IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 1517 of 1999 Between: T.Ravi S/o. T.Vittalaiah R/o. Post: Cherial, Tq. Sangareddy, Medak District. ..... PETITIONER AND 1 The A.P. state Road Transport Corporation Rep. by its Managing Director Musheerabad, Hyderabad. 2 The Regional Manager A.P.S.R.T.C., Hyderabad City Region J.B.S. Picket, Secunderabad. 3 The Divisional Manager A.P.S.R.T.C., Sanathnagar Division Kukatpally, Hyderabad. 4 The Deputy Chief Traffic Manager (the then DVM) A.P.S.R.T.C., Sangareddy, Medak District. 5 The Depot Manager A.P.S.R.T.C., Bus Depot, Medak. 6 The Depot Manager A.P.S.R.T.C., BHEL Bus Depot Ramachandrapuram, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue appropriate writ or direction particularly one in the nature of Writ Of Mandamus declaring the action of the Respondents in not regularizing the petitioner's services from the date on which he completed 240 days of service i.e. with eﬀect from 1-10-92 as arbitrary, unjust and in violation of Articles, 14, 16 and 21 of the Constitution of India and consequently direct the Respondents to regularise his services from the date on which he completed 240 days of service along with its consequential beneﬁts ﬂowing out of such regularization in the interest of justice and fair play and pass Counsel for the Petitioner:MR.V.NARASIMHA GOUD Counsel for the Respondent No.: MR.K.MADHAVA REDDY The Court made the following Order: The grievance of the petitioner in this writ petition is with regards the date of his regularisation. While he would claim that he is entitled to be regularized on completion of 240 days of service i.e. with eﬀect from 01-10-1992, his services were regularized, vide proceedings dated 15-02- 1995, with eﬀect from 01-11-1994. The petitioner, in eﬀect, claims an anterior date of regularisation by a period of just above two years. Facts, in brief, are that the petitioner was appointed as a Conductor in the year 1991 and was directed to report at Zaheerabad depot vide proceedings dated 17-05-1991. He joined thereat on 29-05-1991 and his services were disengaged two months thereafter. He was again engaged, vide proceedings dated 24-10-1991, and was directed to join at Medak depot with eﬀect from 03-11-1991. Petitioner continued to work at Medak depot till he was transferred to Sangareddy in the month of February, 1994. From February, 1994 till 30-07-1994, he worked at Sangareddy and, thereafter, he was asked to work at BHEL depot from 01-08-1994. He started working thereat from 04-08-1994. While he was working at BHEL depot, his services were regularized, vide proceedings dated 15-02-1995, with effect from 01-11-1994. It is the petitioner’s case that he rendered continuous service from 03-11-1991 and consequently, in accordance with circular dated 22-10-1992, his services ought to have been regularized on his completing 240 days of service i.e. with effect from 01-10-1992. In the counter aﬃdavit ﬁled on behalf of the respondent-Corporation, these facts are not in dispute. It is, however, contended that regularisation of casual employees was done against the requirement of crew at 2.6 norm, as per the schedules as on the 31st July of each year, that in view of curtailment in Medak during slack season, the petitioner could not be continued or regularized and, on account of his expressing willingness for being transferred to Hyderabad, he was transferred to BHEL depot on daily wage basis with eﬀect from 04-08- 1994. Respondents would contend that the petitioner never made any representation claiming regularization of his services by including the service rendered by him in Medak depot and, as such, his claim for regularization from 01-10-1992 could not be accepted. In his reply aﬃdavit, the petitioner stated that his very appointment on daily wage basis was contrary to the regulations, that he completed 266 days of service by September, 1992 itself and, consequently, his services should have been regularized atleast from 01-10-1992 as was done in respect of other employees, that his transfer to Hyderabad was not at his request but for administrative reasons, that he had got issued legal notice dated 23-11- 1998 requesting the respondents to consider his case for regularization from the date he completed 240 days of service and, despite receipt of the notice, the respondents did not choose to give any reply thereto. According to the petitioner, the respondents were also guilty of latches in as much as they had ﬁled their counter-aﬃdavit in this writ petition seven years after the writ petition was admitted. Petitioner would contend that, while his co- employee Sri V.N.Nagaraju, Employment No.29329, was regularized with eﬀect from the date on which he completed 240 days of service, and though he was below the petitioner in the order of regularization dated 15-02- 1995, the petitioner’s services were not regularized in accordance with the circular dated 22-10-1992 whereunder conductors who worked on daily wage basis were entitled for regularisation on completion of 240 days of service. Petitioner would also contend that one Sri S.Kishan, driver, (Employment No.290698), had ﬁled W.P.No.9684 of 1999 seeking a similar relief and that the respondents, in their counter aﬃdavit ﬁled in the said writ petition, had admitted that the services of Sri S.Kishan were mistakenly regularized with effect from 19-04-1994 instead of 01-07-1992. Petitioner would contend that the Corporation was adopting a pick and choose method in regularizing the services of its employees which was illegal, discriminatory and in violation of Articles 14 and 16 of the Constitution of India. An additional counter aﬃdavit is ﬁled on behalf of the respondents on 12-08-2008, wherein it is stated that the conductors initially appointed on daily wage basis were considered for regularization on completion of 240 days but the said procedure required recruitment of conductors