Supreme Court of India: While deciding the instant petition wherein the division bench of L. Nageshwar Rao and B.R. Gavai, JJ., had to consider that whether the prescribed educational qualifications in Regulation 6 and 7 of Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 can be deviated from by an order of the State Government. The Court observed that such a power is traceable to Regulation 116 of the Safety Regulations which enables the Central Government or the State Government to allow deviations in respect of matters referred to in the Safety Regulations, including the ones in Regulations 6 and 7.
Facts and Legal Trajectory of the Case
As per the powers conferred under S. 131 (1),(2),(5),(6) and (7) of the Electricity Act, the State of Kerala notified the Kerala Electricity First Transfer Scheme, 2008 dated 31.10.2013. The Scheme revested all the functions, properties, interests, rights, obligations and liabilities in Kerala State Electricity Board Limited (company incorporated under the Companies Act, 1956 and fully owned by the Government of Kerala). Clause (6) of the scheme provides for transfer of personnel by the State Government and that the transfer shall be governed by the conditions enumerated in Schedule- ‘B’ of the scheme and clause (8).
Later a Tripartite Agreement was entered into between the State of Kerala, KSEBL, and the Unions and Associations representing workmen and officers of the erstwhile Kerala State Electricity Board on 01.08.2014. The State Government and KSEBL assured the existing employees that the terms and conditions of service such as promotions, transfers, wages, compensations, leave, allowances, etc. upon transfer to KSEBL shall continue to be regulated by existing regulations/ service rules in vogue.
By an order dated 13.02.2019, Government of Kerala ordered deviation from the implementation of qualifications prescribed under Regulation 6 and 7 of the Safety
Regulations for the existing employees of KSEBL, in exercise of the power conferred on the State Government under Regulation 116 of the Safety Regulations. The deviation was applicable to employees working with the KSEBL on the date of the order dated 13.02.2019 and for all future appointments and promotions, the qualifications prescribed in the 2010 Regulations were to be strictly followed.
The dispute came before the Kerala HC. The single judge bench of the HC declared the State Govt. Order Dt. 13.02.2019 as unsustainable and the KSEBL was directed to make promotions strictly in accordance with the provisions contained in Regulations 6 and 7 of the Safety Regulations. The Division Bench of the HC however partially set aside the 2019 G.O. to the extent that it granted exemption to the employees/officers who entered service after 31.10.2013.
Whether the prescribed educational qualifications in Regulation 6 and7 of Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 can be deviated from by an order of the State Government
The next issue was regarding the exercise of powers by the Government of Kerala in issuing order dated 13.02.2019.
The appellants argued that that they possess the necessary qualifications required under Regulation 6 and 7 of the 2010 Regulations and the decision of the Government to deviate from the requirements of Regulation 6 and 7 would make ineligible employees fit for promotion to the higher posts which would be detrimental to the interests of the Appellants.
They further contended that the deviation permitted by the order dated 13.02.2019 would amount to compromising the safety norms prescribed by the Central Electricity Authority which would adversely affect larger public interest.
The wholesale exemption granted to the officers and employees from possessing the requisite educational qualifications as prescribed in Regulation 6 and 7 is impermissible in exercise of the power under Regulation 116 of the Safety Regulations. The appellants based their argument on the language of Regulation 116 which permits the concerned Government only to ‘deviate’ from the regulations which, according to the Appellants, cannot be read as ‘exempt’.
The Provisions in Question
Electricity Act, 2003 was enacted to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition. The Act has provisions related to safety and electricity supply (S.53); constitution of Central Electricity Authority (S. 70) and other related provisions (Ss. 73, 177). The Court also considered the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 and its Regulations 6& 7 which safety measures for operation and maintenance of electric plants and transmission, distribution systems respectively; and, Regulation 116 which empowers the Central or the State Governments to allow deviations in respect of matters referred to in the regulations by an order in writing.
Part XIII of the Electricity Act deals with reorganization of KSEB and The Statement of Objects and Reasons of Electricity Act, wherein one of the features of the Electricity Bill, relates to the incorporation of a transfer scheme by which company/companies can be created by the State Government. Furthermore S. 131 of the Electricity Act provides for vesting and revesting of property of the KSEBL in the State Government. S. 133 of the Electricity Act deals with provisions related to officers and employees.
Observations of the Court
While determining the dispute, the Court examined the aforementioned provisions of the Electricity Act, 2003 to get a clear picture of the matter at hand. Upon perusal of the facts and legal trajectory and the provisions in question, the Bench agreed with the observations made by the Division Bench of the Kerala HC in the matter. The Court observed that “Prior to the 2010 Regulations, the Indian Electricity Rules, 1956 framed under Section 37 of the Indian Electricity Act, 1960 were in force. Rule 133 of the said Rules would show that State Governments/Central Government was empowered to grant exemption from the safety provisions contained therein. The power of exemption has been in existence even prior to Electricity Act”. On scrutinizing the G.O dt. 13.02.2019, the Court noted that State Government directed deviation from the implementation of qualifications prescribed under Regulations 6 and 7 of the Safety Regulations- “Though the word exemption was not employed in the order dated 13.02.2019, the effect of the direction issued by the Government was to exempt the employees from the prescribed qualifications. Thus, Regulations 6 and 7 were relaxed in favour of the erstwhile employees. The width and amplitude of Regulation 116 cannot be restricted by interpreting the word ‘deviation’ as having lesser scope than exemption. ‘Deviation’ from the Regulations would amount to either exemption or relaxation”.
Regarding the question of exercise of powers by the Government of Kerala in issuing order dated 13.02.2019, the Bench pointed out that promotion and other service conditions of the officers and employees transferred to KSEBL under the transfer scheme are protected under Ss. 131 and 133(2) of the Electricity Act in juxtaposition with the transfer scheme and the tripartite agreement. The explanation attached to S. 133 makes it clear that “officers and employees” referred to in the section are only those officers and employees of the Board on the date of transfer scheme, i.e. on 31.10.2013.
With the aforestated observations, the Court upheld the decision of the Division Bench of Kerala HC via which the High Court restricted the applicability of the order dated 13.02.2019 to such of those employees transferred from KSEB prior to 31.10.2013. The exercise of power by the Kerala Government in issuance of the order dated 13.02.2019 is well within its jurisdiction, grant of exemption in favour of erstwhile employees cannot be termed as arbitrary. However, the extension of the continuity to employees appointed after 31.10.2013 is not reasonable and only the transferred employees are entitled for protection of their service conditions.
Since the counsel for the appellants did not make any submissions regarding the vires of Reg. 116, the Court did not find it necessary to adjudicate the validity of the provision
[Muhammed AA. v. State of Kerala, 2022 SCC OnLine SC 198, decided on 18.2.2022]
*Judgment by: Justice L. Nageshwara Rao
Sucheta Sarkar, Editorial Assistant has put this report together