WP/18231/1996 of V.VENKATARAMANA AND 3 OTHERS Vs THE APSRTC REP.V.C.AND M.D.HYD. AND 3 ORS on 24 December 2008

Conclusion

-COMMON ORDER:

The petitioners in both these Writ Petitions arecommon.

Writ Petition No.18231of 1996 was filed for a Writ of Mandamus to direct the respondents to regularize theservices of the petitioners as man mazdoors inrespondent No.1-Andhra Pradesh State RoadTransport Corporation (for short “the Corporation”) fromthe dates of their initial appointment and pay salaries onpar with other regular employees.

Writ Petition No.4629 of 2004 was filed against order dated 8-3-2004 passed by respondentNo.2, whereby he withdrew order dated 20-5-1997granting pay scales to the petitioners.

Heard Sri M.Ganga Rao, learned counsel for thepetitioners, and Smt.W.V.S.Rajeswari, learned standingcounsel for the Corporation.

The petitioners are working as man mazdoors in the office of the Deputy Executive Engineer (Civil), Engineering Department, Tirupati of the Corporation.Their grievance in Writ Petition No.18231 of 1996 is thatthough they have been engaged for a long time fromthe year 1988, their services are not being regularizedand regular pay scales are not being paid to them.

In the counter-affidavit filed on behalf of therespondents, it is, inter alia, stated that the petitionersare engaged as NMRs through contractor in CivilEngineering Sub-Division and that they are being paiddaily wages as per the rates approved by the Chief CivilEngineer-I, Hyderabad. They have given the followingparticulars regarding the engagement of each of thepetitioners and the payments being made to them:

“ 1.V.Venkataramana: He was engaged as NMRthrough contractor, Tirupathi Civil EngineeringDepartment sub-Division on 7-8-92 and he waspaid wages @ Rs.36/- per day.

2. S.A.Mastan: He was engaged on hand receiptbasis from 1-7-88 to 31-8-88 and laterdisengaged. Again reengaged through contractorfrom 10-7-92 and he was paid the wages @Rs.36/- per day.

3. P.Dasarathadu: He was engaged as NMRthrough Contractor in Tirupathi Civil EngineeringSub-Division on 7-8-92 and he was paid Rs.36/-per day.

4. P.V.Ramana Rao: He was engaged as NMRthrough contractor in Tirupathi Civil EngineeringSub-Division on 7-8-92 and he was paidRs.30/- per day”.

It is further averred that the NMRs are being engaged on daily wage basis by the contractors to assist the siteengineers during execution of civil and electrical workssince no permanent man mazdoors are provided by theCorporation to Tirupati Civil Engineering Division; andthat as there were large number of persons working asman mazdoors in civil engineering department,selections were conducted for absorption of 28 persons as conductors, subject to the following conditions:

“i) The Candidates who have been initiallyengaged by APSRTC prior to 20-12-89 andworked for a minimum period of 60 days in theCorporation and continuously engaged by thecontractor and those completed more than 240days as on 22-8-91 and continued as on the dateof interviews.

ii) The candidates who were engaged initially bythe contractor are not eligible.

iii) The candidates who were discharged prior to 1-4-89 are not eligible to be considered.

iv) They should possess minimum SSCqualification for the post of conductors and thosewho passed VIII Class also be considered onmerits of each case.

v) Relaxation is given for height and age.

vi) Candidates shall be identified and proposalswould be submitted to Head Office for approval bythe competent authority”.

It is further averred that as petitioners 1, 3 and 4 werenot initially engaged by the Corporation on hand receiptbasis and they were engaged through contractors, theywere not called for interviews held on 18-9-1993 for absorption in the posts of conductors and drivers; andthat as petitioner No.2 was initially engaged by theCorporation on hand receipt basis, his name wasrecommended by the selection committee on 18-9-1993, but later the reviewselection committee rejectedthe candidature of petitioner No.2 on 10-9-1996 as hewas disengaged prior to 1-4-1989 and thereby he failedto fulfill the conditions for absorption. As regards theregular time scale, it is stated that the petitioners areworking under the control of the supervisor of thecontractor; that they are not the employees of theCorporation; and that, therefore, they are not entitled forpayment of salaries on par with the Corporation’sregular employees. It is further stated that theCorporation will examine the feasibility for absorption ofthe petitioners into its service subject to availability ofvacancies.

