HON’BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE WRIT PETITION No.21013 OF 2000 Between: Ch. Satyanarayan @ Sathaiah and four others … Petitioners AND The A.P. TRANSCO, rep., by its Chairman & Managing Director, Vidyutsoudha, Hyderabad and another … Respondents :: O R D E R :: Counsel for the petitioners : Smt. A. Savitha Reddy Counsel for the respondents : Shri Samineni Kishroe March 21, 2007 In this petition, the petitioners have prayed for quashing the rejection of their claim for appointment as Junior Linemen and also for issue of a mandamus to the respondents to appoint them on that post in accordance with the policy contained in B.P.Ms.No.36, dated 18-5- 1997 and other instructions issued by the erstwhile Andhra Pradesh State Electricity Board (for short, ‘the Board’). In paragraphs 2 and 3 of his affidavit, petitioner No.1 Shri Ch. Satyanarayana @ Sathaiah has averred as under: 2. It is submitted that the petitioners herein have been working as contract labour in the then APSEB since from their initial appointment i.e the 1st petitioner w.e.f. August, 1990, 2nd petitioner from 1-10-91, 3rd petitioner from 1989, 4th petitioner w.e.f. 2-2-91 and 5th petitoner w.e.f. 1-9-90 and while they were working so the contact labour system was abolished in identified 33 categories and the contract labour who ever have been working as on today are entitled for absorption and for that purpose, the then APSEB issued B.P.Ms.No.37, dated 18-5-97 and with regard to who are not covered within the abolished categories were directed to be considered for absorption against the 50% of the existing vacancies as on 18-5-97 vide B.P.Ms.No.36. 3. It is submitted that the vacancies existing as on the above said date were large in number but the respondents have restricted the benefit of consideration only to those who ever have been obtained court orders and as such batch of writ petitions were filed wherein directions were given for interviewing all the eligible candidates without reference to obtaining court orders as such the petitioners were called for interview in pursuance of the order given in W.P. No.12592/99, dated 16-9-99 and even though there are clear existing vacancies, the cases of the petitioners were rejected vide impugned letter No. SE/O/MIK/PO/ Adm/C2/D.No.3036/99, dated 10-11-99 and Letter No.SE/O/MIK/PO/Adm/C2/D.No.3036/99, dated 4-11-99 with a reason that as per the select list the turn of the petitioners has not come up against the 50% vacancies and as such their cases were rejected fro the post of J.L.M.” Shri Ch.Satyanarayana has further averred that even though vacancies are available in the cadre of Lineman, Superintending Engineer, Operation Circle, Medak (hereinafter described as ‘the Superintending Engineer’) arbitrarily rejected their claim. In support of this assertion, the deponent has relied on notification dated 7-7-2000 issued by the respondents for recruitment of Ex-casual labour/Village Electricity Workers and Contract Labours. The petitioners have invoked the doctrine of equality enshrined in Articles 14 and 16 of the Constitution of India and pleaded that the rejection of their claim for appointment as Junior Linemen or on any other suitable post is liable to be nullified, because the reason assigned by respondent No.2 for doing so is legally untenable. In the counter affidavit filed by him, Shri C. Ashok Reddy, Superintending Engineer, Operation Circle, APCPDCL has given the details of vacancies in the cadres of Junior Lineman/ Lower Division Clerk/Typist/Sub-Engineer in Operation Circle, Medak and averred that the petitioners were not selected because they do not possess the prescribed qualifications. I have heard learned counsel for the parties and perused the record. The policy decision taken by the Board to consider ex-casual labour, village electricity worker and contract labour for appointment in the regular establishment envisaged consideration of the candidature of only those who possessed the prescribed qualifications. This is evinced from the contents of B.P.Ms.No.36, dated 18-5-1997, which is reproduced below: ANDHRA PRADESH STATE ELECTRICITY BOARD: VIDYUT SOUDHA ::: HYDERABAD Estt. – APSE BOARD – filling up of 50% existing vacancies in initial recruitment cadres by Ex-casual labour who obtained court orders and Village Electricity Workers – ORDERS – Issued. B.P. (P & G. Per) Ms.No.36, Dated: 18-5-1997 Read the following :- 1 . Minutes of Joint Meeting dated 5-3-96 with the three Recognised Unions. 