S. Iqbal Hussain, Vs The State of Andhra Pradesh

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THE HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

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WRIT PETITION No.23472 OF 2020

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ORDER:

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This writ petition is filed under Article 226 of the Constitution

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of India claiming the following relief:

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“To issue writ of mandamus declaring the action of the respondents in not regularizing the services of the petitioners as against the posts of work Inspectors and in not providing consequential promotions and other benefits as illegal arbitrary and violative of article 16 of the constitution and further direct the respondents to regularize the services of the petitioners w e f completion of ten years of service as per the law laid down by the Honble Supreme Court and provide consequential benefits such as promotion etc as per the procedure adopted by the respondents in identical cases”

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The brief facts of the case are that, Petitioner Nos.1, 2 & 3 were appointed by the respondent on 22.10.1990, 10.11.1990 & 05.04.1991 respectively, as Work Inspectors and posted at Telugu Ganga Project. The petitioners were paid every month salaries basing on Standard Schedule of Rates. Since, then, the petitioners have been working as Work Inspectors without any break in service and they have completed ten years of service. It is contended that

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as per the judgment of the Hon’ble Apex Court in Uma Devi vs. State of Karnataka¹ , the State Government and their

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instrumentalities shall regularize the services of such employees who have worked for ten years or more in duly sanctioned posts, subject to condition that they are continuing in service for all these years without there being only element and help of interim orders passed by the Courts or forums, as one time measure. The Petitioner Nos.1, 2 & 3 filed the present writ petition to regularize their services w.e.f 22.10.2000, 10.11.2000 and 05.04.2001 respectively and for other consequential benefits such as promotion etc.

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On behalf of the respondents, Respondent No.4 – Superintending Engineer TGP Circle, Nandyal, filed counter affidavit stating that, the State Government had issued G.O.Ms.No.212 dated 22.04.1994 formulating a scheme for regularization and absorption of daily wage/NMR or consolidate pay employees. As per the said scheme, the persons who had been working continuously for a period of five years and were continuing as on 25.11.1993 were entitled for regularization subject to fulfillment of certain conditions. All the petitioners herein did not

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1 (2006) 4 SCC 1

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fulfill the conditions of five years and as such not entitled for regularization under the said scheme. It is submitted that, one of the conditions to be fulfilled is that the NMRs should have completed five years of completed service as on 25.11.1993 before being considered for regularizations with the prior concurrence from the Government whereas, that none of the petitioners have fulfilled the eligibility criteria prescribed therein and that their services were engaged on temporary basis to meet the exigencies of works at that point of time and that they are merely occupying the positions meant for Direct Recruits/Promotees without getting recruited through the prescribed procedure or proper selection.

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It is further contended that, as per the judgment of the Hon’bel Supreme Court in Uma Devi’s case, the petitioners are not entitled for service regularization even though they have completed ten years of service as on the date of judgment because they have not been appointed in clear vacancy and were never issued every appointment orders.

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Further, it is contended that the petitioners are not satisfying the criteria laid down in G.O.Ms.No.212 dated 22.04.1994 and nonapplicability of the judgment of the Supreme Court in Uma Devi’s

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case, the plea of the petitioners for considering their claim for regularization of their services in the light of the above judgment do not arise and requested to dismiss the writ petition.

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During hearing, Sri C. Raghu, learned counsel for the petitioners contend that, the petitioners contend that the petitioners have been continuously working as Work Inspectors for more than ten years without any break in service. Their engagement was against the necessity and they were paid regularly as per the Standard Schedule of Rates. He submits that, as per the principle

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laid down in Uma Devi’s case, that employees who have completed ten years of continuous service are entitled to consideration for regularization as a one-time measure. He submits that, denial of regularization to the petitioners is arbitrary and violative of equality, especially when they have rendered long and uninterrupted service. They seek regularization from the dates on which they completed ten years of service along with consequential benefits.

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On the other hand, learned Government Pleader for Services-III submits that, the respondents contend that the petitioners do not satisfy the eligibility conditions under

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G.O.Ms.No.212 dated 22.04.1994, particularly the requirement of completing five years of service as on 25.11.1993. It is contended that the petitioners were engaged only on a temporary basis to meet exigencies of work and not through any prescribed recruitment process. The learned Government Pleader argued that the petitioners were not appointed against sanctioned posts and no appointment orders were issued. They further contend that the petitioners are occupying posts meant for regular direct recruited candidates and hence cannot claim regularization. Relying on Uma Devi’s case, he submits that, irregular appointments cannot be regularized and therefore the petitioners are not entitled to any relief.

