HON'BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NOS.15921 & 15938 OF 1999 Dated: 26.8.2010 Between: 1. K. Hari Krishna and others ..... PETITIONERS AND 1 The Government of A.P., rep.,by its Secretary Education Department, Secretariat, Hyderabad. .....RESPONDENTS The Court made the following : HON'BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NOS.15921 & 15938 OF 1999 COMMON ORDER: The petitioners, who are working as non-teaching staff in the respondent-society have filed these writ petitions seeking to issue a Writ of Mandamus declaring clause 7 of the scheme framed under paragraph 6 of G.O.Ms.No.98, dated 8.4.1993 and the consequential proceedings issued by the 2nd respondent in Rc.No.5984/C2-3/99, dated 14.6.1999 as illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India and consequently, to direct the respondents herein to regularize the services of the petitioners with effect from the date of their respective initial dates of appointment with all consequential and service benefits including pensionary benefits. Since the issue involved in both the writ petitions is one and the same, these writ petitions are being disposed of by this common order. As far as W.P. No.15921 of 1999 is concerned, there are three petitioners. The petitioners-1 to 3 were appointed on 2.1.1989, on 1.5.1988 and on 18.12.1987 respectively as typists. As far as W.P. No.15938 of 1999 is concerned, the 1st petitioner was engaged as an attender on 3.5.1990, 2nd petitioner was engaged on 1.6.1990 as a cook and 3rd petitioner was engaged on 1.6.1990 as a kitchen helper. Their services were regularized with effect from 29.6.1993 pursuant to G.O.Ms.No.98, dated 8.4.1993. Thereafter, the petitioners made a representation seeking for regularization of their services with effect from their initial appointment and the same was rejected by the 2nd respondent-society on 13.4.1993 and thereafter, the present writ petitions have been filed. The learned Counsel for the petitioners submitted that clause No.7 of paragraph No.6 of G.O.Ms.No.98, dated 8.4.1993 and also the proceedings in Rc.No.5984/C2-3/99, dated 14.6.1999 are bad, illegal and violative of Articles 14 and 21 of the Constitution of India. He submits that the petitioners had been engaged though on daily wage basis in the schools run by the 2nd respondent-society much before the date of their regularization, regularization of their services is given effect retrospectively from the date of their initial appointment and they will forgo the right of monetary benefits but their services can be counted for the purpose of seniority and service and pensionary benefits. He further submits that even though the petitioners are not entitled to any monetary benefits the services rendered by them from the date of initial appointment may be considered for continuity of service without any monetary benefits till date of regularization. In support of his contention, the learned Counsel placed reliance on the judgment reported in Rajbir Singh and others Vs. Union of India[1]; and Government of A.P., Education Department and another Vs. N. Garudeshwara Reddy and others[2]. On the other hand, the learned Standing Counsel appearing for the 2nd respondent-society submitted that all the petitioners were initially engaged on daily wage basis and pursuant to the direction given by this Court in W.P. filed by the petitioners, the respondents have initiated the process of regularization and in that process, the petitioners were subjected to necessary tests and the petitioners are found eligible for regularization and then the Government issued a G.O., pursuant to which, the services of the petitioners were regularized prospectively and therefore, the petitioners are not entitled to claim any right in respect of the services rendered by them on daily wage/adhoc basis as they were not subjected for any process of selection prior to their regularization and they are not entitled to seek for regularization of their services retrospectively and therefore, the writ petitions are liable to be dismissed. In support of his contention, the learned Standing Counsel placed reliance on the judgment rendered by the apex Court in Secretary, State of Karnataka and others Vs. Uma Devi and others[3] ; and State of Karnataka and others Vs. G.V. Chandrashekar[4]. Now, the points for consideration in these writ petitions are: (1) Whether clause 7 of paragraph No.6 of G.O.Ms.No.98 is bad, illegal and liable to be set aside on the ground of violation of Articles 14 and 21 of the Constitution of India; and so also the proceedings issued by the 2nd respondent-society dated 14.6.1999 is liable to be declared as bad, illegal and also violative of Articles 14 and 21 of the Constitution of India. (2) Whether the petitioners are entitled for regularization of their services retrospectively i.e., from the date of their initial engagement on daily wage/adhoc basis, or whether the date of regularization prospectively, which has already been done, is to be confirmed. For the purpose of considering these two issues, the action taken by the respondents and the process adopted