Telangana High Court

S. Raja Mallaiah vs The Telangana State Northern ... on 16 September, 2021

Bench: B.Vijaysen Reddy

         THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY

     WRIT PETITION Nos.1314, 3870, 4022, 7259, 19831,
                        25648 and 37152 of 2018
COMMON ORDER:


      The common relief sought in WP.Nos.1314, 3870 and 7259 of

2018 is as under:

      "...the Hon'ble Court may be pleased to issue a Writ, order or
      direction, more particularly one in the nature of a Writ of
      Mandamus declaring the impugned notification No.04 and
      05/2017 dated 28.12.2017 in so far as providing 20 marks out
      of 100 marks to in-service outsourced workers engaged on
      contract basis under Para VIII-A (ii) of impugned notification
      dated 28.12.2017 as arbitrary, illegal and violative of Article 14
      and 16 of the Constitution of India and set aside the same and
      pass such other order or orders as this Hon'ble court may deem
      fit proper."


      The relief sought for in WP.No.4022 of 2018:

      "....the Hon'ble Court may be pleased to issue a writ, order or
      direction more particularly one in the nature of writ of
      Mandamus declaring the impugned action of the respondents,

in issuing impugned notification, restricting service weightage marks only in respect of in-service contract/outsourced worker, working in Telangana State Power utilities under Para VIII C, vide notification 4/2017, dated 28.12.2017, as highly illegal, arbitrary and violative of Article 14 and Article 16 of Constitution of India, consequential set aside the same, by directing the respondents to award in-service weightage marks to the petitioners on the basis of their service experience in Andhra Pradesh TRANSCO and pass such order or orders as this Hon'ble Court deems fit just and proper in the circumstance of this case."

The relief sought for in WP.No.19831 of 2018:

"....the Hon'ble Court may be pleased to issue a writ, order or direction more particularly one in the nature of writ of Mandamus declaring the action of the Respondent No.2 that is Northern Power Distribution Company of Telangana Limited (TSNPDCL), in not providing weightage marks to in-service

experienced candidates, working as Diploma Operators on contract basis, for the posts of Sub Engineer (Electrical) vide Notfication No.02/2018 dated 24.05.2018, as provided in earlier notification issued in 2015, 2012, confirmed in W.P. No.11545 of 2012 and batch dated 09.12.2013 and also upheld in W.A. No.110 of 2014 and batch dated 03.06.2014 as illegal, arbitrary and in violation of principles of natural justice and consequently direct the respondents to provide for a certain percentage of weightage marks in notification No.02/2018 for existing contract workers such as the petitioners and take such other necessary action or pass such order/orders as this Hon'ble court deem fit and proper."

The relief sought for in WP.No.25648 of 2018:

"....For the reasons stated in the accompanying affidavit, it is humbly prayed that this Hon'ble Court in the interest of the Justice be pleased to

a) Call for the records pertaining to notification 02/2018 dated 24.05.2018 issued by the respondent and hold the action of the respondent in not providing weightage to the experienced contract workers doing similar job/work in TRANSCO or DISCOM, as the case may be, and completely eschewing the marks for weightage and equating the petitioners who are experienced on par with the fresh candidates as bad, illegal, arbitrary, irrational, illogical, discriminatory and unconstitutional and also in violation of the judgment of the Learned Single Judge in Writ Petition No.11545/2012 and batch dated09.12.2013, as confirmed in Writ Appeal 11024/2014 and batch dated 03.06.2014 and

b) Consequently direct the respondents to undertake the said selection process by providing marks for in-

service/experienced candidates as per Law laid down by this Hon;ble Court in the above judgments and accordingly, provide weightage marks to the petitioners depending upon the service rendered by them on the same job/duty/functions to the extent of 2 marks for every one year service for the experienced candidates and confine the written examination to the tune of 80 marks, instead of 100 marks and accordingly, make selections and appointments as per the merit of the petitioners obtained by them in the written test as well as the weightage marks with all consequential benefits;

c) By issuance of Writ of Mandamus;

d) And pass such other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case."

