Smt. G. Saramma v. and CAD Deparlment, Hyderabad

Order

Heard Sri P.Srinivasulu, learned counsel appearing on behalf of the petitioner and learned Assistant

Government Pleader for Services-f appearing on behalf of respondents.

2. The Detitioner aooroached the Court seekinq Draver as under: "...to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus, declaring that the action of the respondents in not regularizing the services of the petitioner as office subordinate, as illegal and consequently, to direct the respondents to regularize the services of the petitioner on par with her juniors or from the date of completion oF 10 years, with all consequential benefits and to pass such other order...".

3. The case of the petitioner, in brief, is that the petitioner was appointed as a part time contingent sweeper on 01.03.1986 and converted in to a full time contingent sweeper with effect trom 29.09.2008. The petitioner had completed 37 years of continuous service from the date of initial appointment till the I 2 SN, J wP 7168 2021 filing of this writ petition and her service is not regularized. However the services of the petitioner's juniors, who were also appointed as paft time contingent sweepers, got regularized and absorbed as oFfice subordinates in terms of G.O.Ms.No.212, dated 22.04.1994. Further it is the case oF the petitioner that the petitioner made a representation to the superintending engineer on

19.08.2015 for her Regularisation into last grade service but the memo was rejected vide memo dated 31.08.2015 stating that incumbent should complete 10 years of service to convert into last grade service even though the petitioner completed his 10 years of service by march 1996 itself. Aggrieved by the same the petitioner preferred this writ petition.

4. PERUSED TH E RECORD. (A) The oroce rnqs dated 31.O8.2O1 of the 6th resoonden t herein is extracted ereu nder: "OFFIC,E OF THE EXECUTIVE ENGINEER, DIVISION NO.3 OF CCH., K.C.COLONY. HANAMKONDA Memo No. EElDivn. /ccH/ct/74t7/Ml140 Dare:31-08-2 015. Sub: Esst- I&CAD - Application of Smt G.Saramma, Full Time Contingent Sweeper - Request for regularization to Last Grade Service as Sweeper - Submission of -Reg. Ref: 1)Application Smt. G.Saramma, FTCGS forwarded by the Deputy Executive Engineer, Sub. Division.No.3 vide Endt.. No. DEE/SD3/ Dn3 / CCH / 228. Dated : 19-8-20 1 5. , SN, J wP 1468, 2021 2) ENC Memo No.ENC/1WP&WNrPAlW2l422l 2010 Vol-II Dated :05.02.2015. With reference to the 1't cited above Smt G. Saramma, FTCGS has requested to regularize her services into Last Grade Services as Sweeper as she has completed 7 years of service as Full Time Contingent Sweeper. But as per Enoineer-in-Chief circular memo vide as clearlv stated that reference 2nd cited abov incumbent should comolete 1O vears of service to convert into Last Grade Service. Hence the Orio ina I aDDlication is herewith returned. Executive Engineer Divin.No.3/CCH HNK" (B) The counter affidavitiagbeen faled on behalf of e N .6 and in a rticu la r ra No .12 n E 1 extracted hereunder: "12. In reply to Para 7, it is respectfully submit that the petitioner's statement is not correct as the petitioner mt. f mm n d h P .2 7. S 2 .11 9 f f F ll Ti n worker as on 25.11.1993 as Der G.O. No.212, dt.22.4.94 since she was worked Part Time worker from 01.3.86 to 28.9.2008 and Full Time worker from 29.9.2008 onwards only vide Superintending Engineer, GVC-IV. LMD Colony, Karimnagar Proc. No. E4/GVC.4/1265-68, dt: 29.09.2008. Further, the Petitioner made application to the Superintending Engineer, GVC-IV, LMD Colony, Karimnagar 4 SN, J wP 7468 2023 to convert her service as Last Grade Service Engineer-in-Chief Memo dated: 31.08.2015 stated that But clearly incumbent should complete 10 years of service to convert into Last Grade Service. It is also submit that the petitioner working in this office since 1112016 and she has not given any representation in this regard to this office.

