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Andhra High Court · body

2023 DIGILAW 200 (AP)

M. v. Asha Rani VS Executive Officer

2023-01-25

M.GANGA RAO

body2023
ORDER : 1. This writ petition is filed seeking the following reliefs: “......to issue a Writ, order or direction, more particularly one in the nature of a writ of mandamus by setting aside that portion of G.O.Ms. No. 2500, dated 20.11.2007 issued by the 4th respondent and consequential proceeding dated 30.08.2008 issued by the 1st respondent in regularizing the petitioner in last grade service, that too with effect from 20.11.2007 by holding the action of the respondents in not regularizing the petitioner with effect from 20.11.1990 as Store Keeper, the post and work the petitioner was holding since her appointment while regularizing several others/juniors in the cadre of they were working and with effect from their initial date of appointment as bad, illegal, arbitrary and unconstitutional and consequently direct the respondent to regularize the service of the petitioner as store keeper with effect from 20.11.1990 and not doing so as bad illegal, unconstitutional and discriminatory and pass such other orders.....” 2. Heard Sri J. Sudheer, learned counsel for the petitioner and Sri S. Satyanaranya Prasad, learned Senior Counsel appearing for Smt C. Sindhu Kumari, learned counsel appearing for the respondents. Learned counsel for the respondents seeks adjournment to get ready in the matter and file additional counter affidavits by the respondents. This Court has declined to grant any time as this writ petition of the year 2009 underwent several adjournments for filing counter and is specially identified matter for disposal. 3. The petitioner, being qualified for appointment as a store keeper, claims to be appointed as a store keeper in Padmavathi Women’s Polytechnic Hostel, on selection by the hostel committee w.e.f. 20.11.1990 Initially she was paid a consolidated pay of Rs. 250/- per month. She has put in continuous service of nineteen years in the said post. The Tirumala Tirupati Devasthanam [‘TTD’ for short] vide resolution No. 192 dated 03.06.1991 created 139 posts in the college hostels attached to the educational institutions run by the TTD and many hostel employees were regularised and timescales were given, as per the orders of this Court passed in W.P. No. 5162 of 2001. When the juniors of the petitioner working in other hostels were regularised, the hostel employees working in the 3rd respondent hostel made representation for regularisation of their services. When the juniors of the petitioner working in other hostels were regularised, the hostel employees working in the 3rd respondent hostel made representation for regularisation of their services. The 3rd respondent addressed a letter to the Executive Officer of the TTD vide letter dated 12.04.1994 giving details of the employees working in the hostel and recommended for their regularisation. On further clarification sought by the Assistant Educational Officer of the TTD, the 3rd respondent through his letter dated 22.11.1995 furnished the details of the employees working in the 3rd respondent hostel wherein petitioner’s name is shown in the said list as appointed as a store keeper on 20.11.1990. However, no action was taken for their regularisation on par with others. The TTD has regularised services of more than 2000 NMRs during the period between 19.04.1988 and 01.08.1991 duly obtaining exemption from the Government from the process of employment exchange. The petitioner along with other employees working in the 3rd respondent hostel are entitled for regularisation as was done in the case of employees working in other hostels under the management of the TTD. 4. The TTD is empowered under the provisions of Rule 10 of the TTD Rules issued vide G.O.Ms. No. 1060, dated 24.10.1989 to create and fix the cadre strength in respect of all posts below Assistant Executive Officer and for higher cadres the Government would fix the cadre strength. All the hostel employees are below the cadre of Assistant Executive Officer. The TTD Trust Board is competent to create the posts. Three employees i.e. helper, office boy and watchman working in the hostel attached to Sri Govinda Rajaswamy Arts College filed W.P. No. 18873 of 1994 seeking regularisation of their services on par with other employees working in other hostels attached to the educational institutions run by the TTD. This Court, after considering the rival contentions by order dated 22.11.1995, directed the respondents to create three posts in their cadre and also granted consequential benefits. The judgment of this court in W.P. No. 18873 of 1994 dated 22.11.1995 amply