Andhra Pradesh High Court - Amravati
J. Pumachandra Rao, vs The State Of Andhra Pradesh, on 1 December, 2023
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.43245 OF 2017
ORDER:
This Writ Petition is filed under Article 226 of the
Constitution of India for the following relief:-
"To issue order or direction, more particularly one
in the nature of Writ of Mandamus declaring the action
of the respondent in regularizing the services of the writ
petitioner as Asst. Grade-III with effect from 28.07.2017
as fixed in G.O.Ms.12 of the 1st respondent,
Dt.28.07.2017 by ignoring the date of vacancy as
stipulated in G.O.Ms.No.448, dt: 16.06.1989 of the 1 st
respondent and contrary to what was done to similarly
situated persons namely Sri J.Sudhakar, P.Narayana
Reddy and others and not paying to the petitioner's
retirement benefits to him as arbitrary and violative of
Articles 14, 16 & 21 of the Constitution of India and
consequently, direct the respondents to regularize
petitioner's service from the date of his employment i.e.,
03.01.1985 or such other date as this Hon'ble Court
deems as fit and proper with all consequent benefits,
difference of salary and retirement benefits namely
Gratuity, Leave Salary, and other pensionary benefits
with interest @ 12% per annum. Grant Cost of the
proceedings and pass such other order."
2. The petitioner herein was temporarily appointed on
03.01.1985 as Typist on daily basis in District Office at Guntur
of A.P.State Civil Supplies Corporation Limited and he was orally
terminated by proceedings dated 31.10.1988. Aggrieved by the
oral termination order, the petitioner was constrained to
approach the Labour Court, Guntur. The Labour Court, vide
proceedings dated 24.06.1992 in I.D.No.283 of 1989, has
directed the respondents herein to reinstate the petitioner as
Clerk-cum-Typist with continuity of service and other attendant
benefits without back wages by setting aside the oral termination
order.
3. Aggrieved by the said order of Labour Court dated
24.06.1992 in I.D.No.283 of 1989, the respondents herein have
assailed the same in W.P.No.4236 of 1993 before the composite
High Court of Andhra Pradesh at Hyderabad (hereinafter called
as 'High Court') and the High Court has disposed of the said Writ
Petition, vide order dated 24.06.1997.
4. Accordingly, the petitioner herein was reinstated on
05.06.1993 as Clerk-cum-Typist. The petitioner herein made
several representations to the respondents 1 and 2 herein
repeatedly for regularization of his services as per
G.O.Ms.No.448, Food & Agriculture (C.S.III) Department dated
16.06.1989 with effect from 03.01.1985. The said date is the
appointment date of the petitioner herein.
5. It is also pertinent to mention that the petitioner herein
filed W.P.No.4868 of 1994 before the composite High Court to
direct the respondents to regularize his services in the
Corporation as Clerk-cum-Typist in pursuant to G.O.Ms.No.448,
dated 16.06.1989 by paying back wages and on 24.06.1997, the
High Court passed the order which reads as follows:
"In our view the said orders of Labour Court is
just and proper. Hence the same does not warrant any
interference. The petitioners contention that the Labour
Court ought to have ordered for regularization of the
petitioners services is quite alien to the issue. That has
to be pursued before the Labour Court. If the petitioner
feels that his services should have been regularized in
view of G.O.Ms.No.448 dtd: 16.06.1989, it is open to
him to make representation to the respondent
authorities. If such representation is given, the same
shall be considered as per law by the respondent-
authorities. The writ petition is accordingly disposed of.
No costs."
6. Basing upon the repeated representations, the 2nd
respondent had sent the proposal to the 1st respondent and the
1st respondent had considered the same in consultation with the
Finance Department and the services of the petitioner were
regularized by the 1st respondent, vide G.O.Ms.No.12, Consumer
Affairs, Food and Civil Supplies (CS.I) Department dated
28.07.2017, which reads as follows:
"Hereby regularized the services of Sri J. Purna
Chandra Rao, Typist (Daily Wages) working in the Office
of the District Manager, APSCSCL, Guntur against the
proposed vacancy of Assistant Grade III in terms of
G.O.Ms.No.212, Finance (PC.III) Department, dated
22.04.1994, from prospective date as per Memo
No.573/225/A3/PC.III/97, dated 01.09.1997 i.e., from
the date of issue of orders, subject to condition that the
said vacancy is clear, regular and continued from time
to time till date and no senior eligible person is
overlooked/omitted and subject to following rule of
reservation."
7. Aggrieved by the action of the respondents in appointing
the petitioner, vide G.O.Ms.No.12 dated 28.07.2017, ignoring the
date of vacancy as stipulated in G.O.Ms.No.448 dated
16.06.1989 and not regularizing the services with retrospective
date as his initial appointment date 03.01.1985, filed the present
Writ Petition.
8. Learned counsel appearing for the petitioner would
contend that the services of the persons, who were appointed
subsequent to the petitioner, were regularized as Typist with
retrospective date and not considering the case of the petitioner
would amount to arbitrary and therefore prayed to direct the
respondents herein to regularize the services of the petitioner
from the date of initial appointment, i.e., 03.01.1985 in
pursuance of G.O.Ms.No.448 dated 16.06.1989.
