B. V. Ramana Murthy vs The Ap Transco
2022 Latest Caselaw 303 AP

         HON'BLE SRI JUSTICE NINALA JAYASURYA

              WRIT PETITION No.2483 of 2019

ORDER:-

     The present Writ Petition is filed seeking to declare the

impugned action of the respondents in rejecting the case of

petitioners for absorption without properly verifying the Service

Certificates vide Lr.No.SE/ O/ E1.R/ DE.T/ ADM/ POSSESSION/

JAO/ F.No.49/ D.No.2870/18, dated 28.09.2018 and passing the

impugned order, as highly illegal, arbitrary and violative of

Articles 14 and 16 of the Constitution of India apart from

contrary to the judgment made in W.P.No.8249 of 2010, dated

20.02.2018 and consequently set aside the same by directing

the respondents to absorb the petitioners with LDC's or any

other equivalent posts with all other benefits.

Heard Smt.Akella Padma, learned counsel for the

petitioners and Sri Metta Chandra Sekhar Rao, learned Standing

Counsel for APSEB appearing for the respondents.

The brief facts of the case as culled out from the affidavit

filed in support of the Writ Petition may briefly be narrated for

better appreciation of the petitioners' case. The 1st petitioner

worked as contract labour from 01.07.1991 to 31.03.1998

through M/s Sailaja Engineering Construction, Narsapur and

further continued upto November, 2000. The 2nd petitioner

worked as contract labour from 01.05.1996 to 10.10.2000

through the same contractor. Several contract works were

entrusted by erstwhile A.P. State Electricity Board (APSEB) which

was bifurcated into A.P. Transco & A.P. Genco and later

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transformed into different companies viz., APEPDCL, APSPDCL

and APNPDCL and Central Power Distribution Company of Andhra

Pradesh Limited. Claiming that they are entitled for absorption as

contract labour under the scheme laid down vide B.P.Ms.No.36,

dated 18.05.1997 of the erstwhile APSEB, the petitioners

approached the erstwhile Common High Court of Andhra Pradesh

at Hyderabad by filing W.P.No.14241 of 2002. The said Writ

Petition was allowed vide order, dated 11.03.2003 and the

respondents therein were directed to consider the petitioners'

case for absorption in terms of the said B.P. However, the case

of petitioners was rejected by orders, dated 12.09.2003 on the

ground that they were not on rolls as on 18.05.1997.

Aggrieved by the same, the petitioners filed W.P.No.20539

of 2003 and W.P.No.20465 of 2003 respectively, which were

allowed by an order dated 29.09.2004. Against the said orders,

the respondents filed W.A.No.1606 and W.A.No.1842 of 2004

and the same were disposed of by orders dated 25.11.2004 inter

alia, observing as follows:-

"Para 7: BP.Ms.No.36 was issued by the Board only to provide employment opportunities to the contract labour in the regular service of the Board provided they fulfilled the requisite condition. Therefore, every effort should be made to ensure that the benefit only goes to the eligible contract labour and not the others who try to enter the protection of BP.Ms.No.36 by resorting to illegal methods. Though the learned Single Judge having no other material to come for a definite conclusion had drawn the inference, but at the same time it does not preclude the authorities from reconsidering the issue as to whether the respondent had in fact worked as contract labour with reference to the documents and further enquiry if any conducted by the authorities in this regard to

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reach the object sought to be achieved by BP.Ms.No.36. Under those circumstances, we do not find any ground to interfere with the order of the learned Single Judge.

Para 8: Accordingly, the Writ Appeals are disposed of subject to the above observations, The appellants are directed to consider the case of the workmen and pass appropriate orders within a period of eight (08) weeks from the date of receipt of a copy of this order. No costs."

Against the said orders, the petitioners carried the matter

by way of appeal to the Hon'ble Supreme Court. The Hon'ble

Supreme Court vide orders, dated 04.03.2005 in Special Leave

to Appeal (Civil) Nos.4142-4146/2005) disposed of the same in

the following terms:-

"Learned counsel for the petitioner submits that he has valid certificate as required under Notification to show that on the relevant date, namely, 18.05.1997 he was working with the contractor in the project concerned and that he is entitled to the benefit of Notification. If that be so as provided in the impugned judgment of the Division Bench itself it is open to him to show the certificate to the authorities concerned and convince them."

