Andhra Pradesh High Court - Amravati
The State Of Ap vs K Venkataramaiah on 6 November, 2020
Bench: C.Praveen Kumar, J. Uma Devi
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HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE MS.JUSTICE J.UMA DEVI
Writ Petition No. 4247 of 2019
AND
Writ Petition No. 4994 of 2019
COMMON ORDER:(per the Hon'ble Justice Sri. C. Praveen Kumar)
1) Heard both parties. Since the reliefs claimed in both the Writ Petitions are one and the same, they are disposed of by this Common Order through BlueJeans video conferencing app, at the admission stage.
2) Assailing the Orders passed by the Andhra Pradesh Administrative Tribunal, dated 13.09.2017 and 05.12.2017, in O.A. No. 1740 of 2017 and O.A. No. 3263 of 2017 respectively, the State of Andhra Pradesh, preferred Writ Petition No. 4247 of 2019 and Writ Petition No. 4994 of 2019 under Article 226 of Constitution of India.
3) For the sake of convenience, it would be proper to take W.P. No. 4994 of 2019 as a lead petition and the parties will hereinafter be referred to as arrayed in the O.A.
4) The circumstances which lead to filing of the present Writ Petition are as under:
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i. Challenging the conditions prescribed in Clause 5 of G.O.Ms. No. 11, Finance (HR.III) Department, dated 20.01.2017, the Applicant in O.A., who is the Respondent in the Writ Petition, filed O.A. before the Tribunal, on the ground that, it is contrary to the law and spirit of G.O.Ms. No. 212, dated 22.04.1994.
ii. The Applicant was appointed as a Daily Wage Worker with effect from 04.07.1985 on due process of selection by a competent authority. Vide Proceedings, dated 18.03.1991, the Assistant Director of Sericulture, Ongole, extended the benefit of fixation of remuneration at Rs.740/-, on completion of five [05] years of continuous service as a daily wage worker. iii. While things stood thus, the Government has formulated a scheme for regularization of those employees who have completed five [05] years of service as on 23.11.1993 and continuing in service, as eligible for regularization vide G.O.Ms. No. 212, dated 22.04.1994. Though, the Applicant has completed five [05] years of service as a daily wage worker, but, his request for regularization was not considered, which according to the Applicant is violative of G.O.Ms. No.212, dated 22.04.1994.
3iv. Taking into consideration the Judgments of the Apex Court and also that of the combined High Court of Andhra Pradesh, the 3rd Respondent submitted proposals for regularization on 15.01.2017, pursuant to which the Government took a decision to regularize the services of eligible persons and consequently issued G.O.Ms. No. 11, dated 20.01.2017, creating 726 supernumerary posts of Field Assistants in Sericulture Department. This appears to have been done to regularize the services of those persons, who satisfy the requirements of not only G.O.Ms. No. 212, but, also Clause 9 of G.O.Ms. No. 11.
v. Paragraph No. 9 of G.O.Ms. No. 11, contemplates that the eligible incumbent have to be put in on probation before regularization of their services; while Clause 8 states that, the said Government Order would operate in respect of persons who have completed five [05] years of service as on 25.11.1993 and whose services have not been regularized for want of vacancies.
