V. Ranganayakulu vs The Southern Power Distribution ...
2021 Latest Caselaw 637 AP

 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

                WRIT PETITION NO.2807 OF 2021

ORDER:

This petition is filed under Article 226 of the Constitution

of India seeking the following relief:-

".... to issue a writ of Mandamus, declaring the action of the respondents in proposing to substitute the petitioner with a candidate of 6th respondent to work as Shift Operator at 33/11 KV Sub-Station, Yachavaram, Markapur Division, Prakasam District, as illegal, arbitrary, discriminatory, contrary and Articles 14, 16 and 21 of the Constitution of India and consequently direct the respondents to continue the petitioner as Shift Operator at Sub-Station, Yachavaram, Markapuram Division, Prakasam District and pass such other order."

2. It is the case of petitioner that the petitioner was engaged

by the then contractor D.Yerraiah for Manning & Maintenance

of 33/11 KV Sub-Station, Yachavaram of Markapur Division on

contract basis from 01.05.2017 to 30.13.2018 on payment of

Rs.10,00,000/- and this petitioner is a Shift Operator under the

said contractor and discharging his duties since 01.01.2020.

But, the contract was finally terminated in the month of

October, 2020, thereafter, the respondents have entrusted the

contract to Manning & Maintenance of 33/11 KV Sub-Station to

a new contractor and on account of such entering into contract

the employees engaged by the earlier contractor D.Yerraiah have

been removed from service contract and therefore the petitioner

questioned the removal of the petitioner as illegal, arbitrary and

requested to issue direction as prayed for.

3. During hearing, P.Narahari Banu, learned counsel for the

petitioner mainly contended that though the previous contract

is terminated, the petitioner being an employee under the

contractor shall be continued in service by the respondents.

Termination of the petitioner from service is an illegality and

requested issue a direction as stated supra, at the stage of

admission.

4. Sri Y.Nagi Reddy, learned Standing Counsel for APSEB

appearing for respondents opposed the writ petition.

5. Undisputedly, the petitioner's services were engaged by

the contractor D.Yerraiah whose contract was terminated finally

in the month of October, 2020. There was no direct relationship

between the employee and the employer i.e., the petitioner

herein and the Divisional Engineer (Operation Division), Ongole

APSPDCL, Prakasam District. In such a case, the petitioner

cannot be treated as an employee under the Divisional Engineer

(Operation Division), Ongole APSPDCL, Prakasam District.

There are two situations, when an employee was engaged on

contract basis by the employer directly and the second situation

is when a person was employed by an employee and the

contract between the Government and the contractor. But, in

the second case, the employees engaged by the contractor

cannot be continued and since there was no direct relationship

of employee and the employer.

6. A similar question came up before the Apex Court in

Indian Drugs & Pharamaceuticals Ltd., Workman, Indian

Drugs & Pharmaceuticals Ltd.,1 where the casual labourers

engaged on payment of salary on par with other regular workers

sought to regularize their services. The Supreme Court declined

to issue such direction and finally concluded that the

petitioners therein were not entitled for regularization.

7. Similarly, in another judgment in A.Manjula Bhashini &

Others vs. The Managing Director, A.P. Women's

Cooperative Finance Corporation Ltd., and Another2 the

Apex Court considered the scope of regularization of employees

engaged on daily wages and in another judgment in Satya

Prakash & Others vs. State of Bihar & Others3.

8. In a different situation in A.Manjula Bhashini's case

(referred (2) supra) where the daily wage based employees and

NMRs and the workers engaged on consolidated pay on

engagement workers sought relief to regularize their services,

but the Court declined to issue a direction for regularization. In

paragraph No.41 of the judgment the Apex Court referred an

earlier judgment in Union of India v. Sudhir Kumar Jaiswal4

wherein it was held as follows:-

Appeal (Civil) 4996 of 2006 (Arising out of Special Leave Petition (Civil) No.3862 of 2006)

Civil Appeal No.3702 of 2006

Civil Appeal No.2440 of 2010 (Arising out of SLP No.5938 of 2009

(1994) 4 SCC 212

".....fixing of 1st August as the cut off date for determining the

eligibility in the matter of age of the candidates appearing in the

examination held for recruitment to the Indian Administrative

Service/Indian Foreign Service etc. cannot be termed as arbitrary

merely because the preliminary examination was held prior to that

date. The Court accepted the explanation given by the Union of India

that 1st of August of the year is normally fixed for determination of

the eligibility of the candidates and the same was not modified before

holding the preliminary examination because it was only a screening

test and marks obtained at such examination were not taken into

consideration at the time of preparing the final result. In Union of

India vs. K.G.Radhakrishna Panickar [(1998) 5 SCC 111], it was held

that the decision of the railway administration to fix 1.1.1061 as the

cut off date for the purpose of counting of past service of Project

Casual Labourers for the purpose of retrial benefits was not arbitrary

or unreasonable because two separate scheme were framed for

regularization of casual labourers.

42. The question which remains to be considered is whether the

Division Bench was justified in holding that all daily wage employees

who completed 5 years service on the date of enforcement of Act

No.27 of 1998, i.e., 19.08.1998 would be entitled to be considered for

regularization of their services. A reading of paragraphs 54, 67, 68

and 72 of the impugned judgment shows that even though the

Division Bench did not find the cut off date i.e., 25.11.1993 specified

in first proviso to Section 7 for determining the eligibility of daily

wage employees for regularization to be arbitrary, irrational or

discriminatory, yet it changed the said date from 25.11.1993 to

19.08.1998 solely on the premise that Act No.27 of 1998 was

enforced with effect from that date. In our view, once the Division

Bench negatived the challenge to the validity of Act No.3 of 1998 and

27 of 1998, there was no warrant for altering the date of eligibility

specified in the first proviso to Section 7 of the 1994 Act and thereby

extend the zone of eligibility of daily wage employees who could be

considered for regularization. As a corollary, we hold that the

declaration made by the Division Bench that all persons who

completed 5 years service as on the date of coming into force of Act

No.27 of 1998 would be entitled to be considered for regularization of

there is legally unsustainable and is liable to be set aside.

9. By applying the principle laid down in the above judgment

are to the present facts of the case, I am not inclined to direct

the respondent authorities to continue the petitioner in service,

as there was no direct relationship between the employee and

the employer i.e., between the petitioner herein and the

Electricity Board, consequently, the writ petition is liable to be

dismissed.

10. In the result, the writ petition is dismissed, at the stage of

admission. There shall be no order as to costs.

As a sequel, interlocutory applications pending, if any,

shall also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY

Date: 05.02.2021

IS

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION NO.2807 OF 2021

Dated 05.02.2021

IS