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2010 DIGILAW 129 (AP)

Mohd. Ghouse v. State of Andhra Pradesh

2010-02-24

GHULAM MOHAMMED, P.V.SANJAY KUMAR

body2010
ORDER (Per Ghulam Mohammed, J.) This writ petition is filed seeking to issue a writ of certiorari calling for the records relating to and connected with proceedings No.Estt.I(2)784/97, dated 20-9-2000 and set aside the same as being illegal, arbitrary, unconstitutional, without jurisdiction and violative of principles of natural justice and also violative of Article 14, 16 and 21 of the Constitution; to declare the order dated 24-8-2004 passed in O.A.No.5799 of 2000 by the A.P Administrative Tribunal, Hyderabad, as being erroneous, perverse and contrary to law and consequently declare the petitioner is entitled to be continued as Watchman with all consequential benefits including difference of pay scale, arrears, etc; also to set aside the proceedings No.ADM(N)A/714/2000/858, dated 28-2-2006 as being wholly illegal, arbitrary and unconstitutional, without jurisdiction and violative of principles of natural justice. 2. The facts stated are:- The writ petitioner herein was appointed as Wathchman in the office of the 3rd respondent-the Assistant Director of Marketing, Nalgonda, Nalgonda District, under Rule 3 (a) of the A.P. Last Grade Service Rules, 1992, on being sponsored by the Employment Exchange, Nalgonda, in the existing vacancy caused due to the promotion of one Sri K. Sudhakar, Watchman as Junior Assistant. The services of the petitioner were also regularized as per Rule 10 of the AP. Last Grade Service Rules, 1992, having declared his probation as satisfactory on 9-4-1997. However, after three years thereafter, the 3rd respondent issued show cause notice to the petitioner on 19-7-2000 as to why his services as Watchman should not be terminated for his appointment was irregular and made against the provisions of A.P. (Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994, (Act 2 of 1994). The petitioner questioned the said show cause notice before the A.P. Administrative Tribunal in O.A.No.4798 of 2000. The Tribunal by order dated 9-8-2000 directed the 3rd respondent to take the explanation of the petitioner and submit the file to the Director of Marketing, AP., Hyderabad to examine the matter and pass appropriate orders. Thereupon, the Director of Marketing, Andhra Pradesh, Hyderabad, passed order dated 20-9-2000 removing the petitioner from service as his appointment was found to be in contravention of the provisions of Act 2 of 1994. Thereupon, the Director of Marketing, Andhra Pradesh, Hyderabad, passed order dated 20-9-2000 removing the petitioner from service as his appointment was found to be in contravention of the provisions of Act 2 of 1994. Questioning his order of removal, the petitioner filed the instant O.A The Tribunal by the impugned order while disposing of the O.A, upheld the termination order passed against the petitioner by observing that his appointment was contrary to the provisions of Act 2 of 1994, however, given liberty to the authorities to consider issuing fresh posting to the petitioner, if there is a sanctioned post of Watchman existing under the control of 3rd respondent, along with other eligible persons as that of the petitioner. Further aggrieved by the same, the present writ petition is filed by the applicant in the O.A 3. Heard the learned counsel for the petitioner-applicant and the learned Government Pleader for Services-I. Perused the impugned order passed by the Tribunal. 4. Learned counsel for the petitioner strenuously contended that the provisions of Act 2 of 1994 are not applicable to the case of the petitioner inasmuch as the petitioner was appointed in an existing vacancy on being sponsored by the concerned Employment Exchange and his appointment was made in terms of Rule 3 (a) of A.P Last Grade Service Rules, 1992, and subsequently his services were regularized under the same Rules and therefore, the impugned order is not sustainable and is liable to be quashed. 5. On the other hand, learned Government Pleader for Services-I submitted inasmuch as the appointment was made after enactment of Act 2 of 1994, the appointment is contrary to Sections 3 and 7 of Act 2 of 1994. 6. Admittedly, consequent to the Government orders issued in G.O.Ms.No.9, dated 8-1-1981, one Sri K. Sudhakar, Watchman working in the office of 3rd respondent was converted into regular service under the A.P. Last Grade Service Rules with effect from 17-9-1984 and further the said person was promoted as Junior Assistant and, therefore, there was clear vacancy of Watchman in the office of 3rd respondent. It is on record that the candidature of the petitioner was sponsored through the concerned local employment exchange for the post of Watchman and pursuant to that he was appointed as Watchman by proceedings dated 17-10-1994 in the existing vacancy under Rule 3(a) of the A.P. Last Grade Service Rules, 1992 and his services were regularized under Rule 10 of the Rules in the year 1997. It is noticed that three years thereafter, the petitioner was issued with a show cause notice and ultimately termination orders were passed. Though the appointment of the petitioner was labeled as temporary, all the formalities required were followed in appointing the petitioner. 7. Section 3 of the A.P (Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994, (Act 2 of 1994), deals with prohibition of daily wage appointment and regularization of temporary appointments. The said Section 3 of the Act reads thus:- "3 (1) The appointment of any person in any public service to any post, in any class, category or grade as a daily wage employee is hereby prohibited. (2) No temporary appointment shall be made in any public service to any post, in any class, category or grade without the prior permission of the competent authority and without the name of the concerned candidate being sponsored by the Employment Exchange". 8. Further Section 7 of the Act which deals with the bar of regularization of services, reads thus:- "7. No person who is a daily wage employee and no person who is appointed on a temporary basis under Section 3 and is continuing as such at the commencement of this Act shall have or shall be deemed ever to have a right to claim for regularization of services on any ground whatsoever and the services of such person shall be liable to be terminated at any time without any notice and without assigning any reasons: Provided that in the case of Workman falling within the scope of Section 25-F of the Industrial Disputes Act, 1947, one months wages and such compensation as would be payable under the said section shall be paid in case of termination of services: Provided further that nothing in this section shall apply to the Workmen governed by Chapter V-B of the Industrial Disputes Act, 1947." 9. It is clear from a reading of the above provisions that no temporary appointment shall be made in any public service to any post, in any class, category or grade without the prior permission of the competent authority and without the name of the concerned candidate being sponsored by the Employment Exchange. But in the instant case the petitioner was appointed in the existing vacancy and his name was sponsored by the local employment exchange and he was appointed by the 3rd respondent. It is not the case that the petitioner has misrepresented or suppressed the facts to the authorities and the petitioner may be aged around 55 years. It is stated that since his appointment in the year 1994, he is continuing as such, therefore, the doctrine of equity demands he should not be dislodged from the employment for no fault of his. Under those circumstances, we are of the view that the impugned order of the Tribunal is unsustainable and it is hereby quashed. In the result, the writ petition is allowed. No order as to costs