Andhra HC (Pre-Telangana)
A.P. Power Diploma Engineers ... vs A.P.S.E.B., Vidyut Soudha, Hyd. & Ors. on 27 November, 1998
Equivalent citations: 1999(1)ALD321
ORDER
N.Y. Hanumanthappa, J
1. The conflict of service interests amongst the Diploma Engineers Association and Graduate Engineers Association of the Andhra Pradesh State Electricity Board, vis-a-vis A.P. State Electricity Board Engineers Assoication and the Board proper and their rival claims, necessitated adjudication by this Court in this batch of writ petitions.
2. The brief history of the case and the necessary facts as could be gathered from the pleadings and other material on record are as follows: In the year 1959, the hitherto Electricity Department of the Andhra Pradesh State Government was constituted as the Andhra Pradesh State Electricity Board. Till 1970 the service conditions of its employees were governed by the A.P. Electrical Subordinate Service Rules and A.P. Electrical Service Special Rules. Under these rules, the Section Offices in the Engineering Service establishment of the Board were manned by Junior Engineers and Supervisors of Grade-I and II. By G.O. Ms. No.2773, PWD, dated 20-11-1965, the Government of A.P. merged both the Grades of Supervisors into single category as supervisors. For the post of Supervisor, Diploma in Engineering has been the prescribed qualification for direct recruitment. The promotion post to that ofSupervisor is the post in the cadre of Section Officer. There are two channels of recruitment to this post - one is by direct recruitment, in which case Graduation in Engineering is prescribed qualification; and the other is by recruitment by way of promotion from the cadre of supervisors with some experience. Initially, one year of service in the cadre of Supervisor was prescribed as essential condition for being considered for promotion to the cadre of Section Officer. Subsequently, it was enhanced to five years and then to ten years. It is pertinent to note that there was no quota fixed for recruitment to the post of Section Officer from either of the channels. In the year 1970 the Board framed its own Regulations governing the service conditions of its employees under Section 79(c) of the Electricity Supply Act, 1948. The said Regulations came into force with effect from 4-3-1970.
3. The personnel directly recruited to the cadre of Section Officer are designated as Assistant Engineers, and the promotees are designated as Additional Assistant Engineers. The next promotion from the post of Assistant Engineer/Additional Assistant Engineer is the post of Assistant Divisional Engineer. Under the Regulations the ratio to be followed while making promotions to the post of Assistant Divisional Engineer was 4:1 among the Assistant Engineers and Additional Assistant Engineers respectively.
4. Now the bone of contention in these writ petitions is the ratio to be followed (i) between the direct recruitees (Graduates Engineers) i.e., Assistant Engineers and the promotees (Diploma Engineers) i.e., the Additional Assistant Engineers; while filling up the vacancies of Section Officers; and (ii) between the Graduate Engineers and Diploma Engineers to the post of Assistant Divisional Engineers.
5. The contention of the Diploma Engineers is that since no specific quota was fixed for recruitment to the post of the Section Officer, from direct recruitment and recruitment by transfer, there was stagnation in the post of Supervisor for about 15 to 18 years and their expectations of promotion arc frustrated. Further G.O. Ms. No.2674, dated 4-11-1960 which provides for direct recruitment to an extent of 32-1/2% of the substantive vacancies in the posts of Assistant Divisional Engineers and the rest of 67-1/ 2% by promotion from the Assistant Engineers and Additional Assistant Engineers, following a ratio of 2:1 between them respectively, was not implemented in Electricity Department. In this department direct recruitment was provided to an extent of 20% of the permanent posts of Assistant Divisional Engineers and the balance to be filled in by following the ratio of 4:1 between the Assistant Engineers and Additional Assistant Engineers respectively. The Diploma Engineers Association submitted several representations to the Board to change this ratio from 4:1 to 3:1. The Board communicated to the Association its proposal to Government to change this ratio of 4:1 to 3:1. However, it did not amend the same after the Government informed the Board that since the Board is an autonomous body, it can do so at its level itself A joint meeting was held on 5-2-1990 in the chambers of the then Chairman, who was an IAS Officer, between the representatives of the Board and the Diploma Engineers Association regarding recruitment ratio to the post of Section Officer, promotion ratio to the post of Asst. Divisional Engineer, payment of Special Pay etc. But the Director (Personnel), being a member of the Graduate Engineers Association did not care to place the