B. Mohanamma @ B. Mohana, Vs the State of Andhra Pradesh

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[3329]

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APHC010166372020

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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THURSDAY,THE FIFTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX

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PRESENT

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THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA WRIT PETITION NO: 10475/2020

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Between:

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B. MOHANAMMA @ B. MOHANA,, D/O. B. DORASWAMY, HINDU, AGED ABOUT 47 YEARS, OCC SWEEPER IN THE 0/O. ASSISTANT DIRECTOR OF MINES AND GEOLOGY, CHITTOOR, R/O. H.NO. 1- 113, THIPPINAIDUPALLI, VADDIVINDLU, DEVALAMPET POST, VEDURUKUPPAM MANDAL, CHITTOOR DISTRICT.

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...PETITIONER

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AND

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THE STATE OF ANDHRA PRADESH, THE STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL SECRETARY, MINES AND GEOLOGY, SECRETARIAT, SECRETARIAT BUILDINGS, VELAGAPUDI AMARAVATHI, GUNTUR DISTRICT

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THE DIRECTOR OF MINES AND GEOLOGY, STN FLOOR, BLOCK - B, SRI ANJANEYA TOWERS, IBRAHIMPATNAM, VIJAYAWADA, KRISHNA DISTRICT.

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THE ASSISTANT DIRECTOR OF MINES AND GEOLOGY, CHITTOOR, CHITTOOR DISTRICT.

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THE DISTRICT COLLECTOR, CHITTOOR DISTRICT.

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THE STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL SECRETARY, FINANCE DEPARTMENT, SECRETARIAT, SECRETARIAT BUILDINGS, VELAGAPUDI, AMARAVATHI, GUNTUR DISTRICT.

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THE DISTRICRT TREASURY OFFICER, DISTRICT TREASURY OFFICE, CHITTOOR, CHITTOOR DISTRICT. RESPONDENT NO. 5 AND 6 IMPLEADED AS PER COURT ORDER DATED 17-11-2022 VIDE I.A.NO.1 OF 2022 IN WP NO.10475 OF 2020

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...RESPONDENT(S):

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased toto issue a Writ Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in not Regularizing her services in the post of the Office Sub - Ordinates and not paying the salary to the Petitioner as per the G.O.Ms. No. 142 FINANCE (HR.I-Plg. and Policy) DEPARTMENT DT 27.08.2018 by continuing her services inspite of the Petitioner is fulfilling all the conditions as per the G.O.Ms. No. 142 FINANCE (HR.I-Plg. and Policy) DEPARTMENT DT 27.08.2018 is illegal, arbitrary and violative of Art. 14 and 16 of Constitution of India and consequently direct the Respondents to Regularize and to continue her services by paying the salary as per the G.O.Ms. No. 142 FINANCE (HR.IPlg. and Policy) DEPARTMENT DT 27.08.2018

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IA NO: 1 OF 2020

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondents to continue the services of the Petitioner by paying the Minimum pay in RPS (Revised pay Scale) as per the Orders of the Hon’ble Supreme Court, as per the G.O.Ms. No. 142 FINANCE (HR.I-Plg. & Policy) DEPARTMENT DT : 27.08.2018, pending disposal of the writ petition

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IA NO: 1 OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased pleased to implead the respondents No.5 and 6 to the aforesaid petition and to pass

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Counsel for the Petitioner:

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1.J M NAIDU

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Counsel for the Respondent(S):

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1.ADDL ADVOCATE GENERAL II

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2.GP FOR SERVICES I (AP)

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3.GP FOR MINES AND GEOLOGY

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4.GP FOR SERVICES III (AP)

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The Court made the following:

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THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

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WRIT PETITION NO:10475 OF 2020

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ORDER:

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The present writ petition is filed under Article 226 of the Constitution of India seeking following relief:

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“to issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondents in not Regularizing her services in the post of the Office Sub Ordinates and not paying the salary to the Petitioner as per the G.O.Ms.No.142 FINANCE (HR.I-Plg. and Policy) DEPARTMENT, DT.27.08.2018 by continuing her services inspite of the Petitioner is fulfilling all the conditions as per the G.O.Ms.No.142 FINANCE (HR.I-Plg. and Policy), DEPARTMENT DT.27.08.2018 is illegal, arbitrary and violative of Art 14 and 16 of Constitution of India and consequently direct the Respondents to Regularize and to continue her services by paying the salary as per the G.O.Ms.No.142, FINANCE (HR.I-Plg and Policy) DEPARTMENT DT.27.08.2018 and pass such other order or orders….”

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Heard learned counsel for the petitioner and learned Government Pleader for the respondents.

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Learned counsel for the petitioner submits that the petitioner has been working as a Part-Time Sweeper in the office of respondent No.3 since 1981. While so, in the year 2013, respondent No.3 addressed a letter dated 15.03.2013 to respondent No.2 seeking consideration of the candidature of the petitioner for appointment to a subordinate post, as the petitioner had

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been working as a Part-Time Sweeper in the office of respondent No.3 and as a regular vacancy had arisen in the said office. Even though the respondent No.3 addressed a letter to the respondent No.2 on 15.03.2013, so far, the respondent No.2 neither considered the claim of the petitioner and appointed the petitioner at the subordinate post nor rejected the recommendation of the respondent No.3. Hence, the writ petition.

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Learned counsel for the petitioner further submits that the petitioner herein also prayed for regularization of her services in view of G.O.Ms.No.142, dated 27.08.2018 since the petitioner has been continued her services for more than 10 years.

