Harinder Singh Sidhu, J.�This order shall dispose of CWP No. 27323 of 2011 filed by Rakesh Kumar Sharma and others, and CWP No. 24074 of 2011 filed by Piara Lal and another. The petitioners have prayed for setting aside the office order dated 16.11.2011 (Annexure P-6) and Circular dated 01.12.2011 (Annexure P-9) issued by Punjab State Power Corporation Ltd. - respondent No. 2 (for short ''PSPCL''), claiming that the same are illegal and arbitrary, inasmuch as the same purport to amend the qualifications for direct recruitment of Assistant Engineer (Electrical) contrary to the qualifications prescribed in the statutory regulations i.e. The Punjab State Electricity Board Service of Engineers (Electrical) Recruitment Regulations 1965 (for short "Regulations 1965"). The petitioners have further prayed for quashing the advertisements dated 11.11.2011 and 16.11.2011 (Annexures P-5 and P-7) to the extent that the same exclude the qualifications held by petitioners i.e. degree course through Distance Education Programme for appointment of Assistant Engineers. The petitioners possess qualifications of B. Tech. (Electrical) acquired through Distance Education imparted by Thapar Institute of Engineering and Technology, Patiala.
2. Initially, the Punjab State Electricity Board constituted under the Electricity (Supply) Act, 1948 (for short the Act, 1948) framed service regulations under Section 79(c) of the Act, 1948, known as Punjab State Electricity Board Service of Engineers (Electrical) Regulation, 1965, which came into force after being duly notified on 01.09.1965. The said Regulations stipulated the conditions of service, appointment and recruitment to various posts including the post of Assistant Engineer. The relevant Regulation is reproduced as under:--
"7: Recruitment to the service shall be made by the Appointing Authority by any of the methods indicated below as may be determined in each case:--
(a) In case of posts of Asstt. Engineers:--
(i) By direct appointment as provided in Regulation 9.
(ii) By promotion as provided in Regulation 10.
(iii) By transfer of an officer already in the service of a Government or any other State Electricity Board or an Undertaking of government.
xxxx
No person shall be appointed as Assistant Engineer/Elect (on training) in the disciplines of Mechanical, Electrical, Electronics and Communication, Instrumentation and Control and Computer Sciences, unless he has passed BE in respective discipline from recognized Institution/Univ. (Equivalency as notified by the Institution of Engineers/Association of Indian Universities/Punjab University/Punjab University Calendar)"
3. As per this Regulation for appointment as Assistant Engineer Elect (on training), the qualification prescribed was BE in respective discipline from recognized institution/University.
4. The qualifications were amended in 2008 through a notification dated 11.08.2008. The amended Regulations notified through Circular No. 8/2008 are as under:--
5. As per the amended regulation, the persons, who have passed BE/B. Tech./B.Sc. Engineering or equivalent degree in respective discipline recognized by AICTE or UGC or DEC or PTU or any other statutory bodies established under the Act of Parliament, were eligible for direct appointment as Assistant Engineer. Thus, persons who had acquired the degree through Distance Education Programme were also made eligible.
6. After the aforesaid amendment, the Punjab State Electricity Board issued an advertisement dated 12.1.2009 inviting applications for filling up the posts of Assistant Engineer (Electrical), wherein, recruitment was to be made on the basis of the amended qualifications i.e. the candidates, who had obtained degree through DEC were also eligible for appointment.
7. In April, 2010, the Punjab State Electricity Board was disbanded and bifurcated into two Corporations i.e. Punjab State Transmission Corporation Ltd., (respondent No. 1) and Punjab State Power Corporation Ltd., (respondent No. 2.)
8. On 11.11.2011 Punjab State Transmission corporation Ltd. - respondent No. 1 (for short ''PSTCL'') issued an advertisement (Annexure P-5) inviting applications for filling up 170 posts of Assistant Engineer (Electrical). The qualification prescribed was of full time regular BE/B. Tech./BSc Engineering in Electrical with a minimum of 60% marks or equivalent degree recognized by AICTE or AMIE in Electrical with 60% marks from institution of Engineers (India) Calcutta. Significantly, the candidates, who had obtained their degree through Distance Education Programme/DEC, were not eligible to apply in terms of this advertisement.
