Andhra Pradesh High Court - Amravati
The Chief Executive Officer vs T Seshagiri on 23 August, 2024
1
GN, J. & VN, J.
W.A.No.295 of 2023
APHC010073172023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3463]
(Special Original Jurisdiction)
FRIDAY ,THE TWENTY THIRD DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE G.NARENDAR
AND
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
WRIT APPEAL NO: 295/2023
Between:
The Chief Executive Officer ...APPELLANT
AND
T Seshagiri and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. G SRINIVASULA REDDY (SC FOPP MPP AND GP SERVICES)
Counsel for the Respondent(S):
1. S SYAMSUNDER RAO
The Court made the following:
JUDGMENT:
(per Hon'ble Sri Justice G.Narendar)
Heard Sri G.Srinivasulu Reddy, Learned Standing Counsel,
appearing for the Appellant; Sri S.Syam Sunder Rao, Learned Counsel
appearing for the 1st respondent/writ petitioner; and learned G P (S-IV)
appearing for Respondents 2 and 3.
2. The Appellant is the Chief Executive Officer of the Zilla Praja
Parishad, Eluru, West Godavari District, and is before this Court in this
intra-Court Appeal being aggrieved by the order of the learned Single
Judge rendered in W.P.No.474 of 2021, dated 05.01.2023.
GN, J. & VN, J.
3. The parties are referred to in this Appeal by their nomenclature
before the learned Single Judge for the sake of brevity and convenience.
4. It is the case of the Petitioner that his demand for regularization
has been accepted by the Tribunal and also this Court and in that view,
he is entitled for counting of his service from the day he was first
employed and that the learned Single Judge was right in allowing the
Writ Petition and directing that his entitlements be settled within a
stipulated period.
5. The learned Counsel for the Petitioner has taken the Court
through various orders passed by the Tribunal and the Composite High
Court of Judicature at Hyderabad for the State of Telangana and the
State of Andhra Pradesh and this High Court.
6. It is pertinent to trace the judicial ―Long March‖ of the Petitioner at
the outset itself.
(i). The material placed on record would reveal that the petitioner
initially filed O.A.No.377 of 1996 praying for a direction to the
Respondents to pay the applicant the arrears of salary based on
confirmation and revised scale with effect from 30.11.1987 to
03.09.1995 with all consequential benefits. The Tribunal placed reliance
on G.O.Ms.No.212, dated 22.04.1994 and after taking note of the fact
that the services of the Petitioner were regularized pursuant to the said
GN, J. & VN, J.
G.O., proceeded to hold that there was no provision which prohibited
payment of arrears of salary from the date of initial appointment
and proceeded to grant a relief pursuant to the order of
regularization, regularizing the services of the Petitioner with effect
from 10.07.1995. The same came to be disposed of by order, dated
17.09.1997. Aggrieved thereby, the Respondent approached the High
Court in W.P.No.22873 of 2004. The said Writ Petition came to be
rejected without being admitted. But, while so rejecting, the High Court
was pleased to reserve liberty to the Respondent to seek review of the
order, dated 17.09.1997, and the Writ Petition came to be disposed of
on 10.12.2004. The Petitioner, being aggrieved by the said liberty,
preferred Review WPMP No.33050 of 2005 questioning the grant of
liberty to the Respondent to approach the Tribunal and seek review of
the order, dated 17.09.1997. The High Court was pleased to review the
order and after hearing the parties was pleased to recall the liberty
reserved to the Respondent to approach the Tribunal for seeking review
of the order, dated 17.09.1997. Thereby, the order of the Tribunal,
dated 17.09.1997, was given a stamp of finality.
(ii). Thereafter, the Petitioner preferred O.A.No.3368 of 2007 praying
for grant of career advancement scheme increments for 8 and 16 years
from the date of his initial appointment and regularization i.e. from
30.11.1987 and to pay arrears of increments from that date onwards.
GN, J. & VN, J.
The said O.A. also came to be allowed. While allowing, the Tribunal
was pleased to place reliance on G.O.Ms.No.212, dated 22.04.1994,
but, rejected the applicability of G.O.Ms.No.430, dated 14.11.1997,
which sought to bring about an amendment to the G.O.Ms.No.618,
dated 23.09.1994, whereby the G.O. was sought to be made effective
prospectively i.e. from the date of regularization and not from the date of
original appointment.
(iii). The same left the Respondent twiddling with their thumbs.
Emboldened the Petitioner moved one more O.A. i.e., O.A.No.9217 of
2011 seeking to fix his notional seniority from the date of his initial
appointment and also to implement the Government Memo, dated
09.06.2011. The Tribunal, by order, dated 21.06.2015, was pleased to
dispose of O.A.No.9217 of 2011 by directing the Respondents, more
particularly, the Commissioner, Panchayat Raj and Rural Development,
Hyderabad, and the Chief Executive Officer, Zilla Praja Parishad, West
Godavari District, to consider the claim of the Petitioner by taking into
account the date of regularization i.e. from the date of appointment i.e.
30.11.1987 and to also take into account G.O.Ms.No.618, dated
23.09.1994, G.O.Ms.No.430, dated 14.11.1997 and to pass appropriate
orders in accordance with statutory rules in existence and the law
governing the subject within a period of three months. The Respondent
sought for a legal opinion from the Standing Counsel and it was opined
GN, J. & VN, J.
that the reckoning date could never be 30.11.1987, as the Petitioner was
not even borne in the cadre much less against a regular post and a
regular vacancy. That the Petitioner had been appointed as a daily
wager in the post of the Typist and without reference to the rule of
reservation. It was further opined that any action favouring the
Petitioner would result in the Petitioner leapfrogging his seniors, who
have been appointed on a regular basis and against notified vacancies
and in a manner known to law. It was further opined that the conditional
right to regularization having come about only with the promulgation of
the G.O.Ms.No.212, dated 22.04.1994, and the consequential
G.O.Ms.No.618, dated 23.09.1994 regularizing the services of the
Petitioner seniority could not be granted from an anterior date and the
Respondent accepting the opinion reiterated the same in their
endorsement/proceedings, dated 14.10.2015. Additionally, it was also
held against the Petitioner that the Petitioner has not called in question
G.O.Ms.No.430, dated 14.11.1997, G.O.Ms.No.392, dated 21.09.1998,
G.O.Rt.No.1060, dated 29.07.2000 and placing reliance on the
conditional relief granted in favour of the other three Typists subject to
the order in W.P.No.5205 of 2005 and W.P.No.24857 of 2006 preferred
by the Government, the Respondent rejected the case of the Petitioner
for fixing his notional seniority with effect from 30.11.1987.
GN, J. & VN, J.
(iv). Aggrieved thereby, the Petitioner preferred one more O.A. i.e.
O.A.No.4265 of 2016, which later came to be renumbered as W.P.
No.18475 of 2021 before this Court. The learned Single Judge
proceeded to pass the following orders:
―7. Accordingly, the Writ Petition is allowed, while
declaring the impugned proceedings dated 14.10.2015 issued by
the 3rd respondent as illegal and arbitrary and same is hereby
set aside. The respondents are directed to fix the notional
seniority in the cadre of Typist with effect from 30.11.1987 and
release all increments and consequential benefits to the
petitioner, such as revision of seniority and further respective
promotions to the next higher level along with consequential
benefits as per Government memo dated 09.06.2011 issued by
the 1st respondent and order in R.C.No.H6/3277/2008, dated
15.10.2009 passed by the Deputy Chief Executive Officer, Eluru,
within a period of eight (08) weeks from the date of receipt of a
copy of this order. There shall be no order as to costs‖
7. It is pertinent to note that even the learned Single Judge has
placed reliance on G.O.Ms.No.212, dated 22.04.1994.
8. From the above narration, it is apparent that the Petitioner has
been conducting his litigation in a staggered manner. In the first round
of litigation, which commenced in the year 1996, the Petitioner simply
asked for arrears of salary in view of the order of regularization, dated
23.09.1994, which in itself was consequential to G.O.Ms.No.212, dated
22.04.1994. Thereby implying his acceptance of the terms of
GN, J. & VN, J.
regularization. Thereafter, the second round of litigation was initiated in
2007 seeking for grant of advancement scheme increments for 8 and 16
years and the third round of litigation commenced in 2011 seeking for
fixation of notional seniority from the date of his appointment and the
fourth round of litigation was in 2016, which came to be renumbered in
the year 2021 before this High Court, resulting in the impugned order.
9. The impression that one can gather is that the Petitioner has
carefully orchestrated the litigation in a staggered manner. Notional
seniority, arrears of wages and career advancement scheme
increments, all being consequential reliefs to the relief of regularization,
are litigated over a period of 20 years i.e. from the first O.A. which
commenced in 1996 and culminating in the last O.A. in 2016. Though,
at the first blush it appeared to be a classic case of State oppression,
but a closer scrutiny of the facts and in particular the orders, go to speak
otherwise. The reasoning and conclusions drawn hereinafter would
clearly justify our observation.
10. CONTENTIONS OF THE WRIT PETITIONER:
(i). It is the case of the Petitioner that he was lawfully appointed as a
Typist on daily wage basis; that the order of appointment was issued on
30.11.1987; that since then he has been diligently discharging his duties
and he is presently discharging duties as a Senior Assistant in the office
GN, J. & VN, J.
of the Mandal Praja Parishad, Dwaraka Tirumala, West Godavari
District;
(ii). That while so, his services came to be regularized under
G.O.Ms.No.618, dated 23.09.1994, with effect from the date of their first
appointment, subject to the appointing authority duly following the rule of
reservation;
(iii). That G.O.Ms.No.618, dated 23.09.1994, came to be issued
consequent to G.O.Ms.No.212, dated 22.04.1994; and the orders of
regularization having been issued with effect from the date of
appointment, the Petitioner was entitled to all reliefs consequential to the
act of regularization;
(iv). That arrears and back-wages, applicability of career advancement
scheme and fixation of seniority are all consequential and that
successive orders of the Tribunal have recognized and upheld the
entitlement of the Petitioner to back- wages from 1987 to 1996, career
advancement scheme and lastly for notional seniority; and
(v). That the issue of regularization, having been settled, the other
reliefs being consequential and the Tribunal having repelled the attempt
of the Respondents to apply the amended G.O.Ms.No.618, dated
23.09.1994 and G.O.Ms. No.430, dated 14.11.997, there is no
impediment to grant the reliefs sought for by the Petitioner under various
GN, J. & VN, J.
proceedings. The learned Counsel for the Petitioner would pray for
rejection of the Writ Appeal.
11. CONTENTIONS OF THE 3rd RESPONDENT/APPELLANT:
The 1st respondent in the Writ Petition is the Appellant herein.
This Respondent has canvassed the case on multifarious grounds.
(i). The learned Government Pleader would strenuously contend that
there has been a clear miscarriage of justice and on account of the
careful maneuvering & orchestration of the litigation by the Petitioner,
the State's exchequer has been mulcted with a liability which was not
envisioned under G.O.Ms.No.212 dated 22.04.1994 nor to which the
Petitioner was made entitled under G.O.Ms.No.618, dated 23.09.1994.
(ii). That the G.O.'s never granted back-wages or notional seniority.
