The
Transmission Corporation of A.P. Ltd. & Ors Vs. P. Surya Bhavagan [2003] Insc
255 (29 April 2003)
Doraiswamy
Raju & Ashok Bhan. Bhan, J.
This
appeal is directed against the final order and judgment dated 17th July, 1999
in Writ Petition No. 16523 of 1993 by a Full Bench of the High Court of Andhra
Pradesh wherein the High Court has held that the respondent-writ petitioner was
eligible to be considered for the post of LDC/Revenue Cashier and a direction
has been given to the appellant to appoint the respondent in one of the posts
of LDC/ Revenue Cashier within a period of one month from the date of receipt
of the copy of the order impugned therein.
Appellant,
Transmission Corporation of Andhra Pradesh Limited (hereinafter referred to as
'the appellant') is the successor of erstwhile Andhra Pradesh State Electricity
Board (for short 'the Board'). The Board entered into an agreement with the
workers Union for absorption of ex- casual labourers
against regular vacant posts arising from time to time for operation &
Maintenance and Construction Establishments posts.
Accordingly,
the Board framed a scheme and issued the same by Office Memo No. OSD(P)/DA.I/A3/1138/85-1
dated 26.8.1985. Casual labourers were divided into two categories. In the
first category the qualification and the minimum number of days for making them
eligible for appointments were notified as under:
Qualification
of Minimum No. of days ex-casual labourer one should have worked a) Read and
Write 100 days b) 8th Class passed 90 days c) 10th Class passed 80 days d)
I.T.I. (Electrical Trade) 60 days The second category was of those ex-casual labourers
who were graduates or possessing equivalent or higher qualifications. They were
to be absorbed against the vacant LDC/Revenue Cashier/Typists/Steno-Typist
posts in the Operation
Circle irrespective
of the number of day's work put in by them.
In the
first category the Division was taken as a unit for considering the eligible
and suitable ex-casual labourers and the Divisional Engineer was made the appointing
authority. In respect of the second category the Circle was taken as a unit for
considering the eligible ex-casual labourers and the Superintending Engineer
was named as the appointing authority. Division Engineer and the Superintending
Engineer in their respective Divisions/Circles were directed to scrutinize and
verify the lists of eligible candidates amongst the ex-casual labourers and
satisfy themselves personally regarding the number of days worked and the
qualification possessed by each candidate. The list prepared of such casual labourers
was required to be displayed on the notice board and the final list was to be
prepared after scrutinizing the representations, if any, received in this
regard.
Thereafter,
the final list was to be forwarded to the Board in the proforma appended for
approval. Appointment orders were to be issued after taking approval from the
Board.
The
sole respondent, the ex-casual labourer, had worked with the Board on daily
wage basis for a period of 47 days from 1.5.1976 to 30.6.1976. He was not a
graduate at the time when he had worked as a casual labourer with the Board in
the year 1976. He did his graduation in the year 1981-82. Since he was not a
graduate at the time when he had worked as a casual labourer and he had also
not intimated to the Board about his graduation, his name was considered in the
first category and included in the comprehensive list prepared in the concerned
Division. His name was not included in the final list as it was opined that the
incumbent was a 'read and write' candidate and had not put in 100 days of work
making him eligible for a 'read and write' candidate.
The
concerned Divisional Engineer submitted the final list prepared by him to the
Superintending Engineer who in turn submitted the same to the board. The final
list was got published in the newspaper (Telgu daily). It was indicated that in
case of any omission or discrimination in the list of ex-casual labourers
published, the concerned may contact the Divisional Engineer with supporting
evidence within 10 days. The concerned Divisional/Superintending Engineers were
instructed to scrutinise the representations with reference to the claims of
the application, if any, received after the publication of the lists and
furnish the dates of the claim with their remarks to the Board. In case no
representation was received the Superintending/Divisional Engineers were
required to intimate the same to the board within 15 days after the stipulated
period for receipt of the representations to enable to finalise the lists of
eligible ex-casual labourers.
No
representation was received from the respondent.