9. Similarly, vide advertisement dated 16.11.2011 (Annexure P-7) respondent No. 2 invited applications to fill up 290 posts of Assistant Engineer (OT)/Electrical again restricting the eligibility only to full time regular degree holders.
10. On 11.11.2011, a meeting of the Board of Directors of PSPCL - respondent No. 2 was convened to amend the qualifications prescribed for the post of Assistant Engineer (Electrical) and the Board approved/amended the qualifications for direct recruitment restricting it only to full time regular B.E/B. Tech./B.Sc. Engineering etc.
11. On 1.12.2011, respondent No. 2 issued office order stating that the qualifications of various posts advertised in PSPCL is amended. As per these amended qualifications, the eligibility for the post of AE/Elect. was full time regular BE/B.Tec./B.Sc.
12. It is stated on behalf of the petitioners that on the bifurcation of the Punjab State Electricity Board into two Corporations i.e., respondents No. 1 and 2, the existing service regulations continue to operate in terms of Section 185 of the Electricity Act, 2003 (in short the Act, 2003). Any amendment to the service regulations can be effected only through a notification as provided in Sections 79 and 79-A of the Act, 1948, which are reproduced 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 there under 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 there at and the number of members necessary to constitute a quorum;
(c) The duties of (officers and other employees) of the Board, and their salaries, allowances and other conditions of service;
(d) All matters necessary or expedient for regulating the operation of the Board under Section 20:
(e) The making of advances of licensees by the Board under Sec. 23 and the manner of repayment of such advances;
(f) The making of contributions by the Board under Sec. 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 Sec. 47;
(j) Principles governing the supply of electricity by the Board to persons other than licensees under Sec. 49;
(jj) Expending sum not included in statement submitted under sub-section (1) or sub-section (5) of Sec. 61, under sub-section (2) of Sec. 62;
(k) Any other matter arising out of the Board''s functions under this Act for which it is necessary or expedient to make regulations:
79-A. LAYING OF NOTIFICATION BEFORE THE STATE LEGISLATURE
Every notification issued under Sec.55 by the State Government, or the State Commission, as the case may be, every rule made by that Government under Sec. 78 and every regulation made by the Board under Sec. 79 shall be laid, as soon as may be, before the State Legislature."
13. It is stated that the advertisements (Annexures P-5 and P-7) have been issued contrary to the existing service regulations inasmuch as the service regulations have not been amended in the manner laid down in Section 79(c) of the Act, 1948. Resolutions with regard to the approval of the amendment by the Board of Directors in its meeting dated 11.11.2011 and the consequent circular dated 01.12.2011 do not have effect of amending the service regulations as no notification has been issued amending the service regulations as required in terms of section 79 of the Act, 1948.
14. Separate replies have been filed on behalf of respondents No. 1 and 2. In the reply filed on behalf of respondent No. 1, it has been stated that the amendment to the service regulations of the Corporation to the effect that persons having degrees from Distance Education Programme should be barred and only regular students be made eligible for recruitment was made because it was felt that those having regular degrees are better candidates than those having degrees through Distance Education Programme. The amendment was felt to be necessary to improve the working of the Corporation. It is further stated that the PSTCL - respondent No. 1 was incorporated on 16.04.2010 and it became operational from the said date pursuant to the Punjab Power Sector Reforms Transfer Scheme, 2010 notified by the Government of Punjab vide notification No. 196 dated 16.04.2010 after the unbundling of Punjab State Electricity Board under the provisions of the Act, 2003. PSTCL is engaged in the business of Transmission of Electricity in State of Punjab and the other Corporation namely PSPCL - respondent No. 2 had also been formed which also became operational with effect from 16.04.2010 and is engaged in the business of generation and distribution of electricity. The PSTCL follows Punjab State Power Corporation Limited and erstwhile PSEB rules and regulations. The Board of Directors of PSPCL in its 15th meeting held on 11.11.2011 at Mohali approved the qualifications of various posts in PSPCL. It is stated that the advertisement has not been issued contrary to the service regulations as the regulations adopted by the Corporation had been duly amended by the Board of Directors'' of PSPCL/PSTCL and issued by PSPCL vide memo dated 16.11.2011 (Annexure P-6). It is further stated that the Board of Directors of PSTCL in its meeting held on 21.12.2011 at Mohali, after detailed deliberations resolved that the decision of Committee taken in its meeting held on 11.11.2011 approving the qualifications/experience to the various posts to be recruited have been ratified. The Chairman-cum-Managing Director was authorized to amend/modify the relevant regulations as adopted by the Corporation to give effect to the qualifications/experience criteria for direct recruitment to the said posts.
