COMMON JUDGMENT:
V. ESWARAIAH
Heard Mr. N. Subba Reddy, learned senior counsel for Mr Chandraiah Sunkara, Mr. M Venkata Ram Reddy, Mr. Peeta Raman, Mr. D.L. Pandu, Mr K.V.N.Bhupal, Mr D.Balkishan Rao, Mr V.Venkata Mayur and Mr R.Rajesh Netha for the writ petitioners and Mr A.K.Jayaprakash and Mr S Ravindranath for appeallants in writ appeals and the learned Advocate General appearing for the Government, A.P.Transco and four distribution companies and Mr.G.Vidyasagar, learned counsel.
A simple issue has been complicated at various levels by various authorities, consequential of which, the present batch of writ petitions and writ appeals are filed.
The Indian Electricity Act, 1910 created the basic frame work for electricity supply industry in India and thereafter Electricity Supply Act, 1948 mandated the creation of the State Electricity Boards. The State Electricity Board has a responsibility of arranging the supply of electricity in the State. Thereafter Electricity Act, 2003 came into force and with subsequent amendments consolidating the law relating to generation, transmission, distribution, trading and use of electricity in India.
The erstwhile Andhra Pradesh State Electricity Board (for short APSEB) issued regulations in exercise of power conferred under Section 79 (c) and (k) of the Electricity (Supply) Act, 1948, whereunder the APSEB has got power to make regulations by issuance of a notification in the official gazette relating to the “duties of officers and other employees of the Board and their salaries, allowances and other conditions of service” and “any other matter arising out of the Board’s functions under this Act for which it is necessary or expedient to make regulations.’ Under Section 79 (c) and (k) of the Electricity Supply Act, 1948, the APSEB has framed service regulations called A.P. State Electricity Board Employees Service Regulations – Part –I, Part-II and Part –III and the same are published in the year 1968 and 1970 and came into force from the date of publication.
Under Service Regulation 3 (d) of Part I,
“The Board may absorb a person appointed on contract basis into the Board corresponding cadres in the Board’s service on a permanent basis. Such persons may, in the discretion of the Board, be given credit for the full period of their contract service or part there of and thereupon such service shall be taken into account for all purposes, including seniority, probation, leave and pension”.
Under Service Regulation 6 of Part I,
“The Board may adopt its own classification of service, re-arrange grades, re-fix responsibilities and prescribe minimum educational, technical and other qualifications as may be considered suitable for making selection and appointments to posts in each class of service”.
Under Service Regulation 7 of Part I, “ All employees joining the service of the Board shall be deemed to be new entrants into the service of the Board and their retention or otherwise in employment will depend on the result of the Board’s review of the staff requirements from time to time depending on the exigencies of works……..”.
The A.P. State Electricity board Employees Service Regulations Part II, apply to all employees of the APSEB including those employed under the contracts and on deputation from the Government, who draw their pay once a month in a time scale of pay.
There are various classes and categories within the class. The last grade is Class IV consisting of various categories from 1 to 14. But, the post of Junior Lineman (for short JLM) or Wireman or Helper etc, is not there in the Service Regulations.
Service Regulation 2, Part III deals with ‘method of recruitment’. Regulation 2 (ii) deals with method of recruitment of class IV employees, which is by direct recruitment by the appointing authority authorized by the APSEB in such a manner as may be ordered by the APSEB from time to time. The relevant portion reads as under;
“(ii). Selection for appointment by direct recruitment of class IV of APSEB General Service shall be made by the appointing authority concerned or in such manner as may be ordered by the Board from time to time.”
If the class IV employees are recruited through direct recruitment, they will be on probation for a period of one year and on completion of successful probation period of one year, they are entitled for declaration of probation.
None of the Service Regulations i.e., Part I, Part II or Part III, deals with the appointment of the equivalent post of Junior Lineman or various other posts. The erstwhile APSEB earlier framed the “Andhra Electricity Department Operation Subordinate Service Rules (hereinafter referred to as OSS Rules), which came into force from 1.1.1948. The said rules consist of categories and grades mentioned in Annexure –I therein and there are about 80 categories with various designations. The equivalent post for JLM is that of ‘Helper’. The qualification and experience for the post of Helper is ‘ability to read and write with one year practical experience either in Operation and Maintenance and or construction work’.
2..The Andhra Pradesh Generation Company (APGENCO, The Andhra Pradesh Transmission Company (AP Transco) and the respective four Distribution companies in the State viz., Andhra Pradesh Southern Power Distribution Company Limited ( APSPDCL), Andhra Pradesh Northern Power Distribution Company Limited (APNPDCL), Andhra Pradesh Central Power Distribution Company Limited (APCPDCL) and Andhra Pradesh Eastern Power Distribution Company Limited (APEPDCL), have adopted the Service Regulations framed under Section 79 of the Indian Electricity Supply Act, 1948 by the erstwhile APSEB known as APSEB Service Regulations Part I, Part II and Part III as well as OSS Rules.
The then APSEB used to recruit the equivalent post of Junior Lineman i.e., Helpers under the OSS Rules. Under the OSS Rules, the permanent cadre of each category or grade for each power system shall be determined by the Chief Engineer for Electricity who shall create posts, make appointments etc., and fix salaries within the scale fixed by the State Government. Rule 3 deals with ‘Appointment’, which reads as under;
“3..Appointment:-
(a). Appointment to any of the posts in any category or grade shall be either by direct recruitment or by promotion from any other category or grade of which the scale of pay or the maximum pay is lower.
Provided that appointments to 20% of the posts in any category or grade carrying a scale of Rs.50-2-70 and less may be made by direct recruitment from among persons employed on daily wages or from members of the operation subordinate service who do not possess the qualifications prescribed for the respective posts but have sufficient practical experience and if in the opinion of the Superintending Engineer, such practical experience is considered sufficient for the proper discharge of duties of the posts to which they are appointed.
(b). All the promotions shall be made on grounds of efficiency merit and ability, seniority being considered only when merit and ability are approximately equal.
(c). Temporary appointments: Where it is necessary owing to an emergency which has arisen to fill immediately a vacancy in the post borne on any category or grade and there would be undue delay in making such appointment in accordance with these rules, the appointing authority may appoint a person otherwise in accordance with these rules temporarily for a period not exceeding three months until a person is appointed in accordance with these rules.
Provided that a person appointed under the above rules shall not by reason of such appointment have any claim for promotion, seniority or future appointment.”
Rule 6 deals with ‘Probation’ and every person appointed to a category or grade otherwise than by promotion not involving the assumption of duties and responsibilities of greater importance shall, from the date on which he joins duty, be on probation for a total period of two years on duty within a continuous period of three years.
The post of ‘Assistant Wireman’ finds place at serial no.12 and qualification and eligibility for the said post is ‘pass in ITI form with two years of practical experience in O and M and /or construction works. Qualified helpers will be eligible for promotion to the post of Assistant Wireman.
The erstwhile APSEB vide B.P.Ms.No. 709 dated 12.7.1984 changed the designation of the post of Assistant Wireman to that as ‘Assistant Lineman’.
The erstwhile APSEB vide B.P.Ms.No. 1048 dated 23.9.1989 prescribed the qualification for the post of Helpers, which are as under;
i) A pass in SSLC/SSC/10th class
ii) A pass in ITI preferably with Electrical Trade or
iii) Vocation course in Electrical Trade.
Therefore the equivalent post of Lineman is only that of Helper for which the next promotion post is ‘Assistant Lineman.
3..As no rules are provided for recruitment of the post of Junior Lineman, the request of the Chairman and Managing Directors of the A.P. Transco and four distribution companies to sanction the posts of JLM was considered by the Government and the Government vide its letter No.3964/SER/2006-2 dated 7.6.2006 accorded permission to fill up the vacant critical posts of 7114 of Junior Lineman subject to the terms and conditions mentioned therein.
