WP/23183/2002 of M/S.OSMAN ENTERPRISES SRIKAKULAM Vs THE CTO. RAJAM AND 2 ORS on 20 November 2002

Conclusion

1. This writ petition is filed challenging the order, dated 23.2.2001,passed by the Andhra Pradesh Administrative Tribunal, Hyderabad, inO.A.No. 8303 of 1998, whereby it directed the writ petitioners toregularize the services of the second respondent herein in terms ofG.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated22.4.1994 and G.O.(P).No.112, Finance & Planning (FW.PC.III)Department, dated 23-07-1997.

2. The Government of Andhra Pradesh issued G.O.Ms.No.212,dated 22-04-1994, and by the said G.O., the Government decided thatthe services of such persons who worked continuously for a minimumperiod of 5 years and are continuing as on 25.11.1993 be regularizedby the appointing authorities subject to fulfillment of the followingconditions:

1) The persons appointed should possess thequalifications prescribed as per rules in force as on thedate from which his/her services have to beregularised.

2) They should be within the age limits as on the dateof appointment as NMR/Daily wage employee.

3) The rule of reservation wherever applicable will be followed and back-log will be set- off against futurevacancies.

4) Sponsoring of candidates from EmploymentExchange is relaxed.

5) Absorption shall be against clear vacancies of postsconsidered necessary to be continued as per work-load excluding the vacancies already notified to theAndhra Pradesh Public Service Commission / DistrictSelection Committee.

6) In the case of Workcharged Establishment, wherethere will be no clear vacancies, because of the factthat the expenditure on Workcharged is at a fixedpercentage of P.S. charges and as soon as the workis over, the services of workcharged establishmentwill have to be terminated, they shall be adjusted in theother departments, District Offices provided there areclear vacancies of last Grade Service.”

3. G.O. (P).No.112, dated 23-07-1997, was issued in pursuance ofa scheme formulated under the Andhra Pradesh (Regulation ofAppointments to Public Services and Rationalisation of Staff Patternand Pay Structure) Act, 1994 (Act No. 27 of 1998) and by the saidG.O., the Government decided that the services of such persons whoworked continuously for a minimum period of 10 years and arecontinuing as on 25.11.1993 be regularized by the appointingauthorities subject to fulfillment of the following conditions:

1. Absorption shall be against clear vacancies of postsconsidered necessary to be continued as per work-load excluding the vacancies already notified to theAndhra Pradesh Public Service Commission or as thecase may be, the District Selection Committee.considered necessary to be continued as per work-load excluding the vacancies already notified to theAndhra Pradesh Public Service Commission or as thecase may be, the District Selection Committee.

2. The persons appointed should possess the qualificationsprescribed as per rules in force as on the date fromwhich his or her services have to be regularised.prescribed as per rules in force as on the date fromwhich his or her services have to be regularised.3. The person should be within the age limit as on the date ofappointment as part-time employee.appointment as part-time employee.

4. The Rule of Reservation wherever applicable will befollowed and backlog will be set off against futurevacancies.followed and backlog will be set off against futurevacancies.

5. The sponsoring of candidate from Employment Exchange is relaxed.

6. If there are two candidates, one part-time and the secondone a full-time employee (Daily Wage employee) ofany category or name and there exists only onevacancy, the senior most between the two in terms ofcontinuous service already rendered prior to 25-11-1993 treating two years of part-time service as oneyear of full-time service, relative seniority will becalculated and regularisation will be suggested for thesenior among the two accordingly.one a full-time employee (Daily Wage employee) ofany category or name and there exists only onevacancy, the senior most between the two in terms ofcontinuous service already rendered prior to 25-11-1993 treating two years of part-time service as oneyear of full-time service, relative seniority will becalculated and regularisation will be suggested for thesenior among the two accordingly.

7. The regularisation of services of full-time employee alreadymade in terms of G.O.Ms.No.212, Finance & Planning(FW.PC.III) Department, dated 22-04-1994 will not bereopened for giving effect to the present order.”made in terms of G.O.Ms.No.212, Finance & Planning(FW.PC.III) Department, dated 22-04-1994 will not bereopened for giving effect to the present order.”

