IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) SATURDAY, THE FIFTEENTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT PETITION NO : 27144 of 2005 Between: M.Tirupathaiah, S/o.M.Pentaiah, Shadnagar Depot, APSRTC, Mahabubnagar District. ..... PETITIONER AND 1 APSRTC, Rep by its Vice Chairman and Managing Director, Musheerabad,Hyderabad. 2 The Regional Manager, APSRTC, Mahabubnagar Region, Mahabubnagar District. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue an order or direction more in the nature of Writ of Mandamus declaring the action of the respondents in not regularising the services of the petitioner from 1-1-1992 ie., on par with juniors is illegal, arbitrary and further direct the respondents to regularise the services of the petitioner w.e.f 1-1-1992 taking into consideration of award passed by the Labour Court No.III, Hyderabad in ID.No.722/1993. Counsel for the Petitioner:MR.P.RAGHAVENDRA REDDY Counsel for the Respondent No.: SMT.B.G.UMA DEVI The Court made the following : ORDER: This writ petition is filed by the petitioner seeking for issue of a writ of mandamus declaring the action of the respondents in not regularizing his services from 1.1.1992 i.e., on par with his juniors as illegal, arbitrary and a further direction to the respondents to regularize the services of the petitioner from 1.1.1992 taking into consideration of the award passed by the Labour Court No. III, Hyderabad in I.D.No.722 of 1993. The case of the petitioner is that the respondent- Corporation issued a notification for appointment of conductors on casual basis. Pursuant to the same, the petitioner was appointed as conductor on casual basis in the respondent-Corporation on 20- 1-1991 after undergoing through the selection process by the Selection Department as per the A.P.S.R.T.C. Employees (Recruitment) Regulations, 1966 vide office order No.E1/502 (5)/89-MB, dated 2.1.1991. Along with the petitioner, 34 conductors were selected for the post of conductors and were also given postings to different depots of Mahabubnagar Division and the petitioner’s name is at Sl.No.7 of the said order. While so, the petitioner was removed from service by proceedings dated 21-12-1991 on the ground that he was indulged in cash and ticket irregularities which were found in a check exercised on 20-4-1991. Aggrieved by the said removal order, he raised industrial dispute in I.D.No.722 of 1993 by filing an application under 2-A (2) of the Industrial Disputes Act and sought to set aside the order of removal and to direct the respondent- Corporation to reinstate him with continuity of services without attendant benefits and back wages. The Labour Court, Hyderabad passed an award in favour of the petitioner setting aside the order of removal and directing the respondents to reinstate the petitioner into service with continuity of service but without attendant benefits and back wages. Pursuant to the said award, the petitioner was reinstated into service on 14-8-1996. Thereafter, his services were regularized with effect from 14-8-1996 by appointing him in the time scale of Rs.1645-55-2140-65-2595-70-3155. It is his case that the Divisional Manager, AP.S.R.T.C. regularized the services of three hundred casual conductors from 1.1.1992 vide office order No.E1/145 (10)/91-MB, dated 7-2- 1992 and in the said proceedings, the services of the candidates who were appointed along with the petitioner at S.Nos. 138, 139, 140 and 141 on 20.1.1991, were also regularized with effect from 1.1.1992 whereas the services of the petitioner were regularized from 14.8.1996. Hence, he filed the present writ petition. It is stated in the counter affidavit filed on behalf of the respondents that the petitioner was removed from service on 21.12.1991 and questioning the same, he raised an industrial dispute in I.D.No.722 of 1993 before the learned Labour Court and the learned Labour Court while setting aside the order of the removal by an award dated 23.1.1996, ordered for reinstatement of the petitioner into service pursuant to which, the petitioner reported to duty on 14.8.1996 and consequently, his services were regularized by proceedings vide order No.P1/255 (17)/96-RM- MBNR dated 4.4.1997. It is further stated that the petitioner was not in duty since December, 1991 from the date of removal, more particularly, from the date he was kept under put off duty ie.., 25.4.1991. He did not complete even three months of service prior to his removal. He could be reinstated only on 14.8.1996 and immediately his services were regularized and therefore, he cannot compare himself with any other workman/employee and he is not entitled for regularization from 1.1.1992 onwards as he was not on the rolls from 25.4.1991 to 13.8.1996. Therefore, the writ petition is liable to be dismissed. The learned counsel for the petitioner would submit that the petitioner was appointed by proceedings dated 20.1.1991 along with 34 other conductors on casual basis and the services of the candidates, who are juniors to the petitioner standing at Sl.Nos.138,139,140 and 141, were regularised by proceedings dated 07-02-1992. It is further contended that though the petitioner was removed from service on the ground of cash and ticket irregularities by proceedings dated 21.12.1991, on the industrial dispute raised by him, in I.D.No.722 of 1993, the learned Labour Court allowed the I.D. setting aside the order of removal while directing the respondent-Corporation to reinstate the petitioner into service with continuity of service but without back wages and other attendant benefits. Pursuant to the same, he reported for duty on 14.8.1996. But, by proceedings dated 04.04.1997, the respondent-Corporation regularized the services of the petitioner by putting him in the scale of Rs.1645-55-2140-65-2595-70-3155. Therefore, in the light of the observations made by the learned labour