L. Narasimha Reddy, J.
1. Generation, transmission and supply of electricity, in the State of Andhra Pradesh used to be undertaken by the A.P. State Electricity Board, which was created under a statute. In the recent past, substantial changes were brought about, in the said activity. Separate Companies, fully owned by the State, were brought into existence, for undertaking the respective activities, in the place of the Board. Activity of generation of power is brought under the purview of the A.P. Generation Corporation (for short 'the A.P. Genco'); the transmission, under the A.P. Transmission Corporation (for short 'the A.P. Transcd), and the Distribution, under the purview of four separate Distribution Companies. Even under the changed set up, the control of Government exists, be it, in the context of overseeing the general activities, or monitoring the pattern of appointments, in the respective companies. The Distribution Companies function almost as sister-organizations to the A.P. Transco.
2. For effective functioning of the Transmission and Distribution Companies, the field staff in the category of Junior Linemen assume importance. The said Companies approached the Government of Andhra Pradesh, seeking permission to fill hundreds of vacant posts of Junior Linemen. After examining the matter, in detail, the Government of A.P., in its Energy Department, accorded permission, vide letter dated 07-06-2006, to the A.P. Transco and the Distribution Companies, to fill the posts of Junior Linemen, on contract basis, vide its letter dated 07-06-2006. Apart from granting necessary permission, the Government had prescribed the detailed selection process, stipulated the qualifications of the candidates, criteria for selection, and the nature of appointment to be made. Possession of I.T.I. qualification, residence in the notified area of jurisdiction, and clearance of Pole Climbing Test were made compulsory. It was also indicated that in case the number of applicants is more than the vacancies, the selection shall be on the basis of marks in the I.T.I., examination. Rules of Reservation were made applicable.
3. On the next day itself, i.e. 08-06-2006, the Distribution Companies have issued notifications, inviting applications for selection of candidates for the post of Junior Linemen on contractual basis, incorporating the parameters of selection. The last date for submission of applications was stipulated as, 25-07-2006. The petitioners and several others submitted their applications.
Even while the selection process was in progress, the Government issued letter dated 28-08-2006, altering the parameters of selection. Preference was provided in favour of candidates who are working as Contract Labour. Through another letter dated 16-10-2006, further alterations were effected On the basis of these directions from the.1 Government, the Distribution Companies issued revised notification dated 20-10-2006, completely changing the method of selection, it was mentioned that the said notification is in continuation of the earlier notification, dated 08-06-2006.
4. The petitioners challenge the selection process adopted by the Distribution Companies, as well as the action of the Government in incorporating various conditions. It is urged that once the notification was issued, prescribing a particular selection process, it was not open to the respondents to alter the same. The petitioners further contend that the entire process of selection was reduced to an empty formality and a devise, to continue the contract labour, said to have been engaged by the Contractors, before and after the notification dated 08-06-2006. Petitioners complain that the Rule of Reservation was treated as a ruse to select and appoint candidates, of their choice by the respondents, indiscriminately, and the net result had only demonstrated that, it virtually became a free for all affair, and merit, which was the only criterion, at the initial stage, was reduced to irrelevance.
5. On behalf of the Distribution Companies, counter-affidavit is filed, narrating the circumstances, that gave rise to the issuance of the notifications, referred to above. It is stated that, except carrying out the specific directions issued by the Government, the Distribution Companies did not undertake any independent exercise. It is also urged that the appointments were made strictly in accordance with the instructions issued by the Government, through letters addressed from time to time.
6. The Government of Andhra Pradesh, in its Energy Department, was impleaded, after the writ petitions were filed. Learned Government Pleader for the concerned department had obtained instructions and submits that though merit in I.T.I. was stipulated as the basis for selection, in the event of the number of applications exceeding the number of vacancies; changes were incorporated, to protect the interests of the Contract Labour, who are already serving the Distribution Companies.
7. Sri M. Venkat Ram Reddy, Sri Peeta Raman and Smt. A. Pankaja, learned Counsel for the petitioners, submit that it was not open to the respondents to alter the selection process, once it has commenced. They submit that providing for an absolute precedence over the Contract Labour had completely eroded into the selection process, and the same cannot be countenanced in law. By mentioning the relevant statistics, learned Counsel submit that in the name of implementation of reservation, the respondents have flouted all the norms, and the net result is that, in some distribution companies, the share of O.Cs., was left to a meagre, 5 to 10%.
