Allahabad High Court
Om Prakash And Ors. vs U.P. Power Corporation Ltd. And Ors. on 8 January, 2004
Equivalent citations: (2004)1UPLBEC736
Author: Sunil Ambwani
Bench: Sunil Ambwani
JUDGMENT Sunil Ambwani, J.
1. Heard Sri Alok Kumar Yadav and Sri Shashi Shekhar Tiwari, for petitioners and Sri Ranjeet Saxena, for respondents.
2. Petitioner (Form number) have filed this writ petition against an order by which the U.P. Electricity Services Commission has rejected their claims as retrenched Class IV Employees of the U.P. State Electricity Board, for absorption by way of direct recruitment as Class IV Employee in U.P. Power Corporation, under a special drive to fill up 236 vacancies of Scheduled Castes, Scheduled Tribes and 97 vacancies for Other Backward Classes.
3. Earlier the petitioners had filed Writ Petition No. 12620 of 2001. It was decided on 3.4.2001, directing the respondents to decide their representations. The decision was delay. Consequently the petitioners filed Contempt Petition No. 1930 of 2001, in which notices were issued on 8.7.2002, to opposite party No. 4 to show cause as to why they should not be punished for disobeying the order passed by this Court. In the meantime, the respondents started the process to fill up vacancies. A Second Writ Petition No. 9998 of 2002, between Om Prakash and Ors. v. Deputy General Manager and Ors., was filed by the petitioners in which an order was passed by this Court directing the respondents that the petitioners, who were claiming to the retrenched employees, be permitted to appears provisionally in the next interview test, for considering reinstatement or regularisation of such Class IV Employees. Any order passed was to be subject to the result of the writ petition.
4. The U.P. Electricity Service Commission called petitioners for interview on 13/14.3.2002. The Commission considered 93 retrenched muster-roll workmen and subjected them to interview. They found 41 retrenched employees fit for absorption and rejected she candidature of other retrenched employees including the petitioners. The order of the Electricity Commission dated 12.12.2002 by which the petitioners' candidature were rejected for absorption, is the subject-matter of this writ petition.
5. Sri Alok Kumar Yadav Counsel for petitioners submit that all the petitioners are retrenched muster-roll employees The candidature for absorption has been rejected by the Commission on the grounds which are detailed as below (i) that some of the petitioners were not 18 years of age at the time of their initial recruitment as muster-roll employees; (ii) that some of them were more than 37 years of age on 1.1.1999; (iii) that some the petitioners have no knowledge of work in the department and (iv) that some of the petitioners have no knowledge of reading and writing in 'Dev Nagari' scrip.
6. Counsel for petitioners submits that all the four grounds for rejecting their candidature are wholly arbitrary, unreasonable and have to object to be achieved. Under Parichalakya Karmchari Varg Sewa Niyamawali, 1995, a person has to be 18 years of age. (Rule 8) on 1st January of the recruitment and less than 32 years. There is no minimum age fixed for muster-roll employees and that the maximum age in case of retrenched employees should have been relaxed as it was not a direct recruitment from open market. He submits that under Appendix 1(b) to the judgment, the employees including the workmen, Collie, Khalasi, Helper, Cleaner, Beldar, Jamadar, Lab. Boys, Lab, Messenger, Token Collector and Mate are required to be physically fit for carrying out duties; should be pro-sufficient in reading and writing in Dev Nagri script and should be able to ride bicycle. According to him the rules have not been amended and thus there is no requirement of any educational qualification except that the person should be literate in Dev Nagari. This qualification can be relaxed by the Chairman in special circumstances under Rule 45(ii) of the Rules. Sri Yadav, relies upon the relaxation granted by a Chairman of the U.P. State Electricity Board (Annexure-9), dated 13.11.1997, from the essential requirement of reading and writing Dev Nagari for muster roll employees (Safai Karamachari). He submits that if the power of relaxation is there, the respondents should have exercised the powers in respect of absorption of retrenched employees so far as the ground of knowledge of departmental work is concerned, it is submitted that the respondents have not disclosed the questions asked from the petitioners at the time of interview, and that no special knowledge or skill is required for employment of Class IV Employee. All the petitioners were retrenched employees and thus the Commission could not have rejected their candidature on the ground that they have no knowledge of departmental work. Counsel for the petitioners states that the Class IV Employee is not required to have special knowledge in carrying out his duties.
7. Sri Ranjeet Saxena, on the other hand, submits that Electricity Commission is an expert body. Firstly the petitioners did not prove that they were retrenched and were considered on account of the interim orders. Secondly, he submits that this Court should not interfere in the assessment of expert body for direct recruitment of the employees, even if these employees are retrenched employees of the erstwhile Board. He submits that an employee cannot be taken in employment before 18 years of age and that any employee of more than 37 years will not be any use to the Corporation after attaining an advanced age. The petitioners as Class IV Employee must have acquired some knowledge of the department which was lacking. Lastly he submits that the petitioners did not apply for relaxation of the limit. Some of them were illiterate and that no vacancy is left to be considered for absorption.
