regularise the services of the applicant/first respondent notionally w.e.f. 25.11.1993 as per G.O.Ms.No. 212 dated 22.4.1994.- the regularization of the daily wage employees cannot be made with retrospective effect, but they are entitled to be considered as per the scheme of the Act in G.O.Ms.No.212 dated 22.4.1994 and G.O.P No. 112 dated 23.7.1997 for regularization from the date of issuance of the regularization order but not with retrospective effect i.e., from 25.11.1993. Therefore, the order of the Tribunal is unsustainable and liable to be set aside and accordingly the same is hereby set aside and the writ petition is allowed holding that the first respondent is entitled for regularization of his services from the date of issuance of the regularization order i.e., proceedings in R.O.C. No. 4598/2002/C1 dated 19.11.2010 but not with retrospective effect i.e., from 25.11.1993. No costs.


THE HON'BLE SRI JUSTICE V. ESWARAIAH AND THE HON'BLE SRI JUSTICE NOUSHAD ALI                

WRIT PETITION No.30408 of  2011  

06-08-2012

The Commissioner, Gudivada Municipality, Gudivada.

Medachinni Sitaramulu and others.

Counsel for the petitioner : Sri S. Nageswara Reddy

Counsel for Respondent No.1 : Sri B. Kamalakar Rao

Counsel for Respondent No.2 :  G.P. for Services-I.

< Gist:

> Head Note:

? Cases referred:
1. (2009) 8 SCC 480
2. (2009) 8 SCC 431

JUDGMENT : (Per Sri Justice V Eswaraiah)

        This writ petition is filed by the Commissioner of Gudivada Municipality,
Krishna District, assailing the order dated 13.6.2011 in O.A. No. 5463 of 2011
on the file of the A.P. Administrative Tribunal, Hydrabad (for short the
Tribunal).  The Original Application filed by the first respondent is allowed by
the Tribunal directing the respondents therein to regularise the services of the
applicant/first respondent notionally w.e.f. 25.11.1993 as per G.O.Ms.No. 212
dated 22.4.1994.  The writ petitioner is the third respondent in the O.A.
        2.      This Court while issuing notice before admission by order dated
17.2.2012 granted interim suspension.   The first respondent filed a vacate
petition in W.V.M.P. No. 1498 of 2012 to vacate the said interim order; however,
with the consent of the parties, the writ petition itself is taken up for
hearing.
        3.      Briefly stated the facts are that the first respondent herein was
appointed as Part Time Night Watchman by the writ petitioner vide proceedings in
ROC No. C3/1994/81 dated 18.2.1982 on a monthly remuneration of Rs.60/- and he
claims that he has been in continuous service, and worked for more than 10 years
as Part-time Night Watchman as on 25.11.1993 and entitled for regularisation of
his services in terms of G.O.Ms.No.212  Finance (PC.III) Department dated
22.4.1994 and   G.O.(P) No.112 dated 23.7.1997.   Proposals were submitted for
regularisation of his services through the Commissioner and Director of
Municipal Administration and accordingly, the Government issued orders in G.O.Rt
No. 1156 dated 12.10.2010 according permission to the third respondent herein to
regularise the services of the first respondent herein in the post of Public
Health Worker in terms of G.O. (P) No. 112 dated 23.7.1997 from the prospective
date i.e., date of issue of orders by the competent appointing authority,
subject to the condition that the said vacancy is clear, regular and continued
from time to time and no senior eligible person is overlooked/omitted.
Pursuant to the same, the third respondent herein issued proceedings in
Roc.No.7091/2002-M2 dated 22.10.2010  according permission to the writ
petitioner-Commissioner, Gudivada Municipality to regularise the services of the
first respondent in the post of Public Health Worker  subject to  the conditions
stipulated in G.O.(P) No. 112 Finance (PC.III) Department dt 23.7.1997.
Consequently, the writ petitioner issued proceedings in Roc No. 4598/2002-C1
dated 19.11.2010  appointing the first respondent as Public Health Worker on
temporary basis.
4.      Aggrieved by the said action, the first respondent filed O.A. No. 5463 of
2011 seeking a direction to the respondents to regularise his services from the
date of his initial appointment and pay all the monetary and service benefits in
terms of judgment of this Court in W.P. No. 359 of 2007 dated 2.11.2010.   On
consideration of the matter, the Tribunal by means of the impugned order dated
13.6.2011 allowed the said Original Application.   The operative portion of the
said order reads as under;
"In the present case also the applicant has completed 5 years of service by the
cut off date.  In these circumstances, this O.A. is also allowed.   The
respondents are directed to regularise the services of the applicant w.e.f.
25.11.1993 as per G.O.Ms No. 212.  However, the applicant is not eligible for
arrears of pay and he is eligible only for notional fixation of pay."

