THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
W.P.No.22489 of 2020
ORDER:-
The present Writ Petition is filed under Article 226 of the
Constitution of India to declare the G.O.Ms.No.333, dated
23.09.2011 as illegal, arbitrary in regularizing the petitioners'
service from the date of G.O. which is contrary to law as held by
this Court and the Hon'ble Apex Court and consequently set aside
the said G.O. and regularize the petitioners' service retrospectively
from the date of completion of five (5) years from the appointment
for the purpose of claiming the pensionary benefits.
2. Heard learned counsel for the petitioners and learned
Assistant Government Pleader for Services-IV appearing for the
respondents.
3. Learned counsel for the petitioners would submit that the 1st petitioner was appointed as a pump operator-cum-watchman through proceedings Rc.No.21/86, dated 01.10.1986 and joined his duty in the 5th respondent Office. The 2nd petitioner was appointed as a sweeper and subsequently as a pump operator- cum-watchman vide proceedings dated 01.10.1985. Both the 2 petitioners were regularized vide G.O.Ms.No.333, dated 23.09.2011.
4. Learned counsel for the petitioners would submit that regularizing the service of the petitioners prospectively is bad and that the respondents failed to consider the service of the petitioners from the date of joining the Office as they have completed five (5) years service as contemplated under G.O.Ms.No.212, dated 22.04.1994. Hence, the petitioners would submit that their services ought to have been regularized on completion of five years from the date of appointment and thus prayed to set aside the said G.O. and regularize the petitioners on completion of five years from the date of appointment.
5. Per contra, learned Assistant Government Pleader would contend that the petitioners are not entitled for regularization of their services from the date of joining as they were temporary employees and that their appointment is not in terms of the G.O.Ms.No.212, dated 22.04.1994 and the same is not applicable to the petitioners herein and G.O.(P).No.112, dated 23.07.1997 is applicable to the petitioners, as such the petitioners' services were regularized as per G.O.Ms.No.333, dated 23.09.2011. He relied on the Judgments of the Hon'ble Apex Court in "State of Tamil Nadu 3 through Secretary to Government, Commercial Taxes and Registration Department, Secretariat and another Vs. A. Singamuthu1" and "Surendra Kumar and Others Vs. Greater Noida Industrial Development Authority and Others 2". He would further contend that as the petitioners were appointed on temporary basis, as such their services were regularized as per G.O.Ms.No.333, dated 23.09.2011.
6. The contention of the respondents is that, the petitioners were initially appointed as temporary employees. Hence, G.O.(P).No.112, dated 23.07.1997 is applicable to the petitioners and prayed to dismiss the Writ Petition. On going through the G.O.Ms.No.333, dated 23.09.2011, it explicitly indicates that the petitioners were appointed in terms of G.O.Ms.No.212, Finance (PC.III) Department, dated 22.04.1994. In view of the assertion in G.O.Ms.No.333, dated 23.09.2011, the contention of the petitioners that G.O.(P).No.112, dated 23.07.1997 is applicable has no room to stand and the issue involved in the present case is with regard to the regularization of service either prospectively or retrospectively for the purpose of pensionary benefits. 1 (2017) 4 Supreme Court Cases 113 2 (2015) 14 Supreme Court Cases 382 4
7. Learned counsel for the petitioners relied on the Order passed by this Court in "Government of Andhra Pradesh represented by its Principal Secretary, PR & RD Department and others Vs. N. Venkaiah and others3". He further relied on the Order dated 26.09.2019 passed by this Court in W.P.No.14788 of 2019, Order dated 15.10.2019 passed by this Court in W.P.No.1425 of 2019, Order dated 12.02.2021 passed by this Court in W.P.No.34552 of 2016, Order dated 22.09.2021 passed by this Court in W.P.No.36199 of 2017 and thus, prayed to allow the Writ Petition.
8. Learned counsel for the petitioners also relied on the Judgments of the Hon'ble Apex Court in "B. Srinivasulu Vs. The Nellore Municipal Corporation4" and "District Collector/Chairman & Others Vs. M.L. Singh & Others5" wherein it was held that the incumbents therein have to be regularized with effect from the date of their completing five years continuous service.
9. On enunciation of the law and on considering the catena of decisions filed by the learned counsel for the petitioners, it indicates that the services of the incumbent was reckoned from the date of completion of five (5) years in service, for the purposes 3 2018 SCC OnLine Hyd 150 4 2015 SCC OnLine SC 1797 5 2009 (8) SC 480 5 of their pension and pensionary benefits. Moreover, the decisions relied upon by the learned Assistant Government Pleader are not applicable to the present facts and circumstances of the case as it was held that the continuance in service for long period on part- time or temporary basis confers no right to seek regularization of service retrospectively and it does not relate to the issue raised in the present Writ Petition.
10. Hence, considering the submissions made by both the learned counsel, this Court is inclined to dispose of the Writ Petition by directing the respondents to regularize the service of the petitioners' retrospectively i.e., on completion of five years from the date of appointment, for the purpose of claiming their pension and pensionary benefits. It is however made clear that the petitioners are not entitled to actual monetary benefits for the said period in the form of arrears of pay.
11. With the above direction, the Writ Petition is disposed of. There shall be no order as to costs.
Miscellaneous Petitions pending, if any, shall stand closed.
________________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date:08-09-2022 EPS 6 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO 21 W.P.No.22489 of 2020 Date:08-09-2022 EPS