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2016 DIGILAW 136 (AP)

C. Ranga Reddy v. State of Telangana

2016-03-02

B.SIVA SANKARA RAO, NOOTY RAMAMOHANA RAO

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Judgment : Nooty Ramamohana Rao, J. Though this Writ Appeal is directed against the interlocutory order dated 28.01.2016 passed in W.P.M.P.No. 2775 of 2016 in Writ Petition No. 2189 of 2016, the learned Senior Counsel appearing on behalf of the writ petitioners-appellants and on behalf of Telangana State Power Generation Corporation Limited, Sri K.G. Krishna Murthy and Sri G. Vidya Sagar respectively would urge that since the controversy involved in the Writ Petition lies in a very narrow compass, the Writ Petition itself be decided at this stage. We have conceded to the request of the learned Senior Counsel appearing on either side because we have heard the matter at great length on merits. The combined Andhra Pradesh Power Generation Corporation Limited has taken out a Notification on 22.04.2013 proposing to fill-up approximately 361 vacancies of Firemen (120) and Security Guards (241) available at various units of the said Corporation. In the instant case, we are concerned with the 12 vacancies of Firemen, which have been notified as available at Srisailam Left Bank Hydro Electric Scheme. After the bifurcation of the composite State into two separate States and formation of the new State of Telangana, the Andhra Pradesh Power Generation Corporation Limited has also been bifurcated and in that process, Srisailam Left Bank Hydro Electric Scheme has now become part of Telangana State Power Generation Corporation Limited. The Notification has specified that the vacancies will be filled based upon the selection process indicated therein. The Notification has also indicated that the candidates applying for the posts under ‘land losers’ quota’ shall submit one copy of on-line application along with attested copies of the certificates, such as SSC, ITI (two-years duration course), Community Certificate, Physical Fitness Certificate along with the records referred to in Note (iii) under para-2 of the Notification by way of Registered Post to the Joint Secretary (Personnel), APGENCO, R.No. 252, ‘A’ Block, 2nd Floor, Vidyut Soudha, Khairatabad, Hyderabad for enabling such applications to be processed further. Thus, the land losers are also made eligible for applying for these posts. Thus, the land losers are also made eligible for applying for these posts. In fact, at page 5 of the said Notification, in a separate table, the certificates in the form of records to be submitted by the land losers have been specified which included i) copy of the award passed by the Revenue Divisional Officer; ii) Land Lost Certificate issued by the Revenue Divisional Officer; iii) certificate of “no earning member in the family” issued by the Revenue Divisional Officer; and iv) proof of relationship with the land losers in case of son/daughter/spouse. Thus, the Notification made it very clear that even the land losers would be considered for recruitment to the posts notified. There is no denying the fact that the State Government has announced a policy decision, through their G.O. Ms.No. 266, Irrigation and Command Area Development (Projects Wing) Department, dated 19.09.2014 constituting selection committees in conformity with Section 4 of the Andhra Pradesh (Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994 (Act 2 of 1994). Further, the State Government, as a package of rehabilitation of land losers, has announced that claims of such land losers or their immediate dependants would be considered against 50% of the vacancies and the selection committee of the land losers will be headed by the District Collector concerned within whose territorial jurisdiction, the land of the owners has been acquired for implementation of the developmental projects. All we need to observe in this regard is that the rehabilitation package has been ushered in by the State Government in addition to the compensation, which is settled and paid in accordance with the Land Acquisition Act, 1894 for the compulsory acquisition of land. Therefore, the Power Generation Corporation, for whose benefit vast extents of land have been acquired, is bound by this policy decision of the State Government and shall make available 50% of the vacancies notified by them to be filled-in by the eligible and suitable land losers or their immediate dependants. Therefore, the Power Generation Corporation, for whose benefit vast extents of land have been acquired, is bound by this policy decision of the State Government and shall make available 50% of the vacancies notified by them to be filled-in by the eligible and suitable land losers or their immediate dependants. Right at this juncture, it should also be appropriate to take note of the submission of Sri G. Vidya Sagar, learned Senior Counsel, who has pointed out that even amongst the land losers, the State Government has fixed certain priorities, such as those who lost their lands as well as dwelling units, those who have