(iii). He would contend that all the orders are in the teeth of
G.O.Ms.No.212, dated 22.04.1994 and G.O.Ms.No.618, dated
23.09.1994 and being contrary to law are rendered per incuriam;
(iv). That the Petitioner has also not mounted any challenge to either
G.O.Ms.No.430, dated 14.11.1997 or G.O.Ms.No.392, dated
21.09.1998, whereby the rights of the persons, who are entitled for
regularization under G.O.Ms.No.212, dated 22.04.1994, stood
crystallized; that the orders that have flown from the Tribunal are
contrary to the G.O.Ms.No.430, dated 14.11.1997 and G.O.Ms.No.392,
dated 21.09.1998, which are still holding the field and in that sense, the
GN, J. & VN, J.
orders are rendered per incurium being in ignorance and contrary to law;
and
(v). The learned Government Pleader would vehemently refute the
claim of the Petitioner that he is entitled for regularization from the date
of his original appointment and the Learned Government Pleader would
pray that the Writ Appeal be allowed and the order of the learned Single
Judge be set aside and the rights of the Petitioner be settled in terms of
G.O.Ms. No.212, dated 22.04.1994 and G.O.Ms.No.430, dated
14.11.1997 and G.O.Ms.No.392, dated 21.09.1998.
12. We have bestowed our anxious consideration to the various
contentions canvassed on behalf of both the parties and so also to the
material papers. In the course of hearing, it became apparent that
regularization of the Petitioner's services had its genesis in
G.O.Ms.No.212, dated 22.04.1994. It is also apparent that in the entire
line of litigations, there is critical reference to the aforesaid G.O. Hence,
we deem it necessary to subject it to a close scrutiny and hence, we re-
produce the same hereunder:
―GOVERNMENT OF ANDHRA PRADESH
ABSTRACT
Public Services - Regularisation and absorption of Daily Wage /
NMR or Consolidated Pay - Specific Scheme - Formulated -
Orders - Issued.
------------------------------------------------------------------------------------
FINANCE AND PLANNING (FW.PC.III) DEPARTMENT
G.O.Ms. No.212 Dated:22-04-1994
Read the following :
GN, J. & VN, J.
1. The A.P. (Regulation of Appointment to Public
Services and Rationalization of Staff Pattern and
Pay Structure) Act 2 of 1994.
2. Govt. Memo. No.42246-A/907/PC.I/A1/93,
Dated.2-2-1994.
ORDER:
Government noticed that appointing authorities of the
Institutions and Establishments under the control of State
Government, Local Authorities, Corporations owned and
controlled by the State Government grossly violated the
instructions issued from time to time by the Government and
appointed persons indiscriminately to various categories of
services either on Daily Wage basis or temporary basis without
there being a post and without being sponsored by Employment
Exchange and without observing the rule of reservation to the
Scheduled Castes, Scheduled Tribe and Backward Classes. In
most of the cases, the persons appointed for a specific work
have been continued even after their need ceased. After a lapse
of some time, all these appointees have approached the various
Courts and Tribunals for regularisation of their services and
Courts and Tribunal have been directing the State Government
to regularize the services on the ground that they have a long
service to their credit. This practice has been causing
considerable drain on the finances of the State Government.
Government have thought it imperative to prohibit the
unauthorized and irregular appointments by a law in the public
interest. Accordingly the State Government have enacted law
regulating the appointments to Public Services and for
Rationalization of the Staff Pattern and Pay Structure in the
reference read above. This will streamline the recruitment along
healthy lines, to enforce Employment Exchanges (Compulsory
Notification of Vacancies) Act in its true letter and spirit, to follow
the rule of reservation enshrined, in the Constitution with utmost
strictness and to punish those who are guilty of violating the law.
The above Act came into force with effect from 25-11-1993.
(underlining by this Court)
2. Though the reference 2nd cited, information has been
obtained from various Government Offices, Local Bodies, Public
Sector undertakings etc., from the information received by
Government, it is seen that appointing authorities have violated
the instructions issued by Government and appointed several
individuals. Appointments have been made indiscriminately in
the Government Offices, Local Bodies, Universities, Public
Sector undertakings and various other Bodies and Institutions
GN, J. & VN, J.
operating on Government finances. In fact, there is no need to
continue all these Daily Wage / Temporary employees for the
reasons that not all of them are appointed in sanctioned posts
and the recruitment was in many cases not through Employment
Exchange. Their appointment was made without following rule of
reservation and in the case of work-charged employees; there is
no work for them as the specific work for which they were
appointed has already been completed. Though the Act
provides that no person who is Daily Wage employee and no
person who is appointed on temporary basis shall have any right
to claim for regularization of service on any ground, it has been
the endeavour of the Government to regularize as many as
NMR/ Daily wage employees a possible who are otherwise
qualified depending on the requirement of the workload while
keeping in mind the hardship that would be caused if their
services are not regularized. The Hon'ble Supreme Court in its
Judgment dated 12-08-1992 in Civil Appeal No. 2979/92 and
batch have also observed to evolve an appropriate policy for
regularization. Accordingly, Government after careful
examination of the whole issue and in supersession of all
previous orders on the subject including G. O. Ms. No.193,
General Administration Department, dated.14-03-1990 and
keeping in view the above judgment of Supreme Court of India,
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.
Government accordingly decided that the services of such
persons who worked continuously for a minimum period of 5
years and are continuing on 25-11-1993 be regularized by the
appointing authorities subject to fulfillment of the following
conditions: (underlining by this Court)
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.
(underlining by this Court)
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.
(underlining by this Court)
4. Sponsoring of candidates from Employment Exchange is
relaxed.
5. Absorption shall be against clear vacancies of posts
considered necessary to be continued as per work load
GN, J. & VN, J.
excluding the vacancies already notified to
the Andhra Pradesh Public Service Commission / District
Selection Committee. (underlining by this Court)
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
work charged 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.
3. All the Departments of Secretariat / Heads of Departments
are requested to process the cases of absorption / regularization
of services of N.M.Rs. / Daily Wage Employees etc. in pursuance
of above scheme and obtain the clearance of Government
before orders are issued for such regularization or absorption.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF
ANDHRA PRADESH)
A.R. Jaya Prakash,
Secretary to Government‖
13. The abstract would carry the subject under the caption ―Public
Services - Regularisation and absorption of daily wage/NMR/
consolidate pay/Part-time employees - Specific Scheme - Formulated -
Orders - Issued‖. Thereafter, the preamble to Act 2 of 1994 i.e. Andhra
Pradesh (Regulation of Appointments to Public Services and
Rationalization of Staff Pattern and Pay Structure) Act, 1994 (Act 2 of
94) reveals the rationale behind the ―Specific Scheme‖. A reading of the
preamble to the order would record that there has been a gross violation
of the instructions issued by the Government from time to time with
regard to appointments on daily wage basis or temporary basis being
made indiscriminately and sometimes without even there being a post
much less being sponsored by the Employment Exchange and even
GN, J. & VN, J.
without observing the rule of reservation to Scheduled Castes and
Scheduled Tribes and Backward Classes, which is a constitutional
mandate. It also records that people appointed to tenure posts or for a
particular purpose have been continued even after the purpose ceased
to exists; that as a result and after a passage of time, all such persons
approached various Courts and Tribunals praying for regularisation
resulting in a drain on the exchequer and the Government of the day in
order to alleviate an obnoxious practice and with the objective of ridding
itself of this menace of unauthorised and irregular appointments, thought
it imperative to enact law for regulating appointments to public services
and for rationalisation of the staff pattern and pay structure and also to
stream-line recruitment along healthy lines and to enforce Employment
Exchange (Compulsory Notification of Vacancies) Act in its true letter
and spirit and to follow the rule of reservation enshrined in the
Constitution with utmost strictness and to punish those who are guilty of
violating the law and Act 2 of 1994 came to be legislated and came into
effect on 25.11.1993.
14. Para.2 would record that the information was secured by the State
from various Government Offices, Local bodies, Public Sector
Undertakings etc., and that the information reveals that there has been a
gross violation of the instructions issued by the Government resulting in
appointment of several individuals. It further records that appointments
GN, J. & VN, J.
have been made indiscriminately resulting in a huge burden on the
Government finances. It further records that the information furnished
and collected from various departments would reveal that there was no
need to continue daily wage/temporary employees, as most of them are
not appointed against sanctioned posts and the recruitment is not
through the Employment Exchange. That their appointments have been
made without following the rule of reservation and in case of work
charged employees appointments are made, though there is no work
that could be allotted much less discharged by them.
15. That apart, in view of the ruling of the Hon'ble Apex Court in
C.A.No.2979 of 1992, dated 12.08.1992, which recommended the
framing of an appropriate policy for regularisation, the Government
proceeded to issue G.O.Ms.No.212 and thereby superseded all previous
orders on the subject and the G.O. is claimed to be issued keeping in
view the afore stated judgment of the Hon'ble Apex Court and the same
has resulted in the framing of a Scheme for regularisation of services of
the persons of the above noted class of persons.
16. That one of the elementary pre-conditions stipulated is that they
should possess the eligibility as stipulated for the post under the rules
and the second pre-condition is that they ought to have worked
continuously for a minimum period of five years and are continued as on
25.11.1993 and only such persons and not all and sundry were made
GN, J. & VN, J.
eligible to be considered for regularisation. That apart, sub-paras (1) to
(6) of para.2 also impose certain pre-conditions apart from the twin
eligibility conditions of having worked for five years and continuing
working on the appointed date i.e. 25.11.1993. The first pre-condition
stipulates that the person so appointed should possess the prescribed
qualification as per Rules in force as on the date.
17. The other pre-conditions are that they should be within the age
limit as on the date of appointment; thirdly, the rule of reservation
wherever applicable is to be followed and backlog to be set off against
future vacancies; fourthly, sponsoring of candidate by the Employment
Exchange is waived or relaxed; fifthly, the absorption should be against
the clear vacancy of posts considered necessary to be continued as per
work load excluding the vacancies already notified to the APPSC/DSC;
sixthly and lastly, employees who are rendering service as work charged
establishments have to be shifted to other departments after their
services are terminated in the work charged establishment.
18. Thus, from the above, it can be safely inferred that G.O.Ms.
No.212, dated 22.04.1994, was not a licence for indiscriminate
application as a matter of right but was a Scheme designed to enable
the regularization of the employment of people, who otherwise were not
GN, J. & VN, J.
entitled to be appointed on a regular basis, as they had not undergone
the prescribed process of selection and were all back door entrants.
19. As a consequence to the same, G.O.Ms.No.618, dated
23.09.1994 came to be issued by the Secretary to Government,
Panchayat Raj and Rural Development and Relief (Estt.V) Department.
The same reads as under:
"GOVERNMENT OF ANDHRA PRADESH
ABSTRACT
ESTABLISHMENT - Ministerial - Zilla Parishad, West
Godavari District - Certain Temporary Typists working on
daily Wage basis in the Zilla Parishad, West Godavari
District - Regularisation of their Services in the cadre of
Typists - Orders - Issued.
-----------------------------------------------------------------------------
PANCHAYAT RAJ & RURAL DEVELOPMENT & RELIEF
(ESTT.V) DEPARTMENT
G.O.Ms.No: 618. Dated: 23-09-1994.
Read the following:-
1. G.O.Ms.No: 1175, PR & RD Dept., dt: 17-07-87.
2. G.O.Ms.No: 212, Fin. & Plg. (FW) Department,
dt: 22-04-94.
