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2022 DIGILAW 1292 (AP)

Ch. Durga Prasad v. State of Andhra Pradesh

2022-11-16

K.MANMADHA RAO

body2022
ORDER : 1. This petition is filed under Article 226 of the Constitution of India for the following relief: “.......to declare the applicant is entitled to be regularized with effect from the date when he completed ten years of service after as per G.O.P. No. 112 Finance (PC III) Department, dated 23.07.1997 read with G.O.Ms. No. 112 Finance and Planning (FW-PC-III) Department, dated 22.04.1994 for the purpose of seniority pay pension and other retiral benefits from the date when he had completed ten years of service declaring that G.O.Ms. No. 330 Panchayat Raj and Rural Development (Estt.IV) Department, dated 23.09.2011 to the extent that it directs that the Applicants services should be regularized from prospective date i.e. date of issue of order is illegal, arbitrary and contrary to the judgment of the Hon’ble Supreme Court apart from being violative of Articles 14, 16 and 21 of the Constitution of India (Main prayer is amended as per the orders of the Tribunal dated 01.03.2017 in M.A. No. 169/2017 in O.A. No. 299/2017) and pass such other order or orders.....” 2. The facts of the case are that the petitioner has been working from 01.04.1981 as Part Time Tank Watcher in the Gram Panchayat of Ogirala in Bapulapadu Mandal under the control of District Panchayat Officer, Krishna, Machilipatnam. He had completed 13 years of service as on 25.11.1993. It is stated that the Government has issued G.O. (P) No. 112 Finance and Planning (FW-PC-III) Department dated 23.07.1997 applying G.O.Ms. No. 212 Finance and Planning (FW-PC-III) Department, dated 22.04.1994 to Part Time employees and directing regularization of the services of Part Time employees who had completed ten years of service as on 25.11.1993 the date on which the A.P. (Regulation of Appoints to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994 came into force i.e. the cutoff date as imposed in G.O.Ms. No. 212 dated 22.04.1994. It is stated that the Government has issued G.O.Ms. No. 212 dated 22.04.1994. It is stated that the Government has issued G.O.Ms. No. 330 Panchayat Raj and Rural Development (Estt.IV) Department, dated 23.09.2011 according permission to the Commissioner of PR&RE for regularization of services of the candidates whose names were annexed to the said GO in terms of G.O. (P) No. 112, dated 23.07.1997 from prospective date i.e. the date of issue of order and accordingly individual orders have been issued on 14.11.2011 by the District Panchayat Officer, Krishna, Machilipatnam regularizing the services of the petitioner as he is fully qualified and eligible for regularization and as there is a clear vacancy. However, the main grievance of the petitioner is that the action of the respondents in regularizing his services only from prospective date is illegal and arbitrary. Hence, the present writ petition. 3. Counter affidavit is filed by the 3rd respondent denying all the allegations made in the petition and contended that the Commissioner, Panchayat Raj has directed the District Panchayat Officer, Krishna to regularize the services of the petitioner, who in turn issued proceedings vide Roc. No. 3173/2010 Pts.8, dated 14.11.2011 regularizing the services of the petitioner and posted to A. Seetharampuram Gram Panchayat, Bapulapadu Mandal. It is further stated that the petitioner’s appointment itself is irregular as he was appointed in a non-provincialized post subsequent to the provincialization of the services of the employees appointed by the Village Sarpanchas. Only ratification on 23.09.2011 his post was provincialized and he was directed to regularize in a clear vacancy. The petitioner found regularization with effect from completion of service of 10 years as part time employee is not sustainable even for the purpose of pension. Therefore, considering all the facts the Government have issued G.O.Ms. No. 330 PR&RD (Estt-IV) Department, dated 23.09.2011 regularizing the services of the petitioner from prospective date i.e. the date of issue of orders. Hence, the service of the petitioner was regularized from the date of issue of orders. Therefore, prayed to dismiss the writ petition. 4. Heard Mr. M. Srikanth, learned counsel appearing for the petitioner and Mr. K. Swarna Seshu, Mr. G. Srinivasula Reddy and learned Govenrment Pleader for Services-I appearing for the respondents. 5. Hence, the service of the petitioner was regularized from the date of issue of orders. Therefore, prayed to dismiss the writ petition. 4. Heard Mr. M. Srikanth, learned counsel appearing for the petitioner and Mr. K. Swarna Seshu, Mr. G. Srinivasula Reddy and learned Govenrment Pleader for Services-I appearing for the respondents. 5. Learned counsel for the petitioner while reiterating the averments made in the petition submitted that the action of the respondents in regularizing the services of the petitioner only from prospective date is illegal and arbitrary and contrary to the judgments of the Hon’ble Supreme Court and this High Court. Learned counsel has relied upon a decision of Hon’ble Supreme Court reported in 2009 (8) SCC, wherein it was held that “As regards payment of wages there is no dispute between the parties that the same have to be paid from the date of regularization. In so far as regularization is concerned, we are of the view that the High Court has rightly directed that on the basis of Notification G.O.Ms. No. 212 the respondent employees shall be regularized with effect from the date or dates they completed five years continuous service. It is however made clear that the other conditions laid down in the said G.O.Ms. No. 212 will have to be satisfied for the purpose of regularization.” 