Andhra HC (Pre-Telangana)
Ch. Venkateswara Rao vs The Principal Secretary To Govt. Animal ... on 19 October, 2001
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. The writ petitioners are the appellants. They filed the writ petitions before this Court inter alia for issuance of a writ of or in the nature of mandamus for quashing the proceedings in G.O.Ms.No.20, Animal Husbandry and Fisheries (Fish. II) Department, dated 25.2.1997 and the consequential order issued in Memo dated 28.2.1987 relieving the petitioners in Fish Farmers Development Agency and Brackish Water Fish Farmers Development Agency. The said agencies are said to be fully owned and controlled by the Government. By reason of G.O.20, dated 25.2.1997, the said agencies were directed to be discontinued. The State Government issued G.O. 45 dated 13.5.1997 removing the petitioners who were directly recruited by FFDAs and BFDAs by giving financial package on line with erstwhile employees of HAL under the provisions of the Industrial Disputes Act.
2. Questioning the same, various writ petitions were filed. In the said petitions, it has been stated that a Committee has been constituted to achieve high yields of production. The case of the petitioners is that the said Agencies were registered under the A.P. Public Societies Registration Act and that they have been continuing in service for more than ten years.
3. A counter affidavit has been filed stating that with a view to promote intensive pisciculture of high yielding varieties of fish, the societies were constituted in order to coordinate the role of State and Central Governments. The said agencies have a managing committee under the Chairmanship of District Collector and an Executive wing headed by Chief Executive Officer. They were registered under A.P. Public Societies Registration Act. Under the scheme, the total payment of subsidy under various programmes were met by Government of India and State Government on 50:50 basis. However, so far as the salaries are concerned, the entire expenditure used to be met from the State funds only. The staff were taken on deputation wherever possible, but some CEOs have appointed locally the staff like Typist-cum Clerk, Driver, Attender after obtaining the approval of the Managing Committee on temporary basis. However, the said scheme of FFDAs and BFDAs became necessary to be dispensed with in IX Five Year Plan for the following reasons:
1. Non achievement of targets by FFDAs of State as assigned by GOI.
2. On evaluation, it was noticed that expenditure on development is less and expenditure on staff and congingenices more comparatively.
3. Due to limitation of funds allotted to Fisheries Department in IX plan.
4. Development of Pisciculture in private sector making Government sponsored FFDAs redundant.
4. Proposals were submitted by the Department for discontinuing of the said agencies where upon G.O. 20 was issued. All the employees who were on deputation had since been repatriated. According to the respondents, their employees who were recruited by the Agencies being not Government servants, they can not be absorbed.
5. It was further contended that in any event the Andhra Pradesh Prohibition of Absorption of Employees of State Government Public Sector Undertakings into Public Service Act, 1997 (Act No. 14 of 1997) was enacted to prohibit absorption of employees of public sector undertakings into public service and for matters connected therewith or incidental thereto. The writ petitions were dismissed inter alia holding that having regard to the provisions of the Act 14 of 1997, the same were not maintainable. In terms of the provisions of the said Act, clear vacancies were required for absorption and having regard to the fact that the agencies are sought to be discontinued, the prayer cannot be granted. In any event, as the writ petitioners have sought for regularisation, they should have approached the Administrative Tribunal at the first instance as indicated in the decision of the Apex Court in L. CHANDRAKUMAR v. UNION OF INDIA1.
6. Mr. Venkata Ramana, learned counsel appearing on behalf of the writ petitioners would contend that the writ petitioners were appointed in terms of recruitment procedure laid down by the State. Learned counsel would urge that having regard to the fact that they had put in service for more than ten years, the State was statutorily bound to absorb them. Our attention, in this connection, has been drawn to G.O. Ms.No.20, Fisheries Department, dated 25-2-1997, which is in the following terms:
7. In the circumstances stated by the Director of Fisheries in his letter read above, Government after careful consideration, order to discontinue the following three schemes with effect from 1.3.1997:
1. Fish Farmers development agencies
2. Brackish water Fish Farmers development agencies.
3. Subsidy for exemption of central excise duty on HSD oil supplied to the Fishing Boats.
8. The learned counsel would contend that having regard to the Memo No. dated 21-2-1997 issued by the Director of Fisheries, the scheme has been made by the State for regularisation of their services, as such the learned single Judge must be held to have erred in dismissing the writ petitions. It was further contended that having regard to the decision of the Apex Court in ASHWANI KUMAR V. STATE OF BIHAR2 the State should be directed to regularise their services.
