THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.2547 OF 2004 DATED 26TH NOVEMBER, 2009 BETWEEN U.Kanakaiah … Petitioner and State of Andhra Pradesh, Housing Department, Secretary Buildings, Secretariat, Hyderabad. Rep. by its Special Chief Secretary to Government. And Others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.2547 OF 2004 ORDER: The petitioner, a Typist in the Andhra Pradesh State Housing Corporation Limited (for brevity, ‘the Corporation’), the second respondent, challenges its Proceedings No.A3/8258/ 2001 dated 28.09.2001 cancelling his appointment vide Proceedings No.H2/204/92 dated 12.04.1994; and the confirmation of the same in appeal vide G.O.Rt.No.166, Housing (U&IAY) Department, dated 26.05.2003 passed by the Government of Andhra Pradesh. The petitioner seeks a consequential direction to the respondents to regularize his services as a Typist with effect from 12.04.1994 and to pay him arrears of pay and allowances admissible to the post of Typist with consequential benefits, including promotion. Though this writ petition was heard in part on 19.10.2009 and was adjourned thereafter from time to time, coming up for hearing on 23.10.2009, 30.10.2009 and 06.11.2009 and was eventually reserved for judgment after hearing arguments on 11.11.2009, there was no representation on behalf of the State of Andhra Pradesh, the first respondent. In that view of the matter, this Court has no option but to proceed to adjudicate the matter on the basis of the material available on record. The petitioner was appointed as a Typist on daily wages in the service of the Corporation under proceedings No.A/289/89 dated 31.05.1989. He appears to have made a representation on 09.12.1992 seeking regularization of his services. Acting thereupon, the District Collector/Executive Director of the Corporation issued proceedings No.H2/204/92 dated 12.04.1994 recording the fact that the petitioner was working as a Typist on daily wages basis and had represented for regularization of his services. The District Collector/Executive Director stated that the said representation had been examined in the light of G.O.Ms.No.193, GAD (Ser-A) Department, dated 14.03.1990 and the petitioner’s case was considered by appointing him as a Typist in the scale of Rs.910-30-1240-35-1625 of RPS, 1986 and he was posted in the existing vacancy in the Office of the District Manager (Housing), Adilabad. The appointment was stated to be purely temporary and liable to termination without assigning any reason and without prior notice. It appears that the petitioner’s name was thereafter reflected in the seniority list of Junior Assistants/ Typists/Junior Stenos published on 04.11.1998, wherein he was shown at Sl.No.44. While matters stood thus, the impugned proceedings bearing No.A3/8258/2001 dated 28.09.2001 were issued by the Managing Director of the Corporation cancelling the appointment orders of the petitioner in the proceedings dated 12.04.1994. A reading of the said proceedings would reflect that certain other NMR Typists working in the Corporation had requested regularization of their services on par with the petitioner and thereupon, the Managing Director of the Corporation, having examined the issue, came to the conclusion that the petitioner would not come under the purview of G.O.Ms.No.193 dated 14.03.1990 basing on which he was regularly appointed under the proceedings dated 12.04.1994. It is relevant to note that the Managing Director of the Corporation specifically stated that G.O.Ms.No.193 dated 14.03.1990 was not applicable to the employees of the Corporation who were guided by separate rules. The Managing Director further observed that the petitioner did not fulfill the conditions stipulated in the said G.O. and accordingly his services could not be regularized thereunder. He went on to examine whether the petitioner’s case could be considered under G.O.Ms.No.212 dated 22.04.1994 which dealt with regularization of NMR employees and found that the petitioner had not completed five years of service as on 25.11.1993 and therefore did not comply with the requirements stipulated in the said G.O. also. The Managing Director further observed that the District Collector was not competent to regularize the services of the petitioner and accordingly cancelled the appointment orders of the petitioner under proceedings dated 12.04.1994 with immediate effect holding that the petitioner was not eligible for regularization. He directed that the petitioner may be continued as a NMR Typist on minimum emoluments on par with similarly situated employees. Aggrieved by the order of the Managing Director of the Corporation vide proceedings dated 28.09.2001, the petitioner preferred an appeal to the Government of Andhra Pradesh. The appeal was dismissed vide G.O.Rt.No.166, Housing (U&IAY) Department, dated 26.05.2003. The primary order dated 