6. He further submits that the petitioner herein ought to have been regularized w.e.f. 25.11.1993 which is the cutoff date as prescribed in G.O.Ms. No. 212, dated 22.04.1994 which was made applicable in G.O. (P) No. 112 dated 23.07.1997, by which date the petitioner had completed 13 years of service. He further submits that by regularizing the petitioner’s services with prospective date, 18 yeas of service has been wiped out and the remaining period of service i.e. seven to eight ears of service would not be considered for pension and retiral benefits and even if that was considered, he would not get much. 7. Per contra, learned Government Pleader appearing on behalf of the respondents while reiterating the averments made in the counter, submitted that the Government have issued G.O.Ms. No. 330 Panchayat Raj and Rural Development (Estt-IV) Department, 23.09.2011 accorded permission to the Commissioner Panchayat Raj to regularize the services of the applicant as Sweeper along with other persons as per G.O.Ms. 7. Per contra, learned Government Pleader appearing on behalf of the respondents while reiterating the averments made in the counter, submitted that the Government have issued G.O.Ms. No. 330 Panchayat Raj and Rural Development (Estt-IV) Department, 23.09.2011 accorded permission to the Commissioner Panchayat Raj to regularize the services of the applicant as Sweeper along with other persons as per G.O.Ms. No. 212 Finance and Planning (PC-III) Department, dated 22.04.1994, he further submitted that the services of the employees of the Gram Panchayat were provincialised vide G.O.Ms. No. 168, PR&RD (Estt-VIII) Department daed 20.03.1981. He submits that the Gram Panhayat Sarpanches have no authority to any appoint anyone after provincialization. Violating the said GO the applicant was appointed as part-time Tannk watcher by the Gram Sarpanch after the provinicialization. He was appointed as part time Tank Watcher on 01.04.1984 i.e. after the provincialisation. Therefore, the appointment by the Gram Sarpanch is irregular and therefore the action has to be ratified by the Government. 8. On hearing, it is to be noted that as per judgment of composite High Court of A.P. reported in Government of A.P. Rep. by its Principal Secretary, PR and RD Department, Hyderabad and Others vs. N. Venkaiah and Others, 2018 (4) ALT 6 (D.B.) wherein it was held that: “(i) whether the persons employed on daily wage basis or nominal muster roll or consolidated pay or as contingent worker on full-time basis in different departments of the Government of Andhra Pradesh and its agencies/instrumentalities are entitled to be regularized in service on completion of 5 years. (ii) Whether the amendments made in the Andhra Pradesh (Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994 (for short “the 1994 Act”) by Amendment Acts 3 and 27 of 1998 are ultra-vires the provisions of the Constitution.” 9. The Supreme Court categorically held that the conditions mentioned in G.O.Ms. No. 212 must be fulfilled. Be it noted that even in B. Srinivasulu vs. Nellore Municipal Corporation, Civil Appeal No. 6318 of 2015, decided on 17.08.2015 the Supreme Court directed that the services of B. Srinivasulu and the others should be regularized with effect from the date of their completing five years continuous service, as was laid down by the Supreme Court in District Collector vs. M.L. Singh, (2009) 8 SCC 480 . However, no reference was made to the later observation in M.L. Singh (supra) to the effect that the other conditions laid down in G.O.Ms. No. 212 would have to be satisfied for the purpose of regularization. 10. As already pointed out, 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 now come forward and say that there were no vacancies as on the date that the employees in question completed five years in service, on or before 25.11.1993. A mere assertion in this regard is nothing short of an unsupported self-serving ipse dixit on the part of the State and its instrumentalities and cannot be accepted at face value. Further, the facts in some of the cases on hand clearly demonstrate that despite clear vacancies being available, no timely steps were taken. Further, 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. In such a situation where the State and its instrumentalities are responsible for the situation where it cannot be assessed now as to whether Condition No. 5 in G.O.Ms. No. 212 stood 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 is perhaps this very aspect that weighed with the Supreme Court in B. Srinivasulu (supra), as no mention was made therein of strict compliance with Condition No. 5 in G.O.Ms. No. 212, despite the said issue being brought up by the Nellore Municipal Corporation. 11. The question of the State Exchequer being saddled with additional expenditure in relation to such regularization does not arise, as the relief already granted to some of the employees in the cases on hand is to reckon their services upon completion of five years on or before 25.11.1993 only for the purpose of their pension and pensionary benefits. They are not to be given any monetary benefits in the form of arrears of pay or otherwise. Similar relief would have to be extended to those employees who were non-suited by the Tribunal and are before this Court. They are not to be given any monetary benefits in the form of arrears of pay or otherwise. Similar relief would have to be extended to those employees who were non-suited by the Tribunal and are before this Court. As all of them served the State or its instrumentalities for decades together, extending to them the benefit of such service only for the purpose of pension and pensionary benefits can hardly be said to be an onerous burden either on the State or the State Exchequer. Having utilized their services all along, the State and its instrumentalities cannot now turn their back on the loyal services rendered by these employees. 12. In case of State of Andhra Pradesh, School Education Department, Velagapudi and Others vs. LBM Krishna, 2020 (2) ALT 381 wherein this Court was held that: “Similar view was taken by a Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in State of Andhra Pradesh vs. M. Raja Rao Order dated 17.03.2016 in W.P. No. 8201 of 2016 and also the Karnataka High Court in B.H. Mahadevappa vs. Karnataka Power Transmission Corporation Ltd. ILR 2006 Kar. 3405. In view of the judgments of the Apex Court and other High Courts referred to above, we are of the view that the past service of the applicant, who is the respondent herein, prior to his regularization, has to be considered for the purpose of pensionary benefits.” 