Andhra Pradesh Beverages ... vs K Kesava Narayana Reddy
2021 Latest Caselaw 3216 AP

     IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI



HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                      &
             HON'BLE MR. JUSTICE NINALA JAYASURYA


                    WRIT APPEAL No.414 of 2020
                     (Taken up through video conferencing)



Andhra Pradesh Beverages Corporation Ltd.,
Rep. by its Managing Director, 1st Floor,
Sai Vihar Apartment, Prasadampadu,
Vijayawada, Krishna District.
                                                             .. Appellant
       Versus


K. Kesava Narayana Reddy,
S/o Rami Reddy Aged about 56 years,
Occ: Helper, Kadapa District, and others.
                                                             .. Respondents

Counsel for the appellant                  : Mr. P. Narasimha Murthy

Counsel for respondent Nos.1 to 60         : Mr. M. Pitchaiah

Counsel for respondent No.61               : GP for Finance & Planning


Date of hearing                            : 29.07.2021

Date of judgment                           : 27.08.2021


                                JUDGMENT

(per Arup Kumar Goswami, CJ)

Heard Mr. P. Narasimha Murthy, learned standing counsel for the

appellant. Also heard Mr. M. Pitchaiah, learned counsel for respondent

Nos.1 to 60/writ petitioners.

2. This writ appeal is presented against an order dated 15.10.2019

passed by the learned single Judge in W.P.No.14944 of 2019, directing

the appellant-Corporation and respondent No.61 herein (respondents 2 HCJ&NJS,J W.A.No.414 of 2020

therein) to regularize the services of respondent Nos.1 to 60/writ

petitioners by reckoning their respective service of five years from the

date of joining as mentioned in the annexure of G.O.Ms.No.31, Finance

(HR.III) Department, dated 28.02.2017, and grant all consequential

benefits within a period of three months from the date of receipt of a copy

of the order.

3. The case projected by respondent Nos.1 to 60/writ petitioners is

that they have been serving the appellant-Corporation for the last more

than 30 years and though they have been continuously requesting for

regularization of their services in terms of G.O.Ms.No.212, Finance &

Planning (FW.PC.III) Department, dated 22.04.1994 on completion of five

years of service, the appellant-Corporation did not consider such request

and only at the fag end of their service, the appellant-Corporation had

regularized their services and some others by issuing G.O.Ms.No.31,

Finance (HR.III) Department, dated 28.02.2017. It is pleaded that the

Corporation had selectively regularized the services of some of the

employees earlier and due to non-regularization of the services of

respondent Nos.1 to 60/writ petitioners on completion of five years of

service, they are deprived of revision of pay scale, annual increments,

promotions and retirement benefits. With the aforesaid factual

background, the writ petition came to be filed for a direction to the

authorities to regularize the services of respondent Nos.1 to 60/writ

petitioners with effect from the date of their employment with all

consequential benefits, arrears of salary with interest at 12% per annum,

costs of the proceedings, etc.

4. Mr. P. Narasimha Murthy, learned standing counsel for the

appellant-Corporation, submits that the direction to regularize the services 3 HCJ&NJS,J W.A.No.414 of 2020

of respondent Nos.1 to 60/writ petitioners with effect from the date of

completion of five years of service is contrary to the scheme of

regularization envisaged in G.O.Ms.No.31 dated 28.02.2017 and that

G.O.Ms.No.212 dated 22.04.1994 and G.O.(P).No.112, Finance & Planning

(FW.PC.III) Department, dated 23.07.1997, were not taken into

consideration by the learned single Judge. It is further submitted that the

writ petition was disposed of before any counter-affidavit was filed by the

appellant-Corporation and, therefore, prejudice is caused to the appellant-

Corporation.

5. Mr. M. Pitchaiah, learned counsel for respondent Nos.1 to 60/writ

petitioners, submits that the order under challenge was passed in the

presence of the standing counsel for the appellant-Corporation and a

perusal of the order would go to show that no prayer was made for grant

of time to file counter-affidavit. He has placed reliance on a judgment of

the Division Bench of the erstwhile High Court of Judicature at Hyderabad

in the case of Government of A.P. v. N. Venkaiah, reported in 2018

(4) ALD 590 (DB) in support of the directions of the learned single

Judge and has submitted that no interference is warranted in this appeal.

6. We have considered the submissions of the learned counsel for the

parties and have perused the materials on record.

