Obul Reddi, J.
1. These two writ petitions raise a common question whether the regulations made by the respondent-Electricity Board are in any way inconsistent with the provisions of the Industrial Employment (Standing Orders) Act, 1946, and the model standing orders made thereunder.
2. It may be stated at the outset that a preliminary objection is taken by Sri T. Anantha Babu, the learned Counsel appearing for the respondents, that the Industrial Employment (Standing Orders) Act, 1946, and the model standing orders are not applicable to the respondent-Electricity Board.
3. The facts necessary for determination of the question raised are these. Fourteen employees in Writ Petition No. 2372 of 1972 and sixty-six employees in Writ Petition No. 4508 of 1973 of the Andhra Pradesh State Electricity Board have filed these writ petitions questioning the right of the respondents to insist upon the petitioners sitting for an examination in pursuance of Board's Proceedings in B.P. Ms. No. 287, dated 1st May, 1972. The petitioners in both the writ petitions were temporarily appointed either as lower division clerks or typists or stenotypists as the case may be in the various sub-officers of the Electricity Board. Recruitment on a temporary or emergency basis to the said posts was being made by the Electricity Board from 1967 onwards. For the purpose of regularizing the services of the temporary lower division clerks or typists, the Board issued proceeding B. P. Ms. No. 241, dated 28th March, 1969, as there were more than 1,000 typists and clerks recruited on emergency basis. They all agitated for their permanent absorption. It was, therefore, felt by the Board that it may not be desirable to keep such large number of employees in suspense about their future without conferring any benefits of service on them and, therefore, they made certain rules for regularizing their services. Graduates whose work was considered satisfactory should be regularized without any test. Others who possessed the minimum educational qualifications with a good record of service may be interviewed and selected. Such of those who did not possess the minimum qualifications or have an unsatisfactory record should be discharged after giving one month's pay. Certain concessions were also provided to those employees who had become over-aged for relaxation of the rules. Reservation was also made for scheduled castes and scheduled tribes. The manner in which the seniority should be fixed was also provided in these proceedings. Pursuant to the policy enunciated in the aforesaid proceedings, the services of good number of temporary clerks and typists were regularized. Then came the next proceedings of the Board in B. P. Ms. No. 287, dated 1st May, 1972. These proceedings were issued by the Electricity Board in exercise of the powers conferred upon it under Section 79 of the Electricity (Supply) Act, 1948. Under these regulations, all those who were temporarily employed were to be called 'emergency employees.' All of them were entitled to have their services regularized under Regulation 23 of the Andhra Pradesh State Electricity Board Service Regulations, Part II, on passing the qualifying test prescribed. The various tests to be held are also specified in these proceedings. These proceedings were followed by Board's proceedings in B. P. Rt. No. 548, dated 2nd September, 1972, which were issued on account of the representations made by the associations of lower division clerks and typists. They wanted their services to be regularized without any test as was done in the case of lower division clerks and typists who had put in two years of service as on 1st January, 1969 in B. P. Ms. No. 241, dated 28th March, 1969. The Board, therefore, relaxed the previous rule in favour of the emergency clerks and typists who had put in two years of satisfactory service as on 1st May, 1972. The appointing authorities were directed to regularize the services of all emergency lower division clerks and typists, who had put in two years of satisfactory service on 1st May, 1972 in accordance with the terms and conditions laid down in B.P. Ms, No. 241, dated 28th March, 1969. The proceedings of the Electricity Board in B.P. Ms. No. 287. dated 1st May, 1972., and B.P. Rt No. 548, dated 2nd September, 1972, are now challenged in these two writ petitions, on the ground that they are inconsistent with the provisions of the Industrial Employment (Standing Orders) Act and the model standing orders and also discriminatory offending Article 14 of the Constitution as the respondent-Electricity Board seeks to draw a line between the temporary employees who have put in two years of service as on 1st May, 1972 and those who had not put in two years of service by that date.
