Andhra Pradesh High Court - Amravati

Shashi Bhushan Kumar Ias vs P.Soma Sekhara Sharma on 3 October, 2024

Author: R. Raghunandan Rao

Bench: R Raghunandan Rao

     APHC010277442024
                           IN THE HIGH COURT OF ANDHRA
                                       PRADESH                 [3488]
                                   AT AMARAVATI
                             (Special Original Jurisdiction)

              THURSDAY ,THE THIRD DAY OF OCTOBER
                TWO THOUSAND AND TWENTY FOUR

                                PRESENT

      THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO

            THE HONOURABLE SRI JUSTICE HARINATH.N

                   CONTEMPT APPEAL NO: 15/2024

     Between:

     Shashi Bhushan Kumar Ias                          ...APPLICANT

                                   AND

     P Soma Sekhara Sharma and Others            ...RESPONDENT(S)

Counsel for the Applicant:

1. T VISHNU TEJA

Counsel for the Respondent(S):

1. M KESAVA RAO

This Court made the following Judgment:

Dt:03.10.2024 (per Hon'ble Sri Justice R. Raghunandan Rao)

Heard Sri T. Vishnu Teja, learned counsel for the appellant

and Sri M. Kesava Rao, learned counsel for the respondent.

RRR,J & HN.J

2. The respondents 1 to 3 herein joined on NMR basis, in the

employment of Water Resources Department, in the year 1981.

Subsequently, their services were terminated by way of oral orders.

Aggrieved by the said termination, the respondents 1 to 3 had

approached the erstwhile High Court of Andhra Pradesh, by way of

W.P.No.16030/1989, which was disposed of by the erstwhile High Court,

setting aside the termination orders, with further directions to reinstate the

respondents 1 to 3. Pursuant to these orders, the respondents 1 to 3

were appointed as NMRs vide proceedings dated 28.02.1990 and they

had joined service on 01.03.1990 and had been working continuously

since then.

3. The respondents 1 to 3 again approached this Court, by way

of W.P.No.25032 of 2020, on the ground that G.O.No.212, dated

22.04.1994, provided for their regularization and absorption into the

regular service of the Water Resources Department. It was their

contention that the said G.O permitted regularization and absorption of

daily wage/NMR employees who had been working continuously for a

minimum period of five years by 25.11.2023 and were continuing to work

since then. The respondents also relied upon earlier orders of the

erstwhile High Court in W.P.No.27212 of 2017, W.P.No.1425 of 2019 and

W.P.No.19361 of 2018 and batch wherein the High Court had directed

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regularization of similarly situated persons, irrespective of the cutoff date,

if such persons had completed five years of service. The Executive

Engineer, who was arrayed as respondent No.5, in the above writ

petition, had filed a counter affidavit. In this counter affidavit, it was stated

that the Executive Engineer was unaware of the circumstances in which

the erstwhile High Court had granted orders in the above writ petitions.

The Executive Engineer also stated that the respondents would not have

any objection to approach the government for obtaining necessary orders

of regularization of the services of respondents 1 to 3 herein, without

insisting on the cutoff date of 25.11.1993, if the High Court were to pass

such orders.

4. A learned Single Judge of this Court, by a Judgment dated

14.09.2022 directed the respondents therein to consider the case of the

respondents 1 to 3 herein, for regularization of their service, in view of the

judgments relied upon by the respondents 1 to 3, on completion of their

respective periods of service of five years from the date of appointment.

5. After receipt of this judgment, the 7th respondent herein had

passed orders bearing No.825/MAB/EC.II dated 31.10.2023. In this order,

the 7th respondent, after recording that the respondents 1 to 3 herein had

not completed five years of service as on 25.11.1993, which was the

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cutoff date prescribed in G.O.No.212, had recommended that the request

of respondents 1 to 3 herein, for regularization of their services cannot be

considered.

