Service matter - writ - the decision of Andhra Pragathi Grameena Bank (Bank), in restricting the consideration only to candidates sponsored by the District Employment Exchange/ District Sainik Welfare Board/specialised agencies in the process of recruitment to the post of Office Attendants (Multipurpose) and pray to issue directions to consider them without such sponsorship.- in addition, petitioners also seek direction to regularise/ absorb them against the post of Messenger-cum-Sweeper or any other suitable last grade post in preference to the freshers in the recruitment.= Petitioners in all the writ petitions be subjected to selection process in pursuant to the recruitment exercise taken up in the year 2010 to fill vacancies in the post of Office Attendants (Multipurpose) without insisting that their names should be sponsored by Employment Exchange /or any other agency.
HONOURABLE SRI JUSTICE P. NAVEEN RAO
W.P Nos.14457 of 2010 and batch
27-04-2017
Atlur Krishnaiah, S/o. Channaiah, Aged about 39 years, Occ: Messenger-cum-Sweeper, R/o. Atlur, Kadapa District and eight ot
The Chairman, Andhra Pragathi Grameena Bank, Head Office, Kadapa and others Respondents
Counsel for the petitioners: Sri Penjuri Venu Gopal, Sri G. Ramachandra Reddy, Sri Kasa Jaganmohan Reddy, Sri S. Gopal Rao
Counsel for the Respondents : Smt. V. Uma Devi Learned Standing Counsel
<Gist :
>Head Note:
? Cases referred:
1. (2006) 4 SCC 1
2. (2009) 5 SCC 65
3. 2003 3 LLJ 937
4. 2010 (5) ALT 652 (DB)
5. (1987) 3 SCC 308
6. (1996) 6 SCC 216
7. (2006) 8 SCC 111
8. (2010) 9 SCC 247
9. (2015) 8 SCC 265
10. (2014) 7 SCC 223
HONOURABLE SRI JUSTICE P. NAVEEN RAO
W.P Nos.14457 of 2010; 34753, 35502, 37432, 37521,
37522, 37976, 38457, 39109 & 39685 of 2012 & 12547 of 2013
Date: 27.04.2017
W.P.No.14457 of 2010
Between :
Atlur Krishnaiah, S/o. Channaiah,
Aged about 39 years, Occ: Messenger-cum-
Sweeper, R/o. Atlur, Kadapa District
and eight others Petitioners
And
The Chairman, Andhra Pragathi
Grameena Bank, Head Office,
Kadapa and others Respondents
The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO
W.P Nos.14457 of 2010; 34753, 35502, 37432, 37521,
37522, 37976, 38457, 39109 & 39685 of 2012 & 12547 of 2013
COMMON ORDER:
In all these matters, petitioners are aggrieved by the
decision of Andhra Pragathi Grameena Bank (Bank), in restricting
the consideration only to candidates sponsored by the District
Employment Exchange/ District Sainik Welfare
Board/specialised agencies in the process of recruitment to the
post of Office Attendants (Multipurpose) and pray to issue
directions to consider them without such sponsorship.
In W.P.No.14457 of 2010, in addition, petitioners also seek
direction to regularise/ absorb them against the post of
Messenger-cum-Sweeper or any other suitable last grade post in
preference to the freshers in the recruitment.
2. Petitioners in W.P.No.14457 of 2010 are claiming to be
working with the respondent Bank. Petitioners in W.P.Nos.
37521, 37522 and 38457 of 2012 claimed to have worked as
temporary sweepers. Petitioners in W.P.Nos.35502, 37432,
34753, 37976, 39109, 39685 of 2012; 12547 of 2013, are all
unemployees. In W.P.Nos.35502, 37432, 34753, 39685 of 2012
and 12547 of 2013, interim orders are granted. In
W.P.Nos.37521, 37522, 39109 and 38457 of 2012 interim orders
were not granted. In W.P.No.37976 of 2012, this Court granted
stay of finalisation of selections. In W.P.No.14457 of 2010, series
of orders are passed, which are noted in the subsequent
paragraphs.
3. In W.P.No.14457 of 2010, petitioners are nine in number.
Initially they were appointed as Messenger-cum-Sweeper between
1993 and 1994 and have been continuously working in various
branches of the respondent Bank. According to the petitioners,
their services were utilised for 12 hours during festival days,
holidays and Sundays in the Bank premises as well as in the
residents of Area Managers, Managers and Executives. They are
all asked to do all menial works including cleaning of toilets. In
this Writ Petition, they challenge the letter, dated 01.06.2010,
addressed to District Sainik Welfare Board to sponsor candidates
for the post of Messenger-cum-Sweeper in Kadapa District. The
petitioners challenge this intimation letter primarily on the ground
that they have been working in the respondent Bank branches
for long time; have rendered satisfactory service; in recognition of
their good service, they were paid bonus also; and therefore their
services ought to have been regularised instead of placing indent
on District Sainik Welfare Board to sponsor candidates.
Petitioners also contend that the terms of indent placed on
District Sainik Welfare Board would also indicate that the
intention of the respondent Bank is to exclude petitioners
completely and to throw them out from service and induct
freshers instead of granting regularization to them. Petitioners
placed reliance on the decision of the Supreme Court in the case
of Secretary, State of Karnataka and Others Vs.Umadevi (3) in
support of their contention that their services should be
regularised.
4. Along with the reply affidavit, petitioners filed voluminous
documents in support of their claim that they have been
continuously engaged, paid wages and also paid bonus.
However, instead of regularizing their services directly and only to
avoid the claims of the petitioners for regularization, Bank
invented the method of engagement through an outsourcing
agency and periodically changing the outsourcing agency.
However, they contend that though there are changes in the
outsourcing agency, petitioners continued to work. Petitioners
claim that they belong to Scheduled Caste category and come
from lower strata of society; with a fond hope that their services
would be regularized, have been rendering dedicated service
since 1993-1994.
5. By order dated 23.06.2010 made in W.P.M.P.No.18181 of
2010, this Court directed the respondent Bank to continue the
petitioners on the same terms and conditions on which they were
appointed. However, the Court permitted the process of
recruitment to go on. Petitioners moved W.P.M.P.No.40273 of
2010 claiming to direct the respondent Bank to consider the
representations submitted by them on 18.11.2010 and to
proceed with the ongoing recruitment process for the post of
Messenger-cum-Sweeper by relaxing eligibility criteria. This Court
by order dated 31.01.2011 directed the respondent Bank to
consider the representation dated 18.11.2010 and to dispose of
the same within a period of 30 days.
