IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY THIRD DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION No : 14773 of 2009 Between: 1 Mallapureddy Lokanadha Rao, S/o late M.Bala Gopala Rao in O/O A.AE CCO Reddygunta(PO) Chittoor District 2 Shaik Khadar Basha S/o late Kalesha Presently Working in O/O Asst Divsional Engineer Operation Kota(PO) Gudduru Divsion P.S.R Nellore District ..... PETITIONERS AND 1 The Andhra Pradesh Transport Corporation Rep. by its Chairman & Managing Director Vidyut Soudha,Somajiguda,Hyderabad-82 2 The Chairman & Managing Director APSPDCL Corporate Office Near Srinivasa Kalyana Mandapam Kesavayana Gunta Tirupathi(PO) Chittoor District .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ direction more particularly one in the nature of writ of Mandamus declaring the impugned order in I.T.O.O(Addl.Secy Per) MS No 26 dt 27-4-2009 and 2 S.O.O (C.G.M-HRD) Ms.No.58 dt 1-5-2009 issued by the 2nd respondent by giving effect to the amendment of Service regulation in Annexure I Part III Class III category 1 to the post of Counsel for the Petitioner:MR.P.NARASIMHA RAO Counsel for the Respondent No.: P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court at the stage of admission made the following O R D E R: Heard Sri P. Narasimha Rao, learned counsel for the petitioners and Sri P. Balarami Reddy, learned counsel for AP Transco. This Writ Petition has been instituted by two Sub-Engineers of the Andhra Pradesh Transmission Corporation seeking a Writ of Mandamus for declaring the orders passed by the 1st respondent Corporation in their T.O.O. (Addl. Secy-Per) Ms. No. 26, dated 27th April 2009 as well as S.O.O. (CGM-HRD) Ms. No. 58, dated 1st May 2009 bringing about certain amendments to the service regulations, as arbitrary, illegal, void, in violation of the principles of natural justice, unsustainable and hence, they prayed for setting them aside. The two writ petitioners were appointed initially as Helpers in the service of the Andhra Pradesh State Electricity Board and they were subsequently, promoted as Junior Linemen. The 1st petitioner was promoted as a Sub-Engineer in the year 2006, while the 2nd petitioner was promoted as such in the year 2007. It is submitted that they acquired the Diploma qualification in Electrical Engineering in the year 2004. The Andhra Pradesh State Electricity Board framed Service Regulations for its emplooyees. Dealing with the post of an Additional Assistant Engineer, the sources of recruitment and the necessary eligibility criteria have been listed out as under: “ By appointment from the following categories of Board’s Employees:- (i) Draughtsmen, Tracers, Sub-Overseers, Asst. Supervisors having L.E.E. Diploma qualification and a minimum continuous service of ten years after acquiring the L.E.E. Diploma qualification in any post under the Board. (ii) Employees working in O&M Establishment and Construction staff establishment having L.E.E. diploma qualification and who have put in a minimum continuous service of ten years after acquiring the L.E.E. diploma qualification in any post under the Board excluding the service if any rendered as Nominal Muster Roll Worker. Note: For the computation of ten years of service Half the continuous service other than the service as nominal muster roll worker rendered prior to acquisition of L.E.E. diploma qualification subject to a maximum of four years shall be taken into account for all categories.” These Regulations have been amended with effect from 19th August 1995 to the following effect: “ By appointment from the following categories of Board’s Employees:- (iii) Draughtsmen, [1]Tracers, [2]Sub-Engineers having L.E.E. Diploma qualification and a minimum continuous service of [3]eight years after acquiring the L.E.E. Diploma qualification in any post under the Board. (iv) Employees working in O&M Establishment and Construction staff establishment having L.E.E. diploma qualification and who have put in a minimum continuous service of eight years after acquiring the L.E.E. diploma qualification in any post under the Board excluding as Nominal Muster Roll Worker. Note: For the computation of eight years of service half the continuous service other than the service as nominal muster roll worker rendered prior to acquisition of L.E.E. diploma qualification subject to a maximum of four years shall be taken into account for all categories.” The 1st respondent Corporation, through its orders in T.O.O. (Addl. Secy-Per) Ms.No. 173, dated 15th October 2008 carried out further amendments thereto, which are to the following effect: “ In Annexure-I, to