http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

PETITIONER:

R. HARIHARAN & ORS.

Vs.

RESPONDENT:

K. BALACHAIIDRAN NAIR & ORS.

DATE OF JUDGMENT: 11/09/2000

BENCH:

V.N.Khare, S.N.Phukan

JUDGMENT:

V.N. KHARE. J.

L.....I.........T.......T.......T.......T.......T.......T..J

The appellants herein, are Engineers in the service of

Kerala State Electricity Board (hereinafter referred to as

the '"Board") and have preferred these appeals against the

judgment rendered by the Division Bench of the Kerala High

Court whereby the writ petition and the writ appeal filed by

the respondents were allowed and the Board was directed to

re-fix the seniority in the light of legal position

indicated therein. As a result of the said judgment, the

appellants contend that they would be treated as junior to

the respondents.

The Board was established under Section 5 of the

Electricity' (Supply) Act, 1949 on 7th March, 1957. Prior

to 1.10.1966, 7 employees were appointed by the Board on

various categories of posts like Oyersecr, Tracer etc. The

Kerala Public Service Commission (Additional Functions) Act,

1963 (hereinafter referred to as the "Act") came into force

with effect from 1.10.1966. The Act provided for exercise

of certain additional functions by the Kerala Public Service

Commission in respect of appointments of officers and

servants of the Board and their conditions of service.

During the period 1972 to 1974 the appellants - four in

number, were recruited through the Public Service Commission

on different dates to different categories of posts like

Overseer, Tracer etc. On 18.4.1975, the Board issued an

Order that out of 50 per cent quota of direct recruits in

the cadre of Asstt, Engineer 40 pel- cent were to be

appointed from open market and remaining 10 per cent were to

be recruited from qualified Engineering Graduates in the

employment of the Board. The case of the respondents is

that the recruitment of these two categories of direct

recruits were to be made with the consultation of the Public

Service Commission. During, the period 1976 to 1980, the

Public Service Commission did not take any step tor

recruitment to fill up the 10 per cent quota set apart for

the in-service Engineering graduates who were

in employment with the Board. Since the appellants

and others - totaiing, eleven in numbers, were Engineering

Graduates in the service of tile Board.. the Board on

different dates beginning from 26.12.1976 to 1.8.1979

appointed them to the posts of Assistant Engineer (Civil)

against 10 per cent quota reserved for the in-service

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

Engineering Graduates in the Board. The letter of

appointment indicated that appointments of the appellants

were provisional during the period of probation and in case

they pass two Departmental tests viz., 'Departmental test

tor Executive Staff" and "Account Test Lower" and further on

satisfactory completion of the probationary' period, their

.services would be regularised.

On successful completion of the probationary' period,

the Board by separate orders regularised the appointments of

all the II Assistant Engineers including the appellants from

the date of their joining duties as Assistant Engineers.

The writ petitioners who are the respondents lierein were

recruited in the cadre of Assistant Engineers (Civil)

through the Public Service Commission and had joined their

duties on 2 i. 10.1981. Although the services of 11

employees including the appellants were regularised by the

Board, yet the Public Service Commission declined to give

its

concurrence to the regularisation of the services with

effect from the date of their joining duties. There being

difference of opinion between the Board and the Public

Service Commission on the question of date of regularisation

of services of the appellants, the Board referred the matter

to die State Government under sub-section (2) of Section 3

of the Act. The State Government on receipt of the

reference from the Board again referred the matter to the

Public Service Commission. Thereafter, the State Government

after considering the matter, by an order dated 12.5.82

overruled the advice of the Public Service Commission and

approved the regularisation of the services of the

appellants with direction that inter-sc seniority of the

Assistant Engineers whose services have been regularised

shall be determined from the date on which each Assistant

Engineer acquired the necessary qualification. Consequent

upon the order of the State Govt. dated 12.5.19S2 a

gradation list of Assistant Engineers was prepared wherein

the appellants were shown above to the respondents herein.

