Telangana High Court
T. Gyaneshwar vs Apsrtc And 3 Others on 4 February, 2025
*THE HON'BLE SRI JUSTICE
L.NARASIMHA REDDY
+ Writ Petition Nos.29418/2010; 23380/2009;
28932/2008 ;11500/2010; 19503/2010; 23466/2010;
26099/2010; 23033/2010; 28643/2010; 29081/2008;
958/2009; 5941/2010; 6206/2010; 2473/2009 & 11667/2009
(COMMON ORDER)
%18-10-2011
# B.Gopalu & others
..petitioners
And
$ A.P. TRANSCO, Hyderabad, rep. by the Chairman and
Managing Director & others
..Respondents
!Counsel for the petitioners : Sri S. Ramchandara Rao,
Sr.Counsel, Sri M. Surender
Rao, Sri J.R.Manohara Rao,
Sri B.V. Rama Rao,
Sri K. Srinivasa Murthy
^Counsel for respondents : Sri Vedula Venkat Ramana,
Sr. Counsel,
Sri G. Vidya Sagar,
Sri P. Lakshma Reddy
Sri K. Vasudeva Reddy,
Sri C. Raghu,
Sri M. Ravindranath Reddy
< Gist:
> Head Note:
Citations:
1) (2006) 4 SCC 1
2) 2010 (10) SCC 247
3) 2009 (4) SCC 170
4) 1990 (2) SCC 715
5) AIR 1977 (SC) 251
THE HON'BLE MR JUSTICE L. NARASIMHA REDDY
Writ Petition No.29418 of 2010 and batch
COMMON ORDER:
The activities of generation, transmission and distribution of
electricity in the State of Andhra Pradesh was being carried out by the
A.P. Electricity Board (for short 'the Board'), constituted in accordance
with the provisions of the Electricity (Supply) Act, 1948 (for short 'the
Act'). With a view to regulate the conditions of service of the
employees, the Board issued regulations from time to time, in exercise
of powers conferred upon it, under Clause (c ) of Section 79 of the
Act. The A.P. State Electricity Board Service Regulations (for short
'the Regulations') Parts I and II, which are comparable to Fundamental
Rules and State Subordinate Service Rules, respectively, relating to
Government services, were issued through B.P.M.S.Nos.547 and 548,
dated 21.08.1967, and they came into force with effect from
04.03.1970. Regulations - Part III, which deal with the classification
and control of services in the Board were issued through
B.P.M.S.No.89, dated 02.02.1970, and they came into force on
04.03.1970.
In the year 1998, the Legislatures of the State of Andhra
Pradesh enacted the A.P. Power Reforms Project Act, 1998, through
which the Board was divided into many entities through the process of
incorporation of the companies and they were assigned the respective
functions of generation, transmission and distribution of electricity.
The Service Regulations framed by the Board were adopted through
office orders issued in the year 1999, by the respective companies.
The post of Assistant Engineer (A.E) is in category III of Clause
(2) of Annexure-I to Service Regulations - Part III. Initially, when the
Rule was framed, the appointment to the posts of A.Es was through
direct recruitment alone. In the year 1994, the Board amended the
Annexure through B.P.M.S.No.354, dated 12.12.1994 by providing for
appointment by transfer of Graduate Sub-Engineers against 10% of the
vacancies. Clause (3) of the provision so introduced mandates that
Sub-Engineers, who are appointed against 10% vacancies, by
transfer, shall take the lowest rank, as on the date of appointment,
below the junior most A.E, or trainee.
In the years 2003, 2004 and 2005, the respective distribution
companies (for short 'the respondents') issued notifications, inviting
applications to select the candidates to the posts of A.Es., through
direct recruitment. However, it was mentioned that the appointment
shall be purely on contractual basis, for a limited period.
Simultaneously, appointment by transfer from the category of Sub-
Engineers was also taken up against 10% of vacancies for some
years, and of higher percentage, for one year. Over the period, the
appointment of A.Es on contractual basis was treated as the one,
made under regular basis and their services were regularised. On a
representation made by that category of Engineers, the benefit of
contractual service rendered by them, was also treated as regular,
holding good, for the purpose of reckoning their seniority.
In this regard, the Transmission Corporation, one of the
respondents, issued T.O.O.No.231, dated 23.12.2008 directing that the
service rendered by the A.Es on contract basis till their services were
regularised, be treated as regular for the purpose of fixing seniority,
without any financial and pensionary benefits. The same agency
issued memo dated 23.09.2009, clarifying that the expression
"Engineer/Assistant Engineer (Trainee)" occurring in clause (3) of
Category III, of Class I of Annexure I of Regulation- Part III shall
include "Assistant Engineer (Contract)" also, and thereby, brought the
A.Es appointed on contractual basis, within the purview of the
Regulations.
