MD. ISLAM & ORS.versusTHE BIHAR STATE ELECTRICITY BOARD & ORS.

                          [2022] 7 S.C.R. 57                               57


                        MD. ISLAM & ORS.                                   A
                                   v.
      THE BIHAR STATE ELECTRICITY BOARD & ORS.
                   (Civil Appeal No. 5764 of 2022)
                          AUGUST 23, 2022                                  B
   [DR. D. Y. CHANDRACHUD AND A. S. BOPANNA, JJ.]
       Judicial Review – When not – Date of applicability of ACP
Scheme – Bihar State Employees Conditions of Service (Assured
Career Progression Scheme) Rules 2003 – ACP Scheme notified in
                                                                           C
2003 by State of Bihar for its employees retrospectively w.e.f
09.08.99, adapted by Respondent No.1-Electricity Board through
notification dtd.05.04.05 – Subsequent notification issued by
respondent no.1 notified that the ACP Scheme would be applicable
only for the staff appointed after issuance of the earlier notification
dtd. 05.04.05– Challenged by appellants-employees in 2011 inter            D
alia seeking directions to respondent no.1 to also introduce the benefit
of the ACP Scheme w.e.f 09.08.99, writ petitions dismissed – On
appeal, held: Appellants were guided by service regulations of the
Electricity Board – Any notification relating to service conditions
issued by State of Bihar was neither ipso facto nor mutatis mutandis
                                                                           E
applicable to the employees of Electricity Board unless the same
was adapted – Even if adapted, it would depend on the manner and
to the extent adapted – Further, the notification issued by State of
Bihar itself clarified that it shall not be applicable to the employees
of public sector undertakings/autonomous institutions – Respondent
No.1 is an autonomous public undertaking – Thus, mere issuance             F
of the said notification would not create any right in favour of its
employees – Appellants cannot contend that the Scheme should be
applicable from the very same date on which it was made applicable
to the State Govt. employees – Judicial review of the date chosen
for applicability would arise only if such choice of date is malafide
                                                                           G
or with ulterior motive– Furthermore, even when notification dtd.
05.04.05 was issued, all other appellants except the appellant no.1
had retired – Though, appellant no.1 was in service upto 31.07.08,
neither him nor others raised any grievance till 2011 as it was clear
that the Board in its discretion had adapted the Scheme w.e.f
05.04.05 – High Court adverted to all aspects of the matter– Decision      H
                                    57
58            SUPREME COURT REPORTS                       [2022] 7 S.C.R.


A    of High Court does not call for interference– Electricity (Supply)
     Act, 1948 – s.79(C).
           Dismissing the appeal, the Court
            HELD: The fact which cannot be disputed is that even
     though at an earlier point in time the Electricity Board had adapted
B    the Bihar Service Code of the State Government due to which all
     Service Conditions, Rules and notifications applicable to the
     employees of the State Government had become applicable to
     the employees of the respondent No.1-Electricity Board, the
     respondent No.1- Electricity Board had thereafter in exercise of
C    the power conferred under Section 79 (C) of the Electricity
     (Supply) Act, 1948 had framed its own service regulations. The
     indisputable position is that, the appellants, therefore, were
     guided by the service regulations of respondent No.1-Electricity
     Board. Therefore, the notification relating to service conditions
     if any issued by the State of Bihar to regulate the service
D    conditions of its employees was neither ipso facto nor mutatis
     mutandis applicable to the employees of the respondent No.1-
     Electricity Board unless the same was adapted by the respondent
     No.1- Electricity Board. Even if adapted, it would depend on the
     manner and to the extent adapted. With this position being clear,
E    a perusal of the notification dated 25.06.2003 issued by the State
     of Bihar will indicate, the benefit of the same is being sought by
     the appellants is in relation to its applicability w.e.f 09.08.1999 as
     provided therein. However, the notification on the face of it
     indicates the category of employees to whom it would apply as
     also the category to which it does not apply. The notification dated
F    25.06.2003 itself clarifies that it shall not be applicable to the
     employees of public sector undertakings or autonomous
     institutions. The respondent No.1 is a statutory Board which is
     therefore an autonomous public undertaking. If that be the
     position, the mere issue of the notification dated 25.06.2003 by
G    the State of Bihar would not create any right in favour of the
     employees of the respondent no.1-Electricity Board for the
     benefits provided under such notification. The notifications dated
     05.04.2005 and 07.10.2005 become relevant in the matter of
     granting benefit of the ACP Scheme to the employees of the
     respondent No.1-Electricity Board since there can be no claim
H
   MD. ISLAM & ORS. v. THE BIHAR STATE ELECTRICITY                      59
                    BOARD & ORS.

