Manjuta Bhashini Others v. M.D., A.P. Women's Coop. Fin- Corpn.Ltd. and another and other Civil Appeals were

Counsel for the Petitioner: SRI SADU RAJESWARA REDDY Counsel for the Respondent No.l to 3: GP FOR HIGHER EDUCATION Counsel for the Respondent No.4: SRI KHAJA MOIZUDDIN The Court made the following: ORDER THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO WRIT PETITION No.4862 OF 2OLl ORDER: This Writ Petition is fited for the following relief: o... to d.eclare tLrc action of the 4th and. Sth respond.ent in not allouting the petitioner to perform h.er normal duties as an attender or cashier u.e.f. 01.10-2006 is against the principles of natural justice and tlrc same is illegal, arbitrary. Consequentlg, to direct tlrc respondents to continue the petitioner a.s an attender in seruice with all consequential benefits such as arrears of dtfference of salary to tlrc petitioner bg re-ftxing the pay scale of the petitioner by directing the respondents 7 to 3 to absorb / regulari.ze tlrc seruices gf the petitioner in an aided uacant post of attender or in ang otlrcr class IV uacant aided post bg redeploying tle seruices of the petitioner in any other needy gouerrlment colleges in the state of Telangana, along with all consequerfiial benefits includ.ing for pagment of pension along with arrears of pension to th.e petitioner bg counting the seruice from the date of appointment w.e.f. 01-02-1993 till the date of realizatiorl. ...."

2. Heard Sri Sadu Rajeswara Reddy, learned counsel for the petitioner, and learned Government Pleader for Higher Ed.ucation, appearing for the respondents. Perused the material available on record. 2

3. Learned counsel for the petitioner submits as follows: That the petitioner was initially appointed as an Attender ;'t on O 1.O2.1993 in the 4tr, and 5th respondent college and worked up to 01.09.2006. During this period, though she was appointed AS AJ1 Attender, the managernent utilized her services a:i a cashier i.e. collecting fee from students. The petitioner's initial salaqr was Rs.75O/- per month and thereafter l:rer salary was enhanced from time t,c time and her last drawn salaqr as on 30.09.20O6 was Rs.2,200 /- per month However, from 01.10.2006, the petitioner was orally terminated from servi,:e u'ithout any valid reason and in spite of her attending duties; she was not permitted to sign in the attendance register nor paid the salary from 01.10.2006. No written terrnination order was issued to her. Thus, petitioner was handicapped to approach this Court for redressal

4. The petitioner passed the Secondar5r Sch.ool Certificate (S.S.C.) examination in 1983; completed the "Foundation Course in Computer Concepts" on O2.07.L992 with 6l% i.e. A grade; pass;ed a Departmental Test conducted by the Andhra Pradesh Public Service Commission (A.P.P.S.C.) in 1993; and passed Tlpewriting (English Lower) conducted by ..} J the State Board of Technical Education and Training, Andhra Pradesh, in 1984.

5. The 4ft and Sti' respondent college had issued a service certificate to the petitioner earlier, but it was misplaced. Subsequently, the petitioner obtained. a. duplicate service certificate dated LB.O2.2Oll. The Hon'ble Supreme Court on l4.l2.2OOL passed the following order in Special Leave to Appeal (civil).. cc 8gg4 12001 , which was preferred against the order dated 27.O4.2O01 in W.P.No.14641 of 1999 on the file of this Court: "In the meanwhile, status quo obtaining as on todag, shnll continue, until further orders of this Court. Tag utith SLP ( c / iVos. 15947- 1 5962/ 2001."

6. Despite the direction of the Hon'ble High court in w.P.M.P.No.17836 0f 1999 in w.P.No.14541 0f 1999 dated

08.07. 1999, the minimLlm scale was not paid to the petitioner. The management of the 4th and Sth respondent had addressed a letter to the 3'd respondent seeking permission to fill four vacant Aided Non-Teaching post as per proceedings dated

30.03.1996. A reminder letter dated 03-10-1,997 was sent by the management of 4th and sth respondent to the 3'd respond.ent requesting approval for filling up the posts of Non- 4 Teaching Sitaff. The petitioner is fully qualified and is entitled for an absorption / regula:.ization in the post of ,{ttender. 7 . The petitioner \ ras appointed as an Attender on

01.02.1993 in the 4th and Sth respondent ccllege, but the college management utilized the services of the petitioner as a cashier in receiving the fees from the stuclents and the petitioner :rendered service up to 31.09.2006 zurd since then the sth resloondent had not permitted the petiticner to sign in the register and not allowed to work. Thus, the petitioner was harassed and not paid the salaries and thus, the petitioner was compelled and forcibly to quit from the post from 01.10.2006 that too vrith oral termination even though the petitioner insisted the principal to issue any such order in written. But no written order was issued to the petitioner either in terminatinE; from service or in removing from serrrice.