Pursuant to the permission /sanction accorded by the Government vide letter dated 7.6.2006, the AP Transco and the four distribution companies, issued respectivenotifications dated 6/8.6.2006 notifying the number of posts available in the respective districts of their respective operation circles. For the sake of convenience, the terms and conditions prescribed in the notification dated 8.6.2006 issued by the APCPDCL for 2443 posts of JLM in its ten circles is extracted hereunder;
“CENTRAL POWER DISTRIBUTION COMPANY OF A.P. LTD
RED HILLS:: HYDERABAD
NOTIFICTION
I. The APCPDCL invites applications from the eligible male candidates in the prescribed format for filling up of JUNIOR LINEMEN posts on early contact basis existing in the following operation circles of APCPDCL.
| S. No. | Name of the Operation Circle | Address of Operation Circle | Total Number of vacancies in operation circle |
| 1 | North/Hyderabad | The SE/Opn/NorthAPCPDCLMint Compound,Hyderabad | 330 |
| … | … | …. |
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 QUALIFICATION :
Pass in ITI in Electrical Trade (Or)
Pass in ITI in Wireman trade (Or)
Pass in ITI in Lineman trade (or)
Intermediate (vocational) in Electrical trade.
3. REMUNERATION: A fixed remuneration of Rs.3020/- per month (consolidated) plus performance linked incentives not more than Rs.1000/- 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 APCPDCL websites.
7. CRITERIA FOR SELECTION: The candidates shall be selected strictly based on the following criteria;
(i) ITI qualification in Electrical/Wireman/Lineman trade OR Intermediate (vocational) in electrical trade is compulsory.
(ii) Residence in the notified area of jurisdiction is compulsory. In case applicants are not available in the are 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 candidate, then ITI marks will form basis for selection.
8..The selection of the candidates shall be based on verification of the following documents;
i. SSC pass certificate
ii. ITI (or) Intermediate (vocational) in Electrical Trade pass certificate and marks list
iii. Community certificate.
iv. Proof of residence.
Ration card (Multipurpose Household card) issued by the M.R.O 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.
9..The selection committee shall ensure that the requirement of Community roster are fulfilled as per rules in force.
10. OTHER TERMS AND CONDITIONS OF APPOINTMENT:
i). The selected candidates shall enter into an agreement with the company in the form prescribed for the purpose for a period of one year.
ii). The contract appointment shall cease to exist automatically at the end of the date mentioned in the contract.
iii). The contract appointment shall stand terminated if the contract JLM is found to be not residing in the notified area of jurisdiction.
iv). The contract appointment shall stand terminated if performance criteria specified in the agreement are not achieved.”
11. The candidate should enclose the list of enclosures along with the application format.
1) Two pass port size recent photographs attested by a Gazetted Officer in addition to the recent photograph affixed on the application.
2) Attested copies of SSC Pass certificate
3) Attested copies of ITI (Or) Intermediate (Vocational) in Electrical Trade pass certificate and marks list
4) Attested copies of Community certificate
5) Attested copies of proof of residence
Ration card (Multipurpose House hold 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.
6) Self addressed envelope 11” X 5” size duly affixing the requisite postal stamps for intimation through registered post.
III. A1 RURAL Franchising Model under RGGVY scheme in Andhra Pradesh:
Andhra Pradesh Power Utilities are further improving the rural electricity service by deploying 7114 Village Electricity Workers (VEWs) (Junior Linemen) on contract basis to bring improvements in
a) Commercial performance (Revenue Demand and collections etc)
b) Customer service like FOC, release of new connections etc
c) O and M to improve reliability etc
In order to deliver prompt and efficient service to the customers in rural areas these individuals have to stay in the notified area of jurisdiction. To ensure this, a precise area is being notified and this area will be fixed as the Head Quarters of the VEW (Contract JLM)
Following conditions have to be met for recruitment.
He will be a resident in the area of jurisdiction and
A certain portion of remuneration shall be linked to the performance
The contract duration will be for one year. The minimum eligibility criteria are that the individual must be ITI qualified and should be able to climb a pole.
III A2. Scope and incentive mechanism for the franchisee.
The scope includes billing, revenue collection, complaints redressal, facilitating new service connections etc. Base remuneration is paid to the franchise (VEW) Contract JLM) if he achieves the collections with reference to target demand in that area. In case the VEW (Contract JLM) achieves or exceeds the target then additional revenue is shared in the form of an incentive payment with the VEW (contract JLM)
III A3 Key Performance Indicators.
In order to achieve the objectives, it is essential that every contract JLM understands the performance imperative of the organization and to ensure this, following key performance indicators has been fixed as the base of measurement of individual performance.
| Key Performance IndicatorCollection w.r.t. The Target DemandWhere target demand= Previous year demand + Target growth rate |
It is planned to move to input energy based KPI where the energy input into each village shall be measured by installing at HT Meter. Till the HT meters are installed the above KPI shall be used.
III. B The Process of Performance Target Setting and Review.
The monthly target for each contract JLM shall be fixed as follows.
The demand of the previous year same month plus certain Target Growth Rate which is the sum of two factors as shown below;
Target Growth Rate = Natural growth rate + Efficiency growth rateTentatively the natural growth rate is 10 % and efficiency growth rate is 15 %
The respective Divisional Engineer (DE) of the division will assign a higher efficiency growth target than the above growth rate
Review of performance shall be made the Divisional Engineers (DEs) and he shall check the achievement against the targets set and assign the Performance Score on the basis as explained below:
III. B1 The Scoring Framework.
The natural growth rate shall be compulsorily achieved. If for six months the performance is below the natural growth rate, the contract will be terminated.
Performance score for obtaining incentive payment shall be based on the actual performance achieved on the efficiency given rate only i.e., (5%)
Grading would be based on the percentage achievement against the efficiency growth target.
Level A : Performance is greater than 90 %
Level B : Performance is greater than 80 % and less than 90 %
Level C: Performance is below 80 %
III B2. Performance Incentive.
The performance incentive shall be linked to the corresponding performance levels.
At performance “Level A” – Additional remuneration of Rs.1000/- per month
At performance “Level B” – The Additional remuneration shall be Rs.500/- per month
At performance “Level C” – No incentive.
In addition to the above any continued adverse performance on customer service related or network maintenance related areas will also be mentioned regularly and the Contract JLM will be intimated to correct /improve such instances if any.
III ( C ) Payment Procedure.
1. The performance incentive shall be paid every two months (to match with the bimonthly billing cycle) based on the trial balance figures and the performance level achieve as indicated above.
2. AGREEMENT
The contract JLM shall enter into an agreement with the DISCOMs in conformity with the above performance parameters.
SD/- CHIEF GENERAL MANAGAR COMML)
APCPDCL :”
4. As the selection criteria is not exhaustive and taking into consideration the representations from the associations /unions and members of legislative assembly to consider the qualified candidates with electrical and other streams, to give weightage for experience, give clear instructions for the rule of reservation and to extend the date of receiving nativity certificate up to 7.9.2006, the Government issued instructions vide letter No. 7327/SER/2006-1 dated 28.8.2006 addressed to the Chairman and Managing Directors A.P. Transco and the four distribution companies as under;
1. Qualified ITI 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 hailing from Hyderabad who cannot produce their nativity certificates may be allowed to produce any valid certificate that proves 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 certificate.”
In the meanwhile, some of the existing contract labour questioned the selection criteria at conditions No. 7 (ii) and (iv) of notification issued by APCPDCL dated 6/8.6.2006 in W.P. No. 17809 of 2006. Condition No. 7 (ii) and (iv) reads as under;
(ii) Residence in the notified area of jurisdiction is compulsory. In case applicants are not available in the are of jurisdiction, eligible candidates from contiguous Gram Panchayath may be considered.
(iii)…….
(iv) If conditions (i), (ii) and (iii) above are fulfilled and there are more than one suitable candidate then ITI marks will form the basis for selection.
Condition No. 7 (ii) is questioned on the ground that when the entire district is treated as a unit for the purpose of appointment to the post of JLM, there is no justification for the A.P. Transco and four distribution companies to restrict the residential eligibility basing on the notified area worked by an individual, whereas condition no. 7 (iv) was questioned on the ground that the experienced and skilled persons in the job i.e., contract labour are entitled for weightage of marks.
By order dated 18-9-2006, W P No. 17809 of 2006 was disposed of directing the respondents to consider the claim of the petitioners for appointment to the posts of Junior Linemen on contract basis by treating the Operation Circle/District as Unit of appointment, without reference to the restriction imposed under Condition No. 7(ii) of the notification, and by giving weightage to the experience as notified in corrigendum published on 13-7-2006. However, it is made clear that such consideration shall be subject to possessing required qualifications and compliance of all other conditions notified for making appointments.
Pursuant to the letter of the Government dated 28.8.2006 and the directions of this Court in W P No. 17809 of 2006 dated 18.9.2006, the A.P. Transco addressed letter No. Addl. Secy/ AS(HRD)/ PO(HRD)/ JPO.I/606/05-16 dated 5.10.2006 to the Special Chief Secretary to Government, Energy Department, A.P. Secretariat, requesting to revise /amend the criteria for selection.
