* THE HON’BLE MR. JUSTICE B. PRAKASH RAO AND * THE HON’BLE MR. JUSTICE R. KANTHA RAO + WRIT APPEAL NO. 2123 OF 2003 % Dated 20.10.2008 # Visakhapatnam Port Trust, Port Area, Visakhapatnam, rep., by its Secretary and three others. ….Appellants/ Respondents). Vs. $ Sanapala Govindu, S/o Appala Narasayya, aged about 30 years, Occ: Khalasi Mazdoor, r/o Madhvadara, D. No. 39-19-7 (New) 39-19-54, Industrial Estate, Visakhapatnam-7 and sixteen others. …. Respondent/petitioners) ! Counsel for the Appellants: Mr. K. Srinivasa Murthy ^ Counsel for the Respondent: Mr. Krishna Rao Modhalavalasa and Mr. Abhinand Kumar Shavili. <GIST: > HEAD NOTE: ? Cases referred [1] (2006)1 SCC 44 2 (2006) 4 SCC 1 3 2008(6) Supreme 158 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTIETH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.PRAKASH RAO and THE HON'BLE MR JUSTICE R. KANTHA RAO WRIT APPEAL NO : 2123 of 2003 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 14/10/2003 in WP NO : 5016 OF 1999 on the file of the High Court.) Between: 1 Visakhapatnam Port Trust, Port Area, Visakhapatnam, rep by its Secretary. 2 The Chairman, Visakhapatnam Port Trust, Port Area, Visakhapatnam 3 The Labour Officer (Personnel Dept.) Visakhapatnam Port Trust, Port Area, Visakhapatnam 4 The Chief Engineer (Peersonnel Dept.) Visakhapatnam Port Trust, Port Area, Visakhapatnam. ..... APPELLANT(S) AND 1 Sanapala Govindu, S/o. Appala Narasayya R/o. Madhvadara, D.No. 39-19-7 (New) 39-19-54, Industrial Estate, Visakhapatnam -7. 2 P. Mutyalayya, S/o. Appayya R/o. Gollapalem Village, Sabbavaram (M), Visakhapatnam. 3 Ch. Lakshmamma, D/o. Ch.Ravana D.NO. 16-13-21, Kothajalaripeta, Visakhapatnam. 4 R. Satyavathi, W/o. Surya Rao C/o. Pentaiah, Gopalapatnam, Near Post Office, D.No. 2-131, Srinivasanagar, Visakhapatnam. 5 Y. Polamma, W/o. Appa Rao C/o. Panchadarla Seethamma, D.No. 25-38-2, Ganugalaveedhi, Visakhapatnam. 6 A. Babu Rao, S/o. Appala Swamy D.No. 20-99-681, Jabber Thota, Changalaraopeta Post, Visakhapatnam. 7 G. Ramana, S/o. Appanna Mogalipuram, Mallunaidupalem Post, Sabbavaram Mandal, Visakhapatnam. 8 A. Valasaiah, Harbour Park IOW Office (Opposite), Siripuram, Visakhapatnam. 9 P. Atchanna, S/o. P. Yellayya Netaji Nagar, H.NO. 32-9-55, 11th Ward, Visakhapatnam. 10 K. Srinivasa Rao, S/o. Pyditalli D.NO. 35-36-62/2, Kalluvari Street, Gava Kancharapalem, Visakhapatnam. 11 K. Srinivas, S/o. Appalaswamy Gollalapalem, Sabbavaram Mandal, Visakhapatnam. 12 G.V. Prasad, S/o. Late Koteswara Rao D.No.39-23-22 Plot No. 12, Vamsi Nagar, Madhadeva, Visakhapatnam. 13 P. Mohan Rao, S/o. Danaiah C/o. Rafic Ahmed, Marine Dept. Visakhapatnam. 14 T. Venkata Rao, S/o. Suryanarayana C/o. T. Appa Rao, Mindi Village, Visakhapatnam. 15 R. Satti Babu, S/o. Late Latchanna D.No. 57-27-100, Block No. 47, Burma Colony, Siddartha Nagar, LTL Road, Visakhapatnam. 16 KDC Mudu, S/o. Rama Swamy Pedanaidu Palem Village, Sabbavaram Mandal, Visakhapatnam. 17 M. Ramanna, S/o. Ramulu Jodugallapalem, Sabbavaram Mandal, Visakhapatnam. .....RESPONDENT(S) Counsel for the Appellant:MR.K.SRINIVASA MURTHY Counsel for the Respondent No.: MR.KRISHNA RAO MODHALAVALASA The Court made the following : THE HON’BLE MR JUSTICE B. PRAKASH RAO AND THE HON’BLE MR JUSTICE R. KANTHA RAO WRIT APPEAL NO. 2123 OF 2003 JUDGMENT: (Per Hon’ble Sri Justice R.Kantha Rao,J) This writ appeal is directed against the order dated 14.10.2003 passed in writ petition No. 5016 of 1999. 2. The respondents ﬁled the writ petition against the appellants seeking issuance of a writ of mandamus to declare the action of the appellants in not regularizing their services as Watchman-cum-Mali and Guardener on compassionate grounds in Visakhapatnam Port Trust as arbitrary, illegal and violative of Articles 14 and 16 of Constitution of India and to declare that they are entitled to be appointed as Watchman- cum-Mali and Guardener on compassionate grounds. 3. The learned single judge allowed the writ petition and issued a direction in the nature of mandamus to the appellants to consider the case of the petitioners and to take appropriate steps to regularize the services of the petitioners on compassionate grounds and further ordered that till such time the existing arrangement shall be continued. Feeling aggrieved, the Visakhapatnam Port Trust and others, the appellants herein preferred this appeal. 