Andhra HC (Pre-Telangana)
P.V. Satyanarayana Murthy And Ors. vs A.P. State Electricity Board And Ors. on 28 August, 2002
Equivalent citations: 2002(6)ALD268
ORDER Ghulam Mohammed, J.
1. The petitioners, who are three in number are Diploma Holders in Electrical Engineering (L.E.E.). They have registered their candidatures with the Employment Exchange, Warangal. It is stated that there are vacancies for the post of Sub-Overseer under the establishment of Operation Circle, Warangal, and that the 4th respondent-Superintending Engineer, Warangal is the appointing authority in respect of the posts of Sub-Overseers. The said post is a circle level post. Warangal Zone comprises of four circles namely Warangal, Karimnagar, Adilabad and Khammam. It is averred in the affidavit filed in support of the writ petition that the fourth respondent has sent requisition to the Employment Exchange, Warangal for sponsoring the names of the candidates for selection to the post of Sub-Overseer in Warangal Circle. Accordingly, the Employment Exchange sponsored about 130 names. A written test was conducted on 10.5.1993 by the respondent-Board in Warangal wherein more than 130 candidates appeared for the test including the petitioners herein. Out of the said candidates, 12 candidates including the petitioners herein were called for the interview, which were conducted on 20th July, 1993. All the 12 candidates were selected and were put on the select panel. By the end of July, 1993 seven members among the select panel were appointed as Sub-Overseers. After four months again two persons from the panel were appointed as Sub-Overseers though it is stated that 11 posts of Sub-Overseers are vacant in the Warangal circle alone.
2. The petitioners were selected by the duly constituted selection committee and they are yet to be issued appointment orders. Since the requirement of candidates was felt very much essential, the fourth respondent has requested the third respondent to permit him to appoint the petitioners in the post of Sub-Overseer, which was re-designated as Sub-Engineers. However, the third respondent by his memo dated 22.3.1993 also directed the fourth respondent to issue appointment orders to the petitioners who were already selected, but the fourth respondent did not take any action and kept the matter pending. In the meanwhile, some of the in-service candidates who were diploma holders in Electrical Engineering appear to have agitated for promotion to the post of Sub-Engineers (formerly Sub-Overseers). Thereupon, the fourth respondent understood to have called for the particulars of the in-service candidates having diploma in electrical engineering.
3. While the matters stood thus, the first respondent issued B.P. Ms. No. 58, dated 6.5.1993 and in the said memo the posts of Assistant Supervisors and Sub-
Overseers were integrated into one category with the new designation being Sub-Engineers. The post of Sub-Engineer was classified as category 2 in Clause (iii) and this classification is deemed to have come into operation with effect from 1.9.1992.
4. It is further stated by the petitioners that the fourth respondent-Superintending Engineer, Warangal by his memo dated 10.6.1993 addressed the second respondent wherein it has been categorically stated that the petitioners are selected for appointment to the post of Sub-Engineers, and that 11 posts are vacant and therefore, requested permission to fill up at least 3 posts by the petitioners herein immediately, as lot of inconvenience is being caused due to non-filling of posts in the sections/sub-divisions. On the said memo, the second respondent also endorsed stating that the Superintending Engineer concerned may be authorised to appoint the petitioners. However, no action was taken by the authorities. Apprehending that some injustice is being caused to them by denying their appointment and making, arrangements to give appointments to in-service candidates, the petitioners made representation dated 7.6.1993. On the basis of the said representation the fourth respondent addressed memo dated 10.6.1993 to the second respondent for necessary action.
