THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NOS.357, 358, 628 OF 2003 AND 785 OF 2004 DATED SEPTEMBER, 2011 Between Mr.M.Srinivasulu and others. …Appellants And The A.P.Transco, rep. by its Chairman-cum- Managing Director, Vidyut Soudha, Somajiguda, Hyderabad and others. …Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NOS.357, 358, 628 OF 2003 AND 785 OF 2004 COMMON JUDGMENT (Per Sri Justice Sanjay Kumar) These four appeals, arising out of the common order dated 17.02.2003 in W.P.Nos.4338 and 6645 of 2000, reflect the sorry state of affairs that prevailed in the erstwhile Andhra Pradesh State Electricity Board (APSEB) and continued thereafter in its successor-in-interest, the Transmission Corporation of Andhra Pradesh Limited (APTRANSCO) in the implementation of B.P.Ms.No.36 dated 18.05.1997. Inconsistencies and contradictions galore on the part of the authorities of these organizations not only trifled with the rights of the beneficiaries of this welfare scheme but also generated endless litigation. The appeals on hand are a case in point. Parties shall be referred to as arrayed in the writ petitions. The petitioners and the unofficial respondents in both the writ petitions were aspirants to the posts of Sub-Engineer in the APSEB under B.P.Ms.No.36 dated 18.05.1997. The five petitioners in W.P.No.4338 of 2000 challenged the appointments of respondents 4 to 11 therein to the said posts, while the four petitioners in W.P.No.6645 of 2000 limited their attack to the appointment of the fourth respondent therein. Pertinent to note, the fourth respondent in W.P.No.6645 of 2000 was arrayed as the fourth respondent in W.P.No.4338 of 2000 also. The common ground of challenge in these two writ petitions was that the unofficial respondents had been appointed to the posts of Sub-Engineer (Electrical) though they did not possesses the requisite qualification of a Diploma in Electrical Engineering. In so far as the fourth respondent in the two writ petitions was concerned, an additional ground of attack was that he was junior to the petitioners in terms of the number of man-days that he worked as a contract labour in the erstwhile APSEB. By the common order under appeal, the learned single Judge, having held against the petitioners as regards their challenge on the ground of qualification, agreed with them that the fourth respondent was junior to the petitioners in W.P.No.6645 of 2000 and two of the petitioners in W.P.No.4338 of 2000. The learned Judge accordingly quashed the appointment of the fourth respondent and allowed the writ petitions to that extent, directing the official respondents to consider the case of the petitioners along with other eligible candidates from out of the seniority list for filling up the vacancy that arose consequent to the quashing of the fourth respondent’s appointment. Aggrieved by the above order, the fourth respondent in the writ petitions filed W.A.No.357 of 2003 (against W.P.No.4338 of 2000) and W.A.No.358 of 2003 (against W.P.No.6645 of 2000). The petitioners in the two writ petitions also preferred appeals challenging the rejection of their ground of attack that the appointed respondents did not possess the requisite qualification. The petitioners in W.P.No.4338 of 2000 filed W.A.No.628 of 2003, while the petitioners in W.P.No.6645 of 2000 filed W.A.No.785 of 2004. Heard Sri M.Surender Rao, learned counsel for the fourth respondent in both the writ petitions/appellant in W.A.Nos.357 and 358 of 2003; Sri G.Mukunda Reddy, learned counsel for the petitioners in both the writ petitions/appellants in W.A.Nos.628 of 2003 and 785 of 2004; Sri G.Vidya Sagar, learned counsel for the APTRANSCO; and Sri S.Sriram Reddy, learned counsel for respondents 5 to 11 in W.P.Nos.4338 of 2000/respondents 5 to 11 in W.A.No.628 of 2003. B.P.Ms.No.36 dated 18.05.1997 was issued by the erstwhile APSEB basing on the joint meeting held on 05.03.1996 with its three recognized Unions, wherein it agreed to fill up 50% of the vacancies in the initial recruitment cadres of Junior Lineman/ Junior Plant Attendant/Junior Assistant/Lower Division Clerk/ Typist/Revenue Cashier/Sub-Engineer in its service by considering the cases of ex-casual labour covered by court cases, contract labour and village electricity workers. In so far as generating stations in the APSEB were concerned, the Government of Andhra Pradesh vide G.O.Ms.No.41, Labour Department, dated 23.09.1996 prohibited