THE HONOURABLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO:14655 of 2005 & W.P.M.P.NO:23063 OF 2011 DATED:13.07.2011 BETWEEN: J.LINGAIAH & OTHERS …PETITIONERS AND THE GOVT OF AP REP BY ITS SECRETARY & OTHERS. …RESPONDENTS. THIS COURT MADE THE FOLLOWING: THE HONOURABLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO:14655 of 2005 & W.P.M.P.NO:23063 OF 2011 ORDER: This writ petition is filed by the petitioners seeking for issuance of writ of mandamus to declare the action of the respondents in not regularizing their services as illegal, arbitrary and unjust and consequently, to direct the respondents to regularize their services. The case of the petitioners is that the respondent-municipality was initially notified as Ramagundam Notified Area Committee in the year 1982 and the said notified area consisted of 92 square kilometers wherein 7 Gram panchayats and 7 Revenue villages are located. The Municipal Committee decided to remove the garbage and waste materials from the above notified area by engaging the bullock carts. The purpose of engaging bullock carts in the area is that it is very convenient to move through the narrow by-lines all over the notified area for removal of garbage and waste material. All the petitioners are working as N.M.Rs (contract garbage cleaners) are cleaning the drainage and lifting the garbage by using the bullock carts. Their working hours are from 5 A.M to 10 A.M and 2 P.M. to 5 P.M. All the petitioners have been engaged since 1982 i.e., since the date of formation of notified area committee. The further case of the petitioners is that Ramagundam Notified Area was converted into Municipality in the year 1996-97. But, the nature of duties of the petitioners has not been changed. Though the nomenclaure used by the respondent is contract basis, the petitioners are being paid Rs.2,500/- p.m. by the Municipality. There are about 40 similarly situated permanent workers in the respondent and apart from the permanent employees, the petitioners who are 32 in number are working along with them. Their attendance is being taken by the Sanitary Inspector and they are working in a perennial in nature of work without break in service. Though they are working in a permanent post, they are being continued on contract basis since 1982 and they are being paid the minimum wages in the name of contractor. Even then, for the reasons best known to the respondent, they are being less than the minimum wages and apart from that, their services are not being regularized. Therefore, they filed the writ petition. The 4th respondent filed the counter contending it is true that the then Notified Area Committee, Ramagundam engaged 32 bullock carts for removal of garbage on hire basis. The drivers of the bullock carts were the owners of bullock carts and they used to lift the garbage and silt removed from the drain accumulated by the regular public health workers of the notified area. The notified Area Committee paid the hire charges of bullock carts (which was included the charges of man power) on monthly basis basing on the performance of each bullock cart. It is not true that the petitioners who were engaged themselves by the Municipality swept the roads and drains. Even after the conversion of the Notified Area Committee into Municipality, the services of bullock carts were continued on hire basis up to the year 1999. Due to the development of town, the lifting of garbage by bullock carts proved to be impracticable. The petitioners who hired the bullock carts were suggested to purchase the Auto Trollies instead of bullock carts by way of utilizing the facility of loan under S.J. S.R.Y Scheme. The petitioners accepted the suggestion offered by the then Chair person and purchased 16 Auto Trollies with the subsidy of Rs.2,40,000/- under S.J. S.R.Y Scheme and Bank loan. With a view to facilitate them to repay the bank loan regularly, the then Council vide its resolution No:123, dated 26.9.1999 engaged 16 numbers of Autoi Trollies along with two persons said to be the owners of each trolley. Joint accounts in favour of two persons for each trolley were opened in State Bank of Hyderabad, Laxminagar Branch and the Municipality arranged monthly payment relating to 16 trolleys directly by issuing cheque in favour of the Bank Manager for deposit of amount of the respective Bank accounts. The Bank Manager after deducting the loan installment of Rs.2,000/- for each trolley as per the