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& batch (Total 31 Cases)

12. In W.P.No.15888 of 2020, the petitioner has also challenged the amended Regulation No.22-B of the APSEB Service Regulations in Part-II as adopted by TSTRANSCO. It is submitted that the petitioner herein belongs to BC-B community and studied Classes 1 to 10 at Vijetha High School (English Medium), Panduranga Nagar, Balanagar Mandal, Ranga Reddy District, Hyderabad. The said place of study falls under the erstwhile Ranga Reddy District and the present Medchal- Malkajgiri District. The petitioner studied and passed I.T.I. in electrician trade from Shubhodaya Industrial Training Centre, Gumudur, Mahabubabad, Warangal District during August, 2016 to July, 2018. He participated in the recruitment process for Junior Lineman pursuant to Notification No.01/2019 dt.28.09.2019 and he secured 29 marks and obtained 383 rank in Ranga Reddy District. The petitioner was issued call letter dt.31.07.2020 for participating in the Pole Climbing Test on 27.08.2020 and the petitioner appeared for the Pole Climbing Test in Ranga Reddy District, but he was not permitted on the ground that as per the present Presidential Order, he cannot be permitted to Pole Climbing Test at Ranga Reddy/Cyber City Circle. The petitioner has requested that he be allowed to participate in the Pole Climbing Test at & batch (Total 31 Cases) Medchal-Malkajgiri District, but the petitioner was not permitted and therefore he approached this Court by filing the present W.P.No.15888 of 2020 challenging the action of the respondents in implementing the Presidential Order retrospectively to the notified Junior Linemen posts in Notification No.01/2019 dt.28.09.2019 and the action of respondent No.3 in not permitting the petitioner for the Pole Climbing Test scheduled on 27.08.2020 in spite of submitting all the study certificates pertaining to Classes 1 to 10 as illegal and arbitrary and also consequently to read down Notification No.01/2019 dt.28.09.2019 and to permit the petitioner to the Pole Climbing Test and to issue appointment letter on the basis of his success in the Pole Climbing Test. This Court, vide interim order dt.17.09.2020, had directed the respondents to permit the petitioner to the Pole Climbing Test. The Pole Climbing Test was conducted on 30.09.2020 in which the petitioner participated and according to the petitioner, he has passed the said test. Subsequently, while filing of the counter affidavit in similar matter, i.e., W.P.No.25062 of 2022 which was filed challenging the Notification No.03/2022, dt.09.05.2022 on similar grounds, the respondents had contended that they have amended the existing APSEB Service & batch (Total 31 Cases) Regulations by issuing S.P.O.O. (CGM-HRD) Ms.No.M1 dt.26.09.2019 and thereafter, they have issued the Notification dt.28.09.2019 and in the said S.P.O.O. (CGM-HRD) Ms.No.M1 dt.26.09.2019, Amendment-I, Amendment-II were issued. The respondents also claimed that while exercising the powers conferred under Section 79(c) and (k) of the Electricity (Supply) Act of 1948, TSSPDCL issued amendment orders to Regulation No.22-B in Part-II of the APSEB Service Regulations as adopted by the APCPDCL (now TSSPDCL) and para 2(B) of C.O.O. (CGM-HRD) Ms. No.576 dt.06.06.2007, as shown below as Amendment-I and Amendment-2 in para 2(B) of the C.O.O. (CGM- HRD) Ms. No.576 dt.16.01.2009 was substituted with the definitions of (1) 'District Candidate', (2) 'Discom Candidate'. In view of the same, the petitioner in W.P.No.15888 of 2020 filed an amendment petition in I.A.No.1 of 2022 for amending the prayer in the Writ Petition to declare the action of respondent No.1 in issuing C.O.O. Ms. No.189 dt.06.06.2007, the consequential orders in C.O.O. Ms. No.611 dt.05.02.2009, S.P.O.O. Ms. No.730 dt.26.09.2015 and S.P.O.O. Ms. No.M1 dt.26.09.2019 as illegal and arbitrary and to read down the Notification No.01/2019 dt.28.09.2019 as it being unconstitutional and & batch (Total 31 Cases) contrary to the Presidential Order issued by respondent No.5 vide G.O.Ms.No.124, General Administration (SPF-MC) Department, dt.30.08.2018. The said amendment petition has been allowed by this Court vide orders dt.14.02.2023.