The relief sought for in WP.No.37152 of 2018:

"....the Hon'ble High Court may be pleased to issue any appropriate writ, order or direction one particularly one in the nature writ of mandamus the action of the 1st and 2nd Respondents in issuing the Notification No.02/2018 dated 24.05.2018, for filling up of the Sub-Engineer (Electrical) Posts, in so far as not providing any weightage marks for the in- service Contract Wrokers, who have been working in the Transco/Discoms is concerned, as arbitrary, illegal and violative of Articles 14, 16 and 21 of the Constitution of India and contrary to the Memorandum of Settlement dated 18.12.2010 reached before the (then) 3rd Respondent and also contrary to the Common Order dated 03.06.2014/25.07.2014 in W.A. No.110/2014 & Batch passed by the Hon'ble High Court and consequently direct the Respondents to provide the reasonable weightage marks, in terms of the Common Order dated 03.06.2014 / 25.07.2014 in W.A. No.110/2014 & Batch passed by the Hon'ble High Court, by issuing the Supplemental Notification, appropriately amending Para - VII and VIII of the Notification No.02/2018, dated 24.05.2018 issued by the 1st respondent, and pass such other order as may be just."

2. Heard Mr. S. Satyam Reddy, learned senior counsel appearing

on behalf of Ms. K.V. Rajasree, learned counsel for the petitioners in

WP.Nos.1312 and 7259 of 2018; Mr. K. Laxmaiah, learned counsel for

the petitioner in WP.No.3870 of 2018; Mr. G.V. Shivaji, learned

counsel for the petitioner in WP.No.4022 of 2018; Ms. B. Rachana,

learned counsel for the petitioners in WP.No.19831 of 2018;

Mr. J. Sudheer, learned counsel for the petitioner in WP.No.25648 of

2018 and Mr. A. Jagannadha Rao, learned counsel for the petitioners

in WP.No.37152 of 2018 and Mr. G. Vidyasagar, learned senior counsel

appearing on behalf of Ms. K. Udaya Sri; Mr. Prabhakar Chikkudu and

Mr. S. Rahul Reddy, Mr. V. Mallik, GP for Energy and GP for Labour for

the respondents.

3. The writ petitions have been filed pursuant to Notification No.4

of 2017 dated 28.12.2017 (Direct Recruitment for the Post of Junior

Lineman - TRANSCO); Notification No.5 of 2017 dated 28.12.2017

(Recruitment for the Post of Sub-Engineer/Electrical - TRANSCO) and

Notification No.2 of 2018 dated 24.05.2018 (Direct Recruitment for the

Post of Sub-Engineer (Electrical) (Northern Power Distribution

Company of Telangana Limited).

4 All the learned counsel fairly conceded that the issues arising in

this batch of writ petitions have been answered by a Full Bench of this

Court vide common order dated 18.09.2020 in WP.No.41057 of 2017

and batch.

5. A learned Division Bench, having expressed that there were

contradictory views in a judgment dated 03.06.2014 passed in

WA.No.110 of 2014 and in a judgment dated 05.01.2017 passed in

W.P.No.41724 of 2016, passed order dated 15.12.2018 in

WP.No.40157 of 2017 and batch (including the instant writ petitions)

referring the subject dispute to a Larger Bench for a comprehensive

and conclusive adjudication. The main issue regarding 20% weightage

marks to the contract service/service rendered on outsourced basis in

the selection process undertaken by the TSNPDCL and other connected

issues fell for consideration in the said batch.

6. In its judgment dated 18.09.2020, the following issues have

been framed by the learned Full Bench in para 12 of the said

judgment:

i) Whether power to relax vested in the Government under Rule 31 of the Telangana State and Subordinate Service Rules, 1996 (the General Rules) is constitutionally valid or not?

ii) As part of selection process for direct recruitment, whether the employer has power to apportion marks towards the service rendered by a person on temporary basis or not?

iii) If yes, whether such power is an enabling power, which cannot be claimed as of a right by the employee?

iv) To what extent marks for the contract service/service on outsourcing basis can be prescribed out of total marks for selection?

WP.Nos.1314, 3870 and 7259 of 2018:

7. The learned Full Bench, while answering the issues, made the

following observations:

(a) Rule 31 of the General Rules vesting the power of relaxation

in the Governor is constitutionally valid (para 42); The Power Utilities

are governed by the Industrial Disputes Act. And, as mentioned

hereinabove, there were Settlements under the Industrial Disputes Act

for assigning weightage to the contract service/service made on

outsourcing basis (para 83); Needless to say, a Settlement arrived

under the Industrial Disputes Act, in the course of conciliation

proceedings with a recognized majority Union, is on par with an award

made by an adjudicatory authority; it is binding on the Managements

and on all the workmen of the establishment. [Ref. to Transmission

Corporation vs. P.Ramachandra Rao [(2006) 9 SCC 623]:

paragraph-17] (para 84).

(b) By assigning marks to contract service, the employer affords

an opportunity to person working on contract basis/on outsourcing

basis to join the regular stream. Therefore, the present exercise

answers the twin tests of valid classification, i.e., intelligible differentia

between contract employees and open market candidates, and the

object, i.e., to give opportunity to seek permanent public employment

to employees working on contract basis/ on outsourcing basis.

