Andhra Pradesh High Court - Amravati
K.Srinivasa Rao, vs The State Of Andhra Pradesh on 3 September, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.15219 OF 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, to issue Writ of Mandamus, declaring the action of the Respondents No 2 and 3 in not regularizing the services of the petitioner as Record Assistant in the establishment of 3rd respondent temple on par with the respondent Nos. 4 to 6 basing on the proceedings of 3rd respondent in R.C.No.A1/6005/2011 dated 18.07.2011 as ratified by 2nd respondent vide proceedings in R.C.No.A1/C0E-11026/124/2018-A SEC-ENDOWMENTS dated 24.01.2019 as illegal, arbitrary and violative of Articles 14, 16 and 21 of Constitution of India and consequently direct respondent Nos 2 and 3 to regularize the services of the petitioner from the date of proceedings of 3rd respondent in R.C.No.A1/6005/2011 dated 18.07.2011 and to grant all consequential service and monetary benefits.
It is the case of the petitioner that, the petitioner was appointed as NMR in the establishment of third respondent temple on 12.03.2020, completed more than 20 years of service and qualified for regularization in the vacant posts in the cadre strength of the third respondent temple. The petitioner was drawing minimum time scale of 2015-PRC in the cadre of Record Assistant along with other employees working in the third respondent temple. Thereafter, as per G.O.Ms.No.60 Finance (PC and TA) Department dated 06.07.2019, interim relief of 27% on the basic pay was extended to this petitioner along with other NMRs. The same was implemented by the then Executive Officer as per the proceedings dated MSM,J W.P No.15219 of 2020 2 13.07.2019 and the petitioner was paid interim relief along with others @ Rs.3,510/- with effect from 01.07.2019. Thereafter, interim relief was stopped from the month of September, 2019 after change in the office of the Executive Officer and the same is challenged in W.P.No.11483 of 2020 and the it is pending as on day.
While the matter stood thus, the third respondent issued proceedings in R.C.No.A1/1655/2015 dated 03.10.2019 and revised the pay scales as per the qualifications, eligibility and minimum pay scale attached to the post of Record Assistant and Junior Assistant were extended to all the NMRs. Once the scales are allotted, the petitioner and others are eligible to be continued in the regular cadre strength posts as against the posts which they are working and which are vacant as on today as per the approved cadre strength of the temple.
Respondent Nos. 4 to 6 were appointed as Computer Operators on 08.09.2001 on contract basis with break of service for one week for providing network between Commissioner of Endowments and ten major temples, the contract period is extended for another year by the Commissioner vide proceedings RC.No.J1/53223/98 dated 23.08.2002 giving a break of service of one week. Thereafter, the contract period was not extended as the purpose which they were engaged is completed and the network is provided between the office of the Commissioner and the temple. However, even after expiry of contract period and purpose of engaging the services of respondent Nos. 4 to 6 is accomplished, they were continued in the temple illegally without there being a post of Computer Operators in the cadre strength of the third respondent temple, whereas, this MSM,J W.P No.15219 of 2020 3 petitioner was appointed on 12.03.2000 as NMR and waiting for regularization. Therefore, the petitioner filed this writ petition.
The third respondent/Executive Officer of the Temple filed counter affidavit denying material averments, inter alia contending that, the third respondent engaged the service of the petitioner on daily wage basis and discharged his duties entrusted to him wherever the services are required in different wings and in order to seek regularization, the petitioner must satisfy the parameters/ requirements that he must have worked in duly sanctioned vacant post. The third respondent further contended that the petitioner would fall beyond the purview of definition 'office holder or servant' under Section 2(d) of Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Office Holders and Servant Service Rules, 2000 and therefore, the petitioner being daily wage employee/worker is not governed by the service rules framed and he is not entitled to hold the status of regular employees, thereby not entitled to claim interim relief, DA, HRA and other allowances. It is specifically contended that NMR is not a source of recruitment or it is not intended to confer permanency upon appointments which have been made without following due process and hit by Articles 14 & 16 of the Constitution of India and finally requested to dismiss the writ petition.
During hearing, Sri D.V. Sasidhar, learned counsel for the petitioner reiterated the contentions urged in the affidavit and requested to grant the relief as sought for.
Learned Government Pleader for Endowments refuted the contentions of the learned counsel for the petitioner and requested to dismiss the writ petition.
MSM,J W.P No.15219 of 2020 4 Undoubtedly, the petitioner was appointed as NMR in the establishment of third respondent temple on 12.03.2000, completed more than 20 years of service and qualified for regularization in the vacant posts in the cadre strength of the third respondent temple. As per G.O.Ms.No.60 Finance (PC and TA) Department dated 06.07.2019, interim relief of 27% on the basic pay was extended to this petitioner along with other NMRs @ Rs.3,510/- with effect from 01.07.2019. Thereafter, interim relief was stopped from the month of September, 2019 after change in the office of the Executive Officer and the same is challenged in W.P.No.11483 of 2020, pending disposal. Thereupon, the third respondent issued proceedings in R.C.No.A1/1655/2015 dated 03.10.2019 and revised the pay scales as per the qualifications, eligibility and minimum pay scale attached to the post of Record Assistant and Junior Assistant were extended to all the NMRs. Once the scales are allotted and allowed to draw salary on par with regular employees, the petitioner and others are eligible to be continued in the regular cadre strength posts as against the posts which they are working and which are vacant as on today as per the approved cadre strength of the temple. Hence, requested this Court to issue a direction to the respondents to regularize the services of this petitioner with all consequential service and monetary benefits.