28.09.2001 as well as the appellate order vide G.O.Rt.No.166 dated 26.05.2003 are subjected to challenge. The proceedings aforestated clearly demonstrate that the petitioner was not put on notice prior to the cancellation of his appointment orders. Notwithstanding the fact that the proceedings dated 12.04.1994 spoke of the petitioner’s appointment being temporary and liable to termination without assigning reasons or prior notice, the fact remains that the petitioner was appointed as a Typist on regular pay scale, had put in seven years of service and his name had also been included in the seniority list of regular Junior Assistants/Typists/Junior Stenos. That being so, the Corporation was required to put the petitioner on notice and give him an opportunity of hearing before resorting to cancellation of his appointment orders. The procedure followed by the Corporation was therefore in flagrant violation of the principles of natural justice. The matter is therefore amenable to resolution on this short ground. However, certain other aspects of the matter further compounded the illegality and injustice perpetrated upon the petitioner, which require mention. It is relevant to note that the observation of the Managing Director of the Corporation in the proceedings dated 28.09.2001 that the District Collector/Executive Director of the Corporation was not competent to regularize the petitioner’s services, is incorrect. As per the Andhra Pradesh State Housing Corporation Limited Employees’ Service Rules, 1984, the Collector/Executive Director of the Corporation is competent to make appointments to the posts at Sl.Nos.5 to 10 categories in the respective Districts. Category No.7 pertains to the post of Typist with the scale of pay of Rs.910-30-1240- 35-1625. Therefore, the order of the District Collector/Executive Director dated 12.04.1994 regularly appointing the petitioner to the post of Typist cannot be said to be without jurisdiction. It is the case of the petitioner that various other employees, who were similarly situated, had been given the benefit of regularization, be it under G.O.Ms.No.193 dated 14.03.1990 or G.O.Ms.No.212 dated 22.04.1994, and they were not only continued in the service of the Corporation but were also given further promotions. He specifically referred to the cases of V.S.S.Prasad and K.D.Srinivasa Rao, who were appointed as Junior Assistants long after the appointment of the petitioner as a Typist on daily wages basis and whose services were regularized under G.O.Ms.No.193 dated 14.03.1990. He also referred to the cases of K.Chandraiah and K.Rajasekharam, who entered in the service of the Corporation as Godown Watchmen and whose services were regularized under G.O.Ms.No.212 dated 22.04.1994 notwithstanding the absence of sanctioned posts, as required in the said G.O. It is relevant to note that on the appeal filed by the petitioner, when the Government sought the response of the Corporation in this regard, the Corporation addressed letter No.A3/8258/2001 dated 06.03.2003 to the Government stating that certain lapses were noticed in the regularization of services of V.S.S.Prasad, K.D.Srinivasa Rao, K.Chandraiah and K.Rajasekharam and as such, their names had been deleted from the seniority list of Senior Assistants/Junior Assistants. In its counter, the Corporation sought to justify the impugned proceedings dated 28.09.2001 reiterating that G.O.Ms.No.193 dated 14.03.1990 was not applicable to the employees of the Corporation. The Corporation however admitted that the petitioner’s name was included in the seniority list pursuant to his regular appointment. Further, contradicting its own stand that G.O.Ms.No.193 dated 14.03.1990 is not applicable to its employees, the Corporation stated that V.S.S.Prasad and K.D.Srinivasa Rao were regularized as Junior Assistants under the said G.O. and that they were being continued as Senior Assistants on date. The Corporation further stated that the names of these two persons were deleted from the seniority list. With regard to the cases of K.Chandraiah and K.Rajasekharam, it was stated that the petitioner could not draw parity with their cases as they were appointed in the category of Godown Watchmen and were regularized under the provisions of G.O.Ms.No.212 dated 22.04.1994. It was further stated that the Corporation had addressed letter No.A8(1)928/2004 dated 28.11.2005 to the Government recommending the case of the petitioner for regularization, on the ground that he had rendered long standing service and as the services of two others similarly situated were regularized, continued and they were also granted further promotions. Reliance was also placed upon the Judgments of this Court in Writ Petition No.19267 of 1993 and Writ Appeal No.760 of 2001. However, the Corporation stated that the Government, vide proceedings in Rc.No.A3/4112/2003 dated 26.03.2007, had