*THE HONOURABLE Dr. JUSTICE G. YETHIRAJULU +Writ Petition No.10799 of 2004 & batch % Dated: 14-10-2004. # M. Kasturi. … Petitioner $ The Sr. Deputy Director General, Corporate Office, BSNL , New Delhi. and others … Respondents ! Counsel for petitioner: Mr.Krishna Devan ^ Counsel for respondents: Mr.C. Yadagiri, S.C. for BSNL < GIST: >HEAD NOTE: ? Cases referred: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTEENTH DAY OF OCTOBER TWO THOUSAND AND FOUR PRESENT THE HON'BLE Dr. JUSTICE G.YETHIRAJULU Writ Petition Nos.10799, 10885, 10886, 10901 and 9758 of 2004 Writ Petition No.10799 of 2004 Between: Smt. M. Kasturi, W/o M. Suryakumar, O/o Executive Engineer (Electrical), BSNL,Nampally, Hyderabad. ... PETITIONER AND 1 The Sr. Deputy Director General, Corporate Office, BSNL , New Delhi. 2 The Chief General Manager, BSNL, AP, Hyderabad. 3 The Principal General Manager, Telecom District, Hyderabad, AP. 4 The Principal Chief Engineer (E), BSNL. Electrical Zone, Hyderabad-1. 5 The Supdt . Engineer (Electrical), BSNL, Nampally, Hyderabad. 6 The Executive Engineer (Electrical), BSNL, Nampally, Hyderabad. …RESPONDENTS 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 issue an order, direction or a Writ more particularly in the nature of Writ of Mandamus by declaring the action of the respondents in rejecting the claim of the petitioner for conversion into full time casual labourer and for the grant of temporary status vide order No. B(6)/BSNL/TED-I/304, dt.15-4-2004 passed by the Executive Engineer, Electrical Division, Tirupati, and also termination of the services of the petitioner by shifting to a contractor if any, without any valid reason, notice or at least order in writing, as arbitrary, discriminatory, illegal, unjust and unsustainable, being violation of Art. 14, 16 and 21 of the Constitution of India and set aside the same and consequently to direct the respondents to convert the petitioner into full time casual labourer and also to re- engage the petitioner along with consequential benefits. Counsel for the Petitioner: Mr.Krishna Devan. Counsel for the Respondents 1 to 6: Mr. C. Yadagiri, S.C. for BSNL. Writ Petition No. 10885 of 2004 Between: Mr. B. Nageswara Rao S/o Late B. Nagamanaidu O/o Executive Engineer Electrical Division, BSNL, Tirupati ... PETITIONER AND 1. The Senior Deputy Director General (Electrical) BSNL, Government of India Enterprise, 10th Floor, Chanderlok Building, 36 Janpath, New Delhi 110001. 2. The Chief General Manager, BSNL. Abids, Nampally Road, Hyderabad 3. The General Manager BSNL, Tirupati SSA Unit, Tirupati 4. The Principal Chief Engineer, BSNL, Electrical Zone, 5-8-363, Chirag Ali Lane, Abids, Hyderabad. 5. The Superintendent Engineer, BSNL, Electrical Zone, Vijayawada. 6. The Executive Engineer, BSNL, Electrical Zone, H. NO. 19-6-18, D.R. Mahal Road Tirupati ...RESPONDENTS 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 issue an order, direction or a Writ more particularly in the nature of Writ of Mandamus by declaring the action of the respondents in rejecting the claim of the petitioner for the grant of temporary status of a Group D after conversion into full time casual labourer vide order No. BN/BEDT/03-4/10, dt.31-3-2004 passed by the Executive Engineer electrical Division, Tirupati and also termination of the Services of the petitioner without any reason notice or at least order in Writing, as arbitrary, discriminatory, illegal unjust and unsustainable, being in violation of Arts.14, 16 & 21 of the Constitution of India and set aside the same and consequently to direct the respondents to grant temporary status of a Group D after the same and consequently to direct the respondents to grant temporary status of a Group D after conversion into full time casual Labourer and further regularisation as Group D along with consequential benefits. Counsel for the Petitioner: Mr.Krishna Devan Counsel for the Respondents: Mr.T. Hanumanth Reddy Writ Petition No.10886 of 2004 Between: S. Bhaskar, S/o S. Anjaneyulu, O/o Supdt. Engineer, BSNL, Electrical Zone, 5-8-363, Chirag Ali Lane, Abids, Hyderabad. ... PETITIONER AND 1. The Senior Deputy Director General (Electrical) BSNL, Govt. of India Enterprise, 10th Floor, Chanderlok Buildings, 36 Janpath, New Delhi 110 001. 2. The Chief General Manager, BSNL, Abids, Nampally Road, Hyderabad. 3. The Principal General Manager, BSNL, Hyderabad District, Suryalok Complex, Hyderabad. 4. The Principal Chief Engineer, BSNL, Electrical Zone, 5-8-363, Chirag Ali Lane,Abids, Hyderabad. 5. The Supdt. Engineer, BSNL, Electrical Zone, 5-8-363, Chirag Ali Lane,Abids, Hyderabad. 