M.V.V.N.R.Satya Vani v. The Superintending Engineer, Operation Eastern Power

The Superintending Engineer, Operation Eastern Power Distribution Co.Ltd/Eluru, Near Gajjalavari Tank, Eluru-1.

The Chairman and Managing Director of Eastern Power Distribution Co.Ltd., of A.P., Visakhapatnam. …Respondents Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue any writ, order or direction more particularly one in the nature of Writ of Mandamus (i) to declare the action of the respondents herein as illegal, arbitrary and unconstitutional in issuing the Memo dated 12-9-2003 vide letter No.SE/O/ELR/Adm/F.137/D.No.529/03 and set aside the same, (ii) to declare the action of the respondents herein in not appointing the petitioner as L.D.C., as illegal and arbitrary, (iii) to direct the respondents to appoint the petitioner herein as L.D.C., under the respondents. WRIT PETITION No. 20469 OF 2003 Between: P.Balusu Babu S/o P.Lakshmana Rao, aged: 35 years, R/o Juvvulapalem, Tadepalligudem, West Godavari District. …Petitioner And

1. The Superintending Engineer, Operation EPDCL/Eluru, Near Gajjalavari Tank, Eluru-1.

2. The Chairman and Managing Director of EPDCL., of A.P., Visakhapatnam. …Respondents Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue any writ, order or direction more particularly one in the nature of Writ of Mandamus (i) to declare the action of the respondents herein as illegal, arbitrary and unconstitutional in issuing the Memo dated 12-9-2003 vide letter No.SE/OELR/Adm/F.137/D.No.476/03 and set aside the same, (ii) to declare the action of the respondents herein in not appointing the petitioner as L.D.C., as illegal and arbitrary, (iii) to direct the respondents to appoint the petitioner herein as L.D.C., under the respondents. WRIT PETITION No. 20509 OF 2003 Between: K.L.Sarada W/o T.Ramakrishna, aged 28 years, R/o Rangoom Meda St. R.R.Pet, Eluru, West Godavari District. …Petitioner And

1. The Superintending Engineer, Operation EPDCL/Eluru, Near Gajjalavari Tank, Eluru-1.

2. The Chairman and Managing Director of EPDCL., of A.P., Visakhapatnam. …Respondents

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue any writ, order or direction more particularly one in the nature of Writ of Mandamus (i) to declare the action of the respondents herein as illegal, arbitrary and unconstitutional the Memo dated 12-9-2003 Proceedings No.SE/O/ELR/Adm/F.137/D.No.528/03 and set aside the same, (ii) to declare the action of the respondents herein in not appointing the petitioner as L.D.C., as illegal and arbitrary, (iii) to direct the respondents to appoint the petitioner herein as L.D.C., under the respondents. issuing WRIT PETITION No. 20539 OF 2003 Between: B.V.Ramana Murthy, S/o Suryanarayana, aged 33 years, R/o Tanuku, West Godavari District. …Petitioner And

1. The Superintending Engineer, Operation Eastern Power Distribution Company Limited, Eluru, Near Gajjalavari Tank, Eluru-1.

2. The Chairman and Managing Director of Eastern Power Distribution Co. Ltd of A.P., Visakhapatnam. …Respondents Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue any writ, order or direction more particularly one in the nature of Writ of Mandamus (i) to declare the action of the respondents herein as illegal, arbitrary and unconstitutional in issuing the Memo dated 12-9-2003 vide letter No.SE/O/ELR/Adm/F.137/D.No.530/03 and set aside the same, (ii) to declare the action of the respondents herein in not appointing the petitioner as L.D.C., as illegal and arbitrary, (iii) to direct the respondents to appoint the petitioner herein as L.D.C., under the respondents. WRIT PETITION No. 20540 OF 2003 Between: G.V.V.Satyanarayan S/o Subba Rao, aged 33 years, R/o Rustumbada, 24th Ward, Narsapuram, West Godavari District. …Petitioner And

1. The Superintending Engineer, Operation Eastern Power Distribution Company Limited, Eluru, Near Gajjalavari Tank, Eluru-1.

