Allahabad High Court
Uttar Pradesh Rajya Vidut Parishad ... vs State Of U.P. on 9 February, 2007
Equivalent citations: 2008(2)AWC1464
Bench: Pradeep Kant, Ajai Kumar Singh
JUDGMENT
Pradeep Kant and Ajai Kumar Singh, JJ.
1. Uttar Pradesh Rajya Vidyut Parishad Anusuchit Jati/Janjati Karamchari Kalyan Samiti is a recognised association looking after the interest of the officers and employees belonging to , Scheduled Caste and Scheduled Tribes working in the U.P. Power Corporation Ltd., and other companies. The association has filed this writ petition claiming reservation for Scheduled Caste and Scheduled Tribes to the extent of 23% on the post of Directors and Managing Directors in different companies, namely, U.P. Power Corporation Ltd. and also other power sector companies, i.e., (i) Dakshinanchal Vidyut Vitran Nigam Limited, Agra; (ii) Madhyanchal Vidyut Vitran Nigam Limited, Lucknow; (iii) Paschimanchal Vidyut Vitran Nigam Limited, Meerut; and (iv) Purvanchal Vidyut Vitran Nigam Limited, Varanasi, as per the provisions of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994.
2. The petitioner had earlier filed a writ petition challenging the selection made on 1.2.2006 in pursuance of the advertisement issued on 1.9.2005 for filing up the posts of Managing Directors and Directors, on the ground that the said selection was per se illegal as it was conducted without implementing the reservation quota. The said writ petition was disposed of finally with a direction to dispose of the representation of the petitioner by a speaking order. The representation was rejected by means of order dated 15.9.2006, after observing that the posts of Managing Director and Director are not governed by the provisions of the Reservation Act of 1994, which has apparently given a fresh cause of action to the petitioner to prefer the present writ petition seeking quashing of the aforesaid order and for issuance of a writ in the nature of mandamus to review the selection held and appointments made on various posts of Managing Directors/Directors in Power Corporation/Generation and Distribution Companies, with a further mandamus to implement the provisions of the Reservation Act of 1994, as amended upto date, in the matter of appointments of Managing Directors/Director in the Power Corporation/Generating and Distribution Companies.
3. Sri P.K. Srivastava, learned Counsel for the petitioner, in support of the plea, submitted that the State Government is the authority to make appointments not only on the posts of Managing Director but also on the posts of Director, which posts are civil posts under the State Government, therefore, the policy of reservation would apply for appointment on the aforesaid posts. Relying upon the provisions of Section 3 Sub-clause (1) of the Reservation Act, 1994, as amended upto date, learned Counsel for the petitioner submits that the vacancies in public services and posts, since have to be filled in, in accordance with the provisions of Section 3(1) of the Reservation Act, 1994, therefore, the appointments on the posts of Managing Directors and Directors in the aforesaid companies would necessarily have to be made in accordance with the reservation policy of the State Government, as enunciated in the Act aforesaid. Submission further is that the posts of Managing Director and Director in the Corporations as well as in the Generating and Distributing Companies are the posts in public service, therefore, there is no escape from the provisions of the aforesaid Act of 1994.
4. The petitioners though have annexed the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Act, 2002 (U.P. Act No. 1 of 2002), but have not annexed the Principal Act nor the same was referred to, by the learned Counsel for the petitioner, while arguing the matter. Sub-sections (1), (2) and (3) of Section 3 of the Principal Act have been substituted by the provisions of this Amending Act, wherein the quota of Scheduled Caste candidates has been prescribed as 21%, for Scheduled Tribe candidates as 2% and for Other Backward Classes, 27%, besides providing the manner in which vacancies have to be considered. Rest of the substituted provisions of Sub-sections (2) and (3) are not relevant for the present controversy.
5. On the strength of the aforesaid substituted Section 3, emphasis has been laid upon the fact that the members of the petitioner association or for that matter employees working in the Corporations and other Generating and Distributing Companies, belonging to Scheduled Castes and Scheduled Tribes, would be entitled to 21% reservation and 2% reservation respectively.