Moreover, by selecting the experienced persons, who have knowledge

of the requirements of the job, the efficiency of the organization is

strengthened. A high efficiency is in the public interest. Hence, the

classification certainly withstands the test of Articles 14 & 16 of the

Constitution of India. It is, thus, reasonable. Therefore, if the employer

seeks to earmark certain percentage of marks out of total marks in the

recruitment examination towards contract/outsourcing service in the

process of selection, it does not offend either Article 14, or Article 16

of the Constitution of India (para 94).

Settlement arrived on 18.12.2010 under section 12(3) of the Industrial

Disputes Act, 1947, which Settlement provides weightage to contract

service. However, though Settlement envisaged 45 marks as

maximum weightage, as held by the learned Single Judge in the

judgment dated 09.12.2013 in W.P.No.3753 of 2012 and batch,

affirmed by the First Division Bench, maximum weightage marks is

reduced to 20 marks and thus the TS TRANSCO is bound to provide 20

marks as weightage to contract service (para 96); thus, the grant of

weightage marks is legal and permissible (para 97); if the Service

Rules/policy decisions do not provide weightage to contract

service/service on outsourcing basis, no temporary employee can

assert that his temporary service should be reckoned in the selection

process for direct recruitment and if no provision is made in the

Service Rules/policy decisions, it is for the employer to extend

weightage to temporary service while making regular recruitment

(para 125); prescribing 20% as weightage to contract service/service

rendered on outsourcing basis while making regular recruitment is not

excessive, it is within the powers of employer, hence, legal and valid

(para 135).

8. In view of the above observations of the learned Full Bench,

this Court is of the view that the employer has got prerogative to relax

the Rules by giving weightage to the temporary service while making

regular recruitment and hence, WP.Nos.1314, 3870 and 7259 of 2018

are liable to be dismissed.

WP.No.4022 of 2018:

9. The issue raised in this writ petition is dealt with by the Full

Bench as under:

"114. The Power Utilities in the Telangana State have to work in tandem in the Power Sector of the State. Their combined operative capacity and synergy ultimately ensures uninterrupted supply of power to the consumer, i.e., Generation, Transmission and Distribution. On the other hand, after the bifurcation of erstwhile State of Andhra Pradesh and formation of State of Telangana, the Power Utilities Companies of Telangana State have no connection with Power Utilities Companies of State of Andhra Pradesh. There may be Power Utilities Companies in several other States, as Generation, Transmission and Distribution of electric energy is common in all States. There may be employees doing same work in the other States. If the argument urged by the learned counsel for the petitioners were accepted that the benefit of past contractual employment has to be given to the contract employees working in Andhra Pradesh Power Utilities Companies as the nature of the work is the same, the said argument would have to be applied to the employees of other states. For the said argument cannot be confined to merely the contractual workers of the Power Utilities Companies of the State of Andhra Pradesh.

115. The Power Utilities Companies of State of Telangana are a class by themselves compared to Power Utilities Companies in State of Andhra Pradesh. Therefore, treating temporary

employees working in the Power Utilities Companies of Telangana State as a class and extending certain concessions or benefits to them is reasonable. It is a valid classification and does not offend Article 14 of the constitution of India."

In view of the above, WP.No.4022 of 2018 is liable to be

dismissed.

WP.Nos.19831, 25648 and 37152 of 2018:

10. The issues raised in these writ petitions are dealt with under

issue No.3 framed by the learned Full Bench as under:

"Issue No. (iii): Whether such power is an enabling power, which cannot be sought as a right? Ancillary to this issue, are two more questions: (a) whether employer, the State or its instrumentality, is under obligation to extend the scheme of weightage to temporary service rendered outside its employment, or not? And (b) whether not extending the benefit of weightage marks to those outside the employment of the Power Utilities Companies would offend Articles 14 and 16 of the Constitution, or not?"

11. The learned Full Bench while answering issue No.3 observed and

held as under:

107. With reference to power utilities Companies, it is necessary to travel in time in order to fully understand and to appreciate the opposite stand of the parties. The erstwhile Andhra Pradesh State Electricity Board was unbundled, and separate companies were formed in the combined State of Andhra Pradesh. These companies dealt with Generation, Transmission, and Distribution of electric energy. The APGENCO and APTRANSCO were established dealing with Generation and Transmission, respectively. While dividing the entire combined State into four areas, four companies were formed for distribution of electricity. These companies were called, (i) the Northern Power Distribution Company Limited,

(ii) the Southern Power Distribution Company Limited, (iii) the Eastern Power Distribution Company Limited, and

(iv) the Central Power Distribution Company Limited.

