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2013 DIGILAW 734 (AP)

Eastern Power Distribution Company of A. P. Ltd. v. Y. Rajendra

2013-09-05

A.RAJASHEKER REDDY, ASHUTOSH MOHUNTA

body2013
JUDGMENT Adavalli Rajasheker Reddy, J. 1. This Writ Appeal is filed against the order dated 31.12.2007 in W.P. No. 12884 of 2007, wherein the learned single Judge held that the action of the appellants herein, in keeping the appointments of the respondents 1 to 11 herein-writ petitioners in abeyance and thereafter cancelling them, is arbitrary and illegal, and as such, the impugned order is set aside, and directed the appellants herein to reinstate the respondents 1 to 11 herein-writ petitioners into service forthwith, with continuity of service, but without any back wages. The facts of the case, which are necessary for disposal of the appeal, are as under: The respondents 1 to 11 herein filed writ petition seeking a mandamus to declare the action of the appellants in refusing the candidature of the respondents 1 to 11 herein-writ petitioners for provisional appointment to the post of Junior Lineman on the ground that their I.T.I. Electrical qualification is not under the National Council for Training in Vocational Trades (N.C.T.V.T.) pattern, as arbitrary and illegal and consequently to direct the appellants to forthwith reinstate the respondents 1 to 11 herein-writ petitioners as Junior Linemen with effect from the date of refusal of their candidature for provisional appointment to the said post with all consequential benefits. 2. The case of the respondents 1 to 11 herein-writ petitioners is that they have passed S.S.C. and I.T.I. (Electrical Trade) from Sri Lakshmi Memorial Industrial Training Centre, Penumantra, West Godavari District, 14th respondent herein (7th respondent in writ petition). It is their case that they were engaged as Shift Operators with the former contractors of the erstwhile Andhra Pradesh State Electricity Board. They had put in service of 10 years and worked under the control of the 4th appellant. In the year 2006, regular recruitment had taken place for the post of Junior Lineman (YCB). The respondents 1 to 11 herein-writ petitioners were interviewed and subjected to pole climbing test also. All of them selected to the post of Junior Lineman and they were also given posting orders by the respective Divisional Electrical Engineers (appellants 1 to 3 herein). It is also the case of the respondents 1 to 11 herein-writ petitioners that they all joined as Junior Lineman on 16.01.2007 and discharging their duties. All of them selected to the post of Junior Lineman and they were also given posting orders by the respective Divisional Electrical Engineers (appellants 1 to 3 herein). It is also the case of the respondents 1 to 11 herein-writ petitioners that they all joined as Junior Lineman on 16.01.2007 and discharging their duties. While that being so, the appointment orders were kept in abeyance on 02.02.2007 and sent the I.T.I. certificates held by them to the Director of Technical Education i.e., 12th respondent herein and 5th respondent in the writ petition, for verification of their genuineness. The 12th respondent herein-5th respondent in the writ petition did not comment anything adversely regarding the genuineness of the certificates, but advised the appellants to contact the Director of Employment and Training, Andhra Pradesh i.e., 13th respondent herein and 6th respondent in the writ petition, with regard to equivalency of Industrial School Leaving Certificate (I.S.L.C.) with that of I.T.I. certificate. Thereafter the 13th respondent herein and 6th respondent in writ petition informed the appellants 1 to 3 herein that the I.T.I. certificates are not equivalent to N.C.T.V.T. pattern. The respondents 1 to 11 herein-writ petitioners assert that the appellants cannot expect them to produce N.C.T.V.T. pattern certificates, when their I.T.I. certificates are recognized by the 12th respondent herein-5th respondent in the writ petition, who is the authority concerned in this regard and moreover, State Government has already given a clarification that I.S.L.C. is equivalent to I.T.I. certificate awarded under N.C.T.V.T. pattern, therefore, the rejection of their candidature for appointment to the post of Junior Lineman is arbitrary and illegal. 