On account of the uncertainty as to the nature of appointment of
A.Es through the process of direct recruitment, the Sub-Engineers,
who are appointed by transfer as A.Es were treated as seniors in a
provisional seniority list prepared on 22.01.2008. Representations
were made by the association of A.Es, taking objection to such a
course of action. A revised provisional seniority list was issued on
01.07.2008 placing the direct recruit A.Es for the years 2003, 2004 and
2005, above the A.Es, appointed by transfer in those years. That list
was challenged in W.P.Nos.1264 and 2189 of 2009. The writ petitions
were disposed of, directing that the final seniority list be prepared in
accordance with the service regulations, and in particular, the
amendment caused through B.P.M.S.No.354 dated 12.12.1994.
Ultimately, a final seniority list was prepared on 30.09.2010, in which
the A.Es, who were appointed on contractual basis, but were treated
as having been directly recruited, were placed above the Sub-
Engineers, appointed as A.Es by transfer, for the respective years.
This batch of writ petitions is filed by the Assistants Engineers,
appointed by transfer. They challenge the orders issued by the
Transmission Corporation, treating them as Juniors to the A.Es,
appointed initially on contractual basis, and regularised thereafter; and
the consequences that have flown from the said action.
The petitioners contend that the orders of appointment issued to
the A.Es., appointed on contract basis are clear and specific to the
effect that the engagement is for a limited period, that it does not confer
any right for being regularised and that the procedure prescribed under
the regulations was not followed. They submit that whatever may have
been the justification for the TRANSCO or the Distribution Companies
(for short 'the Companies'), in treating the contractual services of such
employees, as regular, and on a time scale of pay, there was
absolutely no basis for them in treating the contractual service as
holding good for seniority also. It is their further case that by the time
the orders of regularization were issued in favour of contractual A.Es.,
the petitioners were appointed by transfer on regular basis, and in that
view of the matter, they ought to have been treated as seniors to the
said employees.
The companies, on the one hand, and the A.Es., initially
appointed on contract basis, who are impleaded as respondents in
various writ petitions, on the other hand, filed separate counter-
affidavits. Their common case is that Regulations - Part III mandate
that appointment to 90% of the posts of A.Es., must be through direct
recruitment and a detailed procedure, such as holding of written test,
conducting of interviews etc., is provided therefor. According to them,
the prescribed procedure, in its entirety, was followed at the time of
making appointments against the posts earmarked for direct
recruitment for the years 2003, 2004, 2005 also, but on account of the
specific directions issued by the Government, as a result of the
reforms, the orders of appointment were issued, treating the
employment on contractual basis. They submit that the service
regulations provide for flexibility in the matter of appointment to various
posts and for regularisation thereof, with the passage of time.
They submit that appointment of A.Es, by transfer, of qualified
Sub-Engineers, cannot take place independently, and as per the
relevant provisions, the persons so appointed have to take their
seniority after the A.Es. appointed against vacancies, meant for direct
recruitment. The respondents contend that the anomalies that have
crept into the provisional seniority list, at one point of time have been
corrected, and that the final seniority list accords with the service
regulations and other provisions pertaining to seniority.
The arguments on behalf of the petitioners were advanced by
Sri S.Ramchandara Rao, learned Senior Counsel, Sri M.Surender
Rao,
Sri J.R.Manohara Rao, Sri B.V.Rama Rao, Sri K.Srinivasa Murthy,
learned counsel.
The gist of their argument is that the seniority of an employee in
an organisation has to be reckoned from the date on which, he came to
be appointed on regular basis, and that in the instant case, for the
concerned years of recruitment, Sub-Engineers were appointed by
transfer as A.Es., earlier to the appointment of A.Es., against the
vacancies earmarked for direct recruitment. Elaborating this, they
submit that no direct recruitment in its strict sense has taken place and
that the candidates were appointed on contractual basis. They submit
that the mere fact that A.Es., who were engaged on contractual basis
were treated as having been regularly appointed 2 or 3 years later,
does not make them seniors, vis-à-vis the Sub-Engineers, appointed
as A.Es., by transfer. Learned counsel submit that true purport of
Annexure I of part III as amended through B.P.M.S.No.354 dated
12.12.1994, would be that the Sub-Engineers appointed as A.Es. by
transfer must take their seniority immediately, after A.Es., whose
services were regularised by that time, the former came to be
apointed.
Learned counsel further submit that the service regulations part
I, and part II, do not permit commencement of probation for any
employee, before a date on which the appointment was made on
regular basis. According to them, even where the contractual on non-
regular service is treated as regular, under Regulation 3(d) of part I,
it must be, for all purposes, and not selectively, for seniority alone. By
making reference to various other provisions, learned counsel submit
that there was no occasion for the respondents for invoking Regulation
26(a) of Part II, and that at any rate, the seniority of an employee
cannot be counted from a date anterior to the one, on which the
probation was commenced.
