Andhra HC (Pre-Telangana)
P. Dharma Rao And Ors. vs Managing Director, A.P.T.T.D.C. Ltd. ... on 19 March, 1996
Equivalent citations: 1996(2)ALT642
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER B. Sudershan Reddy, J.
1. The petitioners pray for an appropriate writ, order or direction, particularly one in the nature of a writ of mandamus declaring the proceedings of the 1st respondent in Rc.No. 771/P1/Admn./TTDC/94, dated 19-10-1995 as illegal, arbitrary and unjust and consequently direct the respondents to regularise the services of the petitioners in their respective posts together with consequential benefits.
2. All the petitioners herein were selected and appointed on 16-11-1987 by the 1st respondent herein as boat drivers and were allotted to work at various places on consolidated amount of Rs. 400/- per month. Immediately after completion of one year, the 1st respondent, by proceedings dated 26-9-1988 enhanced the wages to the petitioners from Rs. 400/- to Rs. 800/ - per month with effect from 1-10-1988 and thereafter there is a further enhancement in the wages from Rs. 800/- to Rs. 1050/- with effect from 1-5-1992 vide proceedings dated 22-10-1992 issued by the 1st respondent. The salary was again enhanced to Rs. 1268 / - per month in the year, 1993. The petitioners have undergone training for navigation up keep and maintenance of engines and maintenance of modern fishing gears and mechanised boats. They have also undergone training in A.P. Port Department, Kakinada Port during the year, 1991-92 for a period of 12 months. The petitioners also underwent training in Fisheries Department of the Andhra Pradesh Government for a period of 12 months during the year, 1985-86 and all of them hail from poor families and could not further prosecute their studies and they have no other means to live except the job which they are doing.
3. It is specifically stated that the petitioners having been appointed in the year, 1987 are continuously working for a period of more than 8 years in the establishment of the 1st respondent. Their services are yet to be regularised and absorbed by the 1st respondent -Corporation though some of the employees who are working along with the petitioners were absorbed and regularised into their respective services. Several representations made by the petitioners did not yield any result. It is stated that the Government issued G.O.Ms.No. 212, dated 22-4-1994 directing all the establishments under the control of the State Government to regularise the services of all those temporary employees who have put in five years of service and who are continuing in service as on 25-11-1993. The petitioners assert that they have been working continuously ever since the date of appointment in the year, 1987and have already completed five years of service even by 25-11-1993. It is alleged by the petitioners that all the similarly situated employees were considered but not their cases. The petitioners were, therefore, constrained to file W.P.No. 13031 of 1995 and this Court passed orders directing the respondents to consider the case of the petitioners in terms of G.O.Ms.No. 212 dated 22-4-1994. The 1st respondent however, rejected the petitioners' claim for regularisation by orders dated 19-10-1995 on the ground that they have not completed the minimum required period of service of five years as per G.O.Ms.No. 212 dated 22-4-1994 as on 25-11-1993 and the petitioners were not appointed in the sanctioned posts and that there are no clear vacancies.
4. In the instant writ petition, the petitioners assail the said order and contend that the 1st respondent had not taken the service of the petitioners from the date of their initial appointment which works out for more than eight years of service. The action on the part of the respondents herein is alleged to be arbitrary, illegal and contrary to the principles of natural justice.
5. It is categorically asserted by the petitioners that ever since the appointment, the petitioners were engaged continuously in the service of the 1st respondent-corporation and have put up more than 240 days of service in every calendar year.
6. It is stated that as per G.O.Ms.No. 212 dated 22-4-1994, the Government decided to regularise the services of such of those persons who have continuously worked for a minimum period of five years and are continuing as on 25-11-1993. continuous period of working for a period of five years, according to the petitioners, does not mean that they should have worked for all the 365 days in the calender year. In the instant case, the national Festivals, casual leaves and medical leaves were all included for ascertaining as to continuous working days.
7. In the counter-affidavit, the stand taken by the 2nd respondent is that though the petitioners were appointed on 16-11-1987, they did not complete the five years of service and therefore, their services could not be regularised. It is also stated that apart from the said fact of not completing the requisite period of 5 years of service, the petitioners' cases cannot be considered due to the non-availability of the sanctioned posts in the corporation. However, it is admitted in the counter-affidavit, that the first batch of boat drivers were regularised in the year, 1981 after obtaining necessary orders from the then Managing Director as per the powers delegated by the Board of Directors to the Managing Director, A.P. Travel and Tourism Development Corporation Ltd. It is further stated that the daily wage employees were not entitled for any casual leave or medical leave etc., and the wages of the daily wage employees will be paid for the days for which they have actually worked. In nut-shell the case of the respondents is that the petitioners have not worked continuously for a period of 5 years and they were not appointed in the sanctioned posts.