rejected the said proposal. Accordingly, the Corporation denied the entitlement of the petitioner to regular appointment with effect from 12.04.1994. In his reply to the above counter, the petitioner pointed out that his appointment under proceedings dated 12.04.1994 was made by the competent authority, i.e., the District Collector/Executive Director as stipulated in the rules and therefore the same could not be said to be in violation of G.O.Ms.No.193 dated 14.03.1990. The petitioner reiterated that V.S.S.Prasad and K.D.Srinivasa Rao were identically situated to him and were in fact juniors to him in service but their cases were dealt with on a different footing and not only were their services regularized and continued but they were also promoted. The petitioner denied that the names of the said persons had been deleted from the seniority list and relied upon the seniority list in Rc.No.A3/6800/2009 dated 06.06.2009 to demonstrate that they were in fact promoted as Senior Assistants on the basis of their so called seniority. It is pointed out that K.Chandraiah and K.Rajasekharam were also promoted to the posts of Senior Assistants and the stand of the Corporation that their cases could not be taken into consideration as they were appointed to the category of Godown Watchmen and their services were regularized under G.O.Ms.No.212 dated 22.04.1994, was refuted. The petitioner reiterated that he had not been put on notice prior to the cancellation of the orders of his appointment by way of the impugned proceedings dated 28.09.2001 and concluded by stating that he was being continued on minimum scale of pay as per the said proceedings and was being deprived of his rightful benefits on par with others. The petitioner also filed several documents along with his reply affidavit in support of his various contentions. The seniority list dated 06.06.2009 signed by the Managing Director of the Corporation is produced and the names of V.S.S.Prasad and K.D.Srinivasa Rao find mention therein at Sl.Nos.159 and 160 and their present designation is shown as Senior Assistants. Their services are indicated to have been regularized in the cadre of Junior Assistants/Typists/Junior Stenos in the year 1991 itself. This clearly negates the persistent stand being put forth by the Corporation that their names had been deleted from the seniority list. The letter dated 26.11.2005 addressed by the Corporation to the Government recommending the case of the petitioner for regularization is also produced. A reading of the same is illuminating and manifests the continued illegality and injustice that is being perpetrated by the respondents so far as the petitioner is concerned. The Corporation, in the said letter, pointed out that the services of five persons who were junior to the petitioner in the service of the Corporation had been regularized though they were not entitled to such regularization as per the applicable norms. The five persons named are V.S.S. Prasad, K.D.Srinivasa Rao, K.Chandraiah, K.Rajasekharam and G.Lachanna. It was also admitted that though the Corporation had earlier informed the Government that their names were deleted from the seniority list, they were actually continued as regular employees on regular scale with usual emoluments. The Corporation also stated that the regularization of services of V.S.S.Prasad and K.D.Srinivasa Rao was also in terms of G.O.Ms.No.193 dated 14.03.1990 which had been made applicable to the petitioner and thereafter cancelled. The Corporation confessed that it did not know how the said two individuals were allowed to continue on regular basis with all benefits on par with regular employees when the case of the petitioner alone was singled out and his appointment orders were cancelled. The Corporation further brought into focus the case of three other persons who had been appointed as Section Writers and were regularized in the cadre of Junior Assistants as per G.O.Ms.No.212 dated 22.04.1994 though there were no sanctioned posts of Section Writers in the Corporation, as required under the said G.O. Detailing the above irregularities the Corporation stated that it could not file a counter in the present writ petition and requested the Government to reconsider the case of the petitioner for restoration of his previous status on par with V.S.S.Prasad and K.D.Srinivasa Rao to avoid further litigation. In spite of the Corporation baring its soul by way of the above communication, the Government surprisingly rejected the proposal to reconsider the petitioner’s case, under letter No.50557/U&IAY-A2/2005-2 dated 15.02.2007, stating that the proposal to regularize the services of the petitioner as per G.O.Ms.No.212 dated 22.04.1994 or any other G.Os. could not be considered as all the previous G.Os. on the subject of regularisation of services stood annulled upon the coming into force of