4. The brief facts giving rise to ﬁling of the present writ appeal may be stated as follows: According to the respondents, they were initially appointed by Visakhapatnam Port Trust as casual labour for planting trees and their maintenance. Initially they were paid an amount of Rs.20.30 ps on daily wage basis and subsequently the wages were enhanced to Rs.53.30 ps per day. Some of the respondents were appointed as Watchman and some of them were appointed as Gardener-cum-Mali. Their services are being extended every year from time to time. It is their version that all of them were appointed on compassionate grounds but the Visakhapatnam Port Trust is continuing them on daily wage basis without appointing them on regular basis on compassionate grounds and they have been working continuously for more than ﬁve to eight years. Their grievance is that the appellants cannot exploit their services by ﬁxing unilateral service conditions. All of them are said to be qualiﬁed and eligible to be appointed as Watchman-cum-Mali or Guardener on regular basis. It is submitted by them that under the apprehension that they may lose their jobs at any point of time they invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. 5. On the other hand, it is the contention of the appellants that the respondents were engaged as contract labour in connection with maintenance of plantation works under Pollution Control Scheme and keeping in view of the work requirement, the contract period was renewed from year to year and later on the conditions of the said employment were reduced into writing year-wise by means of a separate agreement. It is further contended that even according to the respondents they were appointed as casual labour in Visakhapatnam Port Trust for planting trees and for other maintenance works, but the said fact is also not correct since they were purely engaged on contract basis initially for a period of one year only. Nextly it has been contended that the appointment of the respondents is not continuous in nature and it is being extended from time to time basing on the requirement of work after obtaining the approval of the competent authority and as such they are not entitled to be considered for regular employment. The respondents are neither eligible nor qualiﬁed to be appointed on regular basis or on compassionate grounds. They do not have any vested right to claim their employment in Visakhapatnam Port Trust and therefore they cannot invoke writ jurisdiction. Further it is submitted that since the respondents have an alternative and eﬃcacious remedy under the Industrial Disputes Act, the writ petition filed by them itself is not maintainable. 6. Since the respondents themselves admitted in their writ petition that they were initially employed as casual labour on daily wage basis, their alternative plea that their initial appointment was on compassionate grounds has no force. The very fact that the main relief sought for by them in the writ petition is to regularise their services or to appoint them on compassionate grounds itself indicates that they were not initially appointed on compassionate grounds. 7. May be the respondents are appointed as casual labour initially as contended by them or contract labour as contended by the appellants, the short question falls for determination in this writ appeal is whether a writ in the nature of mandamus can be issued directing the appellants to regularize the services of the respondents or to appoint them on compassionate grounds permanently. 8. I n Secretary, State of Karnataka Vs. Umadevi (2)[1] the question relating to absorption, regularisation, or permanent continuance of temporary, contractual, casual, daily wage or adhoc employees appointed/recruited and continued for long in public employment dehors the constitutional scheme of public employment fell for consideration before a three judge bench of the Supreme Court. The three judge bench having noticed conﬂicting opinions on the aspect between the three judge bench decisions rendered by the Supreme Court in certain cases arrived at the opinion that the cases are required to be heard by a constitution bench of ﬁve learned judges and accordingly passed an order to place the matters before the Hon’ble the Chief Justice of Supreme Court who in turn referred the matters to the constitution bench of ﬁve judges of the Supreme Court for its decision. 9. I n Secretary, State of Karnataka Vs. Umadevi (3)[2] the Constitution Bench of the Supreme Court while answering the reference upon thoroughly examining the contentious issues held as follows: “The Supreme Court and High Courts should not issue directions relating to absorption, regularization or permanent continuation of temporary contractual labour or daily wage or adhoc employees continued for long in public employment dehors the constitutional scheme of public employment, unless the recruitment itself was made regularly and in terms of the constitutional scheme. The vide powers under Article 226 of Constitution of India were not intended to be used for issuance of such directions, certain to defeat the concept of social justice, equal opportunity for all and the constitutional scheme of public employment. It is erroneous for the Supreme Court to merely consider equity for the handful of people who have approached the Court with a claim, whilst ignoring equity for the teeming millions seeking employment and fair opportunity for competing for employment.” “On a survey of judgments of the Supreme Court on the point, the predominant view is seen to be that appointment made without following the due process or the rules for appointment did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent. Those decisions which run-counter to the principles settled in this decision or in which directions running counter to what has been held herein have been given, will stand denuded of their status as precedents.” 