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Judgment
The case of the petitioners, precisely, according to the writ affidavit, is that they have been serving in the establishment of respondent No. 3- Water and Land Management Training and Research Institute (WALAMTARI), a registered society declared as an autonomous body, fully funded and controlled, by the State Government, in various permanent and essential posts. The petitioners comprise Mr. P. Ashok Kumar, appointed as L.V. Driver on 01.06.1991; Smt. A. Shankaramma, appointed as W. Mazdoor on 01.06.1990; P. Pentamma, appointed as W. Mazdoor on 01.12.1988; H.P. Sarma, appointed as Gurka/Watchman on 01.07.1989; M. Veeraiah, appointed as Watchman on 01.11.1992; G. Subba Raju, appointed as Electrician/Driver on 01.02.1989; M. Venkatesam, appointed as L.V. Driver on 02.01.1989; P. Srinivas, appointed as M. Mazdoor on 02.01.1989; and P. Sridhar, appointed as Work Inspector on 01.05.1989. They state that each of them has rendered continuous and uninterrupted service from the respective dates of appointment without any break and has been performing duties of a permanent and continuous nature.
The petitioners allege that although they have been paid the time scales attached to their respective posts, they continue to be treated as NMR/work-charged/daily wage employees instead of permanent employees. They assert that they have been denied consequential service benefits available to regular employees, including Arogya Sri, GPF, LIC, and other attendant benefits, despite having rendered long years of continuous service. The petitioners are apprehensive that such continued classification as temporary employees until their retirement would seriously prejudice their career.
The petitioners contend that despite the judgment dated 25.09.1997 in W.P. No. 28096 of 1996 (the writ affidavit also refers to W.P. No. 28093 of 1996 in relation to the earlier proceedings), wherein this Court directed consideration of their claim for regularization, the respondents have failed to implement the said directions for more than two decades. The petitioners therefore seek regularization of their services with effect from 25.09.1997, conversion from work-charged/NMR status to permanent employees, payment of regular salaries attached to their respective posts, and all consequential service benefits.
The petitioners further contend that the inaction of Respondent No. 3 in failing to regularize their services despite the judgment dated 25.09.1997 is illegal, arbitrary, unjust, and contrary to public policy. They allege that the respondents have deliberately ignored the binding directions issued by this Hon'ble Court for more than two decades, without any justification. The petitioners further assert that the respondents have acted discriminatorily by refusing to treat them on par with permanent employees despite discharging identical duties and responsibilities. On these grounds, the petitioners seek a writ directing the respondents to regularize their services from 25.09.1997, absorb them as permanent employees instead of work-charged/NMR employees, extend regular pay and all consequential service benefits.
A counter affidavit has been filed by the 3rd respondent, essentially contending that the judgment of this Court in W.P. No. 28093 of 1996 dated 25.09.1997, did not confer an unconditional right to regularization. It is contended that the Court directed that regularization could be considered only if there existed a clear vacancy, the employee was within the prescribed age limit at the time of initial appointment, and possessed the requisite qualifications prescribed under the applicable rules. The respondent therefore submits that the petition deserves to be dismissed as the petitioners do not satisfy the statutory conditions governing regularization.
It is contended that, in compliance with the judgment dated 25.09.1997 in W.P. No. 28093 of 1996, the 3rd respondent-WALAMTARI forwarded proposals to the erstwhile Government of Andhra Pradesh through Letter dated 21.06.2004, followed by a further communication dated 11.04.2005, placing the relevant facts before the Government for consideration of the petitioners' cases. According to the respondent, the Government examined the proposals but rejected the proposals, vide Memo dated 30.07.2005 on the ground that the petitioners had not completed the mandatory five years of continuous service as on 25.11.1993, which was the basic eligibility criterion for regularization under the A.P. (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure), 1994 (Act 2 of 1994). It is therefore contended that rejection of regularization proposals was the decision of the Government, and there was no inaction on the part of 3rd respondent as alleged by the petitioners.