2. B.P. (P & G. Per) Ms.No.228, dt.27-1-97 3. B.P. (P & G. Per) Ms.No.17, dt.22-4-97 4. Gvoernment’s D.O. Lr.No.21207/Ser.A.2193 E. Deptt., dated 18-5-1997 PROCEEDINGS: In the Joint Meeting held on 5-3-96 with the three recognized unions, it was agreed, inter alia, to fill up 50% of the vacancies of the following initial recruitment cadres on receipt of permission from Government, by considering the cases of Ex-casual labour covered by court cases who have to be given second chance, contract labour and Village Electricity Workers. JLM/JPA/JA/LDC/RC/Typist/Sub-Engineers 2. In the reference second cited, certain guidelines have been issued to consider these cases for appointment against 50% vacancies in the above mentioned categories. 3. The A.P.S.E. Board has re-examined the issue in the light of the orders issued by the Government in the reference last cited and also the developments that took place with reference to the abolition of 33 categories of contract labour in Generating Stations in G.O.Ms.No.41, Labour Department, dt.23-9-96 and decided to consider the cases of Ex-casual labour covered by court cases who have to be given second chance, Village Electricity Workers and Contract Labour not covered by 33 abolished categories in Generating Stations, against 50% of existing vacancies in the above initial recruitment cadres. 4. The A.P.S.E. Board accordingly issues the following orders in supersession of the orders issued in the references 2 and 3rd cited. i) Ex-Casual Labour: The Ex-Casual labour who were already interviewed but failed in the test and given second chance and also obtained interim orders from the High Court for consideration are only eligible for selection for appointment against 50% of the existing vacancies in accordance with the guidelines contained in Memo No.DP/DM-I./A3/1138/95-1, dt.26.9.1985 read with Memo No.D/DM-I/C2/2519/93 dt.14.9.93. ii) Village Electricity Workers: In terms of the agreement dated 5.3.96, the cases of the village Electricity Workers shall be considered for selection and appointment against 50% of the existing vacancies subject to the condition that they are not eligible to derive any benefit for their earlier services and on selection they will be appointed as fresh candidates in A.P.S.E. Board. iii) Contract Labour: The Contract labour other than those engaged in 33 abolished castegories in generating stations shall be considered for selection and appointment against 50% existing vacancies. 5. The guidelines for selection of the candidates from the above categories shall be as follows: a) Age: Age shall be reckoned as per Board’s service regulations in force at the time of their first engagement. There shall be no relaxation of age. b) Educational Qualifications: Educational Qualifications shall be as per Board’s service regulations in force at the time of their first engagement. There shall be no relaxation of educational qualifications or other relevant technical qualifications with are prescribed in the service regulations for such appointment. c) Seniority: The Seniority shall be reckoned based on the total period of service rendered by the respective candidates in the Unit as per muster rolls/wage register or as per the records maintained under the contract labour (Regulation and Abolition) Act, 1970. Separate seniority list shall be prepared for each category as per their eligibility. The continuous period of working shall be taken for purpose of reckoning in seniority in respect of village Electricity workers. d) Rules of Reservation: The rule of reservation as per roster in terms of Reg.22 of A.P.S.E.B. Service Regulation Part-II shall be strictly followed. e) Selection Committee: i. Director personnel. ii. Concerned Chief Engineer from Generating Station/Zone iii. Deputy Secretary (Personnel) iv. Director (Industrial Relations) –Member Convenor. 