3. From the CEO, Z.P., West Godavari District letter
No:H6/2216/94, dated: 30-05-94 and 02-09-94.
ORDER:
Orders were issued in the reference first read above
permitting all the Zilla Parishads in the State as a Special
Case in the exigencies of work to appoint typists on daily
wage basis in relaxation of the ban orders subject to certain
conditions therein. The Chief Executive Officer, Zilla
Parishad has appointed the four persons on daily wage
basis based on the above orders.
2. Orders were issued in the reference 2nd read above to
regularise temporary employees who are working on daily
wage basis in the State who fulfilled the conditions laid
GN, J. & VN, J.
down in the said G.O. and also requested all the
Departments of Secretariat to obtain approval of the
Finance & Planning (F.W) Department before issue of
orders.
3. The Chief Executive Officer, Zilla Parishad, West
Godavari District in the reference third read above, has
reported that there are no Junior Assistants working on
daily wage basis. The following 4 Typists who are working
on daily Wage basis and the individuals are continued on
the direction of A.P. Administrative Tribunal in O.As and
requested the Government to issue necessary orders to
regularise the following 4 Typists who are working on daily
wage basis.
Date of appointment
1. Sri T.Jacob Raju, Typist, M.P., Pedavegi, 11-02-1987
2. Sri G. Ramam, Typist, M.P., Elamanchili 12-02-1987
3.Sri P.V.R.Bhaskara Bhushanam, Typist, 18-02-1987
M.P., Dwarakatirumala.
4. Sri T. Seshagiri, Typist, M.P., Nallajarla. 30-11-1987
4. Government after careful examination hereby permit
the Chief Executive Officer, Z.P., West Godavari District to
regularise the services of the following temporary Typists
who are working on daily wage basis under the
management of Zilla Parishad, West Godavari District with
effect from the date of their first appointment duly following
the rule of reservation and also subject to withdrawing the
court cases filed by them.
1.Sri T.Jacob Raju, Typist, M.P., Pedavegi from 11-2-1987
2.Sri G.Ramam, Typist, M.P., Elamanchili from 12-2-1987
3.Sri P.V.R. Bhaskara Bhushanam, from 18-2-1987
Typist, M.P., Dwarakatirumala.
4.Sri T.Sheshagiri, Typist, M.P.,Nallajerla. from 30-11-1987
5. This order issues with the concurrence of the Finance
and Planning (F.W) Department vide their U.O.No.
23574/A1/337/PC.III/94, dated: 10-08-1994.
(BY ORDER AND IN THE NAME OF THE GOVERNOR OF
ANDHRA PRADESH)
Sd/-G.SUDHIR
Secretary to Government‖
GN, J. & VN, J.
20. A reading of the Ref.2 and Para.2 would make it clear as crystal
that the said G.O. is enabled by G.O.Ms.No.212, dated 22.04.1994.
Subsequently, the Respondents realising that certain errors have crept
in to G.O.Ms.No.618, dated 23.09.1994, proceeded to issue an
addendum by way of G.O.Ms.No.430, dated 14.11.1997, seeking to
clarify the date from which they were entitled to have their services
regularised. It is pertinent to note here itself that the said G.O. has not
been set aside and still holds the field. Subsequently, another
G.O.Ms.No.392, dated 21.09.1998, came to be issued and the same
was issued to deal with another or fourth class of persons who were left
out of the scope and ambit of G.O.Ms.No.212, dated 22.04.1994. In a
sense, under G.O.Ms. No.430, dated 14.11.1997, what was sought to be
clarified is that the regularisations in terms of G.O.Ms.No.212, dated
22.04.1994, were required to be from the date on which they were
regularised and not from the date of their original appointment.
21. The G.O.Ms.No.430, dated 14.11.1997, reads as under:
―GOVERNMENT OF ANDHRA PRADESH
ABSTRACT
Establishment - Ministerial - Z.P., West Godavari Dist., - Certain
Temporary Typists working on Daily Wage basis under the
control of Z.P., West Godavari District - Regularisation of their
services in the cadre of Typists - Ordered - Amendment - Issued.
------------------------------------------------------------------------------------
PANCHAYAT RAJ AND RURAL DEVELOPMENT (ESTT-V)
DEPARTMENT
G.O.Ms.430 Dated: 14.11.1997
GN, J. & VN, J.
GO.Ms.No.618,P.R &R.D. (Estt-V) Department, dated
23.9.94.
ORDER:
1. The following amendment is issued to the G.O.Ms. No.618,
P.R & R.D (Estt-V) Department, Dated 23.9.94:-
For the words "with effect from the date of their first
appointment" occurred in para-4 of the said G.O., the
words "with prospective effect" shall be substituted.
2. This order issues with the concurrence of Finance and
planning (FW.PC.III) Department vide their
U.O.No.25453/180/A3/PC.III/97, dated 22.7.1997.
(BY ORDER AND IN THE NAME OF THIS GOVERNMENT OF
ANDHRA PRADESH)
P.RAMAKANTHA REDDY
SECRETARY TO GOVERNMENT‖
22. We have heard the parties at length. The question that falls for
consideration before this Court was whether the petitioner could have
sought for settlement of seniority after nearly thirty years of his alleged
appointment. At the very outset, we observe that the petitioner has been
using the justice dispensation system, namely the Courts, as a tool to
secure orders more on the basis of sympathy than any legal entitlement
vested in him. In this regard, we have examined the various G.Os.,
more particularly, G.O.Ms. No.212, dated 22.04.1994. The preamble to
the G.O. is clear that it is a ―specific scheme‖ that has been formulated
by the Government to address the scourge of irregular and illegal
appointments made by various authorities and State owned
Corporations and the instant writ petitioner is a classic case of pounding
the executive with series of litigation and beating them down into
GN, J. & VN, J.
submission with a deluge of orders. The G.O. also speaks about the
indiscriminate appointments and the yearning of the State to streamline
recruitment along healthy lines.
23. The notification fell for consideration before the Hon'ble Apex
Court in A.Manjula Bhashini v. A.P. Women's Coop. Finance Corpn.
Ltd.1 The Hon'ble Apex Court has proceeded to not only interpret the
G.O.Ms.No.212, dated 22.04.1994, but also has upheld the Act of 1998.
It is pertinent to note that both the G.Os. still hold the field. The relevant
paragraphs in A. Manjula Bhashini's case1 are extracted hereunder for
a better and critical appraisal of the facts of the case:
"25. The relevant portions of the Division Bench judgment
are extracted below:
―58. The entire basis whereupon the judgment of the
learned Single Judge is based is, therefore, erroneous. As
indicated hereinbefore having regard to the mode of
appointment, the requirements thereof, absence of
sanctioned posts, non-observance of the statutory rules the
part-time employees, ad hoc employees and NMRs did not
derive any legal right whatsoever to continue in service. In
fact, save and except the right conferred upon them to be
considered for regularisation by reason of GOMs No. 212,
they did not have any other legal right whatsoever. It is now
well-settled principle that by reason of a catena of decisions
of the High Court as also of the Supreme Court of India a
prolonged service would not ripen into permanence nor by
reason thereof the status of employee can be changed.
59. It is also not a case where an individual decision
inter-party had been sought to be taken away by reason of
the said Amendment Act in terms whereof their rights and
liabilities alone were affected. The interpretation of a policy
decision is a judgment in rem and by reason thereof, no
inter-party rights had been conferred or adjudicated upon.
(2009) 8 SCC 431
GN, J. & VN, J.
60. The validation Act or for that purpose any
Amendment Act does not offend the doctrine of separation of
powers. It is also trite that the Court in exercise of its
jurisdiction under Article 226 of the Constitution while
exercising its power of judicial review over legislation would
not invalidate an Act on the ground of malice or otherwise.
Such an approach, in our opinion, is wholly unwarranted
inasmuch as the question as to whether the statute suffers
from the vice of fraud on legislation or not must be kept
confined to the legislative competence and not otherwise.
Right to employment is not a fundamental right or a
constitutional right. In terms of Articles 14 and 16 of the
Constitution the right of a citizen is confined only to
consideration therefor. Thus it would be incorrect to contend
that the same would be a right of property.
***
67. The next question which may arise for consideration
would be as to whether the cut-off date 25-11-1993 is so
arbitrary as to attract the wrath of Article 14 of the
Constitution.
68. Fixing a cut-off date is normally not arbitrary unless it
can be said to be case where such a date has been fixed
arbitrarily or capriciously and no reason exists therefor.
69. After the decision of the Apex Court in Piara Singh
case [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21
ATC 403. Ed.: Piara Singh case has been overruled
in Umadevi (3) case, (2006) 4 SCC 1.] the State had
appointed a committee. The committee had gone into the
matter and made certain recommendations including fixation
of cut-off date. Such a cut-off date was fixed keeping in view
the coming into force of such policy decision. In Sushma
Sharma v. State of Rajasthan [1985 Supp SCC 45 : 1985
SCC (L&S) 565] the Apex Court has held: (SCC pp. 64-65,
paras 38-39).
‗38. It may be borne in mind that wisdom or lack of
wisdom in the action of the Government or legislature is
not justiciable by court. See in this connection the
observations of the US Supreme Court in Metropolis
Theater Co. v. City of Chicago [57 L Ed 730 : 228 US 61
(1912)] . To find fault with a law is not to demonstrate its
invalidity. McKenna, J. observed as follows:
―It may seem unjust and oppressive, yet be free
from judicial interference. The problems of
Government are practical ones and may justify, if they
do not require, rough recommedations, illogical, it may
be, and unscientific. But even such criticism should
not be hastily expressed. What is best is not always
GN, J. & VN, J.
discernible, the wisdom of any choice may be
disputed or condemned. Mere errors of Government
are not subject to our judicial review. It is only its
palpably arbitrary exercises which can be declared
void.‖
39. This passage has been quoted with approval by
Chief Justice Chandrachud in Prag Ice & Oil Mills v. Union
of India [(1978) 3 SCC 459 : AIR 1978 SC 1296 : (1978) 3
SCR 293] , SCC at p. 498 : SCR at p. 333: AIR at p.
1318.'
70. Yet again in Cauvery Water Disputes Tribunal,
Re [1993 Supp (1) SCC 96 (2)] the Apex Court clearly held:
(SCC p. 140, para 73)
'73. ... To the extent that the Ordinance interferes with
the decision of this Court and of the Tribunal appointed
under the Central legislation, it is clearly unconstitutional
being not only in direct conflict with the provisions of
Article 262 of the Constitution under which the said
enactment is made but being also in conflict with the
judicial power of the State.'
71. There is another aspect of the matter which we may
not lose sight of. In terms of Act 2 of 1994 a complete ban
had been imposed in making recruitment of NMR, part-time
or ad hoc employees. Thus on and from 25-11-1993 nobody
had been employed nor could be employed. Any such
appointment would ex facie violate the provisions of the said
Act 2 of 1994 which not only contains a penal provision but
also imposed statutory liability upon the officers to pay and
unto the State all such salaries and emoluments paid to such
employees. Even a ban had been imposed on the treasuries
to honour such bills.
