Bolla Krishna Murthy, vs Prl.Secy., Irrgiation Dept., ...
2021 Latest Caselaw 2358 AP

                    THE HON'BLE SRI JUSTICE JOYMALYA BAGCHI
                                      AND
                    THE HON'BLE SRI JUSTICE K. SURESH REDDY

                                Writ Petition No.1448 of 2015
                                  [Taken up through video conferencing]



ORDER:   (Per Hon'ble Sri Justice Joymalya Bagchi)



       Petitioner had a chequered career after he had been appointed as NMR

Work Inspector in the Irrigation Department on 01.08.1984. He worked in the

office of the 5th respondent, i.e., Deputy Executive Engineer, Drainage Sub-

Division, Bhimavaram, West Godavari District till 31.08.1987. On 01.09.1987,

he was orally terminated. Petitioner challenged the order of termination

before the Labour Court, Guntur. By Award dated 15.09.2001, the Labour

Court set aside the termination and directed reinstatement of the petitioner in

service without back wages. The Award of the Labour Court was challenged by

the Department in the High Court in W.P.No.14480 of 2006 ('first writ

petition').

During the pendency of the first writ petition, the petitioner was

reinstated into service on 29.03.2005 and was again terminated on 29.05.2005,

which was challenged by the petitioner in a subsequent writ petition being

W.P.No.12755 of 2005 ('second writ petition').

In the year 2011, the first writ petition filed by the Department was

dismissed and by order dated 14.02.2011, the High Court confirmed the order

of the Labour Court and it was directed that the petitioner shall be deemed to

be in continuous service from 01.08.1984 till 29.05.2005, i.e., the date of his

subsequent termination.

At this stage, the petitioner approached the Tribunal in the present O.A

and sought regularization of his services in view of G.O.Ms.No.212, Finance &

Planning (FW.PC-II) Department, dated 22.04.1994. His prayer was, however,

turned down by the impugned order dated 25.11.2014 inter alia on the ground

that the petitioner had been terminated in May 2005 and was not in service as

on the date of institution of the OA.

Mr. Pitchaiah, learned counsel appearing for the petitioner submit that

the ground on which the Tribunal dismissed the OA, no longer survives in view

of the judgment dated 05.10.2018 delivered by this Court in the second writ

petition, wherein the subsequent order of termination was set aside and it was

directed that the petitioner was deemed to be in service from the date of

retrenchment with all consequential benefits. It is next contended that the

other grounds, namely, lack of vacancy and qualification for regularization are

unfounded as the NMRs junior to the writ petitioner were absorbed in the same

Department and the petitioner has requisite secondary and ITI qualification.

Learned Government Pleader for Services-III submit that the petitioner

was not in service at the time when the order was passed by the Tribunal and

he had not rendered any services which would entitle him to seek

regularization.

With regard to the primary issue that the petitioner was not in service at

the time when the OA was instituted and therefore could not seek

regularization, we are of the view the same may not be tenable in view of the

subsequent order passed by this Court in the second writ petition. The

petitioner had been employed as NMR in the Department on 01.08.1984 and

had continued in service till 31.08.1987. Thereafter, his service was artificially

broken by wrongful orders of termination initially on 01.09.1987 and thereafter

on 29.05.2005. The first order of termination was set aside by the Labour

Court vide Award, dated 15.09.2001 and the petitioner was directed to be

reinstated with continuity of service but without back wages. The subsequent

order of termination has also been set aside and this time by this Court in the

second writ petition, wherein the learned Single Judge has observed that the

petitioner shall be continued in service from the date of retrenchment. Hence,

by operation of the aforesaid judicial orders, petitioner is deemed to be in

continuous service from 01.08.1984 onwards. As the second order of

termination was subsequently set aside with a direction for continuity in

service, the finding of the Tribunal that the petitioner was not in service so as

to direct regularization no longer survives.

Learned Government Pleader for Services submit that the petitioner was

not actually in the Department and therefore, he ought not to be regularized.

We are unable to accept such contention as in the Award passed by the

Labour Court (confirmed by this Court in W.P.No.14480 of 2006, dt.14.02.2011)

and in the order dated 05.10.2018, passed in W.P.No.12755 of 2005; the Court

had directed that the petitioner shall be deemed to be in continuous service

with all consequential benefits. Hence, the failure of the petitioner to be in

continuous service is due to wrongful act of the employer and not on account

of fault on his part. It is settled law that a wrong committed by the employer

cannot recoil upon the employee and therefore, we note that in the light of the

aforesaid orders, petitioner shall be deemed to be in continuous service for

more than five years as on the cut off date, i.e., 25.11.1993 as per

G.O.Ms.No.12, dated 22.04.1994 and cannot be denied regularization on this

score.

The other issues which weighed the Tribunal are also not relevant. It is

argued on behalf of the petitioner that similarly situated NMRs, who were

junior to him were regularized, however, his case had not been considered due

to the aforesaid illegal termination orders. This circumstance flies in the face

of the finding of the Tribunal that there was no clear vacancy against which

regularization could be made. When temporary employees continues to work

for protracted period of time without any break it is to be inferred that there

are available vacancies against which they are working and the benefit of

regularization of such employees cannot be scuttled on the specious plea of

lack of vacancy as held by this Court in Government of Andhra Pradesh v.

N.Venkaiah1. Furthermore, we are satisfied that the petitioner has requisite

qualification of secondary education as well as ITI. Thus, we are inclined to set

aside the order of the Tribunal, dated 25.11.2014.

Accordingly, the Writ Petition is allowed setting aside the order of the

Tribunal and directing the petitioner to be regularized by extending the benefit

of G.O.M.No.212, dated 22.04.1994 within six weeks from date. The petitioner

shall not, however, be entitled to arrears of salary and other emoluments on

account of such regularization save and except his services on and from

25.11.1993 shall be reckoned for the purpose of pension and other pensionary

benefits.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.

__________________ JOYMALYA BAGCHI, J

________________ K.SURESH REDDY, J

12.07.2021 RAR

2018 (4) ALD 590