Telangana High Court
B. Karunakar Reddy vs State Of Telangana on 20 January, 2023
Bench: Namavarapu Rajeshwar Rao
1 RRN,J
WP No.19927 of 2019
*THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+W.P. No.19927 OF 2019
% 20-01-2023
# B. Karunakar Reddy & others
....petitioners
Vs.
$ State of Telangana, rep. by its Principal Secretary, Tourism Department,
Telangana Secretariat , Hyderabad and another
.... Respondents
!Counsel for the petitioner : J. Sudheer
Counsel for the Respondents : K. Udaya Sri, G.P for Services-I
<Gist :
>Head Note:
? Cases referred:
1. (2006) 4 SCC 1
2. Civil Appeal No. 105 of 2005 decided on 07.08.2013
2 RRN,J
WP No.19927 of 2019
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
WP. No.19927 OF 2019
Between:
B. Karunakar Reddy & others
....petitioners
Vs.
State of Telangana, rep. by its Principal Secretary, Tourism Department,
Telangana Secretariat , Hyderabad and another
.... Respondents
ORDER PRONOUNCED ON: 20.01.2023
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
3 RRN,J
WP No.19927 of 2019
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No. 19927 OF 2019
ORDER:
This Writ Petition is filed for the following relief:
"...to (a) call for the records pertaining to the
proceedings dt.07.01.2018 issued by the 2nd
respondent Corporation and set aside as unjust
and illegal,
(b) Consequently, direct the respondents to
regularize the services of the petitioners as HMV
drivers from the date of their eligibility /
appointment with all consequential benefits i.e.
fixation of salary and all other service benefits; by
issuance of Writ of Mandamus and pass ..."
2. It has been contended by the petitioners that the
present Writ Petition is the second round of litigation between the
parties and the same is preferred aggrieved by the proceedings
dated 07.01.2018 issued by the 2nd respondent Corporation
through which their claim for regularization of services as Heavy
Motor Vehicle Drivers was rejected under compliance of the
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WP No.19927 of 2019
orders of this Court dt.15.11.2018 in Writ Petition 24198 of 2010
(earlier round of litigation).
2.1 It is further contended by the petitioners that pursuant
to the notification issued by the 2nd respondent Corporation in
December 2004 to fill up various posts on a contract basis, one of
such vacancies in the post of the heavy motor vehicle driver, was
also notified and 70 vacancies were available. The qualification
prescribed in the notification was that one must possess a
driving license to drive a heavy passenger motor vehicle or heavy
goods vehicle and must have 5 years of experience. The
petitioners have applied for the same and were employed on
02.04.2005 on a contract basis by the 2nd respondent
Corporation with a consolidated salary of Rs.7,060/-per month.
2.2 It is further contended by the petitioners that before
the disposal of the earlier Writ Petition, neither the Government
nor the Corporation took any steps in increasing the cadre
strength despite the 2nd respondent issuing a letter to the 1st
respondent with a proposal to approve cadre strength vide Lr.No;
APTDC/Admn/P1/61/2008 dt.21.12.2008 and therefore,
petitioners were allowed to function on contract basis.
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WP No.19927 of 2019
2.3. It is further contended by the petitioners that the 1st
respondent vide G.O. Rt.No.723 dt.05.08.2011 constituted a
three-member committee to formulate a scheme for the benefit of
contract employees, especially for regularization. On 05.04.2012,
an Implementation report was submitted vide Assurance No.328
that the decision of the Committee is under process. However,
no action was taken in any manner. Subsequently, in the year
2013, the 1st respondent vide G.O.Rt.No.971 dt.10.12.2013
constituted another committee with five members with regard to
regularization of the petitioners and similarly placed persons and
sought a detailed report with recommendations to be given to the
Government within a period of three months. Unfortunately,
nothing was done in a positive direction.
