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2011 DIGILAW 870 (AP)

The Commissioner v. J. Rama Rao

2011-10-13

K.G.SHANKAR, V.V.S.RAO

body2011
Judgment :- V.V.S. RAO, J. The Commissioner of Municipal Corporation of Visakhapatnam is the petitioner. Being aggrieved by the order dated 09.01.2004 in O.A.No.3860 of 2003 of the Andhra Pradesh Administrative Tribunal, Hyderabad, the instant writ petition is filed seeking a writ of certiorari to quash the order of the Tribunal. 2. The respondents 1 to 3 were engaged as Badili workers during the period from 1982 to 1995. Their engagement with occasional breaks depended on regular employee going on leave or falling ill. After the Government of Andhra Pradesh issued G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994, formulating the scheme for regularization and absorption of daily wage employees/NMR or consolidate employees, their services were terminated. The respondents 2 and 3 filed O.A.Nos.6500 and 2391 of 2000 respectively. These were disposed of by the Tribunal on 03.11.2000 and 13.09.2000 respectively directing reinstatement of the respondents who rendered long service. The Commissioner then addressed the Government for appropriate orders. In response thereto, the Government issued orders vide Memo No.9143/N2/1998-06/MA, dated 10.04.2002, and Memo No.5302/N2/2000-12/MA, dated 16.03.2002, directing the Commissioner to engage the respondents 2 and 3 respectively, as Badili workers. In obedience thereto, by proceedings in Rc.No.3656/2001/F2, dated 30.07.2002, the Commissioner ordered the re-induction of the respondents 1 and 2 indicating that the same does not confer any right for continuance of service and their service is liable to be terminated whenever, their services are not needed. Similar order being Rc.No.2179/2000/F2, dated 26.06.2002 was issued in the case of the third respondent. Armed with these orders, the respondents 1 to 3 filed O.A.No.3860 of 2003 seeking a direction to the Visakhapatnam Municipal Corporation (the Corporation) to regularize their services with effect from initial date of appointment with attendant benefits. By impugned order, the learned Tribunal disposed of the said O.A. in the following manner. The case of the applicants is that the applicant Nos.1 and 2 have been reinducted into service into service in pursuance to the proceedings of the Commissioner, Municipal Corporation, Visakhapatnam in Rc.No.3656/2001/F2, dated 30.07.2002 and the applicant No.3 was reinducted vide proceedings No.3179/2000/F2, dated 26.06.2002 and they have been continuing in service. This Tribunal earlier disposed of the O.A. observing that no further orders are necessary in view of the Memo issued by the Government. This Tribunal earlier disposed of the O.A. observing that no further orders are necessary in view of the Memo issued by the Government. Now, the applicants state that even though they have been continuing since long, their cases have not been regularized in clear vacancies. Heard both the counsel and perused the material placed on record. The respondents are required to identify the vacancies that are in existence and thereafter consider the cases of the applicants for regularization in accordance with rules. This O.A. is disposed of with a direction to the respondents to consider the cases of the applicants for regularization in accordance with law and pass appropriate orders. There shall be no order as to costs. 3. In this writ petition, the Corporation contends that the regularization of the respondents is to be considered as per the guidelines contained in G.O.Ms.No.212; the said G.O. does not confer any right for continuance of service and therefore, the direction issued by the Tribunal would go contrary to the scheme of regularization in G.O.Ms.No.212. 4. The counsel for the respondents 1 to 3 would, however, submits that the services of his clients were re-engaged pursuant to the orders passed by the Tribunal in O.A.Nos.6500 and 2391 of 2000 and therefore the matters stand concluded and that the petitioners cannot be denied regularization on the ground that they are Badili workers. 5. There is no dispute that the scheme of regularization as ordered by the Government in G.O.Ms.No.212, dated 22.04.1994, would alone apply. It contemplates regularization of only specified categories of NMR/daily wage employees who were in service as on 25.11.1993 subject to fulfilling certain conditions. The relevant portion of the said G.O. reads as under. Accordingly, Government after careful examination of the whole issue and in super session of all previous orders on the 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 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 Work-charged 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 work-charged 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. 6. As the Government ordered regularization of NMR/daily wage employees, the petitioners were admittedly Badili workers who were engaged with occasional breaks cannot be treated as qualified for regularization as per the G.O.Ms.No.212. In the orders passed by the Tribunal earlier round of litigation was only meant for re-engaging the services of the respondents as Badili workers and it has nothing to do with the regularization. Therefore, the directions issued by the Tribunal in O.A.No.3860 of 2003 impeached herein would amount to give a direction contrary to the binding guidelines issued by the Government and unsustainable. 7. In the result, for the above reasons, the writ petition is allowed and the order passed by the learned Tribunal in O.A.No.3860 of 2003 dated 09.01.2004 is set aside. There shall be no order as to costs.