C. Venkatarami Reddy vs State Of Andhra Pradesh, Rep By Its ...
2022 Latest Caselaw 2542 AP

          HON'BLE DR. JUSTICE K. MANMADHA RAO

                WRIT PETITION No.34559 of 2013
ORDER :

This petition is filed under Article 226 of the Constitution

of India for the following relief:-

"to declare the action of the respondents in not regularizing the services of the petitioners from the date of completion of 5 years of services is illegal, arbitrary and further directed the Respondents to regularize the services of the petitioners from the date of completion of 5 years of service as done in the case of similarly situated persons in terms of the orders in W.P.No.9744/97 and W.A.No 930/2001, dated 20.10.2008 which was confirmed in SLP No.22184/2009, dated 7.1.2010 and pass such other order or orders......."

2. The case of the petitioners is that they were appointed

as NMRs under the 2nd respondent in the year 1986-87 on

different dates and their services were regularized by the 2nd

respondent vide different proceedings and as such they are

continuing without any blemish whatsoever from the higher

authorities. The Government introduced Contributory

Pension Scheme from 2004 onwards w.e.f. 1.9.2004 and

under the said scheme, the authorities will deduct 10% of the

basic pay and DA from their salaries towards pension

contribution.

While the matter stood thus, some of the employees of

the Tirupathi Urban Development Authority approached this

Court by way of filing WP No.18897 of 2009 and W.P.No.9744

of 1997 for regularization of their services. Thereafter, the

respondents regularized their services from the date of

completion of 5 years of services, in terms of orders in WP

No.9744 of 1997 which was confirmed in WA No.930 of 2001

dated 25.10.2008 by a division Bench of this Court. It is

further stated that the persons who are appointed after the

appointment of the petitioners as NMRs their services were

regularized from the date of completion of 5 years of service,

whereas the petitioners' services were regularized from the date

of issuance of proceedings as shown above. In view of the

same, the petitioners are losing the service benefits of the

pension schemes, arrears of wages, whereas their juniors

getting the pension scheme, depriving the said benefit to the

petitioners is illegal and arbitrary. Hence, the present writ

petition.

3. Counter affidavit is filed by the 2nd respondent

denying all the averments made in the petition and contended

that the petitioners were already regularized after declaring

their probation between 2005 to 2008 as and when regular

vacancy arose based on their seniority as NMRs and following

the rule of reservation as per G.O.Ms.No.212, Finance and

Planning (FW.PC.III) Department, dated 22.4.1994 in which

certain guidelines were issued in respect of Act 2 of 1994

which Act came into force with effect from 25.11.1993. these

petitioners have also completed 6 to 9 years of service. The

petitioners even received monetary benefits consequent to their

regularization and they even became members of the schemes

floated after regularization on par with the regular employees.

The petitioners have voluntarily agreed and received all the

benefits and as such the relief claimed by the petitioners in the

writ petition cannot be entertained at this stage and unsettle

the issues already settled long back.

It is also stated that as per the orders of this Court in WP

No.9744 of 1997 and WP No.10897 of 2009 and also

Government Orders, the petitioners' services therein were

regularized with effect from 01.01.2001 onwards. The

petitioners in the above writ petitioners have been perusing

their remedies promptly from time to time as they were not

regularized, whereas the petitioners herein are claiming the

same relief after their regularization between 2005 to 2008, as

such the present writ petition cannot be treated as similarly

situated persons and the relief granted to the petitioners in

earlier Writ Petitions cannot be granted now. As such, prayed

to dismiss the writ petition.

4. Reply affidavit is filed by the petitioners inter alia

contended that the 2nd respondent in his counter admitted that

co-workers were extended the benefit of regularization from the

date of completion of 5 years in terms of orders of this Court

but only contention in the counter that there is a delay on their

part in approaching this Court. It is mainly stated that the

petitioners No.3 and 8 were retired from service on attaining

the age of superannuation, due to prospective regularization

they are not sanctioned pension and other retiral benefits,

though they are entitled for the same by counting service

rendered on daily wage basis prior to regularization of their

services. It is further stated that the similar issue has been

arisen before the Hon'ble Supreme Court in Civil Appeal

No.6318 of 2015, dated 27.8.2015, therein, the Hon'ble Apex

Court held that the daily wage employees/ temporary

employees etc., whose services were regularized in terms of the

G.O.Ms.No.212, dated 22.4.1994 are entitled retrospective

regularization from the date of completion of 5 years and the

above orders were followed by the composite High Court in

Batch of W.P.No.33936 of 2011 and batch dated 2.5.2018 and

held that the service rendered prior to regularization of their

services from the date of completion of 5 years for the purpose

of pension and retiral benefits, recently this Court was also

followed the above judgment and passed orders in W.A.No.414

of 2020, dated 27.08.2021 reported in 2021 (5) ALD p.422, and

this Court in several writ petitions it has been held that even in

terms of Rule 13 and 14 of Revised Pension Rules, the period

rendered on daily wage basis/ temporary basis should be

counted for the purpose of pension, as such the petitioners are

entitled to for the relief claimed as stated supra.

5. Heard learned counsel for the petitioners and learned

counsel for the respondents.

6. 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"

7. 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. "

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. It

is perhaps this very aspect that weighed with the Supreme

Court in B.SRINIVASULU (supra 5), 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 5) to the employees 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 purposes 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 :      15-06-2022
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]HON'BLE DR. JUSTICE K. MANMADHA RAO




          WRIT PETITION No.34559 of 2013




                Date :   15 .06.2022




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