demonstrate that the employees working in the hostels attached to the educational institutions run by the TTD are the employees of the TTD for all practical purposes and they are entitled for regularisation along with others whose services were regularised. The judgment of this court in W.P. No. 18873 of 1994 dated 22.11.1995 amply demonstrate that the employees working in the hostels attached to the educational institutions run by the TTD are the employees of the TTD for all practical purposes and they are entitled for regularisation along with others whose services were regularised. As per the resolutions of the TTD Trust Board, when petitioner’s representation was not considered for regularisation, the petitioner along with others filed W.P. No. 17111 of 1996 for regularisation and grant of time scale as per the judgment in W.P. No. 18873 of 1994. The said writ petition was disposed of on 15.10.1997 directing the petitioners therein to make a fresh representation to the respondent authorities and the respondent authorities were directed to consider the same as per the judgment in W.P. No. 18873 of 1994 dated 22.11.1995 and it is said that the above exercise should be completed within a period of one month from the date of the judgment. Accordingly, petitioners made a representation to the respondent authorities to regularise their services. The respondent authorities are under obligation to consider the case of the petitioner for regularisation in terms of the judgment passed in W.P. No. 18873 of 1994, dated 22.11.1995. But the petitioner’s representation dated 23.12.1997 was rejected by the Executive Officer through his proceedings dated 30.10.1998 on the ground that she does not fall within the scope of G.O.Ms. No. 212 dated 22.04.1994 and G.O.Ms. No. 112 dated 23.07.1997. But the petitioner’s case was not considered by the respondent authorities in terms of the judgment dated 22.11.1995 in W.P. No. 18873 of 1994. When there is a specific direction to the respondent authorities to consider the case of the petitioner in terms of the said judgment, it is the duty of the respondents to do so. As per G.O.Ms. No. 212, those persons who have completed five years of service by 23.11.1993 as confirmed by the Apex Court, they are only entitled for regularisation with time scale. Since G.O.Ms. No. 212 dated 22.04.1994 and G.O.Ms. As per G.O.Ms. No. 212, those persons who have completed five years of service by 23.11.1993 as confirmed by the Apex Court, they are only entitled for regularisation with time scale. Since G.O.Ms. No. 212 dated 22.04.1994 and G.O.Ms. No. 112 dated 23.07.1997, are in existence as on the date of the judgment in W.P. No. 18873 of 1994, dated 22.11.1995, it is obvious that this Court, having convinced that not regularising the services of some employees while regularising the services of other employees is arbitrary and violative of Articles 14 and 16 of the Constitution of India, the said writ petition No. 18873 of 1994 was disposed of directing the respondents to create posts and regularise them in their respective posts. The petitioner along with others has worked in the 3rd respondent hostel for meagre wages. If her case is not considered for regularisation, she will become over age. The judgment in W.P. No. 18873 of 1994 dated 22.11.1995 was affirmed in Writ Appeal and when the matter was carried to the Supreme Court by way of SLP the same was dismissed. 5. The petitioner filed W.P. No. 21232 of 1999 before the High Court of Andhra Pradesh challenging the rejection of the petitioner’s claim for regularisation through proceedings dated 30.10.1998. The respondents filed counter. When the writ petition was pending for adjudication, the Government issued G.O.Ms. No. 2500, dated 20.11.2007, regularising the services of 69 hostel workers working in the TTD college hostels, as per the orders passed by this Court dated 31.08.2005 in W.P. Nos. 24974 of 2001 and 1068 of 2002. Therefore, this Court, having taken notice of the said fact, has closed the writ petition. The TTD regularised the services of the other employees working in the hostels in the posts held by them retrospectively from the date of initial appointment whereas petitioner’s services were regularised as multi-purpose worker in the last grade service from the date of issuance of G.O.Ms. No. 2500 dated 20.11.2007 only. The petitioner complains that the respondent authorities are regularising the services of the employees working in the hostels, similar to the petitioner’s services, according to their whims and fancies without any rhyme or rythm arbitrarily. No. 2500 dated 20.11.2007 only. The petitioner complains that the respondent authorities are regularising the services of the employees working in the hostels, similar to the petitioner’s services, according to their whims and fancies without any rhyme or rythm arbitrarily. Being aggrieved by her regularisation as multi-purpose worker in the last grade service of the 3rd respondent hostel w.e.f. 20.11.2007 by proceedings dated 30.08.2008 issued by the 1st respondent, the present writ petition has been filed. 