IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE A. GOPAL REDDY AND THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT APPEAL No.1179 of 1997 & WRIT PETITION.No.15478 of 1999 WRIT APPEAL No.1179 of 1997: BETWEEN Osmania University. …APPELLANT AND Smt. N. Vidyavati. …RESPONDENT Counsel for the Appellant: MR. DEEPAK BHATTACHARJEE Counsel for the Respondent: MR. PRAVEEN VYAPARI WRIT PETITION.No.15478 of 1999: BETWEEN Smt. B. Jyothisree. …PETITIONER AND Osmania University. …RESPONDENT Counsel for the Petitioner: MR. N. USHA KIRAN Counsel for the Respondent: MR. DEEPAK BHATTACHARJEE The Court made the following: COMMON JUDGMENT: (per Hon’ble Sri Justice Vilas V. Afzulpurkar) W.A.No.1179 of 1997 is preferred by the Osmania University, which is the sole respondent in WP.No.1424 of 1996 filed by the respondent herein seeking regularization of her services as SGBT teacher with effect from 30.10.1989 i.e. the initial date of appointment in the Model High School under control of the appellant university and the same was allowed by the learned single Judge under the impugned order dated 17.06.1997. 2. The case of the respondent/writ petitioner is that she is a Post Graduate in Economics and also holds a B.Ed degree and belongs to BC-A group. She claimed that she was appointed as a teacher in a leave vacancy with effect from 30.10.1989 on a fixed pay of Rs.1,000/- per month in the Model High School of the appellant university on the recommendations of a duly constituted selection committee vide proceedings of the appellant being Order No.207/255/1969/Estt.III dated 27.10.1989. The respondent claimed that she was continued in the said post throughout and though she had made several representations seeking regularization of her services in any of the vacant posts of teachers in the said school, the same has not been considered. She also alleged that the notifications were issued by the appellant university from time to time notifying the various posts of SGBT teachers and in response to such advertisements, at least on three occasions the respondent had applied and appeared for the said selections but neither the interviews were conducted for the advertised posts nor the vacancies were filled up. The respondent also claimed that she made several representations even to the Vice-Chancellor of the appellant university as well as the Executive Council but there was no reply and though the services of one of the teachers was regularized in the existing vacant post, even on par with such regularized teacher also the case of the respondent was not considered. She, therefore, claimed that neither she has been regularized nor extended the minimum pay scale and allowance permissible to the said post, though she has been discharging regular duties of a SGBT teacher all these years. She, therefore, claimed the relief of regularization from the date of her initial appointment i.e. 30.10.1989 together with all consequential benefits including arrears of pay, seniority, promotion etc. 3. The said writ petition was resisted by the appellant university by filing a detailed counter affidavit, inter alia, contending that the respondent herein was selected and appointed temporarily in a leave vacancy post on a fixed pay of Rs.1,000/- vide appointment orders dated 27.10.1989 and her services were being extended from time to time either on leave vacancy or on casual basis. Further, it was also asserted that the order of appointment of the respondent itself mentions that the appointment is temporary and does not confer any right to seek permanent absorption. With respect to the process of regular recruitment to fill up regular posts it is stated that the same has been set in motion and it was not possible for the appellant university to consider the request of the respondent for regularization as it is contrary to law. With respect to another teacher with whom the respondent had sought parity for regularization, it is stated that the same was explained by stating that the said teacher was selected and appointed initially pursuant to an advertisement through a duly constituted selection committee in a regular scale of pay and not in a leave vacancy. It was also clarified that no person junior to the respondent in the cadre of teacher has been regularized and the allegation of discrimination was denied. Further, it was denied that any regular pay scale can be extended to the respondent, as she is not working in a regular post and consequently her request for regularization was placed before the Executive Council but the same was not approved and the decision of the Executive Council was communicated to the respondent. It was also reiterated that as and when regular recruitment takes placed the case of the respondent will be considered for such appointment. 4. Under the impugned order, the learned single Judge, after noticing the pleadings as above of the respective parties, was of the view that since the respondent possess the requisite qualification for appointment to the post of SGBT teacher and as she was selected by a duly constituted selection committee, though she was appointed in a leave vacancy, in view of the fact that she is working for the last 8 years, it would be improper to subject her to interview again. Learned single Judge, therefore, directed that the respondent be regularized in the service of the appellant university in the existing vacancy without further subjecting her to interview and test. It was also made clear that she will not be entitled to arrears of scale of pay up to 30.01.1996. Questioning the aforesaid order, the appellant university has preferred the present writ appeal. 