Order vs Unknown
2023 Latest Caselaw 337 AP

                  THE HON'BLE SRI JUSTICE M. GANGA RAO

                       WRIT PETITION No.23557 of 2009

ORDER:

This writ petition is filed seeking the following relief/s:

"..to issue a Writ, order or direction, more particularly one in the nature of a writ of mandamus by setting aside that portion of G.O.Ms.No.2500, dated 20.11.2007 issued by the 4th respondent and consequential proceeding dated 30.08.2008 issued by the 1st respondent in regularizing the petitioner in last grade service, that too with effect from 20.11.2007 by holding the action of the respondents in not regularizing the petitioner with effect from 20.11.1990 as Store Keeper, the post and work the petitioner was holding since her appointment while regularizing several others/juniors in the cadre of they were working and with effect from their initial date of appointment as bad, illegal, arbitrary and unconstitutional and consequently direct the respondent to regularize the service of the petitioner as store keeper with effect from 20.11.1990 and not doing so as bad illegal, unconstitutional and discriminatory and pass such other orders..."

2. Heard Sri J. Sudheer, learned counsel for the petitioner and

Sri S. Satyanaranya Prasad, learned Senior Counsel appearing for

Smt C. Sindhu Kumari, learned counsel appearing for the respondents.

Learned counsel for the respondents seeks adjournment to get ready in the

matter and file additional counter affidavits by the respondents. This Court

has declined to grant any time as this writ petition of the year 2009

underwent several adjournments for filing counter and is specially identified

matter for disposal.

3. The petitioner, being qualified for appointment as a store

keeper, claims to be appointed as a store keeper in Padmavathi Women's

Polytechnic Hostel, on selection by the hostel committee w.e.f 20.11.1990

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Initially she was paid a consolidated pay of Rs.250/- per month. She has put

in continuous service of nineteen years in the said post. The Tirumala

Tirupati Devasthanam ['TTD', for short] vide resolution No.192 dated

03.06.1991 created 139 posts in the college hostels attached to the

educational institutions run by the TTD and many hostel employees were

regularised and timescales were given, as per the orders of this Court

passed in WP.No.5162 of 2001. When the juniors of the petitioner working

in other hostels were regularised, the hostel employees working in the 3rd

respondent hostel made representation for regularisation of their services.

The 3rd respondent addressed a letter to the Executive Officer of the TTD

vide letter dated 12.04.1994 giving details of the employees working in the

hostel and recommended for their regularisation. On further clarification

sought by the Assistant Educational Officer of the TTD, the 3rd respondent

through his letter dated 22.11.1995 furnished the details of the employees

working in the 3rd respondent hostel wherein petitioner's name is shown in

the said list as appointed as a store keeper on 20.11.1990. However, no

action was taken for their regularisation on par with others. The TTD has

regularised services of more than 2000 NMRs during the period between

19.04.1988 and 01.08.1991 duly obtaining exemption from the Government

from the process of employment exchange. The petitioner along with other

employees working in the 3rd respondent hostel are entitled for

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regularisation as was done in the case of employees working in other hostels

under the management of the TTD.

4. The TTD is empowered under the provisions of Rule 10 of the

TTD Rules issued vide G.O.Ms.No.1060, dated 24.10.1989 to create and fix

the cadre strength in respect of all posts below Assistant Executive Officer

and for higher cadres the Government would fix the cadre strength. All the

hostel employees are below the cadre of Assistant Executive Officer. The

TTD Trust Board is competent to create the posts. Three employees i.e.,

helper, office boy and watchman working in the hostel attached to Sri

Govinda Rajaswamy Arts College filed WP.No.18873 of 1994 seeking

regularisation of their services on par with other employees working in other

hostels attached to the educational institutions run by the TTD. This Court,

after considering the rival contentions by order dated 22.11.1995, directed

the respondents to create three posts in their cadre and also granted

consequential benefits. The judgment of this court in WP.No.18873 of 1994

dated 22.11.1995 amply demonstrate that the employees working in the

hostels attached to the educational institutions run by the TTD are the

employees of the TTD for all practical purposes and they are entitled for

regularisation along with others whose services were regularised. As per the

resolutions of the TTD Trust Board, when petitioner's representation was

not considered for regularisation, the petitioner along with others filed

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WP.No.17111 of 1996 for regularisation and grant of time scale as per the