6. Alleging violation of the directions dated 23.06.2010 issued
by this Court, petitioners filed C.C.No.821 of 2011. By order
dated, 20.04.2012, this Court directed the respondent Bank to
permit the petitioners to participate in the selection process
without insisting that their names should be sponsored by the
Employment Exchanges/District Sainik Welfare Board and other
agencies. The Court also observed that it is always better if the
past service and experience is given credence. A reading of the
order would disclose that the respondent Bank gave an
undertaking and therefore the Court issued orders and directed
to complete the selection process as early as possible. On
31.08.2012, the Court passed further orders in the Contempt
Case directing the respondents to take all necessary steps and to
see that the selection process would be completed within a period
of four months from that date.
7. While this Writ Petition is pending and the above directions
were issued from time to time, some other persons intending to
participate in the selections for appointment to the post of Office
Attendants (Multipurpose) instituted several Writ Petitions (which
are all disposed of by this common order) claiming that they
should be considered for employment without reference to their
names being sponsored by the Employment Exchange or District
Sainik Welfare Board. In W.P.M.P.No.15476 of 2013 in
W.P.No.12547 of 2013, by order dated 24.04.2013, following the
judgment of the Supreme Court in State of Bihar v. Upendra
Narayana Singh , the Court directed to receive the applications
of the petitioners for appointment to the post of Office Attendants
(Multipurpose) and to subject them to selection process along
with others. The Court also directed to publish a notification in
newspapers calling for applications from all eligible candidates.
Similar directions were also issued in W.P.M.P.No.44203 of 2012
in W.P.No.34753 of 2012, dated 07.11.2012.
8. W.P.No.37976 of 2012 is filed by three other persons
opposing consideration of only such candidates whose names are
sponsored by the District Employment Exchange alone without
accepting the applications from the qualified candidates. This
Court by order dated 10.12.2012 directed not to finalise the
selections until further orders.
9.1 In the counter affidavit filed in W.P.No.14457 of 2010, the
stout defence of the respondent Bank is that petitioners were
never engaged by the respondent Bank as claimed by the
petitioners and therefore question of regularizing their services by
applying the principle laid down by the Supreme Court in Uma
Devi (3) does not arise.
9.2. By stoutly denying the contentions of the petitioners that
they have been working continuously, it is stated that they are not
entitled to seek regularization of their services. According to the
respondent Bank, there are regular Messengers-cum-Sweepers
and whenever regular employee goes on leave or absents from
duty, temporary arrangement is made locally by the concerned
bank to undertake maintenance work and as and when such
work is undertaken, the person will be paid daily wage. In similar
manner, petitioners were engaged as and when there was
requirement, but they never worked continuously. It is further
asserted that the requirement of this nature is also for a limited
period of less than three hours in a day. Some contingent fund is
provided with the Branch Manager for up keep of the branch and
by utilising this amount such engagement is made. Branch
Manager does not issue appointment orders and no record is
maintained, as they are utilising the services of locally available
persons on a given day where there is requirement. It is
contended that respondent Bank has resorted to recruitment to
fill up regular Messenger-cum-Sweeper by strictly following the
Regulations governing the employment in the Regional Rural
Banks and no deviation can be permitted.
10. The Bank defends its decision to notify through the
Employment Exchange as well as District Sainik Welfare Office by
referring to the provisions of Regional Rural Bank (Appointment
and Promotion of Officers and Other Employees) Rules, 1998,
which are the common Rules notified by the Government of India
and adopted by the respondent Bank. These Rules mandate
filling up of post of Messenger-cum-Sweeper only through
Employment Exchange, Sainik Welfare Board or any other agency
catering to the needs of welfare of various special categories. It is
therefore the contention of the respondent Bank that unless the
names of the petitioners are sponsored by the Employment
Exchange, they cannot be considered for selections.
11. The facts on record would also make it clear that the
respondent Bank has also notified in daily newspapers on
30.09.2012 calling for applications from eligible candidates for
recruitment. The notification also indicates that in addition to the
persons, in whose favour orders are granted by the Court, all
others would also be considered.
12. Learned Standing Counsel for the respondent Bank made
extensive submissions and placed reliance on several judgments
to contend that the respondent Bank need not resort to open
recruitment notification and bank can consider only such of those
candidates whose names are sponsored by the Employment
Exchange or District Sainik Welfare Board or any other
recognized agency. Learned Standing Counsel further contended
that recruitment regulations contemplate making recruitment by
considering only the candidates sponsored from the agency
mentioned above and there is no requirement to go for public
notification. Learned Standing Counsel placed heavy reliance on
the decisions of the two Division Benches of this Court in State
Bank of India, Zonal office v.
K. Lakshmamma and Naveen Kumar v. Chairman and
Managing Director, Bharath Dynamics Limited.
13. All the counsel for petitioners placed reliance on the
decision of Supreme Court in Upendra Narayana Singh
(supra).
14. At this stage, it is necessary and expedient to consider
precedent decisions of Supreme Court on the issue of considering
candidates for employment even if Employment Exchange has not
sponsored their names.
14.1.1 In Union of India v. N. Hargopal , while repelling the
contention that there need not be sponsorship by the Employment
Exchange and publication of notification should be issued on the
ground that many people do not register with the Employment
Exchange, the Supreme Court at paragraph No.9 held as under:
9. In the absence of a better method of recruitment, we
think that any restriction that employment in government
departments should be through the medium of employment
exchanges does not offend Articles 14 and 16 of the
Constitution. With this modification of the judgment of the
High Court, the appeals and the special leave petitions are
disposed of. No orders are necessary in the writ petition.
14.1.2 However, it is appropriate to note the observations of
the Supreme Court in paragraph No.6. It reads as under:
6. It is, therefore, clear that the object of the Act is
not to restrict, but to enlarge the field of choice so that
the employer may choose the best and the most
efficient and to provide an opportunity to the worker to
have his claim for appointment considered without the
worker having to knock at every door for employment.
We are, therefore, firmly of the view that the Act does
not oblige any employer to employ those persons only
who have been sponsored by the Employment
Exchanges.
