Telangana High Court

K. Mallesh And Another vs The State Of Telangana And 3 Others on 22 November, 2022

Bench: Surepalli Nanda

 IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                 W.P. No. 6229 of 2020

Between:

K.Mallesh and another
                                                    ... Petitioners
And

The State of Telangana and others
                                                ... Respondents

JUDGMENT PRONOUNCED ON: 22.11.2022

      THE HON'BLE MRS JUSTICE SUREPALLI NANDA



1. Whether Reporters of Local newspapers   :         yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be
   marked to Law Reporters/Journals?        :        yes

3. Whether Their Lordships wish to
   see the fair copy of the Judgment?           :      yes

                                        _________________
                                        SUREPALLI NANDA, J
                                  2




        THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                       W.P. No. 6229 of 2020

% 22.11.2022

Between:

# K.Mallesh and another
                                                 ..... Petitioner
        and
$ The State of Telangana and others
                                               .....Respondents

< Gist:
> Head Note:


! Counsel for the Petitioner    : Mr P.Raghavendra Reddy


^ Counsel for the Respondents: Additional Advocate General


? Cases Referred:
   1.   2003 (11) SCC 646
   2.   2017 (1) SCC 148
   3.   (2008) 7 SCC 375
   4.   2006 (9) SCC 406
                                3




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

            WRIT PETITION No.6229 OF 2020

ORDER:

Heard the learned counsel for the petitioners and

learned standing counsel for the respondents.

2. The petitioners approached this Court seeking

relief as follows:

"to issue Writ Order or Direction more particularly one in the nature of Writ of Mandamus by declaring the action of the respondents in not protecting pay scales of the petitioner which were drawing prior to regularization of their services as illegal, arbitrary and violative of the principles of natural justice and consequently direct the respondents to protect the pay scales of the petitioner which were drawn prior to regularization of their services as held by the Hon'ble AP Administrative Tribunal in OA.No.2855/2012 and Batch dated 15.06.2005 as confirmed by this Hon'ble Court in W.P.No.7537/2016, dated 10.03.2016."

3. The case of the petitioners, in brief, is as follows:

a) The petitioners were working as Kamatees on daily

wage basis in the erstwhile Gaddiannaram Gram Panchayat

since, 09.08.1986 and 01.06.1988. While they are working as

such, the said Gram Panchayat has been upgraded into

Municipality in the year 2000 as Gaddiannaram Municipality,

and then their services along with other staff have taken over.

b) The petitioners along with other workers approached

the erstwhile A.P. Administrative Tribunal by filing

O.A.No.1751 of 2001 for regularization of their services from

the date of completion of five years. By order dated

16.03.2001, the Tribunal had allowed the said O.A. directing

the respondents to regularize their services in terms of

G.O.Ms.No.212, F&P, dated 22.04.1994 and also directed to

pay the pay scales attached to the said post.

c) Against the said orders, the Commissioner,

Gaddiannaram Municipality has filed W.P.No.11919 of 2001

before this Court. The petitioners along with other workers

filed W.P.M.P.No.33039 of 2003, for payment of minimum

time scale. By order dated 07.01.2004, this Court directed the

respondents to pay minimum time scale applicable to the last

grade employees w.e.f. 01.01.2004. Against the said orders,

the Commissioner and Director of Municipal Administration

filed S.L.P.No. (CC)2873-2875 of 2005 before the Hon'ble

Supreme Court, the same has been dismissed vide order

dated 01.04.2005.

d) Later, Gaddiannaram Municipality along with other

surrounding municipalities were merged in Municipal

Corporation of Hyderabad and constituted as Greater

Hyderabad Municipal Corporation in the month of April, 2007

along with assets and liabilities and then their services were

taken over in GHMC along with other staff. The Deputy

Commissioner has sent proposals to the higher authorities

vide Lr.No.C1/2010, dated 25.09.2010 for regularization of

petitioners' services along with other workers, in the said

proposals their names were shown at SI.No.8 and 12.

Thereafter, the Government has issued G.O.Ms.No.533, MA &

UD Department, dated 29.11.2011 regularizing 306 workers

working in different circles in GHMC including LB Nagar Circle.

