APHC010255002022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3459] MONDAY, THE TWENTY FIRST DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE SUMATHI JAGADAM WRIT PETITION TRANSFERED FROM APAT No.137/2022 Between: S.Rosaiah ...PETITIONER AND The Deputy Director and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. TAMMANA ANUP KUMAR Counsel for the Respondent(S): 1. GP FOR SERVICES I This Court made the following: 2 JS,J W.P.(AT) No.137 of 2022 ORDER: This Writ Petition is filed seeking to declare that the petitioner is entitled for regularization of his services in any post of Class-IV category under the control of the respondents in terms of law laid down by the Hon’ble Apex Court in State of Karnataka Vs. Uma Devi 1, and for payment of minimum time scale of pay in the regularized pay scales of 2015 without reference to the cutoff date i.e., 24.11.1993 mentioned in G.O.Ms.No.142, dated 27.08.2018, with all consequential benefits. 2. The 2nd respondent, through proceedings Rc.No.A1/Contingent/1/94, dated 01.01.1994, temporarily employed the petitioner as a part-time Masalchi, and he continued in that position until he reached the age of superannuation. When the 1st respondent terminated the petitioner's services vide Memo Rc.No.A5/3326/2015, dated 30.09.2015, the petitioner filed O.A.No.6684 of 2015 and was reinstated into service on 22.11.2016. 3. The Government has issued G.O.Ms.No.142, Finance (HR.I- Plg&Policy) Department, dated 27.08.2018, extending the remuneration equivalent to the minimum of the time scale in the revised pay scales of 2015 to full time/NMR/daily wages/consolidated pay/part time employees 1 (2006) 4 SCC 1 3 JS,J W.P.(AT) No.137 of 2022 who were appointed before the cutoff date i.e., 25.11.1993. The petitioner was short by 35 days. The petitioner has made representations on 12.09.2018, 15.09.2018 and 12.10.2018 to consider his case for minimum time scale as per G.O.Ms.No.142, dated 27.08.2018, without reference to the cut-off date. The learned counsel for the petitioner has relied on the law laid down by the Hon’ble Apex Court in Om Prakash Banerjee Vs. the State of West Bengal (Civil Appeal No.4210 of 2023, dated 19.05.2023) and State of Punjab Vs. Jagjit Singh2, and also the orders of this Court in W.P.No.27217 of 2017 dated 19.09.2017, wherein it was held that the petitioner was entitled to regularization as well as minimum of time scale of pay in the revised pay scales of 2015 without reference to G.O.Ms.No.212, dated 22.04.1994, and prayed to allow the Writ Petition. 4. Learned counsel for the petitioner submits that on 31.12.2018, the Tribunal has passed interim order directing the respondents to consider the case of the petitioner for payment of the minimum time scale of pay from 01.09.2018 onwards, and the petitioner is entitled for minimum time scale, in terms of the law laid down by the Hon’ble Apex Court in Jagjit Singh (2 supra), wherein it is held thus: “57. Having traversed the legal parameters with reference to the application of the principle of 'equal pay for equal work', in relation 2 (2016) 7 SCR 350 4 JS,J W.P.(AT) No.137 of 2022 to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of 'equal pay for equal work' summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporal)' employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporal)' employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporal)' employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporal)'employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the 5 JS,J W.P.(AT) No.137 of 2022 principle of 'equal pay for equal work' would be applicable to all the concerned temporal)' employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post.” Though the petitioner is entitled for minimum of pay attached to the post, the respondents have not considered the case of the petitioner under the principle “equal pay and equal work”, but regularized the services of other Masalchies vide G.O.Rt.No.3338, Finance (Admn.III) Department, dated 11.08.2008. 5. This Court, while allowing W.P.No.27217 of 2017, dated 19.09.2017, held that a contingent employee has not completed 5 years of service as of the cut-off date, but the Government has requested to regularize his case on humanitarian grounds. Keeping in view of his long-standing experience, the petitioner is also similarly placed person claiming his right based on Para 53 of the judgment in Umadevi (1 supra) as clarified by the Hon’ble Supreme Court in State of Karnataka Vs. M.L.Kesari3. 6. In Umadevi (1 supra), Para 53 of the judgment reads as under: “One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa (1967 (1) SCR 128), R.N.Nanjundappa (1972 (1) 3 (2010) 9 SCC 247 6 JS,J W.P.(AT) No.137 of 2022 SCC 409) and B.N.Nagarajan (1979 (4) SCC 507) and referred to in para 15 above of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the Courts or of Tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wages are being now employed. The process must be set in motion within six months from this date.” 7. In M.L. Kesari (3 supra), a two-Judge Bench of the Hon’ble Supreme Court explained the true purport of the directions contained in Para 53 of the judgment in Umadevi (1 supra) and the excerpt of the judgment is reproduced below: “7. At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad-hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularization 7 JS,J W.P.(AT) No.137 of 2022 process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the one- time exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily- wage/adhoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 of Umadevi, are so considered. 8. The object behind the said direction in para 53 of Umadevi is two- fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily- wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than 8 JS,J W.P.