Andhra Pradesh High Court - Amravati
K.Neelakantam vs The Commercial Taxes ... on 29 March, 2023
Bench: M.Ganga Rao, V Srinivas
HONOURABLE SRI JUSTICE M. GANGA RAO
AND
HONOURABLE SRI JUSTICE V. SRINIVAS
Writ Petition No.27508 of 2010
ORDER: (per Hon'ble Justice M.Ganga Rao)
This writ petition is filed being aggrieved by the order dated
20.10.2010 in O.A.No.1319 of 2008 passed by the Andhra Pradesh
Administrative Tribunal, Hyderabad wherein and whereby, the Tribunal
dismissed the Original Application filed questioning the proceedings
issued in Memo No.49438/CT.III.2/2007-3 dated 24.12.2007 wherein the
Commercial Tax Officer, South Circle, Vizianagaram is instructed to
cancel the regularization order in Rc.No.102/2006-A1 dated 26.5.2007
issued regularizing the services of the petitioner.
2. The brief facts of the case are that the petitioner Sri K.
Neelakantam has been working as Part-time Contingent employee in the
office of the Commercial Tax Officer, South Circle, Vizianagaram from
1.9.1993 on consolidated pay of Rs.250/- per month. He preferred an
application before the APAT, Hyderabad in O.A.No.6100 of 2006 against
the authorities concerned for not regularizing the services of the
petitioner in the category of Attender or extending the benefit of
G.O.(P).No.112 dated 23.7.1997 and G.O.Ms.No.212 dated 22.4.1994.
The APAT disposed of the said OA on 26.3.2007 directing the
respondents to consider the case of the petitioner for regularization of his
services along with other similarly situated persons and pass appropriate
orders in that regard. Accordingly, the Commercial Tax Officer, South
Circle, Vizianagaram regularized the services of the petitioner as Office
Subordinate vide his proceedings Rc.No.102/2006-A1 dated 26.5.2007.
The salary bill of the petitioner was objected by the Treasury authorities
on 14.6.2007 stating that clearance is required from the Finance
Department for appointment and for drawl pay and allowances, while
enclosing the relevant GOs. Then, the Commissioner of Commercial
Taxes has submitted proposal for the Government for passing
appropriate orders in the matter. The Government examined the case in
detail and issued instruction to the Commissioner, Commercial Taxes to
cancel the orders issued by the Commercial Tax Officer, South Circle,
Vizianagaram in Rc.No.102/2006/A1 dated 26.5.2007 in regularizing the
services of the petitioner as he is not satisfying the basic condition of 10
years of service by 25.11.1993, by issuing speaking orders as it is against
the provisions of G.O(P).No.112 dated 23.7.1997. Being aggrieved by the
said order, the petitioner preferred O.A.No.1319 of 2008. The Tribunal
considered the case of the petitioner in detail holding that the petitioner
has not satisfied the guidelines issued in G.O.(P).No.112 dated 23.7.1997
as he has not completed 10 years of continuous service as part-time
employee as he was appointed on consolidated pay by 14.9.1993 and if
he is appointed as Full-time employee, he has to put in 5 years of
continuous service by 25.11.1993 for the purpose of regularization as per
G.O.Ms.No.212 dated 22.4.1994. The Tribunal also held that the
decision of the Apex Court in the case of A.Manjula Bhashini Vs.
Managing Director, A.P.Women's Cooperative Finance Corporation
Ltd., and another1, holding that the relevant cut-off date is only
25.11.1993, but not the date of the Act 27/1998 or any subsequent
completion of 5 years and in the case of Secretary, State of Karnataka
and others Vs. Uma Devi & others2, the Constitutional Bench of the
Apex Court held that regularization can only be done in accordance with
the policy of the State. The Courts and the Tribunals cannot order de
hors against the policy of the State. The policy of the State for
regularization of full time and part time employees was embodied in the
above said two GOs. The petitioner can only be considered for
regularization of his services in terms of the above said two GOs but not
otherwise and accordingly, dismissed the Original Application. Assailing
the same, the present writ petition came to be filed.
3. This Court passed an order dated 9.11.2008 in W.P.M.P.No.35122
and 35123 of 2010 to maintain status-quo of the petitioner as on that
date. This Court also granted an order on 26.4.2011 in W.P.No.14738 of
2011 to pay salary to the petitioner.
