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2021 DIGILAW 506 (AP)

State of Andhra Pradesh v. T. S. Gopalaiah

2021-08-05

ARUP KUMAR GOSWAMI, J.UMA DEVI

body2021
JUDGMENT (per Arup Kumar Goswami, CJ) Heard Mr. Y.N. Vivekananda, learned Government Pleader attached to the office of the learned Additional Advocate General II appearing for the appellants. Also heard Mr. A. Phani Bhushan, learned counsel for the respondent Nos. 1 to 8/writ petitioners. 2. This appeal is directed against an order dated 28.02.2020 passed by the learned single Judge in W.P.No.4290 of 2020 directing the appellants to consider the case of the writ petitioners as having been regularized with effect from 25.11.1993 and calculate the pension and pensionary benefits on the said basis. 3. Mr. Y.N. Vivekananda submits that the writ petitioners No.1 to 8 were discontinued from the contingent work on attaining the age of 60 years on 31.07.2014, 25.03.2015, 19.07.2010, 30.06.2010, 19.07.2014, 30.06.2015, 27.11.2008 and 31.12.2016, respectively. He further submits that as the petitioners approached this Court after their superannuation, on the ground of delay itself, the writ petition ought to have been dismissed. It is further submitted that no opportunity was granted to the appellants to file counter-affidavit in the writ petition and therefore, the order under appeal is liable to be set aside on the ground of violation of principles of natural justice. It is also submitted that the learned single Judge did not record any factual finding as to whether the writ petitioners would be entitled for regularisation of service in terms of G.O.Ms.No.212 Finance & Planning (FW.PC.III) Department, dated 22.04.1994, from the cut-off date mentioned therein, which is 25.11.1993, and without such finding having been recorded, the learned single Judge directed the appellants to consider the case of the writ petitioners as having been regularized with effect from 25.11.1993 and to calculate the pension and pensionary benefits on the said basis. Mr. Vivekananda further submits that the reliance placed by the learned single Judge on paragraph 50 of the judgment in the case of Government of A.P. v. N. Venkaiah, reported in 2018 (4) ALD 590 (DB), is distinguishable inasmuch as all the employees in that case were regularized in service under G.O.Ms.No.212 while they were in service and they had sought the benefit of such regularization from earlier dates, while in the instant case, the writ petitioners were not regularized and they approached this Court after their superannuation. 4. Per contra, Mr. 4. Per contra, Mr. A. Phani Bhushan, learned counsel for the writ petitioners, submits that the contention advanced by the learned Government Pleader appearing for the appellants that the appellants were denied reasonable opportunity of presenting their case before the learned single Judge is wholly not correct and that the order under appeal itself would go to show that the contention advanced by the learned Government Pleader before the learned single Judge was only to the effect that the writ petitioners were not covered by G.O.Ms.No.11 Finance (HR.III) Department, dated 20.01.2017 and that aspect of the matter was dealt with by the learned single Judge holding that G.O.Ms.No.11 is consequence of G.O.Ms.No.212 and that the appellants cannot take shelter for non-implementation of G.O.Ms.No.212 on the ground of non- availability of vacancies or financial burden. It is also submitted that it does not appear from the order under appeal that any prayer was made by the learned Government Pleader seeking time to file counter-affidavit. 5. Mr. Phani Bhushan placed reliance on the judgment dated 20.03.2021 passed by this Court in W.A.No.200 of 2020 (State of Andhra Pradesh rep., by the Secretary (Social Welfare) Department v. G. Sarojini), to contend that this Court had entertained the application filed under Article 226 of the Constitution of India by the wife after 18 years from the death of her husband praying for retrospective regularisation. He further submits that in view of the submissions made by the learned Government Pleader before the learned single Judge and in view of the fact that no dispute was raised with regard to the applicability of G.O.Ms.No.212 to the writ petitioners, the order of the learned single Judge needs no interference in this appeal. 6. We have considered the submissions made by the learned counsel for the parties and perused the material available on record. 7. It is pertinent to note that G.O.Ms.No.212 Finance & Planning (FW.PC.III) Department, dated 22.04.1994 was issued on the basis of the decision taken by the Government that the services of such persons, who worked continuously for a minimum period of five years and are continuing as on 25.11.1993 be regularised subject to fulfilment of certain terms and conditions including that 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. 8. 8. Though no discussions are available in the order under appeal regarding the period during which the petitioners claimed to work, it is evident from the letter dated 23.06.2020, which is at page No.149 of the writ appeal papers, issued by the Commissioner of Sericulture that the petitioners in the present writ petition (wrongly recorded as W.P.No.4289 of 2020) worked as full time contingent employees. It is also evident from the said letter that G.O.Ms.No.11, dated 20.01.2017 was issued sanctioning 726 posts for regularising the services of full time contingent employees, who have fulfilled the eligibility conditions stipulated in G.O.Ms.No.212, but could not be regularized for want of clear vacancy and who are continuing in Sericulture Department as on the date of issuance of G.O. The petitioners were stated to have been excluded from the purview of G.O.Ms.No.11 as they were discontinued prior to issuance of the said G.O., on attaining the age of 60 years. 9. In this connection, it will be apt to take note of the observations made by the Division Bench of the erstwhile High Court of Judicature at Hyderabad, in the case of N. Venkaiah (supra), wherein it had been observed that 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 say that there were no vacancies as on the date that the employees in question completed five years of service, on or before 25.11.1993. It had been further observed that 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 and even if there is any doubt as to whether condition No.5 of G.O.Ms.No.212 is fulfilled as on the date of completion of five years in service by the employees concerned, the benefit of doubt would invariably have to be given to the said employees and not to the State. It was further observed that they are not to be given any monetary benefits in the form of arrears of pay or otherwise. 10. In the letter dated 23.06.2020 noted supra, there is not even a hint or suggestion that the petitioners did not fulfill the requirement of G.O.Ms.No.212. In W.A.No.200 of 2020, upon which reliance was placed by Mr. It was further observed that they are not to be given any monetary benefits in the form of arrears of pay or otherwise. 10. In the letter dated 23.06.2020 noted supra, there is not even a hint or suggestion that the petitioners did not fulfill the requirement of G.O.Ms.No.212. In W.A.No.200 of 2020, upon which reliance was placed by Mr. Phani Bhushan regarding entertainment of the writ petition after 18 years of demise of the husband of the petitioner-wife, this Court had granted relief by directing the respondents therein to pay pension and pensionary benefits as claimed by the petitioner-wife from the date of filing of the writ petition, which was 26.08.2019 in that case. 11. In the attending facts and circumstances, it has to be accepted that the writ petitioners had fulfilled the conditions as enumerated in G.O.Ms.No.212 and the same was fortified by the letter dated 23.06.2020. In the aforesaid circumstances, delay may not be a vitiating factor for entertainment of the writ petition as it is evident that the writ petitioners continued to discharge their duties as full-time contingent employees till attaining the age of 60 years. 12. We are of the considered opinion that ends of justice will be subserved in the present case by moulding the relief by providing that though the writ petitioners would be deemed to have been regularized from the cut-off date i.e., 25.11.1993 for the purpose of fixation of pension and pensionary benefits, pension will be made available to them only from the date of filing of the writ petition i.e., from 19.02.2020. 13. Resultantly, the Writ Appeal stands disposed of modifying the order of the learned single Judge to the extent indicated above. The directions contained in this order shall be implemented within a period of two months from the date of receipt of a copy of this order. No costs. Pending miscellaneous petitions, if any, shall stand closed.