6. The Selection Committee constituted above shall select the candidates suitable for appointment for each category and communicate the lists to the concerned appointing authorities. They shall appoint the selected candidates depending upon vacancies available duly adopting the rule of reservations in terms of Reg.22 of A.P.S.E. Board Service Regulations Part-II.” The conditions laid down in B.P.Ms.No.36, dated 18-5-1997 were reiterated in B.P. (P & G. Per) Ms.No.271, dated 31-12-1997, which is also reproduced below: ANDHRA PRADESH STATE ELECTRICITY BOARD ABSTRACT Establishment – Andhra Pradesh State Electricity Board – Filling up of 50% of the existing vacancies (as on 18-5-1997) by Ex.Casual Labour/Village Electricity Workers/Contract Labour – Working instructions – Issued. B.P. (P & G. Per) Ms.No.271, Dated: 31-12-1997 Read the following :- 1) B.P. (P & G. Per) Ms.No.36, Dt. 18-5-97. 2) B.P. (P & G. Per) Ms.No.95, Dt.17-7-97. 3) Bd’s Memo No.DIR/DM (IR)/PO-II/A3/131/96, Dt.21-8-97 4) Bd’s Memo No.DP/DIR/DM IR)/PO-II/131/96, Dt.28-8-97 5) Bd’s Memo No.DP/DIR/DM(IR)/PO-II/131/96, Dt.13-9-97. 6) B.P. (P & G. Per) Ms.No.261, Dt. 19-12-1997. … PROCEEDINGS : An agreement was reached on 5-3-96 between the Andhra Pradesh State Electricity Board and the recognised Unions namely A.P.E.E. Union (Regd.No.1104), A.P.S.E.B. Employees Union (Regd.No.327) and Telugunadu Vidyut Karmika Sangam (Regd. No.B- 1245) wherein inter alia it has been agreed to fill up 50% vacancies in initial recruitment cadres by Ex-Casual Labour who obtained Court Orders, Village Electricity Workers and Contract Labour working in other than (33) abolished categories. Mention of this demand was also made in the agreement dated 18-5-97 with the above Unions. 2) In the B.P. first cited, orders were issued for filling up of 50% existing vacancies in initial recruitment cadres by Ex-Casual Labour who obtained Court Orders, Village Electricity Workers and Contract Labour engaged in other than (33) abolished categories of Generating Stations. 3) Interviews have been conducted in Zones/Circles/ Generating Stations for filling up of the 50% existing vacancies as on 18-5-97 of initial recruitment cadres i.e. Jr.Lineman/Jr. Plant Attendant/Jr.Assistant/LDC/Typist/Revenue Cashier/Sub-Engineer by the Selection Committee constituted in the B.P. cited and subsequent amendments thereon. 4) In the B.P. 6th cited, orders have been issued that the Andhra Pradesh State Electricity Board has decided to fill up 50% vacancies in initial recruitment cadre existing as on 18-5-97 by the Ex-Casual Labours/Village Electricity Workers/Contract Labours engaged in other than 33 categories found suitable and selected by the Selection Committees constituted by the Board and it has been further mentioned that necessary working instructions to the competent authority will be issued separately. 5) The Andhra Pradesh State Electricity Board after careful consideration, issues the following working instructions for filling up of 50% vacancies existing as on 18-5-97 in the initial recruitment cadre i.e. Jr.Lineman/Junior Plant Attendant/Junior Assistant/ L.D.C./Revenue Cashier/Typist/Sub-Engineer for which interviews have been conducted with the eligible / suitable candidates form among the Ex.Casual Labour who obtained Court Orders, Village Electricity Workers and Contract Labour not engaged in (33) abolished categories. i) Eligibility :- a ) Ex.Casual Labour: The Ex.Casual Labour who obtained Court Orders on any ground and who satisfy the conditions stipulated in Bd’s Memo No.OSD(P)/DM-I/A3/1138/85-1, Dt.26-8-85 in respect of Operation Circles and Bd’s Memo No.DP/DM-I/A(b)2/1162/88-1, Dated 4-10-88 in respect of T.L.C. Circles and Bd’s Memo No.DP/DM- I/A(b)2/1163/88-1, Dt.5-10-88 in respect of Projects are eligible for consideration. b) Village Electricity Workers: Those who are working as on 18-5-97 as Village Electricity Workers are only eligible for consideration. c ) Contract Labour: The Contracdt Labour engaged by a Contractor having a valid license issued by a competent authority under the Contract Labour (Regulation & Abolition) Act, 1970 and Regulations made therein and working as on 18-5-97 are only eligible for consideration. The clarification issued in Bd’s Circular Memo No.DP/DIR/DM (IR)/POII/131/96, dt.28-8-97 and Memo No.DP/DIR/DM (IR)/PO-II/131/96, Dt.13-9-97 should also be kept in view. ii) Unit of Operation: The candidates of the above categories have to be considered in the respective circles / Generating Stations against 50% vacancies existing as on 18-5-1997. iii) Age: Age shall be reckoned as per the Service Regulations in force as on the date of first engagement. There shall be no relaxation of the age. There are specific directions from the Court to consider the cases of over aged/under aged, such directions may