judgment in WP.No.18873 of 1994. The said writ petition was disposed of

on 15.10.1997 directing the petitioners therein to make a fresh

representation to the respondent authorities and the respondent authorities

were directed to consider the same as per the judgment in WP.No.18873 of

1994 dated 22.11.1995; and it is said that the above exercise should be

completed within a period of one month from the date of the judgment.

Accordingly, petitioners made a representation to the respondent

authorities to regularise their services. The respondent authorities are

under obligation to consider the case of the petitioner for regularisation in

terms of the judgment passed in WP.N.18873 of 1994, dated 22.11.1995.

But the petitioner's representation dated 23.12.1997 was rejected by the

Executive Officer through his proceedings dated 30.10.1998 on the ground

that she does not fall within the scope of G.O.Ms.No.212 dated 22.04.1994

and G.O.Ms.No.112 dated 23.07.1997. But the petitioner's case was not

considered by the respondent authorities in terms of the judgment dated

22.11.1995 in WP.No.18873 of 1994. When there is a specific direction to

the respondent authorities to consider the case of the petitioner in terms of

the said judgment, it is the duty of the respondents to do so. As per

GO.Ms.No.212, those persons who have completed five years of service by

23.11.1993 as confirmed by the Apex Court, they are only entitled for

regularisation with time scale. Since G.O.Ms.No.212 dated 22.04.1994 and

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G.O.Ms.No.112 dated 23.07.1997, are in existence as on the date of the

judgment in WP.No.18873 of 1994, dated 22.11.1995, it is obvious that this

Court, having convinced that not regularising the services of some

employees while regularising the services of other employees is arbitrary

and violative of Articles 14 & 16 of the Constitution of India, the said writ

petition No.18873 of 1994 was disposed of directing the respondents to

create posts and regularise them in their respective posts. The petitioner

along with others has worked in the 3rd respondent hostel for meagre wages.

If her case is not considered for regularisation, she will become over age.

The judgment in WP.No.18873 of 1994 dated 22.11.1995 was affirmed in

Writ Appeal and when the matter was carried to the Supreme Court by way

of SLP the same was dismissed.

5. The petitioner filed WP.No.21232 of 1999 before the High

Court of Andhra Pradesh challenging the rejection of the petitioner's claim

for regularisation through proceedings dated 30.10.1998. The respondents

filed counter. When the writ petition was pending for adjudication, the

Government issued G.O.Ms.No.2500, dated 20.11.2007, regularising the

services of 69 hostel workers working in the TTD college hostels, as per the

orders passed by this Court dated 31.08.2005 in WP.Nos.24974 of 2001 and

1068 of 2002. Therefore, this Court, having taken notice of the said fact,

has closed the writ petition. The TTD regularised the services of the other

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employees working in the hostels in the posts held by them retrospectively

from the date of initial appointment whereas petitioner's services were

regularised as multi-purpose worker in the last grade service from the date

of issuance of G.O.Ms.No.2500 dated 20.11.2007 only. The petitioner

complains that the respondent authorities are regularising the services of

the employees working in the hostels, similar to the petitioner's services,

according to their whims and fancies without any rhyme or rythm

arbitrarily. Being aggrieved by her regularisation as multi-purpose worker in

the last grade service of the 3rd respondent hostel w.e.f 20.11.2007 by

proceedings dated 30.08.2008 issued by the 1st respondent, the present writ

petition has been filed.