by them for the purpose of regularization, are required to be considered. There is no dispute with regard to the date of initial engagement of the petitioners on daily wage basis and also the date of regularization. However, the following aspects are needed to be noticed: Some of the petitioners along with the petitioners in W.P.No.15921 of 1999 while working on daily wage basis, filed W.P.No.5459 of 1991 seeking the following prayer: “To issue a writ of mandamus declaring that the petitioners are entitled for regular absorption in their respective posts in N.L.V.R.G.S. Residential Vocational Junior College, Nimmakur Krishna District with all consequential benefits such as regularization of services, seniority and regular scale of pay on par with other counter parts discharging the same type of duties by declaring the action of the respondents in seeking to terminate their services for every 89 days and also during summer vacations as illegal, arbitrary, discriminatory and cannot be justified in the eye of law.” The case of the petitioners therein was that they had been in service of the 3rd respondent-school in various posts continuously from 1988 with break up service after every period of 89 days and that the services of the similar persons are regularized according to the various orders issued by the State Government and that the payment of lesser salary than that is paid to the regular employees, artificial break in service after every period of 89 days and non-employment during vacation amounts to arbitrariness on the part of the respondents. Therefore, they sought for a direction to treat them as having been regularly appointed in the posts they were holding in the 3rd respondent-school with consequential benefits such as regularization of service, seniority and regular scale of pay on par with their counter-parts discharging the same type of duties and a further direction not to terminate their services on completion of 89 days. Having regard to the facts of the said case, by order dated 18.4.1991, this Court disposed of the writ petition with the following direction: “I had occasion to deal with similar writ petitions and I have disposed them of in the light of the submissions made by the Government Pleader for Education that the process of regularization of services of non-teaching staff in the schools under the A.P. Residential Educational Institutions Society is under the active consideration of the State Government. The Government Pleader for Education repeats the same submission and states that a committee has been constituted for the purpose. In view of the above, it is not necessary for me to entertain this writ petition. I dispose of the same with a direction that the process of regularization of employees like the petitioners in the non-teaching staff of the 1st respondent- society shall be finalized before the commencement of the next academic year. There will be a further direction that till such time as regularization is finalized the respondents shall not employ any other person in place of the petitioners. If the petitioners have crossed the age limit while they were in temporary employment, relaxation of such age limit for purposes of regularization will also be duly considered. No costs.” Pursuant to the same, the Government issued G.O.Ms.No.98, dated 8.4.1993, which reads as under: “Certain non-teaching staff who were appointed on adhoc/daily wage basis in the Institutions under the control of A.P. Residential Educational Institutions Society, Hyderabad approached the High Court in W.Ps.No.1908/90, 5125/91 praying the High Court to direct the respondents to regularize their services since they have been working for many years. 2. On the above, the A.P. High Court directed the Government in W.P.No.1908/90 and 5125/91 as follows: “It is essential that the State Government decides on the question of regularization of services of adhoc/daily wage employees with long service at the earliest possible opportunity. There will be a direction that this should be done within a period of not exceeding 4 months from the date and time as final orders are passed, status quo as on today will continue. If any of the petitioners overaged now, the question and relaxation to the extent of the period of service rendered by them in adhoc/daily wage employment shall also be considered by the Government. The process of regularization of employees like the petitioners in non-teaching staff of the third respondent school shall be finalized before the commencement of the next academic year. There will be a further direction that till such time as regularization is finalized the respondents shall not employ any other persons have crossed the age limit while they were on temporary employment relaxation of such age limit for the purpose of regularization will also be duly considered.” 3. The question of regularization of the above employees have been examined as per the guidelines issued in G.O.Ms.No.193, G.A.