6. The Executive Engineer, BSNL, Electrical Zone, 5-8-363, Chirag Ali Lane,Abids, Hyderabad. ...RESPONDENTS 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 issue an order, direction or a Writ more particularly in the nature of Writ of Mandamus by declaring the action of the respondents in rejecting the claim of the petitioner for the grant of temporary status of a Group D after conversion into full time casual laborer vide order No. 9(16) BSNL/ECH/2004(08) dt. 31-3-2004 passed by the Superintending Engineer, Electrical circle, Hyderabad and also terminating the services of petitioner as arbitrary, discriminatory, illegal, unjust and unsustainable, being in violation of the Arts.14, 16 and 21 of the Constitution of India and set aside the same and consequently direct the respondents to grant temporary status of a Group D after conversion into full time casual laborer and further regularisation as Group D along with consequential benefits. Counsel for the Petitioner: Mr.Krishna Devan Counsel for the Respondents: Mr.R.S.Murthy Writ Petition No.10901 of 2004 Between: M. Subba Rao S/o M. Subramanyam Rao O/o Supdt., Engineer BSNL, Electrical Zone, 5-8-363, Chirag Ali Lane Abids, Hyderabad ... PETITIONER AND 1. The Senior Deputy Director General (Electrical) BSNL Government of India Enterprise, 10th Floor, Chanderlok Building,'36 Janpath, New Delhi 2. The Chief General Manager, BSNL, Abids, Nampally road, Hyderabad. 3. The Principal General Manager, BSNL, Hyderabad District, Suryalok Complex, Hyderabad. 4. The Principal chief Engineer, BSNL, Electrical Zone, 5-8-363, Chirag Ali Lane, Abids, Hyderabad. 5. The Supdt. Engineer BSNL Electrical Zone, 5-8-363, Chirag Ali Lane, Abids, Hyderabad. 6. The Executive Engineer, BSNL, Electrical Zone 5-8-363, Chirag Ali Lane, Abids, Hyderabad ...RESPONDENTS 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 issue an order, direction or a Writ more particularly in the nature of Writ of Mandamus by declaring the action of the respondents in rejecting the claim of the petitioner for the grant of temporary status of a Group D after conversion into full time casual labourer vide order No.9 (16) BSNL/ECH/2004 (08), dt.31-3-2004 passed by the Superintending Engineer Electrical Circle, Hyderabad and shifting of the petitioner to a contractor as arbitrary, discriminatory, illegal unjust and unsustainable, being in violation of Arts.14, 16 & 21 of the Constitution of India and set a side the same and consequently to direct the respondents to grant temporary status of a Group D after the conversion into full time casual Labourer and further regularisation as Group D along with consequential benefits. Counsel for the Petitioner: Mr.Krishna Devan Counsel for the Respondents: Mr.R.S.Murthy Writ Petition No. 9758 of 2004 Between: Smt.B.Rukmini, w/o Sri B.Bhimaiah, O/o Electrical Supdt.,Engineer, BSNL, Hyderabad. ... PETITIONER AND 1. The Senior Deputy Director General (Electrical), BSNL, Government of India Enterprise, 10th Floor, Chanderlok Building, 36 Janpath, New Delhi -110 001. 2. The Chief General Manager, BSNL, Abids, Nampally Road, Hyderabad. 3. The Principal General Manager, BSNL, Hyderabad District, Suryalok Complex, Hyderabad. 4. The Principal Chief Engineer, BSNL, Electrical Zone, 5-8-363, Chirag Ali Lane, Abids, Hyderabad. 5. The Supdt.Engineer, BSNL, Electrical Zone, 5-8-363, Chirag Ali Lane, Abids, Hyderabad. ...RESPONDENTS 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 issue an order, direction or a Writ more particularly in the nature of Writ of Mandamus by declaring the action of the respondents in rejecting the claim of the petitioner for the grant of temporary status of a Group D after conversion into full time casual labourer vide order No. 9(16) BSNL(ECH/2004(09) dt.31-3-2004 passed by the Superintending Engineer , Electrical circle, Hyderabad as arbitrary, discriminatory, illegal, unjust and unsustainable, being violative of the Arts.14, 16 and 21 of the Constitution of India and set aside the same and consequently to direct the respondents to grant temporary status of a Group D after conversion into full time casual labourer and further regularisation as Group D along with consequential benefits. Counsel for the Petitioner: Mr.Krishna Devan. Counsel for the Respondents: Mr.C. Yadagiri, Standing Counsel for BSNL. The Court at the admission stage made the following: ORDER: 1. These writ petitions are filed seeking a writ of mandamus by declaring that the action of the respondents in rejecting the claim for (1) conversion of the petitioners into full time casual labourers, (2) for grant of temporary status, (3) to declare that the termination of the services of the petitioners by the respondents by shifting to contractors without any valid reason, notice or at least an order in writing, as arbitrary, discriminatory, illegal, unjust and unsustainable being violative of Articles 14, 16 and 21 of the Constitution of India, (4) to set aside the same, (5) to direct the respondents to convert the petitioners into full time casual labourers, and (6) to re-engage them along with consequential benefits. 2. Since the questions involved in the writ petitions and the reliefs prayed for against the respondents are identical, the writ petitions are disposed of through this common order. 