APHC010448612021 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3329] THURSDAY, THE NINETEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA WRIT PETITION NO: 27210/2021 Between: 1. A RATHNAM, S/O. A. PAPAIAH, AGED 59 YEARS, PROH. AND EXCISE INSPECTOR / DISTILLERY OFFICER, SNJ DISTILLERY, SARVEPALLI VILLAGE, SPSR NELLORE DISTRICT, R/O FLAT NO.201, ROYAL RESIDENCE, BANK COLONY, HARANATHPURAM, 4TH LINE, NEAR AJEEJ ICE FACTORY, SPSR NELLORE. ...PETITIONER AND 1. THE STATE OF ANDHRA PRADESH, REP. BY PRINCIPAL SECRETARY, REVENUE (EXCISE) DEPARTMENT, SECRETARIAT BUILDING, VELAGAPUDI, AMARAVATI, GUNTUR DISTRICT. 2. THE COMMISSIONER OF PROHIBITION AND EXCISE, GOVERNMENT OF ANDHRA PRADESH, PRASADAMPADU, VIJAYAWADA, KRISHNA DISTRICT. 3. THE TRIBUNAL FOR DISCIPLINARY PROCEEDINGS TDP, FOR THE STATE OF ANDHRA PRADESH, REP. BY ITS SECRETARY, NAMPALLI, HYDERABAD. ...RESPONDENT(S): Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate writ, order or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondents in not concluding the disciplinary proceedings initiated vide TEC No.453 of 2013, 2 dated 29.11.2018 as illegal, arbitrary and in violation of Articles 14, 16 and 21 of the Constitution of India apart from violation of instructions issued in GO Ms.No.679, GA (Ser-C) Department, dated 01.11.2008 and consequently set aside the proceedings vide TEC No.453 of 2013, dated 29.11.2018 and pass such other orders. IA NO: 1 OF 2021 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the charge memo vide TEC No.453 of 2013, Dt.29.11.2018, pending disposal of the writ petition and pass such other orders. Counsel for the Petitioner: 1. MANOJ KUMAR BETHAPUDI Counsel for the Respondent(S): 1. GP FOR SERVICES I The Court made the following: 3 THE HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA WRIT PETITION NO: 27210 OF 2021 ORDER: The present Writ Petition came to be filed under Article 226 of the Constitution of India seeking the following relief:- “to issue a writ in the nature of Certiorari or any other appropriate writ order or direction by declaring the entire action of the 1st respondent in rejecting the genuine claim of the petitioner for counting of contingent service rendered by him for the purpose of pensionary benefits is as highly illegal, arbitrary, unjust, improper and contrary to Hon‟ble Apex Court judgment decided between B.Srinivasulu Vs. Nellore Municipal Corporation in Civil Appeal No.6318 of 2015 dated 17.08.2015 r/w judgment of this Court decided between Government of A.P., Vs. N.Venkaiah and others reported in 2018(4) ALD 590 DB and consequently to direct the respondents to extend the benefit of past service rendered by the petitioner prior to his regularization for the purpose of his pension and pensionary benefits by duly taking into consideration of judgment of Hon‟ble Apex Court decided between B.Srinivasulu Vs. Nellore Municipal Corporation in Civil Appeal No.6318 of 2015 dated 17.08.201 without reference to the present impugned order issued in Rc.No.Accts-III/Pensions/51810/2017 dated 19.07.2018 and to pass such other orders in the circumstances of the case”. The brief facts of the case are that: the petitioner was initially engaged as Daily wage employee vide proceedings in Rc.No.28/RSG/85 dated 01.09.1986 and subsequently, he was absorbed as Full time Contingent Employee w.e.f. 01.03.1987. Thereafter, the services of the petitioner were also regularized vide proceedings in Rc.No.25/95-RE Cell dated 25.11.1995 of the 2nd respondent, in terms of G.O.Ms.No.212 Finance and Planning Department dated 22.04.1994 and as on 25.11.1995 the petitioner was converted into Last Grade Services. On 31.08.2016 the petitioner retired from 4 service on attaining the age of superannuation 31.08.2016 vide proceedings of the 2nd respondent in Rc.No.Zone-I & II/1195/2016 dated 28.03.2016, in the cadre of Office Sub-ordinate. Thereafter, at the time of preparation and submission of Pension Proposals of the petitioner to the Head Office, the Principal I/c. A.P.S.W. Residential School for Girls, Konam, Viskhapatnam, has prepared and calculated the regular service of the petitioner from 25.11.1995 to 30.08.2016 (20 years, 9 months and 6 days only) by not calculating/considering his contingent service from 01.03.1987 to 24.11.1995 (8 years, 8 months, 23 days). On that the petitioner made a representation on 31.10.2017, requesting the respondents to take into consideration of his contingent service period from 01.03.1987 i.e., the day when he was employed as Full Time Contingent Worker to 3 24.11.1995( 8 years, 8 months and 23 days), while calculating pension as per the Revised Pension Rules, 1980. But, the said representation was rejected by the respondents vide memo Rc.No.Accts III/Pensions/51810/2017 dated 19.07.2018 by observing as follows: “no contingent posts were sanction in APSWR institutions and the Deputy Director(SW)/District Collector was the appointing authority at the time of his initial appointment. The Principal was not appointing authority. However, the services of the petitioner were regularized under G.O.Ms.No.212 w.e.f. 25.11.1995. Hence, the said period of working was not counted for his pensionary benefits” The respondents No.1 and 4 filed their counter stating that as per Rule 14 of the Andhra Pradesh Revised Pension Rules, 1980, Executive Instructions are as follows: 5 (i) Counting of Full Time Contingent service: (a)All full time contingent posts which were in existence for a period of 10 years or more and are required to be retrained on a permanent basis, should be converted into regular Government Posts in the Last Grace service w.e.f.01.02.1980 as per G.O.Ms.No.38, Fin and Planning (FW:PRC-IV) Department dated 01.02.1980; (b)All Full Time Contingent Posts which were in existence for a period of 5 years or more as on 01.04.1981, and which are required to be continued on permanent basis, have to be