lost the entire avocation due to submergence or acquisition of the entire village, etcetera are given a top priority in the matter of rehabilitation by way of providing employment in contrast to those who have lost only a piece of land of theirs. Similarly, only the nearest dependents, such as son, daughter or spouse of a land loser will be considered for employment, provided there is no other regular source of income to the land loser’s family. We are in agreement with the contention of Sri Vidya Sagar that it is not for this Court to pronounce any opinion with regard to the justification of according such priority amongst various varieties of land losers. The State Government or for that matter, the employer is the best person to organize any such priorities and so long as such prioritization is based upon valid and relevant criteria, it is not open to the Court to pronounce any opinion with regard to lack of tenability behind any such prioritization. We therefore, hold that the 2nd respondent is bound by any such policy measure and follow such priority even amongst the land losers. The whole issue centers around whether the candidates, who do not come through the selection process specified at paragraph 15 of the Notification, can be accorded any priority by the respondent Corporation. Paragraph 15 of the Notification dealt with the selection procedure. It comprises of two separate and distinct elements: A) dealing with the general recruitment; and (B) dealing with land losers. Paragraph 15 of the Notification dealt with the selection procedure. It comprises of two separate and distinct elements: A) dealing with the general recruitment; and (B) dealing with land losers. Thus, in our opinion, the notification made it very clear to the competing candidates that different selection procedure is contemplated for selecting the candidates in the two streams i.e. one for land losers and for the others, who do not fall within the aforementioned land losers’ quota. Under the selection procedure prescribed for general recruitment, the first level test is indicated to be a written test of three hours duration of intermediate standard and syllabus has been prescribed. The examination is intended to be conducted for 200 marks. The minimum marks required to qualify have also been specified as 40% for open competition candidates, 35% for Backward Classes candidates and 30% for candidates belonging to Scheduled Castes and Scheduled Tribes. It was further made clear that mere securing minimum qualifying marks does not vest any right to a candidate for selection to the post of Fireman. Then comes the second level of the selection process. Those who have qualified in the written examination will be ranked in the descending order of merit and candidates in the ratio of 1 : 10 will be called for the second level selection procedure, which comprises of 1) physical measurement test; and 2) physical efficiency test. Thus, for those candidates, who are competing under the stream of open quota, as is understood in juxta position and contrast to that of the land losers, the selection process comprises of a written examination for 200 marks followed by physical measurement test and physical efficiency test. When it came to the selection procedure prescribed for land losers, separately at para 15.B, it is made clear that no written test for the candidates applying for the post under the category of land losers will be conducted. In other words, the candidates, who are competing under the land losers’ quota are not liable to be subjected to any written examination, but however, it was made clear that since the land losers, if they are qualified and eligible, can always compete against the vacancies available under the open competition stream. Hence, even land losers are entitled to appear for the written test followed by physical measurement test and physical efficiency test. Hence, even land losers are entitled to appear for the written test followed by physical measurement test and physical efficiency test. It is made obviously clear that such procedure has got to be undergone by even a land loser, if he were to stake his claim for recruitment against an open stream vacancy. The reason behind being very simple. Land losers cannot be accorded a different criteria of selection than the one to which a candidate from the open market is subjected to, when the land loser is competing for a vacancy in the open stream. Otherwise, any such attempt would amount to rank discrimination violating the injunctions contained under Articles 14 and 16 of our Constitution. In the instant case, no such complaint that different criteria are adopted in the matter of selection in the open stream vacancies has been raised. The whole question raised is that the unofficial respondents, who staked their claim for recruitment under the land losers’ quota, when they were subjected to physical efficiency test, have reported to have failed to clear the said test, but they are now selected. It is true that the physical efficiency test is sought to be conducted with reference to