3. Before dealing with other writ petitions, I would like to dilate upon the facts stated by the parties in Writ Petition No.10799 of 2004. Writ Petition No.10799 of 2004 4. The Department of Telecom, New Delhi evolved a scheme on 7- 11-1989 called the Casual Labourers (Grant of Temporary Status and Regularisation) Scheme, 1989 {hereinafter referred to as the 1989 Scheme for regularization of casual labourers as Class-IV on fulfilling certain conditions. Regulations 4 and 5 of the said Scheme reads as follows: 4. A) Vacancies in the Group-D Cadres in various offices of the Department of Telecommunications would be exclusively filled by regularization of casual labourers and no outsiders would be appointed to the cadre except in the case of appointments on compassionate grounds, till the absorption of all existing casual labourers fulfilling the eligibility conditions including the educational qualifications prescribed in the relevant Recruitment Rules. However, regular Group D staff rendered surplus for any reason will have prior claim for absorption against existing/future vacancies. In the case of illiterate Casual Labourers, the regularization will be considered only against those posts in respect of which illiteracy will not be an impediment in the performance of duties. They would be allowed age relaxation in the performance of duties. They would be allowed age relaxation equivalent to the period for which they had worked continuously as casual labour for the purpose of age limits prescribed for appointment to the Group D cadre, if required. Outside recruitment for filling up the vacancies in Gr.D will be permitted only under the condition when eligible casual labourers are not available. B) Till regular Gr.D vacancies are available to absorb all the casual labourers to whom this Scheme is applicable, the casual labourers would be conferred a Temporary Status, as per the details given below. 5. Temporary Status: i. Temporary status would be conferred on all the casual labourers currently employed and who have rendered a continuous service of at least one year, out of which they must have been engaged on work for a period of 240 days (206 days in the case of offices observing five day week). Such casual labourers will be designated as Temporary Mazdoor. ii. Such conferment of temporary status would be without reference to the creation/availability of regular Gr.D posts. iii. Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on a need basis. He may be deployed anywhere within the recruitment unit/territorial circles on the basis of availability of work. iv. Such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Gr.D posts. 5. According to the said scheme, no casual labour engaged after 30- 3-1985 should be available for consideration for conferring temporary status. The 1989 Scheme was, however, extended through the order dated 17-12-1993. Under the said Scheme it was decided to bring all those Casual Mazdoors who were engaged by the Circles during the period from 31-3-1985 to 22-6-1988, who were still continuing for such works in the Circles where they were initially engaged, and who were not absent for the more than 365 days counting from the date of issue of the order dated 17-12-1993. Further, the cut off date for grant of temporary status to the casual labourers working as on 1-8-1998 was also prescribed through the order dated 14-8-1998. 6. On 16-9-1999 the Assistant Director General (STN), Ministry of Telecom Services, New Delhi (Lr.No.269-13/99-STN-IP) addressed a letter to all the Chief General Managers (CGMs) giving one time relaxation to part-time casual labourers working with 4 or more hours’ duty per day and who have worked for 240 days in the preceding 12 months for conversion into full time casual labourers. The letter dated 16-9-1999 reads as follows: I am directed to refer to this office letter No.269-10/89-STN dated 14-8-98 on the above mentioned subject. The matter has been examined in consultation with Telecom Finance and it has been decided as below: v. As a one-time relaxation, part time casual labourers with 4 or more hours of duty per day who have worked for 240 days in the preceding 12 months may be converted into full time casual labourers. This will be applicable only to the extent of the numbers indicated against respective field units in the Annexure. vi. They should be engaged as casual labourers subject to suitability. vii. They should be engaged as casual labourers only where there is shortage of Group D staff (i.e., existence of vacant Group D posts after accounting for all TSMs and existing full time casual labourers) and no posts should be created for the purpose. viii. In the event, there is no shortage in Group D at the station where the part time casual labourer is to be engaged to work as full time casual labourers, the part time casual labourers will not be converted into full time casual labourers. ix. Payment to the above casual labourers may be made as provided for under Rule 331 of P & T FHB Vol.1. Under no circumstances should they are paid through master roll. x. No part time casual labourers will be engaged hereafter and any violation will result in disciplinary action. xi. Orders will take effect from the date of issue. This issues with the concurrence of Telecom Finance vide their diary No.2409/99-FAI dated 8-9-99. 