8. In the reply-affidavit, the petitioners have once again asserted their claim and stated they have put in 8 years and 3 months service since 16-11-1987 as Boat drivers under the 1st respondent-Corporation and their service is continuous and without any break. The petitioners have never abandoned their work and remained unauthorisedly absent The petitioners have even asserted that they working on weekly off days, national and festival holidays. It is further stated that if there was any break in service, it was due to the sickness and on account of the weekly holidays and national and festival holidays and not for any other reason.
9. The petitioners have earlier approached this Court seeking appropriate direction for regularisation of their services in terms of G.O.Ms.No. 212, dated 22-4-1994. This Court in W.P.No. 13031 of 1995, directed the respondents herein to consider the petitioners' cases for regularisation and pass appropriate orders thereon within two months from the date of receipt of the said order. The present impugned order is passed by the 1st respondent pursuant to the said directions of this Court and it would be appropriate to extract the operative portion of the impugned order which reads as follows:-
"The Government, after careful examination, have issued instructions vide Lr.No. 782, Tourism, A. 295-3, Dt. 12-10-1995 for issue of speaking orders regarding regularisation of services of daily wage workers dovered in the W.P.No. 13031/95 in terms of C.O.Ms.No. 212, F & P (FWPC.III) Dept., dt. 22-4-94. Therefore, the case of Sri K. Sambasiva Rao, boat driver, the daily wage worker working as boat driver, one of the writ petitioner is examined in due consideration of the following terms as per G.O.Ms.No. 212, Fin & Pig, (FWPC.III) Dept, dt. 22-4-94.
1. He has not completed the minimum required service of 5 years as per G.O.Ms.No. 212, dt 22-4-1994 as on 25-11-93.
2. He has not appointed on the sanctioned post and there is no clear vacancy.
Accordingly, the request of Sri K. Sambasiva Rao, one of the Writ petitioners in Writ Petition No. 13031/95 has been considered and examined in terms of orders issued in G.O.Ms.No. 212, dt 22-4-1994 in pursuance of the orders of High Court in the Writ Petition and found that the individual has not fulfilled the above stipulated conditions and it is decided to reject his request. Hence, the request of Sri K. Sambasiva Rao, Boat Driver is hereby rejected for regulation of his services in the post of Boat driver."
The validity of the said order is the subject-matter of this writ petition.
10. The learned counsel for the petitioners Shri E.D. Nathan, submits that the impugned order passed by the 1st respondent is totally illegal and suffers from arbitrariness. It is submitted that there is no justification whatsoever on the part of the 1st respondent to reject the petitioners" claim on the ground that they have not completed the five years of service as they were not continuously working during the said period of five years. It is the submission of the learned counsel for the petitioner that the continuous service does not mean that the petitioners should have worked on all the 365 days during the year. I find substantial force in submission made by the learned counsel for the petitioners. It would be proper to refer to G.O.Ms.No. 212 dated 22-4-1994 which says:
"Accordingly, Government after careful examination of the whole issue and in supersession of all previous orders on the subject including G.O. Ms.No. 193, General Administration Department, dated 14-3-1990 and keeping in view the above judgment of the Supreme Court of India, have formulated a scheme for regularisation 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 regularised 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 regularised.
(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 backlog 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 and 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 Work charged is at a fixed percentage of P.S. Charges and as soon as the work is over, the services of 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."
11. There is no dispute in the instant writ petition that the petitioners were appointed as early as in the year, 1987 on a consolidated pay of Rs. 400/-per month initially and subsequently enhanced from time to time and as at present the wages are Rs. 1268/- per month on consolidated basis. The plea advanced on behalf of the respondents is to be considered in the light of the material available on record that the petitioners were appointed on consolidated pay as boat drivers and they have been working continuously in the establishment of the 1st respondent since the date of their appointment as such. The 1st respondent himself in his D.O.Letter No. TTDC/P1/Adm:94 dated 7-9-1994 addressed to the Government stating that:
"As per the staffing pattern of the corporation approved by the Board during the year, 1980, requisite number of vacancies are existing in different cadres to accommodate the casual staff. In respect of the Water Transport the staffing pattern did not indicate any posts of Boat drivers since at that time boats were not acquired. Subsequently, the Corporation introduced boats and certain trained boat drivers were recruited on consolidated pay through Fisheries Training Institutes. A list of the Casual employees who have completed 5 years continuous service as on 25-11-1993 and also as on 31-8-94 are enclosed herewith separately.
In order to run the existing transport and Water Fleet Units, Guest Houses and to cope up with the volume of work, the services of these casual employees are found to be essential in future also as per review made by the respective Managers etc."
