The Hon’ble Sri Justice Nooty Ramamohana Rao 62r1y

THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO WRIT PETITION Nos.3753, 11022, 11545, 16261, 18432, 1953, 3648, 3177, 5572, 6550, 11839, 3095, 11639, 6602, 25321, 11577 of 2012

COMMON ORDER: This batch of writ petitions are filed seeking a writ of mandamus for declaring the action of the respondents in providing as many as 45 marks towards weightage while undertaking recruitment on regular basis to the posts of Sub-Engineers (Electrical) as illegal and violative of Articles 14 and 16 of the Constitution of India.

Similarly in

W.P.Nos.11639 and 16261 of 2012 a similar question has been raised with regard to recruitment of L.D.Clerks. In W.P.Nos.1953 of 2012 and batch of cases, similar question in the matter of recruitment of Junior Line Men has been agitated.

For convenience sake, therefore, all these petitions have been taken up for consideration.

Notifications were taken out on 14.12.2011, 20.01.2012 and 31.01.2012 for recruitment to the posts of Sub-Engineers (Electrical). Applications are invited from eligible diploma holders for filling various posts. Part-II dealt with the eligibility criteria, it is set out that the candidate should not be below 18 years and should not be above 36 years as on 01.07.2011, but however a relaxation in upper age limit is held permissible up to 5 years for SC/ST/BC candidates and up to 10 years for Physically Handicapped candidates.

For such of those in

service contract workers, the age at the time of entering into service as contract worker will be taken into consideration.

The selection

procedure has been detailed in sub-paragraph (iii) thereof. It is stated that the evaluation of the candidature will be done on a scale of 100 marks with a maximum of 55 marks for written examination and a maximum of 45 marks for in service experience in the organization as contract worker. The minimum qualifying mark in the written test is prescribed as 40% for Open Category, 35% for Backward Classes, 30% for S.C. and S.T. and 30% for physically handicapped category. Guideline No.6 set out in the said notification under the head “Selection Procedure” indicated that the in-service contract worker who has been working in A.P.Transco/ Discoms will be given weightage marks to a maximum of 45, depending upon the length of service in A.P.Transco/Discoms at the rate of 2 ½ marks per every half year service as contract worker as per the memorandum of settlement

dated

18.12.2010

reached

before

the

Additional

Commissioner of Labour and Conciliation Officer, between the representatives of A.P.Transco and recognized trade unions. This is where all the petitioners were affected.

Learned counsel for the petitioners have mainly contended that after a long gap of several years the regular recruitment process has been undertaken by the respondents and they would urge that any weightage marks which are intended to be spared for the in-service candidates shall not be loaded in such a manner as to tilt the balance

completely in favour of the in-service candidates. Out of 100 marks, the candidates who come from the open market can only compete for 55 marks by appearing in the written examination, whereas the other candidates over and above are given 45 marks additionally. As a result of this unfair advantage, the entire balance is swung irredeemably in favour of those who secured contract employment earlier. It is also contended that while undertaking recruitment of the posts of Mazdoor, 15 marks have been allocated as the maximum weightage marks. Therefore, it is contended that when it comes to selection of technical posts, it is the individual merit of the candidate that should fetch the selection but not the accidental entry gained by him as a contract workmen in the service of the corporation.

Learned counsel for the petitioners would submit that the present recruitment process is not one which is intended for conferring a benefit of absorption or regularization of services of the contract labour, but it is an open recruitment for purpose of selection of suitable candidates, in such an event fairness demands that all selection criteria and parameters should be fair and equal amongst all the competing groups. It is contended further that if a limited number of posts are set apart for absorption of suitable contract labour, in such a case perhaps giving weightage marks of maximum of 45 can be understandable. But when an open recruitment is resorted to, the selection of candidates cannot be made to depend upon an unavailable factor to all the competing candidates. It is sought to be

