THE HON’BLE SRI JUSTICE V. ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.No.22241 of 2009 ORDER: (Per Hon’ble Sri Justice V. Eswaraiah) Aggrieved by the order of the A.P.Administrative Tribunal, Hyderabad, dated 09-09-2009, dismissing O.A.No.4808 of 2005 filed by the petitioner- the applicant before the Tribunal, filed this writ of Certiorari to set aside the said order of the Tribunal as well as the consequential order, dated 08-10-2009. The petitioner filed the said O.A. before the Tribunal seeking the relief of regularisation of his services as Work Inspector, based on the policy laid down by the Government in G.O.Ms.No.212, dated 22-04- 1994, and also based on the earlier judgments of this court. The Tribunal, after considering the facts and circumstances of the case, dismissed the said O.A. vide its order, dated 09-09-2009. Thereafter, the Mandal Parishad Development Officer-4th respondent herein passed order, dated 08-10-2009, removing the petitioner from service in view of the note file of the President, Mandal Parishad as well as the order of the Tribunal in the said O.A. We are of the prima facie opinion that the said termination order, dated 08-10-2009, cannot be questioned in this writ petition directly without questioning the same in the first instance before the Tribunal. The learned counsel for the petitioner contended that the removal order is only consequential order, pursuant to dismissal of O.A., particularly in view of the findings made in the O.A. that the petitioner did not complete five years of service as he entered into service only in the year 1990 and, therefore, he is not entitled for regularisation of his services. However, the Tribunal observed that the respondents therein are at liberty to continue the services of the petitioner as Work Inspector on daily wage basis or contract basis as long as his services are required in the Department. A perusal of the termination order, dated 08-10-2009, refers to various letters including the order of the Tribunal, dated 09-09-2009, and the note file of the President, Mandal Parishad, dated 08- 10-2009. It is stated that the President, Mandal Parisad, sent a note file to remove the petitioner from service and accordingly, the petitioner was removed from service by order, dated 08-10-2009. Various contentions have been advanced by the learned counsel appearing for the petitioner stating that while the juniors of the petitioners were permitted to continue in service, his services were erroneously removed. The learned counsel further stated that the petitioner is entitled for regularisation of his services taking into consideration of his left over service and his present age with all consequential benefits. It is further stated that Act 2 of 1994 as amended by Act 3 and 27 of 1998 does not confer any power to the appointing authorities to remove the services of daily wage workers, N.M.Rs. etc., who are appointed prior to 25-11-1993, even if they are not eligible for regularization. We are unable to accept the said contention in view of the aforesaid Act 2 of 1994 as amended by Act Nos.3 and 27 of 1998. A.P. (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure), Act 1994 (Act 2 of 1994) came into force with effect from 25-11-1993, the date on which the Ordinance was enforced. As per Section 3 of the Act 2 of 1994, there is a total prohibition of appointment of daily wage employees either part time or full time. But, any appointment shall be made in accordance with the provisions of the said Act. Section 7 of the Act 2 of 1994 reads as follows:- “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 this 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 reasons. 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.” Section 7 of the Act 2 of 1994 was amended by Section 3 of Act 3 of 1998, which reads as follows:- “(a) in the opening paragraph for the expression, “Section 3 and”, the expression, “Section 3 and no present who” shall be substituted; (b) in the first proviso, for the words “provided that,” the words “provided also that” and in the second proviso, for the words “provided further that”, the words “provided also that” shall respectively be substituted; (c) after the opening paragraph and before the first proviso so amended, the following provisions shall be inserted, namely; “provided that the services of a person, ‘who worked on daily wage/NMR/Consolidated Pay/Contingent worker on full time basis continuously for a minimum period of five years and is continuing as such on the date of the commencement of the Act shall be regularised in accordance with the scheme formulated in G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated the 22nd April, 1994; Provided further that the services of a person who worked on part-time basis continuously for a minimum period of ten years and in continuing as such on the date of the commencement of this Act shall be regularized in accordance with the scheme formulated in G.O.