6. The appellant herein after receiving the said order of the 7th

respondent herein, had passed a separate order dated 27.11.2023. In this

order, the appellant after referring to various orders and the Judgment of

the Hon'ble Supreme Court in the case of Uma Devi Vs State of

Karnataka had arrived at the finding that the respondents 1 to 3 herein

are not entitled to regularization as they had not been working under duly

sanctioned posts, after possessing requisite qualifications and that they

had not been selected in an open competition exam, which was the

requirement set out in the judgment of the Hon'ble Supreme Court in

Secretary, State of Karnataka and Ors. vs. Uma Devi and Ors. 1at

paragraph No.53.

7. Aggrieved by these proceedings, the respondents 1 to 3

herein moved this Court, by way of C.C.No.5422 of 2023. The

respondents 1 to 3 contended that the orders of the appellant and the 7th

respondent, rejecting their applications for regularization, amount to a

willful disobedience of the orders of the Court dated 14.09.2022. The

(2006) 4 SCC 1

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respondents 1 to 3 contended that in view of the directions set out in the

order of 14.09.2022, the authorities were required to regularize the

services of the respondents 1 to 3 without going into the question of when

they had completed five years of service and the rejection of their

application for regularization is a clear and direct violation of the orders, of

the Court, dated 14.09.2022.

8. The learned Single Judge, after considering the submissions

of the respondents 1 to 3 herein and the defenses raised by the appellant

and the other respondents in the contempt case had held that the

appellant was guilty of violating orders of the Court amounting to

contempt of the Court. The learned Single Judge, after holding that the

appellant had committed contempt of Court, had directed that the

appellant was to undergo simple imprisonment for a term of six weeks

and to pay a fine of Rs.2,000/-, failing which he was to undergo a further

period of two weeks imprisonment.

9. Sri Krishna Teja, learned counsel appearing for the appellant

would submit that the direction of the learned Single Judge, dated

14.09.2024, was to consider the application of the respondents 1 to 4 for

regularization of services in view of the judgments mentioned above. He

would contend that the direction to consider the applications of the

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respondents 1 to 3 cannot be construed and understood to mean that

there was a peremptory direction to regularize the services of the

respondents 1 to 3, without looking into the eligibility of the respondents 1

to 3. Relying upon the Judgments of the Hon'ble Supreme Court in the

case of J.S. Parihar vs. Ganpat Duggar & Ors2, the learned counsel

would contend that the order of the 7th respondent rejecting the

applications of the respondents 1 to 3 would not amount to violation of the

orders of the Court dated 14.09.2022.

10. Learned counsel for the appellant, on a question of law,

relying upon the cases in Madan Mohan Pathak and another vs. Union

of India3., A.V.Nachane vs. Union of India and Ors4 and P.S. Mahal

and Ors vs. Union of India and Ors5 contends that a Judgment of the

Court, even if it is erroneous, would have to be obeyed unless the said

Judgment had been set aside or modified, by way of an appeal or review.

He further contended that the Court, in its contempt jurisdiction, cannot

reexamine the correctness of the earlier decision which has become final

and relies upon the Judgment of Prithawi Nath Ram vs. State of

(1996) 6 SCC 291

1978(2) SCC 50

1984(4)SCC 545

(1984) 4 SCC 545

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Jarkhand and other6 and Commissioner, Karnataka Housing Board

vs. C. Muddiah7.

Consideration of the Court:

11. At the outset, in view of the Judgments cited by the learned

counsel for the respondents, it is necessary to state that this Court is not

going into the correctness of the Judgment of the learned Single Judge in

the Writ Petition nor is this Court taking any view which is at variance with

the view taken by the learned Single Judge in the Writ Petition. Therefore,

the Judgments cited by the learned counsel for the appellant would not be

relevant for the present case. It is reiterated that this Court is considering

the appeal on the basis of the Judgment of the learned Single Judge as it

stands.