2.4. It is further contended by the petitioners that the
petitioners earlier filed W.P.No. 24198 of 2010 before this Court
seeking directions to be given to the 2nd respondent Corporation
to consider the petitioners' representations in regularising their
services as they have put in more than 5 years of service for the
Corporation. This Court vide its Order dt.15.11.2018 directed the
2nd respondent Corporation to consider the case of the petitioners
for regularization of their services in view of the decision of the
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WP No.19927 of 2019
Apex Court in State of Karnataka vs Uma Devi1 and the same
was complied with by the 2nd respondent Corporation vide
proceedings dt.07.01.2018 by rejecting the request of the
petitioners by not regularising their services. Hence, the present
Writ Petition.
3. Respondents filed a counter by contending that the
reasons assigned in the impugned proceedings dt.07.01.2018 are
justified in the circumstances of the case. The decision of the
Hon'ble Supreme Court in Uma Devi's case relates to directives to
take steps for the regularisation of eligible employees as a one-
time measure i.e the services of irregularly appointed who have
worked for 10 years or more in duly sanctioned posts but not
under the cover of orders of the Courts or Tribunals, and that
admittedly the petitioners have not put in 10 years of service as
on the date of the above judgment, as such, the judgment would
not be applicable in favour of the petitioners.
3.1 It is further contended by the respondents that the
petitioners have no right to seek the formulation of a scheme for
absorption and not framing a scheme for absorption cannot be a
ground to invoke the jurisdiction of this Court under Art. 226 of
(2006) 4 SCC 1
7 RRN,J
WP No.19927 of 2019
the Constitution of India. Further, in the absence of any
sanctioned posts, no steps could be taken for the regularisation
of services of contract/outsourcing employees and that the
creation of posts is a prerogative of the employer. Also, merely
that the petitioners are working, they are not entitled to seek
relief as sought. Accordingly, prayed to dismiss the Writ Petition.
4. Heard Sri J. Sudheer, learned counsel for petitioners, and
learned Government Pleader for Services-I appearing for the 1st
respondent, and Smt. K. Udaya Sri, learned counsel appearing
for 2nd respondent. Perused the record.
5. Learned counsel for the petitioners submitted that the
2nd respondent Corporation rejection of the representation of the
petitioners with reasons that the petitioners were not employed
against any sanctioned posts of the Corporation and that the
case of the petitioners does not fall under the decision rendered
by the Hon'ble Apex Court in Uma Devi's case is unjust and
illegal.
5.1. Learned counsel for the petitioners further submitted
that the 2nd respondent Corporation has disobeyed the orders of
this Court in the earlier Writ Petition even though the learned
8 RRN,J
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Judge's intention and interpretation of the facts of the case was
ultimately to see that the petitioners' service is regularised. He
also contended that when there is work/workload and when the
persons have been recruited through notification and after taking
work from the contract employees for several years, they cannot
be thrown out and their services have to be regularized.
5.2. It is vehemently argued by the learned counsel for
petitioners that failure on the part of the Authorities to create the
posts, cannot be the reason to say that there are no posts when
there are about 25 regular cadre strength and all the posts are
vacant in as much as the regular drivers were already promoted
to higher posts and more so, there is enough work load and
having regard to the continuity of work, by no stretch of the
imagination, it can be held to be a case of no requirement/ no
post.
5.3 It has further been contended by the learned counsel
for the petitioners that ever since the petitioners were taken into
service, they had been continuously working as drivers without
any break for the past 15 years or more, but the 2nd respondent
stated in the impugned order that the petitioners were taken only
on need-basis to meet the exigencies at the relevant point of time
9 RRN,J
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against 70 vacancies. Despite there being promises to formulate
a scheme, the 2nd respondent Corporation has not cared to bring
forth any such scheme and has not given any reasons in the
impugned order about such inaction. He further contended that
even though committees were formed through the passing of
Government Orders and proposals also being sent to the
government way back in the year 2008 to review and increase
cadre strength, no decision either in the positives or in the
negatives was taken and the matter was kept aside which cannot
be justified under any explanation.
6. Learned counsel for the petitioners brought to the
notice of this Court the judgment of the Hon'ble Apex Court in
Nihal Singh Vs State of Punjab2, and reiterated the views given
by this Court in the earlier round of litigation relying on the
judgment delivered by the Apex Court in Uma Devi's case
(supra).
