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2024 DIGILAW 1194 (AP)

Tirupal Naik v. State of Andhra Pradesh

2024-08-23

VENKATESWARLU NIMMAGADDA

body2024
ORDER: 1. This writ petition is filed claiming the following relief: “…to issue Writ, Direction, Order or Orders more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in not notifying the existing vacancies and not following the Rule of Reservation in the posts of Shift operators and not considering their services rendered in strike period cases the petitioners in the post of Shifting operators in Anantapur District is illegal, arbitrary contrary to the G.O.Ms.No.94, GAD (SER.A) Department, dated 28.03.2003, violative of Articles 14, 16 and 19 of the Constitution of India and consequently direct the Respondents to appoint the petitioners in the existing vacancies even before considering any new candidates by strictly following the rule of reservations and to pass such other order or orders...” 2. The case of the petitioners is as follows: 3. The petitioners herein are all unemployed and belonging to the Scheduled Tribe Community and seeking temporary employment for the posts notified at the Respondents Organization based on the previous services rendered by them as contract labourers in the strike period of its employees and providing security to safeguard the sub-stations and of A.P.TRANSCO assets vide instructions issued vide Lr.No.C/TR/SE/TR/D/SS/ADE-1/D.No.506/18, dated 20.02.2018 and also in critical sub-stations as alternative, managing power in case of personnel who were on strike. They are at fond hope that their services would be recognized and whenever the vacancies were arose, they would be considered by giving the preference as contract labours/temporary employees by the Respondent organisation. 4. While so, the Respondents organization called for filling up of the 147 shift operator posts in the AP Electrical Department, Anantapur Division and the orders were issued to all the AE's to process and selection of suitable personnel with the required qualification as ITI Electrical branch. All the Petitioners herein have the required qualifications. 5. It is submitted that the G.O.Ms.No.94, GAD (SER.A) Department, dated 28.03.2003 is issued with specific guidelines for contractual appointments, wherein all the departments shall maintain separate rosters and Rule of Reservation in the recruitment of the contract basis as per rules laid down under Rule 22 of the A.P. State and Subordinate Service Rules, 1996. 6. 5. It is submitted that the G.O.Ms.No.94, GAD (SER.A) Department, dated 28.03.2003 is issued with specific guidelines for contractual appointments, wherein all the departments shall maintain separate rosters and Rule of Reservation in the recruitment of the contract basis as per rules laid down under Rule 22 of the A.P. State and Subordinate Service Rules, 1996. 6. It is further submitted that the Respondents herein are not following any law and all the shift operators' posts were filled up by violating the rules and regulations or law and on the recommendations of the letters of MLAs and MPs. The Respondents herein are appointing and sending their own men to the contractor and accordingly utilizing their services as the outsourcing employees or contract employees. 7. Sri Anup Koushik Karavadi, learned counsel for Respondent Nos.2 to 5 filed counter affidavit and Vacate Stay petition on behalf of Respondent Nos.2 to 5, wherein it is stated that the averments made in the writ petition are baseless and hereby denied. Further, it is to place on record that Respondent No.2/A.P. TRANSCO did not call for the filling up of 147 Shift Operator posts and no orders were issued to any A.E in the AP TRANSCO to fill the posts with required qualifications as ITI Electrical branch. The CMD/A.P.TRANSCO has not issued any orders to fill up the posts of shift operators. Therefore, the writ petition suffers from making false statements and the petitioner is liable to be punished for committing perjury. The writ petition is liable to be rejected on the very ground that the Writ Petitioner had approached this Hon'ble Court with unclean hands. 8. It is further submitted that the O&M manning works of 220 KV and 132 KV will be awarded to the O&M manning contractors by way of tendering/bidding at zone level. The O&M manning contractor will deploy labour for O&M manning works at 132KV and 220KV Substations. Hence considering the representations of the petitioners is not within the purview of the A.P.TRANSCO/Respondents. 9. It is further submitted that the O&M manning works of 220KV and 132KV Substations are awarded to the O&M manning contractors based on A.P.TRANSCO specification, terms & conditions and the O&M manning contractors will deploy the contract labour. There is no violation of Rule of Reservation as alleged by the petitioner. 10. 9. It is further submitted that the O&M manning works of 220KV and 132KV Substations are awarded to the O&M manning contractors based on A.P.TRANSCO specification, terms & conditions and the O&M manning contractors will deploy the contract labour. There is no violation of Rule of Reservation as alleged by the petitioner. 10. It is further submitted that the 220KV substation Muthyalacheruvu was charged on 27.02.2023 and 220KV Substation at Dharmavaram is not yet charged and engaging contract labour is in the purview of the O&M manning contractor and the O&M manning contractor will deploy the contract labour. 