THE HONOURABLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO:5651 OF 2003 & W.P.M.P.NO:30581 OF 2009 DATED:25.04.2011 BETWEEN: T.VIGNESWARA RAO …PETITIONER AND MANAGING DIRECTOR, A.P.NAYEEBRAHMINS CO OP SOCITIES FEDERATION LTD & ANOTHER …RESPONDENTS. THIS COURT MADE THE FOLLOWING: THE HONOURABLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO:5651 OF 2003 & W.P.M.P.NO:30581 OF 2009 ORDER: The writ petition is filed by the petitioner seeking for a direction in the nature of writ of mandamus to declare the action of the respondents in not paying the time scale of pay as per the proceedings No:38/APNBCSF/92, dated 22.11.1996 and also in not regularizing his service in the post of Attender on par with others as highly illegal, arbitrary and unconstitutional and consequently to direct the respondents to regularize his services in the post of Attender by setting aside the proceedings No:352/A2/2001-7, dated 19.9.2001 with all consequential benefits. The case of the petitioner as averred in the affidavit filed in support of the writ petition is that he belongs to S.C.-B category and hailed from a very poor family and he studied up to 10th class. He registered his name in the Government Employment Exchange and also in a private employment exchange viz., Surya Management and Security Services, Zaminstanpur. The 2nd respondent granted permission to the 1st respondent to fill up one vacancy of Attender in the category of S.C and issued proceedings dated 23.11.1995 and in pursuance of the same, the 1st respondent appointed him as an Attender in the S.C reserved vacancy by his proceedings in R.C.No:125/APNBCSF/1996, dated 30.4.1996 on a consolidated pay of Rs.1,500/- in the existing backlog vacancy of S.C after sponsoring his name through a private employment exchange on the requisition sent by the 1st respondent vide his proceedings in Lr.R.C.No:148/APNBCSF/1993, dated 5.3.1996. Since then he is discharging his duties most satisfactorily and thus, he completed 7 years of service without any remarks. It is his further case that pending regularization of his service, the 1st respondent sanctioned the time scale of pay for all the federation employees who are working on a consolidated pay vide proceedings in Rc.No:38/APNBCSF/1992, DATED 22.12.1996 and his pay was fixed in the cadre of Attender in the time scale of Rs.1375 –25 –1475 – 30 –2375 along with other individuals. Subsequently, the 1st respondent regularized the services of other Attenders and Sweepers who are appointed just before the petitioner, vide proceedings No:1471/A/97, dated 16.5.1998 ignoring his case in spite of the fact that his post is a sanctioned post and the 2nd respondent has given clearance to fill up the vacancies vide proceedings dated 23.11.1995. At present, he is being paid the consolidated pay of Rs.2,000/- by not even granting the time scale. Aggrieved by the same, he submitted a representation to the 1st respondent on 6.8.2000 requesting to regularize his service by fixing the time scale and paying the arrears. Basing on the said representation, the 1st respondent sent a proposal to the 2nd respondent vide his letter No:148/NBF/1993, dated 10.4.2001 and that the 1st respondent has sought a clarification vide his proceedings No:148/APNBCBF/93, DATED 23.5.2001 to the effect whether the petitioner was appointed in the sanctioned post and whether it is a time scale. But, no action was taken. On that, the petitioner submitted a petition dated 30.1.2001 to the Chief Minister, Government of Andhra Pradesh and in order to harass him, the 2nd respondent addressed a letter dated 19.9.2001 wherein his case was rejected on the ground that his appointment is not in accordance with G.O.Ms.No:212, dated 22.4.1994. Therefore, he submitted a fresh representation dated 5.7.2002 by ventilating his grievance and the same is pending consideration. Hence, the present writ petition is filed by the petitioner. On behalf of the 1st respondent, a counter affidavit has been filed denying the claim of the petitioner and inter alia contending that the appointment of the petitioner is not as per the Rules and the vacancy in question is reserved for S.C-Women and the claim of the petitioner is not valid and if at all the post is to be filled up, it has to be notified to the concerned Employment Exchange and apart from that, there was a ban on regular employment as per the proceedings Lr.No:379/PEI/A2/99, dated 17.3.1992. The very temporary engagement vide office order dated 28.4.1996 on a consolidated pay is not against the existing vacancy of S.C-Women and that the appointment of the petitioner itself is contrary to the