Minutes of that joint meeting for consideration of the Board. In the circumstances the Diploma Engineers Association called on a general strike to be commenced on or after 18-3-1991 with a single demand to refer the charter of demands raised by that Association to an arbitrator, Tribunal or an impartial committee for adjudication. The dispute was admitted by the Conciliation Officer. However with the intervention of Energy Secretary and others, a bilateral settlement was entered into between the Board and the Diploma Engineers Association on 5-5-1991 which was recorded in the conciliation proceedings. In the said settlement it was agreed that the Board will appoint a One Man Commission to go into the dispute, and the Board will revise all the promotions made after 5-5-1991 in accordance with or in terms of the recommendations to be made by the Commission. Pursuant to the settlement, the Board appointed Sri A. Krishna Swamy, IAS (Rtd.), former Chief Secretary to Government of A.P., as One Man Commission and referred the issues that were raised by the Diploma Engineers Association, as well as the Assistant Engineers Association and Engineers Association who represented Graduate Engineers of the Board. After hearing all the parties, the Commission passed an award, which was furnished to the Diploma Engineers Association on 23-6-1992 by the Board. The Commissioner fixed a ratio of 3:2 to be followed between Graduate Engineers by direct recruitment and Diploma Engineers by promotion respectively to the post of Section Officer. He fixed a ratio of 3:1 to be followed between the Assistant Engineers and Additional Assistant Engineers while making promotions to the post of Assistant Divisional Engineers. Though the Board assured the Diploma Engineers Association the implementation of that award, but confrarily on 24-9-1992 it recruited 300 Graduates in Engineering to the post of Section Officer and notified another 300 posts of Section Officer, denying the due share of 400 posts to be filled by recruitment by promotion of Diploma Engineers, as per the terms of the Award. Further the Board vide B.P. Ms. No.386, dated 30-9-1992 issued promotion orders to fill up the posts of Assistant Divisional Engineers in the ratio of 4:1 insteadof3:l. Though this fact of breach of settlement dated 5-5-1991 and conciliation proceedings dated 3-7-1992 etc., was brought to the notice of the Conciliation Officer and Additional Commissioner of Labour, the authorities failed to launch prosecution against the Board.
6. Further more, the Board on 8-4-1993 issued B.P. Ms. No.12 making amendments to its Service Regulations, providing that 20% of the vacancies in the post of Assistant Divisional Engineers shall be filled up by limited recruitment (of Assistant Engineers) and the balance of 80% by following 3:1 ratio between the Assistant Engineers and Additional Assistant Engineers respectively. Challenging this B.P. Ms. No.12, dated 8-4-1993 which provides for limited recruitment, the Diploma Engineers Association filed WP No.7074 of 1993 on the grounds of illegality, mala fide and arbitrariness. The contention of the Diploma Engineers Association is that the One Man Commission did not advert or apply its mind to the channel of direct recruitment to the post of Assistant Divisional Engineer to the extent of 20% at all, and the ratio of 3:1, as fixed by the Commission is applicable to the total number of vacancies available. By introducing this concept of 'limited recruitment', which is expressly reserved for Graduate Engineers, the Board indirectly defeated the Award/recommendations of the Commission and retained the old ratio of 4:1.
7. By way of B.P. (P&G-Per.) Ms. No.82, dated 17-5-1993 the Board caused amendments to the Regulations to the effect that,--a merit list of candidates selected for recruitment under limited recruitment shall be drawn on the basis of performance in written test, weightage for relative seniority, acquisition of P.G. qualification and annual performance reports. Further it is stipulated that a candidate coming up in the merit list for limited recruitment shall not be placed at lower rank than that which he/she would have otherwise had, but for his/her inclusion in the merit list. However, on the same day the Board had issued Memo No.DS (PS)DM/ IX/ZI-103/93-4 dispensing with all other criteria and undertaking only oral test for recruitment for the limited recruitment during the recruitment years 1993 and 1994. According to the Diploma Engineers Association, this is nothing but a mere camouflage for the purpose of converting Graduate Engnieers into Assistant Divisional Engineers and an empty formality invented for the purpose of frustrating the Award of the One Man Commission. Therefore, challenging this B.P. (P&G.-Per.) Ms. No.82, dated 17-5-1993, it filed WP No.17126 of 1993 with a further request to direct the Board to give effect to the One Man Commission report which was accepted by the Board by its letter dated 12-4-1993.