11. Sri Dheera Kanishka, learned counsel for Respondent Nos.6 and 7 filed Vacate Stay petition wherein it is stated that Respondent No. 6 as an outsourcing manpower supply contractor/agency always follows Rule of Reservation (RoR) and Roster fixed by the A.P.TRANSCO from time to time while recruiting the Outsourcing contract labour for executing the works which are entrusted by the A.P.TRANSCO. Whereas, the specific allegations with regard to appointments were being made based on recommendations of MPs and MLAs are entirely false and frivolous and without any evidence being placed on record. 12. Sri V.R.Reddy Kovvuri, learned Standing Counsel for the APSPDCL filed a counter affidavit and Vacate Stay petition on behalf of Respondent Nos.8 to 10, wherein it is stated that the petitioners herein are not the employees of APSPDCL and hence they have no right whatsoever to invoke the extraordinary jurisdiction of this Hon'ble Court. The only effective alternative and appropriate remedy for the petitioners is to approach the appropriate Industrial Disputes Tribunal against Respondent No.8 for redressal of their grievances. Hence, the petitioners cannot seek the issuance of a Writ of Mandamus invoking the extraordinary jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India. The issue of locus standi is no longer ‘Res integra’ and the same fell for consideration before this Hon'ble Court and the Hon'ble Supreme Court and this Hon'ble Court as well as the Hon'ble Supreme Court time and again held that, unless, the persons who invoke the extraordinary jurisdiction under Article 226 of the Constitution of India have to plead and substantiate that as to how their right either statutory or Constitutional is infringed or invaded or threatened to be infringed or invaded to issue a Writ of Mandamus. As long as the said pleadings are absent from the affidavit and as long as the petitioners failed to substantiate that their right, either statutory or Constitutional is infringed or invaded or threatened to be infringed or invaded the Writ of Mandamus cannot be entertained and the same is liable to be dismissed. Whereas, the entire pleadings of the affidavit filed in support of the Writ Petition, are conspicuously silent as to how the petitioners' fundamental or statutory rights are infringed to issue a Writ of Mandamus. Hence, the Writ of Mandamus is not maintainable and is liable to be dismissed. 13. The learned counsel for the petitioners submits that the services of the petitioners were hired as a stop-gap arrangement to meet the emergency works for a period of one month since the regular employees were went on strike. As such the petitioners are entitled to consideration for appointment as shift operator posts at sub-stations vested with Respondent Nos.2 and 8. He further submits that the Respondents particularly Respondent Nos.9 and 10 issued instructions to all the concerned Assistant Engineers for filling up of 147 shift operators at the Anantapuram Divison. Pursuant to which the petitioners have submitted their representations dated 11.11.2020 and 20.03.2020 for their consideration as shift operators since they are eligible and they worked with the Respondent’s organization for period of 30 days. He also reiterated that Respondent No.3 also issued a memo dated 20.09.2021 observing vacancies at new sub-stations of Muthyala Cheruvu and Dharmavaram, Hindupur Division. But, having received representations, the Respondents did not consider the candidature of the petitioners and further alleged that the petitioners not following the Rule of Reservation/Roster as envisaged under G.O.Ms.No.94, dated 28.03.2003 which is applicable to the Respondent organization is in violation of Articles 14, 16 and 19 of the Constitution of India. 14. Learned counsel for the petitioners further alleged that the Respondents are proceeding and filling up the vacancies is contrary to the terms of G.O.Ms.No.94 and Articles 14 and 16 of the Constitution of India and filling up the vacancies through the alleged contractors as per their wish and will by which the Respondents have abandoned the Rule of Reservation, Rule of Law and also its own circulars to give preference to the persons who worked on the temporary basis with the Respondents. Therefore, the Respondents are liable to be directed to consider the case of the petitioners against the existing vacancies as Shift Operators in respect of sub-stations held by Respondent Nos.2 and 8. Moreover, even though this Court was pleased to pass an interim order dated 17.03.2023, directing the Respondents to engage the petitioners as Shift Operators or in any suitable posts or vacant posts in the Respondent organization of Anantapuram District within the existing vacancies. Even though having received the representations as well as orders of this Court, the Respondents neither considered the case of the petitioners nor issued any rejection proceedings which is in violation of Articles 14, 16 and 21 of the Constitution of India. 15. On the other hand, the learned Standing Counsel for Respondent Nos.2 and 8 submits that the present writ petition is not maintainable since the petitioner seeking relief against unofficial Respondent Nos.6 and 7 who are the contractors supplying the shift operators were working at sub-stations of Respondent Nos.2 and 8. As such, the present writ petition is liable to be rejected in limine. 