Telangana High Court

D. Ramulu Naganuri vs The Principal Secretary, Education ... on 3 January, 2024

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

               WRIT PETITION (TR) NO.2429 OF 2017

ORDER:

This writ petition is filed seeking to grant the following

relief:

" ... to declare the action of the respondents in not regularizing the services of the petitioner as Sweeper/Attender/Watchman in their office in terms of G.O.(P).No.112 Finance & Planning (FW.PC.III) Department, dated 23.07.1997 as illegal, arbitrary and violation of Articles 14, 16 and 21 of Constitution of India and consequently, direct the respondents to regularize the services of the petitioner as Sweeper/Attender/Watchman and grant all benefits from 23.02.2001 as directed by the Hon'ble High Court in W.P.No.7175/97 and batch..."

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/

Watchman/Attender in the year 1979 and continuously working

under the control of respondent Nos.3 to 5 and completed 33

years of service. Petitioner belongs to Schedule Community and

socially economically backward class community. His salary

was enhanced from time to time.

2.2. It is contended that while matter stood thus, the

Government had issued G.O.(P).No.112 Finance and Planning

(FW.PC.III) Department 23.07.1997 by formulating the scheme LNA,J

for regularization of service and absorption of part-time

employees. Though the petitioner is entitled for regularization

and absorption of his services in view of his length of service,

respondents have not regularized his services. Therefore, the

action of the respondents in not absorbing the petitioner into

regular post of Sweeper by regularizing his services is illegal,

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

Constitution of India.

2.3. It is contended that he submitted representation on

28.01.2012 to the respondents requesting for regularization of

services, however, they have not taken any action on his

representation.

2.4. Petitioner contended that in similar circumstances, the

Division Bench of Hon'ble A.P.Administrative Tribunal disposed

of O.A.No.5558 of 1999 dated 12.09.2001 by following the

judgment in W.P.No.7175 of 1997 and batch referred to in

O.A.No.6932 of 1999 and batch, dated 23.02.2011 with the

following directions:

"Thus, we direct the respondents to regularize the services of all the applicants who fulfill the conditions incorporated in G.O.Ms.No.212 dated 22.04.1994 and G.O.Ms.No.112 dated 23.07.1997 irrespective of the fact LNA,J

whether they complete 5/10 years of service as on 25.11.1993 provided they were in service as on the said cut-off date and without insisting for existence of clear vacancy. To be more specific, we direct the respondents to consider the cases of all the applicants who were appointed prior to 25.11.1993 and who completed 5/10 years of service as full time or part-time employees for regularization as and when they complete the said period of service. The above exercise shall be completed within a period of six months from the date of receipt of a copy of this order.

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

2.5. By referring to the above decision, petitioner filed

O.A.No.4133 of 2014 before the A.P.Administrative Tribunal at

Hyderabad, for regularization of his services. The A.P.A.T., by

order dated 10.07.2014 passed interim order directing the 3rd

respondent to consider the case of the petitioner and pay

minimum wages as per rules.

2.6. Later, above O.A.No.4133 of 2014 was transferred to this

Hon'ble Court and the same is re-numbered as WP (TR) No.2429

of 2017.

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3. Respondent no.3 filed the counter and did not dispute

appointment of the petitioner as P.T.F. at C.P.S. (B) Uppal,

Hayathnagar Mandal, Ranga Reddy district on 07.01.1986. It is

contended that appointment of petitioner made by the Mandal

Parishad Development Officer, MPP, Hayatnagar, Ranga Reddy

district, is itself irregular and the petitioner is not entitle for

regularization of his services as per G.O.(P).No.112, dated

23.07.1997, since he was not appointed before cut-off date i.e.,

25.11.1983 and completed 10 years of service by 25.11.1993.

3.1. It is contended that in view of the necessity of a person to

work in the schools and to meet the needs of the schools, such

as, sweeping, keeping drinking water etc., a local person was

used to be appointed as PTF on consolidated pay by the local

bodies as there was no post available.

