1. This order will govern the disposal of these seventeen petitions filed by the Maharashtra State Electricity Board, each against a separate employee.
2. Each of the respondents in these petitions was an employee of the petitioner-Board on the date they filed applications before the District Industrial Court under S. 41 of the Central Provinces and Berar Industrial Disputes Settlement Act. The application are, more or less, identical in form and substance and also the reliefs which they claimed. The grievance of the contesting respondents in each of these cases appears to be based on a common contention that whereas under the conditions of service governing them either at the time of appointment or when they filed the petitions they were not required to appear at any departmental test or examination in lower accounts, each of them has been told to appear for such an examination and their promotion, confirmation or eligibility for drawing the increments in the post they were holding at the time of their applications is liable to be affected if any of them fails to pass the examination. This is the common feature in all these applications. But it is necessary to separate the circumstances in which the different groups of respondents came to be employed in the petitioner Board. Out of the several respondents, respondents.
(1) S. N. Shirke in Special Civil Application No. 521 of 1966,
(2) V. P. Wankhede in Special Civil Application No. 522 of 1966,
(3) Mrs. S. D. Paikane in Special Civil Application No. 528 of 1966, and
(4) V. N. Aparajit in Special Civil Application No. 532 of 1966,
were substantively appointed by the then existing Bombay State Electricity Board, which later on has come to be recognized and designated as Maharashtra State Electricity Board, the petitioner in this case.
3. All the other respondents in the rest of the petitions were employees of the Madhya Pradesh State Electricity Board on the date of first reorganization of States. As a result of reorganization of States, these other employees came to be allocated, absorbed and employed after the date of reorganization first in Bombay State Electricity Board and later on in the Maharashtra State Electricity Board.
4. The contention of the petitioner, therefore, has to be divided into two groups. These respondents who were substantively appointed directly as employees by the Bombay State Electricity Board would be governed by the regulations made and the conditions of service prescribed, by the Bombay State Electricity Board by which their employment is governed. The other categories of the respondents who were originally employees of the Madhya Pradesh State Electricity Board claimed to be governed by the conditions of service by which they were governed while employed in the Madhya Pradesh State Electricity Board, and, therefore, their further contention is that they continued to be governed by the same conditions of service even after they were allocated to, and became the employees of, the Bombay State Electricity Board and later on of the Maharashtra State Electricity Board.
5. It will be convenient at this stage to indicate that the respondents in
(1) Special Civil Application No. 524 of 1966, Sri M. R. Jaiwant,
(2) Special Civil Application No. 525 of 1966, Sri B. V. Borgonkar,
(3) Special Civil Application No. 526 of 1966, S. D. Laghate,
(4) Special Civil Application No. 530 of 1966, R. G. Waghmare,
(5) Special Civil Application No. 531 of 1966, V. B. Agnihotri, and
(6) Special Civil Application No. 533 of 1966, R. L. Ghanote,
in all six persons, are no longer interested in prosecuting their original applications, because it is an admitted position that all these employees have been confirmed as upper division clerks by the petitioner-Board and the Board agrees that their confirmation or their right to increments or any other right as confirmed upper division clerks is not going to be affected, whether or not they have appeared at and passed the prescribed examination. Some of them, it is stated, have been passed the prescribed examination. These six respondents, therefore, have applied, and have been permitted, to withdraw their original applications. We have permitted them to withdraw the applications with the result that these petitions at the instance of the petitioner-Board no longer survive and they are dismissed as the original applications are withdrawn, but there will be no order as to costs as against any of these contesting respondents through-out.
we will now first take the question raised at the instance of the four respondents who were employed substantively as employees of the Bombay State Electricity Board. The orders of appointments in respect of these four respondents have been filed and they show that the appointment was made expressly on the conditions that these respondents will be governed by the regulations framed from time to time by the Board. If, as the petitioner contends, it could be shown that there has been no change in the conditions of their service merely because the Board asked any of these employees to appear for the test if they are to be considered for promotion to higher posts, and if this contention is accepted, the petitioner's case is that it has not effected any change in the conditions of service of any of these respondents.