5.      Questioning the said order, the Commissioner, Gudivada Municipality,
Gudivada, filed the present writ petition contending that the first respondent
is entitled to regularisation only from the date of issuance of the order of
regularisation dated 19.11.2010  and not with retrospective effect i.e.,
25.11.1993.

        6.      The Governor of Andhra Pradesh, promulgated "Andhra Pradesh
(Regulation of Appointments to Public Services and Rationalisation of Staff
Pattern and Pay Structure) Ordinance, 1993, which was published in the State
Gazette on 25.11.1993.   The said Ordinance was replaced by the A.P. (Regulation
of Appointments to Public Services and Rationalisation of Staff Pattern and Pay
Structure) Act,  1994 (Act 2 of 1994), which was enforced with effect from
25.11.1993.   The said Act was enacted with objects as
"(a) totally banning such appointments in the institutions covered by
legislation; (b) imposing stringent penalties for making appointments by public
servants on violation of the law; (c) to protect public servants from being held
for contempt for non-compliance of the orders of Tribunal or High Court and also
for abatement of pending cases claiming regularization of services which are
already filed before the courts of law by making a suitable provisions therefor;
and
(d) to protect the interests of candidates registered with Employment Exchange,
the reservation rights of Scheduled Castes, Scheduled Tribes and Backward
Classes, the rights of the existing employees who are recruited through proper
channel and the functions of Andhra Pradesh Public Service Commission, District
Selection Committees and other Selection Committees constituted by the
Government. The legislation will prevent further deterioration of finances of
the State and at the same time conserve the resources for the welfare and
developmental activities."
        7.      As per Section 7 of the Act, 1994, no daily wage employees and
temporary appointees  are entitled for regularization.   After enacting the said
Act, 1994, the Government of Andhra Pradesh has issued G.O.Ms.No. 212 dated  
22.4.1994 prescribing the eligibility for regularization of the services of
those employed on daily wages or nominal muster roll or consolidated pay subject
to the condition that such persons had worked continuously for a minimum period
of five years and were continuing  as on 25.11.1993, subject to the following
conditions;
 "1) The persons appointed should possess the qualifications prescribed as per
rules in force as on the date from which his/her services have to be
regularised.
2) They should be within the age limits as on the date of appointment as
NMR/Daily wage employee.  
3) The rule of reservation wherever applicable will be followed and back-log
will be set- off against future vacancies.
4) Sponsoring of candidates from Employment Exchange is relaxed.
         5) Absorption shall be against clear vacancies of posts considered
necessary to be continued as per work-load excluding the vacancies already
notified to the Andhra Pradesh Public Service Commission / District Selection
Committee.
        6) In the case of Work charged Establishment, where there will be no
clear vacancies, because of the fact that the expenditure on Work charged is at
a fixed percentage of P.S. charges and as soon as the work is over, the services
of work charged establishment will have to be terminated, they shall be adjusted
in the other departments, District Offices provided there are clear vacancies of
last Grade Service."

        8.      Number of persons who were employed on daily wages or nominal muster  
rolls or consolidated pay but did not complete 5 years as on 25.11.1993, have
challenged the aforesaid G.O.Ms.No. 212 dated 24.4.1994 by filing Original
Applications before the A.P. Administrative Tribunal and writ petitions before
this Court.    A learned Single Judge of this Court, allowed the batch of writ
petitions holding that all persons employed on daily wages or nominal muster
roll or contract basis are entitled to be considered for regularization on
completion of five years.   The Division Bench, upheld the said order of the
learned single Judge, with the modification that daily wagers, etc would be
entitled to be considered for regularization with effect from the date of
completion of 5 years continuous service.    Against the said orders of the
Division Bench, the State Government carried the matter in appeal to Supreme
Court by filing a Special Leave Petition and the Supreme Court by its Judgment
in DISTRICT COLLECTOR/CHAIRMAN  Vs M.L. SINGH1 disposed of the appeal, the      
operative portion is reproduced as under;
"We have heard the learned counsel for the parties. These matters relate to
regularisation and payment of wages to the respondents who were employed on
daily wage basis. By the impugned judgment, the Division Bench of the High
Court, while affirming with modification the order passed by the learned Single
Judge has directed that all employees who have completed five years of
continuous service should be considered for regularization in accordance with
the terms of G.O.Ms. No.212, dated April 22, 1994 and that they should be paid
their wages at par with the wages paid to the permanent employees of that
category. As regards payment of wages there is no dispute between the parties
that the same have to be paid from the date of regularization. Insofar as
regularization is concerned, we are of the view that the High Court has rightly
directed that on the basis of the Notification G.O. Ms. No. 212, the respondent
employees shall be regularized with effect from the date or dates, they
completed five years continuous service. It is however made clear that the other
condition laid down in the said G.O.Ms. No. 212 will have to be satisfied for
the purpose of regularisation."



