The State Of Andhra Pradesh, vs T.S.Gopalaiah,
2021 Latest Caselaw 2887 AP

    IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI


 HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                    &
                 HON'BLE MS. JUSTICE J. UMA DEVI


                    WRIT APPEAL No.483 of 2021

                      (Through video conferencing)


The State of Andhra Pradesh rep., by its Principal Secretary,
Agriculture & Cooperation (Sericulture) Department, Secretariat,
A.P. Velagapudi, Guntur District and others.
                                                           ... Appellants

                                  Versus


T.S. Gopalaiah, S/o Sundaraiah, Aged about 65 years,
Retired Full Time Contingent Employee, TSC Santhipuram,
Under Administrative control of the Assistant Director of
Sericulture, Kuppam, Chittoor District, and others.
                                                            ... Respondents


Counsel for the Appellants           : Mr. Y.N. Vivekananda, GP
                                       for Additional Advocate General II.

Counsel for respondent Nos.1 to 8    : Mr. A. Phani Bhushan.



                             JUDGMENT (ORAL)

Dt:05.08.2021

(per Arup Kumar Goswami, CJ)

Heard Mr. Y.N. Vivekananda, learned Government Pleader attached

to the office of the learned Additional Advocate General II appearing for

the appellants. Also heard Mr. A. Phani Bhushan, learned counsel for the

respondent Nos. 1 to 8/writ petitioners.

                                      2                              HCJ & JUD,J
                                                              W.A.No.483 of 2021

2. This appeal is directed against an order dated 28.02.2020 passed

by the learned single Judge in W.P.No.4290 of 2020 directing the

appellants to consider the case of the writ petitioners as having been

regularized with effect from 25.11.1993 and calculate the pension and

pensionary benefits on the said basis.

3. Mr. Y.N. Vivekananda submits that the writ petitioners No.1 to 8

were discontinued from the contingent work on attaining the age of 60

years on 31.07.2014, 25.03.2015, 19.07.2010, 30.06.2010, 19.07.2014,

30.06.2015, 27.11.2008 and 31.12.2016, respectively. He further submits

that as the petitioners approached this Court after their superannuation,

on the ground of delay itself, the writ petition ought to have been

dismissed. It is further submitted that no opportunity was granted to the

appellants to file counter-affidavit in the writ petition and therefore, the

order under appeal is liable to be set aside on the ground of violation of

principles of natural justice. It is also submitted that the learned single

Judge did not record any factual finding as to whether the writ petitioners

would be entitled for regularisation of service in terms of G.O.Ms.No.212

Finance & Planning (FW.PC.III) Department, dated 22.04.1994, from the

cut-off date mentioned therein, which is 25.11.1993, and without such

finding having been recorded, the learned single Judge directed the

appellants to consider the case of the writ petitioners as having been

regularized with effect from 25.11.1993 and to calculate the pension and

pensionary benefits on the said basis. Mr. Vivekananda further submits

that the reliance placed by the learned single Judge on paragraph 50 of

the judgment in the case of Government of A.P. v. N. Venkaiah,

reported in 2018 (4) ALD 590 (DB), is distinguishable inasmuch as all

the employees in that case were regularized in service under 3 HCJ & JUD,J W.A.No.483 of 2021

G.O.Ms.No.212 while they were in service and they had sought the benefit

of such regularization from earlier dates, while in the instant case, the writ

petitioners were not regularized and they approached this Court after their

superannuation.

4. Per contra, Mr. A. Phani Bhushan, learned counsel for the writ

petitioners, submits that the contention advanced by the learned

Government Pleader appearing for the appellants that the appellants were

denied reasonable opportunity of presenting their case before the learned

single Judge is wholly not correct and that the order under appeal itself

would go to show that the contention advanced by the learned

Government Pleader before the learned single Judge was only to the

effect that the writ petitioners were not covered by G.O.Ms.No.11 Finance

(HR.III) Department, dated 20.01.2017 and that aspect of the matter was

dealt with by the learned single Judge holding that G.O.Ms.No.11 is

consequence of G.O.Ms.No.212 and that the appellants cannot take

shelter for non-implementation of G.O.Ms.No.212 on the ground of non-

availability of vacancies or financial burden. It is also submitted that it

does not appear from the order under appeal that any prayer was made

by the learned Government Pleader seeking time to file counter-affidavit.

