HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.19038 OF 2021
ORDER:
The present Writ Petition is filed under Article 226 of Constitution of
India for the following relief/s:
"...to call for the records from the respondents and issue an appropriate Writ, Order or direction, particularly one in the nature of Writ of Mandamus and to direct the Respondents as under:
(i) To regularize her services of the writ petitioner with effect from 01.05.1991 under the provisions of Act No.2 of 1994 dated 15.01.1994 as amended by Act No.3 of 1998 dated 03.01.1998.
(ii) To pay the writ petitioner arrears of remuneration due to her for the work done in the post of Sweeper.
(iii) To appoint her in the cadre of Sweeper on permanent basis and not to the cadre of Office Subordinate by following the Roaster and according to her turn as S.C. Candidate under the provisions of Rule 7 of A.P. Last Grade Service Rules, 1992 with consequential benefits.
and pass such order or further orders...
2. As per the affidavit filed in support of the Writ Petition, the Petitioner
was appointed as Contingent worker in the Collector Office, Vizianagaram vide
proceedings L. Dis.No.4570/86, dated 30.04.1986. The said orders came into
force w.e.f. 01.05.1986. Since then she is discharging her duties in the cadre
of Sweeper on permanent basis and later she has been appointed as Office
Subordinate in the Office of Tahsildar, Gajapati Nagaram in Civil Supplies
Department under the control of Deputy Civil Supplies Officer, Vizianagaram
vide proceedings in RC No.1458/2016/BC, dated 06.11.2017.
3. While things stood thus, the petitioner has made a representation to
regularize her as Office Subordinate. As no steps have been taken by the 2
respondent authorities, the Writ Petitioner herein filed O.A. No.7464/2013
before the Andhra Pradesh Administrative Tribunal. The Tribunal by an order
dated 29.12.2016 has disposed of the said OA directing the respondent
authorities to consider the case of the petitioner for regularization of her
services in terms of G.O.Ms.No.212, Finance & Planning (FW.PC.III)
Department, dated 22.04.1994 or G.O.(P) No.112, Finance & Planning
(FW.PC.III) Department, dated 23.07.1997. While disposing the case, the
Administrative Tribunal has relied on the Judgment in Ms. A. Manjula
Bhashini and others v. Managing Director, A.P. Women's Cooperative Finance
Corporation Limited1.
4. Inspite of the order in the above said O.A., the petitioner herein also
filed W.P. No.13555/2019, seeking a relief to regularize her services w.e.f.
01.05.1991 under the provisions of Act II of 1994 dated 15.01.1994 as
amended by Act No.3 of 1998, dated 03.01.1998 and to pay the arrears of
remuneration due to her for the work done as sweeper and to appoint the
petitioner in the cadre of Sweeper on permanent basis and not in the cadre of
Office Subordinate by following roaster and according to her turn as SC
candidate under provisions of Rule 7 of Last Grade Service Rules, 1992 with
all consequential benefits. The said Writ Petition was disposed without going
into merits directing the respondent authorities to consider the representation
of the writ petitioner and directed the authorities to pass appropriate orders
within the stipulated time.
5. Basing on the said direction, issued by this Court in the above said
W.P. No.13555 of 2019, the respondent authorities have passed impugned
1 (2009) 8 SCC 441 3
order dated 16.04.2021. Advertenting the post of Office Subordinate is
governed by A.P. Last Grade Service Rules, 1992. As per Rule 5A of the said
Rules, the qualification for appointment for the post of Office
Subordinate is one must have passed 7th class examination. Smt.
Parvati-petitioner, is not having requisite educational qualification to
the post of Office Subordinate as per the conditions prescribed in
G.O.Ms.No.212, Finance & Planning Department, dated 22.04.1994.
The case of the petitioner was rejected vide Memo No.REV01-
LANAOCOUC(CCHC)/ 1236/2021-SER-II), dated 16.04.2021 and
subsequently vide RC No.1730/2020/B3 dated 23.08.2021, the District
Collector, Vizianagaram has passed orders cancelling the temporary
appointment order as Office Subordinate and continued the petitioner
as full time contingent employee.
