IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTY FIRST DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 16587 of 2006 Between: Uma Devi Bethini, D/o. B.V. Ratnam, Resident of Hyderabad. ..... PETITIONER AND 1 The A.P. Transco, Vidyut Soudha, Somajiguda, Hyderabad, Rep by its Chirman & Managing Director. 2 The Chief General Manager, (HRD & Training) The A.P. Transco, Vidyut Soudha, Somajiguda, Hyderabad. .....RESPONDENT(S) 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 to issue a writ or order or direction more particularly one in the nature of writ of Mandamus declaring the proceedings dated 11-7-2006 issued by the 2nd respondent as arbitrary, illegal and violative of the petitioner rights guaranteed under Article 14 and 16 of the constitution of India and consequently direct the respondent to undertake a review of the candidates appointed under Notification dated 1-1-1997 as per 33 1/35 women reservation policy and refix seniority as per Women's roster and fix the pay of the petitioner on par with the AEs (Electrical) appionted under the notification dated 1-1-1997 and to further grant all other service benefits such as leave, promotion and such other benefits being granted to the AEs (Electrical) appointed under the notification dated 1-1-1997 and pass such other order or orders as this Hon'ble Court deems fit and proper in the interest of justice Counsel for the Petitioner:M/SC.KODANDA RAM Counsel for the Respondent No.: P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court made the following : THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.16587 of 2006 ORDER: This writ petition is filed seeking a Mandamus declaring the proceedings dated 11.7.2006 issued by the second respondent as arbitrary, illegal and violative of provisions of Articles 14 and 16 of the Constitution of India and consequently direct the respondents to undertake a review of the candidates appointed under notification dated 1.1.1997 as per 33 1/3% women reservation policy and refix seniority as per women’s roster and fix the pay of the petitioner on par with Assistant Engineers (Electrical) appointed under the notification dated 1.1.1997. According to the petitioner, she is a graduate in Engineering in Electrical and Electronics. The APSEB i.e. the predecessor of respondent herein had issued a notification dated 1.1.1997 for recruitment of 131 posts of Assistant Engineers (Electrical). The qualification prescribed for the said post is a Bachelor Degree in Electrical Engineering. Since the petitioner was qualified, she applied for the post of Assistant Engineers (Electrical) pursuant to the notification dated 1.1.1997. She was successful in the written test as well as interview and secured required marks, however she was not selected and not appointed. On enquiries, she came to know that APSEB while making appointments pursuant to the notification dated 1.1.1997 did not provide reservation to women candidates to the extent of 33 1/3% which was mandatory. Therefore she had filed W.P.No.26806 of 1997. The said writ petition was dismissed on 10.7.2000. Aggrieved by the same, W.A.No.1038 of 2000 was filed, which was allowed by this Court by order dated 8.10.2001. The order reads as under: “In the aforementioned situation, although rule of reservation as laid down therein would be applicable to the 2nd respondent but having regard to the fact that those who have been appointed having not been impleaded as a party in this appeal, they cannot be displaced so as to direct accommodation to the appellant. Further more, in the meanwhile, the State has enacted A.P. State Electricity Reforms Act, 1998. By reason of such an Act, power generation, transmission and distribution have been reorganized by entrusting those functions to commercially compact and viable entities with managerial function and autonomy. Transmission of power has been assigned to A.P. Transmission Corporation, Hyderabad whereas generation has been entrusted to another corporate body. It has not been disclosed before this Court as to whether all the 131 candidates who were recruited are working under one or the other corporations. However, if there exists any vacancy out of the notified vacancies, the concerned company may consider the desirability of appointing the appellant herein or any other person who is similarly situate if they would otherwise come within the purview of Regulation 22A of the regulation as interpreted by the Apex Court in P.B.Vijay Kumar’s case (supra)”. Aggrieved thereby, respondents preferred Special Leave Petition before the Apex Court in S.L.P.No.1840 of 2002, which was dismissed by order dated 11.2.2002. The order reads as under: “We are not inclined to interfere with the impugned order at the behest of the employer as, in our view, the employer is not aggrieved by any direction or observation made by the High Court. The