(AT) No.137 of 2022 ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure.” 8. The respondents filed a counter affidavit reiterating G.O.Ms.No.212, dated 22.04.1994, and argued that the petitioner was appointed on 01.01.1994 and is not entitled to a minimum time scale. Further, there is no provision for regularization of the service of a part-time Masalchi to Government service in any category of post under the control of the Government. 9. Heard learned counsel for the petitioner and the learned Government Pleader for Services-I appearing for the respondents, and perused the record. 10. The petitioner has passed Intermediate and was appointed on 01.01.1994 as a part-time Masalchi, receiving a payment of Rs.250/- per 9 JS,J W.P.(AT) No.137 of 2022 month, which was increased over time. The petitioner completed 24 years of service by the date of his superannuation. The Government vide G.O.Rt.No.3338, dated 11.08.2008, regularized the services of five Masalchies working in various Sub-Treasury Offices in Chittoor District, of these five individuals, two possessed SSC qualification and were absorbed as Shroff, while the remaining three, who had VII class qualification, were absorbed as Attenders. Therefore, the respondents' contention that there is no provision to regularize the services of Masalchi, cannot be accepted. Furthermore, since the petitioner was appointed on 01.01.1994, he is having 15 years of service as of the date of G.O.Rt.No.3338, dated 11.08.2008. 11. The petitioner has filed O.A.No.6684 of 2015 questioning the removal proceedings issued in Rc.No.A5/3326/2015, dated 30.09.2015. The Tribunal vide its order, dated 02.03.2016, has directed the respondents to take back the petitioner into service, and pursuant thereto, the petitioner was reinstated into service. Hence, all these establish that the respondents utilized the petitioner's services. Though the appointment proceeding dated 01.01.1994 shows that the petitioner was appointed to work as a temporary part-time Masalchi, he was continued for 24 years without any break in service. It was held in Umadevi (1 supra), that the 10 JS,J W.P.(AT) No.137 of 2022 employees entitled to be considered will not lose their right to be considered for regularization merely because the one-time exercise was completed without considering their cases or because the six-month period expired. The one-time exercise should be extended to all daily wage/adhoc employees who had completed 10 years of continuous service as of 10.04.2006. 12. The petitioner has completed more than 10 years of service as of 10.04.2006, and he is fully eligible and entitled for regularization as of 10.04.2006. Moreover, the respondents issued G.O.Rt.No.3338, dated 11.08.2008, by which time the petitioner was equally eligible as the other individuals whose services were regularized. 13. The Hon’ble Supreme Court in Om Prakash Banerjee (supra) held that the petitioners have put in about 22 years of service, and it will surely not be reasonable if their claim for regularization is denied even after such a long period of service. Hence, apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face. 11 JS,J W.P.(AT) No.137 of 2022 16. In Writ Petition No.27217 of 2017, dated 19.09.2017, decided by a Division Bench of this Court, it was held at Para No.16 as follows: “It is trite that the law declared by the Hon’ble Supreme Court is binding throughout the country under Article 141 of the Constitution of India. It is noteworthy that by the time the judgment in Uma Devi (1 supra) was rendered, the provisions of Act 2 of 1994 and G.O.Ms.No.212, dated 22.04.1994, were in existence. The Supreme Court, while denouncing the practice of regularization and absorption of persons, who entered service through backdoors by giving a go-bye to the due procedure prescribed for appointments to public posts, consciously ordered for one time absorption/ regularization of those, who were working for a period of not less than 10 years. It has given direction in this regard to all the State Governments and also Union of India. The Supreme Court is presumed to be conscious of various State enactments such as Act 2 of 1994 and executive orders such as G.O.Ms.No.212, dated 22.04.1994, while giving directions in Para No.53 of the judgment in Uma Devi (1 supra). But still, it has not made any exception in favour of the States where State enactments banning regularization/absorption exist. Therefore, Act 2 of 1994 and G.O.Ms.No.212, dated 22.04.1994, do not whittle down the width and the judgment in Manjula Bhashini (2 supra) does not lower the trajectory of the directions issued by the Supreme Court in Para 53 of its judgment in Uma Devi (1 supra). It is, therefore, not permissible for the respondents to take shelter under Act 2 of 1994 and G.O.Ms.No.212, dated 22.04.1994, to deny regularization to the petitioners, who have, admittedly, satisfied the criteria laid down in Para No.53 of the judgment in Uma Devi (1 supra)”. 12 JS,J W.P.(AT) No.137 of 2022 17. The petitioner was appointed vide proceedings dated 01.01.1994. The respondents, vide G.O.Rt. No.3338, dated 11.08.2008, regularized five individuals, who were working as Masalchies in the Sub-Treasury Office. The petitioner has completed more than 15 years of service as on 11.08.2008, on which date the Government issued G.O.Rt.No.3338. Therefore, the petitioner is fully entitled for regularization of his services in terms of Para 53 of the judgment of the Hon’ble Apex Court in Umadevi (1 supra). 18. In the light of the foregoing, the Writ Petition (AT) is allowed and the petitioner is entitled for regularization of his services in any Class-IV Category of post under the control of the respondents with effect from 10.04.2006, in terms of the decision of the Hon’ble Apex Court in Umadevi (1 supra). No order as to costs. As a sequel, interlocutory applications, if any, pending shall stand closed. ____________________ SUMATHI JAGADAM, J 21st April, 2025 cbs 13 JS,J W.P.(AT) No.137 of 2022 THE HON’BLE SMT. JUSTICE SUMATHI JAGADAM Writ Petition (AT) No.137 of 2022 21st April, 2025 cbs