Andhra HC (Pre-Telangana)
Managing Director, Andhra Pradesh ... vs S. Yadaiah And Ors. on 19 October, 2001
Equivalent citations: 2002(1)ALD24, 2001(6)ALT534, (2002)ILLJ471AP
Author: S.B. Sinha
Bench: S.B. Sinha, Goda Raghuram
JUDGMENT S.B. Sinha, C.J.
1. These writ appeals and the writ applications involving common questions of law and fact were taken up forbearing together and are being disposed of by this common judgment.
2. The fact of the matter can be noticed from WA No.28 of 1998. The said appeal is directed against a judgment and order dated 27-8-1997 passed in WP No.5147of 1996. The case of the petitioners is based upon a Division Bench decision of this Court in Writ Appeal No.422 of 1993. Therein, 12 persons of the appellant Corporation herein filed the writ petition inter alia praying for regularisation of their services only on the ground that they have been working for a long time. A learned single Judge in this case directed regularisation of four of the employees from the date they have been taken as contingent employees and to pay them all their dues consequent upon such regularisation within two months from the date of receipt of the said judgment, inter alia on the ground that some respondents became entitled for contingent employment from December, 1992 to January, 1995. It was directed:
That being the state of affairs, we find no justification for any interference with the judgment impugned. The interim order in WAMP No. 794 of 1993 dated 2-7-1993 is vacated and the appellant Corporation is directed to forthwith regularise the services of all the respondents from the respective dates of their eligibility for contingent employment and pay them all their dues consequent upon such regularisation within two months from the date of receipt of the writ and continue to pay them in the regular scale of any regularly.
3. The said decision has been allowed to attain finality despite the fact that the Division Bench in appeal granted relief to the concerned employees more than what they had prayed for and more than what had been granted to them by the learned single Judge. The writ petitioners being emboldened by the said judgment have filed the present writ petitions stating that they are seniors to the aforementioned workmen as indicated hreinbefore. The learned single Judge following the said decision in WA No. 422 of 1993 disposed of on 6-8-1995, directing:
In the circumstances, there will be a direction to the respondent Corporation to treat the petitioners on par with 12 persons to whom relief was given in the writ appeal to continue them, in service and pay salary and benefits as paid to them. The entire exercise shall be completed within two months from the date of receipt of a copy of the order.
4. Before the learned single Judge, a contention had been raised that despite the representation for regularisation of the petitioners in terms of GO 212 dated 22-4-1994, the same was rejected on the ground that the said GO is not applicable to the Corporation. The contention of the appellant that it had been incurring losses and it is unable to pay regular salaries was negatived on the ground that the petitioners therein had been discriminated against. The correctness of the aforementioned Division Bench decision in WA No.422 of 1993 having been doubted, the matter has been referred to this Bench.
5. Before us, the learned Additional Advocate-General contends that even the appellant Corporation is closed and there does not exist any vacancy wherein the writ petitioners can be directed to be regularised.
6. The learned Counsel submits that the applicability of the GO came up for consideration before this Court and it has been held that for the purpose of directing regularisation, the pre-conditions existing therefor, must strictly be complied with.
7. Regularisation as is well-known is not a mode of recruitment. The appellant is a State within the meaning of Article 12 of the Constitution. Any employment given by the State would be a public employment within the meaning of Article 16 of the Constitution. The State is constitutionally obligated to follow the procedures for grant of public employment as adumbrated in Articles 14 and 16 of the Constitution. It must have its own recruitment rules and the procedures laid down in the recruitment rules must also be complied with. Any appointment made in contravention of Articles 14 and 16 as also recruitment rules would be a nullity.
8. The State enacted Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994 (Act No.2 of 1994) and it has undergone amendment by Act No.3 of 1998. The vires of the said Act came up for consideration in Secretary, Apswrei Society v. P. Venkata Kumari, , before a Division Bench of this Court of which two of us were members.
9. Following the decision of the Apex Court in District Collector v. M.L.Singh, , the Division Bench observed:
... Thus, on and from 25-11-1993, nobody had been employed. Any such appointment would ex facie violate the provisions of the said Act 2 of 1994 which not only contains a penal provision but also imposed statutory liability upon the officers to pay and unto the State all such salaries and emoluments paid on such employees. Even a ban had been imposed on the treasuries to honour such bills.
Further more, G.O. Ms. No.212 has nothing to do with the provisions of the A.P. State and Subordinate Service Rules, 1996. The said policy decision was independent of the said rules.
It was, therefore, for filling up of the posts under G.O.Ms.No.212, for the State to find out whether any clear vacancies exist or not.