(Ser.A) Department dated 14.3.1990 for regularization of the services of persons appointed on daily wages and the Government observe that the appointments of these employees do not come under the purview of the said G.O. and hence, these persons were not considered for regularization as per the guidelines issued in the said G.O. 4. Consequently, the individuals filed contempt case in C.C.No.193, 134 and 303/92 in the High Court contending that the Government have not implemented the above High Court direction issued in W.P.No.1908 of 1990 and W.P.No.5125 of 1991. 5. On the above, the A.P. High Court directed the Government to take a final decision on the regularization of the adhoc/daily wage based employees by 31.3.1993. 6. Government have again examined this issue of regularization of non-teaching staff appointed on adhoc/daily wage basis and working in the institutions under the control of A.P. Residential Educational Institutions Society, Hyderabad, in consultation with General Administration Department, Social Welfare Department, Finance Department keeping in view the orders of the High Court in the reference 1st and 2nd read above and also in view of the fact that the termination of services of all these employees would result dislocation of normal work in the institutions where they are employed. Government have since evolved the following scheme for regularizing the services of non-teaching staff appointed on adhoc/daily wage basis working in the institutions under the control of A.P. Residential Educational Institutions society, Hyderabad, subject to fulfillment of the following conditions: (1) The services of the existing adhoc/daily wage employees shall be considered for regularization to the extent number of vacancies available; (2) Only such adhoc/daily wage workers as are fully qualified for the posts currently occupied by them shall be considered for regularization. For this purpose, the qualifications prescribed by the Society in 1983 would be followed; (3) Since every institution is a unit of appointment in the society, the appointing authority shall notify the posts held by adhoc/daily wage employees as vacancies to the concerned Employment Exchange duly indicating the roster points for the posts as per rule of reservation. (4) The condition that employees should be recruited through Employment Exchange shall be waived for regularization of the qualified employees against the clear vacancies. (5) The age at the time of initial appointment of the said employees shall be reckoned as the qualifying age. (6) Rule of Reservation of various categories of posts reserved for SC, ST, BCs at their roster point fixed therein shall be strictly followed. Posts adjusting in institutions located in Scheduled areas shall be filled up only by persons belonging to STs. (7) Orders of regularization shall be issued by the concerned appointing authority. Regularization of the services of the daily wage/adhoc basis employees against regular vacancies shall only be prospective. (8) The services of all other candidates who do not fulfill the above conditions shall be liable for termination. (9) The regularization process in terms of this scheme shall be completed by 30.6.1993. (10) The qualified candidates to be regularized against clear vacancies shall be subjected to a minimum proficiency test held by a Committee consisting of Joint Collector as Chairman, concerned District Educational Officer as Member and the Principal of Residential School/College as Member-Convener. In respect of ministerial staff viz., Typists, Record Assistants and Junior Assistants etc., a subject matter expert shall also be associated. The function of this Committee is to ensure that the employees have minimum proficiency to perform the job. The Secretary, A.P. Residential Educational Institutions society shall bring these instructions to all the Unit Officers under his control and ensure that the instructions are followed scrupulously and expeditiously.” The petitioners have not challenged any of the conditions mentioned in the said G.O. except clause No.7 of paragraph No.6 of the G.O. which reads as under: “Orders of regularization shall be issued by the concerned appointing authority. Regularization of the services of the daily wage/adhoc basis employees against regular vacancies shall only be prospective.” Pursuant to the same, the 2nd respondent issued the proceedings in Rc.No.13000/C2-2/92, dated 13.4.1993 referring to G.O.Ms.No.98, Education (Prog.I) Department, dated 8.4.1993. It reads as hereunder: “A copy of the orders issued by the Government of Andhra Pradesh in the reference read above is herewith communicated to all the Principals of A.P. Residential Educational Institutions in the State with instructions to implement the Government Order and complete the process of regularization as enunciated in the Government Order by the date fixed by the Government.” Pursuant to the same, the services of the petitioners have been regularized by proceedings dated 29.6.1993, which reads as hereunder: “In pursuance of the orders issued in G.O.Ms.No.98, Education (Prog-I) Department, dated 8.4.1993 and in compliance with the proceedings Rc.No.A7.3983/93, dated 29.6.1993 of the District Level Selection Committee of Krishna District, Sri Kalapatapu Hari Krishna is appointed as Typist in N.L.V.R.G.S.R.V. Junior College, Nimmakur, Krishna District in the Scale of Pay of Rs.910-30-1240-35-1625 with usual allowances applicable as per the rules of A.P.R.E.I. Society (Regd.), Hyderabad. He/She is appointed against the post reserved for O.C. Category. These orders are purely temporary and is liable for termination at any time without assigning any reason or any prior notice. The candidate should report to the Principal on or before 30.6.1993, failing which the appointment order issued is liable for cancellation. He/She is requested to submit the following certificates to the Principal at the time of joining duty. 1. Original certificates of Educational Qualifications with marks lists. 