WRIT PETITION 30233 of 2018 on 25 November 1993

ORDER:

This Writ Petition is filed under Article 226 of Constitution of India with the following prayer for:

“...to issue a Writ Order or direction particularly[one][ In][ the][ nature][ of][ writ][ of]Mandamustodeclaretheletterof thethirdrespondentinRcNo1402/BB/2009 dated 03.07.2013 as illegal arbitrary and contrary to theJudgement of the Honourable Supreme Court of IndiainthecaseofGovernment of Andhra Pradesh and others\/s Sri SevadasVidyamand[ir]High School and others (S.L.P Civil No. 9541 of 2007)[and][ unconstitutional]andconsequentlydirecttherespondentstoregularisethepostofSmtMankindiRatnamma who is the wife of the first petitioner[herein]as aregular employee from the date when she has completed 5 years of servicei.e., with effect from 25.11.1993 as per the orders issued in G.O.Ms.212FinanceandPlanningDepartmentdated22.04.1994andtopayallConsequential benefits to the petitioners till date and pass.

2. Heard Sri M.Srikanth, learned Counsel for the petitioners[and][ learned]Assistant Government Pleader for School Education.Assistant Government Pleader for School Education.

3. Learned Counsel for the petitioner would submit that[the][ wife]of1petitioner i.e., Smt. M. Rathnamma, initially appointed[as][ part-time][ sweeper][ in]the Schoolof therespondentNo.4,on01.11.1982.Thereafter,shehasbecome full time contingent sweeper, on 01.11.1986[and worked][ as][ such]tillher superannuation, on 30.06.2010. Due to death of[Smt.][ B.Devamma,][ who]died due to paralysis on 21.02.1993 and her post has[fallen][ vacant][ and][ Smt.]M. Rathnamma, who is the wife of the petitioner is eligible to be absorbed inthe said vacancy. Learned Counsel would further submit[that][ the] respondentNo.4 has sent a proposal on 27.02.1999 to the respondent[No.2]totakenecessary action for regularization of her services in the light of G.O.Ms.No.212 dated 22.04.1994 from the date of completion of five (5) years of servicewith effect from 25.11.1993. Learned Counsel would[further][ submit][ that][ the]respondent No.3 also addressed a letter on 29.09.1993[to][ the][ respondent]No.2 for conversion of post of sweeper to Class-1V post.Learned Counsel forthe petitioners would further submit that thereafter the respondent No.4 hassent another proposal dated 27.02.1999 seeking regularization[of][ services][ of]Smt.M.Rathnamma, since she was possessing prescribed qualification. Butthere was no response from the respondent Nos.1 and2. Thereafter,therespondentNo.4hassentspecific proposaltothe respondentNo.3on20.05.2008 by givingall details regarding the extents[of][ clear] vacancy andthat Smt.M.Rathnammais eligible onall accounts and she was working inpetitioner i.e., Smt. M. Rathnamma, initially appointed[as][ part-time][ sweeper][ in]the Schoolof therespondentNo.4,on01.11.1982.Thereafter,shehasbecome full time contingent sweeper, on 01.11.1986[and worked][ as][ such]tillher superannuation, on 30.06.2010. Due to death of[Smt.][ B.Devamma,][ who]died due to paralysis on 21.02.1993 and her post has[fallen][ vacant][ and][ Smt.]M. Rathnamma, who is the wife of the petitioner is eligible to be absorbed inthe said vacancy. Learned Counsel would further submit[that][ the] respondentNo.4 has sent a proposal on 27.02.1999 to the respondent[No.2]totakenecessary action for regularization of her services in the light of G.O.Ms.No.212 dated 22.04.1994 from the date of completion of five (5) years of servicewith effect from 25.11.1993. Learned Counsel would[further][ submit][ that][ the]respondent No.3 also addressed a letter on 29.09.1993[to][ the][ respondent]No.2 for conversion of post of sweeper to Class-1V post.Learned Counsel forthe petitioners would further submit that thereafter the respondent No.4 hassent another proposal dated 27.02.1999 seeking regularization[of][ services][ of]Smt.M.Rathnamma, since she was possessing prescribed qualification. Butthere was no response from the respondent Nos.1 and2. Thereafter,therespondentNo.4hassentspecific proposaltothe respondentNo.3on20.05.2008 by givingall details regarding the extents[of][ clear] vacancy andthat Smt.M.Rathnammais eligible onall accounts and she was working in ^.