demonstrated that out of 55 marks if an open competition candidate is to qualify, he has to secure 40% of the marks in the written test. Out of 55 marks, if an open competition candidate has secured 22 marks, then alone he will qualify for being considered for appointment. Even if he has fared exceedingly well in the written examination, he can expect to secure marks of 45 and above, but certainly not beyond 55, whereas a candidate, who has put in 7 years of service as a contract workman with the board would get 35 marks for his experience at the rate of 2 ½ marks per every half year and if he has secured 22 marks, being the minimum required to qualify in the written examination, he will get selected as his total would be 22 + 35 = 57 as against the possible maximum marks for an open competition candidate, who can secure at best 55 out of 55 marks. Thus, the selection process is from the very inception is loaded in favour of in-service candidates.

In the counter affidavit filed on behalf of the respondents, it is asserted that several employees unions have made a demand either to regularize the services of contract workers, some of whom have been working since a decade’s time or to give suitable weightage in recruitment to such candidates. Considering this demand of the employees union, with a view to maintain industrial harmony, a decision was taken to accord weightage for the contract services rendered by such men. Since regularization of the contract labour by way of absorption would be detrimental to public interest, to strike a

balance, according weightage for the past service was considered as the most appropriate measure. It was also contended that, since the contract employees have rendered considerable length of service, by according them weightage for such service, if they get selected ultimately, recruit, the organizational interests would be better served. The respondents can certainly utilize the experience gained by such employees for the past several years and therefore granting a weightage to such candidates is not to be treated as unreasonable. It was also suggested that, the matter was in fact considered at the State Government level and then only the decision was taken to accord weightage of 45 marks at the rate of 2 ½ marks per every six months of contract service.

Heard Sri Chandraiah Sunkara, Sri Janardhana Reddy Ponaka, Sri Hanumantha Rao, Sri Banda Prasada Rao, Sri Delhi Babu, Sri Jayaprakash Sri

Rama

Rao, Rao,

Sri learned

Sudeep counsel

Reddy, for

the

Ms.

Malleswari,

petitioners

and

Sri P. Laxma Reddy, learned standing counsel for the respondentCorporation.

It is hardly in doubt that in recognition of the past services rendered by the contract employees, they deserve to be given some preference in the matter of selections. It is not also difficult for one to realize that they may not be able to compete on an equal footing in a written test with those candidates who come from the open market. But however, one cannot loose sight of the fact that the selection

criteria should always be fair and evenhanded to all the competing candidates. The respondent being the State for purpose of Article 12 of our Constitution, is bound by the injunction contained under Articles 14 and 16 of our Constitution. It is, therefore, imperative that the balance should be maintained amongst all the competing candidates, as far as is practicable, very evenly. In other words, a level playing field is bound to be provided for all the players.

Equality before law and equal treatment, I am conscious, does not mean a mechanical equality. It does not require the precession of a mathematical formula. So long as all candidates had a fair chance of selection by establishing their merit and credentials for selection, such a selection procedure can muster. It is therefore imperative that the selection criteria shall not result in a violent shift of the equilibrium in favour of one group to the detriment of the others completely. So long as the competing groups are treated fairly and evenly, such selection can the test of reasonableness. Granting as high as 45 marks towards experience weightage when the written test marks are only 55, swings the balance in favour of one group only. As to how it works out, I would elaborate a little later on.

While dealing with this issue, it is imperative that one must bear in mind that the main purpose of entering into any settlement or agreement with employees unions are undoubtedly meant to promote industrial peace and harmony. When industrial peace and harmony prevails, the productivity of the organization will increase. The activity

of the organization will run as smoothly as a very well oiled engine would

run.

For

securing

industrial peace

and

harmony,

the

respondents cannot do away with their obligation to one of the fundamental principles enshrined under Articles 14 and 16 of our Constitution, in particular, when Article 14 is couched in a language of injunction against the State.

Further, any action of a State or its instrumentality including any agreement or arrangement worked out with an employees union, if it falls foul of Article 14 or Article 16 of our Constitution, such an arrangement or agreement cannot be acted upon at all. Fundamental rights take an overriding precedence even over a law made by a competent

legislature.