to be calculated at the rate of 2.6 per schedule as on 31st July every year, which included the leave reserve, that regular appointments with probationary rights should be made against 90% of the slack season requirements, i.e. schedules for the month of August, and remaining 10% appointments were to be made on temporary basis under Regulation 17 of APSRTC Employees (Recruitment) Regulations, 1966, that as per the said procedure i.e. for the peak season, over and above the slack season requirement, conductors were to be selected and kept in a panel and were to be engaged on daily wage basis to ensure operations without cancellation during the absence of conductors and, when the regular staff from the 2.6 norm reported for duty, casual conductors had to be discontinued from duty. Respondents would submit that in the wage agreement entered into on 25-05-1995, (a settlement under Section 12(3) of the Industrial Disputes Act, 1947 (for short ‘the Act’)), the matter of regularization of casual workers was also settled and, under clause 4 thereof, it was speciﬁed that the casual drivers, conductors and cleaners, who were engaged during the years 1991-1994 and had completed 240 days in the speciﬁed time frame, were entitled for regularization as a one time measure. In the table given thereunder, the total number of conductors shown to have been recruited prior to 31-12-1991 was given as 811 for whom the agreed date of regularization was shown as 31- 07-1995. The said settlement also made it clear that it did not preclude regularization of the casual labour if they fell within the norm. Respondents would submit that, in accordance with the said settlement dated 25-05-1995, instructions were issued in circular dated 03-07-1995 to regularize casual conductors as per the agreed date of regularisation indicated in the settlement, that since the petitioner was appointed prior to 31-12-1991, he should only have been regularized with eﬀect from 31-07-1995, but, however, in view of the availability of sanctioned posts in the Hyderabad, the petitioner was regularly appointed and placed in the regular time scale with eﬀect from 01-11-1994. According to the respondents, the petitioner had no legal right to claim regularization from the date of his initial appointment, that as per the APSRTC Employees (Recruitment) Regulations, 1966, regular appointment was to be made only to the sanctioned vacancy but the petitioner had no right to claim regularization from the date of his initial appointment when there was no sanctioned vacancy. They relied on the judgment of the Supreme Court in State of Karnataka v. Uma Devi[1], to contend that the persons appointed on daily wage basis had no legal right to claim regularization from the date of initial appointment and that regularisation had to be made only from the date on which sanctioned vacancy arises. Respondents would contend that, in view of the law laid down by the Supreme Court, the petitioner had no legal right to claim regularization from the date of initial appointment on daily wage basis, and though the date of regularization of Sri V.Nagaraju was modiﬁed from 01-11-1995 to 30-05-1991 pursuant to the orders of this Court in W.P.No.1201 of 1991 dated 28- 01-1999, he was not given seniority, based on the revised date of regularization, since the seniority of the persons recruited in the same batch was determined in accordance with the communal roaster prepared at the time of selection. Sri V.Narasimha Goud, learned counsel for the petitioner, would vehemently contend that the petitioner is not seeking regularization of his services from the date of his initial appointment but is only seeking regularization of his services in accordance with the scheme formulated by the respondent-Corporation itself in its circular dated 22-10-1992, wherein employees who completed 240 days of service were entitled for regularization. Learned counsel would refer to several cases, including that of Sri V.Nagaraju and others, to contend that the petitioner was discriminated against in the matter of regularization while his juniors were regularized from the date on which they completed 240 days of service. He would further contend that there was no delay on his part in invoking the jurisdiction of this Court since he was able to secure a copy of the order of regularization dated 15-02-1995, from others included in the said list, only in the year 1998 and that he had invoked this Court’s jurisdiction soon thereafter. Learned counsel would submit that the settlement entered into in the year 1995 applied to persons whose services were not regularized and, since the petitioner’s services had already been regularized even prior to the settlement entered into on 25-05-1995 under Section 12(3) of the Act, the said settlement had no application to his case. Learned counsel would contend that the table given in the said settlement containing the total number of conductors did not include the petitioner’s name which was itself proof that the said settlement did not apply to persons such as the petitioner herein. Learned counsel would submit that the Supreme Court had taken a diﬀerent view from that of its earlier judgment in Uma Devi1 and had held that employee who had put in long years of service were entitled for regularization. Learned counsel would refer to U.P.State Electricity Board v. Pooran Chandra Pandey2 and General Manager, ONGC, Shilchar v. ONGC Contractual Workers Union3 in this regard. Sri K.Madhav Reddy, learned standing counsel for the respondent-Corporation, on instructions, would fairly submit that the petitioner’s name is not included in the list of conductors referred to in the Section 12(3) settlement dated 25-05-1995. He would, however, submit that no employee can claim regularization as a matter of right, that mere completion of 240 days of service did not confer any right of regularization on the employee