D V S S S Rama Raju vs State Of Andhra Pradesh
2022 Latest Caselaw 9778 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

           WRIT PETITION (AT) No.193 of 2021

ORDER :

This petition is filed under Article 226 of the

Constitution of India for the following relief:-

"...to direct the respondents to regularize the services of the applicant on par with Sri K. Narasimha Murthy by applying the same criteria as per G.O.Rt.No.151 dated 14.2.2012 with effect from the same date with all consequential and other attendant benefits and pass such other order or orders......."

2. The claim of the petitioner is that he joined as NMR

in R & B Department on 4.1.1984 while he was working as

such his services were dispensed with in violation of the

provisions of Industrial Disputes Act. Assailing the

retrenchment he approached the Industrial Tribunal-Cum-

Labour Court. And the Tribunal has passed an awarded

vide Award dated 10.09.2004 directed the respondents to

reinstate the petitioner into service and also directed to pay

back wages. In view of the same he was reinstated into

service and back wages were also paid to him. Thereafter,

the petitioner approached this Court by way of filing

W.P.no.7615 of 2011 seeking regularization of his services

and this Court directed to consider the case of the

petitioner. Accordingly, proposals were sent by the

Executive Engineer, R & B, Kakinada and the said proposals

were returned on the ground that he has not completed 5

years of continuous service as on 25.11.1993. It is also

stated that he has completed more than 30 years of service

and though he has not satisfied the parameters of

G.O.Ms.No.212 dated 22.4.1994, still he is eligible to be

considered for regularization.

It is further stated that the Government has issued

G.O.Rt.No.151 dated 14.02.2012 regularizing Sri

K.Narasimha Murthy (NMR) watchman working at

Amalapuram and he is similarly placed on par with the

petitioner and he also has not completed the parameters of

the G.O.Ms.No.212. Quoting the same, the petitioner

made a representation to the respondent authorities.

Accordingly, the Superintendent Engineer addressed the

Engineer-in-Chief, R & B, vide letter NO.3554/E.C4/2001,

dated 19.11.2015 to consider the case of the petitioner on

humanitarian grounds keeping in view the long length of

service rendered by the petitioner. But no decision has been

taken so far by the respondents. Hence, the present writ

petition.

3. Counter affidavit is filed by the 4th respondent

denying all the allegations made in the petition and

contended that the petitioner has joined as NMR Mazdoor

and worked in two spells from 04.01.1984 to 12.08.1992 to

02.04.1995 respectively and continuing as NMR on the

directions of Industrial Tribunal-cum-Labour Court as well

as Hon'ble High Court of A.P., since 03.04.1995. the

regularization proposals were submitted to the higher

authorities, the same were returned stating that the

individual has not completed 5 years of continuous service

as on 25.11.1993 as per G.O.Ms.No.212 dated 22.04.1994.

It is further stated that the individual is seeking

implementing of the G.O.Rt.No.151, dated 14.02.2012 on

par with Sri K. Narasimha Murthy (NMR) Watchman. In

this regard, it was addressed the Engineer-in-Chief(R&B)

vide letter dated 19.11.2005 to consider his case on

humanitarian grounds and the same is pending and

awaiting for orders. Mainly it is stated that the said

G.O.Rt.No.151 was issued only in favour of Sri K.

Narasimha Murthy (NMR) Watchman not as general

purpose. As the matter is pending as stated supra before

the higher authority for directions, soon after receipt of the

directions, action will be taken against the petitioner.

Hence, prayed to dismiss the petition.

4. Heard Smt. A.V.S. Lakshmi, learned counsel

appearing for the petitioner and learned Government Pleader

for Services-II appearing for the respondents.

5. Learned counsel for the petitioner while arguing

the matter submits that the petitioner has been rendering

services to the State of A.P. since last 3 decades, and his

very continuance by the administration for a period of 30

yeas amply suggest the need and necessity of his services

and keeping a person as NMR for decades together without

regularization is not only unfortunate but it is highly illegal.

6. Per contra, learned Government Pleader appearing

for the respondents submits that already the respondent

authorities have sent letter to consider the case of the

petitioner on humanitarian grounds for regularization of his

services in the cadre of Office Subordinate in the existing

vacancy and waiting for orders. He further submits that the

case of the petitioner would have considered on par with Sri

K. Narasimha Murthy (NMR) Watchman if Government had

permitted. As the individual case was rejected earlier

because of not fulfilment of conditions laid in

G.O.Ms.No.212 dated 22.04.1994 for regularization of his

services, his case cannot be considered for regularization.

7. 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 v. Nellore

Municipal Corporation1 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.

8. The Hon'ble Supreme Court in case of reported in

Secretary, State of Karnataka v. Umadevi2, held as under:

"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

Civil Apepal No.6318 of 2015,\ decided on 17.08.2015

(2006) 4 SCC 1

under cover of orders of 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 subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

9. As already pointed out, 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 now come forward and say that there were no vacancies

as on the date that the employees in question completed five

years in service, on or before 25.11.1993. A mere assertion

in this regard is nothing short of an unsupported self-

serving ipse dixit on the part of the State and its

instrumentalities and cannot be accepted at face value.

Further, the facts in some of the cases on hand clearly

demonstrate that despite clear vacancies being available, no

timely steps were taken. Further, 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. In such a

situation where the State and its instrumentalities are

responsible for the situation where it cannot be assessed

now as to whether Condition No.5 in G.O.Ms.No.212 stood

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 is perhaps this very aspect that weighed with

the Supreme Court in B.SRINIVASULU (supra 1), as no

mention was made therein of strict compliance with

Condition No.5 in G.O.Ms.No.212, despite the said issue

being brought up by the Nellore Municipal Corporation.

10. The question of the State Exchequer being

saddled with additional expenditure in relation to such

regularization does not arise, as the relief already granted to

some of the employees in the cases on hand is to reckon

their services upon completion of five years on or before

25.11.1993 only for the purpose of their pension and

pensionary benefits. They are not to be given any monetary

benefits in the form of arrears of pay or otherwise. Similar

relief would have to be extended to those employees who

were non-suited by the Tribunal and are before this Court.

As all of them served the State or its instrumentalities for

decades together, extending to them the benefit of such

service only for the purpose of pension and pensionary

benefits can hardly be said to be an onerous burden either

on the State or the State Exchequer. Having utilized their

services all along, the State and its instrumentalities cannot

now turn their back on the loyal services rendered by these

employees.

11. In view of the above foregoing discussion and in

view of the submissions made by both the learned counsels

and upon perusing the entire material evidence on record,

this Court is of the considered view that the concerned

respondent authorities are directed to extend the benefit of

B.SRINIVASULU ( supra 1) to the petitioner in this case by

reckoning their services from the date of completion of five

years in service, on or before 25.11.1993, for the purpose of

their pension and pensionary benefits, within a period of

eight (08) weeks from the date of receipt of a copy of this

order, in accordance with law .

12. With the above direction, the Writ Petition is

disposed of. There shall be no order as to costs.

As a sequel, interlocutory applications, if any pending,

shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 21 -12-2022 Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

WRIT PETITION (AT) No.193 of 2021

Date : 21 .12.2022

Gvl