Telangana High Court
Syed Zameeruddin, S/O.Syed ... vs A.P.Northem Power Distribution ... on 25 April, 2023
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 4643 of 2014
Between:
Syed Zameeruddin
... Petitioner
And
APNPDCL and others
... Respondents
JUDGMENT PRONOUNCED ON: 25.04.2023
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
WP_4643_2014
2 SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 4643 of 2014
% 25.04.2023
Between:
# Syed Zameeruddin
... Petitioner
and
$ APNPDCL and others
.....Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Sri Ch.Koteshwar Rao
^Standing Counsel for the Respondents: Sri R.Vinod Reddy
Sri Zakir Ali Danish
? Cases Referred:
1. (2017) 1 Supreme Court Cases 148
2. 2010 )9)SCC 247
3. (2013 14 SCC 65
4. 2015 SCC one lie SC 1797
5.(2015) 9 SCC 265
6. 2006 (4) SCC 1
7. 2015 (8) 65
8. 2014(7) SCC 223
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 4643 of 2014
ORDER:
Heard learned counsel for the petitioner and
learned standing counsel for TSNPDCL.
2. This writ petition is filed to issue an appropriate writ
order or direction more particularly in the nature of
Mandamus declaring the order vide Memo
No.DEE/OP/WGL/JAO/Adm/SAI/D.No.1752, dated 06.01.2014
of the 3rd respondent as illegal, arbitrary, unjust and violative
of principles of natural justice and to direct the respondents to
regularize the service of the petitioner in a suitable post by
granting regular scale of pay attached to the said post.
3) The case of the petitioner, in brief, is as follows:
a) The petitioner is appointed as job Clerk on 01.04.1991
in the office of the 3rd respondent on daily wage basis and his
services were utilized for the duties of Attender, Record
Keeper and also to Assist the Junior Account Officer.
b) While the petitioner was working as job clerk, his
services were terminated by oral order dated 01.09.1992 and
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the same was carried before the Industrial Tribunal-cum-
Labour Court, Warangal vide I.D.No.81 of 1994 and the said
I.D. was allowed on 12.07.1999 setting aside the termination
order and the respondents were directed to reinstate the
petitioner in to service as a "fresh recruit" casual attender not
below the cadre of attender, without back wages, but directed
to consider the seniority.
c) Without implementing the award dated 12.07.1999, the
respondents filed W.P.No.10685 of 2000 and the same was
dismissed on 22.06.2000. Thereafter, the petitioner was
reinstated into service by proceedings Memo
No.DEE/OP/NPDCL/WGL/JAO/ADM/D/No.1562, dated
08.11.2000 as helping assistant in the office of the 2nd
respondent.
d) Again the petitioner was terminated by proceedings
dated 23.04.2001 as his services are no more required.
Questioning the said proceedings, the petitioner filed
W.P.No.8712 of 2001 before this Court and while admitting
the said writ petition, order of status quo was granted and the
same was extended from time to time and the said order of
status quo was made absolute on 08.04.2003. The said writ
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petition was disposed of on 15.02.2012 setting aside the
termination order dated 23.04.2001 and liberty is given to
make application for regularization of services and directed
the respondents to consider the said application in accordance
to rules.
e) When the petitioner made representation on 18.04.2012
to the 1st and 2nd respondents, they passed order in Memo
No.DEE/OP/WGL/JAO/Adm/SA1/D.No.1752, dated 06.01.2014
stating regularization of service in the above non cadre post is
not maintainable as per existing rules and the scheme of
regularization. Hence, this writ petition.
4. The counter affidavit of the respondents, in brief,
is as follows:
a) After considering the representation dated 18.04.2012
of the petitioner it is observed that the petitioner has no right
for his continuance of his service since his clerical Assistant
job norms in the respondent company will not ensure him any
right to claim for regularization of his service.
b) On examining the past service of the petitioner, the
respondents held that in terms of B.P.(P&G-per) Ms.No.36,
dated 18.05.1997 the petitioner's case for regularization
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cannot be considered since the said Board proceedings are
not applicable for considering the petitioner's case for
appointment on regular basis and speaking orders have been
issued to the petitioner vide memo
No.DEE)(opn)/WGl/JAO/Adm/ SA.1/D.No.1752, dated
06.01.2014 narrating the cause for not continuing the
petitioner in service.
c) The petitioner was re-instated as casual helping
assistant as per the Court orders only, even though such type
of posts are not existing and paying the above amounts to the
petitioner, as such the petitioner is not entitled for the relief
as claimed for. Hence, the writ petition is liable to be
dismissed.
