RAJBALLABH SINGH Vs. STATE ELECTRICITY BOARD

JUDGEMENT

(1.) THE writ petitioner joined the service of the Board on 13th December, 1968. Upon attaining the age of superannuation, the petitioner retired on 31st January, 2004. At that time, when the petitioner retired, he was a Meter Reader. After his retirement, he was paid 90% of his pension, but he was not paid his gratuity, leave encashment, credit balance his G.P.F. account with statutory interest and the sum due on account of G.S.S. In such view of the matter, the petitioner tiled the present writ petition seeking a direction upon the Board to release the aforementioned lawful dues for the petitioner. During the pendency of the writ petition, the petitioner was paid 90% of his Gratuity, but the remaining 10% of the Gratuity was not paid. In such view of the matter, on 1st March, 2005 I directed production of a cheque in relation to the remaining 10% of the gratuity amount on 9th March, 2005 and also called upon the Board to file a further supplementary affidavit to state, unless final pension payable to the petitioner has been sanctioned in the meantime, why such pension has not yet been sanctioned and paid to the petitioner.

(2.) THE Board did not produce the cheque, nor did it file a further supplementary affidavit. On the contrary the Board filed an application for re -calling of the order dated 1st March, 2005. In that application it is the case of the Board that on 16th July, 1979 the Board in exercise of its powers under Section 79(c) of the Electricity Supply Act, 1948 adopted the Bihar Government Servant (Hindi Examination) Rules, 1968, which were framed by the State Government in exercise of its powers under Article 309 of the Constitution of India, for its employees and officers, Rule 2 of the said rules laid down that it is essential for every Government servant, apart from class -4 employees, who are required to read and write in discharge of their duties, to pass the Hindi Reading and Writing Examination, in Devnagri Script within a year of their appointment, if such Government servant had not passed matriculation examination with Hindi or any examination of Hindi which was recognised by the State Government from time to time to be equivalent to matriculation examination. Rule -3 thereof laid down that it is essential for a Government servant, who has been appointed in such a post, where in discharge of his duties he is required to put up notes and drafts, to pass Hindi Noting and Drafting Examination in Devnagari Script within one year of his appointment. Ruie -7 of the said rules laid down that such employee who has not passed such examination will not be given any promotion or increment, nor be allowed to cross the efficiency bar till such time he has passed the required Hindi examination and Rule -8 thereof laid down that stoppage of increment shall have no cumulative effect. It is the case of the Board in the said application that the petitioner, having not passed such examination, was not entitled to increments, but the same were given to the petitioner by mistake and accordingly payments made in relation thereto are recoverable. In addition to that, it has been stated that in view of some mistake committed sometimes in 1971 followed by the some more mistakes committed from 1974 until 2003, the petitioner had been paid more than what he was entitled to and accordingly certain amount is also recoverable from the petitioner and those have to be recovered from the balance dues of the petitioner. That appears to be the reason for not releasing the balance dues of the petitioner. In paragraph -4 of the said application it has been specifically stated that the decision to adopt the said rules by the Board was made applicable from the date of issuance of the resolution dated 16th July, 1979. In Paragraph -11 of the said application it has been stated that the petitioner was required to pass matriculation examination with Hindi or the Hindi Reading and Writing Examination, but no information was available in that regard in his Service Book and despite letters having been written on 20th September, 2004 and 8th January, 2005, the petitioner did not convey to the Board that the petitioner has passed either the matriculation examination with Hindi or the Hindi Reading and Writing Examination.

(3.) BE that as it may, Rules 7 and 8 of the said rules have been considered by the Supreme Court in the case of Bihar State Electricity Board and Another vs. Bijay Bhadur and Another, reported in (2000)10 S.C.C. 1999. In that case, it was the contention of the Board that the said rules became part of the service conditions of the employees of the Board and accordingly question of there being any entitlement de hors the same does not and cannot arise. This contention was rejected by the Supreme Court as it appears from paragraphs -7 and 8 of the report on two principles. Firstly, the Rule -7 provided that there shall be no increment, nor any promotion, but in that case, the board wanted to withdraw only the increments, but not the promotions. The Supreme Court held that was impermissible since dual standards are not only non -acceptable but ought to be avoided more so by reason of the factum of the Board being an authority within the meaning of Article -12 of the Constitution. The second reason was that the deemed incorporation in the terms and conditions of service of the said rules is also not acceptable for unilateral change of terms cannot he had. The Supreme Court observed that there is no documentary evidence available on record that an intimation to the staff had been given before incorporation of those rules in the service conditions and in the absence thereof, affording any credence to the submission on this score does not arise. At the same time in paragraph -10 of the report, the Supreme Court held that the said order is restricted to the facts of that case with a clarification that Rule -8 will operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except however in the case or cases which has/have attained finality. In other words, the Supreme Court held that the said Rules will apply in case of those employees who joined the services of the Board subsequent to the adoption of the said Rules i.e. 16th July, 1979; and as aforesaid in the said application it is the specific contention of the Board that the said resolution was made effective from the date thereof and as such whoever has joined after, to his service conditions the said Rules stand attached, but not to those who had joined prior to adoption of the said rules, unless they have been told to that effect. There is no evidence that the petitioner was told to that effect while he was in service.