HONOURABLE SRI JUSTICE N.V.SHRAVAN KUMAR
WRIT PETITION (TR) No. 5611 of 2017
ORDER:
The present Writ Petition (TR) is filed to call for the records pertaining to the proceedings No.SE/AMRSLBCP/ C1/AB/A3/2015-16/81M, dated 09.02.2016 issued by respondent No.3 in rejecting the claim of the petitioner for regularization of past service and set aside the same by declaring the same as illegal, arbitrary and unconstitutional and consequently, direct the respondents to regularize the services of the petitioner in terms of the judgment of the High Court in W.P.No.6806 of 1995, dated 24.10.1995, notionally on completion of five years of service on par with similarly situated person and confer all consequential benefits.
2) Brief facts of the case are that the petitioner was initially appointed as Man Mazdoor (NMR) on 28.12.1982 in Nagarjuna Sagar Left Canal Organisation Stores Division, Miryalaguda and later he was transferred along with others vide proceedings dated 16.04.1987 to Srisailam Left Bank Canal Stores Division and again he was transferred to Telugu Ganga Project, where 2 the petitioner and others reported for duty, the Executive Engineer informed that they are appointed as fresh casual labour which necessiated the petitioner and others to file W.P.No.16836 of 1987 before this Court, which was disposed of on 08.08.1991 with a direction that the cases of the petitioner and others shall be considered in accordance with G.O.Ms.No.143, Irrigation (Ser.IV) Department, dated 16.03.1984 by taking into consideration their date of appointment as seniority. Accordingly, the candidates, who have completed five years of service including the juniors of the petitioner was absorbed, but the petitioner was not absorbed unjustly though there was no termination. Thus, the petitioner filed I.D.No.806 of 1993, one B.Satyanarayana filed I.D.No.807/93 and R.Sreenivas filed I.D.No.37/94 before the Labour Court, Hyderabad, for reinstatement with all benefits, which was disposed of by way of common order, dated 22.07.1993, directing the respondents therein to issue fresh orders for posting them as NMR daily wage workers and further directed to consider their cases as per G.O.Ms.No.143 dated 16.03.1984 by protecting their past service, which was confirmed by this Court by a common order, dated 24.10.1995 3 passed in W.P.No.6806, 6821 and 6821 of 1995. Pursuant to the common award, the petitioner was reinstated into service as Man Mazdoor on 24.07.1996, subsequently, he was appointed as Office Subordinate and posted to AMR SLBC Project, Division No.I, Gurrampode, Nalgonda on 24.06.2010 in which capacity he is presently working. The case of the petitioner is that as per the judgment of this Court in W.P.No.6806 of 1995, dated 24.10.1995, the petitioner is entitled to be absorbed into Work Charged Establishment as per G.O.Ms.No.143, but despite representations, the same was not done by the respondents on an untenable reason that the said G.O. is not existing, which is factually incorrect and in fact in case of one Sri K.Vijay Kumar, who is similarly situated like the petitioner, the Government has issued G.O.Rt.No.869, I & CAD (PW.Estt.1) Department, dated 24.11.2003, complying the orders of this Court converting him into Work Charged Establishment, notionally in terms of G.O.Ms.No.143, dated 16.03.1984. It is further submitted that the Government has issued a Memo No.26418/Ser.III.1/2011-7, dated 13.09.2014, regularizing the services of one B.Rama Subbaiah in terms of G.O.Ms.No.143, Irrigation (Ser.V) Department, dated 16.03.1984 and as per the orders of this 4 Court, notionally from the date of completion of five years of service. Since the case of the petitioner was not considered, the petitioner also made several representations, one being latest given on 21.08.2014, but no orders were passed, which necessitated the petitioner to file O.A.No.6761 of 2014 before the erstwhile Andhra Pradesh Administrative Tribunal (for short "the Tribunal"), which was disposed of on 28.11.2014, directing the respondents to consider the representations made by the petitioner, dated 05.01.2011 and 21.08.2014 regarding regularization of the services and pass appropriate orders duly taking into account the proceedings issued by the Government in G.O.Rt.No.869, dated 24.11.2003 and Memo No.26418/Ser.III.1/2011-7, dated 13.09.2014 and also in terms of the orders passed by this Court in W.P.No.6806 of 1995, dated 24.10.1995, within a period of eight weeks from the date of receipt of a copy of the said Order. Since the order passed by the Tribunal has not been complied with, the petitioner filed C.A.No.956 of 2015, wherein notices were orders and thereafter, respondent No.3 issued the impugned proceedings rejecting the claim of the petitioner on untenable grounds. 5
3) It is further submitted that the petitioner has more than four years eight months of past service and he has been reinstated into service on 24.07.1996 and the respondents have to add the service rendered by the petitioner after reinstatement into service to past service for completion of five years of service and on completion of five years service, the petitioner is entitled for regularization of his services as per G.O.Ms.No.143, dated 16.03.1984 as was done in similarly situated person ie., Sri K.Vijay Kumar. Therefore, the petitioner prays to set aside the impugned proceedings and declare that the petitioner is entitled to benefit of G.O.Ms.No.143, dated 16.03.1984 and appropriate orders may be passed.