vi. Pursuant to the directions issued by the Government on 08.02.2017, the Commissioner issued instructions to the Appointing Authorities to regularize Full Time Contingent Employee Services in the category of Field 4 Assistants by filling/allotting 49 posts in Prakasam District, in which, the Applicant was one. vii. On 10.02.2017, the 4th Respondent in the O.A., issued proceedings appointing the Applicant on temporary basis as Field Assistant; put him on probation under Rule 10(a) of State and Subordinate Service Rules, 1996, and posted him as Technical Service Center, Yerragonda. Though, the Applicant retired from service, on 01.05.2017, on attaining superannuation, but, the O.A. came to be filed challenging the stipulations contained in paragraph no.9 of G.O.Ms. No. 11. viii. After considering the rival arguments advanced and taking into consideration the averments in the petition and counter, the Tribunal by its Order, dated 05.12.2017, allowed the O.A. to regularize the service of the Applicant with effect from 25.11.1993, and on such, the Applicant was also held entitled for notional pay fixation and that the service from that day shall be counted only for the purpose of pension and pensionary benefits. The Order was directed to be implemented within a period of three [03] months from the date of receipt of the order. Challenging the same, the State of Andhra Pradesh preferred the present Writ Petition. 5
5) The only argument advanced by the learned Government Pleader is that, though the earlier orders were passed by this High Court and also by the Apex Court, regularizing the services with effect from 25.11.1993 and that the employees therein were held entitled for notional pay fixation, and that the service should be counted only for the purpose of pension and pensionary benefits, but, the Applicant herein is not entitled to any such benefit in view of the conditions stipulated in Clause 9 of G.O.Ms. No. 11. In other words, her argument is that, in view of G.O.Ms. No. 11, the manner of recruitment/absorption/ regularization of services of employees as contemplated in G.O.Ms. No.212 are not applicable.
6) The same is opposed by the learned Counsel for the Applicant/employee contending that, Clause 9 of G.O.Ms. No.11 has been incorporated only to defeat the benefits, which the Applicant is entitled to and also to nullify the judgments of the Apex Court and this Court, which, according to the Applicant are illegal and incorrect. He placed reliance on various Judgments of the Supreme Court, High Court and the Tribunal, to show that the earlier orders cannot be made watered down by bringing into force a new Government Order, which is in complete violation of the law laid down in the Judgments delivered earlier. 6
7) The point that arises for consideration is, whether the Applicant is entitled for the relief claimed by him?
8) Before going further, it is to be noted that, persons who stand on the same footing as that of the Applicant, filed O.A. Nos. 1740, 1741, 1761 of 2017 before the Tribunal seeking the very same relief as sought for by the Applicant herein. By an Order, dated 13.09.2017, the Tribunal allowed those O.A's holding that the Applicants therein are entitled for regularization of service with effect from 25.11.1993, and they are also held entitled for notional pay fixation and that the services from that day shall be counted only for the purpose of pension and pensionary benefits. The said Order has become final. No material has been placed before the court to show as to whether the said Order was either challenged or stayed by this Hon'ble Court or by the Apex Court.
9) At this stage, it is also to be noticed that the Applicant herein filed Writ Petition No. 5001 of 2020 before this Hon'ble Court seeking implementation of the Order passed in O.A. No.3263 of 2017 [which is the subject matter of challenge in W.P. No.4994 of 2019]. By an Order, dated 27.02.2020, a Division Bench of this Court allowed the Writ Petition and directed the authorities to take action and see that orders of the Tribunal are implemented within a period of three [03] months from the date of receipt of a copy of the Order. 7
10) Therefore, as things stand today, there is an Order passed by the Division Bench directing the authorities to implement the order impugned herein and an order of the Tribunal, wherein, persons similarly situated were given the benefit, which remained unchallenged.
11) At this stage, it would be useful to refer to the two Government Orders. G.O.Ms.No. 212, dated 22.04.1994, which was issued for regularization and absorption of daily wage/ NMR or consolidated pay employees under a specified scheme. It may not be necessary to extract the entire Government Order, but suffice to extract the relevant portion, which is as under:
"...... Their appointment was made without following rule of reservation and in the case of Workcharged employees, there is no work for them as the specific work for which they were appointed has already been completed. 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 regularization of service on any ground, it has been the endeavor of the Government to regularize as many as NMR/Daily wage employees as possible who are otherwise qualified depending on the requirement of the workload while keeping in mind the hardship that would be caused if their services are not regularized. The Hon'ble Supreme Court in its Judgment dated 12.08.1992 in Civil Appeal No.2979/92 and batch have also observed to evolve an appropriate police for regularization. Accordingly, Government after careful examination of the whole issue and in supersession of all previous orders on the 8 subject including G.O.Ms.No.193, General Administration Department, dated 14.03.1990 and keeping in view the above judgment of Supreme Court of India, have formulated a scheme for regularization 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 regularized by the appointing authorities subject to fulfillment 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 regularized.