3. A detailed counter affidavit is filed on behalf of the appellants herein denying the allegations made by the respondents 1 to 11 herein-writ petitioners. It is also stated that the appellants' Company has taken a decision to appoint Junior Lineman on contract basis and notified 349 posts under Eluru Operation Circle. A notification, dated 03.10.2006, was issued calling for applications from eligible candidates. After receipt of applications, call letters were sent to the candidates to appear for test and interview on 29.12.2006 and 30.12.2006. A provisional selection list was prepared and candidates selected were asked to produce relevant certificates and provisional appointment orders dated 08.01.2007/09.01.2007 were given to the candidates by the respective Divisional Engineers based on counseling of the candidates. After receipt of applications, call letters were sent to the candidates to appear for test and interview on 29.12.2006 and 30.12.2006. A provisional selection list was prepared and candidates selected were asked to produce relevant certificates and provisional appointment orders dated 08.01.2007/09.01.2007 were given to the candidates by the respective Divisional Engineers based on counseling of the candidates. It was clearly mentioned in the provisional appointment orders that the appointments were subject to verification of genuineness of the certificates. The respondents 1 to 11 herein-writ petitioners produced I.T.I. certificates issued by the 14th respondent herein-7th respondent in the writ petition. When doubts were expressed with regard to the genuineness of the certificates produced by the candidates, the certificates were sent for verification to the 12th respondent herein-5th respondent in the writ petition and the appointment orders were kept in abeyance by an order dated 02.02.2007. The 12th respondent herein-5th respondent in writ petition replied by letters dated 23.02.2007 and 15.03.2007 stating that the countersigning on the certificates issued by the Management is dispensed with and asked to get clarification from the concerned Management and further advised to approach the 13th respondent herein-6th respondent in the writ petition, who is dealing with the subject regarding equivalency of I.S.L.C. with that of I.T.I. certificate. On the basis of clarification sought for by the appellants, 13th respondent herein-6th respondent in the writ petition clarified that the I.T.I. certificates are not equivalent to N.C.T.V.T. pattern. On the basis of this clarification, appointment orders, which were kept in abeyance, were cancelled by an order, dated 07.04.2007. Hence, they sought for dismissal of the writ petition. 4. The learned single Judge allowed the writ petition holding that cancellation of appointment of the respondents 1 to 11 herein-writ petitioners is arbitrary and illegal and accordingly set aside the impugned orders. The learned single Judge directed the appellants to reinstate the respondents 1 to 11 herein-writ petitioners into service forthwith with continuity of service but without any back wages. Challenging the same, the present writ appeal is filed by the appellants Company. 5. Sri G. Vidya Sagar, learned counsel for the appellants contended that the I.S.L.Cs. are not qualified for appointment of post of Junior Lineman, as the qualification prescribed is I.T.I. He further contended that the appellants have not sought for equivalent qualification. Challenging the same, the present writ appeal is filed by the appellants Company. 5. Sri G. Vidya Sagar, learned counsel for the appellants contended that the I.S.L.Cs. are not qualified for appointment of post of Junior Lineman, as the qualification prescribed is I.T.I. He further contended that the appellants have not sought for equivalent qualification. He also contended that I.S.L.C. qualification possessed by the respondents 1 to 11 herein-writ petitioners is not equivalent to I.T.I., as I.T.I. with N.C.T.V.T. pattern is the requisite qualification for the said post. He also contended that notification for appointment for the post of Junior Lineman also prescribed the same thing. He further contended that I.S.L.C. certificate has been issued by the 14th respondent herein-7th respondent in the writ petition on its own and the I.T.I. certificate is not granted under N.C.T.V.T. pattern and that certificate was not issued by the department. He further contended that appointments were issued subject to verification of their qualifications and as the appellants sought clarification from the concerned officials and when it is found that they are not equivalent to I.T.I., the appointments were cancelled. He also contended that whether a particular qualification is equivalent to another has to be specifically indicated, no inferences can be drawn. He placed reliance on the judgment in Dy. Director of Public Instruction and District Recruitment Authority and others v. Shaik Moula and another (2006) 12 SCC 370 . He further contended that fixing eligibility