After a lapse of 5 years the respondents herein who are

direct recruits and joined duties on 21.10.1981, filed a

writ petition O.P. No.7730 of 1987 for quashing the Govt.

Order dated 12.5.1982 and the consequent gradation list

Ext.l2 to the

writ petition. In the said writ petition 10 Assistant

Engineers including the 4

appellants were arrayed as respondents 15 to 24. A

learned Single Judge of the Kerala High Court dismissed the

writ petition on the ground that the challenge to the

seinority list was highly belated and further there was no

violation of quota of 10 per cent earmarked for in-service

Engineering Graduates. Against the said judgment the

respondents herein filed a Writ Appeal before a Division

Bench of the High Court. During the pendency of the Writ

Appeal two other Assistant Engineers (Civil) who were also

directly recruited and had joined their duties on 21.10.1981

filed another Writ Petition No. 12363/93 seeking quasiling

of the Govt. Order dated 12.5.1982 and the gradation list

Ext.P.12. The writ appeal and the writ petition filed by

the writ petitioners were consolidated and heard together.

During the pendency of the writ appeal and the writ petition

the appellants were promoted to the posts of Executive

Engineers. The Division Bench after hearing the matter was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

of the view that tile date of the order of the first

appointment of the appellants would be the date when their

services were regularised i.e. 12.5.1982 and. therefore,

the respondents who joined their duty on 21.210.1981 have to

be treated senior to the appellants. The High Court allowed

the writ appeal and the writ petition and directed the Board

to re-fix the seniority in the light of what was stated in

the judgment,

Shri P.P.Rao, learned senior counsel, appearing for

the appellants advanced.three submissions. The first

submission is that under the Act there is no requirement of

consultation with the Public Service Commission in regard to

suitability of the candidate to be a.ppomted to the post of

Assistant Engineers in the Board and, therefore, the

seniority of the appellants has to be determined with effect

from the date of their first ad-hoc appointments. The

second submission is that if it is held that consultation

with the Public Service Commission was necessary with

respect to the appointment of the appellants in the Board,

the State Government in exercise of its over-ridding power

conferred by sub-section (2) of Section 3 of the Act cured

the defect ofnon consultation with the Public Service

Commission by over-ruling the advice of the Public Service

Commission and ordering for regularisation of the services

of the appellants with effect from the dates the appellants

acquired qualification. The third submission is that in any

event if it is held that the Kerala State and Subordinate

Rules 1958 are applicable to the appointment of Assistant

Engineers in the Board, the Government has power under rule

39 of the said Rules to retrospectively remove the hardship

by regularising the services of the appellants.

Learned counsel appearing for the respondents argued

that under the Act, consultation with the Public Service

Commission in regard to the suitability for appointment to

the post of Assistant Engingeers is mandatory and once the

Public Service Commission declined to give concurrence to

the regularisation of services of the appellants with effect

from the date of their joining duties, the seniority of the

appellants has to be determined from the date they were

regularised in the service of the Board. The further

argument of learned counsel for the respondents is that

under rule 27 of the Rules the ad-hoc appointment of the

appellants cannot be taken into consideration for the

purpose of determining intcr-se seniority of Assistant

Engineers and as such the respondents are to be treated as

senior to the appellants in the cadre of Assistant

Engineer(Civil).

