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W.A.No.295 of 2023

APHC010073172023

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3463]

FRIDAY ,THE TWENTY THIRD DAY OF AUGUST

TWO THOUSAND AND TWENTY FOUR

PRESENT

THE HONOURABLE SRI JUSTICE G.NARENDAR

AND

THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

WRIT APPEAL NO: 295/2023

Between:

The Chief Executive Officer ...APPELLANT

AND

T Seshagiri and Others ...RESPONDENT(S)

Counsel for the Appellant:

1. G SRINIVASULA REDDY (SC FOPP MPP AND GP SERVICES)

Counsel for the Respondent(S):

1. S SYAMSUNDER RAO

The Court made the following:

JUDGMENT: (per Hon‘ble Sri Justice G.Narendar)

Heard Sri G.Srinivasulu Reddy, Learned Standing Counsel,

appearing for the Appellant; Sri S.Syam Sunder Rao, Learned Counsel

appearing for the 1

st

respondent/writ petitioner; and learned G P (S-IV)

appearing for Respondents 2 and 3.

2. The Appellant is the Chief Executive Officer of the Zilla Praja

Parishad, Eluru, West Godavari District, and is before this Court in this

intra-Court Appeal being aggrieved by the order of the learned Single

Judge rendered in W.P.No.474 of 2021, dated 05.01.2023.

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3. The parties are referred to in this Appeal by their nomenclature

before the learned Single Judge for the sake of brevity and convenience.

4. It is the case of the Petitioner that his demand for regularization

has been accepted by the Tribunal and also this Court and in that view,

he is entitled for counting of his service from the day he was first

employed and that the learned Single Judge was right in allowing the

Writ Petition and directing that his entitlements be settled within a

stipulated period.

5. The learned Counsel for the Petitioner has taken the Court

through various orders passed by the Tribunal and the Composite High

Court of Judicature at Hyderabad for the State of Telangana and the

State of Andhra Pradesh and this High Court.

6. It is pertinent to trace the judicial ―Long March‖ of the Petitioner at

the outset itself.

(i). The material placed on record would reveal that the petitioner

initially filed O.A.No.377 of 1996 praying for a direction to the

Respondents to pay the applicant the arrears of salary based on

confirmation and revised scale with effect from 30.11.1987 to

03.09.1995 with all consequential benefits. The Tribunal placed reliance

on G.O.Ms.No.212, dated 22.04.1994 and after taking note of the fact

that the services of the Petitioner were regularized pursuant to the said

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G.O., proceeded to hold that there was no provision which prohibited

payment of arrears of salary from the date of initial appointment

and proceeded to grant a relief pursuant to the order of

regularization, regularizing the services of the Petitioner with effect

from 10.07.1995. The same came to be disposed of by order, dated

17.09.1997. Aggrieved thereby, the Respondent approached the High

Court in W.P.No.22873 of 2004. The said Writ Petition came to be

rejected without being admitted. But, while so rejecting, the High Court

was pleased to reserve liberty to the Respondent to seek review of the

order, dated 17.09.1997, and the Writ Petition came to be disposed of

on 10.12.2004. The Petitioner, being aggrieved by the said liberty,

preferred Review WPMP No.33050 of 2005 questioning the grant of

liberty to the Respondent to approach the Tribunal and seek review of

the order, dated 17.09.1997. The High Court was pleased to review the

order and after hearing the parties was pleased to recall the liberty

reserved to the Respondent to approach the Tribunal for seeking review

of the order, dated 17.09.1997. Thereby, the order of the Tribunal,

dated 17.09.1997, was given a stamp of finality.

(ii). Thereafter, the Petitioner preferred O.A.No.3368 of 2007 praying

for grant of career advancement scheme increments for 8 and 16 years

from the date of his initial appointment and regularization i.e. from

30.11.1987 and to pay arrears of increments from that date onwards.

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The said O.A. also came to be allowed. While allowing, the Tribunal

was pleased to place reliance on G.O.Ms.No.212, dated 22.04.1994,

but, rejected the applicability of G.O.Ms.No.430, dated 14.11.1997,

which sought to bring about an amendment to the G.O.Ms.No.618,

dated 23.09.1994, whereby the G.O. was sought to be made effective

prospectively i.e. from the date of regularization and not from the date of

original appointment.

(iii). The same left the Respondent twiddling with their thumbs.

Emboldened the Petitioner moved one more O.A. i.e., O.A.No.9217 of

2011 seeking to fix his notional seniority from the date of his initial

appointment and also to implement the Government Memo, dated

09.06.2011. The Tribunal, by order, dated 21.06.2015, was pleased to

dispose of O.A.No.9217 of 2011 by directing the Respondents, more

particularly, the Commissioner, Panchayat Raj and Rural Development,

Hyderabad, and the Chief Executive Officer, Zilla Praja Parishad, West

Godavari District, to consider the claim of the Petitioner by taking into

account the date of regularization i.e. from the date of appointment i.e.

30.11.1987 and to also take into account G.O.Ms.No.618, dated

23.09.1994, G.O.Ms.No.430, dated 14.11.1997 and to pass appropriate

orders in accordance with statutory rules in existence and the law

governing the subject within a period of three months. The Respondent

sought for a legal opinion from the Standing Counsel and it was opined

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W.A.No.295 of 2023

that the reckoning date could never be 30.11.1987, as the Petitioner was

not even borne in the cadre much less against a regular post and a

regular vacancy. That the Petitioner had been appointed as a daily

wager in the post of the Typist and without reference to the rule of

reservation. It was further opined that any action favouring the

Petitioner would result in the Petitioner leapfrogging his seniors, who

have been appointed on a regular basis and against notified vacancies

and in a manner known to law. It was further opined that the conditional

right to regularization having come about only with the promulgation of

the G.O.Ms.No.212, dated 22.04.1994, and the consequential

G.O.Ms.No.618, dated 23.09.1994 regularizing the services of the

Petitioner seniority could not be granted from an anterior date and the

Respondent accepting the opinion reiterated the same in their

endorsement/proceedings, dated 14.10.2015. Additionally, it was also

held against the Petitioner that the Petitioner has not called in question

G.O.Ms.No.430, dated 14.11.1997, G.O.Ms.No.392, dated 21.09.1998,

G.O.Rt.No.1060, dated 29.07.2000 and placing reliance on the

conditional relief granted in favour of the other three Typists subject to

the order in W.P.No.5205 of 2005 and W.P.No.24857 of 2006 preferred

by the Government, the Respondent rejected the case of the Petitioner

for fixing his notional seniority with effect from 30.11.1987.

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W.A.No.295 of 2023

(iv). Aggrieved thereby, the Petitioner preferred one more O.A. i.e.

O.A.No.4265 of 2016, which later came to be renumbered as W.P.

No.18475 of 2021 before this Court. The learned Single Judge

proceeded to pass the following orders:

―7. Accordingly, the Writ Petition is allowed, while

declaring the impugned proceedings dated 14.10.2015 issued by

the 3

rd

respondent as illegal and arbitrary and same is hereby

set aside. The respondents are directed to fix the notional

seniority in the cadre of Typist with effect from 30.11.1987 and

release all increments and consequential benefits to the

petitioner, such as revision of seniority and further respective

promotions to the next higher level along with consequential

benefits as per Government memo dated 09.06.2011 issued by

the 1

st

respondent and order in R.C.No.H6/3277/2008, dated

15.10.2009 passed by the Deputy Chief Executive Officer, Eluru,

within a period of eight (08) weeks from the date of receipt of a

copy of this order. There shall be no order as to costs‖

7. It is pertinent to note that even the learned Single Judge has

placed reliance on G.O.Ms.No.212, dated 22.04.1994.

8. From the above narration, it is apparent that the Petitioner has

been conducting his litigation in a staggered manner. In the first round

of litigation, which commenced in the year 1996, the Petitioner simply

asked for arrears of salary in view of the order of regularization, dated

23.09.1994, which in itself was consequential to G.O.Ms.No.212, dated

22.04.1994. Thereby implying his acceptance of the terms of

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regularization. Thereafter, the second round of litigation was initiated in

2007 seeking for grant of advancement scheme increments for 8 and 16

years and the third round of litigation commenced in 2011 seeking for

fixation of notional seniority from the date of his appointment and the

fourth round of litigation was in 2016, which came to be renumbered in

the year 2021 before this High Court, resulting in the impugned order.

9. The impression that one can gather is that the Petitioner has

carefully orchestrated the litigation in a staggered manner. Notional

seniority, arrears of wages and career advancement scheme

increments, all being consequential reliefs to the relief of regularization,

are litigated over a period of 20 years i.e. from the first O.A. which

commenced in 1996 and culminating in the last O.A. in 2016. Though,

at the first blush it appeared to be a classic case of State oppression,

but a closer scrutiny of the facts and in particular the orders, go to speak

otherwise. The reasoning and conclusions drawn hereinafter would

clearly justify our observation.

10. CONTENTIONS OF THE WRIT PETITIONER:

(i). It is the case of the Petitioner that he was lawfully appointed as a

Typist on daily wage basis; that the order of appointment was issued on

30.11.1987; that since then he has been diligently discharging his duties

and he is presently discharging duties as a Senior Assistant in the office

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W.A.No.295 of 2023

of the Mandal Praja Parishad, Dwaraka Tirumala, West Godavari

District;

(ii). That while so, his services came to be regularized under

G.O.Ms.No.618, dated 23.09.1994, with effect from the date of their first

appointment, subject to the appointing authority duly following the rule of

reservation;

(iii). That G.O.Ms.No.618, dated 23.09.1994, came to be issued

consequent to G.O.Ms.No.212, dated 22.04.1994; and the orders of

regularization having been issued with effect from the date of

appointment, the Petitioner was entitled to all reliefs consequential to the

act of regularization;

(iv). That arrears and back-wages, applicability of career advancement

scheme and fixation of seniority are all consequential and that

successive orders of the Tribunal have recognized and upheld the

entitlement of the Petitioner to back- wages from 1987 to 1996, career

advancement scheme and lastly for notional seniority; and

(v). That the issue of regularization, having been settled, the other

reliefs being consequential and the Tribunal having repelled the attempt

of the Respondents to apply the amended G.O.Ms.No.618, dated

23.09.1994 and G.O.Ms. No.430, dated 14.11.997, there is no

impediment to grant the reliefs sought for by the Petitioner under various

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W.A.No.295 of 2023

proceedings. The learned Counsel for the Petitioner would pray for

rejection of the Writ Appeal.

11. CONTENTIONS OF THE 3

rd

RESPONDENT/APPELLANT :

The 1

st

respondent in the Writ Petition is the Appellant herein.

This Respondent has canvassed the case on multifarious grounds.

(i). The learned Government Pleader would strenuously contend that

there has been a clear miscarriage of justice and on account of the

careful maneuvering & orchestration of the litigation by the Petitioner,

the State‘s exchequer has been mulcted with a liability which was not

envisioned under G.O.Ms.No.212 dated 22.04.1994 nor to which the

Petitioner was made entitled under G.O.Ms.No.618, dated 23.09.1994.

(ii). That the G.O.‘s never granted back-wages or notional seniority.