criteria for particular post or admission to a course falls within the exclusive domain of legislature/executive and cannot be subject-matter of judicial review, unless found to be arbitrary, unreasonable or fixed without keeping in mind the nature of service for which appointments are to be made, or found to have no rational nexus with the object sought to be achieved by the statute. He also contended that any appointments made in contravention of the eligibility, cannot be approved and once appointment is bad at its inception, the same cannot be preserved, or protected, merely because a person has been employed for a long time. He also contended that any appointments made in contravention of the eligibility, cannot be approved and once appointment is bad at its inception, the same cannot be preserved, or protected, merely because a person has been employed for a long time. He also contended that lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity and such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. In support of his contentions, he relied on the judgment in State of Gujarat and others v. Arvindkumar T. Tiwari and another 2012 (6) SCJ 853 : (2012) 9 SCC 545 : 2013 (1) ALT 34.1 (DN SC). 6. On the other hand, Sri S.R. Sanku, the learned counsel for the respondents 1 to 11 herein-writ petitioners, by relying on the judgment in M. Brahmananda v. Works Manager, Zonal Workshop, APSRTC, Vijayawada and others 1999 (1) ALT 73 : 1999 (1) ALD 125 , contended that the learned single Judge of this Court held that I.S.L.C. certificate is equivalent to I.T.I. certificate and ordered for promotion of the candidates in that case basing on the letter No. D4/38711/70 dated 07.10.1970 issued by the Director of Employment and Training, as such, it cannot be contended that I.S.L.C. certificate is not equivalent to I.T.I. certificate. He also contended that no notice was issued before cancelling the appointment orders, as such, it is violative of principles of natural justice. He placed reliance on the judgment in Jaswant Singh and others v. State of M.P. and others (2002) 9 SCC 700 . 7. Sri A.K. Jaya Prakasa Rao, learned counsel for the writ petitioners in connected writ petitions, contended that the appointment orders issued to all the selected candidates and who have worked for sometime has to be protected and since the appellants themselves have considered their qualifications and appointed them, and now at this juncture, their appointments cannot be disturbed. It is also contended that Courts can protect the appointment orders since the appellants themselves have appointed them and later they sought for clarification whether their qualifications are equivalent or not and the writ petitioners are not at fault. It is also contended that Courts can protect the appointment orders since the appellants themselves have appointed them and later they sought for clarification whether their qualifications are equivalent or not and the writ petitioners are not at fault. He placed reliance on the judgment in Bhupinderpal Singh and others v. State of Punjab and others 2000 (4) ALT 74 (SC) : (2000) 5 SCC 262 . 8. In the present case, the appellants issued notification, dated 03.10.2006, calling for applications from eligible candidates to appear for test and interviews on 29.12.2006 and 30.12.2006 for appointment to the post of Junior Lineman. The appellants received applications of respondents 1 to 11 herein-writ petitioners and they were provisionally selected and they were asked to produce relevant certificates and provisional orders dated 08.01.2007/09.01.2007 were given to the candidates by the respective Divisional Engineers based on counseling of the candidates. It was only mentioned in the provisional appointment orders that the appointments were subject to verification of genuineness of the certificates. The respondents 1 to 11 herein-writ petitioners produced I.P.I. certificates issued by the 14th respondent herein-7th respondent in the writ petition. The doubts were expressed only with regard to the genuineness of the certificates produced by the respondents 1 to 11 herein-writ petitioners and the appointment orders of the respondents 1 to 11 herein-writ petitioners were kept in abeyance by order dated 02.02.2007. It is not the case of the appellants that the certificates produced by the respondents 1 to 11 herein-writ petitioners were not genuine. The provisional appointments were subjected to only verification of genuineness of the certificates. The appellants cannot contend that even after issuing appointment orders, their qualification will be verified. No doubt, genuineness of the certificates can be verified