THE HONOURABLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO:14534 OF 2007 DATED:19.04.2011 BETWEEN: P.SRINIVAS …PETITIONER AND THE SUPERINTENDENT ENGINEER, OPERATION CIRCLE, MEDAK DIST & ANOTHER …RESPONDENTS. WRIT PETITION NO:14536 OF 2007 BETWEEN: A.DURGA PRASAD …PETITIONER AND THE SUPERINTENDENT ENGINEER, OPERATION CIRCLE, MEDAK DIST & ANOTHER …RESPONDENTS. WRIT PETITION NO:9744 OF 2008 BETWEEN: P.SATYANARAYANA & ANOTHER …PETITIONERS AND THE SUPERINTENDENT ENGINEER, OPERATION CIRCLE, MEDAK DIST & ANOTHER …RESPONDENTS. THIS COURT MADE THE FOLLOWING: THE HONOURABLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO:14534 & 14536 OF 2007 & 9744 OF 2008 COMMON ORDER: The above writ petitions are filed by the respective petitioners seeking for a direction in the nature of writ of mandamus to declare the action of the respondents in issuing the proceedings Lr.No:SE/OP/MDK/PO/ADMN/D.No:1083/2006, dated 6.9.2006 and proceedings Lr.Nos:SE/OP/MDK/PO/ADMN/D.No:1089, 1082 & 1090/2006, dated 6.9.2006 by rejecting the case of the petitioners for appointment to the post of L.D.C/Typist as illegal and arbitrary and consequently, to direct the respondents to appoint them to the post of L.D.C/Typist as per B.P.Ms.No:36, dated 18.5.1997. The issue involved in all the writ petitions, is one and the same and as such, they are disposed of by a common order. The brief facts of the case of the petitioners in all the writ petitions, are as under: The petitioner in W.P.14534 of 2007 studied B.A and passed typewriting higher grade in English and Telugu and he worked as Contract Labour from 1.3.1997 to 31.10.2000 under Messrs Jyothi Electrical Enterprises, Hyderabad and the Contractor had an agreement with the respondent-company during the said period and the contract number is LSK 2 Agreements No.70, 1997-98 and the Contractor has issued Service Certificate to the petitioner and the same was counter signed by ADE/TRE/Sangareddy. The petitioner is fully eligible and qualified for being appointed as L.D.C under B.P.Ms.No:36, dated 18.5.1997. The petitioner in W.P.14536 of 2007 studied B.A and passed Typewriting Lower in English and he worked as Contract Labour from 7.5.1995 to 20.10.1999 under Messrs Harinarayana Elec.Contractor, Medak and the Contractor had an agreement with the respondent- Company during the said period and the contract number is LSK 2 Agreement Nos.06, 136, 96-97 and the Contractor issued the service certificate to the petitioner and the same was counter signed by ADE/OP/Medak. The petitioner is fully eligible and qualified for being appointed as L.D.C under B.P.Ms.No:36, dated 18.5.1997. The 1st petitioner in W.P.9744 of 2008 studied B.A and passed Typewriting Higher in English and he worked as Contract Labour from Jannuary 1996 to February, 1998 under Messrs Manjeera Electrical and Mechanical Engineering, Sangareddy under the Agreements Nos:LSK-2, 43, 44, 79, 200, 96 and 97 and the Contractor issued the service certificate to the him and the same was counter signed by AE/OP/Tech./Sangareddy. Similarly, the 2nd petitioner studied B.Sc and passed typewriting English and he worked as Contract Labour from Jannuary 1996 to February 2000 under S.S.Enterprises and the Contractor has issued Service Certificate to him and the same was counter signed by the Assistant Engineer. Both of them are fully eligible and qualified for being appointed as L.D.C under B.P.Ms.No:36, dated 18.5.1997. Pursuant to the notification issued by the 1st respondent in Daily News Paper, dated 20.4.2001 inviting applications from the eligible candidates for the posts of Sub Engineers, L.D.Cs and Typists, all the petitioners applied for the post and attended the interview and submitted their service certificates issued by the Contactor and countersigned by the Assistant Engineer. The 1st respondent rejected the case of the petitioners by his proceedings dated 21.11.2003 on the ground that the genuineness of the service certificate could not be established. Aggrieved by the rejection order, all the petitioners filed W.P.No:25554 of 2003 before this Court and the said writ petition was allowed by this Court on 12.8.2004 directing the respondents to verify the service certificates issued by the contractors and counter signed by the officials of the respondent-company with reference to the agreements and consider their case for appointment in accordance with B.P.Ms.No:36, dated 18.5.1997. Aggrieved by the same, the respondents filed W.A.977 of 2005 before this Court and this Court dismissed the said appeal confirming the orders passed in W.P.No:25554 of 2003. Pursuant to the orders passed in the writ petition as well as the writ appeal, the 1st respondent communicated a letter, dated 30.8.2005 to the petitioners to the effect that they have fulfilled all the conditions stipulated for considering their candidature in terms of B.P.Ms.No:36, dated 18.5.1997 and their names were kept in panel. The 1st respondent has addressed a letter dated 6..2006 to the Chief General Manager (HRD) A.P.C.P.D.C.L enclosing the individual case sheets and that the 1st respondent has thoroughly verified and examined the records of M.Book, Agreements and the individual Service Certificates and concluded that the petitioners are eligible for appointment. Since the order passed by this Court in W.P.25554 of 2003 has not been complied with, all the petitioners have filed a contempt case in C.C.No:1479 of 2004 and the said contempt case was closed on 21.8.2006 on the submission of the learned Standing Counsel that the Board of A.P TRANSCO has constituted a committee to examine the issue relating to filling up of 