Bihar Electricity Board Autonomous Undertaking, State Notification Not Applicable On Former When Expressly Excluded – SC
The Supreme Court while adjudicating upon the issue of applicability of the Assured Career Progression Scheme to the employees of the Bihar Electricity board has observed that the Board is an autonomous undertaking, hence the notification of the State of Bihar relating to the ACP scheme will not apply to it.
The Bench of Justice DY Chandrachud and Justice AS Bopanna also held that the notification of the State has especially excluded autonomous institutions from its ambit, hence it will not create any right in favour of employees of the Board.
The Court while referring to the notification of the State, observed –
"A perusal of the same would indicate that, apart from the legal position relating to the applicability of its own service conditions to the 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 create any right in favour of the employees of the respondent no.1-Electricity Board for the benefits provided under such notification."
Counsel Amit Pawan appeared for the Appellants before the Apex Court.
In this case, Appellant No. 1 was an employee who retired from the service of Respondent No. 1 – the Bihar State Electricity Board on July 31, 2008. Appellant Nos. 10 & 11 were the spouse of the deceased employee. The spouse of Appellant Nos. 10 & 11 and other Appellants retired on January 31, 2005.
The Appellants through their Writ Petitions filed in the year 2011 had sought for issuance of directions to Respondent No. 1 – Board to introduce the benefit of ACP Scheme with effect from August 9, 1999 and to pay all monetary benefits.
The relief was prayed to be granted by quashing the Resolution No. 8165 dated September 22nd 2005 and the notification dated October 7, 2005 issued by the Respondent No. 1 – Board.
The Government of Bihar on June 25, 2003 notified the introduction of the ACP Scheme. The same was introduced by the State of Bihar for its employees on June 25th 2003 but the scheme provided that it shall come into force w.e.f. August 9th, 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 to the respondent No.1 - Electricity Board until they chose to adapt the same.
The Board chose to adapt the Scheme and through a notification dated April 4, 2005 adapted the scheme of 2003.
Subsequent thereto, a notification dated October 7th, 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 April 5, 2005. This was with a view to clarify that the scheme though adapted was not w.e.f. August 9th, 1999 as was in the case of Government employees.
The Single Judge had held that the scheme would not be applicable until Respondent No. 1 – Board adapts the same. The view was also upheld by the Division Bench of the High Court.
The Bench while referring to the notification of the State observed that the mere issuance of the notification by the State would not create any right in favour of the employees of the First Respondent for the benefits under such a 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 no claim until it is adapted," the Bench noted.
The Court held that notification of the Board dated October 7th, 2005 indicated 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 April 5th, 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 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 Court held.
Further, the Court also asserted, "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 when the respondent no.1-Electricity Board had the discretion to either adapt or not to adapt the Scheme."
The Court held that grievance put forth by the Appellants or Writ Petitioners before the High Court was rightly not accepted.
Accordingly, the Court dismissed the appeal.
Cause Title - Md. Islam & Ors. & The Bihar State Electricity Board & Ors.