4. As regards the preliminary objection raised by Sri Anantha Babu, in view of the slender material placed before the Court by both sides, it is difficult to determine whether the respondent-Electricity Board comes or not within the meaning of the expression 'industrial establishment' as defined in Section 2(ii)(g) of the Payment of Wages Act, 1936. The discussion, therefore. has to proceed on the basis, assuming that the respondent-Electricity Board is an industrial establishment, whether the regulations issued are in any way inconsistent with or repugnant to the provisions of the Industrial Employment (Standing Orders) Act and the model standing orders. The Industrial Employment (Standing Orders) Act applies to all industrial establishments. 1 am proceeding on the assumption without recording a finding that the industrial Employment (Standing Orders) Act applies to the respondent-Board on the ground that it is an 'industrial establishment.' The respondents have not submitted any draft standing orders as required under Section 3 to the Certifying Officer (Labour Commissioner). The stand of the respondents is that the Electricity (Supply) Act is a special Act which gives them all the power to appoint employees to their establishments and regulate their conditions of service ; and, therefore, by virtue of the powers conferred upon them, regulations have been framed and those regulations prevail over the Industrial Employment (Standing Orders) Act or the model standing orders. Where no standing orders are submitted or approved by the Certifying Officer, the model standing orders are to be applied. That is what Section 12A of the Industrial Employment (Standing Orders) Act says. The rules framed also provide that the model standing orders for the purpose of the Act for application to the industrial establishments shall be those set out in Schedule I. In Schedule I of the model standing orders, 'permanent workman', 'probationer', 'temporary workman' 'casual workman', 'apprentice' and 'seasonal workmen'', are all defined. According to Sri Jagannadha Rao, the respondents have introduced a new class of employees called 'emergency employees' in B.P. Ms. No. 287, dated 1st May, 1972, which expression is not found in the rules or in the model standing orders:
'permanent workmen' means a workman appointed in a permanent vacancy and whose appointment has been confirmed in writing by the employer; and includes a workman who has completed a satisfactory probation of six months in the aggregate in the same or another occupation in the establishment including the break due to sickness, accident, leave, lock-out, strike (not being an illegal strike), or involuntary closure of the establishment.
The expression 'probationer' to the extent material reads:
Probationer, means a workman who is provisionally employed to fill a permanent vacancy and who has not completed six months' satisfactory service in the aggregate in that post-Temporary workman' means a workman who has been appointed for limited period for work which is of an essentially temporary nature, or who is employed temporarily as an additional workman in connexion with temporary increase in work of a permanent nature.
'Casual workman' means a workman who is employed for work which is essentially of an occasional or casual nature.
5. Lower division clerks and typists, were all appointed on an emergency basis. In the first instance, in B.P.Ms. No. 241, dated 28th March, 1969, all graduates, irrespective of their length of service, were regularized. Others whose work was found satisfactory and possessed the prescribed minimum qualifications were interviewed and their services were regularised. Even in the case of candidate's who were over-aged, the age-limit was relaxed in their favour provided their conduct and work were found satisfactory. Then the Board felt that some rational method should be adopted by which those who were recruited by it on an emergency or temporary basis could be regularized. They, therefore, felt that the tests as detailed in B.P. Ms. No. 217, dated 1st May, 1972, should be conducted and those who came out successful in those tests should be regularized. Then again they amended those regulations by B.P. Rt. No. 548, dated 2nd September, 1972, only to the extent that such of those who had completed two years of temporary service as on 1st May, 1972 need not sit for the tests and only those who had not put in that minimum period of two years' service by 1st May, 1972 should alone sit for the tests and secure the minimum number of marks prescribed if their services should be regularized. These regulations, according to Sri Jagannadha Rao, the learned Counsel for the petitioners, are inconsistent with the provisions of the Industrial Establishment (Standing Orders) Act and the model standing orders. There is nothing in model standing orders or in the Industrial Establishment (Standing Orders) Act which prohibits an industrial establishment from prescribing tests for purpose of recruitment of its service personnel. Though the petitioners were described as 'emergency employees' in B. P. Ms. No. 287, dated 1st May, 1972, they were in fact temporarily appointed on account of the increase in the workload in the various offices of the respondent-Board The fact that they were recruited on an emergency basis goes to show that they were not intended to be absorbed as permanent workmen. They cannot be deemed to be probationers for, they were not appointed in any permanent vacancies. It does not also appear from what is stated in the writ petitions or in the counter-affidavit of the respondents that the cadre strength of lower division clerks or typists has been fixed. When there is nothing to suggest that the cadre strength has been fixed it will he difficult for the Court to say that the petitioners and others, who were appointed on emergency or temporary basis, come either within the expression ''permanent workman' or 'probationers'. It, therefore, follows that the appointment of the petitioners was essentially of a temporary nature or they were appointed to cope with the additional increase in the work. On account of several new schemes sponsored by the respondent-Electricity Board, it became necessary to employ typists and lower division clerks on an emergency basis. There is nothing in the Industrial Employment (Standing Orders) Act or in the model standing orders which prohibits an industrial establishment from prescribing qualifications for appointment either as a permanent workman, probationer, temporary workman or casual workman. Prescribing qualifications for a particular post cannot be said to come within the ambit of the expression 'service conditions'. By asking the temporary or emergency employees who acquired no rights for absorption to appear for certain tests, I am unable to understand how it affects the service conditions or is in violation of any of the provisions of the Industrial Employment (Standing Orders) Act or the model standing orders.
