Vidya Nand Sinha And Others v. The State Of Bihar And Others

1. The four petitioners obtained rule of this Court on the basis of their application under Articles 226 and 227 of the Constitution of India. In the application, they have prayed for issuance of writ on respondents 1 to 4 to show cause why an appropriate writ, order or direction should not be issued directing the respondents to allow the petitioners with effect from 1st January, 1971, the scale of pay of Rs. 425 to Rs. 710/- which was the sanctioned scale of the Bihar State Electricity Board, respondent No. 3.

2. In order to appreciate the points involved in this application, it would be necessary to state briefly the facts. All the four petitioners were overseers serving under respondent No. 3. At present, they are serving with respondent No. 1 as deputed by respondent No. 3. The scales of pay prescribed by respondents 1 and 3 were identical upto 31-12-1970. Respondent No. 3 revised the scale of the overseers among others by Notification dated 29th March, 1973, contained under Annexure 1 from Rs. 200 to Rs. 660/-. Further, enhancement of the scale was made by Notification dated 18th April, 1973 - Vide Annexure 2, according to which the scale of pay of the overseers was fixed at Rs. 425/- to 710/-. There is a further Note in the said Notification which reads as:

“The minimum starting pay of those overseers who are in employment on the date of issue of the order will be fixed at Rs. 455/-.”

3. While the sanctioned scale of pay for the overseers in the department of respondent No. 1 is only Rs. 335/- to 535/-. According to the petitioners, since they are on deputation, as deputed by respondent No. 3, they are on foreign service with respondent No. 1 according to Rule 17 of the Bihar Service Code, 1952 (hereinafter to be referred to as the Code). Therefore, according to them, they are entitled to the scale as fixed by respondent No. 3 from 1st January, 1971. Vidya Nand Sinha, petitioner No. 1, was appointed by respondent No. 3 as a temporary overseer on 18th January, 1962 and was confirmed as a permanent overseer with effect from 1st August, 1967. He was deputed by respondent No. 3 to work in the department of respondent No. 1 from 23rd July, 1966; whereas Thakur Chittaranjan Prasad Singh, petitioner No. 2, was appointed as a temporary overseer by respondent No. 3 on 19th January, 1962 and was confirmed by respondent No. 3 with effect from 1st August, 1967. He was deputed by respondent No. 3 to work in the department of respondent No. 1 on 18th January, 1968. Ramashray Prasad Singh, petitioner no. 3 was also appointed as a temporary overseer by respondent no. 3 on 2nd March, 1964 and he was deputed in the department of respondent No. 1 on 21st August, 1967, where he is still holding a temporary post. Lastly Kamla Prasad Sinha, petitioner no. 4, was appointed on 9th May, 1964 by respondent No. 3 as a temporary overseer and he was sent on deputation to the department of respondent No. 1 with effect from 21st August, 1967, where he is also, like petitioner No. 3, holding still a temporary post.

4. Learned counsel for the petitioners submitted that in deputation, the petitioners had no option. In this connection, he drew our attention to the proviso to Rule 267(a) of the Code which reads as:

“267 (a) - No Government servant may be transferred to foreign service without his consent.

Provided that this sub-rule shall not apply to the transfer of a Government servant to the service of a body incorporated or not which is wholly or substantively owned or controlled by the State Government, or by the Central Government, when the body operates, or would operate in Bihar even though its head-quarters may be outside.”

5. Serial No. 4 of the Resolution dated 12th December, 1963, contained under Annexure 8 to the supplementary affidavit filed by the petitioners reads as follows:—

“In continuation of Board's Standing Order No. A/A1-1004/58-EB-2 of 1958–59 the Bihar State Electricity Board has decided (in its Resolution No. 239 of 1960–61) that the Bihar Service Code, the Bihar T.A Rules, the Bihar Government Servants, Discipline and Appeal Rules and the Bihar Government Servant's Medical Attendants Rules, shall apply mutatis mutandis to all categories of officers and staff of the Board, other than those whose cases are governed by the Industrial Laws and the Standing Orders framed thereunder.

These aforesaid rules shall be deemed to be the regulations framed under Section 79(c) of the Electricity (Supply) Act, 1948.”

6. On the basis of the said resolution, learned counsel for the petitioners rightly asserted that the provisions contained under the Code would apply in their cases as well.