6. The then Executive Officer of the TTD - 1st respondent herein filed counter denying the entitlement of the petitioner for regularisation as store keeper with effect from the date of her initial appointment i.e. 20.11.1990 inter-alia contending various averments claiming that the petitioner was initially engaged by the hostel student committee on remuneration of Rs. 250/- per month duly meeting the same from student’s fund as hostel worker and the TTD is no way connected with the hostel workers of the 3rd respondent polytechnic college. There was no hostel exclusively for Women’s Polytechnic College till October, 1990, though the said college was functioning from 1975. Till starting of the hostel exclusively for polytechnic women candidates in the year 1990, the students were accommodated in other women college hostels. 139 hostel workers were absorbed basing on the maximum service rendered by them. The case of the petitioner cannot be compared with that of other hostel workers working in SGS Arts college, SV Arts College and SPW College etcetera. The services of other hostel workers attached to the colleges were engaged by TTD management and the petitioner’s services were not engaged by the TTD. However, in pursuance of the G.O.Ms. No. 2500 issued pursuant to the orders passed in W.P. Nos. 24974 of 2001 and W.P. No. 1068 of 2002, the services of the petitioner were regularised in the last grade service as multi purpose worker. When the 3rd respondent hostel does not come under the management of the TTD, the question of creation of posts does not arise. The provisions of Rule 10 of the TTD Rules issued in G.O.Ms. No. 1060 dated 24.10.1989, is applicable to the regular staff working in TTD institutions only but not to the hostel staff working in the college hostels maintained with the fees collected from students, who are staying in the hostels by paying establishment charges. However, in pursuance of the G.O.Ms. No. 1060 dated 24.10.1989, is applicable to the regular staff working in TTD institutions only but not to the hostel staff working in the college hostels maintained with the fees collected from students, who are staying in the hostels by paying establishment charges. However, in pursuance of the G.O.Ms. No. 2500, dated 20.11.2007, petitioner’s services were regularised w.e.f. 20.11.2007 as a multi-purpose worker in the 3rd respondent hostel. In the absence of cadre strength, the petitioner is not entitled for regularisation in the post of store keeper in the 3rd respondent hostel. 7. The points that arise for consideration are: (1) Whether the petitioner is entitled for regularisation as store keeper in the 3rd respondent hostel from the date of her initial appointment as store keeper i.e. from 20.11.1990, by extending the benefits given to the similar persons who are working in other hostels managed by the TTD? (2) Whether the regularisation of the petitioner as multi-purpose worker from 20.11.2007 as per G.O.Ms. No. 2500 dated 20.11.2007 is arbitrary and illegal? 8. Since both the points are inter-related to each other, both the points are taken up for consideration together. 9. The petitioner was appointed as a store keeper on 20.11.1990 in the 3rd respondent hostel, by subjecting her to selection process and since then she has continuously worked for 19 years in that capacity on meagre consolidated pay of Rs. 250/- per month with a fond hope that her services will be regularised in the timescale on par with other employees working in other hostels attached to the educational institutions run by the TTD. The 3rd respondent vide letter dated 12.04.1994, recommended to the Assistant Executive Officer, TTD to regularise the employees working in the 3rd respondent hostel. In turn Assistant Educational Officer, TTD through his letter dated 22.11.1995 asked for other details of the employees working in the 3rd respondent hostel for regularising the services. In both the proceedings, the petitioner’s engagement in the hostel was shown as Store Keeper from 20.11.1990. The same was not specifically denied in the counter filed by the 1st respondent. Even the TTD Board in its resolution No. 192 dated 03.06.1991 took a decision to regularise the hostel employees working in the hostels attached to the educational institutions managed by the TTD. The same