^.

sanctionedpost evenpriortotheissuanceof G.O.Ms.no.524dated20.12.1988. Learned Counsel for the petitioners would submit that when theappointmentof Smt.M.Rathnamma as Sweeper was donepriortotheissuance of G.O.Ms.No.524, the question of rule of reservation does notarise.Learned counsel would further submit that the respondentNo.4 has sentanother proposal on 01.07.2008 to the respondent Nos.1to 3 but there is noresponse. Learned counsel would further submit that the wife of the petitionerNo.1, retired on 30.06.2010 and died on 30.07.2013 but she is entitled to thescale of pay pension attached to the post of Class-IV. Learned Counsel finallysubmits that the petitioners when they have obtained the information underRTIaboutstatusoftheirrepresentation,they couldunderstandthattherespondent No.3 addressed a letter to the Joint Director of School Educationstating that there was no scope to examine the proposal of regularization ofSmt. M.Rathnamma since she has attained the age of superannuation by thattime. Learned Counsel finally submits that simply because the individual died,the respondent authorities cannot throw away her claim. Such being thecasethe claim of the persons seeking regularization like Smt. M. Rathnamma canbe kept in cold storage for decades together and then come up with a pleathat the individual died or retired. Learned counsel would further submit thatthe deceased employee is very much entitled for regularization[of][ her][ services]and petitioners being the husband and children of the deceased employee,they are entitled to get the pension and other benefits.

4. Learned Assistant Government Pleader for School Education wouldsubmit that due to retirement and subsequent death of theindividual, therespondent No.3 opined that there is no need to scrutinize the application ofthe individual. Learned Assistant Government Pleader would submit that therespondent No.4appointed Smt.M.Rathnamma as sweeper without followingthe rule of reservation. Learned Assistant Government Pleader finally praysfor dismissal of the petition stating that the relief has become infructuous.submit that due to retirement and subsequent death of theindividual, therespondent No.3 opined that there is no need to scrutinize the application ofthe individual. Learned Assistant Government Pleader would submit that therespondent No.4appointed Smt.M.Rathnamma as sweeper without followingthe rule of reservation. Learned Assistant Government Pleader finally praysfor dismissal of the petition stating that the relief has become infructuous.