8. As already stated, there has been a conflict of claims between the Diploma Engineers and Graduate Engineers. The Graduate Engineers Association, namely, the Andhra Pradesh State Electricity Board Assistant Engineers Association contends that inspite of repeated demands by the non-graduate Engineers from time to time for changing the ratio of recruitment to the post of Assistant Divisional Engineers, the Government did not accept the same keeping in view the need for experts in the organisation. The Diploma Engineers who acquired a degree qualification in Engineering can opt to become an Assistant Engineers and are entitled for automatic conversion and for counting 50% of their total service as Supervisors (Additional Assistant Engineers) for the purpose of reckoning their seniority. However, since the age limit prescribed for recruitment under limited recruitment is 33 years, no member of the Diploma Engineers Association who acquired the qualification of graduation in Engineering could get a chance under the said channel to become Assistant Divisional Engineer. The agreement dated 5-5-1991 entered into between the Diploma Engineers Association and the Board, pursuant to which the Board appointed the One Man Commission, and also the order of the Board basing on the Award of such Commision are not binding on the Graduate Engineers Association for the following reasons, namely,-- firstly, the agreement was the result of coercion and threat of strike exercised by the Diploma Engineers Association; secondly, it. was entered into in the absence of all other parties going to be affected by it; thirdly, Diploma Engineers are not workmen within the purview of Industrial Disputes Act nor any such agreement was contemplated under the Industrial Disputes Act; fourthly, the Commission did not apply its mind before changing the ratio of promotion from among the two channels nor it gave any valid reasons for doing so; and lastly, no notice was given to the affected parties by the Board before accepting the Award. The Graduate Engineers Association, therefore, approached this Court in WP No.11595 of 1993 with a prayer to declare the agreements between the Board and the Diploma Engineers Association dated 5-9-1991 and 3-12-1992 and also the report of the Commission insofar as it changes the ratio from 4:1 to 3:1 and consequent amendment issued by the Board in B.P. (P&G-Per.) Ms. No. 12, dated 8-4-1993 as illegal, arbitrary and violative of principles of natural justice and also Articles 14 and 16 of Constitution of India. It further requested the Court to declare that the review sought to be undertaken by the Board pursuant to agreement dated 5-5-1991 from that date as illegal.
9. Yet another Graduate Engineers Association, namely, Andhra Pradesh State Electricity Board Engineers Association, filed WP No. 1669 of 1995 questioning the legality and validity of the bilateral settlement dated 5-5-1991 and also the award passed by the One Man Commission on two grounds, namely, the Graduate Engineers are not parties to the bilateral settlement, and the Award of the One Man Commission is not an award under the provisions of Industrial Disputes Act and binding on them. This Graduate Engineers Association requested the Court to quash both of them.
10. Now the stand taken by the Board in brief, is as follows : The Board while admitting the appointment of Sri A. Krishna Swamy, IAS as One Man Commission in pursuance of the settlement dated 5-5-1991 denies the allegation of the Diploma Engineers Association that it violated the Award. The Baord admitted that it examined the recommendations of the Commission, namely, the ratio to be followed for recruitment to the post of Section Officer as 3:2 between the Graduate Engineers and Diploma Engineers respectively; and the ratio to be followed for recruitment to the post of Assistant Divisional Engineers as 3:1 instead of 4:1 between the Assistant Engineers and Additional Assistant Engineers, and decided to maintain the cadre strength accordingly.
11. The Board submits that as on 15-3-1993 there were 2266 Additional Assistant Engineers and 2428 Assistant Engineers working as Section Officers, which ratio is higher than the ratio recommended by the Commission. As such the Board contends that the allegation saying recruitment of 300 Graduate Engineers without corresponding promotion of 200 Diploma Engineers is violation of Commission's Award has no merit.
