Allowed

District Tribal Welfare Officer, v. R. Joge Naik

Telangana HC21 Jan 2014WP/22689/2007

Case brief

AI extract

What is this about?

The High Court allowed writ petitions challenging the cancellation of appointments of long-serving daily wage workers. Relying on Supreme Court precedent regarding non-fault employees, the Court held that after 15 years of service, these over-aged workers cannot suffer due to appointing authorities' errors and ordered regularization with full benefits from initial appointment dates.

What did the court decide?

Canceled appointment proceeding set aside; petitioners entitled to all benefits from date of initial appointment; W.P.s of petitioners allowed, State W.P.s dismissed.

District Tribal Welfare Officer, Vs R… — Pension and Retirement Benefits | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE R. SUBHASH REDDY AND THE HON’BLE SRI JUSTICE A. SHANKAR NARAYANA

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WRIT PETITION Nos.23519, 23521, 24234, 24235 & 24561 of 2005 AND 22689 & 22690 OF 2007

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COMMON ORDER: (Per Hon'ble Sri Justice R. Subhash Reddy)

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As common questions of law arise for consideration on similar set of facts, all these writ petitions are heard together and disposed of by this common order.

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Applicants in O.A.Nos.10664, 10668, 10670, 10701 and 10763 of 2002 filed W.P.Nos.24561, 24235, 24234, 23521 and 23519 of 2005 respectively, aggrieved by the order, dated 06.10.2005, passed by the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, “the Tribunal”), in the said O.As., whereas the respondents in O.A.Nos.5758 of 2004 and 1194 of 2005, which were disposed of basing on the interim order passed in W.P.No.24234 of 2005, have filed W.P.Nos.22690 and 22689 of 2007 respectively, aggrieved by the order, dated 18.06.2007, passed by the Tribunal, in the said O.As.

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For the purpose of disposal of these Writ Petitions, we refer to the facts that arise in W.P.No.24235 of 2005.

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The petitioner - applicant was working as a Cook on

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daily wage basis in irregular intervals in Tribal Welfare Hostels. On her application, the District Tribal Welfare Officer, Ongole, who is the Unit Head and appointing authority as per the A.P. Last Grade Service Rules, 1992, passed orders on 30.07.1998 appointing the petitioner - applicant as Class-IV employee i.e., Cook in the timescale of pay of Rs.1425 – 30 – 1625 – 40 – 1685 – 50 – 2075 – 60 – 2525 and posted her at Government S.T. Boys Hostel, Giddalur, in the existing vacancy. By proceedings, dated 06.08.2001, issued in Rc.No.A1/22/2000, by the District Tribal Welfare Officer, she was granted annual periodical increment along with others. Thereafter, her services were regularized along with other candidates vide proceedings, dated 29.09.2001, issued in Rc.No.A1/219/2001 by the District Tribal Welfare Officer, Ongole, and since then, she was placed on probation, and subsequently, her probation was declared by proceedings, dated 09.11.2001. While working as such, on the ground that the appointment, regularization and continuation of petitioner – applicant in service was not in accordance with the orders passed by the Government in G.O.Ms.No.212, Finance & Planning (FW.PC.II) Department, dated 22.04.1994, a Memo, dated 26.10.2002, was issued asking her to show cause as to why her services shall not be terminated. Though she submitted explanation, by proceedings, dated 31.10.2002,

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her appointment was cancelled, by referring to the order, dated 03.04.2002, passed by the Commissioner of Tribal Welfare, Andhra Pradesh, Hyderabad.

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Similarly, the appointment of other petitioners - applicants was also cancelled by proceedings, dated 31.10.2002, which was the subject matter of challenge before the Tribunal. The Tribunal, vide the impugned order, dated 06.10.2005, dismissed the O.As., confirming the order of cancellation. Aggrieved by the same, the petitioners – applicants filed Writ Petition Nos.24561, 24235, 24234, 23521 and 23519 of 2005.

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This Court, while admitting the aforesaid Writ Petitions, passed interim orders suspending the proceedings, dated 31.10.2002, basing on which, the petitioners - applicants are continuing in service. Thereafter, when two other matters i.e., O.A.Nos.5758 of 2004 and 1194 of 2005 came up for consideration before the Tribunal questioning the proceedings, dated 31.10.2002, basing on the interim order passed in W.P.No.24234 of 2005, the Tribunal has passed orders to continue the applicants therein in service. Aggrieved by such orders, State filed W.P.Nos.22689 and 22690 of 2007.

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Having heard the learned counsel for parties, we

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have perused the material available on record.

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In this case, it is submitted by the learned Senior Counsel

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Sri M. Surender Rao, appearing for the petitioners – applicants, that the petitioners – applicants had worked on casual basis for several years and in view of their service on casual basis, they were extended the benefit of appointment on regular basis as early as in the year 1998 and subsequently, their probation was also declared. It is further submitted that only basing on the orders passed by the Commissioner of Tribal Welfare, proceedings, dated 31.10.2002, was issued cancelling the appointments, which is arbitrary and illegal and in gross violation of the principles of natural justice. It is further submitted that in the absence of any misrepresentation on the part of petitioners - applicants, there is no reason to annul their appointment. It is further submitted that all the petitioners - applicants have rendered more than 15 years of service and if their appointments are cancelled at this stage, there is no scope of getting employment at any other place, as they are over-aged. In this regard, he placed reliance on a judgment of the Honourable Supreme Court in Dr. M.S.