15. In the written statement filed on behalf of respondent No. 2, it is stated that after bifurcation of erstwhile Punjab State Electricity Board, the 1965 Regulations were adopted by the Corporation as per the Tripartite Agreement between the Board and the two Corporations. It is stated that PSPCL is an independent Corporation and the service regulations which are made applicable to the employees of the Corporation can be amended by a decision of the Board of Directors of the Corporation and the service regulations are no longer statutory in nature. The Board of Directors in its 15th meeting held on 11.11.2011 at Mohali approved and amended the qualifications for direct recruitment. It is further stated that no notification is required under sections 79 and 79-A of the Act, 1948 after the bifurcation and coming into existence of the respondent Corporation as the amendment was not an amendment to the service Regulations 1965 framed under the Electricity Act, but was merely an amendment of the Service Regulations of the respondent Corporation.
16. It is specifically stated that the regulations as adopted by the respondent-Corporation had been duly amended by the Board of Directors of the Corporation vide memo dated 16.11.2011 (Annexure P-6).Further vide office order No. 997/Reg.321 dated 1.12.2011 (Annexure P-9) the qualifications of various posts advertised in PSPCL were amended.
17. Learned senior counsel for the petitioners has contended that the advertisements dated 11.11.2011 and 16.11.2011 restricting the eligibility for the post of Assistant Engineer (Electrical) to full time regular BE/B.Tec./B.Sc. Engineering and excluding those who had obtained their degrees through Distance Education Programme is illegal being contrary to the existing service regulations as per which candidates who have obtained degrees through Distance Education Programme are also eligible. He has further contended that memo dated 16.11.2011 (Annexure P-6) as also the office order dated 1.12.2011 (Annexure P-9) do not have the effect of amending the service regulations which are statutory and can only be amended by way of a notification in the official gazette in terms of the provisions of Section 79 of the Act, 1948. He has further argued that even on its own terms Annexure P-6 does not purport to amend the service regulations because as per Note No. 3 appended at the end thereof, the Deputy Secretary/Rectt. PSPCL, Patiala has been requested to issue necessary amendments to the relevant Service Regulations immediately. He has further contended that if the circular dated 1.12.2011 is understood to have amended the qualifications, it can only have prospective effect and would not apply to the advertisements issued prior thereto and the same being in violation of the then existing service regulations, are liable to be quashed and the petitioners are liable to be held eligible to compete for the said posts.
18. On the other hand, learned counsel for respondents No. 1 and 2 have contended that after the repeal of the Act, 1948 by the Electricity Act, 2003, the provisions of Section 79 of the Act, 1948 are no longer relevant and the respondents being independent Corporations, the service regulations of the employees can be amended by resolutions of the Board of Directors of the Corporation.
19. have heard learned counsel for the parties and have gone through the records.
20. The qualifications for the post of Asstt. Engineer (Electrical) were initially prescribed through the Punjab State Electricity Board Service of Engineers (Electrical) Recruitment Regulations, 1965 which were notified under Section 79(c) of the Act, 1948. They were subsequently amended in exercise of powers under Section 79(c) of the Act, 1948 through a notification dated 11.08.2008. As per the amended regulations candidates, who have obtained their degrees through Distance Education Programme were also eligible for the post of Asstt. Engineer/Electrical (on training).
21. The Electricity Act, 2003 (except Section 121) was enforced on 10.06.2003. Vide Section 185 of this Act, The Indian Electricity. Act, 1910, the Act of 1948 and the Electricity Regulatory Commissions Act, 1998 were repealed. Provisions for reorganization of the existing State Electricity Boards are contained in Sections 131, 132, 133 and 134 of Electricity Act, 2003.
