THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.Nos. 1601 OF 2007 & 8516 OF 2008 COMMON ORDER: These two writ petitions can be dealt with together and decided, for they arise in a common set of fact situation. The petitioners in both the cases are the same. They are working as Deputy Executive Engineers with the respondent – Andhra Pradesh State Police Housing Corporation (henceforth for brevity referred to as ‘the Corporation’). It is asserted that both the petitioners were promoted as Deputy Executive Engineers with effect from 02-01-1995. Since, there are vacancies in the cadre of Executive Engineer and they require to fill up these vacancies for the purpose of attending to the duties and responsibilities of Executive Engineer, both the petitioners came to be promoted as Executive Engineers on temporary basis on 10-01-2007 by the Corporation. It was made clear to the petitioners that they are liable for reversion without assigning any reasons therefor. The State Government has taken a policy decision to implement the principles of reservation in favour of Scheduled Castes and Scheduled Tribes even in the matter of recruitment by promotion. Thus, certain posts are required to be filled in by the members belonging to Scheduled Castes and Scheduled Tribes, provided their representation in the higher echelons of the service were found to be inadequate when compared to the percentage of vacancies earmarked for the respective social segments. This policy decision, according to the Corporation, was adopted by it. Therefore, it is imperative for the Corporation to take the cadre strength of Executive Engineers into account and consider whether there are adequate number of Scheduled Caste and Scheduled Tribe candidates working there against. If adequate number of Scheduled Caste and Scheduled Tribe candidates are not so functioning, the Corporation is required to fill up the available vacancies only with the members belonging to the Scheduled Castes and Scheduled Tribes, as the case may be. Thus, the Corporation is required to make good the deficiency and ensure that in the cadre strength of Executive Engineers there are adequate number of officers belonging to the Scheduled Castes and Scheduled Tribes. This far, there is no difficulty. However, adequate number of Scheduled Caste and Scheduled Tribe candidates possessing the necessary eligibility criteria, namely, the requisite length of service, are not available. But nonetheless, through office order dated 24-01-2007, the writ petitioners were sought to be reverted from the post of Executive Engineer back as Deputy Executive Engineer. That order dated 24-01-2007 gave rise to institution of W.P.No.1601 of 2007. At that stage, the Corporation has taken up the issue with the State Government through its letter dated 16-08-2007. The State Government, after noticing the fact that there are no eligible Deputy Executive Engineers belonging to Scheduled Castes and Scheduled Tribes to be considered for promotion as Executive Engineer, passed orders through their G.O.Ms.No.44, Home (SER.III/A) Department, dated 07- 03-2008, accepting the proposal of the Corporation to give promotions to two of the Deputy Executive Engineers in the service of the Corporation as Executive Engineers in relaxation of the relevant regulation of the Corporation. The State Government has taken note of the fact that roaster points 7 and 8 are needed to be filled in by the members belonging to Scheduled Castes and Scheduled Tribes respectively. Therefore, they have approved the promotion of Sri B. Sanjay Sunil Kumar, member belonging to Scheduled Castes and Sri T.Eswar, member belonging to Scheduled Tribe. Since, they do not possess the necessary length of service as Deputy Executive Engineers to render them eligible for promotion to the post of Executive Engineer, the State Government has relaxed the rigor of the rule to that extent. The orders passed by the State, through their G.O.Ms.No.44, dated 07-03-2008, gave rise to institution of W.P.No.8516 of 2008. I have heard Sri G. Vidya Sagar, learned counsel for the petitioners, the learned Standing Counsel for the Corporation, the learned Special Government Pleader for Services-I on behalf of the State and Sri Nandigam Krishna Rao, learned counsel for the contesting respondents 3 and 4. The learned counsel for the petitioners would submit that when once eligible members belonging to Scheduled Castes and Scheduled Tribes are not available, the question of keeping the post of Executive Engineer unfilled would not arise. If there are eligible and suitable members belonging to Scheduled Castes and Scheduled Tribes available, then alone their cases are liable to be considered for promotion. Posts of Executive Engineer cannot be kept unfilled and vacant till such time candidates belonging to Scheduled Castes and Scheduled Tribes do become qualified and then promote them. The order of promotion granted in favour of the petitioners on 10-01-2007 though tries to describe their promotion as such to have been issued on a temporary basis, but nonetheless, the same should be treated as a regular one. Hence, the order of reversion dated 24-01-2007 in anticipation of arrival of members belonging to Scheduled Castes and Scheduled Tribes, as well as the orders of the State Government contained in their G.O.Ms.No.44, dated 07-03-2008, granting relaxation, are both bad in law. According to the learned counsel for the petitioners, the State Government lacks power or competence to grant relaxation of rigor of the rule framed by the Corporation. The Government has no superintendence power and the regulations framed by the Corporation have not vested any such power in the hands of the State Government to relax the rigor of the regulations framed by it. Therefore, for sheer want of power and competence, the orders passed by the State Government deserve to be set aside. Per contra, the learned Government Pleader, whose submissions have been adopted by the learned Standing Counsel for the Corporation, would urge that the Corporation being a State for all practical purposes is under an obligation to make an assessment of the adequacy of representation of members belonging to Scheduled Castes and Scheduled Tribes in each and every cadre. The policy of the State is to encourage the members belonging to the socially disadvantaged segments to progress and achieve a particular status, so that their lot can be improved. To achieve this objective, even while posts are being filled in 100 % by way of promotion, vacancies are earmarked to be filled in by the members belonging to Scheduled Castes and Scheduled Tribes. This policy of the State to encourage members belonging to the socially disadvantaged segments can be achieved only if such candidates are promoted to