Referring to G.O.Ms. No. 212 dated 22.04.1994, it is contended that only Daily Wage, NMR or consolidated-pay employees who had completed a minimum of five years of continuous service and were continuing in service on 25.11.1993 could be considered for regularization, subject to additional conditions. These conditions include possession of the prescribed qualifications, eligibility with respect to age at the time of appointment, compliance with the rule of reservation, relaxation of Employment Exchange sponsorship, and availability of clear vacancies. In the case of work-charged establishments, where permanent vacancies do not ordinarily exist, such employees could be adjusted only against available Last Grade Service vacancies in other departments. The respondent contends that none of these statutory requirements can be ignored and that the petitioners admittedly failed to satisfy the essential criterion of completing five years of service by 25.11.1993.
The respondent also invokes Section 7 of Act 2 of 1994, contending that a daily wager or temporary employee has no vested or deemed right to seek regularization and that such services are liable to be terminated without notice or assigning any reason. It is further stated that WALAMTARI became an autonomous body registered under the Societies Act with effect from 01.04.1993, receives funding from the State Government, and follows the Government Rules governing recruitment and regularization. Nevertheless, the 3rd respondent submits that WALAMTARI has been paying the petitioners the same initial salary as employees holding similar posts and performing identical duties, thereby complying with the applicable judicial directions regarding pay parity.
Relying on the official records, the 3rd respondent contends that the correct dates of appointment, and designations of the petitioners are: P. Ashok Kumar, L.V. Driver, entered WALAMTARI on 01.06.1991; Smt. A. Shankaramma, W. Mazdoor, on 01.09.1993 instead of 01.06.1990 as claimed by the petitioners; Smt. P. Pentamma, W. Mazdoor, on 01.12.1988; H.P. Sharma, Gurkha Watchman, on 01.07.1989; M. Veeraiah, Watchman, on 01.01.1993 instead of 01.11.1992; G. Subba Raju, Auto Electrician, on 01.02.1989 instead of Electrician/Driver; M. Venkatesh, Helper, on 05.08.1989 instead of L.V. Driver appointed on 02.01.1989; P. Srinivas, M. Mazdoor, on 02.01.1989; and P. Sridhar, Work Inspector, on 01.05.1989. The respondent asserts that the petitioners have misstated these particulars in order to support their claim for regularization.
The respondent further explains that under a bilateral aid programme, the Government of the Netherlands, through DHV Consultancy, a private foreign agency, provided technical assistance for the Production Management Unit (PMU), which functioned from the premises of WALAMTARI. Upon closure of the PMU, the equipment and vehicles were transferred to WALAMTARI in accordance with the agreement between the Governments of India and the Netherlands, while the staff engaged by DHV Consultancy were disengaged. According to the respondent, some of those individuals, including certain petitioners, were engaged by WALAMTARI only as and when their services were required. Consequently, the respondent asserts that the period spent under DHV Consultancy cannot be treated as Government service and cannot be counted for determining eligibility for regularization under G.O.Ms. No. 212 dated 22.04.1994.
It is stated that the Government, through Memo dated 12.02.1992, directed the Director General, WALAMTARI, to disengage eight NMR employees who had neither completed five years of service nor were protected by pending writ petitions. In compliance, WALAMTARI issued Memo dated 20.03.1992, giving one month's notice for termination of the services of the employees at Serial Nos. 7 and 9 with effect from 23.04.1992 (afternoon). Those employees challenged the action by filing W.P. No. 4791 of 1992, and this Court, following its earlier decision in W.P. No. 3031 of 1988 and batch dated 15.04.1993, quashed the termination orders. Pursuant to that judgment, WALAMTARI implemented the direction requiring payment of the same initial salary to employees with two years of service performing identical duties with effect from August 1993. Thereafter, the Government framed the regularization scheme through G.O.Ms. No. 212 dated 22.04.1994, and WALAMTARI submitted proposals by Letter dated 05.08.1994. The Government thereafter issued proceedings including G.O. No. 42028/Ser.V.2/94-4 dated 02.12.1994, G.O. Rt. No. 1060 dated 05.10.1994, and Memo dated 30.07.2005, under which only those daily wage workers who had completed five years of service as on 25.11.1993 were regularized, while the remaining employees, including the petitioners, were found ineligible. The services of eligible daily wage workers were accordingly converted into the work-charged establishment through Proceedings dated 13.10.1994 and 03.12.1994.
