Telangana High Court
Naraboina Pushpa vs The State Of Telangana on 13 July, 2023
Author: P.Naveen Rao
Bench: P Naveen Rao, Nagesh Bheemapaka
HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION NOs.38283, 31400 OF 2022, 16831 OF 2010,
6266 OF 2011 AND 29997 OF 2021
COMMON ORDER :(Per Hon'ble Sri Justice P.Naveen Rao) Petitioners in these writ petitions are working as Masalchis for a very long time in various Courts. For example, petitioner in W.P.No.38283 of 2022 was appointed as Sweeper/Office- Subordinate on 06.07.1999 on part-time basis and he is continuing as on today. All the petitioners are praying to absorb/ regularize them as Office-Subordinates/Class-IV employees in the district judiciary. Some of the petitioners also challenged the decision communicated to them holding that they are not fully eligible and qualified, as on the date of Circular issued by the High Court and cannot be considered for regularization. Petitioners relied on the decision of the Division Bench of this Court in W.P.No.6266 of 2011.
2. In W.P.no.6266 of 2011, the Division Bench having noticed that several petitioners are working under the name of Masalchis for several, stretching upto to 25 years, discharging the duties of Class-IV employees and have been working on continuous basis, even though their employment was treated as part-time and are 2 being paid meager wages, the Division Bench observed and issued the directions as under:
"Resultantly, the State Government as well as the High Court are directed to take appropriate decision in the matter of Masalchis, as they are working for the last 25 years. The decision in respect of Masalchis be taken by the High Court and the State Government and communicated to this Court positively within four weeks.
The learned Advocate General has assured this Court that he will communicate the order passed by this Court to the State Government and the State Government shall look into the matter sympathetically."
3. From the above extracts, it is clear that learned Advocate General assured the Court that he would communicate the order passed by this Court to the State Government and the State Government should look into the matter sympathetically.
4. Even though this order was passed on 21.04.2022, till March, 2023 there was no consideration made by the State Government. Vide letter No.5704/Cts.B/B2/2022, dated 21.03.2023 the claim of petitioners in W.P.No.6266 of 2011 was rejected, but subsequently, the said claim was reviewed and on 11.07.2023, the State Government issued U.O.Note No.2070331- A/175/A1/HRM.II/2023. By this U.O. Note, the Government observed that regularization of services of daily wage or temporary employees is governed by the conditions mentioned in Paragraph No.6. In Paragraph No.7, requested the Home (Courts) Department to obtain appropriate proposals from the Registrar General, High Court of Telangana regarding regularization of petitioners services, if they are eligible in terms of the conditions mentioned in Paragraph No.6. It is also noted that if any one is 3 not eligible, the Registrar General be requested to take necessary action to extend them the minimum of the pay scale attached to the post, if their services are being utilized as full time employees.
5. The Court is also informed that the wages of these Masalchis is now enhanced to Rs.19,000/-. By enhancing the remuneration to Rs.19,000/- the long felt small grievance is resolved but a major grievance regarding granting of regularization is still a mirage. We have used this word mirage deliberately, having regard to the terms specified in Paragraph No.6 of the U.O. Note.
6. Paragraph No.6 of the U.O. Note reads as under :
"It is further informed in this regard that the subject matter of regularization of services of daily wage or temporary employees is governed by the following provisions at present :
1. Section 7 of Act 2 of 1994 read with G.O.Ms.No.212, dated 22.04.1994, which are based on the orders of the Hon'ble Supreme Court in Civil Appeal No.2979 of 1992 and batch dated 12.08.1993 and which are also dealt with and upheld by the Hon'ble Supreme Court in Manjula Bashini's case.
2. The judgment of the Hon'ble Supreme Court in UMADEVI's case, according to which, the services of such of the persons who were working for a period of 10 years or more as on 10.04.2006 only, can be considered for regularization as a one time measure.
3. Section 10-A of Act 2 of 1994, as per which, personnel engaged on contract basis against sanctioned posts in Government can be considered for regularization, subject to fulfillment of certain conditions laid down thereunder."
7. G.O.Ms.No.212 was issued on 22.04.1994 formulating a scheme to regularize services of employees who have completed 4 five years of service as on 01.11.1993 and the scheme was later incorporated into Act 2 of 1994. Thus, the scheme notified vide G.O.Ms.No.212 covered employees who have completed five years of service as on 01.11.1993.