Placing reliance upon the judgments rendered by the Supreme
Court and this Court, they submit that the service rendered by an
employee on ad hoc or contractual basis cannot be reckoned for the
purpose of determining the seniority. It is also stated that memo, dated
23.09.2009, through which the expression "Assistant Engineer
(Contract)" was added to Annexure I part III amounts to amendment of
the regulations and the same cannot be sustained in law. A further
plea is raised to the effect that the amendment if at all, would operate
prospectively and cannot affect the rights, that have accrued to the
petitioners before the date on which, the memo was issued.
Arguments on behalf of the respondents were advanced by
Sri Vedula Venkat Ramana, learned Senior Counsel, Sri G.Vidya
Sagar, Sri P. Lakshma Reddy, learned Standing Counsel for the
Transco and Companies; Sri K. Vasudeva Reddy, Sri C. Raghu and
Sri M. Ravindranath Reddy, learned counsel.
Their case is that the appointment to the post of A.Es., used to
be exclusively through direct recruitment from the beginning, and that it
is only in the year 1994, that a small fraction of it was permitted to be
filled through appointment of qualified Sub-Engineers, by transfer.
They submit that the appointment of qualified Sub-Engineers at any
given time, cannot take place independently, and that appointments
through both the procedures must be done simultaneously. Learned
counsel submit that the steps for filling posts of A.Es. through direct
recruitment, were initiated in the years 2003, 2004 and 2005, strictly in
accordance with the prescribed procedure, but at the instance of the
State Government, orders of appointment in favour of direct recruitees
were issued indicating that they are contractual, in nature. It is stated
that the Regulations provide for appointment of different kinds and that
even where such appointments are made in deviation from the Rules,
power and discretion is conferred upon the authorities to treat the
appointments as regular. Reference is made to various provisions of
the Regulations - Parts I, II and III, and it is stated that notwithstanding
the nature of orders of appointment, the candidates so selected are
direct recruitees, for all practical purposes.
Learned counsel submit that the probation of the writ petitioners
was commenced only after the services of the contractual A.Es. were
treated as regular and the former cannot claim seniority over the latter.
It is also urged that Annexure I to Regulation Part III treats the
recruitment at a given point of time, as a single exercise, and
appointment through direct recruitment on the one hand, and by
transfer, on the other hand, are different facets thereof, and that they
cannot be treated as separate exercises, in the context of
determination of seniority among the candidates so appointed. They
too placed reliance upon certain decided cases and assert that no
illegality has taken place in the entire process, and that the impugned
proceedings do not suffer from any legal infirmity.
The core issue that arises for consideration in this batch of writ
petitions is in relation to the seniority, between the A.Es., appointed
against vacancies earmarked for direct recruitment, initially on
contractual basis, on the one hand; and those, appointed from as A.Es
the category of Sub-Engineers, by way of transfer; on the other hand.
To resolve this, it becomes necessary to address the following
questions, viz.,
a) Whether, the appointment to the posts of A.Es. at a given
point of time, must take place simultaneously through direct
recruitment as well as by appointment by transfer, or
whether the process of appointment by transfer to such
posts can take place independently, or in isolation;
b) whether it is permissible to make appointments on
contractual basis against the vacancies earmarked for direct
recruitment and if so, whether such appointments can be
treated as regular, at a later point of time; and
c) whether it is permissible under the Regulations to treat the
contractual service rendered by A.Es., as the one, on
regular basis, for the purpose of seniority, vis-à-vis the
A.Es., appointed by transfer from the category of Sub-
Engineers.
The broad purport of the Regulations that govern the service
conditions of the employees of the erstwhile A.P. State Electricity
Board and the present Generation, Transmission Corporations and
Distribution companies has already been indicated. The services in
the company are broadly categorized into Engineering Service,
Account service, Security Service and General Service. The subject-
matter of these writ petitions pertains to the Engineering Service,
which is dealt with under Annexure - I to Part III of the Service
Regulations. The post of Assistant Engineers occurs in Category II of
Class II of the Engineering Services. The method of appointment is
as under:
(i) Direct recruitment.
Asst. Engineers
(ii) By transfer from
Graduate Sub-Engineers
with minimum of four
years service in the
category of Sub-Engineer
or four years service in all
in the category of Sub-
E n g i n e e r , Asst.
Supervisor, Sub-
Overseer, Lineman,
Tester etc., subject to the
following conditions.
(1) Such recruitment, from
among graduate Sub-
Engineers shall be
limited to 10% of the
vacancies at the time of
each recruitment.
(2) They are not entitled
for any service
weightage.
(3) They have to take the
lowest rank as on the
date of appointment
below the junior most
Asst. Engineer/Trainees
as on that date.
Till the year 1994, the appointment to the post of Engineers
was exclusively through direct recruitment. In that year, the provision
was amended to the effect that the appointment by transfer from the
category of Sub-Engineers, subject to their holding graduation degree
in Engineering, can be made limited to 10% of the vacancies. Till the
year 2002, the appointment through both the methods, was taking
simultaneously, though in certain years, the percentage was varied in
favour of the Sub-Engineers.