The relevant sections are reproduced as under:--
"131. Vesting of property of Board in State Government.--(1) With effect from the date on which a transfer scheme, prepared by the State Government to give effect to the objects and purposes of this Act, is published or such further date as may be stipulated by the State Government (hereafter in this Part referred to as the effective date), any property, interest in property, rights and liabilities which immediately before the effective date belonged to the State Electricity Board State Government on such terms as may be agreed between the State Government and the Board.
(2) Any property, interest in property, rights and liabilities vested in the State Government under sub-section (1) shall be re-vested by the State Government in a Government company or in a company or companies, in accordance with the transfer scheme so published along with such other property, interest in property, rights and liabilities of the State Government as may be stipulated in such scheme, on such terms and conditions as may be agreed between the State Government and such company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee, as the case may be: Provided that the transfer value of any assets transferred hereunder shall be determined as far as may be, based on the revenue potential of such assets at such terms and conditions as may be agreed between the State Government and the State Transmission Utility or generating company or transmission licensee or distribution license, as the case may be.
(3) Notwithstanding anything contained in this section, where,-
(a) the transfer scheme involves the transfer of any property or rights to any person or undertaking not wholly owned by the State Government, the scheme shall give effect to the transfer only for fair value to be paid by the transferee to the State Government;
(b) a transaction of any description is effected in pursuance of a transfer scheme, it shall be binding on all persons including third parties and even if such persons or third parties have not consented to it.
(4) The State Government may, after consulting the Government company or company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee, referred to in sub-section (2) (hereinafter referred to as the transferor), require such transferor to draw up a transfer scheme to vest in a transferee being any other generating company or transmission licensee or distribution licensee, the property, interest in property, rights and liabilities which have been vested in the transferor under this section, and publish such scheme as statutory transfer scheme under this Act.
(5) A transfer scheme under this section may -
(a) provide for the formation of subsidiaries, joint venture companies or other schemes of division, amalgamation, merger, reconstruction or arrangements which shall promote the profitability and viability of the resulting entity, ensure economic efficiency, encourage competition and protect consumer interests;
(b) define the property, interest in property, rights and liabilities to be allocated-
(i) by specifying or describing the property, rights and liabilities in question; or
(ii) by referring to all the property, interest in property, rights and liabilities comprised in a described part of the transferor''s undertaking; or
(iii) partly in one way and partly in the other;
(c) provide that any rights or liabilities or stipulated described in the scheme shall be enforceable by or against the transferor or the transferee;
(d) impose on the transferor an obligation to enter into such written agreements with or execute such other instruments in favour of any other subsequent transferee as may be stipulated in the scheme.
(e) mention the functions and duties of the transferee;
(f) make such supplemental, incidental and consequential provisions as the transferor appropriate including provision stipulating the order as taking effect; and
(g) provide that the transfer shall be provisional for a stipulated period.
(6) All debts and obligations incurred, all contracts entered into and all matters and things engaged to be done by the Board, with the Board or for the Board, or the State Transmission Utility or generating company or transmission licensee or distribution licensee, before a transfer scheme becomes effective shall, to the extent specified in the relevant transfer scheme, be deemed to have been incurred, entered into or done by the Board, with the Board or for the State Government or the transferee and all suits or other legal proceedings instituted by or against the Board or transferor, as the case may be, may be continued or instituted by or against the State Government or concerned transferee, as the case may be.
(7) The Board shall cease to be charged with and shall not perform the functions and duties with regard to transfers made on and after the effective date.
Explanation.--For the purposes of this Part,-
(a) "Government company" means a Government company formed and registered the Companies Act, 1956;
(b) "company" means a company to be formed and registered under the Companies Act, 1956 to undertake generation or transmission or distribution in accordance with the scheme under this Part.
133. Provisions relating to officers and employees.--
The State Government may, by a transfer scheme, provide for the transfer of the officers and employees to the transferee on the vesting of properties, rights and liabilities in such transferee as provided under Section 131.