5..Pursuant to the letter of the A.P. Transco dated 5.10.2006, the Government approved the proposals for revision of criteria for selection vide letter NO. 7885/SER/2006-2 dated 16.10.2006, addressed to the Chairman and Managing Directors of A.P. Transco and four distribution companies. In terms of the revised criteria for selection of the JLMs as approved by the Government in its letter dated 16.10.2006, the AP Transco and four distribution companies issued respective revised notifications dated 20/21.10.2006. The revised notification issued by the APCPDCL dated 21.10.2006 is extracted hereunder;
“CENTRAL POWER DISTRIBUTION COMPANY OF A.P. LTD
RED HILLS:: HYDERABAD-04
Further to earlier notification dated : 08.06.2006, the recruitment of Contract Junior Lineman, the following Revised notification is issued.
REVISED NOTIFICATION
Applications in the prescribed form are invited from the eligible male candidates on or before 14.11.2006 to work as Contract Junior Lineman on yearly contract basis in the following operation circles.
| SlNo. | Name of the Operation Circle | Address of Operation Circle | Total Number of vacancies in operation circle |
| 1 | North/Hyderabad | The SE/Opn/NorthAPCPDCLMint Compound,Hyderabad | 330 |
| … | … | …. |
1. AGE: Not below 18 years and not above 35 years as on 08-06-2006. Relaxation of upper age limit permissible up to 5 years for SC/ST/BC candidates.
2..EDUCATIONAL QUALIFICATION :
i) SSLC/SSC/ 10th class with ITI qualification in Electrical/Wireman Trade or intermediate vocational course in Electrical trade is compulsory.
3. REMUNERATION: A fixed remuneration of Rs.3020/- per month (consolidated) plus performance linked incentives not more than Rs.1000/- per month.
4. RESERVATION: Rule of reservation will be followed strictly as per existing rules.
5. PERIOD OF CONTRACT : One year
6. CRITERIA FOR SELECTION:
i) SSLC/SSC/ 10th class with ITI 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 THE experience as noted below;
a) Presently serving contract labour who are working now for manning of substations of AP Transco/ AP 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 works in AP Transco/AP Discoms with recorded evidence of EPF number in his name to be certified by the concerned Divisional Engineer.
b) If contract labour and fresh candidates apply for the posts, the contract labour will be given preference for selection.
c) If more than one contract labour 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. The pole climbing test will be conducted first for the existing contract labour and if suitable candidates are not available then the pole climbing test will be conducted for the fresh candidates. Candidates who fail the pole climbing test shall not be eligible for appointment..
III. The operation circle/District will be unit of appointment.
IV. The candidates should be a local of the District
V. Fresh candidates without work experience, who have already applied, need not apply again and their earlier application will be considered.
VI. Applicants with work experience who have applied in pursuance of earlier application are requested to furnish proof of relevant work experience, if not already done.
7. The selection of the candidates shall be based on the verification of the following documents.
i) SSC pass certificate
ii) ITI Electrician l/Wireman/Intermediate Vocational course in Electrical trade pass certificate and marks list.
iii) Community certificate
iv) Local certificate to be issued by concerned Panchayat Secretary.
v) Two passport size photographs attested by a Gazetted Officer in addition to the recent photograph affixed on the application.
8. The selection committee shall ensure that the requirement of Community Roster are fulfilled as per rules in force.
9. OTHER TERMS AND CONDITIONS OF APPOINTMENT:
i. The selected candidates shall enter into an agreement with the company in the form prescribed for the purpose for a period of one year.
ii. The contract appointment shall cease to exist automatically at the end of the date mentioned in the contract.
iii. The contract appointment shall stand terminated if the contract JLM is found to be not residing in the notified area of jurisdiction.
iv. The contract appointment shall stand terminated if performance criteria specified in the agreement are not achieved.”
10. Application should be sent in a cover superscribed as application for the post Contract Junior Line Man in Operation Circle - to the address of the Superintending Engineer/Opn concerned.
11. Applications received after due date and time i.e., after14.11.2006 at about 5.00 p.m will be rejected summarily. The Discom is not responsible for postal delay/
12. Application forms not accompanied by the copies of attested certificates mentioned as above shall be summarily rejected.
13. One self addressed envelope 11” X 5” duly affixing the requisite postal stamps for intimation through registered post has to accompany the application form.
14. The selected candidates shall enter into an agreement in the form prescribed for the purpose.
15. Only male candidates are eligible.
16. Canvassing in any form would be disqualification.
17. The decision of Superintending Engineer/Operation Circle concerned would be final in this regard and no correspondent whatsoever would be entertained on this subject.
CHIEF GENERAL MANAGER (COMML)
APCPDCL”
As seen from the revised notifications dated 20/21.10.2006, which were issued in continuation of the earlier notifications dated 6/8.6.2006, the last date for receipt of the application forms was extended from 10.7.2006 upto 14.11.2006 but the eligibility of age, qualification and experience is as on the date of earlier notification i.e., 6/8.6.2006 alone.
6. Questioning the conditions of criteria for selection and appointments made in pursuance of the above referred notifications by the AP Transco and distribution companies, batch of writ petitions were filed earlier before this Court. Many of the existing contract labour and freshers filed W.P. No. 19051 of 2008 and batch mainly questioning the condition no. 6 (iv) (c) of the revised notification dated 20/21.10.2006 as unreasonable and arbitrary and to direct the A.P. Transco and four distribution companies to process the selection/appointments basing on the experience of the contract labour and as per condition no.7 of the notification dated 6/8.6.2006
The contention of the petitioners in the said batch is that the criteria for the selection is only ITI, pole climbing test, residential certificate of the concerned circle or district and the length of experience of the contract labour as well as the marks secured in the ITI, but as per the revised notification under condition No. 6 (iv) (c ) the earlier date of birth of the contract labour cannot be sole criteria, for such selection.
In that contest, the learned Single Judge of this Court held that giving absolute preference to the earlier date of birth irrespective of the merit in the qualifying examination and length of service treating the age as decisive factor for selection is illegal. The length of experience also requires to be given weightage. Therefore, it was held that the criteria for selection in the revised notification do not accord with any principle of reasonableness or fairness and the same is illegal, arbitrary and violative of the Article 14 of the Constitution of India. Accordingly, the said batch of writ petitions in W.P. No.19051 of 2007 are allowed by order dated 2.5.2008 (K Jangaiah and others Vs. Andhra Pradesh Central Power Distribution Company Limited)2008 (3) ALT 699. The operative portion of the same reads as under;
“30. 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, dated 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.”
7. Aggrieved by the said judgment, the A.P. Transco and four distribution companies etc filed appeals in W.A No. 1434 of 2008 and batch and the Division Bench of this Court by order dated 10.11.2009 while considering the similar contentions of the writ petitioners/respondents in the writ appeals that the conditions incorporated in the revised notification dated 20/21-10-2006 vide condition No. 6 (iv) (c) to deprive the experienced candidates who applied for the post in pursuance of the first notifications held that incorporation of such a condition in the revised notifications, is wholly irrational. The Division Bench expressed an opinion that issuing a revised notification incorporating condition no. 6 (iv) (c) is with a view to give preference to selected few and to pick the candidates giving absolute priority in favour of the contract labour with the earlier date of birth, is illegal and violative of Article 14 of the Constitution. In that contest, the order of the learned Single Judge in respect of the direction given in K.Jangaiah case (cited supra) in para 30 (a) was upheld. Insofar as the direction of the learned single Judge in para 30 (b) (i) directing to consider the feasibility of evolving structured formulae providing the procedure to the contract labour for giving preference as well as marks in the qualifying examination is concerned, the Division Bench has set aside the same. The Division Bench also set aside the direction issued in para 30 (b) (ii) directing to restrict the tenure of the candidates appointed in pursuance of the notification to one year and not beyond 30th July, 2008, is also set asise. The otherdirection at para 30 (b) (iii) to implement the rule of reservation was upheld.
