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2020 DIGILAW 675 (TS)

K. Prabhakar Reddy v. State of Telangana

2020-09-08

M.S.RAMACHANDRA RAO, T.AMARNATH GOUD

body2020
ORDER : In these three Writ Petitions common law of questions of fact arise for consideration, and so they are being disposed of by this Common Order. 2. The service details of petitioners are as under: S.No. W.P.No. Name of Petitioner Date of joining in the 3rd respondent University Post in which joined on daily wages Date of retirement S.No. W.P.No. Name of Petitioner Date of joining in the 3 rd respondent University Post in which joined on daily wages Date of retirement 1. 7098/2020 K.Prabhakar Reddy 12.8.1993 Clerk-cum-Typist 2. -do- M.Venkatiah 2.4.1993 -do- 30.4.2020 3. -do- K.Ravindra Reddy 2.11.1993 -do- 4. -do- Dr.D.Satyanarayana 2.11.1993 -do- 5. 7125/2020 K.M.Ramulu 9.11.1993 -do- 6. 7768/2020 S.Ajaywardhan Reddy 20.10.1993 -do- 31.5.2018 as Junior assistant 3. The petitioners in these three Writ Petitions are/were employees of the Potti Sreeramulu Telugu University (for short, ‘the 3rd respondent’). 4. All the petitioners had been given minimum of time-scale of pay by the 3rd respondent pursuant to the orders passed by this Court in Writ Petition Nos.20888, 31656, 26129 and 24271 of 1998. 5. They rely upon the proceedings in Letter No.PSTU/Admn/11/49/TS/6/2000-2003 dt.20.02.2003 wherein the 3rd respondent-University had written a letter to the Principal Secretary to the Government, Higher Education Department, Government of Andhra Pradesh, Hyderabad that due to retirement of staff etc., these petitioners, who were working on daily wages, were accommodated in posts of retired staff basing on their seniority, but were being paid only minimum time-scale and it is recommending their case for grant of regular time-scale to them. 6. The request of the petitioners in WP.No.7098 of 2020 for regularisation of their services was rejected by the 3rd respondent University vide separate orders dt.22.7.2019 whereunder it was held that petitioners are held to have not completed 5 years of service by 25.11.1993, as per G.O.Ms.No.212 Finance and Planning-FW PC – III dt.22.4.1994 issued by the then Government of Andhra Pradesh. 7. The Petitioners in all the W.P.s seek regularization of their services and petitioners in W.P.No.7098 of 2020 are also challenging the orders dt.22.07.2019 passed by the 3rd respondent-University rejecting their claim for regularization. 7. The Petitioners in all the W.P.s seek regularization of their services and petitioners in W.P.No.7098 of 2020 are also challenging the orders dt.22.07.2019 passed by the 3rd respondent-University rejecting their claim for regularization. They placed reliance on the decision of the Supreme Court in Secretary, Government of Karnataka vs. Uma Devi (2006) 4 S.C.C. 1 , and also the decision dt.21.04.2020 passed in Writ Petition No.23057 of 2019 by a Division Bench of this Court, and contend that their Writ Petitions should be allowed. The stand of the respondents 8. In the counter-affidavit filed by the 3rd respondent (which is also on behalf of other respondents) in these matters, it is admitted that petitioners joined service as Clerk-cum-Typist on daily wage basis in 1993 against sanctioned posts, and that they had also been given minimum of time-scale pursuant to the orders in Writ Petition No.26129 and 20888 of 1998 by way of administrative orders dt.30.06.2000 w.e.f. 01.07.2000. 9. It is stated that petitioners are continuing on orders passed by this Court in Writ Appeal No.89 of 2002 and in I.A.No.173 of 2001 wherein status quo with regard to functioning of the petitioners in service was directed to be maintained. 10. It is stated that the case of petitioners was recommended for regularization to the State Government, but it did not consider the same on the ground that they did not comply with the conditions laid down in G.O.Ms.No.212 dt.22.04.1994, i.e., that they did not complete five years of service as on 25.11.1993. 11. It is stated that the Government had not issued any subsequent G.O.s for regularization of services for similarly situated persons. 