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. Mudhol and another v. S.D.Halegkar and others^[1]

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On the other hand, it is submitted by the learned

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Government Pleader that for regularization of service, Government has formulated a specific scheme with certain conditions, vide G.O.Ms.No.212, dated 22.04.1994. It is further submitted that though such orders were in force, in contravention of the same, petitioners - applicants were appointed and, as such, orders were passed cancelling their appointments. It is further submitted that as the very appointment of the petitioners - applicants was illegal and contrary to the orders passed by the Government, they are not entitled to seek for continuance in service.

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From a perusal of the material available on record, it is clear that the petitioner - applicant in W.P.No.24235 of 2005 was working as daily wage worker in S.T. Boys Hostel and on her application, her case was considered by the Unit Head i.e., District Tribal Welfare Officer, Ongole, for appointment on regular basis as early as on 30.07.1998 and was posted to work at S.T. Boys Hostel, Giddalur. Similarly, some other workers were also appointed as Kamatis and Watchmen and they were working as such. After their appointment, separate orders were passed regularizing their services and further orders were also passed declaring their probation. From a perusal of the proceedings, dated 31.10.2002, issued by the District Tribal Welfare Officer, Ongole, it is clear that

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the orders of cancellation were passed pursuant to the directions issued by the Commissioner of Tribal Welfare, Andhra Pradesh. It is true that subsequent to the receipt of the orders passed by the Commissioner of Tribal Welfare, the District Tribal Welfare Officer has issued show-cause notices to the petitioners– applicants, but it appears, only in view of the orders passed by the Commissioner of Tribal Welfare, their appointments were cancelled. When the Commissioner of Tribal Welfare has passed orders directing the District Tribal Welfare Officer to cancel the appointments, no option is left with him except cancelling such appointments. When the petitioners - applicants were appointed in the year 1998 and their services were regularized, if for any reason their appointments are to be annulled, the Commissioner, Tribal Welfare, himself should have given an opportunity to them before passing any order of cancellation of appointments. Further, it is true that in G.O.Ms.No.212, a scheme is formulated for regularization and absorption of Daily Wage/N.M.R. workers, subject to certain conditions, but if there is any mistake on the part of appointing authority in the absence of any misrepresentation and fraud on the part of the employees, there is no reason for cancelling their appointments. It is not in dispute that pursuant to the appointment of petitioners – applicants in the year 1998, they have rendered more than 15 years of continuous

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service and as they are over-aged, they are not eligible for any other appointment in public service, at this stage. Further, in identical circumstances, the Honourable Supreme Court in the case of Dr. M.S. Mudhol (supra) held that when there is no fault on the part of the employee, who was not academically qualified and who continued in service for more than 12 years, such employee should not be suffered for no fault of him. The relevant paragraph in the aforesaid judgment reads as under:

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“Since we find that it was the default on the part of the 2^nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the 1^st respondent has continued to hold the said post for the last 12 years now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If, therefore, in spite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2^nd respondent had chosen to acquiesce in the appointment, it would be inequitous to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the 2^nd respondent. They are alone to be blamed for the same.”

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Having perused the aforesaid judgment, we are of the view that the said judgment squarely covers the case of the petitioners – applicants inasmuch as there is no misrepresentation on any aspect from their side and after putting-in about 15 years of service, they should not suffer on account of non-compliance of conditions for regularization. Further, in view of rendering 15 years of continuous service, the petitioners – applicants became over-aged, and hence, are not eligible to enter into any public employment at this stage. If there is any procedural irregularity of not obtaining clearance by the Unit Head, the same cannot be a reason to annul the appointment of petitioners - applicants, more so, when their services were regularized and probations were also declared.

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For the aforesaid reasons, we are of the view that it is a fit case to allow the Writ Petitions filed by the petitioners - applicants and to dismiss the Writ Petitions filed by the State.

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Accordingly, W.P.Nos.23519, 23521, 24234, 24235 & 24561 of 2005 are allowed, and W.P.Nos.22689 and 22690 of 2007 are dismissed. The proceedings, dated 31.10.2002, issued in Rc.No.A1/251/2002, by the District Tribal Welfare Officer, Ongole, Prakasam District, is set aside and the petitioners - applicants are entitled for all benefits from the date of their initial appointment.

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Miscellaneous Petitions, if any, pending in these Writ Petitions, shall stand closed. No costs.

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____________________________ JUSTICE R.SUBHASH REDDY

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JUSTICE A. SHANKAR NARAYANA

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21^st January, 2014 MD

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THE HON’BLE SRI JUSTICE R. SUBHASH REDDY AND THE HON’BLE SRI JUSTICE A. SHANKAR NARAYANA

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WRIT PETITION Nos.23519, 23521, 24234, 24235 & 24561 of 2005 AND 22689 & 22690 OF 2007

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(Per Hon'ble Sri Justice R. Subhash Reddy)

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21^st January, 2014

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[1] (1993) 3 Scale 6

District Tribal Welfare Officer, v. R. Joge Naik

Case brief

What is this about?

What did the court decide?

District Tribal Welfare Officer, v. R. Joge Naik

Case brief

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What did the court decide?

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