five different sporting items, such as 100 meters run, long-jump, short-put, high-jump and 800 meters run. Certain standards have also been specified within which the task has to be accomplished and those who compete and complete them within the defined criteria are sought to be awarded marks in the descending order. The most efficient getting the highest and the least efficient getting the least marks. For instance, the man, who ran fastest getting the highest and the one finished last getting the least. Thus a very objective formula has been evolved in the matter of rationally assessing the merit amongst the competing candidates, who took physical efficiency test as well. It is also one of the stipulations that at least three out of five tests have got to be compulsorily cleared within the standards specified by the competing candidates to qualify for the selection. The fact that the contesting respondent may have failed to clear any of the physical efficiency tests, is not a relevant criteria, according to us, for consideration of their cases under the land losers’ quota. The fact that the contesting respondent may have failed to clear any of the physical efficiency tests, is not a relevant criteria, according to us, for consideration of their cases under the land losers’ quota. It is, no doubt, true that the physical efficiency has got a rational linkage to the performance of duties required to be performed upon such selection. We are dealing with the posts of Fireman. Apart from possessing technical qualifications, the candidates are also required to show the necessary sense of urgency and alertness to react to the demands of work. Therefore, they are required to possess certain assured physical efficiency standard. Failing to possess the same may prove to be a disadvantage for the organization to engage such people in its services, but however, the impugned Notification has left that issue silent insofar as the land losers are concerned. Hence, we cannot by a process of inference treat it as a part of the process of the selection of land losers. It is time that the employer should focus its attention on this lacuna and see to it that such aspects are also made clear and stipulated whenever the next recruitment process is undertaken, so that nothing will be left to be speculated in that regard. In our opinion, wherever physical efficiency of the candidate has some rational relationship with the requirements of performance of job, the same should also be applied to all the competing candidates irrespective of the stream through which they get recruited. But however, in the instant case, since the Notification has left this aspect of the matter not clear, we will not be justified in insisting on the Corporation to select only such of those land losers, who have also cleared the physical efficiency test compulsorily, which would amount to denying the very right of consideration to several land losers, while at the same time amounting to paying a premium for those who accidentally competed for open stream vacancies and hence participated in the written test followed by physical efficiency test. Be that as it may, it goes without saying that if the petitioners in the Writ petition have secured an appropriate rank in the overall merit list prepared by the Corporation, which would fetch them the selection against the vacancies available under the open quota stream, their cases are bound to be considered. Be that as it may, it goes without saying that if the petitioners in the Writ petition have secured an appropriate rank in the overall merit list prepared by the Corporation, which would fetch them the selection against the vacancies available under the open quota stream, their cases are bound to be considered. Similarly, the cases of the petitioners may also be considered under the land losers’ quota. Though Sri G. Vidya Sagar has pointed out that there is no such specific plea raised in the affidavit filed in support of the above Writ Petition, but however, we are not going to penalize the writ petitioners for lack of accurate or precise pleading in that regard, particularly when the list of eligible candidates under the land losers’ quota has been displayed by the Mahabubnagar District Selection Committee in January 2014, wherein, admittedly, the names of petitioners 1, 3, and 4 are included. But however, we are not very sure as to whether they get a top priority amongst the land losers or not. It is for the District Selection Committee to consider the cases of such of those land losers amongst the writ petitioners and certify as to what priority they occupied and upon receipt of any such recommendation, the claims of the petitioners shall also be considered for appointment against the land losers’ quota vacancies. Let this exercise be completed as expeditiously as is possible, preferably within a period of two months from the date of receipt of a copy of this judgment. With this, The Writ Appeal as well as the Writ Petition stand disposed of. Consequently, the miscellaneous applications, if any shall also stand disposed of.