12. It is stated that since the petitioners are continuing against sanctioned posts only pursuant to the impugned orders granted by the Court, they are not entitled to be regularized. Consideration by the Court 13. It is the admitted case of both parties that the petitioners are being paid minimum time scale attached to the posts which they were working vide Administrative Orders passed by the 3rd respondent university on 30.06.2000 with effect from 01.07.2000. 14. Petitioners 1 and 2 in W.P.No.7098 of 2020 had earlier filed W.P.No.20888 of 1998 along with the petitioner in W.P.No.7125 of 2020 for regularisation of their services and also seeking minimum time scale of pay. 14. Petitioners 1 and 2 in W.P.No.7098 of 2020 had earlier filed W.P.No.20888 of 1998 along with the petitioner in W.P.No.7125 of 2020 for regularisation of their services and also seeking minimum time scale of pay. Likewise, the petitioner in W.P.No.7768 of 2020 along with petitioners 3 and 4 in W.P.No.7098 of 2020 also sought same reliefs. 15. W.P.No.2088 of 1998 was partly allowed by learned Single Judge of the Andhra Pradesh High Court granting only relief of minimum time scale of pay on 06.12.1999, but the relief of regularisation of services was denied to the parties therein. 16. This was challenged in W.A.No.89 of 2001 by the State of A.P. 17. Initially, on 15.02.2001, there was an interim order granted by the Division Bench to maintain status quo as on 05.02.2001 with regard to the employment of the respondents therein. 18. The said Writ Appeal was however allowed on 19.11.2002 and even the relief granted by the learned Single Judge with regard to payment of minimum time scale was set aside by the Division Bench. 19. Therefore, the plea of the 3rd respondent University in its counter affidavit that petitioners 1 and 2 in W.P.No.7098 of 2020 and the petitioner in W.P.No.7125 of 2020, who were respondents in W.A.No.89 of 2001, are continuing in service on account of the interim order granted on 15.02.2001 in W.A.M.P.No.173 of 2001 in W.A.No.89 of 2001, is factually incorrect. 20. Therefore, notwithstanding the fact that petitioners 1 and 2 in W.P.No.7098 of 2020 and the petitioner in W.P.No.7125 of 2020 did not have any interim order in their favour in W.A.No.89 of 2001 after 19.11.2002, when the said W.A. was dismissed, the 3rd respondent University admittedly continued to pay them minimum time scale of pay with effect from 01.07.2000 till date and also continued petitioner No.1 in W.P.No.7098 of 2020 and the petitioner in W.P.No.7125 of 2020 even as on today, and the petitioner No.2 in W.P.No.7098 of 2020 till he retired from service on 30.04.2020. 21. As regards the petitioner in W.P.No.7768 of 2020 and petitioners 3 and 4 in W.P.No.7098 of 2020 who had together earlier filed W.P.No.26129 of 1998, are concerned, it is an admitted fact that W.P.No.26129 of 1998 was dismissed by a learned Single Judge of the Andhra Pradesh High Court on 28.04.2000. 21. As regards the petitioner in W.P.No.7768 of 2020 and petitioners 3 and 4 in W.P.No.7098 of 2020 who had together earlier filed W.P.No.26129 of 1998, are concerned, it is an admitted fact that W.P.No.26129 of 1998 was dismissed by a learned Single Judge of the Andhra Pradesh High Court on 28.04.2000. But notwithstanding the same, even these petitioners were being paid minimum time scale with effect from 01.07.2000 admittedly by the 3rd respondent and petitioners 3 and 4 in W.P.No.7098 of 2020 are continuing in service till date, while the petitioner in WP.No.7768 of 2020 was continued till he retired on 31.5.2018. 22. All the petitioners in these Writ Petitions had filed W.P.No.28388 of 2012 in this Court seeking regularisation of their services relying on Order dt.03.10.2018 in W.P.No.11162 of 2005 and Order dt.03.12.2002 in W.A.No.1730 of 1998. The petitioners in W.P.No.7125 of 2020 and W.P.No.7768 of 2020, who were petitioners 2 and 4 in W.P.No.283888 of 2012 withdrew their claims and on 06.08.2018, the Writ Petition was dismissed as against them. 23. Ultimately, the said Writ Petition was disposed of by a learned Single Judge of this Court on 28.02.2019 directing the 3rd respondent University and the State of Telangana to consider their cases for regularisation taking into account the Division Bench Judgement dt.03.12.2002 in W.A.No.1730 of 1998. 24. Thereafter, the 3rd respondent had passed separate rejection orders on 22.07.2019 as regards the petitioners in W.P.No.7098 of 2020 which are impugned therein. 