Telangana High Court
The State Of Telangana vs Md Rasheed on 20 August, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT APPEAL No.211 of 2024
JUDGMENT:
(per Hon'ble Sri Justice Laxmi Narayana Alishetty) Heard learned Government Pleader for Services-II appearing for the appellants and Sri G.Gopal Rao, learned counsel for the respondent.
2. The order passed by learned single Judge of this Court in W.P.(TR).No.5611 of 2017, dated 23.01.2023, is under challenge in the present Writ Appeal.
3. By the order under appeal, the learned single Judge allowed the said Writ Petition filed by the respondent herein seeking to set aside the proceedings dated 09.02.2016 issued by appellant No.3 and to direct the appellants-authorities to regularize the services of the respondent on completion of five years of service on par with the similarly situated person i.e., K.Vijay Kumar and to pass appropriate order within a period of six weeks from the date of receipt of copy of that order.
2 AKS,J & LNA, J W.A.No.211 of 2024
4. In nut-shell, the facts of the case are that initially, the respondent was appointed as Man Mazdoor (NMR) on 28.12.1982 in Nagarjuna Sagar Left Canal Organization Stores Division, Miryalaguda; that later, he was transferred along with others vide proceedings dated 16.04.1987 to Srisailam Left Bank Canal Stores Division; that again, he was transferred to Telugu Ganga Project; that when the respondent and others reported to duty, the Executive Engineer informed that they are appointed as fresh casual labour, as such, the respondent and others filed W.P.No.16836 of 1987 before the erstwhile High Court of Andhra Pradesh and the said Writ Petition was disposed of, vide order dated 08.08.1991 with a direction to consider the cases of the respondent and others in accordance with G.O.Ms.No.143, Irrigation (Ser.IV) Department, dated 16.03.1984 by taking into consideration their date of appointment.
5. Pursuant to the order, dated 16.03.1994, the candidates including the juniors to the respondent, who have completed five years of service were absorbed, but the respondent was not absorbed; that aggrieved thereby, the respondent filed I.D.No.806 of 1993 before the Labour Court for reinstatement into service with all benefits and the Labour Court disposed of the said case along 3 AKS,J & LNA, J W.A.No.211 of 2024 with two other cases, vide common order, dated 22.07.1993, directing the official 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; that the said order of the Labour Court was confirmed by common order, dated 24.10.1995 passed by this Court in Writ Petition Nos.6806 and 6821 of 1995; that in pursuance thereof, the respondent was reinstated into service as Man Mazdoor on 24.07.1996; and that subsequently, he was appointed as Office Subordinate and posted to AMR SLBC Project, Nalgonda on 24.06.2010.
6. However, subsequently, the respondent filed O.A.No.6761 of 2014 before the erstwhile A.P. Administrative Tribunal, Hyderabad, ventilating the grievance that in spite of submitting representations to the appellants seeking to absorb him into Work Charged Establishment as per G.O.Ms.No.143, the same was not considered and no orders were passed. The Tribunal disposed of the said O.A. directing the respondents therein to consider the representations dated 05.01.2011 and 21.08.2014 submitted by the respondent herein regarding regularization of the services and pass appropriate orders duly taking into account the proceedings issued 4 AKS,J & LNA, J W.A.No.211 of 2024 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 respondent filed C.A.No.956 of 2015, wherein notices were isued and thereafter, appellant No.3 issued the impugned proceedings rejecting the claim of the respondent to regularize his past service on untenable grounds. The said proceedings were challenged before the learned single Judge in W.P.(TR).No.5611 of 2017 and the said case was allowed in favour of the respondent, which is now impugned in the present Writ Appeal.
7. Learned Government Pleader for Services-II appearing for the appellants contended that learned single Judge erred in holding that the past service of the respondent was protected vide orders dated 22.07.1994, passed by the Tribunal in I.D.No.806 of 1993; that as the respondent has not satisfied with the terms and conditions of G.O.Ms.No.143, dated 16.03.1984, the learned single Judge erred in directing regularization of services of the respondent on completion of five years, which is contrary to law laid down by 5 AKS,J & LNA, J W.A.No.211 of 2024 the Hon'ble Supreme Court in a catena of judgments and therefore, the impugned order is liable to be set aside.
8. Learned Government Pleader for Services-II relied upon the judgments of the Hon'ble Supreme Court in Union of India Vs. Ilomo Devi1 and Vibhuti Shankar Pandey v. State of M.P. 2.
