Partly allowed

K. Devaiah, v. The A.P. Schedule Caste Coop. Finance Corporation

Telangana HC5 Oct 2012WP/10057/2005

Case brief

AI extract

What is this about?

The petitioner challenged orders cancelling his regularization as an Assistant Engineer. The court held the cancellation order violated natural justice due to lack of notice. It set aside both the cancellation and the subsequent regularization, directing the respondents to reconsider his case under existing or amended rules within three months.

What did the court decide?

The impugned cancellation order set aside. The earlier regularization order also set aside, but accrued benefits protected. Petitioner directed to be considered afresh for regularization within three

K. Devaiah, Vs The A.P. Schedule Caste Coop… — Service and Employment | Telangana HC (2012)

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HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR

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WRIT PETITION Nos. 10057 of 2005 and 9824 of 2008

Dt:- 05.10.2012.

Between:-

K.Devaiah

… Petitioner

and

The A.P.Schedule Caste Co-operative Finance Corporation and others

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… Respondents

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This Court made the following:-

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HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT PETITION Nos. 10057 of 2005 and 9824 of 2008

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COMMON ORDER: -

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Both the writ petitions are filed by the same petitioner and substantially seek relief of regularization of his service as Assistant Engineer with respondent No.2.

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2. Necessary facts to appreciate the relief sought for are as follows:

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a) The Scheduled Caste Co-Operative Society Limited so far as Khammam District is concerned issued an advertisement for filling up the posts of Assistant Engineer. Petitioner claims that he was selected but placed in the waiting list. He was, however, taken on duty from 1^st May, 1987 as Supervisor on daily wages. Thereafter from 01.02.1989 onwards petitioner was asked to discharge the duties of the post of Assistant Engineer but he was not being paid scale attached to the said post. Petitioner, therefore, filed Writ Petition No.1792 of 1995 seeking regularization of his services in the cadre of Assistant Engineer as well as seeking

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regular scale of pay attached to the said post. The said writ petition along with batch of other writ petitions were disposed of by order of this Court, dated 07.08.1995, with a direction that services of the employees shall be regularized with effect from the dates they completed five years of continuous service and they shall also be paid wages on par with the wages paid to the permanent employees of their category and the petitioner’s claim for regularization as Assistant Engineer was to be kept in mind while passing appropriate orders. By order of the District Collector and Chairman of the District Scheduled Castes Co-operative Societies, dated 25.02.1996, proceedings were issued informing the petitioner that the District Collector is not competent to consider case of the petitioner for regularization.

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b) Petitioner, therefore, filed Contempt Case No.204 of 1996 aggrieved by the aforesaid communication of the District Collector. By order, dated 26.06.1996, this Court noted that since the appeal is pending against the order in the main writ petition and since the process of regularization of the employees in terms of G.O.Ms.No.212, dated 22.04.1994, is in progress, as stated by the learned counsel for the respondent, the Court found that there is no deliberate disobedience and closed the contempt case. Petitioner, therefore, filed another W.P.No.22039 of 1996 for Mandamus declaring the inaction of the respondents in regularizing petitioner’s services as Assistant Engineer as illegal and arbitrary. The said writ petition was also allowed by order of this Court, dated 25.11.2004, by holding that “in the circumstances, there is absolutely no justification on the part of the respondents in denying the claim of the petitioner, especially when they are extracting the services of the petitioner as Assistant Engineer all along. The respondents were directed to pass appropriate

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orders within four weeks.” In response thereto, the Vice Chairman and Managing Director of respondent No.1Corporation therein passed further orders, dated 14.03.2005, informing the petitioner that as the petitioner is holding only post of Work Inspector, under the Service Rules there being no provision for promotion of Work Inspector to the Technical Staff of Social Welfare Engineering Wing, the society has already resolved and approved amendment of Rule III of the Technical Services Rules, whereby the method of appointment of category-IV, in respect of Assistant Engineer is also provided by transfer from Work Inspectors Grade II and III with ten years of service. It is stated that the proposed amended rule is yet to be approved by the general body and though the petitioner has completed ten years of service in the category of Work Inspector Grade-II by 05.02.2005, he becomes eligible for promotion to the post of Assistant Engineer as per the amended Rules subject to their approval. Petitioner was, therefore, informed that in appropriate time his case for promotion will be taken up.

