The State Of Andhra Pradesh vs G. Sarojini,
2021 Latest Caselaw 1622 AP

      IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI


     HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                          &
                 HON'BLE MR. JUSTICE C. PRAVEEN KUMAR

                            WRIT APPEAL No.200 of 2020

                        (Taken up through video conferencing

State of Andhra Pradesh, rep., by the Secretary,
(Social Welfare) Department, Secretariat,
Velagapudi, Amaravathi, Guntur District and another
                                                                   .. Appellants.

     Versus

G.Sarojini, W/o G.V.Satyanarayana,
Indian, Aged about 55 years, Housewife,
R/o D.No.70-11-71, Plot No.402, Padmavathi Nilayam,
Patamata, Vijayawada, Krishna District.
                                                                   ..Respondents.


Counsel for the Appellants            : Government Pleader for Services-III

Counsel for respondent                : Mr. Korrapati Subba Rao

Dates of hearing                      : 27.01.2021 & 22.02.2021

Date of pronouncement                 :   20.03.2021


                                  JUDGMENT

(per C. Praveen Kumar, J)

1. Assailing the order of the learned Single Judge, dated 22.10.2019, passed

in Writ Petition No.12172 of 2019, the present Writ Appeal came to be filed by the

State of Andhra Pradesh, represented by its Secretary, Social Welfare Department,

under Clause 15 of Letters Patent.

2. The facts, which led to filing of the present Writ Appeal, are as

under :

The respondent-petitioner filed the above mentioned writ seeking

issuance of writ of Mandamus to declare that the petitioner is entitled to get

pension and pensionary benefits, in pursuance of G.O.Ms.No.212, dated

22.04.1994 and also as per the observations made by the Apex Court in

B.Srinivasulu Vs. Nellore Municipal Corporation (Civil Appeal No.6318

of 2015, dated 17.08.2015).

3. The averments in the affidavit filed in support of the writ petition

show that the husband of the petitioner was appointed as Hindi Pandit on

temporary basis in Social Welfare Residential School for boys at A.Konduru

for a period of 89 days i.e., from 02.11.1987 to 29.01.1988, which was

extended from 01.02.1988 to 23.04.1988. While things stood thus, a writ

petition came to be filed by the husband of the petitioner and others

seeking regularization of their services in the existing vacancies by fixing

appropriate pay scale with all consequential benefits. By an order dated

09-03-1989 in W.P.M.P. No.4398 of 1989, the Hon'ble High Court directed

the respondents therein to continue the petitioners in service. Pursuant

thereto, the husband of the petitioner continued in service. At that point of

time, the Government issued G.O.Ms.No.212, Finance and Planning

Department, dated 22.04.1994, wherein the Government decided that

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. It is stated that the services of

the husband of the petitioner were regularized pursuant to the said G.O.

The averments in the affidavit show that though service of the husband of

the petitioner was regularized, as he fulfilled the conditions stipulated in

G.O.Ms.No.124, Social Welfare (K) Department, dated 27.11.1995, but he is

not given the benefits in terms of G.O.Ms.No.212, dated 22.04.1994. In

other words, the plea of the petitioner is that she is getting a pension of

Rs.10,764/-, though entitled to an amount of Rs.28,875/-. The averments

in the affidavit further show that on coming to know about the judgment of

the Hon'ble Supreme Court in B.Srinivasulu's case (supra) wherein the

benefit of G.O.Ms.No.212, dated 22.04.1994, was extended to persons

similarly situated, the present writ petition came to be filed in the year

2019. By an order date 22nd October, 2019 in Writ Petition No.12172 of

2019 the learned Single Judge of this Court disposed of the Writ Petition

directing the 2nd respondent therein to extend the benefit of the ratio laid

down in B.Srinivasulu's case (supra) to the petitioner, by reckoning his

service from the date of completion of five years in service, on or before

25.11.1993, for the purpose of pension and pensionary benefits.

Challenging the order passed, the present Writ Appeal came to be filed.

