D.B. Raja Babu, vs State Of Andhra Pradesh, Rep. By ...
2023 Latest Caselaw 141 AP

     THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

                  Writ Petition No.17114 of 2002

ORDER:

The petitioner who has been working as Work Inspector,

Grade-IV in the post of Tracer under NMR category since

05.02.1989 in the 2nd respondent / University filed the instant writ

petition seeking a writ of mandamus to direct the respondents to

regularize his services as Tracer w.e.f. the date of his initial

appointment i.e., 05.02.1989 and also to direct the respondents to

grant all consequential benefits including seniority, promotion etc.

2. It should be noted that it is the second round of litigation.

Earlier the petitioner and another employee have filed

W.P.No.25870/1995 before the common High Court of A.P.

seeking a writ of mandamus to direct the respondent / University to

regularize their services from their respective dates of initial

appointment and to pay salary in the regular scale of pay attached

to the posts of Draughtsman and Tracer respectively. A learned

single Judge passed the following order dated 06.08.1996:

"The Government Pleader submitted that under the said G.O.Ms.No.212 the prior approval of the Government is required and if the Government is impleaded and any direction is given appropriate orders will be passed. In the circumstances, I deem it fit to implead the Government and direct the Government to pass appropriate orders on the proposal of the University for regularization of the services of these 2 petitioners within two months from the date of receipt of a copy of this order."

(a) Aggrieved, the University preferred W.A.No.1046/1996.

A Division Bench of the common High Court passed common

judgment dated 11.09.1996 in the said appeal and other writ

appeals, which is as under:

"Learned single Judge has found good grounds in favour of such employees, who have worked for more than eight years, to seek regularization and accordingly given a direction and observed if their services are not regularized by a specified time limit fixed by the Court, they would be paid for the work done by them salary in the scale of pay admissible for the Assistant Engineers. All that we, on the facts of the instant case, order is that on their entering into the service as Assistant Engineers the writ petitioner - respondents shall receive the pay at the lowest of the scale and shall continue thereafter to receive emoluments in the regular scale of pay, and also that before their services are regularized as repeatedly pointed out, if they have entered without undergoing the process of selection, the concerned authorities shall interview them and decide whether they are eligible and fit to be absorbed in

the regular service i.e., there shall be some sort of selection, if they are not already selected by any such process."

(b) Thereafter, the respondent / University preferred Civil

Appeal Nos.14590-14594 of 1996 arising out of SLP (C)

No.21373-76, 22207/1996 and the Hon'ble Apex Court passed the

following order:

"Leave granted. We have heard the learned counsel on both sides.

These appeals by special leave arise from the order of the learned single Judge as affirmed by the division bench of the High Court of Andhra Pradesh directing to consider the cases of the respondents in accordance with the G.O.Ms.No.212 Finance and Planning (FW.PC. III) Department, dated 22.4.94. We are informed that the University has already passed the orders rejecting the claim of the respondents for regularization in terms of the above G.O. In that view nothing further survives in these appeals. The appeals are accordingly dismissed in view of the changed circumstances. No costs."

(c) The petitioner's case is that on respondent / University

informing to the Hon'ble Apex Court that the case of the present

petitioner and others were considered in accordance with the

G.O.Ms.No.212 and rejected their request for regularization, the

Civil Appeals filed by the respondent / University were dismissed

by the Hon'ble Apex Court, and the petitioner came to know that

his request for regularization was unduly rejected by the

respondent / University on an erroneous interpretation of

G.O.Ms.No.212. As per the said G.O., in order to qualify for

regularization, one should be within the age limits and one must

have been appointed in a clear vacancy and rendered five years of

service. The petitioner fulfilled the aforesaid criteria, but the

respondent / University passed orders rejecting his claim for

regularization on the grounds (1) there was no regular post and (2)

the petitioner has not completed five years of service. As against

the said erroneous order, the petitioner had two options. Firstly,

either to file a separate writ petition questioning the order of the

respondent / University or to file a Contempt Case against the

defiance.

(d) It should be noted that accordingly, the petitioner filed

C.C.No.643/1997. When the said Contempt Case and other

Contempt Case Nos.641 and 642 of 1997 came up for hearing, the

respondent / University informed to the Court that in

Ref.No.UHS/SIII/97/1495/4 dated 18.06.1997, it has passed the

order to placing the present petitioner at the minimum of the scale

of pay of Tracer i.e., Rs.1665 - 3200 with usual allowances w.e.f.