In Ilmo Devi's case (1 cited supra), the Hon'ble Supreme st
9. Court at Para-15 of the judgment placed reliance on the judgment of Hon'ble Supreme Court in Daya Lal [State of Rajasthan v. Daya Lal 3, wherein certain principles were laid down relating to regularization and pay in parity and held as under:
"The High Courts, in exercising power under Article 226 of the Constitution, will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which 1 2023 SCC Online SC 114 2 (2023) 3 SCC 639 3 (2011) 2 SCC 429 6 AKS,J & LNA, J W.A.No.211 of 2024 does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized..."
In Vibhuti Shankar Pandey's case (2 nd
10. cited supra), the Hon'ble Supreme Court in Para 4 placed reliance on the judgment of the Hon'ble Supreme Court rendered in State of Karnataka v. Umadevi 4, wherein two conditions were put forth with regard to regularization, firstly, initial appointment must be done by the competent authority and secondly, there must be a sanctioned post in which the employee must be working.
11. In the instant case, it is not the case of the appellants that the appointment of the respondent was not in pursuance of a regular recruitment and that he is an irregular employee or part- time employee. Therefore, the principle laid down by the Hon'ble Supreme Court in Ilmo Devi's case (1st cited supra) does not apply to the instant case.
12. Further, in the instant case, the two conditions put forth with regard to regularization by the Hon'ble Supreme Court in Vibhuti Shankar Pandey's case (2 nd cited supra) were satisfied.
(2006) 4 SCC 1 4 7 AKS,J & LNA, J W.A.No.211 of 2024
13. Per contra, learned counsel for the respondent contended that the learned single Judge, having appreciated the facts and circumstances of the case from a proper perspective, came to a conclusion that the impugned proceedings of the appellants rejecting the claim of the respondent for regularization of his services were untenable and accordingly, allowed the Writ Petition and therefore, the impugned order warrants no interference by this Court.
14. Learned counsel for the respondent relied upon the judgment of a Division Bench of this Court in W.P.No.23906 of 2017, dated 06.07.2023 {Prl. Secretary Education and 6 Ors. v. C. Narayana}, wherein at Para-5 it was observed as under:-
"Following the judgment of the Apex Court in B.Srinivasulu v. Nellore Municipal Corporation (Civil Appeal No.6318 of 2015, dated 17.08.2015) and Government of Andhra Pradesh vs. N.Venkaiah, 2018(4) ALD 590 and for reasons alike, this writ petition is also disposed of directing the petitioners to count the service rendered by the respondent as NMR till the date of regularization as qualifying service for the purpose of computing pensionary benefits..."
15. Learned counsel for the respondent also relied upon the judgment of the erstwhile High Court of Andhra Pradesh in the 8 AKS,J & LNA, J W.A.No.211 of 2024 case of The Govt. of Andhra Pradesh and Ors. v. N. Venkaiah & Ors 5.
In N.Venkatiah's case (5 th
16. cited supra), the core issue was as to the scope of regularization of services under G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994 and as to whether the employees whose services were regularized under the said G.O., are entitled to benefit of such regularization from earlier dates, wherein the High Court at Para- 57 observed as under:-
"...directing the authorities to extend the benefit of B. Srinivasulu Vs. Nellore Municipal Corporation (Civil Appeal No.6318 of 2015, dated 17.08.2015}, to the employees in this batch of cases by reckoning their services from the date of completion of services, on or before 25.11.1993, for the purpose of pension and pensionary benefits. But they shall however not be entitled to any monetary benefits for the same period, in the form of arrears or pay or allowances..."
17. A perusal of the record discloses that it is the case of the respondent that he has been reinstated into service on 24.07.1996 and prior to that, he has put in more than four (4) years eight (8) months of past service and therefore, the said period of past service is to be added to the service rendered by him after reinstatement for 5 2018 SCC Online Hyd 150 9 AKS,J & LNA, J W.A.No.211 of 2024 completion of five years of service, upon which, he will be entitled for regularization of his services as per G.O.Ms.No.143, dated 16.03.1984. The respondent also averred that in respect of similarly situated person by name K.Vijay Kumar, the same procedure was followed and his services were regularized and hence, prayed that the same benefit be extended to him.
18. It is undisputed that one K.Vijay Kumar, who is alleged to be similarly placed as that of the respondent, has filed I.D.No.169 of 1994 before the Labour Court-III, Hyderabad, seeking to set aside the termination orders and the said O.A. was allowed by the Labour Court, vide order dated 31.03.1997. The State Government challenged the said order by filing W.P.No.16668 of 1998 and on being unsuccessful, it has filed W.A.No.1127 of 2000, but the same also ended in dismissal, vide order dated 09.11.2000, directing the reinstatement of the respondent therein i.e., K.Vijaya Kumar with continuity of service and seniority and all other benefits except back wages. Pursuant thereto, the said K.Vijaya Kumar was reinstated into service.