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c) However, not satisfied with the said reply petitioner filed Contempt Case No.182 of 2005 alleging non-compliance with the orders of this Court in W.P.No.22039 of 1996, dated 25.11.2004, referred to above. The aforesaid order of the Vice Chairman and Managing Director, dated 14.03.2005, was placed before the Court and in view of that this Court closed the contempt case by order, dated 01.04.2005, giving liberty to the petitioner if so advised to question the correctness of the said proceedings of Vice Chairman and Managing Director, dated 14.03.2005, in an appropriate proceedings. Petitioner has thereafter filed the present Writ Petition No.10057 of 2005 questioning the said order inter alia claiming that earlier two orders of this Court in the writ

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petitions, referred to above, have attained finality and while other similarly placed employees, who were named in para 6 of the affidavit, are given benefit of post as well as the scale of Assistant Engineer, the same was denied to the petitioner.

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3. While the said writ petition is pending before this Court, the District Collector and Chairman of the District Scheduled Castes Cooperative Society, chose to implement the orders of this Court in W.P.No.22039 of 1996, by issuing proceedings, dated 03.06.2005, regularizing the petitioner’s services as Assistant Engineer with effect from 06.02.1995 and also granting him scale of pay with effect from that date subject to orders from the head office.

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a) While that order remained in force for about three years, the Vice Chairman and Managing Director of the Corporation under his order, dated 15.04.2008, cancelled the proceedings of the Collector by giving various reasons as to why petitioner’s case cannot be regularized including the reasons that neither there is a sanctioned post nor a substantive vacancy to regularize the petitioner in the said post of Assistant Engineer with effect from 06.02.1995 as proposed by the District Collector.

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b) Questioning the latter order passed by the Vice Chairman and Managing Director, petitioner filed W.P.No.9824 of 2008, which is heard along with W.P.No.10057 of 2005.

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4. The respondents have filed a counter affidavit in both the writ petitions inter alia stating that firstly there are no sanctioned posts and secondly there are no substantive vacancies in order to accommodate the petitioner. They have also pointed out that since the petitioner is working as Work Inspector there is no channel of promotion in the existing service rules to enable him to promote as Assistant Engineer.

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5. I have heard learned counsel for the petitioner and learned Standing Counsel for the respondents.

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6. After hearing both the learned counsel at length, it was represented on 08.02.2012, by the learned Standing Counsel that the amended service rules of the Corporation are awaiting approval by the Government and if the said Rules are approved petitioner would have a channel of promotion and his case will come within the zone of consideration as per the amended rules. He, therefore, requested adjournment to enable production of Government Orders with regard to amended rules. I had, therefore, adjourned the matter on more than one occasion. As the approval from the Government was not received for quiet some time and in spite of adjourning the matter for over six months from time to time, this Court was finally informed that the amended rules has been approved by the government and the process of publication is awaited. However, on subsequent dates also as there was no progress reported, I had finally reserved the matter for judgment.

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7. It would be noticed from the narration of facts as above, that as many as two orders of this Court viz.,W.P.No.1792 of 1995, dated 07.08.1995 and W.P.No.22039 of 1996, dated 25.11.2004, have directed consideration of the petitioner’s case for regularization. Both the said orders have attained finality and the defences, which are now raised by the respondents, were available to the respondents to be raised at the stage of hearing of both the said writ petitions. However, no such contention was advanced on behalf of the respondents nor they have appealed against any of the said orders. The said orders, therefore, have attained finality and are liable to be enforced.

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8. The scheme for regularization framed by the Government of Andhra Pradesh under G.O.Ms.No.212, dated 22.04.1994, was already upheld by the Supreme Court in A.Manjula Bhashini v. M.D., A.P.Women’s Co-operative Finance Corporation Ltd^[1] . The respondents, therefore, are bound to consider the case of the petitioner for regularization as directed by the orders in the writ petitions, referred to above.

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9. It is also to be noted that respondents have not disputed the

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specific contention of the petitioner that though he is substantially put in the post of Work Inspector for over ten years, he has been asked to work as Assistant Engineer incharge. The eligibility of the petitioner to work as Assistant Engineer including his selection at the initial recruitment for the said post is, therefore, not in controversy.