13. In reply to para g, it is respectfully submit that the petitioner Smt.G.Saramma belongs to Warangal District and she is claiming retrospective regularization of services with other District employees Sri D.Sailoo Karimnagar and Sri M.Abdul Karim Nizamabad which is against the G.O.610/G.P.Ms.No.128, GAD, dt.3O.O6.ZO2L and also the said persons are not similar to her. The petitioner is not fulfill conditions in terms of G.O.No.112, dt.23.7.lgg7 since 7 years & 8 months as part Time Sweeper as on 25.11 7993, not having 1O years as part Time Sweeper on 25.71 93 and also not fulfill conditions in terms of G.O.Ms.No.212, dt.Z2.4.lg94 since she never worked as Full Time Contingent Sweeper as on 25.11.1993.,, e n n r filed d v alf of th 6th s v r n h e a d !ca con en n t s a f n ,/t 5 SN, J wP 7468 2023 the Dresent writ Detition and oetitioner u nder: of the affida *3. It is respectfully submitted that, I was appointed as a. part-time sweeper in the year 01-03-1986 by Proceedings dated 20-05-1986, Later Sri Abdul Karim was also appointed as a part-time sweeper on 22-10-1986 who is junior to me was regularized and absorbed as office subordinate, even without completion of 5 years of service from the date of his appointment as per G.O.Ms.No.92 dated 9-9-2010 in terms of G.O.Ms. No.212, dated 22.4.L994. It is also further submitted that Sri D. Sailoo who was appointed as part-time watch man was also regularized and absorbed as office subordinate as per G.O.M.s.94 dated 18-09-2010 in terms of G.O.M.s.No'212 dated 22-04-1994. Who was also appointed later my appointment, he was also given pay fixation along with me by order dated 09-06-2010. The action of the respondents in not regularizing my services is highly arbitrary illegal and discriminatory. Bot Abdu! arim an Sailoo a Iso did of comD lete the ti ou late oeriod of 5 vears as Der G.O.Ms.N o.2L2 dt 22-O4-,, 94 and lso a oerson be discrim inated on the basis of local status and in terms of olace of work and it should be seen asa ithin the state- I submit that the resoon dents r n reoularization as office subordinate or sweeoer' ince I h v m re w -s-: 6 SN, J wP 7168 2023 n conti uous un lemished divisions.l servrce n resDondents DISUCSSIO N AND CON LUSON:

5. It is the specific case of the petitioner that the petitioner made a representation to the Superintendent Engineer on

19.08.2015 for petitioner's conversion into Last Grade Service and for regularization to the Last Grade Service as Sweeper. But the said application of the petitioner dated 19.08.2015 had been returned by the 6th respondent on the ground that the petitioner did not complete 10 years of service to convert into Last Grade Service as Sweeper and the petitioner had completed only 7 years of service as Full Time Contingent Sweeper.

6. The learned counsel appearing on behalf of the petitioner by filing a reply affidavit disputes the said plea taken in the proceedings dated 31.08.2015 of the Executive Engineer i.e., the 6th respondent herein, and contends that petitioner is in continuous service as Sweeper since 1986.

7. The specific plea taken in the counter affidavit filed by the respondent that the petitioner did not fulfill conditions in terms of G.O.Ms.No.112 dated 23.07.1997 and the petitioner had 7 / , 7 SN. J wP 1468 2023 years and g months as part Time Sweeper as on 25.11.1993 and the petitioner is not having 10 years service as part Time Sweeper on 25.11.1993 and further that the petitioner never worked as Full Time Contingent Sweeper as on 25.11.1993. Learned Assistant Government pleader appearing on behalf of the respondents places reliance on the Judgment of the Apex Court dated O7.LO.2O2I reported in (202I) Z0 SCC 290 in "UNION OF INDIA AND OTHERS v. rLMO DEVI AND ANOTHER".

8. Learned counsel appearing on behalf of the petitioner places reliance on the Judgment of the Apex Court dated 20.L2.2024 passed by the Division Bench of the Apex Court repoTted in .'JAGGo ANITHA AND oTHERS v, UNIoN oF INDIA AND OTHERS", in support of petitioner,s case and contends that the petitioner thereunder has a right for the regularization and the same right exists even for the petitioner herein and the same cannot be denied to petitioner on frivolous pleas.