During the course of the arguments and when the Division Bench came to the aforesaid opinion and the judgment was to be delivered, the learned Advocate General produced written instructions received from two distribution companies with regard to their willingness to absorb the writ petitioners who were adversely affected by condition no. 6 (iv) (c) of the revised notification, since the situation has arisen where services of those personnel would have to be disbandedif clause 6 (iv) (c) of the revised notification is struck down, leading to a disruption of the essential services and that the distribution companies are willing to absorb and appoint all the writ petitioners who are affected by condition no. 6 (iv) (c) of the revised notification. Taking into consideration the undertaking of the distribution companies, the Division Bench directed them to appoint all the writ petitioners who submitted their applications pursuant to notification dated 8.6.2006 and 20.10.2006 and who have passed the pole climbing test and fulfilled the other eligibility criteria for appointment as Junior Linemen without reference to and without insisting upon the fulfillment of condition no. 6 (iv) (c) of the revised notification dated 20.10.2006. It was also made clear that the said direction would be applicable to all those candidates, who have not approached the Court but who had applied in pursuance of the aforesaid notification, subject to passing of the pole climbing test and fulfillment of eligibility criteria. It was also made clear that persons who have not applied pursuant to the said notifications and who have not subjected to selection process have no right whatsoever to claim that they are entitled for such appointment. The Division Bench further made it clear that all the selected and appointed writ petitioners and those similarly situated would be entitled for all benefits on par with the persons who have been appointed as Junior Linemen as per condition no. 6 (iv) (c) of the revised notification including regularization of their services as per the rules and policy.
8. After the disposal of the said writ appeals in W A No. 1434 of 2008 and batch dated 10.11.2009, the same Division Bench of this Court by order dated 17.11.2009 in W.A. No. 1523 of 2008 and W P Nos. 14348 and 16292 of 2008 after recording the submissions to consider the cases of fresh candidates only after exhausting the existing contract labour as per Clauses 6 1 (iv) (b) and (d) of the revised notification dated, dated 20.10.2006 held as under:
“It is represented by both the learned counsel that the issue involved in these cases is squarely covered by a judgment rendered by this Court on 10.11.2009 in W.A. No. 1434 of 2008 and batch. However, the learned standing counsel for Andhra Pradesh Central Power Distribution Company Limited (APCPDCL) contends that the cases of the aggrieved fresh candidates herein can be considered only after exhausting the existing contact labour as per Clauses 6 I (iv) (b) and (d) of the revised notification dated 20.10.2006.
Recording the above submission, we are of the opinion that it would suffice, if a direction is issued to APCPDCL to consider the cases of the candidates in question as per clause 6 1 (iv) (b) and (d) of the revised notification dated 20.10.2006, if they are otherwise eligible.
Therefore, following the judgment rendered by us in W.A. No. 1434 of 2008 and batch on 10.11.2009, and with the above direction, these cases i.e., W.A. No. 1523 of 2008 and W.P. Nos. 14384 and 16292 of 2008 are disposed of. No order as to costs.”
From the reading of the aforesaid judgments of the Division Bench, it is not in dispute that if a contract labour and a fresh candidate apply for the post, the contract labour will be given preference for selection under condition No. 6(iv) (b). Under condition no. 6 (iv) (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.
As per condition 6 (iv) (c) if more than one contract labour apply for the post, the contract labour with earlier date of birth will be given preference for selection, which condition was held to be illegal, arbitrary and violative of Article 14 in giving absolute priority in respect of the contract labour with earlier date of birth.
9. Some of the writ petitioners who are respondents in Writ Appeal No. 1434 of 2008 and batch filed Contempt cases in C.C. Nos. 467, 429, 468, 288 and 493 of 2010 alleging violation of the said orders of this Court. In the said contempt cases, without hearing the main writ petitions in W.P. Nos. 6981, 7739 and 9129 of 2010 wherein interim directions were granted not to fill up any vacancies which are not subject matter of the notifications dated 8.6.2006 and 20.10.2006 and in directing to invite applications and fill up the vacancies which arose subsequent to the said notifications are vacated and a clarification petition filed by APCPDCL in WAMP No. 195 of 2011 in W.A. No. 1434 of 2008 to clarify that freshers shall be considered with respect to the vacancies notified on 8.6.2006 after exhausting the contract labour in the order of merit as per the marks obtained in the qualifying examination by calling them to interview in the ratio of 1 : 2, was also dismissed by order dated 8.3.2011 and as amended on 26.4.2011, as under;
“While disposing of the Writ Appeal viz., W A No. 1434 of 2008 dated 10.11.2009, an undertaking was given by thelearned Advocate General before the Division Bench therefore,is operative only against the petitioners and also against the contract labour, that undertaking shall be strictly adhered to. It is also made clear that the respondents are directed to complete the entire process as expeditiously as possible preferably within a period of two months from the date of receipt of the copy of this order.
Accordingly, all the contempt cases are disposed of.”
10. Following the interim order dated 22.4.2010 in W .P. No. 9129 of 2010 interim orders dated 26.3.2010 in W P No. 6981 of 2010 and interim order dated 9.4.2010 in W P No. 7739 of 2010, another learned single Judge by order dated 3.8.2011 in W.P. NO. 21922 of 2011 made the following order;
“Post on 16.8.2011 in motion list.
Identical matters from other Distribution Companies are listed on 16.8.2011 and this Court granted stay of appointment of any Junior Lineman against the newly sanctioned vacancies. Hence, there shall be stay of such appointments in the Northern Power Distribution Company Limited also. To avoid further complications, it is directed that in any of the Distribution Companies, neither any appointment to such posts shall be made nor any person shall be permitted to join duty hereinafter, even if appointed through orders of earlier dated.
The learned Standing Counsel shall inform this order to the distribution companies.”
Aggrieved by the said interim order of the learned Single Judge in W.P. No. 21922 of 2011 dated 3rd August, 2011, by obtaining leave of this Court, W.A No. 693, 704, 751, 769, 804 of 2011 and W A No. 108 of 2012 are filed by the persons whose cases have been considered in excess of the notified 7114 vacancies vide notifications dated 6/8.6.2006 and 20/21.10.2006. The interim order passed by this Court in W A No. 603 and 704 of 2011 dated 8.9.2011 reads as under;
“Notice to the respondents.
The appellants are not parties to the writ petition.
Therefore the appeals. Leave sought stands already granted vide orders dated 29.8.2011 and 30.8.2011 respectively. The impugned order dated 18.8.2011 has the effect of showing them the door in view of the direction of the Court dated 3.8.2011 impugned herein which prevents the respondent employer from permitting them to join duty. The order dated 18.8.2011 makes it clear that although they had already joined by virtue of appointment orders issued prior to the direction of the Court, yet they were thrown out. Hence, there shall be stay of the direction of the writ Court insofar as it affects the appellants herein and the consequential order passed by the employer dated 18.8.2011 also shall stay. Such of the appellants who were appointed earlier to the direction of the writ Court shall be allowed to function.”
11. The entire earlier batch of writ petitions, writ appeals and contempt cases relates to recruitment of 7114 posts of JLM on contract basis in AP Transco and four distribution companies as sanctioned and permitted by the Government vide its letter dated 7.6.2006 and subsequent revised criteria as approved by the Government vide its letter dated 16.10.2006.
Thereafter the Government vide its letter No. 565/Ser/2011 dated 15.6.2011 accorded permission to fill up 7319 vacant posts of JLMs in AP Transco and four distribution companies in three phases with a gap of 6 months for each phase duly following the rules in vogue including the rule of reservation. It is also pertinent to note that the said 7319 posts of JLM were directed to be filled up in accordance with the rules but it is not stated whether they shall be filled up on regular basis or on contract basis.
12. The respective counsel advanced their arguments as under:
That some of the writ petitioners are contract labour who are having more experience having worked for considerable length of service are not given preference in the selection process. It is contended that the writ petitioners in W P No. 21922 of 2011 are the contract labour who are having more experience /length of service but their cases were not considered but considered the cases of the persons who were appointed subsequent to others as on the date of first notification and working as on the date of second notification. In the said four writ petitions i.e., W P No. 9129, 6981 and 7739 of 2010 and W P No. 21922 of 2011 interim directions have been granted by this Court not to fill up the vacancies that arose subsequent to the earlier notification by the candidates who have applied pursuant to the notification dated 6/8.6.2006 and 20/21.10.2006. The persons who have been appointed taking into account their earlier date of birth who are to be affected by reason of the interim orders dated 2.8.2011 in W P No. 21922 of 2011 have filed writ appeals by obtaining leave of this Court and continuing.
Some writ petitions have been filed by freshers contending that their fundamental right to be considered for public employment is affected. It is stated that they are entitled to apply for the post of JLM that have been sanctioned subsequently by the Government, therefore, their right for consideration and selection cannot be taken away by considering the candidates who have applied pursuant to the earlier notifications dated 6/8.6.2006 as revised on 20/21.10.2006, which would be against the public policy of employment.