6. Sri Jagannndha Rao, however, sought to rely upon a recent decision of the Supreme Court in Western India Match Company Ltd. v. Their Workmen (1973) 2 L.L.N. 357. The question that arose in that case was whether an employer can enter into special agreement with individual workman regarding probation and other service conditions without regard to the service conditions of the workman as laid down in the-standing orders. That was a case where the standing orders provided for probation of two months only, but the special agreement with the individual workman provided for probation of six months. It was, therefore, held by Dwivedi, J., who spoke for the Court that
the terms of employment specified in the standing order would prevail over the corresponding terms in the contract of service in existence on the enforcement of the standing order.
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If a prior agreement, inconsistent with the standing orders will not survive, an agreement posterior to and inconsistent with the standing order should also not prevail. Again, as the employer cannot enforce two sets of standing orders governing the classification of workmen, it is also not open to him to enforce simultaneously the standing order regulating the classification of workmen and a special agreement between him and an individual workman setting his categorization.
7. There is nothing in the model standing orders which provides the maximum period a workman can be made to work as a temporary workman. All that we get from the definition of ' temporary workman', is that he is a workman appointed for limited period of work which is of an essentially temporary nature or is employed in connexion with the increase of work which may be of a permanent nature. The temporary nature of Work may be for a period of one year, two years or three years depending upon a particular additional scheme sanctioned and the duration it lasts. It is, therefore, difficult to say from the definition of 'temporary workman' in the model standing orders that a temporary workman is automatically entitled to be absorbed, and that it is not open to the respondent-Electricity Board to proscribe any qualifying tests for his permanent absorption in its service.
8. Section 79(c) of the Electricity (Supply) Act empowers the Board to make regulations not inconsistent with the Act or the rules made thereunder specifying the duties of officers and servants of the Board, and their salaries and allowances and other conditions of service. It is by virtue of these statutory powers conferred upon the Board that the impugned regulations have been made by the Board. A reading of the regulations would go to show that the Board did not want to keep a large number of its employees on a temporary or emergency basis and for regulating the services of temporary employees' regulations were framed. Some method had to be adopted having regard to the temporary nature of work to which hundreds of clerks and typists were appointed and to absorb them on a permanent basis as and when vacancies arose in its permanent establishment, it is entitled to conduct its own tests for the purpose of judging the suitability or otherwise of the temporary clerks or typists. The fact that as temporary clerks, the petitioners gained some experience is not a ground for contending that they do not have to sit for the tests prescribed by the Board as the conditions of service apply only after a person is selected, and appointed to a particular post. I am therefore, of the view that the Board was well within its rights to frame regulations in exercise of the powers vested in it under Section 79(c) of the Electricity (Supply) Act The Board has also power under Clause (k) of Section 79 to make regulations concerning any other matter other than those specified in Clause (a) to (I) arising out of Board's functions for which it is necessary or expedient to make regulations. Therefore, it cannot be said that the Board had exceeded its powers in prescribing certain tests for the purpose of judging the suitability of a candidate for absorption on a regular basis in the Electricity Department.