In the year 2003, the notification issued for direct recruitment to
the post of A.Es., stipulated that the appointments shall be made on
contractual basis. This is stated to be on the insistence by the State
Government, in the light of the reforms, it has undertaken. Though the
entire procedure stipulated for direct recruitment, viz., conducting
written test and interviews was followed, appointments were made on
contractual basis, stipulating that the contract would be in force for a
period of one year, the emoluments will be on consolidated basis and
that no right would accrue to a candidate to seek appointment on
regular basis. The appointments by transfer against 10% vacancies,
on the other hand, have taken place as usual. This pattern was
continued in the next two years. In the year 2005, the percentage in
favour Sub-Engineers has been increased substantially by relaxing
the relevant provision. The contractual appointments came to be
treated as regular after sometime.
According to the writ petitioners, no direct recruitment, as
contemplated under the Regulations has taken place for the three
years, referred to above, and in that view of the matter, their
appointments by transfer need to be treated independently. If this is
done, they would be entitled to take seniority immediately after the
regularly appointed A.E., which obviously means the Engineer, who
has been appointed in the year 2002.
It is not uncommon that the service rules of various
organizations provide for different methods of appointment/recruitment
from different sources, to the same post. The allocation of percentages
to the respective sources brings about a phenomenon, called in the
ordinary parlance, as "quota". Each source is allocated a particular
number of vacancies and candidates from one source cannot be
recruited/appointed/promoted against the posts earmarked for the
other source. The rules also stipulate as to the manner in which the
seniority among the candidates appointed through different sources to
the same category of posts must be determined. Generally, the
candidates appointed by transfer or promotion are required to take
their seniority, after the last candidate appointed through direct
recruitment in a given year of recruitment. Here itself, it is necessary to
take into account, the concept of rotation. This is adopted whenever it
becomes necessary to ensure meticulous and perfect blend of the
candidates appointed through different sources to the same post,
particularly when the vacancies that occur at each point of time are
relatively low and the chances for candidates from a particular source
for selection are brighter, compared to those from other sources.
Take for instance, promotion to the post of Superintendent in an
establishment is from the post of Senior Assistant, Accountants and
Senior Stenographer is in the ratio of 5:3:2 as per the relevant rules.
The administration may allocate the places in the roster for each
category, lest any imbalance occurs. It may so arrange the posts in a
unit of 10 vacancies in such a way that candidates from one source are
not placed either at an extremely advantageous or extremely
disadvantageous position. Through a catena of decisions, the
Supreme Court held that the concept of rotation, on the one hand, and
the one,
of quota, on the other hand, do not coexist.
In the instant case, Clause (1) of the table extracted above,
becomes relevant. It reads:
"Such recruitment, from among graduate Sub-Engineers shall
be limited to 10% of the vacancies at the time of each
recruitment."
It is axiomatic that the number of posts, representing 10%
available for graduate Sub-Engineers must be reckoned with reference
to "the vacancies at the time of each recruitment". The phrase "each
recruitment" naturally takes in its fold, all the vacancies that are
available at a given point of time. It is difficult to assume that the
appointment by transfer of the graduate engineers to the post of A.Es.
can take place independent of the general recruitment. The petitioners
are not able to cite any instance where appointment by transfer was
made, without there being direct recruitment against 90% of
vacancies. An extreme example or instance, can exist only when the
appointing authority takes a conscious and specific decision to do
away with the process of direct recruitment altogether for an year of
recruitment and to proceed exclusively with the appointment by
transfer of the Sub-Engineers.
It is not in dispute that the steps to fill the vacancies earmarked
for direct recruitment on the one hand, and those, meant for Sub-
Engineers on the other hand, have been initiated, simultaneously in
the years 2003, 2004 and 2005. It is a different matter that the
candidates that were considered against the posts earmarked for direct
recruitment were issued orders of contractual appointment. Whether
one goes by the text of the relevant rule or the practice in vogue in
relation to the appointments of this nature, the inescapable conclusion
is that the expression "each recruitment" would take in its fold, the
direct recruitment, as well as the appointment by transfer of a graduate
Sub-Engineers.
The second question happens to be the most intricate. It is a
matter of record that the candidates that were appointed against the
vacancies earmarked for direct recruitment in the years 2003, 2004
and 2005 were issued orders of appointment, almost in the form of a
contract. In fact, the respective notifications made that aspect clear.
The petitioners contend that an appointment made on contract basis
cannot be treated as an appointment made under the Regulations,
much less can it be regularized in such a way, as to be detrimental to
the interests of the candidates appointed from the other source. In this
context, it becomes necessary, to take note of certain provisions of the
Regulations.