Special Leave Petition accordingly stands dismissed”. Thus, the petitioner made a representation on 29.10.2001 requesting the respondents to consider her case in terms of the directions of the Division Bench in W.A.No.1038 of 2000. In spite of the said representation, the respondents did not consider the case of the petitioner, therefore she was constrained to file Contempt Case No.953 of 2002 for not complying with the directions in W.A.No.1038 of 2000. The respondents vide letter dated 12.7.2002 informed the petitioner that her case has been considered for appointment as Assistant Engineer (Electrical) as directed by this Court in W.A.No.1038 of 2000 and the petitioner cannot be appointed as Assistant Engineer (Electrical) as there are no vacancies pursuant to the notification dated 1.1.1997, since “all the 67 OC candidates recruited against the notified vacancies have joined. Thus, there are no vacancies left over from 67 AE(Elec) vacancies notified”. A similar false affidavit was filed in C.C.No.953 of 2000 deliberately with an intent to mislead this Court stating that 5 OC vacancies out of 131 notified were filled along with 282 posts in respect of which appointment orders were issued on 16.9.1998. Aggrieved by the letter dated 12.7.2002 rejecting petitioner’s case for appointment by giving a false picture about the availability of vacancies, petitioner filed Writ Petition No.370 of 2003 seeking to declare the action of the respondents in issuing letter dated 12.7.2002 as arbitrary and illegal and consequently to appoint the petitioner as Assistant Engineer (Electrical). Though there were 5 vacancies in the OC category under the notification dated 1.1.1997, the respondents only to deny the petitioner an appointment, rejected her case stating that there are no vacancies under the notification dated 1.1.1997. By order dated 19.1.2004, the above writ petition was allowed. The operative portion of the said judgment reads as under: “The entire file relating to the recruitment of Assistant Engineers (Electrical) pursuant to the notification dated 1.1.1997 and 18.6.1997 is placed before this Court. I have scanned through the same to verify as to how and in what manner the said 5 OC vacancies were carried forward. Absolutely, there is no mention and no decision taken by any authority as to the carry forward of the 5 OC vacancies to the next recruitment either by way of a corrigendum to the notification dated 18.6.1997 or any authenticated decision to show that these 10 vacancies including 5 OC vacancies were added to the 300 vacancies except the story fabricated by the respondents. Sri S.Ravindranath, learned standing counsel appearing for the respondents asserted and reasserted that this Court cannot unsettle the settled position in the judgment dated 8.10.2001 in W.A.No.1038 of 2000 and also the decision in Contempt case No.953 of 2002 dated 29.11.2002. Learned counsel was not able to explain for the repeated questions from the Court that as to how he would explain that those of 5 OC vacancies were carried forward to the second notification along with 300 vacancies. In fact, even after the filling up of the vacancies in pursuance of the second notification, there were vacancies. There was no bar for the respondents to appoint the petitioner atleast against those vacancies. From the record, it is seen that there is no specific endorsement of carrying forward those 5 OC vacancies to the purported second notification dated 18.6.1997. Naturally that could not be, since the selection process under the first notification was completed and appointment orders were issued on 27.9.1997 and as stated above only after 20.10.1997 the unfilled vacancies, if any, came to be identified. On what basis, the said affidavit was filed before this Court in the contempt case is not known. This also shows that those 5 OC vacancies relating to the first notification, which were supposed to be carried forward, arose only after 20.10.1997 and they could not have been part and parcel of 300 vacancies notified on 18.6.1997. It is curious to note that on an earlier occasion, after verifying the records, the learned standing counsel appearing for the respondents fairly conceded that from the records he was not able to make out on what basis such statement was made in the earlier litigation before this Court or in this case. The learned standing counsel was asked to obtain sworn statements from the concerned officers explaining what was the basis for stating that the 5 OC vacancies of the first notification were filled up under the second notification and what was the record relied upon in support of such statement. In that regard, one G.Patanjali Rao, son of late Venkateswara Rao, Chief General Manager (HRD & Trg) of the respondent Corporation has filed an affidavit sworn on 26.12.2003, in which, he did not say any thing as to how such an affidavit