Telangana High Court

R. Kamalamma vs The State Oftelangana on 18 December, 2023

       HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

               WRIT PETITION (TR) NO.3778 OF 2017

ORDER:

This writ petition is filed seeking to grant the following relief:

" ... direction by calling for the relating to the proceedings of 1st respondent bearing Memo No.7740/Ser.I/A2/2022 dated 05.08.2023 and proceedings of 3rd respondent bearing Memo No.AB/E2/1020/vol.1/14-15/483M, dated 09.09.2014 and proceedings of 4th respondent bearing No.AB/C.S./46T, dated 27.07.2014 and set aside the same and consequently, direct the respondents to regularize the services of the petitioner as Sweeper or any suitable post in Last Grade Service..."

2. The brief facts leading to filing of the present writ petition

are as under:

2.1. Petitioner was initially appointed as part-time Sweeper

having sponsored by the District Employment Officer, Nalgonda by

the 3rd respondent dated 08.04.1980 in Irrigation Department and

posted at N.S.Canals Circle, Miryalaguda. The Government issued

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

dated 22.04.1994 directing regularization and absorption of daily

wages/NRMS or consolidated payers, who have completed five

years of service as on 25.11.1993. Subsequently, the Government

also issued G.O.(P) NO.112 Finance and Planning (FW.PC.III)

Department 23.07.1997 directing regularization and absorption of

part-time employees also.

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2.2. Though the petitioner is entitled for regularization and

absorption of her services in view of her length of service,

respondents have not regularized her services. In fact, petitioner

along with others were converted into full-time contingent

employees by proceedings of the 2nd respondent dated 19.07.1997.

Petitioner filed O.A.No.6842 of 1994 before the A.P.Administrative

Tribunal at Hyderabad for regularization of services and the same

was disposed of on 23.09.1994 directing the respondents to verify

and pass orders for regularization of services of the petitioner as

per G.O.(P).No.112 dated 23.07.1997. However, her services were

not regularized on the ground that there were no sanctioned posts.

2.3. It is contended that 2nd respondent submitted a memo to the

3rd respondent for fresh proposal for sanctioning of posts of regular

Sweepers. The 3rd respondent sent the proposal to the 2nd

respondent through letter dated 28.02.2005 requesting the

Government for sanction of posts of regular sweepers. However,

the services of petitioner were not regularized, in spite of her

eligibility, which necessitated the petitioner to approach the

Hon'ble APAT vide O.A.No.4824 of 2005, and the APAT disposed of

the said O.A., by order dated 09.09.2005. Thereafter, the 3rd

respondent sent a letter dated 20.10.2009 to the 2nd respondent

recommending for regularization of the services of petitioner and in

turn, the 2nd respondent recommended the case of the petitioner LNA,J

for regularization of her services by sanctioning the post of

Sweeper on 07.11.2009. However, till today the services of the

petitioner were neither regularized nor absorbed as regular post

Sweeper though she has completed 35 years of service. Therefore,

the action of the respondents in not absorbing the petitioner into

regular post of Sweeper by regularizing her services is illegal,

arbitrary and violative of Articles 14, 16 & 21 of the Constitution of

India.

3. Respondents filed the counter and did not dispute

appointment of the petitioner as part-time sweeper on 08.04.1980.

It is contended that the petitioner submitted representation dated

07.07.2014 to the 3rd respondent requesting for regularization of

services in terms of G.O.Ms.No.112 dated 23.07.1997 and as per

the orders of APAT in O.A.No.4824 of 2005 with M.A.No.2539 of

2005 dated 09.09.2009. The respondents issued speaking orders

vide Memo No.AB/CS/46T dated 27.07.2014 stating the petitioner

is not entitled for regularization of her services.

3.1. According to G.O.Ms.No.212 dated 22.04.1994 and

G.O.Ms.No.112 dated 23.07.1997, the contingent establishment,

having five years of service as on 25.11.1993 without any break,

having requisite qualification and availability of sanction posts, are

eligible for regularization of services. It is contended that in 3rd LNA,J

respondent office, there is no sanctioned post for regularization of

services and the wages of the part-time sweepers are being paid

from office contingency. Though the respondents requested the

Government to sanction last grade posts to enable them to

regularize the services of the part-time employees, but no sanction

orders were received.