Some of the writ petitions have been filed on the ground that they have secured higher marks in the qualifying examination, therefore they are entitled to be given preference over the contract labour who secured less marks for the vacancies that arose subsequently and that their cases shall be considered basing on the marks secured by them in the ITI examination. The said contention was already considered and decided by the Division Bench of this Court in W.A No. 1434 of 2008 wherein condition No. 6 (iv) (b) and (d) were upheld. As per condition no. 6 (iv) (b) if the contract labour and fresh candidate apply for the post, the contract labour will be given preference for selection. As per condition no. 6 (iv) (d), if there are only fresh candidates who apply for the post, the marks obtained in the qualifying examination will be criteria for selection. Thus, if there is no contract labour competing for the said post then the selection among the freshers shall be on the basis of the marks obtained by them in the qualifying examination. Therefore, the contentions of such of those writ petitioners with regard to their preferential claim of the marks secured in the qualifying examination is untenable.
The main controversy is with regard to the preference to be given to the experience, which was actually misunderstood by the concerned authorities resulting in filing of the present batch of writ petitions. There cannot be any justification to give more preference to the persons who have been appointed as on the date of the first notification and working as on the date of the second notification, without giving more preference for the contract labour who have been already appointed having more length of service, i.e., having more experience and continuing as on the date of first notification. Therefore, presently serving contract labour means who have been already appointed and working as on the date of the first notification. If any of the contract labour are erroneously removed after issuance of the first notification i.e., before issuance of the second notification, it cannot be said that he is not working presently as on the date of the first notification. The criteria for selection either with regard to the qualification or the experience or age etc is the date of the first notification alone.
13. It is contended that cases of some of the contract labour as well as freshers have been rejected on the ground that their names were not sponsored by Employment Exchange. It is contended that when the District is criteria for selection, the cases of some of the candidates have been rejected on the ground that they have experience in some other division. It is stated that if they have experience in any circle or division, they are entitled to be considered in the same District or the Division in which notification has been issued. It is also contended that the Divisional Engineers, Assistant Engineers etc have appointed their own kith and kin as per their wish as on the date of notification and preference was given to them depriving the legitimate rights of the persons who have been working for quite a long time and continuing as on the date of the notification.
It is also contended that some of the officers with a view to choose their kith and kin, have erroneously given preference to the persons appointed as on the date of first notification and continuing as on the date of the revised notification. It was further contended that the change of the criteria for selection by the revised notification is illegal and arbitrary and the revised criteria is liable to be struck down and the freshers who got more marks in ITI are alone entitled to be considered instead of giving preference to the existing contract labour. They further submitted that candidates who submitted their applications for filling up of 7114 vacancies notified pursuant to notification dated 6/8.6.2006, cannot be considered as against the vacancies that arose subsequently and sanctioned by the Government vide its letter dated 15.6.2011.
Sri M. Venkataram Reddy, learned counsel appearing in W.P. No. 21922 of 2011 and batch and for respondents in the writ appeals filed as against the interim orders in writ petitions, submits that preference shall be given to the experienced candidates and experience means the persons who are already serving by the date of first notification and who ever have more length of service, are entitled to give more preference and therefore the action of the A.P. Transco and Distribution companies in taking into consideration the experience for the interregnum period between first and second notifications is illegal and contrary to the conditions prescribed in the revised notification as approved by the Government.
Sri Peta Raman, learned counsel for petitioners, contended that the earlier judgments are obtained by playing fraud, therefore, they shall be treated as a nullity. The petitioners have not questioned the said judgments as to how the said orders have been obtained by playing fraud on the Court and therefore, it is not open for the petitioners to contend that the said judgments are obtained by playing fraud. There is also no legal or factual foundation laid to advance such a contention.
Mr. N Subba Reddy, learned senior counsel, submits that this Court did not state implicitly or explicitly to appoint beyond the notification either in the writ appeals or in the contempt cases. The judgment of the learned single Judge was upheld by the Division Bench except the directions at para 30 (b) (i) and (ii) i.e. to evolve a structured formula to provide preference to contract labour and restriction of tenure of the candidates not beyond 30.06.2008. Therefore, it is stated that the appointments made by the respondents over and above 7114 posts encroaching upon the vacancies that arose subsequently is illegal and violative of Article 14 of the Constitution of India and thus appointments are null and void. The recruitment of the excess candidates under the guise of the undertaking is beyond the scope of the notification. It is stated that some of the candidates who are not eligible have not only been appointed but also given promotions depriving the legitimate rights of the more experienced contract labour and depriving the chances of selection of the freshers for the vacancies that arose subsequently. It is stated that the writ petitions are filed questioning the action of the respondents in filling up the newly sanctioned vacancies by the applicants who applied pursuant to the notification dated 6/8.6.2006 is illegal and unsustainable and therefore the writ petitioners who have been illegally appointed under condition no. 6 (iv) (c ) are not entitled to be continued, therefore, their appointment is liable to be cancelled, of course, subject to review and if they are entitled to be considered by giving preference to experience and length of service, if they are presently working contract labour appointed prior to the date of notification and working as such as on the date of notification i.e., 6/8.6.2006.
14. The learned Advocate General and Mr G Vidyasagar, learned counsel submits that the criteria for selection is that preference shall be given to the contract labour among the persons who have been working as on 8.6.2006 to 20.10.2006. The learned Advocate General submits that giving preference to the experience means the presently serving contract labour working as on 6/8.6.2006 to 20/21.10.2006 alone. It is stated that as per the undertaking given before the Division Bench, the persons who have been affected by struck down of condition no. 6 (iv) (c ) have been considered as against the vacancies that arose subsequently and for the remaining posts fresh notifications have been issued and therefore the recruitment method of filling up of the vacancies that have been arisen subsequently from among the applicants pursuant to the first notification who have been more aged need not be interfered with. It is stated that as this Court held that the condition no. 6 (iv) (c ) is bad and even if condition 6 (iv) (c ) goes, the selection of the contract labour who are entitled to be given preference to their experience and whose cases have been considered against the vacancies that arose subsequent to the notification dated 6/8.6.2006 cannot be disturbed. It is stated that the Government sanctioned 7319 posts of JLM vide its letter dated 15.6.2011 and some of the vacancies have been filled up by the applicants who applied pursuant to the notification dated 6/8.6.2006 and revised notification dated 20/21.10.2006 and they have been working and therefore their appointments cannot be set aside. It is stated that even if their appointments are set aside, now that they have gained more experience are entitled to be considered on preferential basis pursuant to the fresh notification issued for filling up of freshly sanctioned 7319 posts of JLM.
15. In view of the various contentions advanced in the respective writ petitions and writ appeals by the respective counsel, the following points emerge for consideration, apart from various other issues.
a) Whether AP Transco and four distribution companies are entitled to fill up any of the vacancies out of 7319 posts of JLM as permitted by the Government vide its letter dated 15.6.2011 by any of the candidates who applied pursuant to the notifications dated 6/8.6.2006 as well as revised notifications dated 20/21.10.2006 either by the existing contract labour affected by struck down of condition no. 6 (iv) (c) or by any other candidate.
b) Whether AP Transco and four distribution companies are entitled to fill up 7319 vacant posts of JLMs by issuing fresh notifications alone as directed by the Government vide its letter dated 15.6.2011.
c) Whether altering of the selection criteria vide revised notification before the selection process has begun, is illegal and discriminatory.
d) Whether the persons appointed on or after 6/8.6.2006 and working as on 20/21.10.2006 are entitled to be treated as presently serving contract labour or as freshers.
e) Whether the contract labour appointed already and working as on 6/8.6.2006 are entitled to be given preference to their experience depending upon the length of service.
f) Whether the renewal of the contract or absorption or regularization of the services of the contract labour who have been appointed basing on their qualifications and length of service beyond the contract period of one year is contrary to the notifications or any guidelines issued from time to time.
g) Whether the existing contract labour are entitled to be given more preference depending upon the length of service.
h) Whether the roster points maintained by the A.P. Transco and four distribution companies as per its existing practice while implementing the rule of reservation instead of circle/district wise is illegal or arbitrary.
i) Whether giving preference to the freshers basing upon the percentage of marks in ITI instead of giving preference to the experience/length of service of the working contract labour is illegal or valid.
j) Whether any of the existing contract labour are entitled for any exemption either with regard to the age or qualification for their absorption or consideration of their cases for the appointment of JLM
16. Though some of the counsel advanced arguments that the criteria for selection as per the revised notification under the terms and condition no. 6 (iv) (a) giving preference to the existing contract labour is illegal and arbitrary, in fact, giving preference as per the revised notification was not at all interfered either by the learned single Judge or by the Division Bench, except declaring that giving preference among the contract labour with earlier date of birth alone was set aside as violative of Article 14 of the Constitution of India. Therefore we are of the opinion that giving preference to the existing contract labour cannot be said to illegal or arbitrary. However, revised notification is given much earlier to the actual beginning of the selection process and by the date of issuance of the revised notification even the pole climbing test was not conducted to any candidate and after issuance of the revised notification, the selection process has begin and therefore it cannot be said that the conditions of revised notification are illegal, arbitrary or discriminatory.