19. It is relevant to note that the said K.Vijaya Kumar was appointed on 21.01.1983 and his services were terminated vide 10 AKS,J & LNA, J W.A.No.211 of 2024 orders dated 06.10.1987. The said termination orders were set aside by the Tribunal, which was confirmed by learned single Judge of this Court and also a Division Bench of this Court, as referred supra. Pursuant to the orders of the Court, the appellants-authorities issued G.O.Rt.No.869, dated 24.11.2003, stating that the said individual has fulfilled all the conditions laid down in G.O.Ms.No.143, Irrigation Department, dated 16.03.1984 and accordingly, directed for conversion of the said individual from NMR worker into Work Charged Category.
20. Admittedly, the aforesaid individual was appointed on 21.01.1983 and the respondent was appointed as NMR in appellants-Department on 28.12.1982, which means that the latter is junior to the respondent.
21. Also, it is to be noted that I.D.No.806 of 1993 filed by the respondent was disposed of by the Labour Court, Hyderabad, vide order dated 22.07.1993, directing the appellants to issue fresh orders for posting him as NMR daily wage worker and further, directed to consider his case as per G.O.Ms.No.143, dated 16.03.1984 by protecting his past service and the appellants unsuccessfully challenged the said order in Writ Petition No.6806 11 AKS,J & LNA, J W.A.No.211 of 2024 of 1995. In pursuance of the order passed in the said Writ Petition, the respondent was reinstated into service.
22. On a careful scrutiny of the facts of the present case and the case of one individual by name K.Vijaya Kumar, as referred to in the preceding paragraphs, it came to light that both the respondent and the said K.Vijaya Kumar are similarly placed. However, in case of the respondent, in compliance of the orders passed in WP.No.6806 of 1995, though he was reinstated into service, his request for regularization of his services as per G.O.Ms.No.143, dated 16.03.1984 was rejected by the appellants vide proceedings dated 07.09.2002 stating that G.O.Ms.No.143, dated 16.03.1984, was not in force after enactment of Act 2 of 1994.
23. It is discernible from record that in respect of the alleged similarly placed individual-K.Vijaya Kumar, the appellant issued G.O.Rt.No.869, dated 24.11.2003, purported to be in due compliance of the orders passed in W.A.No.1127 of 2000, dated 09.11.2000.
24. The appellants failed to explain as to how when Act 2 of 1994 overruled G.O.Ms.No.143, dated 16.03.1984, it has issued G.O.Rt.No.869, dated 24.11.2003 stating that as the individual mentioned therein has fulfilled all the conditions laid down in 12 AKS,J & LNA, J W.A.No.211 of 2024 G.O.Ms.No.143, dated 16.03.1994, his services as NMR worker were converted into Work Charged category.
25. When considering the case of the respondent, the appellants have declined to extend the same treatment to him as was given to the similarly placed person under G.O.Rt.No.869, dated 24.11.2003. Further, even as per the orders dated 22.07.1993 of the Labour Court, the past service of the respondent needs to be protected, as was confirmed by this Court in W.P.No.6806 of 1995. The order passed in WP.No.6806 of 1995 remained unchallenged till date, which implies that the direction to consider the case of the respondent as per G.O.Ms.No.143, dated 16.03.1984 by protecting his past services remains intact and holds good.
26. Therefore, this Court perceives discrimination on the part of the appellants in considering the case of the respondent for regularization as per G.O.Ms.No.143, dated 16.03.1984. Furthermore, when the respondent pleaded that he is similarly placed as that of one K.Vijaya Kumar and therefore, he is entitled to the same benefits as were extended to the said individual, the appellants failed to rebut the same.
27. As per the settled preposition of law, the regularization can be only as per the regularization policy declared by the 13 AKS,J & LNA, J W.A.No.211 of 2024 State/Government and nobody can claim the regularization as a matter of right dehors the regularization policy. The respondent never claimed regularization dehors the regularization policy. In fact, the case of the respondent is squarely covered by judgment of the erstwhile combined High Court of Andhra Pradesh in N.Venkatiah's case (5 cited supra).
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28. In the light of the above and also keeping in view the facts and circumstances of the case, this Court is of the considered opinion that the learned single Judge has rightly appreciated the case and passed the impugned order, which warrants no interference by this Court. The Writ Appeal is devoid of merits and is liable to be dismissed.
29. Accordingly, the Writ Appeal is dismissed. No costs.
30. As a sequel, the miscellaneous petitions pending, if any, shall stand closed.
_______________________________ ABHINAND KUMAR SHAVILI, J ___________________________________ LAXMI NARAYANA ALISHETTY, J Dated:20.08.2024 dr