Andhra Pradesh Central Power ... vs Ms. S.Naseen Banu,
2021 Latest Caselaw 3592 AP

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                                                                             HCJ & NJS,J
                                                                      W.A.No. 273 of 2021

         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. 273 of 2021
                       (Taken up through video conferencing)

Andhra Pradesh Central Power Distribution Company
Ltd., rep.by its., Chairman & Managing Director,
Singareni Bhavan, Lakidakapul, Hyderabad,
Currently A.P.Southern Power Distribution Company
Ltd., Tirupathi, Chittor District and another.                  .... Appellants

Versus

Ms. S. Naseen Banu, D/o. Dastagiri,
aged about 37 years, Occ: Govt. Service,
R/o.D.No.4/34-A, Osmania Road,
Kurnool, Kurnool District.                                      .... Respondent


Counsel for the appellants                       : Sri Y. Nagi Reddy
                                                   Standing Counsel for APCPDCL

Counsel for the respondent                       : Sri M. Pitchaiah

Date of hearing                                  : 03.08.2021

Date of Pronouncement                            : 17.09.2021



                                    JUDGMENT

(Per Ninala Jayasurya, J)

The instant appeal is preferred against the order of a learned Single Judge

dated 14.09.2018 in Writ Petition No.4285 of 2008 wherein the appellants are the

respondents.

2. Heard Mr. Y. Nagi Reddy, learned standing counsel for A.P.S.P.D.C.L.,

appearing for the appellants and Mr. M. Pitchaich, learned counsel for the

respondent/writ petitioner.

3. The respondent/ writ petitioner filed the above said writ petition stating inter

alia that she worked as contract labourer from 01.04.1997 and a Certificate to that

HCJ & NJS,J W.A.No. 273 of 2021

effect was issued by the 2nd appellant. It is her case that she is fully qualified to

hold the post of Lower Division Clerk in the 1st appellant Organization and as on

the date of filing of the writ petition is working as typist on contract basis and

drawing a salary of Rs.4,394/- per month which includes statutory deductions such

as E.P.F., E.S.I. and I.T., etc. Her grievance as projected in the writ petition is that

her case for appointment as Lower Division Clerk was rejected on 18.04.2001

which is illegal and not sustainable as similarly situated persons were appointed as

Lower Division Clerks. She sought a direction to the appellants/respondents to

appoint her as Lower Division Clerk in view of Regulation 22-A of Andhra Pradesh

State Electricity Board Service Regulations Part-II, in pursuance of B.P.Ms.No.36,

dated 18.05.1997. In para No.5 of the affidavit, it is stated that under

B.P.Ms.No.36, dated 18.05.1997, the appellants/respondents undertook the

exercise of appointment and under Regulation 22-A of A.P. State Electricity Board

Service Regulations Part-II, 331/3 % of posts are reserved for women and that the

writ petitioner is entitled for a post of Lower Division Clerk under women's quota,

but the appellants/ respondents have not followed the said Regulation. Further

that A.P. Transco issued TOO No.268, dated 03.03.2001 with regard to reservation

of 331/3 % posts to Women laying down certain guidelines and at 1(i) at para 6, it is

stated " By direct recruitment, except where the A.P. Transmission Corporation by

General or Special Order made in this behalf, exempt such service, Class or

Category".

4. On behalf of the appellants/respondents, a counter-affidavit was filed

opposing the prayer of the writ petitioner wherein it was stated that the writ

petitioner's claim for consideration in terms of B.P.Ms.No.36, dated 18.05.1997

was rejected vide order dated 18.04.2001 and that since the said order has not

been challenged, the same has become final. It was further pleaded that the case

of Mr. Mohd. Khaleel Pasha and Others, has no relevance to the facts of the

present case as the orders in their favour were issued in view of the peculiar

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circumstances of their case and that it cannot be a precedent for all the cases. It is

also stated that only those candidates who satisfied the conditions prescribed in

B.P.Ms.No.36 dated 18.05.1997 were considered and appointed in terms of the

said B.P.(Board Proceedings).