7. Subsequently, the Assistant Director General (STN), Department of Telecom Services, Hyderabad addressed a letter to all the concerned on 29-9-2000 and the same reads as follows: The employees unions are demanding regularization of all the casual labourers. This issue was under consideration for quite sometime. It has been decided to regularize all the casual labourers working in the Department, including those who have been granted temporary status, with effect from 01-10-2000 in the following order: 1. All casual labourers who have been granted temporary status up to the issuance of orders No.269-4/93-STN-II dated 12-2- 99, circulated vide letter No.269-13/99-STN-II dated 12-2-99 and further vide letter No.269-13/99-STN-II dated 9-6-2000. 2. All full time casual labourers as indicated in the Annexure 3. All part time casual labourers who were working for four or more hours per day and converted into full time casual labourers vide letter No.269-13/99-STN-II dated 16-9-1999. 4. All part time casual labourers who were working for less than four hours per day and were converted into full time casual labourers vide letter No.269-13/99-STN-II dated 25-8-2000. 5. All Ayahs and Supervisors converted into full time casual labourers as per order No.269-10/97-STN-II dated 29-9- 2000. The number of casual labourers to be regularized in categories (2) to (5) above is given in the Annexure enclosed. The figures given in the Annexure are based on information received from the circles. The casual labourers indicated from (1) to (5) above are to be adjusted against available vacancies of Regular Mazdoors. However, Chief General Managers are also authorized to create posts of Regular Mazdoors as per the prescribed norms, and to that extent, the prescribed ceiling for the circle will stand enhanced. As per this office letter No.269-4/93-STN-II dated 12-2-99, vide which temporary status was granted to casual labourers eligible on 1-8-98, no casual labourers were to be engaged after this date and all casual labourers not eligible for temporary status on 1-8-98 were to be disengaged forthwith. Therefore, there should be no casual labourers left without temporary status after 1-8-98 (other than those indicated in serial Nos. (2) to (5) above). However, if there is still any case of casual labourers left out due to any reasons that maybe referred to the Head Quarters separately. This issues with the concurrence of Telecom Finance vide their Diary No.3536/2000/FA-I dated 29-9-2000. 8. A letter dated 27-9-2002 addressed by the 4th respondent to the first respondent indicates that the details of full time and part-time casual labourers who were working under BSNL, Electrical Zone, Hyderabad were enclosed by mentioning that all those casual labourers were working in the unit prior to the issue of the ban order dated 12-2-1999. After the issue of the ban orders, the mode of payment to the above casual labourers were shifted from the department side to the contractor side i.e., the agency has been making payment to those workers presently to ensure proper and efficient continuity of the work and to safeguard the security of the offices. Those full time/part-time casual labourers were allowed to continue, but with the payment mode shifted to the contractor because of the ban orders dated 12-2-1999. The 4th respondent therefore requested the first respondent to examine the cases of those candidates and take up the matter with the authorities for regularizing their services. 9. In the said letter, the 4th respondent further mentioned that there sufficient number of vacancies in the Group-D are available to accommodate all those casual labourers. 10. The Central Administrative Tribunal through its order dated 24-3- 1004 in O.A.No.296 of 2003 considered the case of one K.A.Yasanullah and allowed the application directing the respondents to pass necessary orders in respect of the said person for confirmation of temporary status within a period of two months from the date of communication of the said order. 11. The petitioner in the said application was initially engaged as a daily wage casual labour from January 1988 till December 1998. He claimed that since he worked for 1265 days in the said period and completed more than 240 days as on 1-8-1988, he is eligible for confirmation of temporary status. 