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2001 DIGILAW 1207 (AP)

B. Umadevi v. Government Of A. P.

2001-10-08

S.B.SINHA, V.V.S.RAO

body2001
S. B. SINHA, CJ, J. ( 1 ) A question seemingly of some importance as regards applicability of the principles of reservation framed by the State in relation to the employees of the 1st respondent herein arises for consideration in this appeal. FACTS : ( 2 ) A recruitment notification was issued on 1-1-1997 by the 2nd respondent herein calling applications from the eligible candidates to fill up 131 posts of Assistant Engineers (Electrical ). The writ petitioner-appellant herein applied pursuant to the said notification. She was not selected. Appointment letters have been issued by the 2nd respondent-Board to all 131 candidates who had been selected. A writ petition was filed questioning non-selection of the petitioner inter alia on the ground that the State in exercise of its policy in terms of Articles 15 and 16 of the Constitution of India directed reservation of 331/3% vacancies in public service for women candidates. The said policy decision has been brought into force by reason of the Rule 22-A of the A. P. State and Subordinate Service Rules (for short "the Rules") and thus the same is binding upon the 2nd respondent-Board. ( 3 ) THE contention of the respondents was that the appellant herein secured 65. 83% marks whereas the last candidate in OC category secured 68. 19% and as such she was not selected. It was contended that having regard to the provisions contained in Sections 78-A and 79-C of the Electricity (Supply) Act, 1948, the Board had an obligation to follow the directions of the State. Assuming, according to the respondents, that the reservation policy is applicable, the notification was issued on 1-1-1997 by which date the A. P. Regulation of Reservations for Appointments to Public Services Act, 1997 whereupon the appellant placed reliance did not come into force and, thus, there was no obligation on the part of the Board to implement the reservation. The learned single Judge arrived at a conclusion that Rule 22-A of the Rules would not automatically be applicable to the employees serving under the Board and the necessary regulations have to be issued by virtue of the power vested in it under Section 79 of the Electricity (Supply) Act, 1948. Mere framing of the policy of reservation, the learned single Judge held, would not ipso facto oblige the Board to implement the same. Mere framing of the policy of reservation, the learned single Judge held, would not ipso facto oblige the Board to implement the same. As regards applicability of Act 24 of 1997 the learned single Judge held: the appointments are initiated by way of notification for recruitment and therefore, when once the recruitment process commences prior to the Act coming into force, any appointment made in pursuance of such notification will not be covered by the Act. Rule 22-A of the Rules reads thus: women reservation in appointments:-Notwithstanding anything contained in these rules or Special Rules or Adhoc Rules: (1) In the matter of direct recruitment to posts for which women are better suited than men, preference shall be given to women: provided that such absolute preference to women shall not result in total exclusion of men in any category of posts. (2) In the matter of direct recruitment to posts for which women and men are equally suited, there shall be reservation to women to an extent to 33 1/3% of the posts in each category of Open Competition, Backward Classes (Group-A), Backward Classes (Group-B), Backward Classes (Group-C), Backward Classes (Group-D), Scheduled Castes, Scheduled Tribes and Physically Handicapped and Ex-Servicemen quota; (3) In the matter of direct recruitment to posts which are reserved exclusively for being filled by women, they shall be filled by women only. ( 4 ) THE respondent-Board in exercise of the power conferred upon it under Section 79 (c) and (k) of the Electricity (Supply) Act, 1948 made regulations known as APSEB Service Regulations. Regulation 22-A reads thus: notwithstanding anything contained in these regulations: (1) In the matter of direct recruitment to posts for which women are better suited than men, preference shall be given to women. Provided that preference given to women shall not result in total exclusion of men in any category of posts. (2) In the matter of direct recruitment to posts for which women and men are equally suited, other things being equal, preference shall be given to women and they shall be selected to an extent of atleast 30% of the posts in each category of OC, BC, SC and ST quota. ( 5 ) A bare perusal of Rule 22-A of the Rules and Regulation 22-A aforementioned would clearly show that they are in pari materia. Constitutionality of Rule 22-A of the Rules came up for consideration before this Court. ( 5 ) A bare perusal of Rule 22-A of the Rules and Regulation 22-A aforementioned would clearly show that they are in pari materia. Constitutionality of Rule 22-A of the Rules came up for consideration before this Court. The portion of sub-rule (2) of the said Rule which was declared ultra vires by a Division Bench of this Court reads thus:. . . . . . . . and they shall be selected to an extent of at least 30% of the posts in each category of OC, BC, SC, and ST, quota. ( 6 ) THE apex Court in appeal against the said judgment in Govt. of A. P. v. P. B. Vijaykumar, AIR 1995 SC 1648 , reversed the decision of this Court holding: rule 22-A (2), however, does not provide for this kind of reservation for women. It is a rule for a very limited affirmative action. It