was not specifically denied in the counter filed by the 1st respondent. Even the TTD Board in its resolution No. 192 dated 03.06.1991 took a decision to regularise the hostel employees working in the hostels attached to the educational institutions managed by the TTD. In pursuance of the orders passed by this Court, TTD regularised 139 hostel workers during the year 1991 and 69 workers during the year 2007 on the ground that the hostel workers were engaged by the TTD management but not by the hostel committee. The provisions of Rule 10 issued in G.O.Ms. No. 1060 dated 24.10.1989 empowers the Board to create and fix the cadre strength for absorption and regularisation of the temporary employees working in the post for a long time whose services are required. The same is affirmed by this Court in W.P. No. 11233 of 2016 and 25754 of 2017 dated 21.12.2017. The said matters are carried in appeal in WA. Nos. 361, 1011, 1040 and 1087 of 2018 and the same were dismissed as withdrawn by the TTD. Hence, the contention of the learned counsel appearing for the TTD, Sri S. Satyanarayana Prasad, designated Senior Counsel appearing for Smt C. Sindhu Kumari, counsel on record, is that the petitioner is not entitled for regularisation in the post of store keeper from the date of her initial appointment i.e. 20.11.1990 in the time scale attached to the post and the petitioner’s services were regularised as multi purpose worker in the last grade services in the time scale as per G.O.Ms. No. 2500, dated 20.11.2007, from the date of issuance of the said GO as the petitioner’s case was not considered for regularisation before issuance of the GO as she could not fulfil the conditions issued in G.O.Ms. No. 212 or G.O.Ms. No. 112 and there is a ban on recruitment as per the provisions of the Act 2 of 1994 i.e. THE ANDHRA PRADESH (REGULATION OF APPOINTMENTS TO PUBLIC SERVICES AND RATIONALISATION OF STAFF PATTERN AND PAY STRUCTURE) ACT, 1994. No. 212 or G.O.Ms. No. 112 and there is a ban on recruitment as per the provisions of the Act 2 of 1994 i.e. THE ANDHRA PRADESH (REGULATION OF APPOINTMENTS TO PUBLIC SERVICES AND RATIONALISATION OF STAFF PATTERN AND PAY STRUCTURE) ACT, 1994. In view of the subsequent amendment of Act 2 of 1994 by Act 27 of 1998, which came into force on 19.08.1998, as per the proviso of Section 2 of Act of 1994, the services in any such body or society as specified in sub-clause (e), which is not receiving any funds or grants towards salaries of its employees from the State Government shall not be deemed to be ‘public service’ for the purposes of this Act. Hence, rejection of petitioner’s case referring to the provisions of Act of 1994 and the G.Os issued basing on the Act 2 of 1994 by proceedings dated 30.10.1998 by the 1st respondent is illegal. Challenging the said proceedings, petitioner filed W.P. No. 21232 of 1999 and when the said writ petition is pending before this Court, the Government issued G.O.Ms. No. 2500 regularising the services of 69 hostel workers. This Court, having taken notice of the issuance of the said GO, has closed the writ petition; however, the TTD was directed to consider the case of the petitioner for regularisation of the petitioner in terms of G.O.Ms. No. 2500. The petitioner filed a review petition. The review petition was disposed of on 08.07.2009 giving liberty to the petitioner to challenge the proceedings issued by the TTD regularizing the services of the petitioner in the cadre of Attender instead of Store Keeper. Accordingly, the petitioner preferred present writ petition questioning G.O.Ms. No. 2500 issued by the Government and consequential proceedings issued by the 1st respondent insofar as regularising the petitioner’s services as Multi Purpose worker from 20.11.2007 instead of regularising her services as a Store Keeper from the date of initial appointment i.e. 20.11.1990. The 1st respondent while extending the benefits of G.O.Ms. No. 2500 issued by the Government and consequential proceedings issued by the 1st respondent insofar as regularising the petitioner’s services as Multi Purpose worker from 20.11.2007 instead of regularising her services as a Store Keeper from the date of initial appointment i.e. 20.11.1990. The 1st respondent while extending the benefits of G.O.Ms. No. 2500 while regularising the services of 69 hostel workers working in TTD college hostels in the posts held by them from the date of their initial appointment and time scales were extended with regard to four persons whereas the 1st respondent regularised the services of the petitioner as multi purpose worker in the last grade service from the date of issuance of the GO and regularised her services in the said post, which is illegal and