Rule 2 of Part I of the Service Regulations reads:
"Except where it is otherwise expressed or implied, these
regulations with such amendments as may be effected by the
Board from time to time shall apply to the monthly paid (on
time-scale of pay) employees of the Government of Andhra
Pradesh who have opted for service under the Board and to
the monthly paid employees recruited on and after 01.04.1959.
(proviso is omitted, since it is not necessary)"
Rules 3 (a) and (b) permitted the Board to avail the services of
Central and State Governments on deputation basis. Rules 3 (c ) and
(d) deal with the appointment on contractual basis. It reads:
(c) "The Board may also appoint any person or persons on
contract on such terms as may be considered necessary and
in such cases the conditions and classifications of the service
of such persons shall, except in so far a they are not governed
by the terms of contract, be regulated by the provisions of the
regulations framed by the Board.
( d) 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 thereof and thereupon such
service shall be taken into account for all purposes, including
seniority, probation, leave and pension."
Rule 2 of Part II of the Regulations reads:
"Scope of the Service Regulations (Part-II) These
regulations shall apply to all employees of the Board including
those employed under contracts and on deputation from
Government who draw their pay once a month in a time scale of
pay. All employees of the Board Services to whom these
regulations apply, shall be bound by the regulation in force from
time to time. The Board shall have authority to amend these
regulations at any time and from time to time.(proviso is omitted,
since it is not necessary)"
The phrase "appointment to a service" is defined under
Regulation
4 (1). It reads:
"Appointment to a service:- A person is said to be
appointed to a service when in accordance with these
regulations or in accordance with the regulations applicable at
the time, as the case may be, he discharges for the first time
the duties of a post borne on the cadre of such service or
commences the probation, instruction or training prescribed
for members thereof.
Explanation: The appointment of a person holding a post
borne on the cadre of one service to hold additional charge of
a post borne on the cadre of another service or to discharge
the current duties thereof does not amount to appointment to
the latter service."
The expression "Member of a service" is defined under
Regulation 4(12) as under:
"Member of a service: Member of Service" means a
person who has been appointed to that service and who has
not retired or resigned, or who has not been removed or
dismissed, or substantively transferred or reduced to another
service, or who has not been discharges otherwise than for
want of a vacancy. He may be a probationer, an approved
probationer or a full member of that service."
Regulation 4(17) indicates as to what a direct recruitment would
mean:
"Recruited Direct: A candidate is said to be "Recruited
Direct" to a Service, Class, Category or post if at the time of
his first appointment thereto, he is not in the service of the
Andhra Pradesh State Electricity Board or the Government of
a State or the Government of India.
Provided that, for the purpose of this definition, a
person shall be deemed to be not in the service of the Andhra
Pradesh State Electricity Board, nor in the service of the
Government of State or the Government of India."
The general method of recruitment, particularly where the said
Regulations provide for admixture of direct recruitment and by transfer
is dealt with under Rule 10 of Part II of the Service Regulations, as
under:
"Method of Recruitment: Where the normal method of
recruitment to any service, class or category in neither solely
by direct recruitment nor solely by transfer but is both by
direct recruitment and by transfer.
a) the proportion or order in which the special
regulations concerned may required vacancies to be filled by
persons recruited direct and by those recruited by transfer
shall be applicable only to substantive vacancies in the
permanent cadre;
b) A person shall be recruited direct only against a
substantive vacancy in such permanent cadre, and only if
the vacancy is one which should be filled by a direct recruit
under the Special regulations referred to in clause (a); and
c) Recruitment to all other vacancies shall be made by
transfer.
(proviso is omitted, since it is not necessary)"
Temporary appointments are dealt with under Rule 14 of Part II
of the Service Regulations, as under:
""Temporary appointments and promotions: The
appointing authority may appoint or promote temporarily a
person otherwise than in accordance with the provisions of
these regulations in the following cases until a person is
appointed in accordance with the regulations.
(a) (1) Where, it is necessary in the interest of
the administration to fill up a vacancy immediately and there
would be undue delay in making an appointment or promotion
as the case may be in accordance with these regulations.
(2) Where it is necessary to fill a short vacancy
in a post and the appointment or promotion, as the case may
be, would involve excessive expenditure on traveling
allowance or exceptional administrative inconvenience.
(b) Where general or special qualifications hae
been prescribed for holding a post in a category and no
member of the lower category from which promotion is to be
made to this category possesses the prescribed
qualifications, a member of the lower category may be
promoted temporarily to the higher category until a member
qualified becomes available for promotion.
(c) A person appointed or promoted under
clause 1(a) or (b) shall not be regarded as a probationer in
such category or be entitled by reason of such appointment to
any preferential claim to future appointment or promotion to
such categories. The services of such a person shall be
liable to be terminated or reverted to lower category, as the
case may be, by the appointing authority at any item without
notice and without any reason being assigned.
xxxxx
xxxxx"
Rule 23(d) deals with "the commencement of probation":
Temporary service counting for probtion: A probationer in
one service, who is appointed temporarily to another service
under sub-regulation (a) and (c) of Regulation 14, shall be
entitled to count towards his probation in the former service the
period of duty performed by him in the latter service during
which he would have held a post in the former service but for
such temporary appointment."