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 back-log 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 Workcharged Establishment, where there will be no clear vacancies, because of the fact that the expenditure on Workcharged is at a fixed percentage of P.S. charges and as soon as the work is over, the services of 9 Workcharged 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".
12) While G.O.Ms.No. 11 is dated 20.01.2017, would reveal that the Department of Sericulture has sanctioned 726 supernumerary posts in the Sericulture Department for the purpose of regularization of services of Full Time Contingent Employees, who were appointed prior to 25.11.1993 and eligible for regularization of services in terms of G.O.Ms.No. 212, Finance & Planning (FW.PC.III), dated 22.04.1994. Clause 8 and 11 of the said Government Order, which are relevant, read as under:
"8. In the reference ninth read above, Commissioner of Sericulture, Andhra Pradesh, has furnished the details of seven hundred and twenty six (726) full time contingent employees who have completed 5 years of service as on 25.11.1993 and whose services have not been regularized for want of clear vacancies.
11. The Commissioner of Sericulture, Andhra Pradesh, shall distribute the posts sanctioned in paragraph nine above among the units in which the persons mentioned in the annexure to this order are working and issue necessary instructions to the appointing authorities concerned to regularize the services of the persons mentioned in the annexure to this order and place them on probation with effect from the date of sanction of the supernumerary posts, duly verifying thoroughly about the fulfillment of eligibility criteria laid down in government orders second and third read above and the service rules applicable. The appointing authorities 10 shall be personally responsible for any lapses or irregularities in implementation of these orders".
13) From a reading of G.O.Ms.No. 11, it is clear that, the same was issued for filling up vacancies in a particular department and for regularization of services of its employees in terms of G.O.Ms.No.212. However, Clause 9 imposes a restriction which is to the effect that the incumbent should be placed on probation with effect from the date of sanction of the supernumerary posts.
14) The grievance of the Applicant is that, having put in 30 years of service as a daily wage employee, directing him to be placed on probation, at the fag end of the service, would virtually amount to denying the benefits given to all other employees, who were covered under the G.O.Ms.No.212, and who are working in other departments, which is in violation of Article 14 of the Constitution of India.
15) Insofar as the applicability and legality of G.O.Ms.No.212 is concerned, the Apex Court on more than one occasion considered the same. In District Collector/ Chairman and Others v. M.L. Singh and Others1, the Hon'ble Apex Court while considering the case of daily wage workers, who have put in more than five [05] years of service as on 25.11.1993, directed the services of the incumbent, therein, to be regularized, in terms of G.O.Ms.No.212, dated 1 (2009)8SCC480 11 22.04.1994. Similar such view was taken by the Apex Court in B Srinivasulu S/o. Padmanbaiah & others v. The Nellore Municipal Corporation represented by its Commissioner, Nellore District, Andhra Pradesh and Others delivered in Civil Appeal No. 6318 of 2015, dated 17.08.2015.
16) In A. Manjula Bhashini and Others v. Managing Director, Andhra Pradesh Women's Cooperative Finance Corporation, the Apex Court dealt with a situation where employees, who were employed on daily wage basis did not complete five [05] years as on 25.11.1993, but still writ petitions came to be filed challenging G.O.Ms.No. 212 before the Tribunal and also before the High Court. The part- time employees who were not covered by G.O.Ms.No.212 also approached the court claiming regularization of their services. Pursuant to the interim orders passed by the court, the State Government issued G.O.(P) No.112, dated 23.07.1997, regularizing part time employees, who had worked continuously for a minimum period of 10 years and were continuing as on 25.11.1993, subject to certain conditions.
