A.P.
State Electricity Board & Ors Vs. J. Venkateswara Rao & Ors [2002] Insc
482 (20 November 2002)
M.B.
Shah, B.P. Singh & H.K. Sema. B. P. Singh, J.
Special
Leave granted.
The
appellants herein namely, the A.P. State Electricity Board and its officers are
aggrieved by the judgment and order of the High Court of Judicature of Andhra
Pradesh at Hyderabad dated 20.08.1999 in Writ Appeal No.1183 of 1999, whereby
the appeal preferred by them against the judgment and order of the learned
Single Judge dated 01.07.1999 was dismissed. As a result, the appellants have
been directed to consider the cases of the respondents herein for appointment
in the light of the memorandum dated 26.08.1985 issued by the appellant Board,
which provided for appointment of Ex-casual Labourers, who were found suitable
and eligible, against vacant posts, on their being found suitable and eligible
in accordance with the norms.
A few
facts not in dispute may be noticed at the threshold.
The
respondents are the Ex-casual Labourers, who were engaged in the different
circles of the A.P. State Electricity Board and had rendered service in the
past. The appellant Board by its memorandum dated 26.08.1985 took a decision
that the vacant posts of L.D.Cs./Revenue Cashiers and Typists/Steno Typists in
the Office Staff establishments and the vacant Helper/Watchmen posts in the
Operation & Maintenance/ Construction Staff establishments as per the norms
of the Operation Circle shall be filled in by considering the suitable and
eligible candidates from among the Ex-casual Labourers after exhausting the
existing Casual Labourers, if any, on one time basis. It was provided that the
Ex-casual Labourers must have worked for atleast the number of days as
specified in the memorandum. After considering the cases of eligible Ex-casual labourers
for appointment to the aforesaid vacant posts, the remaining vacancies could be
filled up as per the norms in the respective Operation Circle.
The
respondents were aggrieved by the fact that in terms of the memorandum aforesaid
they were neither considered nor appointed against the vacant posts that
existed, for which they were suitable and eligible. They, therefore, filed a
Writ Petition before the High Court being Writ Petition No. 407 of 1996 which
came to be disposed of by an order of 29.03.1996 wherein it was conceded by the
counsel appearing on behalf of the appellant Board that the Writ Petition was
covered by the order of the Court passed in Writ Petition No. 13560 of 1993
dated 07.10.1993 which had been followed by the Court in a number of matters.
Accordingly, the Writ Petition preferred by the respondents was also disposed
of in the same terms directing the respondents therein to consider the cases of
the writ petitioners for regular appointment to the aforesaid posts in
accordance with the memorandum dated 26.08.1985, if they were found eligible.
After
the judgment was pronounced another memorandum dated 18.05.1997 was issued by
the appellant Board. It appears that pursuant to discussions with the
recognized Unions certain decisions were taken for filling up 50% of the
existing vacancies in the specified initial recruitment cadres by Ex-casual Labourers
who had obtained Court's Order. From the recorded proceedings it appears that
it was decided to consider the cases of Ex-casual Labourers covered by Court
Orders to fill up 50% of the vacancies. It was, accordingly, decided that the
Ex-casual Labourers who were already interviewed, but failed in the test, be
given a second chance in view of the Order passed by the High Court for
appointment against 50% of the existing vacancies in accordance with the
guidelines contained in the memorandum dated 26.08.1985 read with memorandum
dated 14.09.1993. A Selection Committee was nominated for the said purpose.
The
respondents herein again moved the High Court with a grievance that in view of
the judgment and order dated 29.03.1996 they were interviewed, but had not been
absorbed in service. In the aforesaid Writ Petition the appellant Board took
the stand that pursuant to the order of the Court, a Selection Committee had
been constituted on 17.07.1997 which conducted the interview on 08.12.1997. In
view of the memorandum dated 18.05.1997 the Ex-casual Labourers could be
absorbed only against 50% of the existing vacancies in the initial recruitment
categories. Since the names of the respondents were not high up in the
selection list against the 50% quota, they could not be appointed and Ex-casual
Labourers with higher merit were selected for appointment.
Before
the High Court the respondents submitted that in view of the earlier judgment
of the High Court dated 29.03.1996, their cases had to be considered for
appointment on the basis of the norms laid down in the first memorandum of
26.08.1985 which did not prescribe any quota for the Ex-casual Labourers.
On the
contrary, it provided that the vacancies should be filled up first by the
existing Casual Labourers, thereafter by the Ex- casual Labourers. Only
thereafter the vacancies, if any, could be filled up in accordance with the
rules. The respondents, therefore, had a right of being considered in terms of
the memorandum of 26.08.1985. It was so declared by the High Court in the first
Writ Petition, and therefore, the Board was not justified in issuing a fresh
memorandum subsequently, affecting adversely the right of the Ex-casual
workers.