5. The reply affidavit of the petitioner, in brief, is as
follows:
a) In similar circumstances, the respondents have
considered the case of one Md.Quayyam and appointed in the
time scale of pay by implementing the orders of the High
court in W.P.No.11696 of 2004.
6. The Additional affidavit of the petitioner, in brief,
is as follows:
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a) As per award dated 12.07.1999 in I.D.No.81 of 1994 of
the Industrial Tribunal-cum-Labour Court, Warangal, the 3rd
respondent reinstated the petitioner as casual helping
assistant by recognizing that it is equivalent post to attender
and the 3rd respondent filed memo in E.P.No.10 of 2000.
b) The sanction cadre of ministerial staff is 9 and are filled
up and there is no vacancy as on today and the 3rd
respondent has not filed any documents to that effect. There
is one post i.e. Office Subordinate at LGS (Lower Grade
Services) is vacant and also another post of Record Assistant
is vacant in the office of the 3rd respondent and the same was
clearly mentioned in MIS return for the month of August,
2019 in the Cadre of Engineering, Accounts and L.G.S,
services of DEE/OP/WARANGAL/3rd respondent.
c) The respondent authorities are continuing the petitioner
as Job Clerk by taking the services as Record Assistant
(taking work as Inward and Outward in the section) but the
wages are paid as job clerk till today.
PERUSED THE RECORD.
7. The order impugned of the Divisional Engineer,
Electrical, Operation, Warangal, the 3rd respondent
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herein dated 06.01.2014, in particular, paras 7, 8 and 9
read as under:
" 7. While so, on verification of the material available
on record in the respondents company it is observed as
below:
(a) No appointment orders were issued to the
petitioner while engaging his services in the
respondents office for assisting to the office staff.
(b) No electrical work was extracted from him.
(c) There are no such designated cadre post in the
respondent's office.
(d) As above, he was not born on the rolls of
respondents establishment.
(e) While so, since there was no work to extract from
the petitioner, he was terminated vide Memo No:
DEE/OP/NPDCL/WGL/ADM/ JAO/D.No:15 Dt:23.04.2001
by giving one month notice U/s. 25 F of the Industrial
Disputes Act.
(f) In B.P (P&G-Per) M.S.No:36 dated: 18.05.1997,
orders were issued for filling up of the existing vacant
posts as on 18.05.1997 in the initial recruitment cadre
l.e., JLM/LDC/Typist and Sub- Engineer subject to
fulfilling the conditions mentioned therein by the
individuals who were on the rolls of establishment as on
that day.
(g) While so, the petitioner did not fulfill the above
conditions even to consider his case in terms of the
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above Board proceedings. As a result he was made in
eligible for appointment against the above proceedings.
As such the orders issued in Memo. No: DEE
/OP/NPDCL/WGL /ADM/ JAO/ D.No:15 dt:23.04.2001
terminating his services have gained the legal
acceptance.
(h) Beside the above, as per the interim orders
dated:27.04.2001 in W.P.No:11086/2001 in
W.P.No:8712 of 2001 the service of the petitioner are
being engaged as Daily Wage Job Clerk on daily wages
at Rs. 350/- (three hundred and fifty rupees only) per
day limited to 26 days per month and adopted the mode
of payment is put on hand receipt basis.
8. For the reasons cited, the representation dated
18.04.2012 made by Sri.Syed. Zameeruddin and
the petitioner has been considered in terms of the
orders of Hon'ble High Court of A.P dt: 15.02.2012
in W.P.No:8712 of 2001 and observed that his
request for regularization of services in the above
non-cadre post is not maintainable as per the
existing rules and the scheme of regularization.