17) It may not be necessary for us to go into the issue as to whether the authorities were justified in having a cut off date as 25.11.1993, but the issue of vacancy as a criteria for 12 regularizing the service, was deliberated and decided, by the Apex Court and also by a Division Bench of this Court.
18) In The Government of A.P. rep. by its Principal Secretary, PR & RD Department and Others v. N. Venkaiah and Others2, (few paragraphs from the judgment of the Division Bench are required to be referred to here), the very same argument, as advanced now, was advanced in the said case, namely, that regularizing the services would not arise unless there is a clear vacancy as on 25.11.1993, and that their services cannot be regularized for notional purpose. Answering the same, the court held as under:
"33. The sheet-anchor of the argument of the learned Government Pleader for Services, Andhra Pradesh, is that even as per the law laid down in M.L.Singh and A. Manjula Bhashini, regularization should be only upon fulfillment of the conditions enumerated in G.O.Ms.No.212. She would therefore contend that without evidence of clear vacancies being available as on the date of completion of five years of service or as on 25.11.1993, none of the petitioners can seek regularization from that date even for notional purposes.
34. It is no doubt true that in M.L. Singh and again in A. Manjula Bhashini, the Supreme Court categorically held that the conditions mentioned in G.O.Ms.No.212 must be fulfilled. Be it noted that even in B.Srinivasulu, the Supreme Court directed that the services of B.Srinivasulu and the others should be regularized with effect from the date of their completing five years 2 2018(3)HLT462(DB) 13 continuous service, as was laid down by the Supreme Court in M.L.Singh. However, no reference was made to the later observation in M.L.Singh to the effect that the other conditions laid down in G.O.Ms.No.212 would have to be satisfied for the purpose of regularization.
35. It cannot be gainsaid that when the Government formulated the policy for regularization in service of daily wagers and the like as a one- time measure vide G.O.Ms.No.212, the conditions stipulated therein must ordinarily be fulfilled before one can seek the benefit of such policy decision. However, on facts, the said policy was not implemented with promptitude, application of mind, dispatch and consistency. Despite the Supreme Court directing the Government and its instrumentalities to undertake such an exercise fifteen years later in A.Manjula Bhashini, the State and its instrumentalities even now show only an inclination to dilute and water down the benefits extended under G.O.Ms.No.212. There is no indication of any serious exercise having ever been undertaken to ascertain as to when clear vacancies arose in any particular department or to take expeditious measures to give effect to G.O.Ms.No.212 by filling up such vacancies with those daily wage/ temporary/NMR employees who had completed five years in service by 25.11.1993 and were still continuing in service. The policy under the G.O. required such an exercise to be taken up on a regular basis so as to benefit those covered by the G.O.
45. It may also be noted that in Government Of Andhra Pradesh V/s. T. Prabhakar, a Division Bench of this Court considered the entitlement of employees of the A.P. Agricultural University to be regularized in service under G.O.Ms.No.212. On facts, the Bench found that the employees, four in number, did not fulfill the conditions under G.O.Ms.No.212 though they had technically put in more than five years of service by the cut-off date, 25.11.1993, as part of their services were rendered before 14 they attained the minimum age of 18 years. The University had refused to grant any relaxation. The Division Bench observed that regularization under G.O.Ms.No.212, being prospective in effect, the practical approach would be to see whether for a period of five years before such regularization, the employee was in service, duly fulfilling all the conditions, and if such an approach is adopted, the four employees did fit into the process. The Bench observed that ultimately one must see that the G.O. was not used as a device to enable or permit the Government or the University to exploit helpless unemployed persons and if the matter of their regularization was viewed in such a manner, the fact that minor children were engaged to do hard labour and were exploited also had to be taken note of. The Division Bench further observed that the State and its agencies could not exploit the unemployed youth in such a manner and, therefore, regularization of the services of the four employees was held justified.