Rule 26 deals with the method of determination of "Seniority"
and it reads:
"Seniority:
(a) The seniority of a person in a class of service, category or
grade shall, unless he has been reduced to a lower rank as a
punishment, be determined by the rank obtained by him in the
list of approved candidates drawn up by the Board or other
appointing authority as the case may be.
Provided that where no ranking has been fixed in respect of
any person in a service, class, category or grade, the seniority
of such candidate shall be determined by the date of his first
appointment to such service, class, category or grade. If any
portion of the service of such person does not count towards
probation under regulations 14(c), (e), 19 and 38(b), his
seniority shall be determined by the date of commencement of
his service, which counts towards probation.
(Remaining part of the rule is omitted, since it is not
necessary)"
Regulation 7 of Part II mandates that in the event of there being
any conflict between the provisions of that part, on the one hand, and
those of Regulations in Part III, on the other hand, the latter would
prevail.
From a perusal of these and the other relevant Rules, it becomes
clear that though the Board prescribed procedure for appointment of
persons to various categories of posts, it has reserved to itself, the right
to deviate from the prescribed procedure, in case the situation
warrants. The Regulations also provide for the transformation of one
category of appointment with the other.
To begin with Rule 3(i)(c) of part I enables the Board to appoint
any person on contract basis on such terms, as may be considered
necessary. Whenever such appointment is made, the conditions and
classifications are regulated by the provisions of the Regulations, to
the extent they are not in conflict with the terms of contract. Clause (d)
thereof, empowers the Board to absorb a person appointed on contract
basis, into the corresponding cadre in the Boards service, on a
permanent basis. The provisions also empower the Board to give
credit or weightage to the period of contractual service in its entirety or
in part.
The petitioners do not dispute existence of such power in the
respective companies. It is a different matter that the benefit was
extended only to the extent of seniority, though Regulation 3(d)
mandates that, once the benefit is extended, it shall be for all
purposes, including seniority, probation, leave and pension. If the
benefit in its entirety is not extended, it should be the grievance of the
persons, who are extended it, and not that of the petitioners.
The purport of the definitions of certain important expressions,
such as appointment to service, approved candidate, member of
service, extracted in the preceding paragraphs make it amply clear that
appointment through a particular method or form is necessary for an
individual to become a member of service or employee of the Board.
Appointment to a service takes place, when a person is appointed in
accordance with the Regulations, including Clause 3(c) Part I of the
Regulation, that provides for appointment on contractual basis also.
A person so appointed becomes a member of service, whether he is a
probationer or approved probationer or a full member of service.
The definition of the word "probationer" takes in its fold, any
member of the service, when he has not completed his probation.
Clause 3(d) of Part-I empowers the Board to absorb a person
appointed on contract basis, into the service as a full member. Though
the aim of the Regulations of Part-I, II and III is to ensure total
objectivity in the matter of appointment of employees and to stipulate
the conditions of service, the fact that deviation from them is warranted
some-times, is recognized. The Board has reserved to itself, the liberty
to deviate from the Regulations, in case the situation demands.
Regulation 41 of Part-II reads as under:
"Regulation 41: Relaxation of regulation by the Board:
No regulation made in exercise of the powers conferred by
sub-section (c) of Section 79 of the Electricity (Supply) Act,
1948 shall be construed to limit or abridge the power of the
Board to deal with the case of any person serving under the
Board in such manner as may appear to it to be just and
equitable;
Provided that, where any such regulation is applicable to the
case of any person or a class of persons, the cases shall not
be dealt with in any manger less favaourable to the person or
class of persons than that provided by that regulation.
As a matter of fact, some of the petitioners are beneficiaries of the
relaxation or deviation. The relevant provision mandates that 90% of
the posts of A.Es shall be filed up by direct recruitment, and remaining
10%, by appointment by transfer of Sub-Engineers. In relaxation of
that provision, the percentage of appointments to be made by transfer
was enhanced substantially. In the name of a one-time relaxation,
such deviations were resorted to, on several occasions. No
amendment was carried to the provision, obviously taking shelter
under Regulation 41.
In State of Karnataka v. Uma Devi[1], the Hon'ble Supreme
Court dealt with the question as to whether an employee, whose
appointment was irregular at the inception, can seek the relief of
absorption or regularization. It was held that, if an appointment was
made contrary to the relevant provisions of law, the illegality cannot be
condoned in the name of regularization. A distinction, however, was
made between illegal appointments, on the one hand, and irregular
appointments, on the other hand. Appointment of qualified persons
against sanctioned vacancies in accordance with the prescribed
procedure, though with some deviation, was treated as an illegal
appointment, in contradistinction to irregular appointments, where
unqualified persons are appointed against
non-existent vacancies. It was observed that the services of the former
can be regularized, subject to certain conditions. In the instant case,
the appointments were made against substantive vacancies meant for
direct recruitment, and the prescribed procedure was followed. The
only difference was that the orders of appointment were issued
indicating contractual appointment.