9. The action taken as above and communication of this
memo to Sri. Zameeruddin Daily Wage Job Clerk shall
be deemed that the above orders of Hon'ble High Court
of A.P have been examined in accordance with the law
and the said orders are implemented in entirety.
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8. The order dated 15.02.2012 passed in
W.P.No.8712 of 2001 reads as under:
"Heard learned counsel for the petitioner and learned
Standing Counsel appearing for the respondents.
Petitioner states that he was working as a Job
Clerk from 01.01.1991 and also as an Attender/Record
Keeper whichever the capacity the work was entrusted
to him. The petitioner, however, states that he suffered
an order of retrenchment on 23.04.1994, which was
questioned by him in I.D.No.81 of 1994 before the
Labour Court and as per the Award of the Labour Court,
the said termination was set aside directing
reinstatement of the petitioner. The said Award,
however, was not implemented. But the respondents
approached this Court questioning the Award by Writ
Petition No.10685 of 2000. The said writ petition was
dismissed on 22.06.2000 and thereafter in execution of
the award petitioner was taken back into service vide
proceedings of the respondents, dated 08.11.2000.
Petitioner states that subsequently by further
proceedings, dated 23.04.2001, respondents retrenched
the petitioner on the ground that petitioner services are
no more required. The said proceedings, dated
23.04.2001, are questioned in this writ petition on the
ground that the same is contrary to the Award, as
confirmed by this court referred to above and also
seeking regularization.
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While admitting this writ petition on 27.04.2001,
initially an order of status quo was passed which was
extended from time to time and the said order was
made absolute on 08.04.2003. When this matter was
heard on 08.02.2012, apart from the other contentions,
learned counsel for the petitioner asserted that
petitioner is working in view of the interim orders of
status quo. I had, therefore, directed the learned
counsel for the petitioner to file an additional affidavit to
that effect. Today, learned counsel has filed affidavit,
dated 12.02.2012, wherein petitioner states on oath
that in pursuance of interim directions he is working as
Casual Helping Assistant in the office of Assistant
Divisional Engineer/Distribution/Mulugu Road. The
documents evidencing the receipt of wages by the
petitioner are also annexed to the said affidavit.
Since the said affidavit is not contraverted, it
is evident that the petitioner has been working
with the respondent-organisation from 2001 and,
therefore, at this distance of time, the
adjudication as to correctness of order of
retrenchment of the petitioner made in the year
2001 (23.04.2001) would be highly unjust,
inequitable and would serve no purpose. Hence, in
view of the continuous working of the petitioner
since 2001, the said order of termination
impugned in this writ petition shall stand set
aside. However, to the extent of the relief for
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regularization sought for by the petitioner, petitioner is
at liberty to make appropriate application for such
regularization, which shall be considered by the
respondents in accordance with the existing rules and
the scheme for regularization, if any, and appropriate
orders thereon will be passed as per law. Subject to the
above, the Writ Petition is disposed of. In view of the
disposal of the writ petition, the Miscellaneous
Applications, if any, stand closed. There shall be no
order as to costs.
9. Order dated 17.08.2010 passed in W.P.No.11696
of 2004, in particular, paragraphs 8 and 9, reads as
under:
"8. In view of the above, I am of the considered
opinion that the petitioner is entitled for
regularization of his services as soon as he had
completed five (5) years of service on 02-01-1991
(Services of the petitioner were terminated with
effect from 24-10-1991).
9. Therefore, respondents are directed to consider
regularization of services of the petitioner in the
cadre of typist with effect from 25-11-1993
notionally, and he may be extended with notional
increments from that date till the date of
regularization of his services and put on regular
time scale."
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10. Counter affidavit filed on 19.02.2019 by the
respondents, in particular, paras 3, 4, and 5, reads as
under:
"3 In reply to Para 2 of the affidavit it is submitted that
aggrieved by the Tribunal orders dated 12.07.1999 in
ID No.81 of 1994, the respondent organization has filed
a writ petition before the Hon'ble High court of AP to
declare the above Tribunal orders as illegal. While so,
the Hon'ble High Court of AP by orders dt. 12.07.1999
dismissed the writ petition No. 10685 of 2000.
