Aravind Kumar, J. - In these appeals, primarily order dated 22.04.2016 passed by the learned Single Judge in W.P.Nos.107380-107497/2015 and connected matters are under challenge by both writ petitioners as well as respondent KPTCL-HESCOM.

2. Respondents in WA No.100404- 100521/2017 were writ petitioners in WP Nos.107380- 107497/2015 who inter-alia contended they are working in Karnataka Power Transmission Corporation Limited (hereinafter referred to as KPTCL for short) since long number of years, having been appointed from 1999 onwards. It was also contended that BESCOM, GESCOM, MESCOM, HESCOM, CHESCOM are various Corporations constituted by KPTCL for supply and generation of electricity and by publication of notification dated 12.06.2015 (Annexure-A) applications were called for appointment to the posts of Junior Lineman. It was further contended that representations submitted to KPTCL for regularization of petitioners services have not been considered and they having been employed in the Corporations and working since long number of years are to be regularized.

3. Learned Single Judge after considering rival contentions by order dated 22.04.2016 disposed of writ petitions on the ground that grievance made in writ petitions are similar to grievance or grounds urged in WP Nos.101732-101938/2015 disposed of on 15.03.2016 and other batch of writ petitions and accordingly, disposed of said writ petitions.

4. Wa Nos.1175-1255/2016 have been filed by petitioners in WP No.107025-107105/2015 which came to be disposed of in terms of order dated 15.03.2016 passed in WP Nos. 101732-101938/2015 contending inter-alia refusal of their prayer to regularize their services till a scheme is formulated is erroneous and writ petitioners are under serious threat of being terminated by KPTCL amongst other grounds.

5. In WA No.100359-100565/2016, appellants who were petitioners in WP No.101732-938/2015 have challenged the order dated 15.03.2016 passed in said writ petitions by urging similar grounds as urged in WA Nos.1175-1255/2016 and connected matters.

6. Whereas WA Nos.100566-611/2016 have been preferred by petitioners in WP Nos.59097- 142/2015 challenging order dated 15.03.2016 passed in said writ petitions urging same grounds as urged in Writ Appeal Nos.1175-1255/2016.

7. Whereas WA Nos.101190/2016 and 101202- 101407/2016 have been preferred by respondents 3 and 5 in WP Nos.101732-938/2015 being aggrieved by order dated 15.03.2016 urging grounds similar to that of the grounds urged in WA No.100404-100521/2017.

8. In all these appeals, common questions, identical facts have been pleaded and so also grounds urged by respective parties in support of their contentions. Hence, these writ appeals are taken up together for consideration and disposed of by this common judgment.

BRIEF BACKGROUND

9. Foundational facts which has lead to filing of these writ appeals can be crystallized as under:

10. Writ petitioners in the respective writ petitions sought for abolition of contract labour; to regularize their services by extending all consequential benefits and also to consider their representations in terms of order passed in WP Nos.27826-97/2001 dated 28.02.2002, order passed in WA No.6084, 6291 and 6361/2002 dated 12.04.2005 and order passed in WP No.35681-35921/2003 dated 12.04.2004 (produced at Annexures-J, J1 and J2 respectively in WP Nos.107025- 107105/2015) contending inter-alia that they were employed in Master Unit Sub-Station (MUSS) and they have been discharging duties as Shift Junior Engineer, Assistant Engineer, Shift Operators or Shift Helpers and had put-in services ranging from 2 years to 14 years and as such they are to be regularized.

11. On issuance of notice, KPTCL appeared and filed its statement of objections in WP Nos. 101732- 101938/2015 contending inter-alia that there is no employee and employer relationship between writ petitioners and KPTCL - HESCOM and contract was between KPTCL and Agencies which provide man power and as such petitioners are not entitled to seek any relief. It was also contended that regularization of petitioners would not arise by virtue of Contract Labour Act having been abolished in view of fact that KPTCL is bound by its Recruitment Rules namely KEB (Recruitment and Promotion) Regulations (for short, hereinafter referred to as Regulations) and by virtue of Section 10 of the Contract Labour Abolition Act 1970 and as such sought for dismissal of the writ petitions.