7. At the outset, it is to be noticed that the appeal came to be filed

with an application for condonation of delay of 388 days in filing the

same. The order of the learned single Judge is an oral order and if the

order was passed despite a prayer being made for grant of time to file

counter-affidavit, it will be reasonable to expect that the appeal would

have been filed immediately alleging violation of principles of natural

justice as the appellant-Corporation was denied the opportunity of 4 HCJ&NJS,J W.A.No.414 of 2020

effectively contesting the case. In the circumstances of the case, we are

unable to accept the contention of the learned standing counsel for the

appellant-Corporation that without granting time for filing counter-affidavit

despite a prayer being made, the learned single Judge proceeded to

dispose of the matter.

8. Paragraph 3 of the order of the learned single Judge reads as

follows:

"3. The counsel for the petitioners submits that the

petitioners were appointed as full-time contingent employees

in various depots of second respondent-Corporation and their

services were regularized with effect from 28.2.2017. The

grievance of the petitioners is that by virtue of G.O.Ms.No.31,

Finance (HR.III) Department, dated 28.2.2017, the services of

the petitioners have to be regularized with effect from the

date on which the concerned employee has completed five

years of service, but their services were regularized from the

date of the G.O. The counsel also submits that the dates of

joining of the petitioners are mentioned against their names in

the annexure of the G.O."

9. It appears that G.O.Ms.No.31 dated 28.02.2017 was mistakenly

mentioned in the aforesaid order and in its place, G.O.Ms.No.212 dated

22.04.1994 should have been mentioned, inasmuch as the plea taken by

respondent Nos.1 to 60/writ petitioners in the writ petition was that as per

G.O.Ms.No.212 dated 22.04.1994, which is available at page No.56 of the

appeal papers, their services have to be regularized with effect from the

date on which the concerned employee has completed five years of

service and the grievance expressed was that by virtue of G.O.Ms.No.31 5 HCJ&NJS,J W.A.No.414 of 2020

dated 28.02.2017, their services were regularized from the date of the

said G.O.

10. It is pertinent to note that G.O.Ms.No.212 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 regularized 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.

11. G.O.Ms.No.31 dated 28.02.2017 takes note of, amongst others,

G.O.Ms.No.212 dated 22.04.1994 as well as G.O.(P).No.112 dated

23.07.1997. G.O.(P).No.112 dated 23.07.1997 was issued to regularize

part-time employees subject to fulfilment of certain conditions. Thus, the

said G.O.(P). is not applicable in the facts and circumstances of the case.

12. A perusal of G.O.Ms.No.31 dated 28.02.2017 goes to show that the

Government had taken a policy decision to create requisite number of

posts on supernumerary basis in the departments and the autonomous

institutions under the control of the State Government for the benefit of

all those employees who had fulfilled the eligibility conditions stipulated in

G.O.Ms.No.212 dated 22.04.1994 and G.O.(P).No.112 dated 23.07.1997

but could not be regularized for want of a vacancy in the unit of

appointment against the roster point meant for the social group. It was

also noted therein that the appellant-Corporation had furnished the details

of 143 unskilled workers, who had completed five years of service as on

25.11.1993 and whose services have not been regularized. Accordingly,

the Government had sanctioned 143 posts in the category of Helper 6 HCJ&NJS,J W.A.No.414 of 2020

(category 7 of Andhra Pradesh Last Grade Service Rules, 1992) on

supernumerary basis. It was further noted that the posts so created on

supernumerary basis are exclusively meant for regularization of services of

those eligible employees whose services have not been regularized for

want of clear vacancies and the supernumerary posts so created would be

personal to the individuals holding the posts and the posts will get

automatically abolished immediately after a regular vacancy arises in the

category or on vacation of the post by the individuals due to promotion,

appointment by transfer, death or retirement.

13. Therefore, there is no manner of doubt that respondent Nos.1 to

60/writ petitioners had fulfilled the requirements of G.O.Ms.No.212 dated

22.04.1994.

14. In the case of N. Venkaiah (supra), it was 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 was 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.

                                      7                                 HCJ&NJS,J
                                                               W.A.No.414 of 2020

15. Following the Division Bench judgment in N. Venkaiah (supra), we

hold that the services of respondent Nos.1 to 60/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. As held in

the aforesaid judgment, respondent Nos.1 to 60/writ petitioners are not to

be given any monetary benefits in the form of arrears of pay or otherwise

from that date. Respondent Nos.1 to 60/writ petitioners will be entitled to

salary in terms of G.O.Ms.No.31 dated 28.02.2017.

16. Resultantly, the writ appeal stands disposed of modifying the order

of the learned single Judge to the extent indicated above. No costs.

Pending miscellaneous petitions, if any, shall stand closed.

ARUP KUMAR GOSWAMI, CJ                            NINALA JAYASURYA, J

                                                                            IBL