6. Aggrieved by the said orders dated 16.04.2021, the present writ
petition came to be filed on the ground that the petitioner sought
regularization in the cadre of Sweeper and not to the post of
Attender/Office Subordinate and the petitioner is eligible for
regularization to the post of Sweeper as per statutory provisions of the
Last Grade Service Rules, 1964 and the orders of the regularization
issued by the Government vide G.O.Ms.No.212, Finance & Planning
Department, dated 24.04.1994 and also the eligibility criteria fixed
there under. It is further contended that the petitioner is eligible for
regularization to the post of sweeper in consonance with the various 4
rules, orders and judgments of the Hon'ble Supreme Court and this
Court.
7. Learned counsel for the respondents having filed counter affidavit
would submit that the petitioner was appointed as Daily Wage
Employee only, later on full time contingent worker vide Proceedings
No.4570 of 1986 dated 30.04.1986 but not a Sweeper and also paid
remuneration of Rs.740/- vide D.Dis No.10843/91-A3 dated
29.02.1992. It is further stated that as per the cadre strength of
Vizianagaram District Revenue Unit only Office Subordinate posts
(former designation as Attender) are sanctioned. Office Subordinate
posts are governed by the A.P. Last Grade Service Rules, 1992 for
which one must pass 7th class examination for appointment as office
subordinate. Except office subordinate posts, no other posts i.e.,
Sweeper, Hamali etc., are sanctioned. Though Smt. Ch. Parvathi
working in the Collector office as Full Time Contingent Employee prior
to 25.11.1993, her case was not considered in terms of G.O.Ms.No.212,
Finance & Planning (FW.PC-III) Department, dated 22.04.1994 and
G.O.Ms.No.112 Finance & Planning (FW.PC.III) Department dated
23.07.1997 for want of requisite educational qualification (passing 7 th
class) to hold the post of Office Subordinate.
8. In the Counter affidavit it has been asserted that the writ
petitioner was appointed as office subordinate as she has not having
requisite qualification as per the Last Grade Service Rules, 1992. Her 5
case for regularization has been rejected and the petitioner was not
appointed in the sweeper post and the sweeper post is not sanctioned
post as such her case was not considered for regularization.
9. As per the contention of learned counsel for the respondents, the
Office Subordinate Posts are governed by Last Grade Service Rules
which are sanctioned posts and there is no such Sweeper post and
where the petitioner was appointed under Last Grade Service Rules, as
she is not having requisite qualification (i.e. passing of 7th class
examination) as per the last Grade Service Rules 1992 and there is no
such post of Sweeper and her case was rejected for regularization.
10. As per the proceedings, dated 16.04.2021 the case of the
petitioner was not considered for regularization as the petitioner is not
having requisite educational qualification i.e. passing of 7 th class as the
petitioner is only having educational qualification of 3rd class. As per
the Rule 5A of A.P. Last Grade Service Rules, 1992, the requisite
qualification for the said post is 7th Class. Hence, the case of the
petitioner was rejected on the sole ground for regularization as Office
Subordinate. The petitioner was appointed on 30.04.1986 at that
relevant point of time, the A.P. Last Grade Service Rules, 1992 are not
in existence. The A.P. Last Grade Service Rules, 1964 are in force. As
per the A.P. Last Grade Service Rules, 1964, the appointment of the
person in the post of Attendar (must be able to read and write the
language or one of the languages of the District, in which 6
appointment is to be made). The authorities have taken the Last
Grade Service Rules, 1992, basing upon the G.O.Ms.No.212. As per
the G.O.Ms.No.212 the conditions required for regularization are
hereby extracted.
1) The persons appointed should possess the qualifications prescribed as per rules in force as on the date from which his/her services have to be regularized.
2) They should be within the age limits as on the date of appointment as NMR/Daily wage employee.
3) The rule of reservation where even applicable will be followed and back-log will be set-off against future vacancies.
4) Sponsoring of candidates from Employment Exchange is relaxed.
5) Absorption shall be against clear vacancies of posts considered necessary to be continued as per work-load excluding the vacancies already notified to the Andhra Pradesh Public Service Commission/District Selection Committee.
6) In case of Workcharged Establishment, where there will be no clear vacancies, because of the fact that the expenditure on Workcharged is at a fixed percentage of P.S. charges and as soon as the work is over, the services of workcharged establishment will have to be terminated, they shall be adjusted in the other departments. District offices provided there are clear vacancies of Last Grade Service.
11. The respondent authorities have relied on the condition no.1 i.e.
incumbent should possess the qualification prescribed as per Rules in
force as on the date from which his/her services has to be regularized.
