Andhra Pradesh High Court - Amravati
Ch Parvathi vs The State Of Andhra Pradesh on 11 October, 2022
HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION No.19038 OF 2021
ORDER:
The present Writ Petition is filed under Article 226 of Constitution of India for the following relief/s:
"...to call for the records from the respondents and issue an appropriate Writ, Order or direction, particularly one in the nature of Writ of Mandamus and to direct the Respondents as under:
(i) To regularize her services of the writ petitioner with effect from 01.05.1991 under the provisions of Act No.2 of 1994 dated 15.01.1994 as amended by Act No.3 of 1998 dated 03.01.1998.
(ii) To pay the writ petitioner arrears of remuneration due to her for the work done in the post of Sweeper.
(iii) To appoint her in the cadre of Sweeper on permanent basis and not to the cadre of Office Subordinate by following the Roaster and according to her turn as S.C. Candidate under the provisions of Rule 7 of A.P. Last Grade Service Rules, 1992 with consequential benefits.
and pass such order or further orders...
2. As per the affidavit filed in support of the Writ Petition, the Petitioner was appointed as Contingent worker in the Collector Office, Vizianagaram vide proceedings L. Dis.No.4570/86, dated 30.04.1986. The said orders came into force w.e.f. 01.05.1986. Since then she is discharging her duties in the cadre of Sweeper on permanent basis and later she has been appointed as Office Subordinate in the Office of Tahsildar, Gajapati Nagaram in Civil Supplies Department under the control of Deputy Civil Supplies Officer, Vizianagaram vide proceedings in RC No.1458/2016/BC, dated 06.11.2017.
3. While things stood thus, the petitioner has made a representation to regularize her as Office Subordinate. As no steps have been taken by the 2 respondent authorities, the Writ Petitioner herein filed O.A. No.7464/2013 before the Andhra Pradesh Administrative Tribunal. The Tribunal by an order dated 29.12.2016 has disposed of the said OA directing the respondent authorities to consider the case of the petitioner for regularization of her services in terms of G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994 or G.O.(P) No.112, Finance & Planning (FW.PC.III) Department, dated 23.07.1997. While disposing the case, the Administrative Tribunal has relied on the Judgment in Ms. A. Manjula Bhashini and others v. Managing Director, A.P. Women's Cooperative Finance Corporation Limited1.
4. Inspite of the order in the above said O.A., the petitioner herein also filed W.P. No.13555/2019, seeking a relief to regularize her services w.e.f. 01.05.1991 under the provisions of Act II of 1994 dated 15.01.1994 as amended by Act No.3 of 1998, dated 03.01.1998 and to pay the arrears of remuneration due to her for the work done as sweeper and to appoint the petitioner in the cadre of Sweeper on permanent basis and not in the cadre of Office Subordinate by following roaster and according to her turn as SC candidate under provisions of Rule 7 of Last Grade Service Rules, 1992 with all consequential benefits. The said Writ Petition was disposed without going into merits directing the respondent authorities to consider the representation of the writ petitioner and directed the authorities to pass appropriate orders within the stipulated time.
5. Basing on the said direction, issued by this Court in the above said W.P. No.13555 of 2019, the respondent authorities have passed impugned 1 (2009) 8 SCC 441 3 order dated 16.04.2021. Advertenting the post of Office Subordinate is governed by A.P. Last Grade Service Rules, 1992. As per Rule 5A of the said Rules, the qualification for appointment for the post of Office Subordinate is one must have passed 7th class examination. Smt. Parvati-petitioner, is not having requisite educational qualification to the post of Office Subordinate as per the conditions prescribed in G.O.Ms.No.212, Finance & Planning Department, dated 22.04.1994. The case of the petitioner was rejected vide Memo No.REV01- LANAOCOUC(CCHC)/ 1236/2021-SER-II), dated 16.04.2021 and subsequently vide RC No.1730/2020/B3 dated 23.08.2021, the District Collector, Vizianagaram has passed orders cancelling the temporary appointment order as Office Subordinate and continued the petitioner as full time contingent employee.
