1 THE HON’BLE DR.JUSTICE K. MANMADHA RAO WRIT PETITION (A.T) No.322 of 2021 ORDER: This Writ Petition is filed, seeking the following relief: “…..to issue a Writ, Order or direction to call for the records relating to the present impugned proceedings No. SE/NTRTGP/KDP/AB/ EC-3/71 ENC, dated 24.07.2015 of the 1st respondent (received by the petitioner during 3rd week of September, 2015) and set aside or quash the same by further declaring the same as highly illegal, arbitrary, unjust, improper and contrary to earlier orders of this Hon’ble Tribunal, dated 20.11.2013 in O.A.No.9634 of 2011 and b) consequently to hold that the petitioner herein entitled for counting of his earlier service i.e from 21.04.2003 to 22.12.2006 for the purpose of getting pension eligibility by the petitioner in the present cadre and c) further direct the respondent to forthwith issue necessary orders for counting of his earlier service rendered from 21.04.2003 to 22.12.2006, which was treated for continuity of his service G.O.Ms.No.22,I and CAD (Ser.B.III) Department, dated 26.02.2008 for the purpose of getting pension eligibility in the present cadre by duly taking into consideration of earlier orders of this Hon’ble Tribunal dated 20.11.2013 passed in O.A.No.9634 of 2011 as well as by duly taking into consideration of earlier orders issued in G.O.Ms.No.22,I and CAD (Ser.B.III) Department, dated 26.02.2008 and pass such other orders.” 2. Heard Mr. S. Satyanarayana Rao, learned counsel for the petitioner and learned Government Pleader, Services-III for the respondents. 2 3. The brief facts of the case are that the petitioner was initially appointed as Daily Wage attender on 01.07.1994 in the office of Executive Engineer, Modern Irrigation Division No.3, Mudukuru of Kadapa District. The respondents without any reasons, terminated the services of the petitioner twice, therefore the petitioner filed I.D.No.202 of 2003 before the Labour Court and passed an Award dated 14.06.2007 directing the respondents to reinstate the petitioner into service with attendant benefits and full back wages from 21.04.2003. Pursuant to the said order, the Government issued G.O.Rt.No.1868, dated 16.08.2007. Meanwhile the petitioner appointed as regular attender under physically disabled quota as per orders of District Collector, Kadapa dated 18.12.2006. The petitioner made a representation to the respondents for consideration of his earlier service rendered from 22.04.2003 to 22.12.2006 may be added in the cadre of present post of Office Subordinate. Inspite of several representations made by the petitioner, the respondents rejected the claim of the petitioner and passed impugned order dated 24.07.2015 is highly illegal and arbitrary. Hence inaction of the respondents is questioned in the writ petition. 4. Per contra, the respondents filed counter denying all material averments made in the writ affidavit and mainly 3 contended that the petitioner was appointed as Office Subordinate under Class-IV services vide proceedings of District Collector, Kadapa, dated 22.12.2006. After joining into service the petitioner filed O.A.No.3628 of 2016 for counting his contractual service period for the period from 22.02.2003 to 22.12.2006 and he was also paid wages for the contractual period service as daily wage basis. The petitioner has not covered in the para meters prescribed in the Act 2 of 1994 and as per G.Os from time to time, as he acted only supply of labour in the capacity of contractor for the periods from 22.02.2003 to 22.12.2006 since there is no employee and employer relation and he was not given any appointment orders for the contractual period and hence the question of regularization of the service of the petitioner does not arise. However the appointment of the petitioner is taking into consideration under disable quota for all purposes as per the Government rules in force. Therefore, requested to dismiss the writ petition. 5. During hearing learned counsel for the petitioner reiterated the contents urged in the writ petition and placed on record the G.O.Rt.No.122, Municipal Administration & Urban Development (G1) Department, dated 22.03.2021, wherein it is stated as follows: 4 “4. Government after careful examination the matter hereby regularize the services of Sri P.Kamalakar and 54 others, who are applicants in O.A.No.2716 of 2018 worked earlier as NMR’s in Greater Visakhapatnam Municipal Corporation with effect from 25.11.1993 onwards in the purpose of pension and pensionary benefits only as per the direction of Hon’ble Andhra Pradesh Administrative Tribunal, Hyderabad, dated 13.12.2018”. Further, learned counsel for the petitioner placed on record the order of this Court “The State of Andhra Pradesh, School Education Department, Velagapudi, Guntur District & Another Vs. L.B.M.Krishna”1 wherein learned Division Bench of this Court held as follows: “8. ……. 4). Learned counsel for the State contended that the post of Section Writer was not a pensionable post and it became a pensionable post only with effect from 1-10-1970 and, therefore, the entire period of service rendered by the respondent on this post prior to 1-10-1970 would have to be excluded. This was not the contention raised before the Tribunal nor has any rule to that effect been shown to us that the post of Section Writer was a non-pensionable post up to 1-10-1970. We, therefore, cannot accept this contention. 5). In view of the above, the appeal has no merits and is dismissed, but without any order as to costs”. 9. Similar view was taken by a Division Bench of the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in State of Andhra Pradesh V. M. Raja Rao, order dated 17.03.2016 in W.P.No.8201 of 2016 and also the Karnataka High Court in B.H.Mahadevappa V. Karnataka Power Transmission Corporation Ltd., 2 10. In view of the judgments of the Apex Court and other High Courts referred to above, we are of the view that the past service of the applicant, who is the respondent herein, prior to his 1 2020(2) ALT 381 = 2020(6) Andh LD 349 2 ILR 2006 Kar 3405 5 regulation, has to be considered for the purpose of pensionary benefits.” 6. However, in earlier circumstances, the learned Tribunal passed an order in O.A.No.9634 of 2011 with VMA No.519 of 2012, dated 20.11.2013, while allowing the O.A directing the respondents to count the earlier service rendered by the petitioner in the cadre of Attender to the respondent organization from 22.04.2003 to 22.12.2006 in terms of G.O.Ms.No.22, dated 26.02.2008 for the purpose of getting pension and other benefits. 7. In view of the above said circumstances and following the decisions cited supra, this Court is allowing the Writ Petition, while directing the respondents to count the earlier service of the petitioner rendered from 22.04.2003 to 22.12.2006 as per directions of the learned Tribunal passed earlier (cited supra) as well as by duly taking into consideration of earlier orders in G.O.Ms.No. 22,I and CAD (Ser.B.III) Department, dated 22.06.2008, within a period of eight (08) weeks from the date of receipt of a copy of this order. Further the impugned proceedings dated 24.07.2015 issued by the 1st respondent is declared as illegal, arbitrary and same is hereby set aside. 8. With the above direction, the Writ Petition is allowed. There shall be no order as to costs. 6 As a sequel, miscellaneous applications pending, if any, shall also stand closed. ___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 30.12.2022. KK 7 THE HON’BLE DR.JUSTICE K. MANMADHA RAO WRIT PETITION (A.T) No.322 of 2021 Date: .12.2022. KK