4) Respondent No.3 filed counter admitting that the petitioner was initially appointed as Man Mazoor (NMR) on 28.12.1982 in Nagarjuna Sagar Left Canal Organisation Stores Division, Miryalaguda and his subsequent transfers. It is submitted that when the Executive Engineer had informed that the petitioner should join as fresh casual labour, otherwise he would not be allowed to join duty, the petitioner had 6 approached this Court by filing W.P.No.16836 of 1987, which was disposed on 08.08.1991 with a direction to consider the case of the petitioner in accordance with G.O.Ms.No.143, dated 16.03.1984 considering their seniority and appointment. It is further submitted that in terms of G.O.Ms.No.143, dated 16.03.1984, the NMR workers should possess service of five years at least as NMR worker for absorption into Work Charged Establishment. As the petitioner has not completed requisite service for absorption into Work Charged Establishment, his case has not been considered. Therefore, the petitioner filed I.D.No.806 of 1993 before the Labour Court for reinstatement into service with all benefits, which was disposed of on 22.07.1994 directing the respondents therein to consider the case of the petitioner and issue fresh orders as NMR Daily Wage duly quoting the G.O.Ms.No.143, dated 16.03.1984 for protecting past service and the order passed by the Labour Court, dated 22.07.1994 was confirmed by this Court on 24.10.1995 in W.P.No.6806 of 1995. In compliance with the orders passed by the Labour Court, which was confirmed by this Court, the petitioner was provided fresh employment as NMR Daily Wages worker subject to the final disposal of the Writ 7 Appeals filed before this Court. As per the proceedings, the petitioner joined duty on 24.07.1996 and subsequently, speaking orders were issued to the petitioner on 07.09.2002 vide No.SE/AMRP.C1/S2/A3/649M duly indicating that G.O.Ms.No.143, dated 16.03.1984 was not in force after enactment of Act 2 of 1994. It is further submitted that the cases in respect of Sri K.Vijay Kumar and Sri B.Ramasubbaiah were considered as per the orders of this Court dated 09.06.1998 passed in W.P.No.16668 of 1998 and as per G.O.Rt.No.869, I & CAD Department, dated 24.01.2003 as they have fulfilled the conditions laid down in G.O.Ms.No.143, dated 16.03.1984. It is further submitted that as per G.O.Ms.No.143, dated 16.03.1984, the petitioner is not eligible for absorption into Work Charged Establishment as he has not completed requisite service for converting him into work charged establishment. Therefore, prayed to dismiss the Writ Petition (TR).
5) Heard learned counsel for the petitioner, learned Government Pleader for Services-II for the respondents and perused the material available on record.
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6) During the course of arguments, the learned counsel appearing for the petitioner has submitted that the petitioner is entitled for regularization and absorption of his services in view of his length of service and in terms of orders passed by this Court in W.P.No.6806 of 1995, dated 24.10.1995, on par with the similarly situated person i.e., Sri K.Vijaya Kumar. Therefore, prayed to allow the Writ Petition (TR).