9.      The part time employees, who were not covered by Government Order dated
22.4.1994 also approached the Tribunal and High Court claiming regularization of
their services. By an interlocutory order dated 25.4.1997, the High Court
directed that a scheme be framed for regularization of their services.
The State Government implemented the orders of the High Court and issued G.O.(P)
No.112 dated 23.7.1997 for regularization of part time employees who had worked
continuously for a minimum period of 10 years and were continuing on 25.11.1993
subject to the following conditions:-
1. "Absorption shall be against clear vacancies of posts considered necessary to
be continued as per work-load excluding the vacancies already notified to the
Andhra Pradesh Public Service Commission or as the case may be, the District
Selection Committee.
2. The persons appointed should possess the qualifications prescribed as per
rules in force as on the date from which his or her services have to be
regularised.
3. The person should be within the age limit as on the date of appointment as
part-time employee.
4. The Rule of Reservation wherever applicable will be followed and back-log
will be set off against future vacancies.
5. The sponsoring of candidate from Employment Exchange is relaxed.
6. If there are two candidates, one part-time and the second one a full-time
employee (Daily Wage employee) of any category or name and there exists only one
vacancy, the senior most between the two in terms of continuous service already
rendered prior to 25-11- 1993 treating two years of part-time service as one
year of full-time service, relative seniority will be calculated and
regularization will be suggested for the senior among the two accordingly.
7. The regularization of services of full-time employee already made in terms of
G.O.Ms. No.212, Finance and Planning (FW.PC.III) Department, dt.22-4-1994 will
not be reopened for giving effect to the present order."
        10.     Thereafter, Act 2 of 1994 was amended by Act 3 of 1998 viz.,
"Andhra Pradesh (Regulation of Appointments to Public Services and
Rationalisation of Staff Pattern and Pay Structure) (Amendment) Act, 1998".
Section 7 of the principal Act 2 of 1994 was amended by inserting the following
proviso before the first proviso;

"Provided that the services of the 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 regularized in accordance with the scheme
formulated in G.O.Ms.No. 212 Finance and Planning (FW.PC.II) Department dated
22.4.1994:
Provided further that the services of a person who worked on part time basis
continuously for a minimum period of ten years and is 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) No. 112 Finance & Planning (FW.PC.III) Department
dated 23.7.1997."

11.     The Act 2 of 1994 was again amended by Act 27 of 1998 substituting the
first proviso to Section 7 of the principal Act, which reads as under:
"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
regularised 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."