The main contention of the learned counsel for the petitioner is that, similarly placed employees engaged on contract basis or NMRs were already taken into services, regularizing their services, but different scale is being adopted to this petitioner despite issue of letter and approval by the State. The Joint Commissioner addressed a letter to the Commissioner, Endowments Department for MSM,J W.P No.15219 of 2020 5 regularization of services of certain employees/Respondent Nos. 4 to 6 herein and the same was approved by the Commissioner vide proceedings in R.C.No.A1/C0E-11026/124/2018-A SEC- ENDOWMENTS dated 24.01.2019. Similarly, the Executive Officer of Sri Durga Malleswara Swamy Varla Devasthanam, Krishna District addressed a letter to the Commissioner, Endowments Department in Rc.No.A1/1655/2015 dated 03.10.2019 with the following clarification:
i) The NMRs are performing duties assigning to regular employees of similar cadre;
ii) The NMRs possess the requisite qualifications for the respective posts as claimed in the temple;
iii) Whether permission orders from the competent authority to engage the services of such employees.
As per the instructions of the Government and subsequent orders of the Commissioner of Endowments received in the references 3rd and 4th cited, the NMRs working in the Devasthanam are sanctioned minimum pay of Junior Assistant to all Degree and Intermediate qualified persons (as per G.O.Ms.No.888 minimum qualification for Junior Assistant is Intermediate only) and Record Assistant Pay to 10th class passed persons and Last Grade Pay i.e. Rs.13,000/- were given to the persons who are possessing below 10th class."
The details of NMRs working in the Devasthanam with duties assigned to them and pay fixed according to their qualifications are mentioned along with the letter dated 03.10.2019. In the said letter, the name of this petitioner is shown at Serial No.20, but his services were not regularized despite the directions issued by the Commissioner of Endowments. The correspondence available on record discloses that services of similarly placed persons were already regularized, proceedings Rc.No.A1/5810/2014 dated 28.01.2019 were issued and scale was also granted to this petitioner, MSM,J W.P No.15219 of 2020 6 but not regularized in view of the direction issued by the Commissioner vide Circular Rc.No.A1/19067/2011 dated 08.06.2011. Thereafter, correspondence has taken place and not regularized the services of this petitioner.
Learned counsel for the petitioner also relied on the judgment of High Court of Judicature at Hyderabad for the State of Telangana and State of Andhra Pradesh in G. Srinivasa Chary v. State of Telangana1, where the learned single Judge of the Court considered the similar issue and issued the following direction:
"In the result,
(a) The Writ Petition is allowed;
(b) the respondents' action in engaging the petitioners on "outsourcing basis" as Sanitary Supervisors (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants through intermediaries/agencies/contractors is contrary to law, violative of Article 14, 16 and 21 of the Constitution of India and also the law declared by the Supreme Court in Uma Devi (1 supra) mandating periodic regular recruitment to sanctioned posts;
(c) that the "outsourcing" system adopted by the GHMC is only a sham and a ruse to avoid extending to the petitioners their genuine service entitlements; and that the presence of such intermediary/contractor has to be ignored, and the petitioners are held to have been directly engaged by the GHMC and they are also held entitled to be considered for regularisation of their services;
(d) consequently, the respondents, while continuously engaging the services of the petitioners directly henceforth, are directed to consider the case of the petitioners for regularisation of their services, by ignoring the existence of the intermediaries/agencies/contractors in the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants within two (2) months from the date of receipt of a copy of the order.
(e) the petitioners are entitled to minimum of time scale of pay attached to the posts of Sanitary Supervisor (SFA), Sanitation Workers, Entomology Field Workers, Entomology Superior Field Workers, Supervisors (EFA), Superior Field Assistants in which they are now discharging their functions till their claim for regularisation is considered by the GHMC in accordance with para 53 of the decision in Uma Devi case;
and such payments shall be made by the GHMC directly to the petitioners w.e.f the date of filing of this Writ petition (after deducting the payments already received by them 1 I.A.No.1 of 2019 in/and W.P.No.47675 of 2018 dated 07.08.2020 MSM,J W.P No.15219 of 2020 7 during this period from the contractor/intermediary) and shall be continued till the cases of the petitioners are considered for regularisation by the GHMC. The arrears upto 31.7.2020 shall be paid on or before 15.9.2020." Thereafter, the same writ petitioner herein filed WPMP No.32575 of 2014 in W.P.No.26063 of 2014 dated 05.09.2014, where another single Judge of High Court of Judicature at Hyderabad issued the following direction:
"There shall be interim direction to the respondents to consider the case of the petitioner for granting time scale in the cadre of Junior Assistant as per the proceedings in R.C.No.A1/6437-A/2000 dated 26.08.2009"
Taking advantage of all these orders, learned counsel for the petitioner requested to consider the case of the petitioner on par with Respondent Nos. 4 to 6.