at any stage, but whether the respondents 1 to 11 herein-writ petitioners are qualified or not cannot be verified at any time. The appellants themselves got a doubt whether the certificates produced by the respondents 1 to 11 herein-writ petitioners were equivalent to I.T.I. qualification. Then they have referred the matter to the Director of Technical Education, who, in turn, advised the appellants to approach the Director of Employment and Training, who clarified that the certificates produced by the respondents 1 to 11 herein-writ petitioners are not equivalent to N.C.T.V.T. pattern. On the basis of this clarification, the appointment orders were kept in abeyance and later cancelled. On the basis of this clarification, the appointment orders were kept in abeyance and later cancelled. When the case of the appellants is that they have not provided for equivalent qualification as contended by the learned counsel for the appellants, they would have straightaway rejected the selection of the respondents 1 to 11 herein-writ petitioners, but in spite of the same, the appellants referred the matter to the Director of Technical Education, who, in turn, directed to approach the Director of Employment and Training, who clarified by letter dated 09.03.2007 that the certificates produced by the respondents 1 to 11 herein-writ petitioners are not recognized under the N.C.V.T. pattern of I.T.I. courses under the Commissioner of Employment and Training. 9. It is to be seen that the notification also does not say the I.T.I. qualification of N.C.T.V.T. pattern. Only on that basis, the appointments of respondents 1 to 11 herein-writ petitioners were cancelled. But in the present case, the respondents 1 to 11 herein-writ petitioners relied on the Lr. No. D3/431711/70 dated 07.10.1970 issued by the Director of Employment and Training, Andhra Pradesh, Hyderabad, wherein it is stated that I.S.L.C. is an equivalent one to that of Industrial Training Institute (I.T.I.) Certificates awarded by the National Council for Training in Vocational Trades (N.C.T.V.T.) for the purpose of Government Service in State Government, however, I.S.L.C. Holders are not eligible for apprenticeship under the Apprentices Act of 1961. This clearly goes to show that I.S.L.C. is equivalent to I.T.I., but only they are not eligible for apprenticeship. Now the appellants cannot contend that they have not sought for equivalency, when they themselves have referred the matter to the Director of Technical Education for getting information about the equivalency and who advised the appellants to approach the Director of Employment and Training. In such circumstances, it cannot be said that the appellants have not considered the certificates produced by the respondents 1 to 11 herein-writ petitioners at the time of selection. The appellants were satisfied about the qualification possessed by the respondents 1 to 11 herein-writ petitioners and they have issued provisional selection and also issued final appointment orders and thereafter they cannot contend that the respondents 1 to 11 herein-writ petitioners are not qualified. The appellants were satisfied about the qualification possessed by the respondents 1 to 11 herein-writ petitioners and they have issued provisional selection and also issued final appointment orders and thereafter they cannot contend that the respondents 1 to 11 herein-writ petitioners are not qualified. Even the Director of Employment and Training in his letter dated 09.03.2007 opined that the certificates are not recognized under N.C.T.V.T. pattern of I.T.I. courses under the Commissioner of Employment and Training, but the clarification issued in letter No. D431711 dated 07.10.1970 was whenever disputed. 10. In view or the above facts and circumstances, it is clear that after the respondents 1 to 11 herein-writ petitioners were selected and provisional selection was made, the appellants got doubt about the qualifications and started making enquiry about the same, which, according to us, is not permissible. The learned single Judge rightly held that the certificates produced by the respondents 1 to 11 herein-writ petitioners are equivalent to I.T.I. for the purpose of Government Service in State Government and the 14th respondent herein-7th respondent in writ petition, which is a recognized institute, had issued the certificates. It is also to be seen that the Director of Technical Education stated that the countersigning the certificates issued by the institute does not arise. The learned single Judge also held that various letters issued by the respondents 12 and 13 herein-respondents 5 and 6 in the writ petition also would indicate