5. This appeal was earlier heard by a Division Bench of this court on 08.04.2002 and following its earlier decision in W.A.No.621 of 2000 dated 13.03.2002, the Division Bench dismissed the writ appeal. 6. The appellant university preferred Special Leave Petition (Civil) No.6066 of 2003 and the Honourable Supreme Court by order dated 01.04.2005 set aside the said judgment of the Division Bench dated 08.04.2002 by observing that deeper consideration on merits of the appeal is required and remanded the writ appeal to this Court for fresh decision. The said order of the Honourable Supreme Court covered the other SLP’s also, which includes the judgment of the same Division Bench in allowing WP.No.15478 of 1999 dated 08.04.2002. By the aforesaid common order of the Supreme Court, the judgment of the Division Bench dated 08.04.2002 allowing the writ petition was also set aside and the writ petition was also remanded for fresh decision to this Court. The writ appeal and writ petition are thus listed before us for fresh consideration and are disposed of by this common order. 7. So far as facts in WP.No.15478 of 1999 are concerned, they are similar to those in the writ appeal referred to above. The petitioner in this writ petition also holds the qualification of MA and was appointed in a leave vacancy on daily wage basis vide order dated 19.10.1990 at Rs.25/- per day for a period of three months in the same Model High School of the appellant university and further under orders dated 30.03.1991 she has been working temporarily on a consolidated pay of Rs.1,000/- per month in a leave vacancy and continued likewise for various period up to the date of filing of the writ petition. She also claimed that she made several representations for seeking regularization but no steps are taken and after finding that some other teacher is regularized, she had filed the present writ petition seeking regularization as well as scale of pay. 8. Apparently, this writ petition is filed after WP.No.1424 of 1996, referred to in the above writ appeal was filed by a colleague teacher of the petitioner herein was allowed by this Court. This writ petition is contested by the appellant university by filing similar counter affidavit and also claiming that the petitioner is not entitled to regularization in terms of G.O.Ms.No.212 dated 22.04.1994. As mentioned above, this writ petition was also allowed by the Division Bench on 08.04.2002 but the said order was set aside by the Honourable Supreme Court and the writ petition was remanded for decision afresh. 9. Heard Mr. Deepak Bhattacharjee, learned counsel for the appellant university and Mr. Praveen Vyapari and Mr. N. Usha Kiran, learned counsel appearing for the respective teachers in both these matters. 10. At the outset, learned counsel for the appellant university has submitted that the main relief of regularization, which is sought for by both the teachers in these matters, now stands covered against them in view of the decision of the Supreme Court in A. MANJULA BHASHINI v. THE MANAGING DIRECTOR, AP WOMEN’S COOPERATIVE FINANCE CORPORATION LTD[1]. 11. The aforesaid decision of the Honourable Supreme Court has considered the Andhra Pradesh (Regularization of Appointments to Public Services and Rationalization of Staff Pattern and Pay Structure) Act, 1994 (hereinafter referred to as AP Act 2 of 1994) as amended by Amendment Act Nos.3 and 27 of 1998. The Supreme Court also considered G.O.Ms.No.212 Finance & Planning (FW.PC.III) Department dated 22.04.1994 and G.O. (P).No.112 Finance & Planning (FW.PC.III) Department dated 23.07.1997 and held that the aforesaid claim of regularization under the said GO’s being one time measure and not a continuing scheme with a cut off date 25.11.1993 for seeking eligibility under the aforesaid scheme, the said scheme was upheld. Thus, in view of the aforesaid decision only those persons who fulfill the requirement either under G.O.Ms.No.212 dated 22.04.1994 or G.O.(P).No.112 dated 23.07.1997 alone could stand insulated against the rigour of Section 7 of the AP Act 2 of 1994. The operative portion of the decision of the Honourable Supreme Court in Para 43 is necessary to be noticed and the same is extracted as under: “43. 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, 3752, 3753, 3754 and 3755 of 2006) are allowed. The declaration made by the Division Bench that the ban on regularization will be effective from 19.08.1988 i.e. the date on which Act No.27of 1998 came into force and that all persons who have completed 5 years 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 regularized and their services shall be regularized subject to fulfillment 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 Padesh, its officers and agencies/instrumentalities of the State to complete the exercise for regularization of the services of the 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.” 