(2) Upon such transfer under the transfer scheme, the personnel shall hold office or service under the transferee on such terms and conditions as may be determined in accordance with the transfer scheme:
Provided that such terms and conditions on the transfer shall not in any way be less favourable than those which would have been applicable to them if there had been no such transfer under the transfer scheme. Provided further that the transfer can be provisional for a stipulated period.
Explanation.--For the purposes of this section and the transfer scheme, the expression "officers and employees" shall mean all officers and employees who on the date specified in the scheme are the officers and employees of the Board or transferor, as the case may be."
22. In terms of sub-section (1) of Section 131 of Electricity Act, 2003 a transfer scheme is required to be prepared by the State government to give effect to the objects and purposes of the Act. With effect from the date on which such a transfer scheme is published, the property, interest in property, rights and liabilities of the State Electricity Board vest in the State Government. As per sub-section (2) of Section 131, the property, interest in property, rights and liabilities vested in the State Government under sub-section (1) shall be revested by the State Government in companies being the State Transmission Utility or generating company or transmission licensee or distribution licensee in accordance with the transfer scheme so published along with such other property, interest in property, rights and liabilities of the State Government as stipulated in the scheme and on terms as agreed upon between the State Government and such companies.
23. As per section 133, the State Government may, by a transfer scheme, provide for transfer of officers and employees to the transferee after the vesting of properties, rights and liabilities in the transferee companies as provided under section 131. Upon such transfer, the personnel hold office or service under the transferee on such terms and conditions as may be determined in accordance with the transfer scheme. Provision is made that the terms and conditions on such transfer shall not be less favourable than those which would have been applicable to them if there had been no such transfer.
24. Notification with regard to Transfer Scheme for Punjab State Electricity Board under the Government of Punjab was circulated on 16.04.2010 by Principal Secretary to Government of Punjab, Department of Power. The relevant portion thereof are as under:--
"xxxx
xxxx
xxxx
(h) "Powercom" means the limited company incorporated under the Companies Act, 1956 with the principal objective of engaging in the business of Generation, Trading and Distribution of power in the State but excluding transmission, State Load Dispatch and State Transmissions Utility functions:
(i) "State" means the State of Punjab
(j) "State Government" means the government of Punjab;
(k) "Transco" means the limited company to be incorporated under the Companies Act, 1956 with the principal objective of engaging in the business of Transmission of power (including State Load Dispatch and State Transmissions Utility functions) in the State;
(l) "Transferee" means Transco or Powercom, as the case may be;
(m) "Transmission Undertakings" means the undertakings as the State Government may classify as transmission undertakings in terms of clause 4 of this Scheme which shall also include the functions and assets and liabilities pertaining to State Load Dispatch and State Transmission Utility; and
(n) "Undertaking(s)" mean a block or blocks of assets and liabilities of whatever nature of the Board, as the case may be, concerning generation, transmission distribution or supply of electricity.
xxxx
5. Transfer of functions and undertakings:
(1) On and from the Effective Date of Transfer, the Transmission functions of the Board alongwith the Transmission undertakings inclusive of all assets, liabilities, interests, rights and obligations forming party of the transmission functions and undertakings as the State government may specify shall stand re-vested in the Transco for all intent and purposes without any further act deed or thing to be done by the Board, the State Government or Transco or any other person and the transmission functions and the functions of State Load Dispatch and State Transmission Utility shall be discharged by the Transco from the above date but subject to the terms and conditions of this scheme.
(2) On and from the Effective Date of Transfer, all the remaining functions of the Board including the Generation, Trading and Distribution functions alongwith all undertakings including residuary and miscellaneous assets, rights, interests, liabilities and obligations vested in the State Government under Clause 3 of this Scheme excluding the Transmission Undertakings shall stand revested in and shall be discharged by the Powercom for all intent and purposes without any further act or thing to be done by the State Government or the Board or the Powercom or any other person and all such functions shall be discharged by Powercom, from the above date but subject to the terms and conditions of this Scheme.
xxxx
6. Transfer of Personnel
xxxx
xxxx
(3) On such transfer and subject to the provisions of the Act and other provisions of this Scheme the personnel shall form a part of the services of Powercom and their rank, scale of pay and inter-se seniority as existing in the Board on the Effective Date of Transfer shall be maintained and the retirement benefits and other facilities shall in no way be reduced than the one existing in the Board on the Effective Date of Transfer.