10. Further recently in General Manager, State Bank of India Vs. Smt. Anju Jain[3] the Supreme Court explained the concept of compassionate appointment in the following words: “Appointment on compassionate ground is never considered a right of a person, rather such appointment is violative of rule of equality enshrined and guaranteed under Article 14 of the Constitution of India. Primary object of the scheme of compassionate appointment is to save the bereaved family from sudden ﬁnancial crises occurring due to death of a sole bread-earner. It is, thus, an exception to the general rule of equality and not another independent and parallel source of employment.” “As per settled law, a writ of mandamus can be issued directing the authority to consider the case of the petitioner for appointment or promotion as the case may be but no direction can be given to appoint or promote a person.” 11. Turning to the facts of the case on hand, the respondents herein have been contending that the appellants shall appoint them regularly on compassionate grounds. In the counter-aﬃdavit ﬁled by the Head Assistant, Engineering Department, Visakhapatnam Port Trust on behalf of the ﬁrst appellant Visakhapatnam Port Trust, it is clearly stated therein that seven individuals mentioned in the aﬃdavit ﬁled by the appellant are the children of the employees of the Port Trust who were expired/retired on medial grounds and their names have been registered in the master list for providing employment on compassionate grounds as and when their turn comes as pool Khalasis placed under the monthly remuneration initially and there from regular employment according to seniority cum ﬁtness basis as per the recruitment rules prescribed by the Port Trust. 12. From this, it is obvious that the ﬁrst appellant Visakhapatnam Port Trust laid down certain rules for providing appointment on compassionate grounds. The appellants assert that they provide appointment in accordance with the rules framed by the Visakhapatnam Port Trust and a master list is being maintained in that behalf. Thus, there is some criteria prescribed by the Visakhapatnam Port Trust for providing employment on compassionate grounds. In view of Smt. Anju Jain3 referred supra, the respondents cannot claim compassionate appointment as a matter of right. However, the procedure adopted by Visakhapatnam port Trust in providing employment on compassionate grounds does not appear to be arbitrary or without any rules. When once the Visakhapatnam Port Trust prescribed certain criteria for making appointment on compassionate grounds, the individual to be appointed as such has to satisfy the said criteria. The children of all the deceased employees cannot as a matter of right, claim to be appointed regularly on compassionate grounds. 13. In view of decisions of the Supreme Court aforementioned, it is not possible to direct the appellants to regularise services of the respondents or to recruit them on compassionate grounds. The apex Court has clearly laid down that the High Court while exercising jurisdiction under Article 226 of the Constitution of India cannot issue such direction or mandatory order since it oﬀends the fair opportunity of numerous individuals competing public employment. 14. Keeping in view the law laid down by the constitution bench of the Supreme Court in Umadevi2, the ﬁnding of the learned single judge in so far directing the appellants to take appropriate steps to regularize the service of the respondents ought to be set aside and accordingly the same is set aside in this appeal. 15. However taking into consideration the admission made in the counter-aﬃdavit ﬁled on behalf of the ﬁrst appellant to the eﬀect that a master list is being maintained in the matter of providing employment on compassionate grounds and certain rules have been prescribed therefor, we do hereby direct the appellants to consider the cases of all or any of the respondents for compassionate appointment in the event when their turn comes and on their satisfying the eligibility criteria prescribed by the ﬁrst appellant Visakhapatnam Port Trust. 16. With the above modiﬁcation in the order passed by the learned single Judge, the appeal is allowed. ____________________ B. PRAKASH RAO, J ___________________ R. KANTHA RAO, J Date: .10.2008 Note: L.R. copy to be marked. B/o MRKR To 1. 2.2 CD copies Form-NIC-OGS/WA { } [1] (2006)1 SCC 44 [2] (2006) 4 SCC 1 [3] 2008(6) Supreme 158