12. Learned Single Judge after considering the arguments advanced by learned advocates appearing for the parties by order dated 15.03.2016 passed in WP Nos.101732-101938/2015 rejected the claim of petitioners for regularization or absorption in the light of the authoritative pronouncement of the Honble Apex Court in the case of Secretary, State of Karnataka Vs. Umadevi, (2006) 4 SCC 1 [LQ/SC/2006/324] .

13. Learned Single Judge in W.P.Nos.101732- 938/2015 has issued three directions. Being aggrieved by directions (ii) and (iii), KPTCL-HESCOM is in appeal before this Court. Hence, it would be apt and appropriate to extract the directions so issued by the learned Single Judge and it reads:

(i) XXX XXX

(ii) The respondent-Corporation is directed to formulate a scheme providing relaxation in age with regard to the petitioners and provide them an opportunity in terms of the said Scheme and the Rules regulating recruitment to the posts in question to apply and participate in the process of selection and recruitment;

(iii) The Scheme to be framed regarding age relaxation shall take into account the length of service rendered by the petitioners in different posts for which they may be eligible to apply.

(iv) A direction is issued to the State Government to consider the representation of Helpers for abolition of contract labour as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this order.

14. We have heard the arguments addressed on behalf of writ petitioners led by Sri. Vivek Holla assisted by Sri. Aravind D Kulkarni, Sri. Santosh S Gogi for writ petitioners, Sri. B.S. Kamate, learned counsel appearing for KPTCL - HESCOM and Smt. Veena Hegde, learned Additional Government Advocate appearing on behalf of State.

15. It is the contention of Sri. Vivek Holla, learned counsel appearing for writ petitioners that writ petitioners have been working in KPTCL - HESCOM in various posts ranging from 2 years to 14 years and as such their services ought to have been regularized by considering representations submitted by them favourably and non-consideration of their prayer for regularization posed a threat in writ petitioners being removed from services, particularly in the background of impugned notification having been issued calling for application to the posts as more specifically stated thereunder for filling up of posts to the prejudicial interest of petitioners. He would also contend that by formulation of Scheme as ordered by learned Single Judge would not in any manner harm the interest of KPTCL - HESCOM and nowhere the extant regulations governing appointments indicate that formation of such scheme is prohibited. Hence, he prays for allowing the writ petitions as prayed for by modifying the order of learned Single Judge dated 15.03.2016 or alternatively to dismiss the writ appeal filed by the KPTCL. In support of his submission he has relied upon the judgment of the Honble Apex Court in the matter of State of U.P. and others vs. Anand Kumar Yadav and others, (2018) 13 SCC 560 [LQ/SC/2017/1037] .

16. It is the contention of Shri B.S.Kamate, learned counsel appearing for KPTCL - HESCOM that being aggrieved by the direction issued by learned Single Judge to formulate a scheme would run contrary to recruitment regulations which regulations has statutory force and any appointment made in deviation to said regulation would be bad in law. He would also submit that formulation of such scheme, as directed by learned Single Judge would run counter to the regulations. Hence, he prays for direction Nos.(ii) and (iii) be set aside. He would also contend that appellants being instrumentality of state, are required to strictly adhere to the recruitment regulations and cannot formulate a scheme contrary to the same and it would be impermissible. He would rely upon the judgment of the Honble Apex Court in the matter of State of Karnataka vs. Uma Devi and others (3), (2006) 4 SCC 1 [LQ/SC/2006/324] and prays for dismissal of Writ Petitions by setting aside direction Nos.(ii) and (iii) issued by the learned Single Judge. He would also pray for allowing the appeals in the background of plea raised in the statement of objections filed in Writ Petition Nos.101732-101938/2015 which are similar to the grounds urged in the appeals filed by KPTCL - HESCOM. In support of his submission, he has relied upon judgment of Honble Apex Court in the matter of State of Karnataka and others vs. KGSD Canteen Employees Welfare Association and others, (2006) 1 SCC 567 [LQ/SC/2006/4] .