6. Aggrieved by the said orders dated 16.04.2021, the present writ petition came to be filed on the ground that the petitioner sought regularization in the cadre of Sweeper and not to the post of Attender/Office Subordinate and the petitioner is eligible for regularization to the post of Sweeper as per statutory provisions of the Last Grade Service Rules, 1964 and the orders of the regularization issued by the Government vide G.O.Ms.No.212, Finance & Planning Department, dated 24.04.1994 and also the eligibility criteria fixed there under. It is further contended that the petitioner is eligible for regularization to the post of sweeper in consonance with the various 4 rules, orders and judgments of the Hon'ble Supreme Court and this Court.
7. Learned counsel for the respondents having filed counter affidavit would submit that the petitioner was appointed as Daily Wage Employee only, later on full time contingent worker vide Proceedings No.4570 of 1986 dated 30.04.1986 but not a Sweeper and also paid remuneration of Rs.740/- vide D.Dis No.10843/91-A3 dated 29.02.1992. It is further stated that as per the cadre strength of Vizianagaram District Revenue Unit only Office Subordinate posts (former designation as Attender) are sanctioned. Office Subordinate posts are governed by the A.P. Last Grade Service Rules, 1992 for which one must pass 7th class examination for appointment as office subordinate. Except office subordinate posts, no other posts i.e., Sweeper, Hamali etc., are sanctioned. Though Smt. Ch. Parvathi working in the Collector office as Full Time Contingent Employee prior to 25.11.1993, her case was not considered in terms of G.O.Ms.No.212, Finance & Planning (FW.PC-III) Department, dated 22.04.1994 and G.O.Ms.No.112 Finance & Planning (FW.PC.III) Department dated 23.07.1997 for want of requisite educational qualification (passing 7 th class) to hold the post of Office Subordinate.
8. In the Counter affidavit it has been asserted that the writ petitioner was appointed as office subordinate as she has not having requisite qualification as per the Last Grade Service Rules, 1992. Her 5 case for regularization has been rejected and the petitioner was not appointed in the sweeper post and the sweeper post is not sanctioned post as such her case was not considered for regularization.
9. As per the contention of learned counsel for the respondents, the Office Subordinate Posts are governed by Last Grade Service Rules which are sanctioned posts and there is no such Sweeper post and where the petitioner was appointed under Last Grade Service Rules, as she is not having requisite qualification (i.e. passing of 7th class examination) as per the last Grade Service Rules 1992 and there is no such post of Sweeper and her case was rejected for regularization.
10. As per the proceedings, dated 16.04.2021 the case of the petitioner was not considered for regularization as the petitioner is not having requisite educational qualification i.e. passing of 7 th class as the petitioner is only having educational qualification of 3rd class. As per the Rule 5A of A.P. Last Grade Service Rules, 1992, the requisite qualification for the said post is 7th Class. Hence, the case of the petitioner was rejected on the sole ground for regularization as Office Subordinate. The petitioner was appointed on 30.04.1986 at that relevant point of time, the A.P. Last Grade Service Rules, 1992 are not in existence. The A.P. Last Grade Service Rules, 1964 are in force. As per the A.P. Last Grade Service Rules, 1964, the appointment of the person in the post of Attendar (must be able to read and write the language or one of the languages of the District, in which 6 appointment is to be made). The authorities have taken the Last Grade Service Rules, 1992, basing upon the G.O.Ms.No.212. As per the G.O.Ms.No.212 the conditions required for regularization are hereby extracted.
1) The persons appointed should possess the qualifications prescribed as per rules in force as on the date from which his/her services have to be regularized.
2) They should be within the age limits as on the date of appointment as NMR/Daily wage employee.
3) The rule of reservation where even applicable will be followed and back-log will be set-off against future vacancies.
4) Sponsoring of candidates from Employment Exchange is relaxed.
5) Absorption shall be against clear vacancies of posts considered necessary to be continued as per work-load excluding the vacancies already notified to the Andhra Pradesh Public Service Commission/District Selection Committee.
6) In case of Workcharged Establishment, where there will be no clear vacancies, because of the fact that the expenditure on Workcharged is at a fixed percentage of P.S. charges and as soon as the work is over, the services of workcharged establishment will have to be terminated, they shall be adjusted in the other departments. District offices provided there are clear vacancies of Last Grade Service.