2. Original Physical Fitness Certificate issued by the Medical Officer not below the rank of a Government Civil Surgeon. 3. Original Caste Certificate in the case of SC., ST., and B.Cs., only issued by the competent authority not below the rank of Mandal Revenue Officer. 4. Date of birth or age certificate where there is no formal education.” Similar proceedings have been issued to all the petitioners. Accepting the regularization, the petitioners continued their services, but thereafter, they made representations dated nil to the 2nd respondent-society seeking the following relief: “a) Counting the temporary service prior to regularization (with effect from the date of first appointment) for promotion scale 8/16 years, seniority, pension benefits etc., with monetary benefit/notional basis. b) Counting of temporary service from 12.6.1991 (i.e., this date is commencement of the next academic year after delivered the court order) for promotion scales of 8/16 years, seniority, pension benefits etc., with monetary benefit/notional basis which was as per the Hon’ble High Court’s direction mentioned in G.O.Ms.No.98, Education, dated 8.4.1993.” With reference to the said representation, the 2nd respondent-society issued the proceedings in Rc.No.5984/C2- 3/99, dated 14.6.1999 which reads as under: “In the reference 2nd cited, certain non-teaching staff members of A.P.R. Junior College, Nimmakuru, have submitted that their services were regularized terms of G.O. vide reference 1st cited during the year 1993. But the services of initial appointments were not considered. Hence they requested to consider the seniority of their Adhoc/Daily wages service for the benefits of promotion and pay scales etc. In view of the above, the Principal, A.P.R. Junior College, Nimmakuru, Krishna District is hereby informed that the Government have issued orders vide reference 1st cited for regularization of services of Non-teaching employees who are working on daily wage/adhoc as per the conditions laid down in the G.O. Hence the question of taking previous service worked on daily wage/adhoc services into consideration does not arise, since their services were regularized as per the G.O. cited.” Then, the present writ petition is filed in the year 1999. The main contention of the petitioners in the writ petition is that though their services were engaged on daily wage/adhoc basis against the existing vacancies since their services were not regularized they approached the Court seeking regularization of their services and that since the procedure that was adopted by the respondent-society was to make them to continue only for 89 days and thereafter to give an artificial break and postpone their services during summer vacation and as there is an indefinite situation in the service conditions of the petitioners, they were compelled to approach this Court seeking regularization of their services and till the date of regularization is made, their services shall not be terminated and that having regard to those conditions and in view of the submission made by the then learned Government Pleader that the aspect of regularization was under consideration., this Court by order dated 18.4.1991 in W.P.No.5459 of 1991 directed the respondents to finalize the process of regularization. As could be seen from G.O.Ms.No.98, dated 8.4.1993, which was issued by the Government pursuant to the directions given by this Court in W.P.No.1908/90, dated 30.7.1991 and W.P.No.5125/91, dated 26.4.1991, C.C.No.193,134 & 303 of 1992, dated 29.6.1992 and 22.6.1992 and also the proceedings in Rc.No.13000/92/C2.2/92, dated 11.1.1993, it appears that there is no lapse on the part of the respondents in initiating the proceedings for regularization of the services of the employees working in the 2nd respondent-society. In paragraph No.4 of the counter-affidavit filed by the 2nd respondent in W.P.No.15921 of 1999, it is stated that consequent to the disposal of WP No.5459 of 1991, as there were many such employees in different categories, the Government had to take a decision on that and it was only a procedural delay in getting the information regarding the different people to be regularized etc., and the Government have issued G.O.Ms.No.98, Education (Prog.I) Department, dated 8.4.1993 for regularization of the employees and that the recruitments were finalized as per the terms