17. Having heard the learned advocates appearing for parties and on perusal of case papers and authorities relied upon by learned advocates in support of their respective propositions, we are of considered view that following points would arise for our consideration:

"(i) Whether learned Single Judge was justified in dismissing the writ petitions by rejecting their prayer for regularization

(ii) Whether learned Single Judge was correct in directing KPTCL - HESCOM and State to formulate a scheme as ordered in paragraph 25(ii) to (iv)"

RE. POINT NO.(i)

18. In the background of rival contentions raised with regard to regularization, learned Single Judge has noticed and rightly so that writ petitioners had failed to make out a case that their appointment through the independent contract agency was a camouflage or the contract entered by the service provider not being genuine and as such, they have to be treated as employees of the principal employer KPTCL - HESCOM. It is to be further noticed that there is no employee and employer relationship between the petitioners and KPTCL - HESCOM. It can also be noticed that KPTCL has established several Master Unit Sub Stations (MUSS) all over Karnataka including HESCOM division for improving the quality and reliability of power supply. There are number of Master Unit Sub Stations in various parts of HESCOM. As stated by KPTCL - HESCOM in its statement of objections filed before the learned Single Judge, in each Sub Station only 8 (eight) contract labourers are working in three shifts and the meaning of Sub-station, as defined under Section 2(11)(a) would indicate the purpose of establishing Sub-station. It can be said that each Sub Station being an independent establishment, as defined under Section 2(e) of The Contract Labour (Regulation and Abolition) Act, 1970 as it defines "the establishment" to mean any Office or Department of the Government or a local authority. Hence, Sub Stations would clearly come under the definition of establishment. Thus, the argument of petitioners of they being contract labours would not hold water.

19. On account of tender having been called by KPTCL - HESCOM for providing service by personnel, an independent contract agency who was successful bidder was awarded contract to provide service personnel. Accordingly, service provider has provided the petitioners to work in the Sub Station/establishment of Appellant/HESCOM. At the outset, it requires to be noticed that there is no privity of contract between petitioners and KPTCL - HESCOM. The contractual obligation, if any, is between petitioners and the service provider. Thus, appellant KPTCL - HESCOM has no role in the matter of petitioners employment. At no point of time, they came to be appointed by KPTCL - HESCOM. In fact, it is not even the case of petitioners, they have been appointed directly by KPTCL - HESCOM. In this background, learned Single Judge by relying upon Uma Devis case referred to supra has rightly turned down the prayer of petitioners for regularization, absorption or continuance of petitioners by KPTCL - HESCOM.

20. We find there is no error committed by the learned Single Judge in refusing the prayer of petitioners for regularization or absorption into the services of KPTCL - HESCOM. Accordingly, we answer point No.(i) formulated hereinabove in favour of appellants - KPTCL - HESCOM and against writ petitioners.

RE. POINT NO.(ii):

21. Learned Single Judge on the premise that petitioners would be facing hardship if they are not provided with an opportunity in the recruitment process has directed the appellant/KPTCL-HESCOM to provide opportunity to the petitioners to apply to the post by making suitable provision for age relaxation depending on the number of years of service rendered by them.

Hence, in this background the learned single Judge has issued the direction referred to herein supra.

22. At the outset, it requires to be noticed that none of the petitioners were employed by KPTCLHESCOM either by inviting applications after giving due publicity or were employed on contract basis. On the other hand, appellant had invited tender from those applicants who were capable of supplying manpower, for maintenance of MUSS and allied services and successful bidders were awarded the contract to supply manpower and they in turn have recruited petitioners and posted them to KPTCL-HESCOM for being deployed at MUSS and various other departments. Thus, undisputedly petitioners were never engaged by the appellant either directly or indirectly. It would also be appropriate to notice at this stage itself that contracting agency has the sole discretion of terminating the employment of petitioners and deploy them in any other organization. There is no employee and employer relationship between appellant and the writ petitioners.