16. It is further contended that the Respondents' notify 147 posts (Shift Operators and watchmen) at sub-stations of Anantapuram division is not true and correct. It is only an assumption of the petitioners and no such notification was filed along with the writ petition except by making a bold statement in their affidavit. Moreover, there are no vacancies are existing or notified by Respondent No.2 at any point of time. 17. The learned Standing Counsel for Respondent Nos.2 and 8 further reiterated that the memo was issued by Respondent No.3, dated 05.07.2021 in which the vacancies were enumerated with the Respondent Nos.2 and 8 is not true and correct. But, that are only contract labourers to be engaged by the contractors on a contract basis at O & M managing works at 225 KV substations that are purely contract basis vacancies can be filled up by contractors only. He further submits that Respondent Nos.2 and 8 took a policy to engage the required contract labourers throughout the state through contractors only. It is a fact that Respondent Nos.2 and 8 never engaged the persons either on sanctioned posts or on a contract basis at any sub-stations held by them. 18. He further submits that Respondent Nos.2 and 8 took a policy to engage the required contract labourers throughout the state through contractors only. It is a fact that Respondent Nos.2 and 8 never engaged the persons either on sanctioned posts or on a contract basis at any sub-stations held by them. 18. It is also contended by the learned counsel for the Respondents that neither the Respondent Nos.2 or 8 have adopted G.O.Ms.No.94 as alleged by the petitioners nor much less applicable to the Respondent Nos.2 and 8 but to the departments of Respondent No.1 only. 19. Learned counsel for the Respondents further submits that the services of the petitioners were engaged by the Respondents only for a period of one month as a stop-gap arrangement with clear terms. The said engagement of the petitioners is only a co-extension of the strike period. Being worked for one month at strike period neither they can be entitled for appointment of shift operators nor they shall be given preference against sanctioned or temporary posts to be recruited by the Respondent Nos.2 and 8. All the regular posts either shift operator or other posts shall be filled up by Respondent Nos.2 and 8 by way of notification and also providing equal opportunity to all the eligible persons including petitioners. Therefore, the petitioners are not entitled for any preferential consideration for having worked for one month period at time of strike with the then contractors. 20. Learned counsel for the Respondents further submits that since all the sub-stations within the jurisdiction of Respondent Nos.2 and 8 were outsourced, the petitioners cannot sought the relief against Respondent Nos.2 and 8 for making appointment of the petitioners and it is contrary to the procedure meant for public employment. 21. Learned counsel for the Respondents also relied upon a judgment rendered by this Court in similar circumstances in W.P.No.12035 of 2021 and batch under which claim of the petitioners therein was rejected. 22. Learned counsel for the Respondents further contended that the petitioners does not substantiate their claim of entitlement regarding existing vacancies and also employer or employee relation between the petitioners and the Respondents much less the instances in which the Respondents have not followed the Rule of Reservation or Roster. 22. Learned counsel for the Respondents further contended that the petitioners does not substantiate their claim of entitlement regarding existing vacancies and also employer or employee relation between the petitioners and the Respondents much less the instances in which the Respondents have not followed the Rule of Reservation or Roster. Therefore, the petitioners approached this Court with unclean hands and making apparent statements without there being any substantive evidence or documents and also seeking relief against Respondent Nos.6 and 7 is nothing but an abuse of process of law and the writ petition is liable to be dismissed. 23. Learned counsel for Respondent Nos.6 and 7 contended that the petitioners herein never worked as contract labourers at any point of time and contractors are ‘n’ numbers who are supplying manpower at the substations held by Respondent Nos.2 and 8 pursuant to the unilateral policy adopted by them. Therefore, the claim of the petitioners is not maintainable and liable to be dismissed. 24. Heard learned counsel for the petitioner and learned Standing counsel for Respondent Nos.1 to 5 and 8 to 10 and learned counsel for Respondent Nos.6 and 7 and also perused the material placed on record. 25. On perusal of G.O.Ms.No.94, dated 28.03.2003 filed along with the writ petition which reveals that the said G.O. is applicable only for the departments of Respondent No.1. In the absence of any evidence or proceedings to that effect that the said G.O. was adopted by Respondent Nos.2 and 8, it cannot be accepted the contentions of the petitioners that while engaging services of the contract labour through contractors should have adhered to the Rule of Reservation or Roster as contended by the petitioners. The petitioners herein neither filed any evidence or data or instances that the Respondents violated the Rule of Reservation or Roster as mandated under Articles 14, 16, and 21 of the constitution of India. 26. It is an admitted fact that as per averments of affidavit of the petitioners or as per the counter affidavit averments of the Respondents that the entire manpower required at sub-stations held and owned by Respondent Nos.2 and 8 are engaging through a number of the contractors only. 27. 