operates, first of all, in respect of direct recruitment to posts for which men and women are equally suited. Secondly, it operates only when both men and women candidates are equally meritorious. This is an express condition of Rule 22-A (2), thus limiting its application. In other words, it contemplates a situation where, in the selection test-whether it is written or oral or both, a certain number of men and women candidates have got an equal number of marks. If the number of posts to which these equally situated men and women can be appointed are limited, and all of them cannot be appointed, then preference to the extent of 30% is required to be given to women. This is clearly an affirmative action of preference to the extent of 30% for women. To give an illustration, supposing there are in the merit list, at a certain point in the order of merit, 20 candidates men and women, who have secured equal marks. There are only ten posts which have to be distributed amongst these 20 candidates. In such a situation, 3 out of these 10 posts will be given to women while the remaining 7 posts will have to be allotted among the remaining 17 candidates. In such a situation if there are only departmental rules for giving preference they will operate. For example such rules at times provide that a person who is older in age will be preferred, all other things being equal. In such a situation if there are only departmental rules for giving preference they will operate. For example such rules at times provide that a person who is older in age will be preferred, all other things being equal. This kind of preference may have nothing to do with merit. It may be merely an administrative guideline to select from amongst those who are equally meritorious. Sometimes educational qualifications are looked at to find out the marks obtained by the candidates in the examination. It could be that the examination taken by different candidates is of different institutions or Universities and is taken at different times. Nevertheless, these marks are looked at to select some candidates out of a group of equally meritorious persons. These norms for selection out of equally meritorious persons do not come into play under Rule 22-A (2) for giving preference to women. The phrase "other things being equal" does not refer to these other norms for choosing from out of equally meritorious persons. For example, it would be somewhat startling to find men and women who have not merely got the same number of marks in the selection test but are also born on the same day in the same year. It is not the intention of Rle 22-A (2) that it would apply only if all the candidates have got merely the same number of marks in the selection test but are also born on the same date, or have identical marks in the qualifying diploma or degree examination. The preference contemplated under Rule 22-A (2) will come into operation at the initial stage when in the selection test for the post in question, candidates obtain the same number of marks or are found to be equally meritorious. Rule 22-A (2) prescribes a minimum preference of 30% for women, clearly contemplating that for the remaining posts also, if women candidates are available and can be selected on the basis of other criteria of selection among equals which are applied to the remaining candidates, they can also be selected. The 30% rule is also not inflexible. In a situation where sufficient number of women are not available, preference that may be given to them could be less than 30%. The 30% rule is also not inflexible. In a situation where sufficient number of women are not available, preference that may be given to them could be less than 30%. ( 7 ) IN support of its aforementioned finding it observed that both Articles 15 and 16 are designed for the same purpose of creating an egalitarian society and quoted from the judgment of Thommen, J, in Indra Sawhney v. Union of India, 1992 Supp. (3) SCC 217 = 1992 AIR SCW 3682 = AIR 1993 SC 477 , which is to the following effect: equality is one of the magnificent cornerstones of Indian democracy. ( 8 ) IN view of the aforementioned decision of the apex Court, we are of the opinion that it was not necessary for the respondent-Board to specifically apply by reason of a regulation or otherwise the policy decision of the State. Such policy of the State had already been applied by the 2nd respondent by framing the aforementioned regulation. ( 9 ) AS indicated by the learned single Judge, in the meanwhile even the 1997 Act has come into force. ( 10 ) THE learned Counsel appearing on behalf of the appellant has pressed into service a Division Bench judgment of this Court in APSEB v. M/s. Venus Hotel, Khammam, 1999 (3) ALD 693 = AIR 1999 AP 333 , with a view to buttress the point that any decision of the State even if the provision of law has not been mentioned must be implemented by the 2nd respondent-Board. The said decision has no application in the instant case inasmuch as therein a policy decision was taken for providing sale of electricity on concession to the consumers of the notified area and such a decision was found to be one traceable under Section 78-A of the Electricity (Supply) Act, 1948. By reason of Section 78-A no direction can be issued by the State as regards employment inasmuch as the Board has to frame regulations in relation thereto in exercise of its regulation making power under Section 79 (c ). In APSEB Board v. N. R. Rao, 1969 Lab. IC 1080 = AIR 1969 AP 328 , this Court has held: the State Government, under Section 78-A can only issue directions on questions of policy for the guidance of the