Telangana High Court
The State Of Telangana vs Md Rasheed on 20 August, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT APPEAL No.211 of 2024
JUDGMENT:
(per Hon'ble Sri Justice Laxmi Narayana Alishetty)
Heard learned Government Pleader for Services-II appearing
for the appellants and Sri G.Gopal Rao, learned counsel for the
respondent.
2. The order passed by learned single Judge of this Court in
W.P.(TR).No.5611 of 2017, dated 23.01.2023, is under challenge
in the present Writ Appeal.
3. By the order under appeal, the learned single Judge allowed
the said Writ Petition filed by the respondent herein seeking to set
aside the proceedings dated 09.02.2016 issued by appellant No.3
and to direct the appellants-authorities to regularize the services of
the respondent on completion of five years of service on par with
the similarly situated person i.e., K.Vijay Kumar and to pass
appropriate order within a period of six weeks from the date of
receipt of copy of that order.
2 AKS,J & LNA, J
4. In nut-shell, the facts of the case are that initially, the
respondent was appointed as Man Mazdoor (NMR) on 28.12.1982
in Nagarjuna Sagar Left Canal Organization Stores Division,
Miryalaguda; that later, he was transferred along with others vide
proceedings dated 16.04.1987 to Srisailam Left Bank Canal Stores
Division; that again, he was transferred to Telugu Ganga Project;
that when the respondent and others reported to duty, the Executive
Engineer informed that they are appointed as fresh casual labour,
as such, the respondent and others filed W.P.No.16836 of 1987
before the erstwhile High Court of Andhra Pradesh and the said
Writ Petition was disposed of, vide order dated 08.08.1991 with a
direction to consider the cases of the respondent and others in
accordance with G.O.Ms.No.143, Irrigation (Ser.IV) Department,
dated 16.03.1984 by taking into consideration their date of
appointment.
5. Pursuant to the order, dated 16.03.1994, the candidates
including the juniors to the respondent, who have completed five
years of service were absorbed, but the respondent was not
absorbed; that aggrieved thereby, the respondent filed I.D.No.806
of 1993 before the Labour Court for reinstatement into service with
all benefits and the Labour Court disposed of the said case along
3 AKS,J & LNA, J
with two other cases, vide common order, dated 22.07.1993,
directing the official respondents therein to issue fresh orders for
posting them as NMR daily wage workers and further, directed to
consider their cases as per G.O.Ms.No.143, dated 16.03.1984, by
protecting their past service; that the said order of the Labour Court
was confirmed by common order, dated 24.10.1995 passed by this
Court in Writ Petition Nos.6806 and 6821 of 1995; that in
pursuance thereof, the respondent was reinstated into service as
Man Mazdoor on 24.07.1996; and that subsequently, he was
appointed as Office Subordinate and posted to AMR SLBC Project,
Nalgonda on 24.06.2010.
6. However, subsequently, the respondent filed O.A.No.6761
of 2014 before the erstwhile A.P. Administrative Tribunal,
Hyderabad, ventilating the grievance that in spite of submitting
representations to the appellants seeking to absorb him into Work
Charged Establishment as per G.O.Ms.No.143, the same was not
considered and no orders were passed. The Tribunal disposed of
the said O.A. directing the respondents therein to consider the
representations dated 05.01.2011 and 21.08.2014 submitted by the
respondent herein regarding regularization of the services and pass
appropriate orders duly taking into account the proceedings issued
4 AKS,J & LNA, J
by the Government in G.O.Rt.No.869, dated 24.11.2003 and Memo
No.26418/ Ser.III.1/2011-7, dated 13.09.2014 and also in terms of
the orders passed by this Court in W.P.No.6806 of 1995, dated
24.10.1995, within a period of eight weeks from the date of receipt
of a copy of the said Order. Since the order passed by the Tribunal
has not been complied with, the respondent filed C.A.No.956 of
2015, wherein notices were isued and thereafter, appellant No.3
issued the impugned proceedings rejecting the claim of the
respondent to regularize his past service on untenable grounds. The
said proceedings were challenged before the learned single Judge
in W.P.(TR).No.5611 of 2017 and the said case was allowed in
favour of the respondent, which is now impugned in the present
Writ Appeal.
7. Learned Government Pleader for Services-II appearing for
the appellants contended that learned single Judge erred in holding
that the past service of the respondent was protected vide orders
dated 22.07.1994, passed by the Tribunal in I.D.No.806 of 1993;
that as the respondent has not satisfied with the terms and
conditions of G.O.Ms.No.143, dated 16.03.1984, the learned single
Judge erred in directing regularization of services of the respondent
on completion of five years, which is contrary to law laid down by
5 AKS,J & LNA, J
the Hon'ble Supreme Court in a catena of judgments and therefore,
the impugned order is liable to be set aside.
8. Learned Government Pleader for Services-II relied upon
the judgments of the Hon'ble Supreme Court in Union of India Vs.
Ilomo Devi1 and Vibhuti Shankar Pandey v. State of M.P. 2.
In Ilmo Devi's case (1 cited supra), the Hon'ble Supreme
st
9.
