2025 INSC 428
SUPREME COURT OF INDIA
(HON’BLE
PAMIDIGHANTAM SRI NARASIMHA, J. AND HON’BLE JOYMALYA BAGCHI, JJ.)
SUPERINTENDING
ENGINEER OPERATION
Petitioner
VERSUS
CH. BHASKARA CHARY
Respondent
Civil
Appeal No. OF 2025 Arising Out Of Slp (C) No. 476 OF 2021-Decided on 02-04-2025
Service Law
Constitution of India,
Article 14 and 16 – Service Law - Parity in Appointment - Contention of the
appellant that the list relied on by the High Court is not a seniority list
rejected – Held that the respondent’s appointment shall not be rejected on this
ground - However, while reconsidering the case of the respondent for
appointment to the post of LDC or any other equivalent post in which a vacancy
may exist, they may take into account other aspects of the matter, which they
sought to contend namely that the respondent’s service certificate is not
genuine as the contractor who issued the same has deposed that the respondent
did not work under him and pass appropriate orders - Considering that the
present litigation was initiated in 2008, the appellant directed to pass orders
as expeditiously as possible, preferably within a period of 6 weeks.
(Para
12 and 15)
JUDGMENT
1.
Leave granted.
2.
The present appeal arises from order dated 02.12.2020 by which the division
bench of the High Court dismissed the appellant’s writ appeal against order
dated 24.09.2018 wherein the learned single judge directed the appellant to
consider the respondent’s appointment to the post of Lower Division Clerk [Hereinafter “LDC”.] or any other
suitable post or any other supernumerary post.
3.
The short facts that are relevant are as follows. The Andhra Pradesh State
Electricity Board [Hereinafter “APSEB”.]
issued a notification dated 18.05.1997
to fill up 50% vacancies in certain initial recruitment cadres, including LDCs,
from ex-casual labourers category. Clauses 5 and 6 of this notification
provided the guidelines for selection of candidates from this category,
including age, educational qualifications, seniority, reservations, and
selection committee. Under this policy, APSEB issued an advertisement dated
11.03.2001 for appointment to the post of LDC from ex- casual labourers
category. The respondent sought to claim benefit under this policy and applied
but his application was rejected on 21.01.2002 stating that his service
certificate of contract labour was not genuine. The appellant challenged this
order by way of a writ petition and the High Court directed the appellant to
verify his certificate by order dated 24.12.2002.
4.
Once again, by order dated 13.03.2003, the respondent’s case was rejected as
the contractor who issued the service certificate deposed that the respondent
did not work under him. Further, by order dated 14.04.2003, the appellant found
that the respondent did not qualify the typewriting exam and hence could not be
considered for the post. The respondent challenged the order dated 14.04.2003
in a writ petition, which came to be disposed of by the High Court order dated
01.11.2004 holding that
the
typewriting qualification is not required and therefore, directed the appellant
to reconsider his case afresh.
5.
Pursuant to the above-referred direction of the High Court, the appellant’s
Review Committee re-examined the respondent’s case, and yet again rejected his
appointment by order dated 28.03.2006. This time, on a new ground that there is
no vacancy in the BC-B category in LDC cadre under the 50% quota earmarked for
ex-casual labourers, and that no BC-B candidate who has put in lesser man-days
than the respondent was appointed. On 15.11.2006, the appellant issued a
further notification withdrawing the policy dated 18.05.1997 w.e.f 15.09.2006,
subject to the outcome of any pending cases before the High Court or this
Court.
6.
The respondent filed a writ petition, only in the year 2008, challenging the
Review Committee’s order dated 28.03.2006. Initially, by order dated
26.04.2017, the learned single judge dismissed the writ petition on the ground
of delay in approaching the High Court and in view of the subsequent withdrawal
of the policy. However, the respondent’s review petition came to be allowed by
the learned single judge by order dated 24.09.2018 on the ground that the
respondent’s name appears at sl. no. 22 in the list of eligible
candidates, while those at sl. nos. 23 and 28 in the same list were appointed.
The Court reasoned that since those who were relatively less meritorious were
considered favourably pursuant to the High Court’s direction in a separate writ
petition, the respondent must be treated at par with them as he is in a
relatively better position. Hence, the Court directed the appellant to consider
the respondent’s case for appointment to the post of LDC or any other suitable
post or any suitable supernumerary post in the same manner as the other case.