Writ Petition No.4629 of 2004 arose out of theorder withdrawing the pay scales to thepetitioners, which were earlier granted to them inpursuance of the interim order granted in Writ PetitionNo.18231 of 1996. In the impugned order it is statedthat certain man mazdoors, who were seniors to thepetitioners filed Writ Petition No.5156 of 2001 in thisCourt for regularization of their services and that in thesaid Writ Petition they have raised a contention that the Corporation is paying regular pay scales to thepetitioners, who are far juniors to them, and that thisCourt has pointed out the said anomaly at the hearingof the said Writ Petition. It is further stated that the officeof Regional Manager, Tirupati, committed an error byissuing appointment order to the petitioners hereinthough they were juniors to the other NMRs working inthe Civil Engineering Department, Tirupati; that therewas ban on recruitment to the posts other than drivers,conductors and sramiks; and that the very orders ofappointment issued to the petitioners were contrary tothe circular instructions and the principle of seniority. Itis further stated that granting of time scale to thepetitioners, who are juniors to the petitioners in the otherWrit Petition, overlooking their case, cannot besustained and accordingly the earlier order dated 20-5-1997 was rescinded.

Sri M.Ganga Rao, learned counsel for thepetitioners, strenuously contended that though thepetitioners have been working as man mazdoors for anumber of years, the Corporation is not regularizingtheir services.

Smt.W.V.S.Rajeswari, learned standing counselfor the Corporation, opposed this contention andsubmitted that the petitioners have been working underthe contractor and that as the post of man mazdoor is

not borne on the cadre of the Corporation, the questionof their regularization does not arise. She also pointedout that in the selections made during the year 1993,petitioner No.2 was considered as he was engagedinitially by the Corporation on hand receipt basis, whilepetitioners 1, 3 and 4 were never engaged by theCorporation directly. As regards the pay scales, shesubmitted that as granting of pay scales in pursuance ofthe interim order of this Court, overlooking thepetitioners’ seniors, was illegal, the same waswithdrawn and that the said order does not suffer fromany illegality.

As regards the prayer for regularization, thepetitioners have not shown any rule or regulationapplicable to the Corporation under which thepetitioners are entitled for regularization or absorption inthe Corporation. The Corporation, as evident from thecounter-affidavit, considered on one time basis the manmazdoors who fulfilled the conditions stipulated in itscircular reproduced hereinbefore and appointed themas drivers and conductors. The Corporation has comeout with reasons, which are not controverted by thepetitioners for not absorbing them into the service of theCorporation either as drivers or conductors. Admittedly,the post of man mazdoor does not form part of the cadre of Tirupati Region of the Corporation. The standof the Corporation is that as and when there is work,they are being engaged by the contractors in the CivilEngineering Department. Irrespective of whether thepetitioners are engaged by the contractors or by theCorporation, it hardly makes any difference so long asthe post is not borne on the cadre. At any rate, as heldby the Constitution Bench of the Supreme Court inState of Karnataka Vs. Umadevi[1)]and reiterated by athree Judge Bench in Official Liquidator Vs.Dayanand and others[2)]that a daily wage worker or atemporary employee has no legal right to claimabsorption unless the employer frames a scheme forsuch an absorption or regularization. Though thelearned counsel for the petitioners stated that personswho are similarly placed as the petitioners wereregularized or absorbed, no details have been furnishedby the petitioners in support of this contention.Therefore, I do not find any merit in the plea of thepetitioners that by the mere fact of their long standing asman mazdoors, they are entitled for absorption orregularization.

With regard to grant of pay scales, though theCorporation had cancelled the earlier order granting payscales to the petitioners on the ground that the said scales were given overlooking the fact that their seniorswere not given the pay scales, in my view thepetitioners cannot insist on payment of pay scalesbecause of the reason that the category of manmazdoor is not borne on the cadre and does not carrypay scale. At the most the petitioners are entitled to thewages as fixed by the Corporation, which can be eitherhigher than or at the minimum wages payable under theMinimum Wages Act, 1948 and other relevant statutoryenactments.

For the above-mentioned reasons, I do not find any merit in both these Writ Petitions. Hence, they aredismissed.

Date:24.11.2008MNR

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C.V.NAGARJUNA REDDY, J

1) (2006) 4 SCC 12)(2008) 10 SCC 1