. It may be noted that the PSEB in exercise of the powersconferred by clause (c) of Section 79 of the said Act, has made theRegulations called the Punjab State Electricity Board Service of

AEngineers(Civil) Recruitment Regulations, 1965 (hereinafter referred toas the said Regulations). Regulation 17 of the said Regulations beingrelevant is reproduced as under:

“Regulation 17: Pay of Members of Service

The members of the service will be entitled to such scaleBof pay as may be authorised by the Board from time to time. Thescales of pay at present in force in respect of specified posts aregiven in Appendix ‘A’.

Provided that the Board may for reasons to be recorded inwriting grant to any person appointed to the service an initial startChigher than the minimum pay of the scale in recognition of additionalqualification and/or experience.”

9. The learned advocate Ms. Uttara Babbar appearing for theappellant-PSEB has broadly made following submissions:

D(i) The object of issuing the office order dated 23.04.1990 was toalleviate the grievances of stagnation in the cadre of Junior Engineersand it did not provide an avenue for promotion de hors the saidRegulations, and therefore Section 79(c) of the Electricity Act was notapplicable to the facts of the present case.

(ii) Vide the office order dated 29.03.1990 only 20% of the postsEof Junior Engineer-II (Civil) were upgraded to that of Junior Engineer-I(Civil). Such upgradation of posts could not be treated as creation ofposts requiring amendment in service conditions. Even otherwise, thePSEB had full powers under Regulation 3 of the said Regulations toincrease or reduce the number of posts in the cadre either temporarilyFor permanently from time to time.

(iii) As per the settled legal position, in absence of any Regulations,issuance of Executive orders is permissible in law. (Sohan Singh Sodhivs. Punjab State Electricity Board, Patiala (2007) 5 SCC 528, andPunjab State Electricity Board and Ors. vs. Gurmail Singh (2008)G7 SCC 245).

(iv) Placing reliance on the judgment of this Court in case ofBhakra Beas Management Board vs. Krishan Kumar Vij and Anr.(2010) Vol.8 SCC 701, it is submitted that this Court had an occasion toconsider the office order dated 23.04.1990 issued by the PSEB in theHsaid case, wherein it has been held that the said order was issued only

with an intention to remove the stagnation, but it would not give blanketor absolute right to any employee to be entitled to higher pay scale evenif he did not fulfill prerequisite qualifications for holding the higher post.If an employee possessed the required qualification but was unable toget the higher post on account of non-availability of such post, then onlyhe could be categorised as suffering from stagnation as per the order of23.04.1990.

(v) Regulation 17 of the said Regulations, authorises the PSEB tofix the scales of pay of the Engineers(Civil) from time to time, and thesaid Regulations having been published in the Official Gazette, the officeorder dated 29.03.1990 was not required to be published in the OfficialGazette, under Section 79 of the said Act.

10. The learned Senior Advocate Mr. Vikas Mahajan appearingfor the respondents made following submissions:

(i) Prior to the issuance of the office order dated 29.03.1990, therespondents were entitled to the scale of Rs. 2200-4250 with initial startof Rs. 2400/- per month after the completion of 9 years of service, andto the scale of Rs. 3000-5600 after the completion of 16 years of service,however in view of the office order dated 29.03.1990, the PSEB hastaken away the higher scales to which the respondents were entitled toprior to the issuance of the said office order.

(ii) By virtue of the office order dated 29.03.1990, the PSEB hascreated new posts of Junior Engineer-I without carrying out anyamendment in the Regulations of 1965. The said order was in the disguiseof upgrading the respondents’ posts and had adversely affected theservice conditions of the respondents.

(iii) The PSEB had not notified the office order dated 29.03.1990as required under Section 79 of the Act, and therefore the High Courthas rightly held the same to be not enforceable.

(iv) The PSEB could not have amended or superseded the statutoryRegulations by issuing administrative instructions. In this regard reliancehas been placed on the decisions of this Court in case of State ofHaryana Etc. vs Shamsher Jang Bahadur Etc. (1972) Vol. 2 SCC188 and in case of Mohammad Shujat Ali and Ors. vs. Union ofIndia and Ors. (1975) Vol. 3 SCC 76.