6. The change that is sought to be effected by prescribing appearance at examination and the consequence for non-appearance or failure to pass examinations is to be found in what is described as general order 7. It is Ex. 9. J in Special Civil Application No. 520 of 1966. It is to be found at p. 134. The relevant provisions of this order material for consideration are to be found in Paras. 2.1, 2.5, 3.1 and 3.2. They are as follows :
'2.1. Candidates for posts of lower division clerks in the accounts as well as in non-accounts departments will be required to submit to a written test which well be common written examination as prescribed in G.S.O. No. 110 of 25 January 1962, in addition to their having to present themselves for interview before they selected for appointment.
* * * 2.5 Candidates selected for lower division clerks' posts will be allotted to either accounts or non-accounts department according to the requirements of the respective departments, and therefore, the lower division clerks appointed in the accounts department will have to appear for lower accounts examination before they can be considered for any further promotion.
3.1 All existing lower division clerks as well as future entrants will be required to pass the lower accounts examination for becoming eligible for promotion as upper division clerks in the accounts department. In future no lower division clerk will be promoted as upper division clerk (accounts) unless he passes the lower accounts examination.
3.2 Upper division clerks and assistant accounts/auditors recruited directly as such, and also those who have been promoted the these posts departmentally before passing the lower accounts examination shall have to pass this examination. Failure to pass the examination will entail loss of appointment or reversion to a lower post, as the case may be :
Provided that -
(a) if he will have completed 240 days in this post as upper division clerk on the date of the notification of this decision, he will not be discharged or reverted as a result of his not having passed the examination, but he will not be deemed to have completed the probation period satisfactorily and he will not therefore be eligible to draw any increment till he passes the examination; and
(b) an upper division clerk or assistant accountant who will have completed one year of service in his respective post on the date of the notification of these orders, may not be reverted or discharged nor any his increment be withheld for not passing the examination, but he will not be considered as eligible for further promotion unless he passes the examination.'
7. It will be seen that under Para. 2.5 of this general order the lower division clerks appointed in the accounts department will have to appear for lower accounts examination before they can be considered for any further promotion. Under Para. 3.1 all existing lower division clerks will be required to pass the lower accounts examination for becoming eligible for promotion as upper division clerks in the accounts department and it is provided that in future no lower division clerk will be promoted as upper division clerk unless he passes the lower accounts examination. Under Para. 3.2 upper division clerks and assistant accountants/auditors recruited directly as such and also those who have been promoted to those posts departmentally before passing the lower accounts examination shall have to pass this examination and the failure to pass this examination will entail loss of appointment or reversion to a lower post, as the case may be. Then the proviso to Para. 3.2 excepts from the rigour of these provisions certain categories of upper division clerks, namely -
(a) those upper division clerks, who have completed 240 days in the post as upper division clerks on the date the notification was issued, namely, on 3 August 1962, and
(b) the upper division clerk or assistant accountant who has completed one year of service in the respective post on the date of the said notification.
Thus, except for the two categories of upper division clerks who are exempted from the requirement of appearing for the examination, the provisions extracted above will govern the chances of promotion or the right of promotion or in some cases, their conditions of service, subject to their passing the prescribed examination.
8. According to the contention of these four respondents, namely, those who were employed directly by the Bombay State Electricity Board, it was not the condition of their service when they were employed that they would be required to appear for any examination, such as examination called the lower accountants examination, before they could be considered fit for promotion. It is also alleged that to make the passing of the examination as prescribed in Para. 3.1 a condition of their being retained as upper division clerks or their getting the benefit of increments, is also a provision which adversely affects their conditions of service.
9. The order of the two authorities, namely, the District Industrial Court and the State Industrial Court, unfortunately do not seem to keep in mind the distinction between these two categories of lower division clerks, namely -
(1) those who were originally appointed under the Madhya Pradesh State Electricity Board and later a located and absorbed as employees of the Bombay State Electricity Board, and
(2) the employees directly appointed by the Bombay State Electricity Board.
10. The contention of these two categories of employees as to their having occurred or having not occurred a change in the conditions of service will depend on what conditions of service were in force or were liable to be prescribed at the time of their initial appointment.