4. Sri Bheema Rao, learned Government Pleader for Services-III, mainly

submits that the services of the deceased employee were regularised with

effect from 27.11.1995 and thereafter he died on 17.06.2001. About 18

years thereafter his wife approached this Court seeking benefits with

retrospective effect. He relied upon a judgment of the Hon'ble Supreme

Court in Union of India and others Vs. Chaman Rana1 in support of his

case. He further submits that the relief claimed, namely, retrospective

regularisation on completion of five years of service is violative of executive

Instruction No.IV, Rule 14 of A.P. Revised Pension Rules, 1980. He further

submits that in the absence of any clear vacancy being available as on the

date of completion of five years of service, the husband of the petitioner

cannot seek regularisation from that date, even for notional purpose.

2018 (5) SCC 798

5. The same is strongly opposed by Sri Korrapati Subba Rao, learned

counsel appearing for the respondent/writ petitioner.

6. A perusal of the material placed on record would clearly indicate that

the services of the husband of the petitioner were regularized with effect

from 27.11.1995. But, the services of the husband of the petitioner have to

be regularised in terms of G.O.Ms.No.212, Finance and Planning (FW-PCIII)

Department, dated 22.04.1994. The issues raised by the learned

Government Pleader fell for consideration before a Division Bench of the

High Court of Telangana and Andhra Pradesh in W.P.No.33936 of 2011 &

batch. By an order, dated 02.05.2018, the Division Bench observed as

under :

"It may be noted at this stage that all the employees in this batch of cases completed five years of service as on 25.11.1993 and were continuing in service as on that date. They therefore do not fall foul of the edict of the Supreme Court in A. Manjula Bhashini [2009 (5) ALT 1 (SC)]. Further, as the scheme for their regularization dates back to the year 1994, the subsequent decision of the Supreme Court in Secretary, State of Karnataka v. Umadevi [(2006) 4 SCC 1], frowning upon regularization of temporary employees, has no application to them. In terms of the direction in A. Manjula Bhashini [2009 (5) ALT 1 (SC)], the State and its instrumentalities ought to have undertaken the exercise at least then to regularize all those eligible to claim relief as per G.O.Ms. No. 212. However, it is manifest that no such concerted exercise was undertaken either then or even earlier. There seems to have been neither clarity nor consistency in how the authorities went about giving effect to G.O.Ms. No. 212. No regular and periodic exercise was ever taken up to ascertain when clear vacancies arose, be it before or after the promulgation of G.O.Ms. No. 212, so as to extend the benefit thereof to deserving and eligible temporary/daily wage/NMR employees."

7. After referring to the facts of the cases, the Court held that in the

absence of any exercise being done to ascertain clear vacancies, the delay

on the part of the authorities cannot put the petitioners therein to

prejudice. The same applies to the case on hand as well.

8. The learned Government Pleader further submitted that in the

absence of clear vacancy as on the date of completion of five years of

service, the petitioner cannot seek regularisation from that date i.e.,

25.11.1993 even for notional purpose. The said issue was also dealt with

by the Division Bench in the judgment referred to above and the relevant

finding on that aspect is as under :

The sheet-anchor of the argument of the learned Government Pleader for Services, Andhra Pradesh, is that even as per the law laid down in M.L. Singh [(2009) 8 SCC 480] and A. Manjula Bhashini [2009 (5) ALT 1 (SC)], regularization should be only upon fulfillment of the conditions enumerated in G.O.Ms.No.212. She would therefore contend that without evidence of clear vacancies being available as on the date of completion of five years of service or as on 25.11.1993, none of the petitioners can seek regularization from that date even for notional purposes.

It is no doubt true that in M.L. Singh [(2009) 8 SCC 480] and again in A. Manjula Bhashini [2009 (5) ALT 1 (SC)], the Supreme Court categorically held that the conditions mentioned in G.O.Ms. No. 212 must be fulfilled. Be it noted that even in B. Srinivasulu Civil Appeal No. 6318 of 2015 decided on 17.08.2015 (supra), the Supreme Court directed that the services of B. Srinivasulu and the others should be regularized with effect from the date of their completing five years continuous service, as was laid down by the Supreme Court in M.L. Singh [(2009) 8 SCC 480]. However, no reference was made to the later observation in M.L. Singh [(2009) 8 SCC 480] to the effect that the other conditions laid down in G.O.Ms. No. 212 would have to be satisfied for the purpose of regularization.

It cannot be gainsaid that when the Government formulated the policy for regularization in service of daily wagers and the like as a onetime measure vide G.O.Ms. No. 212, the conditions stipulated therein must ordinarily be fulfilled before one can seek the benefit of such policy decision.

