IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE ELEVENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 12425 of 2000 Between: 1 Nangireddi Sivaji, S/o. Appalaswamy, Veerammakunta (V), Pedapadu (M) West Godavari District. 2 Y. Srinivasa Satyanarayana Murthy, S/o. Sreeramulu, N.T.R. Colony, Near Western Locks, Eluru, W.G.District. ..... PETITIONER(S) AND 1 A.P.Transmission Corporation Ltd.,(Formerely known as APSEB) Rep. by its Managing Director-cum-Chairman, Vidyuth Soudha, Somajiguda, Hyderabad. 2 The Chief Engineer, (Formerely Chief Enginer, Vijayawada Zone) at Present Eastern Power Distribution Co. Ltd., (Formerely known as APSEB) Maharanipet, Visakhapatnam. 3 The Superintending Engineer, (Operation), A.P. Transco Ltd., (Formerly known as APSEB), Eastern Street, Near Santhana Venugopalaswamy Rice Mills, Eluru, W.G. District. .....RESPONDENT(S) 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 to issue a Writ of Mandamus or any other appropriate Writ, Order or direction, declaring the action of the 3rd Respondent herein issuing impugned letter No. (1) SE/ELR/ADM/C1/D.No.609/2000 dt. 13-01-2000 (2) SE/O/ELR/Adm/C1/D.No. 599/2000 dt. 13-01-2000 rejecting the cases of petitioners for absorption into regular posts of Junior Lineman or any other suitable posts in existing vacancies is very highly illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India apart from contrary to the judgement of the Apex Court Reported in A.I.R. 1997 S.C. 645 and consequently to direct the respondents to absrob the petitioners herein regular posts of the existing vacancies as per B.P.Ms.No.36 dt. 18/5/1997 by setting aside the impugned rejection letters dt. 13/01/2000 and pass Counsel for the Petitioner:MR.B.P.RAJU Counsel for the Respondent No.: P.R.BALARAMI REDDY(SC FOR AP TRANSCO) The Court made the following : THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN Writ Petition No.12425 of 2000 ORDER: Petitioners, two in number, claim to be contract labourers engaged by a contractor who, in turn, was engaged by the respondent – APTRANSCO. Pursuant to B.P.M.S.No.36 dated 18.5.1997 several contract labourers, including the petitioners, were called upon to undergo a process of selection and, eventually, the respondent, vide proceedings dated 13.1.2000, informed the 1st petitioner that, as per the selection list, his turn for appointment against 50% of the vacancies had not come up as all the vacancies were ﬁlled up by persons higher in merit. Sri B.P.Raju, Learned Counsel for the petitioners, would submit that, while the respondent may have been justiﬁed in not selecting the petitioners on the ground that they had not come up in merit at the time when the order was passed in January, 2000, subsequent vacancies had arisen wherein the petitioners could have been accommodated in accordance with their ranks in the merit list. Learned Counsel would place reliance on a Division Bench judgment of this Court, in W.A.No.741 of 2000 dated 18.7.2000, whereby the Hon’ble Division Bench recorded the undertaking given by the respondents that the case of the respondents therein, for regularization in terms of B.P.Ms.No.36 and in pursuance of the judgment of the Court, would be considered as and when vacancies arise in future. Learned Counsel would seek a similar direction in this writ petition also. It is necessary to note that the order of the Division Bench dated 18.7.2000 was when B.P.Ms.No.36 was still in force. Subsequently, vide proceedings dated 30.8.2006, the respondent – A.P.TRANSCO has withdrawn B.P.Ms.No.36 subject to the outcome of the cases pending before the High Court. As on date B.P.Ms.No.36 is not in existence. The petitioner, as noted above, claims his right for selection in terms of the said Board proceedings which does not exist as on date. While the undertaking given earlier by the Learned Standing Counsel, before the Division Bench, would bind them in so far as the respondents therein are concerned, it is not for this Court to issue a mandamus or insist that a similar undertaking be given in all cases. It is well settled law that even if vacancies exist, it is for the employer to take an appropriate decision whether the said vacancies should be ﬁlled up(Union of India Vs. Majji Jangammayya[1]). It is not for this Court to issue a mandamus to the authorities concerned that existing vacancies should be filled up forthwith. It is also not known as to how many others rank above the petitioners in the merit list but could not be selected as vacancies did not arise at the time of selection. The petitioners cannot, in any event, claim appointment overlooking the cases of those who ranked above them in the merit list. Since B.P.Ms.No.36 itself has ceased to exist as on date, I see no justiﬁcation in now directing the respondents to consider the petitioners’ case for selection in terms of the said Board Proceedings. The mere fact that the writ petition was ﬁled prior to B.P.Ms.No.36 having been withdrawn is of little consequence, since, as on date, when the case has been taken up for hearing a direction is sought that the petitioner should be appointed in any of the available vacancies in accordance with the selection held in terms of B.P.Ms.NO.36, and the said Board proceedings is not in existence. Viewed from any angle, I see no justiﬁcation in granting the relief sought for in the writ petition. The writ petition fails and is, accordingly, dismissed. ____________ 11-11-2008 asp [1] AIR 1977 SC 757