Uma Shanker, vs The State Of Telangana,
2022 Latest Caselaw 4217 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


                WRIT PETITION NO.37891 OF 2017


                               ORDER

This Writ Petition has been filed by the petitioner seeking a Writ

of Mandamus by calling for the records relating to and connected with

Proceedings Memo No.18607/GHMC-1/2013-9, dt.23.09.2017 and the

proceedings Letter No.1426/B3/LWS/GHMC/2013/176, dt.05.06.2013

and to declare the same as illegal and arbitrary and unconstitutional and

to consequently direct the respondents to regularise the services of the

petitioner with effect from 25.11.1993 with all consequential benefits

including the arrears of salary, continuity of service, seniority,

promotion and all other attendant benefits.

2. Brief facts leading to the filing of this Writ Petition are that the

petitioner was initially appointed as a Typist on a consolidated pay on

04.07.1988 and continued as such till July, 1994. Thereafter, the

petitioner was working on outsourcing basis as Senior Computer

Operator till May, 2006 and thereafter, the petitioner was working as W.P.No.37891 of 2017

Senior Accountant-cum-Programmer in the Accounts Section as an

outsourced employee.

3. Sri Pratap Narayan Sangi, learned Senior Counsel for the

petitioner submitted that on 22.09.1994, G.O.Ms.No.212 was issued by

the Government proposing to regularise the services of the persons like

the petitioner. The State Government vide letter dt.13.04.2012 therefore

requested all the Departments to furnish the names of the candidates

eligible for regularisation under the Scheme. Accordingly, vide letter

dt.24.07.2012, the 2nd respondent required the Zonal Commissioners/

Deputy Commissioners to submit detailed report in the matter in the

prescribed proforma regarding eligible NMRs/Daily Wage/Part Time

Workers working on 25.11.1993 so as to send a factual report to the

Government. It is submitted that vide letter dt.03.09.2012, the 2nd

respondent forwarded the details of the individuals working under it as

on 25.11.1993 in the prescribed Proforma-I and the name of the

petitioner figured therein by mentioning his date of appointment as

04.07.1988 and the current duty held by the petitioner therein as

Accountant-cum-Programmer and the wages paid is mentioned as

Rs.9,500/-.

W.P.No.37891 of 2017

4. It is submitted that the case of the petitioner was, however,

rejected by the Government and the same was communicated to the

petitioner vide letter dt.05.06.2013. In the said letter, it is mentioned that

the petitioner worked on consolidated pay from 07.09.1988 to March,

1994 and subsequently his services were utilized through an outsourcing

agency and as on the date of the proceedings, he was working as Data

Entry Operator in Finance Wing of GHMC on outsourcing basis and

therefore, his case cannot be considered for regularisation. The case of

the petitioner was also stated to be rejected on the grounds that he has

not put in continuous five years of service nor did he continue to work

as NMR as on the said date and that his services were being utilised

through an outsourcing agency.

5. Aggrieved by the rejection order, the petitioner submitted a

representation to the Principal Secretary to Government, i.e., the 1st

respondent stating that as on 25.11.1993, the petitioner had put in more

than five (5) years of service on consolidated basis and therefore, he was

eligible for regularisation of his services. His representation was

forwarded by the Department to the Government vide letter

dt.14.08.2013. His case was also recommended by the Commissioner, W.P.No.37891 of 2017

GHMC to the Government vide letters dt.25.09.2013 and dt.27.12.2013.

Since no decision was taken on the representation of the petitioner, he

again made a representation on 21.06.2014, but the same also was not

considered by the Government. Therefore, the petitioner approached the

A.P. Administrative Tribunal in O.A.No.3542 of 2016. The said O.A.

was disposed of by order dt.08.09.2016 directing the State Government

to take a decision on the representation of the petitioner. Thereafter, the

State Government vide order dt.23.09.2017, rejected the case of the

petitioner again on the same ground that for regularisation, the petitioner

has to put in five years of continuous service as on the cut off date i.e.

25.11.1993, but since the petitioner's services were discontinued and as

on date, his services were being utilised on outsourcing basis, his

services cannot be regularised. Challenging this order of rejection, the

present Writ Petition is filed.

6. Learned counsel for the petitioner, Sri Pratap Narayan Sanghi,

while reiterating the submissions made in the writ affidavit, submitted

that the petitioner has been working with the respondents continuously

from the year 1988 on consolidated pay till 1994 and thereafter, through

an outsourcing agency at the instance of the respondents. It is submitted W.P.No.37891 of 2017

that as on the cut off date i.e., 25.11.1993 itself, the petitioner has put in

more than 5 years of service and therefore, he was eligible to be

considered for regularisation under G.O.Ms.No.212 dt.22.04.1994 and

also as per the judgment of the Hon'ble Supreme Court in the case of

Secretary, State of Karnataka Vs. Umadevi1. He also placed reliance

upon the decision of the Hon'ble Supreme Court in the case of A.

Manjula Bhashini and others Vs. Managing Director, A.P.