6. The then Executive Officer of the TTD - 1st respondent herein

filed counter denying the entitlement of the petitioner for regularisation as

store keeper with effect from the date of her initial appointment i.e.,

20.11.1990 inter alia contending various averments claiming that the

petitioner was initially engaged by the hostel student committee on

remuneration of Rs.250/- per month duly meeting the same from student's

fund as hostel worker and the TTD is no way connected with the hostel

workers of the 3rd respondent polytechnic college. There was no hostel

exclusively for Women's Polytechnic College till October, 1990, though the

said college was functioning from 1975. Till starting of the hostel exclusively

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for polytechnic women candidates in the year 1990, the students were

accommodated in other women college hostels. 139 hostel workers were

absorbed basing on the maximum service rendered by them. The case of

the petitioner cannot be compared with that of other hostel workers

working in SGS Arts college, SV Arts College and SPW College etcetera. The

services of other hostel workers attached to the colleges were engaged by

TTD management and the petitioner's services were not engaged by the

TTD. However, in pursuance of the G.O.Ms.No.2500 issued pursuant to the

orders passed in WP.Nos.24974 of 2001 and WP.No.1068 of 2002, the

services of the petitioner were regularised in the last grade service as multi

purpose worker. When the 3rd respondent hostel does not come under the

management of the TTD, the question of creation of posts does not arise.

The provisions of Rule 10 of the TTD Rules issued in GO.Ms.No.1060 dated

24.10.1989, is applicable to the regular staff working in TTD institutions only

but not to the hostel staff working in the college hostels maintained with

the fees collected from students, who are staying in the hostels by paying

establishment charges. However, in pursuance of the G.O.Ms.No.2500,

dated 20.11.2007, petitioner's services were regularised w.e.f 20.11.2007 as

a multi-purpose worker in the 3rd respondent hostel. In the absence of

cadre strength, the petitioner is not entitled for regularisation in the post of

store keeper in the 3rd respondent hostel.

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7. The points that arise for consideration are:

1) Whether the petitioner is entitled for regularisation as store keeper in the 3rd respondent hostel from the date of her initial appointment as store keeper i.e., from 20.11.1990, by extending the benefits given to the similar persons who are working in other hostels managed by the TTD?

2) Whether the regularisation of the petitioner as multi-purpose worker from 20.11.2007 as per G.O.Ms.No.2500 dated 20.11.2007 is arbitrary and illegal?

8. Since both the points are inter-related to each other, both the

points are taken up for consideration together.

9. The petitioner was appointed as a store keeper on 20.11.1990

in the 3rd respondent hostel, by subjecting her to selection process and since

then she has continuously worked for 19 years in that capacity on meagre

consolidated pay of Rs.250/- per month with a fond hope that her services

will be regularised in the timescale on par with other employees working in

other hostels attached to the educational institutions run by the TTD. The

3rd respondent vide letter dated 12.04.1994, recommended to the Assistant

Executive Officer, TTD to regularise the employees working in the 3rd

respondent hostel. In turn Assistant Educational Officer, TTD through his

letter dated 22.11.1995 asked for other details of the employees working in

the 3rd respondent hostel for regularising the services. In both the

proceedings, the petitioner's engagement in the hostel was shown as Store

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Keeper from 20.11.1990. The same was not specifically denied in the