xxxx
(6) Subject to the Act and this Scheme, Powercom shall be entitled to frame regulations governing the conditions of personnel transferred to Powercom under this Scheme and till such time the existing/(as suggested for modification) service rules/regulations of the Board shall apply mutatis-mutandis.
xxxx
xxxx
(12) The State Government may in consultation with Powercom and Transco finalise the transfer of personnel from Powercom to Transco and permanent absorption of such personnel in Transco on the following terms and conditions:
(a) xxxx
(b) xxxx
(c) xxxx
(d)xxxx
(e) Subject to the provisions of the Act and this Scheme, the Transco shall be entitled to modify or frame new regulations governing the conditions of service of personnel transferred to the transferee under this Scheme, but their rank, scale of pay, salary, allowances and other pecuniary benefits including terminal benefits etc., after the Effective Date of Transfer shall not in any way be interior to those applicable to them immediately before the transfer and the services of such personnel shall be treated as having been continuous for the purpose in respect of all statutory and other schemes and employment related matters."
25. As per this Transfer Scheme, subject to the provisions of the Act and Scheme, both the transferee companies shall be entitled to modify or frame new regulations governing the service conditions for their personnel.
26. A Tripartite Agreement was entered into between the Government of Punjab, the management of two successor companies of the Punjab State Electricity Board namely PSPCL and PSTCL (respondents No. 1 and 2) and all Unions and Associations of PSPCL and PSTCL (erstwhile board) on 29.11.2010 which was notified on 24.05.2011. As per this agreement, the transfer of personnel in terms of the transfer scheme shall be subject to the terms and conditions contained in the Electricity Act, 2003. The successors entities of the PSEB namely PSPCL and PSTCL shall remain government companies. On transfer and subject to the provisions of Electricity Act, 2003 and other provisions of the Transfer Scheme, the personnel shall form a part of the services of PSPCL and their rank, scale of pay and inter-se seniority etc. as existing in the Board on the effective day of transfer shall be maintained and retirement benefits and other facilities shall in no way be reduced than the one existing on the board on the effective day of transfer.
27. As per clause 6 of this Agreement, subject to the Act, 2003 and the Transfer Scheme, on transfer to PSPCL the rules and regulations of the Board governing the conditions of the service such as promotions, transfer, seniority, leave, allowances etc. shall continue to apply mutatis mutandis.
28. Thus, as per the provisions of the Transfer Scheme, Tripartite Agreement and the Act, 2003, the respondent- Corporations are government companies and the service regulations of the employees thereof can be framed/amended by the decisions of their Board of Directors.
29. The Act, 1948 having been repealed by the Act, 2003, the reliance by learned counsel for the petitioners on Section 79 of the 1948 Act is misplaced. So, the contention of the Ld. Counsel that the regulations can be amended only through a notification under Section 79 of the 1948 Act cannot be accepted. It has to be held that the respondents No. 1 and 2 are government companies and can regulate and amend the existing service regulations through resolutions of their Board of Directors.
30. Respondent No. 2 in its written statement has stated that the relevant service regulations of the Corporation had been duly amended by the Board of Directors of the Corporation vide memo dated 16.11.2011 (Annexure P-6). Further vide office order dated 1.12.2011 (Annexure P-9) the qualifications of various posts advertised in PSPCL were amended.
31. I have perused Annexures P-6 and P-9. Annexure P-6 is a memo addressed by the office of Chief Engineer HRD indicating that the Board of Directors in its 15th meeting held on 11.11.2011 has approved/amended the qualifications for direct recruitment against various posts. Vide Note No. 3 of this memo, a copy of the memorandum dated 9.11.2011 and decision of the Board of Directors regarding the same was endorsed to the Dy. Secretary/P&R, PSPCL, Patiala with a request to issue necessary amendments to the relevant service regulations immediately. Annexure P-9 dated 1.12.2011 is a circular issued by the Regulation Branch of the PSPCL, Patiala which publishes/formalizes this amendment by stating that the qualifications of various posts advertised in PSPCL is amended. It appears that this circular has been issued in response to the request contained in Note No. 3 of Annexure P-6 and accordingly, the amendment of the service regulation can be taken to have been duly effected on the issuance of this circular. Thus, on the day i.e., 16.11.2011, when the advertisement Annexure P-7 was issued by respondent No. 2 inviting applications for the posts of Asstt. Engineers (on training), the qualifications contained in the service regulations can not be considered to have been amended.