the said Regulation:- a) in “Branch-I-Electrical”, against “Category-1” Addl. Asst. Engineer in column (1), in items (i) and (ii) in column (2) and in note there-under for the words “eight years” the words “five years” shall be substituted. b) In “Branch-II-Civil”, “Branch-III-Mechanical” and “Branch-IV- Telecommunications” against “Category-1 Additional Assistant Engineer” in column (1), in items (i) and (ii) in column (2) and in note there-under for the words “eight years” the words “five years” shall be substituted.” Again, there was further amendment made thereto, through T.O.O. (Addl. Secy-Per) Ms. No. 26, dated 27th April 2009, to this effect:- “ The note under Column (2) mentioned against the post of Addl. Asst. Engineer under Column I against “Category-1” under Class III under “Branch-1 Electrical” under sub-heading “Others” under main-heading “A.P.S.E. Board Engineering Services” mentioned in Annexure-I of APSEB Service Regulations Part III shall be amended as follows: Existing For the computation of five years of service Half the continuous service ot her than the service as nominal muster roll worker rendered prior to a c q u i s i t i o n of L.E.E. diploma qualification subject to a maximum of four years shall be taken into account for all categories. Read as For the computation of five years of service, half the continuous service other than the service as Nominal Mustar Roll worker rendered prior to acquisition of L.E.E. diploma qualification subject to a maximum of two years and six months shall be taken into account for all categories. The Southern Power Distribution Company of Andhra Pradesh Limited, which is the succeeding body to the AP TRASCO, has carried out further amendment through its S.O.O. (CGM-HRD) Ms.No. 58, dated 1st May 2009 to the following effect: “AMENDMENT –1 The note under Column (2) mentioned against the post of Addl. Asst. Engineer under Column I against “Category-1” under Class III under “Branch-I-Electrical” under sub-heading “Others” under main-heading “A.P.S.E. Board Engineering Services” mentioned in Annexure-I of APSEB Service Regulations Part III shall be amended as follows: Existing For the computation of five years of service Half the continuous service, ot her than the service as Nominal Muster Roll worker rendered prior to a c q u i s i t i o n of L.E.E. diploma qualification subject to a maximum of four years shall be taken into account for all categories. Read as For the computation of five years of service, half the continuous service other than the service as Nominal Muster Roll worker rendered prior to acquisition of L.E.E. diploma qualification subject to a maximum of two years and six months shall be taken into account for all categories. AMENDMENT-2 The note under Column (2) against the post of Addl. Asst. Engineer under Column I against “Category-1” under “Class III” under sub-heading “Others” against “Branch-II-Civil” under main- heading “A.P.S.E. Board Engineering Services” mentioned in Annexure-I of APSEB Service Regulations Part III shall be amended as follows: Existing For the computation of five years of service half the continuous service ot her than the service as Nominal Muster Roll worker rendered prior to a c q u i s i t i o n of L.C.E. Diploma qualification subject to a maximum of four years shall be taken into account for all categories. Read as For the computation of five years of service, half the continuous service, other than the service as Nominal Mustar Roll worker rendered prior to acquisition of L.C.E. diploma qualification subject to a maximum of two years and six months shall be taken into account for all categories. A perusal of these Regulations, which suffered series of amendments, unmistakably, discloses that they dealt with the eligibility criteria of the employees in the feeder category for promotion to the post of Additional Assistant Engineer. It is not in dispute that the post of Sub-Engineer is a feeder category to the post of Additional Assistant Engineer. These Regulations have no connection whatsoever with the fixation of seniority inter se the employees in the feeder category, much less do they set out any principle for determination of seniority inter se the personnel drawn from various sources of recruitment, such as, direct recruitment, promotion or recruitment by transfer, as the case may be. Simply put it, the aforementioned Regulations deal with the educational and experience criteria required to be possessed by those personnel, who are working in the feeder categories, to render themselves eligible for promotion to the next higher category