was filed before the Court stating that the 5 vacancies of the first notification were brought to the second notification and were filled up. He tried to improve the case, at this stage, saying that those vacancies were also filled up by the time the writ appeal was disposed of. This affidavit also does not disclose as to on what basis the earlier affidavits were filed by the concerned officers as to filling up of the 5 vacancies and what was the record on which basis, the affidavits were filed earlier. In this affidavit also, the respondents sought to divert the attention of this Court by improving their stand taken in the contempt proceedings. In fact, as seen from the above, the case of the petitioner was rejected only on the basis that those 5 OC vacancies were carried forward and notified in the second notification and were filled up. For carrying forward, the respondents are governed by the procedure prescribed in G.O.Ms.No.81 dated 22.2.1997, which was adopted by A.P. Transco in B.P. (P&G Per) Ms.No.100 dated 28.7.1997. It is pertinent to mention that even before the said Governmental Order was adopted, the second notification dated 18.6.1997 was issued. The remaining vacancies in the first notification were supposed to be carried forward and re-notified. Such a procedure was not adopted and in fact, a false statement was made before this Court in the affidavit filed in C.C.No.953 of 2002 stating that those 5 vacancies were carried forward to the second notification and were filled up. This statement, according to me, was made by the respondent-Corporation only to deny the employment of a woman candidate, who brought the illegality committed by the respondents to the notice of this Court. It is also not the case of the respondents that in pursuance of the second notification 300+5 vacancies were filled up. I am of the opinion that those 5 vacancies under the first notification dated 1.1.1997 were not notified and as such, they were not filled up. For the aforesaid reasons, the writ petition is allowed and the impugned letter dated 12.7.2002 of the Joint Managing Director (HRD), A.P. Transco, Hyderabad is set aside. The respondents are directed to reconsider the candidature of the petitioner for being appointed as Assistant Engineer (Electrical) against the said 5 unfilled vacancies under the notification dated 1.1.997. No order as to costs”. According to the petitioner, though she was appointed through proceedings dated 8.9.2004 as Assistant Engineer (Electrical) and working at A.P. Transco, the respondents have not fixed her pay and seniority on par with other those who were appointed under notification dated 1.1.1997. A detailed counter affidavit has been filed by the respondents denying the allegations made by the petitioner and stating that a notification dated 1.1.1997 was issued calling for applications for filling up of 131 Assistant Engineers (Electrical) posts by direct recruitment, out of which, 67 posts were earmarked for open category. There was no rule of reservation in favour of women candidates. The writ petitioner applied for the post of A.E. Electrical under O.C. category and her application was considered against O.C. only as there was no reservation in favour of women. The written examination was conducted on 20.4.1997 and thereafter interviews were held in July 1997. The writ petitioner attended the written examination as well as interview, however, she was not selected for the post of A.E. Electrical since she secured 65.83 marks only which are less than the last open category (OC) candidate appointed. The last O.C. candidate appointed secured 68.17 marks. The direction given by this Court in W.P.No.370 of 2003 is to reconsider the candidature of the writ petitioner for being appointed as Assistant Engineer (Electrical) against the 5 unfilled vacancies. On appointment to the post, an employee would be placed in the minimum of the pay scale attached to the post. Therefore, petitioner is not entitled for fixation of pay on par with the employees who were appointed in pursuance of the notification dated 1.1.1997. The seniority of an employee is reckoned in terms of the then APSEB Regulations as adopted by the A.P. Transco. In terms of Regulation 26 of the Service Regulation Part II, seniority of a person shall be determined by the date of first appointment. The petitioner was appointed to the post by proceedings dated 8.9.2004, therefore she is entitled to reckon the seniority only from that date of joining the post. This Court in W.P.No.370 of 2003 directed to consider petitioner’s case in one of the 5 unfilled vacancies. There was no specific direction to extend seniority and other consequential benefits. The representation of the petitioner dated 2.6.2005 was considered and the same was rejected by proceedings dated 11.7.2006. The reasons assigned in proceedings dated 11.7.2006 are