be honoured subject to other eligible criteria and after exhausting any remedy by appeal duly indicating a clause in the appointment order. iv) Educational Qualifications: Educational qualifications shall be as per the Service Regulations in force as on the date of first engagement. There shall be no relaxation of Educational Qualifications or other relevant technical qualifications which are prescribed in the Service Regulations. The Clarification issued in Board’s Memo No.DP/DIR/DM (IR)/PO.II/131/96, dated 13-09-1997 may be adhered to. If there are specific directions by the Court to consider the cases without insisting on the prescribed qualification, such directions may be honoured subject to other eligible criteria and after exhausting any remedy by appeal duly indicating a clause in the appointment order. v) Seniority: The seniority shall be reckoned based on the total period of service rendered by the respective candidates in the unit in respect of Ex-Casual Labour and Village Electricity Workers and as per muster rolls/wage registers or as per the records maintained under the Contract Labour (Regulations & Abolition) Act, 1970 in respect of Contract Labour. Separate Seniority list shall be in respect of Contract Labour. Separate seniority list shall be prepared for each category as per their eligibility. The clarification issued in the Board’s Memo No.DP/DIR/DM (IR)/PO.II/131/96, dt: 13-09-1997 may be adhered to. vi) Rules of Reservation: The Rule of Reservation as per roster in terms of Regulation 22 of Andhra Pradesh State Electricity Board Service Regulations Part.II shall be strictly followed. vii) Order of Preference: (Subject to Eligibility). a) Ex-Casual Labour who obtained Court order and interviewed. b) Village Electricity Workers c) Contract Labour 6) If any Court directions are received after the interviews are conducted to consider the cases of Ex-Casual Labours, Village Electricity Workers and Contract Labour, interviews may be conducted to such cases once in 3 months commencing from January-1998, for consideration against the existing vacancies/ future vacancies as the case may be. 7) In cases where the writ petitioners are not found eligible for selection, speaking orders may be issued indicating the reasons of their ineligibility. Copy of such orders may invariably be marked to standing legal adviser and to the counsels for petitioners. 8) The Chief Engineers are also informed that they should keep in mind the Court directions if any while issuing appointment orders. 9) The Chief Engineers are further requested to follow all other rules and regulations of the Board relating to appointment which are in vogue. 10) All the required formalities may be completed and further orders from Andhra Pradesh State Electricity Board awaited for releasing appointment orders. (BY ORDER AND IN THE NAME OF A.P. STATE ELECTRICITY BOARD) A.K. KUTTY MEMBER SECRETARY” Although the service regulations framed by the Board under Section 79(c) of the Electricity (Supply) Act, 1948 do not specify the qualifications for the post of Lineman, the same will be deemed to have been prescribed vide B.P.Ms.No.1048, dated 23-9-1989 read with Memo No.DP/DM-1/A2/762/94-1, dated 23-10-1994. For the sake of reference, the relevant portions of B.P.Ms.No.1048, dated 23-09-1989 and Memo dated 23-10-1994 are reproduced below: “B.P.Ms.No. 1048: Proceedings: As per the existing O.S.S. Non-Statutory Rules the following are the qualifications prescribed for the post of Helper. i) Ability to read and write. ii) One year practical experience either in O&M/Construction works. The above qualifications were prescribed in the year 1958 and continued as such till todate. But the time of prescribing the above qualifications there were no qualified candidates. But, in view of the above circumstances, several persons with academic qualifications and technical qualifications are available now. It is therefore considered desirable to prescribe higher qualifications for direct recruitment of Helpers. The A.P. State Electricity Board after careful consideration prescribes the following qualifications for the post of Helpers. i) A pass in SSLC/SSC/10th class; ii) A pass in ITI preferably with Electrician Trade or iii) Vocational course in Electrical trade. These orders will come into effect from the date of issue.” Memo No.DP/DM-1/A2/762/94-1: The issue regarding re-designation of Helper is under consideration of the Board since long back. 2. After careful consideration the APSE Board directs that posts of ‘Helper’ in O&M/Construction establishment shall be redesignated as indicated below: i) ‘Junior Lineman’ – in Operation circles/TLC/Construction circles etc; ii) ‘Junior Plant Attendent’ – in Generating Stations/Projects. 