53. On the above analysis, the writ petitions are disposed of directing the authorities concerned to extend the benefit of B.Srinivasulu to the employees in this batch of cases by reckoning their services from the date of completion of five years in service, on or before 25.11.1993, for the purposes of their pension and pensionary benefits. They shall however not be entitled to actual monetary benefits for the said period, in the form of arrears of pay or allowances".
19) From the judgment of the Division Bench of this court, it is very clear that a mandate has been issued to the Government to regularize the services of those employees who have completed five [05] years of service as on 25.11.1993, for the benefits stated therein, for the purpose of pension and pensionary benefits.
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20) On the other hand, the learned Government Pleader placed reliance on the judgments of the Apex Court in Union of India and Another v. Kartick Chandra Mondal and Another, dated 15.01.2010 and State of Bihar v. Upendra Narayan Singh3 in support of her plea.
21) But, it is to be noted that, in Venkaiah's case the Division Bench of the combined High Court of Andhra Pradesh after referring to the above judgments of Apex Court further held as under:
"48. Relying on this legal principle, the learned Government Pleader would contend that even if benefit was given to the appellants in B.Srinivasulu, as the said decision proceeded on a misconception of fact, the said benefit could not be claimed as a matter of right by others similarly situated, when there is no evidence forthcoming of the existence of clear vacancies for them to claim retrospective regularization.
49. It may be noted that in the counter filed before the Supreme Court in B.Srinivasulu, the Nellore Municipal Corporation categorically took the plea that there were no clear vacancies available for B.Srinivasulu and the others to claim regularization from the dates that they completed five years in service. Despite this specific ground being taken, the Supreme Court found no merit in this contention and allowed the appeal by the order dated 17.08.2015. Even if the said order recorded the facts incorrectly, in as much as the order seems to proceed on the erroneous assumption that the services of B.Srinivasulu and the others were never regularized, overlooking the fact that they had been regularized in 3 (2009)5SCC69 16 service in the years 2002 and 2006, once the specific ground was taken that no vacancies were available for them to claim regularization from the earlier dates, the Supreme Court is presumed to have been aware of this aspect of the matter when it adjudicated the case. It is not for this Court to impute to the Supreme Court, ignorance of a ground specifically raised in the case.
Despite the said issue being raised, the Supreme Court, in its wisdom, held that no grounds were made out to hold in favour of the Corporation and allowed the appeal vide the order dated 17.08.2015, directing the Corporation to regularize the services of B.Srinivasulu and the others from the dates that they completed five years in service.
50. As already pointed out, when no regular exercise was ever undertaken in any Department to assess the vacancy position so as to immediately extend benefit to those covered by G.O.Ms.No.212, it is not open to the State to now come forward and say that there were no vacancies as on the date that the employees in question completed five years in service, on or before 25.11.1993. A mere assertion in this regard is nothing short of an unsupported self-serving ipse dixit on the part of the State and its instrumentalities and cannot be accepted at face value. Further, the facts in some of the cases on hand clearly demonstrate that despite clear vacancies being available, no timely steps were taken. Further, when such employees were retained in service for decades together, the necessity to continue them as per the workload is manifest and clearly demonstrated, requiring no further evidence. In such a situation where the State and its instrumentalities are responsible for the situation where it cannot be assessed now as to whether Condition No.5 in G.O.Ms.No.212 stood fulfilled as on the date of completion of five years in service by the employees concerned, the benefit of doubt would invariably have 17 to be given to the said employees and not to the State. It is perhaps this very aspect that weighed with the Supreme Court in B.Srinivasulu, as no mention was made therein of strict compliance with Condition No.5 in G.O.Ms.No.212, despite the said issue being brought up by the Nellore Municipal Corporation".
22) Hence, the stipulation in Clause 8 of the G.O.Ms. No.11, namely, that there has to be a clear vacancy to regularize the services has been answered in the judgments referred to above, negating the plea of the Government Pleader.