A11. At the outset, it may be noted that the respondents (originalpetitioners) in the writ petition had prayed for granting the pay scale ofRs. 2200-4250 with initial start of Rs. 2400/- per month with effect from01.01.1986 and further to grant the pay scale of Rs. 3000-5600 oncompletion of 16 years of their services on the basis of the office ordersdated 19.07.1989, 29.03.1990 and 23.04.1990 (Annexure P-1, P-2 andBP-4 respectively), however there was no challenge to the officer orderdated 29.03.1990 (Annexure P-3) in the petition, which has been held tobe unenforceable by the High Court on the ground that it was not publishedin the Gazette as required under Section 79 of the said Act. The bone ofcontention raised by the learned Senior Advocate Mr. Mahajan for theCrespondents is that the said office order dated 29.03.1990 was issued inthe disguise of upgrading the respondents posts, which in fact was issuedfor creating new posts of promotion, so as to deprive the respondentsthe benefit of the office order dated 23.04.1990. According to him,issuance of such order was changing the conditions of service of therespondents and therefore the same was required to be published in theDgazette as required under Section 79 of the said Act. The moot questiontherefore, which falls for consideration before this Court is as to whetherthe said office order was required to be published in the Official Gazetteas contemplated in Section 79 of the said Act?

12. It cannot be gainsaid that there is vast difference betweenEthe upgradation and the promotion. Ordinarily upgradation of post wouldinvolve transfer of post from lower to higher grade and placement ofan incumbent of that post in the higher grade. Such placement would notinvolve any selection process to be followed, but would merely confer afinancial benefit by raising the scale of pay of the post. However, inFcase of promotion, there would be an advancement to higher positionor rank along with an advancement to higher grade. Therefore, theword “promotion” would mean advancement or preferment in honour,dignity, rank and grade. This Court, in case of Bharat Sanchar NigamLtd. vs. R. Santhakumari Velusamy and Ors (2021) Vol. 9 SCC 510,has laid down certain principles relating to the promotion and upgradationGwhich read as under:

“29. On careful analysis of the principles relating to promotionand upgradation in the light of the aforesaid decisions, the followingprinciples emerge:

(i) Promotion is an advancement in rank or grade or both and isstep towards advancement to higher position, grade or honourand dignity. Though in the traditional sense promotion refers toadvancement to higher post, in its wider sense, promotion mayinclude an advancement to higher pay scale without moving to adifferent post. But the mere fact that both-that is, advancementto higher position and advancement to higher pay scale-aredescribed by the common term “promotion”, does not mean thatthey are the same. The two types of promotion are distinct andhave different connotations and consequences.

(ii) Upgradation merely confers financial benefit by raising thescale of pay of the post without there being movement from alower position to higher position. In an upgradation, the candidatecontinues to hold the same post without any change in the dutiesand responsibilities but merely gets higher pay scale.

(iii) Therefore, when there is an advancement to higher payscale without change of post, it may be referred to as upgradationor promotion to higher pay scale. But there is still differencebetween the two. Where the advancement to higher pay scalewithout change of post is available to everyone who satisfies theeligibility conditions, without undergoing any process of selection,it will be upgradation. But if the advancement to higher payscale without change of post is as result of some process whichhas elements of selection, then it will be promotion to higherpay scale. In other words, upgradation by application of processof selection, as contrasted from an upgradation simpliciter can besaid to be promotion in its wider sense, that is, advancement toa higher pay scale.”

13. In view of the afore-stated legal position, the office orderdated 29.03.1990, which was issued only for upgrading 20% of the postsof Junior Engineer-II (Civil), in the higher pay scale, could neither beconstrued as creating new posts of promotion nor could it be construedas changing the conditions of service of the Junior Engineers (Civil).The said upgradation merely conferred financial benefit by raising thepay scale of the Junior Engineers (Civil), without there being advancementto higher position, and without there being change in the duties andresponsibilities. There is also nothing on record to suggest that the JuniorEngineers had to undergo any process of selection for getting the benefit

Aof the said office order. Hence, it could not be said by any stretch ofimagination that the PSEB had robbed the respondents of their legitimateright of promotion by issuing the said office order or that such ordercould not have been issued without corresponding amendment in theRegulations, as held by the High Court.