9. Learned counsel for the respondents filed their counter and
have accepted all the facts stated supra and contends that the
petitioner herein made a representation dated 29.07.2017 to
regularize his service as Asst. Grade-III in pursuant to Memo
dated 01.09.1997 and accordingly the petitioner was appointed
vide G.O.Ms.No.12 dated 28.07.2017, accordingly the services of
the petitioner were regularized in the cadre of Assistant Grade-III
from the date of issuance of the orders, vide proceedings dated
31.07.2017 in terms of G.O.Ms.No.12 dated 28.07.2017 and now
the petitioner cannot raise any objections having accepted for
regularization from the prospective date and the same is evident
through his representation dated 29.07.2017 and stated that all
the benefits were paid to the petitioner and he would also
contend that no vacancy in the cadre of Typist and therefore, the
petitioner was appointed as Assistant Grade-III and the
petitioner cannot compare with the other employees who were
absorbed/ regularized in the APSCSC Limited from the date of
their joining as the individuals merged with APSCSC Limited and
RP & RD Department and the petitioner is working on daily wage
and therefore he is not entitled to compare with the other
employees to regularize his services retrospectively and orally
contended that the petitioner was not appointed in any
sanctioned post.
10. It is mainly contested by the respondents that there is no
vacancy of Typist and his appointment is irregular appointment
and his services were utilized as job typist only for 13 days, i.e.,
from 01.10.1988 to 12.10.1988, for which period, he was paid
@Rs.210/- per day and he was engaged as Typist during the
maternity leave of a regular Typist as he was a daily wage
employee, his services cannot be regularized as the petitioner
was not appointed in any sanctioned post and hence, prayed to
dismiss the Writ Petition.
11. Learned counsel for the respondents relies on the judgment
of the Apex Court in Union of India and another vs. Manpreet
Singh Poonam Etc.1, wherein the Apex Court has held that a mere
existence of vacancy per se will not create a right in favour of an
employee for retrospective promotion when the vacancies in the
promotional post is specifically prescribed under the rules, which
also mandate the clearance through a selection process. He also
relies on the judgment of the Supreme Court in Director General,
Doordarshan Prasar Bharti Corporation of India and another vs.
Magi H. Desai2, wherein the Supreme Court held that in the
absence of any scheme in the appellants' department in which the
respondent rendered service, the appellant-Doordarshan Prasar
Bharti Corporation of India is an autonomous independent
department/body, as observed heein above, neither the rule nor
the regularization scheme provide that services rendered as
casual/contractual shall be treated as temporary service and/or
2022 LiveLaw (SC) 254
2023 SCC Online SC 336
the same shall be counted for the purposes of pensionary/service
benefits.
12. Per contra, learned counsel for the petitioner relies on the
judgment of the Apex Court in Union of India and others vs.
Munshi Ram3, for the proposition that the services rendered prior
to the regularization to be counted for the pensionary benefits,
the employees working in different zones/divisions are required
to be treated as similarly and equally placed persons and are
entitled to similar benefits and are entitled to the same
treatment and there cannot be any discrimination inter se and
there cannot be different criteria/parameters with respect to
similarly situated employees while working under the same
employer.
13. Now the point for consideration is that whether this Court
can order/direct the respondents herein to regularize the
services of the petitioner retrospectively and whether the
petitioner has accepted his regularization from the prospective
date as per the representation dated 29.07.2017?
2023(1) SLJ 1
14. The Supreme Court in Surendra Kumar v. Greater Noida
Industrial Development Authority4 at paragraph No.14 of the said
judgment by referring another judgment of the Supreme Court
rendered in the case of M.P. Palanisamy v. A. Krishnan 5, held
that once the regularization orders have been accepted by the
writ petitioners, which were conditional, then it has to be born in
mind that they have accepted the condition also. In the present
case, the petitioner herein made a representation to the
respondent-authorities to regularize his services in Assistant
Grade-III post and accordingly, the respondents herein have
appointed the petitioner herein in Assistant Grade-III post and
the said appointment was accepted by the petitioner herein
without any protest. Therefore, the petitioner cannot claim that
he should be regularized from the date of initial appointment.
15. In view of the above said judgment, the petitioner now
cannot agitate that he should be appointed retrospectively, as he
has accepted the condition and joined in the service by virtue of
G.O.Ms.No.12, dated 28.07.2017, which is impugned in the
present Writ Petition.
(2015) 14 SCC 382
(2009) 6 SCC 428
16. Therefore, for the reasons stated above, the petitioner is
not entitled for any relief much less for his appointment
retrospectively.
17. Accordingly, the Writ Petition is dismissed. There shall be
no order as to costs of the Writ Petition.
As a sequel, interlocutory applications pending, if any, in
this Writ Petition shall stand closed.
________________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 01.12.2023
siva
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.43245 OF 2017
Date: 01.12.2023
siva