of the said G.O., and within the time stipulated by the said G.O., and that the actual process was followed only as per G.O.Ms.No.98, Education, dated 8.4.1993 since the matter is under consideration of the Government for taking a decision by the Government and hence, the regularization of the first petitioner has been allowed prospectively w.e.f. 29.6.1993 as per the said G.O. and not retrospectively. It is also stated that the Government have examined the issue of regularization of non- teaching staff appointed on adhoc/daily wage basis in the institutions under the control of APREI Society in consultation with General Administration Department, Social Welfare Department, Finance Department keeping in view the orders of this Court in similar cases filed by different adhoc/daily wage employees and also in view of the fact that the termination of services of all such employees would result dislocation of normal work in the institutions where they are employed. It is also stated that as a matter of fact, the Government have evolved a specific scheme for regularization of such employees subject to fulfillment of certain conditions. Accordingly, the Government have issued G.O.Ms.No.98, Education (Prog.I) Department, dated 8.4.1993 in which it was stated that the High Court of A.P. directed the Government to take a final decision on the regularization of the adhoc/daily wage based employees by 31.3.1993 and as directed by this Court, the Government have issued the above said G.O., and regularization process had been completed in respect of the petitioners within the stipulated time. This aspect has not been rebutted by the petitioners by filing any reply to that effect. One of the contentions of the petitioners is that while disposing of W.P.No.5459 of 1991 by order dated 18.4.1991 this Court directed the respondents to complete the process of regularization by next academic year, which would be completed by 18.4.1992, whereas the services of the petitioners have been regularized on 29.6.1993. From the sequence of the action taken by the respondents as narrated in the counter affidavit filed by the respondents as stated above, it appears that there is no delay on the part of the respondents-authorities in finalizing the process of regularization. The learned Standing Counsel for respondent No.2 submitted that without there being any delay, the services of the petitioners have been regularized after subjecting them for necessary selection process, but while they were initially appointed /engaged on daily wage/adhoc basis, they were never put for any selection process and therefore, their services prior to their regularization would amount to an illegal appointment, but however, having regard to the direction given by this Court to consider the services rendered by the petitioners along with other persons, the said common G.O., had been issued under G.O.Ms.No.98, dated 8.4.1993 wherein clause No.7 of paragraph No.6 stipulates that their services would be regularized prospectively, and pursuant to which, the services of the petitioners have been regularized. He contended that the petitioners’ claim for regularization of their services retrospectively is untenable under law. The learned Counsel for the petitioners submitted that though the petitioners may not be entitled for regularization retrospectively for monetary benefit, but their services can be counted for the purpose of seniority and service benefits and pensionary benefits. In support of which, he relied upon the judgment of the Apex Court in Raj Bir case (1st Supra). That was a case where the employees who were appointed against the substantive vacancy though on daily wage/adhoc basis claim the seniority from the date of their initial appointment. But in the instant case, the case of the petitioners is that it is not the seniority, which is claimed by the petitioners from their initial appointment, but their case is that they are entitled for regularization retrospectively from the date of initial engagement on daily wage/adhoc basis. Therefore, the facts of that case are different from the facts of the case on hand. Therefore, the said judgment has no application to the present case. He also relied upon the judgment rendered in Government of A.P., Education Department and another Vs. N. Garudeshwara Reddy and others ( 2 supra), at paragraph No.7 of the said judgment, which reads as under: “We allow the writ appeal and set aside the order of the learned single Judge and dismiss the writ petition. However, we make it very clear that consequent on the retirement of the writ petitioners while fixing their pension, it is trite, the appellant-authorities shall take into account the entire length of service put in by each one of the petitioners, including the service rendered by them anterior to 1.3.1991.” The petitioners in that case were claiming a right based on judgment of the Division Bench of this Court in WA No.642 of 1988, dated 8.3.1991. The contention was that since the judgment referred to above was not given effect for counting services of the petitioners for the purpose of service benefits, under