Thereafter, the 3rd vide proceedings Memo No.DEE/OP/
NPDCL/Wgl/JAO/Admn/D No. 1562, dated 08.11.2000
has engaged the petitioner as casual Helping Assistant
In compliance of the directions of the this Hon'ble
Court passed in W.P.No.8712 of 2001 and considering
the representation Dated 18.04.2012 of the petitioner
examined and it is observed that the petitioner has no
right for his continuance of his service since his
exercised clerical Assistant job norms in the
respondents company will not ensure him any right to
claim for regularization of his service. Further even on
examining his past service said to have been rendered
in the respondents company in terms of B.P(P&G- per
Ms No 36 Dated 18.05.1997, it is observed that the
above Board proceedings are not applicable for
considering his case for appointment and speaking
orders have been issued to the Petitioner vide Memo
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No.DEE(opn)/Wgl/JAO/Adm/SA1/D.No.1752, dated
06.01.2014 narrating the causes for not continuing him
in service.
4. In reply to Para 3 it is submitted that being re-
engaged the petitioner as Casual Helping
Assistant and paying the wages Rs.350.00 per day
for 26 days in a month. There is no such type of
posts are existing in this company, and also his
services are not required in this office, though
Paying wages Rs.350.00 per day as per the
Hon'ble court orders only without taking any work
from him. Therefore, the petitioner's request for
payment of skilled wages not applicable as he was
re-engaged casual helping assistant.
5. In reply to Para 4 of the affidavit it is submitted
that, the petitioner was re-instated as casual
helping assistant as per the Hon'ble Court orders
only, even though such type of posts not existing
and paying the above amounts to the petitioner,
as such the petitioner is not entitled for the relief
as clamed to dismiss the WP M.P No.54040/2017
11. Additional counter affidavit filed by respondent
No.3 on 24.10.2019, in particular, paras 4, 5, 6 and 7,
reads as under:
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"4. It is further submitted that on 01.10.2019 it was
brought to the notice of the Hon'ble Court that presently
the petitioner is working as daily wages job clerk in the
office of Assistant Divisional Engineer/D/Mulugu Road in
the control of this respondent and there is no equivalent
post in the Warangal Division. Thereafter this Hon'ble
Court directed to furnish the details of sanctioned cadre
strength of ministerial staff in the office of Divisional
Engineer, Warangal and also to state whether any
vacancy is available in the ministerial staff category, by
filling an affidavit.
5. It is further submitted that sanctioned cadre
strength of ministerial staff equivalent to his present
post in the office of Divisional Engineer Electrical
Operation, Warangal is as under:
S.No. Designation Posts Filled Vacancy
Subordinate
6. It is further submitted that as stated supra
total sanctioned cadre strength of ministerial staff
is 9 which has already been filled up and there is
no vacancy as on today.
7. It is submitted that the petitioner is being
continued as Casual Helping Assistant in terms of
the orders of this Hon'ble Court.
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DISCUSSION AND CONCLUSION
12. The specific case of the petitioner is that the petitioner
was working continuously since 1991, but in the award
passed in I.D No.81 of 1994, it was directed to take the
petitioner as fresh recruit and to continue the petitioner as
casually helping assistant dated 12.07.1999 and since then,
the petitioner has been continuing in the respondent office
without any negative remarks with utmost satisfaction of the
respondent authorities. The petitioner's further case is that
one Md.Quayyam, who worked as typist on daily wage in the
respondent organisation filed W.P.No.11696 of 2004 before
the High Court and the said writ petition was allowed and
thereafter, the respondents had regularized his services, but
however, the petitioner has not been regularised and the
petitioner's request for regularisation made vide petitioner's
representation dated 18.04.2012 had been unilaterally
rejected vide the impugned Memo No.DEE/OP/WGL/JAO/
Adm/SAI/D.No.1752, dated 06.01.2014.