8. Learned Government Pleader for the Department of Energy and learned Standing Counsel for the Distribution Companies, submit that it is always competent for the Appointing Authority to prescribe the qualifications and conditions, in the process of selection, depending on the exigencies. According to them, the petitioners did not acquire any rights on the basis of mere submission of applications, and none of the conditions, incorporated through subsequent amendment; are contrary to law. It is also pleaded that the Rule of Reservation was followed in its letter and spirit.
9. The background in which, the Distribution Companies have initiated the process of selection and appointment of Junior Linemen, has already been indicated with permissible brevity. Through its letter dated 07-06-2006, the Government had accorded permission to the Distribution Companies to appoint 7114 Junior Linemen, on contract basis. It has also indicated the method of appointment and selection. For better understanding of the issue, it is necessary to extract the same:
Terms and Conditions:
1. Age: Not below 18 years and not above 35 years as on date of notification. Relaxation of upper age limit permissible upto 5 years for SC/ST/BC candidates.
2. Educational Qualifications: Pass in ITI in Electrical Trade.
3. Remuneration: A fixed remuneration of Rs. 3,020/- per month (consolidated) plus performance linked incentives not more than Rs. 1,000/- per month.
4. Reservation: Rule of reservation will be followed strictly as per existing rules.
5. Period of contract: One year
6. Mode of calling applications: Notification will be sent to all Employment Exchanges and will be published through the Press and Discoms websites.
7. Selection Process:
(a) Selection Committee: There shall be a selection Committee with the Chief General Manager/Chief Engineer as Chairman and the following as members.
(i) SE/Operation - Convener
(ii) 2 Members to be nominated by the CMD/Discom.
(b) Criteria for Selection:
The candidates shall be selected strictly based on the following criteria.
(i) ITI qualification is compulsory
(ii) Residence in the notified area of jurisdiction is compulsory. In case applicants are not available in the area of jurisdiction, eligible candidates from contiguous Gram Panchayath may be considered.
(iii) Pole Climbing is compulsory.
(iv) If conditions (i), (ii) and (iii) above are fulfilled and there are more than one suitable candidates then ITI marks will form the basis for selection.
(c) The selection of the candidates shall be based on verification of the following documents.
(i) SSC Pass certificate
(ii) ITI Pass certificate & Marks list
(iii) Community certificate
(iv) Proof of Residence
Ration Card (Multipurpose Household card) issued by the Mandal Revenue Officer concerned.
OR
Nativity certificate from the Panchayat Secretary to the effect that the candidate is a resident of the village in the area of Jurisdiction.
(v) Self addressed envelope 11'x5' duly affixing the requisite postal stamps for intimation through registered post.
(vi) Two passport size photographs attested by a Gazetted Officer in addition to the photos affixed on the application.
(d) The selection committee shall ensure that the requirement of community roster are fulfilled as per rules in force.
Other Terms and conditions of Appointment:
(1) The selected candidate shall enter into an agreement with the company in the form prescribed for the purpose for a period of one year.
(2) The contract appointment shall cease to exist automatically at the end of the date mentioned in the contract.
(3) The contract appointment shall stand terminated if the contract JLM is found to be not residing in the notified area of jurisdiction.
(4) The contract appointment shall stand terminated if performance criteria specified in the agreement are not achieved.
The Chairperson & Managing Director, A.P. Transco & Chairperson, APPCC, CMDs/A.P., Discoms may take further. Q action accordingly.
10. Obviously, on account of the impending urgency, the Distribution Companies issued notification on the next day, i.e. 08-06-2007, incorporating the same conditions, and stipulating 25-07-2006 as the last date for submission of the applications. Petitioners and thousands of others submitted their applications. The process of verification of qualifications was initiated and Pole Climbing Test was conducted. Before the orders of appointment were issued, the Government addressed a letter dated 28-08-2006, to the Chairman and Managing Director of A.P. Transco and all the Distribution Companies with the following text:
I am directed to inform that, in view of the meeting held with the Energy Department officials and representative of Associations and Sri M.A. Gafoor, MLA, Sri N.Narasimhaiah, MLA regarding the recruitment for JLM posts held in the chambers of Hon'ble Minister for I & PR, Energy & Coal on 24th August, 2006, the following instructions are issued for implementation of the same and report compliance:
(1) Qualified I.T.I. candidates with Electrical and other streams may be considered.
(2) Last date for receiving nativity certificates from the candidates may be extended to 7th September 2006.
(3) Weightage for experience to be given.
(4) Clear instructions about following the Rule of Reservations are to be issued.
(5) People having from Hyderabad who cannot produce their nativity certificates may be allowed to produce any valid certificate that produce that they belong to Hyderabad and candidates working in Sub-Stations in Hyderabad region may be allowed to produce their PF slips as their nativity certificates.
