In this writ appeal, the High Court held that the Electricity Board was not obligated to consider the appellant's case for alternative posts under B.P.Ms.No.36 after he was found unfit for the substantive post of Sub Engineer.
Writ Appeal allowed; impugned order set aside; no order on costs.
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THE HONOURABLE SRI JUSTICE L. NARASIMHA REDDY and THE HON’BLE SRI JUSTICE T.SUNIL CHOWDARY WRIT APPEAL No.1136 of 2014
JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)
Respondents 2 and 3 in W.P.No.26781 of 2007 are the appellants. The first respondent filed the Writ Petition against the second respondent and the appellants with a prayer to declare the action of the respondents in the Writ Petition in not appointing him as LDC/Typist, or in any other equivalent category post, in terms of B.P.Ms.No.36, dated 18.05.1997, as illegal, arbitrary and against the principles of natural justice and consequential direction for appointment of the first respondent in the above post was also sought.
The case of the first respondent (for short ‘the respondent’) was that he worked as a Shift Operator in a Sub-Station at Ongole, on contract basis, between 21.02.1997 and 04.09.1997 under the Divisional Engineer, Operations, Ongole. The erstwhile Electricity Board issued B.P.Ms.No.36 providing for filling up of 50% of the existing vacancies in various categories with contractual and casual employees subject to certain conditions. The case of the respondent was considered in terms thereof for the post of Sub Engineer. Interviews were conducted on 23.09.2002, but he was not selected.
The respondent submitted a representation in the year 2003 to the appellants with a request to consider his case for appointment to the post of LDC-cum-Typist. Alleging that no action has been taken thereon, he filed the Writ Petition with a prayer therefor. The appellants filed a counter-affidavit opposing the Writ Petition. According to them, the case of the respondent was considered for the post of Sub Engineer, but he was not selected. It is also stated that the representation submitted by the respondent in the year 2003 was considered and through communication dated 20.12.2003, the same was rejected.
The learned Single Judge allowed the Writ Petition through judgment dated 26.12.2013. Hence, this Writ Appeal.
Heard Sri G. Vidya Sagar, learned Senior Counsel for the appellants and Sri V. Padnabha Rao, learned counsel for the respondent.
The claim of the respondent that he worked as contract labour in the year 1997 in the Sub Station, was accepted and considered in terms of B.P.Ms.No.36 for the post of Sub Engineer. Since a process of selection is involved on account of the fact that the regularization can be made only against a limited number of vacancies, interviews were conducted on 23.09.2002. The respondent was not selected therein.
In case, the respondent had any grievance about his nonselection, it was open to him to pursue the remedies. For all practical purposes, he acquiesced in non-selection for the post of Sub Engineer. However, in the next year, he submitted a representation with a request to consider his case for the post of LDC/Typist. It is important to mention here that the basis for him to submit that claim, was that he acquired the qualification for the Typist post in the interregnum period. While the appellants pleaded that the case of the respondent was rejected through communication dated 20.12.2003, the respondent stated that no such letter was served upon him. We will proceed on the assumption that the letter dated 20.12.2003 was not served upon the respondent at all. It has to be seen as to whether the respondent had any claim vis-à-vis the appellants for the post of LDC/Typist. B.P.Ms.No.36 does not confer such a privilege upon contract labour to the extent that he must be considered for a post and if he is not successful therein, his case must be considered for another post till he gets appointed in one vacancy or the other. A definite scheme was formulated. The nature of the duties that were performed by the contract labour and the certification thereof by the contractor as well as the concerned Engineer, constitute the basis. The candidature is considered against 50% of the vacancies of the particular category,
which is referable to the duties discharged by him as contract labour. It is in this process that the case of the respondent was considered for the post of Sub Engineer. Once his case is considered, the obligation on the part of the appellants under B.P.Ms.No.36 stands discharged. If he were to have been selected, the respondent would have been appointed and if he is not selected, the matter ends there.
The very submission of the claim by the respondent for the post of LDC/Typist, even while acknowledging that he has not been selected for the post of Sub Engineer, becomes feeble. Strictly speaking, the appellants were not under obligation to consider the case of the respondent for any other post, once he was found unfit for the post of Sub Engineer. However, his case was considered and that resulted in passing an order of rejection, since it has emerged that the respondent did not have any claim vis-à-vis the post of LDC/Typist, and he was not found fit for the post of Sub Engineer.
We, therefore, allow the Writ Appeal and the order under appeal is set aside. There shall be no order as to costs.
The Miscellaneous Petitions filed in this Writ Appeal shall stand disposed of.
L.NARASIMHA REDDY, J
Date: 11.08.2014
T.SUNIL CHOWDARY, J
va
3 issues framed by the court
Whether contract labour is entitled to preferential consideration for posts after failing in selection process for a higher post under B.P.Ms.No.36.
Whether appellants were under obligation to consider the respondent's case for another post after non-selection for the first post.
Whether a valid rejection order was served to the petitioner regarding his claim for the post of LDC/Typist.
1 provisions across 1 enactments
Respondents 2, 3 in W.P.No.26781 of 2007
First Respondent in W.P.No.26781 of 2007
L. Narasimha Reddy
T. Sunil Chowdary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
