WP(AT)/319/2021 of S.ABDUL BASHA Vs Governemnt of AP on 30 December 2022

ORDER:

This Writ Petition is filed, seeking the following relief:

“…..to issue a Writ, Order or direction to declare the action of the respondents in issuing the impugned Memo No. 5409/H&S/Horti/15, dated 28.07.2016 in rejecting the claim of the petitioner for regularization of his service as Junior Assistant in the existing vacancy is illegal, arbitrary and violative of G.O.Ms.No.212, dated 22.04.1994, which was confirmed by the Hon’ble Supreme Court of India and the impugned memo issued by the 1[st] respondent as illegal, arbitrary and violative of principles of natural justice and discrimination and call for the records on the file of the 1st respondent and set aside the impugned Memo No. 5409/H&S/Horti/15,l dated 28.07.2016 and pass such other orders.”

2. Heard Mr. Kamalakara Rao Bathina, learned counsel for the petitioner and learned Government Pleader, Services-II for the respondents.

3. The brief facts of the case are that the petitioner initially appointed as Attender and subsequently he was worked as driver on daily wages on minimum last grade time scale in the office of the 3[rd] respondent. The 1[st] respondent vide G.O.Rt.No.877, dated 02.07.2010 has sanctioned minimum time scale of pay to the petitioner and paying the salaries to the petitioner from District Treasury. The petitioner has passed Intermediate and he is eligible for regularization of his services as Junior Assistant in the existing vacancy in terms of G.O.Ms.No.212, dated 22.04.1994. The petitioner made a representation dated 09.01.2015 requesting the respondents to absorb him by regularize his service as Junior Assistant in the existing vacancy. The 1[st] respondent issued Memo dated 23.01.2016 rejected the request of the petitioner on the ground that in a lower category cannot be absorbed in a vacancy that arises in a higher capacity and he may be considered in the resultant vacancy only and that the Daily Wage Driver cannot be considered as Junior Assistant, which is illegal and arbitrary. Hence inaction of the respondents is questioned in the writ petition.

4. Per contra, the respondents filed counter denying all material averments made in the writ affidavit and mainly contended that the Commissioner of Horticulture, Hyderabad vide Memo dated 10.03.2016 has instructed the Assistant Director of Horticulture-I, Anantapuramu to furnish the vacancy position in lower category post for regularization of service of the petitioner. Basing on the vacancy position as submitted vide letter dated 10.03.2016 that there is no any vacancy in lower category post except Junior Assistant. On receipt of the vacancy position from the Assistant Director of Horticulture-I, Ananthapuramu again the Commissioner of Horticulture, Hyderabad vide letter dated 14.03.2016 has submitted proposals to the Government for regularization of services of the petitioner. Again the Government issued vide Memo dated 28.07.2016 stating that the attention of the Commissioner of Horticulture, A.P, Hyderabad is invited to the references cited and he is informed the proposal for regularization of the service of the petitioner, Daily Wage Worker working in Anantapuramu District as Junior Assistant in the office of the ADH, Penukonda, Ananthapuramu District is hereby rejected, as the individual working as daily wage basis in lower category cannot be absorbed in a vacancies arises in a higher capacity. Therefore the petitioner is disentitled to claim the relief as prayed for.

5. During hearing learned counsel for the petitioner reiterated the contents urged in the writ petition and placed on record the order of this Court dated 08.09.2022 in W.P.No.22489 of 2020 and contended that in similar set of facts this court passed the order and requested to pass similar orders in this writ petition also.

6. Considering the submissions of both the counsel, by following the catena of judgments of this Court and also Hon’ble Apex Court, this Court is inclined to dispose of the Writ Petition while declaring the impugned Memo No.28.07.2016 as illegal, arbitrary and directing the respondents to regularize the services of the petitioner as Junior Assistant in the existing vacancy as per G.O.Ms.No.212, dated 22.04.1994 and accord all consequential benefits to the petitioner within a period of eight (08) weeks from the date of receipt of a copy of this order.

7. With the above direction, the Writ Petition is allowed. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall also stand closed.

Date: 30.12.2022. KK

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DR.JUSTICE K. MANMADHA RAO

THE HON’BLE DR.JUSTICE K. MANMADHA RAO

WRIT PETITION (A.T) No.319 of 2021

Date: 30.12.2022.

KK