(emphasis supplied)
14.2 In Excise Superintendent, Malakpatnam, Krishna
District, Andhra Pradesh v. K.B.N. Visweshwara Rao , after
considering the earlier judgment of Haragopal (supra), the
Supreme Court held at paragraph No.6 as under:
6. Having regard to the respective contentions, we are of the
view that contention of the respondents is more acceptable
which would be consistent with the principles of fair play,
justice and equal opportunity. It is common knowledge that
many a candidate is unable to have the names sponsored,
though their names are either registered or are waiting to be
registered in the employment exchange, with the result that
the choice of selection is restricted to only such of the
candidates whose names come to be sponsored by the
employment exchange. Under these circumstances, many a
deserving candidate is deprived of the right to be considered
for appointment to a post under the State. Better view
appears to be that it should be mandatory for the
requisitioning authority/establishment to intimate the
employment exchange, and employment exchange should
sponsor the names of the candidates to the requisitioning
departments for selection strictly according to seniority and
reservation, as per requisition. In addition, the
appropriate department or undertaking or
establishment should call for the names by publication
in the newspapers having wider circulation and also
display on their office notice boards or announce on
radio, television and employment news bulletins; and
then consider the cases of all the candidates who have
applied. If this procedure is adopted, fair play would
be subserved. The equality of opportunity in the matter
of employment would be available to all eligible
candidates.
(emphasis supplied)
14.3 In Arun Kumar Nayak v. Union of India , this very
issue was considered and Supreme Court by following the
judgment in Excise Superintendent, Malakpatnam (supra), at
paragraph No.9 held as under:
9. This Court in Visweshwara Rao [(1996) 6 SCC 216 : 1996
SCC (L&S) 1420] , therefore, held that intimation to the
employment exchange about the vacancy and candidates
sponsored from the employment exchange is mandatory. This
Court also held that in addition and consistent with the
principle of fair play, justice and equal opportunity, the
appropriate department or establishment should also call for
the names by publication in the newspapers having wider
circulation, announcement on radio, television and
employment news bulletins and consider all the candidates
who have applied. This view was taken to afford equal
opportunity to all the eligible candidates in the matter of
employment. The rationale behind such direction is also
consistent with the sound public policy that wider the
opportunity of the notice of vacancy by wider publication
in the newspapers, radio, television and employment news
bulletin, the better candidates with better qualifications
are attracted, so that adequate choices are made available
and the best candidates would be selected and appointed to
subserve the public interest better.
(emphasis supplied)
14.4 Yet again in State of Bihar (supra) Supreme Court
considered the earlier decisions in Haragopal (supra), Excise
Superintendent, Malakpatnam (supra) and Arun Kumar
Nayak (supra) and approved the view taken in those three
decisions and held at paragraph No.31 as under:
31. The ratio of the above noted three judgments is that in
terms of Section 4 of the 1959 Act, every public employer is
duty-bound to notify the vacancies to the employment exchange
concerned so as to enable it to sponsor the names of eligible
candidates and also advertise the same in the newspapers
having wider circulation, employment news bulletins, get
announcement made on radio and television and consider all
eligible candidates whose names may be forwarded by the
employment exchange concerned and/or who may apply
pursuant to the advertisement published in the newspapers or
announcements made on radio/television.
(emphasis supplied)
15. Several other judgments placed on record do not directly
deal with the issue of sponsorship from Employment Exchange as
a solitary requirement. The principle laid down by the Supreme
Court and the directions issued in the above decisions hold the
field.
16. In view of the principle laid down by the Supreme Court in
the above decisions, the interim directions issued by this Court in
W.P.No.34753 of 2012 and W.P.No.12547 of 2013 to consider the
applications submitted by the petitioners therein and also to
issue public notification in the newspapers cannot be faulted.
17. Though recruitment notification was issued in the year
2010 and interim directions were issued by this Court in the year
2011-2012, the recruitment process is not carried forward on the
ground that there are inconsistent directions issued by the Court.
According to learned Standing Counsel, in the case of petitioners,
Court directed to consider them whereas in the case of other
candidates from the open market, the Court directed to consider
their applications and also directed to issue paper publication
and in W.P.No.37976 of 2012 Court stayed finalization of the
selection process. She further contended that as the recruitment
regulations do not contemplate publication of notification in the
newspapers and any decision taken to published in the
newspapers would amount to violating the regulations, the
recruitment process is not taken further.
18. On a reading of the four judgments on the issue i.e.,
Haragopal (supra), Excise Superintendent, Malakpatnam
(supra), Arun Kumar Nayak (supra) and State of Bihar
(supra), as noted by the Supreme Court in State of Bihar
(supra), every employer is duty bound to notify the
vacancies not only through Employment Exchange, but
also through advertisement in the newspapers having
wider circulation, in employment news bulletin and
announcements through radio and television and
consider all eligible candidates. In view of the
subsequent decisions of the Supreme Court and the Three
Bench judgment of the Supreme Court in Excise
Superintendent, Malakpatnam
(supra), the respondent Bank cannot fall back on decision of
this Court in State Bank of India (supra) and Naveen Kumar
(supra) to contend that the consideration is confined only to
candidates sponsored from Employment Exchange or District
Sainik Welfare Board or Organisations which are
established/formed for the welfare of Scheduled Caste/
Scheduled Tribe/disabled persons. The interim directions issued
by this Court in some of the writ petitions herein commands
acceptance.
19. Having cleared this issue, it is necessary to consider the
claims of petitioners in W.P.No.14457 of 2010.
20. On going through the pleadings of petitioners as well as
respondent Bank, following facts are not disputed. Petitioners
are engaged from 1993-1994 engaged according to petitioners
continuously, and engaged according to respondent Bank as
and when work is required on a daily assessment basis whenever
regular employee goes on leave or absent from duty; that there
are vacancies and recruitment process is undertaken; though
notification was issued in the year 2010 so far recruitment
process is not completed and the said vacancies remain unfilled;
it appears atleast from 2011 the petitioners are being engaged
continuously through the outsourcing agency and now
Attendance Register is maintained.
21.1 In the light of the submissions of both sides that the
petitioners are being engaged from 1993-1994, perusal of the
voluminous documents filed by the petitioners would also
disclose that it is not in dispute atleast that as and when required,
petitioners are being engaged. Some of the certificates filed by the
petitioners and the relevant notings by the respondent Bank
Officers would disclose that petitioners were engaged in the
absence of a regular employee. However, it is not clear and
respondent Bank has not explained, even though it is a specific
assertion of the petitioners from the beginning, that petitioners
are also paid bonus. If what is contended by the respondent -
Bank is correct i.e., petitioners are engaged on a particular day if
the regular employee is absent or on leave by local sourcing of
such persons to undertake menial job and they are paid wages of
that day, the question of payment of bonus would not arise.