01.10.1996. Therefore, the Division Bench passed the following

order

"Since, however, petitioners have received their due and the orders of the Court have been complied with, contempt, if any, of disobedience of the orders of the Court are obliterated. Defiance of the respondent has made us feel that he needs to discipline himself further and we accordingly caution him to be obedient to law and obey law before obeying to any other person or authority."

(e) Be that it may, the petitioner's case is that even after the

above first round of litigation, the respondent / University has not

regularized his services though it granted him the minimum time

scale of pay attached to the post of Tracer. Hence, the present writ

petition with a prayer to direct the respondents to regularize his

service as Tracer w.e.f. 05.02.1989 and to grant all consequential

benefits.

3. The respondents filed counter, the substance of which is

thus:

(a) The petitioner was not appointed as a Tracer as there was

no such appointment order. Conversely the petitioner was

originally engaged as NMR Technical Work Inspector, Grade-IV

under Work Charged establishment on 05.02.1989 by paying

wages from P.S charges of work i.e., daily wages as per SSR

(Standard Schedule Rates) and there is no sanctioned post of Work

Inspector-IV in the University. The petitioner filed

W.P.No.25870/1995 and order was passed therein on 06.08.1996.

On receipt of the said order, the Government of A.P. examined the

request of the petitioner with reference to G.O.Ms.No.212 dated

22.04.1994 and directed the University vide letter

No.10990/E1/96-4 dated 06.11.1996 addressed to the Government,

Health, Medical & Family Welfare Department, to reject the

request of the petitioner. Accordingly, the respondent / University

examined all the cases including the petitioner and issued speaking

orders to the petitioner vide No.UHS/88/S.III/96 dated 08.11.1996

duly rejecting the request of the petitioner for regularization of his

service and payment of time scale in the cadre of Tracer since he

has not completed five years of service by 25.11.1993 and also the

Tracer post is a notified post and it was clearly stated in the

G.O.Ms.No.212 that notified post should be excluded while

submitting for regularization of Consolidated / Daily wage staff

and also since his request for regularization of services and

payment of time scale in the cadre of Tracer is against the orders

issued by the Government regarding the Work Charged

establishment in G.O.Ms.No.212.

(b) The respondents preferred Civil Appeals before the

Hon'ble Apex Court and orders were passed by the Hon'ble Apex

Court as stated in the writ petition. The respondents denied the

petition averments that the petitioner has fulfilled the conditions of

the G.O.Ms.No.212. In fact, the petitioner has put up 4 years and 9

months service as on 25.11.1993, but he did not have 5 years of

continuous minimum service which is mandatory for regularization

of services of NMRs in terms of the G.O.Ms.No.212. Apart from

the petitioner, there are more than 30 similarly situated persons

working on temporary status whose services could not be

regularized due to non-fulfillment of one of the mandatory

conditions of minimum 5 years of continuous service as on

25.11.1993 as stipulated in G.O.Ms.No.212. The respondents thus

prayed to dismiss the writ petition.

4. Heard learned counsel for petitioner Sri G.V.S. Mehar

Kumar, and Sri G.Vijaya Kumar, Standing Counsel for the

respondent / University.

5. The main plank of the argument of learned counsel for the

petitioner is that in the first round of litigation though the

respondent / University has accorded him the minimum time scale

of pay in the post of Tracer, however, the petitioner's service is not

regularized in terms of the G.O.Ms.No.212 though the petitioner

fulfilled all the qualifications.

6. Per contra, while producing the copy of the G.O.Ms.No.212,

Sri G.Vijaya Kumar, Standing Counsel for the respondent /

University would submit that number of qualifications have been

prescribed in the said G.O. and the petitioner has not fulfilled the

important qualification of rendering 5 years of service by the cut-

off date 25.11.1993 and further, the petitioner has not worked as

against the clear vacancy as there was no sanctioned post of Work

Inspector-IV in the University cadre strength.

7. This Court gave anxious consideration to the above

respective arguments. As can be seen, in the earlier round of

litigation, there was no positive direction that the petitioner's

service shall be regularized without reference to his qualifications.

On the other hand, having regard to the submission of the

respondent / University, it was directed that the petitioner's service

shall be regularized in terms of the G.O.Ms.No.212 in

W.P.No.25870/1995. The respondents were directed to pay the

scale of pay from October 1996 even if the Government's

regularization process was not completed by then. In

W.A.No.1046/1996 & batch, on the facts of the case it was

observed that the writ petitioners shall receive the pay at the lowest

of the scale and shall continue thereafter to receive the emoluments

in the regular scale of pay before their services are regularized and

if they have entered service without undergoing the process of

selection, the concerned authorities shall interview them and decide

whether they are eligible and fit to be absorbed in the regular

service i.e., there shall be some sort of selection, if they are not

already selected by any such process. Thus, in the appeal it was

held that if the writ petitioners have not already undergone the

regular process of selection, authorities shall interview them and

decide whether they are eligible and fit to be absorbed in the

regular service.