employment of contract labour in 33 categories. Consequently, B.P.Ms.No.37 dated 18.05.1997 was issued by the APSEB for considering the contract labour working in the 33 abolished categories in various generating stations for appointment by selection against new posts in the generating stations, which were to be sanctioned separately. Separate instructions/clarifications were issued from time to time in respect of these two B.P.Ms. In so far as B.P.Ms.No.36 dated 18.05.1997 is concerned, the APSEB issued working instructions under B.P.Ms.No.271 dated 31.12.1997 for filling up the 50% vacancies existing on 18.05.1997 in the initial recruitment cadres of the identified posts. Eligibility, unit of operation, age, educational qualifications, seniority, rule of reservation and order of preference were dealt with thereunder. In so far as eligibility of contract labour was concerned, B.P.Ms.No.271 specified that the contract labour engaged by a contractor having a valid licence issued by the competent authority under the Contract Labour (Regulation and Abolition) Act, 1970 and working as on 18.05.1997 would be eligible for consideration. It further stated that the clarifications issued in the Board’s Circular Memos dated 28.08.1997 and 13.09.1997 should also be kept in view. The APSEB’s Memo dated 28.08.1997 was issued in the context of B.P.Ms.No.36 and clarified that the labour engaged under chit agreements were not eligible to be considered for appointment thereunder. The later Memo dated 13.09.1997 clarified that only the contract labour supplied by a contractor having a licence issued by a competent authority as enumerated in G.O.Ms.No.840 dated 01.11.1974 would be eligible for consideration for appointment under B.P.Ms.No.36. These two Memos were therefore to be given due effect. Aggrieved by the stipulation that only contract labour engaged by a licenced contractor would be treated as eligible for consideration under B.P.Ms.No.36, several writ petitions were filed before this Court and the said condition was struck down on the ground of discrimination. The petitioners in W.P.Nos.4338 and 6645 of 2000 also filed a writ petition in this regard, viz., W.P.No.24609 of 1998, which was allowed along with other similar cases by a common order dated 30.12.1998. Thereby, the APSEB was directed to consider their cases along with others similarly situated for regular appointment if they fulfill other requirements, without insisting that such contract labour should be engaged by a licensed contractor. Similarly, the fourth respondent in the two writ petitions filed W.P.No.16883 of 1998 and the same was allowed by order dated 21.01.1999, directing the APSEB to consider his case for absorption in service as a Sub-Engineer provided he fulfilled the other conditions in B.P.Ms.No.36. In so far as the ineligibility of contract labour engaged under chit agreements, stipulated in the Memo dated 28.08.1997 is concerned, the same was not subjected to challenge before this Court. It was only under the subsequent Memo of the APTRANSCO dated 11.08.1999 that it was clarified that contract labour engaged by unlicensed contractors under chit agreements may also be considered eligible under B.P.Ms.No.36, provided the number of such contract labour supplied by the particular unlicensed contractor was five or more than five for a given work. This Memo was challenged before this Court in W.P.Nos.18445 and 18792 of 1999 but they were later withdrawn without adjudication on merits. Significantly, the petitioners in W.P.Nos.4338 and 6645 of 2000 did not figure in the aforestated two writ petitions. It is however not in dispute that one petitioner each in W.P.Nos.4338 and 6645 of 2000 (S.Ravisankar Reddy in W.P.No.4338 of 2000 and C.Ramesh Babu in W.P.No.6645 of 2000) were contract labour engaged under chit agreements while the remaining three petitioners in W.P.No.6645 of 2000 were contract labour engaged in part under chit agreements. In so far as educational qualifications are concerned, B.P.Ms.No.271 made it clear that qualifications would be required as per the Service Regulations in force as on the date of the first engagement and that there would be no relaxation of such qualifications. However the issue as to educational qualifications requisite for filling up the posts of Sub- Engineer seems to have evaded clarity. The Chief Engineer/Superintending Engineers of the APTRANSCO sought clarifications in this regard