provisions of A.P. (Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994. Therefore, the writ petition is liable to be dismissed. Heard the learned counsel and perused the material available on record. While reiterating the averments made in the affidavit, it is submitted by the learned counsel for the petitioner that the services of the similarly situated persons have been regularized by providing them the time scale of pay and the case of the petitioner was ignored. G.O.Ms.No:212, dated 22.4.1994 has no application to the facts of the case on the ground that the appointment of the petitioner itself was made by following due process of law against the existing and sanctioned post meant for backlog vacancy of Scheduled Caste. There is also no mention as to the permission granted by the 2nd respondent to the 1st respondent to the effect that the post is meant for S.C.-Women. Therefore, the action of the respondents in rejecting the claim of the petitioner is arbitrary and illegal. On the other hand, while reiterating the contentions raised in the counter, it is submitted by the learned Standing Counsel for the respondent-Federation that since the post, in which the petitioner was appointed, is meant for S.C-Women and the appointment of the petitioner is not in accordance with the Rules, the case of the petitioner was rejected by the Government under the impugned proceedings dated 19.9.2001. Therefore, the impugned proceedings are in accordance with law and it does not require any interference by exercising the jurisdiction of this Court under Article 226 of the Constitution of India. Having regard to the submissions made on either side and having regard to the facts and circumstances of the case, the point that arises for consideration in this writ petition is as to whether the proceedings No:352/A2/2001-7, dated 19.9.2001 addressed by the 2nd respondent to the 1st respondent is sustainable under law or not. In this regard, before going into the merits of the case, it is relevant to go through the material placed before this Court, which is not in dispute. The letter addressed by the Principal Secretary to the Government to the 1st respondent in Lr.No:3906/M1/95-1, dated 23.11.1995 reads as under: “With reference to your D.O letter Rc.No:180/APNSCSF/93 dated 11.10.1995 regarding filling up of backlog vacancies of SCs/STs in your organization, I am to accord clearance to fill up the one vacancy in the category of Attender in your organization as per rules in force. Action may please be intimated to this department.” The above proceedings makes it clear that the permission accorded to fill up the post of Attender is in respect of the backlog vacancy of S.Cs/S.Ts. The proceedings of the 1st respondent in Rc.No:175/APNBCSF/96, dated 30.4.1996 appointing the petitioner, reads as under: “Sri T.Vigneswara Rao s/o T.Surya Rao is hereby appoinbted as Attender on purely temporary basis with a consolidated pay of Rs.1,500/- p.m in the existing back log S.C vacancy of Attender post in the A.P. Nayee Brahmin Co Operative Societies Federation Limited, Hyderabad. He should report for duty immediately. His appointment is purely temporary and he can be terminated from service at any time without assigning any reason” Pursuant to the permission accorded by the 2nd respondent in the proceedings Lr.No:3906/M1/95-1, dated 23.11.1995, the petitioner was appointed as an Attender against the existing backlog vacancy of S.C category by the 1st respondent vide his proceedings dated 30.4.1996. The Certificate issued by the 1st respondent on 15.11.1996 reads as under: “This is to certify that the following individuals are working in the Federation on temporary basis from the dates noted against each pending regularization of their service, they are being paid consolidated monthly salaries. SL.NO. NAME OF THE CANDIDATE DESIGNATION SALARY WORKING SINCE 1 SRI K.SATYANARAYABA CLERK-CUM TYPIST 2000-00 12.3.1990 2 SRI S.SAI BABA ATTENDER 1500-00 27.8.1992 3 SRI T.VIGNESWARA RAO ATTENDER 1500.00 1.5.1996 4. SMT.T.SATYAMMA SWEEPER-CUM- ATTENDER 750.00 1.2.1993 The proceedings of the 1st respondent in Rc.No:38/APNBCSF/92, DATED 22.12.1996 reads as under: “Sanction orders are hereby issued to the following staff (4 individuals) of the Federation to pay their salary in the time scale of pay in the respective cadre as noted against each of them from 1.1.1997 with all admissible allowances: Sl.No. Name of the staff Cadre/Designation Time scale of Pay Present basic pay 1 Sarvasree K.Satyanarayana Clerk-cum-typist 1745-40- 1875-50- 2075-60- 2375-75- 2750-90- 3200-110- 3250 1745/- 2. S.Saibaba Attender 13785-25- 