23) The next question would be, whether the condition imposed in Clause 11 that an Applicant should be placed on probation from the date of creation of post can be held to be valid?
24) As observed by us earlier, O.A. Nos. 1740, 1741 and 1761 of 2017 filed by daily wage employees questioning the conditions prescribed in Clause 9 of G.O.Ms. No. 11, were allowed by the Tribunal, on 13.09.2017. This Order has become final and it was never challenged by the State. But, in so-far-as the Applicant herein is concerned, the same was challenged before this Court by the State.
25) It is to be noted that, in view of the stipulation put-in with regard to probation, the service rendered for about 30 years as daily wage employee, would become nugatory. The material placed before the court would show that, pursuant to the judgments delivered by the Apex Court and also by this 18 Court, Government has come up with a scheme for regularizing the services of daily wage employees, who have put in more than five years of service as on 25.11.1993. For implementation of the said scheme, instructions were given by the Commissioner, Sericulture, to regularize full time contingent employees in the category of Field Assistants. In- stead of implementing the said Judgment of the Apex Court and G.O.Ms. No. 212, strangely, Clause 11 came to be inserted in G.O.Ms.No. 11, denying the benefit, which got accrued to the Applicant, by virtue of G.O.Ms. No.212. The said condition, in our view, is in deviation of the objects and reasons and the policy decision of the Government made under Act No. 2 of 1994, [Andhra Pradesh [Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure] Act, 1994] as well as G.O.Ms.No. 212, which is having statutory flavor by virtue of Act 27 of 1998, and which was upheld by the Hon'ble Apex Court in the case of A.Manjula Bhashini and Others [supra]. Therefore, the conditions stipulated in Clause 11 would run contrary to object of Act 2 of 1994 as amended by Act No. 27 of 1998 and G.O.Ms. No. 212, which were upheld by the Apex Court. By virtue of said clause, the dicta of the Apex Court, which contemplates regularization on completion of five years of continuous service as on 25.11.1993, is sought to be nullified and, in-fact, the same goes against the spirit of the 19 scheme of the Government and also violates Article 14 of the Constitution as such an embargo was never postulated or contemplated while regularizing the services of daily wage employees in other department.
26) It is an admitted fact that, the Applicant herein has put in more than five [05] years of service as on the cutoff date mentioned in G.O.Ms. No. 212. In-fact, it has come on record that, he along with others have put in more than 30 years of service. Though the Applicant and other satisfied the requirements of G.O.Ms. No. 212, G.O.Ms. No. 11, dated 20.01.1997, issued later to regularize the services (containing conditions as in G.O.Ms. No. 212, i.e., Applicant has to complete five years of service as on 25.11.1993), but, however, for want of clear vacancies, the services could not be regularized. Having realized the same, 726 new posts were created, which clearly demonstrates that the Government knowing the factual situation acted belatedly in regularizing the services of the employees, for which the daily wage employees should not be put to loss. As per the said Government Order, about 726 posts were needed to fill up the vacancies in one department i.e., Sericulture, meaning thereby that, 726 persons were working since many years without their services being regularized. The same situation prevailed in the year 1994 when G.O.Ms. No. 212 was issued. That being so, incorporating a condition of putting the daily 20 wage employee's on probation, from the date of creation of supernumerary posts, in our view, is illegal and improper and it is being done to deny the benefits which he/they/is/are entitled to. Hence, we see no reason to interfere with the Order, dated 05.12.2017, in O.A. No. 3263 of 2017 and Order dated 13.09.2017, in O.A. No. 1740 of 2017, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, and the Writ Petitions are liable to be dismissed.
27) Accordingly, the Writ Petitions are dismissed. No order as to costs.
28) Consequently, miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR _______________________ JUSTICE J. UMA DEVI Date: 06.11.2020 SM.
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HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND HON'BLE MS.JUSTICE J.UMA DEVI Writ Petition No. 4247 of 2019 AND Writ Petition No. 4994 of 2019 Date:
SM.