Women's Cooperative Finance Corporation Ltd. and another2,

wherein the Hon'ble Supreme Court has deprecated the practice of the

State Government in making irregular appointments and not regularising

the same in spite of the said workers having put in more than sufficient

period of service. He also placed reliance upon a decision of a

Coordinate Bench of this Court in the case of Government of Andhra

Pradesh and others Vs. N.Venkaiah and others3 for the proposition

that where the petitioners are eligible for regularisation, they should be

regularised, even if there are no vacancies available, by creating

supernumerary posts for such regularisation. He also placed reliance

upon the decision of the Hon'ble Supreme Court in the case of

(2006) 4 SCC 1

AIR 2010 SC 3143 : (2009) 8 SCC 431

2018 (4) ALD 590 (DB) W.P.No.37891 of 2017

Bhilwara Dugdh Utpadak Sahakari S. Ltd. Vs. Vinod Kumar

Sharma dead by LRs and others4 for the proposition that subterfuge

method adopted by some of the employers by trying to show their

employees as employees of a contractor, must come to an end. He thus

submitted that the respondents have only changed the nomenclature but

not the nature of the work, as the petitioner is discharging the same

duties but through an outsourcing agency. It is submitted that this

method is adopted by the respondents only to defeat the intention and

purport of G.O.Ms.No.212 dt.22.04.1994 and also the judgment of the

Hon'ble Supreme Court in the case of Secretary, State of Karnataka

Vs. Umadevi (1 supra).

7. Learned Standing Counsel for GHMC, Sri L. Dayakar Reddy,

however, submitted that regularisation of services is not a matter of right

and the same can be granted only if the petitioner herein fulfils the

conditions for such regularisation. He submitted that for regularisation

of service, one of the conditions to be fulfilled is that there should be a

clear and regular vacancy and since the petitioner has been working

through an outsourcing agency, he cannot be considered to be working

Civil Appeal No.2585 of 2006 dt.01.09.2011 W.P.No.37891 of 2017

in a regular vacancy and therefore, even if the petitioner satisfies the

condition of rendering 5 years of continuous service as on the cut off

date i.e., 25.11.1993, his services cannot be regularised. For this

purpose, he placed reliance on the judgment of the Hon'ble Supreme

Court in the case of Union of India and others Vs. Ilmo Devi and

another5.

8. Having regard to the rival contentions and the material on record,

this Court finds that there is no dispute that the petitioner has been

appointed as a Typist on consolidated pay with effect from 04.07.1988.

It is also not in dispute that he has rendered service till July, 1994 and

thereafter, even according to the respondents, admittedly the petitioner

has been converted as an outsourcing employee. The petitioner's option

is understandably not taken while converting his services to an

outsourcing employee. It is also not in dispute that the petitioner has

been continuously rendering the service all through even till the date of

filing of the Writ Petition in the year 2017. Therefore, the conversion of

the petitioner as an outsourcing employee seems to be a ploy adopted by

the respondents in order to defeat the purpose of regularisation under

AIR 2021 SC 4855 W.P.No.37891 of 2017

G.O.Ms.No.212 dt.22.09.1994 and also the judgment of the Hon'ble

Supreme Court in the case of Secretary, State of Karnataka Vs.

Umadevi (1 supra). The Hon'ble Supreme Court in the case of

Bhilwara Dugdh Utpadak Sahakari S. Ltd. Vs. Vinod Kumar

Sharma dead by LRs and others (4 supra) has considered these

methods adopted by the employers to be solely to subterfuge the

demands of the employees for regularisation and has come down heavily

on such practices. A Division Bench of this Court in the case of

Government of Andhra Pradesh and others Vs. N.Venkaiah and

others (3 supra) also has taken note of such practices and by following

the judgment of the Hon'ble Supreme Court in the case of B.

Srinivasulu Vs. The Nellore Municipal Corporation6, had directed

the Municipal Corporation to regularise the services of the petitioner

therein by creating a supernumerary post, if required, since the petitioner

therein had put in more than 5 years of service as on the cut off date, i.e.,

25.11.1993.

9. In view of the above decisions and particularly, the decision of

the Hon'ble Supreme Court in the case of Manjula Bhashini and

Civil Appeal No.6318 of 2015 dt.17.08.2015 W.P.No.37891 of 2017

others Vs. Managing Director, A.P. Women's Cooperative Finance

Corporation Ltd. and another (2 supra), this Court deems it fit and

proper to direct the respondents to extend the benefits of regularisation

to the petitioner in this case by reckoning his services from 25.11.1993,

or the date on which a regular vacancy had arisen thereafter and if there

was no vacancy, then to create a supernumerary post for the said

purpose from 25.11.1993 and grant the consequential pensionary

benefits. However, the petitioner shall not be entitled to actual monetary

benefits in the form of arrears of pay, back wages, allowances or

promotions.

10. With the above direction, this Writ Petition is partly allowed. No

order as to costs.

11. Pending miscellaneous petitions, if any, in this Writ Petition shall

stand closed.

___________________________ JUSTICE P. MADHAVI DEVI Date: 23.08.2022 Svv