Learned counsel for the appellants in support of his

argument referred to Section 3 of the Act and argued that

sub-clauses (a) and (b) of sub-sectio (1) of Section 3 of

the Act being in para materia with clause (3) (a) and (b) of

Article 320 of the Constitution. The State legislature

having not enacted any substantive provision like clause (1)

of Article 320 in Section 3 of the Act, there was no

obligation on the part of the Board to consult the Public

Service Commission with regard to suitability of the

candidates for appointment as Assistant. Engineers in. the

Board. H^ further argument is that the Board is competent

to appoint Assistant Engineers under Section 15 of the

Electricity Supply Act Clause (a) of sub-section (1) of

Section ^ requires the Board to consult the Public Service

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

Commission on all matters relating to method of recruitment

to services and posts under the Electricity Board and clause

(b) of sub-section (1) of Section 3 of the Act casts duty on

the Board to consult the Public Service Commission on the

principles to bo followed in making appointments to services

and posts under the Board and in making promotions and

transfers from one service to.another. According to

appellants only on aforesaid situations the Public Service

Commission is required to be consulted and not on the matter

relating to the suitability of the candidates for

appointments as Assistant Engineers in the Board. No doubt,

the argument is attractive and at the first glance appeared

carrying substance. But on a deeper consideration, we fmd

that second part of clause (b) to sub-section (1) of Section

3 of the Act requires the Board to consult the Public

Service Commission in the matter of appointment to the posts

of Assistant Engineers in the Board. The object of the Act

is to provide certain additional functions by the Kerala

Public Sendee Commission in respect of

appointment of officers and servants of the Kerala

Electricity' Board and in laying down their conditions of

servrce. Section 3 of the Act provides for the functions of

Public Service Conmmission of services under the Board,

which is extracted below:-

"3. functions of the Public Service Commission in

respect of services under the Electricity Board. - (1)

Notwithstanding anything contained in the Elecriciy (Supply)

Act (Central Act 54 of 1948), or the rules of regulations

made thereunder regarding the recruitment and conditions of

service of officers and servants of the Electricity Board,

the Public Service Commission shall be consulted-

(a) on all matter relating to method of recruitment to

services and posts under the Electriciy Board;

(b) on the principles to be followed in making

appointments to services and posts under the Electricity

Board and in making promotions and transfers from one

service to another and on the suitability of candidateg for

such appoinmens promotions or transfers;

© on any claim by or in respect of a person who is

serving or has sensed under the Electricity Board that any

costs incurred by him in defending legal proecedings

instituted against him in respect of sets done or purporing

to be done in the execution of his duty should be paid out

of the funds of the Etectriciy Board;

(d) on the claim for the award of a pension in respect

of injuries sustained by a person while serving under the

Electricity Board and any question as to the amount of such

award;

and it shall be the duty- of the Public Service

Coimnission to advice on any matter so referred to them:

Provided that the Governmen may make rules specifying

the matters m which either ge.neraHy or in any particular

class of cases or in. any particular circumstances, it

shall not be necessary for he Public Service Commission to

be consulted.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

(2) In the case of any difference of opinion b-tween

the Public Sendee. Conmiission and the Electricity Board on

any matter, the Electricity Board shall refer the matter to

the Government and the decision of the government thereon

shall be final:

Provided that the Giovernment before taking a decision

against the advice of the Commission shall refer the matter

to the Commission."

Section 4 empowers the Government to frame rules in

consultation with the Public Service Commission for carrying

out the purposes of the Act and also to frame rules on the

matters where it shall not be necessary for the Public

Service Commission to be consulted, in exercise of the said

power Government of Kerala has framed rules which is known

as'Kerala Public Service Commission (Additional Functions)

(Consultations) Rules 1966. Rule 3 of the rules provide the

matters where the Public Service Commission is not required

to be consulted. Rule 5 then provides that it would not be

necessary for the Board to consult the Commission where

appointment of a person is made temporarily for a

total period not exceeding three months or where appointment

has to be made in public interest owing to an emergency

which has arisen to fill immediately a vacancy in the post

and there would be undue delay in making the appointment

after such consultation. Rule 5 further provides that the

concurrence of 'the' Commission shall be obtained for the

continuance of such temporary appointment beyond three

months. ;

Now coming to clauses (a) and (b) of sub-section (I

)-of Section '3 of the Act it is no doubt true that clause

(a) provides for consultation on all matters pertaining to

method of recruitment to sendees. A perusal of clause (b)

of sub-section (1) of Section 3 of the Act shows that clause

(b) is in two parts. The first part of clause (b) runs as

under:

" on the principles to be followed in making

appointments to services and posts under the Electricity

Board and in making promotions and transfers from one

service to another."