12. So far as the posts of Assistant Divisional Engineers are concerned, the Board submits that in order to avoid dislocation of work, the Board filled up the vacancies by promoting eligible Assistant Engineers and Additional Assistant Engineers who are 76 and 19 respectively in the ratio of 4:1 by B.P. (P&G-Per.) Ms. No.386, dated 30-9-1992, which is subject to revision on the basis of the recommendations of the Commission.
13. Regarding limited recruitment, the Board states that the recommendations of the Commission are only with regard to the ratio to be followed between Assistant Engineers and Additional Assistant Engineers so far as the promotion to the 80% vacancies. According 75 Assistant Engineers and 25 Additional Assistant Engineers in at the ratio of 3:1 were promoted as Assistant Divisional Engineers vide B.P. Ms. No.14, dated 8-4-1993. Subsequently vide B.P. Ms. No. 101, dated 26-5-1993, 48 Assistant Engineers and 16 Additional Assistant Engineers were promoted as Assistant Divisional Engineers. The Diploma Engineers Association has nothing to do with the 20% of vacancies earmarked for direct recruitment. Under Regulation 6(b) the Board has always the powers to make direct recruitment to an extent of 20% of the available permanent vacancies in each year. With a view to recruit the brightest and most qualified personnel to the post of Assistant Divisional Engineers, the Board instead of resorting to direct recruitment of fresh graduates or postgraduates, has by amending Regulation 6(c) enabled the Assistant Engineers with suitable qualifications, talent and experience to be promoted to the post of Assistant Divisional Engineer.
14. Therefore, viewed from any angle, it cannot be said that the Board had neither violated or frustrated the Award of the One Man Commission. So far as the allegation that the Board had violated the settlement dated 5-5-1991, the Board submitted that by virtue of their very nature of duties, the Additional Assistant Engineers are not workmen under the provisions of the Industrial Disputes Act and the Minutes of the joint meeting dated 5-5-1991 cannot be termed as a settlement under the provisions of the Industrial Disputes Act.
15. Prescribing particular qualification and making classification between the two categories of employees based on higher educational qualification and prescribing quota among such categories etc., is the discretion of the employer. The Court cannot substitute its opinion or prescribe qualifications for recruitment including pay fixation. Though total restriction cannot be imposed so as to block the chances of promotion of any category, but it can reasonably be restricted on the basis of higher educational qualification. While determining the validity of such classification, one has to take into account the efficiency which the employer wants to secure in service. Reasonable classification between the classes of employees, based on higher educational qualification, for the purpose of promotion has been held by this Court and the Hon'ble Supreme Court in number of decisions as legal and in consonance with the provisions of the Constitution. The Hon'ble Supreme Court in T.R. Kothandaraman and others v. Tamil Nadu Water Supply and Drainage Board and others, (1994) 28 Administrative Tribunals Cases 276, has elaborately gone into this aspect and held as follows :
"The following legal propositions emerge regarding educational qualification being a basis of classification relating to promotion in public service :
(1) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances of each case;
(2) Higher educational qualification can be the basis not only for restricting the scope of promotion;
(3) Restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable.
Even if in a case the classification would not be acceptable to the Court on principle, it would, before pronouncing its judgment, bear in mind the historical background, while judging the validity of the classification, the Court shall have to be conscious about the need for maintaining efficiency in service and also whether the required qualification is necessary for the discharge of duties in the higher post. Apart from the aforesaid propositions, there are two other determinants viz., the call of social justice and importance of education. Court has to see, while examining the provision on the anvil of Articles 14 and 16 of the Constitution, whether Article 21 is offended in any way.
At the same time, it has to be remembered that diploma-holders are drawn mainly from poorer families and they are incapable of making the degree grade. The "chill penury" should not, therefore, be allowed to "repress their noble rage". Social justice would not permit the Court to do so. It may be that social justice is not a fundamental right, social justice being a requirement of directive principles of our Constitution, the same has to be our desideratum in any case.
