Telangana High Court
Jeejula Venkateswarlu vs The Executive Engineer on 14 December, 2023
THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION (TR) No.948 of 2017
ORDER:
This writ petition is fled seeking to declare the action of respondent No.1 in issuing impugned speaking order No.AB/A3/R&B/WGL/2012-13/95 dated 17.04.2012 rejecting the case of the petitioner for regularization/absorption as Work Inspector as highly illegal, arbitrary and contrary to law and to set aside the same and consequently direct the respondents to regularize/absorb the petitioner into service as Work Inspector.
2. The facts of the case, in brief, are that the petitioner was appointed as N.M.R. Work Inspector on 16-03-1991, on daily wage basis, by the Executive Engineer, Roads & Buildings, S.R.S.P. Division, Parkal, Warangal District. It is stated that the petitioner worked as Work Inspector, N.M.R. in the office of the Deputy Executive Engineer, S.R.S.P. Sub-Division, Mulugu, Warangal District from 16-03-1991 to 28-06-1993 continuously for more than 240 days. Thereafter, the services of the petitioner were orally terminated by the Executive Engineer, Roads & Buildings S.R.S.P. Sub-Division, Mulugu, Warangal District on 2 29-06-1993, without giving any notice and opportunity to the petitioner. It is stated that wages were also not paid to him.
3. Aggrieved by the oral removal orders, the petitioner raised an Industrial Dispute vide I.D.No.58 of 1997 on the file of the Industrial Tribunal-cum-Labour Court, Warangal. The Tribunal, after hearing both sides and considering the evidence, vide Award dated 16.11.2000 has set aside the oral termination of the petitioner from service on 29.06.1993 and directed respondents Nos.1 & 2 to reinstate the petitioner into service as N.M.R. Work Inspector on daily wage basis with continuity of service, but without back wages.
4. Challenging the Award dated 16.11.2020 to the extent of denying back wages, the petitioner filed W.P.No.16998 of 2001 and this Court vide order dated 27.09.2002 dismissed the said writ petition holding that the denial of back wages was not contrary to law. Aggrieved by the same, the petitioner filed W.A.No.1806 of 2002. The Division Bench of this Court vide judgment dated 06.10.2009 has allowed the said Writ Appeal in part directing the respondents to pay 50% back wages to the petitioner. 3
5. The grievance of the petitioner is that though the petitioner had put up 22 years of service as N.M.R. Work Inspector and though the other employees were regularized in terms of G.O.Ms.No.143, dated 16.03.1984, the respondent No.1 vide the impugned speaking order No.AB/A3/R&B/WGL/2012-13/95 dated 17.04.2012 rejected the case of the petitioner for regularsiation on the ground that he was not recruited prior to the issuance of G.O.Ms.No.143, dated 16.03.1984. Hence, this writ petition.
6. A counter affidavit has been filed on behalf of the respondents denying the petition averments and stating that as per the direction of the Tribunal, the cases of some persons were considered for regularization of service as NMR Work Inspectors. However, the case of the petitioner for regularization was rejected vide the speaking order dated 17.04.2012 since, G.O.Ms.No.143, dated 16.03.1984, is not applicable to the petitioner. Therefore, prayed to dismiss the writ petition.
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7. Heard Sri B.P. Raju, the learned counsel for the petitioner and the learned Government Pleader for R&B. Perused the record.
8. A perusal of the impugned speaking order dated 17.04.2012 discloses that the case of the petitioner for regularization was rejected on the ground that he was not eligible for regularization in terms of G.O.Ms.No.143 dated 16.03.1984, as he was not recruited prior to the issuance of the said G.O.
9. The issue as to whether one is entitled for regularisation on completion of five years was considered by the Apex Court in District Collector v. M.L. Singh 1, wherein it was held that at the moment an employee completes five years of service, it would be sufficient for regularization of his services.
10. In State of Karnataka v. Uma Devi 2, the Hon'ble Supreme Court held as under:
"Any public employment has to be in terms of the constitutional scheme and a sovereign Government, considering the economic situation in the country and the work to be got done, 1 1998 (2) ALT 5 2 (2006) 4 SCC 1 5 is not precluded from making temporary appointments or engaging workers on daily wages.
........., "The Union of India, the State Governments and their instrumentalities should take steps for regularization, as a one- time measure, the services of such irregularly appointed persons who have worked for ten (10) years or more in duly sanctioned posts but not under cover of orders of Courts or of Tribunals."
11. In Nihal Singh and others v. State of Punjab 3, the Hon'ble Supreme Court refused to accept the defence that there were no sanctioned posts and so there was justification for the State to utilise services of large number of people like the appellants for decades. It held that "sanctioned posts do not fall from heaven"
and that the State has to create them by a conscious choice on the basis of some rational assessment of need. Referring to Umadevi, it held that the appellants before them were not arbitrarily chosen, their initial appointment was not an 'irregular' appointment as it had been made in accordance with the statutory procedure prescribed under the Police Act, 1861, and the State cannot be heard to say that they are not entitled to be absorbed into the services of the State on permanent basis as, according to it, their appointments were purely temporary and 3 (2013) 14 SCC 65 6 not against any sanctioned posts created by the State. It was held that the judgment in Umadevi cannot become a licence for exploitation by the State and its instrumentalities and neither the Government of Punjab nor those public sector Banks can continue such a practice consistent with their obligation to function in accordance with the Constitution.
12. In State of Karnataka and others v M.L.Kesari and others 4, the Apex Court held as under:
4. The decision in State of Karnataka v. Umadevi was rendered on 10.4.2006 (reported in 2006 (4) SCC 1). In that case, a Constitution Bench of this Court held that appointments made without following the due process or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or re- engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme;
and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. This Court further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had 4 2010(9) SCC 247 7 been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below :
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [1967 (1) SCR 128], R.N. Nanjundappa [1972 (1) SCC 409] and B.N. Nagarajan [1979 (4) SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. ....
"5. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the 8 prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
(iii) Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-
time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006)."
6. The term `one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily- wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services."
13. A perusal of the counter clearly discloses that the petitioner had put in 28 years of service as N.M.R. Work Inspector; that he acquired good experience in executing/looking after the R&B Road Works and Maintenance of R&B Bridges and Roads; that the services of the petitioner are required to the R&B Department 9 and that there are vacancies of Work Inspector Posts in the Department, but the said posts were not filled up.
14. In the light of the facts and circumstances of the case and in the light of the judgments referred to above, the writ petition is allowed setting aside the impugned speaking order dated 17.04.2012. The respondents are directed to consider the case of the petitioner for regularization/absorption as Work Inspector and pass orders within a period of eight weeks from the date of receipt of a copy of this order.
Pending Miscellaneous Applications, if any, shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY, J Date:14.12.2023 va