counter filed by the 1st respondent. Even the TTD Board in its resolution

No.192 dated 03.06.1991 took a decision to regularise the hostel employees

working in the hostels attached to the educational institutions managed by

the TTD. In pursuance of the orders passed by this Court, TTD regularised

139 hostel workers during the year 1991 and 69 workers during the year

2007 on the ground that the hostel workers were engaged by the TTD

management but not by the hostel committee. The provisions of Rule 10

issued in G.O.Ms.No.1060 dated 24.10.1989 empowers the Board to create

and fix the cadre strength for absorption and regularisation of the

temporary employees working in the post for a long time whose services are

required. The same is affirmed by this Court in WP.No.11233 of 2016 and

25754 of 2017 dated 21.12.2017. The said matters are carried in appeal in

WA.Nos.361,1011,1040 and 1087 of 2018 and the same were dismissed as

withdrawn by the TTD. Hence, the contention of the learned counsel

appearing for the TTD, Sri S. Satyanarayana Prasad, designated Senior

Counsel appearing for Smt C. Sindhu Kumari, counsel on record, is that the

petitioner is not entitled for regularisation in the post of store keeper from

the date of her initial appointment i.e., 20.11.1990 in the time scale

attached to the post and the petitioner's services were regularised as multi

purpose worker in the last grade services in the time scale as per

G.O.Ms.No.2500, dated 20.11.2007, from the date of issuance of the said GO

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as the petitioner's case was not considered for regularisation before

issuance of the GO as she could not fulfil the conditions issued in

G.O.Ms.No.212 or G.O.Ms.No.112 and there is a ban on recruitment as per

the provisions of the Act 2 of 1994 i.e., THE ANDHRA PRADESH

(REGULATION OF APPOINTMENTS TO PUBLIC SERVICES AND

RATIONALISATION OF STAFF PATTERN AND PAY STRUCTURE) ACT,

1994. In view of the subsequent amendment of Act 2 of 1994 by Act 27 of

1998, which came into force on 19.08.1998, as per the proviso of Section 2

of Act of 1994, the services in any such body or society as specified in sub-

clause (e), which is not receiving any funds or grants towards salaries of its

employees from the State Government shall not be deemed to be 'public

service' for the purposes of this Act. Hence, rejection of petitioner's case

referring to the provisions of Act of 1994 and the G.Os issued basing on the

Act 2 of 1994 by proceedings dated 30.10.1998 by the 1st respondent is

illegal. Challenging the said proceedings, petitioner filed WP.No.21232 of

1999 and when the said writ petition is pending before this Court, the

Government issued G.O.Ms.No.2500 regularising the services of 69 hostel

workers. This Court, having taken notice of the issuance of the said GO, has

closed the writ petition; however, the TTD was directed to consider the

case of the petitioner for regularisation of the petitioner in terms of

G.O.Ms.No.2500. The petitioner filed a review petition. The review

petition was disposed of on 08.07.2009 giving liberty to the petitioner to

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challenge the proceedings issued by the TTD regularizing the services of the

petitioner in the cadre of Attender instead of Store Keeper. Accordingly, the

petitioner preferred present writ petition questioning G.O.Ms.No.2500

issued by the Government and consequential proceedings issued by the 1st

respondent insofar as regularising the petitioner's services as Multi Purpose

worker from 20.11.2007 instead of regularising her services as a Store

Keeper from the date of initial appointment i.e., 20.11.1990. The 1st

respondent while extending the benefits of G.O.Ms.No.2500 while

regularising the services of 69 hostel workers working in TTD college hostels

in the posts held by them from the date of their initial appointment and

time scales were extended with regard to four persons whereas the 1st

respondent regularised the services of the petitioner as multi purpose

worker in the last grade service from the date of issuance of the GO and

regularised her services in the said post, which is illegal and arbitrary. The

contra contention of Sri S.S.Prasad, learned senior counsel, stating that the

petitioner is not entitled for regularisation in the post of store keeper from

the date of her initial appointment i.e., 20.11.1990 and in support of the

contention, he placed reliance on a decision in Registrar General of India v.