8. I have considered the respective submissions. Before proceeding to discuss them. I find that Commission has not taken into account the fact that this was a recruitment by absorption of retrenched muster-roll employees falling in reserved category. The consideration made by the Commission in respect of age are wholly arbitrary and cannot be sustained. There is no age limit fixed for employment as a muster roll employee and that after rendering long period of service a muster roll employee cannot be denied absorption on the ground that they were no 18 years of age at the time when they were taken in employment on muster roll. Such a consideration is wholly arbitrary and unreasonable. The first ground of rejection of some of the petitioners is, therefore, had to be invalid.
9. The second ground of rejection namely that some of the petitioner have attained the age of 37 years is also not sustainable, in Government of Tamil Nadu and Anr. v. G. Mohammed Ammenuddeen and Ors., 1999 (3) SSC 2439, Supreme Court was considering the absorption of retrenchment of Census Organisation, where the respondents allowed only three years relaxation in age. A direction was issued by the Supreme Court to the State Government to modify the scheme with regard to exclusion of three years from the age. In case where the retrenched employees are to be absorbed, his condition for relaxation of only three years was not found to be fair and reasonable. Following the dictum, I hold that the rejection on the ground of maximum age of 37 years, is also arbitrary and unreasonable. This was a special recruitment with relaxation of age for Scheduled Castes, Scheduled Tribes and Backward Class candidates. These petitioners have rendered long services is muster roll employees. They did not fall in the same class as direct recruits and that denial of age relaxation for the period they were in employment was arbitrary and violative of Articles 14 and 16 of the Constitution of India.
10. Coming to the third ground of rejection namely that some of the petitioners did not have the knowledge of work in the department is also found to be arbitrary and unreasonable. No expert knowledge or framing is required or is provided under Rules of 1995 for direct recruitment as Class IV Employees in the Corporation. The respondents have not given any details in the counter-affidavit with regard to the questions put to the petitioners with regard to the knowledge of work in the department. The petitioners, were working as muster roll employees as Coolies, Khalasi, Helper, Cleaner, Beldar, Jamadar and Mate. No special knowledge, expertise or training is required for such work. In the facts and circumstances of the case. I find that the rejection of some of the petitioners, on this ground is also not sustainable.
11. So far as the fourth ground of rejection namely the knowledge of reading and writing in Dev Nagari script is concerned, I find that by order, dated 13.11.1997 (Annexure-9 to the writ petition) the Chairman of the erstwhile Board had given exemption to the Safai Karmcharies who were working on muster roll. He exercised the power under Rule 45(ii) of the Rules, 1995 for relaxation of condition. The work of the Corporation has been modernized and that even Class IV Employees is required to have knowledge of reading and writing in Dev Nagari script. This Court does not approve that a totally illiterate person be recruited as Class IV Employee in U.P. Power Corporation. This condition, therefore, cannot be held to be invalid. The Court however finds that the petitioners have worked as muster roll employees for long periods and deserve some special consideration. The Union and the State Government have taken up adult literacy as National Programme to eradicate illiteracy. It will be must to deprive these petitioners an opportunity to be literate, to seek the benefit of absorption. These petitioners, therefore, are entitled to and shall be given opportunity to avail benefit of adult literacy programme. For this purpose, I find that they must be given at least three months time to attain literacy in Dev Nagari script and thereafter receive due consideration for absorption.
12. In reaching the aforesaid conclusion I am also supported by the decision in Inderpal Yadav and Ors. v. Union of India and Ors., 1985 (2) SLR 248 and a 'Single Judge judgment of this Court in Ved Prakash Sharma v. State of U.P. and Ors., 1995 (II) ALJ 1553, to which it was held that in case of re-employment or recruitment of those employees who have been working in the department as temporary or muster-roll employees, the department should not make any discrimination inter se between these employees and also employees to be taken from open market.
13. So far as the vacancies is concerned, I find that for 333 reserved vacancies only 41 retrenched employees were found fit for absorption. The Corporation, therefore, is sufficient number of vacancies to consider petitioner for absorption.
14. For the aforesaid reasons, the writ petition is allowed. The impugned order dated 12.12.2002, passed by the Electricity Service Commission, Lucknow rejecting petitioners candidature is set-aside. The Electricity Service Commission is directed to reconsider the absorption of all the petitioners in permanent employment in reserved categories in U.P. Power Corporation, afresh it accordance with directions given in the judgment. Those petitioners, who have been declared unfit on the ground of illiteracy, shall be given three months notice to receive benefits of adult literacy programme and to attain the pro-efficiency in reading and writing Dev Nagari script. The required consideration for all the employees shall be made by the Electricity Service Commission within next four months.