Thereafter, the petitioners filed W.P.No.20049 of 2005

challenging the order, dated 18.07.2005 passed by the

respondents rejecting the petitioners' case on the ground that no

fresh material was placed. The said Writ Petition was disposed of

vide orders, dated 26.10.2007, wherein the learned Single Judge

while observing that the respondents cannot be blamed for not

considering the cases of petitioners, however was pleased to

grant one more opportunity to the petitioners to establish their

case that they were on rolls as on 18.05.1997 and directed them

to file a detailed representation along with the documents to

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show that they were on rolls with the contractor as on

18.05.1997 and the respondents therein were directed to

consider the cases of petitioners based on the said documents to

be produced by them and pass appropriate orders thereon,

within a period of four (04) weeks from the date of receipt of a

copy of this order.

Pursuant to the said orders, the 4th respondent passed

orders on 19.03.2009 once again rejecting the case of the

petitioners. Challenging the same, the petitioners filed

W.P.No.8249 of 2010 which came to be disposed of by the

erstwhile Common High Court for the State of Telangana and the

State of Andhra Pradesh at Hyderabad by orders dated

28.02.2018. The learned Single Judge allowed the Writ Petition

and the relevant portion of the order reads as follows:-

"As rightly contended by the learned counsel for petitioners, the order impugned is liable to be set aside on the sole ground non-application of mind to the issue involved more particularly when specific direction was issued in the earlier round of litigation by the learned Single Judge followed by Division Bench. Hence, order impugned is set aside and matter is remitted to 4th respondent to examine whether petitioners were working on 18.05.1997 based on the certificate submitted by them as observed by the Division Bench in W.A.No.1606 of 2004 and batch dated 24.11.2004. A decision shall be taken by duly considering material on record and in terms of the directions issued in the earlier material on record and in terms of the directions issued in the earlier material on record and in terms of the directions issued in the earlier round of limitation. It is also open to the petitioners to place any material in support of their claim. Material, if any, shall be placed before the competent authority within a period of two weeks from the date of receipt of copy of this order and within four weeks thereon 4th respondent shall take appropriate decision in the matter."

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Thereafter, the 4th respondent passed separate orders,

dated 28.09.2018 once again rejecting the cases of petitioners

for absorption for the reasons set out in the said order.

Aggrieved by the same, the petitioners are constrained to

challenge the same, in the present Writ Petition, on various

grounds.

The learned counsel for the petitioners while reiterating the

contentions raised in the Writ Petition, inter alia, submits that

the petitioners were denied absorption of their services without

verification of the documents submitted on their behalf in a

proper perspective. While drawing the attention of this Court to

the Certificate, dated 07.08.1997 of the concerned Assistant

Divisional Engineer, Construction and Operation, APTRANSCO

Limited, Narsapur she submits that Form-XV, dated 10.10.2000

issued by the Contractor M/s Sailaja Engineering Constructions

would also support the case of the petitioners that they were

working as contract labour as on 18.05.1997 and therefore they

are entitled for absorption in terms of B.P.Ms.No.36, dated

18.05.1997. She submits that the material on record would

clearly disclose that the petitioners were working as on

18.05.1997 as contract labour with the above said contractor for

execution of works relating to the respondent Company and

therefore the reasons assigned in the impugned order to the

effect that the contract labour cannot work two different works

at the same point of time is misconceived. She contends that

once the competent authority i.e., Assistant Divisional Engineer

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had certified that the petitioners were engaged as contract

labour for the works relating to the respondent Company as is

evident from the pages 59 and 77 of the material papers, the

stand taken that the Service Certificate of the contractor is not

countersigned by the concerned Assistant Divisional

Engineer/Assistant Engineer is of no consequence. The learned

counsel submits that the authorities instead of examining the

case of petitioners as directed by the Hon'ble High Court on the

earlier occasions, in true letter and spirit, had bent upon to pass

rejection orders only to deprive the petitioners of their valid

claims, on untenable grounds. She submits that the impugned

order is liable to be set aside on the ground of non-application of

mind and the Writ Petition be allowed, directing absorption of the

petitioners, by setting aside the order dated 28.09.2018.

On the other hand, the learned Standing Counsel

strenuously contended that the arguments advanced by the

learned counsel for petitioners are not tenable. He submits that

the authorities concerned have scrupulously considered the

material i.e., Service Certificates, dated 10.10.2000 issued by

the Contractor and as the same were not countersigned by the

concerned Assistant Divisional Engineer/Assistant Engineer, the

same were not taken into consideration. He also submits that the

nature of work mentioned in the said Service Certificate is

different from the work as mentioned in the Certificate dated

07.08.1997 of the Assistant Divisional Engineer and therefore

the 4th respondent had rightly observed that the petitioners

cannot be expected to be present in respect of two different

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works, at the same time. He also submits that B.P.Ms.No.36,

dated 18.05.1997 was withdrawn in the year 2006 and the

petitioners' cases for absorption in terms of the said

B.P, cannot, therefore be considered. He also submits that the

petitioners have not submitted any concrete material to establish

that they were working as contract labour as on 18.05.1997,

though the Hon'ble High Court granted liberty to them in the

orders passed in the earlier round of litigation. He submits that

the respondents have passed orders in strict obedience to the

orders passed by the Hon'ble High Court and therefore the

allegation of non-application of mind is absolutely baseless and

untenable. Making the said submissions, the learned Standing

Counsel submits that the Writ Petition is devoid of merits and

seeks dismissal of the same.