3.2. Further, according to Act 2 of 1994, the creation of new

posts has been ceased. For regularization of services in the

category of watchman post, petitioner is not having requisite

qualification and other conditions and therefore, her services could

not be regularized. In the above circumstances, the Government

issued Memo No.33799/Ser/Vol.3/2005-7, dated 27.10.2010

rejecting the claim of the petitioner for regularization of her

services and the said fact was also communicated to her vide Office

Memo No.AB/CS/68M, dated 25.01.2012. It is further contended

that in spite of issuing speaking orders rejecting the request of

petitioner for regularization of her services by the Government, she

has habituated to make representation and filing number of OAs

before the Hon'ble APAT, Hyderabad, even though the OAs have

been disposed of. It is finally contended that there is no provision

to regularize the services of petitioner as regular sweeper as the

petitioner is being paid wages as per the rates fixed by the

Government from time to time for attending the sweeping work of LNA,J

about 4 hours per day as part-time contingent sweeper and finally

prayed to dismiss the writ petition.

4. The point for consideration is whether the petitioner is

entitled for regularization of her services as Sweeper ?

5. Heard learned counsel Sri Gopal Rao for the petitioner

and the learned Government Pleader for Services.

Consideration:

6. There is no dispute about the appointment of the petitioner

on 08.04.1980 as sweeper through Employment exchange in

Irrigation Department and her long service as sweeper in the said

department. The Hon'ble APAT vide order dated 09.09.2009 in

O.A.No.4824 of 2005 with MA No.2539 of 2005 ordered that

petitioner's case be considered for regularization in the cadre of

Sweeper as per the G.O.Ms.No.212, dated 22.04.1994 and

G.O.Ms.No.112 dated 23.07.1997.

7. Accordingly, the 3rd respondent submitted representation to

the Government for creation of post of sweeper for regularization of

service of the petitioner in the said post since there are no sanction

posts of sweepers in 3rd respondent office. However, the

Government did not sanction the posts since there was a

prohibition of creation of new posts as per the Act 2 of 1994. To LNA,J

consider the request of the petitioner to regularize/absorb her

services in the category of Watchman, she should have requisite

qualification and fulfil the conditions as laid down in

G.O.Ms.No.212 dated 22.04.1994 and according to respondents,

the petitioner did not have qualifications.

8. It is contended by the counsel for petitioner that 3rd

respondent submitted representation to the Government for

creation of post of sweeper, which means continuance of such

posts are necessary and have to be sanctioned and they cannot be

denied absorption on the ground of posts are not sanctioned.

9. In State of Karnataka v. Uma Devi 1, the Hon'ble

Supreme Court held as under:

"Any public employment has to be in terms of the constitutional scheme and a sovereign Government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. .........,

"The Union of India, the State Governments and their instrumentalities should take steps for regularization, as a one-time measure, the services of such irregularly appointed persons who have worked for ten (10) years or more in duly sanctioned posts but not under cover of orders of Courts or of Tribunals."

10. In Nihal Singh and others v. State of Punjab 2, the

Hon'ble Supreme Court refused to accept the defence that there

were no sanctioned posts and so there was justification for the

(2006) 4 SCC 1

(2013) 14 SCC 65 LNA,J

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 Uma Devi (supra), 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 Uma Devi 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 consistent with their obligation to

function in accordance with the Constitution.

11. In State of Karnataka and others v M.L.Kesari and

others 3, the Apex Court held as under:

2010(9) SCC 247 LNA,J

"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 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 above referred to and in the light of this judgment. In that context, the Union of LNA,J

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 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 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 LNA,J

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."

12. The issue as to whether one is entitled for regularisation

on completion of five years was considered by the Hon'ble Apex

Court in District Collector v. M.L. Singh 4, wherein it was held

that at the moment an employee completes five years of service,

it would be sufficient for regularization of his services.

13. In the light of above decisions of Hon'ble Apex Court,

particularly, the observation in Nihal Singh (supra) 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, the respondents cannot deny

regularization of services of petitioner on the ground that there

are no sanctioned posts. Admittedly, the petitioner was

appointed through due process and having been sponsored by

the District Employment Officer, Nalgonda on 08.04.1980. The

petitioner had rendered service for more than 35 years as on the

date of filing of the O.P.No.2879 of 2015 in the year 2015 and

she was already retired from service.

1998 (2) ALT 5 LNA,J

14. In the light of above, the impugned Memo dated

27.07.2014 and Memo dated 09.09.2014 are unsustainable.

The petitioner, through her application dated 07.07.2014, had

requested for regularization of her services by creating

supernumerary post if required and/or in alternate to appoint

her as watchman. Therefore, the contention of the respondents

that petitioner did not have qualification for absorbing as

watchman is also untenable.

Conclusion:

15. In the light of above discussion, legal position and

peculiar facts and circumstances of the case, the impugned

Memo dated 27.07.2014, Memo dated 09.09.2014 and Memo

dated 05.08.2023, are set aside and the respondents are

directed to consider the case of the petitioner for regularization

with notional benefits in the light of her long service and pass a

reasoned order in accordance with law within a period of eight

weeks from the date of receipt of copy of this order.