The
respondent in the month of October, 1993 filed the writ petition in the High
Court seeking appointment in anyone of the appropriate vacant post of
LDC/Revenue Cashier. It was alleged in the petition that his name was not
included in the list of candidates published on 3rd January, 1989 for absorption in the regular services though he was
eligible. It was stated that he had filed representations on 22.1.1990,
22.8.1990, 8.2.1991, 11.1992 and 18.3.1993 with copies to the Minister for
Power and some other officials concerned, but, the same were not replied to by
the Board. Another ground taken was that he had been discriminated against
inasmuch as certain other ex-casual labourers who had worked for lesser number
of days than him had been absorbed whereas the same was denied to him. Board in
his counter affidavit denied the receipt of any representation from the
respondent. None of them was on record. It was pleaded that respondent was not
a degree holder at the time he had worked as casual labourer during the
relevant period i.e. 1.5.76 to 30.6.76 and therefore not eligible to be
considered in the second category. Acquisition of degree qualifications after
leaving the service of Board could not make him eligible for the posts of
LDC/Revenue Cashier in the second category. It was further stated that the name
of the respondent was included in the comprehensive list prepared in the
division for the employment in the first category since he was 'read and write'
candidate. As he had not worked for 100 days as required for 'read and write'
candidate, his name was not included in the final list submitted to the Board.
Final list was published in the newspaper inviting objections/representations.
Respondent did not file any representation in response to it which clearly
indicates that the fact of his filing the representations was not factually
correct and was an after thought to explain the delay in filing the writ
petition.
When
the writ petition came up for hearing, it was pointed out to the Bench, hearing
the petition, that a Division Bench in an earlier case has taken the view that
the ex-casual labourer was required to be a graduate during the time when he
had worked as casual labourer and the subsequent acquisition of higher
qualification would not make him eligible for the post of LDC/Revenue Cashier
in the second category. The learned Single Judge, hearing the petition, did not
accept this view and referred the matter to a Division Bench which in turn
referred the same to the Full Bench for re- examining the point. The Full Bench
by the impugned order took a view different than the earlier Division Bench and
held:
"For
interpretation or construction of a statute, order or scheme, the reasons for
enacting the same is the safest guide. In the instant case, the reason for
framing the Scheme, in the Memo dated 26.8.1995 was to accommodate the casual labour,
who had worked earlier, but were disengaged for want of vacancies. As the
vacancies arose, while accommodating the existing casual labour, which or
course, should be given the priority, after exhausting the existing casual labour,
the next preference is given to ex-casual labour and not to freshers. Thus, the
scheme is to rehabilitate the ex-casual labour, subject to acquisition of
qualifications. In sofar as mandays are concerned, they cannot be acquired, as
they are to be reckoned having regard to the actual working days put in by the
ex-casual labour. But this requirement is in contradiction to the educational
qualification, which ex-casual labour can acquire after he is laid off from the
work. It is too much to read into the scheme that the ex-casual labour who is
laid off from work, should not educate himself and in the process becomes
eligible to hold the post. In fact, such an endeavour on the part of the
ex-casual labour has to be appreciated and encouraged. The setting and pattern
giving priority to educational qualification in the context of the post held is
easily discernible from the scheme i.e. lower the qualification-higher the
working days and higher the qualification-lower the working days. Even if any
doubt arises the words employed in the scheme regarding the date of acquisition
or educational qualification, having regard to the benevolent purpose of the
scheme in accommodating the ex-casual labour, it becomes necessary for this
Court to interpret in a manner which furthers the object of the Scheme and we
do so. Admittedly, the petitioner had worked as casual labourer from 1.5.1976
to 30.6.1976 for 47 days and had acquired B.A. degree in the year 1982. In this
view of the matter, in our considered opinion, the judgment of the Division Bench,
cannot be taken as laying down the law correctly." Shri P.P. Rao learned
senior advocate appearing for the appellant contended that the respondent was
not eligible to enter service being overage. He was 35 years of age whereas the
prescribed age was much less.
