THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.17087 OF 2000 DATED SEPTEMBER, 2011 BETWEEN J.V.Saibabu …Petitioner And The Government of A.P. Municipal Administration, Represented by its Secretary, Secretariat, Hyderabad, and another. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.17087 OF 2000 O R D E R The services of the petitioner, a Record Assistant in the Kakinada Municipality, were regularized under G.O.Ms.No.172, Municipal Administration & Urban Development (G2) Department, dated 13.04.1999 with effect from the date of the G.O. Seeking regularization of his services from the date of his initial appointment on 04.03.1987, the petitioner filed the present case. The regularization of the petitioner’s services was effected in pursuance of G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated 22.04.1994, whereby a specific scheme was formulated for regularization of services of persons appointed on daily wage/NMR basis and who were continuing in service as on the date of commencement of the Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994 (for brevity, ‘the Act of 1994’). The essential condition to be satisfied by persons aspiring for regularization under the scheme was that they should have worked continuously for a minimum period of five years and should be continuing as on 25.11.1993, the date of commencement of the Act of 1994. Their absorption was to be against clear vacancies of posts, considered necessary to be continued as per the work-load. The petitioner was appointed on NMR/daily wage basis in the Engineering Section of the Kakinada Municipality on 04.03.1987. He was removed from service on 01.09.1989. Aggrieved thereby, he raised an industrial dispute under Section 2-A(2) of the Industrial Disputes Act, 1947 in I.D.No.51 of 1990 before the Industrial Tribunal-cum-Labour Court, Visakhapatnam. By Award dated 26.05.1993, the Labour Court directed his reinstatement in service with continuity of service from the date of his original appointment. The said Award was confirmed by this Court by order dated 29.06.2000 in W.P.No.16297 of 1993, which was disposed of with a batch of similar cases. Thus, for all practical purposes the petitioner is deemed to have been in the service of the Kakinada Municipality from 04.03.1987 onwards. He therefore satisfied the requirement of having completed five years in service by the cut-off date 25.11.1993 stipulated in G.O.Ms.No.212 dated 22.04.1994. He was accordingly regularized in service by way of the impugned G.O. but such regularization was given effect prospectively from the date of the G.O. Hence, this writ petition. In its counter, the Kakinada Municipality, raised a preliminary objection as to the maintainability of the writ petition on the ground that a notification under Section 15(3) of the Administrative Tribunals Act, 1985 (for brevity, ‘the Act of 1985’) was published in Part-I of the Extraordinary Gazette No.428 dated 11.11.1989 whereby the jurisdiction of the Tribunal constituted under the Act of 1985 was extended to employees of local authorities, including the Kakinada Municipality. The Municipality therefore contended that the petitioner would have to approach the A.P. Administrative Tribunal constituted under the Act of 1985 in the first instance. On facts, the Municipality tried to justify its action in regularizing the services of the petitioner prospectively from the date of impugned G.O. on the ground that there were no clear vacancies available to accommodate him prior thereto. In his reply, the petitioner disputed the stand of the Kakinada Municipality that there were no vacancies for regularizing his services from an anterior date. Reference was made to various proceedings and material in support of this averment. The Supreme Court had occasion to consider the Act of 1994 and G.O.Ms.No.212 dated 22.04.1994 in A.MANJULA BHASHINI V/s. MANAGING DIRECTOR, ANDHRA PRADESH WOMEN’S CO- OPERATIVE FINANCE CORPORATION LIMITED[1]. The observations of the Supreme Court, relevant for the purpose of this case, are as under: “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.” It is therefore clear that those who fulfill the requirements of G.O.Ms.No.212 dated 22.04.1994, having put in five years of service by 25.11.1993 would be entitled to regularization subject to the other conditions mentioned in the G.O. The petitioner admittedly completed five years of service before the stipulated cut-off date 25.11.1993. The issue however is as to whether there were any clear vacancies thereafter for regularizing him in service prior to the date of the impugned G.O. While that be the question on the merits of the case, the primary and preliminary issue that requires to be addressed by this Court is the very maintainability of the writ petition in view of the objection raised by the Kakinada Municipality. It is not in dispute that the provisions of the Act of 1985 were extended to Kakinada Municipality by way of a notification issued by the Government of Andhra Pradesh under Section 15(3) thereof. This notification was published as long back as on 11.11.1989. It is the settled legal position that it is not open to the litigants to directly approach the High Court by overlooking the concerned Tribunal constituted under the Act of 1985 in respect of matters falling within the jurisdiction of such Tribunal under the Act of 1985 [L.CHANDRA KUMAR v. UNION OF INDIA[2]]. It is no doubt true that there is no embargo as such upon the jurisdiction of this Court to exercise powers under Article 226 of the Constitution in such matters. But as pointed out in T.K.RANGARAJAN v. GOVERNMENT OF TAMIL NADU[3], it is only in very very exceptional circumstances that this Court would overlook the ratio laid down in L.CHANDRA KUMAR2 and entertain a writ petition directly. Sri A.Satya Prasad, learned senior counsel appearing for the petitioner, contended that the jurisdiction of this Court would not be excluded merely because an alternative remedy is available to the petitioner. Case law is relied upon in support of this proposition. There is no dispute that this Court’s jurisdiction under Article 226 of the Constitution is not fettered. However, in the light of the binding decision of the Supreme Court in L.CHANDRA KUMAR2, this Court would not in ordinary circumstances entertain a writ petition in respect of matters which fall within the ambit of the Tribunal constituted under the Act of 1985. It is no doubt true that the present writ petition was entertained over a decade ago and was kept pending on the file of this Court. However, the fact remains that the respondent Municipality raised the aspect of maintainability of the writ petition in its counter filed in the year 2001 itself but unfortunately, this aspect remained undecided till now. In the present case, though the dispute raised by the petitioner is more or less settled by the decision of the Supreme Court in A.MANJULA BHASHINI1, the fact remains that the petitioner still has to establish on evidence that clear vacancies existed prior to the issuance of the impugned G.O., whereby he could claim regularization in such vacancies from an anterior date. This exercise necessarily has to be undertaken by the Tribunal constituted under the Act of 1985 in the first instance. No exceptional circumstances are made out warranting circumvention of the procedure laid down by L.CHANDRA KUMAR2. It would therefore be necessary for the petitioner to approach the Tribunal and establish his case as indicated supra by adducing proper evidence. The Writ Petition is accordingly disposed of, granting liberty as aforestated to the petitioner. In the circumstances, there shall be no order as to costs. ---------------------------- SANJAY KUMAR, J. ________SEPTEMBER, 2011. PGS (PD) THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.17087 OF 2000 DATED SEPTEMBER, 2011 [1] (2009) 8 SCC 431 [2] AIR 1997 SC 1125 [3] (2003) 6 SCC 581