until it is adapted. A perusal of the notification dated 07.10.2005     A
indicates that the decision of the Board to adapt the ACP Scheme
of 2003 was only for the staff appointed after the issuance of the
Board’s notification No.25 dated 05.04.2005. The same indicates
that respondent No.1-Electricity Board did not adapt the ACP
Scheme of 2003 retrospectively w.e.f 09.08.1999 as was done by
                                                                        B
the State government for its employees but had given prospective
effect from the date the respondent no.1-Electricity Board had
adapted the same through the notification dated 05.04.2005. The
appellants, in any event, cannot contend that the Scheme should
be applicable from the very same date on which it had been made
applicable to the State Government employees when the                   C
respondent no.1-Electricity Board had the discretion to either
adapt or not to adapt the Scheme. When the Board had decided
to adapt, in such event it has also the discretion to alter the date
of its applicability as against the date notified by the State
Government. Any judicial review on the date chosen for
                                                                        D
applicability would arise only if such choice of date is demonstrated
to be malafide or with ulterior motive. In the instant case, the
date chosen is the date on which the scheme was adapted and
the advantage or disadvantage thereof would befall on all
employees across the board depending on which side of the fence
they are as on such date. In the instant appeal, even as on the         E
date the notification dated 05.04.2005 was issued to adapt the
scheme, all except the appellant No.1 had retired from service.
Though, appellant No.1 was in service upto 31.07.2008 neither
the appellant No.1 nor the other appellants or the other writ
petitioners had raised any grievance till the year 2011 as the
                                                                        F
position was clear that the Board in its discretion had adapted
the Scheme w.e.f 05.04.2005. Further, as indicated in the counter-
affidavit filed by the respondent No.1- Electricity Board, the
amended Rules 2006 had thereafter been brought to amend
certain provisions of the ACP Scheme of 2003 which ceased to
exist after 31.12.2008 with the adaption of the modified ACP            G
Scheme of 2010 w.e.f 01.01.2009 with certain modifications. The
grievance put forth by the appellants or the other writ petitioners
before the High Court was rightly not accepted. The High Court
adverted to all aspects of the matter and has thereafter arrived
at the conclusion in accordance with law which does not call for
interference.[Paras 9-15][63-B-E; 64-A-C; 65-A-G; 66-A]                 H
60             SUPREME COURT REPORTS                           [2022] 7 S.C.R.


A          Union of India and Another v. S. Dharmalingam (1994)
           1 SCC 179 : [1993] 3 Suppl. SCR 446 – referred to.
                              Case Law Reference
     [1993] 3 Suppl. SCR 446              referred to              Para 7
B          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5764
     of 2022.
           From the Judgment and Orders dated 18.12.2018 of the High
     Court of Judicature at Patna in Letters Patent Appeal No. 342 of 2018.
          Amit Pawan, Anand Nandan, Hassan Zubair Waris, Suchit Singh
C    Rawat, Ms. Shivangi, Aakarsh, Advs. for the Appellants.
           Navin Prakash, Abhishek Vikas, Raj Kishor Choudhary, Pranab
     Prakash, Advs. for the Respondents.
           The Judgment of the Court was delivered by
D          A. S. BOPANNA, J.
            1. The appellants are before this Court claiming to be aggrieved
     by the judgment dated 18.12.2018 passed by the Division Bench, High
     Court of Judicature at Patna in LPA No.342/2018. Through the said
     judgment, the Division Bench has dismissed the appeal filed by the
E    appellants herein while upholding the judgment dated 09.01.2018 passed
     by the learned Single Judge of that Court, in Civil Writ Jurisdiction Case
     No.13837/2011. The learned Single Judge had dismissed the writ petition
     along with the analogous petitions which were considered and disposed
     of by a common judgment.
F           2. The appellant No.1 was an employee who retired from the
     service of respondent No.1 – the Bihar State Electricity Board on
     31.07.2008. The appellants No.10 and 11 are the spouse of the deceased
     employees. The spouse of the appellant No.10, 11 and the other appellants
     retired on 31.01.2005. The appellants, through their writ petitions filed in
     the year 2011 had sought for issuance of directions to respondent No.1-
G    Electricity Board to introduce the benefit of the Assured Career
     Progression Scheme (‘ACP’ for short) with effect from 09.08.1999 and
     as a consequence thereof to pay all monetary benefits. The said relief
     was prayed to be granted by quashing the resolution no.8165 dated
     22.09.2005 and the notification dated 07.10.2005 issued by the respondent
H    No.1 Electricity Board.
   MD. ISLAM & ORS. v. THE BIHAR STATE ELECTRICITY                               61
           BOARD & ORS. [A. S. BOPANNA, J.]