23. It is not in dispute that appellant is bound by regulations of erstwhile Karnataka Electricity Board (Recruitment and Promotion) Regulations, 1969, which has statutory force and stipulates the procedure for recruitment of personnel to the services of the appellant as well as all other Escoms throughout the State. Thus, Scheme if any formulated by the appellant would be contrary or in deviation to the Regulations and as such, no writ would lie to an instrumentality of State to act contrary to the extant Regulations governing appointments. The object of mandamus being simply to compel performance of a legal duty on the part of such person or body who is entrusted by law to perform that duty had failed to do so. Thus, court in a proceeding for mandamus will not substitute its own wisdom for the discretion vested by law in the person against whom the writ is sought for. As such, direction No.(ii) and (iii) issued to KPTCL-HESCOM would be contrary to the extant regulation governing employment.

24. Honble Apex Court in the case of STATE OF BIHAR AND OTHERS VS. SHYAM YADAV AND OTHERS, (1997) 2 SCC 507 [LQ/SC/1997/44] has held that persons employed by the State government for undertaking the census operations who were retrenched cannot be directed to be absorbed in the State services. It came to be held by the Honble Apex Court to the following effect:

"16. Some of the petitioners had registered themselves with the Employment Exchange prior to their appointment in connection with 1991 census operations. Their names were forwarded by the Employment Exchange concerned and on that basis they were so appointed on a post connected with 1991 census operations and consequently their names were deleted from the register in the Employment Exchange. Since they have been retrenched from the census office, they are entitled to have their names restored in the register in the concerned Employment Exchange concerned. Similarly, those retrenched employees of 1991 census operations who were not registered with any Employment Exchange can get themselves registered at an Employment Exchange. In accordance with the directions given by the Directorate General of Employment and Training, New Delhi, referred to in the Memo of the Director of Employment and Training, Bihar dated October 18, 1993, such retrenched census employees should be given priority / relaxation by the Employment Exchange wherein they are registered in the matter of sponsoring and forwarding their names for appointment against future vacancies.

17. In the result, the appeals are allowed, the impugned judgments of the High Court, in so far as they direct that the retrenched employees of 1991 census operations are entitled to be given preference in the matter of appointment in the services under the State of Bihar, are set aside. The petitioners can apply for appointment against any post falling vacant if they fulfil the qualification and other conditions prescribed for appointment to such post and, if they so apply, they shall be considered in accordance with the rules governing such appointment. In case they are found to be over age, one time relaxation in age may be given to them provided they were within the age limit prescribed for appointment at the time of their initial recruitment in the census organisation. It is also directed that registration in the Employment Exchange of those petitioners who were earlier so registered prior to their appointment to the census organisation shall be restored and those who were not registered would be entitled to get themselves registered at the Employment Exchange. The petitioners who are thus registered with the Employment Exchange shall be given priority/relaxation in the matter of forwarding their names for appointment against future vacancies. No order as to costs.

25. Honble Apex Court in the case of SATYA PRAKASH AND OTHERS VS. STATE OF BIHAR AND OTHERS, (2010) 4 SCC 179 [LQ/SC/2010/282] has drawn the distinction between "irregular appointment" and "illegal appointment" by referring to Umadevis case referred to herein supra. It came to be held:

"7. We are of the view that the appellants are not entitled to get the benefit of regularization of their services since they were never appointed in any sanctioned posts. The appellants were only engaged on daily wages in the Bihar Intermediate Education Council.

12. Then, in Umadevi XXX 42.

"53. One aspect XXX from this date".

The Constitution Bench has, therefore, clearly drawn a distinction between temporary employees, daily-wagers and those who were appointed irregularly in the sense that there was non-compliance of some procedure in the selection process which did not go to the root of the selection process. The appellants in our view will not fall in the category of the employees mentioned in paragraph 53 read with paras 15 and 16 of the Constitution Bench Judgment."