Court at Para-15 of the judgment placed reliance on the judgment
of Hon'ble Supreme Court in Daya Lal [State of
Rajasthan v. Daya Lal 3, wherein certain principles were laid
down relating to regularization and pay in parity and held as under:
"The High Courts, in exercising power under Article 226
of the Constitution, will not issue directions for
regularization, absorption or permanent continuance,
unless the employees claiming regularization had been
appointed in pursuance of a regular recruitment in
accordance with relevant rules in an open competitive
process, against sanctioned vacant posts. The equality
clause contained in Articles 14 and 16 should be
scrupulously followed and Courts should not issue a
direction for regularization of services of an employee
which would be violative of the constitutional scheme.
While something that is irregular for want of compliance
with one of the elements in the process of selection which
2023 SCC Online SC 114
2 (2023) 3 SCC 639
(2011) 2 SCC 429
6 AKS,J & LNA, J
does not go to the root of the process, can be regularized,
back door entries, appointments contrary to the
constitutional scheme and/or appointment of ineligible
candidates cannot be regularized..."
In Vibhuti Shankar Pandey's case (2
nd
10. cited supra), the
Hon'ble Supreme Court in Para 4 placed reliance on the judgment
of the Hon'ble Supreme Court rendered in State of
Karnataka v. Umadevi 4, wherein two conditions were put forth
with regard to regularization, firstly, initial appointment must be
done by the competent authority and secondly, there must be a
sanctioned post in which the employee must be working.
11. In the instant case, it is not the case of the appellants that
the appointment of the respondent was not in pursuance of a
regular recruitment and that he is an irregular employee or part-
time employee. Therefore, the principle laid down by the Hon'ble
Supreme Court in Ilmo Devi's case (1st cited supra) does not apply
to the instant case.
12. Further, in the instant case, the two conditions put forth
with regard to regularization by the Hon'ble Supreme Court in
Vibhuti Shankar Pandey's case (2
nd
cited supra) were satisfied.
(2006) 4 SCC 1
7 AKS,J & LNA, J
13. Per contra, learned counsel for the respondent contended
that the learned single Judge, having appreciated the facts and
circumstances of the case from a proper perspective, came to a
conclusion that the impugned proceedings of the appellants
rejecting the claim of the respondent for regularization of his
services were untenable and accordingly, allowed the Writ Petition
and therefore, the impugned order warrants no interference by this
Court.
14. Learned counsel for the respondent relied upon the
judgment of a Division Bench of this Court in W.P.No.23906 of
2017, dated 06.07.2023 {Prl. Secretary Education and 6 Ors. v.
C. Narayana}, wherein at Para-5 it was observed as under:-
"Following the judgment of the Apex Court in
B.Srinivasulu v. Nellore Municipal Corporation (Civil
Appeal No.6318 of 2015, dated 17.08.2015) and
Government of Andhra Pradesh vs. N.Venkaiah,
2018(4) ALD 590 and for reasons alike, this writ
petition is also disposed of directing the petitioners to
count the service rendered by the respondent as NMR
till the date of regularization as qualifying service for
the purpose of computing pensionary benefits..."
15. Learned counsel for the respondent also relied upon the
judgment of the erstwhile High Court of Andhra Pradesh in the
8 AKS,J & LNA, J
case of The Govt. of Andhra Pradesh and Ors. v. N.
Venkaiah & Ors 5.
In N.Venkatiah's case (5
th
16. cited supra), the core issue
was as to the scope of regularization of services under
G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department,
dated 22.04.1994 and as to whether the employees whose services
were regularized under the said G.O., are entitled to benefit of such
regularization from earlier dates, wherein the High Court at Para-
57 observed as under:-
"...directing the authorities to extend the benefit of
B. Srinivasulu Vs. Nellore Municipal Corporation
(Civil Appeal No.6318 of 2015, dated 17.08.2015}, to
the employees in this batch of cases by reckoning their
services from the date of completion of services, on or
before 25.11.1993, for the purpose of pension and
pensionary benefits. But they shall however not be
entitled to any monetary benefits for the same period, in
the form of arrears or pay or allowances..."
17. A perusal of the record discloses that it is the case of the
respondent that he has been reinstated into service on 24.07.1996
and prior to that, he has put in more than four (4) years eight (8)
months of past service and therefore, the said period of past service
is to be added to the service rendered by him after reinstatement for
2018 SCC Online Hyd 150
9 AKS,J & LNA, J
completion of five years of service, upon which, he will be entitled
for regularization of his services as per G.O.Ms.No.143, dated
16.03.1984. The respondent also averred that in respect of similarly
situated person by name K.Vijay Kumar, the same procedure was
followed and his services were regularized and hence, prayed that
the same benefit be extended to him.