(iii). He would contend that all the orders are in the teeth of

G.O.Ms.No.212, dated 22.04.1994 and G.O.Ms.No.618, d ated

23.09.1994 and being contrary to law are rendered per incuriam;

(iv). That the Petitioner has also not mounted any challenge to either

G.O.Ms.No.430, dated 14.11.1997 or G.O.Ms.No.392, dated

21.09.1998, whereby the rights of the persons, who are entitled for

regularization under G.O.Ms.No.212, dated 22.04.199 4, stood

crystallized; that the orders that have flown from the Tribunal are

contrary to the G.O.Ms.No.430, dated 14.11.1997 and G.O.Ms.No.392,

dated 21.09.1998, which are still holding the field and in that sense, the

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orders are rendered per incurium being in ignorance and contrary to law;

and

(v). The learned Government Pleader would vehemently refute the

claim of the Petitioner that he is entitled for regularization from the date

of his original appointment and the Learned Government Pleader would

pray that the Writ Appeal be allowed and the order of the learned Single

Judge be set aside and the rights of the Petitioner be settled in terms of

G.O.Ms. No.212, dated 22.04.1994 and G.O.Ms.No.430, dated

14.11.1997 and G.O.Ms.No.392, dated 21.09.1998.

12. We have bestowed our anxious consideration to the various

contentions canvassed on behalf of both the parties and so also to the

material papers. In the course of hearing, it became apparent that

regularization of the Petitioner‘s services had its genesis in

G.O.Ms.No.212, dated 22.04.1994. It is also apparent that in the entire

line of litigations, there is critical reference to the aforesaid G.O. Hence,

we deem it necessary to subject it to a close scrutiny and hence, we re-

produce the same hereunder:

―GOVERNMENT OF ANDHRA PRADESH

ABSTRACT

Public Services – Regularisation and absorption of Daily Wage /

NMR or Consolidated Pay – Specific Scheme – Formulated –

Orders – Issued.

------------------------------------------------------------------------------------

FINANCE AND PLANNING (FW.PC.III) DEPARTMENT

G.O.Ms. No.212 Dated:22-04-1994

Read the following :

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1. The A.P. (Regulation of Appointment to Public

Services and Rationalization of Staff Pattern and

Pay Structure) Act 2 of 1994.

2. Govt. Memo. No.42246-A/907/PC.I/A1/93,

Dated.2-2-1994.

ORDER:

Government noticed that appointing authorities of the

Institutions and Establishments under the control of State

Government, Local Authorities, Corporations owned and

controlled by the State Government grossly violated the

instructions issued from time to time by the Government and

appointed persons indiscriminately to various categories of

services either on Daily Wage basis or temporary basis without

there being a post and without being sponsored by Employment

Exchange and without observing the rule of reservation to the

Scheduled Castes, Scheduled Tribe and Backward Classes. In

most of the cases, the persons appointed for a specific work

have been continued even after their need ceased. After a lapse

of some time, all these appointees have approached the various

Courts and Tribunals for regularisation of their services and

Courts and Tribunal have been directing the State Government

to regularize the services on the ground that they have a long

service to their credit. This practice has been causing

considerable drain on the finances of the State Government.

Government have thought it imperative to prohibit the

unauthorized and irregular appointments by a law in the public

interest. Accordingly the State Government have enacted law

regulating the appointments to Public Services and for

Rationalization of the Staff Pattern and Pay Structure in the

reference read above. This will streamline the recruitment along

healthy lines, to enforce Employment Exchanges (Compulsory

Notification of Vacancies) Act in its true letter and spirit, to follow

the rule of reservation enshrined, in the Constitution with utmost

strictness and to punish those who are guilty of violating the law.

The above Act came into force with effect from 25-11-1993.

(underlining by this Court)

2. Though the reference 2

nd

cited, information has been

obtained from various Government Offices, Local Bodies, Public

Sector undertakings etc., from the information received by

Government, it is seen that appointing authorities have violated

the instructions issued by Government and appointed several

individuals. Appointments have been made indiscriminately in

the Government Offices, Local Bodies, Universities, Public

Sector undertakings and various other Bodies and Institutions

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operating on Government finances. In fact, there is no need to

continue all these Daily Wage / Temporary employees for the

reasons that not all of them are appointed in sanctioned posts

and the recruitment was in many cases not through Employment

Exchange. Their appointment was made without following rule of

reservation and in the case of work-charged employees; there is

no work for them as the specific work for which they were

appointed has already been completed. Though the Act

provides that no person who is Daily Wage employee and no

person who is appointed on temporary basis shall have any right

to claim for regularization of service on any ground, it has been

the endeavour of the Government to regularize as many as

NMR/ Daily wage employees a possible who are otherwise

qualified depending on the requirement of the workload while

keeping in mind the hardship that would be caused if their

services are not regularized. The Hon‘ble Supreme Court in its

Judgment dated 12-08-1992 in Civil Appeal No. 2979/92 and

batch have also observed to evolve an appropriate policy for

regularization. Accordingly, Government after careful

examination of the whole issue and in supersession of all

previous orders on the subject including G. O. Ms. No.193,

General Administration Department, dated.14-03-1990 and

keeping in view the above judgment of Supreme Court of India,

have formulated a scheme for regularization of services of the

persons appointed on Daily Wage / NMR or on consolidated pay

and are continuing on the date of commencement of the Act.

Government accordingly decided that the services of such

persons who worked continuously for a minimum period of 5

years and are continuing on 25-11-1993 be regularized by the

appointing authorities subject to fulfillment of the following

conditions: (underlining by this Court)

1. The Persons appointed should possess the qualification

prescribed as per rules in force as on the date from which

his/her services have to be regularized.

(underlining by this Court)

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.

(underlining by this Court)

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

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excluding the vacancies alr eady notified to

the Andhra Pradesh Public Service Commission / District

Selection Committee. (underlining by this Court)

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 as 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.

3. All the Departments of Secretariat / Heads of Departments

are requested to process the cases of absorption / regularization

of services of N.M.Rs. / Daily Wage Employees etc. in pursuance

of above scheme and obtain the clearance of Government

before orders are issued for such regularization or absorption.

(BY ORDER AND IN THE NAME OF THE GOVERNOR OF

ANDHRA PRADESH)

A.R. Jaya Prakash,

Secretary to Government‖

13. The abstract would carry the subject under the caption ―Public

Services – Regularisation and absorption of daily wage/NMR/

consolidate pay/Part-time employees – Specific Scheme – Formulated –

Orders – Issued‖. Thereafter, the preamble to Act 2 of 1994 i.e. Andhra

Pradesh (Regulation of Appointments to Public Services and

Rationalization of Staff Pattern and Pay Structure) Act, 1994 (Act 2 of

94) reveals the rationale behind the ―Specific Scheme‖. A reading of the

preamble to the order would record that there has been a gross violation

of the instructions issued by the Government from time to time with

regard to appointments on daily wage basis or temporary basis being

made indiscriminately and sometimes without even there being a post

much less being sponsored by the Employment Exchange and even

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without observing the rule of reservation to Scheduled Castes and

Scheduled Tribes and Backward Classes, which is a constitutional

mandate. It also records that people appointed to tenure posts or for a

particular purpose have been continued even after the purpose ceased

to exists; that as a result and after a passage of time, all such persons

approached various Courts and Tribunals praying for regularisation

resulting in a drain on the exchequer and the Government of the day in

order to alleviate an obnoxious practice and with the objective of ridding

itself of this menace of unauthorised and irregular appointments, thought

it imperative to enact law for regulating appointments to public services

and for rationalisation of the staff pattern and pay structure and also to

stream-line recruitment along healthy lines and to enforce Employment

Exchange (Compulsory Notification of Vacancies) Act in its true letter

and spirit and to follow the rule of reservation enshrined in the

Constitution with utmost strictness and to punish those who are guilty of

violating the law and Act 2 of 1994 came to be legislated and came into

effect on 25.11.1993.

14. Para.2 would record that the information was secured by the State

from various Government Offices, Local bodies, Public Sector

Undertakings etc., and that the information reveals that there has been a

gross violation of the instructions issued by the Government resulting in

appointment of several individuals. It further records that appointments

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have been made indiscriminately resulting in a huge burden on the

Government finances. It further records that the information furnished

and collected from various departments would reveal that there was no

need to continue daily wage/temporary employees, as most of them are

not appointed against sanctioned posts and the recruitment is not

through the Employment Exchange. That their appointments have been

made without following the rule of reservation and in case of work

charged employees appointments are made, though there is no work

that could be allotted much less discharged by them.

15. That apart, in view of the ruling of the Hon‘ble Apex Court in

C.A.No.2979 of 1992, dated 12.08.1992, which recommended the

framing of an appropriate policy for regularisation, the Government

proceeded to issue G.O.Ms.No.212 and thereby superseded all previous

orders on the subject and the G.O. is claimed to be issued keeping in

view the afore stated judgment of the Hon‘ble Apex Court and the same

has resulted in the framing of a Scheme for regularisation of services of

the persons of the above noted class of persons.

16. That one of the elementary pre-conditions stipulated is that they

should possess the eligibility as stipulated for the post under the rules

and the second pre-condition is that they ought to have worked

continuously for a minimum period of five years and are continued as on

25.11.1993 and only such persons and not all and sundry were made

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eligible to be considered for regularisation. That apart, sub-paras (1) to

(6) of para.2 also impose certain pre-conditions apart from the twin

eligibility conditions of having worked for five years and continuing

working on the appointed date i.e. 25.11.1993. The first pre-condition

stipulates that the person so appointed should possess the prescribed

qualification as per Rules in force as on the date.

17. The other pre-conditions are that they should be within the age

limit as on the date of appointment; thirdly, the rule of reservation

wherever applicable is to be followed and backlog to be set off against

future vacancies; fourthly, sponsoring of candidate by the Employment

Exchange is waived or relaxed; fifthly, the absorption should be against

the clear vacancy of posts considered necessary to be continued as per

work load excluding the vacancies already notified to the APPSC/DSC;

sixthly and lastly, employees who are rendering service as work charged

establishments have to be shifted to other departments after their

services are terminated in the work charged establishment.

18. Thus, from the above, it can be safely inferred that G.O.Ms.

No.212, dated 22.04.1994, was not a licence for indiscriminate

application as a matter of right but was a Scheme designed to enable

the regularization of the employment of people, who otherwise were not

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entitled to be appointed on a regular basis, as they had not undergone

the prescribed process of selection and were all back door entrants.

19. As a consequence to the same, G.O.Ms.No. 618, dated

23.09.1994 came to be issued by the Secretary to Government,

Panchayat Raj and Rural Development and Relief (Estt.V) Department.

The same reads as under:

“GOVERNMENT OF ANDHRA PRADESH

ABSTRACT

ESTABLISHMENT - Ministerial - Zilla Parishad, West

Godavari District - Certain Temporary Typists working on

daily Wage basis in the Zilla Parishad, West Godavari

District - Regularisation of their Services in the cadre of

Typists - Orders - Issued.

-----------------------------------------------------------------------------

PANCHAYAT RAJ & RURAL DEVELOPMENT & RELIEF

(ESTT.V) DEPARTMENT

G.O.Ms.No: 618. Dated: 23-09-1994.

Read the following:-

1. G.O.Ms.No: 1175, PR & RD Dept., dt: 17-07-87.

2. G.O.Ms.No: 212, Fin. & Plg. (FW) Department,

dt: 22-04-94.

3. From the CEO, Z.P., West Godavari District letter

No:H6/2216/94, dated: 30-05-94 and 02-09-94.

