Full Judgment Text
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CASE NO.:
Appeal (civil) 5691 of 2001
PETITIONER:
The Transmission Corporation of A.P. Ltd. & Ors.
RESPONDENT:
P. Surya Bhavagan
DATE OF JUDGMENT: 29/04/2003
BENCH:
Doraiswamy Raju & Ashok Bhan.
JUDGMENT:
J U D G M E N T
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
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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.
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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,
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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
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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.