Andhra Pradesh High Court - Amravati

Tummala Srinivasarao vs The State Of Andhra Pradesh, on 4 July, 2024

       IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

          THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

                   WRIT PETITION No.21572 OF 2023

  Tummala Srinivasarao, S/o Mangaiah, Aged 51 years, Occ:
  TBHV, R/o District TB Control Office, Guntur Government
  General Hospital, Guntur and nine others.

                                                 ... Petitioner

      Versus

  The State of Andhra Pradesh, rep. by its Principal Secretary
  Health, Medical & Family Welfare Department, 5th Block,
  Ground Floor, Room No.157, A.P.Secretariat, Velagapudi,
  Amaravati, Guntur District, Andhra Pradesh and six others.

                                                 ... Respondents

  Counsel for the petitioners       : Sri Pamarthy Rathnakar

  Counsel for respondents           : GP for Services-IV and
                                        Smt.K.Swarna Seshu for R-4


                                  :: ORDER :

The above writ petition is filed under Article 226 of the Constitution

of India, seeking the following relief:

"...to issue a Writ or Order more in the nature of Mandamus to declare the action of the respondents in not absorbing or not regularizing the services of the petitioners as TB Health Visitor, Senior Treatment Supervisor and Lab Technician in the existing vacancies under the jurisdiction of the 5th and 6th respondent as

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per G.O.Ms.No.212 Finance (PC.III) Department dated 22.04.1994 & G.O.(P) No.112, Finance (PC.III) Department, dated 23.07.1997 is arbitrary, illegal ..."

2. Heard Sri Pamarthy Rathnakar, learned counsel for the petitioners,

Sri Y.B.Ramesh, learned Assistant Government Pleader for Services-IV

appearing for respondent Nos.1, 2 & 4 to 7 and Smt.K.Swarna Seshu,

learned Standing Counsel appearing for respondent No.3.

3. Learned counsel for the petitioners would submit that the

petitioners 10 in number were appointed on contract basis as TB Health

Visitors, Senior Treatment Supervisors and Lab Technicians at TB

Control Office, Guntur, Government General Hospital, Guntur in the year

2003 and they have been discharging their duties since their date of

appointment. The petitioners made representations on 07.07.2023

seeking regularization, however, the same was not considered. Learned

counsel for the petitioner while placing reliance on the judgment reported

in Secretary, State of Karnataka vs. Uma Devi (3)1 would contend that

the petitioners are entitled for regularization.

4. (a) Counter-affidavit was filed on behalf of respondent No.3. It was

contended, interalia, that the petitioners joined in the Revised National TB

(2006) 4 SCC 1

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Control Program (RNTCP) in the year 2003 through third party i.e., SV

Placements, an outsourcing agency on temporary basis. Later, in the year

2008, as per the Govt.Memo.No.17312/32/2008-2, dated 18.11.2008 all

the outsourcing employees were absorbed into the District TB Societies in

the year 2009 for 11 months with a service break of 1 or 2 days. All the

posts in RNTCP are allotted in the Record of Proceedings (ROP) every

year. Accordingly, the posts were filled on a contract basis for one year,

as per, the guidelines issued by the Government of India, Central TB

Division, New Delhi. The services of the individuals are renewed every

year, for one year, on the contract, based on the satisfactory performance

approved by the District Collector.

(b) It is further contended that the petitioners are employed under

the National Health Mission on a contractual basis. The engagement of

contractual HR in the National Health Mission is not a sanctioned post of

the State. TB Health Visitor, Senior Treatment Supervisor and Lab

technician working in National Health Mission on a contract basis are not

working in any sanctioned post by the Government. They are working

under the National Health Mission. There is no approval for the posts

from the Finance Department of the Government of A.P. The National

Health Mission is running with the fund sharing of 60:40 between the

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Central Government and the State Government. The Government issued

G.O.Ms.No.64, HM&FW (G.2) Department, dated 11.05.2023 enhancing

the remuneration of the contract/ outsourcing employees by cadre wise.

National Health Mission is a separate project and the contract employee

cannot claim parity with another contract employee working in the State

Government. The engagement of services of the petitioners was on a

scheme basis without a regular recruitment process through the third-

party outsourcing agencies. G.O.Ms.No.212, dated 22.04.1994 and

G.O.(P) No.112, dated 23.07.1997 do not apply to the petitioners' case

and eventually prayed to dismiss the writ petition.

5. Learned counsel for the petitioners reiterated the contentions as

per the averments made in the writ affidavit and learned Assistant

Government Pleader reiterated the contentions as per the averments

made in the counter-affidavit.

6. The point for consideration is, whether the petitioners are entitled to

the benefit under G.O.Ms.No.212, dated 22.04.1994 and G.O (P)

NO.112, dated 23.07.1997?

7. As seen from the material available on record, there is no evidence

that the petitioners have been working since 2003. There is no dispute

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that the petitioners, initially joined the Revised National TB Control

Program in the year 2003 through a third party i.e. S.V. Placements, an

outsourcing agency temporarily. Later, in the year 2008, as per the

Govt.Memo.No.17312/32/2008-2, dated 18.11.2008 all the outsourcing

employees were absorbed into District TB Societies for 11 months with

service breaks of one or two days. The appointment of the petitioners is

not against any sanctioned post and, in fact, there is no approval for

these posts from the Finance Department of the Government of A.P. The

salaries of the employees working in National Health Mission are being

reimbursed by the Government of India. The National Health Mission is

running with the fund sharing of 60:40 between the Central Government

and the State Government.

8. G.O.Ms.No.212, dated 22.04.1994 on which learned counsel for

the petitioner placed reliance seeking regularization, the operative portion

of the said G.O., reads as follows:

"...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 judgment of the Hon'ble 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

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of commencement of the Act (emphasis supplied). 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 certain conditions. Pursuant to the interim order in W.P.M.P.No.2447 of 1996 dated 25.04.1997, Government issued G.O.(P) No.112, dated 23.07.1997 confirming some more guidelines".

9. A perusal of the appointment of the petitioners would indicate that

the appointment is for 11 months on a contractual basis. The petitioners

were not appointed before G.O.Ms.No.212, dated 22.04.1994. The

requirement in G.O.Ms.No.212 is that the person shall continuously work

for five years before 25.11.1993. Even in Uma Devi's case (referred

supra), the Hon'ble Apex Court observed that the regularization 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 Tribunals.

10. It was specifically contended in the counter-affidavit filed by

respondent No.3 that there is no approval for these posts from the

Finance Department, Government of A.P. The petitioners' employment is