THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.37891 OF 2017
ORDER
This Writ Petition has been filed by the petitioner seeking a Writ of Mandamus by calling for the records relating to and connected with Proceedings Memo No.18607/GHMC-1/2013-9, dt.23.09.2017 and the proceedings Letter No.1426/B3/LWS/GHMC/2013/176, dt.05.06.2013 and to declare the same as illegal and arbitrary and unconstitutional and to consequently direct the respondents to regularise the services of the petitioner with effect from 25.11.1993 with all consequential benefits including the arrears of salary, continuity of service, seniority, promotion and all other attendant benefits.
2. Brief facts leading to the filing of this Writ Petition are that the petitioner was initially appointed as a Typist on a consolidated pay on 04.07.1988 and continued as such till July, 1994. Thereafter, the petitioner was working on outsourcing basis as Senior Computer Operator till May, 2006 and thereafter, the petitioner was working as W.P.No.37891 of 2017 2 Senior Accountant-cum-Programmer in the Accounts Section as an outsourced employee.
3. Sri Pratap Narayan Sangi, learned Senior Counsel for the petitioner submitted that on 22.09.1994, G.O.Ms.No.212 was issued by the Government proposing to regularise the services of the persons like the petitioner. The State Government vide letter dt.13.04.2012 therefore requested all the Departments to furnish the names of the candidates eligible for regularisation under the Scheme. Accordingly, vide letter dt.24.07.2012, the 2nd respondent required the Zonal Commissioners/ Deputy Commissioners to submit detailed report in the matter in the prescribed proforma regarding eligible NMRs/Daily Wage/Part Time Workers working on 25.11.1993 so as to send a factual report to the Government. It is submitted that vide letter dt.03.09.2012, the 2nd respondent forwarded the details of the individuals working under it as on 25.11.1993 in the prescribed Proforma-I and the name of the petitioner figured therein by mentioning his date of appointment as 04.07.1988 and the current duty held by the petitioner therein as Accountant-cum-Programmer and the wages paid is mentioned as Rs.9,500/-.
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4. It is submitted that the case of the petitioner was, however, rejected by the Government and the same was communicated to the petitioner vide letter dt.05.06.2013. In the said letter, it is mentioned that the petitioner worked on consolidated pay from 07.09.1988 to March, 1994 and subsequently his services were utilized through an outsourcing agency and as on the date of the proceedings, he was working as Data Entry Operator in Finance Wing of GHMC on outsourcing basis and therefore, his case cannot be considered for regularisation. The case of the petitioner was also stated to be rejected on the grounds that he has not put in continuous five years of service nor did he continue to work as NMR as on the said date and that his services were being utilised through an outsourcing agency.
5. Aggrieved by the rejection order, the petitioner submitted a representation to the Principal Secretary to Government, i.e., the 1st respondent stating that as on 25.11.1993, the petitioner had put in more than five (5) years of service on consolidated basis and therefore, he was eligible for regularisation of his services. His representation was forwarded by the Department to the Government vide letter dt.14.08.2013. His case was also recommended by the Commissioner, W.P.No.37891 of 2017 4 GHMC to the Government vide letters dt.25.09.2013 and dt.27.12.2013. Since no decision was taken on the representation of the petitioner, he again made a representation on 21.06.2014, but the same also was not considered by the Government. Therefore, the petitioner approached the A.P. Administrative Tribunal in O.A.No.3542 of 2016. The said O.A. was disposed of by order dt.08.09.2016 directing the State Government to take a decision on the representation of the petitioner. Thereafter, the State Government vide order dt.23.09.2017, rejected the case of the petitioner again on the same ground that for regularisation, the petitioner has to put in five years of continuous service as on the cut off date i.e. 25.11.1993, but since the petitioner's services were discontinued and as on date, his services were being utilised on outsourcing basis, his services cannot be regularised. Challenging this order of rejection, the present Writ Petition is filed.