(Unni Krishnan J.P. v. State of A.P., , C.E.S.C Ltd v. Subhash Chandra Bose, ) There is no merit in the contention that the proviso to Regulation 19(2)(b) of T.N. Water Supply and Drainage Board Service Regulations permits diploma-holders Assistant Engineers to become eligible for promotion to the post of Executive Engineer only if they were to have "exceptional merit" in work; otherwise a diploma holder is not eligible for such promotion. The proviso really takes out the rigour by permitting the diploma-holders to be considered for promotion in case they were to show exceptional merit in their work. The proviso being thus favourable to the diploma-holders has really to be welcomed by them, instead of inviting their wrath.
There is also no substance in the challenge to the validity of Rule 2(b) of the Special Rules for the Tamil Nadu Agriculture Engineering Service as being violative of Article 16. The degree-holder Assistant Engineers were designated as Assistant Engineer (Agriculture Engineering) and given gazetted status, whereas diploma-holders were denied the same. This apart, the degree-holders were given higher scale of pay. The post of Executive Engineer (Agricultural Engineering) calls for higher skill, administration, planing and evolving of proposals and drafting. In these aspects, most of the diploma-holders were found lacking. The degree-holders had studied for six years at college level after leaving school stage whereas diploma-holders have only three years' study at the level of Institute of Technology after school stage. Because of this, higher technical calibre in degree-holders is presumed.
So, higher educational qualification has relevance insofar as the holding, of higher promotional post is concerned, in view of the nature of the functions and duties attached to that post. The classification has, therefore, nexus with the object to be achieved. This apart, history also support the differentiation sought to be made by the rule in question. The classification must therefore be held to be valid.
The rule-making authority having made a diploma-holder eligible for promotion, it follows that a diploma-holder does not suffer from such an infirmity as to make him totally unfit for holding the higher post. The right which has been conferred by one hand cannot be taken away by another, nor can the right be converted to a hus. It must continue to be a meaningful right. Too much emphasis on higher education may even cause dent to cause of social justice, as it would be the poorer section of the Society which would be deprived of its legitimate expectations. The preference given to the degree-holders would, at the same time, give fillip to the desire to receive higher education, as such persons would always be favouably placed as compared to the lesser educated ones. A harmony would thus be struck, by maintaining reasonableness in the ratio, between the call of social justice and the need for higher education, without in any way jeopardising the principal object of classification. But then, no particular ratio can be spelt out which would satisfy these requirements, the reasonableness of the ratio shall depend on facts of each case.
The decision of the Tamil Nadu Electricity Board which amended the Board's Service Regulations fixing ratio of 3:1 for promotion to the post of Assistant Engineers (Electrical) between the Junior Engineers (Electrical) and Supervisors (Electrical Grade-1) - the former being degree-holders and latter diploma-holders shows that the classification is based on higher educational qualification and the same has to receive the Court's approval because for certain types of work, the Supervisors are not sufficiently qualified, whereas Junior Engineers are. The nature of the work performed by the two classes of post holders and the higher educational qualification of the degree-holders did permit the Electricity Board to classify the two groups differently for the purpose of their promotion. It is, however, not necessary to interfere with the ratio of 3:1 because of the fact that any different view would create almost a chaotic situation in the working of the Board as the Board's decision which is of 1974 has held the field for about two decades and any disturbance at this stage would not be conducive to the functioning of the Board inasmuch as the number of persons to be affected would be in thousands.
Therefore, there is no constitutional infirmity in the classification and there is no need to interfere with the ratio as prescribed because of the aforesaid special facts."