8. The Hon'ble Supreme Court rendered judgment in the Secretary, State of Karnataka and Others Vs Umadevi and Others1. The Hon'ble Supreme Court directed consideration for regularization of services of employees who are not regularly appointed and have completed more than ten years of service. This judgment is subsequent to formulation of scheme vide G.O.Ms.No.212. From what is noted in Sub-Para (2) of Paragraph No.6 of U.O. Note, the Government is also in agreement with the directions issued in Umadevi's case. But the condition imposed in this paragraph would disentitle major chunk of Masalchis even though they have rendered considerable service by now. Therefore, per se, in accordance with the judgment of the Hon'ble Supreme Court in Umadevi there is imminent need to formulate another scheme to consider regularization of service. Though they are called as part-time, the Masalchi is a person who attends to work of Class-IV employee in the Court premises and in the residence of the Judicial Officer. They are expected to be available 24 hours and minimum amount of work extracted from them will be atleast 12 hours on any given day.
1 2006 (4) SCC 1 5
9. In Paragraph No.53 of Umadevi's case, the Hon'ble Supreme Court issued the following directions :
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."
10. The scope of judgment of Hon'ble Supreme Court in Umadevi was considered by the Hon'ble Supreme Court in several subsequent decisions. It is useful to consider the judgment rendered by the Hon'ble Supreme Court in Narendra Kumar 6 Tiwari and others Vs State of Jharkhand and others2, and held as under :
"7. The purpose and intent of the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] was therefore twofold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] and Kesari [State of Karnataka v. M.L. Kesari, (2010) 9 SCC 247 :
(2010) 2 SCC (L&S) 826] sought to avoid.
8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15-11-2000 and the cut-off date was fixed as 10-4-2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.
9. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise -- the interest of the employees is also required to be kept 2 (2018) 8 Supreme Court Cases 238 7 in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.
10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct, etc."
11. In several decisions the Hon'ble Supreme Court frowned upon continuous engagement of the employees on daily wage basis/contract basis/contingent basis without making regular recruitment and without sanctioning the posts required to any Organization/Department.
12. Thus, it is clear that the cut off date of 10.04.2006 as understood by the Government is not correct. In the given circumstances, it is permissible to consider formulating the scheme for regularization of services of temporary employees as and when they complete ten years of service.
13. Thus, the conditions imposed in Paragraph No.6.2 is not valid and we make it clear and direct consideration of the claims of Masalchis in terms of the directions issued by this Court in W.P.No.6266 of 2011 by considering all the Masalchis working as on today who have rendered more than ten years of service. 8
14. Therefore, the Registrar General, High Court for the State of Telangana is directed to send proposals including the names of all the Masalchis working as on today, within a period of six (6) weeks from the date of receipt of copy of this order, duly taking note of Paragraph No.6 of U.O.Note dated 11.07.2023, in the light of what we have observed above. On receiving such proposals, the Government is directed to examine the same and take suitable decision sympathetically, as observed by this Court in W.P.No.6266 of 2011 within six (6) weeks thereafter. We make it clear that this direction is not confined to petitioners in these writ petitions but to all Masalchis working as on today.
15. Learned Standing Counsel furnished list of Masalchis. It is for the Registrar General to verify the list in all the Districts and send consolidated proposals including the names of all the Masalchis who have completed ten years of service as on date.
16. The Court is informed that insofar as petitioner in W.P.No.31400 of 2022 is concerned, consequent to shifting of Court from the jurisdiction of Hyderabad District to Bhongir District, petitioner was terminated. Challenging the said termination, this Writ Petition is filed. By virtue of interim order, petitioner was transferred to the Court in Bhongir District and on such transfer, petitioner was unauthorisedly absent for some time, but later joined the duty. This aspect is for the authorities to consider. If there are similar such facts in individual cases, 9 they are required to be considered and incorporated in the proposals to be submitted to Government.
17. With the above directions, all the Writ Petitions are disposed of. No costs. Miscellaneous petitions, pending, if any, shall stand closed.
__________________________ P.NAVEEN RAO,J ___________________________ NAGESH BHEEMAPAKA,J 13th July, 2023 Rds 10 HON'BLE SRI JUSTICE P.NAVEEN RAO AND HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION NOs.38283, 31400 OF 2022, 16831 OF 2010, 6266 OF 2011 AND 29997 OF 2021 Date: 13.07.2023 Rds