5. The learned Single Judge, taking note of the submissions inter alia that the

writ petitioner is being continued on contract basis even on the date of disposal of

the writ petition and working for more than 2 decades, passed the order dated

14.09.2018 which is under assailment. The learned Judge opined that the case of

the writ petitioner deserves to be considered for absorption, in view of the

expression of the Hon'ble Supreme Court in Secretary State of Karnataka and

Others v. Umadevi and others1. The relevant portion of the order reads as

follows:

"5. Learned counsel for the petitioner contended that the Hon'ble Supreme

Court in Secretary, State of Karnataka and others v. Umadevi and others held

that the persons, who were recruited as per regulations and who are being

continued for long length of service, their cases had to be considered for

regularization as one time measure and at para 53 of the said judgment it was held

thus:

" One aspect needs to be clarified. There may be cases where irregular appoints (not illegal appointments), as explained in S.V.Narayanappa [(1967) 1 SCR 128], R.N.Nanjundappa [(1972) 2 SCR 799] and B.N.Nagarajan [(1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of the orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the

(2006) 4 SCC 1

HCJ & NJS,J W.A.No. 273 of 2021

light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

6. This Court, having considered the rival submission of the parties,

is of the view that in view of expression of the Apex Court stated supra, the

case of the petitioner deserves to be considered for absorption.

7. Accordingly, the Writ Petition is disposed of directing the

respondents to consider the case of the petitioner for absorption in terms

of the judgment of the Apex Court referred supra, and pass appropriate

orders within a period of four (4) weeks from the date of receipt of a copy

of this order."

6. Feeling aggrieved by the said order, the appellants/respondents filed the

present writ appeal.

7. Sri Y. Nagi Reddy, learned counsel appearing for the

appellants/respondents submits that the order of the learned Single Judge directing

the consideration of the petitioner's case for absorption is not tenable. He submits

that the judgment of the Hon'ble Supreme Court in Umadevi's case (referred 1

supra) is not applicable to the facts of the case. He contends that there is no

sanctioned post and the writ petitioner is not working against any vacant

HCJ & NJS,J W.A.No. 273 of 2021

sanctioned post and in the absence of a sanctioned post, against which the writ

petitioner is working, the judgment of the Hon'ble Supreme Court in the above

referred case will not apply. He also contends that in fact the case of the writ

petitioner was considered on the earlier occasions and rejected. Since the earlier

rejections were not questioned, it is his submission that the writ petitioner is not

entitled to any relief inasmuch as the said order operates as estoppel and bars the

petitioner from seeking any relief of regularization. He submits that the learned

Single Judge has failed to appreciate these aspects and as such the order under

appeal is liable to be set aside.

8. Sri M. Pitchaiah, learned counsel for the writ petitioner/respondent, on the

other hand, submits that the writ petitioner was employed in the year 1997, which

is not in dispute and is being continued on contract basis. He submits that persons

who are similarly situated like that of the writ petitioner who approached this Court

were granted orders and the writ petitioner also sought similar relief. While

contending that the writ petitioner has put in about 25 years of service, he submits

that the petitioner is entitled for Women reservation in terms Regulation 22-A of

A.P.S.E.B. Service Regulations Part-II. Refuting the other contentions advanced on

behalf of the appellants, the learned counsel submits that there are no valid

grounds to interfere with the order of the learned Single Judge and accordingly,

prays for dismissal of the appeal.

9. At the outset, it may be noted that in the light of submissions and

observations made during the course of hearing on 23.07.2021, the counsel for the

appellants filed a memo dated 28.07.2021 furnishing the details in respect of the

petitioner, from a perusal of which it is discernible that the writ petitioner was

working for the last 24 years on contract basis. The same are extracted hereunder

for ready reference:

HCJ & NJS,J W.A.No. 273 of 2021

"Date of Joining : 10.03.1997 through Chit Agreement

Wages at time of Joining : Rs.65 per day

Wages from 2001 to 2004 : Rs.2500

04/2004 to 03/2006 : Rs.3654 2007 : Rs.4394 2009 : Rs.6110 2011 : Rs.9500

List of contractors:

       01/04/2006 to 01/03/2011 : Md.Ayub Khan

       01/04/2011 to 31/03/2015 : S.Gopal Reddy

       01/04/2015 to till date      : M/s Invensis Technologies Private Limited

       Present Contractor          : M/s Invensis Technologies Private Limited, Rajahmundry

       Present wages      : Basic : Rs.12003

                           Gross : Rs.21558 per month

EPF Paid by M/s Invensis Technologies Private Limited "

10. It is trite to observe here that where a temporary or ad-hoc appointment is

continued for long, the need and warrant for a regular post can be visualised. In the

counter-affidavit filed by the respondents/appellants, there is no denial to the effect that

the writ petitioner was not working for the last 10 years, nor was a plea taken to the

effect that the post in which she is working is not a sanctioned post or vacant

sanctioned post. Therefore, this Court finds no justification on the part of respondents

in taking such a plea, that too for the first time in the appeal.

