THE HON’BLE SRI JUSTICE D.S.R.VARMA and THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.A.No.583 OF 2009 ORDER: Per the Hon'ble Sri Justice Nooty Ramamohana Rao This Appeal is directed against the Judgment rendered by our learned brother Sri P.V. Sanjay Kumar,J, dismissing the W.P.No.20226 of 1999, instituted by the Appellant herein. The case of the Appellant is that, he was initially engaged on daily-wage basis as a Guard-cum-Peon with the Andhra Pradesh State Ware Housing Corporation (‘the Corporation’, for short), a public sector undertaking of the State of Andhra Pradesh, and that he was continuously working as such till 06-11-1986. When his services were terminated by the said Corporation on the ground that they are no longer required, the writ petitioner has raised an industrial dispute I.D.No.449 of 1987 and by an Award passed on 13-11-1989, the Labour Court, Guntur, directed for his reinstatement with continuity of service and with payment of 1/3rd of back wages. Thereafter, the writ petitioner has been reinstated into service. When the State Government passed Orders through their G.O.Ms.No.117, dated 19-02-1990, according permission to the public sector undertakings, including the respondent Corporation, to regularize the services of various categories of employees, his services were initially regularized with effect from 01-04-1991, but subsequently, his services have come to be regularized with effect from 19-02-1990, the date on which the State Government passed Orders, referred to supra. The claim of the writ petitioner-Appellant is that, his services ought to have been regularized with effect from 01-09-1987, on which date the services of as many as 58 similarly situated Guard-cum-Peons, were regularized by the respondent Corporation. It is contended by the respondent Corporation that the writ petitioner has been appointed on daily-wage basis with a specific condition that his services are liable to be terminated at any time, but however, the Corporation has also recruited at about the same time, 58 persons, who are all sponsored for such employment by the Employment Exchange by the State. The services of all those temporary Guard-cum-Peons, who have been selected upon being sponsored by the Employment Exchange, have been regularized on completion of one year service by them, with effect from 01-09-1987. Since, the writ petitioner is not one such candidate, who has been sponsored by the Employment Exchange, the respondent Corporation has denied to regularize his services with effect from 01-09-1987. It was also pointed out by the respondent Corporation that along with all other similarly situated candidates, the writ petitioner’s services were also regularized from 19-02-1990, the date on which the State Government announced its policy decision and thus no discrimination, whatsoever, has been caused to the case of the writ petitioner. In fact, the learned single Judge has put it on the ground that the retrospective regularization with effect from 01-09-1987, cannot be insisted upon by the candidate, who has not been recruited to the service of a public sector corporation after following the due process for such appointment. The learned single Judge very rightly relied upon the principle enunciated by the Supreme Court in SECRETARY, STATE OF KARNATAKA AND OTHERS v. UMA DEVI (3) AND OTHERS[1]. The learned counsel for the Appellant has strenuously contended that when all others’ services have been regularized with effect from 01-09-1987, the case of the writ petitioner also ought to have been regularized with effect from the same date, particularly, when the Labour Court has ordered the benefit of continuity of service while passing the Award in I.D.No.449 of 1987, raised by him. The learned counsel also drawn out attention that one other individual, bearing the name Abdul Sattar, was also similarly situated like that of the writ petitioner and that he was also appointed initially on daily-wage basis, but his services have been regularized with effect from 01-09-1987. The learned counsel for the Appellant, when we confronted him, is fair enough in admitting that such a contention has not been canvassed in the affidavit filed in support of the writ petition, but such a fact has been asserted in the reply affidavit filed to the counter affidavit filed by the respondent Corporation. We find it difficult to take, any such fact asserted in a reply affidavit, into account or consideration, for, the respondent Corporation had no opportunity, whatsoever, to controvert any such fact situation. We cannot with any sense of certainty say whether Sri Abdul Sattar, initially, appointed on daily-wage basis like that of the writ petitioner has, in fact, been subsequently, sponsored by the Employment Exchange or not. It is a pure question of fact that can be ascertained only from the record, provided, the respondent Corporation has an opportunity to meet such a case. Since, the respondent did not have any such opportunity, we cannot find fault with it for having not adverted to the same in the counter affidavit filed in the writ petition. Therefore, we will not be justified in taking into account or consideration this aspect of the matter, which is pleaded by the learned counsel for the Appellant. The fact remains that the services of the writ petitioner were initially regularized with effect from 01-04-1991, which was subsequently, updated to 19-02-1990, the date on which the policy decision of the State Government has been announced. He has kept quite for a number of years and he started agitating about his right to seek regularization with effect from 01-09- 1987, long subsequent thereto. Due to the delay that has occasioned in initiating the proceedings, the interests of others are likely to be affected or jeopardized. For the aforesaid reasons, we do not find any justification to interfere with the view taken by the learned single Judge and, therefore, the Appeal is dismissed as devoid of merits. No costs. -------------------- D.S.R.Varma, J --------------------------------- Nooty Ramamohana Rao, J mrk 19th January 2010 [1] (2006) 4 SCC 1