V. Thimma Redy v. Andhra Pradesh Central Power Distribution Comapny Ltd,

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD

FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH WEDNESDAY, THE TWENTY SEVENTH DAY OF JULY, TWO THOUSAND AND SIXTEEN

Present

HON'BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.3567 of 2011 Between:

V. Thimma Reddy, s/o. V.Rami Reddy, aged about 45 years, occ:Contract Labour, R/o.2/26, Kota Street, Nandikotkur-518401, Kurnool District.

.. Petitioner AND The Andhra Pradesh Central Power Distribution Company Ltd., rep. by its Chairman and Managing Director, Hyderabad and others.

.. Respondents

The Court made the following:

THE HON'BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.3567 of 2011

ORDER

Petitioner claimed to have been appointed as Labourer in the year 1991 on contract basis and continued to work up to 09.07.1997.

The respondents issued B.P.Ms.No.36 dated 18.05.1997, which inter alia envisaged provision of permanent employment to the contract employees by reserving 50% of the existing vacancies in the initial recruitment cadres, which include L.D.Clerks.

2. By the order impugned, dated 23.10.1998, petitioner was informed that as he was not provided by a licensed contractor, he was not eligible for consideration.

3. Heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

4. Learned counsel for the petitioner contends that the only reason assigned in the order impugned for non-consideration of the claim of the petitioner was that he was not engaged by a licensed contractor. By relying on the decision of this Court in Transmission Corporation of A.P.Ltd., v. R. Venkataramana[1],

he would submit that rejection on that ground is illegal. Learned counsel further submits that petitioner could not invoke the jurisdiction of this Court immediately and delay occurred due to financial constrains, when the rejection is illegal, the writ petition may be considered on merits ignoring the delay in coming to this Court.

5. Learned Standing Counsel for the respondents submits that there is inordinate delay in coming to this Court and the writ petition is liable to be dismissed on that ground. She submits that since the selection pertains to the year 1997-98 and petitioner was informed as early as on 23.10.1998 that he was not eligible to be considered since he was not engaged by the licensed contractor, the claim for appointment at this distance of time is not valid and the writ petition ought to be dismissed on this ground. She further submits that there is no proof of petitioner being engaged on behalf of the respondents. She further submits that the documents enclosed to his application were considered and it was found that service certificate issued by the contractor does not contain any agreement numbers and dates of check measurements and no evidence to prove that he was covered by E.P.F and E.S.I Acts was shown. Learned Standing Counsel further submits that on further consideration, he was also informed vide proceedings dated 18.04.2001

6. The petitioner was considered for selection to the post of L.D.Clerk on 07.04.1998. Having found that the petitioner was not provided by a licensed contractor, petitioner was informed vide

proceedings impugned in the writ petition that he was not eligible for consideration under B.P.Ms.No.36.

7. The issue whether employment by un-licensed contractor would disentitle a person otherwise eligible for consideration in accordance with B.P.Ms.No.36 was considered in batch of writ petitions. Single Judge of this Court held that B.P.Ms.No.36 has not imposed any such restriction and therefore, by supplementary decision, no such restriction can be imposed. It was also held, in the facts of the case before him, by the time interviews were held, no such clarification was issued, subsequent clarification dated 31.12.1997 cannot be applied to the selection already held. The Division Bench has upheld the decision of the learned Single Judge in the 'Transmission Corporation' case (1 supra). The Division Bench was pleased to hold as under:

"Thus, in our considered view, neither the policy envisaged that the contract labourer of a licensed contractor would only have a right for consideration under the policy nor the agreement with the edifice of the argument before the learned single Judge as well as before us put by the learned Advocate General. From the object of the agreement and the policy providing the relief of consideration only against 50% vacancies to the casual labourers working for half a decade with the appellant runs counter to the clarification dated 31.12.1997 restricting the consideration to the employees deployed through the licensed contractor. It has not been pointed out to us what is an integral distinction for such an artificial classification of the casual labourers working with the appellant.

In our considered view, classification cannot be upheld on the ground of reasonableness, fairness, equitable well-being in consonance with Article 14 of the Constitution of India.

appellant."

The Division Bench also held that even assuming that the clarification is valid, clarification issued after selections were made cannot be made applicable to those selections and such clarification has to be treated as prospective.

8. As rightly contended by the learned counsel for the petitioner, the principle laid down by the Division Bench applies to the facts of this case on the question of disqualification of a person on the ground that he was not engaged by a licensed contractor. However, on that ground alone, no relief as sought for by the petitioner can be granted.

9. This writ petition is instituted in the year 2011. Selections were made in the year 1997-98 and information was given to the petitioner about his ineligibility on 23.10.1998. Even assuming that the petitioner bonafidely believed that the information given to him was valid until the Division Bench pronounced the law on the point, even after the Division Bench rendered judgment, petitioner was not diligent in invoking the jurisdiction of this Court. It appears from the averments in paragraph 4 of the counter affidavit that in fact, petitioner was considered again and he was informed that he was not eligible, by proceedings dated 18.04.2001. Thus, petitioner ought to have invoked the jurisdiction of this Court at least in the year 2001. The only reason assigned in the affidavit filed in support of the writ petition for not invoking the jurisdiction of this Court immediately was that the petitioner was under object poverty. However, the petition is silent as what he was doing after

1997. It is not stated whether he was gainfully employed or was unemployed or was living in a remote place and not knowing about the developments that took place on the legal front. The subject matter of this writ petition is appointment to the post of L.D.Clerk. By the time the writ petition was instituted, petitioner was aged 45 years and by now, he must have completed 50 years. Ordinarily, there is restriction on the age of eligibility. Petitioner cannot be treated as eligible to compete for public post at this age. In matters of recruitment, there cannot be any direction for retrospective recruitment nor can a direction be issued to ignore present age. Further, it is specifically averred by the respondents in paragraph 4 that no material is filed in support of his claim that he was engaged by a contractor. The specific assertion of the respondents is not denied in the reply affidavit filed by the petitioner. Thus, no relief as sought for can be granted to the petitioner at this distance of time.

10. The Writ Petition is, accordingly, dismissed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this writ petition shall stand closed.

________________ P.NAVEEN RAO, J 27th July, 2016 sj [1] 1999(3) ALT 489 (D.B.)