Ch Narasimha Rao vs The State Of Andhra Pradesh
2022 Latest Caselaw 4668 AP

          HON'BLE DR. JUSTICE K. MANMADHA RAO

               WRIT PETITION No.14613 of 2020
ORDER :

This writ petition is filed under Article 226 of the

Constitution of India for the following relief:-

"to issue a Writ Order or direction more in the nature of Mandamus declaring the action of the Respondent in not regularizing services against Junior Assistant / Forest Beat Officer from the date on which I complete 5 years of service i.e., 1.3.1991 as per the G.O.Ms.No. 212 Finance and Planning Dept., dt 22.4.1994 as illegal arbitrary and in utter violation of Article 14, 16 and 21 of the Constitution of India and contrary to the G.O.Ms.No. 212 Finance and Planning Dept., dt 22.4.1994 and contrary to the law laid down by the Apex Court in Manjula Bhashini Vs State of Andhra Pradesh and other cases and consequently declare that the petitioner is entitled for regularization of services from 1.3.1991 with regular pay attached to the post with all consequential benefits and to grant such other or further orders......."

2. Brief facts of the case are that the petitioner was

engaged as Technical Maistry assisting in the Range Office at

Sileru in the office side by attending all ministerial works on

par with other ministerial staff. He has completed 5 years of

service as on the cutoff date i.e., on 25.11.1993. Keeping in

view the Government Orders i.e., G.O.Ms.No.117 Environment,

Forests, Science & Technology (For.V) Department, dated

27.2.2009 the Principal Chief Conservators of Forests issued

orders dated 9.10.2009 for extending Minimum Time Scale

provided against vacancy of Forest Beat Officer. The said

Minimum Time Scale is being enhanced as per Revised Pay

scales. While passing the said orders for Minimum Time Scale

details of first appointment, qualifications and availability of

vacancy were all taken into account. On 29.10.2009

proceedings were issued by the Divisional Forest Officer,

Narsipatnam, granting minimum time scale of Rs.4,595/- -

10,285/- in the category of Forest Beat Officer with D.A. to the

petitioner. Thereafter, similarly situated persons who are

granted MTS under G.O.Ms.No.117 EFS&T (For.V)

Department, dated 27.2.2009 have filed O.A No.6978 of 2013

and batch for granting increments, HRA, Additional HRA and

other allowances and the same was allowed by the A.P.

Administrative Tribunal and the same was confirmed by this

Court. Accordingly, the colleagues of the petitioner were

getting increments and other benefits referred to above.

It is further stated that the petitioner is continuing in

service from 1.3.1986 continuously as per their record. As per

G.O.Ms.No.212 Finance & Planning Department, dated

22.4.1994 persons who complete 5 years of service on

25.11.1993 are to be regularized on fulfillment of certain

conditions. Though the petitioner got 5 years of service as on

the cutoff date due to the administrative reasons not

conducting exercise periodically in this regard his services

could not be regularized and as such he is continuing on

consolidated pay basis for the last more than 35 years without

any security and without receiving any scale attached to the

post of FBO. As the petitioner has not getting any increments

and benefits, he made a representation dated 3.7.2017 to the

respondents for extending the said benefits to him. But the

respondents have not taken any action till now. Hence, the

present writ petition.

3. Counter affidavit is filed by the respondents denying

all the averments made in the petition and contended that

G.O.Ms.No.212 Finance & Planning (FW.PC.III) Department

dated 22.04.1994 is not applicable to the petitioner. in the

said G.O. the Government has decided that the services of

persons who worked continuously for a minimum period of 5

years and are continuing on 25.11.1993 be regularized by the

appointing authorities. But the petitioner has not completed 5

years service as on 25.11.1993 and not working as on

25.11.1993. It is further stated that the Government in

G.M.No.4903/Sec.V/2014, dated 28.3.2017 has issued orders

that the applicants in O.A No.6978/2013 only be granted HRA

and annual grade increments in the time scale where in their

pay was fixed w.e.f. 27.9.2013 and to extend the benefit to

further pay revision made and time to time. Hence, the

representation of the petitioner has been forwarded to the

Conservator of Forests, Visakhapatnam for onward submission

to the Prl. Cheif Conservator of Forests (HoFF) to take decision

on the representation of the individual by the Government.