Thippa Setty [1998 8 SCC 690] the challenge wherein was a direction given

by the Tribunal to regularise the respondents of the ad hoc employees

retrospectively from the date of their initial appointment. The Hon'ble

Supreme Court observed that it must be remembered that they had entered

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as ad hoc appointees and the question was whether they should be

regularised in service since they had worked as ad hoc employees for a

sufficiently long time; if the ad hoc service is regularised from the back date

in this manner, it will disturb the seniority of regularly appointed employees

in the cadre and, therefore, ordinarily the regularisation must take effect

prospectively and not retrospectively; it must also be borne in mind that ad

hoc appointees, casual labour and daily rated persons are not subject to

strict discipline of service and it is a matter of common experience that

their attendance is very often not regular and at times they do not even

meet the qualification for appointment since they are taken on ad hoc basis;

these deficiencies are overlooked by way of granting of relaxation and,

therefore, care must be taken to see that they do not upset the seniority of

other regular appointees. Learned senior counsel also placed reliance on

another decision of the Apex Court rendered in Civil Appeal.Nos.1875 of

2022 in the case of Managing Director, Ajmer Vidhyut Vitran Nigam Ltd.,

v. Chiggan Lal and others wherein the respondents - unskilled labour were

engaged by the appellant employer on daily wage basis on different dates

from 16.04.1980 to 17.05.1980. Their services were regularised from

29.06.1989 and allowed pay scales w.e.f 01.04.1989 as per the

recommendations of the screening committee and resolution passed by the

Board. When the respondent employees approached the High Court of

Rajasthan at Jaipur Bench by way of writ petitions seeking regularisation of

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their appointments from the date of 01.04.1983 instead of 01.04.1989

seeking parity with other employees, the Apex Court following the judgment

in Jodhpur Vidyut Vitran Nigam Ltd., v. Nanu Ram and others [(2006) 12

SCC 494] held that the date of regularisation and grant of pay scale is

prerogative of the employer/screening committee and no parity can be

claimed in the matter of regularisation in different years. The Apex Court

rendered the said judgment in different factual situation to that of the

petitioner's case in this writ petition. Hence, decisions above referred are

not helpful to the respondent-TTD's case. Hence, the contention of the

Senior Counsel holds no water.

10. Sri J. Sudheer, learned counsel appearing for the petitioner

would contend that respondent authorities on mis-application of provisions

of the Act 2 of 1994 rejected the claim of the petitioner stating that the

petitioner is not entitled for regularisation as she has not fulfilled the

conditions laid down in GOMs.No.212 and G.O.Ms.No.112 and on mis-

interpretation of the provisions of the said Act and GOs. No clarification to

the provisions of Act 2 of 1994 is required in view of the various judgments

of the Apex Court and this Court. The provisions of the Act 2 of 1994 were

amended by Act 27 of 1998 which came into force on 19.08.1998 clearly

stating that the provisions of the Act are not applicable to the organisations

or societies or institutions which are not receiving any funds or grants

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towards salaries of its employees from the State Government. Even in the

GOs, nowhere it is stated that the services of the hostel employees can be

regularised from the specified date in the last grade services. In other

cases, the 1st respondent has regularised the services of the hostel

employees who are similarly situated to that of the petitioner from the date

of their initial appointment with retrospective effect. He also submitted

that in the case of one P. Vijaya Bhaskar Reddy, NMR absorbed as Lab

Attender, in SPW Polytechnic E & CE, his service was regularised w.e.f

06.05.1991 notionally and the monetary benefits were ordered to be given

from the date of his joining i.e., 30.08.2004. In the present case, the

petitioner was appointed as store keeper on 20.11.1990 subjecting her to

selection process. Denying regularisation of services as a store keeper in the

pay scale attached to the post from the date of initial appointment is found

to be illegal and arbitrary and hostile discrimination. Continuation of the

petitioner services for 19 years in the said post for meagre services leads to

the conclusion that the post is perennial in nature and her services needs to

be regularised as a store keeper in the 3rd respondent hostel and

GOMs.No.2500 insofar as regularisation of her services by consequential

proceedings dated 30.08.2008 as multi purpose worker in the last grade

services is found to be illegal and arbitrary. The points are accordingly

answered.