B14. At this juncture, it is pertinent to note that the PSEB has alreadyframed the Regulations 1965 in exercise of the powers conferred byclause (c) of Section 79 of the said Act, and the said Regulations havebeen notified in the Official Gazette. Regulation 17 of the said Regulationsstates that the members of the service will be entitled to such scale ofpay as may be authorised by the Board from time to time. Thus, in viewCof Regulation 17 of the said Regulations, the PSEB was authorised to fixthe scales of pay of the posts specified therein including that of theJunior Engineers, from time to time. Even otherwise it is well settledproposition of law that in absence of any Rules or Regulations governingthe service conditions of the employees, the Electricity Board has powerDto issue administrative orders. In case of Sohan Singh Sodhi vs. Punjab

State Electricity Board, Patiala (supra), this Court has held in the contextof Section 79(c) of the Electricity (Supply) Act, 1948 that when theState Electricity Board can frame Regulations under Section 79(c) ofthe said Act, in absence of any Regulation, issuance of executive orderis permissible in law.E

15. In yet another decision in case of Punjab State ElectricityBoard And Ors. vs. Gurmail Singh (supra), this Court held as under:

“19. The validity of the provisions of the said Regulations is not inquestion. The power of the Board to issue circulars from time toFtime in support of the matters which are not governed by thestatute or statutory regulations is also not in dispute. The Board,as noticed hereinbefore, had been issuing such regulations fromtime to time. It is now well settled that the Board, even in absenceof any express provision of statute, may issue such circular.

G20.In Meghalaya SEB v. Jagadindra Arjun it was held: (SCCp. 453, para 11)

“11. As per Section 79(c), Meghalaya SEB may frame regulationsnot inconsistent with the provisions of the Act and the Rulesproviding for the duties of officers and other employees of theBoard and their salary, allowances and other conditions of service.H

It is to be stated that this is an enabling provision. MeghalayaSEB may frame regulations as provided in Section 79(c) of theAct, but in the absence of any regulations, Meghalaya SEB canlay down service conditions by administrative order/instructions.Section 15 of the Act empowers the Board to appoint its employeesas may be required to enable Meghalaya SEB to carry out itsfunctions under the Act except the Secretary who is to be appointedwith previous approval of the State Government. The power tolay down service conditions by regulations is expressly conferredupon Meghalaya SEB, so it has power to prescribe serviceconditions. Section 78-A also provides that except on question ofpolicy for which the State Government has issued directions, theBoard is entitled to discharge its functions prescribed under theAct which would include appointment of staff to enable it to carryout its functions and also lay down service conditions. Hence, ifthere are no rules or regulations pertaining to service conditionsof its employees, the same could be prescribed by administrativeorder and such power of the employer which is statutorycorporation would be implied.”

21. Yet again in Sohan Singh Sodhi v. Punjab SEB, MeghalayaElectricity Board was noticed. It was stated: (SCC p. 532, para10)

“10. The power of the State Electricity Board to issue circulars inexercise of its powers under Section 79(c) of the Electricity(Supply) Act, 1948 is not in dispute. It has the power to frameregulations. If it can frame regulations, in absence of anyregulations, issuance of executive orders is permissible in law.The power of framing regulations prescribing conditions of serviceof its employees appointed by the Board in terms of Section 15 ofthe Act cannot be disputed. Thus, in absence of any rules orregulations governing the service conditions of its employees,issuance of administrative order is permissible in law videMeghalaya SEB v. Jagadindra Arjun [(2001) 6 SCC 446 : 2001SCC (L&S) 976] .”

Power of the Board to issue circulars, therefore, was not indispute. The validity of the said circular letters was not in question.”

16. In the instant case, apart from the fact that the respondentshad not challenged the validity of the said office order dated 29.03.1990