of Additional Assistant Engineer. What should be the criteria either academic or length of experience that should be prescribed to render the personnel eligible for promotion, is a matter that lies exclusively within the domain of the employer. So long as the decision taken in that regard does not offend any of the rights guaranteed to a citizen under Part III of the Constitution of India or any provision of law, they become enforceable. Therefore, if the employer considers that for the purpose of filling up the posts of Additional Assistant Engineers, the qualifications required could be sufficient by prescribing a Diploma in Electrical Engineering, such a decision cannot be justiciable. It is for the employer, taking into consideration the nature of duties and responsibilities liable to be performed by the personnel, when get promoted, to prescribe the pre-requisite qualifications. Whether a post graduate degree in Electrical Engineering should be prescribed or a mere graduation in Electrical Engineering should be prescribed or even a Diploma in Electrical Engineering would be sufficient for rendering an employee eligible to seek promotion to the post of Additional Assistant Engineer is a matter of policy decision of the employer, based upon value judgment. Prescription of any of the qualifications, taking into consideration the nature of duties and responsibilities liable to be performed by a person holding a particular post occupying a particular status, is the exclusive prerogative of the employer and subject to the limitations pointed out supra, any such decision of the employer is not justiciable. Similarly, what should be the length of service that should be prescribed to render an employee eligible, again, is a matter of a policy consideration. The aspirations of the employees in the feeder category, the requirement of man power and the degree of efficiency which they would have been expected to acquire, while performing their duties in the feeder category, play a part in the employer prescribing the minimum length of service that is needed for rendering an employee eligible for promotion. Whether it should be ten years of experience or eight years or five years would be sufficient again is a matter which will be in the domain of the employer’s discretion. So long as it does not offend any of the fundamental rights or any legal provision on the subject, it does not warrant interference. Both the petitioners have been promoted as Sub-Engineers in the years 2006 and 2007. By the succeeding amendments made to the Recruitment Rules, the qualifying length of service is reduced from time to time. Consequently, the employer obviously wanted to ensure that a large number of its employees in the feeder category become eligible for being considered for promotion to the next higher cadre of Additional Assistant Engineer. Such a measure will enure to the benefit of the writ petitioners as well along with all others. The cases of the writ petitioners will not suffer any prejudice or damage by rendering them eligible for such promotions to the next higher post in quick time computed from the date they earned their promotion as Sub-Engineer. Therefore, it baffles me as to how the writ petitioners are aggrieved or effected by the reduction of the qualifying length of service achieved through various amendments made to the Recruitment Rules. Learned counsel for the writ petitioner in his very elaborate submissions stressed a great deal on the point that, if a large number of persons become eligible for seeking promotion to the next higher category of Additional Assistant Engineer, their inter se seniority position would get altered. I am afraid, that this contention is absolutely meritless, for, the seniority of an employee is determined normally on the basis of the length of service put in in a particular category. Overall length of service put in by an employee in various categories put together cannot afford him any right to claim seniority in any or one of the classes of service. For instance, both the writ petitioners appear to have been recruited for the first time to the service of the Andhra Pradesh State Electricity Board some time during the year 1990, but their seniority in the category of Sub-Engineers will not be determined or fixed taking into account and consideration the overall service or length of service put in by them right from 1990 onwards. Seniority will be fixed for each respective category of employment. In the category of Sub-Engineers, the seniority of the writ petitioners is liable to be reflected taking into account the date