Andhra Pradesh High Court - Amravati
Naramamidi Rambabu vs The State Of Andhra Pradesh, on 23 December, 2024
Author: R Raghunandan Rao
Bench: R Raghunandan Rao
APHC010127022021
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3508]
(Special Original Jurisdiction)
MONDAY, TWENTY-THIRD OF DECEMBER
TWO THOUSAND AND TWENTY-FOUR
PRESENT
THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO
THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
WRIT PETITION NO: 7231/2021
Between:
Naramamidi Rambabu and Others ...PETITIONER(S)
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
WRIT PETITION NO: 7233/2021
Between:
Gangupalli Vara Lakshmi ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. SREENIVASA RAO VELIVELA
Counsel for the Respondent(S):
1. S S.NAGESWARAREDDY
2. GP FOR LAW LEGISLATIVE AFFAIRS
2
The Court made the following:
COMMON ORDER:(per Hon'ble Sri Justice Maheswara Rao Kuncheam) The instant Writ Petition No.7231 of 2021 is filed by the petitioners seeking the following main relief:-
".....pleased to issue an appropriate Writ more particularly one in the nature of Writ of Mandamus declaring the action of respondents in not appointing / absorbing the petitioners as attenders / Class IV in the Judicial Ministerial Service even though the petitioners completed more than 5/10 years service as Full Time Masalchis in the unit of 3rd respondent as highly illegal arbitrary and violative of Principles of Natural justice and Art 14 16 and 21 of the Constitution of India and consequently direct the respondents to consider for appointing / absorbing the petitioners as Attenders / Class IV in the Judicial Ministerial Service taking to consideration of their length of service as Full Tine Masalchies and to pass....."
Brief Case of the petitioners:-
2. The Petitioners 1, 3 to 5 submit that they were appointed as Full Time Masalchis in various Courts of the 3rd respondent unit under various proceedings of the year 2009, while the 2nd petitioner was appointed in 2014 as such. It is the case of the petitioners that, the 2nd respondent issued circular vide ROC No.2708/2003-D1(5) dated 28.08.2003, directing all the unit heads to consider the cases of all the qualified full-time or part-time Masalchis, who completed more than 15/10/5 years of service for recruitment to the posts of attenders, 3 subject to availability of roster points, giving preference to their seniority, while imposing ban not to fill up the vacancies of Class IV until further directions.
3. Later, through circular in ROCNo.2708/2003-D1(5) dated 06.01.2004, while confirming the absorption, the ban imposed on filling up Class IV vacancies was lifted. Considering the proceedings of 2nd respondent, the 3rd respondent through proceedings dated 26.02.2005, appointed the masalchis, who fulfilled the conditions, as Attenders.
4. It is further stated that, though the petitioners have completed more than 10 years of service as full-time Masalchies, they are only receiving Rs.3,850/- per month along with allowances, making with very difficult to support their families with such meager salaries. The 1st petitioner made representation on 02.05.2019 to the 3rd respondent requesting to absorb him as a Regular Attender. However, the 3rd respondent returned his representation on the ground that the appointment of the petitioners as Full Time Masalchis does not confer any right to claim future absorption as Class IV employee.
5. It is the further case of the petitioners that, the 2nd respondent considered the request of Masalchis working in the year 2003 and issued a circular, as stated above permitting to absorb them as Class IV employees.
6. In respect of W.P.No.7233 of 2021 is filed by the petitioner seeking the following relief:-4
"......pleased to issue an appropriate Writ more particularly one in the nature of Writ of Mandamus declaring the action of respondents in not appointing / absorbing the petitioner as Attender / Class IV in the Judicial Ministerial Service even though the petitioner completed more than 15 years service as Part Time Masalchis in the unit of 3rd respondent as highly illegal arbitrary and violative of Principles of Natural justice and Art 14 16 and 21of the Constitution of India and consequently direct the respondents to consider for appointing / absorbing the petitioner as Attender / Class IV in the Judicial Ministerial Service taking to consideration of their length of service as Part Time Masalchies and to pass....."
7. On similar lines, as stated by the petitioners in W.P.No.7231 of 2021 the Writ Petitioners in W.P 7233 of 2021 further submits that, she was appointed by the 3rd respondent vide proceedings dated 04.06.2002 as part-time Masalchi and she has been discharging her duties since then. On 17.01.2017 as the petitioner completed more than 15 years of service, she made a representation to the 3 rd respondent requesting to consider her candidature and absorb her as Regular Attender, as done earlier to the similarly appointed persons basing on the directions of the 2nd respondent vide circular dated 28.08.2003. But her representation was returned by the 3rd respondent on 02.03.2017 stating that there are no instructions of the 2nd respondent in that regard. Hence, she approached this Court by way of this writ petition.