From Para. 13 of the order of the State Industrial Court, it was suggested that the condition regarding the promotion to the post of an upper division clerk in the case of those who were initially appointed as lower division clerks was by reference to seniority-cum merit. The further observation in this paragraph of the order of the State Industrial Court, namely -
'as the appellants used to get promotion on the principle of seniority-cum-merit without examination, it cannot be said that the above principle was bad and naturally, therefore, there was nothing to find fault with it ...'
suggests that there was material or evidence on record to show that the promotions were effected on the principle of seniority-cum-merit without an examination being held. We asked the learned counsel appearing for the employees to point out either in the pleadings of parties or by reference to any evidence whether this was so and the counsel is not able to point out any material on which the State Industrial Court could have come to the conclusion that according to the conditions of their service either in the Madhya Pradesh Board or in the Bombay State Electricity Board, they used to get promotion on the principle of seniority-cum-merit without examination. Whenever a complaint is made of a change having occurred in any condition of service, it is necessary for the complainant first to establish what were the conditions of service as regards the opportunity for promotion to higher post and what change was precisely made in altering those conditions. Unfortunately for the employees in this case, no such attempt has been made.
11. We will, however, assume, as seems to have been alleged before the lower authorities that the principle on which promotion was determined was seniority-cum-merit. Whether or not the merit was judged by asking the employees to appear for a test or an examination, the contention of these employees is that asking them to appear for an examination to judge their merit, is doing something which violates the conditions of their service and this could not be done unless a notice of change was given and the proper procedure was followed for altering the conditions of service to that effect.
12. The learned counsel for the respondents invited our attention to a notice of change given at the instance of the Board some time in February 1962. It is alleged that by that notice the regulations framed by the Board in respect of the appointments, continuance of appointment, probation and other matters which subsequently became the regulations of the Board under S. 79(c) of the Electricity Supply Act, were intended to be settled by an application or by an agreement. A notice of change accordingly was given and the matter ultimately resulted in an agreement being arrived at between the Board on the one hand, and the Electrical Workers, Union on the other. The agreement was submitted for registration, but has not been registered for various reasons. One of the grounds on which it is not registered is stated to be the lack of representative capacity in the Electrical Workers' Union. Be that as it may, the fact remains that there is no subsisting valid agreement under the Central Provinces the Berar Industrial Disputes Settlement Act between the Board on the one hand and its employees on the other, which governs the conditions of their service under that Act. At the same time, there is no doubt that the Board framed regulations in exercise of its powers under S. 79(c) of the Electricity Supply Act and those regulations were brought into force on or about 1 October 1962 in the Vidarbha region and on slightly earlier date in the rest of the Maharashtra. Thus, on the date on which the respondents were asked to appear for the examination, that was not in pursuance of the order called the general order 7, paragraphs from which have been quoted above, but the action according to the learned counsel for the petitioner, was taken in pursuance of the powers expressly granted to the Board under Regn. 11(d) of the New Regulations. Regulation 11(d) appears in Chap. III of the Regulations and is a follows :
'The Board may prescribe any tests to be passed by a person or any conditions to be satisfied :
(i) before he can be appointed to a post,
(ii) before he is promoted to a higher post where the duties attached to the higher post require a higher standard of knowledge and/or physical fitness, and
(iii) before he can be deemed to have completed the probation period satisfactorily.'
13. The contention of the respondents is that general order 7 purports it gave been issued as consistent with the provisions of Regn. 38(d) of the Bombay State Electricity Board Employees' Service Regulations and not in exercise of the powers granted to the Board under Regn. 11(d) which came into force in this region on 1 October 1962. It is therefore, urged that no valid action having been taken for prescribing appearance for a departmental examination, called the lower accounts examination, in exercise of the power vesting in the Board under Regn. 11(d) of the Maharashtra State Electricity Board Employees' Service Regulations, which regulations are applicable, the Board could not ask any of its employees to comply with that order. Further, the contention is that asking the employees to appear for an examination with a view to judge whether the employee is fit to be promoted or not, in absence of any previous usage or customs to that effect, itself amounts to effecting a change in the conditions of service, and therefore, such a change could not be brought about except by following the procedure under the Central Provinces and Berar Industrial Disputes Settlement Act. The change that was brought about, therefore, is an illegal change and liable to be struck down under S. 41 of the Central Provinces and Berar Industrial Disputes Settlement Act. In support of this contention, our attention was invited to a decision of the Supreme Court in Chief Secretary to the Government of Mysore, Bangalore v. S. C. Chandrayya, etc. [1966 Supreme Court Notes, Note No. 346]. We are not in a position to appreciate the ratio of this decision as the full report is not reproduced in the note, and particularly because, there are no means of knowing what were the provisions or the terms of S. 10A, which were being interpreted in the judgment. Such cryptic notes can hardly be of any assistance unless all the facts nd the provisions of law which were under consideration and construction are reproduced in the judgment to give any guidelines for construction or interpretation of regulations, with which we are concerned in this case.