12. The list of dates regarding appointment of the respondent in the writ appeal and the petitioner in the writ petition show that while the respondent in the appeal was appointed in a leave vacancy on 30.10.1989, the writ petitioner in the writ petition above was appointed in a leave vacancy on 30.03.1991. The definition of daily wage employee under Section 2(ii) of AP Act 2 of 1994 covers the case of both the teachers. The said definition is as follows: “2(ii) ‘daily wage employee’ means any person who is employed in any public service on the basis of payment on daily wages and includes a person employed on the basis of nominal muster roll or consolidated pay either, on full-time or part-time or piece rate basis or as a workcharged employee and any other similar category of employees by whatever designation called other than those who are selected and appointed in a sanctioned post in accordance with the relevant rules on a regular basis.” Similarly, Sections 3 and 7 of the AP Act 2 of 1994 prohibit the regularization of such employees. The said provisions are also extracted as under: “3. Prohibition of daily wage appointments and regulation of temporary appointments. – (1) The appointment of any person in any public service to any post, in any class, category or grade as a daily wage employee is hereby prohibited. (2) No temporary appointment shall be made in any public service to any post, in any class, category or grade without the prior permission of the contempt authority and without the name of the concerned candidate being sponsored by the Employment Exchange.” “7. Bar of regularization of services. – No person who is a daily wage employee and no person who is appointed on a temporary basis under Section 3 and is continuing as such at the commencement of the Act shall have or shall be deemed ever to have a right to claim for regularization of services on any ground whatsoever and the services of such person shall be liable to be terminated at any time without any notice and without assigning any reason: Provided that in the case of Workmen falling within the scope of Section 25-F of the Industrial Disputes Act, 1947, one month’s wages and such compensation as would be payable under the said section shall be paid in case of termination of services: Provided further that nothing in this section shall apply to the Workmen governed by Chapter V-B of the Industrial Disputes Act, 1947. Explanation. – For the removal of doubts it is hereby declared that the termination of services under this section shall not be deemed to be dismissal or removal from service within the meaning of Article 311 of the Constitution or any other relevant law providing for the dismissal or removal of employees but shall only amount to termination simpliciter, not amounting to any punishment.” 13. Thus, in order to seek regularization the employees must qualify by fulfilling the conditions under G.O.Ms.No.212 dated 22.04.1994 or G.O. (P).No.112 dated 23.07.1997, whichever is applicable. One of the primary conditions under either of the GO’s being the fulfillment of requirement of minimum period of service as of 25.11.1993 being 5 years and 10 years respectively, the respondent as well as the writ petitioner in these matters do not fulfill the said primary requirement, keeping in view that the respondent in the appeal is working only from 30.10.1989 whereas the writ petitioner in the writ petition is working from 30.03.1991. Since either of them do not fulfill the primary requirement under the aforesaid GO’s neither of them can claim regularization. Therefore, the relief sought for in both the writ petitions being misconceived and contrary to the aforesaid legal position, the writ appeal deserves to be allowed and the writ petition deserves to be dismissed. 14. However, before parting with the case one of the contentions raised on behalf of both the teachers needs to be answered. It was contended on their behalf that another teacher by name Smt. B.K. Rama Devi was regularized under G.O.Ms.No.212 dated 22.04.1994 and SLP.No.11058 of 2002 was disposed by the Honourable Supreme Court by taking note of the said regularization. The teachers in the present cases also seek a similar relief. The said contention, however, is also not sustainable in view of the factual distinction between the case of Smt. B.K. Rama Devi and the present cases. The decision of the Division Bench of this Court in W.A.No.621 of 2000 dated 13.03.2002 (reported in [2002 (3) ALD 271 (DB)]) has noticed that the said Smt. B.K. Rama Devi was appointed as Telugu Gr.II Teacher on temporary basis vide proceedings dated 19.05.1985 and she reported for duty on 09.10.1985 and has been working, as such, since then. The said teacher, therefore, fulfills the requirement of minimum period of service of five years under G.O.Ms.No.212 dated 22.04.1994 referred to above. She was, therefore, rightly regularized in terms of the said GO. The respondent in the writ appeal and the writ petitioner in the writ petition in the present cases cannot claim parity with her in seeking regularization. In the result, the writ appeal, therefore, is allowed and WP.No.1424 of 1996 shall stand dismissed. Similarly, WP.No.15478 of 1999 also shall stand dismissed. There shall be no order as to costs. _______________ A. GOPAL REDDY, J _____________________ VILAS V. AFZULPURKAR, J March 5, 2010 DSK [1] 2009 (5) ALD 58 (SC)