8. In nutshell, the petitioners are the Full-Time Masalchis working under the Judicial Ministerial Service, who were appointed through different proceedings, have filed the present writ petitions seeking direction for absorbing them as 5 Attenders/Class-IV on the ground that they have completed more than 5/10/15 years of service in the said post.
Brief case of the respondents:-
9. The 3rd respondent - The Principal District Judge, Eluru, West Godavari District, filed detailed counters in both the writ petitions denying the averments made in the affidavit of the petitioners to some extent and specifically admitting the fact that the petitioners were appointed as Full Time Masalchis through various proceedings issued in its unit.
10. The 2nd respondent vide its circular in Roc.No.2708/2003/5 dated 28.08.2003, directed all the unit heads to consider the cases of all the qualified Full-time Masalchis who had completed more than 15/10/5 years of service in their respective units for recruitment to the posts of Attenders subject to certain pre-requisites. Further, through a circular in Roc.No.2708/2003 dated 06.01.2005, a ban imposed on filling of Class-IV vacancies was lifted. Consequently, the 3rd respondent through proceedings dated 26.02.2005 appointed Masalchis, who have fulfilled the conditions as Attenders, are true and correct.
11. It is the specific case of the 3rd respondent that the petitioners were drawing a minimum pay of Rs.3,850/- in terms of G.O.P No.238 Finance and Planning (PC-III) Department dated 23.09.2005 and the same was enhanced 6 periodically and presently they are drawing a salary of Rs.13,000/- per month. It is also admitted that the representation preferred by the petitioners dated 02.05.2019 by petitioner No.1 seeking absorption as regular attender was rejected by the 3rd respondent on 03.06.2019. This rejection was primarily on the ground that the appointment of the said Writ petitioner as Full-time Masalchi does not confer any absolute right to claim future absorption as Class-IV employees. The Government of Andhra Pradesh, taking into consideration of the dictum of Apex Court dated 12.08.1992 in Civil Appeal No.2979 of 1992, issued G.O.Ms.No.212 Finance and Planning (F.W.P.C.III) Department dated 22.04.1994, whereunder it was decided that the services of the persons who worked continuously for a minimum period of five years and were continuing as of 25.11.1993, be regularized by the appellate authority subject to satisfaction of certain conditions. It is also stated in the counter affidavit that the Government of Andhra Pradesh introduced a specific scheme for regularization and absorption of Daily Wages/N.M.R./Consolidated Pay in G.O.(P).No.112, Finance and Planning (F.W.P.C.III) Department dated 23.07.1997. This scheme allowed for regularization of services of the part-time basis workers who have worked continuously, for a minimum period of ten years and were continuing as of 25.11.1993, the date on which A.P Act 2 of 1994 came into force, subject to fulfillment of certain conditions.
7
12. It is also stated by the respondent No.3 that the petitioners 1, 3 to 5, joined as Full Time Masalchis in the year 2009, while the 2nd petitioner joined as Full Time Masalchi in the year 2014 i.e., subsequent to the Hon'ble High Court Circular Roc.No.2708/2003-D1(5) dated 06.01.2004. As per the circular, the appointment of Full -Time and Part -Time Masalchi in regular vacancy was only a one-time arrangement applicable only to the existing incumbents as on the date of the Circular, providing they met the prerequisite requirements. Since the petitioners joined the service after the issuance of the Circular, it is not applicable to their case.
13. Heard Sri Sreenivasa Rao Velivela, learned counsel appearing for the petitioners in both the writ petitions and Sri N.Nageswara Reddy, learned counsel appearing for the 3rd respondent.
14. As the issues raised in W.P.Nos.7231 of 2021 and 7233 of 2021 are the same, they are being disposed of by way of this common order. Analysis:-
15. In fact, the petitioners are challenging the inaction of the respondents in appointing/absorbing them as attenders in the Judicial Ministerial Service, even though they have completed more than 15/10/5 years of service as full-time Masalchis in the 3rd respondent unit as illegal and arbitrary and are claiming 8 rights similar to those of persons who were absorbed as Class-IV employees as per the Circular dated 06.01.2004 issued by the 2nd respondent.