50% of vacancies in W.P.No:25554 of 2003, dated 12.8.2004. It is the further case of the petitioners that the reasons given in the impugned notice dated 6.9.2006 issued by the 1st respondent are false and not tenable and contrary to the letter dated 6.2.2005 wherein the 1st respondent specifically stated that the petitioners are fully eligible and qualified for being appointed under B.P.Ms.No:36, dated 18.5.1997 and in the said letter, similarly situated persons were appointed and therefore, the letter of the 1st respondent dated 6.9.2006 is liable to be set aside. Hence, the present writ petitions are filed. The respondents have filed the counter denying the allegations averred in the affidavit filed in support of the writ petitions and inter alia contending that vide letter No:SE/OP/MDK/PO/ADM/D.No:1884/2003, dated 21.11.2003 speaking order was issued to the petitioners stating that the genuineness regarding their services with the contractor could not be established due to lack of corroborating evidence and as such, their case was negatived for appointment. Subsequently, vide the order impugned dated 6.9.1996, a speaking order was issued to the petitioners for not considering their case on certain reasons. Though the petitioners are having the qualification for the post in question, the service certificates produced by them does not contain the agreements and the dates of check measurements. There was no evidence to prove that the petitioners were covered under E.P.F and E.S.I Act and that itself shows that they were not engaged by the contractors. Therefore, the writ petitions are liable to be dismissed with costs. On the rival contentions, the point that arises for consideration is as to whether the impugned letter dated 6.9.2006 is sustainable under law or not? Before going into the merits of the case, it is to be noted that the following facts that remain undisputed are: 1.The petitioners are admittedly contract labours. 2.Pursuant to the notification issued by the 1st respondent in Daily News Paper dated 20.4.2001, the cases of the petitioners were initially rejected by proceedings dated 21.11.2003 on the ground that the genuineness of the service certificates furnished by them could not be established. 3.Aggrieved by the order of the 1st respondent dated 21.11.2003, the petitioners filed W.P.25554 of 2003 and while setting aside the order of the 1st respondent dated 21.11.2003, the writ petition was allowed on 12.8.2004 with the following order: “Having regard to the facts and circumstances of the case, the impugned proceedings dated 21.11.2003 are set aside. The writ petition is allowed directing the respondents to very the service certificates issued by the contractors and counter signed by the officials of the company with reference to the agreements, under which contract labour are engaged as on 18.5.1997 and consider the cases of the petitioners for appointment in accordance with B.P.Ms.No:36, dated 18.5.1997 and pass appropriate orders in accordance with law within a period of two (2) months from the date of receipt of a copy of the order.” At this stage, it is also relevant to go through the observations made by this Court in W.P.No:25554 of 2003, for the purpose of adjudicating the issue involved in these writ petitions affectively, which read as under: “It is stated that petitioners-1 to 7 and 9 are qualified and entitled to be considered for absorption in the post of L.D.C and 8th petitioner is entitled for absorption in the post of Sub Engineer and 10th petitioner as Typist. All the petitioners have filed service certificates issued by the respective contractors and countersigned by the officials of the respondent-company. It is also stated that the relevant works which were awarded to their contractors were also mentioned in the service certificates. When the petitioners filed their applications for their absorption, their cases have been rejected by different proceedings dated 21.11.2003 issued by the 2nd respondent on the ground that during the verification of the certificates by the Vigilance Cell, the genuineness of the service certificates furnished by them along with the applications could not be established due to lack of corroborating evidence. Similar rejection orders made by the 2nd respondent were considered by this Court in W.P.No:17163 of 2002 and batch disposed of on 24.12.2002 in which I have taken a view that the said opinion of the Vigilance Cell of the respondent- company is without any foundation. I have also taken a view that merely because the contractors have not produced the Attendance Registers, Pay Rolls, G.P.F Rolls etc., the contract labourers working under the contractors cannot be deprived of their right to be considered for absorption as per B.P.M.S.No:36, dated 18.5.1997. I have also observed that it is for the respondents to verify the certificates produced by the petitioners with reference to the agreements under which the contract labour were engaged by the contractors for the works awarded by the respondent company. Therefore, the action of the respondents in rejecting the cases of the petitioners based on the report of the Vigilance Cell of the Company that due to lack of corroborative evidence, the service certificates cannot be treated as genuine, is illegal and unwarranted. Similar proceedings dated 21.11.2002 was also questioned in W.P.No:4785 of 2003. While disposing of the said writ petition on 20.8.2003, the proceedings dated 21.11.2002 was set aside and the respondents were directed to consider the cases of the petitioners therein for absorption in suitable post without reference to