(P).112, Finance & Planning (FW.PC.III) Department, dated the 23rd July, 1997.” As per the substitution, no person, who is a daily wage employee and no person, who is appointed on a temporary basis under Section 3 and no person, who is continuing as such at the commencement of the Act, shall have any right to claim for regularisation of his services on any ground and the services of such persons shall be liable to be terminated at any time without any notice and without assigning any reasons. But, for appointment and continuation of services, a scheme has been formulated under G.O.Ms.No.212, Finance & Planning (FW.PC.III) Department, dated 22.4.1994 and G.O.(P).No.112, Finance & Planning (FW.PC.III) Department, dated 23-07-1997. These two schemes of regularisation were given statutory basis by enacting an Amendment Act 3 of 1998 by adding provisos to Section 7 of the Principal Act. Section 7 of Act 2 of 1994 was further amended by Section 4 of Act 27 of 1998, which reads as follows:- “provided that the services of those persons continuing as on the 25th November, 1993 having completed a continuous minimum period of five years of service on or before 25th November, 1993 either on daily wage or nominal muster roll, or consolidated pay or as a contingent worker on full time basis, shall be regularized in substantive vacancies, if they were otherwise qualified fulfilling the other conditions stipulated in the scheme formulated in G.O.Ms.No.212, Finance and Planning (FW.PC.III) Department dated the 22nd April, 1994.” After Section 7 of the Act 2 of 1994, new Section 7(A) was inserted by Act 27 of 1998, which reads as follows:- “7A(1) Notwithstanding any Government order, judgment, decree or order of any Court, Tribunal or other authority, no person shall claim for regularisation of service under the first proviso to Section 7 as it was incorporated by the Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure (Amendment) Act, 1998. (2) No suit or other proceedings shall be maintained or continued in any Court, Tribunal or other authority against the Government or any person or other authority whatsoever for regularisation of services and all such pending proceedings shall abate forthwith; (3) No Court shall enforce any decree or order directing the Government or any person or other authority whatsoever for regularisation of services.” Learned counsel for the petitioner submits that no doubt the constitutional validity of Act 2 of 1994 as amended by Acts 3 and 27 of 1998 was upheld by the Hon’ble Apex Court in A.MANJULA BHASHINI AND OTHERS Vs. M.D. A.P.WOMEN’S CO-OPERATIVE FINANCE CORPORATION LIMITED[1] and following the same, this court also disposed of various writ petitions relating to regularisation of services alone, but not the cases relating to termination of services, as none of the cases dealing with the termination of services did arise. Learned counsel for the petitioner submits that regularisation of services is different and distinct from continuation of service. Even though some of them are not entitled for regularisation for non- completion of five years of service as on cut off date i.e. 25- 11-1993, they are continuing without fulfilling the conditions stipulated in G.O.Ms.No.212, dated 22-04-1994 or G.O.(P).No.112, as the case may be. Admittedly, the petitioner herein was appointed with effect from 03-03-1990 as NMR on daily wage basis and the learned counsel for the petitioner fairly concedes that he has not completed five years of service as on cut off date I e. 25-11-1993. The learned counsel stated that though the petitioner is not entitled for regularisation, his services cannot be terminated. When NMR worker is not entitled for regularisation, as per Section 7 of Act 2 of 1994 as amended, the services of the daily wage employee is liable to be terminated at any time without any notice and without assigning any reasons. If there is any requirement of daily wage employee, it is for the employer to decide whether such daily wage employee is required to be continued or liable to be terminated. If there is no requirement, the question of continuation of services does not arise because Section 7 of the Act prohibits continuation of such daily wage employees in service. It is not in dispute that the Supreme Court upheld the Act 2 of 1994 as amended by Act Nos.3 and 27 of 1998 and policy of the Government in G.O.Ms.No.212 was only intended to be one time measure for regularisation of services of persons, who have completed five years of service as on 25-11-1993 and the policy of the said G.O. is not entitled to be nullified or override the judgment of the DISTRICT COLLECTOR Vs. M.L.SINGH[2] and various judgments of the apex court in STATE OF HARYANA Vs. PIARA SINGH[3], GOVERNMENT OF A.P. Vs. H.M.T. LIMITED[4], INDIAN ALUMINIUM COMPANY Vs. STATE OF KERALA[5] etc., and in none of the aforesaid