11. Under the initial notification, candidates with I.T.I. qualification were alone eligible. However, in the letter dated 16-10-2006, the Government replaced the entire selection process with the following criteria.
(I) Criteria for selections: The candidate shall be selected strictly based on the following criteria.
(i) SSLC/SSC/10th Class with I.T.I. Qualification in Electrical/Wireman trade or Intermediate vocational course in Electrical Trade is compulsory.
(ii) The Operation Circle/District will be the unit of appointment
(iii) Pole Climbing is compulsory.
(iv) If conditions (i), (ii) and (iii) above are fulfilled, preference will be given to experience as noted below:
(a) Presently serving contract labour who are working now for manning of Sub-Stations of Transco/Discoms with recorded evidence through Sub-Station Log Books to be certified by the concerned Divisional engineer.
OR
Presently Serving contract labour for any other work in Transco/Discoms with recorded evidence of EPF number in his name to be certified by the concerned DE.
(b) If contract Labour and fresh candidates apply for the post, the contract labour will be given preference for selection.
(c) If more than one contract labou r apply for the post, the contract labour with earlier date of birth will be given preference for selection.
(d) If there are only fresh candidates who applied for the post, the marks obtained in the qualifying examination will be the criteria for selection.
12. With this, the parameters for selection have undergone a complete change. So far as the Rule of Reservation is concerned, it was common throughout.
In view of the submissions made by the learned Counsel for the parties, the following questions arise for consideration:
(a) Whether it was competent for the respondents to alter the parameters of selection, after the commencement of the selection process;
(b) Whether the criteria for selection, incorporated in the notification dated 20-10-2006, on the basis of the letter dated 16-10-2006, issued by the Government are legal and valid; and
(c) Whether the respondents have implemented the Rules of Reservation in their letter and spirit.
13. An employer has the liberty, to stipulate the conditions of selection for any post, which it intends to fill. It has the freedom to prescribe the qualifications for the respective posts, taking into account the technical and other requirements of the same. By publishing the notification for this purpose, it makes an invitation to, offer to appoint the candidates, who possess the prescribed qualifications, subject to their being selected, in accordance with the prescribed parameters.
14. In other words, a candidate, who holds the requisite qualifications, will have the corresponding right to make an offer. A semblance of jural relationship comes into existence between the employer and the applicant, in the sense, that a candidate, who possesses the requisite qualifications and makes an offer, can insist upon acceptance of the same, provided that there do not exist any legal impediments. This, however, is subject to a rider, that an employer can refuse to proceed with the selection process, before any valid right had accrued to the concerned candidates. Where the employer happens to be a State, or its agency, an expectation, which is termed as legitimate would spring, in favour of an eligible candidate, to the effect that subject to his holding requisite qualifications, and clearing the various tests and selection process, he can expect the state to perform its part of obligation, i.e. to select and appoint him.
15. Stipulation of the criteria for selection, from the point of view of an employer and fulfillment of the same by the proposed employee, constitute very important factor in the entire process of appointment. It is with reference to such qualifications and conditions, that necessary verification is undertaken. While a candidate, who fulfills them, can insist the procedure be carried further, the one, who does not possess them, cannot claim any right vis-a-vis employer. Such being the importance of the conditions, law requires that they must remain the same, throughout the selection process. Any alteration of the conditions, halfway through, would render the entire selection process as arbitrary, capricious and illegal. Unbridled power to alter the conditions would arm the employer to exclude the persons, who otherwise fulfill the conditions from the arena of selection, or to pave the way for otherwise ineligible persons in to the selection process, depending on his choice, or like, or dislike, as the case may be. Apart from bringing about a serious sense of uncertainty, such a course would disable the intending employee to know where he stands, in terms of the requirements of the proposed appointments. A caveat needs to be added here, namely, that, if the employer faces any difficulty in proceeding with the selection process, it is always open to him, to abandon the same, at any stage, before it culminates into the one, of making appointments. However, it cannot alter the conditions, while the selection process is on, and alive. Law is fairly well settled in this regard, and hardly any assistance of precedent is necessary, for it.
16. It is beneficial to mention what the Supreme Court held in Maharashtra State Road Transport Corporation and Ors. v. Rajendra Bhimrao : (2002)ILLJ819SC .
It has been repeatedly held by this Court that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. Therefore, the decision of the High Court, to the extent it pronounced upon the invalidity of the circular orders dt. 24-6-1996, does not merit acceptance in our hand and the same are set aside.