25. Even in the said impugned orders, it is incorrectly stated by the 3rd respondent University that the status quo order granted on 05.02.2001 in W.A.M.P.No.173 of 2001 in W.A.No.89 of 2001 was still subsisting, though the said Writ Appeal itself was dismissed on 19.11.2002 and the said interim order merged in the final order. 26. The sole reason assigned for refusing to regularise the petitioners in W.P.No.7098 of 2020 as well as the petitioner in W.P.Nos.7125 and 7768 of 2020 is that they did not fulfil minimum 5 years of service as on 25.11.1993 as prescribed under G.O.Ms.No.212-Finance and Planning (FWPC.III) Department, dt.22.04.1994. Act 2 of 1994 and G.O.Ms.No.212 dt.22.4.1994 27. 26. The sole reason assigned for refusing to regularise the petitioners in W.P.No.7098 of 2020 as well as the petitioner in W.P.Nos.7125 and 7768 of 2020 is that they did not fulfil minimum 5 years of service as on 25.11.1993 as prescribed under G.O.Ms.No.212-Finance and Planning (FWPC.III) Department, dt.22.04.1994. Act 2 of 1994 and G.O.Ms.No.212 dt.22.4.1994 27. In the year 1994, the then Government of Andhra Pradesh had formulated a scheme for regularization called Andhra Pradesh (Regulation of Appointment to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994 (Act 2 of 1994) and issued instructions to all authorities vide G.O.Ms.No.212 dt.22.04.1994 for regularization of services of eligible N.M.R.s subject to fulfilment of certain conditions stipulated therein. 28. One such condition was that the then State Government of Andhra Pradesh would consider claims of regularization of employees as a one-time measure and it stated that the services of persons who have completed a continuous and minimum period of five years of service on or before 25.11.1993 and who are continuing as on that date, shall be regularized in substantive vacancies. 29. Some orders were passed by the Andhra Pradesh High Court holding that a person is entitled to regularization even if he has not completed five years of service as on 25.11.1993, but such orders were reversed by a Division Bench of the Andhra Pradesh High Court, which was confirmed in A. Manjula Bhashini vs. Managing Director, A.P. Womens’ Co-operative Finance Limited (2009) 8 S.C.C. 431 . 30. But, the Supreme Court in Uma Devi (1 supra) had held in 2006 as under : “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 S.C.R. 128), R.N. Nanjundappa (1972 1 S.C.C. 409) and B.N. Nagarajan (1979 4 S.C.C. 507) 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 above referred to and in the light of this judgment. 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 above referred 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.” (emphasis supplied) 31. Thus in the above decision it was held that the regularisation of the services of employees who have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals has to be considered on merits as a one time measure within 6 months from the said decision. 32. The law laid down therein and the directions issued in para 53 of Uma Devi (1 supra) are binding on all the respondents under art.141 of the Constitution of India. So the 3rd respondent cannot wriggle out of it’s application by pleading that it is not a party to the said decision. 33. In State of Karnataka vs. M.L. Kesari and others (2010) 9 S.C.C. 247 , a Two- Judge Bench of the Supreme Court explained the true purport of the directions contained in para no.53 of the judgment in Uma Devi (1 supra), in the following terms : “7. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi, if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi, if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. 8. Umadevi casts a duty upon the Government or instrumentality concerned, to take steps to regularise the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006). 9. The term “one-time measure” has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, dailywage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services. 10. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi, will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the sixmonth period mentioned in para 53 of Umadevi has expired. The onetime exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi, are so considered. 