17. The object of recruitment to any service or post is to secure most suitable person who answers the demands of the requirements of the job. In case of public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderliness in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employment where and when he pleases, and chooses to make appointments as he likes, a grave element of arbitrariness is certainly introduced.
Every public employer is duty bound to notify the vacancies to the employment exchange concerned so as to enable it to sponsor the names of eligible candidates and also advertise the same in the newspapers having wider circulation, employment news etc and consider the eligible candidates whose names are forwarded by the employment exchange concerned and the candidates who have applied pursuant to the notification/ advertisements published. Having called for the applications by issuing the notification, it cannot be said that the applicants whose names are sponsored by the employment exchange alone are entitled to be considered.
The strength and efficacy of public service, to a great measure, depends upon the sustenance of the confidence of the people that appointments are made to public service by the public recruiting agencies strictly in accordance with law and not in violation of the relevant recruitment rules, and not on despotic self-perceived, benevolent humanitarian and compassionate grounds or considerations.
A perusal of the notifications dated 6/8.6.2006 indicates that A.P. Power Utilities are further improving the rural electricity service by deploying 7114 Junior Linemen/Village Electricity Workers (VEWs) on contract basis to bring improvements in commercial performance (Revenue Demand and collections etc), Customer services like FOC, release of new connections etc and Operation and Maintenance to improve reliability etc. In order to deliver prompt and efficient service to the customers in rural areas these individuals have to stay in the appointed place and the remuneration is also linked to the performance. The incentives are contemplated depending upon the efficiency of the billing, revenue collections, redressing compliance, achieving collections with reference to the targets etc.
The natural growth rate shall be compulsorily achieved. If for six months the performance is below the natural growth rate, the contract will be terminated. Grading would be based on the percentage achievement against the efficiency growth target. The performance incentive shall be linked to the corresponding performance levels. At performance “Level A”: -- Additional remuneration of Rs.1000/- per month. At Performance “Level B”:-- The additional remuneration shall be Rs.500/- per month.At performance “Level C” :-- No incentive. The said incentives shall be paid every two months based on balance figures and the performance level achieved. No doubt, the contract shall be entered in conformity with the performance parameters for the period of one year but the nature of the work is perennial and whoever performs the job entrusted to them as per the parameters, it cannot be said that they are not entitled for continuance or for absorption and even for promotion depending upon their seniority.
18. As per the revised notification, the criteria for selection is SSLC/SSC/10th class with ITI qualification in Electrical / wireman trade or Intermediate vocational course in electrical trade. The unit of appointment is operation circle. The pole climbing test is compulsory. If all the three are fulfilled, preference will be given to the experience to the presently serving contract labour. The preference to experience means obviously preference for the more experience. The preference to the experience depends upon the length of the service. As per condition 6 (iv) (b) if contract labour and fresh candidate apply for the post, contract labour will be given preference for selection. If there are more than two contract labour, obviously preference will be given depending upon the length of the service but not based on the earlier date of birth as per condition 6 (iv) (c). If only freshers apply, then criteria among the freshers will be the marks obtained in the qualifying examination. As per clause 6 (v) the fresh candidates without work experience who have already apply need not apply again but as per condition 6 (vi) the applicants with work experience who have applied in pursuance of the earlier notification are required to furnish the proof of relevant work experience, if not already done, so as to consider the criteria for their selection giving preference to their experience. Therefore, the qualification, experience and age for the selection be considered as on the first notification dated 6/8.6.2006 only. Merely because condition No. 9 (ii) contemplates that the contract appointment shall cease to exist automatically at the end of the date mentioned in the contract, it cannot be said that A.P. Transco and concerned four distribution companies are not entitled for absorption or regularization of the contract labour in view of the perennial nature of work. As per clause 9 (iv) if the performance criteria specified in the agreement is not achieved, the contract appointment stands terminated. Insofar as the experience is concerned, condition no. 6 (iv) (a) is specific that there should be recorded evidence as certified by the concerned Divisional Engineer alone but not by anyone else. When the criteria for eligibility of age and educational qualifications is the date of notification i.e., 6/8.6.2006, the criteria for experience shall also be as on the date of the notification alone. But it appears that the authorities have misunderstood the clause 6 (iv) (a) of the revised notification and on assumptions and presumptions arrived at a conclusion that the presently working contract labour means the persons who are on the rolls as on the date of the first notification and revised notification but they have failed to consider the experience while giving preference for their length of service who have been appointed prior to the date of notification and working as on the date of issuance of notifications dated 6/8.6.2006. Therefore, we are of the opinion that preference shall be given to the experience depending upon the length of service and whoever is working as on the date of the first notification alone be treated as contract labour but subsequent experience cannot be taken into account. The notification is clear that if the contract labour and fresh candidate applies, the contract labour will be given preference for selection. If more than one contract labour applies for the post, the contract labour with more experience should be preferred but not the one with more age inasmuch as condition no. 6 (iv) (c) was already set aside by this Court. If only freshers are competing for a post, no doubt, the marks obtained in the qualifying examination will be the criteria for selection. If the existing contract labour and freshers apply, the contract labour is entitled to be given preference. The pole climbing test will be conducted to the existing contract labour and preference shall be given among the more experienced contract labour.
19. Though the operation circle will be the unit of appointment but the roster as maintained as per the existing practice prior to the issuance of the notification cannot be said as illegal for implementation of the rule of reservation. The post is not a civil post, therefore, the Presidential Order, has no application and the State and Subordinate Service Rules, have also no application, but, however, as the Government have imposed the condition to follow the Rule of Reservation and the A.P.Transco and four distribution companies have to follow the rule of reservation, pursuant to the terms and conditions imposed by the Government as notified in the notifications. As per the guidelines issued apart from fulfilling the educational qualifications, submitting caste certificate and residential certificate, pass in the pole climbing test, meter reading, cycling etc are essential. It is stated that the roster as maintained at the divisional level or circle level though the Operation Circle is unit of appointment cannot be stated as illegal. If that be so, though the unit of appointment is operation circle of the concerned District, if the existing roster system is maintained at the Divisional Level, it cannot be said that the maintenance of the roster system is illegal or arbitrary or contrary to the notification.
20. We are also of the opinion that the vacancies as notified by AP Transco and four distribution companies for recruitment of 7114 posts of JLM, the selection process has to be completed as per the notification alone but the persons who could not be considered or affected by struck down of condition no. 6 (iv) (c ) cannot be accommodated as against the subsequent 7319 vacancies of JLM sanctioned by the Government vide its letter dated 15.6.2011 and the same have to be recruited by issuance of fresh notification by A.P.Transco and concerned four distribution companies. Therefore, we are of the opinion that A.P. Transco and four distribution companies cannot deviate in any manner from the criteria for selection as notified. As per the notifications and as held by this Court in the earlier batch of writ appeals, we are of the opinion that the as per the selection criteria, the existing contract labour having more experience depending upon the length of service shall be given preference. After filling up all the vacancies by the existing contract labour by giving preference to the more experienced subject to their qualification and passing the pole climbing test, if their remains any vacancies, those vacancies has to be filled by the fresh candidates based on the marks obtained in the qualifying examination. The selection shall be made based on the merit list drawn by the selection committee. Who ever gets more marks depending upon their experience while giving preference subject to fulfilling other conditions, shall be considered. The candidates who are entitled to be considered as per their Rota Quota earmarked in the roster system should be followed. If the existing contract labour are more than the notified vacancies, the candidates who secured less marks have to be eliminated. But we make it clear that in any event, either the existing contract labour or the fresher cannot be considered for the 7319 vacancies of JLM sanctioned by the Government vide its letter dated 15.6.2011 as against the notification dated 6/8.6.2006 for 7114 posts of JLM.
