JUDGMENT By the Court.—This Special Appeal has been filed by the respondents of Writ Petition No. 13402 of 2003 that had been filed by 30 petitioners (should be 29 petitioners only as petitioner Nos. 8 and 30 are same) for setting aside the order dated 12th December, 2002 passed by the U.P. Electricity Services Commission (hereinafter referred to as the ‘Commission’) in so far as it rejects their claims for absorption as Class IV employees in the U.P. Power Corporation under the special drive to fill up 236 vacancies for Scheduled Castes/Scheduled Tribes (hereinafter referred to as the ‘SC/ST’) and 97 vacancies for Other Backward Classes (hereinafter referred to as the ‘OBC’). 2. The petitioners, who are respondents in this Special Appeal, are retrenched Class IV employees of the erstwhile U.P. State Electricity Board (hereinafter referred to as the ‘Board’). A policy decision was taken by the Board on 28th November, 1996 to absorb all the muster-roll/daily wage employees against the existing vacancies who were actually working and had been engaged prior to 4th May, 1990 and in this connection a list of 1133 such employees was furnished. Out of the aforesaid list of 1133 muster roll/daily wage employees that was prepared. 733 employees belonged to the General Category, 299 employees belonged to the OBC category and 101 belonged to the SC/ST. It was found that even after absorption of such employees, 97 posts for OBC and 236 posts for SC/ST remained to be filled up and, therefore, a communication dated 15th March, 1999 was sent by the Board to all the Chief Engineers to fill up such vacant reserved category posts so that the Reservation Policy was satisfied. Consequently, a communication dated 16th December, 1999 was issued by the Commission requiring all the Chief Engineers to send the forms filled up by such employees by 15th January, 2000 so that they could be considered for absorption. The process was then initiated by the Commission to fill up such vacancies and as the names of the petitioners were not included, they filed Writ Petition No. 9996 of 2002 in which an interim order was passed that the petitioners may be permitted to appear provisionally in the interview test for absorption. The process was then initiated by the Commission to fill up such vacancies and as the names of the petitioners were not included, they filed Writ Petition No. 9996 of 2002 in which an interim order was passed that the petitioners may be permitted to appear provisionally in the interview test for absorption. The petitioners were considered by the Commission but their names were not included in the list declared on 12th February, 2002 as they did not satisfy the conditions mentioned in the order. This led to the filing of the writ petition out of which the present Special Appeal arises. It needs to be mentioned that petitioner No. 30 was unnecessarily impleaded as a petitioner as he is the same person as petitioner No. 8. 3. The petitioners/respondents have filed a chart showing reasons for their rejection and the same are as follows : Condition Petitioners/Respondent Nos. Nos. 1. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, Below 18 years at the time of 14, 16, 17, 18 and19 their initial engagement. 2. 13, 15, 20, 21, 22, 23, 24, 25, 26 Have no knowledge of and 27 department work. 3. 28 Could not read and write. 4. 29 37 years of age on 1.1.1999 4. As seen from the above chart, petitioner Nos. 1 to 19 (except petitioner Nos. 13 and 15) have not been absorbed on the ground that they were below 18 years of age on the initial date of engagement as muster-roll/daily wage employees; petitioner Nos. 13, 15 and 20 to 27 have not been absorbed on the ground that they have no knowledge of department work; petitioner No. 28 has not been absorbed on the ground that he has no knowledge of reading and writing in Devanagari Script and petitioner No. 29 has not been absorbed on the ground that he was more than 37 years of age on 1st January, 1999. 5. The learned Judge found that the reason given for not absorbing some of the petitioners on the ground that they were below 18 years of age at the time of initial engagement as muster-roll/daily wage employees was wholly arbitrary and unreasonable. The learned Judge also found that no expert knowledge or training was required under the relevant Rules for Class IV employees and, therefore, rejection on this ground was also not sustained. The learned Judge also found that no expert knowledge or training was required under the relevant Rules for Class IV employees and, therefore, rejection on this ground was also not sustained. However, in respect of knowledge of reading and writing in Devanagari Script, the learned Judge found that the Chairman of the erstwhile Board had earlier given exemption to the Muster Roll Safai Karamcharies under Rule 45(2) of the 1995 Rules and, therefore, the petitioners also deserved some special consideration and, accordingly, the learned Judge directed that the petitioners may be given three months time to attend the literacy programme in Devanagari Script. The learned Judge also found that the reason given for not absorbing the petitioner on the ground that he was more than 37 years of age on 1st January, 1999 was also arbitrary as the absorption of retrenched employees made against the special recruitment drive for SC/ST and OBC candidates cannot be compared with direct recruitment. 