Research › Search › Judgment

Andhra High Court · body

2022 DIGILAW 683 (AP)

P. Srinivasulu v. Governemnt of Andhra Pradesh

2022-07-26

K.MANMADHA RAO

body2022
JUDGMENT Dr. K. Manmadha Rao, J. - Writ Petition No. 30186 of 2014 is filed under Article 226 of the Constitution of India, claiming the following relief: '..........Issue an order or direction more particularly one in the nature of Writ of Mandamus, declaring the action of the respondents in not extending the time scale as Conductor in the cadre of Record Assistant to the petitioner as done in the case of other employees of Respondent No. 3 Devasthanam and other employees of other Devasthanams, as illegal, arbitrary, improper, unjust, discriminator and violative of Article 14 and 16 of Constitution of India and consequently direct the respondents to extend the time scale to the petitioner as Conductor in the cadre of Record Assistant and also grant consequential benefits, including monitory benefits and pass such other orders.' Writ Petition No. 11467 of 2013 is filed under Article 226 of the Constitution of India, claiming the following relief: '...........Issue an order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 3rd respondent in rejecting the petitioner's representation for regularization of his services as a NMR in his proceedings Rc. No. A1/1763/2012, dated 07.08.2012 as illegal, arbitrary and violative of principles of natural justice and consequently set aside the proceeding Rc. No. A1/1763/2012, dated 07.08.2012 of the 3rd respondent by directing the respondents to consider the case of the petitioner for regularization to the post of Conductor in the vacant post or any other post in the 3rd respondent organization in his representation dated 05.09.2012 and pass such other orders.' Contempt Case No. 84 of 2015 is filed under Section 10 to 12 of the Contempt of Courts Act for willful and intentional disobeying the orders of this Court in W.P. No. 30186 of 2014, dated 10.10.2014. 2. Since the facts and issue involved in both the writ petitions is one and the same, I find it expedient to decide both the matters by common order. 3. For the sake of convenience, W.P. No. 30186 of 2014 is taken as leading case. 4. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 5. The brief case of the petitioners in W.P. No. 30186 of 2014 is that the petitioner studied Intermediate and passed Conductor test. The petitioner was appointed as NMR in the year 2002 on daily wage of Rs. 4. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents. 5. The brief case of the petitioners in W.P. No. 30186 of 2014 is that the petitioner studied Intermediate and passed Conductor test. The petitioner was appointed as NMR in the year 2002 on daily wage of Rs. 50/-. The petitioner filed W.P. No. 13020 of 2012 before this Court considering the representation for regularization of his service, which was disposed of on 27.04.2012 with a direction to consider the representation of the petitioner. Subsequently the 3rd respondent rejected the representation vide proceedings dated 07.08.2012. Assailing the same the petitioner filed W.P. No. 11467 of 2013 before this Court. The 3rd respondent has extended the time scale in the cadre of Record Assistant and some of the persons in the cadre of Driver and Conductor by implementing the orders passed by this Court in W.P. Nos. 3719 + 340 of 2006, 21571 of 2010, 24963 of 2011 and 16269 of 2014. The petitioner also similarly placed person along with other Drivers and Conductors and there are two posts kept vacant in the cadre of Conductors, though the petitioner is qualified and eligible to the post of Conductor in the cadre of Record Assistant having more than 12 years of service and having valid conductor license till the year 2016, the respondents did not consider the request of the petitioner, which is illegal and arbitrary. Hence the inaction of the respondents questioned in the writ petition and requested to issue a direction as stated supra. 