perfectly legal and justified. The petitioner has no right to claim fixation of pay and seniority on par with the persons appointed under notification dated 1.1.1997. The learned senior counsel Sri M.R.K.Chowdary appearing for petitioner strenuously contended that this Court in unequivocal terms directed the respondents to reconsider the candidature of the petitioner for being appointed as Assistant Engineer (Electrical) against the 5 unfilled vacancies under notification dated 1.1.1997. Therefore, petitioner rights have been concretized and concluded in the judgment in W.P.No.370 of 2003 dated 19.1.2004. It is not open for the respondents to deny the petitioner seniority and pay on par with those who were appointed in pursuance of the notification dated 1.1.1997. Since the petitioner has approached this Court more than once and filed contempt case, the respondents bore grudge against her and declared that she is not entitled to claim seniority on par with those who were appointed as Assistant Engineers (Electrical) under the notification dated 1.1.1997. This approach made by the respondents is arbitrary and illegal. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned order and other material made available on record. At the outset, it may be necessary to notice the operative portion of the judgment made in W.P.No.370 of 2003 dated 19.1.2004 – “For the above reasons, the writ petition is allowed and impugned letter dated 12.7.2002 of the Joint Managing Director (HRD), A.P. Transco, Hyderabad is set aside. The respondents are directed to reconsider the candidature of the petitioner for being appointed as Assistant Engineer (Electrical) against the said 5 unfilled vacancies under the notification dated 1.1.997”. Further as noticed from the extract of the above judgment, it is clear that when W.P.No.26806 of 1997 and W.A.No.1038 of 2000 and Contempt Case No.953 of 2002 was filed before this Court, a false affidavit was filed and the truth came out only after examining the original record produced by the respondents. Under those circumstances, the respondents were directed to reconsider the case of the petitioner for being appointed as Assistant Engineer (Electrical) under 5 unfilled vacancies in pursuance of the notification dated 1.1.1997. Therefore, at this length of time, it is not available for the respondents to say that the petitioner was not appointed against the vacancies notified in pursuance of the notification dated 1.1.1997 and thus, petitioner is not entitled for fixation of her pay and seniority on par with those who were appointed under the notification dated 1.1.1997. It is not a charity, which is claimed by the petitioner. She fought two rounds of litigation before this Court, which concluded before the Apex Court. When a citizen gets a right of being appointed after fighting the battle before the Courts of Law, the relief sought for must be relatable to the date on which his/her right to be considered arose. Though various other aspects of earlier concluded litigation was sought to be projected in order to justify the impugned order, I am of the opinion that there is no necessity of going into such proceedings. Since the rights of the petitioner were settled in the earlier litigation itself, the only question arises whether the petitioner is entitled for fixation of pay and seniority on par with those who were appointed under the notification dated 1.1.1997.Since the petitioner has succeeded before this Court after two rounds of litigation and when there was a clear direction by this Court that the candidature of the petitioner be reconsidered for being appointed as Assistant Engineer (Electrical) against 5 unfilled vacancies under the notification dated 1.1.1997, she is automatically entitled for all the benefits that flow out of such appointment on par with those who were appointed under the said notification dated 1.1.1997. Therefore, I am of the opinion that the impugned proceedings issued by the respondents dated 11.7.2006 is arbitrary and illegal and liable to be set aside. In the result, the writ petition is allowed and the impugned proceedings dated 11.7.2006 are set aside. Further, the respondents are directed to consider for fixation of pay and seniority of the petitioner on par with those who were appointed as Assistant Engineers (Electrical) in pursuance of the notification dated 1.1.1997. However, the pay of the petitioner shall be fixed notionally from 1.1.2009 on par with the last candidate in the said recruitment and she shall be given last rank of the persons appointed under the notification dated 1.1.1997. It is needless to mention that the petitioner is not entitled for any arrears of salary in pursuance of such fixation of pay. There shall be no order as to costs. _____________ C.V.RAMULU, J Date: 31.12.2008 DA THE HON’BLE SRI JUSTICE C.V.RAMULU W.P.No.16587 of 2006 31.12.2008