13. The Apex Court in a judgment reported in (2017)
1 Supreme Court Cases 148, in State of Punjab and
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others vs Jagjit Singh and others at Paras 54 and its
sub-paras (1)(2)(3), of the said judgment observed as
under:
"54 "The Full Bench of the High Court, while
adjudicating upon the above controversy had
concluded, that temporary employees were not
entitled to the minimum of the regular pay-scale,
merely for the reason, that the activities carried on by
daily-wagers and regular employees were similar. The
full bench however, made two exceptions. Temporary
employees, who fell in either of the two exceptions,
were held entitled to wages at the minimum of the
pay-scale drawn by regular employees. The exceptions
recorded by the full bench of the High Court in the
impugned judgment are extracted hereunder:-
"(1) A daily wager, ad hoc or contractual
appointee against the regular sanctioned posts,
if appointed after undergoing a selection process
based upon fairness and equality of opportunity
to all other eligible candidates, shall be entitled
to minimum of the regular pay scale from the
date of engagement.
(2) But if daily wagers, ad hoc or contractual
appointees are not appointed against regular
sanctioned posts and their services are availed
continuously, with notional breaks, by the State
Government or its instrumentalities for a
sufficient long period i.e. for 10 years, such daily
wagers, ad hoc or contractual appointees shall
be entitled to minimum of the regular pay scale
without any allowances on the assumption that
work of perennial nature is available and having
worked for such long period of time, an equitable
right is created in such category of persons.
Their claim for regularization, if any, may have to
be considered separately in terms of legally
permissible scheme.
(3) In the event, a claim is made for minimum
pay scale after more than three years and two
months of completion of 10 years of continuous
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working, a daily wager, ad hoc or contractual
employee shall be entitled to arrears for a period
of three years and two months."
14. The judgment of the Apex Court reported in
2010(9) SCC 247 between: State of Karnataka and
others v M.L.Kesari and others, in particular, paras 4 to
9 reads as under:
4. The decision in State of Karnataka v. Umadevi was
rendered on 10.4.2006 (reported in 2006 (4) SCC 1).
In that case, a Constitution Bench of this Court held
that appointments made without following the due
process or the rules relating to appointment did not
confer any right on the appointees and courts cannot
direct their absorption, regularization or re-
engagement nor make their service permanent, and
the High Court in exercise of jurisdiction under Article
226 of the Constitution should not ordinarily issue
directions for absorption, regularization, or permanent
continuance unless the recruitment had been done in a
regular manner, in terms of the constitutional scheme;
and that the courts must be careful in ensuring that
they do not interfere unduly with the economic
arrangement of its affairs by the State or its
instrumentalities, nor lend themselves to be
instruments to facilitate the bypassing of the
constitutional and statutory mandates. This Court
further held that a temporary, contractual, casual or a
daily-wage employee does not have a legal right to be
made permanent unless he had been appointed in
terms of the relevant rules or in adherence of Articles
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14 and 16 of the Constitution. This Court however
made one exception to the above position and the
same is extracted below :
"53. One aspect needs to be clarified. There may
be cases where irregular appointments (not
illegal appointments) as explained in S.V.
Narayanappa [1967 (1) SCR 128], R.N.
Nanjundappa [1972 (1) SCC 409] and B.N.
Nagarajan [1979 (4) SCC 507] and referred to in
para 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 the 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 abovereferred 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 the 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
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must be set in motion within six months from
this date. ....
"5. It is evident from the above that there is an
exception to the general principles against
`regularization' enunciated in Umadevi, if the
following conditions are fulfilled :
(i) The employee concerned should have worked for 10
years or more in duly sanctioned post without the
benefit or protection of the interim order of any court
or tribunal. In other words, the State Government or
its instrumentality should have employed the
employee and continued him in service voluntarily and
continuously for more than ten years.
(ii) The appointment of such employee should not be
illegal, even if irregular. Where the appointments are
not made or continued against sanctioned posts or
where the persons appointed do not possess the
prescribed minimum qualifications, the appointments
will be considered to be illegal. But where the person
employed possessed the prescribed qualifications and
was working against sanctioned posts, but had been
selected without undergoing the process of open
competitive selection, such appointments are
considered to be irregular.
(iii) Umadevi casts a duty upon the concerned
Government or instrumentality, to take steps to
regularize the services of those irregularly appointed
employees who had served for more than ten years
without the benefit or protection of any interim orders
of courts or tribunals, as a one-time measure.