Heavy reliance is placed by the petitioners, on the judgment of
the Supreme Court in C.S. Narayan Rao v. Union of India[2],
wherein it was held that in case the initial appointment is only ad hoc
in nature, not in accordance with the relevant Rules, and made as a
stop-gap arrangement, the period of such a service cannot be
reckoned for seniority. The judgment in Union of India v.
Dharampal[3] was quoted with approval. This principle could
certainly have been applied to the facts of the case, had the
appointments been made on ad hoc basis and the prescribed
procedure was not followed.
It has already been mentioned that the appointments were
made against substantive vacancies, as the prescribed procedure was
followed. The mere fact that the initial engagement was restricted to
one year and that certain clauses were incorporated, limiting the rights
of the appointees should not make any difference.
In Direct Recruit Class II Engineering Officers' Assn. V.
State of Maharashtra[4], this very question was dealt with from a
different angle. It was observed,
"Para 13: ...the period of continuous officiation by a
government servant, after his appointment by following the
rules applicable for substantive appointments, has to be taken
into account for determining his seniority; and seniority cannot
be determined on the sole test of confirmation, for, as was
pointed out, confirmation is one of the inglorious uncertainties
of government service depending neither on efficiency of the
incumbent nor on the availability of substantive vacancies.
The principle for deciding inter se seniority has to conform to
the principles of equality spelt out by Articles 14 and 16. If an
appointment is made by way of stop-gap arrangement,
without considering the claims of all the eligible available
persons and without following the rules of appointment, the
experience on such appointment cannot be equated with the
experience of a regular appointee, because of the qualitative
difference in the appointment. To equate the two would be to
treat two unequals as equal which would violate the equality
clause. But if the appointment is made after considering the
claims of all eligible candidates and the appointee continues in
the post uninterruptedly till the regularization of his service in
accordance with the rules made for regular substantive
appointments, there is no reason to exclude the officiating
service for purpose of seniority. Same will be the position if
the initial appointment itself is made in accordance with the
rules applicable to substantive appointments as in the present
case. To hold otherwise will be discriminatory and
arbitrary..."
There is hardly any doubt that appointments, in the instant case,
were made after considering the claims of all the eligible candidates,
the prescribed procedure was adhered to, and the candidates who
were initially appointed on contractual basis were continuing, still their
services were regularized. The relevance of this precedent may be
felt, while discussing the next question also.
Reference can also be made to Regulation 15(1) of Part-II. It
reads,
"Regulation 15: Appointment by agreements:-
(1) When, in the opinion of the Andhra Pradesh State
Electricity Board, special provisions inconsistent with any of
these regulations are required in respect of any or all of the
conditions of service, pay and allowances, pension, discipline
and conduct with reference to any particular post it shall be
open to Board to make an appointment to such post otherwise
than in accordance with these regulations and to provide, by
agreement with the person so appointed for any of the matters
in respect of which, in the opinion of the Board, special
provisions are required to be made and to the extent to which
such provisions are made in the agreement, nothing in these
regulations shall apply to any person so appointed in respect
of any matter for which provision is made in the agreement.
Provided that in every agreement made in exercise of
the power conferred by this regulation, it shall further be
provided that, in respect of any matter in respect of which no
provision has been made in the agreement, the provisions of
these regulations shall apply.
(2) A person appointed under sub-regulation (1) shall
not be regarded as a member of the service in which the post
to which he is appointed is included and shall not be entitled
by reason only of such appointment to any preferential claim
to any other appointment in that or any other service.
From this, it is clear that it is competent for the Board to make
appointment, otherwise than in accordance with the Regulations, and
to provide for various contingencies. The agreement need not be
confined to a particular instrument and the terms thereof can be altered
with the consent of both the parties. The petitioners cannot have any
genuine grievance, as long as such appointments were not made
against their slot, in a given recruitment year.
The judgment in N.K. Chouhan v. State of Gujarat[5], relied
upon by the petitioners dealt with totally a different question
altogether. Appointment to the post of Deputy Collectors was partly
through direct recruitment and partly through promotion. For one
reason or the other, the process of direct recruitment did not take place
between 1959 and 1962, but promotions have been effected during
that period. Next direct recruitment took place in the year 1963, and
the Deputy Collectors so appointed claimed seniority over the Deputy
Collectors, that were appointed on promotion, between 1959 - 1962.
The Supreme Court took the view that such claim is not valid,
particularly when no rotation system was incorporated. There is hardly
any comparison between the facts of that case and those of the case
on hand.