12.     The Supreme Court in A. MANJULA BHASHINI AND OTHERS Vs. MANAGING DIRECTOR,            
ANDHRA PRADESH WOMEN'S COOPERATIVE FINANCE CORPORATION LIMITED AND ANOTHER2                        
considered effects of the amendments and the claims of the daily wage employees
for their regularization in terms of G.O.Ms.No. 212 dated 22.4.1994, holding
that daily wage employees who have completed 5 years of regular service on or
before 25.11.1993 and working as on 25.11.1993, are only entitled for
regularization.
13.     The Act,1994 as amended vide Act 27 of 1998 was upheld by the Hon'ble the
Supreme Court of India in A MANJULA BHASHINI case (cited  supra) holding that it
cannot be said that the amendments made in Act 2 of 1994 would nullify or over-
ride the judgment of the Supreme Court in M.L. SINGH case (cited supra).  When
the Hon'ble Supreme Court decided the M.L. SINGH case, Amending Act 27 of 1998  
was not the subject matter in the said case and the Supreme Court did not
consider the effect of amendment with regard to the entitlement of the daily
wage workers who have completed 5 years of service on or before 25.11.1993 and
continuing as on that date.  In the said case, the Supreme Court while examining
the correctness of the judgment of the Division Bench of the High Court did not
consider the background in which the Act, 1994 was enacted, mischief sought to
be remedied by it and various provisions contained therein including Section 7
whereby it was made clear that no person employed on daily wage or on temporary
basis and continuing as such on the date of commencement of the Act shall have
or shall ever be deemed to have the right to claim regularization of service and
his/her services shall be liable to be terminated  at any time without any
notice and without assigning any reason.
14.     In A MANJULA BHASHINI case, the Supreme Court held that as per G.O.Ms.No.    
212 dated 22.4.1994 such persons who have worked continuously for a minimum  
period of five years on or before 25.11.1993 and are continuing as on that date,
alone are entitled to be considered for regularization in view of the Amendment
Act 3 of 1998 and Amendment Act 27 of 1998.    After considering various
judgments including the judgment in M.L.SINGH, the Supreme Court observed that
in none of those cases, the Supreme Court considered an issue akin to the one
examined in the case of A.MANJULA BHASHINI and therefore the proposition of law
laid down in referred cases cannot be relied upon for entertaining the claim of
daily wage employees for regularization  irrespective of the fact that they may
not have completed 5 years continuous service on or before 25.11.1993.  In that
view of the matter, it was held that the amendments made in the 1994 Act by Act
3 of 1998 and Act 27 of 1998, do not have the effect of nullifying or overriding
the judgment in
M.L. SINGH case and further held that policy of regularization contained in the
first proviso to Section 7 inserted by Act 27 of 1998 is one time measure
intended to benefit only those daily wage employees who have
completed 5 years continuous service on or before 25.11.1993 and employees who
completed 5 years service after 25.11.1993 cannot claim regularization.
Accordingly, it was held that the daily wage employees and others who are
covered by Section 7 of 1994 Act as amended by Act 27 of 1998 and whose services
have not been regularized so far shall be entitled to be considered for
regularization and their service shall be regularized subject to  fulfillment of
conditions enumerated in G.O.Ms.No. 212 dated 22.4.1994.  As per condition no.1
of G.O.Ms No. 212 dated 22.4.1994 and condition No.2 of G.O.(P) No. 112 dated
23.7.1997 the persons who worked continuously for a minimum period of 5/10 years
respectively on or before 25.11.1993  alone are entitled to be regularized by
the appointing authority if they possess the qualification prescribed as per the
rules as on the date of the orders regularizing their services.   That the
persons appointed should  possess the qualifications prescribed as per the rules
in force as on the date on which his/her service is to be regularized.    That
means, even though persons have completed 5 years minimum service as on or  
before  25.11.1993,  the qualification acquired subsequently by them for
regularization, can be taken into account as on the date of regularization. The
regularization shall only be from the date on which the regularization is
considered by passing appropriate orders.
15.     The regularization of the services of the persons who have completed 5
years of continuous service before 25.11.1993 depends upon the fulfillment of
various conditions viz., there shall be clear vacancy for absorption of the
post; requisite qualifications as on the date of passing the orders of
regularization  and subject to rule of reservation etc.   The absorption or
regularization cannot be with a retrospective effect  i.e., 25.11.1993 but as
per the scheme prescribed under the Act in G.O.Ms.No.212 which provides the
qualification and conditions for their entitlement of  regularization,
therefore, the Supreme Court held that the daily wage employees who are covered
by G.O.Ms No.212 dated 22.4.1994 as amended by Act 27 of 1998  substituting
first proviso to Section 7 of Act 1994, are entitled  to be considered for
regularization of their services subject to fulfillment of conditions enumerated
in G O Ms.No.212 dated 22.4.1994.   The Supreme Court in A MANJULA BHASHINI case    
directed the Government, its officers and agencies/instrumentalities of the
State to complete the exercise for regularization of the services of the
eligible employees but never held that they are entitled for regularization with
effect from 25.11.1993 irrespective of the date of passing regularization
orders.   The first respondent also did not question the Government orders in
G.O.Rt.No. 1156 Municipal Administration and Urban Development (G2) Department  
dated 12.10.2010 and the consequential orders.  The first respondent who worked
as part time worker is entitled for his regularization from the future date
i.e., date of issuance of the orders regularizing his services by the writ
petitioner vide proceedings in  R.O.C. No. 4598/2002/C1  dated 19.11.2010.
16.     For the foregoing reasons, we are of the opinion that the regularization
of the daily wage employees cannot be made with retrospective effect, but they
are entitled to be considered as per the scheme of the Act in G.O.Ms.No.212
dated 22.4.1994 and G.O.P No. 112 dated 23.7.1997 for regularization from the
date of issuance of the regularization order but not with retrospective effect
i.e., from 25.11.1993.   Therefore, the order of the Tribunal is unsustainable
and liable to be set aside and accordingly the same is hereby set aside and the
writ petition is allowed holding that the first respondent is entitled for
regularization of his services from the date of issuance of the regularization
order i.e., proceedings in  R.O.C. No. 4598/2002/C1  dated 19.11.2010 but not
with retrospective effect i.e., from 25.11.1993.  No costs.

_____________
V ESWARAIAH,J  


_____________
NOUSHAD ALI,J  
DATE:6.8.2012

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