11. The respondent authorities have relied on the condition no.1 i.e. incumbent should possess the qualification prescribed as per Rules in force as on the date from which his/her services has to be regularized. The respondent authorities are oblivious of the fact that the requisite qualification has to be looked only at the time of appointment or date of notification. Petitioner was appointed on 30.04.1936 as per the proceedings dated 30.04.1986. Admittedly by that date the Last Grade Service Rules, 1992 are not in existence. Only, A.P. Last Grade Service 7 Rules, 1964 are in force. As per A.P. Last Grade Service Rules, 1964 no qualification was prescribed for the post of Attender.
12. The Hon'ble Supreme Court in Alka Ojah v. Rajastan Public Service Commission 2 held that suitability and eligibility has to be considered with reference to last date of receiving application unless the notification calling for applications, itself specifies such a date. The date of qualification is as per the advertisement/ notification when no such qualification is prescribed, last date for filing of application must be considered as cut of date for the qualification. In the present case, the petitioner was appointed on 30.04.1986, the educational qualification at the time of joining is relevant not as stated in the impugned proceedings dated 16.04.2021.
13. The similar issue has been came into consideration before this Court in W.P. No.30074 of 2016, and held that A.P. Last Grade Service Rules, 1992 are not applicable and the earlier rules which are notified, did not stipulate qualification of 7th class for consideration of the candidate for appointment on the said ground this Court has rejected the contention of the respondents. The requisite qualification as per the A.P. Last Grade Service Rules, 1992, are in prospective nature and directed the authorities to consider the case of the petitioner for regularization under A.P. Last Grade Service Rules, 1964. 2 2011 9 SCC 438 8
14. In the present issue, where the petitioner has been jointed in the service in the year 1986 by which time, the A.P. Last Grade Service Rules, 1992 are not in existence. The same Rules cannot be applied for regularization of the services of the petitioner for want of educational qualification. Under A.P. Last Grade Service Rules, 1964, there is no such stipulation of passing 7th class. Hence, the case of the petitioner can be considered for regularization under A.P. Last Grade Service Rules, 1964.
15. Learned counsel for the petitioner further submit that the petitioner's case was also rejected on the other ground that there is no such sanctioned post of Sweeper and her case cannot be rejected for regularization for which, the petitioner has relied on the following judgments i.e. Power Grid Corporation of India Limited v. The 17 Workers represented by the President, Khammam District Security Personnel Union and others3 and relied on NihalSingh and others v. State of Punjab4, State of Gujarat & Ors. Vs. PWD Employees Union & Ors. Etc.5 and in M.V. Subba Rao and Ors. V. District Scheduled Caste Service Cooperative Society Ltd., Nellore and ors6
16. It was held that when the appropriate Government find that the employment is of perennial in nature etc., contract system stands abolished thereby it intended that if the workmen were performing the 3 2014 (1) ALT 97 4 2013 (7) SCJ 52 5 2013 (6) SCJ 623 6 2000 (6) ALT 587 9 duties of the post which were found to be of perennial in nature on par with regular services they also required to be regularized. And also held that continuing the incumbent for more than 30 years without granting her service benefits is amounts to arbitrary and erroneous and it is contrary to the Constitutional provisions in settled principles of law. And further observed in the said judgments that refusal to regularize the services on the ground that there are no sanctioned posts is bad particularly when it is not the requirement of the G.O.Ms.No.212, dated 22.04.1994. The Hon'ble Supreme Court and the High Court has directed the authorities for regularization even though there is no sanctioned post when the nature of work is perennial. In the present case, the petitioner is working since last 35 years hence it can be safely construed that the post is perennial in nature. Hence, in view of the above judgments, the contention of the respondents is hereby rejected as there is no sanctioned post.
17. It is very unfortunate as the petitioner is working since more than 35 years has not been considered by the respondents and making her to run from pillar to post for regularization. Hence, it is the case to issue mandamus to the respondent authorities to regularize the services of the petitioner.
18. In view of the Judgments adverted above and as per the above discussion with regard to the educational qualification the respondents 10 shall consider the case of the petitioner for regularization of her services as per law.
19. The respondents shall consider the case of the petitioner for regularization of her services either in the post of office Subordinate or by creating a supernumerary post as Sweeper, subject to the feasibility within a period of three months from the date of receipt of a copy of this order.
20. With the above said direction, the writ petition is disposed of. No costs.
As a sequel, interlocutory applications pending, if any, shall stand closed.
_____________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 11-10-2022 harin 11 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO 114 W.P.No.19038 OF 2021 Date: 11-10-2022 Harin