arbitrary. The contra contention of Sri S.S. Prasad, learned senior counsel, stating that the petitioner is not entitled for regularisation in the post of store keeper from the date of her initial appointment i.e. 20.11.1990 and in support of the contention, he placed reliance on a decision in Registrar General of India vs. Thippa Setty, (1998) 8 SCC 690 the challenge wherein was a direction given by the Tribunal to regularise the respondents of the ad hoc employees retrospectively from the date of their initial appointment. The Hon’ble Supreme Court observed that it must be remembered that they had entered as ad hoc appointees and the question was whether they should be regularised in service since they had worked as ad hoc employees for a sufficiently long time; if the ad hoc service is regularised from the back date in this manner, it will disturb the seniority of regularly appointed employees in the cadre and, therefore, ordinarily the regularisation must take effect prospectively and not retrospectively; it must also be borne in mind that ad hoc appointees, casual labour and daily rated persons are not subject to strict discipline of service and it is a matter of common experience that their attendance is very often not regular and at times they do not even meet the qualification for appointment since they are taken on ad hoc basis; these deficiencies are overlooked by way of granting of relaxation and, therefore, care must be taken to see that they do not upset the seniority of other regular appointees. Learned senior counsel also placed reliance on another decision of the Apex Court rendered in Civil Appeal No. 1875 of 2022 in the case of Managing Director, Ajmer Vidhyut Vitran Nigam Ltd. vs. Chiggan Lal and Others wherein the respondents - unskilled labour were engaged by the appellant employer on daily wage basis on different dates from 16.04.1980 to 17.05.1980. Their services were regularised from 29.06.1989 and allowed pay scales w.e.f. 01.04.1989 as per the recommendations of the screening committee and resolution passed by the Board. When the respondent employees approached the High Court of Rajasthan at Jaipur Bench by way of writ petitions seeking regularisation of their appointments from the date of 01.04.1983 instead of 01.04.1989 seeking parity with other employees, the Apex Court following the judgment in Jodhpur Vidyut Vitran Nigam Ltd. vs. Nanu Ram and Others, (2006) 12 SCC 494 held that the date of regularisation and grant of pay scale is prerogative of the employer/screening committee and no parity can be claimed in the matter of regularisation in different years. The Apex Court rendered the said judgment in different factual situation to that of the petitioner’s case in this writ petition. Hence, decisions above referred are not helpful to the respondent-TTD’s case. Hence, the contention of the Senior Counsel holds no water. 10. Sri J. Sudheer, learned counsel appearing for the petitioner would contend that respondent authorities on misapplication of provisions of the Act 2 of 1994 rejected the claim of the petitioner stating that the petitioner is not entitled for regularisation as she has not fulfilled the conditions laid down in G.O.Ms. No. 212 and G.O.Ms. No. 112 and on misinterpretation of the provisions of the said Act and GOs. No clarification to the provisions of Act 2 of 1994 is required in view of the various judgments of the Apex Court and this Court. The provisions of the Act 2 of 1994 were amended by Act 27 of 1998 which came into force on 19.08.1998 clearly stating that the provisions of the Act are not applicable to the organisations or societies or institutions which are not receiving any funds or grants towards salaries of its employees from the State Government. Even in the GOs, nowhere it is stated that the services of the hostel employees can be regularised from the specified date in the last grade services. Even in the GOs, nowhere it is stated that the services of the hostel employees can be regularised from the specified date in the last grade services. In other cases, the 1st respondent has regularised the services of the hostel employees who are similarly situated to that of the petitioner from the date of their initial appointment with retrospective effect. He also submitted that in the case of one P. Vijaya Bhaskar Reddy, NMR absorbed as Lab Attender, in SPW Polytechnic E & CE, his service was regularised w.e.f. 06.05.1991 notionally and the monetary benefits were ordered to be given from the date of his joining i.e. 30.08.2004. In the present case, the petitioner was appointed as store keeper on 20.11.1990 subjecting her to selection process. Denying regularisation of services as a store keeper in the pay scale attached to the post from the date of initial appointment is found to be illegal and arbitrary and hostile discrimination. Continuation of the petitioner services for 19 years in the said post for meagre services leads to the conclusion that the post is perennial in nature and her services needs to be regularised as a store keeper in the 3rd respondent hostel and G.O.Ms. No. 2500 insofar as regularisation of her services by consequential proceedings dated 30.08.2008 as multi purpose worker in the last grade services is found to be illegal and arbitrary. The points are accordingly answered. 