9. Learned Assistant Government pleader appearing on behalf of the respondents submits that the petitioner failed to submit any documents in support of petitioner,s case to prove that the petitioner compreted 10 years of service to convert into Last { 8 SN, J wP 746E 2023 Grade Service and the petitioner may be directed to approach the respondents herein by way of a fresh representation duly enclosing all the relevant documents in support of petitioner's case in view of the fact that the application of the petitioner seeking conversion into the Last Grade Service addressed to the Superintendent Engineer on

19.08.2015 had not been rejected by the respondents herein but had been retu rn ed.

10. In th .Iudqment of the ADex Cou in" RIP 25 c dated 1.O1.2 o25 D THE v AGA IGA HA IABA v I .15 t e x J 1 ar h '15. It is manifest that the Appellant Workmen continuoLlsly rendered their services over several years, sometimes spanning more than a.decade' Even if certain muster rolls were not produced in full, the Employer's failure to furnish such records-despite directions to do so-allows an adverse inference under well-esta blished labour jr.;risprudence. Indian labour law strongly disfavors perpetual daily-wage or contractual engagements in circumstances where the work is permanent in nature' Morally and legally, workers who fulfil ongoing municipal requirerrrents year after year cannot be dismissed summarlly as dispensable, particularly in the absence of a genuine contractor agreement. At this juncture, it would be 9 SN. J wP 1468 2023 appropriate to recall the broader critique of indefinite "temporary" employment practices as done by a recent judgement of this court in Jaggo v. Union of India in the following paragraphs: "22. The pervasive misuse of temporary employment contracts, as exemplified in this case, reflects a broader systemic issue that adversely affects workers' rights and job security. In the private sector, the rise of the gig economy has led to an increase in precarious employment arrangements, often characterized by lack of benefits, job security, and fair treatment. Such practices have been criticized for exploiting workers and undermining labour standards. Government institutions, entrusted with upholding the principles of fairness and justice, bear an even greater responsibility to avoid such exploitative employment practices. When public sector entities engage in misuse of temporary contracts, it not only mirrors the detrimental trends observed in the gig economy but also sets a concerning precedent that can erode public trust in governmenta I operations. 25. It is a disconcerting reality that temporary employees, particularly in government institutions, often face multifaceted forms of exploitation. While the foundational purpose of temporary contracts may have been to address short.term or seasonal needs, they have increasingly become a mechanism to 2024 SCC OnLine SC 3826 evade long-term obligations owed to employees. These practices manifest in several ways: . Misuse of "Temporary" Labels: Employees engaged for work that is essential, recurring, and integral to the functioning of an institution are often labelled as "temporary" or "contractua1," even when their roles mirror those of regular employees. Such misclassification deprives workers of the dignity, security, and benefits that regular employees are entitled to, despite performing identical tasks. l0 SN, J wP 1't68 2023 . Arbitrary Termination: TemPorarY employees are frequently dismissed without cause or notice, as seen in the present case. This practice undermines the principles of natural justice and sub-tects workers to a state of constant insecurity, regardless of the quality or duration of their service. . Lack of Career Progression: Temporary employees often find themselves excluded from opportunities for skill development, promotions, or incremental pay raises. They remain stagnant in their roles, creating a systemic disparity between them and their regular counterparts, despite their contributions being equally significant. . Using Outsourcing as a Shield: Institutions increasingly resort to outsourcing roles performed by temporary employees, effectively replacing one set of exploited workers with another. This practice not only perpetuates exploitation but also demonstrates a deliberate effort to bypass the obligation to offer regular employment. . Denial of Basic Rights and Benefits: Temporary employees are often denied fundamental benefits such as pension, provident fund, health insurance, and paid leave, even when their tenure spans der:ades. This lack of social security subjects them anrJ their families to undue hardship, especially in cases of illness, retirement, or unforeseen circu msta nces. "