Similarly, reflecting their names in the relevant records also
would not arise. In other words, what emerges from scanning
through the several documents filed by the petitioners along with
the rejoinder in W.V.M.P.No.254 of 2011 is, though petitioners
are engaged as and when regular employee was on leave, their
names are maintained in the musters of respondent Bank,
though not in writing or with the understanding by the local
Manager and as and when they are required, they are engaged.
21.2 Thus, even though there is no regular assignment or
continuous work, the person is expected to be available to work
as and when called and in that sense he cannot undertake any
other job. Undertaking any other job may result in losing the
opportunity, even though it may be intermitantly given when a
regular employee goes on leave. Thus, assuming what is
contended by the respondent Bank may be true that the
engagement of the petitioners was only when regular employee
goes on leave, their availability has to be continuous and
therefore they cannot take up any other assignment. As noted
above, it would clearly amount to exploitation of labour and
adopting the principle of hire and fire which was long ago given
up when India became independent and is a democratic country
governed by rule of law. It also amounts to misusing power to
give false hope to the people coming from lower strata of society
and utilising them whenever and wherever required at their
whims and fancies. Based on these facts, the issue as addressed
extensively by the respective counsels needs consideration.
22. In terms of the earlier orders of this Court, undertaking
given by the respondent Bank in W.P.No.14457 of 2010 as well
as in C.C.No.821 of 2011, the candidates applied directly in
accordance with the interim orders in individual cases and the
claims of the petitioners in all other Writ Petitions should be
considered against existing vacancies without insisting that their
names should be sponsored from Employment Exchange and any
other agency.
23. Question for consideration in the facts of W.P.No.14457 of
2010 as noted above is whether petitioners can seek
regularisation of their services without subjecting them to any
selection process.
24.1 In Umadevi (3), Supreme Court while deprecating the practice
of back-door appointments, appointments on daily wage basis and
subsequent regularization, directed formulation of scheme for
regularization, if services of persons are utilized uninterruptedly for
more than 10 years. Supreme Court held:
53. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR
1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :
(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 :
1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in
para 15 above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the employees have
continued to work for ten years or more but without the
intervention of orders of the courts or of tribunals. The
question of regularisation of the services of such employees
may have to be considered on merits in the light of the
principles settled by this Court in the cases abovereferred to
and in the light of this judgment. In that context, the Union
of India, the State Governments and their instrumentalities
should take steps to regularise as a one-time measure, the
services of such irregularly appointed, who have worked for
ten years or more in duly sanctioned posts but not under
cover of orders of the courts or of tribunals and should
further ensure that regular recruitments are undertaken to
fill those vacant sanctioned posts that require to be filled up,
in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion
within six months from this date. We also clarify that
regularisation, if any already made, but not sub judice, need
not be reopened based on this judgment, but there should
be no further bypassing of the constitutional requirement
and regularising or making permanent, those not duly
appointed as per the constitutional scheme.
24.2 Considering the scope of decision in Umadevi, in State of
Karnataka and others Vs. M.L. Kesari and others Supreme Court
held:
11. The object behind the said direction in para 53 of
Umadevi (3) [(2006) 4 SCC 1] is twofold. 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 (3) [(2006) 4 SCC 1] was rendered, are considered
for regularisation 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 basis for long periods and then
periodically regularise 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 (3) [(2006) 4 SCC 1]
] 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 regularisation.
The fact that the employer has not undertaken such exercise
of regularisation within six months of the decision in
Umadevi (3) [(2006) 4 SCC 1] or that such exercise was
undertaken only in regard to a limited few, will not
disentitle such employees, the right to be considered for
regularisation in terms of the above directions in Umadevi
(3) [(2006) 4 SCC 1] as a one-time measure.
24.3. In Amarkant Rai v. State of Bihar , Supreme Court held that
The objective behind the exception carved out in this case was to
permit regularisation of such appointments, which are irregular but
not illegal, and to ensure security of employment of those persons
who had served the State Government and their instrumentalities for
more than ten years. In that case, employee was working for 29
years. This decision approves earlier view expressed in M.L.Kesari
(supra) extracted above.
24.4. In State of Jharkhand v. Kamal Prasad , similar view was
taken. Supreme Court held:
41. .In view of the categorical finding of fact on the
relevant contentious issue that the respondent employees
have continued in their service for more than 10 years
continuously therefore, the legal principle laid down by this
Court in Umadevi (3) case [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] at para 53
squarely applies to the present cases. The Division Bench of
the High Court has rightly held that the respondent
employees are entitled for the relief, the same cannot be
interfered with by this Court.
25.1. Services of petitioners in W.P.No.14457 of 2010 have been
utilised for a long time i.e., from 1993-1994, though not
regularly/ continuing every day in a month and was not paid
wages on monthly basis. Some of them have proof of their work
and others do not have. However, they are required to be on
rolls, be allert and at the beck and call of the officials of the bank
to work whenever called and to do whatever task is entrusted to
them, such as to sweep, to clean the floors to clean the toilets to
act as messengers/curriers etc. They appear to have rendered
satisfactory service, earning bonus also, and at any rate no
adverse action was taken against them.
25.2. Having regard to the peculiar facts and circumstances of
the case, justice and equity requires that the respondent Bank
should evolve some scheme to assign priority in the selection
process while conducting selections to fill existing vacancies of
Office Attendants (Multipurpose); duly taking note of long service
rendered by them; grant relaxation of age if they are found to be
over aged by 2010 and if they were within the age when initially
engaged.
26. In W.P.Nos.37521, 38457 and 37522 of 2012, petitioners
also claimed to have worked with the respondent - Bank. The
respondent - Bank is required to verify whether petitioners in
these writ petitions have worked and if so they may be extended
same benefit as extended to petitioners in W.P.No.14457 of 2010.
27. Accordingly, the Writ Petitions are disposed of as under:
(a) Petitioners in all the writ petitions be subjected to
selection process in pursuant to the recruitment
exercise taken up in the year 2010 to fill vacancies in
the post of Office Attendants (Multipurpose) without
insisting that their names should be sponsored by
Employment Exchange /or any other agency.
(b) While considering for such recruitment, the Bank may
evolve some procedure/scheme to grant weightage to
petitioners in W.P.No.14457 of 2010 having regard to
the service rendered by petitioners, subject to such
service being satisfactory. They shall also be extended
relaxation in age if they were within the age when they
were initially engaged.