9. The writ petitioners have not filed their offers of appointment and the terms and conditions of their services are therefore not known. Whether the petitioners had been appointed on substantive basis or temporary basis is also not known. It is now beyond any cavil of doubt that only those who are appointed by the State in the State services, enjoy the status and others do not. What procedures were adopted for recruitment of staff is not known. No material has been brought on record to show that the mandates of Articles 14 and 16 of the Constitution of India were complied with before the offers of appointment could be issued.
10. Having regard to the scheme for creation of agencies as noticed hereinbefore, the submissions of writ petitioners-appellants to the effect that they are employees of the State cannot be accepted. The finances for running those agencies, as noticed hereinbefore, were to be met equally by the Central and the State Governments. The agencies were registered under the Public Societies Registration Act and they were to be managed by a managing committee constituted for that purpose. Only because the Chief Executive Officer happened to be a Collector of the District, the same would not mean that any appointment made by him particularly in the absence of any statutory recruitment rules, the writ petitioners had become the employees of any department of the State.
11. This is not a case where the corporate veil could be lifted for the purpose of finding out as to who is the real employer. In any event, there does not exist any necessity therefore in view of the fact that the writ petitioners have not produced before the Court even their offers of appointment. No public law element is therefore involved, inasmuch as the services of the writ petitioners are not protected under any statute. If they are workmen within the meaning of the Industrial Disputes Act, their remedy lies elsewhere. They under the common law cannot be directed to be regularised in services.
12. The writ petitioners, to say the least, do not have any existing legal right to get their services regularised. A writ of or in the nature of Mandamus, it is well settled, can be issued only when the writ petitioners establish existence of legal right in themselves and corresponding legal duties in the respondents. Even if their services are sought to be terminated illegally, the respondent cannot be directed to reinstate them. . If they are retrenched, they may be entitled to compensation in terms of the provisions of the Industrial Disputes Act or under the common law.
13. The decision of the Apex Court in ASHWANI KUMAR V. STATE OF BIHAR (supra) runs contrary to the contention of Mr. Venkata Ramana In that case, it has been clearly held that all appointments must be made in terms of the provisions of the statute. If the writ petitioners are employees of the State, they could have been recruited only in terms of the provisions of the State and Subordinate Service Rules or any special rules framed in terms of the proviso to Article 309 of the Constitution of India. Neither they have made any such averment nor any material has been produced before us to show that they have ever been treated to be State Government employees.
14. Further more, it is now well known that prolonged service by itself does not give rise to any legal right for change of status in the service.
15. In STATE OF M.P. V. DHARM BIR3it has been clearly held:
Whether a person holds a particular post in a substantive capacity or is only temporary or ad hoc is a question which directly relates to his status. It all depends upon the terms of appointment. It is not open to any government employee to claim automatic alteration of status unless that result is specifically envisaged by some provision in the statutory rules. Unless, therefore, there is a provision in the statutory rules for alteration of status in a particular situation, it is not open to any government employee to claim a status different than that which was conferred upon him at the initial or any subsequent stage of service.
16. In any event, as it is well known, regularisation is not a mode of recruitment. The purported memo dated 21-2-1997 issued by the Director of Fisheries is not a policy decision of the State having not been issued under Article 162 of the Constitution of India. The said circular, therefore, cannot be enforced in a court of law. It is now well settled that a public employment must precede compliance of Articles 14 and 16 of the Constitution of India. Only in terms of statutory instruments or policy decisions, a scheme of regularisation can be framed, in the absence whereof, the wrath of Article 16 of the Constitution will squarely be attracted. The very fact that the petitioners have prayed for regularisation of their services and absorption in the Fisheries Department is itself a pointer to the fact that they are not the employees of the State. So long as a direction for absorption in the Fisheries Department or any other department is not issued, they cannot be treated to be employees of the State Government. The direction issued if any in this behalf by any Court of law would be contrary to the said Act 14 of 1997.
17. Further more, there cannot be any doubt that having regard to the aforementioned provisions, as also G.O.Ms.No. 212, there must exist a clear vacancy. Reference in this connection may be made to SECRETARY, A.P. SOCIAL WELFARE RESIDENTIAL EDUCATIONAL INSTITUTIONS SOCIETY v. P. VENKATA KUMARI4
18. The services of the petitioners had not been terminated. The question which has been raised in these cases is only as to whether in fact they are employees of the State. In the absence of any material, it cannot be decided in writ proceedings. The remedy if any, of the petitioners for the said purposes would be to raise an industrial dispute.
19. We may notice that the Apex Court recently in SAIL VS. NATIONAL UNION WATER FRONT WORKERS5 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.
20. We are further of the opinion that the learned single Judge has rightly held that the writ petitions are not maintainable having regard to the decision of the Apex Court in L. CHANDRA KUMAR (supra).
21. For the reasons aforementioned, there is no merit in the writ appeals and they are accordingly dismissed. However, there will be no order as to costs.