5. Considering the submissions made andafair lookat thematerialplaced on record, there is no dispute about the fact that the wife of the1®‘petitioner, Smt. M.Rathnamma has joinedin the School of the respondentNo.4 in the year 1982, as part time sweeper and then she has become fulltime contingent sweeper in 1986. The record further shows the efforts madeby the respondent No.4 for regularization of the services of the deceasedemployee i.e. Smt. M. Rathnamma.It is undisputed fact that she worked in asanctioned post. The post is also fallen vacant due to the death of one Smt.Devamma. The contention of the learned Assistant Government Pleader thatthe respondent No.4 has not followed the procedure in appointing Smt. M.Rathnamma as sweeper falls to the ground since G.O.Ms.No. 524 EducationDepartment dated 20.12.1988 has come into force on 20.12.1988 whereas,the appointment of the deceased Smt.M.Rathnamma was way back in theyear 1982. That being so, the respondent authorities cannot take shelter toreject the proposal of the regularization on the point that rule of reservation isnotfollowedintheyear1982.Viewfromanyangle,thedeceasedplaced on record, there is no dispute about the fact that the wife of the1®‘petitioner, Smt. M.Rathnamma has joinedin the School of the respondentNo.4 in the year 1982, as part time sweeper and then she has become fulltime contingent sweeper in 1986. The record further shows the efforts madeby the respondent No.4 for regularization of the services of the deceasedemployee i.e. Smt. M. Rathnamma.It is undisputed fact that she worked in asanctioned post. The post is also fallen vacant due to the death of one Smt.Devamma. The contention of the learned Assistant Government Pleader thatthe respondent No.4 has not followed the procedure in appointing Smt. M.Rathnamma as sweeper falls to the ground since G.O.Ms.No. 524 EducationDepartment dated 20.12.1988 has come into force on 20.12.1988 whereas,the appointment of the deceased Smt.M.Rathnamma was way back in theyear 1982. That being so, the respondent authorities cannot take shelter toreject the proposal of the regularization on the point that rule of reservation isnotfollowedintheyear1982.Viewfromanyangle,thedeceased Smt.M.Rathnammaisentitledforregularizationofherservicesinthesanctioned post as Class-IV employee. She has worked from 1982 to 2010 tillher retirement in the very same school contributing[her][ services][ as][ full][ time]contingent sweeper. The Correspondent of the respondent[No.4][ has][ issued]proceedings dated 01.11.1986 pertaining to late M. Rathnamma duly statingthat she is eligible for pay and allowance as and when admitted to grant-in-aid. The school of the respondent No.4 is a minority[Christian][ institution.][ The]appointments whatever made earlier to G.O.Ms.No.524 cannot be questionedonthepointthatruleofreservation wasnotfollowed.ThedeceasedSmt.M.Rathnammaisentitledforregularizationof herservicesrenderedduring her lifetime and despite of several proposals made by the respondentNo.4, the respondent authorities have not responded to the proposals, eventhough she is entitled for regularization.

Determination by the Court:

6. The Hon’ble Apex Court, while discussing the judgment[of][ Umadevi’s]case, in State of Karnataka and others vs. M.L.Kesari and others\ held ascase, in State of Karnataka and others vs. M.L.Kesari and others\ held as follows:

“4. When the matter came up for hearing on 10.3.2006,the matter wasadjourned to await the decision of the Constitution[Bench]in CANos.3595-3612/1999-StateofKarnatakav.Umadevi.However,subsequently notice was directed to be issued both on the application forcondonation of delay for 361 days' in filing the SLP as also on the specialleave petition.adjourned to await the decision of the Constitution[Bench]in CANos.3595-3612/1999-StateofKarnatakav.Umadevi.However,subsequently notice was directed to be issued both on the application forcondonation of delay for 361 days' in filing the SLP as also on the specialleave petition.

5. ThedecisioninStateof Karnatakav.Umadevi wasrenderedon10.4.2006 (reported in 2006 (4) SCC 1). In that case,[a][ Constitution][ Bench]of this Court held that appointments madewithout followingthedueprocess or the rules relating to appointment did not confer any right on the10.4.2006 (reported in 2006 (4) SCC 1). In that case,[a][ Constitution][ Bench]of this Court held that appointments madewithout followingthedueprocess or the rules relating to appointment did not confer any right on the appointees and courts cannot direct their absorption, regularization or reengagement nor maketheir service permanent, and the High Court inexercise of jurisdiction under Article 226 of the Constitution[should][ not]ordinarily issuedirectionsfor absorption,regularization,or permanentcontinuance unless the recruitment had been done in a regular manner, Interms of the constitutional scheme; and that the courts must be careful inensuring that they do not interfere unduly with the economic arrangementof its affairs by the State or its instrumentalities, nor lend themselves to beinstruments to facilitate the bypassing of the constitutional and statutorymandates.