But in the said proposal dated 25.09.2010, the petitioners

services were not regularized and out of 19 workers only 13

workers services were regularized.

e) The petitioners along with other workers approached

the Court by filing W.P.No.5839 of 2017 for regularization of

their services from the date of completion of five years in

terms of G.O.Ms.No.212, F&P, dated 22.04.1994, as it was

done in the case of other workers vide G.O.Ms.No.533, MA &

UD Department, dated 29.11.2011. By order dated

22.04.2019, the Court disposed of directing the petitioners to

submit detailed representation to the respondents. Thereafter,

the petitioner submitted a detailed representation to the

respondents on 22.05.2019.

f) Further, the Government has issued G.O.Ms.No.40, MA &

UD Department, dated 20.02.2020, wherein the petitioners'

services were regularized as Kamatees. The respondents

cannot reduce their pay scales which amounts to violation of

the orders passed by this Court. By the order dated

15.06.2015, the Tribunal partly allowed the O.As directing the

respective Commissioners of the Municipal Corporation to give

protection to their pay prior to their regularization of services.

As in the case of other workers in LB Nagar Circle and other

circles of GHMC, Hyderabad the petitioners are also entitled

for protection of their pay scales prior to regularization of

their services. Therefore, the writ petition is filed.

4. The case of the respondents, in brief, is as

follows:

a) The order of the Division Bench of this Court in

W.P.No.7537 of 2016, dated 10.03.2013 has no application to

the instant case, as the case of the Applicants therein stand

on a different footing. The petitioner cannot claim both

regularization and pay protection.

b) If the petitioners opt for regularization, they have to be

paid scales applicable to them as on the date of regularization

and not retrospectively from the date of their initial

appointment or from the date when minimum wages were

granted to them. They are at liberty to choose for one benefit,

either for regularization or continue as a temporary employee

with the minimum time scale. As such they are not entitled for

protection of pay that was drawn prior to their regularization.

c) The pay protection under FR 22-B(1) will be available to

the Government servant if he holds a lien on his previous

permanent post and no pay of senior Government employee

shall be allowed on the basis of the pay protection granted

under FR 22-B(1) to junior Government employee of that

particular service/cadre.

e) In view of the above, the petitioners are not entitled to

the relief prayed for and therefore, the writ petition is liable to

be dismissed.

5. Perused the record.

FACTS NOT IN DISPUTE :

6. The Petitioners on an earlier occasion filed O.A

NO.1751/2001 on the file of Andhra Pradesh Tribunal

at Hyderabad and the same was disposed on 16-03-

2001 observing as follows :

"Following the judgment in WP No.7175/97 & batch, referred in OA No.6932/99 & batch, dt. 23.02.2001, this OA is also allowed with the following directions :

Thus, we direct the respondents to regularize the services of all the applicants who fulfill the conditions incorporated in G.O.Ms.No.212 dt. 22.04.1994 and G.O.Ms.No.112 dt, 23.07.1997 irrespective of the fact whether they complete 6/10 years of service as on 25.11.1993 provided they were in service as on the said cut- off date and without insisting for existence of clear vacancy. To be more specific, we direct the respondents to consider the cases of all the applicants who were appointed prior to 25.11.1993 and who completed 5/10 years of service as full time and part-time employees for regularization as and when they complete the said period of service. The above exercise shall be completed within a period of six months from the date of receipt of a copy of this order.

We further direct the respondents to effect payment of salaries to the applicants in the pay scale attached to the post and pay arrears of salary from this date (23.02.2001). The above exercise shall be completed within a period of three months from the date of receipt of a copy of this order.

The OA is accordingly allowed with the above directions. No costs".

