IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF DECEMBER, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.18231 of 1996 and 4629 of 2004 WRIT PETITION Nos.18231 of 1996: Between: V.Venkataramana and three others. … Petitioners And The APSRTC, reptd., by its Vice Chairman and Managing Director, Musheerbad, Hyderabad and three others. … Respondents WRIT PETITION Nos.4629 of 2004 Between: V.Venkataramana and three others. … Petitioners And The APSRTC, reptd., by its Vice Chairman and Managing Director, Musheerbad, Hyderabad and three others. … Respondents Counsel for the petitioners : Sri M.Ganga Rao (Both the Writ Petitions) Counsel for respondents : Smt.W.V.S.Rajeswari. (Both the Writ Petitions) This Court made the following: COMMON ORDER:- The petitioners in both these Writ Petitions are common. Writ Petition No.18231of 1996 was filed for a Writ of Mandamus to direct the respondents to regularize the services of the petitioners as man mazdoors in respondent No.1-Andhra Pradesh State Road Transport Corporation (for short “the Corporation”) from the dates of their initial appointment and pay salaries on par with other regular employees. Writ Petition No.4629 of 2004 was filed against order dated 8-3-2004 passed by respondent No.2, whereby he withdrew order dated 20-5-1997 granting pay scales to the petitioners. Heard Sri M.Ganga Rao, learned counsel for the petitioners, and Smt.W.V.S.Rajeswari, learned standing counsel 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 that though they have been engaged for a long time from the year 1988, their services are not being regularized and regular pay scales are not being paid to them. In the counter-affidavit filed on behalf of the respondents, it is, inter alia, stated that the petitioners are engaged as NMRs through contractor in Civil Engineering Sub-Division and that they are being paid daily wages as per the rates approved by the Chief Civil Engineer-I, Hyderabad. They have given the following particulars regarding the engagement of each of the petitioners and the payments being made to them: “ 1.V.Venkataramana: He was engaged as NMR through contractor, Tirupathi Civil Engineering Department sub-Division on 7-8-92 and he was paid wages @ Rs.36/- per day. 2. S.A.Mastan: He was engaged on hand receipt basis from 1-7-88 to 31-8-88 and later disengaged. Again reengaged through contractor from 10-7-92 and he was paid the wages @ Rs.36/- per day. 3. P.Dasarathadu: He was engaged as NMR through Contractor in Tirupathi Civil Engineering Sub-Division on 7-8-92 and he was paid Rs.36/- per day. 4. P.V.Ramana Rao: He was engaged as NMR through contractor in Tirupathi Civil Engineering Sub-Division on 7-8-92 and he was paid Rs.30/- per day”. It is further averred that the NMRs are being engaged on daily wage basis by the contractors to assist the site engineers during execution of civil and electrical works since no permanent man mazdoors are provided by the Corporation to Tirupati Civil Engineering Division; and that as there were large number of persons working as man 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 initially engaged by APSRTC prior to 20-12-89 and worked for a minimum period of 60 days in the Corporation and continuously engaged by the contractor and those completed more than 240 days as on 22-8-91 and continued as on the date of interviews. ii) The candidates who were engaged initially by the 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 SSC qualification for the post of conductors and those who passed VIII Class also be considered on merits of each case. v) Relaxation is given for height and age. vi) Candidates shall be identified and proposals would be submitted to Head Office for approval by the competent authority”. It is further averred that as petitioners 1, 3 and 4 were not initially engaged by the Corporation on hand receipt basis and they were engaged through contractors, they were not called for interviews held on 18-9-1993 for absorption in the posts of conductors and drivers; and that as petitioner No.2 was initially engaged by the Corporation on hand receipt basis, his name was recommended by the selection committee on 18-9- 1993, but later the review selection committee rejected the candidature of petitioner No.2 on 10-9-1996 as he was disengaged prior to 1-4-1989 and thereby he failed to fulfill the conditions for absorption. As regards the regular time scale, it is stated that the petitioners are working under the control of the supervisor of the contractor; that they are not the employees of the Corporation; and that, therefore, they are not entitled for payment of salaries on par with the Corporation’s regular employees. It is further stated that the Corporation will examine the feasibility for absorption of the petitioners into its service subject to availability of vacancies. Writ Petition No.4629 of 2004 arose out of the order