6. The reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes has been provided by the Reservation Act of 1994 and the same is governed by the provisions of the said Act, as it has been amended from time to time. The aforesaid Act has been enacted to provide for the reservation in public service and posts, in favour of persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens and for the matters connected therewith or incidental thereto. The term 'public services and posts' has been defined in Sub-clause (c) of Section 2, which reads as under:
2 (c) "public services and posts" means the services and posts in connection with the affairs of the State and includes services and posts in-
(i) a local authority:
(ii) a cooperative society as defined in Clause (f) of Section 2 of the Uttar Pradesh Cooperative Societies Act, 1965, in which not less than fifty one percent of the share capital of the society is held by the State Government;
(iii) a Board or Corporation or a statutory body established by or under a Central or a Uttar Pradesh Act which is owned and controlled by the State Government, or a Government company as defined in Section 617 of the Companies Act, 1956, in which not less than fifty-one percent of the paid up share capital is held by the State Government:
(iv) an educational institution owned and controlled by the State Government or which receives grants in aid from the State Government, including a University established by or under a Uttar Pradesh Act, except an institution established and administered by minorities referred to in Clause (1) of Article 30 of the Constitution ; and
(v) respect of which reservation was applicable by Government orders on the date of the commencement of this Act and which are not covered under Sub-clauses (i) to (iv).
7. Section 2 (c) (iii) is the only provision under which a Board or a Corporation or a Government Company as defined in Section 617 of the Companies Act, 1956, can fall within the meanings of aforesaid phrase of 'public services and posts', provided, the Board or the Corporation or the Statutory Body established by or under a Central or a Uttar Pradesh Act, is owned and controlled by the State Government, or a Government Company as defined in Section 617 of the Companies Act, 1956, in which not less than 51% of the paid-up share capital is held by the State Government.
8. Section 3 (1) only prescribes the percentage of reservation, and reads as under:
3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes.--(1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentages of vacancies to which recruitments are to be made in accordance with the roster referred to in Subsection (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens,--
(a) In the case of Scheduled Castes--twenty-one percent;
(b) In the case of Scheduled Tribes--two percent;
(c) In the case of Other Backward classes of citizens--twenty-seven percent:
Provided that the reservation under Clause (c) shall not apply to the category of Other Backward Classes of citizens specified in Schedule II.
9. A perusal of the aforesaid provision would reveal that this percentage of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens would be applicable only in public services and posts and not to any other service.
10. The plea of the petitioner that because the State Government is the Appointing Authority, therefore, these posts of Directors and Managing Directors are public service posts, deserves to be rejected at the outset, as mere by making the State Government the appointing authority on the post of Managing Directors/Directors in the Corporations or in the Generating and Distributing Companies, they will not take the colour and shape of 'public services and posts'.
11. The 'appointing authority' has also been defined in Section 2 (a) as under:
2 (a) "appointing authority" in relation to public services and posts means the authority empowered to make appointment to such services or posts.
12. This clarifies that the term 'appointing authority' for the purpose of the Act would mean and would relate only to 'public services and posts' and therefore, even if the State Government is the appointing authority, unless the posts of Managing Directors/Directors are the posts in public service, it would not be the appointing authority within the meanings of Section 2 (a) of the Act.
13. For attracting the provisions of the Reservation Act, 1994, it is essential and mandatory that the appointments are to be made on the posts in public services, which is evident by the provisions of the Act, which confine their applicability to the public services and posts. Viewing with this angle, we find that the writ petition is absolutely vague and short of pleadings. We, therefore, required the learned Counsel for the petitioner to provide the memorandum and article of association of the Companies and also the relevant provisions of the Act.
14. Learned Counsel for the petitioner relies upon the case of the State of U.P. v. Chandra Prakash Pandey 2001 L & IC 13898 (SC) : 2001 (2) AWC 1399 (SC), wherein the Kurk Amins appointed on commission basis by different District Magistrates/Collectors within the State of Uttar Pradesh for realisation of outstanding dues of the various cooperative societies as arrears of land revenue were held to be holding civil post under the State of Uttar Pradesh within the meaning of Article 311 of the Constitution of India and that they were entitled to a scale of pay which is payable to Kurk Amins appointed on regular basis in Revenue Department and their services cannot be terminated otherwise than in accordance with procedure prescribed under law.