7. The then Municipal Council represented by its

Commissioner, Gaddiannaram Municipality, Ranga

Reddy District filed W.P.No.11919 of 2001 aggrieved

against the order dated 16-03-2001 passed in

O.A.No.1751 of 2001 whereby he directed for

regularization of the services of the petitioners herein in the

present writ petition along with few, in terms of

G.O.Ms.No.212 Finance & Planning (FW.PC-III) Department,

dated 22.04.1994 and G.O. (P) No.112, Finance & Planning

(FW.PC.III) Department, dated 23.07.1997. In the said WP

No.11919 of 2001 the petitioners herein along with few

others had filed W.P.M.P.No.3309 of 2003 in

W.P.NO.11919 of 2001 and the High Court vide its order

dated 07.01.2004 directed the Municipal Council, rep.

by its Commissioner, Gaddiannaram Municipality,

Ranga Reddy District to pay minimum time scale

applicable to last grade employees w.e.f. 01.01.2004.

An SLP No.CC2873-2875/2005 was preferred by the

Commissioner & Director of Municipal Administration,

against the judgment and order dated 07.01.2004 in

WPMP NO.3309 of 2003 in W.P.NO.11919 of 2001, and

the order dated 15.12.2004 passed in WVMP

NO.3543/2004 in WPMP No.3309/2003, vide which the

interim orders dated 07.01.2004 in WPMP NO.3309 of

2003 in WP No.11919 of 2001 had become absolute,

and the same was dismissed by the Supreme Court vide

its orders dated 01.04.2005. WP No.11919 of 2001 was

disposed of vide its orders dated. 25.08.2009 observing

as follows :

"5. The Supreme Court also reversed the view taken by the Tribunal that the applicants before it were in service as on 25.11.1993 and as and when they complete five/ten years of service, they are entitled for regularization. In the aforesaid judgment of the Supreme Court, it was laid down that in terms of the G.O.Ms.No. 212, dated 22.4.1994, the employee should have completed five years of service and continued to be in service as on 25.11.1993 in order to get the eligibility for regularization, and in terms of G.O. (P).No.112, dated 23- 07-1997, the employee should have completed ten years of service and continued to be in service as on 25.11.1993 in order to get the eligibility for regularization.

6. Respondents 1, 2, 17 and 19 were appointed on 19.12.1988, 11.04.1989, 13.04.1989 and 01.08.1992 as NMRs and admittedly they have not completed five years of service as on 25.11.1993 and they have not fulfilled the conditions as laid down in G.O.Ms.No. 212, dated 22.4.1994 or G.O.(P).No.112, dated 23-07-1997, and as such, they are not eligible to be regularised. In so far as respondents 3 to 16, 18 and 20 are concerned, they were appointed as NMRs prior to 24.11.1988. If that be so, they are entitled to be considered for regularisation as per the conditions laid down in G.O.Ms.No. 212, dated 22.4.1994 or G.O. (P).No.112, dated 23-07-1997, as the case may be, in the light of the aforesaid judgment of the Supreme Court.

8. Petitioners herein were constrained to approach

this Court by filing W.P.NO.5839 of 2017 seeking

regularization of their services from the date of

completion of 5 years in terms of G.O. Ms. No.212, F&P,

dated 22.04.1994 as it was done in case of other

workers vide G.O.Ms.No.533, MA & UD Dept., dated

29.11.2011. The said W.P. NO.5839 of 2017 was

disposed of vide order dated 22.04.2019 directing the

petitioners to submit representation to the respondents

within 2 weeks from the date of receipt of the copy of

the order and further directed to consider Petitioner's

representation within 4 weeks for regularization of

their services and the Petitioners had submitted a

detailed representation to the Respondents on

22.05.2019 and the same was considered and the

Government issued GO Ms.No.40, dated 20.02.2020.

DISCUSSION & CONCLUSION :

9. A bare perusal of the contents of Lr.No.C1/2010,

dated 25.09.2010 of the Deputy Commissioner,

L.B.Nagar Circle-III, GHMC clearly indicates that the

concerned officer submitted the required particulars in

respect of the regularization of services of NMRs working in

the said Circle to the Additional Commissioner,

Administration, Greater Hyderabad Municipal Corporation,

Hyderabad and the 1st Petitioner's name figured at

Sl.No.8 and the 2nd Petitioner's name figured at

Sl.No.12 in the said list.