ORDER:

Orders were issued in the reference first read above

permitting all the Zilla Parishads in the State as a Special

Case in the exigencies of work to appoint typists on daily

wage basis in relaxation of the ban orders subject to certain

conditions therein. The Chief Executive Officer, Zilla

Parishad has appointed the four persons on daily wage

basis based on the above orders.

2. Orders were issued in the reference 2

nd

read above to

regularise temporary employees who are working on daily

wage basis in the State who fulfilled the conditions laid

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down in the said G.O. and also requested all the

Departments of Secretariat to obtain approval of the

Finance & Planning (F.W) Department before issue of

orders.

3. The Chief Executive Officer, Zilla Parishad, West

Godavari District in the reference third read above, has

reported that there are no Junior Assistants working on

daily wage basis. The following 4 Typists who are working

on daily Wage basis and the individuals are continued on

the direction of A.P. Administrative Tribunal in O.As and

requested the Government to issue necessary orders to

regularise the following 4 Typists who are working on daily

wage basis.

Date of appointment

1. Sri T.Jacob Raju, Typist, M.P., Pedavegi, 11-02-1987

2. Sri G. Ramam, Typist, M.P., Elamanchili 12-02-1987

3.Sri P.V.R.Bhaskara Bhushanam, Typist, 18-02-1987

M.P., Dwarakatirumala.

4. Sri T. Seshagiri, Typist, M.P., Nallajarla. 30-11-1987

4. Government after careful examination hereby permit

the Chief Executive Officer, Z.P., West Godavari District to

regularise the services of the following temporary Typists

who are working on daily wage basis under the

management of Zilla Parishad, West Godavari District with

effect from the date of their first appointment duly following

the rule of reservation and also subject to withdrawing the

court cases filed by them.

1.Sri T.Jacob Raju, Typist, M.P., Pedavegi from 11-2-1987

2.Sri G.Ramam, Typist, M.P., Elamanchili from 12-2-1987

3.Sri P.V.R. Bhaskara Bhushanam, from 18-2-1987

Typist, M.P., Dwarakatirumala.

4.Sri T.Sheshagiri, Typist, M.P.,Nallajerla. from 30-11-1987

5. This order issues with the concurrence of the Finance

and Planning (F.W) Department vide their U.O.No.

23574/A1/337/PC.III/94, dated: 10-08-1994.

(BY ORDER AND IN THE NAME OF THE GOVERNOR O F

ANDHRA PRADESH)

Sd/-G.SUDHIR

Secretary to Government‖

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20. A reading of the Ref.2 and Para.2 would make it clear as crystal

that the said G.O. is enabled by G.O.Ms.No.212, dated 22.04.1994.

Subsequently, the Respondents realising that certain errors have crept

in to G.O.Ms.No.618, dated 23.09.1994, proceeded to issue an

addendum by way of G.O.Ms.No.430, dated 14.11.1997, seeking to

clarify the date from which they were entitled to have their services

regularised. It is pertinent to note here itself that the said G.O. has not

been set aside and still holds the field. Subsequently, another

G.O.Ms.No.392, dated 21.09.1998, came to be issued and the same

was issued to deal with another or fourth class of persons who were left

out of the scope and ambit of G.O.Ms.No.212, dated 22.04.1994. In a

sense, under G.O.Ms. No.430, dated 14.11.1997, what was sought to be

clarified is that the regularisations in terms of G.O.Ms.No.212, dated

22.04.1994, were required to be from the date on which they were

regularised and not from the date of their original appointment.

21. The G.O.Ms.No.430, dated 14.11.1997, reads as under:

―GOVERNMENT OF ANDHRA PRADESH

ABSTRACT

Establishment - Ministerial - Z.P., West Godavari Dist., - Certain

Temporary Typists working on Daily Wage basis under the

control of Z.P., West Godavari District - Regularisation of their

services in the cadre of Typists - Ordered - Amendment - Issued.

------------------------------------------------------------------------------------

PANCHAYAT RAJ AND RURAL DEVELOPMENT (ESTT -V)

DEPARTMENT

G.O.Ms.430 Dated: 14.11.1997

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GO.Ms.No.618,P.R &R.D. (Estt-V) Department, dated

23.9.94.

ORDER:

1. The following amendment is issued to the G.O.Ms. No.618,

P.R & R.D (Estt-V) Department, Dated 23.9.94:-

For the words "with effect from the date of their first

appointment" occurred in para-4 of the said G.O., the

words "with prospective effect" shall be substituted.

2. This order issues with the concurrence of Finance and

planning (FW.PC.III) Department vide their

U.O.No.25453/180/A3/PC.III/97, dated 22.7.1997.

(BY ORDER AND IN THE NAME OF THIS GOVERNMENT OF

ANDHRA PRADESH)

P.RAMAKANTHA REDDY

SECRETARY TO GOVERNMENT ‖

22. We have heard the parties at length. The question that falls for

consideration before this Court was whether the petitioner could have

sought for settlement of seniority after nearly thirty years of his alleged

appointment. At the very outset, we observe that the petitioner has been

using the justice dispensation system, namely the Courts, as a tool to

secure orders more on the basis of sympathy than any legal entitlement

vested in him. In this regard, we have examined the various G.Os.,

more particularly, G.O.Ms. No.212, dated 22.04.1994. The preamble to

the G.O. is clear that it is a ―specific scheme‖ that has been formulated

by the Government to address the scourge of irregular and illegal

appointments made by various authorities and State owned

Corporations and the instant writ petitioner is a classic case of pounding

the executive with series of litigation and beating them down into

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submission with a deluge of orders. The G.O. also speaks about the

indiscriminate appointments and the yearning of the State to streamline

recruitment along healthy lines.

23. The notification fell for consideration before the Hon‘ble Apex

Court in A.Manjula Bhashini v. A.P. Women’s Coop. Finance Corpn.

Ltd.

1

The Hon‘ble Apex Court has proceeded to not only interpret the

G.O.Ms.No.212, dated 22.04.1994, but also has upheld the Act of 1998.

It is pertinent to note that both the G.Os. still hold the field. The relevant

paragraphs in A. Manjula Bhashini‘s case

1

are extracted hereunder for

a better and critical appraisal of the facts of the case:

“25. The relevant portions of the Division Bench judgment

are extracted below:

―58. The entire basis whereupon the judgment of the

learned Single Judge is based is, therefore, erroneous. As

indicated hereinbefore having regard to the mode of

appointment, the requirements thereof, absence of

sanctioned posts, non-observance of the statutory rules the

part-time employees, ad hoc employees and NMRs did not

derive any legal right whatsoever to continue in service. In

fact, save and except the right conferred upon them to be

considered for regularisation by reason of GOMs No. 212,

they did not have any other legal right whatsoever. It is now

well-settled principle that by reason of a catena of decisions

of the High Court as also of the Supreme Court of India a

prolonged service would not ripen into permanence nor by

reason thereof the status of employee can be changed.

59. It is also not a case where an individual decision

inter-party had been sought to be taken away by reason of

the said Amendment Act in terms whereof their rights and

liabilities alone were affected. The interpretation of a policy

decision is a judgment in rem and by reason thereof, no

inter-party rights had been conferred or adjudicated upon.

1

(2009) 8 SCC 431

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60. The validation Act or for that purpose any

Amendment Act does not offend the doctrine of separation of

powers. It is also trite that the Court in exercise of its

jurisdiction under Article 226 of the Constitution while

exercising its power of judicial review over legislation would

not invalidate an Act on the ground of malice or otherwise.

Such an approach, in our opinion, is wholly unwarranted

inasmuch as the question as to whether the statute suffers

from the vice of fraud on legislation or not must be kept

confined to the legislative competence and not otherwise.

Right to employment is not a fundamental right or a

constitutional right. In terms of Articles 14 and 16 of the

Constitution the right of a citizen is confined only to

consideration therefor. Thus it would be incorrect to contend

that the same would be a right of property.

***

67. The next question which may arise for consideration

would be as to whether the cut-off date 25-11-1993 is so

arbitrary as to attract the wrath of Article 14 of the

Constitution.

68. Fixing a cut-off date is normally not arbitrary unless it

can be said to be case where such a date has been fixed

arbitrarily or capriciously and no reason exists therefor.

69. After the decision of the Apex Court in Piara Singh

case [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21

ATC 403. Ed.: Piara Singh case has been overruled

in Umadevi (3) case, (2006) 4 SCC 1.] the State had

appointed a committee. The committee had gone into the

matter and made certain recommendations including fixation

of cut-off date. Such a cut-off date was fixed keeping in view

the coming into force of such policy decision. In Sushma

Sharma v. State of Rajasthan [1985 Supp SCC 45 : 1985

SCC (L&S) 565] the Apex Court has held: (SCC pp. 64-65,

paras 38-39).

‗38. It may be borne in mind that wisdom or lack of

wisdom in the action of the Government or legislature is

not justiciable by court. See in this connection the

observations of the US Supreme Court in Metropolis

Theater Co. v. City of Chicago [57 L Ed 730 : 228 US 61

(1912)] . To find fault with a law is not to demonstrate its

invalidity. McKenna, J. observed as follows:

―It may seem unjust and oppressive, yet be free

from judicial interference. The problems of

Government are practical ones and may justify, if they

do not require, rough recommedations, illogical, it may

be, and unscientific. But even such criticism should

not be hastily expressed. What is best is not always

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discernible, the wisdom of any choice may be

disputed or condemned. Mere errors of Government

are not subject to our judicial review. It is only its

palpably arbitrary exercises which can be declared

void.‖

39. This passage has been quoted with approval by

Chief Justice Chandrachud in Prag Ice & Oil Mills v. Union

of India [(1978) 3 SCC 459 : AIR 1978 SC 1296 : (1978) 3

SCR 293] , SCC at p. 498 : SCR at p. 333: AIR at p.

1318.‘

70. Yet again in Cauvery Water Disputes Tribunal,

Re [1993 Supp (1) SCC 96 (2)] the Apex Court clearly held:

(SCC p. 140, para 73)

'73. … To the extent that the Ordinance interferes with

the decision of this Court and of the Tribunal appointed

under the Central legislation, it is clearly unconstitutional

being not only in direct conflict with the provisions of

Article 262 of the Constitution under which the said

enactment is made but being also in conflict with the

judicial power of the State.'

71. There is another aspect of the matter which we may

not lose sight of. In terms of Act 2 of 1994 a complete ban

had been imposed in making recruitment of NMR, part-time

or ad hoc employees. Thus on and from 25-11-1993 nobody

had been employed nor could be employed. Any such

appointment would ex facie violate the provisions of the said

Act 2 of 1994 which not only contains a penal provision but

also imposed statutory liability upon the officers to pay and

unto the State all such salaries and emoluments paid to such

employees. Even a ban had been imposed on the treasuries

to honour such bills.

72. Act 27 of 1998 has come into force on 19-8-1998.

Thus the ban which now would be imposed, as regards grant

of regularisation will be effective from that date. Can it be

said that five years' continuous service as on 13-8-1998 is a

condition which is wholly arbitrary and irrational so as to

attract Articles 14 and 246 of the Constitution.

The answer to the aforementioned question must be

rendered in the negative. It will be a repetition to state that by

reason of GOMs No. 212 no workman derives any vested

right to be appointed as such. But the employees who fulfil

the criteria were entitled to be only considered therefor.

Regularisation of service in terms of the aforementioned

GOMs No. 212 is dependent upon fulfilment of the condition

enumerated therein.