15. The aforesaid case was dealing with entirely different controversy where the status, the nature of job, the mode of appointment, the purpose of appointment, their appointing authority and accountability to the disciplinary authority as against the regularly appointed Kurk Amins, was under consideration. It was not a case, where the question of applicability of Reservation Act, was in issue. Merely because the Kurk Amins appointed on commission basis for recovery of outstanding dues of co-operative society, as arrears of land revenue, have been declared to be Government servants holding civil posts, it in no way, would lead to the conclusion that the Managing Directors/Directors of the Corporation and other Generating and Distributing Companies, would be treated as Government servants within the meaning of Section 2(c)(iii) and Section 3(i) of the Reservation Act of 1994.
16. A little history of the formation of Power Corporation and Distributing/Generating Companies would be necessary for deciding the issue in question. The State Government enacted the Uttar Pradesh Electricity Reforms Act, 1999 (U.P. Act No. 24 of 1999) to provide for the restructuring of the electricity industry in the State of Uttar Pradesh, the rationalisation of generation, transmission, distribution and supply of electricity in the State, regulation by an independent electricity regulatory Commission of the electricity industry in the State including the purchase, tariff and other charges keeping in view the interest of the consumers and utilities, creation of an environment which will attract participation of private sector entrepreneurs in the electricity industry in the State and generally for taking measures conducive to the development and management of the electricity industry in the State in an efficient, economical and competitive manner and for matters connected therewith or incidental thereto.
17. Section 13 of the Act of 1999 related to the formation and functions of the Uttar Pradesh Power Corporation Limited (U.P.P.C.L.), wherein Section 13(1) said that for the purposes of procurement, transmission and supply of electricity; a Company by the name of the Uttar Pradesh Power Corporation Limited shall be formed and registered under the Companies Act, 1956, as soon as may be after the commencement of this Act by the State Government Section 23 of the said Act, under Chapter VI, with the heading 'Reorganisation of the Electricity Industry', provides for transfer of the Board's properties, powers, functions, duties and personnel. In pursuance of the powers conferred by Sub-sections (1) and (2) of Section 23 of the Act of 1999, the Government made a transfer scheme for the purpose of transfer and vesting of all the properties and all interests, rights and liabilities of the Board in the State Government and revesting thereof by the State 'Government in the Power Corporation and in a generating company alongwith other property, interest, rights and liabilities of the State Government and for determining the terms and conditions on which such transfer or vesting or revesting shall be made.
18. The aforesaid transfer scheme, which is known as the Uttar Pradesh Electricity Reforms Transfer Scheme, 2000, extends to the whole of the State and also to properties, interest, rights and liabilities, proceedings and personnel of the Board outside the State.
19. In the said Scheme, the term 'transferee' has been defined in paragraph 2 (h) of the said Scheme, which means U.P.P.C.L. or U.P.R.V.U.N.L. or U.P.J.V.N.L., in whom the Undertaking or Undertakings are vested in terms of the provisions of Sub-sections (2) or (7) of Section 23.
U.P.P.C.L., U.P.R.V.U.N.L., U.P.J.V.N.L. have been defined in Sub-clauses (j), (k) and (l) as under:
(j) UPPCL" means Uttar Pradesh Power Corporation Limited a company under the Companies Act, 1956 with Registration No. 20-24928/99 issued by the Registrar of Companies, Kanpur incorporated as envisaged under Section 13 with the principal object of procurement, transmission and supply of Electricity.
(k) "U.P.R.V.U.N.L." means Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited, a company under the Companies Act, 1956, incorporated with the principal object of generating electricity with Registration No. 5065/80 issued by the Registrar of Companies, Kanpur.
(l) "U.P.J.V.N.L." means Uttar Pradesh Jal Vidyut Nigam Limited, a company under the Companies Act, 1956, incorporated with the principal object of generating electricity with Registration No. 7135/85 issued by the Registrar of Companies, Kanpur.