26. Honble Apex Court while examining the plea of the workers who were working in the canteen run by the State Government for the benefit of the Secretariat employees and who had claimed they were employees of State Government itself, came to be turned down by holding that it is not open to the High Court in exercise of its discretion under Article 226 of the Constitution of India either to frame a Scheme by itself or to direct the State to frame a Scheme for regularizing the services of ad-hoc employees or daily wages employees who had not been appointed in terms of extant Rules framed either under a Statute or under the proviso to Article 309 of the Constitution of India. It has been further held:

"46. The question which now arises for consideration is as to whether the High Court was justified in directing regularization of the services of the respondents. It was evidently not. In a large number of decisions, this Court has categorically held that it is not open to a High Court to exercise its discretion under Article 226 of the Constitution of India either to frame a scheme by itself or to direct the State to frame a scheme for regularizing the services of ad-hoc employees or daily wages employees who had not been appointed in terms of the extant service rules framed either under a statute or under the proviso to Article 309 of the Constitution of India. Such a scheme, even if framed by the State, would not meet the requirements of law as the executive order made under Article 162 of the Constitution of India cannot prevail over a statute or statutory rules framed under proviso to Article 309 thereof. The State is obligated to make appointments only in fulfillment of its constitutional obligation as laid down in Articles 14, 15 and 16 of the Constitution of India and not by way of any regularization scheme. In our constitutional schemes, all eligible persons similarly situated must be given opportunity to apply for and receive considerations for appointments at the hands of the authorities of the State. Denial of such a claim by some officers of the State times and again had been deprecated by this Court. In any view, in our democratic polity, an authority howsoever high it may be cannot act in breach of an existing statute or the rules which hold the field.

47. It is not necessary for us to dilate further on the issue as recently in State of U.P. vs. Neeraj Awasthi and others, (2005) 10 Scale 286 , [LQ/SC/2005/1268] it has been clearly held that the High Court has no jurisdiction to frame a scheme by itself or direct framing of such a scheme by the State."

27. In the light of above authoritative pronouncement of the Honble Apex Court referred to herein supra, it would not detain us for too long to accept the contention of Mr.B.S.Kamate, appearing for appellant - KPTCL-HESCOM and to brush aside the contention of Mr.Vivek Holla for the reasons aforestated which can be summarized as under:

(a) Petitioners were never appointed by KPTCL-HESCOM,

(b) There is no and there was never privity of contract between the writ petitioners and appellant HESCOM

(c) Writ petitioners were employed and appointed by the contracting agency and as such, they would be bound by the contractual terms,

(d) Appellant - HESCOM is governed by Regulations 1969, insofar as appointment is concerned and thus any Scheme formulated as per the direction of the learned single Judge would be contrary to said Regulations and thereby it would tantamount to "illegal" appointments.

(e) The status of writ petitioners even accepted to be as litigous employment they cannot take umbrage under it, inasmuch as they had never been appointed by the appellant - KPTCL - HESCOM,

(f) The details like names of the persons, number of days worked, salary/wages paid, leave obtained, as to whether they possessed requisite prescribed qualification are never in the knowhow of the appellant-KPTCL-HESCOM.

28. Thus, in conclusion, it has to be necessarily held, what writ petitioners could not achieve directly would not be entitled to achieve indirectly by seeking preferential treatment for being recruited, sacrificing the rights of those probable candidates, who could not participate in the recruitment process on account of same not having been notified. As such, we are of the considered view that direction issued to the respondent- Corporation and the Government at paragraphs 25 (ii) to (iv) would not stand the test of law. Hence, we answer to point No.(ii) formulated hereinabove in the negative i.e., against writ petitioners and in favour of appellant-KPTCL-HESCOM.

29. For the reasons aforestated, we proceed to pass the following:

ORDER

(i) Writ appeal Nos.101190/2016, 101202-101407/2016 and W.A.No.100404-100521/2017 are allowed and directions issued by learned single Judge at paragraphs 25 (ii) to (iv) is hereby set aside,

(ii) Writ Appeal Nos.100359-565/2016, 100566-611/2016 and W.A.Nos.1175- 1255/2016 are dismissed and the order passed by the learned single Judge rejecting the prayer for regularization of the writ petitioners, is upheld and consequently, Writ Petition Nos.107380-107497/2015, Writ Petition Nos.107025-107105/2015, Writ Petition Nos.101732-938/2015 and Writ Petition Nos.59097-142/2015 are dismissed.

(iii) Costs made easy.