As is evident from the decision of the Apex Court in M.L.

Singh case [(2009) 8 SCC 480 : (1998) 2 An LT 5] a

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distinction must be borne in mind between a vested right and

a right to be considered inasmuch as the requirement of a

clear vacancy has a direct nexus therewith. Even if there

were clear vacancies, such vacancies were required to be

filled up having regard to the reservation policy of the State.‖

27. Learned counsel further argued that by virtue of the policy

contained in the G.O. dated 22-4-1994, persons appointed on

daily wages or nominal muster roll or consolidated pay acquired

a right to be regularised in service and the State could not have

deprived them of the said right by retrospectively amending the

1994 Act.

28. Another argument of the learned counsel for the

employees is that once this Court held that all persons appointed

on daily wages or nominal muster roll or consolidated pay are

entitled to be regularised with effect from the date of completion

of 5 years' continuous service, the legislature was not justified in

prescribing 25-11-1993 as the cut-off date for determining the

eligibility of daily wagers, etc. for the purpose of regularisation.

Learned counsel emphasised that the interpretation placed by

this Court on the G.O. dated 22-4-1994 is final and the same

could not have been undone by amending the 1994 Act.

29. Learned counsel for the State of Andhra Pradesh and its

agencies/instrumentalities argued that the 1994 Act was

amended to clarify the object underlying the policy of

regularisation contained in the G.O. dated 22-4-1994 and to

make the same an integral part of the statute and the Division

Bench rightly held that the Amendment Acts do not have the

effect of nullifying the judgment of this Court in District

Collector/Chairman v. M.L. Singh [(2009) 8 SCC 480 : (1998) 2

An LT 5] .

30. Learned counsel for the State pointed out that the policy

contained in the G.O. dated 22-4-1994 was a one-time measure

for relaxing the negative mandate contained in Section 7 against

regularisation of the persons appointed on daily wages or on

temporary basis and argued that the legislature did not exceed

its jurisdiction by laying down the requirements of completing 5

years' continuous service on or before 25-11-1993 for the

purpose of regularisation. They, however, questioned the

direction given by the Division Bench for considering the cases

of all daily wagers and the like for regularisation who completed

five years on 19-8-1998 i.e. the date on which Amendment Act

27 of 1998 was published in the gazette, by arguing that it was

legally impermissible for the Division Bench to change and/or

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extend the date of eligibility for regularisation from 25-11-1993 to

19-8-1998 simply because the amendment made in Section 7 by

Act 27 of 1998 was not enforced retrospectively.

31. In the light of the above, we shall first consider whether

the amendments made in the 1994 Act have the effect of

nullifying or overriding the judgment of this Court in District

Collector/Chairman v. M.L. Singh [(2009) 8 SCC 480 : (1998) 2

An LT 5] and whether Section 7-A of (sic inserted by) Act 27 of

1998 amounts to an encroachment on Courts' power of judicial

review. For this purpose, it is necessary to understand the true

nature of the 1994 Act, mischief sought to be remedied by

enactment thereof and the reasons for its amendment.

32. The 1994 Act was enacted in the backdrop of the

decision taken by the State Government to curb irregular

appointments, to rationalise the staff pattern and pay structure

and thereby reduce unnecessary expenditure and also to ensure

that only those selected by the specified recruiting agencies are

appointed against the sanctioned posts. This is clearly

discernible from the Statement of Objects and Reasons

contained in the Bill which led to enactment of the 1994 Act and

provisions contained therein to which reference will be made

hereinafter.

41. We may now advert to the Statement of Objects and

Reasons contained in the Bill introduced in the Andhra Pradesh

Legislative Assembly. A perusal thereof shows that between

1976 and 1993, the total number of employees of the State

Government, agencies/instrumentalities of the State and

bodies/institutions receiving aid from the Government increased

by 82% i.e. from 6.78 lakhs to 12.34 lakhs and in 1993-1994, the

State Government had to spend more than 80% of the total

revenue in payment of salaries, allowances, pension, etc. of the

employees causing severe strain on the revenue of the State

which adversely affected implementation of the welfare schemes

and development programmes. That apart, there was growing

dissatisfaction among several thousand unemployed persons

including those belonging to Scheduled Castes, Scheduled

Tribes and Other Backward Classes, who were registered with

the employment exchanges but could not get opportunity of

competing for selection for appointment against the sanctioned

posts.

42. With a view to redeem the situation, the State

Government decided to totally prohibit employment on daily

wages and also restrict appointment on temporary basis and, at

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the same time, ensure that all appointments are made against

the sanctioned posts only on the recommendations of the

specified recruiting agencies. In furtherance of that decision, the

Governor of Andhra Pradesh promulgated the Ordinance, which

was replaced by the 1994 Act.

43. The term ―daily-wage employee‖ has been defined in

Section 2(ii) to mean any person employed in any public service

on the basis of payment of daily wages and includes a person

employed on the basis of nominal muster roll or consolidated pay

either on full-time or part-time or piece-rate basis or as a work-

charged employee and any other similar category of employees

by whatever designation called other than those who are

selected and appointed on sanctioned posts in accordance with

the relevant rules on a regular basis.

44. The term ―public service‖ has been defined in Section

2(vi) to mean service in any office or establishment of the

Government, a local authority, a corporation or undertaking

wholly owned or controlled by the State Government, a body

established under any law made by the legislature of the State

whether incorporated or not, including a university, and any other

body established by the State Government or by a society

registered under any law relating to the registration of societies

for the time being in force, and receiving funds from the State

Government either fully or partly for its maintenance or any

educational institution whether registered or not but receiving aid

from the Government.

46. Section 4 of the Act lays down that no recruitment in any

public service to any post in any class, category or grade shall

be made except from the panel of candidates selected and

recommended for appointment by the Public Service

Commission/College Service Commission or from a panel

prepared by any Selection Committee constituted for the

purpose in accordance with the relevant rules or orders or from

among the candidates having the requisite qualification and

sponsored by the employment exchange.

47. Section 5 of the Act provides that where an appointment

has been made otherwise than in accordance with Section 4, the

drawing authority shall not sign the salary bill of the appointee

concerned and the Pay and Accounts Officer, Sub-Treasury

Officer or any other officer upon whom duty has been cast of

passing the salary bill shall not pass such bill.

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48. Section 6 envisages imposition of different types of

penalties on the holders of elective offices or any other officer or

authority responsible for making appointment in contravention of

the provisions of the Act. It also provides for recovery of the pay

and allowances paid to a person appointed in contravention of

the provisions of the Act.

49. Section 7 contains a prohibition against regularisation of

persons appointed on daily wages or on temporary basis. It lays

down that such appointee shall have no right to claim

regularisation of service on any ground whatsoever and his/her

service shall be liable to be terminated without any notice and

without assigning any reason. By virtue of the first proviso to

Section 7, an exception has been made in the case of workman

to whom Section 25-F of the Industrial Disputes Act, 1947 is

applicable. The service of such person can be terminated only

after complying with the provisions of Section 25-F.

54. If the State Government had sincerely implemented the

provisions of the 1994 Act, it may have succeeded in cleansing

the mess created due to irregular employment of thousands of

persons and, thereby, saved considerable revenue which could

be utilised for execution of welfare schemes and development

programmes. By ensuring that appointments against the

sanctioned posts are made only from among the candidates

selected by the specified recruiting agencies like Public Service

Commission/College Service Commission, etc. or from among

the candidates sponsored by the employment exchanges, the

State Government could have demonstrated its commitment to

the system established by the rule of law and determination to

comply with the equality clause enshrined in the Constitution and

other relevant statutory provisions in their true spirit.

55. Unfortunately, that did not happen because, in spite of the

prohibition contained in Section 7 against regularisation of the

existing daily-wage employees and persons appointed on

temporary basis, the State Government wilted under the

pressure exerted by the vested interests and issued the G.O.

dated 22-4-1994 incorporating therein policy for regularisation of

the services of those appointed on daily wages or nominal

muster roll or consolidated pay, who had continuously worked for

5 years and were continuing on 25-11-1993 i.e. the date of

enforcement of the 1994 Act. This was intended to be a one-time

measure and not an ongoing process/scheme for regularisation

of the services of all daily-wage employees on their completing 5

years.

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57. While reversing the order of the Central Administrative

Tribunal, this Court observed: (Mohan Pal case [(2002) 4 SCC

573 : 2002 SCC (L&S) 577] , SCC pp. 576-77, para 6)

―6. … We do not think that Clause 4 of the Scheme

envisages it as an ongoing scheme. In order to acquire

‗temporary‘ status, the casual labourer should have been in

employment as on the date of commencement of the

Scheme and he should have also rendered a continuous

service of at least one year which means that he should

have been engaged for a period of at least 240 days in a

year or 206 days in case of offices observing five days a

week. From Clause 4 of the Scheme, it does not appear to

be a general guideline to be applied for the purpose of giving

‗temporary‘ status to all the casual workers, as and when

they complete one year's continuous service. Of course, it is

up to the Union Government to formulate any scheme as

and when it is found necessary that the casual labourers are

to be given ‗temporary‘ status and later they are to be

absorbed in Group D posts.‖

The ratio of the aforementioned judgment was reiterated

in Union of India v. Gagan Kumar [(2005) 6 SCC 70 : 2005 SCC

(L&S) 803] and Director General, Doordarshan v. Manas

Dey [(2005) 13 SCC 437 : 2006 SCC (L&S) 1084] .

58. So far as these appeals are concerned, we find that the

learned Single Judge interpreted the G.O. dated 22-4-1994 as

entitling all daily-wage employees to claim regularisation in

service with effect from the date of completion of five years

irrespective of the date on which such period was completed or

would have been completed. The Division Bench maintained the

order of the learned Single Judge with the modification that

regularisation would be from the date of completion of 5 years'

continuous service.

59. This Court in M.L. Singh case [(2009) 8 SCC 480 : (1998)

2 An LT 5] approved the view taken by the Division Bench

apparently because even though the policy contained in the G.O.

dated 22-4-1994 was intended to be a one-time measure for

facilitating regularisation of those who completed 5 years' service

on 25-11-1993, it did not contain a specific stipulation that only

those who have completed 5 years' continuous service as on 25-

11-1993 will be regularised. A reading of the judgment in District

Collector/Chairman v. M.L. Singh [(2009) 8 SCC 480 : (1998) 2

An LT 5] makes it clear that while examining correctness of

judgment of the Division Bench of the High Court, this Court did

not consider the background in which the 1994 Act was enacted,

mischief sought to be remedied by it and various provisions

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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

regularisation of service and his/her services shall be liable to be

terminated at any time without any notice and without assigning

any reason.

60. We may observe that if the officers responsible for

drafting the G.O. dated 22-4-1994 had bothered to carefully read

the provisions of the 1994 Act then instead of using the

expression ―such persons who worked continuously for a

minimum period of five years and are continuing on 25-11-1993‖,

they would have employed the expression ―such persons who

have completed minimum five years of continuous service on or

before 25-11-1993 on daily wages or nominal muster roll or

consolidated pay‖. However, utter non-application of mind by the

officers concerned resulted in the use of an ambiguous

expression in the policy of regularisation which generated

enormous litigation requiring the individual employees and the

State Government to invest money for an avoidable exercise.