The second part of clause (b) runa as under:

" and on the suitability of. candidatea for such

appomiments, promotions or transfers."

So tar as the first part of clause (b) is concerned,

we are in. agreement wit) the contention of learned counsel

for the appellant that it pertains to laying down the

principles to be followed in making appointments to the

service and does not provide for consultation with regard to

appointments in service, But the same is not the position in

the case of second part of clause (b).. extracted above.

The language employed in clause (b) is plain and simple and

there is no ambiguity in it. Both the parts of clause (b)

operate on different fields, the first part of clause (b)

requires consultation by the Public Service Commission on

the principles followed in making appointments, promotions

and transfers, whereas later part of clause (b) casts duty

on the Board to consult the Public Service Commission on the

matters pertaining to appointments, promotions and transfers

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

of th6 employees voi' the Board meaning thereby that the

Public Service Commission is required to be consulted on the

suitability of the candidates for appointments, promotions

or transfers. It is true that there is no substantive

provision like clause (I) of Article 320 of the Constitution

in Section 3 of the Act. However, later part of clause (b)

is complete and substantive provision in itself and as such

Section 3 of the Act does not require enactment any further

provision like clause (1) of Article 320 of the 12

Constitution providing for judging the suitability of

candidates by the Public Service Commission in the matter of

appointments. This interpretation of ours is in consonance

with the object of the Act for which the Act has been

enacted. If we put any other interpretation and hold that

the Public Service Commission is not required to be

consulted in the matters of appointments, promotions or

transfers, the same would be repugnant to the object of the

Act which means that the provisions of the Act are

meaningless and without any purpose. Further, the rules

framed by the State Government in exercise of its powers

under Section 4 of the Act has already provided the

situations where appointments in the Board would require no

consultation with the Public Service Commission. There is

no mention in the rules that there would be no consultation

with the Public Service Commission in respect of

appointments of Assistant Engineers in the Board. It is

settled principle of interpretation that the court shall

lean towards an interpretation which advances object of the

Act. We are, therefore, of the view that second part of

clause (b) ofsub-section(l) of Section 3 provides for

consultation with the Public Service Commission in the

matter of appointments of Assistant Engineers in the Board.

This view of ours also finds support from a decision of this

Court in State of Jammu and Kashmir vs. Mrs.Ral Pulari

Rsadan and others [1979 ISCC 461], wherein a

Constitution Bench of this Court held that clause (b) of

sub-section (2) of Section 133 ofJammu & Kashmir

Constitutiion which is analogous to clause (b) of

sub-section (1) of Section 3 of the Act requires

consultation with the Public Service Commission in the

matter of suitability of candidates tor appointments,

promotions and transfers in the service.

Coming to the next argument of learned counsel for the

appellants, we find that originally the appellants were

appointed through Public Service Commission on various

categories of posts like Overseers, Tracers etc. The Board

had reserved 10% posts of Assistants Engineers to be filled

in from the qualified Engineering Graduates in the

employment of the Board. During the period 1976 to 1980,

the Public Service Commission did not take any steps for

recruitment to fill up the 10% quota set apart in the

service for the Engineering Graduates who were in the

employment in the Board. Since there was an emergent

requirement for Assistant Engineers in the Board, the Board

appointed the appellants who were in the service of the

Board and possessed the requisite qualifications, to the

post of Assistant Engineers on probation on the following

terms:

1. He will be a probationer in the post of Assistant

Engineer (Civil) for aperiod of 6 months on duly within a

continuous period of one year,from the date of joining duly.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

2. He should pass the two Departmental tests viz.

"Departmental test for Executive Staff" and "Account Test

Lower " within the period of probation failing which the

declaration of satisfactory completion of his probation may

be postponed until he acquires these two tests or clause 5

below may be resorted to.