72. Act 27 of 1998 has come into force on 19-8-1998.
Thus the ban which now would be imposed, as regards grant
of regularisation will be effective from that date. Can it be
said that five years' continuous service as on 13-8-1998 is a
condition which is wholly arbitrary and irrational so as to
attract Articles 14 and 246 of the Constitution.
The answer to the aforementioned question must be
rendered in the negative. It will be a repetition to state that by
reason of GOMs No. 212 no workman derives any vested
right to be appointed as such. But the employees who fulfil
the criteria were entitled to be only considered therefor.
Regularisation of service in terms of the aforementioned
GOMs No. 212 is dependent upon fulfilment of the condition
enumerated therein.
As is evident from the decision of the Apex Court in M.L.
Singh case [(2009) 8 SCC 480 : (1998) 2 An LT 5] a
GN, J. & VN, J.
distinction must be borne in mind between a vested right and
a right to be considered inasmuch as the requirement of a
clear vacancy has a direct nexus therewith. Even if there
were clear vacancies, such vacancies were required to be
filled up having regard to the reservation policy of the State.‖
27. Learned counsel further argued that by virtue of the policy
contained in the G.O. dated 22-4-1994, persons appointed on
daily wages or nominal muster roll or consolidated pay acquired
a right to be regularised in service and the State could not have
deprived them of the said right by retrospectively amending the
1994 Act.
28. Another argument of the learned counsel for the
employees is that once this Court held that all persons appointed
on daily wages or nominal muster roll or consolidated pay are
entitled to be regularised with effect from the date of completion
of 5 years' continuous service, the legislature was not justified in
prescribing 25-11-1993 as the cut-off date for determining the
eligibility of daily wagers, etc. for the purpose of regularisation.
Learned counsel emphasised that the interpretation placed by
this Court on the G.O. dated 22-4-1994 is final and the same
could not have been undone by amending the 1994 Act.
29. Learned counsel for the State of Andhra Pradesh and its
agencies/instrumentalities argued that the 1994 Act was
amended to clarify the object underlying the policy of
regularisation contained in the G.O. dated 22-4-1994 and to
make the same an integral part of the statute and the Division
Bench rightly held that the Amendment Acts do not have the
effect of nullifying the judgment of this Court in District
Collector/Chairman v. M.L. Singh [(2009) 8 SCC 480 : (1998) 2
An LT 5] .
30. Learned counsel for the State pointed out that the policy
contained in the G.O. dated 22-4-1994 was a one-time measure
for relaxing the negative mandate contained in Section 7 against
regularisation of the persons appointed on daily wages or on
temporary basis and argued that the legislature did not exceed
its jurisdiction by laying down the requirements of completing 5
years' continuous service on or before 25-11-1993 for the
purpose of regularisation. They, however, questioned the
direction given by the Division Bench for considering the cases
of all daily wagers and the like for regularisation who completed
five years on 19-8-1998 i.e. the date on which Amendment Act
27 of 1998 was published in the gazette, by arguing that it was
legally impermissible for the Division Bench to change and/or
GN, J. & VN, J.
extend the date of eligibility for regularisation from 25-11-1993 to
19-8-1998 simply because the amendment made in Section 7 by
Act 27 of 1998 was not enforced retrospectively.
31. In the light of the above, we shall first consider whether
the amendments made in the 1994 Act have the effect of
nullifying or overriding the judgment of this Court in District
Collector/Chairman v. M.L. Singh [(2009) 8 SCC 480 : (1998) 2
An LT 5] and whether Section 7-A of (sic inserted by) Act 27 of
1998 amounts to an encroachment on Courts' power of judicial
review. For this purpose, it is necessary to understand the true
nature of the 1994 Act, mischief sought to be remedied by
enactment thereof and the reasons for its amendment.
32. The 1994 Act was enacted in the backdrop of the
decision taken by the State Government to curb irregular
appointments, to rationalise the staff pattern and pay structure
and thereby reduce unnecessary expenditure and also to ensure
that only those selected by the specified recruiting agencies are
appointed against the sanctioned posts. This is clearly
discernible from the Statement of Objects and Reasons
contained in the Bill which led to enactment of the 1994 Act and
provisions contained therein to which reference will be made
hereinafter.
41. We may now advert to the Statement of Objects and
Reasons contained in the Bill introduced in the Andhra Pradesh
Legislative Assembly. A perusal thereof shows that between
1976 and 1993, the total number of employees of the State
Government, agencies/instrumentalities of the State and
bodies/institutions receiving aid from the Government increased
by 82% i.e. from 6.78 lakhs to 12.34 lakhs and in 1993-1994, the
State Government had to spend more than 80% of the total
revenue in payment of salaries, allowances, pension, etc. of the
employees causing severe strain on the revenue of the State
which adversely affected implementation of the welfare schemes
and development programmes. That apart, there was growing
dissatisfaction among several thousand unemployed persons
including those belonging to Scheduled Castes, Scheduled
Tribes and Other Backward Classes, who were registered with
the employment exchanges but could not get opportunity of
competing for selection for appointment against the sanctioned
posts.
42. With a view to redeem the situation, the State
Government decided to totally prohibit employment on daily
wages and also restrict appointment on temporary basis and, at
GN, J. & VN, J.
the same time, ensure that all appointments are made against
the sanctioned posts only on the recommendations of the
specified recruiting agencies. In furtherance of that decision, the
Governor of Andhra Pradesh promulgated the Ordinance, which
was replaced by the 1994 Act.
43. The term ―daily-wage employee‖ has been defined in
Section 2(ii) to mean any person employed in any public service
on the basis of payment of daily wages and includes a person
employed on the basis of nominal muster roll or consolidated pay
either on full-time or part-time or piece-rate basis or as a work-
charged employee and any other similar category of employees
by whatever designation called other than those who are
selected and appointed on sanctioned posts in accordance with
the relevant rules on a regular basis.
44. The term ―public service‖ has been defined in Section
2(vi) to mean service in any office or establishment of the
Government, a local authority, a corporation or undertaking
wholly owned or controlled by the State Government, a body
established under any law made by the legislature of the State
whether incorporated or not, including a university, and any other
body established by the State Government or by a society
registered under any law relating to the registration of societies
for the time being in force, and receiving funds from the State
Government either fully or partly for its maintenance or any
educational institution whether registered or not but receiving aid
from the Government.
46. Section 4 of the Act lays down that no recruitment in any
public service to any post in any class, category or grade shall
be made except from the panel of candidates selected and
recommended for appointment by the Public Service
Commission/College Service Commission or from a panel
prepared by any Selection Committee constituted for the
purpose in accordance with the relevant rules or orders or from
among the candidates having the requisite qualification and
sponsored by the employment exchange.
47. Section 5 of the Act provides that where an appointment
has been made otherwise than in accordance with Section 4, the
drawing authority shall not sign the salary bill of the appointee
concerned and the Pay and Accounts Officer, Sub-Treasury
Officer or any other officer upon whom duty has been cast of
passing the salary bill shall not pass such bill.
GN, J. & VN, J.
48. Section 6 envisages imposition of different types of
penalties on the holders of elective offices or any other officer or
authority responsible for making appointment in contravention of
the provisions of the Act. It also provides for recovery of the pay
and allowances paid to a person appointed in contravention of
the provisions of the Act.
49. Section 7 contains a prohibition against regularisation of
persons appointed on daily wages or on temporary basis. It lays
down that such appointee shall have no right to claim
regularisation of service on any ground whatsoever and his/her
service shall be liable to be terminated without any notice and
without assigning any reason. By virtue of the first proviso to
Section 7, an exception has been made in the case of workman
to whom Section 25-F of the Industrial Disputes Act, 1947 is
applicable. The service of such person can be terminated only
after complying with the provisions of Section 25-F.
54. If the State Government had sincerely implemented the
provisions of the 1994 Act, it may have succeeded in cleansing
the mess created due to irregular employment of thousands of
persons and, thereby, saved considerable revenue which could
be utilised for execution of welfare schemes and development
programmes. By ensuring that appointments against the
sanctioned posts are made only from among the candidates
selected by the specified recruiting agencies like Public Service
Commission/College Service Commission, etc. or from among
the candidates sponsored by the employment exchanges, the
State Government could have demonstrated its commitment to
the system established by the rule of law and determination to
comply with the equality clause enshrined in the Constitution and
other relevant statutory provisions in their true spirit.
55. Unfortunately, that did not happen because, in spite of the
prohibition contained in Section 7 against regularisation of the
existing daily-wage employees and persons appointed on
temporary basis, the State Government wilted under the
pressure exerted by the vested interests and issued the G.O.
dated 22-4-1994 incorporating therein policy for regularisation of
the services of those appointed on daily wages or nominal
muster roll or consolidated pay, who had continuously worked for
5 years and were continuing on 25-11-1993 i.e. the date of
enforcement of the 1994 Act. This was intended to be a one-time
measure and not an ongoing process/scheme for regularisation
of the services of all daily-wage employees on their completing 5
years.
GN, J. & VN, J.
57. While reversing the order of the Central Administrative
Tribunal, this Court observed: (Mohan Pal case [(2002) 4 SCC
573 : 2002 SCC (L&S) 577] , SCC pp. 576-77, para 6)
―6. ... We do not think that Clause 4 of the Scheme
envisages it as an ongoing scheme. In order to acquire
‗temporary' status, the casual labourer should have been in
employment as on the date of commencement of the
Scheme and he should have also rendered a continuous
service of at least one year which means that he should
have been engaged for a period of at least 240 days in a
year or 206 days in case of offices observing five days a
week. From Clause 4 of the Scheme, it does not appear to
be a general guideline to be applied for the purpose of giving
‗temporary' status to all the casual workers, as and when
they complete one year's continuous service. Of course, it is
up to the Union Government to formulate any scheme as
and when it is found necessary that the casual labourers are
to be given ‗temporary' status and later they are to be
absorbed in Group D posts.‖
The ratio of the aforementioned judgment was reiterated
in Union of India v. Gagan Kumar [(2005) 6 SCC 70 : 2005 SCC
(L&S) 803] and Director General, Doordarshan v. Manas
Dey [(2005) 13 SCC 437 : 2006 SCC (L&S) 1084] .
58. So far as these appeals are concerned, we find that the
learned Single Judge interpreted the G.O. dated 22-4-1994 as
entitling all daily-wage employees to claim regularisation in
service with effect from the date of completion of five years
irrespective of the date on which such period was completed or
would have been completed. The Division Bench maintained the
order of the learned Single Judge with the modification that
regularisation would be from the date of completion of 5 years'
continuous service.
59. This Court in M.L. Singh case [(2009) 8 SCC 480 : (1998)
2 An LT 5] approved the view taken by the Division Bench
apparently because even though the policy contained in the G.O.
dated 22-4-1994 was intended to be a one-time measure for
facilitating regularisation of those who completed 5 years' service
on 25-11-1993, it did not contain a specific stipulation that only
those who have completed 5 years' continuous service as on 25-
11-1993 will be regularised. A reading of the judgment in District
Collector/Chairman v. M.L. Singh [(2009) 8 SCC 480 : (1998) 2
An LT 5] makes it clear that while examining correctness of
judgment of the Division Bench of the High Court, this Court did
not consider the background in which the 1994 Act was enacted,
mischief sought to be remedied by it and various provisions
GN, J. & VN, J.
contained therein including Section 7 whereby it was made clear
that no person employed on daily-wage or on temporary basis
and continuing as such on the date of commencement of the Act
shall have or shall ever be deemed to have the right to claim
regularisation of service and his/her services shall be liable to be
terminated at any time without any notice and without assigning
any reason.