(c) If petitioners in W.P.Nos. 37521, 37522 and 38457 of
2012 are also similarly situated to petitioners in
W.P.No.14457 of 2010, they may also be extended the
same benefits as extended to those petitioners.
No costs. Having regard to the same, miscellaneous
petitions, if any pending, are closed.
____________________
P. NAVEEN RAO, J
DATE: 27-04-2017
W.P Nos.14457 of 2010 and batch
27-04-2017
Atlur Krishnaiah, S/o. Channaiah, Aged about 39 years, Occ: Messenger-cum-Sweeper, R/o. Atlur, Kadapa District and eight ot
The Chairman, Andhra Pragathi Grameena Bank, Head Office, Kadapa and others Respondents
Counsel for the petitioners: Sri Penjuri Venu Gopal, Sri G. Ramachandra Reddy, Sri Kasa Jaganmohan Reddy, Sri S. Gopal Rao
Counsel for the Respondents : Smt. V. Uma Devi Learned Standing Counsel
<Gist :
>Head Note:
? Cases referred:
1. (2006) 4 SCC 1
2. (2009) 5 SCC 65
3. 2003 3 LLJ 937
4. 2010 (5) ALT 652 (DB)
5. (1987) 3 SCC 308
6. (1996) 6 SCC 216
7. (2006) 8 SCC 111
8. (2010) 9 SCC 247
9. (2015) 8 SCC 265
10. (2014) 7 SCC 223
HONOURABLE SRI JUSTICE P. NAVEEN RAO
W.P Nos.14457 of 2010; 34753, 35502, 37432, 37521,
37522, 37976, 38457, 39109 & 39685 of 2012 & 12547 of 2013
Date: 27.04.2017
W.P.No.14457 of 2010
Between :
Atlur Krishnaiah, S/o. Channaiah,
Aged about 39 years, Occ: Messenger-cum-
Sweeper, R/o. Atlur, Kadapa District
and eight others Petitioners
And
The Chairman, Andhra Pragathi
Grameena Bank, Head Office,
Kadapa and others Respondents
The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO
W.P Nos.14457 of 2010; 34753, 35502, 37432, 37521,
37522, 37976, 38457, 39109 & 39685 of 2012 & 12547 of 2013
COMMON ORDER:
In all these matters, petitioners are aggrieved by the
decision of Andhra Pragathi Grameena Bank (Bank), in restricting
the consideration only to candidates sponsored by the District
Employment Exchange/ District Sainik Welfare
Board/specialised agencies in the process of recruitment to the
post of Office Attendants (Multipurpose) and pray to issue
directions to consider them without such sponsorship.
In W.P.No.14457 of 2010, in addition, petitioners also seek
direction to regularise/ absorb them against the post of
Messenger-cum-Sweeper or any other suitable last grade post in
preference to the freshers in the recruitment.
2. Petitioners in W.P.No.14457 of 2010 are claiming to be
working with the respondent Bank. Petitioners in W.P.Nos.
37521, 37522 and 38457 of 2012 claimed to have worked as
temporary sweepers. Petitioners in W.P.Nos.35502, 37432,
34753, 37976, 39109, 39685 of 2012; 12547 of 2013, are all
unemployees. In W.P.Nos.35502, 37432, 34753, 39685 of 2012
and 12547 of 2013, interim orders are granted. In
W.P.Nos.37521, 37522, 39109 and 38457 of 2012 interim orders
were not granted. In W.P.No.37976 of 2012, this Court granted
stay of finalisation of selections. In W.P.No.14457 of 2010, series
of orders are passed, which are noted in the subsequent
paragraphs.
3. In W.P.No.14457 of 2010, petitioners are nine in number.
Initially they were appointed as Messenger-cum-Sweeper between
1993 and 1994 and have been continuously working in various
branches of the respondent Bank. According to the petitioners,
their services were utilised for 12 hours during festival days,
holidays and Sundays in the Bank premises as well as in the
residents of Area Managers, Managers and Executives. They are
all asked to do all menial works including cleaning of toilets. In
this Writ Petition, they challenge the letter, dated 01.06.2010,
addressed to District Sainik Welfare Board to sponsor candidates
for the post of Messenger-cum-Sweeper in Kadapa District. The
petitioners challenge this intimation letter primarily on the ground
that they have been working in the respondent Bank branches
for long time; have rendered satisfactory service; in recognition of
their good service, they were paid bonus also; and therefore their
services ought to have been regularised instead of placing indent
on District Sainik Welfare Board to sponsor candidates.
Petitioners also contend that the terms of indent placed on
District Sainik Welfare Board would also indicate that the
intention of the respondent Bank is to exclude petitioners
completely and to throw them out from service and induct
freshers instead of granting regularization to them. Petitioners
placed reliance on the decision of the Supreme Court in the case
of Secretary, State of Karnataka and Others Vs.Umadevi (3) in
support of their contention that their services should be
regularised.
4. Along with the reply affidavit, petitioners filed voluminous
documents in support of their claim that they have been
continuously engaged, paid wages and also paid bonus.
However, instead of regularizing their services directly and only to
avoid the claims of the petitioners for regularization, Bank
invented the method of engagement through an outsourcing
agency and periodically changing the outsourcing agency.
However, they contend that though there are changes in the
outsourcing agency, petitioners continued to work. Petitioners
claim that they belong to Scheduled Caste category and come
from lower strata of society; with a fond hope that their services
would be regularized, have been rendering dedicated service
since 1993-1994.
5. By order dated 23.06.2010 made in W.P.M.P.No.18181 of
2010, this Court directed the respondent Bank to continue the
petitioners on the same terms and conditions on which they were
appointed. However, the Court permitted the process of
recruitment to go on. Petitioners moved W.P.M.P.No.40273 of
2010 claiming to direct the respondent Bank to consider the
representations submitted by them on 18.11.2010 and to
proceed with the ongoing recruitment process for the post of
Messenger-cum-Sweeper by relaxing eligibility criteria. This Court
by order dated 31.01.2011 directed the respondent Bank to
consider the representation dated 18.11.2010 and to dispose of
the same within a period of 30 days.