26. It is an admitted fact that as per averments of affidavit of the petitioners or as per the counter affidavit averments of the Respondents that the entire manpower required at sub-stations held and owned by Respondent Nos.2 and 8 are engaging through a number of the contractors only. 27. It is also settled proposition of law that to observe the Rule of Reservation in a particular unit there should be more than five vacancies which are duly sanctioned and to be duly recruited as per the Rules in vogue with the Respondents, admittedly in the case in hand there are no sanctioned posts/regular posts as contended by the petitioners and neither any instance nor evidence filed here with. 28. It is also observed that there is no evidence filed by the petitioner to show that the Respondents are going to be filled up vacancies for which the petitioners are eligible and entitled in view of the policy adopted by Respondent Nos.2 and 8 for engaging contract labour through contractors, in the absence of any material evidence the claim of the petitioners is not maintainable in this writ petition without challenging the policy itself for engaging contract labour through contractors adopted by the Respondents. 29. As contended by the learned counsel for the Respondents since the claim of the petitioners for consideration of their candidature against the temporary posts or contractual labour through contractors or contract agencies of Respondent Nos.6 and 7, the present writ petition is not maintainable is a valid and to be considered in the absence of any evidence that the Respondent Nos.2 and 8 issued any notification filling up of any vacancies against sanctioned posts in which the Respondents are not following the Rule of Reservation or roster and also not considering the case of the petitioners, if they are eligible and entitled to hold the said posts. There is no piece of evidence filed before this Court or narrated instances that have taken place at the end of Respondent Nos.2 and 8 holding that they did not follow the Rule of Reservation or roster in any recruitment of employees was taken place. 30. There is no piece of evidence filed before this Court or narrated instances that have taken place at the end of Respondent Nos.2 and 8 holding that they did not follow the Rule of Reservation or roster in any recruitment of employees was taken place. 30. In similar circumstances, by a Common Order dated 05.08.2021 inW.P.Nos.12035 of 2021 and batch held as follows: “...Therefore, it is clear that the opening of the escrow account is for a specific purpose and it does not establish an employer-employee relationship between the petitioner/workmen and the official respondent. There is no privity of contract between the petitioners and the official respondents. The non-payment of wages is not a dispute that can be decided in a writ proceeding under Article 226 of the Constitution of India. In the absence of an employer-employee relationship the official respondents cannot be made parties to such litigation, more so under Article 226 of the Constitution of India. In the opinion of this Court the present contract is a pure and simple contract for supply of manpower with no statutory element at all. There is no public duty involved and the purely private rights – namely payment of salaries – is the issue sought to be agitated. There is no public duty involved for a mandamus to be granted. The interim orders relied upon by the learned counsel for the petitioners cannot also be treated as a precedent. The issue of escrow account, its effect, issue of maintainability etc., were also not raised and argued before the Learned Judges. This Court is therefore not obligated to follow the same. For all the above reasons, this Court holds that it does not have jurisdiction to entertain the Writ. The law is clear that in a pure non-statutory contractual matter a writ is not maintainable. It is also made clear that in the absence of employee and employer relationship, particularly with the State or State instrumentality a Writ is not maintainable. If the petitioners have a grievance against the contractor, who employed them, their remedy is elsewhere and not in a Writ…” 31. It is also made clear that in the absence of employee and employer relationship, particularly with the State or State instrumentality a Writ is not maintainable. If the petitioners have a grievance against the contractor, who employed them, their remedy is elsewhere and not in a Writ…” 31. As contended by learned counsel for Respondent Nos.6 and 7 that the petitioners never worked with Respondent Nos.6 and 7 at any point in time, their candidatures may not be considered as a preferential one while they are engaging services on a contract basis is also valid and to be acceptable for the reason the petitioners were engaged as a contingent employee for a period of one month as a stop-gap arrangement at the period of strike by the regular employees. Therefore, the petitioners are not entitled to any relief or claim as contended by the petitioners. 32. On the above analysis this Court can safely concludes that in the absence of any evidence of issuance of any notification to fill up vacancies by Respondent Nos.2 and 8, the allegation of non-observation of the Rule of Reservation or Roster and not considering the case of the petitioners even though they submitted representation is liable to be rejected. 33. In view of the reasons stated above the claim of the petitioners is devoid of merits and liable to be rejected. 34. Accordingly, the writ petition is dismissed. There shall be no order as to costs. 35. Consequently, Miscellaneous Petitions, if any, pending in the writ petition shall also stand closed.