61. In order to remove the ambiguity and imperfectness in the

language of the G.O. dated 22-4-1994 and make the policy of

regularisation an integral part of the 1994 Act, the legislature

enacted Amendment Acts 3 and 27 of 1998. The purpose of

making the policy of regularisation a part of the 1994 Act was not

to dilute the main object of the 1994 Act i.e. to curb the menace

of irregular appointments and also ensure that appointments are

made against the sanctioned posts only from among the

candidates selected by the designated recruiting agencies but

also to harmonise the same with the prohibition contained in

Section 7 against regularisation of daily-wage and temporary

employees.

62. The preface of Act 27 of 1998 clearly shows that the

policy contained in the G.O. dated 22-4-1994 was intended to be

a one-time measure for regularisation of the persons employed

on daily wages or nominal muster roll or consolidated pay, who

completed 5 years' continuous service on or before 25-11-1993

i.e. the date of enforcement of the 1994 Act and it was not a

continuing scheme for regularisation of all ―daily-wage

employees‖ as and when they were to complete five years'

period.

63. The language of the first proviso to Section 7 by which

the policy of regularisation was engrafted in the 1994 Act shows

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that the amendments were made with the sole object of

removing the ambiguity in the policy contained in the G.O. dated

22-4-1994 and the same were not intended to nullify or override

the judgment in District Collector/Chairman v. M.L. Singh [(2009)

8 SCC 480 : (1998) 2 An LT 5] .

64. We have no doubt that if the language of the policy

contained in the G.O. dated 22-4-1994 was similar to the one

contained in newly inserted proviso to Section 7 and there was

no ambiguity in it, the courts would not have interpreted the

same in a manner which would entitle all persons employed on

daily wages before 25-11-1993 to claim regularisation

irrespective of the date of completion of five years' service. Here

it will also be apposite to mention that the policy contained in the

G.O. dated 22-4-1994 did not confer an indefeasible right upon

all daily-wage employees [as the term has been defined in

Section 2(ii) of the 1994 Act] to be regularised in service dehors

the date of enforcement of the Act. Therefore, it cannot be said

that by incorporating the policy of regularisation in the 1994 Act,

the legislature has taken away an accrued or vested right of the

daily-wage employees.

65. It is interesting to note that the judgment of this Court

in State of Haryana v. Piara Singh [(1992) 4 SCC 118 : 1992

SCC (L&S) 825 : (1992) 21 ATC 403. Ed.: Piara Singh case has

been overruled in Umadevi (3) case, (2006) 4 SCC 1.] of which

shelter was taken by the State Government for framing the policy

of regularisation of daily wagers, etc. in the teeth of the

prohibition contained in Section 7 against such regularisation

does not lay down that there will be wholesale regularisation of

daily wagers, casual employees, work-charged employees, etc.

66. While dealing with the question whether the High Court

was right in declaring that the Government could not have

prescribed the requirement of particular length of service on a

particular date as a condition for regularisation, this Court

observed: (Piara Singh case [(1992) 4 SCC 118 : 1992 SCC

(L&S) 825 : (1992) 21 ATC 403. Ed.: Piara Singh case has been

overruled in Umadevi (3) case, (2006) 4 SCC 1.] , SCC pp. 139-

40, para 27)

―27. … These orders are not in the nature of a statute

which is applicable to all existing and future situations. They

were issued to meet a given situation facing the Government

at a given point of time. In the circumstances, therefore,

there was nothing wrong in prescribing a particular date by

which the specified period of service (whether it is one year

or two years) ought to have been put in. Take for example,

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the orders issued by the Haryana Government. The first

order is dated 1-1-1980. It says, a person must have

completed two years of service as on 31-12-1979 i.e. the day

previous to the issuance of the order. However could it be

said that fixing of such a date is arbitrary and unreasonable?

Similarly the order dated 3-1-1983 fixes 15-9-1982 as the

relevant date. This notification/order does two things. Firstly,

it excludes Class III posts of clerks from the purview of the

SSSB in the case of those who have completed a minimum

of two years of service as on 15-9-1982, and secondly, it

provides for their regularisation subject to certain conditions.

No particular attack was made as to this date in the High

Court. Consequently the Government of Haryana had no

opportunity of explaining as to why this particular date was

fixed. Without giving such an opportunity, it cannot be held

that the fixation of the said date is arbitrary. What is more

relevant is that the High Court has not held that this

particular date is arbitrary. According to it, fixation of any

date whatsoever is arbitrary, because in its opinion the order

must say that any and every person who completes the

prescribed period of service must be regularised on

completion of such period of service. The next order dated

24-3-1987 prescribes the date as 31-12-1986 i.e. the end of

the previous year. In the circumstances, we see no basis for

holding that fixation of the date can be held to be arbitrary in

the facts and circumstances of the case.‖

(emphasis added)

88. In none of the abovenoted cases, this Court considered

an issue akin to the one examined by us. Therefore, the

proposition of law laid down in those cases cannot be relied

upon for entertaining the claim of daily-wage employees for

regularisation irrespective of the fact that they may not have

completed 5 years' continuous service on or before 25-11-1993.

89. In view of the above discussion, we hold that the

amendments made in the 1994 Act by Acts 3 and 27 of 1998 do

not have the effect of nullifying or overriding the judgment

in District Collector/Chairman v. M.L. Singh [(2009) 8 SCC 480 :

(1998) 2 An LT 5] . We further hold that the policy of

regularisation contained in the first proviso to Section 7 inserted

by Act 27 of 1998 is a one-time measure intended to benefit only

those daily-wage employees, etc. who completed 5 ye ars'

continuous service on or before 25-11-1993 and the employees

who completed 5 years' service after 25-11-1993 cannot claim

regularisation.

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91. We shall now consider whether the cut-off date i.e. 25-11-

1993 specified in the first proviso to Section 7 of the 1994 Act (as

amended by Act 27 of 1998) for determination of the eligibility of

daily-wage employees to be considered for regularisation is

arbitrary, irrational and violative of Articles 14 and 16 of the

Constitution.

92. Undisputedly, the Ordinance issued in 1993 was the first

exercise of legislative power by the State to prohibit employment

on daily wages and to restrict appointments on temporary basis

and, at the same time, streamline the recruitment in public

services by adopting a procedure consistent with the doctrine of

equality embodied in Articles 14 and 16 of the Constitution.

93. The 1994 Act was enforced with effect from 25-11-1993

i.e. the date on which the Ordinance was published in the Official

Gazette. Therefore, that date had a direct bearing on the policy

of regularisation circulated vide the G.O. dated 22-4-1994, which

was issued by the State Government in exercise of its executive

power under Article 162 of the Constitution. When that policy

was engrafted in the 1994 Act in the form of the proviso to

Section 7, the legislature could not have fixed any date other

than 25-11-1993 for determining the eligibility of daily-wage

employees who fulfilled the requirement of 5 years' continuous

service. If any other date had been fixed for counting 5 years'

service of daily-wage employees for the purpose of proviso to

Section 7, the object sought to be achieved by enacting the 1994

Act would have been defeated, inasmuch as the regular

recruitment could not have been made for appointment against

the sanctioned posts and back door entrants would have

occupied all the posts. Therefore, the cut-off date i.e. 25-11-1993

prescribed by the legislature for determining the eligibility of

daily-wage employees and others covered by Section 7 of the

1994 Act cannot be dubbed as arbitrary, unreasonable, irrational

or discriminatory.

94. This view of ours is in tune with judicial precedents on the

subject. In Union of India v. Parameswaran Match Works [(1975)

1 SCC 305] a three-Judge Bench was called upon to decide

whether the date for making the declaration i.e. 4-9-1967 fixed

for grant of the benefit of concessional rate of duty was irrational

and arbitrary. The High Court declared that the cut-off date fixed

for grant of the concessional rate of duty violated Article 14 of the

Constitution. This Court disapproved the view taken by the High

Court and held that the choice of a date as the basis for

classification cannot always be dubbed as arbitrary even if no

particular reason is forthcoming for the same, unless it is shown

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to be capricious or whimsical. It was further held that there is no

mathematical or logical way for fixing a particular date and the

decision of the legislature or its delegate must be accepted

unless the fixation of date is found to be very wide off the

reasonable mark.

96. This Court approved the view taken by the Division Bench

and observed: (Sushma Sharma case [1985 Supp SCC 45 :

1985 SCC (L&S) 565] , SCC pp. 58-59, para 30)

―30. The object of this legislation was to provide for

absorption of temporary lecturers of long standing. So

therefore experience and continuous employment were

necessary ingredients. The Hindi version of the Ordinance

used the expression ‗ke prarambh ke samaya is roop me

karya kar rahe hein‘ is capable of meaning ‗and are

continuing‘ to work as such at the time of the

commencement of the Ordinance. Keeping the background

of the purpose of the Act in view that would be the proper

construction and if that is the proper construction which is in

consonance with the English version of the Ordinance and

the Act as well as with the object of the Act then in our

opinion the Act and the Ordinance should be construed to

mean that only those would be eligible for screening who

were appointed prior to 25-6-1975 and were continuing at

the time of the commencement of the Ordinance i.e. 12-6-

1978 i.e. approximately about three years. If that is the

correct reading, then we are unable to accept the criticism

that those who were for a short period appointed prior to 25-

6-1975 then again with interruption were working only at the

time of the commencement of the Ordinance i.e. 12-6-1978

would also be eligible. In other words people with very short

experience would be eligible for absorption. That cannot be

the purpose of the Act. It cannot be so read reasonably.

Therefore on a proper construction it means that all

temporary lecturers who were appointed as such on or

before 25-6-1975 and were continuing as such at the

commencement of the Ordinance shall be considered by the

University for screening for absorption. The expression ‘were

continuing’ is significant. This is in consonance with the

object of the Act to ensure continuity of experience and

service as one of the factors for regularising the appointment

of the temporary lecturers. For regularising the appointment

of temporary lecturers, certain continuous experience is

necessary. If a legislature considers a particular period of

experience to be necessary, the wisdom of such a decision

is not subject to judicial review. Keeping the aforesaid

reasonable meaning of clause 3 of the Ordinance and

Section 3 of the Act in view, we are of the opinion that the

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criterion fixed for screening for absorption was not an

irrational criterion not having any nexus with the purpose of

the Act. Therefore, the criticism that a teacher who was

working even for two or three months only before 25-6-1975

and then with long interruptions was in employment of the

University at the time of the commencement of the

Ordinance would be eligible but a teacher who had worked

continuously from 26-6-1975 i.e. after the date fixed i.e. 25-

6-1975 for three years would be ineligible and as such that

will be discrimination against long experience, cannot be

accepted. Such a construction would be an unreasonable

construction unwarranted by the language used in the

provisions concerned. It is well settled that if a particular

period of experience is fixed for screening or for absorption,

it is within the wisdom of the legislature, and what period

should be sufficient for a particular job or a particular

employment is not subject to judicial review.‖

(emphasis added)

100. A reading of paras 54, 67, 68 and 72 of the impugned

judgment shows that even though the Division Bench did not find

the cut-off date i.e. 25-11-1993 specified in the first proviso to

Section 7 for determining the eligibility of daily-wage employees

for regularisation to be arbitrary, irrational or discriminatory, yet it

changed the said date from 25-11-1993 to 19-8-1998 solely on

the premise that Act 27 of 1998 was enforced with effect from

that date. In our view, once the Division Bench negatived the

challenge to the validity of Acts 3 and 27 of 1998, there was no

warrant for altering the date of eligibility specified in the first

proviso to Section 7 of the 1994 Act and thereby extend the zone

of eligibility of daily-wage employees who could be considered

for regularisation.