However, on facts, the said policy was not implemented with promptitude, application of mind, despatch and consistency. Despite the Supreme Court directing the Government and its instrumentalities to undertake such an exercise fifteen years later in A. Manjula Bhashini [2009 (5) ALT 1 (SC)], the State and its instrumentalities even now show only an inclination to dilute and water down the benefits extended under G.O.Ms. No. 212. There is no indication of any serious exercise having ever been undertaken to ascertain as to when clear vacancies arose in any particular department or to take

expeditious measures to give effect to G.O.Ms. No. 212 by filling up such vacancies with those daily wage/temporary/NMR employees who had completed five years in service by 25.11.1993 and were still continuing in service. The policy under the G.O. required such an exercise to be taken up on a regular basis so as to benefit those covered by the G.O. However, the cases on hand bear out that though clear vacancies were available, no steps were taken to regularize those who were eligible in terms of the G.O. for years thereafter. Further, the Government Orders passed in each and every case in this batch demonstrate that regularization was directed to be prospective, i.e., from the date of issue of the orders, subject to the condition that 'the said vacancies were clear, regular and continued from time to time till that date'. This phrase clearly indicates that vacancies were available and continued from time to time till that date but no exercise was undertaken earlier by the authorities to ascertain as to when those vacancies arose and as to why they were immediately not filled up with eligible persons in terms of G.O.Ms. No. 212. Be it noted that Condition No. 5 in G.O.Ms. No. 212 only mandates that absorption should be against clear vacancies of posts considered necessary to be continued as per the workload. It was therefore not for the beneficiary under G.O.Ms. No. 212 to demonstrate that a clear vacancy was available. This aspect would only be within the knowledge of the State or its instrumentalities. That being so, it was for them to monitor as to when such clear vacancies arose and fill them up under G.O.Ms. No. 212. The laxity and lethargy on the part of the State and its instrumentalities in this regard cannot now be permitted to be taken advantage of by them to the detriment of the employees who would have been benefited had the exercise been taken up in right earnest as directed by the Supreme Court.

It is in this context that the decision of the Supreme Court in B. Srinivasulu Civil Appeal No. 6318 of 2015 decided on 17.08.2015 (supra) gains significance. This judgment of the Supreme Court traces its origin to O.A. No. 9177 of 2011 filed before the Tribunal by B. Srinivasulu and three others, who were Health Assistants/Public Health Workers in Nellore Municipal Corporation, Nellore District. They were initially appointed as NMRs in the Engineering Section of the Corporation on 16.09.1987, 19.09.1987, 15.07.1988 and 05.07.1988 respectively and claimed that they completed five years of service on 16.09.1992, 19.09.1992, 14.06.1993 and 04.06.1993 respectively. The services of the first and second applicants were regularized vide proceedings dated 30.10.2002, the services of the third applicant were regularized vide proceedings dated 31.10.2002 and the services of the fourth applicant were regularized vide proceedings dated 07.07.2006. Their regularization was with prospective effect. They filed the O.A. assailing the action of the Corporation in not regularizing their services on completion of five years and sought a direction to it to do so and to extend them the

benefits that were given to the applicants in O.A. Nos. 8095 of 2008 and 7108 of 2011.

By order dated 01.12.2011, the Tribunal observed that a similar issue had come up before it in O.A. No. 8095 of 2008, which was decided on 19.01.2011, wherein it was held that the applicant was entitled to regularization of his services upon completion of five years of service but while holding him disentitled to arrears of pay, he was held entitled to notional fixation of pay. The Tribunal further observed that the same issue arose in O.A. No. 5472 of 2011 and the earlier order in O.A.No. 8095 of 2008 was followed and the said O.A. was also allowed, vide order dated 29.06.2011. Opining that the issue involved in the subject O.A. was squarely covered by the earlier order in O.A. No. 8095 of 2008 and as the applicants would be entitled to regularization in service on completion of five years of continuous service as per G.O.Ms. No. 212, the Tribunal directed the Corporation to regularize their services from the said dates. The Tribunal further held that the applicants would not be entitled to arrears of pay but only to notional fixation of pay and seniority.