converted into regular Government posts in the Last Grade Service G.O.Ms.No.9, w.e.f. Fin & 01.04.1981 as per Planning(FW.PRC.VI) Department dated 08.01.1981; and further contended that the petitioner has worked as Contingent Watchman from 01.03.1987 to 24.11.1995, for a period of 8 years, 8 months and 26 days only but not 10 years. Therefore, his services cannot be treated as Full Time Contingent services. The petitioner services were regularized w.e.f. 25.11.1995 in terms of G.O.Ms.No.212, Finance and Planning (FW.PC.III) Department dated 22.04.1994 and thereafter, the petitioner was retired from the service on 31.08.2016 in the cadre of Office Sub-ordinate. The respondents further submitted that as per Rule 14 of the A.P. Revised Pension Rules, 1980, the Full Time Contingent service of the employees only will be considered, but, whereas the petitioner does not come such category and also further submitted that there are no contingent sanctioned posts in APSWRS institutions, in support of the impugned memo in Rc.No.Accts-III/Pensions/51810/2017 dated 19.07.2018. 6 Heard Sri S.Satyanarayana Rao, learned counsel for the petitioner and of Sri Nooka Jagannadham, learned Standing Counsel for Respondents Nos.1 to 4. During the course of arguments the counsel appearing for the petitioner relied upon the judgment in between The State of Andhra Pradesh, School Education Department, Velagapudi, Guntur District and another Vs. LMB Krishna wherein this Court held that: “past services of the applicant prior to his regularization has to be considered for the purpose of pensionary benefits” In the above judgment, this court also referred the judgment of this court in between Devarakonda Sri Lakshmi Vs. Government of Andhra Pradesh wherein it was observed that: ‘The law is well-settled that the mere form of the order is irrelevant but the surrounding facts and circumstances shall be taken into consideration to find out the true character of the order. Despite the use of a specific expression, the Court has to consider whether the employee had a right to such post. Particularly when the services rendered by a temporary employee are followed by regularization of his service, there is no reason to 1 . W.P.No.1425 of 2019 dated 15.10.2019 2 2010(2) ALD 165 6 exclude the period of temporary service for computing the qualifying service for the purpose of pensionary benefits. It is also relevant to notice that Rule 14 of the AP Revised Pension Rules, 1980, provides that the services of a Government Servant shall not qualify for pension unless his duties and pay are regulated by the Government or under conditions determined by the Government. Sub-Rule(2) of the Rule 14 and further made it clear that the expression “service” means that service under the Government and paid by the Government from the Consolidated Fund of the state. 7 In the light of Rule 14, the true test is whether the services of the employee were regulated by the Government and whether he was paid from the consolidated Fund of the state. Any period of service which satisfies the above test, in my considered opinion shall be treated as qualifying service for the purpose of Rule 13‟. Having regard to the contentions of both the counsel and on perusal of the material on record, admittedly, the petitioner was engaged as Daily wage employee vide proceedings of the 4th respondent in Rc.No.28/RSG/85 dated 01.09.1986 and subsequently he was absorbed as Full Time Contingent Worker w.e.f. 01.03.1987 and later converted into Last Grade Services on 25.11.1995. As per the Orders of this Court in W.P.No.14758 of 1991 dated 2.06.1994, the services of the petitioner were also regularized w.e.f. 25.11.1995, vide proceedings of the 2nd respondent dated 25.11.1995. On attaining the age of superannuation, the petitioner was retired from service 31.08.2016. Thereafter, at the time of preparation and submission of Pension Proposals of petitioner to the Head Office i.e., the Principal I/c.A.P.S.W.Residential School for Girls, Konam, Viskhapatnam, has prepared and calculated only the regular service of the petitioner i.e., from 25.11.1995 to 30.08.2016 (20 years, 9 months and 6 days only) by denying the contingent service from 01.03.1987 to 24.11.1995 (8 years, 8 months, 23 days), pursuant to which, the petitioner submitted a representation to the respondents, which was rejected by way of impugned memo. The main contention of the petitioner is that his case is squarely covered by the orders passed by the Division Bench in W.P.No.33936 of 2011 8 and batch, wherein this Court, directed the respondents therein/State to extend the benefit of judgment of Hon’ble Apex Court in between B.Srinivasulu Vs. Nellore Municipal Corporation in Civil Appeal No.6318 of 2015 dated 17.08.2015 and further directed the respondents to reckon their length of service from the date of completion of five years service on or before 25.11.1993 for the 8 purpose of their pension and pensionary benefits without monetary benefits and arrears of pay, which is not disputed by the learned Government Pleader. As the case in the present Writ Petition is similar and identical to that of W.P.No.33936 of 2011 and batch, this court is inclined to allow the Writ Petition by setting aside the orders passed by the 1st respondent, vide memo dated 19.07.2018 and further, the respondents are directed to consider the case of the petitioner by reckoning the past service prior to his regularization for the purpose of pensionary benefits within a period of Four(04) weeks from the date of receipt of the order, in the light of the observation made above. Accordingly, the Writ Petition is allowed. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, shall stand closed. ________________________________ VENKATESWARLU NIMMAGADDA, J 19.02.2026 RRM MRR 9 127 HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA WRIT PETITION NO: 27210 OF 2021 19.02.2026 RRM MRR