21. This being the legal, factual and actual understanding of the notifications issued by A.P. Transco and four distribution companies pursuant to the orders of the Government as upheld and modified by this Court in the earlier batch of writ petitions and writ appeals, the recruiting agencies have misunderstood either mistakenly or intentionally in implementing the conditions of the revised notification and the judgments of this Court and committed various illegalities and irregularities such as giving preference to the contract labour who have been appointed as on the date of the first notification and working as on the date of the revised notification, forgetting the fact that the experience, qualifications and age for selection criteria is to be taken as on the date of the first notification alone. The authorities have also acted beyond the scope of the first notification as revised for recruitment of 7114 posts of Junior Linemen by following the rule of reservation in filling up the posts that were sanctioned subsequently over and above 7114 of Junior Linemen. The Government vide its letter dated 15.6.2011 sanctioned 7319 additional posts of JLM required to be filled up in A.P. Transco and four distribution companies in phased manner by separate notifications. Under the guise of complying the orders in W.A. No. 1434 of 2008 to appoint persons who have been affected by reason of striking down of condition no. 6 (iv) (c ) of the revised notification in giving absolute criteria for the earlier date of birth among the contract labour irrespective of the length of service , considered their cases to fill up the vacancies that arose subsequently. Therefore, the present batch of writ petitions have been filed questioning the said action of the respondents.
22. No doubt, the A P Transco and distribution companies sought for the necessary instructions for taking up further action seeking approval for appointment of certain candidates who have deprived due to condition no.6 (iv) (c) but the Government did not give any instructions except according permission to fill up the vacant posts of 7319 of JLM by following the rules in vogue. The Government vide its letter NO. 822/Ser/2009 dated 12.111.2009 permitted the A.P. Transco and distribution companies sanctioning 340 posts of JLM by way of direct recruitment on regular basis. This itself is evident that the Government has been according permission to fill up the posts in various cadres such as A.E. Electrical, Sub Engineer (Electrical), Junior Accounts Officer etc. The earlier notification and the subsequent notification is not for the recruitment of Junior Linemen/Assistant Linemen, Sub Engineers for a limited period , but, however, as per the notifications dated 6/8.6.2006 and 20-21.20.2006 though the period of contract is one year, the existing rules provided for regularisation of their services as well as to consider them for further promotion. There are no specific rules as on the date to fill up the vacancies on permanent basis. Every recruitee shall be on probation alone and after declaration of probation only, he is entitled to declaration of probation making him permanent employee. The persons appointed initially on a contract period of one year are also entitled for their regularisation as per the directions issued from time to time. There are no different rules contemplated for filling up of the posts by way of direct recruitment on regular basis or for initial period of one year on contract basis. The procedure for direct recruitment on regular basis and to fill up the posts of JLM for a period of one year contract is the same. So far no comprehensive rules have been framed with regard to the recruitment of the posts on temporary or on regular basis. The scheme as envisaged from the inception is to give preference for the experience of the existing contract labour or to regularise them depending upon their experience and qualification, therefore, the Division Bench of this Court, set aside the order of the learned single Judge in restricting the tenure of the candidate appointed not beyond 30.7.2008. The Junior Linemen appointed pursuant to the notification in 2006 cannot be said that they are not entitled to be absorbed on regular basis after 20.7.2008, as held by the Division Bench. What was questioned before the learned single Judge in the earlier batch of writ petitions is only condition no. 6 (iv) (c) of the revised notification giving absolute preference to the candidates with earlier date of birth among the contract labour irrespective of their length of service. In fact, the Division Bench in its judgment in W A NO. 1523 of 2008 dated 17.11.2009 directed the respondents therein to consider the cases as per clauses 6 1 (iv) (b) and (d) of the revised notification dated 20.10.2006, giving preference to the contract labour over the fresh candidates. The criteria for selection for fresh candidates is marks obtained in the qualifying examination. Therefore, the scheme of the notifications as upheld by the Division Bench, is clear that if both the contract labour and fresher apply, the pole climbing test has to be conducted to the qualified contract labour having the qualification of SSLC/SSC/10th class with ITI Electrical Trade or intermediate vocational course in electrical trade and if they pass the pole climbing test, they shall be considered in their respective circles/districts by following the rule of reservation in the unit of appointment.
If there is more than one contract labour for the post, no doubt, weightage shall be given to the length of service. If the length of service is also same, then the more aged shall be preferred.
23. As per the revised notification which was upheld except condition No. 6 (iv) (c), if the candidate with a requisite qualification, entitled to be considered as per the residential qualification of the respective circle/district provided he passes the pole climbing test, then preference shall be given for the experience. Under condition 6 (iv) (a) of the revised notification, preference shall be given to the presently serving contract labour who are working now as on the date of notification manning the sub station of the Transco/distribution companies with recorded evidence through sub station log books to be certified by the concerned Divisional Engineer OR with recorded evidence of EPF number in his name to be certified by the concerned Divisional Engineer. The presently serving contract labour means whoever has been appointed by the contractor prior to the notification and working as on the date of first notification dated 6/8.6.2006. The preference shall be given for the experience depending upon the length of service. The person who has been appointed as contract labour a day prior to the notification i.e., 6/8.6.2006 cannot be said that he is also entitled for the same preference with that of a person who has been working for the last considerable length of time. Therefore, the preference to the experience means preference to more experience/ length of service. As per the first notification and the revised notification the candidates applying for the post of JLM must be qualified and fulfil the terms and conditions as on the date of notification i.e., 6.6.2006 or 8.6.2006 as the case may be. Condition no.II (1) of the revised notification itself specified with regard to age that one should not be below 18 years and shall not be above 35 years as on the date of notification i.e., 6/8.6.2006. Therefore obtaining the qualification of ITI as well as the experience shall be taken into account as on the date of issuance of the first notification itself i.e., 6/8.6.2006 as evident from the terms V and VI of the revised notifications, as under;
V. Fresh candidates, without work experience, who have already applied need not apply again and their earlier application will be considered.
VI. Applicants with work experience who have applied in pursuance of earlier notification are requested to furnish proof of relevant work experience, if not already done.
But it appears that many of the officials of the AP Transco and respective distribution companies have taken into account the experience from the date of first notification to the date of second /revised notification only and considered the cases of candidates who were on the rolls during the said interregnum period of 6/8.6.2006 to 20/21.10.2006. The presently serving contract labour means one who has been on the rolls of the contractor working for the company as on the date of issuance of first notification i.e., 6/8.6.2006. Therefore, whoever is not on the rolls of the respective companies or not working as a contract labour as on 6/8.6.2006 manning the substations of Transco/Discoms with recorded evidence as stipulated, is not is entitled to be considered as presently working contract labour. However, the persons who have been engaged on 6/8.6.2006 cannot be treated as presently serving contract labour and they shall be treated as freshers only.