16. In the above decision, the Supreme Court has referred to two cases, namely, Tamil Nadu Agriculture Engineering Service Cases and Tamil Nadu Electricity Board Service Cases. The latter case i.e., Tamil Nadu Electricity Board Services is almost similar to the case on hand. In the said case the Tamil Nadu Electricity Board Diploma Engineers Association had challenged the decision of the Tamil Nadu Electricity Board which amended the Board's Service Regulations ratio of 3:1 for promotion to the post Assistant Engineers (Electrical) between the Junior Engineers (Electrical) i.e., degree-holders and Supervisors (Electrical Grade-1) who are diploma-holders. As on the date of decision of the Supreme Court in T.R. Kothandraman's case, the Supreme Court considering the earlier decision in State of J&Kv. Triloki Nath Khosa, , Stale of Mysore v. Norasingh Rao,(\968) 1 SCR 407; Mohd Shujat All v. Union of India, ; Punjab State Electricity Board v. Ravinde Kumar Sharma, ; S.N. Deshpande v. Maharashtra Industrial Development Corporation, 1993 Supp. (2) SCC 344; P. Murugesan v. State of Tamil Nadu, ; Unni Krishnan J.P. v. State of A.P., etc., has come to the conclusion that the classification made between the Junior Engineers and the Supervisors in the Tamil Nadu Electricity Board, based on higher educational qualification, is permissible and held that the decision of the Tamil Nadu Electricity Board to classify the two groups differently for the purpose of promotion cannot be interfered with and the same is in consonance with the provisions of Articles 14 and 16 of the Constitution. Therefore, according to the Supreme Court, higher educational qualification has relevance insofar as the holding of higher promotional post.
17. The above decision has been further followed by the Supreme Court in Rajasthan State Electricity Board Accountants Association, Jaipur v. Rajasthan State Electricity Board and others, AIR 1997 SC 882, wherein the Supreme Court upholding the validity of classification of employees on the basis of educational qualifications for the purpose of promotion as Asst. Accounts Officer, Asst. Audit Officer, Asst. Revenue Officer in the Rajasthan State Electricity Board held as follows :
"Educational qualifications can be made the basis for classification of employees in State Service in the matter of pay scales, promotion etc. Provisions for giving higher pay scale to employees possessing higher qualification has also been held as valid. Similarly in the matter of promotion classification on the basis of educational qualification so as to deny eligibility for promotion to a higher post to an employee possessing lesser qualification or require longer experience for those possessing lesser qualification can be validly made.
.................
Entry 19 of the Schedule to 1974 Regulations insofar as it prescribes longer service of seven years for Accountants who do not possess the additional qualification of an Intermediate of Cost and Works from the Institute of Cost and Works Accountants of India or a Graduate holding diploma in Cost and Works from a University established by law in India and insofar as it prescribes a quota of 25% of vacancies in the higher posts of Asst. Revenue Officer to Accountants possessing additional qualification for the purpose of promotion is not violative of Articles 14 and 16."
18. The above view has been further followed by the Supreme Court in the case of Assam State Electricity Board v. G.N. Pathak, , wherein the Supreme Court held that reasonable classification made on the basis of educational qualification viz., between diploma-holders and non-diploma-holders or between diploma-holders and graduate Engineers is a valid classification.
19. From the above, it is clear that the Diploma Engineers cannot question the authority of the employer in classifying the posts both for direct recruitment and for promotion. No doubt in T.R. Kothandaraman's case (supra), the Supreme Court has said that there must be reasonableness in the ratio between the call of social justice and the need for higher education, without in any way jeopardising the principal object of classification. But the Court further held that no particular ratio can be spelt out which would satisfy the call of social justice and the reasonableness of the ratio shall depend on facts of each case.