4. Sri J. Sudheer, learned counsel appearing for the petitioner would
contend that the petitioner was appointed as Contingent employee on
consolidated pay and even after completion of 12 years of service, his
services are not regularized by the respondents on par with similarly
situated persons. The petitioner approached the Tribunal by filing
(2009) 8 SCC 432
(2006) 4 SCC 1
O.A.No.6100 of 2007. The Tribunal disposed of the OA on 27.9.2006
directing the respondents to consider the case of the petitioner for
regularization along with similarly situated persons whose services are
regularized even though they have not fulfilled the conditions of
G.O.Ms.No.212 and 112 and the benefit of GOs were given and their
services are regularized. Accordingly, by considering the GOs, the 1st
respondent regularized the services of the petitioner, by order dated
26.5.2003, as Attender. The said proceedings are forwarded to the 4th
respondent through the 3rd respondent for approval. The 4th respondent
instead of approving the said proceedings rejected approving of the
regularization order. The same was challenged before the Tribunal by
filing O.A.No.1319 of 2008 and the same was dismissed by the Tribunal
on 20.10.2010 on erroneous appreciation of fact and law. He further
empathetically submits that the petitioner is entitled for regularization on
par with similarly situated persons and denial of the regularization of the
petitioner services would amount to discrimination and vioaltive of Article
14 and 16 of the Constitution of India. The Apex Court while following
the ratio decidendi in the case of Nihal Singh and others Vs. State of
Punjab and others3, wherein the Apex Court observed thus:
" 35. Therefore, it is clear that the existence of the need for
creation of the posts is a relevant factor reference to which the
executive government is required to take rational decision based on
relevant consideration. In our opinion, when the facts such as the
ones obtaining in the instant case demonstrate that there is need for
the creation of posts, the failure of the executive government to
apply its mind and take a decision to create posts or stop extracting
Civil Appeal No.1059 of 2005
work from persons such as the appellants herein for decades
together itself would be arbitrary action (inaction) on the part of the
State.
36. The other factor which the State is required to keep in mind
while creating or abolishing posts is the financial implications
involved in such a decision. The creation of posts necessarily means
additional financial burden on the exchequer of the State.
Depending upon the priorities of the State, the allocation of the
finances is no doubt exclusively within the domain of the
Legislature. However in the instant case creation of new posts
would not create any additional financial burden to the State as the
various banks at whose disposal the services of each of the
appellants is made available have agreed to bear the burden. If
absorbing the appellants into the services of the State and providing
benefits at par with the police officers of similar rank employed by
the State results in further financial commitment it is always open
for the State to demand the banks to meet such additional burden.
Apparently no such demand has ever been made by the State. The
result is - the various banks which avail the services of these
appellants enjoy the supply of cheap labour over a period of
decades. It is also pertinent to notice that these banks are public
sector banks. We are of the opinion that neither the Government of
Punjab nor these public sector banks can continue such a practice
consistent with their obligation to function in accordance with the
Constitution. Umadevi's judgment cannot become a licence for
exploitation by the State and its instrumentalities.
5. Learned Government Pleader for Services-I would contend that for
regularizing the irregular appointments, the State has to frame scheme
for regularization as held by the Apex Court in the State of Karnataka
and others Vs. M.L.Kesari and another4, following the decision of
Umadevi's case in Para-53 of the said judgment. The State Legislature
enacted an enactment called Andhra Pradesh (Regulation of
Appointments to Public Services and Rationalisation of Staffing Pattern
and Pay Structure) Act, Act 2 of 1994 and the same was amended by Act
3 of 1998 and Act 27 of 1998. As per the decision of the Apex Court, the
(2010) 9 SCC 247
Government issued G.O.Ms.No.212 and 22.4.1994 and G.O.(P).No.112
dated 23.7.1997 framing guidelines for regularization of the Casual
Labour/Daily Wage Labour/ad hoc employee etc. As per the guidelines,
the absorption shall be against the clear vacancy, the person should
possess the qualifications prescribed as per rules and the rule of
reservation has to be followed. The State has brought into force
G.O.Ms.No.212 dated 22.4.1994 and G.O.(P).No.112 dated 23.7.1997
prohibiting irregular appointments and fixed cut-off date as 25.11.1993
for regularization. The cut-off date i.e., 25.11.1993 is taken as criteria
for regularization for those who have completed 5 years of continuous
service as Full-time Casual Labour/Daily Wage Labour as per
G.O.Ms.No.212 and 10 yeas as Part-time Contingent/Casual Labour and
whose services are utilized against the sanctioned vacancies only are
entitled for regularization. Here, the petitioner has not fulfilled any of the
conditions of the above said GOs and the Tribunal rightly dismissed the
OA. The petitioner is not entitled for any regularization or absorption in
the vacancy of Attender.