Therefore, there is no dispute that all the petitioners have been working for a period of more than 5 years as is the requirement in terms of G.O.Ms.No. 212. It is very interesting to see the understanding of the Government as to what is the meaning of 'continuous service'. In its conception. In reply to the D.O. Letter dated 7-9-1994 of the 1st respondent, the Government, by letter No. 761/ A2/T/94, dated 21-3-1995, requested the 1st respondent to furnish full details of the daily wage employees working in the Corporation along with a certificate" to the effect that the daily wage employee has worked for all the days in a month for all the months during the minimum period of 5 years upto 23-11-1993 and received the daily wage amount/consolidated pay etc., and thus every one has worked continuously without and gap even one day in a calendar month during the required minimum period of 5 years and there is no such day on which the employee has not worked and received daily wage amount/consolidated amount. This conception of the Government appears to the root-cause resulting in the impugned order. There is no justification whatsoever on the part of the Government to insist that all those employees who are working on consolidated pay or on daily wage should have continuously worked on every day in every month during all the five years. The interpretation placed by the Government on its own G.O., is not only harsh but also illegal. At any rate, there need be no further discussion on this aspect in view of the 1st respondent's letter dated 7-9-1994 addressed to the 2nd respondent stating that all the petitioners herein have been continuously working for more than five years in terms of G.O.Ms.No. 212 dated 22-4-1994. The 1st respondent further recommended for release of necessary funds and permission to regularise the services of the petitioners as boat drivers.
12. The Supreme Court in Workmen v. American Express International Banking Corporation, while construing the provisions of the Industrial Disputes Act and the expression used therein "actual working under the employer" held that" the said expression cannot mean those days only when the workman worked with hammer, sickle or pen, but must necessarily comprehend all those days during which he was in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc." The same meaning must be given to the expression 'five years continuous service' used in G.O.Ms.No. 212 dated 22-4-1994. Any other interpretation would bring the object of G.O.Ms.No. 212 very close to frustration. The interpretation placed by the Government with regard the continuous period of 5 years, if accepted would result in serious injustice. It would be totally unfair to the employers as the same would amount to insisting that they should work on all the 365 days including on festivals, public holidays and national holidays., while the rest of their colleagues who were working as permanent employees would be away from the work. The interpretation as insisted by the Government, if accepted would run counter to the common sense.
13. Yet another aspect of the matter. In the impugned proceedings, the 1st respondent-Corporation give another reason that the petitioners were not appointed on the sanctioned posts and there is no clear vacancy. This reason given by the 1st respondent-Corporation is absolutely untenable and unsustainable as there is no requirement that the employee who is seeking regularisation under G.O.Ms.No. 212 dated 22-4-1994 should have been appointed in a sanctioned post. The said CO., inter alia, stipulates that the absorption shall be against clear vacancies considered necessary to be continued as per work load excluding the vacancies already notified to the Andhra Pradesh Public Service Commission/District Selection Committee. In the proceedings dated 7-9-1994 herein referred to above the 1st respondent clearly stated that there were clear vacancies and also work-load and necessity not only to continue the petitioners but also to regularise their services in the 1st respondent-corporation. Having said so, the 1st respondent cannot now turn round and say that the petitioners should have been appointed in a sanctioned post. Obviously, the 2nd respondent appears to be the source of inspiration for the belated change in the attitude of the 1st respondent-corporation. Perusal of the record make available pursuant to the rule nisi issued, would clearly show that the 1st respondent was acting merely under the dictation and at the best of the 2nd respondent. The record would also clearly show that there are existing vacancies in the posts of Boat drivers and their services are required in view of the work-load and there is a necessity to continue them in service. The record would further clearly establish that the petitioners have completed the continuous service of more than five years in terms of G.O.Ms.No. 212, dated 22-4-1994. It is the unilateral and arbitrary action on the part of the 2nd respondent that has resulted in the impugned proceedings. The impugned proceedings are clearly illegal and ultra vires G.O.Ms.No. 212 dated 22-4-1994 and the impugned orders are liable to be declared as illegal and they are accordingly declared.
14. It is also necessary to note that the respondents have completed an empty formality of considering the petitioner's cases in terms of the directions of this Court issued in W.P.No. 13031 of 1995 dated 13-6-1995 The respondents have merely completed the ritual but not complied with the directions. They have failed to exercise the discretion in a proper and lawful manner and acted in such a manner as to frustrate the object of the policy. In the circumstances, it is just and necessary that a writ of mandamus shall issue declaring the proceedings as illegal and also consequential direction directing the respondents herein to regularise the services of the petitioners in terms of G.O.Ms.No. 212, dated 22-4-1994. Normally, this Court would have issued a direction directing the respondents herein to consider the petitioners' cases as has been done in the earlier W.P.No. 13031 of 1995 filed by the very same petitioners. In the instant case, in view of the peculiar facts and circumstances of the case and in order to meet the ends of justice, it has become necessary to pass an order giving positive directions which the respondents should have passed had they properly and lawfully exercised their discretion. The law on this aspect as to under what circumstances, such a mandamus in the nature of positive directions to exercise the discretion in a particular manner, could be given by this Court, is declared in Comptroller and Auditor General of India v. K.S. Jagannathan, 1986 (2) SSC 679 as follows:
"There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government of has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226. Issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
15. For all therefore said reasons and in the circumstances of the case, the writ petition is allowed and the petitioners shall have their costs.