       3. The brief facts leading to the case is that the appellants were        A
appointed in the respondent No.1-Electricity Board as Junior Engineers/
Overseers over a period of time and were subsequently promoted to the
post of Assistant Engineers. As noted, the petitioners before the learned
Single Judge had retired on attaining the age of superannuation on
different dates between 31.12.2000 to 31.01.2005, and insofar as
                                                                                 B
appellants herein, except for appellant No.1 who retired on 31.07.2008,
all others had retired prior to 31.01.2005. When this was the position, the
Government of Bihar through the Finance Department notified on
25.06.2003, the Bihar State Employees Conditions of Service (Assured
Career Progression Scheme) Rules 2003, (‘ACP Scheme’ for short).
The same was introduced by the State of Bihar for its employees on               C
25.06.2003 but the scheme provided that it shall come into force w.e.f
09.08.1999. The notification had specified that the scheme shall not be
applicable to the teachers of Nationalised Schools and employees of the
public undertakings or autonomous institutions, assisted partially or fully,
by the State Government. Thus, the scheme, by itself was not applicable
                                                                                 D
to the respondent No.1 - Electricity Board until they chose to adapt the
same. It is in that view, the respondent No.1 - Electricity Board through
the notification dated 05.04.2005 adapted the ACP Scheme of 2003.
Subsequent thereto, a notification dated 07.10.2005 was issued, notifying
that the said ACP Scheme of 2003 would be applicable only for the staff
appointed after the issuance of the earlier notification dated 05.04.2005.       E
This was with a view to clarify that the scheme though adapted was not
w.e.f 09.08.1999 as was in the case of Government employees.
       4. Though, the initial notification dated 05.04.2005 and the
subsequent notification clarifying the date of its applicability were notified
on 07.10.2005, as on such date, insofar as the appellants herein are             F
concerned, all the other appellants except appellant No.1 had retired
and even though appellant No.1 was in service and had retired on
31.07.2008, they did not make any grievance with regard to the same
until the year 2011 when the writ petition was filed. In the writ petition,
the respondents were notified and respondent No.1- Electricity Board
had filed a detailed objection explaining its stand on the applicability of      G
the ACP Scheme of 2003 w.e.f 05.04.2005. The learned Single Judge
having adverted to the rival contentions, had noted that the scheme would
not be applicable until the respondent No.1 Electricity Board adapts the
same. In that light, having noted that the adaption of the scheme was
w.e.f 05.04.2005, had declined relief to the appellants. In addition, the        H
62             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