11. The object behind the said direction in para 53 of Umadevi is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi as a one-time measure.” 34. A Division Bench of this Court in U.V.S.R. Prasad and others vs. State of Andhra Pradesh, rep. by its Principal Secretary, Municipal Administration and Urban Development, Guntur District and another, 2017 (6) A.L.T. 751 (D.B.) held that the decision of the Supreme Court in A. Manjula Bashini (2 supra) did not refer to the judgment in Uma Devi (1 supra); and that the directions given in para no.53 of the judgment in Uma Devi (1 supra) and the provisions of Act 2 of 1994 along with its amendment and the judgment in A. Manjula Bashini (2 supra) operate in different situations. It declared as under: “15. It is trite that the law declared by the Supreme Court is binding throughout the country under Article 141 of the Constitution of India. It is noteworthy that by the time the judgment in Uma Devi was rendered, the provisions of Act 2 of 1994 and G.O.Ms. No. 212, dated 22-04-1994, were in existence. The Supreme Court, while denouncing the practice of regularization and absorption of persons, who entered service through backdoors by giving a go-bye to the due procedure prescribed for appointments to public posts, consciously ordered for onetime absorption/regularization of those, who were working for a period of not less than 10 years. It has given directions in this regard to all the State Governments and also Union of India. The Supreme Court is presumed to be conscious of various State enactments such as Act 2 of 1994 and executive orders such as G.O.Ms. No. 212, dated 22-04-1994, while giving directions in Para No. 53 of the judgment in Uma Devi. But still, it has not made any exception in favour of the States where State enactments banning regularization/absorption exist. The Supreme Court is presumed to be conscious of various State enactments such as Act 2 of 1994 and executive orders such as G.O.Ms. No. 212, dated 22-04-1994, while giving directions in Para No. 53 of the judgment in Uma Devi. But still, it has not made any exception in favour of the States where State enactments banning regularization/absorption exist. Therefore, Act 2 of 1994 and G.O.Ms. No. 212, dated 22.04.1994, do not whittle down the width and the judgment in Manjula Bashini does not lower the trajectory of the directions issued by the Supreme Court in Para 53 of its judgment in Uma Devi.. It is, therefore, not permissible for the respondents to take shelter under Act 2 of 1994 and G.O. Ms. No. 212, dated 22-04-1994, to deny regularization to the petitioners, who have, admittedly, satisfied the criteria laid down in Para No. 53 of the judgment in Uma Devi.” (emphasis supplied). 35. Similar view has been taken by a Division Bench of this Court in Writ Petition No.23057 of 2019 to which the 3rd respondent is a party. 36. Thus within 6 months from 10.4.2006, it was incumbent on the part of the 3rd respondent to take up regularisation of services of persons like petitioners who had completed 10 years of service on daily wages by 10.4.2006. But such a thing was not done by the respondents though 14 years since the said decision of Uma Devi (1 supra) have elapsed. This inaction is contrary to law, arbitrary and unreasonable. 37. This Court had occasion to consider in Writ Petition No.23057 of 2019 cases of five other persons who had been employed in the post of attenders from the year 1990 and whose claim for regularization was also rejected by the 3rd respondent-University on 20.08.2019 on the very same ground. In that decision, this Court considered the decision of the Supreme Court in Uma Devi (1 supra) and also the decision in M.L. Kesari and others (2 supra) and the said Writ Petition was allowed and direction was given to the respondents therein for regularising the services of the petitioners. In that decision, this Court considered the decision of the Supreme Court in Uma Devi (1 supra) and also the decision in M.L. Kesari and others (2 supra) and the said Writ Petition was allowed and direction was given to the respondents therein for regularising the services of the petitioners. It was held that though the petitioners therein did not fulfil the condition mentioned in G.O.Ms.No.212 dt.22.04.1994 about completion of five years service as on 25.11.1993, a One-Time Absorption / Regularization of services of those who were working for a period not less than 10 years ought to be undertaken by every employer as per the decision in Uma Devi (1 supra); that Act 2 of 1994 and G.O.Ms.No.212 dt.22.04.1994 do not whittle down the width of the judgment in Uma Devi (1 supra) which gave such a direction for One-Time absorption / regularization; and the petitioners therein were entitled to relief of regularization and the 3rd respondent- University could not have rejected their claim for regularization. 