IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 15413 of 2001 Between: The Commissioner, Tirupathi Municipality, Tirupathi, Chittoor District. ..... PETITIONER AND 1 The State of A.P., Rep. Secretary. Municipal Administration and urban Development Dept., Secretariat, Hyderabad. 2 The Secretary. Finance and Planning Dept., Secretariat Building, Hyderabad. 3 The Commissioner and Director of Municipal Administration, MCH Complex, 4th Floor, Hyderabad. 4 G.Srinivasulu, S/o. Doraswamy. R/o. Tirupathi Town, Chittoor District. 5 K.Bathaiah, S/o. Narayana Swamy. R/o. Tirupathi Town, Chittoor District. 6 P.Murali Krishna, S/o. Govindaiah. R/o. Tirupathi Town, Chittoor District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ, Order or direction more in the nature of Writ of Certiorari calling for the records relating to O.A.No.2224/2000 on the file of the Hon'ble A.P. Administrative Tribunal and allowing the Judgement passed in O.A.No.2224/2000 dated 27/02/2001 as illegal, arbitrary and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.S.I.NEWTON Counsel for the Respondent No.: GP FOR MUNCIPAL ADMN. & URBAN DEV. The Court made the following : THE HON’BLE Mr. JUSTICE GHULAM MOHAMMED AND THE HON’BLE Mr. JUSTICE G. BHAVANI PRASAD W.P. NO.15413 of 2001 ORDER : ( Per HON’BLE Mr. JUSTICE GHULAM MOHAMMED ) This Writ Petition has been filed challenging the order dated 27-2-2001 in O.A.No.2224 of 2000 passed by the Andhra Pradesh State Admnistrative Tribunal, Hyderabad. Brief facts of the case leading to filing of this writ petition are that the respondents 4 and 5 were engaged as NMRs’ on daily wage basis with effect from 1-3-1983. The 6th respondent was also engaged as works Maistry on daily wage basis. While so, the respondents 4 and 5 were terminated from service and therefore they approached the Labour Court, Anantapur vide ID Nos.66 and 72 of 1995. The Labour Court vide its order dated 18-2-1998 directed the authorities to reinstate the respondents 4 and 5 into service. Aggrieved by the order of Labour Court, the petitioner-Municipality filed W.P.Nos.28242 of 1998 and 28231 of 1998 before this Court and the said Writ Petitions were ultimately dismissed by this Court by order dated 27-7-2000. Subsequently, the respondents 4 to 6 have filed the instant O.A.No.2224 of 2000 before the Tribunal seeking direction to regularize their services in terms of G.O.Ms.No.1320 dated 15-12-1981 and G.O.Ms.No.121 dated 18-10-1989 from the date of completion of 5 years of service with all consequential benefits. The Tribunal following the judgment in Writ Petition No.7175 of 1997 and batch, disposed of the O.A. with the following directions : “ Thus, we direct the respondents to regularize the services of all the applicants who fulfil the conditions incorporated in G.O.Ms.No.212 dated 22-4-1994 and G.O.Ms.No.12 dated 23-7-1997 irrespective of the fact whether they complete 5/10 years of service as on 25- 11-1993 provided they were in service as on the said cut- off date and without insisting for existence of clear vacancy. To be more specific, we direct the respondents to consider the cases of all the applicants who were appointed prior to 25.11.1993 and who completed 5/10 years of service as full time of part-time employees for regularization as and when they complete the said period of service. The above exercise shall be completed within a period of six months from the date of receipt of a copy of this order. We further direct the respondents to effect payment of salaries to the applicants in the pay scale attached to the posts and pay arrears of salary from this date (27.2.2001). The above exercise shall be completed within a period of three months from the date of receipt of a copy of this order.” Being aggrieved by the said order, the present writ petition has been filed by the respondent-Municipality. This Court while admitting the writ petition by its order dated 31-7-2001 in WPMP NO.19283 of 2001 has suspended the operation of the judgment dated 27-2-2001 passed in O.A.No.2224 of 2000 by the Tribunal. Subsequently, WVMP No.1241 of 2004 was filed by the respondents 4 to 6 herein, and this Court by its order dated 31-1-2005 modified the order of suspension directing the authorities to pay the salary in the minimum time scale applicable to the last grade employees with effect from 1-1-2004. Questioning the said order dated 31-1- 2005 passed in WVMP No.1241 of 2004, the petitioner Municipality filed SLP No.13049-13050 of 2005 before the Hon’ble