Aggrieved by this order, the Nellore Municipal Corporation filed W.P. No. 11852 of 2012 before this Court. Therein, the Commissioner of the Corporation specifically took the ground that the applicants in the O.A. could not be regularized in service as there were no vacant posts available in the Engineering branch and that they were absorbed in vacant posts in the Public Health branch of the Corporation. B. Srinivasulu and V. Srinivasulu were absorbed in the posts of Drain Cleaners while M. Ram Babu and K. Giri Kumar were absorbed as Health Assistants, though there were no regular posts at the time of submission of proposals for their regularization. He admitted that they completed five years of service on the dates claimed by them but asserted that they could not be regularized even notionally without vacant posts. He adverted to Condition No. 5 in G.O.Ms. No. 212 and contended that the order under challenge was liable to be set aside on various grounds, one of which was that the applicants were regularized in service only when clear vacancies arose, but the Tribunal failed to appreciate the same. He asserted that there were no clear vacancies on the dates when they completed five years of service and in the absence of such clear vacancies, they could not seek regularization from those dates. This writ petition was dismissed by order dated 25.04.2012. Therein, the Division Bench which heard the matter opined that as the Tribunal followed its earlier order dated 19.01.2011 in O.A. No. 8095 of 2008, which was subsequently followed by the Tribunal in O.A. No. 5472 of 2011, and there was no denial that the said orders had become final, no error was there in the order passed by the Tribunal in O.A. No. 9177 of 2011.

Review WPMP No. 10968 of 2013 in W.P. No. 11852 of 2012 was filed by the Corporation seeking review of the order dated 25.04.2012 dismissing the writ petition. The grounds of review reflect that one of the issues raised by the Corporation was that in terms of the conditions mentioned in G.O.Ms. No. 212, there must be a clear vacancy existing as on the date of absorption but the Tribunal and this Court had not verified as to whether the applicants in the O.A. complied with all the conditions mentioned in G.O.Ms. No. 212.

The review petition was ordered by a Division Bench other than the Bench which had dismissed the writ petition. The said order is dated 03.04.2014. The Division Bench observed therein that there could be no dispute that if the applicants fulfilled the conditions laid down in G.O.Ms. No. 212, their services have to be regularized but, at the same time, simply because they completed five years of service, that would not mean that their services would be regularized automatically, unless it is shown that there are clear vacancies available for regularization of their services. Opining that when their services had not been regularized in terms of G.O.Ms. No. 212, they had not approached the Tribunal but filed the O.A. at the fag end of their service in the year 2011 for regularization of their services with effect from the date of their joining in service, the Division Bench held that there were lapses on their part in not approaching the Tribunal within a reasonable period of time. The Division Bench concluded that regularization could not be granted from the date of their initial appointment but, at the same time, there was a duty cast upon the Corporation to follow G.O.Ms. No. 212 for regularization of their services whenever vacancies arose but that had not been done so far. Ultimately, the Division Bench directed the Corporation to regularize the services of the applicants from the date of filing of the O.A., i.e., 27.11.2011, for the purpose of fixation of pay and notional promotion without any monetary benefit, subject to availability of vacancies.

9. In view of the findings of the Division Bench in the above case with

which we are in complete agreement and as the findings in the said

judgment are based upon the observations made by the Apex Court in

B.Srinivasulu's case (supra), we see no ground to interfere with the

finding of the learned Single Judge.

10. At this stage, learned Government Pleader would submit that the

Court ought not to have entertained the Writ Petition as the petitioner has

approached this Court nearly 18 years after the death of her husband. It is

no doubt true that the petitioner has approached this Court 18 years after

the demise of her husband. No reasonable explanation is forthcoming as to

why she has approached this court with such abnormal delay. Having

regard to the above, the learned Government Pleader for Services submits

that the benefits be awarded from the date of this order.

11. Sri Korrapati Subba Rao, learned counsel appearing for the

respondent/writ petitioner, fairly submits that the request of the petitioner

may be considered from the date of filing of the writ petition.

12. Having regard to the above, the Writ Appeal is disposed of, directing

the respondents to pay pension and pensionary benefits as claimed by the

petitioner from the date of filing of the writ petition i.e., on 26.8.2019 in

accordance with law. No costs.

As a sequel, all the pending miscellaneous applications shall stand

closed.

ARUP KUMAR GOSWAMI, CJ                              C. PRAVEEN KUMAR, J

                                                                        skmr