resulting in the APTRANSCO’s Memo dated 03.12.1999. In response to the query whether Civil, Mechanical, Electronics and Telecommunications Diploma or Degree holders could also be considered in addition to Electrical and Electronics branch when all sanctioned Sub-Engineer posts were Electrical, the APTRANSCO clarified therein that action may be taken as per the orders issued in B.P.Ms.No.58 dated 06.05.1993 and B.P.Ms.No.102 dated 11.08.1995. Under B.P.Ms.No.58 dated 06.05.1993, the erstwhile APSEB had issued working instructions for implementing B.P.Ms.No.206 dated 13.07.1992 whereby orders were issued for constituting the category of Sub-Engineers in the supervisory cadre of the APSEB Engineering Service. Thereby, all existing Assistant Supervisors and Sub-Overseers were directed to be re- designated as ‘Sub-Engineers’ in accordance with B.P.Ms.No.206 dated 13.07.1992. The integration of the two categories - Assistant Supervisors and Sub-Overseers - was provided for by classifying the category of Sub- Engineer as category 2 in class III in the Electrical, Civil, Mechanical and Telecommunications Engineering branches of the APSEB Engineering Service. In so far as qualifications were concerned, it was stipulated thereunder that candidates to be appointed as Sub-Engineers either by direct recruitment or by transfer must possess Diploma in Electrical, Mechanical, Civil and Telecommunications Engineering or any other qualification equivalent to that from any of the institutions recognized by the Government of Andhra Pradesh. Pertinent to note, B.P.Ms.No.58 purported to issue working instructions only and specifically stated that necessary amendments to the APSEB Service Regulations governing the post of Sub-Engineer would be issued separately. Thereafter, such amendments were made in exercise of powers conferred by Section 79(c) of the Electricity (Supply) Act, 1948 in B.P.Ms.No.102 dated 11.08.1995. Significantly, the category of Sub-Engineers was not classified under the individual engineering branches as indicated in B.P.Ms.No.58 dated 06.05.1993 but was separately classified under Branch VI pertaining to Draughtsman. It therefore did not form part of any particular specialized engineering branch of the service, be it Electrical, Civil, Mechanical or Telecommunications. In so far as the regularization of contract labour engaged in the 33 abolished categories in generating stations of the APSEB was concerned, separate instructions/clarifications were issued periodically. One such clarification was the APSEB’s Memo dated 14.03.1998. Referring to B.P.Ms.No.312 dated 24.02.1998, issued in the context of B.P.Ms.No.37 dated 18.05.1997, the APSEB clarified that the contract labour having Diploma qualification in any branch would be considered eligible for regular appointment. Pertinent to note, this clarification was issued in the context of B.P.Ms.No.37 and not B.P.Ms.No.36. This is the framework within which the APSEB and thereafter, the APTRANSCO, had to implement the policy of providing regular appointment to its contract labour and other categories of workers. In so far as Cuddapah Circle is concerned, it is the case of the APTRANSCO that as on 18.05.1997, the effective date under B.P.Ms.No.36, forty five vacancies existed in the identified recruitment cadres and 50% thereof, being 23 posts were allotted for recruitment under B.P.Ms.No.36. Eighteen posts were filled up under the proceedings dated 30.06.1999, 02.12.1999 and 22.12.1999. The fourth respondent was appointed under the proceedings dated 30.06.1999 while respondents 5 to 10 in W.P.No.4338 of 2000 along with others and the eleventh respondent therein were appointed under the proceedings dated 02.12.1999 and 22.12.1999 respectively. Out of the remaining five posts, three were reserved for SC/ST while two were filled with ex-casual labour. The appointment order dated 30.06.1999 issued in favour of the fourth respondent demonstrates that he was appointed temporarily as a Sub- Engineer Mechanical (Trainee) against the vacant post of Sub-Engineer Electrical. The appointment order dated 22.12.1999 speaks of the appointment of the eleventh respondent in W.P.No.4338 of 2000 as a Sub- Engineer/Trainee (Civil) against the vacant Sub-Engineer/ Electrical Post while the appointment order dated 02.12.1999 only speaks of appointment to the posts of Sub-Engineer (Trainee). The case of the petitioners is that these appointments were illegal as the