A
learned single judge of the High Court by judgment and order dated 01.07.1999
upheld the contention of the respondents holding that the relevant date with
reference to which the claim of the respondents had to be examined was the date
on which the respondents acquired the right to be considered, namely
26.08.1985, and not the date of the subsequent memorandum of 18.05.1997. In
fact the judgment in the Writ Petition was delivered on 29.03.1996 i.e. much
before the issuance of the second memorandum on 18.05.1997. The contention
urged on behalf of the appellants, that the respondents did not turn up to seek
absorption was also rejected holding that Writ was issued in the earlier Writ
Petition on 29.03.1996 which obliged the appellants to carry out the direction,
which they failed to do. It was only after issuance of a second memorandum
curtailing the rights of the Ex-casual Labourers that a committee was
constituted and the respondents were considered for appointment only against
50% of the existing vacancies. In this view of the matter the Writ Petition was
allowed and a direction was issued to the respondents to consider the cases of
the writ petitioners for absorption in terms of memorandum dated 26.08.1985
without taking into account the restrictions imposed in memorandum dated
18.05.1997 providing quota of 50 % therein.
Aggrieved
by the judgment and order of the learned single Judge the appellants preferred
a Writ Appeal which was dismissed by the impugned judgment and order on
20.08.1989.
The
Appellate Bench held that the rights of the respondents matured for
consideration in 1985 which had been denied to them for almost 11 years
compelling the respondents to approach the High Court by way of Writ Petition
which was also allowed. In view of the judgment and order of the High Court in
the earlier Writ Petition the appellants were required to consider the cases of
the respondents in terms of the memorandum dated 26.08.1985 wherein there was
no reservation of 50%. The appellants could not by their own conduct take away
the basis of the judgment by issuance of a memo to deny the right acquired by
the respondents under the judgment, which had attained finality between the
parties inter se. Moreover, the cases of the respondents had to be considered
on the date when they acquired the right, and not on any subsequent date. In
view of these findings the Writ Appeal was dismissed against which the
appellants have approached this Court by filing a Special Leave Petition.
We
find no error in the reasoning of the High Court. It must be held that the
right of appointment accrued to the Ex- casual Labourers under the memorandum
dated 26.8.1985, and therefore their cases for appointment have to be
considered in accordance with that memorandum, particularly when such a right
was declared by the High Court while allowing the first Writ Petition filed by
the respondents. The later memorandum curtailing their right of appointment
limiting it to 50% of the vacancies cannot be enforced as against them,
particularly so when the matter had attained finality by an order of the High
Court.
It was
sought to be urged before us on behalf of the appellants that after the
issuance of the first memorandum dated 26.8.1985 the vacancies were sought to
be filled up and by the year 1991 a large number of Ex-casual Labourers were
actually appointed. Unfortunately, the respondents herein did not turn up for
selection and therefore they were not appointed. This submission cannot be
entertained by us at this stage because it does not appear that when the first
Writ Petition was filed and disposed of, such a plea was taken by the appellant
Board. The question being a pure question of fact, we refuse to entertain the
same at this stage.
However,
learned counsel for the appellant Board is right in submitting that the Board's
memorandum of 26.08.1985, conceived as a one time measure, envisaged the
appointment of existing Ex-casual Labourers who were found suitable and
eligible for appointment against the vacancies then existing. The Board's
proceedings of 26.08.1985 do not contemplate automatic appointment against
vacancies arising in future years without any time limit. Even if we accept
this submission urged on behalf of the appellant Board, it would only amount to
this that the Ex- casual Labourers who existed on 26.8.1985 have to be
considered for appointment against the vacancies that existed on 26.08.1985 in
accordance with guidelines provided in the aforesaid memorandum. Vacancies that
may have arisen subsequently do not come within the scope of the memorandum of
26.08.1985.
Such
being the legal position the only relief that the appellant Board can claim
from this Court is a clarification that the cases of eligible Ex-casual Labourers
as on 26.8.1985 have to be considered for appointment against the vacant posts
that existed on the date of the issuance of the memorandum dated 26.08.1985 in
accordance with the norms and guidelines therein contained.
We,
accordingly, dispose of this appeal upholding the directions contained in the
impugned judgment and order with the clarification that only the cases of
eligible Ex-casual Labourers, have to be considered in the light of the norms
and guidelines laid down in the memorandum dated 26.08.1985, for appointment
against the vacancies that existed then and were within the contemplation of
the memorandum dated 26.08.1985.
In
calculating the number of vacancies which have already been filled up in
accordance with the memorandum dated 26.08.1985, the appellants are entitled to
count the vacancies filled up by appointment of the eligible Ex-casual Labourers
earlier as claimed by them and subsequently by the Selection Committee
constituted under memorandum dated 18.05.1997. The remaining vacancies, if any,
shall be filled up within a period of six months from the date of this order by
appointing eligible ex- casual labourers, if any. There will be no order as to
costs.
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