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10. As several years have already gone by and as the petitioner is deprived of fruits of the orders passed in his favour by this Court in the two writ petitions, referred to above, are required to be kept in mind by the respondents and they cannot ignore the directions of this Court by putting up one excuse after the other.

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11. As has been seen above, the Collector in his proceedings dated 03.06.2005, had issued orders regularizing the petitioner in the post of Assistant Engineer with effect from 06.02.1995. However, after three years, the Vice Chairman and Managing Director has cancelled that proceeding by order, dated 15.04.2008. There is no indication whatsoever that the said order of cancellation was preceded by any prior notice or opportunity of hearing to the petitioner. The said order of 15.04.2008 is, therefore, ex facie violative of principles of natural justice. The said orders of the Vice Chairman and Managing Director, which is challenged in W.P.No.9824 of 2008, is on the face of it, liable to be set aside as it is passed in violation of principles of natural justice. Though the petitioner has raised specific ground, in para 6 of the counter affidavit of Vice Chairman the same is replied in the following manner:

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“It is also requested to issue necessary instructions for recovery of the monitory benefit paid if any. Further, the contention of the petitioner for not issuing a notice before issuing cancellation orders is not true to the fact that this issue has been going on for hearing before the Hon’ble High Court through different Contempt Cases, W.P.M.Ps. and W.Ps filed by the petitioner. The petitioner has further mentioned in the affidavit stating that once regulariztiaon order is given, the superior authority has no power to cancel the same is not at all correct, since the Vice-Chairman and Managing Director,

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A.P.Scheduled Castes Co-Operative Finance Corporation Ltd., Hyderabad is the appointing as well as disciplinary authority to the cadre of Assistant Engineer. Therefore, by using the powers conferred under Service Rules for the Technical Staff of the Social Welfare Engineering Wing, the Vice-Chairman and Managing Director, A.P.Scheduled Castes Co-operative Finance Corporation Ltd., Hyderabad issued cancellation orders.”

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12. In the circumstances, therefore, the Writ Petition No.9824 of 2008 deserves to be allowed and the impugned order of the Vice Chairman and Managing Director, dated 15.04.2008, shall stand set aside.

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13. This would, however, not resolve the controversy in view of the factual position that the District Collector who had issued orders of regularization in favour of the petitioner under his proceedings, dated 03.06.2005, was not the competent authority for regularizing the petitioner to the post of Assistant Engineer. By virtue of setting aside the orders of Vice Chairman and Managing Director, dated 15.04.2008, in normal course, the order of the Collector, dated 03.06.2005, would revive. However, since the said order, dated 03.06.2005, itself is not issued by authority competent, appropriate directions are required to be given. Hence, this Writ Petition No.9824 of 2008 is allowed and disposed of with the following directions:

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1) The impugned order of Vice Chairman and Managing

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Director, dated 15.04.2008, shall stand set aside.

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2) The order of the District Collector, Khammam, dated 03.06.2005, shall also stand set aside. However, any benefits accrued to the petitioner including the post held by him and the pay already received by him in pursuance of said order, dated 03.06.2005, shall not be withdrawn or recovered and the post held by the petitioner as on today and the pay scales and salary attached to the post shall continue to be enjoyed by the petitioner till the direction given in the next paragraph is complied with.

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3) The respondents shall consider the case of the petitioner

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afresh either under the Service Rules, which are being amended, or in the light of the scheme for regularization under G.O.Ms.No.212, dated 22.04.1994, and in due compliance with the directions of this Court in the writ petitions, referred to above, in accordance with law within three months from the date of receipt of a copy of this order and pass appropriate orders and communicate the same to the petitioner.

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4) Since the petitioner was required to approach this Court over and over again in spite of succeeding in the very first writ petition, the respondent-Corporation shall pay costs quantified at Rs.10,000/- to the petitioner.

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14. Since W.P.No.9824 of 2008 is allowed, no separate orders are required to be passed in W.P.No.10057 of 2005.

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15. With the above directions, W.P.No.9824 of 2008 is allowed with costs. Consequently, W.P.No.10057 of 2005 shall stand dismissed as infructuous. All miscellaneous applications in either writ petitions, shall stand dismissed.

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____________________________ VILAS V. AFZULPURKAR, J

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HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR

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WRIT PETITION Nos. 10057 of 2005 and 9824 of 2008

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05--10--2012

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