11. Be that as it may. The learned Single Judge after taking note of the fact that the

writ petitioner is working for the last two decades, directed the appellants/respondents

to consider her case for absorption in terms of the expression of the Hon'ble Apex

Court in Umadevi's case (referred 1 supra).

HCJ & NJS,J W.A.No. 273 of 2021

12. A Constitution Bench, in Umadevi's case (referred 1 supra) while dealing with

the instances pertaining to appointments of employees on temporary, contractual,

casual, daily-wage or ad-hoc basis and continuation of their services dehors the

Constitutional scheme of public employment, made a detailed survey of the legal

precedents and opined at Para No.53 of the said judgment, with reference to which the

order under appeal was passed, that there may be cases where irregular appointments

(not illegal appointments) of duly qualified persons in duly sanctioned vacant posts

might have been made and the employees have continued to work for 10 years or

more but without the intervention of the orders of the Courts or of Tribunals and the

question of regularisation of the services of such employees have to be considered on

merits in the light of the principles settled by the Hon'ble Supreme Court in the cases

referred to and in the light of the judgment in Umadevi's case (referred 1 supra). The

Hon'ble Supreme Court also refers to formation of a scheme in this regard by the

Union of India, State Governments and their instrumentalities to regularize such

employees as one-time measure. Though it is the submission of learned counsel for

the appellants that on the earlier occasions, the petitioner's case was considered and

rejected in terms of B.P.Ms.No.36 dated 18.05.1997 and therefore the question of

considering her case would not arise, the same merits no consideration in the light of

the observations of the Constitution Bench of Hon'ble Supreme Court.

13. However, in a subsequent judgment in State of Karnataka and Others v. M. L.

Kesari and Others2, the Hon'ble Supreme Court had an occasion to consider the term

'One-time measure" referred to in Umadevi's case (referred 1 supra) and at para No.9

of the said judgment it was observed thus:

"9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi(3)1, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad-hoc

(2010) 9 SCC 247

HCJ & NJS,J W.A.No. 273 of 2021

employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services."

14. Further, while taking note of the fact that even at the end of six months from the

date of decision in Umadevi (referred 1 supra), cases of several daily-wage/ad-

hoc/casual employees were still pending before the Courts and consequently, several

departments and instrumentalities did not commence the one-time regularisation

process, the Hon'ble Supreme Court further opined as follows:

".....some government departments or instrumentalities undertook the one- time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi(3)1, will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the six-month period mentioned in para 53 of Umadevi(3)1 has expired...."

15. The Hon'ble Supreme Court in the said judgment categorically held that

"The one-time exercise should consider all daily-wage/ad-hoc/casual employees

who had put in 10 years of continuous service as on 10-4-2006 without availing

the protection of any interim orders of courts or tribunals". Again at Para No.11,

the Hon'ble Supreme Court in no uncertain terms held that " The True effect of the

direction is that all persons who have worked for more than ten years as on 10-4-

2006 [the date of decision in Umadevi (3) 1] without the protection of any interim

order of any court or tribunal, in vacant posts, possessing the requisite

qualification, are entitled to be considered for regularisation."

16. In the present case, it is not in dispute that the writ petitioner/respondent

joined as contract labourer on 01.04.1997 and as on 10.04.2006, she has not

HCJ & NJS,J W.A.No. 273 of 2021

completed 10 years to entitle her case to be considered for regularization in view

of the expression of the Hon'ble Supreme Court in M.L.Kesari's case (referred 2

supra).

17. In the light of the above judgment of the Hon'ble Supreme Court, the

direction of the learned Single Judge to consider the case of the respondent/writ

petitioner for absorption cannot be sustained and the same is therefore set aside.

18. Accordingly, the writ appeal is allowed. No order as to costs. As a sequel,

all the pending miscellaneous applications shall stand closed.

ARUP KUMAR GOSWAMI, CJ                                   NINALA JAYASURYA, J
                                                                                    BLV

                                                          HCJ & NJS,J
                                                   W.A.No. 273 of 2021



        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.273 of 2021

17th day of September, 2021 BLV