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Ain the writ petition on the ground that it was not notified as per Section79 of the said Act, the PSEB having already framed the Regulations of1965 in exercise of powers conferred under Section 79(c) of the saidAct, and the said Regulations having also been published in the OfficialGazette, there was no need for the PSEB to notify the office orderdated 29.03.1990 which pertained to the upgradation of 20% of the postsBof Junior Engineer-II (Civil), as was permissible under Regulation 17 ofthe said Regulations.17. It may be further be noted that after the issuance of the saidoffice order dated 29.03.1990, the PSEB had issued another office orderdated 23.04.1990, to overcome the problem of stagnation prevailingCamongst the various cadres of regular employees of the Board. The saidoffice order dated 23.04.1990 which has been heavily relied upon by therespondents in the instant case, had come up for consideration beforethis Court in case of Bhakra Beas Management Board vs. KrishanKumar Vij and Anr. (supra). In the said case, this Court was requiredDto consider whether in the light of the order/circular issued by the BhakraBeas Management Board, pursuant to the office order dated 23.04.1990issued by the PSEB, the concerned Assistant Engineer (Civil) was entitledto the benefit of the higher scale of pay/upgradation/stepping up of salarysansprerequisite qualification for the grant of the same. This Court afterconsidering the aims and objects of the office order dated 23.04.1990Eissued by the PSEB, and also the entire scheme of time bound benefit ofpromotional/devised promotional scale as envisaged in the said officeorder, observed as under:

“25. The critical examination of the impugned judgment passedby the Division Bench of the High Court completely defeats primaryFpurpose of the 1990 Order and provisions applicable to theemployees of the Board. No doubt, it is true that the 1990 Orderwas issued only with an intention to remove the stagnation butthis would not give blanket or absolute right to any employee to beentitled to higher pay scale even if he does not fulfil prerequisiteGqualifications for holding the higher post. In other words, if hepossesses the required qualifications but is unable to get the higherpost on account of non-availability of such post, then only he canbe categorised as suffering from stagnation as per Order of 23-4-1990.

26 to 30…………H

31. If the interpretation of the High Court to the 1990 Order is tobe implemented, then it would lead to unsustainable consequences.It would then mean that every Assistant Engineer irrespective ofhis conduct, qualifications, performance or behaviour would becomeentitled to the higher scale on completion of particular length ofservice. If that be so, then even those employees with poor servicerecord and doubtful integrity would also become entitled to claimhigher scale merely because they had completed particular lengthof service. If such an interpretation is to be given to the 1990Order, then it would not only be improper but would also be againstpublic policy and interest of the Board. It is too well settled that astatute or any enacting provision must be so construed as to makeit effective and operative. Any such construction which reducesthe statute to futility has to be avoided.”

18. In view of the above, it was made clear by this court that anemployee could be said to be suffering from stagnation as per the officeorder dated 23.04.1990 only if he possessed the requisite qualificationfor the next higher post and was unable to get the higher post on accountof non availability of such post.

19. In case of Union of India and Ors. vs. M.V. Mohanan Nair(2020) 5 SCC 421, while considering the object behind the MACPScheme which provided relief against the stagnation, this Court observedas under:

“31.The object behind the MACP Scheme is to provide reliefagainst the stagnation. If the arguments of the respondents are tobe accepted, they would be entitled to be paid in accordance withthe grade pay offered to promotee; but yet not assume theresponsibilities of promotee. As submitted on behalf of Union ofIndia, if the employees are entitled to enjoy grade pay in the nextpromotional hierarchy, without the commensurate responsibilitiesas matter of routine, it would have an adverse impact on theefficiency of administration.”20. Thus, the claim of the respondents based on the office orderdated 23.04.1990, for getting the pay scale of the next higher post ofAssistant Engineer i.e. Rs. 2200-4250 on the completion of 9 years oftheir service and the pay scale of another next higher post of theExecutive Engineer i.e. Rs. 3000-5600 on the completion of 16 years of

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Atheir service, without assuming the responsibilities of the said promotionalposts, was thoroughly misconceived. What they were entitled to, as perthe scheme to alleviate the stagnation as contained in the office orderdated 23.04.1990, was the time bound promotional/devised promotionalscale as indicated in the Schedule drawn up by the Board. The saidSchedule had specified the first time bound scale to be allowed after 9Byears of service as Rs. 1800-3500, and the second time bound scale tobe allowed after 16 years of service as 2200-4250 for the post of JuniorEngineer Grade-II (Civil), subject to the pre-conditions mentioned therein.The same having already been granted to the respondents, the pay scalesas claimed by the respondents in the writ petition could not have beenCgranted by the High Court.

21. In that view of the matter, the impugned judgments and orderspassed by the High Court are set aside. The Appeal stands allowedaccordingly.

Devika Gujral

Appeal allowed.