9. I am also of the view that the Industrial Employment (Standing Orders) Act, 1946, and the model standing orders cannot be invoked by the petitioners as they do not override the provisions of the Electricity (Supply) Act. The Electricity (Supply) Act is a special Act and provides for making rules and regulations in matters relating to employment of personal to the Board's service. That being the case, I am not inclined to agree with Sri Jagannadha Rao that the Industrial Employment (Standing Orders) Act, 1946, applies to the respondent-Electricity Board. The same view has also been expressed by Broome, J., in Bijli Mazdaor Sangh v. Uttar Pradesh State Electricity Board : AIR1970All589 .
10. A Division Bench of the Madras High Court in Coimbatore Municipality and Ors. v. Thiruvenkaaswami (K.) and Ors. (1973) I L.L N. 82, dealing with the question of applicability of the Industrial Employment (Standing Orders) Act also, observed that the Act does not apply to electrical department of Coimbatore Municipality, that the rules framed by provincial Government under Municipalities Act constitute special law and, therefore, that would prevail over model standing orders framed under Standing Orders Act, which constitutes' general law.
11. The only other question is whether there is any arbitrariness in drawing a line between temporary employees who had put in two years of service by 1st May, 1972 and these who had not put in two years of service by that date so as to say that the petitioners have been discriminated against for the reason that they had not completed two years of service by 1st May, 1972. All that has to be seen is whether the dividing line drawn has any rationale behind it. All that was stated by the Supreme Court in R.B. Diwan Badri Dass and Ors. v. Industrial Tribunal, Punjab and Ors. : (1962)IILLJ366SC , is that for the purpose of leave, there cannot be one rule in respect of those who were employed on or before 1st July, 1956 and those who were employed after 1st July, 1956. Discrimination in that case was this. In respect of those who were employed prior to 1st July, 1956, they were entitled to the facility of thirty days' earned leave with wages and those who were appointed subsequent to 1st July, 1956 were governed by Section 79 of the Indian Factories Act. That altered the position of those who were appointed after 1st July, 1956 for under the statute they were only entitled to the minimum of twenty days of earned leave. The Industrial Tribunal gave an award on the dispute raised by those who were appointed after 1st July, 1956 that those who joined subsequently also would be entitled to thirty days' earned leave as they were all workman without regard to the date of their joining. That award was questioned before the Supreme Court and it was held by the learned Judges of the Supreme Court that:
having regard to the nature of the dispute raised in the appeal and the other relevant facts and circumstances it could not be said that the Industrial Tribunal erred in law in directing the appellants to provide for the same uniform rule as to earned leave for all their employees and that the award under appeal could not be set aside only on the academic or abstract point of law raised by the appellants, namely, in granting the demand made by the employees, the award has illegitimately and unjustifiably trespassed on the appellants' freedom of contract.
12. Whether there is discrimination or not depends upon the facts and circumstances of each case As already stated by me, it is open to the appointing authority 10 make regulations. Afterall, some date has to be fixed for the purpose determining as to who should be absorbed and who should not be absorbed in order to bring to an end the emergency or temporary appointments. The Supreme Court in Jain Brothers v. Union of India : 77ITR107(SC) , was not prepared to countenance an argument that Section 297(2)(g) of the Income Tax Act, 1961, inasmuch as it classifies, for imposition of penalty, into two groups of assessees with reference to the particular date, namely, completion of assessment proceedings on or after the first day of April, 1962 violated Article 14 of the Constitution. It was observed by their Lordships of the Supreme Court, that
it is for the Legislature to decide from which date a particular law should come into operation. It is not disputed and no reason has been suggested why pending proceedings cannot be treated by the Legislature as a class for the purpose of Article 14.
13. Therefore, it is for the appointing authority to decide from which date the regulations regarding tests for absorption of temporary employees should come into force. I find no arbitrariness in drawing the line between those who had completed two years of service and those who had not completed two years of service by 1st May, 1972.
14. I, therefore, find no merits in these two writ petitions. They are accordingly dismissed. No costs.