A    learned Single Judge had also taken into consideration the benefit that
     the appellants had derived under the earlier scheme which was in vogue.
     The fact that the appellants not having assailed the notification issued by
     respondent No.1-Electricity Board until they retired from the service
     and long thereafter was also held against the writ petitioners.
B          5. The Division Bench of the High Court had also taken into
     consideration all these aspects of the matter and dismissed the appeals
     by upholding the order of the learned Single Judge. The appellants,
     therefore, being aggrieved by the concurrent view expressed by the
     High Court are before this Court in this appeal.
C          6. Heard the learned counsel for the parties and perused the appeal
     papers.
            7. At the outset, it is necessary to take note that the learned Single
     Judge, as also the Division Bench of the High Court has referred to the
     fact that respondent No.1-Electricity Board had not adapted the ACP
D    Scheme of 2003 until the notification dated 05.04.2005 was issued. By
     such time most of the appellants had retired, they had benefitted from
     the earlier scheme and as such could not avail dual benefits is also the
     view expressed by the High Court. The learned counsel for the appellants
     while assailing such a conclusion has sought to rely on the notification
     dated 23.03.2006 issued by the Government of Bihar, through the Finance
E    department, produced as an additional document along with I.A. No.
     115835 of 2019 to point out that the State Government while indicating
     that the Scheme shall come into effect from 09.08.1999 had clarified
     that the financial progression granted under Selection Grade/Time-Bound
     Promotion Scheme which came into force prior to 01.01.1996 shall not
F    be treated to be a financial progression for the purposes of the ACP
     Scheme. In that regard, the learned counsel also placed reliance on the
     decision in the case Union of India and Another vs. S. Dharmalingam
     (1994) 1 SCC 179 wherein it is held that the earlier benefit derived
     would not be a bar for the subsequent entitlement and the rule cannot be
     held as conferring double benefit.
G
            8. Having noted the contention on the said aspect, we are of the
     opinion that the said issue would become relevant only if at the first
     instance the Court is satisfied that the ACP Scheme of 2003 is accepted
     to be applicable to employees of respondent No.1- Electricity Board
     w.e.f 09.08.1999 as was made applicable to the government servants,
H    the benefit of which is being sought by the appellants herein. Hence, it is
   MD. ISLAM & ORS. v. THE BIHAR STATE ELECTRICITY                               63
           BOARD & ORS. [A. S. BOPANNA, J.]

necessary to examine this aspect of the matter relating to the date on           A
which the scheme will be applicable to employees of respondent No.1-
Electricity Board.
      9. In that regard, the fact which cannot be disputed is that even
though at an earlier point in time the Electricity Board had adapted the
Bihar Service Code of the State Government due to which all Service              B
Conditions, Rules and notifications applicable to the employees of the
State Government had become applicable to the employees of the
respondent No.1-Electricity Board, the respondent No.1- Electricity
Board had thereafter in exercise of the power conferred under Section
79 (C) of the Electricity (Supply) Act, 1948 had framed its own service
regulations. The indisputable position is that, the appellants, therefore,       C
were guided by the service regulations of respondent No.1-Electricity
Board. Therefore, the notification relating to service conditions if any
issued by the State of Bihar to regulate the service conditions of its
employees was neither ipso facto nor mutatis mutandis applicable to
the employees of the respondent No.1-Electricity Board unless the same           D
was adapted by the respondent No.1-Electricity Board. Even if adapted,
it would depend on the manner and to the extent adapted.
       10. With this position being clear, a perusal of the notification dated
25.06.2003 issued by the State of Bihar will indicate, the benefit of the
same is being sought by the appellants is in relation to its applicability       E
w.e.f 09.08.1999 as provided therein. However, the notification on the
face of it indicates the category of employees to whom it would apply as
also the category to which it does not apply. The relevant portion reads
as hereunder:-
       “It shall be extended to all the regular employees of Group ‘B’,          F
       ‘C’ and ‘D’ of the State Government of Bihar. This may also be
       made applicable, by a special order of the state Government, to
       holders of isolated posts of Group ‘A’. This shall not be
       applicable to the teachers of nationalised schools and
       employees of the Public Undertakings or the autonomous
       institutions, assisted, partially or fully, by the State                  G
       Government”
                                                     (emphasis supplied)
       11. A perusal of the same would indicate that, apart from the legal
position relating to the applicability of its own service conditions to the
                                                                                 H
64             SUPREME COURT REPORTS                            [2022] 7 S.C.R.