5. Mr. Phani Bhushan placed reliance on the judgment dated

20.03.2021 passed by this Court in W.A.No.200 of 2020 (State of

Andhra Pradesh rep., by the Secretary (Social Welfare)

Department v. G. Sarojini), to contend that this Court had entertained

the application filed under Article 226 of the Constitution of India by the

wife after 18 years from the death of her husband praying for

retrospective regularisation. He further submits that in view of the 4 HCJ & JUD,J W.A.No.483 of 2021

submissions made by the learned Government Pleader before the learned

single Judge and in view of the fact that no dispute was raised with regard

to the applicability of G.O.Ms.No.212 to the writ petitioners, the order of

the learned single Judge needs no interference in this appeal.

6. We have considered the submissions made by the learned counsel

for the parties and perused the material available on record.

7. It is pertinent to note that G.O.Ms.No.212 Finance & Planning

(FW.PC.III) Department, dated 22.04.1994 was issued on the basis of the

decision taken by the Government that the services of such persons, who

worked continuously for a minimum period of five years and are

continuing as on 25.11.1993 be regularised subject to fulfilment of certain

terms and conditions including that absorption shall be against clear

vacancies of posts considered necessary to be continued as per work-load

excluding the vacancies already notified to the Andhra Pradesh Public

Service Commission/District Selection Committee.

8. Though no discussions are available in the order under appeal

regarding the period during which the petitioners claimed to work, it is

evident from the letter dated 23.06.2020, which is at page No.149 of the

writ appeal papers, issued by the Commissioner of Sericulture that the

petitioners in the present writ petition (wrongly recorded as W.P.No.4289

of 2020) worked as full time contingent employees. It is also evident

from the said letter that G.O.Ms.No.11, dated 20.01.2017 was issued

sanctioning 726 posts for regularising the services of full time contingent

employees, who have fulfilled the eligibility conditions stipulated in

G.O.Ms.No.212, but could not be regularized for want of clear vacancy

and who are continuing in Sericulture Department as on the date of 5 HCJ & JUD,J W.A.No.483 of 2021

issuance of G.O. The petitioners were stated to have been excluded from

the purview of G.O.Ms.No.11 as they were discontinued prior to issuance

of the said G.O., on attaining the age of 60 years.

9. In this connection, it will be apt to take note of the observations

made by the Division Bench of the erstwhile High Court of Judicature at

Hyderabad, in the case of N. Venkaiah (supra), wherein it had been

observed that when no regular exercise was ever undertaken in any

Department to assess the vacancy position so as to immediately extend

benefit to those covered by G.O.Ms.No.212, it is not open to the State to

say that there were no vacancies as on the date that the employees in

question completed five years of service, on or before 25.11.1993. It had

been further observed that when such employees were retained in service

for decades together, the necessity to continue them as per the workload

is manifest and clearly demonstrated, requiring no further evidence and

even if there is any doubt as to whether condition No.5 of G.O.Ms.No.212

is fulfilled as on the date of completion of five years in service by the

employees concerned, the benefit of doubt would invariably have to be

given to the said employees and not to the State. It was further observed

that they are not to be given any monetary benefits in the form of arrears

of pay or otherwise.

10. In the letter dated 23.06.2020 noted supra, there is not even a hint

or suggestion that the petitioners did not fulfill the requirement of

G.O.Ms.No.212. In W.A.No.200 of 2020, upon which reliance was placed

by Mr. Phani Bhushan regarding entertainment of the writ petition after 18

years of demise of the husband of the petitioner-wife, this Court had

granted relief by directing the respondents therein to pay pension and 6 HCJ & JUD,J W.A.No.483 of 2021

pensionary benefits as claimed by the petitioner-wife from the date of

filing of the writ petition, which was 26.08.2019 in that case.

11. In the attending facts and circumstances, it has to be accepted that

the writ petitioners had fulfilled the conditions as enumerated in

G.O.Ms.No.212 and the same was fortified by the letter dated 23.06.2020.

In the aforesaid circumstances, delay may not be a vitiating factor for

entertainment of the writ petition as it is evident that the writ petitioners

continued to discharge their duties as full-time contingent employees till

attaining the age of 60 years.

12. We are of the considered opinion that ends of justice will be sub-

served in the present case by moulding the relief by providing that though

the writ petitioners would be deemed to have been regularized from the

cut-off date i.e., 25.11.1993 for the purpose of fixation of pension and

pensionary benefits, pension will be made available to them only from the

date of filing of the writ petition i.e., from 19.02.2020.

13. Resultantly, the Writ Appeal stands disposed of modifying the order

of the learned single Judge to the extent indicated above. The directions

contained in this order shall be implemented within a period of two

months from the date of receipt of a copy of this order. No costs.

Pending miscellaneous petitions, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                                  J. UMA DEVI, J

                                                                            Nn