7. Learned counsel for the petitioners drew our attention to the statement made in paragraph 12 of the writ petition wherein it is stated that overseers actually working under respondent No. 3, some of whom are even juniors to the petitioners, are drawing higher scale of pay from 1st January, 1971, than the petitioners. It is stated by the petitioners in paragraph 11 of the petition that they submitted their representation to respondent No. 1 making grievance regarding the lower scale of pay which the petitioners were getting from respondent No. 1 and they also sent copy of the representation to respondent No. 3. As a sample of their representations, the petitioners have annexed a copy of the representation dated 14th July, 1973, submitted by petitioner No. 2 to respondent No. 1 and a copy to respondent No. 3. The same is marked as Annexure 5 to their writ application. On 19-10-1973, petitioner No. 2 sent another representation to respondent No. 2 and a copy thereof was submitted to respondent Nos. 1 and 3 - Vide Annexure 6 to the writ petition. Learned counsel also pointed out that respondent No. 3 was a statutory body created on 1st April, 1958, under Section 3 of the Electricity (Supply) Act, 1948 (hereinafter to be referred to as the Act). Therefore, all the petitioners were discharging public duties and they have acquired fundamental right to get their salary according to the scale fixed by respondent No. 3 and the Bihar Service Code as pointed out earlier.

8. Notices having been served on the respondents of the application of the petitioners, they showed cause on behalf of respondents 1 and 2 in one counter-affidavit, whereas on behalf of respondent 3 and 4 in another, Mr. K.P Verma, learned Government Advocate, has appeared on behalf of respondents 1 and 2. He has raised some preliminary points regarding the maintainability of the application of the petitioners. He submitted that the petitioners had an alternative remedy. The relief which the petitioners have sought in the writ application, amounts to seeking a declaratory decree and a money claim for the enhanced scale of salary from 1st January, 1971. According to him, they ought to have filed a suit in the court below. In order to find support to his contention, he relied on the case of State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006. In our opinion, there is no bar for entertaining an application under Articles 226 and 227 of the Constitution of India, when there is an alternative remedy. In that case on which reliance has been placed by the learned Government Advocate, their Lordships have clearly said that the High Court has power to order, but it has discretionary power and their Lordships have enumerated some of the circumstances under which discretion should not be exercised in entertaining the application. Their Lordships were considering in that case, refund of money paid by the assessee, as sale tax, by mistake. The assessee had filed an application under Article 226 of the Constitution. In that background, their Lordships were making the observations. Their Lordships observed that the power to give relief under Article 226 was a discretionary power. That was specially true in the case of power to issue writs in the nature of mandamus. Among the several matters, which the High Court rightly took into consideration in the exercise of that discretion, were the delay made by the aggrieved party in seeking that special remedy and what excuse there was for it. Another was the nature of controversy of facts and law that might have to be decided as regards the availability of consequential relief. Thus, where a person came to the Court for relief under Article 226 on the allegation that he had been assessed to tax under a void legislation, and having paid it under a mistake, was entitled to get it back, the Court, if it found that the assessment was void, being made under a void provision of law, and the payment was made by mistake, was still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion would depend in each case on its own facts and circumstances. It was not easy nor was it desirable to lay down any rule of universal application. The latter part of the observations of their Lordships makes it abundantly clear that their Lordships were not laying a general proposition of law, but it would depend on the facts and circumstances of each case. In the instant case, in our opinion, considering the various rules of the Code, which we will presently refer, (they) go to show that the petitioners have acquired fundamental right to get their salary at the enhanced scale fixed by respondent No. 3.

9. Reference may also be made to another judgment of the Supreme Court in the case of Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now Zila Parishad, Muzaffarpur, AIR 1969 SC 556 where it was held that existence of alternative remedy was no bar to the writ petition. Besides, in the instant case, respondents were heard at the time of the admission of the case. In the case of I. Hirday Narain v. Income Tax Officer, Bareilly† , Bareilly, ((1970) 2 SCC 355 : AIR 1971 SC 33) their Lordships observed that if a writ petition was entertained and at the time of admission, the rule was issued against the respondents after hearing the respondents, the respondents could not be heard again on that point at the time of hearing and therefore on that score the application of the petitioners could not be rejected, even if they had alternative remedy. The learned Government Advocate then submitted that it was purely an administrative matter and this Court should not interfere. In our opinion, this submission also made by the learned Government Advocate is not tenable. Reference may be made to the case of Union of India v. K.P Joseph, (1973) 1 SCC 194 : AIR 1973 SC 303 where it was observed that an administrative order could never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties.