5. While the matters stood thus, the first respondent issued memo No. DP/DMII/ El/589/90 dated 30,8.1993. Under the said memo it was reiterated that the post of Sub-Engineer was included in category 2 in class (iii) and the unit of operation for the said category was State wide. The petitioners state that the method of recruitment is by direct recruitment and by transfer from certain lower categories who acquired diploma qualification prior to 1-9-1992 and who are in Board service as on 1.9.1992. Under para 4 of the said memo the Board directed the Chief Engineers to pool up the vacancies available in their jurisdiction and operate the merit list of the already interviewed candidates and issue appointment orders to the eligible candidates duly following the rules of reservation. However, in para 5 the Board has given inconsistent direction stating that the vacant posts of Sub-Engineers existing as on the date of the memo i.e., 30.8.1993 may be filled up from out of the employees who are working in the lower categories as on 1.9.1992 and who acquired diploma qualification before 1.9.1992. The Chief Engineers were directed to fill up the vacancies first by those employees and the balance vacancies left over were directed to be filled by those candidates who are already interviewed and who are in the merit list duly following the rules of reservation.
6. It is further stated that the instructions of the Board dated 30.8.1993 insofar as they relate to directing the Chief Engineers to fill up the existing posts of Sub-Engineers first by the internal candidates and remaining vacancies by the persons selected by the Selection Committee is wholly illegal, arbitrary, unjust and discriminatory. It is stated that by such direction the entire effort of the petitioners who appeared for the test and who were selected by the Selection Committee would become futile. In fact the Board is not entitled to give such instructions namely appointing the lower category employees first. At the outset it is stated that the recruitment rules have not taken the statutory shape so far and are only existing as administrative instructions. The vacancies should be filled up first by direct recruitment and the remaining vacancies shall be filled up by appointment by transfer from other classes of employees. The word 'and' is very specific and it connotes only that the direct recruitment should be given first preference and thereafter the Board should resort to the appointment by transfer. Even in the service regulations in all the recruitment procedures and methods of recruitment to various posts, it was mentioned as by direct recruitment or appointment by transfer. Hence the said direction to the extent stated above is highly arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India. It is also stated that while in the case of direct recruitment an elaborate procedure has been prescribed for selecting the candidates namely written test, and personal interview, while in the case of the promotion from lower rank no such interview or written test has been prescribed.
7. By the impugned proceedings the process of issuing promotion orders appointing in-service candidates has commenced and that the respondents have to understood that balance of convenience lies with the petitioners. The petitioners have undergone the process of selection, written test and successful in the interview. It is their contention that the petitioners having been interviewed and selected by a selection committee, issuing of the impugned memo benefiting the in-service candidates is not proper.
8. A counter-affidavit is filed by the respondents stating that the Board has conducted test for eligible candidates for appointment to the posts of Sub-Overseers from the Employment Exchange, Warangal and they have sent a list of only 40 candidates and not 130 as contended by the petitioners. The same was submitted to the Board for conducting the examination/interview etc., as per the Board instructions. It is also stated that examination was conducted on 10.5.1992. It is further stated in the counter affidavit that it is a fact that the Chief Engineer/Electricity, has allotted the 3 petitioners as Sub-Engineers on 22.3.1993 to this circle, but the posting orders could not be issued due to instructions received in Memo No. CEW/E1/P2/F.5589/90-95 dated 27.4.1993 from the Chief Engineer (Electricity) that the vacancies are to be filled by the in-service candidates by transfer before going for direct recruitment. It is further stated that they have addressed the Director (Personnel), regarding the filling of the posts of Sub-Engineers. It is also stated that there are only 4 posts vacant including one for S.T. The 7 posts cannot be called as vacant posts inasmuch as the 7 posts are newly sanctioned and operation was kept in abeyance on 28.1.1998 itself. The statement made by the petitioners that the Director (Personnel) has endorsed on the memo etc., are not known to this office and the contention of the petitioners that instructions were issued to the effect that the Superintending Engineers' concerned may be authorised to appoint the petitioners before the work is taken up by the Board and is far from truth. It is categorically stated in the counter at para 7 that in Board's memo dated 30.8.1993 direction was given to fill in the vacancies existing as on 30.8.1993 first by in-service diploma candidates and the leftover vacancies shall be filled in by those candidates who are in the merit list and who were already interviewed.