7) Learned Government Pleader for Services-II has submitted that since the petitioner has not fulfilled the conditions laid down in G.O.Ms.No.143, dated 16.03.1984 as he has not completed the requisite period of service i.e., five years. Therefore, respondent No.3 had rightly rejected the claim of the petitioner for regularization of service and passed the well reasoned order and prayed to dismiss the Writ Petition (TR).
8) The point that arises for consideration is whether the petitioner is entitled for regularization of service and absorption into Work Charged Establishment on par with the similarly situated person?
9) As seen from the record, the undisputed facts are that the petitioner was initially appointed as N.M.R. worker on 9 28.12.1982 on daily wage basis in Stores Division, Nagarjuna Sagar Left Canal Organisation and subsequently, he was transferred to Telugu Ganga Project, where the petitioner was about to report duty. The Executive Engineer informed him that he should join as a fresh casual labour. Aggrieved by the same, the petitioner filed W.P.No.16836 of 1987 before this Court and this Court disposed of the said writ petition with a direction to consider the case of the petitioner in accordance with G.O.Ms.No.143, Irrigation (Ser.V) Department, dated 16.03.1984, taking into consideration his date of appointment and seniority. As the case of the petitioner was not considered, he filed I.D.No.806 of 1993 before the Labour Court, Hyderabad, for reinstatement with all benefits. By an order, dated 22.07.1994, the Labour Court disposed of the said I.D. directing the respondent therein to issue fresh orders posting the petitioner as NMR Daily Wage Worker and further directed to consider his case as per G.O.Ms.No.143 by protecting his past service. Challenging the same, the respondent authorities have filed W.P.No.6806 of 1995 and by an order, dated 24.10.1995, this Court dismissed the writ petition confirming the award passed by the Labour Court in I.D.No.806 of 1993. Pursuant to 10 the same, the petitioner was reinstated into service as Man Mazdoor on 24.07.1996 and subsequently he was appointed as Office Subordinate and posted to AMR SLBC Project, Nalgonda on 24.06.2010.
10) The record further reveals that though the petitioner made several representations to regularize his services as per G.O.Ms.No.143, dated 16.03.1984, the respondent authorities have not considered his case. Therefore, the petitioner filed O.A.No.6761 of 2014 before the Tribunal. By an order, dated 28.11.2014, the Tribunal disposed the said O.A. It is appropriate to refer to the operative portion of the order passed by the Tribunal, which reads as under:-
"In view of the cases and circumstances obtaining in the case, the respondents are directed to consider the representations made by the applicant, dated 05.01.2011 and 21.08.2014 regarding regularization of his services and pass appropriate orders duly taking into account the proceedings issued by the Government in G.O.Rt.No.869, I & CAD (PW.Estt.1) Department, dated 24.11.2003 and Meo No.26418/Ser.III.1/2011-7, dated 13.09.2014 and also in terms of the orders of the High Court in W.P.No.6806 of 1995, dated 24.10.1995, within a period of eight weeks from the date of receipt of a copy of this order."11
11) As the orders of the Tribunal passed in O.A.No.6761 of 2014, have not complied with by the respondents, the petitioner filed C.A.No.956 of 2015 and after receipt of the notices in the contempt case, respondent No.3 had passed the impugned proceedings rejecting the claim of the applicant stating that he has not completed five years of service.
12) The record reveals that the case of similarly situated person by name Sri K.Vijay Kumar, who was appointed on 21.01.1983 and who was junior to the petitioner, was considered vide G.O.Rt.No.869, dated 24.11.2003. It is appropriate to refer to the relevant paragraphs in G.O.Rt.No.869, dated 24.11.2003, which are as under:-
"In the reference 1st read above, Government have accorded permission to the Chief Engineer (P), NSRSP, Hyderabad, to implement the Award of the Labour Court-III, Hyderabad dt. 31.03.1997 in I.D.No. 169/94 filed by Sri K.Vijaya Kumar, NMR Work Inspector as confirmed by the Division Bench of the A.P. High Court dt. 19.11.2000 in W.A.No.1127/2000 in W.P.No.16668/98 filed by the Department against the award of the Labour Court. The Chief Engineer (P), NSRSP, Hyderabad directed that Sri K.Vijaya Kumar, NMR Work Inspector be provisionally reinstated into service with continuity of service and seniority and all other benefits except back wages, subject to the result of the Special Leave 12 Petition filed by the Department in the Hon'ble Supreme Court of India.