20. The other provisions of the aforesaid transfer scheme need not be discussed but a reference can be made to paragraph 6, which deals with transfer of personnel and their absorption in one or the other companies.
21. The U.P. Power Corporation Limited was thus, incorporated as a company, and so was the case with respect to other Corporations, namely, Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited and Uttar Pradesh Jal Vidyut Nigam Limited, in pursuance of Sub-clause (3) of Article 348 of the Constitution.
22. Later on, the Governor, in exercise of powers under Sub-section (4) of Section 131 of Electricity Act, 2003 and Sub-section (4) of Section 23 of Uttar Pradesh Electricity Reforms Act, 1999, was pleased to notify a scheme for providing and giving effect to the transfer of distribution undertakings of Uttar Pradesh Power Corporation Limited to the distribution companies, known as the Uttar Pradesh Power Sector Reforms (Transfer of Distribution Undertakings) Scheme, 2003, which extends to the whole of the State of Uttar Pradesh and also to such Assets, Liabilities, Proceedings and Personnel of the Uttar Pradesh Power Corporation Limited outside the State of Uttar Pradesh.
23. The aforesaid power sector companies, namely, Dakshinanchal Vidyut Vitran Nigam Limited, Madhyanchal Vidyut Vitran Nigam Limited, Paschimanchal Vidyut Vitran Nigam Limited, and Purvanchal Vidyut Vitran Nigam Limited have been defined in Sections 2(1)(b), (i). (j) and (r) of the Uttar Pradesh Power Sector Reforms (Transfer of Distribution Undertakings) Scheme, 2003. In the said Scheme, 'Distribution Companies' have been defined in Section 2(f) as Agra Discom, Meerut Discom, Lucknow Discom and Varanasi Discom collectively. These companies have been registered and incorporated under Section 617 of the Companies Act, 1956 and have their own Memorandum and Article of Association.
24. It is neither the case of the petitioner that these companies are Government Companies, as defined in Section 2(c)(iii) of the Reservation Act of 1994 nor there is any averment in the writ petition that paid-up share capital of not less than 51% is held by the State Government nor in fact the State Government holds the said paid-up share capital.
25. Without entering into any further details, it would be sufficient to place on record that in the Power Corporations and other Distributing and Generating Companies, since the State Government is not holding paid-up share capital, as required under the aforesaid Act of 1994, the services on the post of Directors and Managing Directors in these Companies cannot be said to be public services or the post under public service, within the meaning of the provisions of the Reservation Act. That being so, the view expressed by the Power Corporation, in the order rejecting the representation of the petitioner, that such posts are not governed by the provisions of the Reservation Act, as the same is not applicable, cannot be said to be illegal or erroneous.
26. It may also be worthwhile to mention that the State Government has laid down the service conditions of the post of whole time Managing Directors/Directors of the Distribution and Generating Companies by office memo dated 11.11.2003. The aforesaid office memo says that appointments in the aforesaid companies, shall be on contract basis, which shall be initially for a minimum period of three years or till the incumbent reaches the age of 62 years or till further orders of the State Government, whichever is earlier and the same is liable to be terminated by giving three months' notice or pay in lieu thereof. They are liable to be transferred also in either of the Companies on the equivalent post.
27. In the Articles of Association of one of the Corporations, namely, Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited, Article 90 provides that the Chairman, Managing Director and whole time Directors, shall be appointed for an initial tenure of three years which may be extended from time to time with the approval of the Administrative Department of the State Government, subject to the age of the incumbent not being more than 62 years. The appointment thus, being of a tenure post, cannot be taken to be an appointment within the meaning of Reservation Act of 1994 in a public service. The fact that the appointments of Managing Directors/Directors are made on contract basis, also excludes the applicability of the said Act.
28. For the aforesaid reasons, we do not find any merit in the writ petition or the claim raised therein and the petition, being devoid of force, having been filed without placing even the correct provisions of the Act, or the details of the margin capital, share capital or paid-up share capital of different Companies, deserves to be dismissed. The petition is accordingly dismissed.