3. His appointment as Assistant Engineer (Civil) is

in the scale of pay of Rs. 800-30-890-40-1250.

4. He is eligible to get the allowances admissible to

the post held by him from time to time.

5. His appointment which is provisional during the

period of probation, shall be regularised only on

satisfactory performance of duties assigned to him during

the period of probation. His services are liable to be

terminated at any time during the period of probation, if

his performance of duties is found to be unsatisfactory.

6. His duties and functions, in general as Assistant

Engineer (Ble) will be in accordance with those laid down in

B.O. No.EB.IL24780/75/25-2-1977 as amended or modified from

time to time. He will have to attend to such works also as

may be entrusted to him/her from time to time by superior

officers.

The appellants passed the departmental examination and

various tests and after successful completion of the

probationary period their services as Assistant Engineers

were regularised by the Board by an order dated

14.11.79 with effect from the date of joining their

duties. One of such orders issued in favour ofShri

V.Venkiteswara lyer, is extracted below:

"Kerala State Electricity Board Proceedings of the

Chief Engineer (Civil) K S E Board, Trivandurm.

Sub : Estt - Sri. V. Venkiteswara lyer, Asst.

Engmeer © Declaration of probation - Orders issued -

Older No. EBC4/807/77 Dated : 14-11-1979

Read : This office Memo No. EBC4/807/77/5-5-79 to

Sri V.Venkiteswra lyer.

ORDER

Sri V.Venkiteswara lyer, first Gr, Overseer (Ele)

Office of the Chief Engineer (Ele) KSE Board, Trivandrum was

provisionally appointed as Assistant Engineer (Civil) and

posted in this office vide this office memo read above and

he had reported for duty on the A.N. of 5-5.79. As per the

condition of appointment he will be a probationer in the

post of Assistant Engineer (Civil) from the date of his

joining duty in that post and the period of probation was

then fixed as 6 months within a continuous period of one

year.

The Executive Engineer, T.P.H. Office - has reported

in Office note (i) dated 6-11-79 that the period of

probation has been completed by Sri V. Venkiteswara lyer.

Assistant Engineer (Civil) satisfactorily.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

Hence, it is hereby declared that Sri V.Venkiteswara

lyer liaa completed the probation eatiefaotorily and that

his provisional appointment as Assistant Engineer (Civil) is

regulatriced from. the date of the joining duty-.

.Sd/

CHIEF ENGINEER (CIVIL)

However, the Public Service Commission did not agree

for regularisation of services of the appellants with effect

from the date of joining their duties and as such the matter

was referred to the State Government. The State Government

after consultation with the Public Service Commission found

that the appellants had possessed the prescribed

qualifications and were suitable to be appointed as

Assistant Engineers and further they gained considerable

experience and competence, and as such over-ruled the advice

of the Public Service Commission and approved the

regularisation of services of the appellants with effect

from the date they acquired the requisite qualifications.

Admittedly, the appellants had acquired the qualifications

prior to 21.10.81, which is the date of joining duty by the

respondents herein. In this background the question that

arises is whether the Government could grant regularisation

of services of the appellants as Assistant Engineers with

effect from the date of acquisition of their qualifications.

Sub-section (2) of Section 3 of the Act provides that in

case of any difference of opinion between the Public Service

Commission and the Electricity Board on any matter, the

Electricity Board is required to refer the matter to the

Government and the decision of the Government thereon is to

be treated as final. The said power of the State Government

has not been

questioned. Further, under Section 4 of the Act, the

State Government is empowered to lay down the matters where

consultation with the Public Service Commission is not

necessary. The State Government in exercise of its power

has already provided that in certain classes of appointments

it is not necessa