12. The complaint of the respondents, before the writ Court, was

that their services were not being regularized in terms of G.O.Ms.No.212

and Act 2 of 1994, as interpreted and directed by this Court, in earlier

orders set out in the first paragraph of the order of the learned Single

Judge. The 5th respondent had stated that though the 5th respondent was

(2004) 7 SCC

2007(7) SCC 689

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not aware of the directions in the said orders, there would be compliance

of any direction given by this Court, in terms of the earlier orders.

13. The learned Single Judge after considering the aforesaid

orders, had held that in all the said orders, the authorities were directed to

regularize the services of the petitioners therein, upon completion of 5 to

10 years from the date of appointment. On this basis, the writ petition was

disposed of by the learned Single Judge in the following terms:

"Considering the above judgments, the respondents are directed to consider the case for regularization of the service in view of the above stated judgments on completion of the respective periods from the date of appointment.

With the above said direction, the writ petition is disposed of, the said process shall be completed within a period of eight (8) weeks from the date of receipt of this order".

14. This direction was for the purposes of ensuring that the cutoff

date of 25.11.1993, by which time the contract employees were to have

served for at least five years, would not be taken into account and that the

employees who have completed the necessary period of service,

irrespective of the cutoff date were to be considered for regularization.

15. This direction would only mean that the appropriate authorities

would have to consider the case of the petitioners, in the writ petition, for

regularization of service, without insisting that the petitioners, in the writ

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petition, had completed their necessary period of service on or before

25.11.1993. This was the only relaxation given to the petitioners. Any

appointment in such circumstances would have to be after considering

their eligibility in terms of the said G.O and Act. The order of the learned

Single Judge was not a direction to appoint the petitioners with effect from

the date they complete five years of service. It was a direction to consider

their case for regularization.

16. In the light of the said Judgment, it would have to be seen

whether the memo of the appellant, dated 27.11.2023, violates the said

directions of the learned Single Judge. The relevant paragraphs of the

memo of the appellant read as follows:

"However, on examining the speaking orders issued by the Executive Engineer in the reference 8th cited, with reference to para (53) of Uma Devis's case judgment by Apex Court where it held that for regularization individuals should complete 10 years of continuous service as on 10.04.2006, but not under cover of orders of courts or of Tribunals, in a duly sanctioned vacant post and with possessing requisite qualifications. It is observed that the applicants were appointed in NMRs neither against sanctioned posts nor in open competitive selection. Hence, para (53) of the Judgment is not applicable to them.

The Hon'ble High Court passed order as at para-3 above in W.P.No.25032 of 2022 on 14-09-2022 considering the judgments in W.P.No.27217/2017, 1425/2019 and 19361/2018. From the orders in W.P.No.27217/2017, it is observed that the respondents are directed to consider for regularization against existing vacancies subject to para (53) of Uma Devi Judgment. W.P.No.1425/2019 is about computation of

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temporary service for pensionary benefits. W.P.No.19361/2018 is also a direction to consider in terms of para (53) of Uma Devi Judgment".

17. On this basis, the appellant appears to have verified the

particulars of the writ petitioners and rejected the same on the ground that

the writ petitioners had not been appointed against sanctioned posts and

that their appointment was done without following necessary procedures.

The appellant also extracted paragraph 53 of Judgment of the Hon'ble

Supreme Court in Uma Devi's case wherein, the Hon'ble Supreme Court

had distinguished Regularization of the irregular appointments vs.

Regularization of illegal appointments. The said clarification reads as

follows:

"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA ,R.N.NANJUNDAPPA, and B.N. NAGARAJAN (supra), and referred to in paragraph 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 courts or of tribunals. The question of regularization 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 above referred 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 regularize 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 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 regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme".

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18. In the light of the above, we hold that the memo of the

appellant is not in violation of the orders of the learned Single Judge in

the Writ Petition and accordingly, allow the Contempt Appeal, and set

aside the order of the learned Single Judge, dated 20.06.2024, in

C.C.No.5422 of 2023.

19. Accordingly, the Contempt Appeal is allowed. There shall be

no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall stand

closed.

________________________ R. RAGHUNANDAN RAO, J

______________ HARINATH.N, J RJS