The appellant’s writ appeal came to be dismissed by the order impugned herein,
on a similar reasoning that the respondent’s case must be treated at par with
the other appointed candidates as he is higher in the list of eligible
candidates.
7.
While issuing notice by the order dated 22.02.2021, this Court took note of the
appellant’s submission that the list relied on by the High Court wherein the
respondent appears at sl. no. 22 is not a seniority list but only a list of
eligible candidates, and also stayed the operation of the impugned order.
Further, by order dated 26.04.2024, this Court directed the appellant to file
an affidavit to the following effect:
(i) Whether there was any workable
gradation/seniority list of the contractually appointed employees like the
respondent?
(ii) What was the
criteria followed for regular appointment in terms of the policy decision?
(iii) Whether
candidates, who have served for less man-days than the respondent on
contractual basis, have been absorbed on regular basis?
(iv) If so, whether
the claim of the respondent was ever considered along with such employees?
(v) Whether the
respondent can be adjusted against a future vacancy as and when arises without
payment of any backwages?
8.
Pursuant to this order, the appellant filed an affidavit dated 04.07.2024
furnishing the requisite information as follows:
(i) There is no
workable gradation/seniority list of contractually appointed workers like the
respondent as they were not employees. The list of qualified candidates was
prepared based on their service certificates from their respective contractors
and after taking man-days into consideration for conducting interviews to the
post of LDC.
(ii) That the
qualifications for appointment under the notifications dated 18.05.1997 and
11.03.2001 are stipulated in paragraphs 5 and 6 of the 18.05.1997 notification.
(iii) That 6
candidates with less man-days than the respondent have been appointed under the
18.05.1997 notification. However, the respondent only applied under the second
notification issued on 11.03.2001. Under this notification, M. Laxminarsu
(BC-B), M. Bhaskar (BC-A), and A. Karunakar Reddy (OC), who have served less
man-days than the respondent, were appointed pursuant to the High Court’s
direction in certain other writ petitions. However, the appointment of M.
Laxminarsu (BC-B) and M. Bhaskar (BC-A) was prior to the withdrawal of the
policy. Further, that as per the report of the Inspector of Police dated
21.01.2002, the respondent’s service certificate is not genuine as the
contractor who issued the same has deposed that the respondent did not work
under him.
(iv) The respondent’s
case was considered with similarly situated persons. However, as his service
certificate was not genuine, he was not appointed. His appointment was
rejected by the Review Committee’s speaking
order dated 28.03.2006.
(v) Since the
respondent’s service certificate is not genuine, he cannot be considered for
appointment in any future post. Further, all vacancies in all cadres are being
filled through direct recruitment.
9.
We have heard Ms. Aishwarya Bhati, learned ASG for the appellant and Mr. Basa
Mithun Shashank, learned counsel for the respondent.
10.
The appellant’s case before us is that the list relied on by the High Court is
not a seniority list but only a list of candidates having minimum
qualification, who are eligible to attend the interview. However, upon closer
scrutiny, we must reject this submission for the following reasons. First, this
list has been placed before us by the respondent and is titled “Seniority list
of qualified candidates for the post of L.D.C.s”. A perusal of the list also
shows that candidates have been arranged in accordance with the date of their
first engagement, with those engaged prior in time being placed higher on the
list. Second, in the affidavit dated 04.07.2024, the appellant admits that
persons with lesser man-days than the respondent were appointed to the post
under the 11.03.2001 notification, pursuant to the direction of the High Court
in certain other writ petitions. The relevant portion of the affidavit is
extracted below:
“It is submitted that
six (6) candidates who have served for less man- days than the respondent on
contractual basis, have been absorbed on regular basis in the 1st Notification,
to which notification the respondent was not a candidate. Two more candidates
namely M. Laxminarsu (BC-B), M. Bhaskar (BC-A) and A. Karunakar Reddy (OC) who
have served for less man-days than the respondent on contractual basis have
been absorbed on regular basis in the 2nd notification on the basis of the
order of the Hon'ble High Court in Writ Petition Nos. 26515 of 2004 and 858 of
2009. B.P.Ms. No.36 was withdrawn vide C.O.O (CGM-HRD) Ms. No. 470, dt.
15.09.2006. It is pertinent to mention here that Sri. M Laxminarsu (BC-B) and
M. Bhaskar (BC-A) were appointed prior to withdrawal of B.P.Ms. No.36.”
11.
