WP/16587/2006 of Uma Devi Bethini, Vs The A.P. Transco, on 31 December 2008

ORDER:

This writ petition is filed seeking a Mandamus declaring theproceedings dated 11.7.2006 issued by the second respondent asarbitrary, illegal and violative of provisions of Articles 14 and 16 of theConstitution of India and consequently direct the respondents toundertake a review of the candidates appointed under notification dated1.1.1997 as per 33 1/3% women reservation policy and refix seniority asper women’s roster and fix the pay of the petitioner on par with AssistantEngineers (Electrical) appointed under the notification dated 1.1.1997.

According to the petitioner, she is a graduate in Engineering inElectrical and Electronics. The APSEB i.e. the predecessor ofrespondent herein had issued a notification dated 1.1.1997 for recruitmentof 131 posts of Assistant Engineers (Electrical). The qualificationprescribed for the said post is a Bachelor Degree in ElectricalEngineering. Since the petitioner was qualified, she applied for the postof Assistant Engineers (Electrical) pursuant to the notification dated1.1.1997. She was successful in the written test as well as interview andsecured required marks, however she was not selected and notappointed. On enquiries, she came to know that APSEB while makingappointments pursuant to the notification dated 1.1.1997 did not providereservation to women candidates to the extent of 33 1/3% which wasmandatory. Therefore she had filed W.P.No.26806 of 1997. The said writpetition 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 orderdated 8.10.2001. The order reads as under:

“In the aforementioned situation, although rule of

“In the aforementioned situation, although rule of reservation as laid down therein would be applicable to the 2[nd]respondent but having regard to the fact that those who havebeen appointed having not been impleaded as a party in thisappeal, they cannot be displaced so as to direct accommodationto the appellant. Further more, in the meanwhile, the State hasenacted A.P. State Electricity Reforms Act, 1998. By reason ofsuch an Act, power generation, transmission and distributionhave been reorganized by entrusting those functions tocommercially compact and viable entities with managerialfunction and autonomy. Transmission of power has beenassigned to A.P. Transmission Corporation, Hyderabad whereasgeneration has been entrusted to another corporate body.

It has not been disclosed before this Court as towhether all the 131 candidates who were recruited are workingunder one or the other corporations.

However, if there exists any vacancy out of thenotified vacancies, the concerned company may consider thedesirability of appointing the appellant herein or any other personwho is similarly situate if they would otherwise come within thepurview of Regulation 22A of the regulation as interpreted by theApex Court in P.B.Vijay Kumar’s case (supra)”.

Aggrieved thereby, respondents preferred Special Leave Petitionbefore the Apex Court in S.L.P.No.1840 of 2002, which was dismissed byorder dated 11.2.2002. The order reads as under:

“We are not inclined to interfere with the impugned order atthe behest of the employer as, in our view, the employer is notaggrieved by any direction or observation made by the HighCourt.

The Special Leave Petition accordingly stands dismissed”.

Thus, the petitioner made a representation on 29.10.2001requesting the respondents to consider her case in terms of the directionsof the Division Bench in W.A.No.1038 of 2000. In spite of the saidrepresentation, the respondents did not consider the case of thepetitioner, therefore she was constrained to file Contempt Case No.953 of2002 for not complying with the directions in W.A.No.1038 of 2000. Therespondents 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 thepetitioner cannot be appointed as Assistant Engineer (Electrical) as thereare no vacancies pursuant to the notification dated 1.1.1997, since “all the67 OC candidates recruited against the notified vacancies have joined. Thus, there are no vacancies left over from 67 AE(Elec) vacanciesnotified”. A similar false affidavit was filed in C.C.No.953 of 2000deliberately with an intent to mislead this Court stating that 5 OCvacancies out of 131 notified were filled along with 282 posts in respect ofwhich appointment orders were issued on 16.9.1998. Aggrieved by theletter dated 12.7.2002 rejecting petitioner’s case for appointment by givinga false picture about the availability of vacancies, petitioner filed WritPetition No.370 of 2003 seeking to declare the action of the respondentsin issuing letter dated 12.7.2002 as arbitrary and illegal and consequentlyto appoint the petitioner as Assistant Engineer (Electrical). Though therewere 5 vacancies in the OC category under the notification dated1.1.1997, the respondents only to deny the petitioner an appointment,rejected her case stating that there are no vacancies under the notificationdated 1.1.1997. By order dated 19.1.2004, the above writ petition wasallowed. The operative portion of the said judgment reads as under:

“The entire file relating to the recruitment of AssistantEngineers (Electrical) pursuant to the notification dated 1.1.1997and 18.6.1997 is placed before this Court. I have scannedthrough the same to verify as to how and in what manner the said5 OC vacancies were carried forward. Absolutely, there is nomention and no decision taken by any authority as to the carryforward of the 5 OC vacancies to the next recruitment either byway of a corrigendum to the notification dated 18.6.1997 or anyauthenticated decision to show that these 10 vacancies including5 OC vacancies were added to the 300 vacancies except thestory fabricated by the respondents.