1475-30- 1625-40- 1875-50- 2025-60- 2375 1375/- 3 T.Vigneswara Rao Attender -do- 1375/- 4 P.Satyamma Sweeper-cum-Attender -do- 1375/- As per the above proceedings, the similarly situated persons including the petitioner were granted the time scale of pay as referred to above. The proceedings of the 1st respondent in proceedings No:1471/A/97, dated 16.5.1998 reads as under: “Under Rule 11 of Special Bye Laws of this Corporation, the services of Sri S.Sai Baba is regularized in the cadre of Attender w.e.f 1.1.1997. Sri S.Sai Baba, Attender is kept under probation for a period of two years within the continuous period of three years w.e.f 1.1.1997.” The letter addressed by the 1st respondent to the Principal Secretary to the Government in Lr.No:148/APNBCSF/93, dated 23.5.2001 reads as under: “With reference to Government letter 2nd cited, I have to inform that the vacancy of Attender post filled up by Sri T.Vigneswara Rao is a time scale post. This is for information of the Government.” As per the above letter of the 1st respondent, there is no dispute that the post held by the petitioner is a time scale post. But, it is not known as to how the case of the petitioner was discriminated by withdrawing the time scale that is being continued in respect of the similarly situated persons. Further as per the proceedings of the 1st respondent in Lr. Rc.No:148/NDF/93, dated 10.4.2001, the claim of the petitioner for regularization of his service was rejected on the ground that the individual has not fulfilled the conditions laid down in G.O.Ms.No:212, dated 22.4.1994 and G.O.Ms.No:112, dated 23.7.1997. Thereafter, the petitioner has made a representation, dated 5.7.2002 to the 1st respondent and the said representation reads as under: “I humbly submit that I was appointed against a backlog vacancy of Attender reserved for Scheduled Caste duly permitted by the Government in B.C Welfare Department vide Lr.No:3096/M1/96-1, dated 23.11.1995 (copy enclosed) and joined the duty on 1.5.1996 and also completed 5 years of service. I am therefore eligible for payment of the scale of pay attached to the post of Attender. But, I am being paid only consolidated salary of Rs.2,000/- per month. All the temporary employees of the Federation including myself were sanctioned time scales of the pay with effect from 1.1.1997 by the then Managing Director vide proceedings No:38/APNBCSF/92, dated 22.12.1996 (copy enclosed for the kind perusal). But, for reasons not known while all the other employees are being paid salaries as per time scale sanctioned except mine. I have submitted several representations to the Managing Director requesting for payment of time scale as per time scale sanctioned in the proceedings of the Managing Director, on par with other employees working in the Federation. In all other Departments/Organizations the services of candidates appointed against the backlog vacancies have already been regularized and they are being paid scales of pay of the posts. I belong to Scheduled Caste Community and I have a large family to support, which includes old parents, three minor brothers and one sister besides my wife and three children. In view of the circumstances stated above, I therefore request you Sir kindly to consider my representation for payment of time scale and regularization of my services in the Federation since my appointment was made under backlog vacancy duly permitted by the Government.” A perusal of the above material on record, clearly establishes that the 1st respondent sought permission from the Government to fill up the backlog vacancies made for S.C and S.T. The petitioner who belongs to S.C-B category was appointed by a competent authority i.e., the 1st respondent after calling for his name through a Private Agency and pursuant to the same, he reported for duty and as on today, he has completed 16 years of service. The material also makes it clear that the time scale of pay that has been granted to the petitioner along with others was subsequently withdrawn. However, the similarly situated persons whose services have been regularized are granted the time scales of pay. What all that has been stated in the counter is that the post, for which the petitioner was appointed, is meant for S.C-women. But, the material on record i.e., the correspondence between the 1st respondent and the Government does not disclose that the said post is meant for S.C-women. In this regard, it is relevant to go through the letter dated 23.11.1995 addressed by the Secretary to the Government to the 1st respondent wherein it is made clear that clearance was accorded to fill up the back log