Supreme Court. The Supreme Court, after hearing both the parties, by its order dated 22-1-2007 has set aside the interim order and directed to hear the main Writ Petition for disposal. The relevant portion of the order reads as under : “ …. Learned counsel for the appellants, relying upon the decision of a Constitution Bench of this Court in Secretary, STAte of Karnataka & Ors. V. Uma Devi ( 2006 (4) SCC 1 ) contended that no such order could have been passed by the High Court, particularly, at the interim stage when the matter is pending by granting virtually the final relief which was sought by the respondents herein. Learned counsel for the respondents, on the other hand, contended that several such orders have been passed and our attention has been invited to some of the orders passed in similar circumstances in which relief was granted. In our opinion, it would be appropriate if in the light of the law laid down in Uma Devi’s case ( supra), the High Court finally decides the matter and passes appropriate order. The appeal is, accordingly, allowed, interim order passed by the High Court is set aside. All contentions of the parties are kept open. The High Court is requested to take up the matter and dispose of the same as expeditiously as possible, preferably within three months today.” Learned Standing Counsel appearing on behalf of the petitioner-Municipality contends that the applicants, respondents 4 to 6 herein, were not recruited by any recruiting agency by following the selection process, and that posts were not sanctioned by the authority, the applicants are therefore not entitled for regularization of their services. On the other hand, learned counsel for the respondents, while supporting the judgment of the Tribunal contends that in view of the scheme framed by the Government vide G.O.Ms.No.212 dated 22.4.1994, the cases of the respondents 4 to 6 have to be considered and therefore no interference is warranted in the impugned order passed by the Tribunal. In SECRETARY, STATE OF KARNATAKA AND OTHERS v UMA DEVI ( (2006 (4) SCC 1 ), the Apex Court held as follows : “ ….. IT is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court, has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. ( 41 ) IT is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14,15 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by Article 21 of the constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality. ( 42 ) THE argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39 (a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of state Policy have also to be reconciled with the rights available to the citizen under Part iii of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.”… As stated above, initially the respondents 4 and 5 have approached the Labour Court challenging the termination order passed by the petitioner-Municipality and the termination order was set aside holding that the respondents 4 and 5 are entitled for reinstatement into service. Questioning the order of reinstatement passed by the Labour Court, the petitioner- Municipality on earlier occasion filed Writ Petition No.28242 and 28231 of 1998 before this Court and the same were dismissed upholding the order of reinstatement of respondents 4 and 5 into service. Later on respondents 4 to 6 have filed the instant O.A. seeking regularization of their services as per G.O.Ms.No.212 dated 22.4.1994 and the same was disposed of following the judgment of this Court in Writ Petition No.7175 of 1997 and batch dated 23.2.2001. Considering the above circumstances, we do not find any ground to interfere with the order passed by the Tribunal insofar as directing the respondents therein to examine the case of the respondents 4 to 6 herein for regularization of their services in terms of the orders in Writ Petition No.7175 of 1997 and batch dated 23.2.2001. It is also made clear that the authorities shall consider the cases of the respondents 4 to 6, sympathetically, by passing appropriate orders and communicate the same to them, within a period of three months from the date of receipt of a copy of this order. However, the impugned order passed by the Tribunal insofar as granting of time scale of pay is concerned the same is impermissible and hence it is set aside. Subject to above directions, the writ petition stands disposed of. No costs. _____________ GM, J _________ GBP, J 22-9-2008 KK 165 THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 15413 of 2001 22-9-2008