2. In the reference 2nd read above, Government have issued orders confirming the orders issued in G.O.Ms.No.7, I&CAD (PW.Estt.1) Department, dated 18.1.2001, as the Supreme Court of India has dismissed the SLP filed by the Department, vide orders dated 5.2.2001 in SLP (Civil) No.1581/2001.
3. The Superintending Engineer, AMRP Circle No.1, GV Gudem, lr. Dt. 30.4.2002 has informed that the individual has fulfilled all the conditions laid down in the G.O.Ms.No.143, Irri.Dept., dt. 16.3.1984.
4. ....
5. ....
6. In view of the above, the Chief Engineer (P) NSRSP, Hyderabad has requested for orders to convert Sri K.Vijaya Kumar, NMR into work charged category in order to comply the orders of APHC in the above said case.
7. After careful examination, Government hereby direct the CE (P), NSRSP, Hyderabad for conversion of Sri K.Vijaya Kumar, NMR Worker into Work Charged category in order to comply with the orders of the Hon'ble High Court, dated 9.6.98 in W.P.No.16668/98."
13) Admittedly, the petitioner was appointed on 28.12.1982. Further, in terms of the order, dated 22.07.1994 passed in I.D.No.806 of 1993, the past service of the petitioner was protected and that the petitioner has been reinstated into 13 service as Man Mazdoor on 24.07.1996 and subsequently he was appointed as Office Subordinate on 24.06.2010. Since the case of similarly situated person, who is junior to the petitioner, was considered stating that he has fulfilled all the conditions laid down in G.O.Ms.No.143, dated 16.03.1984, the issuance of impugned proceedings by respondent No.3 in rejecting the claim of the petitioner on the ground that he has not completed five years of service, is untenable. That apart, in the counter no where it is stated by the respondents that the petitioner was not in service. As the petitioner is in continuous service, which is not disputed by the respondent authorities and in view of his length of service, what has been given to the similarly situated person i.e., Sri K.Vijay Kumar vide G.O.Rt.No.869, Irrigation and CAD (PW.ESTT.1) Department, dated 24.11.2003, the same benefit shall be given to the petitioner. Therefore, considering the facts and circumstances of the case, this Court deems fit to set aside the proceedings No.SE/AMRSLBCP/ C1/AB/A3/2015- 16/81M, dated 09.02.2016 issued by respondent No.3 in rejecting the claim of the petitioner for regularization of past service as the petitioner is in continuous service as on date and the respondent authorities can be directed to regularize the 14 services of the petitioner in the light of the orders passed by this Court in W.P.No.6806 of 1995, dated 24.10.1995 confirming the orders passed in I.D.No.806 of 1993, wherein it was held that the past service of the petitioner was protected and also in terms of G.O.Rt.No.869, dated 24.11.2003, Irrigation and CAD (PW.ESTT.1) Department, dated 24.11.2003, wherein the services of the similarly situated person was converted from NMR worker into Work Charged Category.
14) Accordingly, the Writ Petition (TR) is allowed by setting aside the proceedings No.SE/AMRSLBCP/ C1/AB/A3/2015- 16/81M, dated 09.02.2016 issued by respondent No.3 and the respondents authorities are directed to regularize the services of the petitioner on completion of five years of service on par with the similarly situated person i.e., K.Vijay Kumar and pass appropriate orders within a period of six (06) weeks from the date of receipt of a copy of this order and communicate the same to the petitioner. There shall be no order as to costs.
Miscellaneous application, if any pending, shall stand closed.
______________________ N.V.SHRAVAN KUMAR, J 23.01.2023 gkv 15 HONOURABLE SRI JUSTICE N.V.SHRAVAN KUMAR WRIT PETITION (TR) No. 5611 of 2017 Date:23.01.2023 gkv