This Court has considered the submissions of the

respective Counsel and perused the material on record.

The orders passed in the Writ Petitions filed by the

petitioners on the earlier rounds are borne out by record and a

reading of the same goes to show that the petitioners were

granted liberty to submit the documents in support of their case

that they were working as contract labour as on 18.05.1997 and

the respondent authorities were directed to examine the same.

Though in the impugned order one of the reasons stated for

rejection of petitioners' cases is that Service Certificate is not

countersigned by the concerned Assistant Divisional

Engineer/Assistant Engineer, the Certificate dated 07.08.1997

which was countersigned by the concerned Assistant Divisional

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Engineer would clearly establish that the petitioners were

engaged as contractor labour in respect of the works entrusted

to M/s Sailaja Engineering Constructions and pages 48 to 72 of

the material papers discloses the details of the respective

petitioners and in the relevant column No.5 extracted for ready

reference, it is stated as follows:

"Whether the works executed relates to the then

A.P.S.E. Board as on 18.05.1997 - Yes"

It may also be appropriate to extract the

Certification/Endorsement of the Assistant Divisional Engineer,

Construction and Operation, AP TRANSCO Limited, Narsapur

which reads thus:-

"It is certified that the particulars furnished by the contractor at columns 6 to 12 of the format have been duly verified with reference to the agreements. The contract labour as stated to have been engaged by the contractor furnished by the contractor at columns 2 to 5 of the same format. It is to confirm that the check measurements is in respect of L.S. Agt. No.4/1997-98 covered in the statement has been done on 07.08.1997."

In the light of the above certification/endorsement, the

order of rejection on the premise that the Service Certificate,

dated 10.10.2000 of the concerned Contractor is not

countersigned by the concerned Assistant Divisional Engineer,

holds no water.

Further, the nature and location of or work described at

Sl.No.3 in the Service Certificate of the Contractor contains

broad description, which relates to construction, operation and

maintenance works connected to APSEB. The nature of work

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done at Sl.No.4 of the Tabular Form in the said Certificate refers

to erection of poles, stringing, paying out of conductor, erection

of Transformers and other works connected to H.T and L.T Lines

and sub-stations etc., and construction of inner fencing wall for

structural yard at sub-station, Mogaltur (33/11 KV SS) vide L.S.

Agreement No.4/97-98 would definitely fall within the ambit of

works entrusted to the contractor. Therefore, the view taken in

the impugned order with reference to nature of works and that

"a contract labour cannot work two different works at the same

point of time" cannot be countenanced. The other submission of

learned Standing Counsel that the petitioners' cases cannot be

considered as B.P.Ms.No.36 has been withdrawn, cannot be

appreciated. As seen from the impugned order, the said B.P was

withdrawn vide E.O.No.276 dated 04.10.2006 on the premise

that there are no eligible candidates. The case of petitioners

stands on a different footing and the earlier orders passed in

their favour would clearly go to show that, in the event, they

succeed in establishing that they were working as contract labour

as on 18.05.1997, their cases shall be considered for absorption.

In the present case, the material on record, as observed

earlier, would establish that the petitioners were working as

contract labour as on 18.05.1997 and rejection of their cases

without appreciation of material in a proper perspective amounts

to non-application of mind.

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For the afore going reasons, the rejection proceedings

dated 28.09.2018 are set aside. The respondents are directed to

absorb the petitioners in any suitable post, within a period of

eight (08) weeks from the date of receipt of a copy of this order.

In the result, the Writ Petition is allowed, in part, to the

extent indicated above. There shall be no order as to costs.

As a sequel, miscellaneous applications, if any, pending

shall stand closed.

__________________ NINALA JAYASURYA, J Date: 24.01.2022

IS

NJS, J W.P.No.2483 of 2019

HON'BLE SRI JUSTICE NINALA JAYASURYA

Writ Petition No.2483 of 2019 Date: 24.01.2022

IS