108. In view of the Settlements arrived under Section 12 (3)

read with Section 18 of the Industrial Disputes Act, the Managements of the Power Utilities Companies have no option, but to extend weightage to the temporary service rendered in their respective employments while making regular recruitment. It is no more enabling power. The Settlements vested right to secure weightage marks to all temporary employees governed by the Settlements. However, these Settlements do not impose an obligation on the Power Utilities Companies to extend weightage to contract service rendered in any other company/in any other post.

109. In the Power Utilities Companies, two different circumstances exist: (i) in the recruitment notification Nos.4 of 2017 and 5 of 2017, dated 28.12.2017, issued by TSTRANSCO, for the posts of Junior Lineman and Sub-Engineer (Electrical), the Company has restricted weightage to service rendered on contract basis/on outsourcing basis in the Power Utilities of the Telangana State. Such benefit is not being extended to those contractual employees who had earlier worked under the Andhra Pradesh State Electricity Board, and who are presently working in the State of Andhra Pradesh under its Power Utilities Companies.

(ii) In the recruitment Notification No.2 of 2018, dated 24.5.2018, TSNPDCL has not assigned weightage to contract service in the recruitment process to the post of Sub-Engineer (Electrical).

110. Thus, in the Power Utilities Companies, two independent claims are being made against non-grant of weightage to contract service/service on outsourcing basis: for the recruitment in TSTRANSCO, the contract/ outsourcing employees working in the Power Utilities Companies in the State of Andhra Pradesh claim that the benefit of weightage marks should equally be extended to them. Secondly, although TSNPDCL is not extending the benefit of weightage marks under its recruitment notification, as mentioned above, still the contractual employees of TSTRANSCO claim that the benefit of weightage marks should be given to them for the period of temporary employment under TSTRANSCO.

111. According to Sections 12 (3) and 18 of the Industrial Disputes Act a Settlement is binding on the employer only vis- a-vis own employees. In the absence of binding Settlement to extend weightage to contract service/ service on outsourcing

basis rendered outside respective power utilities Companies, it is for the employer to take a decision to grant weightage to experience gained by a person outside its employment.

112. It is, indeed, a settled principle of Service Jurisprudence that no temporary employee has an indefeasible right to claim that his temporary service should be counted while making regular recruitment. In fact, it is the employer's discretion to extend weightage to such temporary service while making regular recruitment or not.

113. Since it is a discretionary power TSTRANSCO is well within its power to restrict weightage to service rendered on contract basis/ on outsourcing basis in the Power Utilities of the Telangana State. Merely because, APTRANSCO was the employer before bifurcation of the State of Andhra Pradesh, and merely because TSTRANSCO was carved out from APTRANSCO, are no grounds for an employee of APTRANSCO to claim that he/ she is entitled to the benefit of weightage while applying for a post in TSTRANSCO. After all, TSTRANSCO and APTRASNCO are two different entities. The employees of APTRANSCO are working for a different employer and that, too, in a different state.

114. The Power Utilities in the Telangana State have to work in tandem in the Power Sector of the State. Their combined operative capacity and synergy ultimately ensures uninterrupted supply of power to the consumer, i.e., Generation, Transmission and Distribution. On the other hand, after the bifurcation of erstwhile State of Andhra Pradesh and formation of State of Telangana, the Power Utilities Companies of Telangana State have no connection with Power Utilities Companies of State of Andhra Pradesh. There may be Power Utilities Companies in several other States, as Generation, Transmission and Distribution of electric energy is common in all States. There may be employees doing same work in the other States. If the argument urged by the learned counsel for the petitioners were accepted that the benefit of past contractual employment has to be given to the contract employees working in Andhra Pradesh Power Utilities Companies as the nature of the work is the same, the said argument would have to be applied to the employees of other states. For the said argument cannot be confined to merely the contractual workers of the Power Utilities Companies of the State of Andhra Pradesh.

115. The Power Utilities Companies of State of Telangana are a class by themselves compared to Power Utilities Companies in State of Andhra Pradesh. Therefore, treating temporary employees working in the Power Utilities Companies of Telangana State as a class and extending certain concessions or benefits to them is reasonable. It is a valid classification and does not offend Article 14 of the constitution of India.

