Andhra HC (Pre-Telangana)
G. Geddamma And Ors. vs Government Of Andhra Pradesh, Rep. By ... on 11 June, 1997
Equivalent citations: 1997(3)ALT799
ORDER S. Parvatha Rao, J.
1. The petitioners in this Writ Petition, numbering fifteen, seek a Writ of Mandamus for a declaration that they are entitled for regularisation of their services from the dates of their appointment in their respective posts and directing the respondents to pay them the salary attached to the respective regular posts etc.
2. In the affidavit in support of the Writ Petition it is stated that the petitioners have been continuously working without any break and that they have been discharging their duties like regular employees and yet from the date of their appointment they are being paid only a consolidated salary of Rs. 400/- per month. It is also stated that they approached the respective authorities to give them regular scales of pay or at least increase their consolidated salary, but to no effect. They also made representations to the 4th respondent i.e., the District & Sessions Judge, Guntur, to consider their cases for regularisation of their services; that also had no effect.
3. The learned counsel for the petitioners relies on the Judgment of the Supreme Court in State of Haryana v. Paira Singh, and Dharwad P.W.D. Employees Assn. v. State of Karnataka, and submits that the petitioners who have been working continuously for long periods should be regularized and paid regular wages. He also relies on Article 43 of the Constitution of India. The learned Advocate General submits that in view of Section 7 of the Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994 ("the Act" for short) the petitioners do not have "a right to claim for regularisation of services on any ground whatsoever" and that their services "shall be liable to be terminated at any time without any notice and without assigning any reasons". He also relies on Section 9 of the Act. In reply, the learned Counsel for the petitioners relies on G.O. Ms. No. 212, Finance & Planning (FW.PC.III) Department, dated 22-4-1994, the order of the Supreme Court in G. Mallaiah v. State of Andhra Pradesh, Order of the Supreme Court dt. 2-5-1994 in W.P. (Civil) Nos. 31/94 and 159/94 and the decision of this Court in Govt. of A.P. and Ors. v. A. Narayana Swamy and Ors., 1995 (2) ALD 403.
4. Recently, in P. Babaiah v. Government of Andhra Pradesh, Judgment dt. 1-5-1997 in W.P. No. 28405 of we considered the case of a full-time Masalchi working continuously in a Munsif Magistrate's Court from 15-3-1985. In that case, the learned Advocate General did not dispute that the said Masalchi was a daily wage employee as defined in Clause (ii) of Section 2 of the Act and that as he completed five years by 25-11-1993 he was attracted by G.O.Ms. No. 212 and that he would be entitled to the benefits thereunder if he satisfied the, conditions for regularisation. specified therein. In view of the cases of G. Mallaiah, Order of the Supreme Court dt. 2-5-1994 in W.P.(Civil) Nos. 31/94 and 159/94 and A. Narayana Swamy, 1995 (2) ALD 403, we held that he was entitled to the implementation of that G.O. for regularising him observing that under Rule 5(a) of the Andhra Pradesh Last Grade Service Rules, 1992 the qualification for appointment to the post of Masalchi was only the ability to read and write Telugu or Urdu or English or Hindi and that as his services were not terminated in spite of the provisions under Section 7 of the Act, it was obvious that they were required and that all these aspects should be taken into consideration in regularisation of his services.
5. In the affidavit in support of the present Writ Petition it is stated that the 1st petitioner is working as a full time Masalchi in the II Additional District Court at Guntur, that the 2nd and 3rd petitioners are working as Thotis in Principal District Court at Guntur, that the 4th petitioner is working as Gardener in Principal Munsif Magistrate's Court at Repalle in Guntur District and that the remaining petitioners are working as Masalchies in various Courts in the Unit of the District Judge, Guntur. In the additional affidavit of the 1st petitioner dated 20-11-1996, given on behalf of the petitioners, their particulars are stated as follows :-
Sl. No Name of the Petitioner Place of working Dt from which working Whether part-time of Full-time Salary paid per month.(1) (2) (3) (4) (5) (6)
1.
G. Geddamma II Addl. District Court, Guntur 30-11-81 Full time Rs. 478/-
2. D. Koteswara Rao.
Prl. District Court, Guntur.
