Shaik Chand Basha, v. a.P.S.R.T.C., Rep.by its Vice-Chairman And Managing

Telangana HC7 Dec 2011WP/29243/2011

Case brief

AI extract

What is this about?

Petitioner, a Man Mazdoor with over 24 years of service, was rejected for regularization as his appointment was not via a Departmental Selection Committee. Court held that under the 2009 Circular, reinstated employees qualify for regularization if they completed 240 working days, which petitioner satisfied. Rejection letter set aside.

What did the court decide?

The letter dated 21.09.2011 rejecting the petitioner's claim is set aside; the Corporation is directed to consider the case under the circular dated 04.07.2009 within two months, subject to the circul

Shaik Chand Basha, Vs a.P.S.R.T.C., Rep.by its… — Service and Employment | Telangana HC (2011)

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THE HONOURABLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.29243 OF 2011

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Dated:07.12.2011

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Between:

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Shaik Chand Basha .. Petitioner

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And

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A.P.S.R.T.C. represented by its Vice Chairman and Managing Director, Musheerabad, Hyderabad and others .. Respondents

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THE HONOURABLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.29243 OF 2011

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ORDER:

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This writ petition is filed seeking a writ of mandamus declaring the action of the respondents in not regularizing the petitioner’s service as arbitrary and violative of Articles 14 and 21 of the Constitution of India and consequently to direct the respondents to regularize his services with attendant benefits from the date of his employment.

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The brief facts of the case are that the petitioner joined as Man Mazdoor in the respondents – Corporation on 01.08.1987. He alleges that though the duties discharged by him are equal to the duties of a regular Man Mazdoor or Class – IV employee, he was paid only Rs.300/- per month and he is entitled to be paid on par with regular Man Mazdoor or Class – IV employee. When he questioned the same, the Corporation dodged the matter and finally terminated him from service on 01.04.1989 without any notice and no enquiry was conducted in this regard. Aggrieved by the same, the petitioner filed I.D.No.392 of 1994 on the file of the Labour Court, Guntur. The Labour Court on 31.08.2000 set aside the termination order and directed the Corporation to reinstate the petitioner into service with continuity of service, but without back wages. Challenging the said award, the Corporation filed W.P.No.18720 of 2001 before this Court,

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which was dismissed on 08.02.2006. As no appeal was preferred against the award of the Labour Court, it became final and is binding on the respondents. Even though the petitioner was not reinstated into service, he was constrained to file E.P.No.5 of 2008 before the Labour Court, Guntur for implementation of the said award. Pending the said E.P., the Corporation passed orders for reinstatement of the petitioner into service and the petitioner took charge at Podili Depot on 08.06.2011, but was directed by the Corporation to work at Deputy Executive Engineer’s Office, Ongole.

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In the meanwhile, the Corporation on 04.07.2009 issued a circular alleging that the casual employees, who were removed and reinstated into service either as per the award of the Labour Court or as per the orders of this Court, are entitled for regularization of services, provided they have to put in 240 working days. In pursuance of the said circular, the petitioner submitted a representation dated 04.08.2011 seeking regularization of his services, but the Corporation vide letter dated 21.09.2011 rejected his claim stating that as his appointment is not through Departmental Selection Committee, his regularization could not be considered. The grievance of the petitioner is that though he has put in more than 24 years of service in the Corporation and is discharging his duties equal to the duties of a regular Man Mazdoor or Class – IV employee, he is neither regularized nor is paid nominal wages till now and is now paid only Rs.200/- per day. Hence, the petitioner filed the present writ petition seeking regularization of his services with all attendant benefits.

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The Corporation filed counter affidavit stating that the

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petitioner was engaged on 01.08.1987 as Man Mazdoor, which was temporary in nature and he was paid Rs.300/- per month from the petty supervision charges in the sanctioned estimates chargeable to the works. The Corporation alleges that whenever there will be civil engineering works, Man Mazdoors will be engaged and they will be disengaged after completion of the work. It further alleges that as the petitioner is not appointed through Departmental Selection Committee, his regularization cannot be considered. It further alleged that completion of 240 days of continuous service in a year may not be a ground for regularization.

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The petitioner filed reply to the counter filed by the Corporation denying the allegations made therein. He alleges that after completing more than 24 years of service, he is claiming regularization, but not merely on completion of 240 days of continuous service.

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Learned counsel for the petitioner submits that as per the circular of the Corporation dated 04.07.2009, permission was accorded to regularize the services of casual employees duly adjusting the shortfall of the number of employees for regularization and therefore the petitioner is entitled for regularization of his service.

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On the other hand, learned Standing Counsel for the Corporation submits that as the petitioner is not appointed through Departmental Selection Committee and as he is engaged as a Man Mazdoor, the question of regularization of his service does not arise. He further submits that the petitioner is seeking regularization in this writ petition which he did not seek before the

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Labour Court earlier and therefore it is not permissible under law.

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The petitioner submitted a representation dated 04.08.2011 to the Corporation for regularization of his service. But the Corporation rejected his request vide letter dated 21.09.2011 alleging that as the petitioner’s appointment was not through Departmental Selection Committee, his regularization could not be considered. The said letter reads as under.

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O/O. The Regional Manager, A.P.S.R.T.C., Ongole, Dt.21.09.2011. To Sri Sk.CHAND BASHA, PODILI.

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Sub:- Representation of Sri Sk.CHAND BASHA, for Regularization of Services – Regarding. Ref:- Your Representation No.nil, dt.04.08.2011.