6. This Court further held that a temporary, contractual,casual or adaily-wage employee does not have a legal right to be made permanentunless he had beenappointedintermsof therelevantrulesorinadherence of Articles 14 and 16 of the Constitution.This Court howevermade one exceptionto the above position and the sameis extractedbelow:daily-wage employee does not have a legal right to be made permanentunless he had beenappointedintermsof therelevantrulesorinadherence of Articles 14 and 16 of the Constitution.This Court howevermade one exceptionto the above position and the sameis extractedbelow:

"53. One aspect needs to be clarified. There may be[cases]where Irregular appointments (not illegal appointments)asexplained in S.V. Narayanappa [1967 (1) SCR 128], R.N.Nanjundappa [1972(1) SCC 409] and B.N.Nagarajan[1979 (4) SCC 507] and referred to in para 15 above,ofdulyqualified personsinduly sanctioned vacant postsmight have been made and the employees have continuedto work for ten years or more but without the intervention ofordersof thecourtsoroftribunals.Thequestionofregularization of the services of such employees may[have]to be considered on merits in the light of the principlessettled by this Court In the cases abovereferred to and inthe light of this judgment. In that context, the Union of India,the State Governments and their instrumentalities shouldtakestepstoregularizeasaone-time measure,theservices of such irregularly appointed, who have worked forten years or more in duly sanctioned posts but not[under]cover of orders of the courts or of tribunals and shouldfurther ensure that regular recruitments are undertaken tofill those vacant sanctioned posts that require to be filled up,in cases where temporary employees or dally wagers[are]being now employed. The process must be set in motionwithin six months from this date"

7. It is evident from the above that there is an exception to the generalprinciples against 'regularization' enunciated in Umadevi,if the followingconditions are fulfilled:

(I) The employee concerned should have worked for 10years or more In duly sanctioned post without the benefit[or]protection of the interim order of any court or tribunal.Inother words, the State Government or its instrumentality

should have employed the employee and continued him inservicevoluntarily and continuouslyfor more thantenyears,

(ii) The appointment of such employee should not be illegal,even if irregular. Where the appointments are not madeorcontinued against sanctioned posts or where the personsappointeddonotpossesstheprescribedminimumgualificatlons,the appointments will be consideredto beillegal.But where the person employed possessed theprescribedqualificationsandivasworkingagainstsanctionedposts,buthadbeenselectedwithoutundergoing the process of open competitive selection,[such]appointments are considered to be irregular.

8. UmadevicastsadutyupontheconcernedGovernmentorinstrumentality, to take steps to regularize the services of those irregularlyappointed employees who had served for more than ten years without thebenefit or protection of any interim orders of courts or tribunals, as a onetime measure. Umadevi, directed that such one-time measure must be setin motion within six months from the date of its decision (renderedon10.4.2006)."

7. In the case of Amarkant Rai vs. State of Bihar and others^, the Hon’ble Apex Court held at Paras 11, 12, 14, & 16as follows; “11. As noticed earlier, the case of the appellant was[ referred][ to][ Three]Members Committee and Three Members Committee rejected[the][ claim][ of]the appellant declaring that his appointment is not in consonance with theratio of the decision laid down by this Court in Umadevi's case (supra).InUmadevi's case, even though this Court has held that the appointmentsmade against temporary or ad-hoc are not to be regularized, in para 53 ofthe judgment,it provided that irregular appointment of dulyqualifiedpersons in duly sanctioned posts who have worked for 10 years or morecan be considered on merits and steps to be taken one time measure toregularize them. In para 53, the Court observed as unden- "53. One aspect needs to be clarified. There may be[cases]where irregular appointments (not illegal appointments)asexplained inS.V.Narayanappa,R.N.Nanjundappa andB.N. Nagarajan and referred to in para 15 above, of dulyqualified personsin duly sanctioned vacant posts mighthave been made and the employees have continued towork for ten years or more but without the intervention ofordersof thecourtsor oftribunals.Thequestionofregularisation 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 abovereferred to and inthe light of this judgment. In that context, the Union of India,the State Governments and their instrumentalities shouldtakestepstoregulariseasaone-timemeasure,theservices 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 shouldfurther ensure that regular recruitments are undertaken tofill those vacant sanctioned posts that require to be filled up,in cases where temporary employees or daily wagersarebeing now employed. The process must be set in motionwithinsix months fromthisdate. Wealsoclarify thatregularisation, if any already made, but not sub judice,[need]not be reopened based on this judgment, but there shouldbe no further bypassing of the constitutional requirementand regularising or making permanent,thosenot dulyappointed as per the constitutional scheme."