that the certificates issued by the 14th respondent herein-7th respondent in the writ petition are not only genuine, but also equivalent to I.T.I. certificates for the purpose of obtaining Government employment in the State of Andhra Pradesh. On the basis of certificate issued by the 14th respondent herein-7th respondent in the writ petition, persons were selected in various departments treating I.S.L.C. certificate as equivalent to I.T.I. certificate. In the present case also, it is to be seen that the respondents 1 to 11 herein-writ petitioners are working with the contractors appointed by the appellants-company and there was no complaint about their performance and only when regular selections are held, the respondents 1 to 11 herein-writ petitioners who worked under the contractors applied for the post on regular basis, which also goes to show that the appellants-company was accepting the qualifications held by the respondents 1 to 11 herein-writ petitioners. This goes to show that the appellants themselves sought for clarification from the officials of the State Government regarding equivalency and now cannot contend that for the purpose of their employment, there cannot be any equivalency. 11. In Dy. Director of Public Instruction and District Recruitment Authority case (2006) 12 SCC 370 (supra), it is held that whether a particular qualification is equivalent to another has to be specifically indicated and it is also held that, inferential conclusion, that too, without appreciating the nature of the controversy, makes decisions of the Tribunal and the High Court vulnerable. The facts in the present case are altogether different and the decision cited by the learned counsel for the appellants has no application to the facts of the present case. In the present case, even as per clarification given in the year 1970, I.S.L.C. is equivalent to I.T.I., which is issued by concerned authority of Government as learned single Judge drawn any information (sic inference), but relied on the clarification. 12. In Arvindkumar T. Tiwari case 2012 (6) SCJ 853 : (2012) 9 SCC 545 : 2013 (1) ALT 34.1 (DN SC) (supra), it is held that: 12. Fixing eligibility for a particular post or even for admission to a course falls within the exclusive domain of the legislature/executive and cannot be subject-matter of judicial review, unless found to be arbitrary, unreasonable or has been fixed without keeping in mind the nature of service, for which appointments are to be made, or has no rational nexus with the object(s) sought to be achieved by the statute. Such eligibility can be changed even for the purpose of promotion, unilaterally and the person seeking such promotion cannot raise the grievance that he should be governed only by the rule existing. When he joined service. In the matter of appointments, the authority concerned has unfettered powers so far as the procedural aspects are concerned, but it must meet the requirement of eligibility, etc. The court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of "fair play", "good conscience" and "equity". The court should therefore, refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of "fair play", "good conscience" and "equity". (vide State of J & K v. Shiv Ram Sharma reported in (1999) 3 SCC 653 : 1999 SCC (L & S) : AIR 1999 SC 2012 ) and Praveen Singh v. State of Punjab reported in (2000) 8 SCC 633 : 2001 SCC (L & S) 62). 13. In State of Orissa v. Mamata Mohanty reported in (2008) 7 SCC 633 : 2001 SCC (L & S) 62, this Court has held that any appointment made in contravention of the statutory requirement i.e., eligibility, cannot be approved and once an appointment is bad at its inception, the same cannot be preserved, or protected, merely because a person has been employed for a long time. 14. A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right, which can be enforced through court. (See Prit Singh v. S.K. Mangal reported in 1993 Supp (1) SCC 714 : 1993 SCC (L & S) 246 : (1993) 23 ATC 783 and Pramod Kumar v. U.P. Secondary Education Services Commission reported in (2008) 7 SCC 153 : (2008) 2 SCC (L & S) 244 : AIR 2008 SC 1817 . The facts in the present case are also different from the facts in the above decision. The facts in the present case are also different from the facts in the above decision. In the present case, the qualification for the appointment to the post was I.T.I. and the appellants by relying on certificates produced by respondents 1 to 11 herein-writ petitioners made appointments and thereafter they sought for clarification from the officials of the State Government, and on that basis, they rejected the candidature by ignoring the earlier