appointees did not possess the requisite qualification of a Diploma in Electrical Engineering to be appointed against posts of Sub-Engineer (Electrical). The common order under appeal reflects that that the learned single Judge was not persuaded by this argument, basing upon the APSEB’s Memo dated 14.03.1998 and the order of this Court dated 21.02.2000 in Contempt Case No.1577 of 1999. The said contempt case was filed by some of the petitioners in W.P.No.24609 of 1998, being all the petitioners in W.P.Nos.4338 and 6645 of 2000 except one and others, alleging disobedience to the order dated 29.04.1999 passed in W.P.No.24609 of 1998 directing consideration of their cases. The said contempt case was closed by order dated 21.02.2000 relying upon the APSEB’s Memo dated 14.03.1998 which stated to the effect that contract labour, irrespective of the branch of engineering in which they possess qualification, were to be considered. However, as there was a further allegation as to irregularities in maintaining the seniority of the contract labour, liberty was granted to the petitioners therein to question the same in an appropriate forum. The basis for the order in the contempt case was the APSEB’s Memo dated 14.03.1998 and this Court’s impression that it had application to those covered by B.P.Ms.No.36. This impression was created because the APSEB itself, in its counter filed in the said contempt case, referred to the Memo dated 14.03.1998. However, when two persons claiming under B.P.Ms.No.36 through contract labour category filed W.P.No.11373 of 2000 seeking consideration of their cases under the Memo dated 14.03.1998, the APSEB filed a counter therein stating that the Memo dated 14.03.1998 was intended to absorb and regularize contract labour engaged in generating stations of the Board and that it was not intended for the contract labour engaged in operation circles. It is not in dispute that B.P.Ms.No.36 applies to engagement of contract labour in Operation Circles. Pertinent to note, both the counters were filed by the APSEB in the year 2000. This demonstrates the lack of uniformity in the stand of the APSEB at that point of time. Perusal of the APSEB’s Memo dated 14.03.1998 and B.P.Ms.No.312 dated 24.02.1998, in the context of which it was issued, clearly manifest that the instructions contained therein were with regard to engagement of contract labour against the prohibited categories in the generating stations of the APSEB. In so far as engagement of contract labour in the Operation Circles under B.P.Ms.No.36 is concerned, the clarifications in B.P.Ms.No.58 and the amendments in B.P.Ms.No.102 governed the field. B.P.Ms.No.58 posited as follows in so far as qualifications are concerned: “iv) Qualification: The candidates to be appointed as Sub-Engineers either by direct recruitment or by transfer must possess Diploma in Electrical, Mechanical, Civil and Telecommunication Engineering or any other qualification equivalent to that from any of the Institutions recognized by the Government of Andhra Pradesh.” As pointed out by Sri M.Surender Rao, learned counsel, it is significant to note that there is no mention of the word ‘respectively’ in the above qualification clause. The absence of the same assumes significance in the light of the amendments effected under B.P.Ms.No.102. As matters stand, the APSEB Service Regulations Part-III speak of the constitution of its services under the broad captions - APSEB Personnel and General Services, Engineering Service, Accounts Service, Security Service, Educational Service and Medical Services. In so far as the APSEB Engineering Service is concerned, it is classified under the following branches: “Branch I - Electrical Branch II - Civil Branch III - Mechanical Branch IV - Telecommunications Branch V - Chemists Branch VI - Draughtsman Branch VII - Transport Overseers Branch VIII - Blue Printers” By the amendments effected under B.P.Ms.No.102, the posts of Sub-Engineer were categorized under Branch-VI pertaining to Draughtsman. They therefore did not form part of or fall within the ambit of the specialized engineering branches of Electrical, Civil, Mechanical or Telecommunications. B.P.Ms.No.36 mandates that educational qualifications, as per its Service Regulations, have to be fulfilled by the contract labour to aspire for benefit thereunder. The educational qualifications prescribed in B.P.Ms.No.58 read with the amendments effected in B.P.Ms.No.102 