and, while completion of 240 days may confer protection to an employee under Section 25-F of the Industrial Disputes Act, it did not, by itself, entitle him to claim regularization with eﬀect from that date. Learned standing counsel would point out that, even under the circular dated 22-10- 1992, while the Corporation had, indeed, stated that an employee was entitled for regularization on completion of 240 days of service, the said circular stipulated various other conditions, which necessitated fulﬁllment as a pre- condition for regularization on completion of 240 days of service. Learned standing counsel, while fairly admitting that the respondent-Corporation in its counter aﬃdavit ﬁled in W.P.No.9648 of 1999 had stated that the petitioner therein, Sri S.Kishan, was entitled for regularization on completion of 240 days and that by mistake his services were regularized thereafter, would submit that the fact remained that merely because an employee was regularized contrary to the scheme of regularization enunciated in circular dated 22-10-1992, it did not confer any beneﬁt on the petitioner to claim a similar relief and that the jurisdiction of this Court under Article 226 of the Constitution of India could not be invoked to perpetuate an illegality. Learned standing counsel would also refer to the oﬃce order dated 15-02-1995 to contend that, while the petitioner’s name is shown at Sl.No.4 therein, it did not necessarily mean that the person shown at Sl.No.5 was junior to him and, in fact, it was evident that the inter-se arrangement among the ﬁve employees was not on the basis of seniority and was, possibly, on the basis of the alphabetical order. It is no doubt true that completion of 240 days of continuous service confers protection under Section 25-F and other provisions of the Industrial Disputes Act. It does not, by itself, confer any right on an employee to claim regularisation. (Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra[2]). It is also true, as held by the Supreme Court in Uma Devi1, that an employee on daily wages is not entitled to claim regularization. The question, however, is whether an employee is entitled to claim regularization where a scheme of regularization is in existence. The circular dated 22-10- 1992 is one such scheme and, thereunder, an employee who has completed 240 days of service, is entitled to claim regularization, provided, of course, he satisﬁes the other requirements therein. Reliance placed by the respondent- Corporation on the subsequent settlement dated 25-05- 1995 and the circular issued pursuant thereto is of no avail, since, admittedly, the petitioner is neither among the conductors whose services were sought to be regularized thereunder nor was his services regularized under the said settlement. It is wholly unnecessary for this Court to go into the question as to whether the law declared in Uma Devi1 would still bind this Court in view of the subsequent judgments in Pooran Chandra Pandey2 or General Manager, ONGC, Shilchar 3 for it is not in dispute that where a scheme of regularization is in existence, an employee is entitled as of right to claim regularization in terms thereof. Admittedly, the petitioner has not been given the beneﬁt of regularization, in accordance with the said circular dated 22-10-1992, on his having completed 240 days of service. While his contention of discrimination, based on the averment made by the Corporation in the counter aﬃdavit ﬁled by them in W.P.No.9648 of 1999, or on the basis of the oﬃce order dated 15-02-1995, may not justify a similar order being passed since no mandamus can be sought from this Court to perpetuate an illegality (Chandigarh Administration v. Jagjit Singh4), the petitioner is, nonetheless, entitled to have his services regularized in terms of the scheme enunciated in circular dated 22-10-1992. It is not clear from the counter aﬃdavit as to whether the petitioner’s case was examined in terms of the said circular, which was in force when he completed 240 days of service. As rightly pointed out by Sri K.Madhav Reddy, learned standing counsel for the respondent- Corporation, under the said circular mere completion of 240 days of continuous service by itself does not entitle the petitioner to claim regularization, for he is required thereunder to satisfy several other conditions. It is, therefore, appropriate that the respondents be directed to consider the case of the petitioner for regularization of his services, strictly, in accordance with the circular dated 22-10-1992 and, consequent upon such examination, if it is found that he is entitled for regularization from a date anterior to the date on which he was actually regularized, then to give him all the beneﬁts which he is entitled as a consequence thereof. Since the writ petition has been pending for nearly a decade it is, but, appropriate that the respondent-Corporation takes a decision, bearing in mind the observations mentioned hereinabove, with regards regularization of the services of the petitioner in terms of the circular dated 22-10-1992, within a period of four months from the date of receipt of a copy of this order. The Writ Petition is, accordingly, disposed of. However, in the circumstances, without costs. RAMESH RANGANATHAN,J Dt:10-09-2008 usd To 1 The A.P. state Road Transport Corporation Rep. by its Managing Director Musheerabad, Hyderabad. 2 The Regional Manager A.P.S.R.T.C., Hyderabad City Region J.B.S. Picket, Secunderabad. 3 The Divisional Manager A.P.S.R.T.C., Sanathnagar Division Kukatpally, Hyderabad. 4 The Deputy Chief Traffic Manager (the then DVM) A.P.S.R.T.C., Sangareddy, Medak District. 5 The Depot Manager A.P.S.R.T.C., Bus Depot, Medak. 6 The Depot Manager A.P.S.R.T.C., BHEL Bus Depot Ramachandrapuram, Hyderabad. 7 Two CD copies [1] 2006(4) SCC 1 2 2007(1) DECISIONS T ODAY 872 3 2008 LABOUR LAW REPORT 801 [2] AIR 1994 SC 1638 4 AIR 1995 SC 705