60. We may observe that if the officers responsible for
drafting the G.O. dated 22-4-1994 had bothered to carefully read
the provisions of the 1994 Act then instead of using the
expression ―such persons who worked continuously for a
minimum period of five years and are continuing on 25-11-1993‖,
they would have employed the expression ―such persons who
have completed minimum five years of continuous service on or
before 25-11-1993 on daily wages or nominal muster roll or
consolidated pay‖. However, utter non-application of mind by the
officers concerned resulted in the use of an ambiguous
expression in the policy of regularisation which generated
enormous litigation requiring the individual employees and the
State Government to invest money for an avoidable exercise.
61. In order to remove the ambiguity and imperfectness in the
language of the G.O. dated 22-4-1994 and make the policy of
regularisation an integral part of the 1994 Act, the legislature
enacted Amendment Acts 3 and 27 of 1998. The purpose of
making the policy of regularisation a part of the 1994 Act was not
to dilute the main object of the 1994 Act i.e. to curb the menace
of irregular appointments and also ensure that appointments are
made against the sanctioned posts only from among the
candidates selected by the designated recruiting agencies but
also to harmonise the same with the prohibition contained in
Section 7 against regularisation of daily-wage and temporary
employees.
62. The preface of Act 27 of 1998 clearly shows that the
policy contained in the G.O. dated 22-4-1994 was intended to be
a one-time measure for regularisation of the persons employed
on daily wages or nominal muster roll or consolidated pay, who
completed 5 years' continuous service on or before 25-11-1993
i.e. the date of enforcement of the 1994 Act and it was not a
continuing scheme for regularisation of all ―daily-wage
employees‖ as and when they were to complete five years'
period.
63. The language of the first proviso to Section 7 by which
the policy of regularisation was engrafted in the 1994 Act shows
GN, J. & VN, J.
that the amendments were made with the sole object of
removing the ambiguity in the policy contained in the G.O. dated
22-4-1994 and the same were not intended to nullify or override
the judgment in District Collector/Chairman v. M.L. Singh [(2009)
8 SCC 480 : (1998) 2 An LT 5] .
64. We have no doubt that if the language of the policy
contained in the G.O. dated 22-4-1994 was similar to the one
contained in newly inserted proviso to Section 7 and there was
no ambiguity in it, the courts would not have interpreted the
same in a manner which would entitle all persons employed on
daily wages before 25-11-1993 to claim regularisation
irrespective of the date of completion of five years' service. Here
it will also be apposite to mention that the policy contained in the
G.O. dated 22-4-1994 did not confer an indefeasible right upon
all daily-wage employees [as the term has been defined in
Section 2(ii) of the 1994 Act] to be regularised in service dehors
the date of enforcement of the Act. Therefore, it cannot be said
that by incorporating the policy of regularisation in the 1994 Act,
the legislature has taken away an accrued or vested right of the
daily-wage employees.
65. It is interesting to note that the judgment of this Court
in State of Haryana v. Piara Singh [(1992) 4 SCC 118 : 1992
SCC (L&S) 825 : (1992) 21 ATC 403. Ed.: Piara Singh case has
been overruled in Umadevi (3) case, (2006) 4 SCC 1.] of which
shelter was taken by the State Government for framing the policy
of regularisation of daily wagers, etc. in the teeth of the
prohibition contained in Section 7 against such regularisation
does not lay down that there will be wholesale regularisation of
daily wagers, casual employees, work-charged employees, etc.
66. While dealing with the question whether the High Court
was right in declaring that the Government could not have
prescribed the requirement of particular length of service on a
particular date as a condition for regularisation, this Court
observed: (Piara Singh case [(1992) 4 SCC 118 : 1992 SCC
(L&S) 825 : (1992) 21 ATC 403. Ed.: Piara Singh case has been
overruled in Umadevi (3) case, (2006) 4 SCC 1.] , SCC pp. 139-
40, para 27)
―27. ... These orders are not in the nature of a statute
which is applicable to all existing and future situations. They
were issued to meet a given situation facing the Government
at a given point of time. In the circumstances, therefore,
there was nothing wrong in prescribing a particular date by
which the specified period of service (whether it is one year
or two years) ought to have been put in. Take for example,
GN, J. & VN, J.
the orders issued by the Haryana Government. The first
order is dated 1-1-1980. It says, a person must have
completed two years of service as on 31-12-1979 i.e. the day
previous to the issuance of the order. However could it be
said that fixing of such a date is arbitrary and unreasonable?
Similarly the order dated 3-1-1983 fixes 15-9-1982 as the
relevant date. This notification/order does two things. Firstly,
it excludes Class III posts of clerks from the purview of the
SSSB in the case of those who have completed a minimum
of two years of service as on 15-9-1982, and secondly, it
provides for their regularisation subject to certain conditions.
No particular attack was made as to this date in the High
Court. Consequently the Government of Haryana had no
opportunity of explaining as to why this particular date was
fixed. Without giving such an opportunity, it cannot be held
that the fixation of the said date is arbitrary. What is more
relevant is that the High Court has not held that this
particular date is arbitrary. According to it, fixation of any
date whatsoever is arbitrary, because in its opinion the order
must say that any and every person who completes the
prescribed period of service must be regularised on
completion of such period of service. The next order dated
24-3-1987 prescribes the date as 31-12-1986 i.e. the end of
the previous year. In the circumstances, we see no basis for
holding that fixation of the date can be held to be arbitrary in
the facts and circumstances of the case.‖
(emphasis added)
88. In none of the abovenoted cases, this Court considered
an issue akin to the one examined by us. Therefore, the
proposition of law laid down in those cases cannot be relied
upon for entertaining the claim of daily-wage employees for
regularisation irrespective of the fact that they may not have
completed 5 years' continuous service on or before 25-11-1993.
89. In view of the above discussion, we hold that the
amendments made in the 1994 Act by Acts 3 and 27 of 1998 do
not have the effect of nullifying or overriding the judgment
in District Collector/Chairman v. M.L. Singh [(2009) 8 SCC 480 :
(1998) 2 An LT 5] . We further hold that the policy of
regularisation contained in the first proviso to Section 7 inserted
by Act 27 of 1998 is a one-time measure intended to benefit only
those daily-wage employees, etc. who completed 5 years'
continuous service on or before 25-11-1993 and the employees
who completed 5 years' service after 25-11-1993 cannot claim
regularisation.
GN, J. & VN, J.
91. We shall now consider whether the cut-off date i.e. 25-11-
1993 specified in the first proviso to Section 7 of the 1994 Act (as
amended by Act 27 of 1998) for determination of the eligibility of
daily-wage employees to be considered for regularisation is
arbitrary, irrational and violative of Articles 14 and 16 of the
Constitution.
92. Undisputedly, the Ordinance issued in 1993 was the first
exercise of legislative power by the State to prohibit employment
on daily wages and to restrict appointments on temporary basis
and, at the same time, streamline the recruitment in public
services by adopting a procedure consistent with the doctrine of
equality embodied in Articles 14 and 16 of the Constitution.
93. The 1994 Act was enforced with effect from 25-11-1993
i.e. the date on which the Ordinance was published in the Official
Gazette. Therefore, that date had a direct bearing on the policy
of regularisation circulated vide the G.O. dated 22-4-1994, which
was issued by the State Government in exercise of its executive
power under Article 162 of the Constitution. When that policy
was engrafted in the 1994 Act in the form of the proviso to
Section 7, the legislature could not have fixed any date other
than 25-11-1993 for determining the eligibility of daily-wage
employees who fulfilled the requirement of 5 years' continuous
service. If any other date had been fixed for counting 5 years'
service of daily-wage employees for the purpose of proviso to
Section 7, the object sought to be achieved by enacting the 1994
Act would have been defeated, inasmuch as the regular
recruitment could not have been made for appointment against
the sanctioned posts and back door entrants would have
occupied all the posts. Therefore, the cut-off date i.e. 25-11-1993
prescribed by the legislature for determining the eligibility of
daily-wage employees and others covered by Section 7 of the
1994 Act cannot be dubbed as arbitrary, unreasonable, irrational
or discriminatory.
94. This view of ours is in tune with judicial precedents on the
subject. In Union of India v. Parameswaran Match Works [(1975)
1 SCC 305] a three-Judge Bench was called upon to decide
whether the date for making the declaration i.e. 4-9-1967 fixed
for grant of the benefit of concessional rate of duty was irrational
and arbitrary. The High Court declared that the cut-off date fixed
for grant of the concessional rate of duty violated Article 14 of the
Constitution. This Court disapproved the view taken by the High
Court and held that the choice of a date as the basis for
classification cannot always be dubbed as arbitrary even if no
particular reason is forthcoming for the same, unless it is shown
GN, J. & VN, J.
to be capricious or whimsical. It was further held that there is no
mathematical or logical way for fixing a particular date and the
decision of the legislature or its delegate must be accepted
unless the fixation of date is found to be very wide off the
reasonable mark.
96. This Court approved the view taken by the Division Bench
and observed: (Sushma Sharma case [1985 Supp SCC 45 :
1985 SCC (L&S) 565] , SCC pp. 58-59, para 30)
―30. The object of this legislation was to provide for
absorption of temporary lecturers of long standing. So
therefore experience and continuous employment were
necessary ingredients. The Hindi version of the Ordinance
used the expression ‗ke prarambh ke samaya is roop me
karya kar rahe hein' is capable of meaning ‗and are
continuing' to work as such at the time of the
commencement of the Ordinance. Keeping the background
of the purpose of the Act in view that would be the proper
construction and if that is the proper construction which is in
consonance with the English version of the Ordinance and
the Act as well as with the object of the Act then in our
opinion the Act and the Ordinance should be construed to
mean that only those would be eligible for screening who
were appointed prior to 25-6-1975 and were continuing at
the time of the commencement of the Ordinance i.e. 12-6-
1978 i.e. approximately about three years. If that is the
correct reading, then we are unable to accept the criticism
that those who were for a short period appointed prior to 25-
6-1975 then again with interruption were working only at the
time of the commencement of the Ordinance i.e. 12-6-1978
would also be eligible. In other words people with very short
experience would be eligible for absorption. That cannot be
the purpose of the Act. It cannot be so read reasonably.