The objective behind the exception carved out in this casewasprohibiting regularization of such appointments, appointed personswhose appointments is irregular but not Illegal, ensure security ofemployment of those persons who served the State Governmentand their Instrumentalities for more than ten years.

12. Elaborating upon the principles laid down in Umadevi's case (supra)and explaining the difference between irregular and illegal appointments inState of Karnataka & Ors.v. M.L Kesari & Ors., (2010) 9 SCC 247, thisCourt held as under:

"7. It is evident from the above that there is an exception[to]the general principles against "regularisation" enunciated inUmadevi (3), if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10years or more in duly sanctioned post without the benefit orprotection of the interim order of any court or tribunal.Inother words, the State Government or its instrumentalityshould have employed the employee and continued him inservicevoluntarily and continuouslyfor morethantenyears,

(ii) The appointment of such employee should not be illegal,even if irregular. Where the appointments are not made orcontinued against sanctioned posts or where the personsappointeddonotpossesstheprescribedminimumqualifications,the appointments will be consideredto beillegal.But where the person employed possessed theprescribedqualificationsandu/asworkingagainstsanctionedposts,buthadbeenselectedwithoutundergoing the process of open competitive selection,[such]appointments are considered to be irregular."

14. In our view,the exception carved out in para 53 of Umadeviisapplicable to the facts of the present case. There is no material placed onrecord by the respondentsthat the appellant has been lacking anyqualification or bear any blemish record during his employment forovertwo decades.Itis pertinent to note that services of similarly situatedpersons on daily wages for regularization viz. one Yatindra Kumar Mishrawho was appointed on daily wages on the post of Clerk was regularizedw.e.f 1987. The appellant although initially working against unsanctionedpost,the appellant was working continuously since 03.1.2002 againstsanctioned post. Since there is no material placed on record regarding thedetailswhether anyother nightguardn/asappointedagainstthesanctioned post,in the facts and circumstancesof thecase,weareinclined to award monetary benefits be paid from 01.01.2010.16. The impugned order of the High Court in LPA No. 1312 of 2012 dated20.02.2013 is set aside and this appeal is allowed.The authorities aredirectedtonotionallyregularizetheservicesoftheappellantretrospectively w.e.f 03.01.2002, or the date on which the post becamevacant whichever is later and without monetary benefit[for][ the][ above]period. However, the appellant shall be entitled to monetary benefits from01.01.2010. The period from 03.01.2002 shall be taken for continuity ofservice and pensionary benefits.

8. The Hon’ble Apex Courtin Niha! Singh and others vs.Stateof Punjab and others^ at Paras 19, 21 and 24 held as under;

“19. Coming to the judgment of the division bench of the High Court ofPunjab&HaryanainLPANo. 209of1992wheretheclaimsforregularizationof thesimilarly situated personswere rejected onthegroundthat noregular cadreor sanctioned postsareavailableforregularization of their services, the High Court may be factually right inrecording that there is no regularly constituted cadre and sanctioned postsagainst which recruitments of persons like the appellantshereinweremade. However, that does not conclusively decide the[issue][ on][ hand.]Thecreationof a cadreor sanctioningof postsfor a cadreisa matterexclusively within the authority of the State. That[tlfe^State][ did not][ choose]to create a cadre but chose to make appointments of persons creatingcontractual relationship only demonstratesthe arbitrarynatureoftheexerciseofthe poweravailableundersection17oftheAct.Theappointments made have never been terminated thereby enabling variousbanks to utilize the services of employees of the State for a long period onnominal wages and without making available any other[service][ benefits]whichareavailabletotheother employeesof theState,whoaredischarging functions similar to the functions that are being discharged bythe appellants.