3. However there shall be no change in functions and duties, service conditions etc; and these orders are only mere redesignation of the posts. 4. These orders shall come into force with immediate effect.” The petitioners have neither challenged the vires of B.P.Ms.No.1048, dated 23-9-1989 or Memo dated 23-10-1994 nor they have prayed for quashing the same. Therefore, their eligibility to be appointed as Junior Lineman will have to be determined with reference to the above reproduced qualifications. In the affidavit filed by him, Shri C. Ashok Reddy, Superintending Engineer, Operation Circle, Medak has given the particulars of total number of vacancies as also the vacancies which could be filled in terms of the policy contained in B.P.Ms.No.36, dated 18-5-1997. The same are as under: 100% 50% 1. JLM 198 99 2. LDC 132 66 3. Typist 10 5 4. Sub-Engineer 28 14 Shri Ashok Reddy has also specified the qualifications possessed by each of the five petitioners and the period during which they worked as contract labour and then averred that none of them possess the qualification of ITI, Electrician Trade, which is must for appointment on the post of Junior Lineman. For the sake of reference, the relevant extracts of the affidavit of Shri C. Ashok Reddy are reproduced below: “The first petitioner has submitted contractor’s Service Certificate of M/s.Balaji Electrical Works, Siddipet, it has mentioned in the certificate that the petitioner is working as a H.V. Winding in their organization for the period from 15-08-1990 to till the date but the date of relief has not mentioned, the certificate has been signed by the ADE/TRE/SPM/Siddipet. The petitioner has passed the SSC qualification and belongs to BC-D and he has been served Speaking Orders vide this office Lr.No.SE/OP/ MDK/PO/ADM/C2/D.No.3024, dt.10-11-1999. The second petitioner has submitted contractor’s Service Certificate of M/s.All and Sons Electrical Engineering Company, it has mentioned in the certificate that the petitioner is worked as Electrical Transformers repairing in their organization for the period from 1989 to 30-10-1995, the certificate has not signed by any officials of A.P. Transco. The petitioner has passed the SSC qualification and belongs to BC-A and he has been served with Speaking Orders vide this office Lr.No.SE/OP/MDK/PO/ADM/C2/D.No.3036, dt.10-11-1999. The third petitioner has submitted contractor’s Service Certificate of M/s.All and Sons Electrical Engineering Company, it has mentioned in the certificate that the petitioner is worked as Electrical Transformers repairing in their organization for the period from 1989 to 10-2-1995, the certificate has not signed by any officials of A.P. Transco. The petitioner has passed the SSC qualification and belongs to OC and he has been served with Speaking Orders vide this office Lr.No.SE/OP/MDK/PO/ADM/C2/D.No.3029, dt.10-11-1999. The fourth petitioner has submitted contractor’s Service Certificate of M/s.Laxmi Electrical and Mechanical Works, Siddipet, it has mentioned in the certificate that the petitioner is worked as Electrical Transformer assembling and H.V. Winder in their organization for the period from 02-02-1991 to 01-02- 1999, the certificate has not signed by any officials of A.P. Transco. The petitioner has passed the 7th class qualification and belongs to BC-B and he has been served with Speaking Orders vide this office Lr.No.SE/OP/MDK/PO/ADM/C2/D.No.2090,dt.04-11-1999. The fifth petitioner has submitted contractor’s Service Certificate of M/s.Laxmi Electrical and Mechanical Works, Siddipet, it has mentioned in the certificate that the petitioner is worked as Electrical Transformer L.V. Winder in their organization for the period from 01-01-1992 to 01-02-1999, the certificate has not signed by any officials of A.P. Transco. The petitioner has passed the SSC qualification and belongs to OC and he has been served with Speaking Orders vide this office Lr.No.SE/OP/MDK/ PO/ADM/C2/D.No.2097,dt.04-11-1999. The petitioners were applied for the post of JLM, it is