Umadevi, directed that such one-time measure must
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be set in motion within six months from the date of its
decision (rendered on 10.4.2006).
6. The term `one-time measure' has to be understood
in its proper perspective. This would normally mean
that after the decision in Umadevi, each department or
each instrumentality should undertake a one-time
exercise and prepare a list of all casual, daily-wage or
ad hoc employees who have been working for more
than ten years without the intervention of courts and
tribunals and subject them to a process verification as
to whether they are working against vacant posts and
possess the requisite qualification for the post and if
so, regularize their services.
7. At the end of six months from the date of decision in
Umadevi, cases of several daily-wage/ad-hoc/casual
employees were still pending before Courts.
Consequently, several departments and
instrumentalities did not commence the one-time
regularization process. On the other hand, some
Government departments or instrumentalities
undertook the one-time exercise excluding several
employees from consideration either on the ground
that their cases were pending in courts or due to sheer
oversight. In such circumstances, the employees who
were entitled to be considered in terms of Para 53 of
the decision in Umadevi, will not lose their right to be
considered for regularization, merely because the one-
time exercise was completed without considering their
cases, or because the six month period mentioned in
para 53 of Umadevi has expired. The one-time exercise
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should consider all daily-wage/adhoc/those
employees who had put in 10 years of continuous
service as on 10.4.2006 without availing the protection
of any interim orders of courts or tribunals. If any
employer had held the one-time exercise in terms of
para 53 of Umadevi, but did not consider the cases of
some employees who were entitled to the benefit of
para 53 of Umadevi, the employer concerned should
consider their cases also, as a continuation of the one-
time exercise. The one time exercise will be concluded
only when all the employees who are entitled to be
considered in terms of Para 53 of Umadevi, are so
considered.
8. The object behind the said direction in para 53 of
Umadevi is two- fold. First is to ensure that those who
have put in more than ten years of continuous service
without the protection of any interim orders of courts
or tribunals, before the date of decision in Umadevi
was rendered, are considered for regularization in
view of their long service. Second is to ensure that the
departments/instrumentalities do not perpetuate the
practice of employing persons on daily-wage/ad-
hoc/casual for long periods and then periodically
regularize them on the ground that they have served
for more than ten years, thereby defeating the
constitutional or statutory provisions relating to
recruitment and appointment. The true effect of the
direction is that all persons who have worked for more
than ten years as on 10.4.2006 (the date of decision in
Umadevi) without the protection of any interim order
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of any court or tribunal, in vacant posts, possessing
the requisite qualification, are entitled to be
considered for regularization. The fact that the
employer has not undertaken such exercise of
regularization within six months of the decision in
Umadevi or that such exercise was undertaken only in
regard to a limited few, will not disentitle such
employees, the right to be considered for
regularization in terms of the above directions in
Umadevi as a one-time measure.
9. These appeals have been pending for more than four
years after the decision in Umadevi. The Appellant
(Zila Panchayat, Gadag) has not considered the cases
of respondents of regularization within six months of
the decision in Umadevi or thereafter.
10. The Division Bench of the High Court has directed
that the cases of respondents should be considered in
accordance with law. The only further direction that
needs be given, in view of Umadevi, is that the Zila
Panchayat, Gadag should now undertake an exercise
within six months, a general one- time regularization
exercise, to find out whether there are any daily
wage/casual/ad-hoc employees serving the Zila
Panchayat and if so whether such employees
(including the respondents) fulfill the requirements
mentioned in para 53 of Umadevi. If they fulfill them,
their services have to be regularized. If such an
exercise has already been undertaken by ignoring or
omitting the cases of respondents 1 to 3 because of
the pendency of these cases, then their cases shall
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have to be considered in continuation of the said one
time exercise within three months. It is needless to
say that if the respondents do not fulfill the
requirements of Para 53 of Umadevi, their services
need not be regularised. If the employees who have
completed ten years service do not possess the
educational qualifications prescribed for the post, at
the time of their appointment, they may be considered
for regularization in suitable lower posts. This appeal
is disposed of accordingly.