That
the respondent neither informed the appellant regarding the acquisition of
higher qualification by him in the year 1982 nor did he file a representation
within the stipulated time after the issuance of the final list, and,
therefore, under the circumstances the appellant was justified in not considering
him in the category of graduates for giving appointment to the post of
LDC/Revenue Cashier. Statement of fact made in the writ petition that he had
filed representations between 1990 to 1993 was incorrect as none of them are
borne on the record. It has been done to explain the delay in filing the writ
petition which was otherwise much delayed. Lastly, it was contended that the
ex-casual labourer should have been a graduate at the time when he had worked
as a casual labourer and the subsequent acquisition of higher qualification
would not make him eligible for the post of LDC/Revenue Cashier in the second
category. Per contra, the counsel for the respondent contended that the first
two points which would require finding on facts were not raised before the High
Court and, therefore, the appellant is precluded from raising these points for
the first time in this Court. Regarding the third point he reiterated the view
expressed by the Full Bench in its judgment.
Question
as to whether the respondent was overaged for entry into service was neither raised
in the written statement nor was it argued before the High Court. Under the
circumstances the appellant cannot be permitted to raise this point for the
first time in this Court. The second point regarding the delay in filing the
petition though was raised in the written statement, but, it seems the same was
not pressed before the Bench at the time of arguments. It has not been stated
in the grounds of appeal that this point was raised and argued before the Bench
during the course of arguments and the Bench had failed to notice the same. In
view of this we decline to go into this question as well.
A
perusal of the scheme indicates that it was evolved to absorb suitable and
eligible ex-casual labourer after adjusting the existing casual labourers to
fill up the vacancies as a one time measure. While framing the scheme for
absorption of ex-casual labourer the framers kept two things in mind, i.e.,
educational qualification and the number of day's work put in.
Lower
the qualification higher the number of working days and higher the
qualification lower the number of working days. Both the educational qualification
as well as the number of day's work put in are relatable to the individual
workman at the time of leaving the service. Educational qualification was kept
as a relevant factor while prescribing the number of day's work required to be
put in by the ex-casual labourer for being considered for absorption in the
service. If this be so, then the eligibility criteria of qualification as well
the number of day's work put in would have to be determined relatable to the
time the labourer left the service and not to any other date later. Subsequent
acquisition/improvement in the qualification would not entitle the ex-casual labourer
to obtain the job under the scheme.
Suitability
has not been defined in the scheme. The criteria for determining the
suitability has neither been explained nor elaborated in the scheme. The same
has been left to be determined by the appointing authority at its discretion.
The criteria for determining the eligibility has been laid down in terms of
qualification of ex-casual labourer and the number of mandays put in by him. If
the ex-casual labourer was not a graduate as on the date of leaving the service
then necessarily he was required to put in mandays of 100, 90, 80 and 60
respectively for the respective categories of posts for absorption in the
service. A labourer in the construction establishment was not required to have
any qualification and it was sufficient, if he was able to 'read and write'.
Such a candidate was required to put in 100 mandays of work. But having regard
to the requirement of educational qualification in the context of the post to
be held the requirement of number of working days is reduced and coming to the
graduates they are entitled to be absorbed as LDC/Revenue Cashier,
Typist/Steno-Typist in the operation circle irrespective of the number of days
of work put in by them. In our view, the High Court was not right in observing
that a distinction could not be made between the ex-casual labourers having the
graduate degree as on the date of leaving the service and those who acquired it
after leaving the service. The pattern and purpose indicated in the scheme
giving priority to educational qualification in the context of post offered and
the number of day's work put in is easily discernible from the reading of the
scheme as a whole. This pattern has been put in to accommodate ex-casual labourer
having higher qualification though with less number of day's work put in. The
educational qualification possessed by the workman during the period he had
worked as ex-casual labourer would be the only qualification which would be
relevant while giving appointment under the scheme. Subsequent acquisition of
higher qualification would not entitle the ex-casual labourer to claim a higher
post or in reduction of actual number of days of work required to be put in by
him, as a casual labourer.
Thus
the High Court was not right in holding that an ex-casual labourer who was not
a graduate at the time when he left the service, on acquisition of degree and
becoming a graduate subsequently would become eligible for the post of
LDC/Revenue Cashier in the second category.
Overall,
reading of the scheme clearly indicates that the qualification has to be
reckoned as on the date of leaving the service.
For
the reasons stated above, the appeal is accepted the order of the High Court is
set aside. There will be no order as to costs.
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