terms and conditions of loan, deposited the remaining amount to each account of respective trolley towards their remuneration. The payment thus made was based on the performance of each trolley in a month. The amount paid to each trolley was enhanced from time to time with the approval of Council and the period of engagement in Municipality for lift of the garbage in the town was also extended. The period of agreement of the engagement of 16 Auto Trolleys, ended on 30.9.2004 as per the Council Resolution and all the loan amounts sanctioned to them by the Bank for the purchase of Auto trolleys was cleared off. Meanwhile, 31 Auto Drivers approached the Municipality requesting to use their services as sanitary labours on contract basis for sanitation in the town on the ground that the major amount of remuneration paid to them is being spent for attending the repairs of their dilapidated vehicles. The Council in its resolution No:103, dated 28.2.2005 considered the request of 31 petitioners (one died) on a monthly payment of Rs.2,500/- for each labour on contract basis for a period starting from 1.10.2004 to 31.3.2005 and that the services of the petitioners are not being utilized from 31.3.2005. Therefore, the petitioners are not entitled to claim any benefit much less absorption of their services as public health labourers and consequently, the writ petition is liable to be dismissed. Pending the writ petition, the petitioners have filed W.P.M.P.No:23063 of 2011 along with certain material, seeking a direction to the respondents to consider their case for regularization of their services in view of G.O.Ms.No:212, dated 22.4.1994 and in pursuance of the judgments of Apex Court. Heard the learned counsel on either side and perused the material available on record. Placing reliance on the proceedings of the Chairman, Notified Area Committee, dated 20.9.1989, it is submitted by the learned counsel for the petitioners that the services of the petitioners have been converted into N.M.Rs and they have been working as such and the certificate issued by the Commissioner, Ramagundam Municipal Corporation clarifies that the petitioners are working in Ramagundam Municipal Corporation as on date and as such, the averment made in the counter to the effect that the services of the petitioners have been dispensed with from 31.3.2005, is not correct and therefore, the petitioners are entitled for regularization of their services. The point for consideration is as to whether the petitioners are entitled for the relief as sought for in the writ petition. The petitioners have also filed W.P.M.P.23063 of 2011 along with certain documents, seeking a direction to the respondents to consider their case for regularization of their services in view of G.O.ms.No:212, dated 22.4.1994 and in pursuance of the judgments of the Supreme Court. The learned counsel for the petitioners would submit that though the petitioners are termed as the contract labourers, but they are working as labourers in the respondent-municipality and they are being paid the wages, but less than the minimum wages. He would submit further that the Government issued G.O.Ms.No:212, dated 22.4.1994 contemplating the scheme for regularization subject to fulfillment of certain conditions laid down therein and all the petitioners have fulfilled the conditions as stipulated under the said G.O and therefore, they are entitled for regularization of their services. In support of his contention, the learned counsel placed reliance on the judgment of the Apex Court reported in A MANJULA BHASHINI VS. A.P. WOMEN’S CO OP FINANCE CORPORATION LIMITED ([1]) wherein it is laid down at paragraphs-100, 101 and 102 thus: “A reading of paras 54, 67, 68 and 72 of the impugned judgment shows that even though the Division Bench did not find the cut off date i.e., 25.11.1993 specified in the first proviso to section 7 for determining the eligibility of daily wage employees for regularization to be arbitrary, irrational or discriminatory, yet it changed the said date from 25.11.1993 to 19.8.1998 solely on the premise that Act 27 of 1998 was enforced with effect from that date. In our view, once the Division Bench negatived the challenge to the validity of Acts 3 and 27 of 1998, there was no warrant for altering the date of eligibility specified in the first proviso to section 7 of the 1994 Act and thereby extend the zone of eligibility of daily wage employees who could be