the objections raised in the said proceedings.” The observations in the above order makes it clear that the objections raised by the respondent company have been considered and held to be illegal in the earlier round of first litigation in W.P.No:17163 of 2002 and batch disposed of on 24.12.2002, second round of litigation in W.P.No:4785 of 2003, dated 20.8.2003 and the third round of litigation in W.P.No:25554 of 2003, dated 12.8.2004. At this stage, it is to be noted that the cases of the petitioners herein were rejected on the same grounds that have been considered in the earlier round of litigation and held to be illegal and have become final in the writ appeal filed by the respondent company due to its dismissal. It is relevant to go through the order impugned in the writ petitions wherein the cases of the petitioners were rejected on the following ground: “A committee was constituted which consist of 4 C.G.M (HRD) from 4 Discoms as members presided over by Additional Secretary, A.P. Transco in the process of thorough and meticulous examination the entire record pertaining to you such as agreements, M.Books, Service Certificates and Registers and other relevant documents and your case has been considered as follows: 1.The service certificate produced by you does not contain the agreements numbers and dates of check measurements under which you alleged to have worked which is a must as per A.P.Transco. In accordance with Board’s Memo No:Addl.Secy/DGM/AS (IR)/PO II/A1/1170/99, dated 3.12.1999. 2.On our verification it is revealed that the following agreements were entered by the then A.P.S.E.B with the contractor viz. Jyothi Electrical Enterprises Hyderabad who issued the Service Certificate to you: a.LS P-7-/97-98 dated 12.11.1997 (Value 500,000) works started from 26.6.1997. 3.The agreement entered for the year 1996-97 by your contractor with us is entered after the cut off date i.e., 18.5.1997. 4.As per M.Book T-70/97-98 agreement works started in October 1997 (03-10-97) 5.There is no evidence to prove that you were covered under E.P.F and E.S.I Act which indicates that you were not engaged by the Contractor under whom you alleged to have worked. 6.This clearly indicates that you are not on rolls as on 18.5.1997. In view of the above reasons it is provisionally concluded your case for appointment as L.D.C/Typist under B.P.Ms.No:36, dated 18.5.1997 cannot be considered. However, if you have any evidence to show and prove that you have worked on 18.5.1997 and eligible otherwise in terms and conditions and guidelines of B.P.Ms.No:36, you are requested to put forth the same before us for examination and to take a decision basing on the material evidence within 15 days from the date of receipt of this letter. No production of material evidence within the stipulated time i.e., 15 days from the date of receipt of this letter will be treated as if you have no evidence to prove your case and your candidature will be considered on its own merits and appropriate decision/orders will be passed.” Though the different proceedings have been issued to all the petitioners, the objections that have been raised in all the proceedings, are one and the same. It is submitted by the learned counsel for the petitioners that subsequent to the filing of these writ petitions, the cases of other persons have been considered and they are now under the employment. But, for the reasons best known to the respondents, the case of these petitioners have alone been rejected under the impugned proceedings. On the other hand, while reiterating the contentions that have been raised in the counter, it is submitted by the learned standing counsel for the respondents that on verification of the records available with the respondents, the petitioners are not found on the rolls of employment under the contractor as on the prescribed date and therefore, their cases have not been considered. When the objections that have been raised in the impugned proceedings have already been considered in the earlier round of three litigations and they have also become final, it is not open for the respondents to raise the same objections in the impugned proceedings. Apart from that, the said action of the respondents amounts to arbitrariness and illegality. At this stage, the learned counsel for the petitioners also brought to the notice of this Court, a copy of the letter addressed by the Superintendent Engineer to the Chief General Manager, dated 6.2.2006 which reads as under: “Adverting to the references cited, it is to submit that the individuals case sheets of contract labours eligible under 50% vacancies as per B.P.Ms.No:36, dated 18.5.1997 is submitting in the prescribed proformas for favour of further necessary action please” The said letter has not been disputed by the learned Standing counsel for the respondents. In these circumstances and in view of the fact that the objections that have been raised in the impugned proceedings have already been considered in the earlier round of three litigations and they have also become final, the impugned proceedings are liable to be set aside. Accordingly, all the writ petitions are allowed setting aside the orders impugned in each writ petition and directing the respondents to reconsider the cases of the petitioners and pass appropriate orders within a period of two (2) months from the date of receipt of a copy of this order. No order as to costs. _________________ Justice G.Chandraiah. Date:19.04.2011 Note: CC in two Weeks (BO) Gurc. THE HONOURABLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO:14534 & 14536 OF 2007 & 9744 OF 2008 DATED:19.04.2011