3.2. 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

as part-time contingent sweeper and finally prayed to dismiss

the writ petition.

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4. The point for consideration is whether the petitioner is

entitled for regularization of his services as Sweeper/Attender/

Watchman ?

5. Heard learned counsel Sri G.Allabaksh for the petitioner

and the learned Government Pleader for School Education for

respondent no.1, learned Government Pleader for Finance &

Planning for respondent no.2, Sri Chandra Sekhar Reddy

learned standing counsel for respondent nos.3 to 5.

6. Learned counsel for the petitioner submitted that

petitioner was appointed as part-time Sweeper in the year 1979

and continuously working under the control of respondents 3 to

5 since more than 33 years and in view of the Government

Order vide G.O.Ms.No.112, dated 23.07.1997, petitioner is

entitled for regularization of services. In support of the said

contention, learned counsel for petitioner relief upon the

decision of Hon'ble Apex court in B.Srinivasulu and others vs.

Nellore Municipal Corporation 1 and the decision of Division

Bench of Hon'ble A.P.Administrative Tribunal in O.A.No.5558 of

1999 dated 12.09.2001.

2015 LawSuit (SC) 1733 LNA,J

7. On the other hand, learned Government Pleader, while

reiterating the averments made in the counter-affidavit,

contended that since the appointment of the petitioner itself is

irregular, petitioner is not eligible for regularization of his

services as per G.O.(P).No.112 dated 23.07.1997, since the

petitioner was not appointed before the cut-off date i.e.,

25.11.1983 and not completed 10 years of service by

25.11.1993 and prayed to dismiss the writ petition.

Consideration:

8. There is no dispute about the appointment of the

petitioner in the year 1979 as part-time sweeper/attender/

watchman by the Mandal Parishad Development Officer, MPP,

Hayathnagar and continued as such under the control of

respondents 3 to 5. Though the petitioner completed 10 years

of service as on 25.11.1993 and continuously working under

their control, respondents did not regularize his services in view

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

9. In State of Karnataka v. Uma Devi 2, the Hon'ble

Supreme Court held as under:

"Any public employment has to be in terms of the constitutional scheme and a sovereign Government,

(2006) 4 SCC 1 LNA,J

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 3, the

Hon'ble Supreme Court refused to accept the defence 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 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

(2013) 14 SCC 65 LNA,J

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 4, the Apex Court held 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

2010(9) SCC 247 LNA,J

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 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. ....

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"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 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 LNA,J

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 5, 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. Admittedly, the petitioner

herein had rendered service for more than 33 years as on the

date of filing O.A.No.4133 of 2014 in the year 2014 and he was

already retired from service.

14. In The Government of A.P. rep.by its Principal

Secretary, PR &RD Department and others vs. N.Venkaiah

1998 (2) ALT 5 LNA,J

and others 6, the Division Bench of composite High Court of

Telangana and High Court of Andhra Pradesh, held as under:

"55. The question of the State Exchequer being saddled with additional expenditure in relation to such regularisation does not arise, as the relief already granted to some of the employees in the cases on hand is to reckon their services upon completion of five years on or before 25.11.1993 only for the purpose of their pension and pensionary benefits. They are not to be given any monetary benefits in the form of arrears of pay or otherwise. Similar relief would have to be extended to those employees who were non-suited by the Tribunal and are before this Court. As all of them served the State or its instrumentalities for decades together, extending to them the benefit of such service only for the purpose of pension and pensionary benefits can hardly be said to be an onerous burden either on the State or the State Exchequer. Having utilised their services all along, the State and its instrumentalities cannot now turn their back on the loyal services rendered by these employees."

Conclusion:

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

peculiar facts and circumstances of the case, the respondents

are directed to consider the case of the petitioner for

regularization for pension and pensionary benefits in the light of

his 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.

2018 SCC Online Hyd 150 LNA,J

16. Accordingly, Writ Petition is disposed of. There shall be no

order as to costs. Pending miscellaneous applications, if any,

shall stand closed.