2. The Chairman and Managing Director of Eastern Power Distribution Co.Ltd of A.P., Visakhapatnam. …Respondents Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue any writ, order or direction more particularly one in the nature of Writ of Mandamus (i) to declare the action of the respondents herein as illegal, arbitrary and unconstitutional in issuing the Memo dated 12-9-2003 vide letter No.SE/O/ELR/Adm/F.137/D.No.534/03 and set aside the same, (ii) to declare the action of the respondents herein in not appointing the petitioner as L.D.C., as illegal and arbitrary, (iii) to direct the respondents to appoint the petitioner herein as L.D.C., under the respondents. For the Petitioners: Mrs. R.Annapurna, Advocate. In all the above cases For the Respondents: Smt.E.Urmila, S.C., for APEDCL in WP.Nos.20539 and 20540 of 2003 For the Respondents Sri S.Ravindranath, S.C. for APEDCL in WP Nos.20465, 20469 and 20509 of 2003 The Court made the following : COMMON ORDER: The petitioners filed all these Writ Petitions questioning the similar and identical orders dated 12-9-2003 passed by the first respondent (Superintending Engineer, Operation, Eastern Power Distribution Company Limited, Eluru).

The first respondent by the said individual letters dated 12-9-2003, rejected the cases of the petitioners for their appointment as L.D.Cs/Typists on the ground that they are not on rolls as on 18-5-1997 and therefore, they are not eligible for appointment to the said posts. The case of the petitioners is that all of them have worked as contract labour under the respondents’ board and the contract labour system was abolished in certain departments of the respondents. To absorb the contract labour, the Andhra Pradesh State Electricity Board (APSEB) issued B.P.Ms.No.36, dated 18-5-1997 for filling up 50% of the existing vacancies in the initial recruitment cadre by ex-casual labour. As the Board has not taken up any recruitment process to fill up the existing vacancies by the ex-casual labour, who worked as contract labour as on 18-5-1997, W.P.No.5064 of 1999 was filed and this Court by order dated 18-11-1999, directed the respondents to fill up the vacant posts as per B.P.Ms.No.36, dated 18-5-1997.

Accordingly, the Board issued a notification on 22-9-2000 for filling up the left over vacancies of LDCs/Sub Engineers/Typists/JLM under 50% quota in terms of the orders of this Court in W.P.No.5064 of 1999 and batch. It is stated that the petitioners have filed applications pursuant to the notification dated 22-9-2000, but the petitioners were not called for the interview as per the orders in W.P.No.5064 of 1999 dated 18-11-

1999. As the cases of the petitioners were not considered, they filed W.P.No.14241 of 2002. All the petitioners herein, except the petitioner in W.P.No.20469 of 2003 are the petitioners W.P.No.14241 of 2002. The petitioners contended in the said Writ Petition that all of them have worked as contract labour under the contractor and they are having requisite educational qualifications to consider them for the aforesaid posts as per the conditions laid down in B.P.Ms.No.36, dated 18-5-1997 and they are working as contract labour as on 18-5-

1997. A counter was filed on behalf of the respondent in the said W.P.No.14241 of 2002, stating that the petitioners have submitted their applications for appointment as JLM/JA/LDC/DC/RC/Typist/ Sub-Engineer against the paper notification dated 22-9-2000 to fill up the balance 50% vacancies as on 18-5-1997 and as per T.O.O. No.137, dated 7-7-2000 since they worked as contract labour duly produced certificates under attestation of concerned departmental officers on the certificates issued by the contractor. The works during the month and check measured after 18-5-1997 in support of their contract. It is further stated in the said counter that while issuing T.O.O.No.137, dated 7-7-2000, the A.P.TRASCO., has issued orders for selection committees in different wings of the departments to receive applications from the individuals and to scrutinize the same the concerned Superintending Engineer and the eligible candidates may be called for interview and other ineligible candidates may be informed the reasons for their ineligibility.

It is stated that out of number of applications received against the paper notification, only 80 applications are found eligible to call for the interview before the selection committee. It is further admitted in para No.6 of the counter filed in W.P.No.14241 of 2002 that the certificates issued to the petitioners by the unlicensed contractors were attested stating that the contractors executed the works as per the agreements awarded to them as on 18-5-1996 and check measured after completion of the work. In view of the aforesaid admission made in the counter, this Court allowed the said Writ Petition by order dated 11-3-2003, directing the respondents herein to consider the cases of the petitioners and pass appropriate orders in accordance with law and conduct interviews for the posts specified therein within one month from the date of receipt of copy of the said order. Pursuant to the said directions issued by this Court in W.P.No.14241 of 2002, the respondents have issued a notification calling for the candidates to be interviewed on 14-6-2003/15-6-2003.