18. It is undisputed that one K.Vijay Kumar, who is alleged to
be similarly placed as that of the respondent, has filed I.D.No.169
of 1994 before the Labour Court-III, Hyderabad, seeking to set
aside the termination orders and the said O.A. was allowed by the
Labour Court, vide order dated 31.03.1997. The State Government
challenged the said order by filing W.P.No.16668 of 1998 and on
being unsuccessful, it has filed W.A.No.1127 of 2000, but the same
also ended in dismissal, vide order dated 09.11.2000, directing the
reinstatement of the respondent therein i.e., K.Vijaya Kumar with
continuity of service and seniority and all other benefits except
back wages. Pursuant thereto, the said K.Vijaya Kumar was
reinstated into service.
19. It is relevant to note that the said K.Vijaya Kumar was
appointed on 21.01.1983 and his services were terminated vide
10 AKS,J & LNA, J
orders dated 06.10.1987. The said termination orders were set aside
by the Tribunal, which was confirmed by learned single Judge of
this Court and also a Division Bench of this Court, as referred
supra. Pursuant to the orders of the Court, the appellants-authorities
issued G.O.Rt.No.869, dated 24.11.2003, stating that the said
individual has fulfilled all the conditions laid down in
G.O.Ms.No.143, Irrigation Department, dated 16.03.1984 and
accordingly, directed for conversion of the said individual from
NMR worker into Work Charged Category.
20. Admittedly, the aforesaid individual was appointed on
21.01.1983 and the respondent was appointed as NMR in
appellants-Department on 28.12.1982, which means that the latter
is junior to the respondent.
21. Also, it is to be noted that I.D.No.806 of 1993 filed by the
respondent was disposed of by the Labour Court, Hyderabad, vide
order dated 22.07.1993, directing the appellants to issue fresh
orders for posting him as NMR daily wage worker and further,
directed to consider his case as per G.O.Ms.No.143, dated
16.03.1984 by protecting his past service and the appellants
unsuccessfully challenged the said order in Writ Petition No.6806
11 AKS,J & LNA, J
of 1995. In pursuance of the order passed in the said Writ Petition,
the respondent was reinstated into service.
22. On a careful scrutiny of the facts of the present case and the
case of one individual by name K.Vijaya Kumar, as referred to in
the preceding paragraphs, it came to light that both the respondent
and the said K.Vijaya Kumar are similarly placed. However, in
case of the respondent, in compliance of the orders passed in
WP.No.6806 of 1995, though he was reinstated into service, his
request for regularization of his services as per G.O.Ms.No.143,
dated 16.03.1984 was rejected by the appellants vide proceedings
dated 07.09.2002 stating that G.O.Ms.No.143, dated 16.03.1984,
was not in force after enactment of Act 2 of 1994.
23. It is discernible from record that in respect of the alleged
similarly placed individual-K.Vijaya Kumar, the appellant issued
G.O.Rt.No.869, dated 24.11.2003, purported to be in due
compliance of the orders passed in W.A.No.1127 of 2000, dated
09.11.2000.
24. The appellants failed to explain as to how when Act 2 of
1994 overruled G.O.Ms.No.143, dated 16.03.1984, it has issued
G.O.Rt.No.869, dated 24.11.2003 stating that as the individual
mentioned therein has fulfilled all the conditions laid down in
12 AKS,J & LNA, J
G.O.Ms.No.143, dated 16.03.1994, his services as NMR worker
were converted into Work Charged category.
25. When considering the case of the respondent, the
appellants have declined to extend the same treatment to him as
was given to the similarly placed person under G.O.Rt.No.869,
dated 24.11.2003. Further, even as per the orders dated 22.07.1993
of the Labour Court, the past service of the respondent needs to be
protected, as was confirmed by this Court in W.P.No.6806 of 1995.
The order passed in WP.No.6806 of 1995 remained unchallenged
till date, which implies that the direction to consider the case of the
respondent as per G.O.Ms.No.143, dated 16.03.1984 by protecting
his past services remains intact and holds good.
26. Therefore, this Court perceives discrimination on the part
of the appellants in considering the case of the respondent for
regularization as per G.O.Ms.No.143, dated 16.03.1984.
Furthermore, when the respondent pleaded that he is similarly
placed as that of one K.Vijaya Kumar and therefore, he is entitled
to the same benefits as were extended to the said individual, the
appellants failed to rebut the same.
27. As per the settled preposition of law, the regularization can
be only as per the regularization policy declared by the
13 AKS,J & LNA, J
State/Government and nobody can claim the regularization as a
matter of right dehors the regularization policy. The respondent
never claimed regularization dehors the regularization policy. In
fact, the case of the respondent is squarely covered by judgment of
the erstwhile combined High Court of Andhra Pradesh in
N.Venkatiah's case (5 cited supra).
th
28. In the light of the above and also keeping in view the facts
and circumstances of the case, this Court is of the considered
opinion that the learned single Judge has rightly appreciated the
case and passed the impugned order, which warrants no
interference by this Court. The Writ Appeal is devoid of merits and
is liable to be dismissed.
29. Accordingly, the Writ Appeal is dismissed. No costs.
30. As a sequel, the miscellaneous petitions pending, if any,
shall stand closed.
_______________________________
ABHINAND KUMAR SHAVILI, J
___________________________________
LAXMI NARAYANA ALISHETTY, J
Dated:20.08.2024
dr