the Act 2 of 1994 with effect from 25.11.1993. This rejection was communicated to the petitioner under Proceedings in Rc.No.A3/4112/2003 dated 26.03.2007 of the Corporation. One other significant aspect which remains to be noticed is that the Government addressed letter No.54737/U&IAY-A2/2005-7 dated 09.02.2009 to the Corporation in respect of the case of regularization of service of one K.S.Altaf Hussain, Junior Assistant in the Corporation, with retrospective effect. It appears that the said individual produced a fake degree certificate and was accordingly reverted as a NMR Junior Assistant. Thereafter, upon his acquiring the qualification, the Law Department of the State appears to have recommended his case for regularization of service from the date of his initial appointment. Citing the said opinion of the Law Department, the Government requested the Managing Director of the Corporation, being the appointing authority, to take a decision in the matter. In this regard, the observations made by the Law Department of the State Government are worthy of extraction being very much relevant for the purposes of this case. “The Supreme Court of India in Jacob M Puthuparambil vs. Kerala Water Authority (1990 SLR 54 SC) held that, adhoc employees, who are serving for long spells have the requisites qualifications for the job should not be thrown out but their services should be regularized as far as possible. This kind of approach would be consistent with the Constitution philosophy particularly, the concept of right to work in Article 41 of the Constitution. The job security is the ingredient on the right to work and hence, terminating the services after a fairly long time is deprecated. It is unfair and unreasonable to remove people who have been rendering service since some time as such removal has serious consequence. The family of the employee which had settled down and accommodated its needs to the emoluments received by the bread winner, will face economic ruination if the job is suddenly taken away. Besides, the precious period of early life devoted in the service of the establishment will be wholly wasted and the incumbent may be rendered ‘age barred’ for securing a job elsewhere. It is indeed unfair to use him, generate hope and a feeling of security in him, attune his family to live within his earnings and then suddenly to throw him out of job. Such behaviour would be an affront to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of right to work in Article 41 of the Constitution. In the circumstances of the case and keeping in view of the above observations of the Apex Court, this Department supports the view of the administrative department at on pages 16-17 ante. xx s/d Section Officer The proposal of the Department is accepted for regularization of services of the individual in the post of Jr.Assistant from the date of issue of orders by the competent appointing authority subject of condition that no other senior qualified person is omitted/overlooked. xx s/d Section Officer” On a conspectus of the facts and circumstances of the present case as detailed herein above, it is clear that the petitioner alone was singled out for discrimination while all others, whose services were regularized in violation of the existing rules, were continued in service on regular pay scales and were treated on par with other permanent employees. So much so, that they have also been promoted while the petitioner alone is languishing in the same post on minimum emoluments. It is pertinent to note that under the order dated 12.04.1994 the petitioner was appointed as a regular Typist from that date and it is nobody’s case that his services were regularized with effect from the date on which he was initially appointed on daily wage basis. The entire controversy appears to have arisen only because of the reference to G.O.Ms.No.193 dated 14.03.1990. It is not in dispute that the District Collector/Executive Director who issued the said order of appointment is the competent authority to do so under the relevant rules. So far as the applicability of G.O.Ms.No.193 dated 14.03.1990 is concerned, the stand of the Corporation through out has been that the said G.O. has no application to the employees of the Corporation. That being so, there is no justification for regularizing the services of the V.S.S.Prasad and K.D.Srinivasa Rao under the very same G.O. and permitting them to continue in service. Having admitted at one point of time that there were lapses in their so called regularization and that their names were deleted from the seniority list, the Corporation thereafter confessed that not only were they continued in service on par with regular employees but they were also given promotions. The seniority list produced by the petitioner shows that their names were also included therein, belying the earlier statement made by the