It is contended that the petitioners' non-regularization was only due to the Government's application of the statutory eligibility criteria under Act 2 of 1994 and G.O.Ms. No. 212 dated 22.04.1994, and not from any deliberate inaction or arbitrariness on the part of 3rd respondent- WALAMTARI.
The 3rd respondent further contends that the petitioners cannot claim regularization merely because they have rendered long service, as the length of service neither overrides the statutory requirements, nor confers a legal right prohibited by Section 7 of Act 2 of 1994. The respondent further contends that the petitioners have furnished incorrect particulars regarding their appointments and have suppressed material facts relating to their eligibility, thereby disentitling them to any discretionary relief. On these grounds, the respondent prays that the writ petition be dismissed.
Heard Mr. P. Ravi Shankar, learned counsel for the petitioners, and Mrs. Annapurna, learned Assistant Government Pleader for Services-I, appearing for the respondents. Perused the record.
At the outset, it is an admitted fact borne out by the record that some of the petitioners were appointed as far back as 1988, 1989, 1990 etc. The Government has formulated a Regularisation Scheme under G.O. Ms. No. 212, Finance and Planning Department, dated 22.04.1994, proposing to regularize the services of those individuals who have completed five years of service by 25.11.1993, and who satisfied the prescribed age and qualification criteria at the time of appointment.
The petitioners herein, on earlier occasion, filed W.P. No. 28093 of 1996 before this Court, challenging the action of respondent-Government in not regularizing their services under the said G.O. Ms. No. 212, dated 22.04.1994. This Court, by Order dated 25.09.1997, allowed the writ petition by observing that there should be clear vacancy against which the petitioners could be absorbed, and they should be within the age limit on the date they initially joined the service, apart from possessing the prescribed qualifications as per the Rules. Further, with regard to vacancies are concerned, this Court had also observed, based on the particulars in para No.3 of the Reply Affidavit dated 20.06.1997 filed by the petitioners, there were five vacancies of Work Inspector Grade-IV, three vacancies of H.V. Driver, six vacancies of L.V. Driver, eight vacancies of W. Mazdoor, and nine vacancies of Watchman; and that therefore there was no impediment for absorption of the petitioners in regular cadre for which they were eligible to be appointed.
Pursuant to Order passed by this Court in W.P. No. 28093 of 1996, dated 25.09.1997, the 3rd respondent has addressed a letter to the 1st Government, vide Letter No. DG/WAL/W/PEU/WC/SA/28093/96-2004 dated 21.06.2004, for absorption of the petitioners, in compliance with the orders passed by this Court.
In reply to the letter of the 3rd respondent, dated 21.06.2004, the 1st respondent-Government issued a Memo No.41639/Ser.V(1)/2002-6 dated 30.07.2005, stating as follows:
"The attention of the Director General, WALAMTARI, Hyderabad is invited to the references cited, and he is informed that the basic criteria for regularization as per G.O.Ms.No. 212 F&P Department Dt.22-04-1994 under Act 2/94, is completion of 5 years service as on 25-11-1993, inter-alia other conditions. The 14 daily wage workers have not completed 5 years of service as on 25-11-1993. Therefore the cases under references cited cannot be considered for regularization as per G.O.MS. No. 212 Dt. 22-4-1994.
2.Government after careful examination of the proposal in the references cited hereby reject the same.
3.The Director General, WALAMTARI, is therefore requested to issue speaking orders in the matter and inform to the individuals."
The grievance of the petitioners lies in a narrow compass. Admittedly, they were engaged in a daily wage/NMR capacity in the years 1988, 1989 etc. Their cases for regularization were not considered by the Government under G.O.Ms. No. 212, dated 22.04.1994, on the ground that they have not completed 5 years of service as of 25.11.1993.
In this connection, it is to be noted that the Hon'ble Supreme Court in Jaggo vs. Union of India1, wherein the apex Court, by referring to State of Karnataka vs. Umadevi2, held as follows:
"26.While the judgment in Umadevi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long-serving employees. This judgment aimed to distinguish between "illegal" and "irregular" appointments. It categorically held that employees in irregular appointments, who were engaged in duly sanctioned posts and had served continuously for more than ten years, should be considered for regularization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to indiscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Umadevi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective application distorts the judgment's spirit and purpose, effectively weaponizing it against employees who have rendered indispensable services over decades.