withdrawing the pay scales to the petitioners, which were earlier granted to them in pursuance of the interim order granted in Writ Petition No.18231 of 1996. In the impugned order it is stated that certain man mazdoors, who were seniors to the petitioners filed Writ Petition No.5156 of 2001 in this Court for regularization of their services and that in the said Writ Petition they have raised a contention that the Corporation is paying regular pay scales to the petitioners, who are far juniors to them, and that this Court has pointed out the said anomaly at the hearing of the said Writ Petition. It is further stated that the office of Regional Manager, Tirupati, committed an error by issuing appointment order to the petitioners herein though they were juniors to the other NMRs working in the Civil Engineering Department, Tirupati; that there was ban on recruitment to the posts other than drivers, conductors and sramiks; and that the very orders of appointment issued to the petitioners were contrary to the circular instructions and the principle of seniority. It is further stated that granting of time scale to the petitioners, who are juniors to the petitioners in the other Writ Petition, overlooking their case, cannot be sustained and accordingly the earlier order dated 20-5- 1997 was rescinded. Sri M.Ganga Rao, learned counsel for the petitioners, strenuously contended that though the petitioners have been working as man mazdoors for a number of years, the Corporation is not regularizing their services. Smt.W.V.S.Rajeswari, learned standing counsel for the Corporation, opposed this contention and submitted that the petitioners have been working under the contractor and that as the post of man mazdoor is not borne on the cadre of the Corporation, the question of their regularization does not arise. She also pointed out that in the selections made during the year 1993, petitioner No.2 was considered as he was engaged initially by the Corporation on hand receipt basis, while petitioners 1, 3 and 4 were never engaged by the Corporation directly. As regards the pay scales, she submitted that as granting of pay scales in pursuance of the interim order of this Court, overlooking the petitioners’ seniors, was illegal, the same was withdrawn and that the said order does not suffer from any illegality. As regards the prayer for regularization, the petitioners have not shown any rule or regulation applicable to the Corporation under which the petitioners are entitled for regularization or absorption in the Corporation. The Corporation, as evident from the counter-affidavit, considered on one time basis the man mazdoors who fulfilled the conditions stipulated in its circular reproduced hereinbefore and appointed them as drivers and conductors. The Corporation has come out with reasons, which are not controverted by the petitioners for not absorbing them into the service of the Corporation 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 stand of the Corporation is that as and when there is work, they are being engaged by the contractors in the Civil Engineering Department. Irrespective of whether the petitioners are engaged by the contractors or by the Corporation, it hardly makes any difference so long as the post is not borne on the cadre. At any rate, as held by the Constitution Bench of the Supreme Court in State of Karnataka Vs. Umadevi1) and reiterated by a three Judge Bench in Official Liquidator Vs. Dayanand and others2) that a daily wage worker or a temporary employee has no legal right to claim absorption unless the employer frames a scheme for such an absorption or regularization. Though the learned counsel for the petitioners stated that persons who are similarly placed as the petitioners were regularized or absorbed, no details have been furnished by the petitioners in support of this contention. Therefore, I do not find any merit in the plea of the petitioners that by the mere fact of their long standing as man mazdoors, they are entitled for absorption or regularization. With regard to grant of pay scales, though the Corporation had cancelled the earlier order granting pay scales to the petitioners on the ground that the said scales were given overlooking the fact that their seniors were not given the pay scales, in my view the petitioners cannot insist on payment of pay scales because of the reason that the category of man mazdoor is not borne on the cadre and does not carry pay scale. At the most the petitioners are entitled to the wages as fixed by the Corporation, which can be either higher than or at the minimum wages payable under the Minimum Wages Act, 1948 and other relevant statutory enactments. For the above-mentioned reasons, I do not find any merit in both these Writ Petitions. Hence, they are dismissed. ____________________________ C.V.NAGARJUNA REDDY, J Date:24.11.2008 MNR 1) (2006) 4 SCC 1 2) (2008) 10 SCC 1