THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO.12592 OF 2000 Dated 12th August, 2010 Between: D.Venugopala Swamy …Petitioner And The Vice Chairman and Managing Director, A.P.State Handloom Weavers Cooperative Society Limited and two others …Respondents The Court made the following ORDER The relief sought for in this writ petition is to declare the action of the respondents in not paying the time-scale of pay, attached to the post of Helper/Sales Assistant, to the petitioner, and in not regularising his services as per G.O.Ms.No.212 dated 22.04.1994, as illegal, arbitrary and in violation of Article 14 of the Constitution of India. This Court, by order in WPMP No.16047 of 2000 dated 13.10.2000, directed the respondents to continue the petitioner in the post held by him, and pay him the minimum scale of pay attached to the said post. The said order was modified in WVMP No.3024 of 2000, by order dated 01.08.2001, directing the respondents to continue to pay the petitioner the minimum wages as applicable to a daily wager under the Minimum Wages Act. In the counter-affidavit filed on behalf of the respondents, it is stated that the provisions of the Andhra Pradesh Shops and Establishments Act, 1966 are not applicable to the respondent-society since it is under the control of the State Government; there is no post of helper as per the staffing pattern of the respondent-society; as per Act 27 of 1998 G.O.Ms. No.212 dated 22.04.1994 is not applicable to the respondent-society; and there cannot be regularisation of the services of the petitioner under the said G.O. G.O.Ms.No.212 dated 22.04.1994 provides for regularisation of the services of persons who had worked continuously for a minimum period of five years, and were continuing on 25.11.1993, subject to the fulfilment of the following conditions. 1) “The persons appointed should possess the qualifications prescribed as per rules in force as on the date from which his/her services have to be regularised. 2) They should be within the age limits as on the date of appointment as NMR/Daily wage employee. 3) The rule of reservation wherever applicable will be followed and backlog will be set-off against future vacancies. 4) Sponsoring of candidates from Employment Exchange is relaxed. 5) Absorption shall be against clear vacancies of posts considered necessary to be continued as per work-load excluding the vacancies already notified to the Andhra Pradesh Public Service Commission/District Selection Committee. 6) In the case of work charged establishment, where there will be no clear vacancies, because of the fact that the expenditure on work charged is at a fixed percentage of P.S.charges and as soon as the work is over, the services of work charged establishment will have to be terminated, they shall be adjusted in the other departments, District Offices provided there are clear vacancies of last Grade service.” Condition No.5 requires such employees/workmen to be absorbed against clear vacancies of posts considered necessary to be continued as per workload, excluding the vacancies already notified to the Andhra Pradesh Public Service Commission/District Selection Committee. Condition No.5 pre-supposes the existence of a post. While the respondents, in their counter-affidavit, would assert that there is no post of helper, Sri V.Padmanabha Rao, learned counsel for the petitioner, would refer to Clause (IX) (a) of Annexure-I to the bye- laws of the society in support of his contention that the post which the petitioner was working was, in fact, that of a Sales Assistant, and that he was merely called a helper. Whether the petitioner was a sales assistant or not is a question which is required to be decided by the competent authority. While there is an assertion in the counter-affidavit that the respondent-society is exempted under Act 27 of 1998, neither is a copy of the said Act placed before this Court, nor is the counsel for the respondents present. The Supreme Court, in A.Manjula Bhashini and others v. Managing Director, A.P.Women’s Cooperative Finance Corporation Limited and another[1], held that G.O.Ms.No.212 dated 22.04.1994 did not confer any indefeasible right upon daily wage employees to be regularised in service dehors the date of enforcement of the Andhra Pradesh (Regularisation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994 or the conditions stipulated therein. The Supreme Court observed “……….In view of the above discussion, we hold that the amendments made in the 1994 Act by Act Nos.3 of 1998 and 27 of 1998 do not have the effect of nullifying or overriding the judgment in District Collector v.M.L.Singh (supra). We further hold that the policy of regularisation contained in first proviso to Section 7 of Act No.27 of 1998 is one time measure intended to benefit only those daily wage employees, etc., who completed 5 years continuous service on or before 25.11.1993 and the employees who completed 5 years service after 25.11.1993 cannot claim regularisation. The question whether Section 7A of Act No.27 of 1998 amounts to an encroachment on the Court’s power on judicial review is answered in negative in view of the three-Judge Bench judgment in Mylapore Club v. State of Tamil Nadu (supra) and we respectfully follow the ratio of that judgment. Even otherwise, in view of the interpretation placed by us on the policy of regularisation contained in first proviso to Section 7 of the 1994 Act, the question of abatement of claims etc., has become purely academic. In the result, the appeals filed by the employees (C.A.Nos.3702, 3703, 3704, 3705, 3706, 3707, 3709, 3710, 3721, 3733, 3734, 3737, 3742, 3744, 3748, 3749 and 3751 of 2006) are dismissed and those filed by the State Government and agencies/instrumentalities of the State (C.A.Nos.3685, 3712, 3713, 3714, 3715, 3716, 3717, 3718, 3723, 3724, 3726, 3727, 3728, 3729, 3730, 3731, 3732, 3750, 3752, 3753, 3754 and 3755 of 2006) are allowed. The declaration made by the Division Bench that the ban on regularisation will be effective from 19.08.1998 i.e., the date on which Act No.27 of 1998 came into force and that all persons who have completed 5 years service as on that date would be entitled to be considered for regularisation of service is set aside. It is, however, made clear that the daily wage employees and others who are covered by Section 7 of the 1994 Act (amended) and whose services have not been regularised so far, shall be entitled to be considered for regularisation and their services shall be regularised subject to fulfilment of the conditions enumerated in G.O dated 22.04.1994. With a view to obviate further litigation on this issue, we direct the Government of Andhra Pradesh, its officers and agencies/instrumentalities of the State to complete the exercise for regularisation of the services of eligible employees within four months of the receipt/production of copy of this order, without being influenced by the fact that the application, writ petition or appeal filed by any such employee may have been dismissed by the Tribunal or High Court or this Court. Since some of the appeals decided by this order relate to part time employees, we direct that similar exercise be undertaken in their cases and completed within four months keeping in view the conditions enumerated in G.O (P) No.112 dated 23.07.1997…..” (emphasis supplied) In these circumstances I consider it appropriate to permit the petitioner to submit a detailed representation to the first respondent. In case such a representation is filed within three (3) weeks from today, and in case the petitioner satisfies all the conditions stipulated for regularisation of his services including the minimum required service to be put in, the existence of sanctioned post, a clear vacancy in the said post etc., the first respondent shall consider the representation, in accordance with law including G.O.Ms.No.212 dated 22.04.1994, for regularisation, pass a reasoned order, and communicate its decision to the petitioner within three (3) months from the date of receipt of the representation. The writ petition is disposed of accordingly. No costs. __________________________ Ramesh Ranganathan, J Dated 12th August, 2010 vrn Note: Issue C.C in one week [1] 2009 (5) ALD 58 (SC)