17. Similarly, in A.P. Public Service Commission v. B. Swapna : (2005)4SCC154 , the Supreme Court held as under:.Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g., minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same....
18. In the instant case, the notification dated 08-06-2006, issued by the Distribution Companies, prescribed certain qualifications as well as the method of recruitment. The salient feature was that percentage of marks secured in I.T.I. would virtually, be the deciding factor. Through a subsequent notification, dated 20-10-2006, the parameters were totally changed. Almost unqualified precedence and preference was conferred upon the Contract Labours, who were engaged by the Companies. Merit in I.T.I., almost, became irrelevant. It is a different thing, as to whether it was competent for the State Government to prescribe and thereafter, alter the conditions of selection, when its principal power was only to accord sanction for making appointments. Even if the illegality has taken place, at the level of the State Government, the result would be the one and the same. Therefore, the first question deserves to be answered in favour of the petitioners, and that a serious illegality has crept in the process.
19. Now comes the second question, viz., the legality of the conditions incorporated in the notification dated 20-10-2006. Strictly speaking, this question need not be discussed, in view of the answer, that has emerged for the first one. However, assuming that the respondents have the power to alter the conditions, it becomes necessary to examine the legality of the conditions incorporated in the said notification. The petitioners have advanced their arguments, mostly in the context of the precedence accorded to the Contract Labour.
20. It has already been mentioned that there was absolutely no reference to the Contract Labours, much less any precedence to them, in the first notification dated 08-06-2006. Almost a monopoly was created in favour of the Contract Labour by issuing a subsequent notification. The letters that emanated from the Government thereafter, made the things worse. Very astonishing, are the conditions in Clauses (iv)(b) and (c), of the notification dated 20-10-2006. Under Clause (b), which has been extracted in the preceding paragraphs, a Contract Labour, irrespective of the length of his service and the marks secured by him in the I.T.I., is conferred precedence and preference over a fresh candidate, even if a topper in the I.T.I. Clause (c) relates to the resolution of conflict between two Contract Labours. Here again, irrespective of their merit in qualifying examination, or length of service, the age is treated as the decisive factor. During the course of selection, situations, which are even more shocking, are noticed. The understanding of the Recruiting Agencies was, that it is only the persons that were engaged as Contract Labours between the dates of two notifications, i.e. 08-06-2006 and 20-10-2006, that are eligible to be considered for appointment. The same was indicated in respect of the petitioner in W.P. No. 10019 of 2008.
21. It is not uncommon that experience is given preference in recruitments, depending upon the job requirement. Preference, by its very nature, means, extension of priority, other things being equal. It cannot be extended to such a level, that it can overshadow all other considerations and criteria. If such a course is adopted, the very process of selection would become redundant. Preference, to be accorded to the experience, possessed by a candidate; must be on the basis of a structured formula. In the context of recognizing the services of a Contract Labour, it must depend upon the length of experience in specified categories of works, subject to a maximum. In the cases of recruitment to the posts of Teaching and Research etc., points for each year, subject to a maximum; are awarded to candidates, so that they can be taken into account during the course of selection. To that extent, an experienced candidate would be placed in an advantageous position, but not to the extent of defeating the merit of a very high order, unless he too holds the same merit.
22. The effects of unguided preference to Contract Labour can be demonstrated with the following example. If a fresh candidate with 85% in I.T.I., and a Contract Labour with one-year experience, engaged for a totally inconsequential work, and possessing 45% marks in the I.T.I. are pitted against each other, the latter is to be preferred, according to Clause (iv)(b). Further, as between a Contract Labour with 10 years experience, with fairly a high percentage of marks in I.T.I., and a relatively aged person, with less merit and experience of hardly one year, the latter is to be preferred, as per Clause (iv)(c). Selection and appointment of candidates, in the manner, referred to above, apart from being arbitrary, illegal, discriminatory and capricious; would not improve the efficiency of functioning of the concerned organization. If the respondents are of the view that the experience of the Contract Labour cannot be ignored, they can consider the feasibility of adding one mark for each year of experience, subject to a maximum of 3, or 5, which can be added to the percentage of marks secured in the I.T.I., duly giving corresponding age relaxation. Such a course would strike a decent balance between experience and merit. Mere existence of power to stipulate the criterion cannot be a licence to render the selection process a farcical levels.