vacancies of S.Cs/S.Ts in the 1st respondent-organisation. In view of the same, the contention of the respondents that the post in question is meant for S.C women, cannot be sustained. As per the proceedings of the 1st respondent dated 22.12.1996, the petitioner along with others who were appointed on consolidated pay were granted time scale of pay. But, subsequently, the time scale of pay that has been granted to the petitioner was withdrawn and apart from that, the services of the similarly situated persons are regularized while ignoring the case of the petitioner and the time scale of pay is being continued. Therefore, the action of the respondents runs contrary to the principles of natural justice. At this stage, it is relevant to note that at the initial stage on 13.8.2003, this Court by order dated 13.8.2003 granted the following interim direction: “The petitioner is originally appointed as Attender by proceedings dated 30.4.1996 on consolidated pay of Rs.1500/- in the existing back log vacancy of S.C category in the 1st respondent Federation. By proceedings dated 22.12.1996, the Managing Director of the 1st respondent Federation granted pay scales to the petitioner along with two other Attenders and they are being paid the pay scales. It is stated that the pay scale granted to the petitioner vide proceedings dated 22.12.1996 was cancelled vide proceedings dated 1.1.1997 on the ground that he has not completed one year of service even though the petitioner has completed 07 years of service. There is no justification on the part of the respondents in not paying the pay scale to the petitioner on par with similarly situated persons. It is also stated that one Sri S.Sai Baba and Smt.Satyamma are also granted time scale of pay by the aforesaid order dated 22.12.1996 and they are being paid continuously discriminating the petitioner. Therefore, the respondents are directed to pay the salary to the petitioner in the scale of pay on par with Sri S.Sai Babu and Smt.Satyamma pursuant to the proceedings dated 22.12.1996 pending further orders.” Subsequently, on filing a vacate stay petition in W.V.M.P.No:22250 of 2005, the interim order granted by this Court on 13.8.2003 is vacated. At this stage, the petitioner filed W.P.M.P.No:30581 of 2009 seeking a direction to the respondents to consider his representation dated 3.1.2008 without reference to the Memo No:148/NBF/93, dated 31.3.2007. A perusal of the Memo No:148/NBF/93, dated 31.3.2007 goes to show that the application of the petitioner has been examined and his case cannot be considered for sanction of Time Scale pending the issue of final orders by this Court in this writ petition and it is also made clear that if he withdraws the writ petition, his case may be referred to the Government to issue necessary orders for sanction of Time scale in relaxation of the provisions as contained in G.O.Ms.No:212, dated 22.4.1996. The above approach of the authorities appears to be ambiguous in dealing with the case of the petitioner and apart from that, except saying that the appointment of the petitioner is not made as per the rules, they are not able to place such material to that effect. As of now, the petitioner has completed 16 years of service and the time scale of pay that has been granted to the petitioner was subsequently withdrawn without there being any written proceedings. However, the time scale of pay that has been granted to the similarly situated persons is being continued in their case and their services have also been regularized. In these circumstances of the case, I am of the view that the proceedings of the 1st respondent in Lr.No:148/NBF/93, dated 10.4.2001 whereunder the case of the petitioner was rejected for regularization of his services and also the proceedings in Rc.No:352/A2/2001-7, dated 19.9.2001 issued by the 1st respondent, are illegal and thereby, they are set aside. In the peculiar facts and circumstances of the case coupled with the fact that the services of the similarly situated persons were regularized by continuing their time scale of pay that was granted along with the petitioner, I feel it a fit case to direct the respondents to consider the case of the petitioner for regularization of his services in accordance with law and pass appropriate orders within a period of two (2) months from the date of receipt of a copy of this order. Accordingly, the writ petition and W.P.M.P.30581 of 2009 are allowed. No costs. _________________ Justice G.Chandraiah. Date:25.04.2011 Gurc. THE HONOURABLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO:5651 OF 2003 & W.P.M.P.NO:30581 OF 2009 DATED:25.04.2011