116. Admittedly, in the notification dated 15.12.2011, the APNPDCL had permitted Diploma Operators/Sub-Engineers working in other Power Utilities Companies to avail the benefit of the weightage marks, while undertaking recruitment to the post of Sub-Engineer (Electrical). However, TSNPDCL has not assigned weightage to contract service in the recruitment notification issued by it. The justification assigned against not extending the weightage is three-fold: firstly, no one is working as a Sub-Engineer, on temporary basis, in TSNPDCL. Therefore there is no need to assign weightage. Secondly, the duties and responsibilities attached to the post of Sub-Engineer/Diploma Operator in TSTRANSCO is not the same as that of Sub- Engineer in TSNPDCL. Thirdly, the directions issued by learned Single Judge in the judgment dated 9.12.2013 in W.P. No. 3753 of 2012 and batch, that the weightage should be given only to those who hold the same post, was affirmed by the First Division Bench. Therefore, the TSNPDCL is justified in denying the benefit of weightage marks to those contractual employees working in other Power Utilities Companies.

117. It is asserted that nature of duties undertaken by the Sub-Engineers in TSNPDCL is not similar to the work undertaken by a Sub-Engineer in TSTRANSCO. Hence, merely because designation is the same, and the educational qualifications prescribed for the post of Diploma Operator in TSTRANSCO and TSNPDCL are the same, it cannot be inferred that the job requirement is same. Therefore the said experience cannot be treated as the requisite work experience.

118. According to TSNPDCL, the 220/132/33 KV Sub-stations owned by TSTRANSCO are manned by Sub-Engineers; if they are working as outsourced employees, they are designated as Diploma Operators. In the TSNPDCL the Sub-stations are manned by helpers. The Sub-Engineers recruited by TSNPDCL do not man the Sub-stations. Their duties are administrative in nature; they work under the supervision of the Assistant

Engineer, or the Additional Assistant Engineer. Hence, the nature of work entrusted to them is entirely different from the work entrusted to Sub-Engineers/ Diploma Operators in TSTRANSCO.

119. Undoubtedly, it is for the employer to decide what experience is required to hold a post. Equivalence depends on the nature of duties and responsibilities attached to the concerned post. Therefore, mere designation and same qualifications prescribed for two different posts do not necessarily make the posts equivalent. The employer is best suited to decide the equivalence of the posts. Since the TSNPDCL has taken the stand that duties and responsibilities attached to the posts of Sub-Engineer/Diploma Operator in TSTRANSCO is not the same as Sub-Engineer in TSNPDCL, the writ Court cannot hold the same as illegal. The Court cannot make its own assessment of similarity of work experience. Thus, the Court cannot direct that the contract service rendered as Diploma Operator/ Artisan in TSTRANSCO should be considered for the recruitment to the post of Sub-Engineer in TSNPDCL. The writ Court has no such expertise. Therefore, such aspects are best left to the employer. Such aspects are not within the realm of judicial review.

120. In direction No.3 of the judgment dated 9.12.2013, the learned Single Judge ordered that the experience must be in the same post. This direction was affirmed by the First Division Bench, and by the Hon'ble Supreme Court while it dismissed the S.L.P.s preferred against judgment of the First Division Bench. Therefore, the petitioners are unjustified in claiming that the experience gained by them in another post, with another Power Utility Company should be considered, and be given the benefit of weightage marks. Such an argument is clearly untenable.

...

124. It is apparent that the decision of TSNPDCL not to extend the weightage to the contract service rendered in TSTRANSCO in the post of Sub-Engineer/Diploma Operator/Artisan is well considered, and supported by reasons germane to the decision. Moreover, the petitioners in W. P. Nos. 19831, 25648, 37152 & 41102 of 2018 are working in TSTRANSCO and not in TSNPDCL. Therefore there is no compulsion on TSNPDCL to extend weightage of service rendered under another employer, especially when TSNPDCL

asserts that the duties and responsibilities attached to the post of Sub-Engineer/Diploma Operator in TSTRANSCO is not the same as that of Sub-Engineer in TSNPDCL. Thus, the decision not to grant weightage to the said service in the direct recruitment to the post of Sub-Engineer, cannot be declared as illegal or arbitrary."

12. In view of the above, this Court is of the opinion that the issues

raised in these writ petitions have been exhaustively answered by the

learned Full Bench in the judgment under reference as discussed

above. Hence, this Court does not find any merit in the writ petitions.

13. In the result, the writ petitions are dismissed. However,

the respondents are directed to complete the selection process,

pursuant to Notification Nos.4 and 5 of 2017 dated 28.12.2017 and

Notification No.2 of 2018 dated 24.05.2018, as expeditiously as

possible, preferably within one month, in respect of the category of

Junior Linemen. Insofar as the Sub Engineers in TRANSCO are

concerned, it is stated that there is an order passed by the Supreme

Court in SLP (Civil) Nos.12599, 11149, 11170 and 11481 of 2020. The