15. In the judgement of the Apex Court in Nihal Singh
and others v. State of Punjab reported in (2013) 14 SCC
65, the Supreme Court considered the case of absorption of
Special Police Officers appointed by the State, whose wages
were paid by Banks at whose disposal their services were
made available. It held that the mere fact that wages were
paid by the Bank did not render the appellants 'employees' of
those Banks since the appointment was made by the State
and disciplinary control vested with the State. It held that the
creation of a cadre or sanctioning of posts for a cadre is a
matter exclusively within the authority of the State, but if the
State did not choose to create a cadre but chose to make
appointments of persons creating contractual relationship, its
action is arbitrary. It also refused to accept the defence
WP_4643_2014
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that there were no sanctioned posts and so there was
justification for the State to utilise services of large
number of people like the appellants for decades. It
held that "sanctioned posts do not fall from heaven"
and that the State has to create them by a conscious
choice on the basis of some rational assessment of
need. Referring to Umadevi, it held that the appellants
before them were not arbitrarily chosen, their initial
appointment was not an 'irregular' appointment as it
had been made in accordance with the statutory
procedure prescribed under the Police Act, 1861, and
the State cannot be heard to say that they are not
entitled to be absorbed into the services of the State on
permanent basis as, according to it, their appointments
were purely temporary and not against any sanctioned
posts created by the State. It was held that the
judgment in Umadevi cannot become a licence for
exploitation by the State and its instrumentalities and
neither the Government of Punjab nor those public
sector Banks can continue such a practice inconsistent
WP_4643_2014
26 SN,J
with their obligation to function in accordance with the
Constitution.
16. The judgment of the Apex Court reported in 2015
SCC Online SC 1797 between B.Srinivalusu and others v
Nellore Municipal Corporation Rep.by its Commissioner,
Nellore District, Andhra Pradesh and others, in
particular paras 7 and 8 reads as under:
(7) We find it difficult to accept the reasoning
adopted by the High Court. The right of the appellants
to seek regularization flows from the G.O. No.212
dated 22.4.1994. The appellant have been in service of
the first respondent not only prior to the issuance of
the said G.O. but even subsequent to the issue of G.O.
till today. The respondent Municipality being a
statutory body is obliged by the G.O. 212(supra).
Inspite of the above mentioned G.O. the respondents
kept quite for almost 20 years without regularising the
service of the appellants and continued to extract work
from the appellants.
8. In the circumstances, refusing the benefit of the
above mentioned G.O. on the ground that the
appellants approached the Tribunal belatedly, in our
opinion, is not justified. In the circumstances, the
appeal is allowed modifying the order under appeal by
directing that the appellants' services be regularised
with effect from the date of their completing their five
year continuous service as was laid down by this Court
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27 SN,J
in District Collector/Chairperson & Others vs. M.L.
Singh & Ors. 2009 (8) SCC 480.
17. In Amarkant Rai v State of Bihar reported (2015)
8 SCC 265, the Supreme Court held that 'The objective
behind the exception carved out in this case was to
permit regularisation of such appointment, which are
irregular but not illegal, and to ensure appointments,
which are irregular but not illegal, and to ensure
security of employment of those persons who had
served the State Government and their
instrumentalities for more than ten years". In that
case, employee was working for 29 years. This
decision approves earlier view expressed in M.L.Kesari
extracted above.
18. In State of Jarkhand v Kamal Prasad reported in
(2014) 7 SCC 223, similar view was taken by the
Supreme Court and it was held as follows :
"41.... In view of the categorical finding of fact on the
relevant contentious issue that the respondent
employees have continued in their service for more
than 10 years continuously therefore, the legal
principle laid down by this Court in Umadevi case
(State of Karnataka v Umadevi (2006) 4 SCC 1 : 2006
SCC (L&S) 73) at para 53 squarely applies to the
WP_4643_2014
28 SN,J
present cases. The Division Bench of the High Court
has rightly held that the respondent employees are
entitled for the relief, the same cannot be interfered
with by this Court."