10. The learned Government Advocate further emphasised that in the instant case, writ would not lie also because the relief which the petitioners have sought amounts to seeking a declaratory relief and in order to substantiate this point he has relied on a judgment of the Allahabad High Court in the case of Dalel Singh v. Honorary Secretary, Co-operative Union Ltd., U.P, Lucknow, AIR 1956 All 43 where Bhargava, J., observed that the writ proceedings were not meant for declaratory decrees or for giving money decrees. In case a person was entitled to any subsistence allowance from his employer he could file a separate suit. No doubt, we find that the above observation of the Allahabad High Court has also been reiterated in a recent judgment in the case of Sudarshan Kumar Kalra v. Union of India, AIR 1974 Delhi 119 at p. 128, para. 28 where Shanker, J., who delivered the judgment for the Court, observed that in the context of the facts stated in the preceding paragraph of the said judgement, the relief prayed for in the writ if granted would be nothing more than mere declarations to be availed of by the petitioners in the civil suit Therefore, it was observed that the writ jurisdiction under Article 226 was not meant to serve those ends. His Lordship has also relied on the case of General Manager, Eastern Railway v. Kshirode Chandra Khansmobis, AIR 1966 Cal 601. On the facts and in the circumstances of the instant case, the observations made by their Lordships in the two cases referred to above are not applicable. On reading the application in its entirety along with the supplementary application, which the petitioners have filed, it appears that the petitioners have made out their cases that they have acquired fundamental right relying on the resolutions passed by respondent No. 3 contained under Annexures 1 and 2 of the application and on the provisions contained under various rules of the Code, to get their salary, at the higher scale fixed by respondent No. 3 from 1st January, 1971 and, therefore, they have prayed for a direction to be issued on the respondents to follow the resolutions passed by respondent No. 3. which entitled the petitioners to get their salary at the higher scale. Therefore, in our opinion their prayer cannot be said to be a mere declaration.

11. The learned Government Advocate as also Mr. Parmeshwar Prasad Sinha appearing on behalf of respondents Nos. 3 and 4 drew our attention to paragraph 7 of the resolution contained under Annxure 1 which reads as:

“The revised scales of pay shall apply to all Board's servants including those of the Electricity Department, Government of Bihar working in the Board.”

12. Learned counsel for the two sets of respondents emphasised that the aforesaid paragraph made it abundantly clear that the revised scale applied only to the employees of the Board, who were actually working with the Board (respondent No. 3). The admitted case of the petitioners was that they were working with respondent No. 1. Therefore, according to them, paragraph 7 of the resolution does not entitled them to get their salary at the enhanced scale. In our opinion, this submission of the learned Government Advocate and Mr. Sinha cannot be accepted in view of the language used in paragraph 7 referred to above. It has been clearly stated therein that the revised scale of pay shall apply to all the Board's servants. Hence, we have to determine as to whether the petitioners ceased to be the Board's servants on their deputation. If they did not cease to be the Boards servants (then certainly the petitioners are entitled to get their salary at the enhanced scale.

13. Learned counsel for the petitioners, as pointed out earlier submitted that petitioner No. 2 was confirmed on 1-8-1967 as a permanent employee by respondent No. 3 before he was deputed to the department of respondent No. 1 on 18-1-68 whereas petitioner No. 1 was confirmed as a permanent employee with effect from 1-8-1967 and was deputed in the department of respondent No. 1 on 23-7-1966 by the order of respondent No. 3 dated 29-9-1973-vide Annexure 3/3. It seems that both petitioners Nos. 1 and 2 were made permanent retrospectively from 1-8-1967. Therefore, learned counsel for the petitioners submitted that petitioners Nos. 1 and 2 acquired lien on the posts in the department of respondent No. 3. Lien has been defined under Rule 28 of the Code which reads thus:—

“Lien means the title of a Government servant to hold substantively either immediately or on the termination of a period or periods of absence a permanent post, including a tenure post to which he has been appointed substantively.” According to the above rule, an officer has the right to return to his post, whether substantive or tenure. He may have a lien on appointment without having actually joined it. A lien can, therefore, be granted against a post substantive or tenure. Reliance was also placed on Rule 169(b) of the Code which reads as:—

“Unless his lien is suspended under Rule 70, or transferred under Rule 72, a Government servant holding substantively a permanent post retains a lien on that post—

(a) …… …… ……

(b) while on foreign service, or holding a temporary post or officiating in another post.”