9. Sri G. Vidyasagar, learned Counsel for the petitioners has contended that the petitioners have passed diploma and they are successful in the interview and that the Superintending Engineer has issued proceedings dated 10.6.1993 while referring to the proceedings dated 22.3.1993 wherein the Chief Engineer, has directed to issue appointment orders and the proceedings dated 10.3.1993 issued by the Superintending Engineer, Warangal clearly indicates that there are 4 more clear vacancies in addition to 7 posts sanctioned vide B.P. Ms. No. 1134, dated 25.10.1989, which are kept in abeyance and thus totaling to 11 posts of Sub-Engineers. Learned Counsel has drawn my attention to B.P. Ms. No. 58, dated 6.5.1993 particularly clause 5 which reads as follows:
"The Director Personnel is the appointing authority for the category of Sub-Engineers. All the appointments made by the Superintending Engineers to the post of Sub-Engineers from 1.9.1992 till the date of this order are deemed to have been issued by the Director Personnel."
Learned Counsel for the petitioners further contended that names of the petitioners were kept in the select list on 20.7.1992 and in view of the directions issued by the Superintending Engineer indicating the vacancy position, while referring the' order dated 22.3.1993, the contention of the respondents that the impugned proceedings gave right to the Board to give preference to the in-service candidates is not proper. He further contended that basing on the rotation the petitioners fall under roster point 69, 70, 71 and the authority i.e., Chief Engineer, Personnel, has issued order B.P. Ms. No. 58, dated 6.5.1993, and in that B.P.Ms.No. 58 the method of recruitment for the category of Sub-Engineer is prescribed which is extracted hereunder:
"(iii) Method of recruitment:
The method of recruitment for the category of Sub-Engineer shall be :
(a) by Direct Recruitment, and
(b) by appointment by transfer from the following categories of employees who acquired diploma qualification prior to 1.9.1992 and who are in the Board's Service as on 1.9.1992.
The diploma holders who were appointed after 1-9-1992 to the categories other than Sub-Engineer or such of those existing employees working in the categories other than Sub-Engineers and who acquire Diploma qualification after 1-9-1992 may have to compete with the outside Diploma holders for appointments by direct recruitment to the post of Sub-Engineer. They may however be given age relaxation to the extent of their service in Board. The orders issued in Board's memo second cited (supra) stand modified accordingly."
10. On the other hand, learned Standing Counsel for the respondents, Mr. Ravindra Nath has drawn my attention to the regulation 10 of the APSEB Service Regulations, for short 'the regulation', and contended that mere placing the petitioners under selection list does not confer any right to seek appointments. In support of his contention, he has drawn my attention to the judgments of the Apex Court reported in R.L. Kshetriya (Smt.) v. C.B. Kapoor and Ors., 1998 (2) LLJ 1067, and in Bhumi Sudhar Nigam Limited, v. Shiva Narain Gupta, 1995 LLJ 56. There is no dispute with regard to that propositions laid in those judgments.
11. In R.L. Kshetriya's case (supra) the Supreme Court has held as follows:
"It requires no detailed scrutiny and it is well established that inclusion of name in the list of successful candidates does not confer any indefeasible right to be appointed. Notification, notifying the number of vacancies for appointment merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant rules so indicate, there is no obligation or legal duty to fill up all or any of the vacancies."
12. In Bhumi Sudhar Nigam Ltd. 's case (supra), the Supreme Court has observed that even if a vacancy is available and the employer bona fide declines to make an appointment the candidate on selection list has no right whatsoever to claim appointment and hence, the High Court cannot issue writ of mandamus directing the Corporation to appoint the selected candidate for the post.