6. This Special Appeal was earlier disposed of by the judgment and order dated 20th November, 2004. The present appellants filed Civil Appeal No. 3885 of 2006 which was allowed by the judgment and order dated 1st September, 2006 with the following observations : “The challenge in this appeal is to the order dated 20.11.2004 passed by the Division Bench of the High Court. It is contended by the appellant that in the appeal memo as well as at the time of arguments the counsel for the appellant have raised a large number of issues pointing out the illegality in the order of the learned Single Judge. However, the Division Bench without going into all those contentions disposed of the appeal by directing that the time given by the learned Single Judge is extended for a further period of three months and the appellant was directed to undertake the exercise to enforce the judgment of the learned Single Judge within the time extended. This would show that the Division Bench has not entered into the contentions raised by the appellant. In this view of the matter, the order of the Division Bench is set aside and Special Appeal No. 175 of 2004 is restored to the file of the High Court and the matter is remitted back to the Division Bench to decide on all the issues raised by the appellant on merit. In this view of the matter, the order of the Division Bench is set aside and Special Appeal No. 175 of 2004 is restored to the file of the High Court and the matter is remitted back to the Division Bench to decide on all the issues raised by the appellant on merit. The parties are at liberty to mention before the High Court.” 7. This is how the matter has come up before us. 8. We have heard Sri J.P. Pandey learned counsel appearing for the appellants and Sri Alok Kumar Yadav learned counsel appearing for the respondents. 9. Learned counsel for the appellants submitted that the petitioner-respondents were not entitled to be absorbed as they were not working on 28th November, 1996 which was the cut-off date mentioned in the order dated 28th November, 1996 issued by the Board and that even otherwise, condition Nos. 2, 3 and 4 referred to above were not satisfied by the respective petitioners shown in the above chart and, therefore, the learned Judge was not justified in granting relief to them. He, however, fairly stated that the appellants do not desire to raise any submission with regard to condition No. 1. 10. Learned counsel appearing for the respondents, however, submitted that there is no infirmity in the judgment impugned in the present Special Appeal and in any case, the reasons mentioned by the appellants for not absorbing the petitioners whose cases are alleged to be covered by condition Nos. 2, 3 and 4 referred to above have rightly been found to be unsustainable by the learned Judge. 11. We have carefully considered the submissions advanced by learned counsel for the parties. 12. A perusal of the notification dated 15th March, 1999 issued by the Board shows that a policy decision had been taken by the Board on 28th November, 1996 to absorb all such muster-roll/daily wages employees who were working and who had been engaged by the Board prior to 4th May, 1990 and pursuant to this policy decision a list of 1133 such muster-roll/daily wage employees category wise was prepared but even after absorption of such employees, the quota for SC/ST and OBC was not satisfied inasmuch as 97 vacancies of OBC and 236 vacancies of SC/ST still remained to be filled up by employees belonging to these categories. It is for this reason that the subsequent notice dated 15th March, 1999 issued by the Board provided that the respective Chief Engineers should send forms of all such ex-muster roll/daily wage employees for filling up these vacancies for OBC and SC/ST. The petitioner-respondents who belong to the SC/ST category have not been absorbed by the order dated 12th February, 2002 and only 41 retrenched employees have been absorbed. 13. Learned counsel for the appellants submitted that as the petitioners were not working on the date of issuance of the order dated 28th November, 1996, which was a necessary condition for absorption, they could not have been considered for absorption and according to him their cases were considered only because of the interim order of this Court. 14. This contention cannot be permitted to be raised by the appellants as such a ground was not even taken by the Commission in the order dated 12th December, 2002. This apart, the contention advanced by learned counsel for the appellants fails to take into consideration the subsequent notification dated 15th March, 1999 wherein the requirement of actually being engaged on the date of issue of the notification is not mentioned. What we find is that as the quota for OBC and SC/ST candidates was not filled up even after absorption of 1133 muster-roll/daily wages employees, the Board itself did not mention this condition in its order dated 15th March, 1999 and on the contrary directed that all the retrenched employees belonging to OBC and SC/ST categories could be considered for absorption. It appears that it is for this reason that such a ground was not taken by the Commission in the order dated 12th February, 2002. 