higher echelons of service and thus, allow them to participate in the functioning of the Corporation at a higher level. They will be able to gain experience and in that process, improve upon their standard and reach a stage of mathematical equality with the rest of the members of the society. Sri Nandigam Krishna Rao propounds that different criteria and considerations would weigh in the matter of promotion of Scheduled Castes and Scheduled Tribes and the normal method of reckoning the eligibility criteria, which is adopted for the rest of the members of the society, shall not be the guiding factor when it comes to Scheduled Caste and Scheduled Tribe candidates being considered for such promotions. He submits that unless an opportunity is provided by setting apart and reserving certain slots, members belonging to Scheduled Castes and Scheduled Tribes will find it extremely difficult to get promoted by sheer length of service alone. For achieving the larger social good, the Corporation must be conferred with the necessary power of relaxation of the rigor of the regulations. Further, Sri Nandigam Krishna Rao tried to demonstrate that relaxation being granted in favour of such candidates is not altogether a new concept and such power is made available only to be used in cases where it is so required. Having given my anxious consideration to the rival submissions, what emerges from the fact situation on record is this: posts of Executive Engineer are lying vacant. The Corporation has been undertaking execution of several projects and works. It requires manpower. Unless qualified persons are promoted from the rank of Deputy Executive Engineer, the posts of Executive Engineer will remain vacant and unfilled, thus causing a problem for completion of the various projects and works on time. However, pursuant to the policy of the State, which also binds the respondent Corporation, members belonging to Scheduled Castes and Scheduled Tribes are required to be promoted on out-of-turn basis or by reserving the slots exclusively for such candidates only, which will ensure a proper representation for the socially disadvantaged segments and would ultimately help in reducing the gap and disparities between the various segments of the society. The integration of the society will become achievable much faster. That will pave the way for removal of inadequacies and inequalities in the society. Providing opportunities in favour of Scheduled Castes and Scheduled Tribes exclusively would go a long way in helping these segments to tide over the difficulties historically experienced by them for want of sheer experience and opportunity. Therefore, the contention canvassed by Sri Naveen Rao, the learned Government Pleader as well as Sri Nandigam Krishna Rao in this regard cannot be faulted. The Corporation shall justifiably be required to keep certain slots open to be exclusively filled in with the members belonging to Scheduled Castes and Scheduled Tribes in the cadre of Executive Engineer. But however, if suitable and eligible candidates belonging to Scheduled Castes and Scheduled Tribes in the cadre / rank of Deputy Executive Engineer are not available in the service of the Corporation, can the post of Executive Engineer be kept unfilled for want of them? There are two ways to mitigate the likely hardship that will be faced by the Corporation, if the posts are left unfilled. Undoubtedly, the post of Executive Engineer occupies a pivotal role in the matter of execution of various works. He is not only a check-measuring authority, but he is also the sanctioning and supervisory authority. Therefore, the post of Executive Engineer cannot be kept vacant and unfilled for long periods. In such situation, the Corporation is justified in resorting to making temporary promotions of candidates other than Scheduled Castes and Scheduled Tribes so that such temporarily promoted candidates can be replaced as soon as members belonging to Scheduled Castes and Scheduled Tribes get qualified and become available for such promotions. This will help the Corporation stand up to the tight timeframe limits within which the projects have to be accomplished by it and also simultaneously allowing otherwise suitable and qualified persons to earn their promotions. However, no provision in the service regulation framed by the Corporation is shown or demonstrated by the learned counsel appearing for the respondents to trace the power of the State Government to relax the rigor of the rule. The Government may have been the authority, which created the Corporation, it may also be the authority, which makes available the funds for executing various works undertaken by the Corporation. The Corporation per se be made accountable and answerable to the Government. These factors alone cannot empower the State Government from exercising power of relaxation of the rigor of the service rules framed by the Corporation. The Corporation is a corporate entity having a soul of its own, which was required to act through its Board of Directors. It may have been following and giving effect to all policy decisions of the State. That is altogether a different aspect of the matter. The State Government clearly has no power to relax the rigor of a rule or regulation framed by the Corporation. Such administrative control is not vested in the hands of the Government. The Corporation has Board of Directors of its own and it is that Board, which is required to apply its mind to all relevant factors and take an appropriate decision. But, the State Government cannot thrust its opinion or substitute its opinion to that of the Board of Directors. Therefore, I hold that the Government has no competence to issue orders of relaxation of regulations framed by the Corporation and hence, quash the orders passed by it containing in their G.O.Ms.No.44, dated 07-03-2008. The orders passed by the State Government are set aside, however, this shall not come in the way of the Corporation to consider the issue of grant of relaxation of the rigor of the rule in favour of the unofficial respondents. It is open to the Corporation to take appropriate decision in the matter. Till such time an appropriate decision is taken by the Board of Directors of the Corporation, the posts of Executive Engineer may not be kept unfilled and vacant. That may not be an appropriate course to be adopted in the larger public interest. Since, there is no dispute that the petitioners are the senior-most candidates, the order of reversion passed against them on 24-01-2007, is set aside, so as to enable them to continue on temporary basis as Executive Engineers. With this, both the writ petitions are allowed to the extent indicated supra. No costs. --------------------------------- Nooty Ramamohana Rao, J mrk 25th April 2011