14. Admittedly petitioners 3 and 4 are still holding temporary posts. In order to fortify their cases, learned counsel relied on Note 2 to Rule 268 of the Code. The said Note 2 reads thus:—

“Note 2. Under this rule, the transfer of a temporary Government servant to foreign service is permissible.”

15. Therefore the transfer of a temporary Government servant to foreign service is permissible. This rule has to be read along with sub-rule (1) of Rule 270 of the Code which provides:—

“270(1) A Government servant transferred to foreign service shall remain in the cadre or cadres in which he was included in a substantive or officiating capacity immediately before his transfer, and may be given such substantive or officiating promotion in those cadres as the authority competent to order promotion may decide.”

16. Therefore, according to learned counsel for the petitioners, the same principle applies even in the case of petitioners Nos. 3 and 4, as sub-rule (1) to Rule 270 of the Code does not make any distinction between temporary and permanent posts. In our opinion, in the light of the discussions and the reference made above, the contention of learned counsel for the petitioners is well founded. All the four petitioners did not cease to be the servants of respondent No. 3 on their deputation. In that view of the matter, paragraph 7 of the Resolution referred to above, entitles them to get their salary at the enhanced scale fixed by respondent No. 3.

17. Mr. Sinha appearing on behalf of respondents Nos. 3 and 4 has further contended that the rules contained under the Code are not applicable in the case of the servants employed by respondent No. 3. In our opinion, this submission of learned counsel is not tenable in view of serial No. 4 contained under Annexure 8 which we have quoted earlier. We hold that the rules contained under the Code are applicable to the cases of the petitioners and it also governs the servants employed by respondent No. 3.

18. In our opinion, there are some further reasons to hold why petitioners Nos. 3 and 4 should also get their salary at the higher scale. The statement made by the petitioners in paragraph 12 of the writ petition indicates that even (those) who are juniors to the petitioners Nos. 3 and 4 are getting their salary at the enhanced rate in the department of respondent No. 3. Persons who are junior to petitioners Nos. 3 and 4 have got to be assumed that they are also holding temporary posts. That fact has not been controverted in the two counter-affidavits filed by the two sets of respondents. Therefore, if petitioners Nos. 3 and 4 did not ceased to be the servants of respondent No. 3, it would be a discrimination and violative of Articles 14 and 16 of the Constitution of India, if petitioners Nos. 3 and 4 are not allowed to draw their salary at the enhanced rate which the persons junior to petitioners Nos. 3 and 4 in the department of respondent No. 3 are drawing.

19. The learned Government Advocate, however, contended that the other employees of the department of respondent No. 1 holding the similar posts, would grumble and it would be discrimination against them, if those servants of the department of respondent No. 1 are not being allowed to draw at the scale of salary what the petitioners would be allowed to draw. In our opinion, this submission of the learned Government Advocate is not tenable. By reference to the various provisions of the rules of the Code, it is clear that the persons holding foreign service get higher emolument than the other persons in the department concerned-Vide clauses (c) and (e) to Rule 283 of the Code. Besides, the petitioners being in foreign service, working as overseers in the department of respondent No. 1, remain in the cadre prescribed in the department of respondent No. 3 as it appears from sub-rule (1) to Rule 270 of the Code already quoted in paragraph 11 of this judgment. Therefore, it is open to respondent No. 1 to revert the petitioners back to the department of respondent No. 3. This view also finds support from the provision contained under Rule 275 of the Code which provides as follows:—

“A Government servant reverts from foreign service to Government service on the date on which he takes charge of his post in Government service provided that, if he takes leave on the conclusion of foreign service before rejoining his post, his reversion shall take effect from such date as the State Government may decide.”