15. The High Court did acknowledge the Employer's inability to justify these abrupt terminations. Consequently, it ordered re-engagement on daily wages with some measure of parity in minimum pay. Regrettably, this only perpetuated precariousness: the Appellant Workmen were left in a marginally improved yet still uncertain status. While the High Court recognized the importance of their work and hinted at eventual regularization, it failed to afford them continuity of service or meaningful back wages SN, J wP '1468 2023 commensurate with the evident on record. degree of statutory violation L7. In light of these considerations, the Employer.s discontinuation of the Appellant _.Workmen stands in violation oF the most basic labour law principles. Once it- is established that their services were terminated without adhering to Sections 6E and 6N of the U.p. Industrial Disputes Act, L947, and that they were engaged in essential, perennial duties, these workers cannot be relegated to perpetual uncertainty. While concerns of municipal budget and compliance with recruitment rules merit consideration, such concerns do not absolve the Employer of statutory obligations or negate equitable entitlements. Indeed, bureaucratic limitations cannot trump the legitimate rights of workmen who have served continuously in de facto regular roles for an extended period.

18. The impugned order of the High Court, to the extent they confine the Appellant Workmen to future daily-wage engagement without continuity or meaningful back wages, is hereby set aside with the following directions: I. The discontinuation of the Appellant Workmen's services, effected without compliance with Section 6E and Section 6N of the U.P. Industrial Disputes Act, 1947, is declared illegal. All orders or communications terminating their services are quashed. In consequence, the Appellant Workmen shall be treated as continuing in service from the date of their termination, for all purposes, including seniority and continuity in service. t2 SN, J wP 7468 2023 II. The Respondent Employer shall reinstate the Appellant Workmen in their respective posts (or posts akin to the duties they previously performed) within four weeks from the date of this judgment. Their entire period of absence (from the date of termination until actual reinstatement) shall be counted for continuity of :;ervice and all consequential benefits, such as seniority and eligibility for promotions, if any. III. Considering the length of service, the Appellant Workmen shall be entitled to 50% of the back wages Frorn the date of their discontinuation until their actual reinstatement. The Respondent Employer shall clear the aforesaid dues within three months from the date of their reinstatement. IV" The Respondent Employer is directed to initiate a fair and transparent process for regularizing the Appellant Workmen within six months from the date of reinstatement, duly considering the fact that they have performed perennial municipal duties akin to permanent posts. In assessing regularization, the Employer shall not impose educational or procedural criteria retroactively if such requirements were never applied to the Appellant Workmen or to similarly situated regular employees in the past. To the extent that sanctioned vacancies for such duties exist or are required, the Respondent Employer shall expedite all necessary administrative processes to ensure these longtime employees are not indefinitely retained on daily wages contrary to statutory and equitable n o rms.

19. In view of the above, the appeal(s) filed by the workmen are allowed, whereas the appeal(s) filed by the Nagar Nigam Ghaziabad are dismissed."

11. The iud ment of the ADex Co ut (sc) 12(} in 2()24 La s reoort t u dated 20. 12.2fJ24, in -Iaooo Anita and SN, J wP '1468 2023 others v. UFion of India and others, and Lhe re! ant Da raqra o Nos.12, L3,24.2 6, 27 and 28 are extracted hereun der: '12. Despite being labelled as "part- time workers," the appellants performed these essentaal tasks on a daity and continuous basis over extensive periods, ranging from over a decade to nearty two decades. Their engagement was not sporadic or temporary in nature, instead, it was recurrent, regular, and akin to the responsibilities typically associated with sanctioned posts. Moreover, the respondents did not engage any other personnel for these tasks during the appellants tenure, underscoring the indispensable nature of their work.

13. The clai bv the resoond ents that these were not reoular oosts lacks merit, as the nat re of the work oerfor ed bv the aooellants was oerennial and fundamenta! to the Iunctionino of th offices. The recurring nature of these duties necessitates their classification as regular posts, irrespective of how their initial engagements were labelled. It is also noteworthy that subsequent outsourcing of these same tasks to private -J- 14 SN, J wP '1468 2023 agencies after the appellants'termination demonstrates the inherent need for these services. This act of outsourcing, which effectively replaced one set of workers with another further underscores that the work in question was neither temporary nor occasional.