Sri S.Ravindranath, learned standing counsel appearing forthe respondents asserted and reasserted that this Court cannotunsettle the settled position in the judgment dated 8.10.2001 inW.A.No.1038 of 2000 and also the decision in Contempt caseNo.953 of 2002 dated 29.11.2002. Learned counsel was not able to explain for the repeated questions from the Court that as tohow he would explain that those of 5 OC vacancies were carriedforward to the second notification along with 300 vacancies. Infact, even after the filling up of the vacancies in pursuance of thesecond notification, there were vacancies. There was no bar forthe respondents to appoint the petitioner atleast against thosevacancies. From the record, it is seen that there is no specificendorsement of carrying forward those 5 OC vacancies to thepurported second notification dated 18.6.1997. Naturally thatcould not be, since the selection process under the firstnotification was completed and appointment orders were issuedon 27.9.1997 and as stated above only after 20.10.1997 theunfilled vacancies, if any, came to be identified.

On what basis, the said affidavit was filed before this Courtin the contempt case is not known. This also shows that those 5OC vacancies relating to the first notification, which weresupposed to be carried forward, arose only after 20.10.1997 andthey could not have been part and parcel of 300 vacanciesnotified on 18.6.1997. It is curious to note that on an earlieroccasion, after verifying the records, the learned standingcounsel appearing for the respondents fairly conceded that fromthe records he was not able to make out on what basis suchstatement was made in the earlier litigation before this Court or inthis case. The learned standing counsel was asked to obtainsworn statements from the concerned officers explaining whatwas the basis for stating that the 5 OC vacancies of the firstnotification were filled up under the second notification and whatwas the record relied upon in support of such statement. In thatregard, one G.Patanjali Rao, son of late Venkateswara Rao,Chief General Manager (HRD & Trg) of the respondentCorporation has filed an affidavit sworn on 26.12.2003, in which,he did not say any thing as to how such an affidavit was filedbefore the Court stating that the 5 vacancies of the firstnotification were brought to the second notification and were filledup. He tried to improve the case, at this stage, saying that thosevacancies were also filled up by the time the writ appeal wasdisposed of. This affidavit also does not disclose as to on whatbasis the earlier affidavits were filed by the concerned officers asto filling up of the 5 vacancies and what was the record on whichbasis, the affidavits were filed earlier. In this affidavit also, therespondents sought to divert the attention of this Court byimproving their stand taken in the contempt proceedings. In fact,as seen from the above, the case of the petitioner was rejectedonly on the basis that those 5 OC vacancies were carriedforward and notified in the second notification and were filled up.

For carrying forward, the respondents are governed by theprocedure prescribed in G.O.Ms.No.81 dated 22.2.1997, whichwas adopted by A.P. Transco in B.P. (P&G Per) Ms.No.100dated 28.7.1997. It is pertinent to mention that even before thesaid Governmental Order was adopted, the second notificationdated 18.6.1997 was issued. The remaining vacancies in the firstnotification were supposed to be carried forward and re-notified. Such a procedure was not adopted and in fact, a false statementwas made before this Court in the affidavit filed in C.C.No.953 of2002 stating that those 5 vacancies were carried forward to thesecond notification and were filled up. This statement, accordingto me, was made by the respondent-Corporation only to deny theemployment of a woman candidate, who brought the illegalitycommitted by the respondents to the notice of this Court. It isalso not the case of the respondents that in pursuance of thesecond notification 300+5 vacancies were filled up. I am of theopinion that those 5 vacancies under the first notification dated1.1.1997 were not notified and as such, they were not filledup.

For the aforesaid reasons, the writ petition is allowed andthe impugned letter dated 12.7.2002 of the Joint ManagingDirector (HRD), A.P. Transco, Hyderabad is set aside. Therespondents are directed to reconsider the candidature of thepetitioner for being appointed as Assistant Engineer (Electrical)against the said 5 unfilled vacancies under the notification dated1.1.997. No order as to costs”.

According to the petitioner, though she was appointed throughproceedings dated 8.9.2004 as Assistant Engineer (Electrical)andworking at A.P. Transco, the respondents have not fixed her pay andseniority on par with other those who were appointed under notificationdated 1.1.1997.