A    employees of the respondent No.1-Electricity Board, the notification dated
     25.06.2003 itself clarifies that it shall not be applicable to the employees
     of public sector undertakings or autonomous institutions. The undisputed
     position is that the respondent No.1 is a statutory Board which is therefore
     an autonomous public undertaking. If that be the position, the mere issue
     of the notification dated 25.06.2003 by the State of Bihar would not
B
     create any right in favour of the employees of the respondent no.1-
     Electricity Board for the benefits provided under such notification. It is
     in that light, the notifications dated 05.04.2005 and 07.10.2005 become
     relevant in the matter of granting benefit of the ACP Scheme to the
     employees of the respondent No.1-Electricity Board since there can be
C    no claim until it is adapted. In that regard, a perusal of the notification
     dated 05.04.2005 (Annexure P3) indicates that the Committee constituted
     by the Board had submitted its recommendations which were considered
     by the Board and had thereupon taken a decision to replace the then
     existing system of ‘Selection Grade and Time-bound Promotion’ with
     ‘Assured Career Progression Scheme’. The pay-scale for the purpose
D
     of ACP Scheme was to be notified later. Though, the notification dated
     05.04.2005 adapting the ACP Scheme was notified, immediately thereafter
     a notification dated 07.10.2005 (Annexure P4) was issued which reads
     as hereunder:
                “BIHAR STATE ELECTRICITY BOARD, PATNA
E            (DEPARTMENT OF GENERAL ADMINISTRATION)
                                   NOTIFICATION
             Notification XVIII/ Misc.-932/2003/108/ dated 7.10.2005
            In pursuance of Board’s Resolution no. 8165 dated 22.9.2005 the
            Board in exercise of power conferred upon the Board under
F           Section 79(C) of the electricity supply Act, 1948 has decided to
            adapt Bihar State Employees Condition of Service (Assured
            Career Progression Scheme) Rules 2003 only for the staff
            appointed after issuance of Board’s notification No. 25 dated
            5.4.2005. Board’s notification no. 25 dated 5.4.2005 stands
            modified to the above extent.
G                                                                 By order of the
                                                    Bihar State Electricity Board
                                                                              Sd/-
                                                            (Bishwanath Prasad)
                                                                        Secretary”
H                                                           (emphasis supplied)
   MD. ISLAM & ORS. v. THE BIHAR STATE ELECTRICITY                                65
           BOARD & ORS. [A. S. BOPANNA, J.]

       12. A perusal of the notification dated 07.10.2005 indicates that          A
the decision of the Board to adapt the ACP Scheme of 2003 was only
for the staff appointed after the issuance of the Board’s notification
No.25 dated 05.04.2005. The same indicates that respondent No.1-
Electricity Board did not adapt the ACP Scheme of 2003 retrospectively
w.e.f 09.08.1999 as was done by the State government for its employees
                                                                                  B
but had given prospective effect from the date the respondent no. 1-
Electricity Board had adapted the same through the notification dated
05.04.2005.
       13. If that be the position, the appellants, in any event, cannot
contend that the Scheme should be applicable from the very same date
on which it had been made applicable to the State Government employees            C
when the respondent no.1-Electricity Board had the discretion to either
adapt or not to adapt the Scheme. When the Board had decided to adapt,
in such event it has also the discretion to alter the date of its applicability
as against the date notified by the State Government. Any judicial review
on the date chosen for applicability would arise only if such choice of           D
date is demonstrated to be malafide or with ulterior motive. In the instant
case, the date chosen is the date on which the scheme was adapted and
the advantage or disadvantage thereof would befall on all employees
across the board depending on which side of the fence they are as on
such date.
                                                                                  E
       14. In the instant appeal as already noted, even as on the date the
notification dated 05.04.2005 was issued to adapt the scheme, all except
the appellant No.1 had retired from service. Though, appellant No.1
was in service upto 31.07.2008 neither the appellant No.1 nor the other
appellants or the other writ petitioners had raised any grievance till the
year 2011 as the position was clear that the Board in its discretion had          F
adapted the Scheme w.e.f 05.04.2005. Further, as indicated in the counter-
affidavit filed by the respondent No.1- Electricity Board, the amended
Rules 2006 had thereafter been brought to amend certain provisions of
the ACP Scheme of 2003 which ceased to exist after 31.12.2008 with
the adaption of the modified ACP Scheme of 2010 w.e.f 01.01.2009                  G
with certain modifications. If all these aspects of the matter are kept in
view, the grievance put forth by the appellants or the other writ petitioners
before the High Court was rightly not accepted.
      15. In that light, a perusal of the judgment dated 09.01.2008 passed
by the learned Single Judge and the judgment dated 18.12.2008 by the              H
66             SUPREME COURT REPORTS                          [2022] 7 S.C.R.


A    Division Bench would indicate that the High Court adverted to all aspects
     of the matter and has thereafter arrived at the conclusion in accordance
     with law which does not call for interference.
           16. In that view, the appeal being devoid of merit is accordingly
     dismissed with no order as to costs.
B           17. Pending applications, if any, shall stand disposed of.

     Divya Pandey                                               Appeal dismissed.
     (Assisted by : Deepak Panwar, LCRA)

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