10. Para 12 of GO Ms.No.40, dt.20-02-2020 reads as

under :

"Keeping in view of the orders in reference 1st cited, Government after careful examination of the matter hereby accord permission to the Commissioner, GHMC, Hyderabad to regularize the services of 2 NMRs Sri K.Mallesh and Sri G.Shanker as Kamatee LB Nagar Zone in GHMC in terms of G.O.Ms.No.212, dated 22.04.1994 from prospective date i.e. date of issue of orders by the competent authority, subject to the condition that the vacancies are clear, regular, continued from time to till date and no senior eligible person is overlooked omitted and verify records/certificates details are genuine and true and satisfy themselves and also hereby accord permission to the Commissioner, GHMC, Hyderabad to reject the request of NMR's Sri D.Narender, Sanitary Maistry and Kamatee respectively at LB Nagar Zone in GHMC as they have not completed (5) five years of service as on 25.11.1993 and also not fulfilled the conditions as laid down in G.O.Ms.No.212, dated 22.04.1994."

11. The Petitioners were issued proceedings

No.218692/LWS/B3/GHMC/ 2020/119, dt. 25.02.2020

and para 3 of the said order reads as under :

"Accordingly, Sri K.Mallesh and Sri G.Shanker, NMRs working in Circle NO.5, Saroornagar, GHMC are hereby appointed temporarily under GHMC Employees Sub-ordinate Service Rules, 1980 as KAMATEES in the scale of pay of Rs.13000 - 40270 and posted in one of the existing vacancies in L.B.NAGAR ZONE, GHMC from prospective date i.e. date of issue of orders by the competent authority. The incumbents shall be on probation for a total period of two years on duty within a continuous period of three years."

12. A bare perusal of the order dated 15.06.2015

passed in O.A.No.2855 of 2012 with C.A.No.1421 of

2013 and VNA No.1415 of 2012 and O.A.NO.2715 of

2013 and batch clearly indicates that in a situation

where few other applicants had approached the

Tribunal seeking notional seniority with monetary

benefits from the respective dates of arising of

vacancies and also for protecting the pay scales already

being drawn by the applicants prior to the

regularization, the Tribunal in its orders dated

15.06.2015 at paras 3 and 4 was pleased to observe as

under :

"3. In so far as protection of Pay whether it is by way of Minimum Time Scale in the cadre or otherwise, all the applicants whose services are regularized are entitled for the same. But, in so far as giving notional seniority is concerned, applicants could not point out any provision for granting the same. On the other GO.Ms.No.533, reads that permission was accorded to the Commissioner, Greater Hyderabad Municipal Corporation, to regularize services of 306 N.M.Rs., annexed to it in terms of G.O.Ms.No.212, Finance (PC.III) Department, dated 22-4-1994 "from prospective dates i.e., date of issue of orders by the competent authority", subject to the condition that vacancies are clear, regular and continued from time to time till date. Similarly in G.O.Rt.No.1139, the Government permitted the appointing authority to regularize services of 51 N.M.RS.. of Greater Visakhapatnam Municipal Corporation against the posts mentioned against each in terms of G.O.Ms.No.212, Finance, dated 22-4-1994, "from the prospective date i.e., date of issue of orders, subject to condition that the said vacancy is clear, regular and continued from time to time till date".

When the applicants wanted to take benefit of regularization of services under the above G.Os., now they cannot turn round and claim benefits over and above the same. There cannot be any retrospective date of appointment under service law with a view to give notional seniority without monetary benefits. In so far as monetary benefits are concerned, all the applicants are entitled to those benefits which they have been drawing prior to their regularization. Regularization is by way of advantage to one's service and it cannot work as detriment to service. In case any of the applicants were drawing more Pay including allowances etc.. than Minimum Time scale of the Last Grade Service such of those applicants who were drawing the same, are certainly entitled for protection of the said Pay, if it is over and above Minimum Time Scale.

In these circumstances, the Original Applications are partly allowed directing the respective Commissioners of the Municipal Corporations to give protection to pay which the applicants (except applicant No.10 in O.A.No.2855 of 2012) were drawing prior to their regularization of services. The original Applications in other respects are dismissed. C.As. and V.M.As. are closed. M.A.No.1161 of 2015 is allowed M.A.No.687 of 2015 is allowed M.A.SR.No.2675 of 2015 is allowed. M.A.No.1113 of 2015 is allowed."

