A.GOPAL REDDY v. CHAIRMAN

Order

01-04-2010 Between: G. Nagachandra ..Petitioner

1. The High Court of Andhra Pradesh, represented by its Registrar (Administration), High Court Buildings, Hyderabad, and others. ..Respondents The Court made the following Order:

THE HONOURABLE SRI JUSTICE A.GOPAL REDDY THE HONOURABLESRI JUSTICE VILAS V. AFZUL PURKAR W.P.No.24986/2008 ORAL ORDER: (Per Hon’ble Sri Justice A.Gopal Reddy) The petitioner obtained a rule from this court calling upon the respondents to show cause as to why a writ of certiorari should not be issued under Art.226 of the Constitution for quashing the proceedings dt. 14-10-2008 of the third respondents, namely, Judicial First Class Magistrate, Special Mobile Court, Anantapur. The petitioner who was appointed temporarily as a part-time Masalchi by the proceedings of the second respondent, District Judge, Anantapur dt. 8-12-2000 posted to work at Special Mobile Court, Anantapur, and since then he is working as such. While so, by the impugned proceedings dt. 14-10-2008, the petitioner was informed that his services were terminated with effect from 29-9-2008 as per the proceedings of the second respondent dt. 3-10-2008. Questioning the same, the present writ petition is filed contending that he passed Secondary School Certificate Examination in the year 2000; English typewriting Lower Grade in the year 2003 and Higher Grade in the year 2005. He made several representations to convert his services as Masalchi to Last Grade Services ie., Attender-cum-Masalchi. He also attended three times for the interviews for the post of Attender, when the notifications were issued to recruit the attenders, but was not successful. The fourth respondent behaviour was very arrogant and was treating him as a slave. It has become very difficult to work in the residence of the fourth respondent. The fourth respondent earlier suspended one Mallikarjuna, Attender working in the bungalow and imposed punishment of withholding one increment. The absence of one Gardener-cum-Attender was treated as dies-non. He harassed and humiliated one Ramanmma, attender-cum-cook and ultimately transferred her to a far of place. Similar transfer was effected to B.Srinivasulu, Attender. The fourth respondent terminated the services of one P.Srinivasa Rao, Masalchi, whose services were regularized and was appointed permanently in Class-IV Service. It is further contended that the termination is not a termination simplicitor and it is by way of substitute to disciplinary action and is a mala fide exercise of power, and the same is liable to be set-aside. Since the juniors who were appointed to the petitioner on temporary basis are in service, his services cannot be terminated. Since the second respondent, issued appointment orders, the third respondent cannot terminate the services of the petitioner. In the counter-affidavit filed opposing the writ petition, the second respondent stated that the petitioner’s appointment was purely temporary and it was specifically informed that his services are liable to be terminated at any time without prior notice or without assigning any reasons. It was specifically denied about the harassment meted out to the Masalchies working at the residence of the second respondent. The qualifications acquired by the petitioner are not borne by record. As a part-time Masalchi, the petitioner was drawing only daily wages. The termination of the petitioner was made as per the report submitted by the Judicial Magistrate of First Class, Special Mobile Court, Anantapur under whom he is working. There is no provision for conversion or regularization of part-time Masalachi. Since he being only a contingent worker, his continuation in service depends upon the exigency of work. Since the third respondent itself submitted a report stating that his services are no longer required in her court, his services were discontinued. It was specifically denied about the ill-treatment meted out to other attenders as stated by the petitioner in his affidavit. No reply affidavit has been filed by the petitioner to substantiate his plea that the termination is mala fide or colourble exercise of power as contended. Learned counsel for the petitioner while placing reliance on the Circular in ROC No.2708/2003-D1(5) dt. 26-7- 2004 issued by the High Court of Andhra Pradesh, whereunder Unit Heads were permitted to appoint the qualified part-time and full-time Masalchies, who are in service, directly to the post of Attender, subject to the availability of Roaster points without issuing any notification for selection and senior most among the persons that have put in required service have to be given first preference, contended that the petitioner is entitled to be considered for appointment as regular attender. Once the juniors to the petitioners are working, the petitioner’s services cannot be dispensed with and he is entitled to the protection envisaged under Sec. 25-F and 27-H of the Industrial Disputes Act, 1947. For the said proposition, he relied upon the judgment in T.CHANDRA SEKHAR V. CHAIRMAN & M.D., BDL[1] Per contra, Sri G.Vidya Sagar, learned Standing Counsel for respondents 1 to 3 contended that when the petitioner who was appointed as a part-time Masalchi on daily wages and when his services are no longer required as per the report submitted by the third respondent, the second respondent, District Judge, has power to terminate the services of the petitioner. Once there are no vacancies, the petitioner cannot claim appointment as a matter of right. By Circular dt. 26-7-2004 of the High Court of Andhra Pradesh, Hyderabad, all the Unit Heads were informed that in view of the prohibition imposed under A.P. Act No.2 of 1994, no fresh appointments of contingent staff can be made, but permitted the Unit Heads to engage sweepers occasionally and pay wages for the days they are engaged and also permitted to directly appoint the quailed part-time and full-time Masalchies, who are in service, to the post of Attender, subject to availability of Roster points without issuing any notification for selection for those posts. The appointment of Full- Time and Part-Time Masalchies in regular vacancies as per the High Court’s Circular ROC No.2708/03-D1(5) dt. 6-1- 2004 is only one time arrangement and would be applicable only to the existing incumbents as on the date of circular. While making appointment, the senior most among the persons that have put in required service, have to be given first preference and so on. To the extent of availability of vacancies in particular Roaster point, fully qualified Masalchies have to be appointed. In case of requirement of relaxation of age, they have to address the High Court and the Government for relaxation. If the qualified Masalchies are found to be suitable, they can be considered for appointment against the open vacancies, in case no vacancy is in their roster points. The District Judges have to satisfy themselves with regard to the qualification of the candidates and the genuineness of the certificates submitted by them. All the Unit Heads were directed to send a report to the High Court as to the action if any taken in the matter of appointment of Full time and part time Masalchies to the posts of attenders. When the said instructions issued, as early as in the year 2004 are clear if vacancies are available for all the qualified Masalchies, all of them can be appointed, the petitioner has not substantiated about the vacancies, which were available to appoint him as Attender. The petitioner having admitted that he attended three times for the interview for the post of Attender when the notifications were issued and not selected cannot claim that he is entitled to be appointed as Attender. When he was not selected pursuant to the notifications issued earlier, he would have been moved the High Court for such appointment instead of participating in the regular selection. Having failed to get himself appointed as Attender, the petitioner cannot turn down and challenge that he is entitled to be appointed as Attender. Once the services of the petitioner are no longer required pursuant to the report submitted by the third respondent, the petitioner cannot claim appointment as a matter of right. In the absence of any particulars given about the juniors who are appointed temporarily as Masalachies and who are still working, the respondents have not followed the procedure envisaged under Secs. 25-A and 25-H of Industrial Disputes Act, 1947. We see no merit in the contention that Sections 25-A and 25-H have been violated. Since the petitioner has no right to hold post and he was appointed on daily wages, he cannot claim regular appointment as attender having failed to secure appointment on participating in the selection process. The writ petition fails and is accordingly dismissed. No costs. ________________ A.GOPAL REDDY, J. ____________​ ​__________ VILAS V AFZUL PURKAR, J. 01-04-2010 KMR [1] 1996(3) ALD 955 ​ ​ ​ ​ ​ ​