16. In the light of above facts and circumstances involved in the lis. It is trite to refer to the Constitution Bench dictum of The Apex Court in the case of Secretary, State of Karnataka Vs. Umadevi1, which primarily dealt with the two main issues i.e.,
(a) The right of employees seeking regularization on the ground of working for a long period
(b) And the power of High Court under Art.226 in issuing directions for regularization of employees and held that :
"52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent a service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) v. Governing Body of the Nalanda College. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the Government to make 1 (2006) 4 SCC 9 them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent."
17. Thus, The Hon'ble Supreme Court has directed Constitutional Courts to refrain from issuing directives for the regularization, absorption, or continuation of temporary, contractual, casual, daily-wage, or ad hoc employees unless their recruitment was conducted in accordance with the constitutional framework and regular procedures.
18. Whereas, the Apex Court in Renu Vs. District and Sessions Judge, TIS Hazari Courts, Delhi2, examined all relevant aspects and ground realities more particularly, in the context of Judicial Ministerial Services and took note of all the process that depleted the practices of illegal appointments.
19. Further, the Hon'ble Supreme Court of India, by referring to the above authoritative dictums, categorically reiterated its decision in State of Jammu and Kashmir Vs. District Bar Association, Bandipora3, regarding Regularization of employees in High Courts and in the District Judiciary & Trial Courts, held as follows:-
"......26. The principles will have to be formulated bearing in mind the position set out in the above judgments. Regularisation is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without 2 (2014) 14 SCC 50 3 (2017) 3 SCC 410 10 following the due process envisaged by Articles 14 and 16 of the Constitution....."
20. In the light of the above well settled legal principles, the test in the lis is whether the absorption of the petitioners is legally sustainable or not?
21. Coming to the facts in the instant case, the details of appointment process such as issuance of notification through wide publicity in various newspapers/media to invite applications from as many as eligible candidates, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce before the Selection Committee and preparation of list of successful candidates for appointment of the petitioners has not been disclosed and stated.
22. Another point raised by the petitioners is their seeking parity with others whose services were regularized by the High Court through Roc.No.2708/2003- D1(5) dated 06.01.2004. So, the question revolves around whether employees who joined the service after the issuance of the relevant circulars can claim the benefits that were explicitly meant for earlier incumbents. But in the case on hand, it is established that, the petitioners joined service after the issuance of the Circular date 06.01.2004. Therefore, question of parity as claimed by the petitioners does not arise at all.
23. In addition to the above, the case of the writ petitioners also fails on the ground of negative equality, which means that if there has been a benefit or 11 advantage conferred on one or a set of people, without legal basis, that benefit cannot be relied upon the ground of parity or equality. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner.
24. In this context, it is appropriate to refer the authoritative judicial principle in the State of Odisha Vs. Anup Kumar Senapathi4, which reads as under:-
"In our opinion, there is no concept of negative equality under Article 14 of the Constitution. In case the person has a right, he has to be treated equally, but where right is not available a person cannot claim rights to be treated equally as the right does not exist, negative equality when the right does not exist, cannot be claimed."
25. Very recently, the Hon'ble Supreme Court of India in S.L.P. (Civil) No.27549 of 2024 dated 10.12.2024, dealt with the regularization of temporary employee, who was seeking parity with others who have received the benefit of regularization, reiterated the ratio's decided in Uma Devi (supra) as well as discussed the concept of negative equality. Which further supports our reasoning.
26. Although the petitioners at first glance may appear appealing, but a deeper analysis reveals a potentially disastrous outcome as it stands as an antithesis to the "Doctrine of Equality", which is one of the fundamental principles of the 4 (2019) 19 SCC 626 12 Constitution of India. Hence, the case of the writ petitioners is liable to be dismissed. The writ petitions are accordingly dismissed.
There shall be no order as to costs. The miscellaneous applications pending, if any, shall stand closed.
____________________________ JUSTICE R RAGHUNANDAN RAO ___________________________________ JUSTICE MAHESWARA RAO KUNCHEAM Date: 23.12.2024 GVK 13 49 THE HON'BLE SRI JUSTICE R RAGHUNANDAN RAO and THE HON'BLE SRI JUSTICE MAHESWARA RAO KUNCHEAM WRIT PETITION Nos.7231 & 7233 of 2021 Date:23.12.2024 GVK