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Heard Sri C. Raghu, learned counsel for the petitioners; learned Government Pleader for Services-III and perused the material available on record.

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It is not in dispute that the petitioners have rendered more than ten years of uninterrupted service. Further, their engagement in services was not irregular, but had been continued to the requirement of the respondents. The respondents have also not denied that the petitioners were paid salaries regularly and their

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services were utilized over a prolonged period. Therefore reliance placed by the respondents on G.O.Ms.No.212 is misplaced, as the said scheme cannot override the constitutional principles subsequently clarified by the Supreme Court. While the petitioners would not have satisfied the cut-off date under the scheme, that alone cannot defeat their claim when they have otherwise fulfilled the broader criteria recognized in law. With regard to the objection based on Uma Devi’s case, this Court notes that the said judgment does not impose a complete bar on regularization. On the contrary, it carves out an exception permitting regularization as a one-time measure for employees who have worked for more than ten years in duly sanctioned or necessary posts, provided their engagement is not tainted by illegality. In the present case, neither is any material to show that the petitioners’ appointments were illegal or fraudulent, nor the petitioners completed 10 years of service. At best, they can be termed as irregular. The distinction between “illegal” and “irregular” appointments is crucial, and only the former are excluded from consideration. Further, the respondents, having continued the petitioners in service for such a long duration, cannot now turn around and deny their regularization on the ground of procedural irregularities attributable to the employer itself. Such a

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stance would be arbitrary and violative of Articles 14 and 16 of the Constitution of India. Accordingly, this Court holds that the petitioners are entitled to be considered for regularization as a onetime measure envisaged in Uma Devi’s case.

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9. In Kodali Raju and Others v. APSRTC, Hyderabad and

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Others² , wherein it was held as follows:-

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“18. Here it is a case of casual appointment and may not be through selection process. It can at best be said to be an irregular appointment, but not an illegal appointment. The sweeping and cleaning of buses is a perennial work attached to the main activity of the Corporation. Since the petitioners have been treated as working continuously for more than 10 years, regularization of their services have to be considered in the light of the said judgment. During the years 2004 and 2010, more than 4000 posts were sanctioned by the Government for regularizing the services of temporary/ contract employees working in the Corporation. The judgment rendered in Umadevi’s case further was explained in State of Karnataka v. L. Kesari (supra), wherein it is stated that the true effect of the direction at paragraph 53 of judgment in Umadevi case is that all persons who have worked for more than 10 years as on 10.04.2006 without the protection of any interim

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2 2011 (1) ALD 234

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order of any Court or Tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The continuation of petitioners in the Corporation of petitioners in the Corporation for the last more than 21 years itself can be construed that there are vacant posts available and the petitioners are entitled for regularization of their services and to be put on regular timescale.

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10. In C. Mahender and Others v. Pottisreeramulu Telugu

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University, Hyderabad³ , wherein the Hon’ble Division Bench of High Court for the State of Telangana, held as follows:-

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“45. There is no dispute that petitioners have been working on daily wage since 1990 and have put in almost (30) years of service by now. They have been given minimum time-scale from the year 2000. They have been continuously working without any Court orders in their favour from 1990 till date.

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It is not known why the 1st respondent has not followed the decision in Umadevi’s case (supra), as explained in M.L.Kesari’s case (supra) and undertaken a one-time exercise of preparing the list of daily wage employees, who had worked for more than ten (10) years without the intervention of the Courts and Tribunals as on

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3 2020 (4) ALD 379 (TS) (DB)

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10.04.2006 and subject them to a process verification as to whether they are working against vacant posts and possess requisite qualifications for the posts, and if so, regularize their services.”

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11. From the above catena of judgments, if is clear that, where

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an individual has rendered long and continuous service in a sanctioned post, the fact that the initial appointment was irregular does not prevent consideration for regularization; however, it does

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not confer an automatic right to such regularization. Equally, obligation is cast upon the competent authority to undertake a one-time exercise to identify such long-serving employees and to consider their cases for regularization, subject to verification of requisite qualifications and the existence of sanctioned vacant posts.

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