Syed Mahamoodullah Hussaini, S/o. Syed Masood Hussaini v. State of Andhra Pradesh
2023-12-19
HARINATH NUNEPALLY
body2023
DigiLaw.ai
ORDER : The petitioners in writ petitions are aggrieved by the in-action of the respondents in absorbing the petitioners in the sanctioned post included in the grant-in-aid posts in the 4th respondent college. 2. This is the second round of litigation for the petitioners in the writ petitions. WP.No.1111 of 2008 was filed by the petitioners and this Court vide interim order dated 25.01.2008 directed the respondents 1 to 3 therein to consider the recommendations made by the 4th respondent regarding the absorption of petitioners against aided vacant posts as per letters dated 21.01.2008, 29.10.2002, 21.11.2002 and 20.09.2004 and to pass appropriate orders within a period of four weeks from the date of receipt of the same. 3. The 2nd respondent vide order dated 20.09.2008 rejected the case of the petitioners for regularization, as such the said proceedings are under challenge in WP.No.16405 of 2008. If the proceedings dated 29.02.2008 are considered on merits the lis in both the writ petitions would be covered. 4. The petitioners were appointed in the 4th respondent/college in various cadres from Attender to Record Assistant. Some of the petitioners were appointed as Junior Assistants. The appointment of the petitioners in the 4th respondent/college is between 01.02.1989 to 12.08.1996. The appointment of the petitioners in the 4th respondent/college is not in dispute at all. The petitioners were selected and appointed in vacant sanctioned posts, but were paid only consolidated pay. 5. The petitioners were not paid regular salaries as the respondents 1 to 3 have not passed formal orders of absorption in the vacant sanctioned posts. It is the case of the petitioners that respondents 1 to 3 have not passed the necessary orders with respect to absorption of the petitioners in the sanctioned aided posts. The petitioners would not be paid regular pay scales. All the petitioners in both the writ petitions were appointed in existing sanctioned posts which were approved by the state and grant-in-aid was also sanctioned. 6. The 4th respondent/college has submitted proposals on 21.09.2002, 29.10.2002, 22.1.2002 and 20.09.2004. In spite of the communication from the 4th respondent the respondents 1 to 3 have denied passing the necessary orders and the same is illegal, irrational and arbitrary.
6. The 4th respondent/college has submitted proposals on 21.09.2002, 29.10.2002, 22.1.2002 and 20.09.2004. In spite of the communication from the 4th respondent the respondents 1 to 3 have denied passing the necessary orders and the same is illegal, irrational and arbitrary. It is not in dispute that the petitioners were selected in pursuance of a notification and a selection committee was constituted which had called for applications from eligible candidates and only those who possess the requisite qualifications were called for interview. The petitioners were appointed after the due process for selection was followed and appointed as Non-Teaching Staff. 7. The learned Government Pleader submits that the proceedings dated 29.02.2008 have been issued duly considering the period of service of the petitioners and also submits that the Government has in supersession of all previous orders on the subject including GOMs.No.193, dated 14.03.1990 and after considering the Judgment of the Hon’ble Supreme Court in Civil Appeal No.2979 of 1992 and batch the Government has considered the cases of those persons who worked continuously for a minimum period of five years and are continuing as on 25.11.1993 were regularized. 8. All the petitioners except one Abdul Karim Basha were found ineligible for regularization in terms of GOMs.No.212, dated 22.04.1994. 9. The learned counsel for the petitioners has placed reliance on the order passed by the Division Bench of State of Telangana in WP.Nos.7098, 7125 and 7768 of 2020, dated 08.09.2020. Wherein, the High Court of Telangana dealt with similar issues in those writ petitions. The case of the petitioners therein is similar to the case of the petitioners in the above writ petition. The GOMs.No.212, dated 22.04.1994 was also considered by the High Court of Telangana and relying on the order passed by the Hon’ble Supreme Court in Secretary, Government of Karnataka Vs. Uma Devi, 2006 (4) SCC 1 . A. Manjula Bhashini vs. Managing Director, A.P. Womens’ Co-operative Finance Limited, (2009) 8 S.C.C. 431 . “53. One aspect needs to be clarified.
The GOMs.No.212, dated 22.04.1994 was also considered by the High Court of Telangana and relying on the order passed by the Hon’ble Supreme Court in Secretary, Government of Karnataka Vs. Uma Devi, 2006 (4) SCC 1 . A. Manjula Bhashini vs. Managing Director, A.P. Womens’ Co-operative Finance Limited, (2009) 8 S.C.C. 431 . “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. 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.
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. In State of Karnataka vs. M.L. Kesari and others, 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. 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.
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. 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.
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 fact that the employer has not undertaken such ::12:: 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 Telangana High 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 another4 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 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. 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 the Division Bench of Telangana High Court in Writ Petition No.23057 of 2019. Thus within 6 months from 10.4.2006, it was incumbent on the part of the respondents 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 17 years since the said decision of Uma Devi (1 supra) have elapsed. This inaction is contrary to law, arbitrary and unreasonable. 37.
But such a thing was not done by the respondents though 17 years since the said decision of Uma Devi (1 supra) have elapsed. This inaction is contrary to law, arbitrary and unreasonable. 37. The Telangana High Court considered 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 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. 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 respondent could not have rejected their claim for regularization. 10. The continuation of the services of the petitioners without regularization for almost two decades is clearly an unfair practice and it is not the case that there is no work for the staff. It is also not disputed that they are all working against the sanctioned post. Thus, the finding of the respondent in the proceedings dated 29.02.2008 that the petitioners did not fulfil the condition of five years of service as on 25.11.1993 as per GOMs.No.212, dated 22.04.1994 cannot bypass the law laid down by the Hon’ble Supreme Court in the matter of Uma Devi for one time absorption/regularization. 11. Accordingly, the writ petitions are allowed without costs. The impugned proceedings dated 29.02.2008 are set aside and the respondents are directed to regularize the service of petitioners from the date each of the petitioners completed the 10 years of service from their initial dates of appointment.
11. Accordingly, the writ petitions are allowed without costs. The impugned proceedings dated 29.02.2008 are set aside and the respondents are directed to regularize the service of petitioners from the date each of the petitioners completed the 10 years of service from their initial dates of appointment. It is made clear that the petitioners shall not be entitled for any past monitory benefits. The orders of regularizing the petitioners shall be passed within a period of six weeks from the date of receipt of this order. As a sequel, miscellaneous petitions pending if any in these Writ Petitions, shall stand closed.