13. From the averments made in the counter affidavit it is clear that the Chief Engineer/Electricity has allotted the 3 petitioners as Sub-Engineers on 22.3.1993. Admittedly, the proceedings dated 22.3.1993 were issued by the Chief Engineer, Electricity, Warangal Zone, Warangal, stating that the candidates mentioned in the annexure are selected for appointment to the posts of Sub-Engineers in the Board and the Superintending Engineer, Operation, Warangal was requested to issue appointment orders to the candidates and post them against the existing vacancies. In view of the present situation, the said order shall be deemed to be issued by the Director of Personnel for all purposes. Since case of the petitioners were identified against roster points and they were placed in the select list, and as the regulation 10 says that the vacancies should be filled in first by direct recruitees, there is no justification on the part of the respondents in taking advantage of the memo dated 30.8.1993 depriving the petitioners of their appointments.
14. This Court, at the time of admission, by its order dated 28.10.1993 has directed to keep the three posts of Sub-Engineers in Warangal Zone vacant and are available for the petitioners without filling up the same pending further orders. It appears no application was filed by the respondents to vacate that order. The impugned memo merely permitted the in-service candidates first; and later who were selected, interviewed and kept in the select list. At this stage, the Counsel for the petitioners relying on a judgment of the Supreme Court reported in State of U.P. v. Ram Swarup Saroj, , contended that in the present case it is not open to the respondents to contend that the panel has lapsed and that there are no vacancies and the proceedings dated 10.6.1993 addressed by the Superintending Engineer to the Director of Personnel clearly indicates that there are 4 clear vacancies and that he requested that permission may be accorded to fill up three posts with the candidates available who have been selected.
15. Considering these aspects, I hold that there is no merit in the contention of the respondents that there are no vacancies. True, the petitioners will not be conferred with any right to seek appointment by merely placing them in the selection list. But in the instant case, the vacancies have been notified and from the letter addressed by the Superintending Engineer dated 10.6.1993 also it is clear that there are vacancies. Obviously, regulation 10 referred above permits that the appointments be made first by direct recruitments and later by recruitment by transfer from the in-service candidates. According to the above service regulations with regard to category 4, the method of recruitment had shown firstly indicating direct recruitments. The petitioners have already undergone the process of selection and their names have been placed in the selection list and they were identified against roster points. However, the authorities declined to take them into service merely on the ground that in-service candidates are available. In fact no such preference need be given to the in-service candidates.
16. On a perusal of the impugned memo, it is clear that it merely mandates filling up of the vacancies first by in-service candidates and balance vacancies leftover after such filling up should be filled up by those candidates who are in the merit list of the candidates who were already interviewed. As stated above, the proceedings issued on 10.6.1993 by the 4th respondent-Superintendent Engineer clearly indicates that 4 vacancies are available in addition to the 7 posts sanctioned vide B.P. Ms. No. 1134 dated 25.10.1989, which are kept in abeyance totaling to 11 vacancies of Sub-Engineers and the same are vacant as on that date. The 4th respondent-Superintending Engineer sought for permission to fill up three posts with the candidates who have been selected. The Chief Engineer by his letter dated 22.3.1993 also informed the concerned Superintending Engineer that the candidates mentioned in the annexure attached with that letter were selected for appointment to post of Sub-Engineer and requested to issue appointment orders to the candidates and post them against the existing vacancies.
17. Considering these circumstances, as the regulations 10 does not confer any preference to in-service candidates, the impugned memo cannot override the regulation No. 10 which permits that the vacancies be filled up first by direct recruitments and then by the .transferees. The aspect in the impugned memo that the vacancies shall be filled up by in-service candidates first, in my considered view is illegal and is not permissible and is contrary to the regulation 10 and the procedure contemplated thereunder.
18. For the foregoing reasons, the writ petition is allowed and the impugned proceedings are set aside only to the extent of construing that the in-service candidates are eligible and are entitled for preference, which in my considered view is illegal. Accordingly, there shall be a direction to the respondents to consider the cases of the petitioners and issue necessary orders for appointment within a period of six weeks from the date of receipt of a copy of this order.
19. Accordingly, the writ petition is allowed to the extent indicated above. No costs.