24. The landmark judgement of the United State in the case of Vizcaino v Microsoft Corporation 197 F.3d 1187 (gth Cir. 1996)l serves as a pertinent example from the private sector, illustrating the consequences of misclassifying employees to circumvent providing benefits. In this case, Microsoft classified certain workers as independent contra,:tors, thereby denying them employee benefits. The U.S. Court of Appeals for the Ninth Circuit determined that these workers were, in Fact, common-law employees and were entitled to the same benefits as regular employees. The Court noted that large Corporations have increasingly adopted the practice of hiring temporary employees or independent contractors as a means of avoiding payment of employee benefits, thereby increasing their profits. This judgment underscores the principle that the nature of the work performed, rather than the label assigned to the worker, should deterrnine employment status and the corres;ponding rights and benefits. It hiohliqhts l l5 SN, J wP 7468 2023 the iudiciary's role in rectifvino such a n receive fair treatment.

26. While the judgment in Umi Devi (supra) sought to curtail the practice of backdoor entries and ensure appointments adhered to constitutional principles, it is regrettable that its principles are often misinterpreted or misapplied to deny legitimate claims of long serving employees. This judgment aimed to distinguish between "illegal" and "irregular" appointments. It cateooricallv held that emolovees in irreqular aooointments, who were enqaoed in dulv sa nctioned Dosts and ad served continuouslv for more than ten vears should be considered for reoul rization as a one-time measure. However, the laudable intent of the judgment is being subverted when institutions rely on its dicta to ind iscriminately reject the claims of employees, even in cases where their appointments are not illegal, but merely lack adherence to procedural formalities. Government departments often cite the judgment in Uma Devi (supra) to argue that no vested right to regularization exists for temporary employees, overlooking the judgment's explicit acknowledgment of cases where regularization is appropriate. This selective aoolication distorts . ,-l) - l6 SN, .I \\'P 7J6tt 2021 ent's sDirit weaDonizin q effectivelv emolovees who indisoensable serv ices over decades. ur ose aqainst rendered

27. In light of these considerations, in our opinion, it is imperative for government departments to lead by example in providing fair and stable employment. Engaging workers on a tem pora ry basis for extended periods, especia lly when their roles are integral to the organization's functioning, not only contravenes international labour standards but also exposes the organization to legal challenges and undermines employee morale. By ensuring fair employment practices, government institutions can reduce the burden of unnecessary litigation, promote job security, and uphold the principles of justice and fairness that they are meant to embody. This approach aligns with international standards and.sets a positive precedent for the private sector to follow, thereby contributing to the overall betterment of labour practices in the cou ntry.

28. In view of the above discussion and findings, the appeals are allowed. The impugned orders passed by the High Court and the EZ-- SN, J wP 't468 2023 Tribunal are set aside and the original application is allowed to the following extent: i. The termination orders dated

27.L0.2018 are quashed; It. The aoo llants shall be ta ken back h d fa rilr with. H appellants shall not be entitled to anv nFat tn la rr, ben afitcl eck f h Deriod thev have not worked for but woutd tar iho haa ni iHaA tar a^r,itirrr rih, of servi and the same would be counted saad Deri for their oost- iral benefits." llreaacc L2. The various J dqments of the ADex Cou Dertainino to reo u larization of services of temoorarv emolovees/dailv waoe/adh oclcasual emDlovees a re enlisted below: (i) The Apex Court in a judgment reported (2lJ17) 1 Supreme Court Cases 148, in State Punjab and others vs Jagjit Singh and others Paras 54 and its sub-paras (1)(2)(3). (ii) The iudgment of the Apex Court reported an 2O1O(9) SCC 247 between: State of Karnataka and others v M.L.Kesari and others, in particular, paras 4 to 9. I l8 SN, J wP 7468 2023 1 (iii) In the judgement of the Apex Court in Nihal Singh and others v. State of Punjab reported in (2013) 14 SCC 6s. (iv) The judgment of the Apex'Court reported in 2015 SCC Online SC L797 between B.Srinivalusu and others v Nellore Municipal Corporation Rep.by its Commissioner, Netlore District, Andhra Pradesh and others, in particular ParasT and 8. (v) In Amarkant Rai v State of Bihar reported (2O1s) 8 SCC 26s. (vi) In State of Jarkhand v Kamal Prasad reported in (2014) 7 SCC 223, similar view was taken by the Supreme Court and it was held as follows : (vii) The Judgment of this Court dated O6.L2.2O22 passed in W.P.No.27602 ot 2O19 which pertains to regularization of 35 NMRS of Sri Lakshmi Narasimha Swamy Tempte, Yadadri, Nalgonda District, which had been upheld by the Division Bench of this Court in w.A.No.937 0t 2023 dated 10.10.2023 and also confirmed by the order of Apex Court dated

09.08.2024 in SLP No.32847 of 2024.