12. The Telecom Department conceded in the counter that the said applicant worked for 322 days in 1998 and from 8-4-1989 to 24-8-1989 he performed job work on contract basis and from 1-12-1999 onwards the job works were given to agencies on calling for quotations. The Central Administrative Tribunal allowed the O.A. on the basis of the material that the applicant worked for more than 240 days as on 1-8-1998. 13. In pursuance of the above Scheme, Circulars and letters, the Chief General Manager, Department of Telecommunications, Hyderabad in his letter No.EA/STB/20-2/CORR/2000/3 dated 29-9-2000 has called for the names of the persons who are working for more than four hours in the prescribed proforma from the General Managers of Telecom District, Hyderabad and other SSA Units. The concerned authorities submitted the required information relating to the respective zones. The third respondent granted approval of conversion of part-time casual labourers into full time casual labourers on different dates. But, the case of the petitioner was not considered, therefore, he submitted a representation on 1-11-2002 seeking grant of temporary status of a Group-D cadre after conversion as his case has already been forwarded and pending with the Corporation Office. Despite the above representation, the first respondent did not act upon it. Since the petitioner was discriminated, he approached the Central Administrative Tribunal by filing O.A.No.1527 of 2003 and the Tribunal through the judgment dated 5- 5-2003 directed the respondents-authorities to dispose of the representation of the petitioner pending with them within a period of two months. Even after the expiry of two months, the respondents have not responded, but on 5-1-2004 the second respondent informed that the matter is still pending with the Directorate and it would take some more time for taking a decision in the matter. Subsequently, the petitioner filed Contempt Petition No.53 of 2004, which was closed on 15-4-2004 giving liberty to the petitioner to file fresh O.A., if he so desires. 14. While so, the fifth respondent issued an order on 31-3-2004 informing that the competent authority has examined the representation of the petitioner and other records and found that he was working as a contract labour and hence his request cannot be considered for conversion as full time casual labourer. 15. In the mean while, the Full Bench of the Central Administrative Tribunal at Jaipur held that in view of the absence of the notification enabling the respondent Corporation to be brought under the jurisdiction of the Tribunal, the cases pertaining to Bharat Sanchar Nigam Limited (BSNL) are prohibited from entertaining. While the petitioner was continuing as casual labourer under BSNL, a communication was received mentioning that they are discontinued as part-time casual labour through contractor and the contract work was discontinued. She therefore filed the present writ petition seeking a writ of mandamus by declaring the action of the respondents in rejecting the claim for conversion into full time casual labourer and for the grant of temporary status and also to declare that the termination of her services by shifting to a contractor without any valid reason, notice or at least an order in writing, as arbitrary, discriminatory, illegal, unjust and unsustainable being violative of Articles 14, 16 and 21 of the Constitution of India and to set aside the same and consequently to direct the respondents to convert the petitioner into full time casual labourer and also to re-engage the petitioner along with consequential benefits. 16. The respondents are contending that in view of the continuation of the ban and shortage of staff including non-availability of regular Group-D staff from the territorial civil circle, the arrangement had to be continued in exigencies. The petitioner could not be continued from 11-10-1999 having regard to the policy of the department vide letter dated 12-2-1999 and modification dated 15-6-1999 to discontinue the engagement of casual labour, except for a period of 100 days. Accordingly, the respondents were constrained to discharge the petitioner from 11-10-1999 and entrust the job of sweeping to contractors on the basis of vacancies available from time to time. The continuance of the petitioner with the contractor and the termination thereafter was not within the knowledge of the respondents and no payments towards wages have been made by the respondents to the petitioner at any time after 10-10-1999. On the pretext that the respondents discontinued the engagement of the petitioner w.e.f. 11-10-1999 the respondents sent a communication to the petitioner on 15- 4-2004 in compliance of the direction given by the Central Administrative Tribunal in O.A.No.1527 of 2003 informing that there is no scope to consider the case of the petitioner for grant of temporary status, as she was disengaged as part-time casual labour from 11-10-1999 and as the petitioner worked as a contract labour under a contractor, there