observed in their applications filled by the individuals, one of the petitioner has passed up to 7th class and remaining other 4 petitioners were passed SSC qualification, which is not sufficient qualification to the post of JLM and they are not eligible for the other vacant posts i.e. LDC/Typist/Sub-Engineer, as the JLM vacancies are filled up with Ex-Casual labours and Village Electricity Workers. The petitioners are belongs to contract labours, and they have not possessed the qualification of ITI Electrical Trade. Hence, their cases could not be considered for the post of JLM as the turn for appointment against 50% existing vacancies has not come up as all the vacancies are filled up with higher merit of man days and as per rule of reservation. As per the results issued by the Chief Engineer, Elecy, Hyderabad Zone/Hyderabad this office has prepared merit list among the qualified and eligible ex-casual labours and Village Electricity Workers who were interviewed on 5th and 6th of November 97 for 150 candidates higher merits 99 candidates have been considered for appointment for the post of Junior Lineman among ex-casual labours and Village Electricity Workers and all the 50% of JLM posts were filled up. Further, it is to submit that one qualified Village Electricity Worker has been considered for the post of Typist against 5 posts and 2 Nos. of contract labours are filled up now there are 2 Nos. Typists posts are vacant and 3 Nos. Sub-Engineers posts are vacant due to non-availability of qualified candidates among the all candidates who were interviewed on 5th and 6th November, 1997 & up to 03-02-2003.” The petitioners have neither filed rejoinder to controvert the averments contained in the affidavit of Shri C. Ashok Reddy nor they have produced any evidence to show that they possess the qualification of ITI in Electrical Trade and that as on 18-5-1997 or at the time of consideration of their candidature, posts in cadres other than Junior Lineman/Lower Division Clerk/Typist and Sub-Engineer were available in Operation Circle, Medak. Therefore, it is not possible to find any fault with the decision of the Superintending Engineer not to entertain the candidature of the petitioners for the post of Junior Lineman or appoint them on any other posts. A careful reading of the instructions issued vide B.P.Ms.No.271, dated 31-12-1997 makes it clear that vacancies in terms of the policy contained in B.P.Ms.No.36, dated 18-5-1997 were to be filled circle wise from among the persons who possessed educational and technical qualifications. Since none of the petitioners possess the qualifications prescribed for the post of Junior Lineman and posts in any cadre other than those of Junior Lineman/Lower Division Clerk/Typist/Sub-Engineer, the rejection of their candidature cannot be dubbed as arbitrary or violative of their right to equality guaranteed under Articles 14 and 16 of the Constitution. At the cost of repetition, I consider it proper to reiterate that the policy contained in B.P.Ms.No.36, dated 18.05.1997 envisages consideration of the candidature of only those who fulfill the prescribed qualifications, and, as none of the petitioners possesses the qualifications prescribed by the Board, the refusal of respondent No.2 to entertain their candidature for appointment as Junior Lineman cannot be termed as illegal. I n State of M.P. v. Shyama Pardhi[1], the Supreme Court considered the question whether termination of the service of an employee who does not possess the qualifications prescribed for appointment as Auxiliary Nurse-cum-Midwife can be declared illegal on the ground of violation of the rules of natural justice and answered the same in negative by making the following observations: “It is now an admitted fact across the Bar that the respondents had not possessed the prerequisite qualification, namely, 10+2 with Physics, Chemistry and Biology as subjects. The Rules specifically provide that qualification as a condition for appointment to the post of ANM. Since prescribed qualifications had not been satisfied, the initial selection to undergo training is per se illegal. Later appointments thereof are in violation of the statutory rules. The Tribunal, therefore, was not right in directing the reinstatement of the respondents. The question or violation of the principles of natural justice does not arise…………….” I n Pabitra Mohan Dash v. State