13. The relief of protection to pay in respect of the

applicants, as they were drawing prior to regularization

of their service was provided to around 38 employees

who were working in the last grade service in

Gajuwaka Zone of GVMC, Visakhapatnam, but denied to

the petitioners herein and the same is in clear violation

of the doctrine of equality clause enshrined under the

Constitution of India under Article 14.

14. W.P.NO.7537 of 2016 preferred against the order

dated 15.06.2015 passed in O.A No.2715 of 2013 &

batch was disposed of observing as follows :

A perusal of the impugned order of the Tribunal would clearly show that the first part of the relief claimed by the private respondents, viz., to give notional seniority without monetary benefits retrospectively was turned down by the Tribunal and the relief that was granted by it was only confined to protecting the monetary benefits to the extent of the pay scale drawn by them prior to their regularization. This shall necessarily mean that the petitioner cannot fix the pay lesser than the pay scale which was being paid to the private respondents as on the date of their regularization. Therefore, the private respondents are not entitled to claim any larger benefit than the above-mentioned relief granted by the Tribunal. Subject to this clarification, the Writ Petition is dismissed. As a sequel to dismissal of the Writ Petition, WPMP.No.9613 of 2016 filed by the petitioner for interim relief is dismissed as infructuous.

15. Under similar circumstances few others ie.,

T.Pochaiah & two others approached this Court by filing

WP No.46873 of 2016 seeking a direction to the

respondents thereunder to pay the salary of the

petitioners drawn by them prior to their regularization

by admitting the bills submitted by the 3rd and 4th

Respondents thereunder ie.. Mahabubnagar

Municipality, Mahabubnagar District, rep. by its

Commissioner and the Asst. Treasury Officer, District

Treasury, Mahabubnagar, Mahabubnagar District, and

this Court was pleased to pass interim orders dated

21.04.2017 in WPMP NO.57731 of 2016 in

W.P.No.46873/2016, observing as follows :

"In view of the judgement of the Division Bench in WP No.7537/2016 dt. 10.03.2016 there shall be an interim direction as prayed for". Notice.

16. A bare perusal of the observations of the Division

Bench of the Tribunal as confirmed by the observation

of the Division Bench of the High Court in their orders

dated 15.06.2015 and 10.03.2016 referred to and

extracted above clearly indicate as follows :

i. Regularization is by way of advantage to one's service and it cannot work as detriment to service. ii. There cannot be any retrospective date of appointment under service law with a view to give notional seniority without monetary benefits. iii. In so far as monetary benefits are concerned all the applicants are entitled to those benefits which they have been drawing prior to their regularization. iv. The applicants are entitled for the protection to pay as drawn by them prior to their regularization of their service.

v. Protection of the monetary benefits to the extent of the pay scale drawn by them prior to their regularization is a benefit entitled to be claimed by the applicants and the same cannot be deprived and the Respondents cannot fix the pay lesser than the pay scale which was being paid to the applicants as on the date of their regularization.

17. In a judgment reported in 2003 (11) SCC 646 in

State Bank of India vs. K.P. Subbaiah, the Hon'ble Apex

Court held :

Para 16 : In State Bank of India v. K.P. Subbaiah (2003) 11 SCC 464 the Hon'ble Apex Court held that in service jurisprudence the expression 'pay' and 'pay scale' are conceptually different connotations. Pay is essentially a consideration for the services rendered by an employee and is the remuneration which payable to him. Remuneration is the recurring payment for services rendered during the tenure of employment. After referring to the meaning of the word 'pay' as per Concise Oxford Dictionary and Fundamental Rule 9(21) as involved therein, the Hon'ble Apex Court held that there are different types of pay, like substantive pay, special pay, additional pay, personal pay and presumptive pay. It was further held that the public services comprise different grades and therefore different pay scales are provided for different grades. The pay of an employee is in that background fixed with reference to a pay scale and employee starts with a particular pay which is commonly known as initial pay and the periodical increases obtained by him are commonly known as increments. When the highest point is reached, the employee concerned becomes entitled to what is known as ceiling pay. It is therefore a graded upward revision. The Hon'ble Apex Court further held that a pay scale has different stages starting with initial pay and ending with ceiling pay. Each stage in the scale is commonly referred to as basic pay. The emoluments which an employee gets is not only the basic pay at a particular stage, but also the additional amounts to which he is entitled as allowances e.g., DA etc. The Hon'ble Apex Court clearly held that when a question of pay protection comes, the basic feature is that the fitment or fixation of pay in a particular scale must be such as to ensure that the total emoluments are not reduced.