clarification issued by the same official, wherein it is stated that the certificates produced by the respondents 1 to 11 herein-writ petitioners are equivalent to I.T.I. In the principle laid down by the Apex Court in the above judgment, regarding fixation of eligibility criteria by the legislature/executive cannot be the subject matter of judicial review. The Apex Court also held that the Court should refrain from interfering, unless the appointments so made, or the rejection of a candidature is found to have been done at the cost of "fair play", "good conscience" and "equity". In the present case, it is arbitrary on the part of appellants to cancel the appointments of respondents-writ petitioners after making the respondents 1 to 11 herein-writ petitioners to undergo selection process and after making selections and appointments, which according to us, is against fair play, good conscience. In the present case, it is not the case of the appellants that selection and appointments of respondents 1 to 11 herein-writ petitioners is illegal from inception. The case of appellants that after seeking clarification, they found I.S.L.C. possession of respondents 1 to 11 herein-writ petitioners is not equivalent to I.T.I., as such, above cited decision by the appellants' counsel has no application. 13. In Jaswant Singh case (2002) 9 SCC 700 (supra), the Apex Court held that cancellation of appointments without hearing is bad. In the present case also, after the selections and appointments, appellants cancelled the appointments without any notice and on that ground also, the cancellation of appointment orders are liable to be set aside. 14. 13. In Jaswant Singh case (2002) 9 SCC 700 (supra), the Apex Court held that cancellation of appointments without hearing is bad. In the present case also, after the selections and appointments, appellants cancelled the appointments without any notice and on that ground also, the cancellation of appointment orders are liable to be set aside. 14. In M. Brahmananda case 1999 (1) ALT 73 : 1999 (1) ALD 125 (supra), the learned single Judge directed the respondents therein to promote the candidates therein who were having I.S.L.C. certificate treating the same as I.T.I. qualification based on the letter No. D4/38711/70 dated 07.10.1970, wherein the learned single Judge also relied on the said letter, which was also relied upon by the respondents herein in the present case. 15. In Bhupinderpal Singh case 2000 (4) ALT 74 (SC) : (2000) 5 SCC 262 (supra), the Apex Court held that though it is found that the applicants who were called for interview though not eligible, the selection process was completed and appointment orders have been issued, their selections and appointments have been preserved, as it will cause grave injustice to the several persons if their selection and appointment were struck down and they were now asked to seek employment elsewhere. It is found that the Supreme Court protected the selections and appointments of the candidates therein, though it is held that the applicants therein were not eligible as on the last date for receipt of their applications. 16. We have gone through the order of the learned single Judge and perused the material on record and in view of the above discussion, we are of the opinion that we do not find an error in the view taken by the learned single Judge. 17. Accordingly, the writ appeal is dismissed while confirming the order of the learned single Judge dated 31.12.2007 in W.P. No. 12884 of 2007. As a sequel, miscellaneous petitions, if any pending in this appeal, shall stand disposed of. WRIT PETITION Nos. 10830, 10831, 10834, 10835, 10885 of 2010 and CONTEMPT CASE Nos. 1454, 1433, 1432, 1435 of 2010: 18. Since the issue involved in W.P. Nos. As a sequel, miscellaneous petitions, if any pending in this appeal, shall stand disposed of. WRIT PETITION Nos. 10830, 10831, 10834, 10835, 10885 of 2010 and CONTEMPT CASE Nos. 1454, 1433, 1432, 1435 of 2010: 18. Since the issue involved in W.P. Nos. 10830, 10831, 10834, 10835 and 10885 of 2010 is squarely covered by the decision of this Court in Writ Petition No. 12884 of 2007 dated 31.12.2007, which we are confirming in the above Writ Appeal No. 791 of 2008 by this Court, following the said decision and for the reasons mentioned therein, these Writ Petitions are also allowed in terms of the order in W.P. No. 12884 of 2007, and consequently, the Contempt Cases are closed. There shall be no order as to costs. As a sequel, miscellaneous petitions, if any pending in these writ petitions, shall stand disposed of. Registry is directed to enclose a copy of the order passed in W.P. No. 12884 of 2007.