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On the other hand, learned Government Pleader for the respondents furnished written instructions dated 14.07.2023, wherein, it is stated that the petitioner was appointed as un-skilled sweeper on out sourcing basis in the office of the Divisional Mines and Geology Officer, Palamaner under District Mineral Foundation Trust, Chittoor.

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Learned Government Pleader also filed counter affidavit on behalf of respondent No.3, wherein, it is stated as follows:

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“ 18. It is respectfully submitted that as per the Cadre Strength, no post of sweeper is sanctioned to the office of the Asst. Director of Mines and Geology, Chittoor, hence the office of the Asst. Director of Mines and Geology, Chittoor engaging the Petitioner, Smt B. Mohanamma @ Mohana as a sweeper under part time Contingent with effect from 01.07.199l as irregular appointment and paying charges to the petitioner under wages.

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Hence the bill was not en-cashed. Keeping in view that the charges has to be paid in favour of the petitioner for the working period, the Asst. Director of Mines and Geology, Chittoor has requested the Director of Mines and Geology to release the funds for payment of charges to the Sweeper for the working period of Sepetember-2018 to June-2021. On the request made by the Assistant Director of Mines and Geology, Chittoor, the Director of Mines and Geology released the budget and cleared the payments up to March - 2022.

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19. It is respectfully submitted that the Regularization of Services to the Petitioner, Smt B. Mohanamma is not considerable due to the following grounds :-

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i. Since no Post of the Sweeper was sanctioned by the Government to the Office of the Asst. Director of Mines and Geology, Chittoor.

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ii. Since the Petitioner is working under Part time Contingent with effect from 01.07.1991 and also not having 5 Years of Minimum service as on 25.11.1993 i.e., the date on which the Act 2 of 1994 came into force, as stipulated by the Government vide G.O (p) No.112, Finance & Planning (FW.PC.III) Department, Dt; 23.07.1997. Hence the petitioner is not eligible for Regularization of Services.

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iii. The petitioner is also not having sufficient Qualification i.e., 7th class which is pre-requisite for appointment under category of Class - IV employee/ subordinate post.

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iv. The Petitioner Smt B.Mohanamma @ B.Mohana has not completed 5 Years of Service as on cutoff date i.e., 25.11.1993 as per G.O Ms No.212, Fin. (PCIIIO Dept, Dt: 22.04.1994 & G.O Ms No.112, Fin (PCIII) Department, Dt: 23.07.1997.

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20. Further it is submitted that the Government of Andhra Pradesh vide G.O.Ms.No.142, Dated: 27.08.2018 has issued orders for Extension of Remuneration equivalent to the Minimum of the Time Scale in the Revised Pay scales of 2015 to the Full time/MR/Daily wages/Consolidated Pay/Part-Time employees who were appointed before the Cut-off date i.e., 25.11.1993. But in this case the Minimum wages equivalent to the Minimum of the Time scale in the Revised Pay scales towards the Petitioner, Smt B.Mohanamma is not considerable due to the following Grounds :-

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i. The Asst. Director of Mines and Geology, Chittoor has not issued any appointment letter to the Petitioner, Smt B.Mohanamma @ B.Mohana to till date and also the Petitioner was drawing the wages in daily contingent wages Head of Account (020/021) up to 2018. ii. The Petitioner has not drawn the Minimum Pay + DA in RPS,2010 in the state, to extend the Minimum Pay + DA in the Revised Pay scales, 2015 which does not satisfies G.O Ms No.142 Finance (HR.I - Plg & Policy), Dt: 27.08.2018. iii. The Finance department has not allotted the Budget to the Head of Account 020/021 for Payment of wages to the Petitioner, as the Petitioner is not having any appointment letter.”

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Learned Government Pleader further submits that since the petitioner was continued in service as an out sourcing employee, she is not entitled for any regularization under G.O.Ms.No.142, dated 27.08.2018 for the reason the petitioner neither posted in any sanctioned vacant post nor appointed after having due procedure. In the absence of any sanctioned vacant post and if not appointed by following due procedure by way of selection process, she is not entitled for regularization as claimed. However in view of the recommendation

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by the respondent No.3 to the respondent No.2 for appointment of petitioner in the said vacant post, the same shall be considered by respondent No.2 and pass appropriate orders.

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Having regard to the submissions made by the learned counsel for both the parties and on perusal of the material placed on record, the fact remains that the petitioner is not entitled for regularization as claimed in the writ petition. But in view of the sweeper post required is still available with the office of the respondent No.3, the case of the petitioner can be considered with reference to the recommendation made by respondent No.3 vide letter dated 15.03.2013. It is the finding of the constitution and bench of Hon’ble

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Apex Court in State of Karnataka V. Uma Devi that once a person is engaged continuously more than 10 years it can be presumed that there is clear post of vacancy, but other two requirements are there is no evidence to show that the petitioner has underwent for any selection process and she is duly qualified. But as far as the grounds the petitioner is holding and requesting unskilled post (sweeper), which does not requires any qualification nor due procedure for such post. Hence, her candidature looking into long service is entitled for consideration.

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Therefore, in view of the reasons stated above and facts and circumstances of the case, this Court is inclined to dispose of the writ petition, directing the respondent authorities to consider the case of the petitioner with reference to the recommendation made by the respondent No.3 vide letter dated 15.03.2013 and observation as mentioned above and pass appropriate

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orders within a period of three (03) months from the date of receipt of a copy

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of this order.

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