25. It is also seen that the issue as to whether APGENCO (as it then was) was an instrumentality of State or a local authority under Article 12 of the Constitution of India and whether the posts of Junior Plant Attendant (which was equivalent to the post of Junior Lineman), thereunder, can be categorised as a post in civil services or civil post under the State or local authority, has been considered by a Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh (as it then was) in the case & batch (Total 31 Cases) of P.Divya and others Vs. M.D., APPGCL, Hyderabad and others 4, and it was held that even though the APGENCO qualifies as a State instrumentality for the purpose of bringing it within the ambit of Article 226 of the Constitution of India, it is essentially a corporate entity and, at best, it can be called as a public sector undertaking. It was further held that employment in its service, therefore, does not fulfil the requirements to attract the Presidential Order and that the Presidential Order has to be construed strictly and has application only to civil services and/or the holder of a civil post in the State Government or its local authorities and therefore, issuance of G.O.Ms.No.610 dt.30.12.1989 by the State Government linking directly to the Presidential Order and observing and implementing the spirit of the Presidential Order to APGENCO cannot be said to be a legally valid exercise. The Court has also observed that it is time for the APGENCO to realise its errors in this regard and take corrective measures. It is also noticed that similar reservation of 80% of the posts was made for locals and 20% to the non-locals. Notifications were issued on 05.01.2011 and 17.10.2011 for the post of Junior Plant Attendant. In the Notifications, 2019 (1) ALT 536 (D.B.) & batch (Total 31 Cases) priority was given to the candidates who were locals in the districts where the power generating stations of APGENCO were situated. The challenge in the Writ Petitions was aimed at Clause 5 of the Notifications providing for reservation of 80% of the posts in favour of the locals. It is also noticed that the Division Bench referred to Regulation 22-B in Part II and Regulation 22(i) in Schedule III in Part-II of the Andhra Pradesh State Electricity Board Service Regulations (APSEB Service Regulations) framed under the erstwhile Andhra Pradesh State Electricity Board in exercise of power under Section 79(c) of the Indian Electricity (Supply) Act, 1948 which speak of 'following and observing' the spirit of the Presidential Order. The Division Bench of this Court in paras 34 to 46 has held as under:

45. We need say no more.

Challenge to the Regulations:

46. In so far as the challenge to the Regulations is concerned, we find merit in the submission of Sri G.Vidya Sagar, learned senior counsel, that none of the said Regulations had application to the post of Junior Plant Attendant in the service of the APGENCO at the relevant point of time. The subsequent amendment to Regulation 22 admittedly had no retrospective effect and is therefore of no relevance. At that time, this post was covered by the Service Rules of 1948 and was not governed by the APSEB Service Regulations. Regulation 22-B specifically mentioned the posts to which it applied i.e., the cadres of Assistant Engineer in the Engineering Service and Junior Accounts Officer in the Accounts Service. The said Regulation was therefore not applicable to the post of Junior Plant Attendant in the APGENCO which did not even find mention in the constitution of the service set out in Part-III of the APSEB Regulations. Sub- Regulation 22(i) in the III Schedule to Part-II also specifically mentioned extension of the spirit of the Presidential Order to the cadres of Sub-Engineer in Engineering Service; LDC and Typist in Accounts Service; and Office Sub-ordinate in General Service. The challenge to Regulations 22 and 22-B in Part-II and Sub-Regulation 22(i) in the III Schedule to Part-II of the APSEB Regulations is therefore without basis in so far as the subject posts are concerned and as the said challenge was made only under the assumption that the local district reservation in the Notifications dated 05.01.2011 and & batch (Total 31 Cases) 17.10.2011 was based on the said Regulations, there is no necessity for this Court to consider the validity of the said Regulations." Thus, it can be seen that the issue as to whether Presidential Order is applicable to the post of Junior Lineman which is not a civil post is already settled by the Division Bench of this Court in the case of P.Divya and others Vs. M.D., APPGCL, Hyderabad and others (4 supra). The issue No.1 is thus answered in favour of the petitioners.

arrange grade, refix responsibilities and prescribe minimum educational, technical and other qualifications as may be considered suitable for making selection and appointments to posts in each class of service."

29. However, as rightly pointed out by the learned counsel for the petitioners, it is noticed that the impugned amendment is made in exercise of the powers conferred under Section 79(c) and (k) of the & batch (Total 31 Cases) Electricity (Supply) Act, 1948. It is noticed that the Electricity (Supply) Act, 1948 has been repealed by the Electricity Act, 2003 and Section 185 of the Electricity Act, 2003 is the saving clause under which all the amendments to such Regulations made prior to the amendments are saved. Subsequent thereto, if the amendments were to be made, they were to be made only under Section 185(2) of the Electricity Act, 2003 as is done by the respondent authorities while issuing the amendments to Regulation 22 of the APSEB Service Regulations Part-II and Regulation 2 of APSEB Regulations Part-III vide T.G.O.O. No.202/CGM(HR)/2015 dated 27.08.2015 and also amendment to Regulation 22 of APSEB Service Regulations Part-II as adopted by TSTRANSCO vide TOO (CGM-HRD-Per) Ms.No.174 dt.09.09.2015. Further, as rightly pointed out by the learned counsel for the petitioners, S.P.O.O.(CHM-HRD) Ms.No.M1, dt.26.09.2019 cannot become a regulation unless and until it is approved by the government and it is published in the Official Gazette. It is not the case of the respondents that such publication is not necessary. Further, it is noticed that the Notification under challenge is dated 28.09.2019 and the S.P.O.O.(CHM-HRD) Ms.No.M1, dt.26.09.2019 is issued just two days & batch (Total 31 Cases) prior to the Notification. Therefore, it cannot be expected that the candidates would be aware of the said S.P.O.O.(CHM-HRD) Ms.No.M1, dt.26.09.2019 without it being published in the Official Gazette. For this reason also, the amended Regulations applying the reservation of 95% of the posts to the local candidates of respective Discom and District, as the case may be, cannot be considered as statutory amendment.