6. Alleging violation of the directions dated 23.06.2010 issued
by this Court, petitioners filed C.C.No.821 of 2011. By order
dated, 20.04.2012, this Court directed the respondent Bank to
permit the petitioners to participate in the selection process
without insisting that their names should be sponsored by the
Employment Exchanges/District Sainik Welfare Board and other
agencies. The Court also observed that it is always better if the
past service and experience is given credence. A reading of the
order would disclose that the respondent Bank gave an
undertaking and therefore the Court issued orders and directed
to complete the selection process as early as possible. On
31.08.2012, the Court passed further orders in the Contempt
Case directing the respondents to take all necessary steps and to
see that the selection process would be completed within a period
of four months from that date.
7. While this Writ Petition is pending and the above directions
were issued from time to time, some other persons intending to
participate in the selections for appointment to the post of Office
Attendants (Multipurpose) instituted several Writ Petitions (which
are all disposed of by this common order) claiming that they
should be considered for employment without reference to their
names being sponsored by the Employment Exchange or District
Sainik Welfare Board. In W.P.M.P.No.15476 of 2013 in
W.P.No.12547 of 2013, by order dated 24.04.2013, following the
judgment of the Supreme Court in State of Bihar v. Upendra
Narayana Singh , the Court directed to receive the applications
of the petitioners for appointment to the post of Office Attendants
(Multipurpose) and to subject them to selection process along
with others. The Court also directed to publish a notification in
newspapers calling for applications from all eligible candidates.
Similar directions were also issued in W.P.M.P.No.44203 of 2012
in W.P.No.34753 of 2012, dated 07.11.2012.
8. W.P.No.37976 of 2012 is filed by three other persons
opposing consideration of only such candidates whose names are
sponsored by the District Employment Exchange alone without
accepting the applications from the qualified candidates. This
Court by order dated 10.12.2012 directed not to finalise the
selections until further orders.
9.1 In the counter affidavit filed in W.P.No.14457 of 2010, the
stout defence of the respondent Bank is that petitioners were
never engaged by the respondent Bank as claimed by the
petitioners and therefore question of regularizing their services by
applying the principle laid down by the Supreme Court in Uma
Devi (3) does not arise.
9.2. By stoutly denying the contentions of the petitioners that
they have been working continuously, it is stated that they are not
entitled to seek regularization of their services. According to the
respondent Bank, there are regular Messengers-cum-Sweepers
and whenever regular employee goes on leave or absents from
duty, temporary arrangement is made locally by the concerned
bank to undertake maintenance work and as and when such
work is undertaken, the person will be paid daily wage. In similar
manner, petitioners were engaged as and when there was
requirement, but they never worked continuously. It is further
asserted that the requirement of this nature is also for a limited
period of less than three hours in a day. Some contingent fund is
provided with the Branch Manager for up keep of the branch and
by utilising this amount such engagement is made. Branch
Manager does not issue appointment orders and no record is
maintained, as they are utilising the services of locally available
persons on a given day where there is requirement. It is
contended that respondent Bank has resorted to recruitment to
fill up regular Messenger-cum-Sweeper by strictly following the
Regulations governing the employment in the Regional Rural
Banks and no deviation can be permitted.
10. The Bank defends its decision to notify through the
Employment Exchange as well as District Sainik Welfare Office by
referring to the provisions of Regional Rural Bank (Appointment
and Promotion of Officers and Other Employees) Rules, 1998,
which are the common Rules notified by the Government of India
and adopted by the respondent Bank. These Rules mandate
filling up of post of Messenger-cum-Sweeper only through
Employment Exchange, Sainik Welfare Board or any other agency
catering to the needs of welfare of various special categories. It is
therefore the contention of the respondent Bank that unless the
names of the petitioners are sponsored by the Employment
Exchange, they cannot be considered for selections.
11. The facts on record would also make it clear that the
respondent Bank has also notified in daily newspapers on
30.09.2012 calling for applications from eligible candidates for
recruitment. The notification also indicates that in addition to the
persons, in whose favour orders are granted by the Court, all
others would also be considered.
12. Learned Standing Counsel for the respondent Bank made
extensive submissions and placed reliance on several judgments
to contend that the respondent Bank need not resort to open
recruitment notification and bank can consider only such of those
candidates whose names are sponsored by the Employment
Exchange or District Sainik Welfare Board or any other
recognized agency. Learned Standing Counsel further contended
that recruitment regulations contemplate making recruitment by
considering only the candidates sponsored from the agency
mentioned above and there is no requirement to go for public
notification. Learned Standing Counsel placed heavy reliance on
the decisions of the two Division Benches of this Court in State
Bank of India, Zonal office v.
K. Lakshmamma and Naveen Kumar v. Chairman and
Managing Director, Bharath Dynamics Limited.
13. All the counsel for petitioners placed reliance on the
decision of Supreme Court in Upendra Narayana Singh
(supra).
14. At this stage, it is necessary and expedient to consider
precedent decisions of Supreme Court on the issue of considering
candidates for employment even if Employment Exchange has not
sponsored their names.
14.1.1 In Union of India v. N. Hargopal , while repelling the
contention that there need not be sponsorship by the Employment
Exchange and publication of notification should be issued on the
ground that many people do not register with the Employment
Exchange, the Supreme Court at paragraph No.9 held as under:
9. In the absence of a better method of recruitment, we
think that any restriction that employment in government
departments should be through the medium of employment
exchanges does not offend Articles 14 and 16 of the
Constitution. With this modification of the judgment of the
High Court, the appeals and the special leave petitions are
disposed of. No orders are necessary in the writ petition.
14.1.2 However, it is appropriate to note the observations of
the Supreme Court in paragraph No.6. It reads as under:
6. It is, therefore, clear that the object of the Act is
not to restrict, but to enlarge the field of choice so that
the employer may choose the best and the most
efficient and to provide an opportunity to the worker to
have his claim for appointment considered without the
worker having to knock at every door for employment.
We are, therefore, firmly of the view that the Act does
not oblige any employer to employ those persons only
who have been sponsored by the Employment
Exchanges.
(emphasis supplied)
14.2 In Excise Superintendent, Malakpatnam, Krishna
District, Andhra Pradesh v. K.B.N. Visweshwara Rao , after
considering the earlier judgment of Haragopal (supra), the
Supreme Court held at paragraph No.6 as under:
6. Having regard to the respective contentions, we are of the
view that contention of the respondents is more acceptable
which would be consistent with the principles of fair play,
justice and equal opportunity. It is common knowledge that
many a candidate is unable to have the names sponsored,
though their names are either registered or are waiting to be
registered in the employment exchange, with the result that
the choice of selection is restricted to only such of the
candidates whose names come to be sponsored by the
employment exchange. Under these circumstances, many a
deserving candidate is deprived of the right to be considered
for appointment to a post under the State. Better view
appears to be that it should be mandatory for the
requisitioning authority/establishment to intimate the
employment exchange, and employment exchange should
sponsor the names of the candidates to the requisitioning
departments for selection strictly according to seniority and
reservation, as per requisition. In addition, the
appropriate department or undertaking or
establishment should call for the names by publication
in the newspapers having wider circulation and also
display on their office notice boards or announce on
radio, television and employment news bulletins; and
then consider the cases of all the candidates who have
applied. If this procedure is adopted, fair play would
be subserved. The equality of opportunity in the matter
of employment would be available to all eligible
candidates.