Therefore,

instruments

of

lesser

legal

significance than bills ed by legislature cannot enjoy any immunity from attack if they violate the mandate contained under Articles 14 and 16 of our Constitution.

The main thrust of the respondents’ action stems from the idea of very effectively using the past experience gained by the contract employees while serving the organization. In other words, the working experience gained over a long period of time is what is sought to be given credit for the ultimate selection. It, therefore, must necessarily follow that any such experience must be only in the relevant field, such as working as Sub-engineer or experience as Lower Division Clerk or in a equivalent post or as a Junior Lineman. There is a direct relationship between such experience being rewarded by way of grant

of weightage marks. There should not be a mismatch between the experience gained by the candidate against one post and the ultimate absorption/selection for appointment against another. It is the experience against a relevant post is what is sought to be reckoned. In other words, those who have been rendering service on contract basis as at the time when the respective notifications emanated is what is sought to be reckoned. That is the relevant date. It, therefore, follows that only such of those contract service employees who are in service as on the date on which the respective notifications emanated is what is relevant.

The all important question that has to be considered is this:

Whether the selection parameters have been fixed by the respondents fairly or not?

It is indicated that the evaluation will be done on a scale of 100 marks, whereas the written examination is going to be conducted only for 55 marks. conducted.

It is specifically spelt out that no interviews will be

However, a maximum of 45 marks for the in-service

experience in the organization as contract workmen would be awarded. There is a graded scale prescribed for evaluating these 45 experience marks or weightage marks i.e. 2 ½ marks per every half year

of

contract

service.

Thus

those

who

have

put in 9 or more number of years than 9 of service on contract basis to the organization would get 45 out of 45 marks. To these marks they

will also add the marks secured by them in the written examination. Thus, for the in-service employees, who are taking the same examination, their performance will be evaluated on a scale of 100 marks, whereas the performance of open competition candidates, who are not employed as contract workmen in the organization will be evaluated on a scale of 55, for them the balance 45 is not simply available for reckoning. When two sets of candidates take the same examination, there could not have been two different standards of evaluation, for one set on 100 point scale and for the other set on 55 marks scale and then prepare a combined common merit list in the descending order.

If the respondents have devised a method of

proportionately increasing the written test marks to 100% for the open competition candidates, perhaps, it could have been a different matter. Illustratively, let us assume that a particular candidate from the open market has secured 33 marks out of 55 in the written examination; it exactly works out to 60%. If these 33/55 marks are inflated on 100 point scale, he will be treated to have secured 60 marks and when his case is compared with the other candidate, who had the advantage of experience of working in the respondents’ organization; it would have been a different matter, as the scale of comparison in both cases would be 100 marks but that was not sought to be done.

For finalizing the selections this particular

candidate is treated as if he secured only 33 marks and all other candidates who have secured more than 33 marks on the 100 point scale including therein the experience marks as well will be placed

above him and would obviously will now get selected. Let us assume that an open competition (OC) candidate had also rendered 2 ½ years of contract service with the respondents’ organization, but he barely gets 22 out of 55 marks in the written examination and being an open competition candidate that was the minimum one should get to qualify in the written test and thus qualifies, but however, for his 2 ½ years of contract service, he earns 12.5 marks and when they are added to his 22 marks, his percentage is worked out to 34.5 (22+12.5) and he will be put above the candidate from the open competition, who has secured 60% marks in the written examination (33/55). Thus, all such candidates who hardly gained experience of 2 ½ years of contract service and qualified in the written test are capable of stealing a march over the open market candidates who have secured 60% marks in the written examination.

On the other hand, if the written test marks are proportionately inflated from 55 to 100 as was shown a little earlier, the candidate who has secured 60% of the marks will still have a fair chance of succeeding in securing employment. Hence, it is very essential that the weightage marks should not be as high as 45 marks.