13. In a case of State of Tamil Nadu through Secretary to Government and Another vs. A. Singamuthu, (2017) 4 SCC 113 wherein the Hon’ble Supreme Court held that Part-time or casual employment is meant to serve the exigencies of administration. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularization in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and the consciously accepted the same at the time of seeking employment. Generally, while directing that temporary or part-time appointments be regularized or made permanent, the courts are swayed by the long period of service rendered by the employees. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and the consciously accepted the same at the time of seeking employment. Generally, while directing that temporary or part-time appointments be regularized or made permanent, the courts are swayed by the long period of service rendered by the employees. However, this may not be always a correct approach to adopt especially when the scheme of regularization is missing from the rule book and regularization casts huge financial implications on public exchequer. 14. It is pertinent to mention here that as per G.O.Ms. No. 212, Finance and Planning (FW-PC-III) Department, dated 22.04.1994, wherein the 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 qualification 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 form 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 as fixed percentage of P.S. Chares and as soon as the work is over, the services of work charged establishment will have to be terminated, they shall be adjusted n the other departments, District Offices provided there are clear vacancies of Last Grade Service. 15. As per G.O. (P) No. 112, Finance and Planning (FW-PC-III) Department, dated 23.07.1997, wherein it was mentioned that many representations have been made for regularization of such part-time employees in regular posts. 15. As per G.O. (P) No. 112, Finance and Planning (FW-PC-III) Department, dated 23.07.1997, wherein it was mentioned that many representations have been made for regularization of such part-time employees in regular posts. Though, the Act 2 of 1994 provides that no person appointed on daily wages on part-time shall have any right to claim regularization of services on any ground, the Government on humanitarian ground have been examining the feasibility to regularize as many Part-time employees as possible who are otherwise qualified depending on the requirement of the workload and keeping in mind the hardship that would otherwise be caused, if their services are not regularized. 16. Government accordingly after careful consideration of this issue hereby formulate a scheme for regularization of the services of the persons appointed on part-time basis, Government have taken a decision that the services, of such persons who have worked continuously as part-time workers for a minimum period of ten years and are continuing as on 25-11-1993 the date on which the A.P. (Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure ) Act, 1994 (Act 2 of 94) came into force, be regularized by the appointing authorities subject to the fulfillment of the following conditions: 1. 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 or as the case may be the District Selection Committee. 2. The persons appointed should possess the qualifications prescribed as per rules in force as the date from which his or her services have to be regularized. 3. The person should be within the age limit as on the date of appointment as part-time employee. 4. The Rule of Reservation wherever applicable will be followed and backlog will be set off against future vacancies. 5. The sponsoring of candidate from Employment Exchange is relaxed. 6. If there are two candidates, one part-time and the second one a full-time employee (Daily wage employee) of any category or name and there exists only one vacancy, the senior most between the two in terms of continuous service already rendered prior to 25-11-1993 treating two years of part-time service as one year of full-time service, relative seniority will be calculated and regularization will be suggested for the senior among the two accordingly. 7. 7. The regularization of services of full-time employee already made in terms of G.O.Ms. 212, Finance and Planning (FW-PC-III) Department, dated 22-04-1994 will not be reopened for giving effect to the present order. 8. All the Departments of Secretariat/Heads of Departments are requested to process the cases of absorption/regularization of services of Part-time employees in pursuance of above scheme and obtain the clearance of Government in Finance and Planning (FW-PC-III) Department before orders are issued for such regularization or absorption. 17. On a perusal of the material available on record, this Court observed that this is not a case of regularization, it is only for granting of pensioanry benefits while regularizing the past service. 18. Therefore, in view of the above foregoing discussion and in view of the submissions made by both the learned counsels, this Court is of the considered view that the concerned respondent authorities are directed to extend the benefit of B. Srinivasulu (supra) to the petitioner in this case by reckoning his services from the date of completion of five years in service, on or before 25.11.1993, for the purposes of their pension and pensionary benefits, within a period of eight (08) weeks from the date of receipt of a copy of this order, in accordance with law. 19. With the above direction, the Writ Petition is disposed of. There shall be no order as to costs. 20. As a sequel, all the pending miscellaneous applications shall stand closed.