20. To repeat the ratio position once again that the position prior to the report of the One Man Commission was that out of every five vacancies reserved for promotces successively arising in the posts of Asst. Divisional Engineers/Asst. Executive Engineers so far as qualified and suitable candidates were available, the first four had to be filled or reserved to be filled by recruitment by promotion from among the Asst. Engineers and the fifth vacancy to be filled from among Addl. Asst. Engineers and Draughtsman Grade-I. By B.P. Ms. No.12, dated 8-4-1993, the above Regulation 6(b) was amended to the effect that "out of every four vacancies reserved for promotees successively arising in the posts of Asst. Divisional Engineers/Asst. Executive Engineers so far as qualified and suitable candidates are available, the first three shall be filled or reserved to be filled by appointment by promotion from among the Asst. Engineers and the fourth vacancy shall be filled from among Addl. Asst. Engineers and Draughtsman Grade-I. According to this, the ratio between the Graduate Engineers and the Diploma Engineers was fixed at 3:1. For the posts of Section Officers, the ratio was 3:2. By the same amendment dated 8-4-1993, 20% direct recruitment quota fixed from out of permanent posts arrived at was amended to the effect that "20% out of vacancies arrived at shall be filled up by "limited recruitment" and the balance by promotion". Therefore, the position as on 8-4-1993 was that out of 100 permanent posts arrived at, 20 posts were earmarked for limited recruitments, 60 posts for Asst. Engineers and the remaining 20 for Addl. Assistant Engineers and Draughtsman Grade-I. The grievance of the Diploma Engineers is that at no point of time direct recruitment was resorted to in the Board to the post of Asst. Divisional Engineer and the total vacancies were always taken together. Because of the amendment made for limited recruitment, the Diploma Engineers have lost five posts out of every 100 posts. That 20% of the vacancies earmarked for limited recruitment is for in-service Assistant Engineers possessing the requisite qualifications of M.E./M.Tech., having passed B.E./B.Tech., in first class with distinction and who satisfy the age requirement meant for direct recruitment. However, there was relaxation to the extent of regular service put in by the Asst. Engineers subject to a maximum of three years. Subsequently, the Board has issued another amendment in B.P. Ms. No.82, dated 17-5-1993 replacing the amendment made in B.P. Ms. No. 12, dated 8-4-1993 to the following effect:
"Out of five vacancies successively arising in the category of Assistant Divisional Engineers/Assistant Executive Engineers, the first vacancy shall be filled up by the candidate selected through the limited recruitment, the next three by promotion from the Assistant Engineers and 5th by promotion from the Additional Assistant Engineer and Draughtman Grade-I."
21. The Diploma Engineers contend that because of the above amendment that out of 100 vacancies, 80% of vacancies go to Asst. Engineers and only 20 will be available for Addl. Assistant Engineers. Thus, the ratio which was improved by virtue of amendment dated 8-4-1993 has again been taken away by the Board only to protect the interests of Asst. Engineers.
22. We fail to understand how the Diploma Engineers could take advantage of the failure of the Board to make direct recruitment to the post of Asst. Divisional Engineers from the inception. Initially, Regulation 6(b) provided direct recruitment to the post of Asst. Divisional Engineers/, Assistant Executive Engineer from the qualified persons, both from open market and from the in-service Asst. Engineers to the extent of 20% permanent posts. The remaining 80% posts were to be filled by promotion from Assistant Engineers and Draughtsman Grade-I in the ratio of 4:1. Thus, the Addl. Asst. Engineers would get 16 posts and the Asst. Engineers would get 64 posts. Diploma Engineers are under the impression that they are entitled to 20 posts from among the quota meant for promotion. But, this is not correct. Because direct recruitment was not taking place in the Board, as such they were able to get 20 posts from the inception. The failure on the part of the Board in not following direct recruitment has not conferred any right on the Diploma Engineers to claim 20 vacancies when the regulations do not confer such right. One Man Commission has recommended 3:1 ratio only in the matter of promotion quota. If this ratio is applied to the 80% quota meant for promotees, the Asst. Engineers would get 60 posts and the Diploma Engineers would get 20 posts. Pursuant to the report of the One Man Commission, the Board has issued the amendment dated 8-4-1993, according to which, 20% out of the permanent posts of 100 are to be filled up by limited recruitment and the remaining 80% vacancies are to be filled in the ratio of 3:1 between the Graduate Engineers and the Diploma Engineers which works out to 60 posts and 20 posts respectively. The amendment issued on 17-5-1993 is almost to the same effect in the sense that out of every five vacancies the first vacancy shall be filled up by limited recruitment, the next three vacancies by promotion from the Assistant Engineers and the fifth vacancy by promotion from the Additional Assistant Engineers and Draughtsman Grade-I. The limited recruitment to the extent of 20% posts from the in-service Asst. Engineers is with a view to improve efficiency in the department by recruiting well qualified Asst. Engineers. By virtue of the subsequent amendment also the Diploma Engineers have received a better treatment in the matter of promotion. The Diploma Engineers, therefore, cannot have any grievance against the quota meant for direct recruitment including 'limited recruitment' for in-service candidates. In view of the settled legal position, the Diploma Engineers Association cannot question the power of the Board which earmarked 20% vacancies meant for direct recruitment to persons possessing higher educational qualifications. Higher technical qualification in Electricity Board has relevancy particularly when it comes to the post of Asst. Divisional Engineer, in view of the nature of the functions and duties attached to that post. The classification made by the Board, in our view, has nexus with the object sought to be achieved. The Board has thought it fit that instead of going for direct recruitment, it is better that the bright skilled and most qualified personnel available in the Board are recruited to the post of Asst. Divisional Engineer. It may also be noted here that even as per the regulations existing prior to the impugned amendments, the in-service Asst. Engineers possessing the requisite qualifications provided for direct recruitment were also eligible for direct recruitment. There is reasonable classification in the ratio made by the Board. Hence, there is no merit in the contentions raised by the Diploma Engineers Association in both the writ petitions.