6. Per contra, the 3rd respondent filed counter by denying all material averments made in the writ affidavit and mainly contended that the petitioner is not a regular employee and he is working as Nominal Muster Roll (NMR) daily wage worker in 3rd respondent Devasthanam. This respondent as per orders of the 2nd respondent three computer operations were appointed on consolidated pay. Subsequently they were absorbed in three Record Assistants posts as per rules and G.Os. Some of the employees like petitioner were continuing in the 3rd respondent as per directions of this Court in various writ petitions. It is further contended that the petitioner is only a daily wage worker and he had no special qualification of computer operators and he got no valid eligibility. Some of the employees like petitioner were continuing in the 3rd respondent as per directions of this Court in various writ petitions. It is further contended that the petitioner is only a daily wage worker and he had no special qualification of computer operators and he got no valid eligibility. The persons mentioned in Para 6 of the writ affidavit are working as regular conductors in the transport establishment of the Devasthanam and their services were converted as Junior Assistants as per G.O. Ms. No. 1159, Rev, Endts. I, dated 03.09.2007 read with Rule 39 of the Office Holders and Servant Services Rules 2000 (G.O. Ms. No. 888, Rev. Endts. I, dated 08.12.2000), therefore the said G.Os. are not applicable to the petitioner as he is working as NMR. Since the petitioner is not eligible, requesting to fix the time scale or regularization of his services are not considered as there are several senior NMRs before him and his name is shown at Sl. No. 56 as NMR in Contract and Daily wage workers list. Hence the writ petition is liable to be dismissed. 7. The petitioner filed reply denying all material averments made in the counter-affidavit filed by the 3rd respondent and mainly contended that the services of the petitioner were utilized for maintenance of the Q-Lines by paying Rs. 1,500/- per month as per proceedings dated 02.04.2004. Thereafter the petitioner was worked in various capacities in the 3rd respondent. As per G.O. Ms. No. 330, Finance and Planning dated 20.04.1994 is not applicable to the employees working in the Endowments Department, all the temple employees are governed by G.O. Ms. No. 888, dated 08.12.2000. There are 3 Record Assistant Posts and 5 Conductor posts are kept vacant. Hence scale attached to the post of Conductor in the cadre of Record Assistant can be adapted to the petitioner as per interim orders of this Court dated 10.10.2014. It is further contended that as per the orders of this Court in W.P. No. 6555 of 2002, the Commissioner has issued orders to take action as per G.O. Ms. No. 888, dated 08.12.2000 for regularization of services of NMR conductors and drivers. In view of the same the case of V. Srinivasa Reddy and two others were considered as per orders in W.P. No. 21571 of 2010, the commissioner has issued orders to take action as per G.O. Ms. No. 888, dated 08.12.2000 for regularization of services of NMR conductors and drivers. In view of the same the case of V. Srinivasa Reddy and two others were considered as per orders in W.P. No. 21571 of 2010, the commissioner has issued orders to take action as per G.O. Ms. No. 212 dated 22.04.1994 applies only to the Government employees and not to the employees of the Endowments Department, as they are not Government Employees. The petitioner also stands in the footing and is eligible for extension of scale to the post of conductor in the cadre of record assistant as he is the only person holding the conductors license from 2005 in the temple among all the NMR's. 8. It is further contended that the case of V. Srinivasa Reddy and two others were considered as per the orders in W.P. No. 21571 and C.C. No. 1396 of 2010 is not the ground for not considering the case of the petitioner. As the petitioner is also working from 2003 onwards and holds the conductor's license from 2005 and he had requisite qualifications to hold the post of conductor. Therefore the case of the petitioner is to be considered for extension of scale. Further the petitioner is not claiming the computer operator post, he is seeking only extension of scale in the post of conductor in the cadre of Record Assistant, which he is now holding the conductors license from 2005 in the temple along with all NMR's. The petitioner is working on consolidated pay as an NMR, which is evident from the list dated 29.11.2012, wherein the name of the petitioner is stood as Sl. No. 38 and not at 56. Therefore there is existing vacancy in the 3rd respondent temple, as the petitioner is working since 12 years and having requisite qualification; he is entitled to claim the relief as sought for in the writ petition. 