The respondent authorities are oblivious of the fact that the requisite
qualification has to be looked only at the time of appointment or date of
notification. Petitioner was appointed on 30.04.1936 as per the
proceedings dated 30.04.1986. Admittedly by that date the Last Grade
Service Rules, 1992 are not in existence. Only, A.P. Last Grade Service 7
Rules, 1964 are in force. As per A.P. Last Grade Service Rules, 1964 no
qualification was prescribed for the post of Attender.
12. The Hon'ble Supreme Court in Alka Ojah v. Rajastan Public
Service Commission 2 held that suitability and eligibility has to be
considered with reference to last date of receiving application unless
the notification calling for applications, itself specifies such a date. The
date of qualification is as per the advertisement/ notification when no
such qualification is prescribed, last date for filing of application must
be considered as cut of date for the qualification. In the present case,
the petitioner was appointed on 30.04.1986, the educational
qualification at the time of joining is relevant not as stated in the
impugned proceedings dated 16.04.2021.
13. The similar issue has been came into consideration before this
Court in W.P. No.30074 of 2016, and held that A.P. Last Grade Service
Rules, 1992 are not applicable and the earlier rules which are notified,
did not stipulate qualification of 7th class for consideration of the
candidate for appointment on the said ground this Court has rejected
the contention of the respondents. The requisite qualification as per
the A.P. Last Grade Service Rules, 1992, are in prospective nature and
directed the authorities to consider the case of the petitioner for
regularization under A.P. Last Grade Service Rules, 1964.
2 2011 9 SCC 438 8
14. In the present issue, where the petitioner has been jointed in the
service in the year 1986 by which time, the A.P. Last Grade Service
Rules, 1992 are not in existence. The same Rules cannot be applied for
regularization of the services of the petitioner for want of educational
qualification. Under A.P. Last Grade Service Rules, 1964, there is no
such stipulation of passing 7th class. Hence, the case of the petitioner
can be considered for regularization under A.P. Last Grade Service
Rules, 1964.
15. Learned counsel for the petitioner further submit that the
petitioner's case was also rejected on the other ground that there is no
such sanctioned post of Sweeper and her case cannot be rejected for
regularization for which, the petitioner has relied on the following
judgments i.e. Power Grid Corporation of India Limited v. The 17
Workers represented by the President, Khammam District Security
Personnel Union and others3 and relied on NihalSingh and others v. State
of Punjab4, State of Gujarat & Ors. Vs. PWD Employees Union & Ors.
Etc.5 and in M.V. Subba Rao and Ors. V. District Scheduled Caste Service
Cooperative Society Ltd., Nellore and ors6
16. It was held that when the appropriate Government find that the
employment is of perennial in nature etc., contract system stands
abolished thereby it intended that if the workmen were performing the
3 2014 (1) ALT 97 4 2013 (7) SCJ 52 5 2013 (6) SCJ 623 6 2000 (6) ALT 587 9
duties of the post which were found to be of perennial in nature on par
with regular services they also required to be regularized. And also
held that continuing the incumbent for more than 30 years without
granting her service benefits is amounts to arbitrary and erroneous and
it is contrary to the Constitutional provisions in settled principles of
law. And further observed in the said judgments that refusal to
regularize the services on the ground that there are no sanctioned posts
is bad particularly when it is not the requirement of the
G.O.Ms.No.212, dated 22.04.1994. The Hon'ble Supreme Court and the
High Court has directed the authorities for regularization even though
there is no sanctioned post when the nature of work is perennial. In the
present case, the petitioner is working since last 35 years hence it can
be safely construed that the post is perennial in nature. Hence, in view
of the above judgments, the contention of the respondents is hereby
rejected as there is no sanctioned post.
17. It is very unfortunate as the petitioner is working since more
than 35 years has not been considered by the respondents and making
her to run from pillar to post for regularization. Hence, it is the case to
issue mandamus to the respondent authorities to regularize the
services of the petitioner.
18. In view of the Judgments adverted above and as per the above
discussion with regard to the educational qualification the respondents 10
shall consider the case of the petitioner for regularization of her
services as per law.
19. The respondents shall consider the case of the petitioner for
regularization of her services either in the post of office Subordinate or
by creating a supernumerary post as Sweeper, subject to the feasibility
within a period of three months from the date of receipt of a copy of this
order.
20. With the above said direction, the writ petition is disposed of. No
costs.
As a sequel, interlocutory applications pending, if any, shall
stand closed.
_____________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 11-10-2022 harin 11
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
114
W.P.No.19038 OF 2021
Date: 11-10-2022
Harin