of their promotion as such. The fact that they have acquired eligibility for higher promotion earlier in point of time also will not render them eligible to stake a claim for any higher places in the seniority list. In other words, persons, who have been promoted earlier in point of time to that of the writ petitioners cannot be rendered juniors to the petitioners and similarly, the petitioners cannot be rendered juniors to those persons, who have been promoted subsequent to their date of promotion, only on the basis that they have acquired eligibility for promotion to the next higher category earlier in point of time. The eligibility criteria will acquire significance and importance at the time when promotions are undertaken to the next higher category. All persons, who are eligible as at that time, are bound to be considered in accordance with their respective seniority and if the Rules prescribe a zone of consideration appropriately restricting the number of candidates to be so considered, in such an event, those eligible candidates, who fall within the zone of consideration alone, will fall for consideration for promotion to the higher post. Therefore, acquisition of eligibility criteria earlier or later in point of time is not so very significant nor will they tilt the places in the seniority list. Learned counsel for the writ petitioners has stressed a great deal that these amendments having been made subsequent to the date of their appointment or promotion as Sub-Engineers and, hence, their cases cannot be regulated or considered in accordance with these amended Rules, but must be dealt with the earlier set of Rules. Public employment, is not merely contractual. It has a status of its own. Therefore, amendments made to the Recruitment Rules after the date of appointment or promotion of a candidate do not cease to be applicable for such candidate. All amendments made to the Recruitment Rules will bind the entire class of existing employees as at that time. A useful reference in this regard can be had to the judgment of the Supreme Court in Roshan Lal Tandon v. Union of India1 . Learned counsel for the writ petitioners has placed strong reliance upon the judgment rendered by a Division Bench of Punjab & Haryana High Court in Kashmir Singh v. State of Punjab2 in support of his contention that the amended Rules cannot have any applicability to the claims and cases of the writ petitioners. It will be appropriate to notice that the case before the Punjab & Haryana High Court was the one relating to whether the change of designation of the writ petitioners to Technician Grade - III with effect from 3rd November 1989 would entitle them for promotion or for an additional increment in the said service. Similarly, the other judgment rendered by another Division Bench of Punjab & Haryana High Court in Bhimsain Gupta v. State of Haryana3 relied upon by the learned counsel is also of no avail. The Division Bench of Punjab & Haryana High Court in Bhimsain Gupta’s case (cited supra) has formulated the two questions that have fallen for consideration in the very opening passage of their judgment as under: “ Primarily, two questions have been raised by the petitioners which call for our answer in this writ petition. The same are: (i) whether the seniority of the petitioners who were appointed as Inspectors in the Haryana Co-operative Department prior to promulgation of the Rules known as Haryana Co-operative Group (Reserve) Rules, 1980 (hereinafter called the 1980 Rules) is to be determined under the said Rules or the Punjab Co-operative Subordinate Services Rules, 1936 (hereinafter called the 1936 Rules) which were repealed by the 1980 Rules? (ii) Whether Rule 6 of the 1936 Rules dealing with the determination of seniority of the post of Inspector is ultra vires Articles 14 and 16 of the Constitution of India? The decision, therefore, rendered by the Division Bench of the Punjab & Haryana High Court in Bhimsain Gupta’s case has absolutely no application to the present controversy raised in this Writ Petition about the validity of the amendments carried out to the Recruitment Rules. The Writ Petition lacks merit and it is accordingly dismissed, but however, without costs. ---------------------------------- (NOOTY RAMAMOHANA RAO, J) 23rd July 2009 ksld ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{BMR} [1] [2] Substituted in place of the words “Sub-Overseers, Asst. Supervisors’ vide B.P. (P&G-Per) Ms.No. 102, dt. 11.8.1995. [3] Substituted for ten by B.P. (P&G-Per) Ms.No. 106, dt. 19.08.1995. 1 AIR 1967 SC 1889 2 2003(2) SLR 259 3 1997(2) SLR 262