19. A bare perusal of the observations of the Apex
Court in various judgments referred to and extracted
above clearly indicate that the claim of the petitioner
for regularization has to be necessarily considered in
view of the fact that the concept of one time measure
as explained at paras 6 to 10 of the Judgment of the
Apex Court in State of Karnataka v M.L.Kesari which in
clear explicit terms said that one time exercise will be
concluded only when all the employees who are
entitled to be considered in terms of para 53 of Uma
Devi are so considered and the mandate and object in
Uma Devi's case as explained in para 53 of the said
judgment, to do periodic regular recruitment of
qualified personnel for vacant posts and regularise the
services of those engaged for more than 10 years, as a
one time measure and the clarification of Uma Devi's
case and the observation as held at para '5' of the
decision of the Supreme Court in State of Karnataka
WP_4643_2014
29 SN,J
and Others vs. M.L.Kesari and others that Uma Devi
casts a duty upon the concerned Government and
Instrumentality to take steps to regularize the services
of those irregularly appointed employees who had
served for more than ten years without the benefit or
protection of any interim orders of Courts or Tribunals
as a one-time measure has not been diluted and the
observations in para 54(2) of the Judgement of the
Apex Court in State of Punjab and Others v. Jagjit Singh
still hold good, which has clearly said that a legally
permissible scheme has to be framed in respect of daily
wagers, adhoc or contractual appointees who are not
appointed against sanctioned posts, but their services
are availed continuously with notional breaks by the
State Government or its instrumentality for a sufficient
long period i.e., for ten years.
20. This Court is of the firm opinion that the 3rd
respondent plea and also the reasons stated in para VII
of the impugned memo No. DEE/OP/WGL/JAO/Adm
/SAI/D.No.1752, dated 06.01.2014, that the
petitioners request for regularization of services in the
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30 SN,J
above non-cadre post is not maintainable as per the
existing rules and the scheme of regularization is not
tenable. This Court opines that the impugned order
dated 06.01.2014 of the 3rd respondent cannot be
sustained as per the observations of the various Apex
Court judgments referred to and extracted above, in
view of the simple fact that the petitioner admittedly
had been working with the respondent organisation
from 2001 as observed in the last para of the order of
the High Court dated 15.02.2012 passed in
W.P.No.8712 of 2001 i.e for the last more than two
decades. The 3rd respondent cannot deny the relief of
regularization to the petitioner as per para 53 of the
decision in Umadevi's case, which permits one time
exercise of regularization to be done for personal
employed on temporary basis/daily wages etc. who
have rendered continuous service for more than ten
years.
21. This Court opines that the 3rd respondent herein
cannot take the service of the petitioner for years
together without regularizing his services and indulge
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31 SN,J
in such a practice inconsistent with their obligation to
function in accordance with the constitution as
observed by the Apex Court in Nihal Singh and others v
State of Punjab which clearly held that 'sanctioned
posts do not fall from heaven' and the state has to
create them by a conscious choice on the basis of some
rational assessment of the need.
22. Taking into consideration the above referred facts
and circumstances and in the light of the observations
of the Apex Court in various judgments referred to and
discussed above, the writ petition is allowed duly
setting aside the Memo No. DEE/OP/WGL/JAO/Adm/
SAI/D.No.1752, dated 06.01.2014 of the 3rd respondent
and the respondents are directed to reconsider the case
of the petitioner for regularization of the services of the
petitioner in any suitable post by granting regular scale
of pay attached to the said post duly taking into
consideration the fact that the petitioner had been
serving the respondent organisation continuously since
2001 till as on date duly considering the law laid down
by the Apex Court in various judgments (referred to
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32 SN,J
and extracted above) as was extended to the petitioner
in W..No.11696 of 2004 by the respondents herein vide
orders of the High Court dated 17.08.2010 and pass
appropriate orders in accordance to law within a period
of two months from the date of receipt of the copy of
the order and duly communicate the decision to the
petitioner. However, there shall be no order as to
costs.
Miscellaneous petitions, if any, pending shall stand
dismissed.
_________________
SUREPALLI NANDA, J
Date: 25.04.2022
Note: L.R. copy to be marked
b/o
kvrm