The eligible candidates were requested to attend the interview along with the documents of academic qualifications, certificate of age, caste certificate in case of SC/ST/BC, service certificate issued by the contractor and counter signed by the Departmental Officers, two passport size photos, at the office of the first respondent. In the said notification, all the names of the petitioners were figured and it is stated that in list of the said eligible candidates in the interviews as notified does not confer any right of appointment, that means, the respondents have scrutinized the individual applications and issued the notification, calling for the interviews. But, after the interviews conducted pursuant to the directions of this Court, the cases of the petitioners have been considered and rejected only on the ground that they are not on the rolls as on 18-5-1997. The learned counsel appearing for the petitioners submits that the impugned orders dated 12-9-2003, rejecting the cases of the petitioners on the ground that they are not on rolls as on 18-5-1997 is contrary to the sworn statement filed by the respondents in the earlier W.P.No.14241 of 2002, wherein it was admitted by the respondents that they are on rolls as on 18-5-1997 and the service certificates produced by them as counter signed by the officials check measured subsequent to 18-5-1997 is correct.

Questioning the said impugned orders, all these writ petitions have been filed. While admitting the Writ Petitions, this Court suspended the said orders dated 12-9-2003 and directed the respondents to consider the cases of the petitioners for the post of L.D.Cs. As the interim orders passed by this Court were not considered by the respondents, the petitioners filed the Contempt Cases. After filing the contempt cases, the respondents have passed orders dated 20-7-2004, rejecting their cases on the grounds that the certificates issued by the contractor is countersigned by departmental officers stating that the works are executed by the contractor but not certified confirming that the petitioners are on the rolls as on 18-5-1997; and the certificates issued by the contractor does not contain the proof of payment of EPF., amounts. I have considered the said issue regarding the proof of payment of EPF., amount in the order dated 24-12-2002 in W.P.Nos.17163, 17599 and 18526 of 2002 and held that the action of the respondents in rejecting the applications of the petitioners on the ground that the contractor has not produced the attendance register, pay rolls, GPF., rolls etc., is illegal and unsustainable.

Merely because the contractor has not produced the said registers, it cannot be said that the petitioners have not worked as contract labour. It is for the respondents to verify the certificates produced by the petitioners with reference to the agreements awarded to the contractors which were verified and counter signed by the officials of the respondents. Therefore, the action of the respondents in rejecting the cases of the petitioners based on the Vigilance Inspector’s Report on the ground that the contractor has not produced the aforesaid registers is unsustainable. Accordingly, a direction was issued in the said batch of writ petitions to the respondents to verify the certificates issued by the contractor and counter signed by the officials of the respondents with reference to the agreements under which particular contract labour was engaged as on 18-5-1997 and consider their cases for appointment in accordance with B.P.Ms.No.36, dated 18-5-1997.

The said order has become final, as no Writ Appeal was filed against the said order. It is stated that in fact a decision was taken to consider the cases of the petitioners in W.P.No.14241 of 2002 as is evident from the internal correspondence of the Transmission Corporation of Andhra Pradesh Limited, Vidyut Soudha, Hyderabad, which reads as follows:- “Court Case Immediate TRANSMISSION CORPORATION OF ANDHRA PRADESH LIMITED VIDYUT SOUDHA :: HYDERABAD 82 From: To The Chairman & Managing Director, The Chairman & Managing A.P.Transco, Director, Hyderabad. APEPDCL., Vishakapatnam. Lr.No.GM(IR)/DS(IR)/POJJ/A1/1193/2003. Date: 02.09.2003. Sir, Sub:- A.P.Transco – IR – Opn./Eluru/APEPDL - Filling up of 50% existing vacancies in initial cadres by Ex-Casual Labour who obtained Court orders and VEW – Prior – Permission – Reg. Ref:- 1) Lr.No.SE/O/Elr/DE(T)/ADM/F.T.O.O. 137/D.No.1680/2003, dt.14-8-2003. 2) Lr.No.CGM(HRD)/DS/AS(IR)/D.No.2060/2003, Dt.28-08- 2003.

I am to invite your attention to the references cited and inform that the proposals for appointment of eligible Contract Labour as LDC/Typist/Sub- Engineers submitted in reference 2nd cited is agreed subject to condition that the appointment shall not exceed 50% of vacancies as stipulated in BPMs.No.36, dated 18-05-1997 and also to keep in view the roster system and the guidelines issued by APSEB/A.P.Transco from time to time in the matter.