7. On the other hand, learned counsel for respondents
vehemently argued that the reasons assigned in the impugned
proceedings dt.07.01.2018 are justified in the circumstances of
the case, and that the decision of the Hon'ble Supreme Court in
Civil Appeal No. 105 of 2005 decided on 07.08.2013
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WP No.19927 of 2019
Uma Devi's case relates to directives to take steps for
regularisation of eligible employees as a onetime measure i.e the
services of irregularly appointed who have worked for 10 years or
more in duly sanctioned posts but not under the cover of orders
of the Courts or Tribunals, and that admittedly the petitioners
have not put in 10 years of service as on the date of the above
judgment, as such, the judgment would not be applicable in
favour of the petitioners. Further, in the absence of any
sanctioned posts, no steps could be taken for the regularisation
of services of contract employees and the creation of posts is a
prerogative of the employer and merely the petitioners are
working, they are not entitled to seek relief as sought for.
Accordingly, prayed to dismiss the Writ Petition.
8. This case involves a question whether the services of
the petitioners employed by the 2nd respondent Corporation on a
contract basis are entitled to be regularised in light of the
decisions of the Hon'ble Apex Court and the stand of the
respondents in the impugned proceedings rejecting such
regularization on the ground that the petitioners were employed
only on a temporary basis and not against any sanctioned posts.
11 RRN,J
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9. A perusal of the record would reveal that the
petitioners were appointed by the 2nd respondent Corporation in
the year 2005 on a contract basis when there were 70 vacancies,
and a panel of 136 drivers was prepared for the purpose of
employment on a contract basis. It is also an undisputed fact
that petitioners have worked by shedding sweat without break
and the petitioners have been working with the 2nd respondent
Corporation for the past 17 years.
10. It is worthwhile to mention that upon perusing the
material on record and contents of the petition and the order in
the W.P.No. 24198 of 2010 of this Court being the earlier round
of litigation between these parties, it is clear that the A.P.Tourism
Development Corporation Contract Employees Union, AITUC,
went on strike for a period of 5 days with demands that the 2nd
respondent corporation regularises their services against the
vacancies, equal pay for equal work, other benefits etc., and the
2nd respondent Corporation made promises to the employees
working on a contract basis that they would act on the demands
and with respect to the regularisation, proposals were already
sent to the Government and it is under process.
12 RRN,J
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11. The 2nd respondent Corporation on 21.12.2008
submitted proposals to the 1st respondent to review and act on
the cadre strength of the 2nd Corporation but it is very clear that
the 1st respondent failed to take any decision despite constituting
committees twice in the years 2011 and 2013.
12. At this juncture, it is necessary to look into
G.O.Rt.No.723, Youth Advancement, Tourism & Culture (T)
Department dt.05.08.2011. The same is reproduced hereunder:
13 RRN,J
WP No.19927 of 2019
As seen from the above, the Government constituted a
three-member Committee to resolve the issue of the employees
vis-ā-vis regularisation. It is unfortunate that the Committee
failed to give any report to the benefit of the employees.
14 RRN,J
WP No.19927 of 2019
13. We would now peruse G.O.Rt.No.971, Youth Advancement,
Tourism & Culture (T) Department dt.10.12.2013. The
Government Order is reproduced hereunder:
As seen from the above, upon the failure of the 1st
Committee in coming to any decision regarding the issue of the
contractual employees, the Government constituted another
Committee with five members to resolve the issue of the
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WP No.19927 of 2019
employees vis-ā-vis regularisation. The second Committee has
also miserably failed to finalise the issue and do justice to the
contractual employees who shed their blood and sweat
continuously working for the 2nd respondent. The 1st
respondent ought to have acted regarding increase of the cadre
strength and the proposals made by the 2nd respondent
Corporation to the 1st respondent pursuant to the promises given
by the 2nd respondent to the Contract Employees Union.
14. It is pertinent to mention here that this Court in the
earlier round of litigation discussed the case of Uma Devi (supra)
and the relevant portion is extracted as under:
"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 : AIR 1967 SC 1071]
, R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR
799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980
SCC (L&S) 4 : (1979) 3 SCR 937] 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 regularisation 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 regularise as a one-time measure, the services
of such irregularly appointed, who have worked for ten
16 RRN,J
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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. We also
clarify that regularisation, if any already made, but not
sub judice, need not be reopened based on this
judgment, but there should be no further bypassing of
the constitutional requirement and regularising or
making permanent, those not duly appointed as per the
constitutional scheme."