24. We have also randomly perused the list of selected candidates for CJLM recruitment of Ranga Reddy (North) and Nalgonda circles of APCPDCL. In Ranga Reddy (North) the details of experience / length of service was also taken into account and in some cases. It is noticed that candidates working from 8.6.2006 to 20.10.2006 i.e.., the persons appointed on contract basis in the interregnum period of issuance of first notification and the revised notification were considered and selected. Further, in Nalgonda circle, it is noticed that the experience is taken from 8.6.2006 to 20.10.2006 only and even the candidates who were appointed after issuance of first notification i.e. 6/8.06.2006 and in some cases the candidates with experience of only 10 to 30 working days were considered and appointed. It is noticed by us that in most of the cases the experience is calculated from 8.6.2006 to 20.10.2006 only, which is incorrect and not justified. For better understanding, we deem it appropriate the quote the details of their date of appointment and experience of the selected candidates of Nalgonda circle/district;
| S No. | Name | Period from 8.6.2006 to 20.10.2006 | remarks |
| 124 | Salvi Rambabu | 8.6.06 to 8.9.2006(93 days) | Selected |
| 125 | D Bhav Singh | 8.6.06 to 20.10.2006 | Selected |
| 147 | Porandhu Tirumalaiah | 18.9.06 to 20.10.2006 | Selected |
| 181 | S Sreenivas | 10.10.06 to 20.10.06(10 days) | Selected |
| 217 | Kasangi Srinivasulu | 1.9.2006 to 20.10.2006(50 days) | Selected |
| 288 | P Ramulu | 1.8.06 to 20.10.06(80 days) | Selected |
| 294 | A Shravan Kumar | 1.7.06 to 20.10.06(108 days) | Selected |
| 321 | V Sreenivas | 16.8.2006 to 20.10.06 | Selected |
| 323 | Sunkaraboina Paramesha | 25.8.06 to 20.10.06 | Selected |
| 324 | Ch Mallaiah | 24.9.06 to 20.10.06 | Selected |
| 361 | M Kishan | 1.10.06 to 20.10.06(20 days) | Selected |
| 480 | Sanda Karunakar | 1.10.06 to 20.10.06(20 days) | Selected |
| 489 | D Vasuram | 16.8.06 to 20.10.06 | Selected |
| 505 | Katha Shekar Reddy | 9.9.06 to 20.10.06 | Selected |
| 534 | B Saidulu | 22.9.06 to 20.10.06(30 days) | Selected |
25. The experience is compulsory keeping in view the peculiar nature of duties being performed by the JLMs such as recording meter reading of LT services, disconnection and or reconnection of the services, helping in releasing new services, LT lines petroling, rectification of defects and maintenance, cases of pilferage of energy and other malpractices noticed in their jurisdiction, switch off of street lights, assistance at transformers and other equipment maintenance, shift duties at 33/11 KV sub stations, attending break down, consumer complaints etc
The respective learned counsel for petitioners advanced arguments contending that the marks secured in the ITI Electrical trade alone shall form criteria for selection, if they fulfil the other conditions of residential and educational qualification and pass the pole climbing test but no preference shall be given to the experience to presently serving contract labour. That the tenure of service is mentioned as one year, therefore the experience and giving preference to the serving contract labour cannot form the basis for selection.
The Government amended the selection criteria even before the selection process has taken place, taking into consideration the representations made by the unions and associations, elected members of the Legislative Assembly to give preference to the existing contract labour and therefore it cannot be said that the preferential qualification of experiencefor appointment as per the revised notification is illegal and bad. Except condition no. 6 (iv) (c) all other conditions of notification are not at all questioned in the earlier batch of writ petitions and in fact giving preference to the experience to the existing contract labour as per condition no. 6 (iv) (b) and if there is no contract labour giving preference to the marks secured in the ITI among the freshers as per condition no. 6 (iv( (d) is also upheld by the Division Bench. In any event it is to be noted that the conditions prescribed in the revised notification is no way affect the rights much less the fundamental rights of any one, nor discriminates among the similarly situated persons. The contract labour is a separate class by itself and the freshers cannot be equated with the experienced contract labour. However, among the contract labour, the length of service is required to be considered inasmuch as all the contract labour themselves cannot be equated and the contract labour with more experience cannot be equated with the less experienced one. Otherwise, it will again be difficult to select the contract labour while giving preference. Preference to the existing contract labour obviously mean that such preference depends upon the length of service put in by an individual contract labour, as such, the clause relating to preference for the length of service was not at all interfered by this Court in the earlier batch of writ petitions and the writ appeals.
Insofar as the contention of the learned counsel for the petitioners that pursuant to notification dated 6/8.6.2006 as revised on 20/21.10.2006, the vacancies required to be filled up are only in respect of sanctioned vacancies of 7114 of JLM as approved by the Government and notified by the AP Transco and four distribution companies. The applicants who are existing contract labour or freshers cannot be considered in respect of the vacancies arose subsequent to the earlier notifications. Any vacancy that arose subsequent to the earlier notifications shall be recruited in accordance with the rules by issuing fresh notifications alone, otherwise, it would affect the public policy of the recruitment as held by the catena of judgments of the Supreme Court to the effect that everyone has a right to participate and compete for the public employment. If the vacancies subsequently sanctioned are permitted to be filled up by the candidates of the earlier notifications, it will affect the rights of many others who are entitled to be considered depending upon their experience and satisfaction of other conditions.
26. Having regard to the facts and circumstances of the case, we dispose of the writ petitions and writ appeals with the following declarations and directions:
Declarations:
i) The Notifications dated 6/8.06.2006 as revised on 20/21.10.2006 are legal, except the condition no. 6 (iv) (c) of the revised notification dated 20/21.10.2006, which was already struck down by this Court.
ii) Among the qualified candidates, the contract labour appointed earlier and working as on the date of issuance of first notification i.e., 6/8.6.2006 with work experience as certified by the concerned Divisional Engineer, shall alone be treated as presently working contract labour and are entitled for preference in selection based on the length of service.
iii) The persons appointed as on the date of first notification and revised notification, shall be treated as freshers.
iv) If the contract labour and freshers apply for the post of Contract Junior Lineman, the contract labour shall be given preference for selection as per condition 6 (iv) (b) of the revised notification.
v) The action of AP Transco and four distribution companies in selecting the fresh candidates based on their marks in ITI examination, ignoring the claim of the eligible experienced contract labour is illegal.
vi) After considering the cases of all the existing contract labour, still if there remains any vacant posts, then the cases of the fresh candidates shall be considered subject to fulfilling the requisite conditions and the marks obtained in the qualifying examination shall be the criteria for their selection as per condition 6 (iv) (d) of the revised notification.
vii) Applicants who applied pursuant to the notifications are entitled to be considered even if their names are not sponsored by the employment exchange concerned.
viii) If more than one contract labour apply for the post with same length of service and experience, in such cases, obviously, the candidate with earlier date of birth shall be given preference for selection.
ix) The technical qualifications, the educational qualifications, age and experience etc shall be fulfilled as on the date of the first notification i.e., 6/8.6.2006 alone.
X) The candidates who have applied pursuantto the notifications dated 6/8.6.2006 as revised on 20/21.10.2006 and fulfill all the requisite qualifications such as technical, educational, age, nativity, experience etc as on the date of first notification, shall alone be considered for the 7114 posts notified by AP Transco and four distribution companies.
xi) The candidates who have not applied in pursuance of the notifications dated 6/8.6.2006 as revised on 20/21.10.2006 and permitted to pole climbing test pursuant to the orders of this Court are not entitled to be considered.
xii) The action of AP Transco and four distribution companies in filling up the subsequent vacancies that arose pursuant to the permission granted by the Government vide its letter No.565/Ser/2011 dated 15.6.2011, with any of the candidates either affected by reason of struck down of condition No. 6 (iv) (c ) of the revised notification or on any account is illegal. If they are entitled to be selected by giving preference to their experience/length of service subject to fulfillment of requisite conditions/qualifications for such consideration shall be restricted to notified 7114 posts only as they are entitled for selection under conditions 6 (iv) (a) and (b) of the revised notification.
xiii) Though the selection and appointment of JLM is for one year contract period, the employer is entitled to retain, absorb and regularize their appointment and also consider for their promotion.
xiv) The subsequent vacancies of 7319 JLM posts that arose pursuant to the permission granted by the Government vide its letter No.565/Ser/2011 dated 15.6.2011 shall be filled by issuing fresh notifications alone as per the rules.
Xv) No contract labour or fresh candidate is entitled to claim any sort of exemption with regard to age, educational qualifications, technical qualifications, pass in pole climbing test etc for consideration of their cases for appointment to the post of JLM.
xvi) The rule of reservation shall be followed both in respect of existing contract labour as well as fresh candidates as per the existing procedure and practice. Though the unit of appointment is circle/district, maintenance of the roster as per the existing practice either division wise or circle wise, as the case may be, is legal and valid for implementation of rule of reservation, as the posts are not civil posts.
DIRECTIONS:
a) The selections made contrary to the above declarations are illegal and they are set aside.
b) The selection of the candidates as against the subsequent vacancies of 7319 posts of JLM that arose pursuant to the permission of the government vide letter No.565/Ser/2011 dated 15.6.2011 is illegal and the same are set aside.
c) The respondents are directed to review the entire selection process strictly in terms of this judgment and the afore said declarations and pass appropriate orders in accordance with law within a period of eight weeks from the date of receipt of copy of this order.
d) The respondents are directed to fill up 7319 posts of JLM that arose pursuant to the permission of the government vide letter No.565/Ser/2011 dated 15.6.2011 by issuing the notifications/calling for applications from the eligible candidates, of course, by giving preference to the contract labour as per rules. Sequel to the disposal of the writ petitions and the writ appeals, the Miscellaneous petitions filed along in the respective writ petitions and writ appeals are also stands disposed of. No costs.