It is further stated that the petitioner originally engaged

from 01.02.1986 under DET Non-Plan scheme and continued

upto October, 1988. Later he has not rendered his services in

the department. Subsequently he joined in the department

from 01.09.1999 and continued till 03/2000 under World

Bank Scheme later from 04/2001 to 03./2004, he rendered his

services under NABARD - V, VII & VIII Schemes. Later from

4/2004 to 10/2004, 12/2004 to 03/2006 and 06/2006 to

01/2009 the petitioner rendered his services in the department

under APCFM Scheme with intervals. As seen from the wage

vouchers available in this office, the petitioner never rendered

his service continuously for 5 years as on 25.11.1993 to enable

him to draw the benefits under G.O.Ms.No.212, dated

22.04.1994. If the petitioner completed 5 years service as on

25.11.1993 and in continuous service on 25.11.1993,, the

proposal would have been submitted to the Government for

regularization of his services. The petitioner has never made

any representation for regularization of his services from the

date of issue of G.O.Ms.No.212, dated 22.4.1994 to till date.

Hence, in view of the above circumstances, prayed to dismiss

the writ petition.

4. Heard learned counsel appearing for the petitioner

and learned Government Pleader for Services-I appearing for

the respondents.

5. On hearing , it is to be noted that as per judgment of

composite High Court of A.P. reported in Government of A.P.

rep. by its Principal Secretary, PR and RD Department,

Hyderabad and others v. N. Venkaiah and others1, wherein

it was held that :

2018 (4) ALT 6 (D.B)

"(i) whether the persons employed on daily wage basis or nominal muster roll or consolidated pay or as contingent worker on full-time basis in different departments of the Government of Andhra Pradesh and its agencies/ instrumentalities are entitled to be regularized in service on completion of 5 years, and

ii) Whether the amendments made in the Andhra Pradesh (Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994 (for short "the 1994 Act") by Amendment Acts 3 and 27 of 1998 are ultra vires the provisions of the Constitution"

6. It is no doubt true that in a case of District Collector

v. M.L. Singh2 and again in A. Manjula Bhashini v. Managing

Director, Andhra Pradesh Women's Cooperative Finance

Corporation Limited3, wherein in para-35 it was held that:

" 35. In Govt. of Andhra Pradesh v. G.V.K. Girls High School4, this Court answered in negative the question whether the Government could issue a G.O. and deny benefit of grant-in-aid to the school and amend the Andhra Pradesh Education Act, 1982 for denying the benefit of the judgment rendered by the High Court in favour of the respondent. "

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

Corporation5 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 (2

(2009) 8 SCC 480

2009 (5) ALT 1 (SC)

(2000) 8 SCC 370

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

supra). However, no reference was made to the later

observation in M.L.Singh (2 supra) 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.

8. A reliance on the judgment of Secretary, State of

Karnataka v. Umadevi6, more particularly, Para 43 thereof,

which reads as under:

"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution.

Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued

(2006) 4 SCC 1

under cover of an order of the court, which we have described as litigious employment in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."

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.

10. In view of the above foregoing discussion and in view

of the decisions of the Hon'ble Supreme Court and this Court

referred to above and upon perusing the entire material

evidence on record, this Court is of the considered view that

the concerned respondent authorities are directed to regularize

the services of the petitioner from the date on which he has

completed 5 years service i.e., 01.03.1991 as per

G.O.Ms.No.212 Finance & Planning Department, dated

22.04.1994. Further, the respondents are directed to pay all

the consequential benefits with regular pay attached to the

post, in accordance with law, within a period of eight (08)

weeks from the date of receipt of a copy of this order.

11. With the above direction, the Writ Petition is

disposed of. No order as to costs.

As a sequel, interlocutory applications, if any pending,

shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 27-07-2022 Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

WRIT PETITION No.14613 of 2020

Date : 27.07.2022

Gvl