101. As a corollary, we hold that the declaration made by the

Division Bench that all persons who completed 5 years' service

as on the date of coming into force of Act 27 of 1998 would be

entitled to be considered for regularisation of their services is

legally unsustainable and is liable to be set aside. In the result,

the appeals filed by the employees (CAs Nos. 3702-07, 3709,

3710, 3721, 3733, 3734, 3737, 3742, 3744, 3748, 3749 and

3751 of 2006) are dismissed and those filed by the State

Government and agencies/instrumentalities of the State (CAs

Nos. 3685, 3712-18, 3723, 3724, 3726-32, 3750 and 3752-55 of

2006) are allowed.

102. The declaration made by the Division Bench that the

ban on regularisation will be effective from 19-8-1998 i.e. the

date on which Act 27 of 1998 came into force and that all

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persons who have completed 5 years' service as on that date

would be entitled to be considered for regularisation of service is

set aside. It is, however, made clear that the daily-wage

employees and others who are covered by Section 7 of the 1994

Act (amended) and whose services have not been regularised so

far, shall be entitled to be considered for regularisation and their

services shall be regularised subject to fulfilment of the

conditions enumerated in the G.O. dated 22-4-1994.

103. With a view to obviate further litigation on this issue, we

direct the Government of Andhra Pradesh, its officers and

agencies/instrumentalities of the State to complete the exercise

for regularisation of the services of eligible employees within four

months of the receipt/production of copy of this order, without

being influenced by the fact that the application, writ petition or

appeal filed by any such employee may have been dismissed by

the Tribunal or the High Court or this Court. Since some of the

appeals decided by this order relate to part-time employees, we

direct that similar exercise be undertaken in their cases and

completed within four months keeping in view the conditions

enumerated in G.O. (P) No. 112 dated 23-7-1997.‖

24. Certain observations of the Constitutional Bench in Secretary,

State of Karnataka v. Umadevi(3)

2

, in our opinion, are relevant for

better understanding of the concept of regular employment and

employment on a non-permanent or casual or daily wage basis.

Paras.43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 54 in the said

Judgment read as under:

“43. Thus, it is clear that adherence to the rule of equality in

public employment is a basic feature of our Constitution and

since the rule of law is the core of our Constitution, a court would

certainly be disabled from passing an order upholding a violation

of Article 14 or in ordering the overlooking of the need to comply

with the requirements of Article 14 read with Article 16 of the

Constitution. Therefore, consistent with the scheme for public

employment, this Court while laying down the law, has

necessarily to hold that unless the appointment is in terms of the

relevant rules and after a proper competition among qualified

2

(2006) 4 SCC 1

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persons, the same would not confer any right on the appointee. If

it is a contractual appointment, the appointment comes to an end

at the end of the contract, if it were an engagement or

appointment on daily wages or casual basis, the same would

come to an end when it is discontinued. Similarly, a temporary

employee could not claim to be made permanent on the expiry of

his term of appointment. It has also to be clarified that merely

because a temporary employee or a casual wage worker is

continued for a time beyond the term of his appointment, he

would not be entitled to be absorbed in regular service or made

permanent, merely on the strength of such continuance, if the

original appointment was not made by following a due process of

selection as envisaged by the relevant rules. It is not open to the

court to prevent regular recruitment at the instance of temporary

employees whose period of employment has come to an end or

of ad hoc employees who by the very nature of their

appointment, do not acquire any right. The High Courts acting

under Article 226 of the Constitution, should not ordinarily issue

directions for absorption, regularisation, or permanent

continuance unless the recruitment itself was made regularly and

in terms of the constitutional scheme. Merely because an

employee had continued under cover of an order of the court,

which we have described as ―litigious employment‖ in the earlier

part of the judgment, he would not be entitled to any right to be

absorbed or made permanent in the service. In fact, in such

cases, the High Court may not be justified in issuing interim

directions, since, after all, if ultimately the employee approaching

it is found entitled to relief, it may be possible for it to mould the

relief in such a manner that ultimately no prejudice will be

caused to him, whereas an interim direction to continue his

employment would hold up the regular procedure for selection or

impose on the State the burden of paying an employee who is

really not required. The courts must be careful in ensuring that

they do not interfere unduly with the economic arrangement of its

affairs by the State or its instrumentalities or lend themselves the

instruments to facilitate the bypassing of the constitutional and

statutory mandates.

44. The concept of ―equal pay for equal work‖ is different from

the concept of conferring permanency on those who have been

appointed on ad hoc basis, temporary basis, or based on no

process of selection as envisaged by the rules. This Court has in

various decisions applied the principle of equal pay for equal

work and has laid down the parameters for the application of that

principle. The decisions are rested on the concept of equality

enshrined in our Constitution in the light of the directive

principles in that behalf. But the acceptance of that principle

cannot lead to a position where the court could direct that

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appointments made without following the due procedure

established by law, be deemed permanent or issue directions to

treat them as permanent. Doing so, would be negation of the

principle of equality of opportunity. The power to make an order

as is necessary for doing complete justice in any cause or matter

pending before this Court, would not normally be used for giving

the go-by to the procedure established by law in the matter of

public employment. Take the situation arising in the cases before

us from the State of Karnataka. Therein, after Dharwad decision

[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :

(1990) 1 SCR 544] the Government had issued repeated

directions and mandatory orders that no temporary or ad hoc

employment or engagement be given. Some of the authorities

and departments had ignored those directions or defied those

directions and had continued to give employment, specifically

interdicted by the orders issued by the executive. Some of the

appointing officers have even been punished for their defiance. It

would not be just or proper to pass an order in exercise of

jurisdiction under Article 226 or 32 of the Constitution or in

exercise of power under Article 142 of the Constitution permitting

those persons engaged, to be absorbed or to be made

permanent, based on their appointments or engagements.

Complete justice would be justice according to law and though it

would be open to this Court to mould the relief, this Court would

not grant a relief which would amount to perpetuating an

illegality.

45. While directing that appointments, temporary or casual, be

regularised or made permanent, the courts are swayed by the

fact that the person concerned has worked for some time and in

some cases for a considerable length of time. It is not as if the

person who accepts an engagement either temporary or casual

in nature, is not aware of the nature of his employment. He

accepts the employment with open eyes. It may be true that he is

not in a position to bargain—not at arm's length—since he might

have been searching for some employment so as to eke out his

livelihood and accepts whatever he gets. But on that ground

alone, it would not be appropriate to jettison the constitutional

scheme of appointment and to take the view that a person who

has temporarily or casually got employed should be directed to

be continued permanently. By doing so, it will be creating

another mode of public appointment which is not permissible. If

the court were to void a contractual employment of this nature on

the ground that the parties were not having equal bargaining

power, that too would not enable the court to grant any relief to

that employee. A total embargo on such casual or temporary

employment is not possible, given the exigencies of

administration and if imposed, would only mean that some

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people who at least get employment temporarily, contractually or

casually, would not be getting even that employment when

securing of such employment brings at least some succour to

them. After all, innumerable citizens of our vast country are in

search of employment and one is not compelled to accept a

casual or temporary employment if one is not inclined to go in for

such an employment. It is in that context that one has to proceed

on the basis that the employment was accepted fully knowing the

nature of it and the consequences flowing from it. In other words,

even while accepting the employment, the person concerned

knows the nature of his employment. It is not an appointment to

a post in the real sense of the term. The claim acquired by him in

the post in which he is temporarily employed or the interest in

that post cannot be considered to be of such a magnitude as to

enable the giving up of the procedure established, for making

regular appointments to available posts in the services of the

State. The argument that since one has been working for some

time in the post, it will not be just to discontinue him, even though

he was aware of the nature of the employment when he first took

it up, is not one that would enable the jettisoning of the

procedure established by law for public employment and would

have to fail when tested on the touchstone of constitutionality

and equality of opportunity enshrined in Article 14 of the

Constitution.

46. Learned Senior Counsel for some of the respondents argued

that on the basis of the doctrine of legitimate expectation, the

employees, especially of the Commercial Taxes Department,

should be directed to be regularised since the decisions in

Dharwad [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12

ATC 902 : (1990) 1 SCR 544] , Piara Singh [(1992) 4 SCC 118 :

1992 SCC (L&S) 825 : (1992) 21 ATC 403 : (1992) 3 SCR 826] ,

Jacob [Jacob M. Puthuparambil v. Kerala Water Authority,

(1991) 1 SCC 28 : 1991 SCC (L&S) 25 : (1991) 15 ATC 697] and

Gujarat Agricultural University [Gujarat Agricultural University v.

Rathod Labhu Bechar, (2001) 3 SCC 574 : 2001 SCC (L&S)

613] and the like, have given rise to an expectation in them that

their services would also be regularised. The doctrine can be

invoked if the decisions of the administrative authority affect the

person by depriving him of some benefit or advantage which

either (i) he had in the past been permitted by the decision-

maker to enjoy and which he can legitimately expect to be

permitted to continue to do until there have been communicated

to him some rational grounds for withdrawing it on which he has

been given an opportunity to comment; or (ii) he has received

assurance from the decision-maker that they will not be

withdrawn without giving him first an opportunity of advancing

reasons for contending that they should not be withdrawn. [See

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Lord Diplock in Council for Civil Services Union v. Minister of

Civil Service [1985 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR

1174 (HL)] , National Buildings Construction Corpn. v. S.

Raghunathan [(1998) 7 SCC 66 : 1998 SCC (L&S) 1770] and

Chanchal Goyal (Dr.) v. State of Rajasthan [(2003) 3 SCC 485 :

2003 SCC (L&S) 322] .] There is no case that any assurance

was given by the Government or the department concerned

while making the appointment on daily wages that the status

conferred on him will not be withdrawn until some rational reason

comes into existence for withdrawing it. The very engagement

was against the constitutional scheme. Though, the

Commissioner of the Commercial Taxes Department sought to

get the appointments made permanent, there is no case that at

the time of appointment any promise was held out. No such

promise could also have been held out in view of the circulars

and directives issued by the Government after Dharwad decision

[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :

(1990) 1 SCR 544] . Though, there is a case that the State had

made regularisations in the past of similarly situated employees,

the fact remains that such regularisations were done only

pursuant to judicial directions, either of the Administrative

Tribunal or of the High Court and in some cases by this Court.

Moreover, the invocation of the doctrine of legitimate expectation

cannot enable the employees to claim that they must be made

permanent or they must be regularised in the service though

they had not been selected in terms of the rules for appointment.

The fact that in certain cases the court had directed

regularisation of the employees involved in those cases cannot

be made use of to found a claim based on legitimate

expectation. The argument if accepted would also run counter to

the constitutional mandate. The argument in that behalf has

therefore to be rejected.

47. When a person enters a temporary employment or gets

engagement as a contractual or casual worker and the

engagement is not based on a proper selection as recognised by

the relevant rules or procedure, he is aware of the consequences

of the appointment being temporary, casual or contractual in

nature. Such a person cannot invoke the theory of legitimate

expectation for being confirmed in the post when an appointment

to the post could be made only by following a proper procedure

for selection and in cases concerned, in consultation with the

Public Service Commission. Therefore, the theory of legitimate

expectation cannot be successfully advanced by temporary,

contractual or casual employees. It cannot also be held that the

State has held out any promise while engaging these persons

either to continue them where they are or to make them

permanent. The State cannot constitutionally make such a

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promise. It is also obvious that the theory cannot be invoked to

seek a positive relief of being made permanent in the post.