considered for regularization. As a corollary, we hold that the declaration made by the Division Bench that all persons who completed 5 years service as on the date of coming into force of Act 27 of 1998 would be entitled to be considered for regularization 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 of 2007, 3709, 3710, 3721, 3733, 3734, 3737, 3742, 3744, 3748, 3749, 3724, 3725- 32, 3750 and 3752-55 of 2006) are allowed. The declaration made by the Division Bench that the ban on regularization 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 regularization 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 so far, shall be entitled to be considered for regularization and their services shall be regularized subject to fulfillment of the conditions enumerated in the G.O. dated 22.4.1994.” The learned counsel for the petitioners would submit that the petitioners are entitled for regularization of their services in terms of G.O.Ms.No:212. On the other hand, it is contended by the learned counsel for the respondent that the petitioners are working in the municipality only on contract basis and apart from that, their services have been dispensed with, with effect from 31.3.2005 and therefore, the question of regularization does not arise. At this stage, placing reliance on the proceedings of the Chairman, Notified Area Committee, Ramagundam in Roc.No:BN1/1039/89, dated 20.9.1989, it is submitted by the learned counsel for the petitioners that the petitioners who are termed as bullock cart workers are converted into N.M.Rs. and the wages are being paid to them on S.S.R rates raising from time to time and therefore, the contention of the learned counsel appearing for the Municipality that the petitioners are working on contract basis, cannot be sustained. It is relevant to go through the proceedings of the Chairman, Notified Area Committee, Ramagundam in Proceedings Roc.No:B1/1039/89, dated 20.9.1989, which reads as under: “Sub:Establishment-Ramagumdam Notified Area Committee-conversion of bullock cart workers for lifting garbage in the town in the to N.M.Rs.-Orders Issued. The following Bullock Cart workers are working to lift the garbage in the town on monthly rental basis as detailed below: 1.Thokala Rayamallu 16.Thokala Odelu 2.Manda Ramulu 17.Jillala Mallesh 3.Ankilla Ravi 18.Chilumula Rayamallu 4.Kadasi Gattaiah 19.Vadluri Posham 5.Kampelli Narayana 20.Janagam Lingaiah 6.Chanti Rajaiah 21.Beerneni Erraiah. 7.Gangi Laxmaiah 22.Kalegura Posham 8.Thandra Chinna Sammaiah 23.Nallala Odelu 9.Ankilla Sammaiah 24.Janagam Posham 10.Jillala Posham 25.Enagala Saraiah 11.Nallala Rayamallu 26.Elpula Chendraiah 12.Thandra Pedda Sammaiah 27.Rodda Komuraiah 13.Manthini Laxmaiah 28.Ramilla Rajaiah. 14.Bolli Rajaiah 29.G.Lingaiah. 15.Thandra Pocham 30.Kampelli Bhoomaiah. The above bullock cart workers are converted into N.M.Rs. Notified Area Committee and the wages are being paid to the above workers on S.S.R rate raised from time to time.” The above proceedings makes it clear that the individuals mentioned therein, who are the petitioners herein are the bullock cart workers to lift the garbage in the town on monthly rental basis and they are converted into N.M.Rs and the wages are being paid to the above workers on S.S.R rate raised from time to time. The statement issued by the Commissioner of Ramagundam Municipality in Roc.No:C/808/2007, dated 20.2.2008 makes it crystal clear that the petitioners are working as N.M.Rs and therefore, the contention of the respondents that the services of the petitioners have been dispensed with from the year 2005 cannot be sustained. In the light of the principles laid down by the Apex Court in the above decision (citation-1) supra coupled with the fact that the petitioners are converted as N.M.Rs and working as such since a long time, without expressing any opinion on the merits of the case, I feel it just and proper to direct the respondents to consider the case of the petitioners for regularization of their services in terms of G.O.Ms.No:212, dated 22.4.1994, within a period of two (2) months from the date of receipt of a copy of this order. With the above direction, this writ petition and the W.P.M.P are disposed of. No order as to the costs. _________________ Justice G.Chandraiah. Date:13.07.2011 Gurc. THE HONOURABLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION NO:14655 of 2005 & W.P.M.P.NO:23063 OF 2011 DATED:13.07.2011 [1] (2009) 8 SCC 431