Para 17 : It is apt to reproduce paragraph - 22 of K.P. Subbaiah as under :

"22. As noted above, a pay scale has different stages starting with initial pay and ending with ceiling

pay. Each stage in the scale is commonly referred to as basic pay. The emoluments which an employee gets is not only the basic pay at a particular stage, but also the additional amounts to which he is entitled as allowances e.g. DA etc. Therefore, when a question of pay protection comes, the basic feature is that the fitment or fixation of pay in a particular scale must be such as to ensure that the total emoluments are not reduced."

18. In a judgment reported in 2017 (1) SCC 148 in

State of Punjab v Jagjith Singh, the Hon'ble Apex Court

held that on the issue of pay parity, the concept of

equality would be applicable but the principle of

equality could not be invoked for absorbing the

temporary employees in Government service or for

making temporary employees regular/permanent.

19. In a judgment reported in (2008) 7 SCC 375 in

Haryana State Minor Irrigation Tube Wells Corporation

and others v G.S. Uppal and others, at para 21 the

Hon'ble Apex Court held as under:

"21. There is no dispute nor can there be any to the principle as settled in the above cited decisions of this Court that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with the administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of

employees and taken in ignorance of material and relevant factors.

20. In a judgment reported in 2006 (9) SCC 406 in

K.T. Veerappa vs. State of Karnataka the Hon'ble Apex

Court held that there is no dispute nor can there be any

to the principle that fixation of pay and determination

of parity in duties is the function of the Executive and

the scope of Judicial review of Administrative decision

in this regard is very limited. However, it is also

equally well settled that the Courts should interfere

with administrative decisions pertaining to pay fixation

and pay parity when they find such a decision to be

unreasonable, unjust and prejudicial to a section of

employees and taken in ignorance of material and

relevant factors.

21. The plea of the 4th Respondent that pay protection

under Fundamental Rule 22-B(i) will be available to the

Government servant if he holds a Lien on his previous

permanent post, is not tenable in view of the clear

observations of the Division Bench judgment dated

10.03.2016 of the High Court in W.P. No.7537 of 2016 where

under it was clearly observed that the Writ Petitioner i.e.,

Municipal Corporation could not fix the pay lesser than the

pay scale which was paid to the Respondents there under as

on the date of the regularization.

22. The Petitioners herein specifically at para 8 of

their affidavit filed in support of the present writ

petition plead as under :

Para 8 : "I further submit that as on the date of regularization we were drawing Rs.40828/- per month, in view of prospective regularization our pay has been re-fixed at the initial state ie., Rs.13,000-40,270/-. In view of the same we will get of Rs.19,000/- p.m., due to the same we are facing much hardship due to reduce of our salary from Rs.40,828/- to Rs.13,000/- basic pay and it is affect on our financial position, as we obtained house loan taking into consideration of salary of Rs.40,828/- which is being received by us. Now in view of the reduction of pay scales, it is very difficult to maintain our family".

23. Taking into consideration of the above said facts

and circumstances and also the law laid down by the

Apex Court in the judgments referred to and discussed

above and also duly considering the view taken on an

earlier occasion under similar circumstances by the

Division Bench of this Hon'ble Court in its orders dt.

10.03.2016 passed in W.P.No.7537 of 2016 which very

clearly observed that the applicants/writ petitioners

thereunder are entitled for protection of the monetary

benefits to the extent of the pay scale drawn by them

prior to their regularization and further that the

Respondents cannot fix the pay lesser than the pay