(emphasis supplied)
14.3 In Arun Kumar Nayak v. Union of India , this very
issue was considered and Supreme Court by following the
judgment in Excise Superintendent, Malakpatnam (supra), at
paragraph No.9 held as under:
9. This Court in Visweshwara Rao [(1996) 6 SCC 216 : 1996
SCC (L&S) 1420] , therefore, held that intimation to the
employment exchange about the vacancy and candidates
sponsored from the employment exchange is mandatory. This
Court also held that in addition and consistent with the
principle of fair play, justice and equal opportunity, the
appropriate department or establishment should also call for
the names by publication in the newspapers having wider
circulation, announcement on radio, television and
employment news bulletins and consider all the candidates
who have applied. This view was taken to afford equal
opportunity to all the eligible candidates in the matter of
employment. The rationale behind such direction is also
consistent with the sound public policy that wider the
opportunity of the notice of vacancy by wider publication
in the newspapers, radio, television and employment news
bulletin, the better candidates with better qualifications
are attracted, so that adequate choices are made available
and the best candidates would be selected and appointed to
subserve the public interest better.
(emphasis supplied)
14.4 Yet again in State of Bihar (supra) Supreme Court
considered the earlier decisions in Haragopal (supra), Excise
Superintendent, Malakpatnam (supra) and Arun Kumar
Nayak (supra) and approved the view taken in those three
decisions and held at paragraph No.31 as under:
31. The ratio of the above noted three judgments is that in
terms of Section 4 of the 1959 Act, every public employer is
duty-bound to notify the vacancies to the employment exchange
concerned so as to enable it to sponsor the names of eligible
candidates and also advertise the same in the newspapers
having wider circulation, employment news bulletins, get
announcement made on radio and television and consider all
eligible candidates whose names may be forwarded by the
employment exchange concerned and/or who may apply
pursuant to the advertisement published in the newspapers or
announcements made on radio/television.
(emphasis supplied)
15. Several other judgments placed on record do not directly
deal with the issue of sponsorship from Employment Exchange as
a solitary requirement. The principle laid down by the Supreme
Court and the directions issued in the above decisions hold the
field.
16. In view of the principle laid down by the Supreme Court in
the above decisions, the interim directions issued by this Court in
W.P.No.34753 of 2012 and W.P.No.12547 of 2013 to consider the
applications submitted by the petitioners therein and also to
issue public notification in the newspapers cannot be faulted.
17. Though recruitment notification was issued in the year
2010 and interim directions were issued by this Court in the year
2011-2012, the recruitment process is not carried forward on the
ground that there are inconsistent directions issued by the Court.
According to learned Standing Counsel, in the case of petitioners,
Court directed to consider them whereas in the case of other
candidates from the open market, the Court directed to consider
their applications and also directed to issue paper publication
and in W.P.No.37976 of 2012 Court stayed finalization of the
selection process. She further contended that as the recruitment
regulations do not contemplate publication of notification in the
newspapers and any decision taken to published in the
newspapers would amount to violating the regulations, the
recruitment process is not taken further.
18. On a reading of the four judgments on the issue i.e.,
Haragopal (supra), Excise Superintendent, Malakpatnam
(supra), Arun Kumar Nayak (supra) and State of Bihar
(supra), as noted by the Supreme Court in State of Bihar
(supra), every employer is duty bound to notify the
vacancies not only through Employment Exchange, but
also through advertisement in the newspapers having
wider circulation, in employment news bulletin and
announcements through radio and television and
consider all eligible candidates. In view of the
subsequent decisions of the Supreme Court and the Three
Bench judgment of the Supreme Court in Excise
Superintendent, Malakpatnam
(supra), the respondent Bank cannot fall back on decision of
this Court in State Bank of India (supra) and Naveen Kumar
(supra) to contend that the consideration is confined only to
candidates sponsored from Employment Exchange or District
Sainik Welfare Board or Organisations which are
established/formed for the welfare of Scheduled Caste/
Scheduled Tribe/disabled persons. The interim directions issued
by this Court in some of the writ petitions herein commands
acceptance.
19. Having cleared this issue, it is necessary to consider the
claims of petitioners in W.P.No.14457 of 2010.
20. On going through the pleadings of petitioners as well as
respondent Bank, following facts are not disputed. Petitioners
are engaged from 1993-1994 engaged according to petitioners
continuously, and engaged according to respondent Bank as
and when work is required on a daily assessment basis whenever
regular employee goes on leave or absent from duty; that there
are vacancies and recruitment process is undertaken; though
notification was issued in the year 2010 so far recruitment
process is not completed and the said vacancies remain unfilled;
it appears atleast from 2011 the petitioners are being engaged
continuously through the outsourcing agency and now
Attendance Register is maintained.
21.1 In the light of the submissions of both sides that the
petitioners are being engaged from 1993-1994, perusal of the
voluminous documents filed by the petitioners would also
disclose that it is not in dispute atleast that as and when required,
petitioners are being engaged. Some of the certificates filed by the
petitioners and the relevant notings by the respondent Bank
Officers would disclose that petitioners were engaged in the
absence of a regular employee. However, it is not clear and
respondent Bank has not explained, even though it is a specific
assertion of the petitioners from the beginning, that petitioners
are also paid bonus. If what is contended by the respondent -
Bank is correct i.e., petitioners are engaged on a particular day if
the regular employee is absent or on leave by local sourcing of
such persons to undertake menial job and they are paid wages of
that day, the question of payment of bonus would not arise.
Similarly, reflecting their names in the relevant records also
would not arise. In other words, what emerges from scanning
through the several documents filed by the petitioners along with
the rejoinder in W.V.M.P.No.254 of 2011 is, though petitioners
are engaged as and when regular employee was on leave, their
names are maintained in the musters of respondent Bank,
though not in writing or with the understanding by the local
Manager and as and when they are required, they are engaged.