9. Learned Standing Counsel for the respondents placed reliance on the Judgment of Hon'ble Supreme Court in State of Karnataka and Others Vs. M.L. Kesari and Others (2010) 9 SCC 247 wherein the Hon'ble Supreme Court discussed with regard to regularization enunciated in State of Karnataka Vs. Umadevi (2006) 4 SCC 1 . Further placed reliance on the Judgment of Hon'ble Supreme Court in P. Singaravelan and Others Vs. M.L. Kesari and Others (2010) 9 SCC 247 wherein the Hon'ble Supreme Court discussed with regard to regularization enunciated in State of Karnataka Vs. Umadevi (2006) 4 SCC 1 . Further placed reliance on the Judgment of Hon'ble Supreme Court in P. Singaravelan and Others Vs. District Collector, Tiruppur and DT and Others (2020) 3 SCC 133 wherein it was held as follows: '23. In this respect, we find that the High Court in the impugned judgment was correct in concluding that the Appellants cannot claim such relief on the strength of Article 14 of the Constitution of India, when once it has been found that they are not lawfully entitled to the same. It is well-settled by now that a person cannot invoke Article 14 to claim a benefit extended to someone similarly placed if he is not lawfully entitled to such benefit in the first place. Article 14 embodies the concept of positive equality alone, and not negative equality, that is to say, it cannot be relied upon to perpetuate an illegality or irregularity. In fact, this Court has opined that this principle extends to orders passed by judicial fora as well. Thus, the jurisdiction of a higher court cannot be invoked on the basis of a wrong order passed by a lower forum. In this respect, it would be fruitful to refer to the following passage from the decision of this Court in Basawaraj v. Land Acquisition Officer, (2013) 14 SCC 85, Para 8): 8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. 10. The Hon'ble Supreme Court of India held that a person cannot invoke Article 14 to claim a benefit extended to someone similarly placed, if he is not lawfully entitled to such benefit in the first place. Article 14 says the concept of positive equality alone, and not negative equality, that is to say, it cannot be relied upon to perpetuate an illegality or irregularity. In fact, this Court has opined that this principle extends to orders passed by judicial fora as well. Thus, the jurisdiction of a higher court cannot be invoked on the basis of a wrong order passed by a lower forum. If there is such irregularity or illegality appears to obtain orders by misrepresentation, then the principles laid down in the above decisions would be applied. In this case, no such illegality or irregularity is appeared. Therefore the above decisions relied on by the respondents are not applicable to the facts this case. 11. No doubt, the petitioner is working more than a decade and the 3rd respondent utilized his services in various capacities and paying consolidated pay. The petitioner also placed on record the copy of similar regularization orders of various persons in various Devasthanams in the State and he requested to extend the time scale as conductor in the cadre of Record Assistant. The petitioner has placed on record the License issued by the Transport Department vide License Number CLFAP0167142005, which is valid from 19.02.2013 to 18.02.2016. Therefore by the date of representations submitted by the petitioner, he had valid driving license. 12. The petitioner has placed on record the License issued by the Transport Department vide License Number CLFAP0167142005, which is valid from 19.02.2013 to 18.02.2016. Therefore by the date of representations submitted by the petitioner, he had valid driving license. 12. Earlier this Court issued interim direction dated 10.10.2014 in W.P. No. 30186 of 2014 that 'there shall be interim direction to the respondents to consider the case of the petitioner for granting scale in the cadre of Record Assistant'. Since the respondents have not complied with the order of this Court, he filed Contempt Case No. 84 of 2015. 13. Elaborating upon the principles laid down in Umadevi's (2006) 4 SCC 1 : 2006 SCC (L&S) 753 case and explaining the difference between irregular and illegal appointments in State of Karnataka v. M.L. Kesari (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826, this Court opines that it is evident from the above that there is an exception to the general principles against regularization enunciated in Umadevi's case, 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 he 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 he considered to he illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, hut had been selected without undergoing the process of open competitive selection, such appointments are considered to he irregular. 14. For all the above mentioned reasons, this Court is of the considered opinion that the petitioners are entitled to claim the relief as sought for in the writ petitions. 15. Accordingly, both the writ petitions are allowed. Since W.P. No. 30186 of 2014 is decided on merits, the Contempt Case No. 84 of 2015 filed by the petitioner is closed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall also stand closed.