38. It is not in dispute that petitioners 1,3, and 4 in W.P.No.7098 of 2020 and petitioner in W.P.No.7125 of 2020 are working on daily wages since 1993 though they had admittedly been accommodated against posts of staff who have retired and are being given minimum time-scale since 01.07.2000, i.e., for almost twenty years. 39. Likewise 2nd petitioner in WP.No.7098 of 2020 had continued from 1993 till 30.4.2020 and the petitioner in W.P.No.7768 of 2020 had continued upto 31.5.2018. 40. Notwithstanding the dismissal of W.P.Nos.20888 of 1998 and 26129 of 1998, the 3rd respondent had been continuing the petitioners in the respective posts of clerk-cum-typist and Junior Assistant respectively. Such continuance is not by virtue of the interim order dt.15.2.2001 in WAMP.No.173 of 2001 in WA.No.89 of 2001 as is being contended by the 3rd respondent because the said Writ Appeal was dismissed on 19.11.2002 itself and the interim order granted therein stood merged in the final order. Therefore, the continuance in service of the petitioners by the 3rd respondent after 19.11.2002 till date except as regards the 2nd petitioner in WP.No.7098 of 2020 who retired on 30.04.2020 and the petitioner in W.P.7768 of 2020 till 31.5.2018, is not on account of any interim order granted by any court. So all of them had got crystallised a right to seek regularisation within 6 months of the decision dt.10.4.2006 in Uma Devi (1 supra). So all of them had got crystallised a right to seek regularisation within 6 months of the decision dt.10.4.2006 in Uma Devi (1 supra). This right cannot be denied by the respondents by relying on G.O.Ms.No.212 dt.22.4.1994. 41. It is not denied by the 3rd respondent-University or by the 1st respondent that no exercise of One-Time absorption / regularization of services of those who are working for more than 10 years was undertaken till date by the 3rd respondent at all as directed in para no.53 of the decision of the Supreme Court in Uma Devi (1 supra). 42. In our opinion, the ratio of the order dt.21.4.2020 in Writ Petition No.23057 of 2019 applies with equal force to the case of the petitioners in the present cases too. 43. In our considered opinion, continuing the services of petitioners since 1993 till date as ‘daily wage employees’ is clearly an unfair labour practice particularly when it is not denied that there is work available for them to discharge and they are all working against sanctioned posts whose staff had already retired from service. 44. The non-fulfilment of five years service as on 25.11.1993 as prescribed in G.O.Ms.No.212 dt.22.04.1994 or the bar contained in Act 2 of 1994 will not apply and over-ride the decision of the Supreme Court in Uma Devi (1 supra) which consciously ordered in para no.53 for One-Time absorption / regularization of those who were working for a period of not less than ten years. 45. Accordingly, all the Writ Petitions are allowed. The impugned orders dt.22.07.2019 passed by the 3rd respondent refusing to regularize the services of the petitioners in WP.NO.7098 of 2020 are set aside; and the respondents are directed to regularize the services of petitioners in all the Writ Petitions as Clerk-cum-Typist, Junior Assistant, etc., from the date each of the petitioners completed the ten years of service from their initial dates of appointment on daily wage basis. However, the petitioners shall not be entitled to any monetary relief. 46. This exercise shall be done within two (02) months from the date of receipt of copy of the order. 47. Accordingly, the Writ Petitions are allowed as above. No order as to costs. 48. As a sequel, miscellaneous petitions pending if any in these Writ Petitions, shall stand closed.