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You have submitted Representation on 04.08.2011 for Regularization of your Services and consequential benefits. As directed by Senior Law Officer/HYD and Executive Engineer/Nellore it is to inform you that in view of Apex Court judgment and also prohibition of such Regularization by Government of A.P. through Act 2 of 1994 (Services and Regularization of Staff Pattern and Pay Structure Act, 1994), your representation for regularization cannot be considered as your appointment is not through departmental selection committee. Please acknowledge the receipt.

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Dy. Executive Engineer, A.P.S.R.T.C. Ongole.

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There is no dispute that the petitioner joined as Man Mazdoor in the Corporation and discharging his duties as regular Man Mazdoor or Class – IV employee i.e., assisting to his superior officers like Assistant Engineer/Junior Engineer and Deputy Engineer in the Corporation, but he is not paid equal to that of regular Man Mazdoor. There is also no dispute that the petitioner has put in more than 24 years of service in the Corporation as per

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the orders of the Labour Court. In this regard, the Corporation issued various office orders/circulars dated 20.12.1989, 11.09.1992, 06.10.2007 for regularization of casual/contract labour of Civil Engineering Department. The latest circular/office order is issued on 04.07.2009 to regularize the casual employees i.e., casual drivers and conductors. The same reads as under.

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Andhra Pradesh State Road Transport Corporation

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O/o. The Managing Director Bus Bhavan, Hyderabad No.OS4/255(36)/2007-PO-III Dated 04.07.2009.

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OFFICE ORDER

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Sub: ESTABLISHMENT: Regularization of Casual employees - Orders communicated – Reg.

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Ref: 1. G.O.Ms.No.285, TR&B (Tr.II) Department, dt.05.10.2007

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2. This Office Order No.OS4/255(25)/2006-PO-III, dt.06.10.2007

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3. Memorandum of Settlement reached with the APSRTC National Mazdoor Union (Recognized), dt.12.08.2008.

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4. G.O.Ms.No.145, TR&B (Tr.II) Department, dt.01.07.2009.

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Vide order reference 2^nd cited, permission of Competent authority was communicated to regularize the services of Casual Drivers and Conductors, who have been recruited prior to 1999 and continuing in service (i.e. a total of 3750 casual employees) w.e.f. 05.10.2007.

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The Government through G.O.Ms.No.145, dt.01.07.2009 under reference 4^th cited, has accorded permission to regularize the services of 1583 left over casual employees duly adjusting the shortfall of the No. of casual employees permitted for regularization vide G.O.Ms.No.285, dt.05.10.2007 reference 1^st cited, and the No. of casual employees actually regularized.

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In pursuance of the orders of the Government under reference 4^th cited, the Competent Authority has accorded permission to regularize the remaining casual employees subject to the following instructions.

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1. All the Casual Employees (Drivers, Conductors, Mechanics/Artisans and

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Shramiks) recruited up to 2001 and on rolls as on 01.07.2009 shall be regularized with effect from 01.07.2009.

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2. The Casual employees, who were removed and reinstated into service on W.P./I.D./Appeal shall also be regularized provided they have put in 240 working days.

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3. Regularization of Casual employees shall be undertaken in the respective Regions by verifying the cases of individuals without fail.

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4. Other instructions communicated vide reference 2^nd cited have to be strictly complied with.

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The Regional Manager shall regularize the Casual employees in their respective regions as per the above guidelines positively by 2 0 th July, 2009.

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The Executive Directors (Zones) shall monitor the process of regularization in the regions of their Zones and ensure that the above instructions are implanted scrupulously.

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The details of Casual employees regularized shall be sent to this Office by 3 1 st July, 2009 without fail in the prescribed proforma enclosed.

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From the above circular, it is evident that permission of the competent authority was accorded to regularize the services of casual employees, but subject to certain instructions. It is specifically mentioned in instruction No.2 of the above circular that the casual employees, who were removed and reinstated into service on W.P./I.D./Appeal, shall also be regularized, provided they have put in 240 working days. However, in the present case, the petitioner has put in more than 24 years of service as a Man Mazdoor and, hence, he is entitled for regularization as per the circular dated 04.07.2009.

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There is no allegation of abandonment of job by the petitioner, when he worked for the period from 01.08.1987 to 31.03.1989 i.e., before termination. The respondents have terminated his services on 01.04.1989 without any valid reason and without any notice to him, which is illegal and arbitrary. Even after his reinstatement on 08.06.2011, there is no allegation against the petitioner regarding his discharging of duties and he has put in more than 24 years of service. He also alleged that he was deprived of the benefit of regular pay scale and is only paid Rs.200/- per day. Admittedly, the petitioner is deemed to have been in service w.e.f. 01.04.1989 (date of termination) till 08.06.2011 (date of office order reinstating the petitioner into service). Therefore, all these years, the petitioner was deprived of the benefit of regular pay scale and is only paid Rs.200/- per day.

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In view of the same, this Court is of the view that the letter dated 21.09.2011 rejecting the claim of the petitioner has to be set aside.

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Accordingly, the letter dated 21.09.2011 is set aside and the Corporation is directed to consider the case of the petitioner as per the Circular dated 04.07.2009, wherein it is contemplated the scheme of regularization including the category to which the petitioner belongs, within a period of two months from the date of receipt of a copy of this order, provided the said circular is in force.

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The writ petition, with the above observations, is disposed of. There shall be no order as to costs.

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07.12.2011 KH

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(G.CHANDRAIAH, J)

Shaik Chand Basha, v. a.P.S.R.T.C., Rep.by its Vice-Chairman And Managing

Case brief

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Shaik Chand Basha, v. a.P.S.R.T.C., Rep.by its Vice-Chairman And Managing

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