11. Be it also noted that Sri J. Sudheer, learned counsel for the petitioner, brought to the notice of this Court that the petitioner filed WPMP No. 51376 of 2016, seeking amendment of the prayer, along with proceedings viz. G.O.Ms. No. 71, dated 25.01.2010 whereby the Government had accorded permission to the 1st respondent-Executive Officer, Tirumala Tirupati Devasthanams to regularise the services of persons working in Sri Padmavathi Ammavari Temple, Tiruchanoor on Sambhavana basis; the proceedings dated 15.02.2010 of the 1st respondent whereby the services of the persons working in Sri Padmavati Ammavari Temple were regularised from the date of issuance of earlier G.O.Ms. No. 855, Revenue (Endts.I) Department, dated 08.10.1997. No. 855, Revenue (Endts.I) Department, dated 08.10.1997. The petitioner filed some other documents by way of Memo, vide USR No. 105246 of 22, dated 29.12.2022, duly serving a copy of the same on other side, for consideration of this Court, the proceedings dated 19.08.1991 of the Chief Warden, S.V. Arts College Hostel, Tirupati, wherein it is stated that the TTD Board in its resolution No. 192, dated 05.06.1991 resolved to treat the hostel workers of SPW College, S.V. Arts College and S.G.S. Arts College as separate unit and sanctioned to create 139 posts in various cadres in the above three hostels to facilitate for regular absorption and regularise the hostel workers already working in the above hostels. It is further stated that as against 139 posts sanctioned, 48 posts were sanctioned to SV Arts College Hostel, with effect from 03.06.1991. By further proceedings dated 19.08.1991 of the Chief Warden, S.V. Arts College Hostel, in view of the ratification orders issued the appointments and promotions of the employees to the cadre of cleaners and servers with effect from the dates noted was communicated to them; proceedings of the Devasthanams Educational Officer, T.T. Devasthanams, Tirupati, in Roc. No. Edn5/48730/DEO/1996 dated nil-03-2020, whereby the hostel workers of SGS Arts College, TTD, Tirupati were regularised from the date, the scales are allowed i.e. 19.10.1994 even though they were initially appointed during the period 1990 and 1991 and 9 SGS hostel staff were ordered to be regularised from the date of absorption, 19.10.1994; G.O.Ms. 283, dated 07.07.2017, whereby the 1st respondent was permitted to regularise the services of one M. Parameswara Reddy, Attender and 35 others stated therein notionally w.e.f. 19.10.1994 instead of 10.10.2007 on par with Sri N. Babu Rao and other hostel workers for counting of service purely for pension fixation purpose. Finally, he contends that the TTD, on permission by the Government, absorbing the temporary employees, according to their whims and fancies, which is highly illegal and arbitrary. 12. In view of the aforesaid reasoning, this Court found that the petitioner is entitled for regularisation of her services as Storekeeper, in Sri Padmavathi Women’s Polytechnic Hostel, Tirupathi, in the pay scales attached to the said post from the date of her initial appointment i.e. 20.11.1990. 12. In view of the aforesaid reasoning, this Court found that the petitioner is entitled for regularisation of her services as Storekeeper, in Sri Padmavathi Women’s Polytechnic Hostel, Tirupathi, in the pay scales attached to the said post from the date of her initial appointment i.e. 20.11.1990. Accordingly, the respondents are directed to consider the case of the petitioner for regularisation of her services in the post of store keeper in the pay scale attached to the post from the date of her initial appointment i.e. 20.11.1990 and fix her pay notionally till regularising her services i.e. 20.11.2007 in terms of G.O.Ms. No. 2500 and from 20.11.2007 the petitioner is entitled for all monetary and attendant benefits. The respondents shall complete the above exercise within a period of eight (08) weeks from the date of receipt of a copy of this order. 13. With the above observations, the Writ Petition is disposed of. No order as to costs. 14. Pending Miscellaneous Petitions shall stand closed.