23. Verification of the experience as Contract Labour, is another area, where necessary attention needs to be focused. It should be in a field, where the contract itself stipulates that the persons to be engaged by a Labour Contractor, must hold I.T.I. qualification. If a Labour Contractor engages candidate with I.T.I. qualification, for a simple work, such as digging of a trench for laying cable, or to dig a pit for erection of a pole, they cannot be conferred the benefit of the experience, over the other meritorious candidates. It is better that necessary verification, in this regard is made by an Officer, not below the rank of Superintending Engineer; apart from making a reasonable and fair provision. If such precautions are taken, it will instill confidence in the minds of eligible candidates, and they will feel that their hard work in the study would not go waste. The criteria for selection incorporated in the notification dated 20-10-2006, and the subsequent letters addressed by the Government do not accord with any principles of reasonableness or fairness. On the other hand they are illegal, arbitrary and violative of Article 14 of the Constitution of India.
24. The third question is about the implementation of the Rules of Reservation. In both the notifications, issued by the respondents, it was mentioned that Rules of Reservation would be followed. However, in the ultimate working, several anomalies were noticed. In some circles of the Distribution Companies, not even 10% was left out, for open competition. Hardly any procedure was followed. It appears that the appointments were made mainly, of the Contract Labour, and the relevant statistics, indicating their social status were mentioned. It hardly constitutes compliance with the Rules of Reservation.
25. The recognized principle of ensuring compliance of Rules of Reservation is that, for every category of candidates, a list of candidates, of that particular category, in accordance with their eligibility and merit, is to be prepared, and from out of the respective lists, candidates are to be drawn, to ensure the representation in appointments, to the extent of reservation. In a given case, a candidate belonging to reserved category may be eligible to be appointed against a vacancy earmarked for O.C., if he has secured fairly meritorious marks. However, indiscriminate appointment of candidates, without preparation of lists, would convert the system into a pell-mell. It must not be forgotten that reservation is an exception to the general rule of selection, by merit.
26. From the above discussion, it emerges that the respondents committed an illegality in changing the entire selection process, halfway through; the criterion prescribed for selection, incorporated in notification dated 20-10-2006 are illegal, arbitrary and unconstitutional, and that Rules of Reservation have not been followed in their letter and spirit. Strictly speaking, the selection undertaken by the respondents and the consequential appointments are liable to be set aside. The consoling factor, however, is that the appointments are contractual in nature, and are restricted to one year, which is likely to expire within one or two months. This Court is of the view that setting aside the selection and appointments would result in serious dislocation of the activities of the respondents, and instead, the appointments can be permitted to continue, till the expiry of the original contract, by directing the respondents not to extend the contracts under any circumstances. The new selection process must be initiated, well before the expiry of the term of the present contracts, in accordance with law and by avoiding the parameters, that have been found to be opposed to law.
27. So far as the preference to be given to the Contract Labour is concerned, the mere fact that an individual came to be engaged by a Labour Contractor, cannot, by itself, be treated as a factor, to enable him to steal march over by other candidates, irrespective of the merit held by him. A structured formula to recognize the experience of the Contract Labour can also be evolved in such a way, as not to overshadow the merit in its entirety. Marks for each year of experience as Contract Labour as may be certified by the concerned Superintending Engineer, subject to a maximum of (3) or (5) with corresponding relaxation of age, subject to holding I.T.I. qualification can also be considered. Such marks can be added to the percentage of marks in he I.T.I., for the limited purpose of selection. To compensate the applicants, who were not selected on the basis of the changed criteria, age relaxation to the extent of one year for those, who applied in response to the notification dated 08-06-2006 can also be considered. So far as the reservations are concerned, the Companies must prepare separate list for the respective categories in accordance with the merit, and candidate must be drawn from the respective lists for the purpose of appointment, to the extent of reservation.
28. For the foregoing reasons, the writ petitions are allowed,
(a) holding that the action of the respondents in altering the criteria for selection, after the commencement of the selection process, and incorporating the conditions, providing for an absolute priority in favour of Contract Labour; as illegal, arbitrary and unconstitutional.
(b) Directing the respondents,
(i) to consider the feasibility of evolving a structured formula, to provide precedence to the Contract Labour, by awarding one mark for each year, of completed service, as Contract Labour, in a work, for which deployment of such candidates is stipulated, and subject to certification of the same by the Superintending Engineer; not exceeding five marks; and relaxing the qualifications as to age, subject to a maximum of three years, and to ensure that the merit so worked alone shall be the criteria for selection.
(ii) to restrict the tenure of the candidates, appointed in pursuance of the notifications, dt. 08-06-2006 and 20-10-2006, to one year, mentioned in the respective orders; or not beyond 30th July 2008.
(iii) to implement the Rule of Reservation by preparing separate lists of candidates of the respective categories, and by drawing them for appointment, in accordance with their respective percentages of reservation.
There shall be no order as to costs.