10. As regards the temporary employees, the State brought out another GO being No.112 dated 23-7-1997. A learned single Judge of this Court in WP No.19849 of 1996 by his judgment dated 1-4-1998 directed regularisation of the employees. In appeal a Division Bench of this Court in WA No. 1150 of 1998 against the said judgment observed:
The learned Additional Advocate General and Mr. Govindachary appearing on behalf of the appellants inter alia submitted that the learned single Judge went wrong in invoking G.O.Ms.No.212 in the instant case. It was contended that the writ petitioner had neither any legal right to be regularised in services nor having regard to the decision of the Apex Court, any direction as has been sought to be issued by the learned single Judge could be issued.
The learned single Judge did not take into consideration the effect and purport of amending Act 27 of 1998 which categorically provides for regularisation of the employees in terms of G.O.Ms.No.212.
The learned single Judge, therefore, in our considered opinion, was not correct in issuing the aforementioned directions, which evidently are contrary to the decision of the apex Court. Furthermore, it is now a well settled principle of law that no employee has an absolute right of regularisation when conditions precedent therefor are prescribed under a statute, statutory rule or policy decision. The learned single Judge furthermore without adverting to the question as to how Section 7(1) of Act 2 of 1994 as amended by Act 3 of 1998 was unconstitutional directed it to be so being violative of Articles 14, 21, 39 (d) and 43 of the Constitution. The validity of the said Acts had not been questioned and in fact the question which came up for consideration before the learned single Judge was implementation of the aforementioned Government Order only.
11. The decision in Venkata Kumari (supra) was followed in Writ Petition Nos. 12659, 14948 and 15122 of 2000 (The Superintending Engineer, HCC.I, CPWD, Hyderabad v. Tekmalla Raja Sekhar) by the same Division Bench and therein it was held:
We may notice that it has clearly been held that even the definition of worker under the Factories Act can only be read for the said purposes only.
It is for the appropriate Government to decide whether employment of contract labour should be prohibited or only regulated. The Court or the tribunal has no say therein. [See Sujan Banerjee v. Union of India, 2001 (3) SLR 168 (Cal.), Ranjit Kumar Chanda v. State of West Bengal, 2001 (3) SLR 181 (Cal). In Union of India v. Rajinder Singh, 2001 (3) SLR 245 (Cal), it has been held:
An employee must be appointed upon compliance of the provisions of the Recruitment Rules. When a particular status is conferred upon an employee, the same cannot be changed unless there exists any statutory provision therefor.
A regular appointment can only be made in terms of the Recruitment Rules and subject to the candidate's possessing the requisite qualification and also subject to existence of any sanctioned post.
An employee is borne in the cadre only when he is appointed upon fulfilling the requirements therefor in a sanctioned post.
12. Referring to W.B. Essential Commodities Supply Corporation v. Md. Sarif, 2000 (1) CHN 240 = 2000 (2) SLR 229 (Cal), Director of Public Instructions, W.B. v. Krishna Prasad Ghosh and anr., 2000 (2) CLT 141, and Swapan Kumar Banerjee v. Union of India, 2000 LIC 255 = 1999 (5) SLR 807 (Cal), it has been held in Union of India v. Registrar, 2001 (3) SLR 148 (Cal).
The question as to whether the petitioners had fulfilled the essential conditions for regularisation or not, is essentially a question of fact. In law, nobody is entitled to claim regularisation unless there exists any statutory provision in this regard. Only because a person has worked for more than 240 days, the same by itself would not be a ground for direction to regularise the service of the concerned employee.
13. We may notice that the Apex Court recently in Sail v. National Union Water Front Workers, 2001 (5) SCALE 626, while overruling the decision in Air India Statutory Corporation v. United Labour Union , , held that even on abolition of a contract labour, they cannot automatically be directed to be employed. We therefore are of the opinion that no relief could be granted to the petitioners. The decision of the Division Bench of this Court in WA No.422 of 1993 had not considered this aspect of the matter. The question as regards the right of the workmen was not raised nor the relevant decisions of the Apex Court were cited. The said decision cannot be upheld either in principle or on precedent. It is overruled accordingly.
14. It may be different as has been contended by Mr. Venkata Ramana that some of the petitioners are seniors to those 12 persons. That may be so. But having regard to the fact that the said decision does not lay down good law, the writ petitioners cannot get any benefit therefrom particularly having regard to the fact that there existed clear ban on appointments at the material time. The case of the writ petitioners can only be directed to be considered provided there exists a clear vacancy.
15. The writ appeals and the writ petitions are therefore, disposed of with a direction to consider the cases of the petitioners only in the event they are found, entitled thereto in the light of the decision of this Court in P. Venkata Kumari, (supra). Such a decision shall be taken at an early date preferably within a period of four weeks from the date of communication of this judgment.