6. Learned Government Pleader has placed reliance on the judgments
of the Apex Court in State of Tamil Nadu through Secretary to
Government, Commercial Taxes and Registration Department,
Secretariat and another Vs. A.Singamuthu5, wherein it is held tht the
as per G.O.Ms.No.22 dated 28.2.2006 only Full-time daily-wage
employees were directed to be regularized on completion of 10 years of
(2017) 4 SCC 113
continuous service on 1.1.2006 , while G.O.Ms.No.74 dated 27.6.2013
clearly stated that part-time employees were not entitled to regularization
and full time employees who had completed 10 years of continuous
service after 1.1.2006 were also not entitled.
7. We, having considered the above facts and circumstances of the
case, submission of the counsel and perused the record found that the
petitioner was appointed as Part-time Contingent employee in the office of
Commercial Tax Officer, South Circle, Vizianagaram on 1.9.1993 and on
consolidated wages of Rs.250/- per month. When his case was not
considered for regularization, he preferred O.A.No.6100 of 2006 for
regularizing his services in the cadre of Attender by extending the
benefits of G.O.(P).No.112 dated 23.7.1997 and G.O.Ms.No.212 dated
22.4.1994 respectively. The Tribunal directed the respondents to
consider the case of the petitioner for regularization of his services along
with others who are similarly situated and pass appropriate orders. In
pursuance of the said orders, the Commercial Tax Officer, South Circle,
Vizianagaram issued proceedings Rc.No.102/2006 A1, dated 26.5.2007
regularizing the services of the petitioner as Office Subordinate. When
the first salary bill of the petitioner was sent for treasury, the same was
objected by the Treasury Authorities on 14.6.2007 stating that clearance
is required from Finance Department for appointment. The
Commissioner of Commercial Taxes sent proposal to the Government for
passing appropriate orders in the matter. The Government having
examined the case in detail issued instructions to the Commissioner of
Commercial Taxes to cancel the orders issued by the Commercial Tax
Officer, South Circle, Vizianagaram in Rc.No.102/2006 A1 dated
26.5.2007 in regularizing the services of the petitioner as he has not
satisfied the basic conditions of 10 years of service by 25.11.1993 by
issuing speaking orders as it is against the provisions of GO(P).No.112
dated 23.7.1997. Assailing the said cancellation order, the petitioner
preferred O.A.No.1319 of 2008 before the Tribunal. The Tribunal
dismissed the original application clearly stating that the applicant was
appointed on consolidated pay on 14.9.1993 and if he is appointed as
Part-time employee, he had to put in 10 years of continuous service by
25.11.1993 for the purpose of regularization as per G.O.(P).No.112 dated
23.7.1997 and if he is Full-time Contingent employee, he had to put in 5
years of continuous service by that date as per G.O.Ms.No.212, dated
22.4.1994. The petitioner had neither put up 5 years of service as Full-
time employee nor 10 years of service as Part-time employee by the
relevant cut-off date i.e., 25.11.1993. The petitioner has put in only 2 ½
months of service as Part-time Contingent employee by the cut-off date of
25.11.1993. Though the petitioner has not put in minimum required
length of service by the cut-off date, the Commercial Tax Officer, South
Circle, Vizianagaram has regularized the services of the petitioner
without any competency or power pursuant to the orders passed by the
Tribunal in O.A.No.6100 of 2007, whereunder it was only directed to
consider the case of the petitioner for regularization of his services along
with others who are similarly situated. The contention of the learned
counsel for the petitioner that the petitioner is entitled for regularization
on par with other similarly situated persons, is not tenable and
sustainable for the reason that the petitioner has completed only 2 ½
months service by the cut-off date and at no stretch of imagination, the
petitioner has fulfilled any of the conditions enumerated under
G.O.Ms.No.212 dated 22.4.1994 or G.O.(P).No.112 dated 23.7.1997.
There is no force in the contention of the learned counsel for the
petitioner. The Tribunal has rightly appreciated the facts and law on the
subject and dismissed the Original Application and the impugned order
does not suffer from any infirmities and much less on error of fact and
law, which warrants interference from this Court by exercising the power
under Article 226 of the Constitution of India by issuing a writ of
certiorari.
8. In view of the above discussion, the writ petition is devoid of merits
and is liable to be dismissed and is accordingly, dismissed. No order as
to costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall
stand closed.
____________________
M. GANGA RAO, J
____________________
V. SRINIVAS, J
Date: .03.2023
CSR
HONOURABLE SRI JUSTICE M. GANGA RAO
AND
HONOURABLE SRI JUSTICE V. SRINIVAS
W.P.No.27508 OF 2010
DT: .03.2023
CSR