make the position clear. After such amendments, the post of Sub-Engineer is not affiliated to particular branches of specialized engineering services but is categorized separately under Branch VI pertaining to Draughtsman. Therefore, the APSEB ought not to have continued thereafter with notifying the post designating it to a particular Engineering Branch – Sub- Engineer/Electrical, Sub-Engineer/Civil etc. The Sub-Engineer posts/Electrical sanctioned and existing as on 18.05.1997 in Cuddapah Circle were therefore to be treated as Sub-Engineer posts simpliciter and candidates with qualification from all disciplines were thus entitled to be considered. The appointment order dated 02.12.1999 followed this approach and indicated that appointments were made to the posts of Sub-Engineer (Trainee) without specifying a branch of engineering. The APSEB’s Memo dated 14.03.1998, though it had application to B.P.Ms.No.37 and not B.P.Ms.No.36, put things in the proper perspective that candidates, irrespective of the branch of engineering their qualification pertained to, should be considered eligible. The absence of the word ‘respectively’ in B.P.Ms.No.58 gains meaning in this context and exemplifies that as the posts themselves are not classified under specific engineering branches, they would not be designated as such and therefore, the redundancy of the word ‘respectively’. Unfortunately, neither the APSEB nor the APTRANSCO seem to have been consistent in their understanding of this position. The APTRANSCO, under its Memo dated 07.12.1999 issued in the context of B.P.Ms.No.58 dated 06.05.1993 and B.P.Ms.No.102 dated 11.08.1995, read with the APSEB’s Memo dated 03.12.1999, stated that Diploma holder in Civil and Mechanical Engineering may also be considered in addition to Electrical and Electronics branch Diploma holders even if all the sanctioned Sub-Engineer posts were Electrical. Contrary thereto, the Superintending Engineer, Operation Circle, APSEB, Cuddapah, when he wished to undertake direct recruitment to the posts of Sub-Engineer in his Operation Circle, addressed letter dated 06.01.1998 to the Employment Exchange wherein he sought a list of candidates possessing a Diploma in Electrical Engineering, obviously under the impression that a specialization in a particular branch of engineering was required though the posts were indicated merely as Sub- Engineers without further designation. Similar was the stand reflected in the APSEB’s notification published in ‘The Hindu’ newspaper on 28.01.1999, wherein the Sub-Engineer posts were shown with specialization as Sub-Engineer/Electrical, Sub-Engineer/Mechanical and the qualification was indicated as a Diploma in that specialized branch of engineering. The letter dated 11.02.2000 addressed by the Superintending Engineer, Operation Circle, APTRANSCO, Rajahmundry, rejecting candidature under B.P.Ms.No.36 reflects that one of the grounds of rejection was as under: “As per Regulations in vogue the Sub-Engineer posts are to be filled up with the candidates of same discipline. As the vacancies of Sub-Engineer in Operation Circles/ Rajahmundry belong to Electrical Branch and you possessed the Diploma in Mechanical Engineering Branch, your case cannot be considered for appointment against Sub-Engineer (Elecl).” Similar was the ground taken in respect of another candidate under letter dated 11.02.2000, as he possessed a Diploma in Electronics and Communication Engineering branch. The same lack of clarity still continues to prevail as is evident from the letter dated 15.05.2008 addressed by the Southern Power Distribution Company of Andhra Pradesh Limited (APSPDCL), a sister organization of the APTRANCO, rejecting the case of a candidate under B.P.Ms.No.36 dated 18.05.1997. One of the grounds of rejection thereunder is that the candidate possessed the Diploma in Electrical and Communication Engineering and therefore he could not aspire for appointment to the post of Sub-Engineer (Electrical). This is the sad state of affairs prevailing even though nearly a decade and a half has elapsed since the welfare scheme under B.P.Ms.No.36 was put in place. The appointment of K.Obulesu, son of K.Devadanam to the post of Sub-Engineer (Electrical) on compassionate grounds under Memo dated 01.08.2003 indicates that he was so appointed despite the fact that he possessed a Diploma in Electronics and Communication Engineering and not in Electrical Engineering. Similarly, T.Krishna