Court, the petitioner cannot be denied of his regularisation from the date of his appointment. In support of his contention, he relied upon the judgment of the apex Court reported in DIVISIONAL MANAGER, APSRTC AND ORS. v. P.LAKSHMOJI RAO AND ORS. ([1]) wherein at paragraph 18 it was held as under: “In view of this peculiar situation and in order to avoid the anomalies that might otherwise ensue, while we hold that the respondent-employees have failed to establish their legal right to get the status of regular employees right from the date of their initial appointment on daily wage basis and the respective dates of regularization assigned to the respondents cannot be legally faulted, we are inclined to mould the relief in modification of the directions given in the judgments under appeal and direct as follows: If any of the Conductors, junior to the respondents in the relevant seniority list of the concerned Division/Region, have got the benefit of seniority and regularization OR are entitled to get the same by virtue of the judgments that have become final, then the respondents who are seniors to them, shall be given the same benefit on the same principle.” On the other hand, the learned standing counsel appearing for the respondent-Corporation while reiterating the averments made in the counter-affidavit would submit that though the petitioner was appointed along with 34 others on 20.1.1991, he was removed from service vide proceedings dated 21.12.1991 and he reported to duty only on 14.8.1996 pursuant to the award dated 23.1.1996 in I.D.No.722 of 1993 and he was not in service in the respondent-corporation with effect from December, 1991 to 13.8.1996. Therefore, his case cannot be considered on par with the persons whose services were regularized by proceedings dated 7-2-1992. Therefore, he is not entitled for regularization of services on par with the Juniors and accordingly, he sought for dismissal of the writ petition. The fact that remains undisputed is that the petitioner was appointed on casual basis along with 34 others on 20.1.1991 and he was removed from service on 21.04.1991 and questioning the same, he filed an I.D.No.722 of 1993 which was allowed by the Labour Court on 23.01.1996 directing for reinstatement of the petitioner with continuity of services pursuant to which the petitioner reported to duty on 14.8.1996 and he was provided with the scale of Rs.1645-55-2140-65-2595-70-3155 appointing temporarily by proceedings dated 4.4.1997. In the circumstances, the issue that remains to be considered is as to whether the petitioner is entitled to be considered for appointment or regularization of his services with effect from 1.1.1992 vide Office Order No.E1/145 (10)/91-MB, dated 7.2.1992 in which the services of his juniors were regularized. Admittedly, the petitioner was appointed on 20.1.1991 and removed from service on 21-12-1991. He raised industrial dispute questioning the issue of removal. The learned Labour Court allowed the ID on 23.01.1996 which passed the following award: “In the result, the ‘award’ is passed in favour of the petitioner setting aside the removal of order and directing the respondents to reinstate the petitioner into service with continuity of service without attendant benefits and without back wages. Necessary orders shall be issued within 30 days of publication of the award” The award passed by the Labour Court makes it clear that the learned Labour Court has not only directed the respondents to reinstate the petitioner into service but also treat the interrgnum period with continuity of service. As per the Office order, dated 4.4.1997, the petitioner along with two others who are engaged on daily wages basis in MBNR Region, were temporarily appointed as conductors in the time scale of Rs.1645-55-2140-65-2595-70-3155 with effect from the dates shown against their names with usual allowances admissible as per rules in force from time to time by showing the name of the petitioner at Sl.No.3 and the date of appointment as 14.8.1996. As a matter of fact, as per the proceedings dated 20.1.1991, the petitioner along with 33 others, was initially appointed as conductor on casual basis and his name is shown at Sl.No.7. It is also seen from the said proceedings, the names of four candidates namely B.Nagalaxman Rao, M.Gopal Naik, K.Sudhakar Goud and G.Gopal, are shown below the name of the petitioner. Pursuant to the order of the labour Court dated 23.1.1996 in ID.No.722 of 1993., the petitioner who was removed from service on 21.12.1991, was reinstated into service. Even the award makes it clear that the petitioner should be reinstated with continuity of service. But, in this regard, no explanation is forthcoming as to why the continuity of service of the petitioner could not be considered by the respondent-corporation while considering the case of his juniors. In the present facts and circumstances of the case and in view of specific direction issued in the award to reinstate the petitioner with continuity of service, I am of the view that the action of the respondents in not considering the case of the petitioner as per the proceedings dated 7.2.1992 while considering the case of his juniors, amounts to discrimination and arbitrariness. Therefore, the respondent-corporation is directed to consider the case of the petitioner for regularization of his services by considering the continuity of service as per the award dated 23-1-1996 in I.D.No.722 of 1993 and to pass appropriate orders within a period of two months from the date of receipt of a copy of this order. Subject to the above direction, this writ petition is disposed of. No order as to costs. ________________________ Justice G.CHANDRAIAH Dated 15th November, 2008. Note: CC in one week. BO Dvs HONOURABLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.27144 OF 2005 Dated 15th November, 2008 [1] 2004 (3) ALD 1 (SC)