14. There is no doubt that so for as the employees directly employed by the Bombay State Electricity Board were concerned, they were bound by the regulations or rules made by the Bombay State Electricity Board or its successor, the Maharashtra State Electricity Board, from time to time. That was a condition of their service. It is equally clear that in the matter of promotion if the principle to be followed was that of seniority-cum-merit, the employer had certainly a right to judge the merit of the candidate who was eligible for promotion. We have not been pointed out any provision in the rules in which the merit was to be judged in a particular manner. It is suggested in arguments, however, that the merit of the candidate would ordinarily be judged by his performance in his work and the estimation of that of that performance by his superior officer. Once it is accepted that merit of the candidate was a factor required to be taken into consideration, and there being no rule indicating as to how the merit was judged, we fail to see why prescribing passing of an examination would not be a valid exercise of the power given in Regn. 11(d) for judging the merit of the candidate. It is not suggested that the lower accounts examination, which was prescribed as the examination required to be cleared by the candidate who desired promotion, was in any matter or in any manner onerous. In fact, the further notification issued by the Board dispensed with appearing for cost accounts subject in the book which was prescribed for preparation. Paragraph 3.4 of the general order 7 shows that the lower accounts examination would consist of
(a) precis and office procedure including establishment matters, and
(b) elementary bookkeeping and cost accounts.
15. There is another feature of these provisions which has to be taken into account. The test of examination was prescribed for those lower division clerks in the accounts department, who deserved promotion as upper division clerks in the department itself. It is thus obvious that the prescription of lower accounts examination was designed as one of the tests for determining the merit of the candidate. If the merit of the candidate could be legitimately considered in deciding which of the several candidates are eligible for promotion and for selection, we are unable to hold that prescribing of objective test like an examination would be not within the power of holding the test for merit. Rather than having an undefined or subjective test for subjective estimate and assessment and naturally gives rise to complaints of favouritism and nepotism or partiality, prescribing of an objective test like a written examination in prescribed subjects would certainly conform to a valid exercise of the power of prescribing test. We are, therefore, unable to hold that prescribing of test of the type or examination prescribed under these rules for judging the merit of the candidates for promotion amounted to making any change in the conditions of service.
16. But this is so far as the qualification for being considered for promotion to the higher post is concerned. The only penalty that we see possible to be suffered is in Para. 3.2, which speaks of possibility of loss of appointment and in the case of upper division clerks who have not completed 240 days in the post as upper division clerks, their becoming ineligible to draw any increment while officiating as such. So far as loss of appointment is concerned, in our opinion, the question of loss of appointment can arise, if at all, only in the case of upper division clerks, who are directly recruited and not in the case of lower division clerks, who are officiating in the post of upper division clerks. Therefore, there is no question of loss of appointment by a lower division clerk, officiating as an upper division clerk in any case. As regards reversion to the lower post in case the officiating upper division clerk who does not clear the examination. We do not think any complaint can be made. If passing of the examination can be legitimately made a test for promotion, an officiating upper division clerk who does not satisfy that test, that is, does not clear the examination, will have no legal right to claim that he should be continued as upper division clerk. But as long as the lower division clerk, even though he has not cleared the examination, continued to officiate as upper division clerk, we do not think that the Board will be entitled to deprive him of any increment he may legitimately have earned while officiating as an upper division clerk. In other words, his failure to clear the examination prescribed by these orders will not entail his being deprived of the legitimate increments which are due to him while officiating as upper division clerk. It is stated at the bar on behalf of the Board by the learned counsel that a circular has also been issued that no such consequence of depriving of increment while officiating as upper division clerk in the case of upper division clerks, who have not cleared the examination, will ensue.