Therefore on a proper construction it means that all
temporary lecturers who were appointed as such on or
before 25-6-1975 and were continuing as such at the
commencement of the Ordinance shall be considered by the
University for screening for absorption. The expression 'were
continuing' is significant. This is in consonance with the
object of the Act to ensure continuity of experience and
service as one of the factors for regularising the appointment
of the temporary lecturers. For regularising the appointment
of temporary lecturers, certain continuous experience is
necessary. If a legislature considers a particular period of
experience to be necessary, the wisdom of such a decision
is not subject to judicial review. Keeping the aforesaid
reasonable meaning of clause 3 of the Ordinance and
Section 3 of the Act in view, we are of the opinion that the
GN, J. & VN, J.
criterion fixed for screening for absorption was not an
irrational criterion not having any nexus with the purpose of
the Act. Therefore, the criticism that a teacher who was
working even for two or three months only before 25-6-1975
and then with long interruptions was in employment of the
University at the time of the commencement of the
Ordinance would be eligible but a teacher who had worked
continuously from 26-6-1975 i.e. after the date fixed i.e. 25-
6-1975 for three years would be ineligible and as such that
will be discrimination against long experience, cannot be
accepted. Such a construction would be an unreasonable
construction unwarranted by the language used in the
provisions concerned. It is well settled that if a particular
period of experience is fixed for screening or for absorption,
it is within the wisdom of the legislature, and what period
should be sufficient for a particular job or a particular
employment is not subject to judicial review.‖
(emphasis added)
100. A reading of paras 54, 67, 68 and 72 of the impugned
judgment shows that even though the Division Bench did not find
the cut-off date i.e. 25-11-1993 specified in the first proviso to
Section 7 for determining the eligibility of daily-wage employees
for regularisation to be arbitrary, irrational or discriminatory, yet it
changed the said date from 25-11-1993 to 19-8-1998 solely on
the premise that Act 27 of 1998 was enforced with effect from
that date. In our view, once the Division Bench negatived the
challenge to the validity of Acts 3 and 27 of 1998, there was no
warrant for altering the date of eligibility specified in the first
proviso to Section 7 of the 1994 Act and thereby extend the zone
of eligibility of daily-wage employees who could be considered
for regularisation.
101. As a corollary, we hold that the declaration made by the
Division Bench that all persons who completed 5 years' service
as on the date of coming into force of Act 27 of 1998 would be
entitled to be considered for regularisation of their services is
legally unsustainable and is liable to be set aside. In the result,
the appeals filed by the employees (CAs Nos. 3702-07, 3709,
3710, 3721, 3733, 3734, 3737, 3742, 3744, 3748, 3749 and
3751 of 2006) are dismissed and those filed by the State
Government and agencies/instrumentalities of the State (CAs
Nos. 3685, 3712-18, 3723, 3724, 3726-32, 3750 and 3752-55 of
2006) are allowed.
102. The declaration made by the Division Bench that the
ban on regularisation will be effective from 19-8-1998 i.e. the
date on which Act 27 of 1998 came into force and that all
GN, J. & VN, J.
persons who have completed 5 years' service as on that date
would be entitled to be considered for regularisation of service is
set aside. It is, however, made clear that the daily-wage
employees and others who are covered by Section 7 of the 1994
Act (amended) and whose services have not been regularised so
far, shall be entitled to be considered for regularisation and their
services shall be regularised subject to fulfilment of the
conditions enumerated in the G.O. dated 22-4-1994.
103. With a view to obviate further litigation on this issue, we
direct the Government of Andhra Pradesh, its officers and
agencies/instrumentalities of the State to complete the exercise
for regularisation of the services of eligible employees within four
months of the receipt/production of copy of this order, without
being influenced by the fact that the application, writ petition or
appeal filed by any such employee may have been dismissed by
the Tribunal or the High Court or this Court. Since some of the
appeals decided by this order relate to part-time employees, we
direct that similar exercise be undertaken in their cases and
completed within four months keeping in view the conditions
enumerated in G.O. (P) No. 112 dated 23-7-1997.‖
24. Certain observations of the Constitutional Bench in Secretary,
State of Karnataka v. Umadevi(3)2, in our opinion, are relevant for
better understanding of the concept of regular employment and
employment on a non-permanent or casual or daily wage basis.
Paras.43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 54 in the said
Judgment read 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
(2006) 4 SCC 1
GN, J. & VN, J.
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 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, regularisation, 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.
44. The concept of ―equal pay for equal work‖ is different from
the concept of conferring permanency on those who have been
appointed on ad hoc basis, temporary basis, or based on no
process of selection as envisaged by the rules. This Court has in
various decisions applied the principle of equal pay for equal
work and has laid down the parameters for the application of that
principle. The decisions are rested on the concept of equality
enshrined in our Constitution in the light of the directive
principles in that behalf. But the acceptance of that principle
cannot lead to a position where the court could direct that
GN, J. & VN, J.
appointments made without following the due procedure
established by law, be deemed permanent or issue directions to
treat them as permanent. Doing so, would be negation of the
principle of equality of opportunity. The power to make an order
as is necessary for doing complete justice in any cause or matter
pending before this Court, would not normally be used for giving
the go-by to the procedure established by law in the matter of
public employment. Take the situation arising in the cases before
us from the State of Karnataka. Therein, after Dharwad decision
[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :
(1990) 1 SCR 544] the Government had issued repeated
directions and mandatory orders that no temporary or ad hoc
employment or engagement be given. Some of the authorities
and departments had ignored those directions or defied those
directions and had continued to give employment, specifically
interdicted by the orders issued by the executive. Some of the
appointing officers have even been punished for their defiance. It
would not be just or proper to pass an order in exercise of
jurisdiction under Article 226 or 32 of the Constitution or in
exercise of power under Article 142 of the Constitution permitting
those persons engaged, to be absorbed or to be made
permanent, based on their appointments or engagements.
Complete justice would be justice according to law and though it
would be open to this Court to mould the relief, this Court would
not grant a relief which would amount to perpetuating an
illegality.
45. While directing that appointments, temporary or casual, be
regularised or made permanent, the courts are swayed by the
fact that the person concerned has worked for some time and in
some cases for a considerable length of time. It is not as if the
person who accepts an engagement either temporary or casual
in nature, is not aware of the nature of his employment. He
accepts the employment with open eyes. It may be true that he is
not in a position to bargain--not at arm's length--since he might
have been searching for some employment so as to eke out his
livelihood and accepts whatever he gets. But on that ground
alone, it would not be appropriate to jettison the constitutional
scheme of appointment and to take the view that a person who
has temporarily or casually got employed should be directed to
be continued permanently. By doing so, it will be creating
another mode of public appointment which is not permissible. If
the court were to void a contractual employment of this nature on
the ground that the parties were not having equal bargaining
power, that too would not enable the court to grant any relief to
that employee. A total embargo on such casual or temporary
employment is not possible, given the exigencies of
administration and if imposed, would only mean that some
GN, J. & VN, J.
people who at least get employment temporarily, contractually or
casually, would not be getting even that employment when
securing of such employment brings at least some succour to
them. After all, innumerable citizens of our vast country are in
search of employment and one is not compelled to accept a
casual or temporary employment if one is not inclined to go in for
such an employment. It is in that context that one has to proceed
on the basis that the employment was accepted fully knowing the
nature of it and the consequences flowing from it. In other words,
even while accepting the employment, the person concerned
knows the nature of his employment. It is not an appointment to
a post in the real sense of the term. The claim acquired by him in
the post in which he is temporarily employed or the interest in
that post cannot be considered to be of such a magnitude as to
enable the giving up of the procedure established, for making
regular appointments to available posts in the services of the
State. The argument that since one has been working for some
time in the post, it will not be just to discontinue him, even though
he was aware of the nature of the employment when he first took
it up, is not one that would enable the jettisoning of the
procedure established by law for public employment and would
have to fail when tested on the touchstone of constitutionality
and equality of opportunity enshrined in Article 14 of the
Constitution.
46. Learned Senior Counsel for some of the respondents argued
that on the basis of the doctrine of legitimate expectation, the
employees, especially of the Commercial Taxes Department,
should be directed to be regularised since the decisions in
Dharwad [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12
ATC 902 : (1990) 1 SCR 544] , Piara Singh [(1992) 4 SCC 118 :
1992 SCC (L&S) 825 : (1992) 21 ATC 403 : (1992) 3 SCR 826] ,
Jacob [Jacob M. Puthuparambil v. Kerala Water Authority,
(1991) 1 SCC 28 : 1991 SCC (L&S) 25 : (1991) 15 ATC 697] and
Gujarat Agricultural University [Gujarat Agricultural University v.
Rathod Labhu Bechar, (2001) 3 SCC 574 : 2001 SCC (L&S)
613] and the like, have given rise to an expectation in them that
their services would also be regularised. The doctrine can be
invoked if the decisions of the administrative authority affect the
person by depriving him of some benefit or advantage which
either (i) he had in the past been permitted by the decision-
maker to enjoy and which he can legitimately expect to be
permitted to continue to do until there have been communicated
to him some rational grounds for withdrawing it on which he has
been given an opportunity to comment; or (ii) he has received
assurance from the decision-maker that they will not be
withdrawn without giving him first an opportunity of advancing
reasons for contending that they should not be withdrawn. [See
GN, J. & VN, J.
Lord Diplock in Council for Civil Services Union v. Minister of
Civil Service [1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR
1174 (HL)] , National Buildings Construction Corpn. v. S.
Raghunathan [(1998) 7 SCC 66 : 1998 SCC (L&S) 1770] and
Chanchal Goyal (Dr.) v. State of Rajasthan [(2003) 3 SCC 485 :
2003 SCC (L&S) 322] .] There is no case that any assurance
was given by the Government or the department concerned
while making the appointment on daily wages that the status
conferred on him will not be withdrawn until some rational reason
comes into existence for withdrawing it. The very engagement
was against the constitutional scheme. Though, the
Commissioner of the Commercial Taxes Department sought to
get the appointments made permanent, there is no case that at
the time of appointment any promise was held out. No such
promise could also have been held out in view of the circulars
and directives issued by the Government after Dharwad decision
[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :
(1990) 1 SCR 544] . Though, there is a case that the State had
made regularisations in the past of similarly situated employees,
the fact remains that such regularisations were done only
pursuant to judicial directions, either of the Administrative
Tribunal or of the High Court and in some cases by this Court.
Moreover, the invocation of the doctrine of legitimate expectation
cannot enable the employees to claim that they must be made
permanent or they must be regularised in the service though
they had not been selected in terms of the rules for appointment.
The fact that in certain cases the court had directed
regularisation of the employees involved in those cases cannot
be made use of to found a claim based on legitimate
expectation. The argument if accepted would also run counter to
the constitutional mandate. The argument in that behalf has
therefore to be rejected.
47. When a person enters a temporary employment or gets
engagement as a contractual or casual worker and the
engagement is not based on a proper selection as recognised by
the relevant rules or procedure, he is aware of the consequences
of the appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of legitimate
expectation for being confirmed in the post when an appointment
to the post could be made only by following a proper procedure
for selection and in cases concerned, in consultation with the
Public Service Commission. Therefore, the theory of legitimate
expectation cannot be successfully advanced by temporary,
contractual or casual employees. It cannot also be held that the
State has held out any promise while engaging these persons
either to continue them where they are or to make them
permanent. The State cannot constitutionally make such a
GN, J. & VN, J.
promise. It is also obvious that the theory cannot be invoked to
seek a positive relief of being made permanent in the post.
48. It was then contended that the rights of the employees thus
appointed, under Articles 14 and 16 of the Constitution, are
violated. It is stated that the State has treated the employees
unfairly by employing them on less than minimum wages and
extracting work from them for a pretty long period in comparison
with those directly recruited who are getting more wages or
salaries for doing similar work. The employees before us were
engaged on daily wages in the department concerned on a wage
that was made known to them. There is no case that the wage
agreed upon was not being paid. Those who are working on
daily wages formed a class by themselves, they cannot claim
that they are discriminated as against those who have been
regularly recruited on the basis of the relevant rules. No right can
be founded on an employment on daily wages to claim that such
employee should be treated on a par with a regularly recruited
candidate, and made permanent in employment, even assuming
that the principle could be invoked for claiming equal wages for
equal work. There is no fundamental right in those who have
been employed on daily wages or temporarily or on contractual
basis, to claim that they have a right to be absorbed in service.