13. Takinq i nto consideration: 19 SN, J wP '1468 2023 (i) The aforesaid facts and circumstances of the case, (ii) The submissions made by the learned counsel appearing on behalf of the petitioner and the learned Assistant Government Pleader appearing on behalf of the respondents, (iii) The contents of the letter dated 31.O8.2O15 of the 6th respondent addressed to the petitioner, (iv) The averments made in the counter affidavit filed by the 5th respondent, in particular at para Nos. 12 and 13 (referred to and extracted above), (v) The averments made in the reply affidavit filed by the petitioner in particular at para 3 (referred to and extracted above), (vi) The observations of the Apex Court reported in the various judgments (referred to and extracted above), as enlisted below: (i) 2o2s rNsc 144 (ii) 2O24 LawSuit(sc) 1209 (iii) (2o17) 1 scc 148 (iv) 2o1o(9) SCC 247 (v) (2013) 14 SCC 6s (vi) 2015 SCC Online SC 1797 (vii) (2o1s) 8 scc 26s (viii) (2014) 7 scc 223 (ix) SLP No.32847 ot 2024 - 20 SN, J wP 7468 2021 \ The writ Petition is allowed, the petitioner is directed to approach the respondents herein by way of a detailed representation putting forth the petitioner's pleas as put forth in the present writ petit'on and also the specific plea of the petit'oner that the petitioner completed 10 years of service to convert into Last Grade Service as Sweeper duly enclosing all the supportive documents in support of the said plea of the petitioner' within a period of one (O1) week from the date of receipt of a copy of this order and upon receipt of the said representation of the petit'oner with all the relevant documents, the 6th respondent is directed to consider the request of the petitioner for regularizat'on of service of the petitioner as Office Subordinate on par with juniors or from the date of completion of petitioner's 10 years since it is the specific case of the that the Juniors to the petationer had been petitioner regularized after completion of 10 years and the petitioner had been discriminated in accordance to Iaw' in conformity with principles of natural justice by giving an opportunity of personal hearing to the petitioner duly service of , 2l SN, J wP 746E 202J taking into consideration the observataons of the Apex Court in the various Judgments referred to and extracted above and pass appropriate orders within a period of four (04) weeks thereafter and duly communicate the decision to the petitioner. However, there shall be no order as to costs. The miscellaneous applications, if any pending, shall stand closed. \ To, SD/. P. CH. NAGABHUSHAMBA / EPuW REOtsrRnR r ,/TRUE COPY// SECTION OFFICER ^

1. The Principal Secretary Secretariat' lrrigation and CAD Department' , +.? E'"iga::?"-chief, (Admin) lnigation^and cAD Department' Jalasoudha i +HI.JP"', 5#nE*l inu:ru'1 f, fu"11"t^'] * cAD D epa rtm ent, L M D cor o n v' . +iltilst"l"??3',"1,,'n"t'*' lrrisation and cAD Department' Mulusu Mulusu r li':n8tiJ"lffiSfrli"ttLu"n1l;"..' Irrisation circle' Narsampet' waransar Dist- 6. The Exebutive Engineer' lrrigation Division No 3' Narsampet' Warangal DIST- r ?Tjf:y;-' '5';.ty.e,[#Yi],\lbH AlmnPEYfi or re ansana at - Hvderabad [OUT] 9. Trio CD CoPies

506132. BM. s HIGH COURT DATED:2610312025 CC TODAY ORDER WP.No.7468 of 2023 ( e () HE SIA 16 19 APt] 20[ > .c):- + 1- * o 5L'' in1,1 r',:L \--i===:- ALLOWING THE WRIT PETITION WITHOUT COSTS 4 a( (