21.2 Thus, even though there is no regular assignment or
continuous work, the person is expected to be available to work
as and when called and in that sense he cannot undertake any
other job. Undertaking any other job may result in losing the
opportunity, even though it may be intermitantly given when a
regular employee goes on leave. Thus, assuming what is
contended by the respondent Bank may be true that the
engagement of the petitioners was only when regular employee
goes on leave, their availability has to be continuous and
therefore they cannot take up any other assignment. As noted
above, it would clearly amount to exploitation of labour and
adopting the principle of hire and fire which was long ago given
up when India became independent and is a democratic country
governed by rule of law. It also amounts to misusing power to
give false hope to the people coming from lower strata of society
and utilising them whenever and wherever required at their
whims and fancies. Based on these facts, the issue as addressed
extensively by the respective counsels needs consideration.
22. In terms of the earlier orders of this Court, undertaking
given by the respondent Bank in W.P.No.14457 of 2010 as well
as in C.C.No.821 of 2011, the candidates applied directly in
accordance with the interim orders in individual cases and the
claims of the petitioners in all other Writ Petitions should be
considered against existing vacancies without insisting that their
names should be sponsored from Employment Exchange and any
other agency.
23. Question for consideration in the facts of W.P.No.14457 of
2010 as noted above is whether petitioners can seek
regularisation of their services without subjecting them to any
selection process.
24.1 In Umadevi (3), Supreme Court while deprecating the practice
of back-door appointments, appointments on daily wage basis and
subsequent regularization, directed formulation of scheme for
regularization, if services of persons are utilized uninterruptedly for
more than 10 years. Supreme Court held:
53. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR
1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 :
(1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 :
1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in
para 15 above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the employees have
continued to work for ten years or more but without the
intervention of orders of the courts or of tribunals. The
question of regularisation of the services of such employees
may have to be considered on merits in the light of the
principles settled by this Court in the cases abovereferred to
and in the light of this judgment. In that context, the Union
of India, the State Governments and their instrumentalities
should take steps to regularise as a one-time measure, the
services of such irregularly appointed, who have worked for
ten years or more in duly sanctioned posts but not under
cover of orders of the courts or of tribunals and should
further ensure that regular recruitments are undertaken to
fill those vacant sanctioned posts that require to be filled up,
in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion
within six months from this date. We also clarify that
regularisation, if any already made, but not sub judice, need
not be reopened based on this judgment, but there should
be no further bypassing of the constitutional requirement
and regularising or making permanent, those not duly
appointed as per the constitutional scheme.
24.2 Considering the scope of decision in Umadevi, in State of
Karnataka and others Vs. M.L. Kesari and others Supreme Court
held:
11. The object behind the said direction in para 53 of
Umadevi (3) [(2006) 4 SCC 1] is twofold. 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 (3) [(2006) 4 SCC 1] was rendered, are considered
for regularisation 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 basis for long periods and then
periodically regularise 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 (3) [(2006) 4 SCC 1]
] 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 regularisation.
The fact that the employer has not undertaken such exercise
of regularisation within six months of the decision in
Umadevi (3) [(2006) 4 SCC 1] or that such exercise was
undertaken only in regard to a limited few, will not
disentitle such employees, the right to be considered for
regularisation in terms of the above directions in Umadevi
(3) [(2006) 4 SCC 1] as a one-time measure.
24.3. In Amarkant Rai v. State of Bihar , Supreme Court held that
The objective behind the exception carved out in this case was to
permit regularisation of such appointments, which are irregular but
not illegal, and to ensure security of employment of those persons
who had served the State Government and their instrumentalities for
more than ten years. In that case, employee was working for 29
years. This decision approves earlier view expressed in M.L.Kesari
(supra) extracted above.
24.4. In State of Jharkhand v. Kamal Prasad , similar view was
taken. Supreme Court held:
41. .In view of the categorical finding of fact on the
relevant contentious issue that the respondent employees
have continued in their service for more than 10 years
continuously therefore, the legal principle laid down by this
Court in Umadevi (3) case [State of Karnataka v. Umadevi
(3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] at para 53
squarely applies to the present cases. The Division Bench of
the High Court has rightly held that the respondent
employees are entitled for the relief, the same cannot be
interfered with by this Court.
25.1. Services of petitioners in W.P.No.14457 of 2010 have been
utilised for a long time i.e., from 1993-1994, though not
regularly/ continuing every day in a month and was not paid
wages on monthly basis. Some of them have proof of their work
and others do not have. However, they are required to be on
rolls, be allert and at the beck and call of the officials of the bank
to work whenever called and to do whatever task is entrusted to
them, such as to sweep, to clean the floors to clean the toilets to
act as messengers/curriers etc. They appear to have rendered
satisfactory service, earning bonus also, and at any rate no
adverse action was taken against them.
25.2. Having regard to the peculiar facts and circumstances of
the case, justice and equity requires that the respondent Bank
should evolve some scheme to assign priority in the selection
process while conducting selections to fill existing vacancies of
Office Attendants (Multipurpose); duly taking note of long service
rendered by them; grant relaxation of age if they are found to be
over aged by 2010 and if they were within the age when initially
engaged.
26. In W.P.Nos.37521, 38457 and 37522 of 2012, petitioners
also claimed to have worked with the respondent - Bank. The
respondent - Bank is required to verify whether petitioners in
these writ petitions have worked and if so they may be extended
same benefit as extended to petitioners in W.P.No.14457 of 2010.
27. Accordingly, the Writ Petitions are disposed of as under:
(a) Petitioners in all the writ petitions be subjected to
selection process in pursuant to the recruitment
exercise taken up in the year 2010 to fill vacancies in
the post of Office Attendants (Multipurpose) without
insisting that their names should be sponsored by
Employment Exchange /or any other agency.
(b) While considering for such recruitment, the Bank may
evolve some procedure/scheme to grant weightage to
petitioners in W.P.No.14457 of 2010 having regard to
the service rendered by petitioners, subject to such
service being satisfactory. They shall also be extended
relaxation in age if they were within the age when they
were initially engaged.
(c) If petitioners in W.P.Nos. 37521, 37522 and 38457 of
2012 are also similarly situated to petitioners in
W.P.No.14457 of 2010, they may also be extended the
same benefits as extended to those petitioners.
No costs. Having regard to the same, miscellaneous
petitions, if any pending, are closed.
____________________
P. NAVEEN RAO, J
DATE: 27-04-2017
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