Andhra HC (Pre-Telangana)
Sri Hariharan vs Baji Shaheed Khan on 22 June, 2000
Equivalent citations: 2000(4)ALD250, 2000(3)ALT641
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER P. Venkatarama Reddi, J.
1. The respondents herein who have been working as Supervisors in Quli Qutub Shah Urban Development Authority on consolidated pay filed WP No.12618 of 1996 seeking regularisation of their services in the existing vacancies from the date of completion of five years of service in terms of G.O. Ms. No.212. Finance and Planning, dated 22-4-1994. By the judgment dated 15-10-1997, a learned single Judge of this Court disposed of the writ petition with a direction to the first respondent (Principal Secretary to the Government, Municipal Administration and Urban Development Department) to accord permission to the 2nd respondent to regularise the services of the petitioners and to pay appropriate pay scales within two months from the date of receipt of the order. In giving such direction, the Seamed single Judge relied on G.O. Ms No.212, dated 22-4-1994. The learned single Judge interpreted the G.O. to hold that it is not necessary to have five years of continuous service prior to 25-11-1993, but, it is sufficient if they were in service on that date. The wording in the G.O. Ms. No.212 is - "service of such persons who worked continuously for an earlier period of five years and are continuing on 25-11-1993". Certain other conditions are also stipulated in the G.O. such as possession of prescribed qualifications for holding the post. WA No.720 of 1998 filed against the said judgment was dismissed for non-proseculion on 17-4-1998 after recording the representation of the Government Pleader that in view of the Supreme Court's judgment, he was not desirous of proceeding with the appeal further. While so, the State Legislature amended the Andhra Pradesh Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure Act - Act 27 of 1998. A proviso was added to Section 7 of the Act which reads as follows:
"Provided that the services of those persons continuing as on the 25th November, 1993 having completed a continuous minimum period of five years of service on or before 25th November, 1993 either on daily wage, or nominal muster roll, or consolidated pay or as a contingent worker on full time basis, shall be regularised in substantive vacancies, if they were otherwise qualified fulfilling the other conditions stipulated in the scheme formulated in G.O. Ms. No.212, Finance and Planning (FW.PC.III) Department, dated the 22nd April, 1994".
2. Thus, the primary condition for rcgularisation was recast by employing suitable language to avoid the interpretation placed by the learned single Judge. Section 7-A purports to lay down that no Court shall enforce a decree or order by directing the Government or other authority for regularise ion of services. Further by a non obstante provision, it was ordained under sub-section (1) of Section 7-A that no person shall claim regularisation under the proviso to Section 7 as introduced by the earlier Act, namely, A.P. Act No.3 of 1998, notwithstanding any judgment or decree of the Court or Tribunal or any Government order. After this Act came into force, the claim of the petitioners for regularisation was considered and rejected on the ground that the statutory pre-condition has not been satisfied inasmuch as the petitioners did not complete five years of service as on 25-11-1993. It was also observed that the writ petitioners did not fulfil the educational qualifications.
3. Complaining of violation of the order of the learned single Judge in WP No.12618 of 1996, Contempt Case No.354 of 1998 was filed. In the contempt case, the learned single Judge held that the order dated 22-9-1998 passed by the Government refusing regularisation was contrary to the judgment in WP No.12618 of 1996 which had become final and the fact that the decision which the learned single Judge relied upon was set aside in another writ appeal will not come to the rescue of the respondents to ignore that judgment. The learned single Judge having noted that the respondents ought to have implemented the orders in the writ petition and regularised the services, however, directed the respondents to reconsider the entire matter afresh in the light of the judgment in WP No.12618 of 1998 within eight weeks. Contempt Case was disposed of accordingly. It is against this order, the present writ appeal is filed.
4. The learned Additional Advocate-General has contended that the learned single Judge out-stepped the jurisdiction under the Contempt of Courts Act by issuing directions while disposing of the Contempt Case and also failed to take into account the supervening event of the enactment of the Act No.27 of 1998. It is pointed out that in the light of the amended proviso to Section 7 of Act, the basis of the judgment stands altered and the appellant acted in conformity with law in giving effect to the legislative provisions in Act No.27 of 1998. The learned Additional Advocate-General further submits that in the Contempt proceedings, it is not open to the Court to go into the correctness of the order passed pursuant to the Act No.27 of 1998 and if the writ petitioners are aggrieved, the remedy is to question the same in a separate proceeding.
5. The argument advanced by the learned Additional Advocate-General cannot in our view be sustained. Act No.27 of 1998 has admittedly no retrospective effect. It came into force on 19-8-1998. By that time, the judgment of the learned single judge was eleven months old. The order of the learned single Judge ought to have been implemented within two months from the date of receipt of a copy of the judgment as per the direction in the judgment. Even after the writ appeal was dismissed for non-prosecution on 7-4-1998, no action was taken to implement the judgment which has become final. It is only after the Act 27 of 1998 came into force in August, 1998, the appellant passed an order rejecting the writ petitioners' claim for regularisation in the light of the provisions of Act 27 of 1998. It is not the case of the appellants that the writ petitioners' case could not have been considered at an earlier point of time. The respondents in the writ petition including the appellants ought to have taken action within reasonable time for considering the petitioners' case in the light of the directions given by the learned single Judge in WP No.12618 of 1996 and passed necessary orders. Having failed to do so and having allowed the issue to drift, they cannot take the advantage of a subsequent Legislation which has no retrospective effect. If the case of the petitioners had been considered within reasonable time in accordance with the judgment of the learned single Judge, the impugned order could not have been passed. The delay and inaction on the part of the appellants - for whatever reason it might be, cannot be a ground to permit the appellants to take advantage of a subsequent Legislation. In that view of the matter, the judgment of the learned single Judge which has acquired finality ought to have been given effect to in its letter and spirit instead of taking resort to amended proviso to Section 7 which came into force much later. The learned single Judge who disposed of the Contempt Case was therefore justified in observing that the view taken by the appellants in the order dated 22-19-1998 is not correct and the writ petitioners are entitled for regularisation in terms of the relief granted by the learned single Judge in WP No.12618 of 1996. True, the learned single Judge has not referred to the amended provision, but that hardly makes any difference as in our view, the amended provision is not attracted to the instant case. We do not think that the learned single Judge who disposed of the contempt case has said anything which is beyond the scope of contempt jurisdiction. An order passed in the Contempt Case in affirmation of and in order to give effect to the order of this Court which had not been implemented by the authorities concerned within a reasonable time cannot be said to be outside the jurisdiction of this Court. The learned Judge by passing the impugned order has only given an opportunity to the appellants to implement the order without further delay. We therefore see no ground to disturb the impugned order passed in the Contempt Case No.354 of 1998.
6. Before closing the same, we may mention that the learned Additional Advocate-General has contended that the writ petitioners do not have requisite qualification and that is one of the grounds on which the claim has been rejected and such rejection does not go contrary to the judgment in WP No.12618 of 1996. That contention which was available to the appellants, was obviously not advanced or pressed before this Court at the time of the hearing of the writ petition. It does not appear that such a stand was taken even in the counter-affidavit filed in the writ petition. It is not permissible at this stage after the judgment has acquired finality to raise the bogey of lack of qualification.
7. For the aforesaid reasons, we dismiss the Letters Patent Appeal. No costs.