48. It was then contended that the rights of the employees thus

appointed, under Articles 14 and 16 of the Constitution, are

violated. It is stated that the State has treated the employees

unfairly by employing them on less than minimum wages and

extracting work from them for a pretty long period in comparison

with those directly recruited who are getting more wages or

salaries for doing similar work. The employees before us were

engaged on daily wages in the department concerned on a wage

that was made known to them. There is no case that the wage

agreed upon was not being paid. Those who are working on

daily wages formed a class by themselves, they cannot claim

that they are discriminated as against those who have been

regularly recruited on the basis of the relevant rules. No right can

be founded on an employment on daily wages to claim that such

employee should be treated on a par with a regularly recruited

candidate, and made permanent in employment, even assuming

that the principle could be invoked for claiming equal wages for

equal work. There is no fundamental right in those who have

been employed on daily wages or temporarily or on contractual

basis, to claim that they have a right to be absorbed in service.

As has been held by this Court, they cannot be said to be

holders of a post, since, a regular appointment could be made

only by making appointments consistent with the requirements of

Articles 14 and 16 of the Constitution. The right to be treated

equally with the other employees employed on daily wages,

cannot be extended to a claim for equal treatment with those

who were regularly employed. That would be treating unequals

as equals. It cannot also be relied on to claim a right to be

absorbed in service even though they have never been selected

in terms of the relevant recruitment rules. The arguments based

on Articles 14 and 16 of the Constitution are therefore overruled.

49. It is contended that the State action in not regularising the

employees was not fair within the framework of the rule of law.

The rule of law compels the State to make appointments as

envisaged by the Constitution and in the manner we have

indicated earlier. In most of these cases, no doubt, the

employees had worked for some length of time but this has also

been brought about by the pendency of proceedings in tribunals

and courts initiated at the instance of the employees. Moreover,

accepting an argument of this nature would mean that the State

would be permitted to perpetuate an illegality in the matter of

public employment and that would be a negation of the

constitutional scheme adopted by us, the people of India. It is

therefore not possible to accept the argument that there must be

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a direction to make permanent all the persons employed on daily

wages. When the court is approached for relief by way of a writ,

the court has necessarily to ask itself whether the person before

it had any legal right to be enforced. Considered in the light of

the very clear constitutional scheme, it cannot be said that the

employees have been able to establish a legal right to be made

permanent even though they have never been appointed in

terms of the relevant rules or in adherence of Articles 14 and 16

of the Constitution.

50. It is argued that in a country like India where there is so

much poverty and unemployment and there is no equality of

bargaining power, the action of the State in not making the

employees permanent, would be violative of Article 21 of the

Constitution. But the very argument indicates that there are so

many waiting for employment and an equal opportunity for

competing for employment and it is in that context that the

Constitution as one of its basic features, has included Articles

14, 16 and 309 so as to ensure that public employment is given

only in a fair and equitable manner by giving all those who are

qualified, an opportunity to seek employment. In the guise of

upholding rights under Article 21 of the Constitution, a set of

persons cannot be preferred over a vast majority of people

waiting for an opportunity to compete for State employment. The

acceptance of the argument on behalf of the respondents would

really negate the rights of the others conferred by Article 21 of

the Constitution, assuming that we are in a position to hold that

the right to employment is also a right coming within the purview

of Article 21 of the Constitution. The argument that Article 23 of

the Constitution is breached because the employment on daily

wages amounts to forced labour, cannot be accepted. After all,

the employees accepted the employment at their own volition

and with eyes open as to the nature of their employment. The

Governments also revised the minimum wages payable from

time to time in the light of all relevant circumstances. It also

appears to us that importing of these theories to defeat the basic

requirement of public employment would defeat the constitutional

scheme and the constitutional goal of equality.

51. The argument that the right to life protected by Article 21 of

the Constitution would include the right to employment cannot

also be accepted at this juncture. The law is dynamic and our

Constitution is a living document. May be at some future point of

time, the right to employment can also be brought in under the

concept of right to life or even included as a fundamental right.

The new statute is perhaps a beginning. As things now stand,

the acceptance of such a plea at the instance of the employees

before us would lead to the consequence of depriving a large

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number of other aspirants of an opportunity to compete for the

post or employment. Their right to employment, if it is a part of

right to life, would stand denuded by the preferring of those who

have got in casually or those who have come through the

backdoor. The obligation cast on the State under Article 39(a) of

the Constitution is to ensure that all citizens equally have the

right to adequate means of livelihood. It will be more consistent

with that policy if the courts recognise that an appointment to a

post in government service or in the service of its

instrumentalities, can only be by way of a proper selection in the

manner recognised by the relevant legislation in the context of

the relevant provisions of the Constitution. In the name of

individualising justice, it is also not possible to shut our eyes to

the constitutional scheme and the right of the numerous as

against the few who are before the court. The directive principles

of State policy have also to be reconciled with the rights

available to the citizen under Part III of the Constitution and the

obligation of the State to one and all and not to a particular group

of citizens. We, therefore, overrule the argument based on

Article 21 of the Constitution.

52. Normally, what is sought for by such temporary employees

when they approach the court, is the issue of a writ of

mandamus directing the employer, the State or its

instrumentalities, to absorb them in permanent service or to

allow them to continue. In this context, the question arises

whether a mandamus could be issued in favour of such persons.

At this juncture, it will be proper to refer to the decision of the

Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.)

v. Governing Body of the Nalanda College [1962 Supp (2) SCR

144 : AIR 1962 SC 1210] . That case arose out of a refusal to

promote the writ petitioner therein as the Principal of a college.

This Court held that in order that a mandamus may issue to

compel the authorities to do something, it must be shown that

the statute imposes a legal duty on the authority and the

aggrieved party had a legal right under the statute or rule to

enforce it. This classical position continues and a mandamus

could not be issued in favour of the employees directing the

Government to make them permanent since the employees

cannot show that they have an enforceable legal right to be

permanently absorbed or that the State has a legal duty to make

them permanent.

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)

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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.

54. It is also clarified that those decisions which run counter to

the principle settled in this decision, or in which directions

running counter to what we have held herein, will stand denuded

of their status as precedents.‖

25. A reading of the above paragraphs would go to demonstrate that

the entire conspectus of the terminology ―employment‖ with reference to

Constitutional provisions has been settled for good. That apart, the

interpretation of the Government Order and the Acts referred to

hereinabove by the Hon‘ble Apex Court in A.Manjula Bhashini‘s case

1

leaves no scope for any meandering or circumspection of the settled

position in law.

26. What is alarming is that the learned Single Judge has proceeded

to render the judgment and adjudicate the rights of the parties even

44

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without reference to the facts. A critical appraisal of the facts would

demonstrate that the petitioner, as on the date of his appointment i.e.

30.11.1987, had not even passed the Intermediate course which was

stipulated as the minimum qualification for being eligible to be

considered for appointment. In fact, the appointment is made on

30.11.1987, while the certificate would reveal that the same is issued on

05.12.1987, that is even before the certificate certifying him as having

completed the Intermediate course, appointment orders came to be

issued. That apart, it is seen that the petitioner has not placed before

the Court any material particulars like the eligibility criteria and the date

on which he acquired the said criteria. The same becomes crucial in

view of the stipulation under the G.O.Ms.No.212, dated 22.04.1994,

which categorically mandates that the candidate must possess the

stipulated qualification on the date of his appointment. As stated supra,

the academic qualification of Intermediate is acquired on 05.12.1987.

He has acquired the stipulated technical qualifications on various dates:

(a) English Typewriting lower in Nov/Dec., 1986; (b) Telugu Typewriting

lower in August, 1990; (c) English Typewriting Higher in August, 1990;

and (d) Telugu Typewriting Higher in May/June, 1991; and B.A.

Graduation in 1992. None of these aspects have even been looked into

by the learned Single Judge. On the other hand, the order impugned

gives the picture that the same has proceeded on the presumption of the

45

GN, J. & VN, J.

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petitioner having been eligible for appointment as on the date of his

appointment. There is neither a discussion regarding the eligibility of the

petitioner to be appointed as on 30.11.1987 nor as the petitioner

disclosed these material facts.

27. It is settled position in law that no person is entitled to seek

employment if his candidature is vitiated by lack of eligibility on the date

of consideration. The Hon‘ble Apex Court, in the case of State of

Maharashtra v. Shashikant S. Pujari

3

, has been pleased to observe in

paras.23, 34, 36 and 37, which read as under:

“23. The question with regard to retrospective effect of the said

resolution will have to be answered having regard to the fact

situation obtaining herein. If prior to October 1991, the

respondent was validly appointed, he could justifiably contend

that the 1991 Regulations could not have been given a

retrospective effect. With a view to examine the said question,

we may notice the following provisions of the Act.

34. It is in that view of the matter no relaxation about percentage

of the marks obtained by the respondent in Master's degree was

available to him, as he had not submitted his PhD thesis. He, it

will bear repetition to state, was also not appointed on

permanent post by the University Selection Committee.

36. The respondent could not take any benefit of the said circular

letter also, inter alia, for the reason that he had not been

appointed by duly constituted University Selection Committee.

Another question which was relevant but had not been

considered by the High Court was that having regard to the

breaks in service, he could have been appointed only as a

freshly recruited teacher. At one point of time, the College and

the University might have committed mistake in treating him as a

full-time teacher, but such mistakes could have been rectified, if

they were apparent on the face of the records. Moreover, the

order impugned in the writ petition, in our opinion, cannot be said

3

(2006) 13 SCC 175

46

GN, J. & VN, J.

W.A.No.295 of 2023

to be wholly arbitrary and unreasonable so as to warrant

interference by a superior court. The eligibility criteria cannot be

relaxed unless there exists a specific provision therefor. A

person can avail the benefit of relaxation notification only when

he comes within the purview thereof and when he satisfies the

conditions specified therein.

37. It has been contended that the University had not given any

approval as regards his appointment as part-time teacher in

Political Science, as he did not receive a copy therefor. If there

had been no approval to his appointment after 30-10-1985, the

decision of the University Management Council on 30-10-2000

cannot be faulted. Condonation of breaks in his service was also

imperative in nature which had not been given.‖

28. The Hon‘ble Apex Court in the case of State of Uttar Pradesh v.

Vijay Kumar Misra

4

has been pleased to observe and hold in paras.4

and 6 as under:

“4. The relevant facts over which there is no dispute may be

stated thus:

The respondent herein did not have the educational

qualification prescribed under the rules for the post of SDI

(Basic) as he had no degree of Bachelor in Education and

did not have the LT certificate at the time of submission of

the application and also at the time of selection. Subsequent

thereto he got the LT certificate. As expected, the Service

Commission had not considered him for the post of SDI

(Basic) for want of prescribed qualification.

6. The position is fairly well settled that when a set of eligibility

qualifications are prescribed under the rules and an applicant

who does not possess the prescribed qualification for the post at

the time of submission of application or by the cut-off date, if any,

prescribed under the rules or stated in the advertisement, is not

eligible to be considered for such post. It is relevant to note here

that in the rules or in the advertisement no power was vested in

any authority to make any relaxation relating to the prescribed

qualifications for the post. Therefore, the case of a candidate

who did not come within the zone of consideration for the post

could not be compared with a candidate who possessed the

prescribed qualifications and was considered and appointed to

4

(2017) 11 SCC 521

47

GN, J. & VN, J.