27.In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a temporary basis for extended periods, especially when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the country."
Further, in Shripal v. Nagar Nigam, Ghaziabad3, the Hon'ble Supreme Court dealt with a case where the workmen therein had been engaged as Gardeners (Malis) since around 1998 - 1999 and continuously performed municipal horticulture functions such as maintaining parks and public spaces under the direct supervision of the Nagar Nigam. Their work was perennial and integral to the municipality, and not seasonal. Despite this, they were kept on daily wages, denied statutory benefits, and not regularized. The Court held that requiring them to perform the same duties as regular gardeners while keeping them on inferior terms amounted to an unfair labour practice. The Hon’ble Supreme Court held as follows:
“15.It is manifest that the Appellant Workmen continuously rendered their services over several years, sometimes spanning more than a decade. Even if certain muster rolls were not produced in full, the Employer’s failure to furnish such records – despite directions to do so – allows an adverse inference under well-established labour jurisprudence. Indian labour law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature. Morally and legally, workers who fulfil ongoing municipal requirements year after year cannot be dismissed summarily as dispensable, particularly in the absence of a genuine contractor agreement. At this juncture, it would be appropriate to recall the broader critique of indefinite “temporary” employment practices as done by a recent judgment of this court in Jaggo v. Union of India1 in the following paragraphs:
“22.The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers’ rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmental operations.”
In Madan Singh v. State of Haryana4, the Hon’ble Supreme Court, by referring to State of Karnataka v. M.L. Kesari5, held that pursuant to the one-time measure granted in Umadevi (supra) for regularization, certain departments were still in the process of regularising, and therefore it is a sort of continuous process until all the persons who are intended to benefit under the orders in Umadevi (supra) are to be identified and their cases are processed. The Hon’ble Supreme Court held as follows:
“19.Much emphasis has been placed on the aspect that despite the policy of regularisation being required to be undertaken as an “one time measure” as enunciated in paragraph 44 of the decision in Umadevi (supra), the State Government sought to undertake this exercise of regularisation belatedly and in a perpetual manner. In this regard, we may usefully refer to observations of this Court in M L Kesari (supra) wherein this aspect has been clarified. In paragraphs 5 to 8 of the said decision, it has been held as under:
“5.It is evident from the above that there is an exception to the general principles against ‘regularization’ enunciated in Umadevi, if the following conditions are fulfilled:
(i)The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii)The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
(iii)Umadevi casts a duty upon the concerned Government or instrumentality, to take steps to regularize the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi, directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10.4.2006).
6.The term 'one-time measure' has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi, each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularize their services.
7.At the end of six months from the date of decision in Umadevi, cases of several daily-wage/ad-hoc/casual employees were still pending before Courts. Consequently, several departments and instrumentalities did not commence the one-time regularization process. On the other hand, some Government departments or instrumentalities undertook the one-time exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of Para 53 of the decision in Umadevi, will not lose their right to be considered for regularization, merely because the onetime exercise was completed without considering their cases, or because the six month period mentioned in para 53 of Umadevi has expired. The one-time exercise should consider all daily-wage/adhoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi, but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 53 of Umadevi, are so considered.
The object behind the said direction in para 53 of Umadevi is two-fold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi was rendered, are considered for regularization in view of their long service. Second is to ensure that the departments/instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad-hoc/casual for long periods and then periodically regularize them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularization. The fact that the employer has not undertaken such exercise of regularization within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularization in terms of the above directions in Umadevi as a one-time measure."
Viewed in the light of the aforesaid judgments, in the instant case, admittedly the petitioners have been continuing in the 3rd respondent-WALAMTARI since 1988, 1989 etc., on daily wage basis. Admittedly they have completed close to two decades of temporary service by 2006, which is the date of Umadevi (supra) judgment, and therefore they are undeniably covered by the orders passed in Umadevi (supra). The respondent authorities cannot eternally continue the petitioners in a temporary capacity as daily wagers, and cannot deny the service benefits. Therefore, as held in Jaggo (supra), and Madan Singh (supra) the petitioners are legally entitled to regularization of their services.