16-7-85 Part time Rs.400/-
3. Pedala Subrajyam Prl. District Court, Guntur 16-7-85 Part time Rs. 400/-
4. Shaik Karimullah PMMC. Repalle.
17-2-86 Part time Rs. 400/-
5. Shaik Mahaboob Addl. Sub-Court, Guntur 1-9-92 Part time Rs 400/-
6. Ch.Gurunadham.
Prl. District Court, Guntur 24-9-93 Full time Rs. 478/-
7. Shaik Safia Bi VII AMM Court, Guntur.
8-2-93 Full time Rs. 478/-
8. R.Srinivasa Rao District Court, Guntur 29-10-94 Part time Rs, 400/-
9. B.Annamma III Addl, District Court, Guntur 7-12-84 (sic.) Part time Rs. 400/-
10. K.Ramadevi.
III AMMC, Guntur 21-12-94 Part time Rs, 400/-
11. T.Govindarajuiu IV AMMC, Guntur 22-8-95 Part time Rs. 400/
12. P.Lakshmi Spl. Mobile Court, Guntur 26-7-96 Part time Rs. 400/-
13. P.Srinivasa Rao I AMM Court, Guntur 4-8-93 Part time Rs. 400/-
14. N.Ramadevi I AMM Court, Guntur 7/96 Part time Rs. 400/-
15. N.Venkateswarlu, Prl. District Court, Guntur.
4/88 Full time Rs. 478/-
It is obvious from the above particulars that petitioners 5 to 14 had not completed 5 years even by the date they approached this Court by way of the present Writ Petition i.e., 11-10-1996 and that petitioners 12 and 14 had worked hardly for few months prior to that date and that many of them had not even been employed by 25-11-1993. Therefore, they are not attracted by G.O. Ms. No. 212, dated 22-4-1994.
6. Petitioners 1 and 15 are similarly placed as P. Babayya, petitioner in Writ Petition No. 28405 of 1996. Following that decision we have to direct the respondents to implement the G.O. in their case.
7. Petitioners 2,3 and 4 completed five years by 25-11-1993. But, the learned Advocate General contends that they are part-time employees and, therefore, they are not entitled to the benefits of G.O. Ms. No. 212. We do not find any merit in this contention. They are also daily wage employees as defined in Section 2(ii) of the Act and they are being paid monthly salary of Rs. 400/-. Though Section 3 of the Act prohibits daily wage appointments and regularisation of temporary appointments and Section 7 of the Act provides for their termination at any time without any notice and without assigning any reasons, they have been allowed to continue in service obviously because their services are required; in which case the principles laid down by the Supreme Court in State of Haryana v. Piara Singh (1 supra) are attracted. The Supreme Court observed that "where a temporary or ad hoc appointment is continued for long the Court presumes that there is need and warrant for a regular post and accordingly directs regularisation". G.O.Ms. No. 212, dated 22-4-1994 does not make any distinction between a full time and a part-time employee. In that G.O. it is observed as follows :
"....Though the Act provides that no person who is Daily Wage employee and no person who is appointed on temporary basis shall have any right to claim for regularisation of service on any ground, it has been the endeavour of the Government to regularise as many as NMR /Daily wage employees as possible who are otherwise qualified depending on the requirement of the work load while keeping in mind the hardship that would be caused if their services are not regularised. The Hon'ble Supreme Court in its Judgment dated 12-8-1992 in Civil Appeal No. 2979/92 and batch have also observed to evolve an appropriate policy for regularisation. Accordingly, Government after careful examination of the whole issue and in supersession of all previous orders on the subject including G.O.Ms. No. 193, General Administration Department, dated 14-3-1990 and keeping in view the above judgment of Supreme Court of India, have formulated a scheme for regularisation of services of the persons appointed on Daily Wage/NMR or on consolidated pay and are continuing on the date of commencement of the Act. Government accordingly decided that the services of such persons who worked continuously for a minimum period of 5 years and are continuing on 25-11-1993 be regularised by the appointing authorities subject to fulfilment of the following conditions:-
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 regularised.
2. They should be within the age limits as on the date of appointment as NMR/Daily wage employee.
3. The rule of reservation wherever applicable will be followed and backlog 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 the case of Work charged Establishment, where there will be no clear vacancies, because of the fact that the expenditure on work charged is at a fixed percentage of P.S. charges and as soon as the work is over, the services of work charged 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".
We may also point out that in the past the Government had been issuing G.Os., like G.O.(P) No. 259, Finance and Planning (FW.PC.II) Department, dated 18-6-1993 converting the posts in which persons like the petitioners had been working continuously for more than 5 years into regular Government Posts in the Last Grade Service. There is no reason why similar conversion should not be made in the case of the posts in which petitioners 1 to 4 and 15 have been working for nearly or more than a decade - in the case of the 1st petitioner for more than 15 years. No Court can function without the services of a Masalchi or Thoti or Gardener attending to the duties of cleaning, sweeping etc. We are, therefore, of the view that respondents 2,3 and 4 are also entitled to and have also to be given the benefit of G.O.Ms. No. 212.
8. In the result, the Writ Petition is allowed as regards petitioners 1 to 4 and 15 and the respondents are directed to implement G.O.Ms. No. 212, dated 22-4-1994 in respect of petitioners 1 to 4 and 15 within four months from the date of receipt of a copy of this Judgment. As regards the other petitioners, the Writ Petition is dismissed. No costs.