8. Having regard to the above directions, it appears, the

respondent / University has undertaken selection procedure in

terms of the G.O.Ms.No.212 and so far as the petitioner is

concerned, having found that he has not fulfilled the conditions

stipulated in the said G.O., rejected his request for regularization of

service. This fact seems to have been submitted by the respondent

/ University in Civil Appeal Nos.14590 - 14594 of 1996 (arising

out of SLP (C) Nos.21373-76, 22207/96) before the Hon'ble Apex

Court and considering the same, the appeals filed by the respondent

/ University were dismissed by the Apex Court. The record shows

that the petitioner and some others filed Contempt Case

Nos.643/1997 & batch, wherein the respondent / University

submitted that it granted the minimum time scale of pay of Tracer

with usual allowances to the petitioner w.e.f. 01.10.1996 and

thereby the Contempt Case filed by the petitioner was closed.

9. Thus, in the first round of litigation, the petitioner was

accorded minimum of the time scale of pay of Tracer. However,

his regularization of service is concerned, the respondent /

University rejected his request on the ground that he has not

fulfilled the qualification criteria laid down in G.O.Ms.No.212. In

this context, I perused the G.O.Ms.No.212, Finance and Planning

(FW.PC.III) Department, dated 22.04.1994. The G.O. reads that

the Government having found that the various Government

institutions and establishments have been making the

indiscriminate appointments to various categories of services either

on daily wage basis or temporary basis without there being a post

and without being sponsored by the Employment Exchange and

without observing the rule of reservation, decided to enact law

regulating the appointments to the public services and for

rationalization of the staff pattern and pay structure. Further,

having regard to the judgment of the Hon'ble Apex Court dated

12.08.1992 in Civil Appeal No.2979/1992 & batch, the

Government have formulated a scheme for regularization of

services of the persons appointed on Daily Wage / NMR or on

consolidated pay and are continuing on the date of commencement

of the Act. The Government accordingly decided to regularize the

services of such persons who worked continuously for a minimum

period of 5 years and continued on 25.11.1993 in service subject to

the following conditions:

(1) The Persons appointed should possess the qualification 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 wherever applicable will be followed and back-log will be set-off against future vacancies.

(4) Sponsoring of candidates from Employee 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 the case of Work charged Establishment, where there will be no clear vacancies, because of the fact that the expenditure on Work-charged is as 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.

Accordingly, the Government have directed all the concerned

departments to follow the above G.O. for absorption /

regularization of services of NMR / Daily Wage employees etc.

and obtain clearance from the Government. Now, the contention

of the respondent / University is that the petitioner's case has been

tested on the anvil of G.O.Ms.No.212 and since the petitioner was

engaged as NMR Technical Work Inspector-IV under Work

Charged establishment on 05.02.1989 and by the cut-off date i.e.,

25.11.1993, he had completed only 4 years and 9 months but not 5

years, his request for regularization was rejected. It is also their

case that there was no sanctioned post of Work Inspector-IV in the

University cadre strength. Though the petitioner vehemently

contended that he has fulfilled all the criteria, however, the fact

remains that he was appointed on NMR basis only on 05.02.1989

and by 25.11.1993 he has not completed 5 years of service. The

reason for rejection of his claim was already communicated long

back to the petitioner vide proceedings No.UHS/88/S.III/96 dated

08.11.1996 as mentioned in the counter, which is not disputed by

the petitioner. Therefore, the present writ petition does not merit

consideration. The petitioner relied upon the order dated

13.12.2017 in W.P.No.17015/2002 and contended that in similar

case the common High Court having considered the prayer of a co-

employee for regularization, directed the respondent / University to

consider his case for regularization within two months from the

date of the order. It is also argued that W.A.No.689/2018 filed by

the respondent / University was dismissed and therefore, the

petitioner's case may be considered in the same lines. This Court

cannot approve the said request for the reason that the petitioner in

W.P.No.17015/2002 was appointed as Work Inspector on NMR

basis on 08.10.1988 and by the cut-off date he completed 5 years

of service. However, that is not the case with the present writ

petitioner.

Accordingly, this Writ Petition is dismissed. No costs.

As a sequel, interlocutory applications pending, if any, shall stand closed.

_________________________ U.DURGA PRASAD RAO, J 09.12.2022 MVA