32. As far as PSTCL - Respondent No. 1 is concerned, in its written statement, it has stated that Board of Directors of PSTCL in its meeting held on 21.12.2011 at Mohali resolved that the decision of the Committee taken on 11.11.2011 regarding qualifications has been ratified and the Chairman-cum-Managing Director was authorized to amend/modify the relevant regulations as adopted by the Corporation to give effect to the qualifications/experience for direct recruitment of the said posts. Clearly the resolution regarding amendment was adopted much after the advertisement Annexure P-5 dated 11.11.2011 was issued by respondent No. 1.
33. Thus, qua both advertisements, Annexures P-5 and P-7, the contention of learned senior counsel for the petitioners that the advertisements were contrary to the then existing regulations appears justified and it is so held.
34. Now the question remains as to what relief can be granted to the petitioners.
35. When the had come up for preliminary hearing on 20.12.2011, notice of motion was issued for 16.01.2012 and respondent Nos. 1 and 2 were directed not to fill up 15 posts of Assistant Engineers (Electrical).
36. At the time of hearing, by referring to various Civil Miscellaneous applications filed from time to time, it has been pointed out that most of posts advertised vide Annexures P-5 and P-7 remained vacant because only a few candidates obtained the minimum qualifying marks (General 50% & Reserved 40%). 88 unfilled posts were advertised by respondent No. 1 vide CRA No. 2/2012/PSTCL on 3.8.2012. The respondent No. 1 allowed the petitioners to provisionally appear in the written examination conducted for the said posts. Result for the same was declared on 18.07.2013. Out of the 15 petitioners, petitioner No. 1 did not appear for the written examination. 4 petitioners had not applied. 9 petitioners did not qualify the written examination and one petitioner who qualified the written examination did not come within the merit as his merit position was 96.
37. It was argued on behalf of the respondents that as the petitioners had been provisionally permitted to appear in the subsequent written examination held for the unfilled vacancies and as they failed to qualify therein, so no further relief can be granted to them at this stage, even if it is held that the advertisements were contrary to the-then existing regulations.
38. To the contrary the Ld. Counsel for the petitioners contended that allowing the petitioners to provisionally appear was a concession given to the petitioners by the respondents and they had competed therein with all the other eligible candidates. He contended that the fact remains that the petitioners had been wrongly denied the chance to compete in terms of the advertisements Annexures P-5 and P-7 and a test should be held for the 15 posts lying unfilled, wherein, the petitioners should be permitted to appear.
39. I have considered the aforesaid submissions. I am inclined to accept the contention of the Ld. Counsel for the petitioners.
40. The advertisements Annexures P-5 and P-7 were contrary to the-then existing regulations. As per the-then existing regulations, the petitioners were eligible for the posts in question. However, because of the conditions in the advertisement they could not appear in the written examination.
41. Even if the petitioners were permitted by the respondents to provisionally appear in the subsequent written test for the unfilled vacancies, it cannot be lost sight of, that the petitioners had been denied the chance to appear and compete with the others pursuant to the first advertisements Annexures P-5 and P-7 which chance can now be given to them as vide interim order dated 20.12.2011 the respondents were directed not to fill up 15 posts of Assistant Engineer (Electrical). In view of the determination as above, it is directed as under:--
"(i) that the respondents conduct a written test exclusively for the petitioners, for filling up the 15 posts which were directed to be not filled up by interim order dated 20.12.2011;
(ii) If the petitioners qualify in the written test, by securing the minimum qualifying marks, then a combined merit list of the petitioners who qualify and those candidates who had qualified in the earlier written examinations held to fill up the posts which had remained vacant after the first advertisements Annexure P-5 and P-7, be prepared; and
(iii) Appointments against the 15 posts be made from amongst those highest in merit in this combined merit list."
