Gauhati High Court
Meghalaya State Electricity Board vs Sita Ram Singh on 15 May, 2002
Equivalent citations: (2003)1GLR25
Author: N.S. Singh
Bench: N.S. Singh
JUDGMENT
1. Heard Mr. S.R. Sen, learned counsel appearing for the appellant, assisted by Ms. P.D. Buzarbarua, and Ms. A. Paul, learned counsel appearing for the respondent.
2. Brief facts giving rise to the present appeal at the behest of the Meghalaya State Electricity Board (for short "the MSEB"), may be noticed.
3. Under Section 79 of the Electricity (Supply) Act, 1948, the MSEB had framed Regulations known as the Meghalaya State Electricity Board Service Regulations, 1996. The opening part of Section 79 of the Act, 1948 reads as under :-
"79. Power to make regulations. -The Board may, by notification in the Official Gazette, make regulations not inconsistent with this Act and the rules made thereunder to provide for all or any of the following matters, namely -
*** *** *** It will be apparent from the reading of the aforesaid section that regulations would become enforceable when they are notified in the official gazette. We are not much concerned here with Section 79A of the Act, 1948, which provides that every rule made by Section 78 and every regulation made by the Board under Section 79 shall be laid, as soon as may be, before the State Legislature.
4. Regulation 37(3) of the 1996 Regulations, reads as under :
"37. Eligibility for promotion :
(3) All qualified and eligible employees equal to the number of vacancies existing and estimated to arise upto 31st December every year if the amendments were not taken into consideration then only as many candidates as the number of vacancies upto 31st December of the year would have been considered, This promotion was challenged on the ground that the amended regulations could not be taken into consideration and persons beyond the zone of consideration, i.e., beyond the number of vacancies could not have been taken into consideration. The argument was that these amended regulations were not published in the official gazette and therefore could not have come into effect. As a matter of fact it is not denied and rather admitted in writing in the grounds of appeal that promotions took place on 22.8.2000. The Judgment of the learned Single Judge was delivered on 25.1.2002 whereas the aforesaid amendments were notified in the official gazette on 28.3.2002. The learned Single Judge allowed the writ petition and set aside the promotions on the ground that the amended regulations could not have been taken into consideration prior to their publication in the official gazette.
It is now well settled that a rule, statute, regulations, etc., would only come into force when they are published in the official gazette. Supposing these regulations, as in the present case, were to be kept just in the Me and were never to be published, could they be enforced ? The answer is not. This precise view has also been taken by the learned Single Judge in the case of Padma Dhar Deka v. Assam State Electricity Board, reported in (2000) 2 GLR 247, which was upheld by a Division Bench of this court in Writ Appeal No. 149/2000 shall be prepared during the period from September to December every year."
5. It will be seen from above that candidates to be considered for promotion were to be equal to the number of vacancies existing and estimated to arise upto 31st December each year. This regulation was sought to be amended by amendments dated 17.10.1997, 20.11.1998 and 12.11.1998. The amendment dated 17.10.1997 was to amend regulation 37(3) by substituting the same as follows :
"A list of qualified and eligible employees equal to three times the number of vacancies plus one, of both existing vacancies and those estimated to arise upto 31st December every year, shall be prepared during the period from September to December every year."
The existing provision of Regulation 37(3) stands amended as stated above, with immediate effect."
6. The aforesaid amendment was further sought to be amended on 20.11.1998 by adding as follows :
"The cut-off date for determining the eligibility criteria for promotion to various grades/cadres will be the 1st April of the current year."
7. By amendment dated 12.11.1999, regulation 40(2) of the 1996 Regulations for category to which promotion was to be on the basis of merit-cum-seniority was also sought to be amended, which need not be culled out here. On the basis of the aforesaid amendments, promotions were made on 22.8.2000 by taking into consideration the aforesaid amendments ; meaning thereby that for the vacancies as existing on 1st April of the year three times plus one candidates were considered. In other words, decided on 9.1.2001. The learned Single Judge consequently allowed the writ petition and set aside the promotion made on 22.8.2000 on the ground that the persons who had been considered were beyond the zone of consideration as per unamended regulation 37(3). We find no infirmity in the judgment of there learned Single Judge. We concur with the view adopted by the learned single Judge and dismiss this appeal.