Corporation. Similar is the case of the two Godown Watchmen – K.Chandraiah and K.Rajasekharam, whose services were regularized under G.O.Ms.No.212 dated 22.04.1994 in violation of the conditions thereof. But their services were continued notwithstanding the same and they have now been promoted to the posts of Senior Assistant. These persons are not party to the present writ petition and it would not be proper for this Court to make any further comment upon their status in the Corporation. However, once the Corporation admits to the fact that these persons, who were in fact junior to the petitioner, have been treated differently as is evident from its letter dated 26.11.2005, there is no justification for the discrimination meted out to the petitioner alone. This Court is conscious that it cannot perpetuate the irregularities in the Corporation on the ground that earlier irregularities were overlooked. However, the issue is whether the petitioner’s regular appointment can be said to be illegal or irregular merely because of the mention of G.O.Ms.No.193 dated 14.03.1990. Once his appointment under the proceedings dated 12.04.1994 is treated as a mere regular appointment in accordance with rules, there is no illegality in the same as contended by the respondent authorities. Admittedly, G.O.Ms. No.193 dated 14.03.1990 has no application to the employees of the Corporation. That being so, the proceedings dated 12.04.1994 have to be treated as a regular appointment order passed by the competent authority in accordance with rules in spite of the erroneous reference therein to G.O.Ms.No.193 dated 14.03.1990. There is thus no reason as to why the petitioner should be singled out by the Corporation when all others, who were similarly situated, have been accommodated. The stand of the Government is equally without justification and rationale. On the one hand, the Government states that after the promulgation of the Act 2 of 1994 the earlier G.Os. on the subject of regularization of services stood annulled but in the same breath it recommends the regularization of an employee of the Corporation, who was in fact guilty of fraud, i.e., production of a fake certificate for securing his appointment. The Government goes to the extent of recommending his case for regularization with retrospective effect and places the responsibility upon the Managing Director of the Corporation, being the appointing authority, to complete the formality. This dichotomy in the attitude and approach of the Government is clearly indicative of its double standards in the matter. This apart, as pointed out at the out set, the impugned proceedings dated 28.09.2001 cancelling the appointment of the petitioner under the proceedings dated 12.04.1994 were issued without notice to the petitioner. Notwithstanding the recital in the appointment order dated 12.04.1994 that it was terminable without reason and without notice, the fact remains that the petitioner was not only continued in service pursuant thereto for a period of seven years but was also treated as a regular employee by inclusion of his name in the seniority list. In the light of these developments, the Corporation cannot fall back upon the recital in the appointment order dated 12.04.1994 and summarily do away with the services of the petitioner without following the due procedure laid down by law. Trite to state, even a temporary employee is entitled to protection of service and cannot be dispensed with without recourse to due procedure (PARSHOTAM LAL DHINGRA v. UNION OF INDIA[1]). On this ground alone the impugned proceedings are bound to be set aside. Added to this, the discrimination, illegality and injustice that the petitioner was subjected to as is evident from the facts set out hereinbefore clearly indicate that the action of the respondents in cancelling the petitioner’s regular appointment and thereafter continuing him as a NMR Typist on minimum emoluments is unsustainable in law. The impugned proceedings dated 28.09.2001 confirmed by the Government in G.O.Rt.No.166 dated 26.05.2003 are accordingly set aside. The respondents are directed to treat the appointment of the petitioner as a Typist in the Corporation under the proceedings dated 12.04.1994 as a regular appointment made in accordance with rules. He shall therefore be entitled to all consequential benefits including the pay and emoluments, seniority, promotions, etc. from the said date. His position in the seniority list shall be restored treating his date of initial regular appointment as 12.04.1994 and the consequential promotions basing on such restoration shall also be extended to him. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order. The writ petition is accordingly allowed. In the circumstances of the case, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. _________ November, 2009. VGSR/PGS [1] AIR 1958 SC 36