2. The cases of all the petitioners in W.P.No.14241/2002 shall be considered according to Law.

It is also informed that the above appoints should be with out prejudice to any action that may be warranted by APEDCL against the individuals for furnishing wrong information at any later date”. But, contrary to the said decision, the Superintending Engineer, rejected the cases of the petitioners on untenable grounds by the proceedings dated 12-9-2003 on the ground that the petitioners are not on rolls as on 18-5-1997. Pursuant to the interim directions granted by this Court, the respondents have rejected their cases by order dated 20-7-2004 with the self same grounds that the officials of the department have not confirmed that the petitioners are on rolls as on 18-5-1997 and that there is no proof of payment of EPF., amount by the contractor. As the said rejection order is clearly contrary to the earlier directions of this Court and contrary to their own sworn statement in the counter affidavit filed in the earlier Writ Petition, I have made the following order in one of the Contempt Cases (C.C. No.614 of 2004):- “The petitioner this Contempt Case for non compliance of the order of this Court dated 23-10-2003 in W.P.M.P.No.25671 of 2003 in W.P.No.20509 of 2003.

1997. It is stated that as on 22-4-1997 no work was entrusted to the contractor under whom the petitioners have worked. Therefore, the impugned orders of the respondents dated 12-9-2003 in rejecting the cases of the petitioners on the ground that they are not on rolls as on 18-5-1997 is correct. The first respondent also filed counters in all the Contempt Cases, stating that the petitioners have mentioned in their applications that they have worked under the Contractor M.Venkateswara Rao proprietor of M/s. Shailaja Engineering, Constructions, Electrical Contractors, Narsapur, West Godavari District as on 18-5-1997 for construction of the inner fencing wall for structural yards of Sub Station, Mogaltur (33/11 KV SS) under LS.No.4/97-98. It is stated that in respect of LS.4/97-98, the contractor submitted the tender on 19-4- 1997 and the tender was forwarded to the Superintending Engineer on 22-4-2997 and the contract was accepted only on 6-5-1997, but the agreement was entered on 30-6-1997 and the contractor has commenced the work and check measured on 7-8-19997 and the amounts were paid on 30-8-1997.

Therefore, it is incorrect to state that the petitioners have worked as on 18-5-1997 as the agreement itself was entered on 30-6-1997. As the petitioners are not on the rolls as on 18-5-1997, which is non fulfillment of the conditions prescribed in B.P.Ms.No.36, dated 18-5-1997, their cases were rightly rejected by order dated 20-7-2004 pursuant to the interim directions granted by this Court. The only question that arises for consideration as to whether the petitioners have worked as contract labour as on 18-5-1997 in respect of the work under L.S. Agreement No.4/97-98 for construction of the inner fencing wall for structural yard of (33/11 KV SS) Sub Station at Mogaltur. It is the case of the petitioners that the lowest tender of the contractor under whom the petitioners have worked was accepted on 6-5-1997 and the contractor was directed to start the work immediately and complete the same within one month vide letter dated 6-5-1997 of the Divisional Engineer, addressed to the contractor of the petitioners.

The said letter No.1453, dated 6-5-1997 addressed by the Divisional Engineer, Operation, Bhimavaram to M/s.Shailaja Engineering Constructions, Narsapur, Proprietor M.Venkateswara Rao clearly shows that the contractor was requested to attend the Division Office immediately along with the stamp paper of Rs.50/- for entering into L.S., agreement and the Earnest Money Deposit of Rs,1650/- paid by the contractor is retained as security deposit and in the meanwhile, the contractor is directed to contact the Assistant Divisional Engineer/ Operation/Narsapur to start the work immediately and complete the same within one month. Therefore, the contention of the respondents that even before the L.S., agreement was entered, the contractor could not have commenced the work is in correct and unsustainable as the contractor was directed to start the work immediately and complete the same within one month from the date of the said letter dated 6-5-1997.

It is the case of the petitioners that the contractor executed the articles of agreement on 6-5-1997 itself and forwarded the same to the Divisional Electrical Engineer, Operation, Bhimavaram and therefore, it cannot be said that he has executed the agreement on 30-6-1997. Merely because the check measurements were made on 7-8-1997, it cannot be said that the contractor has not executed the work in between 22-4-1997 to 20-5-1997. It is stated that the contactor M/s. Shailaja Engineering Constructions, Electrical Contractors, Raipeta, Narsapur, West Godavari District, furnished the particulars of the relevant works executed by him under the contract and one of such particular as furnished by his is LS.4/97-98 and the value of the work is Rs.71,686/- with regard to construction of inner fencing wall of structural yard at 33/11 KV Sub Station, Mogalture and the number of persons engaged by the contractor are 12 and the period of work done was from 22-4-1997 to 20-5-1997 and the said work was check measured by the Assistant Deputy Engineer/CEO, on 7-8-1997 has been counter signed after verification by the officials of the respondents. The respondents have also not produced any agreement said to have been executed by the contractor on 30-6-