HON'BLE SRI JUSTICE GHULAM MOHAMMED AND HON'BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO. 23848 OF 2010 Between: Dakkili Ratnakara Reddy S/o Vemula Reddy ………….Petitioner AND The Government of A.P. represented by its Secretary Panchayat Raj and Rural Development Department, Secretariat, Hyderabad and five others. ………….Respondents ORDER: (Per Hon'ble Sri Justice Ghulam Mohammed) This Writ Petition has been filed seeking to issue an order particularly one in the nature of Writ of Mandamus declaring the order dated 21.10.2009 passed in O.A.No. 5045 of 2006 by the Andhra Pradesh Administrative Tribunal, Hyderabad as illegal and arbitrary and consequently direct the respondents to regularize the petitioner’s service as clerk-cum-bill Collector in the 5th respondent- Dakakili Gram Panchayat from the date of the employment with all consequential benefits. Brief facts of the case are that the petitioner herein is working as Part Time Clerk cum-Bill Collector with effect from 1.2.1990 and he has completed requisite five years of service as on the date of Act 27 of 1998. It is his further case that though he is discharging the duties for the last 16 years, his services were not regularised and the Gram-Panchayat has also passed a resolution to continue the post of Clerk and Bill Collector with effect from 1.4.2006 for a period of five years. It is stated that the Gram panachayat is also having sufficient income and the petitioner herein also is fully eligible to be regularised as per G.O.Ms.,No. 212 dated 22.4.1994. Hence, the petitioner filed O.A and the Tribunal dismissed the O.A holding that the applicant-petitioner was appointed on 1.2.1990 and he did not complete five years of service to regularise his services as on the cut of date i.e., 25.11.1993. Aggrieved by the same, the present Writ Petition is filed. Sri M. Pitchaiah, learned counsel appearing for the petitioner submits that the Tribunal failed to see the fact that the petitioner is working for the last 20 years would show a presumption that there is a regular need of employing the petitioner as regular employee. He also submits that the Tribunal ought to have seen that right to life includes right to livelihood which in turn includes right to public employment and the same cannot be denied without following the procedure laid down under law. He relied on the judgment of the Supreme Court reported in A. MANJULA BHASHINI VS. A.P. WOMEN’S COOPERATIVE FINANCE CORPORATION LIMITED AND ANOTEHR[1], wherein the Supreme Court at paragraphs 101 and 102 held as under: “101. As a corollary, we hold ;that the declaration made by the Division Bench that all persons who completed five years’ service as on the date of coming into force of Act 27 of 1998 would be entitled to be considered for regularisation of their services is legally unsustainable and is liable to be set aside. In the result, the appeals filed by the employees (C.A Nos. 3702-07, 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, 3712-18, 3723, 3724, 3726-32, 3750 and 3752-55 of 2006) are allowed. 102. The declaration made by the Division Bench that the ban on regularisation will be effective from 19.8.1998 i.e., the date on which Act 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 the G.O. dated 22.4.1994.” On the other hand the learned Government Pleaders appearing for respondents viz., Government Pleader for Services-II, Government Pleader for Finance and Planning and also Government Pleader for Panchayat Raj have drawn our attention to the judgment of the Supreme Court reported in SECRETARY, STATE OF KARNATAKA VS. UMADEVI[2] and submit that the petitioner was appointed on 1.2.1190 and he did not complete five years of service to regularise his services by the cut off date i.e. 25.11.1993, therefore, there is no need to interfere with the order passed by the Tribunal. Heard the learned counsel appearing for both sides and also perused the material made available on record. As seen from the record, the petitioner herein was appointed on 1.2.1990 and is working as Part Time Clerk cum Bill Collector. While so, the Gram- Panchayat has also passed a resolution to continue the post of Clerk and Bill Collector with effect from 1.4.2006 for the period of five years. But, as per G.O.Ms.No. 212, Finance and Planning (FWPC.III) Department dated 22.4.1994 (Act 2/1994) the minimum continuous period of service required for regularization is five years up to the date of 25.11.1993. As the petitioner did not put up five years of service for regularisation of his services, the Tribunal held that the petitioner is not entitled for regularisation. In SECRETARY, STATE OF KARNATAKA VS. UMADEVI (Supra-2), relied on by the learned counsel appearing for the respondent, the Supreme Court at paragraph 44 observed as under: “44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa( AIR 1967 SC 1071) (Supra), R.N. Nanjundappa (AIR 1972 SC 1767) (Supra) and B.N. Nagrajan (AIR 1979 SC 1676) (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or duly wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” A plain reading of the above judgment, it is noticed that the Supreme Court held that regularisation, if any, already made need not be reopened based on the judgment but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme. In the circumstances, following the above judgment of the Supreme Court, this Writ Petition is liable to be dismissed. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J _____________________ G. CHANDRAIAH, J DATE: 18.07.2011 KA ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2 CD copies. [1] (2009) 8 SCC 431 [2] AIR 2006 SC 1806