Board in the discharge of its functions. In APSEB Board v. N. R. Rao, 1969 Lab. IC 1080 = AIR 1969 AP 328 , this Court has held: the State Government, under Section 78-A can only issue directions on questions of policy for the guidance of the Board in the discharge of its functions. The power to give directions on matters of policy by the State Government would not take away the statutory power given under Section 15 to the Board for appointing its employees to carry out its functions under the Act. By the addition of the proviso, the Parliament restricted the power of the Board under Section 15 only insofar as it relates to the appointment of its Secretary being made subject to the approval of the State Government. On a harmonious construction of Sections 15 and 78-A, we hold that the spheres of the aforesaid two sections are distinct and different and one is not controlled or governed by the other. We cannot read something which is not there in the Section 78a. A reading of the relevant provisions of the Act would clearly disclose that the Board is an autonomous corporate body having statutory powers under Section 15 of the Act to appoint all other employees of the Board, except its Secretary as may be required to enable it to carry out its functions under the Act. Hence, on a consideration of the relevant provisions of the Act, we have no hesitation to hold that the Board has ample power and jurisdiction to call for the applications and appoint 50 per cent of the Accountants by direct recruitment. ( 11 ) YET again in Rakesh Ran/an Verma and others v. State of Bihar and others, AIR 1992 SC 1348 , the aforementioned decision of the Andhra Pradesh High Court has been upheld stating: thus, under the proviso to Section 15, it is only the appointment of the Secretary, which is subject to the approval of the State Government. So far as other staff is concerned, it lies with the Board to make appointment of all officers and employees as may be required to enable the Board to carry out its functions under the Act. So far as other staff is concerned, it lies with the Board to make appointment of all officers and employees as may be required to enable the Board to carry out its functions under the Act. Thus, we agree with the view taken by the High Court in this regard that the direction given by the State Government to appoint the appellants as Junior Engineers by the Board does not involve any matter of policy and it would be an encroachment on the powers of the Board given under Section 15 of the Act. . . . . . . ( 12 ) THE 2nd respondent is a State within the meaning of Article 12 of the Constitution. It is a statutory authority having been constituted under the Electricity (Supply) Act, 1948. In terms of Sections 5 and 12 of the said Act, it is a distinct juridical corporate entity and it can be sued and sue in its name. The State cannot exercise any control over such authority save and except as is provided for in the said Act. The Board is empowered to provide for service conditions in respect of its employees under Section 79 (c ). Such a statutory power must prevail over the power of the State to issue directions under Section 78-A. The Board, therefore, is entitled to lay down its policy decision as regards reservation also for the purpose of Part III and Part IV of the Constitution inasmuch as it is as instrumentality of the State in terms of Article 12 of the Constitution. Thus any authority within the meaning of the said Article, irrespective of the policy decision of the State, not only is bound to act in terms of Part III of the Constitution but also to take a decision which shall be commensurate with the provisions contained in Part III and Part IV of the Constitution. However, it is not necessary for this Court in this case to delve deep into the matter inasmuch as, as noticed hereinbefore, such a policy decision has already been taken by the 2nd respondent-Board by framing Regulation 22-A of the Regulations. However, it is not necessary for this Court in this case to delve deep into the matter inasmuch as, as noticed hereinbefore, such a policy decision has already been taken by the 2nd respondent-Board by framing Regulation 22-A of the Regulations. ( 13 ) IN the aforementioned situation, although rule of reservation as laid down therein would be applicable to the 2nd respondent but having regard to the fact that those who had been appointed having not been impleaded as a party in this appeal, they cannot be displaced so as to direct accommodation to the appellant. Furthermore, in the meanwhile, the State has enacted A. P. State Electricity Reforms Act, 1998. By reason of such an Act, power generation, transmission and distribution have been reorganised by entrusting those functions to commercially compact and viable entities with managerial function and autonomy. Transmission of power has been assigned to A. P. Transmission Corporation, Hyderabad whereas generation has been entrusted to another corporate body. ( 14 ) IT has not been disclosed before this Court as to whether all the 131 candidates who were recruited are working under one or the other Corporation. ( 15 ) HOWEVER, if there exists any vacancy out of the notified vacancies, the concerned company may consider the desirability of appointing the appellant herein or any other person who is similarly situate if they would otherwise come within the purview of Regulation 22-A of the Regulations as interpreted by the apex Court in P. B. Vijayakumar s case (supra ). ( 16 ) THE writ appeal is disposed of with the aforementioned observations and directions. There shall be no order as to costs.