P.Nukaraju vs The Deputy Executive Engineer
2023 Latest Caselaw 876 AP

      HON'BLE DR. JUSTICE K. MANMADHA RAO

      WRIT PETITION (AT) No.95 and 425 of 2021

COMMON ORDER :

     As the issue involved in these writ petitions is one

and the same, these matters are taken up together for

disposal by this Common Order.


     2. The facts in these writ petitions are similar and

identical, therefore W.P.(AT) No.95 of 2021 is taken as

lead case, and the facts therein are referred to for

convenience.


     3. The case of the petitioners in these cases is that

the respondent Government has framed a Special scheme

for Regularization and absorption of Daily Wage/NMR or

Consolidated pay vide G.O.Ms.No.212 Fin. Dated

22.04.1994 and accordingly framed certain conditions i.e.,

the person worked continuously for a minimum period of 5

years and are continuing on 25.11.1993 be regularized by

the appointing authority subject to fulfillment of the said

conditions. Though the petitioners were appointed after due

process of selection and possessed the qualification

prescribed for the post of Bore Mechanic and they are

completed the service of 29 and 23 years respectively. It is

further stated that the respondents cannot be disputed that

there is no vacancy for their absorption as they are

continuously working 29 and 23 years respectively without

any break and number of vacancies have been arising due

to promotions, death, retirements etc. Therefore, the

respondents ought to have absorbed them on completion of

five years of continuous service in any one of the vacancies

caused on the above reasons. However, the respondents

intentionally extracting work from them on daily wage basis

by paying enhanced remuneration from time to time and

avoid regularization which is illegal and arbitrary. Hence

the present writ petitions have been filed.

4. The counter affidavit has been filed by the 2nd

respondent in the W.P.(AT) No.95 of 2021 denying all the

allegations made in the petition and contending that the

regularization of the services of the petitioners herein by the

Rural Water Supply and Sanitation Department does not

arise. Therefore the claim of the petitioners herein for

regularization as Bore Mechanics in Rural Water Supply and

Sanitation Department in terms of G.O.ms.No.212 Finance

& Planning (FW.PC.III) Department dated 22.04.1994 does

not arise. It is further stated that the Engineer-in-Chief,

RWS&S, Hyderabad in Circular Memo No.JE3A/RWS-

1/O&M of HPs/08, dated 23.01.2008 has issued

instructions that as per the Government Orders and as a

part of devolution of powers to PRI bodies, the maintenance

of CPWS Schemes and Hand pumps are entrusted to Zilla

Parishads and Mandal Parishands respectively and as such

necessary funds are being released to the Zilla Parishads

and Mandal Parishads respectively under 12th Finance

Commission grant. As such all the funds are available with

the Zilla Parishads and Mandal Parishads respectively.

Therefore, prayed to dismiss the petitions.

5. The pleadings which are cited by the petitioners

in W.P.(AT). No.95 of 2021, the same are adopted by the

another petitioner in the other writ petition i.e., W.P.(AT)

No.425 of 2021 and the counters filed by the respondents

in the writ petitions are also one and same.

6. Heard Mr. A. Radha Krishna, learned counsel

appearing for the petitioners and learned Government

Pleader for Services-IV appearing for the respondents.

7. During hearing, both the learned counsel for the

petitioners reiterated the averments made in the petitions,

whereas learned Government Pleader for the respondents

also reiterated the contents made in the counter

affidavits.

8. 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 :

"(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

2018 (4) ALT 6 (D.B)

Amendment Acts 3 and 27 of 1998 are ultra vires the provisions of the Constitution"

9. 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

(2009) 8 SCC 480

2009 (5) ALT 1 (SC)

(2000) 8 SCC 370

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

Court in M.L.Singh (2 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.

10. 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

(2006) 4 SCC 1

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 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."

11. 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.

12. 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 .

14. With the above direction, the Writ Petitions are

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

As a sequel, all the pending miscellaneous

applications shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date :        15 -02-2023
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      HON'BLE DR. JUSTICE K. MANMADHA RAO




      WRIT PETITION (AT) Nos.95 & 425 of 2021




                Date :   15 .02.2023




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