THE HON’BLE SRI JUSTICE C.V. RAMULU W.P. No. 23330 of 1999 O R D E R: This writ petition is filed seeking a Mandamus declaring the action of respondent No.2 in not passing any orders on the letter dated 16.7.1998 submitted by 4th respondent to 2nd respondent as arbitrary and illegal; consequently, to direct the respondents to regularize the services of the petitioner as Watchman in 4th respondent-College. It appears, petitioner was appointed as Contingent Staff against a post of Watchman in 4th respondent-College, with effect from 30.11.1992. While that being so, on 2.5.1992 one P. Krishna Rao, working as a Watchman against an aided vacancy, expired. Therefore, 4th respondent sent proposals on 16.7.1998 to 2nd respondent for absorption and regularization of the services of the petitioner against the post of Watchman in 4th respondent-College, but, for the reasons best known to the respondents, till date no orders are passed on the letter dated 16.7.1998 of 4th respondent, by 2nd respondent. Hence this writ petition. A detailed counter affidavit has been filed by the respondents. The stand taken is that the petitioner is appointed as Watchman at 4th respondent-College during the ban period, which was in force with effect from 1.4.1984. After thorough scrutiny, the proposals sent to the Government for regularization of certain Fulltime Contingent employees of private aided junior college employees, who were appointed during ban period. Basing on the proposals of the Department, Government have regularized 25 fulltime contingent employees working in Private Aided Junior colleges in the State, appointed during ban period, in terms of G.O.Ms.No.212 dated 22.4.1994, vide G.O.Ms.No. 107 dated 9.10.2001. Since the petitioner has not satisfied the criteria of putting in five years of service as on 25.11.1993 (cut-off date), petitioner is not eligible for regularization in terms of G.O.Ms.No.212 dated 22.4.1994, as he does not fulfil the primary conditions. There are no Rules or Orders now in force to regularize the service of the petitioner. It is a matter of State policy whether to regularize the services of the persons similarly situated as that of the petitioner or not. The State will take policy decision depending on the financial burden on the exchequer and as such the petitioner cannot compel the State to regularize the services of the petitioner and when any Scheme is formulated for regularization, the case of the petitioner also will be considered in the same. Therefore, the writ petition is devoid of merit and liable to be dismissed. Heard both sides. The facts are not in dispute. Admittedly, petitioner was appointed as Watchman against a vacancy available as contingent staff, with effect from 30.11.1992 and when a vacancy arose due to death of one P. Krishna Rao on 2.5.1992, the case of the petitioner was considered and proposals were sent for absorption of the petitioner against the said vacancy vide letter dated 16.7.1998 of 4th respondent. The said proposals have not been acted upon. The counter filed at one breadth says that since the petitioner was appointed during the ban period i.e. on 1.4.1984, his services cannot be regularized and at another breadth, it says that since the petitioner did not satisfy the criteria of putting in five years of service as on 25.11.1993 as required under G.O.Ms.No.212 dated 22.4.1994. The proposals were not considered though the cases of 25 such similarly placed persons have been considered, since they have satisfied the criteria of putting in five years’ of service, as per the said G.O. whereas, the case of the petitioner is that one P. Krishna Rao died on 2.5.1992, who was appointed against an aided vacancy already existing and since the said aided vacancy was existing, the case of the petitioner was considered and proposals were sent on 16.7.1998 for absorption and regularization of the services of the petitioner. Here, it appears, that the ban was not the criteria for not considering the case of the petitioner but the criteria was that he could not complete five years of service as on 25.11.1993. However, this is not a case of creating of new post for the purpose of absorption of the petitioner and regularization of his services. Already the case of the petitioner was recommended against an aided vacancy already existing as on 16.7.1998. Therefore, either the argument that being contingent employee he has not completed five years’ of service as per G.O.Ms.No.212 or that there was ban for appointment of the petitioner, does not arise. The ban is applicable only in case of creating new post being admitted to grant-in-aid and not against filling up of already existing vacancies. In this regard, learned counsel for the petitioner relied upon an order passed by this Court in D. Poornachandra Rao v. Tirumala Tirupati Devasthanams[1] wherein it is held: “Umadevi cannot be understood or utilized by employers to scuttle the very scheme of public employment and the guarantees enshrined in Articles 14 and 16 of the Constitution, by treating as impermanent or temporary, a service which is essentially of a permanent and enduring nature. By adopting such a practice, an employer having appointed temporary/ad-hoc/daily wage employees on the ground that there were no permanent posts in a particular service, cannot take recourse to Umadevi to say that such persons have no rights. Umadevi does not lay down the proposition that an employer can treat as temporary a post which ought to be permanent. Such a practice would, in fact, be an unfair labour practice under Clause-I(10) of the Fifth Schedule to the Industrial Disputes Act, 1947, relatable to Section 2(ra) thereof, which defines "unfair labour, practice". In effect, though the petitioners' prayer is with regard to regularization of their services, the same is a misnomer in as much as it is not 'their' services that they are seeking regularization of, but the regularization of the 'posts' that they have been working in. The Devasthanams conveniently treated these posts as impermanent and temporary for nearly two decades, notwithstanding the fact that it's own Editor had voiced the need for five regular posts in this cadre as long back as in the year 1996. Thus, the petitioners are neither seeking 'regularization' nor 'permanence' of their own services. What they are, in effect, seeking is that the posts in which they are working should be made 'permanent and regular'.” Therefore, I am of the opinion that the petitioner is entitled for regularization of his services against the existing aided vacancy of Watchman. In the result, writ petition is allowed and the respondents 1 to 3 are directed to act upon the proposal sent by the 4th respondent-management on 16.7.1998 and pass appropriate orders, as per law, within a period of eight weeks from the date of receipt of a copy of this order. JUSTICE C.V. RAMULU. Date: 19-7-2010. MVB. [1] 2010 (1) ALT 56