THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR Writ Petition No.5608 OF 2011 21-03-2011 Between: Union of India, rep. by its Secretary, Ministry of Finance, New Delhi and others. ……….Petitioners And G.Govind Naidu and another. ………Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR Writ Petition No.5608 OF 2011 ORDER : (Per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed challenging the legality and validity of the order dated 30-11-2010 passed in O.A.No.566 of 2010 on the file of the Central Administrative Tribunal, Hyderabad (for brevity ‘the CAT”). 2. Brief facts of the case are that the 1st respondent was appointed as Sweeper in Central Excise Divisional Office, Tirupati, vide proceedings in C.No.II/3/5/01-Admn., dated 08-01-1992, issued by the Assistant Collector of Central Excise, Tirupathi Division, Tirupathi, wherein it is made clear that his appointment is purely temporary for a period of six months from 23-12-1991 onwards i.e. upto 22-06-1992, and he will not have any right for regularization in the department. Bur, however, since he was not granted temporary status, he filed O.A.No.765 of 2000 on the file of the CAT. The said O.A. was allowed. The petitioners challenged the order of the CAT by filing W.P.No.14987 of 2007 and the same was dismissed. On appeal, the Supreme Court also confirmed the same. Subsequently, the 2nd petitioner granted approval for grant of temporary status vide letter dated 05-01-2009. Thereafter, the 1st respondent made a representation to the 3rd petitioner to regularise his services. However, the 3rd petitioner rejected the request of the 1st respondent vide letter dated 05-03-2010 on the ground that he crossed the required age limit. Aggrieved by the same, the 1st respondent again approached the CAT and filed the present O.A. The CAT allowed the O.A. by its order dated 30-11-2010 directing the petitioners to regularize the services of the 1st respondent in Group-D post and pass appropriate order within a period of one month from the date of receipt of a copy of that order. Challenging the said order, the petitioners filed the present writ petition. 3. Heard the learned standing counsel appearing for the petitioners and Sri P.S.Rajasekhar, learned counsel for the 1st respondent and perused the material available on record. 4. The learned standing counsel for the petitioners contended that the 1st respondent was over aged at the time of his appointment and therefore, he cannot be appointed on regular basis as per Rules. He further contended that since there was no recruitment rules at the relevant point of time, the 1st respondent was appointed temporarily since he was sponsored by the Employment Exchange. Moreover, in the letter dated 08-01-1992, it was clearly mentioned that his appointment was purely on temporary basis and he would not have any right for regularization of his services in the department. Therefore, the learned counsel prays to set aside the order passed by the CAT. 5. Per contra, the learned counsel for the 1st respondent contended that the 1st respondent was initially appointed through regular process of selection and has completed above 20 years of service and therefore, he is entitled for regularization of his services. In support of his contention, he relied upon the judgment of the Supreme Court in Secretary, State of Karnataka and others Vs. Umadevi and others[1], wherein, it was held: “One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R. N. Nanjundappa (supra), and AIR 1967 SC 1071 AIR 1972 SC 1767 AIR 1979 SC 1676 @page-SC1827 B. N. Nagrajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.” The learned counsel has also drawn attention of this Court to the office memorandum issued by the Government of India, Ministry of Personnel, Public Grievances & Pentions, dated 11-12-2006, which reads as under: “The undersigned is directed to say that the instruactions for engagement of casual workers enunciated in this Department’s OM No.49014/2/86.Estt.(C), dated 7th June, 1988 as amplified from time to time, interalia provided that casual workers and persons on daily wages shouldnotbe recruited for work of regular nature. They could be engaged only for work of casual or seasonal or intermittent nature, or for work which isnot of full time nature for which regular post cannot be created. Attention is also invited to this Department’s OM No.28036/1/2001-Estt. (D), dated 23rd July 2001 wherein it wasprovided that no appointment shllb made on ad hoc basis by direct recruitment from open market. 2. A. Constitution bench of the Supreme Court Civil Appeal No.3595- 3612/1999 etc. in the case of Secretary State of Karnataka and Others Vs. Uma Devi and others has reinstated that any public appointment has to be in terms of the Constitutional scheme. However, the Supreme Court in para 44 of the aforesaid judgment dated 10-04-2006 has directed that the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure the services of such irregularity appointed, who are duly qualified persons in terms of the statutory recruitment rules for the post and who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or Tribunals. The Apex Court has clarified that if such appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. 3. Accordingly, the copy of the above judgment is forwarded to all Ministries/Departments for implementation of the aforesaid direction of the Supreme Court.” The learned counsel ultimately argued that at the time of interview, the 1st respondent, was below 35 years old and that his very appointment was made through regular process of selection, vide letter dated 08-01-1992 and that when he was already been granted temporary status under the scheme, there is no reason to deny regularization of his services. 6. After hearing for the learned counsel appearing on either side and on perusal of the impugned order, it is made clear that the appointment of the 1st respondent comes under the purview of scheme of 1993. Further, it is also to be noted that the 1st respondent was very much on rolls on the date of commencement of the scheme of 1993. It is also not in dispute that he had worked for more than 242 days as on 19-09-1993. Further, it is not denied by the petitioners that his appointment was made in 1992 and his services are being continued till this date. Therefore, the 1st respondent has been working for the last more than two decades. In this context, the contention of the petitioners that the 1st respondent is not entitled for regularization of his services since he was over aged cannot be accepted for the reason that the age limit is categorically mentioned in the ‘form of notification of vacancy’ as ’below 35 years as on 01-01-1991’. It is not in dispute that the applicant was 34 years when he was called for interview by the Collector vide order issued in the month of October 1991. Hence, the 1st respondent was within the age limit as prescribed in the notification at the time of his appointment. Since the 1st respondent is fully qualified and within the age as on the date of his appointment on temporary basis, he is entitled for regularization of his services. As such, the Tribunal rightly allowed the O.A. Therefore, the impugned order does not suffer from any illegality and the same is sustainable under the law. We do not find any infirmity legally or otherwise in the impugned order and the same deserves to be confirmed and accordingly confirmed. The writ petition is merit less and the same is liable to be dismissed. 7. In the result, the writ petition is dismissed. There shall be no order as to costs. _____________________________ JUSTICE GHULAM MOHAMMED Dated:21-03-2011 ________________________ JUSTICE K.G. SHANKAR Kvr [1] (2006) 4 S.C.C. 53