If for any reason the recruitment process is not taken up on regular basis and there was some delay in undertaking any such exercise and for having secured the essential human resources for carrying on the operations, the remedy in their subsequent selection, would lie in pegging the maximum weightage marks not to exceed 20

or 25%. It is reasonable to assume that the number of candidates who can secure 40 + number of marks out of 55 in the written examination could be very few. 40 out of 55 marks amounts to 72+ percentage. Therefore, when 22 out of 55 is the minimum marks required for qualifying and if 20 marks are treated as the maximum experience/weightage marks, only few candidates will go to the extent of securing 42 out of 100 (i.e. 22+20) and those who secure 42 out of 55 for the written test, in that process, are less likely to be effected. Still, a person who secured 40 out of 55 will just have a chance to get selected in comparison to a man who barely cleared the written test but got the benefit of maximum marks for the service weightage. Therefore, in my opinion the percentage of weightage marks should preferably be set in the region of 15-20%, under no circumstances, the total marks for weightage shall exceed 20%. Otherwise, it will not be an equal race between those who come from open market and those who have rendered service on contract basis. Though, in a relay race, it may not be uncommon that some participants can have a slight advantage of a headstart, but nonetheless the selection criteria must be fair and objective in all respects. Granting weightage marks for the relevant experience, cannot be totally frowned upon, but at the same it should not result in a lopsided selections.

While one can see some merit in awarding weightage marks for experience, but in view of the fact that for recruitment to the post of Sub-Engineers and Lower Division Clerks, written test is carrying

maximum marks of 55, the weightage marks cannot go to the extent of upsetting the selection of those candidates who have fared reasonably well in the said written test. As was already noticed, a person who secures 40 out of 55 marks in the written test in fact secures 72% of the marks. But however, he may not stand a chance for selection if more than 20 weightage marks are awarded to the other candidates. Minimum marks for open competition are being

22.

Those

who

get

awarded 20

weightage

marks

will

automatically secure 22 + 20 = 42 and such candidates will get the selection first rather than the other candidates. In this view of the matter, the impugned selection criteria of awarding a maximum of 45 weightage marks are unjustly loaded in favour of the in-service contract labour, if more than 20 weightage marks are sought to be given to them.

Hence, awarding more than 20 marks towards weightage for experience will be contrary to the principles of fair play in selection.

At the same time, the experience must be related to a particular job for which selections are also made. Now selections are sought to be made to the posts of Sub-engineer, Lower Division Clerks and Junior Lineman. Therefore, if a particular candidate has already rendered service against these posts or equivalent posts, perhaps, selecting such a candidate would be advantageous to the organization. The experience which he has gained while working against the said post will get translated usefully to the organization’s advantage, but

not otherwise. For instance, if a person has rendered contract service as a Lower Division Clerk, but possessed the necessary qualification for recruitment as a Sub-engineer, he cannot seek experience marks to be awarded as Lower Division Clerk for selection as a Sub-engineer. The experience one gains as a Lower Division Clerk will never translate to the advantage of the organization when he starts performing service as a Sub-engineer upon selection now. Therefore, the weightage marks are liable to be awarded only if the service on contract basis is against the relevant job only. Those who have rendered service on contract basis as Sub-engineers are entitled to be granted weightage marks in the matter of selection as a Sub-engineer. The weightage marks for service put in as a Sub-engineer similarly, cannot be awarded for selection to the post of Lower Division Clerk. Otherwise, awarding experience marks for the contract service will become fortuitous and irrelevant criteria for selection. No irrelevant considerations can ever form part of a fair selection procedure.

Similarly, some of the candidates may have rendered service on contract basis quite sometime back. They may not have been available as on the relevant cut off date (date of notification). Such candidates must stand on the same pedestal as any other open competition candidate would have. Service rendered on contract basis once upon a time to the organization cannot fetch him any additional advantage than a candidate who does not render service on contract basis to the organization.

While selecting a Junior Lineman, it is absolutely necessary that only a qualified contract labour should be considered for selection. The post of a Junior Lineman is a technical post. One should have basic knowledge of the relevant technical aspects before one can think of getting recruited as a technical lineman. A person who does not possess the necessary qualifications for recruitment as a Junior Lineman, is not liable to be recruited from the open competition at all. Hence, even the contract employee should also be qualified.