17. The other categories of employees who came from the Madhya Pradesh and who were all lower division clerks on the date of reorganization, have also complained that according to the conditions of service by which they were governed in the Madhya Pradesh State Electricity Board no lower division clerk was required to appear for any examination as a condition for being considered for promotion to the post of upper division clerk. Here again, unfortunately the rules which have been filed refer to upper division clerks and not to lower division clerks at all. These rules have been filed and are to be found as Ex. 9.A at P. 110 in Special Civil Application No. 520 of 1966. Even a casual perusal of these rules would show that the rules made provision for appearance at examination for promotion to superior ministerial services, namely, to the post of select grade clerks and superintendents and the persons who are eligible for such promotion are upper division clerks and it is in their case that they are liable to pass the examination in essay or precis and drafting, works and stores accounting, establishment rules and bookkeeping and accounting. But we have no means of finding out what were the rules by which the promotion of lower division clerks to the cadre of upper division clerks to the cadre of upper division clerks was governed in the Madhya Pradesh State Electricity Board. Here again, the authorities below seem to have assumed that the test for promotion was again seniority-cum-merit. If that be the test for promotion, even for these employees employed as lower division clerks, in considering their eligibility for promotion as upper division clerks, in our opinion, the same consideration would apply as applied to the four respondents who were directly appointed by the Bombay State Electricity Board. The test being test on merit, to ask an employee to submit to such a test or written examination will certainly be within the power to prescribe a test for merit.
18. As regards the contention of the respondents that general order 7 purports to have been issued in exercise of the powers under Regn. 38(d) and there is no separate or subsequent order made in exercise of the powers under new Regn. 11(d), we do not think that the ambit and content of the power given to the Board under the subsisting Regn. 11(d) is in any way fettered because no fresh order is issued. We have extracted above the text of Regn. 11(d) and it fully empowers the Board to prescribe any reasonable test to be passed by a person or any reasonable conditions to be satisfied before he can be appointed or promoted to higher post where the duties attached to the higher post require a higher standard of knowledge and efficiency. Even without issuing a general order like the general order 7, it would be within the competence of the Board to prescribe an examination for different categories of its employees, passing of which could be made a condition before their claims for promotion to higher post were considered. Nothing, therefore, turn because the Board has not issued a fresh order like the previous order, viz., general order 7, in exercise of its power under Regn. 11(d). What is germane and important to be considered is, whether there is a power and that power having been found deposited in Regn. 11(d) of the Regulations which govern the employees of the Board, we fail to see why a formal announcement by way of a general order is necessary. Regulation 11(d) itself is quite sufficient to give a valid and legal basis for an order to each employee requiring him to appear for a prescribed test. Here again, the power is not capriciously or arbitrarily being used. That is not the contention, the contention being that even though the exercise of power is reasonable in the sense that a proper test is prescribed, that could not be done and should not have been except through the procedure under the Central Provinces and Berar Industrial Disputes Settlement Act. This contention assumes that a change is being effected in the conditions of service, an assumption for which there is no warrant. The condition of service was, according to the respondents own showing, that an employee was eligible to be considered for promotions on the basis of length of service and merit. It is not shown that there was any particular manner in which the merit was to be judged as a condition of employment or condition of service. In our opinion, a sufficient latitude must be left to the employer to judge the merit of an employee when his claim for promotion to higher and superior post is to be considered and unless it could be said that the test prescribed is arbitrary or capricious or puts an onerous burden on the employees, by and large, it could not be said that the prescription of an examination to judge the merit of the employee would require the procedure of the Central Provinces and Berar Industrial Disputes Settlement Act to be followed, because it involves no change in the condition of service. In this view of the matter, in our opinion, we cannot sustain the order of the State Industrial Court which granted a declaration to the respondents reversing the decision of the District Industrial Court.
19. The result is, the orders of the two Courts in Special Civil Applications Nos. 520, 521, 522, 523, 527, 528, 529, 532, 534, 535, and 536 of 1966 are set aside and the applications of the respective respondents are liable to be dismissed. The petitions are, therefore, allowed, but in the circumstances, there will be no order as to costs. The other petitions are dismissed because the original applications are withdrawn, but there again will be no order as to costs.