It is certainly permissible for the Board, to absorb an employee
appointed on contractual basis in the regular service, in case the
appointment was against a substantive vacancy and the prescribed
procedure, viz., considering the case of all the eligible candidates and
conducting the tests and interview, under the Rules, was followed.
Now remains the last question, viz., whether the benefit of
contractual service can be extended to an employee.
The petitioners contend that an employee becomes a member
of service if only he is appointed on regular basis and the period
during which, he worked on contractual basis cannot be counted
towards seniority. They submit that the A.Es appointed on contractual
basis did not even commence their probation by the time they (the
petitioners), were appointed on regular basis, though, under
Regulation 14(1).
It is needless to mention that in any service, an employee has to
undergo several stages, before he comes to be implanted
permanently. Even where the entire procedure prescribed is followed,
the initial appointment would be treated as temporary, and different
expressions are used to connote the same. In certain cases, where
the channels of appointment are different, regularization of a section of
employees needs to be withheld, till the employees are appointed
through other channel. In such cases, provisions similar to Rule 10(a)
(1) of the A.P. State and Subordinate Service Rules, or Regulation
14(1) of Part-II of the Regulations of the Board are resorted to. Once
the impediments are cleared, the stage for commencement of the
probation may arise. Once the probation is commenced, another stage
starts, paving the way for evaluation of the performance of the
probationers. Depending on such evaluation, either the probation is
declared or services are terminated.
The Hon'ble Supreme Court held in several cases that the
steps of this nature should not be permitted to have their impact upon
the process of reckoning the seniority. Though it may be some-what
difficult to determine the inter se seniority, till the uncertainty as to the
appointments is cleared; the seniority must be reckoned from the date
of initial appointment, once the appointments are treated as regular.
It is no doubt open to the Board to deny the benefit of
contractual service, to the A.Es appointed against the vacancies
earmarked for direct recruitment. However, if discretion, as provided
for under the Regulations is exercised in favour of such candidates, no
one can have any genuine grievance. The fact that the benefit of
regularization was not extended fully in terms of Regulation 3(d) of
Part-I, and that it was confined to the limited purpose of seniority; can
not at all be the genuine grievance of the petitioners. If the employees
that were extended the said benefit were satisfied, the petitioners
cannot be said to have suffered any detriment. Further, it is not as if
the A.Es appointed on contract basis were extended any service
benefit for the period during which, they did not perform the functions of
that post. But for the hindrance created by the Government, the Board
would have been under obligation to make appointments on regular
basis, as was done prior to 2003 and subsequent to 2005.
The petitioners contend that the Board has taken a definite
stand in W.P.No.2189 of 2009, to the effect that the A.Es appointed on
contractual basis would be placed below those, appointed on regular
time scale of pay, meaning thereby, the petitioners, and that it cannot
take a different stand now. In paragraph 6 of the counter-affidavit filed
therein, such a stand, no doubt, was taken. However, the writ petition
was disposed of, directing that the seniority shall be determined in
accordance with the provisions of Part-III Regulations, in so far as they
apply to the posts of A.Es. Clause 3 thereof, which is extracted in the
preceding paragraphs, mandates that a Sub-Engineer, who is
appointed as Assistant Engineer, by transfer, shall take his seniority,
immediately after the A.E appointed on regular basis. The mere fact
that the regularization of services appointed on contractual basis has
taken some time, cannot be a ground for the petitioners to steal a
march over such candidates. Further, Regulation 26 of Part-II becomes
relevant. It mandates that the seniority of an employee in a class of
service, category or grade shall be determined on the basis of the rank
or place assigned by the appointing authority in the list of approved
candidates. The proviso thereto directs that, if no such ranking has
been given, the seniority shall be determined by the date of his first
appointment to the service, class, category or grade.
The summary of the discussion is that,
a) where the appointment to a particular post in a service is
partly through direct recruitment and partly by
appointment by transfer/promotion, from in-service
candidates, appointment by transfer/promotion
cannot take place in isolation, and the steps
therefor must be taken simultaneously with those,
for direct recruitment;
b) under the Regulations framed by the Board, it is
permissible to treat an employee appointed on
contractual basis, as a regular member of the
service;
c) the Board is conferred with the power and discretion to
treat the contractual service rendered by the
employees as regular service, if
i) the appointments were made in accordance
with the prescribed procedure;
ii) appointments were made on a consideration of
the
cases of all eligible candidates; and
iii) such employees are in continuous service.
The writ petitions are therefore dismissed. There shall be no
order as to costs.
______________________
L.NARASIMHA REDDY, J
Dt:18-10-2011
Note:
L.R copy to be marked.
GJ/KO
[1] (2006) 4 SCC 1
[2] 2010 (10) SCC 247
[3] 2009 (4) SCC 170
[4] 1990 (2) SCC 715
[5] AIR 1977 SC 251