21. But we do not see any justification for the State[to][ take][ a][ defence][ that]after permitting the utilisation of the services of large number of people likethe appellants for decades to say that there are no sanctioned posts toabsorb the appellants. Sanctioned posts do not fall[from][ heaven.]Statehas to create them by a conscious choice on the basis[of][ some][ rational]assessment of the need.

24. Even going by the principles laid down in Umadevi’s case, we are[ of]the opinion that the Stateof Punjab cannot be heard to say that theappellants are not entitled to be absorbed into the[services][ of][ the][ State][ on]permanent basis as their appointments were purely temporary[and][ not]against any sanctioned posts created by the State.”

9. In a recent judgment of Hon’ble Apex Court in Vinod[Kumar][ and][ Ors.]

Etc. Vs. Union of India & Ors^, it was held that procedural[formalities][ cannot]be used to deny regularization of service to an employee whose appointmentwas termed "temporary" but has performed the same duties as performed bythe regular employee over a considerable period, in the capacity of the regularemployee. The relevant paras of this judgment have been reproduced below:

6. The application of the judgment in Uma Devi (supra) by the High Courtdoesnotfitsquarelywiththefactsathand,giventhespecificcircumstancesunder whichtheappellants were employedand havecontinuedtheir service.Thereliance on proceduralformalitiesattheoutset cannot be used to perpetually deny substantive rights that haveaccrued over a considerable period through continuousservice. TheirpromotionM/as based onaspecificnotificationfor[vacancies]andasubsequent circular, followed by a selection process involving written testsand interviews,which distinguishestheir case from theappointmentsthrough back door entry as discussed in the case of Uma Devi (supra).

7. The judgementinthe case UmaDevi(supra)alsodistinguishedbetween“irregular"’and“illegal’’appointmentsunderscoringtheimportance of considering certain appointments [2024]1S.C.R.1230even if were not made strictly in accordance with the prescribed Rules andProcedure, cannot be said to have been made illegally if they had followedtheproceduresof regular appointmentssuchasconductofwrittenexaminations or interviews as in the present case..."

10. In Jaggo vs. Union of India & others®, the Hon’ble Apex Court held as under:

“27.In light of these considerations,in our opinion,it is imperative forgovernment departments to lead by example in providing[fair][ and][ stable]employment.Engagingworkersonatemporarybasisforextendedperiods,especially whentheir roles areintegralto theorganization'sfunctioning, not only contravenes international labour[standards][ but][ also]exposes the organization to legal challenges and undermines employeemorale. By ensuring fair employment practices, government[institutions]can reduce the burden of unnecessary litigation, promote job security, andupholdthe principlesof justice and fairnessthat theyare meanttoembody.This approachalignswith international standards[and][ sets][ a]positive precedent for the private sector to follow, thereby contributing tothe overall betterment of labour practices in the country.

28. In view of the above discussion and findings, the appeals areallowed. The impugned orders passed by the High Court[and][ the]Tribunal are set aside and the original application[is][ allowed][ to][ the]following extent:

i. The termination orders dated 27.10.2018 are quashed;

ii. The appellants shall be taken back on duty forthwith[and][ their]services regularised forthwith. However, the appellants[shall][ not]be entitled to any pecuniary benefits/back wages for the periodthey have not worked for but would be entitled to continuity[of]services for the said period and the same would be[counted][ for]their post-retiral benefits. ”

11. Inthe backdropoflegalpositionsreferredsupra,thedeceased Smt.M.Rathnammais entitled for regularization. Such being the case, shecannot be deprived of such right having contributed her services for 28 yearsin the School of the respondent No.4 with fond hope that one or other day, herservices would be regularized. Hence the petitioner[No.1][ who][ is][ the][ husband]of Smt. M. Rathnamma is entitled for retiral and family pension according to the rules.

12. With these observations, the Writ PetitioniIS allowed. No order as toIS allowed. No order as to costs.

Pending applications, if any, shall stand closed.

HIGH COURT

DATED:10/04/2025

ORDERWP.No.30233 of 2018

I11 SEP mCurrent Section-itA'£^SPATCV^^^

ALLOWING THE W.P., WITHOUT COSTS