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11. Be it also noted that Sri J. Sudheer, learned counsel for the

petitioner, brought to the notice of this Court that the petitioner filed

WPMP.No.51376 of 2016, seeking amendment of the prayer, along with

proceedings viz., G.O.Ms.No.71, dated 25.01.2010 whereby the Government

had accorded permission to the 1st respondent - Executive Officer, Tirumala

Tirupati Devasthanams to regularise the services of persons working in Sri

Padmavathi Ammavari Temple, Tiruchanoor on Sambhavana basis; the

proceedings dated 15.02.2010 of the 1st respondent whereby the services of

the persons working in Sri Padmavati Ammavari Temple were regularised

from the date of issuance of earlier G.O.Ms.No.855, Revenue (Endts.I)

Department, dated 08.10.1997. The petitioner filed some other documents

by way of Memo, vide USR No.105246 of 22, dated 29.12.2022, duly serving

a copy of the same on other side, for consideration of this Court, the

proceedings dated 19.08.1991 of the Chief Warden, S.V. Arts College Hostel,

Tirupati, wherein it is stated that the TTD Board in its resolution No.192,

dated 05.06.1991 resolved to treat the hostel workers of SPW College, S.V.

Arts College and S.G.S. Arts College as separate unit and sanctioned to

create 139 posts in various cadres in the above three hostels to facilitate for

regular absorption and regularise the hostel workers already working in the

above hostels. It is further stated that as against 139 posts sanctioned, 48

posts were sanctioned to SV Arts College Hostel, with effect from

03.06.1991. By further proceedings dated 19.08.1991 of the Chief Warden,

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S.V. Arts College Hostel, in view of the ratification orders issued the

appointments and promotions of the employees to the cadre of cleaners and

servers with effect from the dates noted was communicated to them;

proceedings of the Devasthanams Educational Officer, T.T.Devasthanams,

Tirupati, in Roc.No.Edn5/48730/DEO/1996 dated nil-03-2020, whereby the

hostel workers of SGS Arts College, TTD, Tirupati were regularised from the

date, the scales are allowed i.e., 19.10.1994 even though they were initially

appointed during the period 1990 and 1991 and 9 SGS hostel staff were

ordered to be regularised from the date of absorption, 19.10.1994;

G.O.Ms.283, dated 07.07.2017, whereby the 1st respondent was permitted to

regularise the services of one M. Parameswara Reddy, Attender and 35

others stated therein notionally w.e.f 19.10.1994 instead of 10.10.2007 on

par with Sri N. Babu Rao and other hostel workers for counting of service

purely for pension fixation purpose. Finally, he contends that the TTD, on

permission by the Government, absorbing the temporary employees,

according to their whims and fancies, which is highly illegal and arbitrary.

12. In view of the aforesaid reasoning, this Court found that the

petitioner is entitled for regularisation of her services as Storekeeper, in Sri

Padmavathi Women's Polytechnic Hostel, Tirupathi, in the pay scales

attached to the said post from the date of her initial appointment i.e.,

20.11.1990. Accordingly, the respondents are directed to consider the case

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of the petitioner for regularisation of her services in the post of store

keeper in the pay scale attached to the post from the date of her initial

appointment i.e., 20.11.1990 and fix her pay notionally till regularising her

services i.e., 20.11.2007 in terms of GO.Ms.No.2500 and from 20.11.2007

the petitioner is entitled for all monetary and attendant benefits. The

respondents shall complete the above exercise within a period of eight (08)

weeks from the date of receipt of a copy of this order.

13. With the above observations, the Writ Petition is disposed of.

No order as to costs.

Pending Miscellaneous Petitions shall stand closed.

_______________________ JUSTICE M. GANGA RAO

25.01.2023 Vjl

MGR,J WP_23557_2009

THE HON'BLE SRI JUSTICE M. GANGA RAO

WRIT PETITION No.23557 of 2009

25.01.2023

Vjl