As has been held by this Court, they cannot be said to be
holders of a post, since, a regular appointment could be made
only by making appointments consistent with the requirements of
Articles 14 and 16 of the Constitution. The right to be treated
equally with the other employees employed on daily wages,
cannot be extended to a claim for equal treatment with those
who were regularly employed. That would be treating unequals
as equals. It cannot also be relied on to claim a right to be
absorbed in service even though they have never been selected
in terms of the relevant recruitment rules. The arguments based
on Articles 14 and 16 of the Constitution are therefore overruled.
49. It is contended that the State action in not regularising the
employees was not fair within the framework of the rule of law.
The rule of law compels the State to make appointments as
envisaged by the Constitution and in the manner we have
indicated earlier. In most of these cases, no doubt, the
employees had worked for some length of time but this has also
been brought about by the pendency of proceedings in tribunals
and courts initiated at the instance of the employees. Moreover,
accepting an argument of this nature would mean that the State
would be permitted to perpetuate an illegality in the matter of
public employment and that would be a negation of the
constitutional scheme adopted by us, the people of India. It is
therefore not possible to accept the argument that there must be
GN, J. & VN, J.
a direction to make permanent all the persons employed on daily
wages. When the court is approached for relief by way of a writ,
the court has necessarily to ask itself whether the person before
it had any legal right to be enforced. Considered in the light of
the very clear constitutional scheme, it cannot be said that the
employees have been able to establish a legal right to be made
permanent even though they have never been appointed in
terms of the relevant rules or in adherence of Articles 14 and 16
of the Constitution.
50. It is argued that in a country like India where there is so
much poverty and unemployment and there is no equality of
bargaining power, the action of the State in not making the
employees permanent, would be violative of Article 21 of the
Constitution. But the very argument indicates that there are so
many waiting for employment and an equal opportunity for
competing for employment and it is in that context that the
Constitution as one of its basic features, has included Articles
14, 16 and 309 so as to ensure that public employment is given
only in a fair and equitable manner by giving all those who are
qualified, an opportunity to seek employment. In the guise of
upholding rights under Article 21 of the Constitution, a set of
persons cannot be preferred over a vast majority of people
waiting for an opportunity to compete for State employment. The
acceptance of the argument on behalf of the respondents would
really negate the rights of the others conferred by Article 21 of
the Constitution, assuming that we are in a position to hold that
the right to employment is also a right coming within the purview
of Article 21 of the Constitution. The argument that Article 23 of
the Constitution is breached because the employment on daily
wages amounts to forced labour, cannot be accepted. After all,
the employees accepted the employment at their own volition
and with eyes open as to the nature of their employment. The
Governments also revised the minimum wages payable from
time to time in the light of all relevant circumstances. It also
appears to us that importing of these theories to defeat the basic
requirement of public employment would defeat the constitutional
scheme and the constitutional goal of equality.
51. The argument that the right to life protected by Article 21 of
the Constitution would include the right to employment cannot
also be accepted at this juncture. The law is dynamic and our
Constitution is a living document. May be at some future point of
time, the right to employment can also be brought in under the
concept of right to life or even included as a fundamental right.
The new statute is perhaps a beginning. As things now stand,
the acceptance of such a plea at the instance of the employees
before us would lead to the consequence of depriving a large
GN, J. & VN, J.
number of other aspirants of an opportunity to compete for the
post or employment. Their right to employment, if it is a part of
right to life, would stand denuded by the preferring of those who
have got in casually or those who have come through the
backdoor. The obligation cast on the State under Article 39(a) of
the Constitution is to ensure that all citizens equally have the
right to adequate means of livelihood. It will be more consistent
with that policy if the courts recognise that an appointment to a
post in government service or in the service of its
instrumentalities, can only be by way of a proper selection in the
manner recognised by the relevant legislation in the context of
the relevant provisions of the Constitution. In the name of
individualising justice, it is also not possible to shut our eyes to
the constitutional scheme and the right of the numerous as
against the few who are before the court. The directive principles
of State policy have also to be reconciled with the rights
available to the citizen under Part III of the Constitution and the
obligation of the State to one and all and not to a particular group
of citizens. We, therefore, overrule the argument based on
Article 21 of the Constitution.
52. Normally, what is sought for by such temporary employees
when they approach the court, is the issue of a writ of
mandamus directing the employer, the State or its
instrumentalities, to absorb them in permanent service or to
allow them to continue. In this context, the question arises
whether a mandamus could be issued in favour of such persons.
At this juncture, it will be proper to refer to the decision of the
Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.)
v. Governing Body of the Nalanda College [1962 Supp (2) SCR
144 : AIR 1962 SC 1210] . That case arose out of a refusal to
promote the writ petitioner therein as the Principal of a college.
This Court held that in order that a mandamus may issue to
compel the authorities to do something, it must be shown that
the statute imposes a legal duty on the authority and the
aggrieved party had a legal right under the statute or rule to
enforce it. This classical position continues and a mandamus
could not be issued in favour of the employees directing the
Government to make them permanent since the employees
cannot show that they have an enforceable legal right to be
permanently absorbed or that the State has a legal duty to make
them permanent.
53. One aspect needs to be clarified. There may be cases where
irregular appointments (not illegal appointments) as explained in
S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] ,
R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and
B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979)
GN, J. & VN, J.
3 SCR 937] and referred to in para 15 above, of duly qualified
persons in duly sanctioned vacant posts might have been made
and the employees have continued to work for ten years or more
but without the intervention of orders of the courts or of tribunals.
The question of regularisation of the services of such employees
may have to be considered on merits in the light of the principles
settled by this Court in the cases abovereferred to and in the
light of this judgment. In that context, the Union of India, the
State Governments and their instrumentalities should take steps
to regularise as a one-time measure, the services of such
irregularly appointed, who have worked for ten years or more in
duly sanctioned posts but not under cover of orders of the courts
or of tribunals and should further ensure that regular
recruitments are undertaken to fill those vacant sanctioned posts
that require to be filled up, in cases where temporary employees
or daily wagers are being now employed. The process must be
set in motion within six months from this date. We also clarify
that regularisation, if any already made, but not sub judice, need
not be reopened based on this judgment, but there should be no
further bypassing of the constitutional requirement and
regularising or making permanent, those not duly appointed as
per the constitutional scheme.
54. It is also clarified that those decisions which run counter to
the principle settled in this decision, or in which directions
running counter to what we have held herein, will stand denuded
of their status as precedents.‖
25. A reading of the above paragraphs would go to demonstrate that
the entire conspectus of the terminology ―employment‖ with reference to
Constitutional provisions has been settled for good. That apart, the
interpretation of the Government Order and the Acts referred to
hereinabove by the Hon'ble Apex Court in A.Manjula Bhashini's case1
leaves no scope for any meandering or circumspection of the settled
position in law.
26. What is alarming is that the learned Single Judge has proceeded
to render the judgment and adjudicate the rights of the parties even
GN, J. & VN, J.
without reference to the facts. A critical appraisal of the facts would
demonstrate that the petitioner, as on the date of his appointment i.e.
30.11.1987, had not even passed the Intermediate course which was
stipulated as the minimum qualification for being eligible to be
considered for appointment. In fact, the appointment is made on
30.11.1987, while the certificate would reveal that the same is issued on
05.12.1987, that is even before the certificate certifying him as having
completed the Intermediate course, appointment orders came to be
issued. That apart, it is seen that the petitioner has not placed before
the Court any material particulars like the eligibility criteria and the date
on which he acquired the said criteria. The same becomes crucial in
view of the stipulation under the G.O.Ms.No.212, dated 22.04.1994,
which categorically mandates that the candidate must possess the
stipulated qualification on the date of his appointment. As stated supra,
the academic qualification of Intermediate is acquired on 05.12.1987.
He has acquired the stipulated technical qualifications on various dates:
(a) English Typewriting lower in Nov/Dec., 1986; (b) Telugu Typewriting
lower in August, 1990; (c) English Typewriting Higher in August, 1990;
and (d) Telugu Typewriting Higher in May/June, 1991; and B.A.
Graduation in 1992. None of these aspects have even been looked into
by the learned Single Judge. On the other hand, the order impugned
gives the picture that the same has proceeded on the presumption of the
GN, J. & VN, J.
petitioner having been eligible for appointment as on the date of his
appointment. There is neither a discussion regarding the eligibility of the
petitioner to be appointed as on 30.11.1987 nor as the petitioner
disclosed these material facts.
27. It is settled position in law that no person is entitled to seek
employment if his candidature is vitiated by lack of eligibility on the date
of consideration. The Hon'ble Apex Court, in the case of State of
Maharashtra v. Shashikant S. Pujari3, has been pleased to observe in
paras.23, 34, 36 and 37, which read as under:
"23. The question with regard to retrospective effect of the said
resolution will have to be answered having regard to the fact
situation obtaining herein. If prior to October 1991, the
respondent was validly appointed, he could justifiably contend
that the 1991 Regulations could not have been given a
retrospective effect. With a view to examine the said question,
we may notice the following provisions of the Act.
34. It is in that view of the matter no relaxation about percentage
of the marks obtained by the respondent in Master's degree was
available to him, as he had not submitted his PhD thesis. He, it
will bear repetition to state, was also not appointed on
permanent post by the University Selection Committee.
36. The respondent could not take any benefit of the said circular
letter also, inter alia, for the reason that he had not been
appointed by duly constituted University Selection Committee.
Another question which was relevant but had not been
considered by the High Court was that having regard to the
breaks in service, he could have been appointed only as a
freshly recruited teacher. At one point of time, the College and
the University might have committed mistake in treating him as a
full-time teacher, but such mistakes could have been rectified, if
they were apparent on the face of the records. Moreover, the
order impugned in the writ petition, in our opinion, cannot be said
(2006) 13 SCC 175
GN, J. & VN, J.
to be wholly arbitrary and unreasonable so as to warrant
interference by a superior court. The eligibility criteria cannot be
relaxed unless there exists a specific provision therefor. A
person can avail the benefit of relaxation notification only when
he comes within the purview thereof and when he satisfies the
conditions specified therein.
37. It has been contended that the University had not given any
approval as regards his appointment as part-time teacher in
Political Science, as he did not receive a copy therefor. If there
had been no approval to his appointment after 30-10-1985, the
decision of the University Management Council on 30-10-2000
cannot be faulted. Condonation of breaks in his service was also
imperative in nature which had not been given.‖
28. The Hon'ble Apex Court in the case of State of Uttar Pradesh v.
Vijay Kumar Misra4 has been pleased to observe and hold in paras.4
and 6 as under:
"4. The relevant facts over which there is no dispute may be
stated thus:
The respondent herein did not have the educational
qualification prescribed under the rules for the post of SDI
(Basic) as he had no degree of Bachelor in Education and
did not have the LT certificate at the time of submission of
the application and also at the time of selection. Subsequent
thereto he got the LT certificate. As expected, the Service
Commission had not considered him for the post of SDI
(Basic) for want of prescribed qualification.
