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 Rao, Sri Sudeep Reddy, Ms. Malleswari,

Sri Rama Rao, learned counsel for the petitioners and

Sri P. Laxma Reddy, learned standing counsel for the respondent-

Corporation.

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 pass 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 pass 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 passed 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. It is specifically spelt out that no interviews will be

conducted. 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 pass 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 Sub-

Engineer 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 Sub-

Engineers. 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 in-

service 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