cases, the Supreme Court considered and issued akin to the one explained in MANJULA’S case (1 supra) and, therefore, the prohibition of law laid down in the said case cannot be relied upon for entertaining the claim of the daily wage employee for regularisation. Accordingly, the amendments made to Act 2 of 1994 by Act 3 and 27 of 1998 are being upheld. It is also just and proper to extract the operative portion of the judgment reported in MANJULA’S case (1 supra) which reads as follows:- “The question which remains to be considered is whether the Division Bench was justified in holding that all daily wage employees who completed 5 years service on the date of enforcement of Act No.27 of 1998, i.e., 19-08-1998 would be entitled to be considered for regularisation of their services. A reading of paragraphs 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 first proviso to Section 7 for determining the eligibility of daily wage employees for regularisation to be arbitrary, irrational or discriminatory, yet it changed the said date from 25-11-1993 to 19-08-1998 solely on the premise that Act No.27 of 1998 was enforced with effect from that date. In our view, once the Division Bench negatived the challenge to the validity of Act Nos.3 of 1998 and 27 of 1998, there was no warrant for altering the date of eligibility specified in 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 regularisation. As a corollary, we hold that the declaration made by the Division Bench that all persons who completed five years service as on the date of coming into force of Act No.27 of 1998 would be entitled to be considered for regularisation 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 to 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 to 3718, 3723, 3724, 3726 to 3732, 3750, 3752, 3753, 3754 and 3755 of 2006) are allowed. The declaration made by the Division Bench that the ban on regularisation will be effective from 19-08-1998 i.e., the date on which Act No.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 G.O. dated 22-04-1994. With a view to obviate further litigation on this issue, we direct the Government of Andhra Pradesh, its officers and agencies/instrumentalities of the State to complete the exercise for regularisation of the services of 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.” The learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in STATE OF KARNATAKA Vs. UMA DEVI[6]. We are of the opinion that the facts and circumstances of that case are totally different and district from that of the present case and therefore, the same cannot be looked into. Learned counsel for the petitioner does not dispute that the petitioner is not entitled for regularisation as he has not fulfilled minimum five years of service as on 25-11-1993 as per G.O.Ms.No.212. Since his case before the Tribunal was only for regularisation, the Tribunal is not justified in making an observation that the respondents are at liberty to continue the services of the petitioner as Work Inspector on daily wage basis on contract basis as long as his services were required in the Department. We are of the opinion that the said observations are strictly in conformity with the provisions of Section 7 of Act 3 of 1998. Even in the absence of the said observation, it is open for the employer to terminate services of daily wage worker, who is not entitled for regularisation. When the daily wage worker is not entitled for regularisation, it cannot be said that he has right to continue as daily wage worker. Irrespective of any aforesaid observations made by the Tribunal, Section 7 of Act 1994 would apply and, therefore, the petitioner is liable to be terminated at any time by the employer without assigning any reasons. Therefore, it cannot be said that the aforesaid observations of the Tribunal are in violation of Section 7 of the Act 1994. We are also of the opinion that if the services of the daily wage workers are no more required, the question of continuing them on daily wage basis or contract basis does not arise if they are not eligible for regularisation. Learned counsel for the petitioner has placed various correspondences made within the Department relating to regularisation of services. We are of the opinion that after the judgment of the Apex Court reported in MANJULA’S case (1 supra), those correspondences relating to either regularisation or payment of minimum scales, cannot be looked into. In view of the aforesaid facts and circumstances of the case, we do not see any merits in the writ petition and the same is liable to be dismissed. Accordingly, the writ petition is dismissed. There shall be no order as to costs. ______________________ JUSTICE V. ESWARAIAH _____________________________ JUSTICE VILAS V. AFZULPURKAR Dated:26.10.2009 Prv [1] 2009 (5) ALD 58 (SC) [2] 1998 (2) ALT 5 (SC) [3] (1992) 4 SCC 118 [4] 1975 (2) SCC 274 [5] 1996 (7) SCC 637 [6] 2006 (4) SCC 1