P.Mallikarjun, Hyderabad. vs The Chairman M.D., The Oriental ...
2022 Latest Caselaw 271 Tel

     THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI


               WRIT PETITION NO.20009 OF 2006


                             ORDER

This Writ Petition has been filed by the petitioner under Article

226 of the Constitution of India seeking a direction more particularly

one in the nature of Writ of Mandamus declaring the action of the

respondents in changing the nature of the post of caretaker to the post

of a contractor by agreement dt.16.08.2006 as illegal, arbitrary and in

violation of Articles 16 and 21 of the Constitution of India and to

consequently direct the respondents to regularise the services of the

petitioner as caretaker in the respondent company and grant other

benefits to the petitioner as this Hon'ble Court may deem fit and

proper in the circumstances of the case.

2. Brief facts of the case as stated by the petitioner are that the

petitioner was appointed as a caretaker of the guest house in the

respondent company at Banjara Hills, Hyderabad in 1998. At the time

of appointment as a caretaker, he was interviewed by a five Member

Committee and was selected as caretaker in the month of November,

1998 and accordingly, the respondents were paying salary and other

benefits to him on par with the sub-staff of the company. The

petitioner was being paid a sum of Rs.6,291/- as gross salary and after

making deductions, i.e., IT and PF and other deductions, he was W.P.No.20009 of 2006

receiving Rs.5,635/- per month at the time of filing of the Writ

Petition in 2006. The petitioner submits that his salary was enhanced

from time to time along with other employees and he was also getting

uniform dress along with other employees. The petitioner was also

permitted to take a helper in the guest house subject to a maximum of

Rs.1,000/- per month with effect from 01.01.2001 vide

Ref.No.Pers/HO/276(P)/18/2001.CR-52 dt.06.07.2001. The Company

Board decided that the remuneration of the caretakers may be revised

from 01.01.2001 and the pay and allowances excluding HRA payable

to Peons under the Amendment Scheme, 2000 was made applicable to

clerical and subordinate staff. However, they were not entitled to

conveyance allowance of Rs.75/- per month. It is the case of the

petitioner that the respondent authorities prepared an agreement to

change the nature of the post from caretaker to contractor and they

wanted to put the petitioner in the form of a contractor instead of

regularising his services as caretaker though since 1998, the petitioner

was uninterruptedly regularly working as caretaker. Therefore, he was

eligible for regularisation as a caretaker. It was his grievance that

through this new agreement, caretaker post was proposed to be

changed as a contactor and if done accordingly, he would be put to

irreparable loss. He placed reliance in the case of Union of India Vs.

Dharma Pal and others1, wherein the Government of India was

directed to regularise the services of all those workers who have

Civil Appeal No.7062/96 dt.20.03.1996 of the Supreme Court of India W.P.No.20009 of 2006

completed the prescribed period of days viz., 240 days in a year

against the existing vacancy applying the rule of reservation in the

order of seniority in the respective categories mentioned in the scheme

and that such regularised employees would be entitled to all the

regular payment at the scale of pay prescribed by the Central

Government. The petitioner's case is that he was entitled to be

regularised in accordance with the above judgment of the Hon'ble

Supreme Court. Hence, the petitioner filed this Writ Petition.

3. Learned counsel for the petitioner, Sri P. Venkateswar Rao,

while reiterating the averments made by the petitioner in the writ

affidavit, has drawn the attention of this Court to page 15 of the writ

papers, wherein vide letter dt.04.12.2000, it is certified that the

petitioner is working in the Guest House of the organisation and was

staying at No.33, Classic Emerald No.8-2-622/1/1/B-1 & B-3, Road

No.10 (New No.4), Banjara Hills, Hyderabad and that he may be

issued with required licence. He also referred to page 32 of the writ

paper book, which is Form No.16A, wherein the tax was deducted at

source under Section 203 of the Income Tax Act and the TDS Circle

where annual return under Section 206 was to be delivered was

mentioned as 'ITO Salary Circle' and his name and designation were

mentioned as Caretaker, Guest House, Banjara Hills, Hyderabad. He

also has drawn the attention of this Court to page 37 of the writ

papers, wherein the agreement of contract is placed. However, it is an

unsigned agreement. He also filed a copy of the order of the High W.P.No.20009 of 2006

Court of Madras in W.P.No.19003 of 2000 in the case of New India

Assurance Co. Ltd., Vs. Workman C. Gnanam, wherein under

similar circumstances, the Hon'ble Madras High Court has held that

the workman therein is entitled to regularisation of his services.

4. Learned counsel for the respondents, Sri A. Krishnam Raju, on

the other hand, relied upon the averments of the respondent

organisation in the counter affidavit and submitted that there was no

post of caretaker in the respondent organisation and the company was

maintaining a guest house and the petitioner was engaged to maintain

the guest house and the nomenclature given to the said work was as

caretaker. It was submitted that it was not a permanent post and the

petitioner was engaged only on contractual basis to maintain the guest

house and no particular recruitment process was undertaken to call it

as an appointment to a permanent post. He further submitted that

whether the petitioner was an employee or not is a disputed fact which

cannot be gone into in these writ proceedings. In support of his

contentions, he placed reliance upon the judgments of the Hon'ble

Supreme Court in the case of Yogesh Mahajan Vs. Professor R.C.

Deka, Director, All India Institute of Medical Sciences2 and the

case of Surinder Prasad Tiwari Vs. U.P.Rajya Krishi Utpadan

Mandi Parishad and others3. He therefore prayed for dismissal of

the Writ Petition.

(2018) 3 SCC 218

(2006) 7 SCC 684 W.P.No.20009 of 2006

5. Having regard to the rival contentions and the material on

record, it is seen that the petitioner was appointed and recognized as a

caretaker by the respondent company in the year 1998. Though there

is no proof of any selection process being undertaken, it is the case of

the petitioner that a Committee interviewed him before appointing

him as a caretaker. The respondents have not disputed that the

petitioner has been taking care of the guest house for the past 5 years.

It is also undisputed that the petitioner has not signed the document

which is in the nature of an agreement or contract. Further, from the

Form No.16A, it is seen that the TDS has been deducted from the

monthly payment made to the petitioner and the office to which the

TDS is to be remitted is mentioned as 'ITO Salary Circle'. All these

facts go in favour of the petitioner. Further, it is seen that the

petitioner is continuing in service by virtue of the interim order of this

Court in W.P.M.P.No.25257 of 2006 dt.28.09.2006. The stay vacate

petition filed by the respondent company was also dismissed and the

petitioner was directed to be continued in service. Therefore, it is clear

that the petitioner is continuing in service and though the respondents

submitted that there is no post of caretaker in the organisation, this

Court deems it fit and proper to direct the respondents to regularise

the petitioner as a sub-staff or in any such post which carried the same

scale in 1998, in which the petitioner was initially appointed in 1998

and grant him all the attendant benefits thereafter, i.e., enhancement of W.P.No.20009 of 2006

salary, increments and all other eligible benefits which a regular

employee would be eligible under law.

6. The Writ Petition is accordingly allowed. No costs.

7. Pending miscellaneous petitions, if any, in this Writ Petition

shall stand closed.

___________________________ JUSTICE P. MADHAVI DEVI

Date: 27.01.2022 Svv