6. Learned counsel for the petitioner, Sri Pratap Narayan Sanghi, while reiterating the submissions made in the writ affidavit, submitted that the petitioner has been working with the respondents continuously from the year 1988 on consolidated pay till 1994 and thereafter, through an outsourcing agency at the instance of the respondents. It is submitted W.P.No.37891 of 2017 5 that as on the cut off date i.e., 25.11.1993 itself, the petitioner has put in more than 5 years of service and therefore, he was eligible to be considered for regularisation under G.O.Ms.No.212 dt.22.04.1994 and also as per the judgment of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka Vs. Umadevi1. He also placed reliance upon the decision of the Hon'ble Supreme Court in the case of A. Manjula Bhashini and others Vs. Managing Director, A.P. Women's Cooperative Finance Corporation Ltd. and another2, wherein the Hon'ble Supreme Court has deprecated the practice of the State Government in making irregular appointments and not regularising the same in spite of the said workers having put in more than sufficient period of service. He also placed reliance upon a decision of a Coordinate Bench of this Court in the case of Government of Andhra Pradesh and others Vs. N.Venkaiah and others3 for the proposition that where the petitioners are eligible for regularisation, they should be regularised, even if there are no vacancies available, by creating supernumerary posts for such regularisation. He also placed reliance upon the decision of the Hon'ble Supreme Court in the case of 1 (2006) 4 SCC 1 2 AIR 2010 SC 3143 : (2009) 8 SCC 431 3 2018 (4) ALD 590 (DB) W.P.No.37891 of 2017 6 Bhilwara Dugdh Utpadak Sahakari S. Ltd. Vs. Vinod Kumar Sharma dead by LRs and others4 for the proposition that subterfuge method adopted by some of the employers by trying to show their employees as employees of a contractor, must come to an end. He thus submitted that the respondents have only changed the nomenclature but not the nature of the work, as the petitioner is discharging the same duties but through an outsourcing agency. It is submitted that this method is adopted by the respondents only to defeat the intention and purport of G.O.Ms.No.212 dt.22.04.1994 and also the judgment of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka Vs. Umadevi (1 supra).
7. Learned Standing Counsel for GHMC, Sri L. Dayakar Reddy, however, submitted that regularisation of services is not a matter of right and the same can be granted only if the petitioner herein fulfils the conditions for such regularisation. He submitted that for regularisation of service, one of the conditions to be fulfilled is that there should be a clear and regular vacancy and since the petitioner has been working through an outsourcing agency, he cannot be considered to be working 4 Civil Appeal No.2585 of 2006 dt.01.09.2011 W.P.No.37891 of 2017 7 in a regular vacancy and therefore, even if the petitioner satisfies the condition of rendering 5 years of continuous service as on the cut off date i.e., 25.11.1993, his services cannot be regularised. For this purpose, he placed reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India and others Vs. Ilmo Devi and another5.
8. Having regard to the rival contentions and the material on record, this Court finds that there is no dispute that the petitioner has been appointed as a Typist on consolidated pay with effect from 04.07.1988. It is also not in dispute that he has rendered service till July, 1994 and thereafter, even according to the respondents, admittedly the petitioner has been converted as an outsourcing employee. The petitioner's option is understandably not taken while converting his services to an outsourcing employee. It is also not in dispute that the petitioner has been continuously rendering the service all through even till the date of filing of the Writ Petition in the year 2017. Therefore, the conversion of the petitioner as an outsourcing employee seems to be a ploy adopted by the respondents in order to defeat the purpose of regularisation under 5 AIR 2021 SC 4855 W.P.No.37891 of 2017 8 G.O.Ms.No.212 dt.22.09.1994 and also the judgment of the Hon'ble Supreme Court in the case of Secretary, State of Karnataka Vs. Umadevi (1 supra). The Hon'ble Supreme Court in the case of Bhilwara Dugdh Utpadak Sahakari S. Ltd. Vs. Vinod Kumar Sharma dead by LRs and others (4 supra) has considered these methods adopted by the employers to be solely to subterfuge the demands of the employees for regularisation and has come down heavily on such practices. A Division Bench of this Court in the case of Government of Andhra Pradesh and others Vs. N.Venkaiah and others (3 supra) also has taken note of such practices and by following the judgment of the Hon'ble Supreme Court in the case of B. Srinivasulu Vs. The Nellore Municipal Corporation6, had directed the Municipal Corporation to regularise the services of the petitioner therein by creating a supernumerary post, if required, since the petitioner therein had put in more than 5 years of service as on the cut off date, i.e., 25.11.1993.
9. In view of the above decisions and particularly, the decision of the Hon'ble Supreme Court in the case of Manjula Bhashini and 6 Civil Appeal No.6318 of 2015 dt.17.08.2015 W.P.No.37891 of 2017 9 others Vs. Managing Director, A.P. Women's Cooperative Finance Corporation Ltd. and another (2 supra), this Court deems it fit and proper to direct the respondents to extend the benefits of regularisation to the petitioner in this case by reckoning his services from 25.11.1993, or the date on which a regular vacancy had arisen thereafter and if there was no vacancy, then to create a supernumerary post for the said purpose from 25.11.1993 and grant the consequential pensionary benefits. However, the petitioner shall not be entitled to actual monetary benefits in the form of arrears of pay, back wages, allowances or promotions.
10. With the above direction, this Writ Petition is partly allowed. No order as to costs.
11. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 23.08.2022 Svv