Upon contrasting the appointed candidates, as submitted by the appellant, with
the seniority list placed before us by the respondent, we find that M. Bhaskar
(BC-A) and M. Laxminarsu (BC-B) appear at sl. nos. 23 and 28 respectively. In
this view of the matter, we reject the appellant’s submission that the list relied
on by the High Court was not a seniority list and find that the High Court has
correctly reasoned that candidates with lesser man-days
than
the respondent, who are placed relatively lower than the respondent in the
seniority list, have been appointed and hence the respondent’s case must be
considered by the appellant on par with them.
12.
The appellant has also taken other grounds before us, namely that the
respondent’s service certificate is not genuine as the contractor who issued
the same has deposed that the respondent did not work under him. Further, that
there are no vacancies against which the respondent can be appointed. These
issues cannot be decided by the Supreme Court. At this stage, it is necessary
to refer to the specific directions of the learned single judge of the High
Court disposing of the writ and review petitions, which we have extracted here in
under:
“7. …It is also an
undisputed fact that the cases of the said two persons, who are relatively less
meritorious, were considered and their cases were considered suitably by the
respondents. The petitioner in a way is requesting to direct the respondents to
consider his case in the same manner and on par with cases of the above said
two person notwithstanding the orders in this writ petition. In that view of
the given to the respondents to consider his case in the same manner and on par
with the cases of the writ petitioners is W.P. No. 2651 of 2004, as he is
relatively in a better position in the list of than the above said two persons,
this court is of the considered view that the review petition can be
disposed of granting an appropriate relief to the petitioner.
8. Accordingly, the
review petition is disposed of directing the respondents to consider the case
of the petitioner for the post of LDC or any other suitable post or any
suitable supernumerary post in the same manner as was done in the cases of the
writ petitioners in W.P No. 265 of 2004 and on par with the said writ
petitioners…”
13.
It is evident from the above that the appellant was directed to consider the
case of the respondent in the context of the relative facts indicated in the
order.
14.
The direction of the single judge, when challenged before the division bench,
culminated in a similar direction to the appellant as even the division bench
found it appropriate that the respondent’s case, in the context of appointment
of candidates at sl. nos. 23 and 28, requires to be reconsidered. The relevant
portion of the division bench’s order is extracted below:
“5. … The petitioners
in WP.No.2651 of 2004, who are also similarly placed as that of the petitioner
herein and found at Sl.Nos.23 and 28 in the list, were regularized pursuant to
the order passed in the said writ petition. The petitioner herein cannot be
given a differential treatment. The case of the petitioner deserves to be
considered on par with the petitioners in WP.No.2651 of 2004 for the reason that
the petitioner is placed high up in the list of qualified candidates than
the petitioners in the aforesaid writ petition and that the petitioner has
got more man-days. The said fact was brought to the notice of the learned
Single Judge in the review petition. Having considered the same, the learned
Single Judge came to the conclusion that the petitioner has to be treated on
par with the petitioners in WP.No.2651 of 2004 and allowed the review petition
directing the respondents to consider the case of the petitioner to the post of
LDC or any other suitable post or any suitable supernumerary post in the same
manner as was done in the cases of the writ petitioners in WP. No 2651 of 2024
and on par with the said writ petitioners, notwithstanding the order dated
26.04.2017.
6. In view of the
above observations, this Court does not find any merit in the writ appeal and
the same is liable to be dismissed. It is, hereby, dismissed.”
15.
In view of the above, as we have rejected the contention of the appellant that
the list relied on by the High Court is not a seniority list, the respondent’s
appointment shall not be rejected on this ground. However, while reconsidering
the case of the respondent for appointment to the post of LDC or any other
equivalent post in which a vacancy may exist, they may take into account other
aspects of the matter, which they sought to contend before us, and pass
appropriate orders. Considering that the present litigation was initiated in
2008, we direct the appellant to pass orders as
expeditiously
as possible, preferably within a period of 6 weeks from today.
16.
With these directions, we dispose of the present appeal.
17.
No order as to costs.
18.
Pending applications, if any, stand disposed of.
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