W.A.No.295 of 2023

the post. Therefore, the so-called confession made by the officer

in the Court that persons having lower merit than the respondent

have been appointed as SDI (Basic), having been based on a

misconception is wholly irrelevant. The learned Single Judge

clearly erred in relying on such a statement for issuing the

direction for appointment of the respondent. The Division Bench

was equally in error in confirming the judgment of the learned

Single Judge. Thus the judgment of the learned Single Judge as

confirmed by the Division Bench is unsustainable and has to be

set aside.‖

29. The said position in law came to be reiterated by the Hon‘ble Apex

Court in its own ruling in Ramesh Chand v. State of Haryana

5

in

para.11, which reads as under:

“11. It may also be remembered that the promotion in question

was an intra-departmental promotion within the Panchayat

Department. The principle enunciated by this Court in Vijay

Kumar Mishra case [State of U.P. v. Vijay Kumar Mishra, (2017)

11 SCC 521 : (2015) 3 SCC (L&S) 804] which has been relied

upon by Respondent 2 applies in those cases where the

applications were invited from the candidates either by

advertisement or in terms of the rules. This is clear from para 7

of the Report where this Court has said: (SCC p. 522)

―7. The position is fairly well settled that when a set of

eligibility qualifications are prescribed under the rules and an

applicant who does not possess the prescribed qualification

for the post at the time of submission of application or by the

cut-off date, if any, prescribed under the rules or stated in the

advertisement, is not eligible to be considered for such post.

It is relevant to note here that in the rules or in the

advertisement no power was vested in any authority to make

any relaxation relating to the prescribed qualifications for the

post. Therefore, the case of a candidate who did not come

within the zone of consideration for the post could not be

compared with a candidate who possessed the prescribed

qualifications and was considered and appointed to the

post.‖ (emphasis supplied)

This decision has no application to this case and the letter

cannot be construed as setting down a cut-off date for the

5

(2017) 11 SCC 516

48

GN, J. & VN, J.

W.A.No.295 of 2023

purposes of making of recommendations by the addressees of

the letter.‖

30. The said position in law came to be reiterated by the Hon‘ble Apex

Court in its latest ruling in State of Madhya Pradesh v. Shyam Kumar

Yadav

6

in para.5, which reads as under:

―It is true that an employee engaged on daily wages has

no legally vested right to seek regularization of his services.

However, if the competent authority takes a policy decision

within the permissible framework, its benefit must be extended to

all those who fall within the parameters of such a policy.

Authorities cannot be permitted to pick and choose in such

circumstances.‖

31. From a reading of the facts and circumstances and an analysis of

the case leaves no doubt in the mind of this Court that the petitioner has

been abusing the judicial system and attempting to secure favourable

orders in subsequent litigation based on the strength of the orders

passed in collateral proceedings. The petitioner was bound to disclose

the irregularities in his appointment, prima facie, he not having

possessed the stipulated eligibility criteria on the date of his

appointment, in our, prima facie, view, he would not be entitled to the

benefits conferred on that class of people enumerated under G.O.Ms.

No.212, dated 22.04.1994. The twin conditions of possessing the

eligibility and of having rendered continuous five years service as on

25.11.1993, prima facie, do not appear to have been complied with. In

6

Special Leave to Appeal (C) No.25609 of 2018, dated 22.07.2024.

49

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W.A.No.295 of 2023

that view, the order impugned, in our considered opinion, is legally

unsustainable.

32. The facts recounted above prima facie demonstrate that the

present proceedings is also hit by the principles of constructive

res judicata. In this regard, we place reliance on the findings rendered

by the Hon'ble Apex Court in the case of M.J. Exporters (P) Ltd. v.

Union of India

7

. The findings recorded in paras.14 and 15 of the said

judgment are reproduced hereunder:

―14. Consequently in the second writ petition, when the appellant as well as

its counsel knew that the issue as to whether the interest is payable or not on

other grounds had already been foreclosed in the earlier writ petition, the

counsel for the appellant did not make any submission with regard to the

aforesaid plea raising the issue in show-cause notice and limited his prayer

from the date from which the interest was to be paid.

15. In these circumstances, we feel that when this issue was raised and

abandoned in the first writ petition which was dismissed as withdrawn, the

principles of constructive res judicata which are laid down under Order 23 Rule

1 of the Code of Civil Procedure, 1908, and which principles are extendable to

writ proceedings as well as held by this Court in Sarguja Transport

Service v. STAT [Sarguja Transport Service v. STAT, (1987) 1 SCC 5 : 1987

SCC (Cri) 19] would squarely be applicable.‖

33. In that view, we request the learned Single Judge to also examine

the applicability of the above principle with the facts of the instant case.

It is also pertinent to note the law evolved by the Hon'ble Apex Court in

7

(2021) 13 SCC 543

50

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W.A.No.295 of 2023

Sarguja Transport Service v. State Transport Appellate Tribunal

8

.

The elucidation of the principle in paras.7 and 9 would prima facie

appear to have a bearing on the facts of the instant case. Paras.7 and 9

of the said judgment read as under:

“7. The Code as it now stands thus makes a distinction between

―abandonment‖ of a suit and ―withdrawal‖ from a suit with permission to file a

fresh suit. It provides that where the plaintiff abandons a suit or withdraws from

a suit without the permission, referred to in sub-rule (3) of Rule 1 of Order XXIII

of the Code, he shall be precluded from instituting any fresh suit in respect of

such subject-matter or such part of the claim. The principle underlying Rule 1 of

Order XXIII of the Code is that when a plaintiff once institutes a suit in a court

and thereby avails of a remedy given to him under law, he cannot be permitted

to institute a fresh suit in respect of the same subject-matter again after

abandoning the earlier suit or by withdrawing it without the permission of the

court to file fresh suit. Invito beneficium non datur — the law confers upon a

man no rights or benefits which he does not desire. Whoever waives, abandons

or disclaims a right will loose it. In order to prevent a litigant from abusing the

process of the court by instituting suits again and again on the same cause of

action without any good reason the Code insists that he should obtain the

permission of the court to file a fresh suit after establishing either of the two

grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle

underlying the above rule is founded on public policy, but it is not the same as

the rule of res judicata contained in Section 11 of the Code which provides that

no court shall try any suit or issue in which the matter directly or substantially in

issue has been directly or substantially in issue in a former suit between the

same parties, or between parties under whom they or any of them claim,

litigating under the same title, in a court competent to try such subsequent suit

or the suit in which such issue has been subsequently raised, and has been

heard and finally decided by such court. The rule of res judicata applies to a

case where the suit or an issue has already been heard and finally decided by a

court. In the case of abandonment or withdrawal of a suit without the permission

of the court to file a fresh suit, there is no prior adjudication of a suit or an issue

8

(1987) 1 SCC 5

51

GN, J. & VN, J.

W.A.No.295 of 2023

is involved, yet the Code provides, as stated earlier, that a second suit will not

lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is

withdrawn without the permission referred to in sub-rule (3) in order to prevent

the abuse of the process of the court.

9. The point for consideration is whether a petitioner after withdrawing a writ

petition filed by him in the High Court under Article 226 of the Constitution of

India without the permission to institute a fresh petition can file a fresh writ

petition in the High Court under that article. On this point the decision in Daryao

case [AIR 1961 SC 1457 : (1962) 1 SCR 574] is of no assistance. But we are of

the view that the principle underlying Rule 1 of Order XXIII of the Code should

be extended in the interests of administration of justice to cases of withdrawal of

writ petition also, not on the ground of res judicata but on the ground of public

policy as explained above. It would also discourage the litigant from indulging in

bench-hunting tactics. In any event there is no justifiable reason in such a case

to permit a petitioner to invoke the extraordinary jurisdiction of the High Court

under Article 226 of the Constitution once again. While the withdrawal of a writ

petition filed in a High Court without permission to file a fresh writ petition may

not bar other remedies like a suit or a petition under Article 32 of the

Constitution of India since such withdrawal does not amount to res judicata, the

remedy under Article 226 of the Constitution of India should be deemed to have

been abandoned by the petitioner in respect of the cause of action relied on in

the writ petition when he withdraws it without such permission. In the instant

case the High Court was right in holding that a fresh writ petition was not

maintainable before it in respect of the same subject-matter since the earlier

writ petition had been withdrawn without permission to file a fresh petition. We,

however, make it clear that whatever we have stated in this order may not be

considered as being applicable to a writ petition involving the personal liberty of

an individual in which the petitioner prays for the issue of a writ in the nature of

habeas corpus or seeks to enforce the fundamental right guaranteed under

Article 21 of the Constitution since such a case stands on a different footing

altogether. We, however leave this question open.‖

34. In that view of the matter, the order of the learned Single Judge is

set aside and the matter is remitted back to the learned Single Judge for

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consideration of the rights of the parties in terms of the law laid down by

the Hon‘ble Apex Court in A.Manjula Bhashini‘s case

1

and the law

enunciated by the Constitutional Bench of the Hon‘ble Apex Court in

Umadevi(3)‘s case

2.

35. The Writ Appeal stands ordered accordingly. No costs.

Consequently, miscellaneous petitions, pending if any, shall stand

closed.

____________________

JUSTICE G.NARENDAR

________________________

JUSTICE NYAPATHY VIJAY

Date:23.08.2024.

cs/anr

53

GN, J. & VN, J.

W.A.No.295 of 2023

* THE HON’BLE SRI JUSTICE G.NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJAY

+ Writ Appeal No.295 of 2023

% Dated 23-08-2024

# The Chief Executive Officer, Zilla Praja Parishad, Eluru.

….. Appellant

v.

$ 1. T.Seshagiri & Ors.

..Respondents

! Counsel for the Appellant : Sri G.Srinivasulu Reddy

^ Counsel for the 1

st

respondent : Sri S.Syam Sunder Rao

Counsel for respondents 2 & 3 : Ld. G.P. (S-IV)

<GIST:

> HEAD NOTE:

? Cases referred :

1. (2009) 8 SCC 431

2. (2006) 4 SCC 1

3. (2006) 13 SCC 175

4. (2017) 11 SCC 521

5. (2017) 11 SCC 516

6. Special Leave to Appeal (C) No.25609 of 2018, dated 22.07.2024.

7. (2021) 13 SCC 543

8. (1987) 1 SCC 5

54

GN, J. & VN, J.

W.A.No.295 of 2023

IN THE HIGH COURT OF THE STATE OF ANDHRA PRADESH

Writ Appeal No.295 of 2023

The Chief Executive Officer, Zilla Praja Parishad, Eluru.

….. Appellant

v.

1. T.Seshagiri & Ors.

...Respondents

JUDGMENT PRONOUNCED ON: 2 3-08-2024

THE HON’BLE SRI JUSTICE G.NARENDAR

AND

THE HON’BLE SRI JUSTICE NYAPATHY VIJA Y

1) Whether Reporters of Local newspapers

may be allowed to see the Judgments?

-Yes-

2) Whether the copies of judgment may be marked to

Law Reporters/Journals

-Yes-

3) Whether Their Ladyship/Lordship wish to see the fair

copy of the Judgment?

-Yes-

JUSTICE G. NARENDAR