23. As regards the quashing of the report of the One Man Commission and the bipartite agreement, we are of the view that the concerned petitioners cannot maintain their writ petitions because the bipartite agreement and the report of One Man Commission were the result of conciliation proceedings made before the State Conciliation Officer-cum-the Additional Commissioner of Labour who admitted the dispute of the Diploma Engineers. The petitioners in WP Nos.11598 of 1993 and 1669 of 1995 were not parties before the conciliation proceedings and as such they have no locus standi to question the bipartite agreement and the One Man Commission Report. Thus, the above writ petitions are not maintainable.
24. Before parting with these writ petitions, it is proper to comment upon the conduct of the Board in making some assurance to the Diploma Engineers Association and then going back on such a promise. Whenever the association made a complaint, the Board assured them that their request will be considered favourably. But later took a different stand. If the employer has any respect for maintenance of peace among the Management and Workmen, the employer shall honour its promise and implement the agreements, settlements and recommendations, if any. This will avoid frustration and indiscipline among the workman. It is well settled that bipartite agreements, settlements and reports will have pursuasive value and in some circumstances, the decision taken in bipartite agreement and the assurance made be binding on the parties. This view of ours is supported by the principles laid down in the following decisions, viz., in A.P.D. Engineers Association v. A.P.S.E.B., 1985 (2) Lab IC 897, wherein it was held that the same have to be honoured. In the case of Allahabad District Co-operative Bank Ltd, Allahabad v. Lalji Srivastava, 1995 Lab. IC 647, a Division Bench of the Allahabad High Court in the matter of age of retirement, held that the settlement reached between bank and its employees in which age of retirement was fixed at 60 years, settlement has an overriding effect over the regulations and employee is entitled to continue to work upto age of 60 years.
25. Therefore, the Diploma Engineers Association was right in contending that the settlement with the Board should have been honoured and the Board should have implemented the Award of the One Man Commission. Such honouring would tend to promote peace and smooth working in the Department.
26. The Diploma Engineers Association has alleged mala fides the Board. It is necessary that where power is conferred on an authority, that authority shall exercise the powers properly and not in a colourable way so as to defraud others, as held by the Supreme Court in R.K. Dalmia v. Justice Tendulkar, . Similar view was taken in Ramachandran v. Aligirswamy, . In R.K. Dalmia's case, the Supreme Court held that if the power is misused or abused by executive or Legislature and the law is administered by the Government with an evil eye and an unequal hand or an oblique or unworthy purpose, the arms of the Court will be long enough to reach it and to strike down such abuse with a heavy hand. In Stale of Punjab v. Ramjilal and others, , the Supreme Court held that where mala fides are alleged against the authority, the said authority or person shall be made as party to the proceedings. One has to bear in mind that it is easy to allege mala fides but it is difficult to prove.
27. As far as the validity of classification is concerned, we have reached the conclusion that the same as reasonable. Reasonable classification and the ratio between two sets of officers though permissible, but wide disparity in fixing of ratio or delay to take a proper decision may result in distrust and which may lead to dislocation of work which will be an economic loss to the country. It is hoped that atleast in future necessary amendment will be brought into service regulations of A.P. State Electricity Board to avoid the ill-feeling among the Diploma Engineers that they have been unjustly discriminated though they are competent, efficient and entitled for equal opportunities both in the matter of promotion and pay fixation.
28. With the above observations, all the writ petitions are dismissed. No costs.