4. Though served, none appeared for the second respondent.The learned Government Pleader appearing for the writ petitionerssubmits that this issue is squarely covered by a recent judgment of theSupreme Court in A. Manjula Bhashini and OthersVs. TheManaging Director, A.P. Women's Cooperative FinanceCorporation Ltd. and Another delivered inCivil Appeal No. 3702 of2006 and batch, decided on July 6, 2009 and the Supreme Court inparas 42 and 43 held, “42. The question which remains to be considered iswhether the Division Bench was justified in holding thatall daily wage employees who completed 5 yearsservice on the date of enforcement of Act No. 27 of1998, i.e., 19.8.1998 would be entitled to be consideredfor regularisation of their services. A reading ofparagraphs 54, 67, 68 and 72 of the impugnedjudgment shows that even though the Division Benchdid not find the cut off date i.e. 25.11.1993 specified infirst proviso to Section 7 for determining the eligibilityof daily wage employees for regularisation to bearbitrary, irrational or discriminatory, yet it changed thesaid date from 25.11.1993 to 19.8.1998 solely on thepremise that Act No. 27 of 1998 was enforced witheffect from that date. In our view, once the DivisionBench negatived the challenge to the validity of ActNos. 3 of 1998 and 27 of 1998, there was no warrant for altering the date of eligibility specified in first provisoto Section 7 of the 1994 Act and thereby extend thezone of eligibility of daily wage employees who couldbe considered for regularisation. As a corollary, wehold that the declaration made by the Division Benchthat all persons who completed 5 years service as onthe date of coming into force of Act No. 27 of 1998would be entitled to be considered for regularisation oftheir services is legally unsustainable and is liable tobe set aside.

43. In the result, the appeals filed by the employees(C.A. Nos. 3702, 3703, 3704, 3705, 3706, 3707, 3709,3710, 3721, 3733, 3734, 3737, 3742, 3744, 3748, 3749and 3751 of 2006) are dismissed and those filed by theState Government and agencies/instrumentalities ofthe State (C.A. Nos. 3685, 3712, 3713, 3714, 3715,3716, 3717, 3718, 3723, 3724, 3726, 3727, 3728,3729, 3730, 3731, 3732, 3750, 3752, 3753, 3754 and3755 of 2006) are allowed. The declaration made bythe Division Bench that the ban on regularisation willbe effective from 19.8.1998 i.e. the date on which ActNo. 27 of 1998 came into force and that all personswho have completed 5 years service as on that datewould be entitled to be considered for regularisation ofservice is set aside. It is, however, made clear that thedaily wage employees and others who are covered bySection 7 of the 1994 Act (amended) and whoseservices have not been regularised so far, shall beentitled to be considered for regularisation and theirservices shall be regularised subject to fulfillment ofthe conditions enumerated in G.O. dated 22.4.1994.With a view to obviate further litigation on this issue,we direct the Government of Andhra Pradesh, itsofficers and agencies/instrumentalities of the State tocomplete the exercise for regularisation of theservices of eligible employees within four months ofthe receipt/production of copy of this order, withoutbeing influenced by the fact that the application, writpetition or appeal filed by any such employee mayhave been dismissed by the Tribunal or High Court orthis Court. Since some of the appeals decided by thisorder relate to part time employees, we direct thatsimilar exercise be undertaken in their cases and completed within four months keeping in view theconditions enumerated in G.O.(P). No. 112 dated23.7.1997.”

5. The second respondent was appointed on 10.07.1989 as aSection Writer and was posted in Asifabad Sector under the control ofthe Sectoral Officer in Asifabad. Admittedly, he has not completed fiveyears of service as on 25.11.1993 and he has not fulfilled theconditions as laid down under G.O.Ms.No. 212, Finance & Planning(FW.PC.III) Department, dated 22.4.1994, and as such, he is noteligible to be regularised.

6. The Supreme Court also reversed the view taken by the Tribunalthat the applicants before it were in service as on 25.11.1993 and asand when they complete five/ten years of service, they are entitled forregularization. In the aforesaid judgment of the Supreme Court, it waslaid down that in terms of the G.O.Ms.No. 212, dated 22.4.1994 theemployee should have completed five years of service and continuedto be in service as on 25.11.1993 in order to get the eligibility forregularization, and in terms of G.O. (P).No.112, dated 23-07-1997, theemployee should have completed ten years of service and continuedto be in service as on 25.11.1993 in order to get the eligibility forregularization. In view of the judgment of the Supreme Court, the orderof the Tribunal is not sustainable and is liable to be set aside.

7. In the present case, the second respondent claims that heworked as section writer from 10.07.1989 onwards. Therefore,following the judgment of the Supreme Court referred to above, the writpetition is allowed setting aside the order of the Tribunal. No order as to costs.

Dt:24.08.2009usd

_________________________

JUSTICE V. ESWARAIAH

___________________________________

JUSTICE VILAS V. AFZULPURKAR