A detailed counter affidavit has been filed by the respondentsdenying the allegations made by the petitioner and stating that anotification dated 1.1.1997 was issued calling for applications for filling upof 131 Assistant Engineers (Electrical) posts by direct recruitment, out ofwhich, 67 posts were earmarked for open category. There was no rule ofreservation in favour of women candidates. The writ petitioner applied forthe 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 ofwomen. The written examination was conducted on 20.4.1997 andthereafter interviews were held in July 1997. The writ petitioner attendedthe written examination as well as interview, however, she was notselected for the post of A.E. Electrical since she secured 65.83 marks onlywhich are less than the last open category (OC) candidate appointed. The last O.C. candidate appointed secured 68.17 marks. The directiongiven by this Court in W.P.No.370 of 2003 is to reconsider thecandidature of the writ petitioner for being appointed as AssistantEngineer (Electrical) against the 5 unfilled vacancies. On appointment tothe post, an employee would be placed in the minimum of the pay scaleattached to the post. Therefore, petitioner is not entitled for fixation of payon par with the employees who were appointed in pursuance of thenotification dated 1.1.1997. The seniority of an employee is reckoned interms of the then APSEB Regulations as adopted by the A.P. Transco. Interms of Regulation 26 of the Service Regulation Part II, seniority of aperson shall be determined by the date of first appointment. Thepetitioner was appointed to the post by proceedings dated 8.9.2004,therefore she is entitled to reckon the seniority only from that date ofjoining the post. This Court in W.P.No.370 of 2003 directed to considerpetitioner’s case in one of the 5 unfilled vacancies. There was no specificdirection to extend seniority and other consequential benefits. Therepresentation of the petitioner dated 2.6.2005 was considered and thesame was rejected by proceedings dated 11.7.2006. The reasonsassigned in proceedings dated 11.7.2006 are perfectly legal and justified. The petitioner has no right to claim fixation of pay and seniority on parwith the persons appointed under notification dated 1.1.1997.

The learned senior counsel Sri M.R.K.Chowdary appearing forpetitioner strenuously contended that this Court in unequivocal termsdirected the respondents to reconsider the candidature of the petitioner forbeing appointed as Assistant Engineer (Electrical) against the 5 unfilled vacancies under notification dated 1.1.1997. Therefore, petitioner rightshave been concretized and concluded in the judgment in W.P.No.370 of2003 dated 19.1.2004. It is not open for the respondents to deny thepetitioner seniority and pay on par with those who were appointed inpursuance of the notification dated 1.1.1997. Since the petitioner hasapproached this Court more than once and filed contempt case, therespondents bore grudge against her and declared that she is not entitledto claim seniority on par with those who were appointed as AssistantEngineers (Electrical) under the notification dated 1.1.1997. Thisapproach made by the respondents is arbitrary and illegal.

I have given my earnest consideration to the respective submissionsmade by the learned counsel on either side and perused the impugnedorder and other material made available on record.

At the outset, it may be necessary to notice the operative portion ofthe judgment made in W.P.No.370 of 2003 dated 19.1.2004 – “For theabove reasons, the writ petition is allowed and impugned letter dated12.7.2002 of the Joint Managing Director (HRD), A.P. Transco,Hyderabad is set aside. The respondents are directed to reconsiderthe candidature of the petitioner for being appointed as AssistantEngineer (Electrical) against the said 5 unfilled vacancies under thenotification dated 1.1.997”. Further as noticed from the extract of theabove judgment, it is clear that when W.P.No.26806 of 1997 andW.A.No.1038 of 2000 and Contempt Case No.953 of 2002 was filedbefore this Court, a false affidavit was filed and the truth came out onlyafter examining the original record produced by the respondents. Underthose circumstances, the respondents were directed to reconsider thecase of the petitioner for being appointed as Assistant Engineer(Electrical) under 5 unfilled vacancies in pursuance of the notificationdated 1.1.1997. Therefore, at this length of time, it is not available for therespondents to say that the petitioner was not appointed against thevacancies notified in pursuance of the notification dated 1.1.1997 and thus, petitioner is not entitled for fixation of her pay and seniority on parwith those who were appointed under the notification dated 1.1.1997.

It is not a charity, which is claimed by the petitioner. She foughttwo rounds of litigation before this Court, which concluded before theApex Court. When a citizen gets a right of being appointed after fightingthe battle before the Courts of Law, the relief sought for must be relatableto the date on which his/her right to be considered arose. Thoughvarious other aspects of earlier concluded litigation was sought to beprojected in order to justify the impugned order, I am of the opinion thatthere is no necessity of going into such proceedings. Since the rights ofthe petitioner were settled in the earlier litigation itself, the only questionarises whether the petitioner is entitled for fixation of pay and seniority onpar with those who were appointed under the notification dated1.1.1997.Since the petitioner has succeeded before this Court after tworounds of litigation and when there was a clear direction by this Court thatthe candidature of the petitioner be reconsidered for being appointed asAssistant Engineer (Electrical) against 5 unfilled vacancies under thenotification dated 1.1.1997, she is automatically entitled for all the benefitsthat flow out of such appointment on par with those who were appointedunder the said notification dated 1.1.1997. Therefore, I am of the opinionthat the impugned proceedings issued by the respondents dated11.7.2006 is arbitrary and illegal and liable to be set aside.

In the result, the writ petition is allowed and the impugnedproceedings dated 11.7.2006 are set aside. Further, the respondents aredirected to consider for fixation of pay and seniority of the petitioner on parwith those who were appointed as Assistant Engineers (Electrical) inpursuance of the notification dated 1.1.1997. However, the pay of thepetitioner shall be fixed notionally from 1.1.2009 on par with the lastcandidate in the said recruitment and she shall be given last rank of thepersons appointed under the notification dated 1.1.1997. It is needless tomention 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.

Date: 31.12.2008DA

_____________ C.V.RAMULU, J

THE HON’BLE SRI JUSTICE C.V.RAMULU

31.12.2008