Respondent Nos. 1 to 3 admitted about consideration of Respondent Nos.4 to 6, though they are similarly placed, but they raised contention that, in view of the principle laid down in Secretary, State of Karnataka v. Uma Devi2, ONGC v. Petroleum Coal Labour Union3, the case of this petitioner cannot be considered and the petitioner placed reliance on the judgment of this Court in U.V.S.R. Prasad and others v. State of Andhra Pradesh4, where the Division Bench of this Court issued the following direction:
"For the aforementioned reasons, order dated 27.06.2017 in O.A.No.1442 of 2014 on the file of the Tribunal is set-aside and the writ petition is allowed with the direction to the respondents to consider regularization of the services of the petitioners against the existing vacancies of Work Inspectors and appoint them subject to their satisfying the criteria laid down in Para No.53 of the judgment in Uma Devi (supra). This process must be completed within two 2 (2006) 4 SCC 1 3 (2015) 6 SCC 494 4 W.P.No.27217 of 2017 dated 19.09.2017 MSM,J W.P No.15219 of 2020 8 months from the date of receipt of a copy of this order."
In support of his contention, learned counsel for the petitioner relied on the judgment of the Apex Court in State of Karnataka v. M.L. Kesari5, wherein the Apex Court held as follows:
"The Division Bench of the High Court has directed that the cases of respondents should be considered in accordance with law. The only further direction that needs be given, in view of Umadevi case (referred supra), is that the Zila Panchayat, Gadag should now undertake an exercise within six months, a general one- time regularization exercise, to find out whether there are any daily wage/casual/ad-hoc employees serving the Zilla Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para 53 of Umadevi case (referred supra). If they fulfil them, their services have to be regularized. If such an exercise has already been undertaken by ignoring or omitting the cases of respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one time exercise within three months. It is needless to say that if the respondents do not fulfil the requirements of Para 53 of Umadevi case (referred supra), their services need not be regularised. If the employees who have completed ten years service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularization in suitable lower posts.
In view of the law declared by the Supreme Court in the judgment referred supra, the case of this petitioner has to be considered on par with the case of Respondent Nos. 4 to 6. In case, Respondent Nos. 2 and 3 failed to consider the case of this petitioner, it would amount to invidious discrimination of the similarly placed persons for the reasons best known to them. Moreover, the authorities are not expected to exercise such discretion arbitrarily in favour of Respondent Nos. 4 to 6 and deny relief of this petitioner who is similarly placed. Such act of 5 SLP (C) No.15774 of 2006 dated 03.08.2010 MSM,J W.P No.15219 of 2020 9 Respondent Nos. 2 and 3 would amount to arbitrary discrimination and such act is hit by Articles 14 of the Constitution of India.
Sri K. Madhava Reddy, learned Standing Counsel for Endowments relied on the judgments of the Apex Court in Secretary, State of Karnataka v. Uma Devi (referred supra), Maharashtra State Road Transport Corporation and Ors. v. Casteribe Rajya P. Karmchari Sanghatana6, Amarendra Kumar Mohapatra v. State of Orissa7, State of Jammu and Kashmir v. District Bar Association, Bandipora8 and Secretary to Govt. Commercial Taxes and Registration Department, Secretariat and Ors. v. A. Singamuthu9 to contend that, the State cannot undertake backdoor appointments and regularize their services and direct the State to follow strict procedure for recruitment governed by the Rules.
The law laid down by the authorities is not in quarrel, but in the present case, the services of this petitioner were engaged long prior to the judgment and continuously discharging their duties in the same capacity for the last more than 20 years, consequently as one time regularization scheme, as held by the Apex Court in State of Karnataka v. M.L. Kesari (referred supra) be undertaken by the department to regularize the services of this petitioner on par with the services of Respondent Nos. 4 to 6 to avoid invidious discrimination in treating the persons placed on the same footing. Hence, in view of the law declared by the Apex Court in various judgments, Respondent Nos. 1 to 3 are directed to consider the case of this petitioner on par with Respondent Nos. 4 to 6 as one time 6 (2009 )8SCC 556 7 (2014) 4 SCC 583 8 (2017) 3 SCC 410 9 AIR 2017 SC 1304 MSM,J W.P No.15219 of 2020 10 regularization scheme, as directed by the Apex Court in State of Karnataka v. M.L. Kesari (referred supra).
With the above direction, writ petition is disposed of. No costs. Consequently, miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:03.09.2020 SP