Further, with regard to the date of regularization, it is relevant to note the law laid down by the Hon'ble Supreme Court, in a similar case concerning regularization, namely, B. Srinivasulu v. Nellore Municipal Corporation6, and District Collector v. M.L. Singh7.
B. Srinivasulu (supra) is a case where the employees working under the Nellore Municipal Corporation, approached the Andhra Pradesh Administrative Tribunal, by filing O.A. No. 9177 of 2011, aggrieved by the action of the Municipal Corporation, in not regularizing their services under G.O. Ms. No. 212 dated 22.04.1994. The Tribunal allowed the O.A., by order dated 01.12.2011., by observing as follows:
"In these circumstances, as the issue involved in this O.A., is squarely covered by the Orders in O.A.No.8095/2008, dated 19.1.2011 and as the applicants are entitled for regularization of service w.e.f. 16.9.1992, 19.9.1992, 14.6.1993 and 4.6.1993 on which date they completed Five years of continuous service as per G.O. Ms.No.212, Finance and Planning Department, dated 22.4.1994, the respondents are directed to regularize the services of the applicants with effect from 16.9.1992, 19.9.1992, 14.6.1993 and 4.6.1993. But the applicants are not entitled for arrears of pay and they are only eligible for notional fixation of pay and seniority. The respondents are directed to issue orders, as per the above directions, within a period of four weeks from the date of receipt of this Order."
The respondent-Corporation challenged the order passed by the Tribunal, by filing W.P. No. 11852 of 2012 before this Court. The writ petition was dismissed by Order dated 25.04.2012. The Corporation then filed Review W.P.M.P. No. 10968 of 2013. In the review petition, this Court passed Order dated 03.04.2014 modifying the relief as follows:
"Considering the facts and circumstances of the case, we direct the review petitioner/Corporation to regularize the services of the unofficial respondents/applicants from the date of filing of the Original Applications i.e. on 27.11.2011 for the purpose of fixation of pay and notional without any monetary benefits subject to availability of vacancies."
Challenging the Order dated 03.04.2014 passed by this Court in Review W.P.M.P. No. 10968 of 2013 (in WP No. 11852 of 2012), the employees approached the Hon’ble Supreme Court by filing Special Leave Petition (Civil) No. 12432 of 2014. The Hon’ble Supreme Court, by Order dated 17.08.2015, allowed the petition by directing as follows:
“In the circumstances, refusing the benefit of the above mentioned G.O. on the ground that the appellants approached the Tribunal belatedly, in our opinion, is not justified. In the circumstances, the appeal is allowed modifying the order under appeal by directing that the appellants’ services be regularised with effect from the date of their completing their five year continuous service as was laid down by this Court in District Collector/Chairperson & Others vs. M.L. Singh & Ors. 2009 (8) SCC 480.”
Considering the judgment in Umadevi (supra), wherein the Hon’ble Supreme Court directed for regularization of temporary workmen who completed ten years by the date of the judgment, the eligibility of the petitioners as on 10.04.2006 (the date of judgment in Umadevi (supra)) cannot be disputed. Therefore, the petitioners are entitled to regularization with effect from 10.04.2006 onwards.
Further, it is settled law as per the judgment of Hon’ble Division Bench of this Court in State of A.P. v. M. Raja Rao8 and the Hon’ble Division Bench of High Court of A.P. in State of A.P. v. L.B.M. Krishna9, wherein it was held that the service rendered prior to regularization shall be counted towards qualifying service for pension and retirement benefits.
Therefore, the period of service rendered by the petitioners from their respective dates of appointment (as recorded in their service records), until 10.04.2006, shall be counted towards qualifying service for pension and retirement benefits.
Accordingly, the writ petition is allowed, by directing the respondent No.1 to pass appropriate orders, within two weeks from today, regularising the services of the petitioners with effect from 10.04.2006 onwards. The petitioners shall be entitled to only notional benefits from 10.04.2006 until the date of regularization orders, and they would be entitled to actual monetary benefits from the date of regularization orders. The past services rendered by the petitioners from their respective dates of appointment (as per their service records) until 10.04.2006, shall be counted towards qualifying service for pension and retirement benefits. No costs. Miscellaneous petitions pending, if any, shall stand closed.