15. The counsel for the respondents in disagreement with
the above observation, submitted that the petitioners herein have
not completed a term of 10 years of service as on the date of the
decision in Uma Devi's case (supra). Such submission made by
the respondents is not appealing to this Court. On one hand, the
respondents claim that the appointments made are not against
sanctioned posts and on the other hand, contend that the
petitioners have not put in 10 years of service. However, the 2nd
respondent has nowhere in the impugned rejection order stated
how the decision of Uma Devi would not apply to the case of the
petitioners.
16. The petitioners have put in about 13 years of service
when the earlier Writ Petition was disposed of i.e on 15.11.2018
and as on today, they have put in about 18 years of service.
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However, this is not a case of irregular appointment nor is there
any absence of master and servant relation between the 2nd
respondent Corporation and the petitioners as the petitioners
were duly appointed by the 2nd respondent Corporation after
publishing a notification, inviting applications, conducting
medical tests, collecting security deposit and all such incidental
procedural formalities and the contentions of the respondents are
completely contrary to the reasons stated in the impugned
proceedings that the said panel is prepared without any sanction
of the posts by the competent authority without following the rule
of reservation and the method of recruitment, which is
untenable.
17. Learned counsel for the petitioner has relied upon the
decision rendered by the Hon'ble Supreme Court in Nihal Singh
vs. State of Punjab3 and the relevant paras are extracted as
under:
"20. But we do not see any justification for the State to
take a defence that after permitting the utilisation of the
services of a large number of people like the appellants
for decades to say that there are no sanctioned posts to
absorb the appellants. Sanctioned posts do not fall from
heaven. The State has to create them by a conscious
(2013) 14 SCC 65
18 RRN,J
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choice on the basis of some rational assessment of the
need."
23. Even going by the principles laid down in Umadevi
(3) case [State of Karnataka v. Umadevi (3), (2006) 4
SCC 1 : 2006 SCC (L&S) 753] , we are of the opinion
that the State of Punjab cannot be heard to say that
the appellants are not entitled to be absorbed into the
services of the State on permanent basis as their
appointments were purely temporary and not against
any sanctioned posts created by the State.
"35. Therefore, it is clear that the existence of the need
for creation of the posts is a relevant factor with
reference to which the executive government is required
to take rational decision based on relevant
consideration. In our opinion, when the facts such as
the ones obtaining in the instant case demonstrate that
there is need for the creation of posts, the failure of the
executive government to apply its mind and take a
decision to create posts or stop extracting work from
persons such as the appellants herein for decades
together itself would be arbitrary action (inaction) on
the part of the State."
18. On a collective reading of the reasons set forth in the
impugned proceedings and the decision of the Hon'ble Apex
Court in Nihal Singh's case (supra), it is clear that the
respondents ought to have absorbed the services of the
petitioners and every action contrary to it is deemed to be illegal,
arbitrary and against the law laid down by the Hon'ble Supreme
Court. This is also not a case where at the time of employment
19 RRN,J
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there were no sanctioned posts, let alone vacancies. The 1st
respondents are duty bound to create posts/increase cadre
strength when the workload is, admittedly, immense and as the
posts do not fall from the sky. In the above set of circumstances,
the present Writ Petition is liable to be allowed.
19. Accordingly, the Writ Petition is allowed by setting
aside the impugned proceedings dt.07.01.2018 issued by the 2nd
respondent and the 2nd respondent is directed to regularise the
services of the petitioners as HMV Drivers from the date of their
eligibility with all consequential benefits i.e fixation of salary and
all other service benefits in accordance with law within a period
of three (04) months from the date of receipt of the copy of this
Order. No order as to costs.
As a sequel thereto, miscellaneous applications, if any,
pending in this writ petition, shall stand closed.
____________________________________
NAMAVARAPU RAJESHWAR RAO, J
20th day of January, 2023
BDR