6. The position is fairly well settled that when a set of eligibility
qualifications are prescribed under the rules and an applicant
who does not possess the prescribed qualification for the post at
the time of submission of application or by the cut-off date, if any,
prescribed under the rules or stated in the advertisement, is not
eligible to be considered for such post. It is relevant to note here
that in the rules or in the advertisement no power was vested in
any authority to make any relaxation relating to the prescribed
qualifications for the post. Therefore, the case of a candidate
who did not come within the zone of consideration for the post
could not be compared with a candidate who possessed the
prescribed qualifications and was considered and appointed to
(2017) 11 SCC 521
GN, J. & VN, J.
the post. Therefore, the so-called confession made by the officer
in the Court that persons having lower merit than the respondent
have been appointed as SDI (Basic), having been based on a
misconception is wholly irrelevant. The learned Single Judge
clearly erred in relying on such a statement for issuing the
direction for appointment of the respondent. The Division Bench
was equally in error in confirming the judgment of the learned
Single Judge. Thus the judgment of the learned Single Judge as
confirmed by the Division Bench is unsustainable and has to be
set aside.‖
29. The said position in law came to be reiterated by the Hon'ble Apex
Court in its own ruling in Ramesh Chand v. State of Haryana5 in
para.11, which reads as under:
"11. It may also be remembered that the promotion in question
was an intra-departmental promotion within the Panchayat
Department. The principle enunciated by this Court in Vijay
Kumar Mishra case [State of U.P. v. Vijay Kumar Mishra, (2017)
11 SCC 521 : (2015) 3 SCC (L&S) 804] which has been relied
upon by Respondent 2 applies in those cases where the
applications were invited from the candidates either by
advertisement or in terms of the rules. This is clear from para 7
of the Report where this Court has said: (SCC p. 522)
―7. The position is fairly well settled that when a set of
eligibility qualifications are prescribed under the rules and an
applicant who does not possess the prescribed qualification
for the post at the time of submission of application or by the
cut-off date, if any, prescribed under the rules or stated in the
advertisement, is not eligible to be considered for such post.
It is relevant to note here that in the rules or in the
advertisement no power was vested in any authority to make
any relaxation relating to the prescribed qualifications for the
post. Therefore, the case of a candidate who did not come
within the zone of consideration for the post could not be
compared with a candidate who possessed the prescribed
qualifications and was considered and appointed to the
post.‖ (emphasis supplied)
This decision has no application to this case and the letter
cannot be construed as setting down a cut-off date for the
(2017) 11 SCC 516
GN, J. & VN, J.
purposes of making of recommendations by the addressees of
the letter.‖
30. The said position in law came to be reiterated by the Hon'ble Apex
Court in its latest ruling in State of Madhya Pradesh v. Shyam Kumar
Yadav6 in para.5, which reads as under:
―It is true that an employee engaged on daily wages has
no legally vested right to seek regularization of his services.
However, if the competent authority takes a policy decision
within the permissible framework, its benefit must be extended to
all those who fall within the parameters of such a policy.
Authorities cannot be permitted to pick and choose in such
circumstances.‖
31. From a reading of the facts and circumstances and an analysis of
the case leaves no doubt in the mind of this Court that the petitioner has
been abusing the judicial system and attempting to secure favourable
orders in subsequent litigation based on the strength of the orders
passed in collateral proceedings. The petitioner was bound to disclose
the irregularities in his appointment, prima facie, he not having
possessed the stipulated eligibility criteria on the date of his
appointment, in our, prima facie, view, he would not be entitled to the
benefits conferred on that class of people enumerated under G.O.Ms.
No.212, dated 22.04.1994. The twin conditions of possessing the
eligibility and of having rendered continuous five years service as on
25.11.1993, prima facie, do not appear to have been complied with. In
Special Leave to Appeal (C) No.25609 of 2018, dated 22.07.2024.
GN, J. & VN, J.
that view, the order impugned, in our considered opinion, is legally
unsustainable.
32. The facts recounted above prima facie demonstrate that the
present proceedings is also hit by the principles of constructive
res judicata. In this regard, we place reliance on the findings rendered
by the Hon'ble Apex Court in the case of M.J. Exporters (P) Ltd. v.
Union of India7. The findings recorded in paras.14 and 15 of the said
judgment are reproduced hereunder:
―14. Consequently in the second writ petition, when the appellant as well as
its counsel knew that the issue as to whether the interest is payable or not on
other grounds had already been foreclosed in the earlier writ petition, the
counsel for the appellant did not make any submission with regard to the
aforesaid plea raising the issue in show-cause notice and limited his prayer
from the date from which the interest was to be paid.
15. In these circumstances, we feel that when this issue was raised and
abandoned in the first writ petition which was dismissed as withdrawn, the
principles of constructive res judicata which are laid down under Order 23 Rule
1 of the Code of Civil Procedure, 1908, and which principles are extendable to
writ proceedings as well as held by this Court in Sarguja Transport
Service v. STAT [Sarguja Transport Service v. STAT, (1987) 1 SCC 5 : 1987
SCC (Cri) 19] would squarely be applicable.‖
33. In that view, we request the learned Single Judge to also examine
the applicability of the above principle with the facts of the instant case.
It is also pertinent to note the law evolved by the Hon'ble Apex Court in
(2021) 13 SCC 543
GN, J. & VN, J.
Sarguja Transport Service v. State Transport Appellate Tribunal8.
The elucidation of the principle in paras.7 and 9 would prima facie
appear to have a bearing on the facts of the instant case. Paras.7 and 9
of the said judgment read as under:
"7. The Code as it now stands thus makes a distinction between
―abandonment‖ of a suit and ―withdrawal‖ from a suit with permission to file a
fresh suit. It provides that where the plaintiff abandons a suit or withdraws from
a suit without the permission, referred to in sub-rule (3) of Rule 1 of Order XXIII
of the Code, he shall be precluded from instituting any fresh suit in respect of
such subject-matter or such part of the claim. The principle underlying Rule 1 of
Order XXIII of the Code is that when a plaintiff once institutes a suit in a court
and thereby avails of a remedy given to him under law, he cannot be permitted
to institute a fresh suit in respect of the same subject-matter again after
abandoning the earlier suit or by withdrawing it without the permission of the
court to file fresh suit. Invito beneficium non datur -- the law confers upon a
man no rights or benefits which he does not desire. Whoever waives, abandons
or disclaims a right will loose it. In order to prevent a litigant from abusing the
process of the court by instituting suits again and again on the same cause of
action without any good reason the Code insists that he should obtain the
permission of the court to file a fresh suit after establishing either of the two
grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle
underlying the above rule is founded on public policy, but it is not the same as
the rule of res judicata contained in Section 11 of the Code which provides that
no court shall try any suit or issue in which the matter directly or substantially in
issue has been directly or substantially in issue in a former suit between the
same parties, or between parties under whom they or any of them claim,
litigating under the same title, in a court competent to try such subsequent suit
or the suit in which such issue has been subsequently raised, and has been
heard and finally decided by such court. The rule of res judicata applies to a
case where the suit or an issue has already been heard and finally decided by a
court. In the case of abandonment or withdrawal of a suit without the permission
of the court to file a fresh suit, there is no prior adjudication of a suit or an issue
(1987) 1 SCC 5
GN, J. & VN, J.
is involved, yet the Code provides, as stated earlier, that a second suit will not
lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is
withdrawn without the permission referred to in sub-rule (3) in order to prevent
the abuse of the process of the court.
9. The point for consideration is whether a petitioner after withdrawing a writ
petition filed by him in the High Court under Article 226 of the Constitution of
India without the permission to institute a fresh petition can file a fresh writ
petition in the High Court under that article. On this point the decision in Daryao
case [AIR 1961 SC 1457 : (1962) 1 SCR 574] is of no assistance. But we are of
the view that the principle underlying Rule 1 of Order XXIII of the Code should
be extended in the interests of administration of justice to cases of withdrawal of
writ petition also, not on the ground of res judicata but on the ground of public
policy as explained above. It would also discourage the litigant from indulging in
bench-hunting tactics. In any event there is no justifiable reason in such a case
to permit a petitioner to invoke the extraordinary jurisdiction of the High Court
under Article 226 of the Constitution once again. While the withdrawal of a writ
petition filed in a High Court without permission to file a fresh writ petition may
not bar other remedies like a suit or a petition under Article 32 of the
Constitution of India since such withdrawal does not amount to res judicata, the
remedy under Article 226 of the Constitution of India should be deemed to have
been abandoned by the petitioner in respect of the cause of action relied on in
the writ petition when he withdraws it without such permission. In the instant
case the High Court was right in holding that a fresh writ petition was not
maintainable before it in respect of the same subject-matter since the earlier
writ petition had been withdrawn without permission to file a fresh petition. We,
however, make it clear that whatever we have stated in this order may not be
considered as being applicable to a writ petition involving the personal liberty of
an individual in which the petitioner prays for the issue of a writ in the nature of
habeas corpus or seeks to enforce the fundamental right guaranteed under
Article 21 of the Constitution since such a case stands on a different footing
altogether. We, however leave this question open.‖
34. In that view of the matter, the order of the learned Single Judge is
set aside and the matter is remitted back to the learned Single Judge for
GN, J. & VN, J.
consideration of the rights of the parties in terms of the law laid down by
the Hon'ble Apex Court in A.Manjula Bhashini's case1 and the law
enunciated by the Constitutional Bench of the Hon'ble Apex Court in
Umadevi(3)'s case2.
35. The Writ Appeal stands ordered accordingly. No costs.
Consequently, miscellaneous petitions, pending if any, shall stand
closed.
____________________
JUSTICE G.NARENDAR
________________________
JUSTICE NYAPATHY VIJAY
Date:23.08.2024.
cs/anr
GN, J. & VN, J.
* THE HON'BLE SRI JUSTICE G.NARENDAR
AND
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
% Dated 23-08-2024
# The Chief Executive Officer, Zilla Praja Parishad, Eluru.
..... Appellant
v.
$ 1. T.Seshagiri & Ors.
..Respondents
! Counsel for the Appellant : Sri G.Srinivasulu Reddy
^ Counsel for the 1st respondent : Sri S.Syam Sunder Rao
Counsel for respondents 2 & 3 : Ld. G.P. (S-IV)
<GIST:
> HEAD NOTE:
? Cases referred :
1. (2009) 8 SCC 431
2. (2006) 4 SCC 1
3. (2006) 13 SCC 175
4. (2017) 11 SCC 521
5. (2017) 11 SCC 516
6. Special Leave to Appeal (C) No.25609 of 2018, dated 22.07.2024.
7. (2021) 13 SCC 543
8. (1987) 1 SCC 5
GN, J. & VN, J.
IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH
The Chief Executive Officer, Zilla Praja Parishad, Eluru.
..... Appellant
v.
1. T.Seshagiri & Ors.
...Respondents
JUDGMENT PRONOUNCED ON: 23-08-2024
THE HON'BLE SRI JUSTICE G.NARENDAR
AND
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
1) Whether Reporters of Local newspapers -Yes-
may be allowed to see the Judgments?
2) Whether the copies of judgment may be marked to -Yes-
Law Reporters/Journals
3) Whether Their Ladyship/Lordship wish to see the fair -Yes-
copy of the Judgment?
JUSTICE G. NARENDAR