Sumanth, Junior Lineman, M.D.Ramesh Babu (on compassionate grounds), T.Nagaraju (on compassionate grounds) and P.Venkata Krishna Reddy (on compassionate grounds) were appointed to the posts of Sub-Engineer (Electrical), though they possessed Diplomas/Degrees in Mechanical Engineering. Telling facts as to how the respondent organization blew hot and cold. It is however clear that after the amendment of the Service Regulations, the APSEB was not justified in classifying the post of Sub- Engineer with reference to particular branches of engineering, as it formed a separate category by itself under Branch VI pertaining to Draughtsman. Thus, the action of the APSEB in notifying the Sub-Engineer posts with specialization was itself wrong and consequently, the insistence that the aspiring candidates must possess qualification in that specialized branch of engineering was equally fallacious. The requirement of a qualification in particular specialized branches of engineering at the time of recruitment no longer survived after the amendment of the Service Regulations under B.P.Ms.No.102 dated 11.08.1995, as the post itself was no longer affiliated to each specialized branch of engineering service. We are therefore of the opinion that the order of the learned Judge dismissing the writ petitions in so far as this aspect is concerned warrants no interference though for reasons altogether different. A word of caution. We may not be understood to be saying that qualifications are no longer of importance. It is not as if a person with qualification in civil engineering would work in the electrical department merely because the Sub-Engineer’s post is without affiliation to any particular branch. The fourth respondent though he was appointed against a vacancy of Sub-Engineer (Electrical) was admittedly inducted into the Mechanical Department and is stated to have been promoted as an Assistant Engineer (Mechanical) thereafter. All that we are saying is that at the time of recruitment, the post was no longer to be treated as affiliated to an individual engineering branch of the service and could not be notified as such. After appointment of a suitable candidate, depending on the qualification he possessed, he would work in such department and would be absorbed in that particular branch of specialized engineering service upon promotion. The amendments under B.P.Ms.No.102 dated 11.08.1995 in so far as they pertain to promotional avenues provided under Annexure-I make it clear that in the Electrical Engineering Service Branch for the posts of Additional Assistant Engineer under category I(a) of class-III, the feeder category of ‘Sub-Overseers/Assistant Supervisors’ was substituted with the words ‘Sub-Engineers’. Similar is the case with the feeder cadre for the posts of Additional Assistant Engineer in the Telecommunications Engineering Service branch, wherein the words ‘Sub-Overseers/ ASO’ were substituted with the word ‘Sub-Engineer’. However, the qualifications stipulated for promotion thereunder remained unchanged requiring a specialization in the relevant branch of engineering. It is therefore clear that once a person is appointed under B.P.Ms.No.36 to the Sub-Engineer category he would require to be absorbed in that engineering branch in which he possesses qualification for further advent in his career. However, his entry as a Sub-Engineer would not be into any particular Engineering Service Branch but would be in Branch VI pertaining to Draughtsman, independent in itself. As regards the quashing of the appointment of the fourth respondent in both the writ petitions, the common order under appeal reflects that the learned Judge relied upon a seniority list wherein the name M.Srinivasulu, found mention at Sl.No.35. Basing thereon, the learned Judge found that the said person was junior to the petitioners in W.P.No.6645 of 2000 and two of the petitioners in W.P.No.4338 of 2000. Accordingly, the appointment of the fourth respondent was set aside. It is however conceded before us by both sides that the person indicated at Sl.No.35 of the seniority list relied upon by the learned Judge was not the fourth respondent in the two writ petitions. Though the fourth respondent is also M.Srinivasulu, his father’s name is M.Venkataramana while M.Srinivasulu indicated at Sl.No.35 of the seniority list placed before the learned Judge was the son of M.Somanna. The combined seniority list of contract labour