20. Learned Government Advocate then drew our attention to paragraph 3 of the counter-affidavit filed by respondents Nos. 1 and 2 wherein it is stated that the Bihar State Electricity Board revised the pay-scale of their staff including the overseers, without consulting the Government, and brought it into effect from 1st January, 1971. Therefore, according to him, the resolution passed under Annexures 1 and 2 by respondent No. 3 are not valid and they are not in accordance with law. In this connection, he referred to the provisions under Section 78-A of the Act which is to this effect:

“Directions by the State Government-- (1) in discharge of its functions, the Board shall be guided by such directions on questions of policy as may be given to it by the State Government.

(2) If any dispute arises between the Board and the State Government as to whether a question is or is not a question of policy, it shall be referred to the Authority whose decision thereon shall be final.”

21. In our opinion this contention of the learned Government Advocate is also not acceptable in view of the provision of clause (c) and proviso to Section 79 of the Act. It would be useful to quote the section in extenso:—

“Power to make regulations.--The Board may make regulations not inconsistent with this act and the rules made thereunder to provide for all or any of the following matters, namely,

(a) the administration of the funds and other property of the Board, and the maintenance of its accounts;

(b) summoning and holding of meetings of the Board, the times and places at which such meetings shall be held, the conduct of business thereat and the number of members necessary to constitute a quorum;

(c) the duties of officers and servants of the Board, and their salaries, allowances and other conditions of service;

(d) all matters necessary or expedient for regulating the operations of the Board under Section 20;

(e) the making of advances to licensees by the Board under Section 23 and the manner of repayment of such advances;

(f) the making of contributions by the Board under Section 24;

(g) the procedure to be followed by the Board in inviting, considering and accepting tenders;

(h) principles governing the fixing of Grid Tariffs;

(i) principles governing the making of arrangements with licensees under Section 47;

(j) principles governing the supply of electricity by the Board to persons other than licensees under Section 49;

(k) any other matter arising out of the Board's functions under this Act for which it is necessary or expedient to make regulations:

Provided that regulations under Clauses (a) and (d) shall be made only with the previous approval of the State Government and regulations under clauses (h) and (i) shall be made with the concurrence of the Authority.”

22. The above proviso makes it abundantly clear that regulations under clauses (a) and (d) only would be made witch the previous approval of the State Government. In the instant case, the resolutions contained under Annexures 1 and 2 have been passed by respondent No. 3 obviously under clause (c) of Section 79 of the Act. Therefore even on that score the resolutions contained under Annexures 1 and 2 of the petition cannot be challenged.

23. The learned Government Advocate also contended that respondents 1 and 2 are not liable for paying the petitioners at the enhanced scale. If such a payment is ordered to be made by this Court, respondents Nos. 3 and 4 should be directed to pay at higher scale. On the other hand, Mr. Sinha appearing on behalf of respondents Nos. 3 and 4 contended that the enhanced rate has to be paid, if at all, by respondents Nos. 1 and 2. In our opinion also, the enhanced scale of salary to all the petitioners has to be paid by respondents Nos. 1 and 2 in view of the provisions contained under Rule 282 read with Rule 284 of the Code. First of all, we shall refer to Rule 282 of the Code which reads as:

“282. A Government servant transferred to foreign service shall draw pay from the foreign employer from the date on which he relinquishes charge of his post in Government service. Subject to the provisions of Rule 283 and to any restrictions which the State Government may by general order impose the amount of his pay, the amount of joining time admissible to him, and his pay during such joining time shall be fixed by the authority sanctioning the transfer in consultation with the foreign employer.”

24. Whereas Rule 284 of the Code provides:

“284. When a Government servant reverts from foreign service to Government service his pay shall cease to be paid by the foreign employer and his contribution shall be discontinued, with effect from the date of reversion as determined by Rule 275.”

25. Keeping in mind the above two rules, it is clear that so long as the petitioners are in the service of respondents Nos. 1 and 2, the petitioners are entitled to get their pay at the higher scale as fixed under Annexure 2 from 1st January, 1971 from respondents Nos. 1 and 2 till they are reverted to the department of respondent No. 3 as contemplated under Rule 284 of the Code.

26. In the result, therefore, after full deliberation and consideration, we allow the application of the petitioners and direct respondents Nos. 1 and 2 to pay salary to the petitioners at the enhanced scale as shown in the resolution contained under Annexure 2 to the petition as we have already held that the petitioners have acquired right to receive their salary at the enhanced rate.

27. In the circumstance, however, there will be no order as to costs.

28. Application allowed.