In such an event, the fact that he has rendered service on contract basis to the organization cannot make any difference. He also is as much ineligible to be considered for recruitment for want of not possessing the requisite qualifications. Possessing the requisite qualifications is not only essential from the perspective of the individual and the industry, but it is also capable of posing risk to the other employees in the organization. A technically

ill-

equipped candidate is more likely to err while performing duties and the result could be sometimes disastrous. The penalty may have to be paid by someone else for the error committed by an ineligible candidate. Any such measure would be contrary to the interests of the organization and it would also be perilous to the larger public interest. I am, therefore, of the clear opinion that candidates who do not have the necessary eligibility qualification and criteria shall not be recruited as Junior Lineman at all.

Further, the failure of the organization to periodically review the cadre strength and also undertake the essential recruitment from the open market is the solitary factor which is forcing to resort to make shift recruitment process. An easy method is evolved by engaging certain men on contract basis. Engaging personnel on contract basis can only be a stop gap or a purely temporary arrangement and it cannot last for a number of years. Normally, the recruitment on contract basis will not secure wide publicity or wider competition. Only few personnel who may have the advantage of knowing the manpower requirement may get selected. It would also pave the way for certain unhealthy practices to be resorted to by the contractors in the process. Therefore, every attempt should be made for a periodical assessment

of

manpower

requirement

and

accordingly

the

recruitment process should be planned and accomplished. The respondents are therefore directed to undertake without fail the review of manpower requirement once in every three years and based upon the findings at that review, in the immediate succeeding fourth year direct recruitment process should be initiated. This would not only save continuance of personnel recruited on contract basis for large number of years and also creating false hopes in their minds about their continuance in service. It would also help in securing the best talent available in the market for recruitment. Hence, the respondents are directed to review the cadre strength once in every three years and

follow it up without fail in the direct recruitment process even if the numbers for such recruitment are very few.

The respondents are, therefore, directed as under:

1) Weightage marks for experience shall not exceed 20%. 2) 2 marks for every completed year of service shall be awarded. 3) The experience must be in the relevant job, for one to become entitled to be granted weightage marks. For instance, if a candidate has put in service on contract basis as a SubEngineer or Lower Division Clerk or in any other equivalent post, then alone, he will be entitled to be awarded weightage marks for selection to the relevant post. In other words, contract labour who have been rendering service as Sub-Engineers alone will be entitled to count their contract service as Sub-Engineers for awarding weightage marks for selection to the post of SubEngineers. Similarly, Lower Division Clerks or those working against equivalent posts can be awarded weightage marks for selection to the posts of Lower Division Clerk, but not for selection to any other post other than Lower Division Clerk, even if they possess the requisite qualification for recruitment to the post of Sub-Engineer. However, the in-service candidates who otherwise satisfy the criteria for participation in the selection at par with candidates from the open market in respect of educational qualifications and age, are entitled to compete against the open

competition without entitlement for the in-service weightage marks. 4) The contract labour who have rendered service and available inservice as on the cut off date are alone entitled for the weightage marks. Those who are not in service on contract basis as on the cut off date but who may have rendered service in the past are not entitled to make any such claim. 5)

The weightage marks can be added even in the matter of recruitment to the posts of Junior Lineman, provided the candidates do possess the requisite educational qualifications. If the in-service contract labour do not possess the requisite educational qualifications and if they are not rendering service on contract basis as Junior Lineman, on the relevant date they are not entitled for any weightage marks.

6) The respondents will undertake review of the cadre strength once in every three years and then consider undertaking direct recruitment once in every four years, so that, the necessity for engaging or continuing personnel on contract basis for long periods can be avoided.

All

these

writ

petitions

stand

disposed

of

accordingly.

Miscellaneous applications if any shall also stand closed. No costs. _______________________________________ JUSTICE NOOTY RAMAMOHANA RAO