15. As noticed hereinabove, learned counsel for the appellants has not raised any submission with regard to ground No. 1 regarding non-absorption of such muster-roll/daily wage employees who were below eighteen years of age. Thus, the appellants do not dispute the absorption of petitioner Nos. 1 to 20 (except petitioner Nos. 13 and 15). 16. 15. As noticed hereinabove, learned counsel for the appellants has not raised any submission with regard to ground No. 1 regarding non-absorption of such muster-roll/daily wage employees who were below eighteen years of age. Thus, the appellants do not dispute the absorption of petitioner Nos. 1 to 20 (except petitioner Nos. 13 and 15). 16. In so far as the knowledge of work in the department is concerned, learned counsel for the parties have stated that the eligibility requirement for direct recruits, as translated in English, is as follows : “The candidate should be physically and mentally fit and should be able to read and write in Devanagari script and should be able to ride a bicycle.” 17. We find that no expert knowledge or training is required under the relevant Rules and all that the Rule requires is that the candidates should be physically and mentally healthy and that they should be able to ride a bicycle and even learned counsel for the appellants has not been able to point out any other requirement. 18. In this view of the matter the learned Judge was justified in holding that non-absorption on this ground could not be sustained. There is, therefore, no error in the impugned judgment in so far as petitioner Nos. 13, 15 and 20 to 27 are concerned. 19. This brings us to the cases of petitioner No. 28 who was not absorbed on the ground that he had no knowledge of reading and writing in Devanagari Script. In this connection the learned Judge observed as follows : “So far as the fourth ground of rejection namely the knowledge of reading and writing in Dev Nagari script is concerned, I find that by order dated 13.11.1997 (Annexure-9 to the writ petition) the Chairman of the erstwhile Board had given exemption to those safai karmcharies who were working on muster roll. He exercised the power under Rule 45(ii) of the Rules, 1995 for relaxation of condition. The work of the Corporation has been modernized and that even Class IV employees is required to have knowledge of reading and writing in Dev Nagari script. This Court does not approve that a totally illiterate person be recruited as Class IV employee in U.P. Power Corporation. This condition, therefore, cannot be said to be invalid. The work of the Corporation has been modernized and that even Class IV employees is required to have knowledge of reading and writing in Dev Nagari script. This Court does not approve that a totally illiterate person be recruited as Class IV employee in U.P. Power Corporation. This condition, therefore, cannot be said to be invalid. The Court, however, finds that the petitioners have worked as muster roll employees for long periods and deserve some special consideration. The Union and the State Government have taken up adult literacy as national programme to eradicate illiteracy. It will be unjust to deprive these petitioners an opportunity to be literate, to seek the benefit of absorption. These petitioners, therefore, are entitled to and shall be given opportunity to avail benefit of adult literacy programme. For this purpose, I find that they must be given at least three months time to attain literacy in Dev Nagari script and thereafter receive due consideration for absorption.” 20. Thus, the requirement of reading and writing in Dev Nagari script has been adequately taken care of by the learned Judge. We see no good reason to interfere with the reasons given by the learned Judge. 21. In so far as the petitioner No. 29 is concerned, his case has not been considered on the ground that he was above 37 years of age on 1st January, 1999. The learned Judge, in view of the decision of the Supreme Court in Government of Tamil Nadu and another v. G. Mohamed Ammenudeen and others, 1999 (3) SCC 439, found such rejection to be untenable and the observations are as follows : “Following the dictum, I hold that the rejection on the ground of maximum age of 37 years, is also arbitrary and unreasonable. This was a special recruitment with relaxation of age for Scheduled Castes/Scheduled Tribes and Backward Class candidates. These petitioners have rendered long services as muster roll employees. They did not fall in the same class as direct recruits and that denial of age relaxation for the period they were in employment was arbitrary and violative of Articles 14 and 16 of the Constitution of India.” 22. The maximum age requirement of 37 years is for direct recruits. The department has issued a circular for absorption of retrenched employees and the circular does not contain any age requirement. The maximum age requirement of 37 years is for direct recruits. The department has issued a circular for absorption of retrenched employees and the circular does not contain any age requirement. In such circumstances, the Commission was not justified in importing the principles of age requirement relating to direct recruitments while considering the case of the said petitioners for absorption. 23. Thus, for all the reasons stated above, there is no merit in this Special Appeal. It is, accordingly, dismissed. ————