8. The petitioner's last drawn pay was Rs.2,2OO/-as on the date of ora-[ termination therefore the petitioner is entitled for the said pay and also the pay enhanced from time to time till the date of r:einstatement.

9. The petitioner relied upon the judgment of the Honble supreme court in civil Appeal No.37o2 /2006 in the case of A. 5 Manjuta Bhashini & Others Vs. M.D., A.P. Women's Coop. Fin- Corpn.Ltd. and another and other Civil Appeals were disposed with a common order and at para No.43, it is held as follows: "In the result, the appeals filed. bg ttrc employees are dismissed and tLrcse filed by the state Gouer-nment and. agencies/ instrumentalities of th,e state are allowed. Th.e declaration made bg tLte Diuision Benctt thnt th.e ban on regularization uill be effectiue from 19-08-1998 i.e. the date on which the Act No.27 of 1998 came into force ond that all persons who haue completed 5 gears of seruice as on that date would be entitled to be considered for regularization of seruice is set aside. It is howeuer mqde clear that the daity uage employees and otlrcrs wtto qre couered by section 7 of the 1994 Act, (amended) and whose seruices lwue not been regularized so far stwll be entitled to be cortsidered for regularization and their seruices shall be regulari.z,ed subject to fulfillment of the conditions enumerated in G.O- dt 22-04-1994 with a uiew to obutate furttrcr litigation on this issue we direct the Gouernment of A.P its officers qnd agencies/ instrumentalities of the state to complete the exercise for regularization of tle seruices of eligibte employees within four months of tlle receipt/production of this order wittnut being influenced by tlw fact that tlle application, Wit petition or appeat filed. bg any such employees maA haue been dismissed ba ttrc Tribunql or High Court or this Court some of ttrc appeals decided bg this I 6 order relate to part time emplogee, we tiirect that simi,'.ar exercise be under taken in their 'cases and comltleted within four montLts keeping ir,:. uiew the conalitions enumerated in G.O.(P).No. 112 dated 23- 07-1997."

10. The petitioner joined as an Attender on 01.02.1993 in the 4tt' and Sth respondent college and as on the date of last drawn pay i.e. 31.09.2006, the petitioner completed more than 13 years and 8 months and the petitioner is entitied for regularization in view of the landmark judgment of the Honble Supreme (lourt reported in 2010 (1) Decisions Today (SC) 358 wherein a1. paragraph 8, the object behind the said direction in para 53 ol'is twofold atl persons. First is to ensure that those who have put in more than 10 years of conlinuous service without protection of any interim orders of Courts or Tribunals before the date of decision in Umadevi wa:s rendered for regularizat.ion in view of their long service. It was also held that emplc,yees who have completed 10 years ol'service and did not possess the educational qualification prescribed for the post, at the time of their appointment, they ma1, be consider in suitable lo'wer post. Thus, the petitioner is squarely covered by the above ruling of the Honble Supreme court and hence prayed to z[low this writ petition. I --__.--^ I 7 1 1. The learned Government Pleader appearing for the respondent Nos.1 to 3 filed counter and submits that, the petitioner Mrs. Fairooz Fatima, Ali was appointed on o1.o2.1993 as Attend.er with a consolidated salary by the 4th respond.ent i.e., Mumtaz College, Hyderabad, without obtaining prior permission from the Commissioner of Collegiate Education, Hyderabad, to fill up the aided vacant posts in the college and the condition imposed at the time of her appointment is purely temporary. The petitioner worked up to

01.09.2006 and she was terminated from attender duties we.f

01. 10.2006. t2. The orders issued in G.o.Ms. No.212, Finance & Planning (FW.PC.III) Department, dated 22.o4.1gg4 shall be made applicable to those who have put in a continuous service of five years as on 25.11. 1993. Therefore, the request of the petitioner for regulatization / absorption into Grant-in-Aid and for payment of salary attached to Attender does not arise, as she has completed only 9 months and 24 days of service as on

25.rr.1993.

13. The petitioner was working at 4th respondent college i.e., Mumtaz College, Hyderabad, since 01.02.1993 in the vacancy d.,- 8 caused due to retirement of an attender working in an aided post of the college. The 4th respondent is not competent to fill \ up the aided vacancy as and'*rhen arises without taking prior permission from the Commissioner of Collegiate Education, the competent authority. In order to avoid dislocation in the college work, the college is appointing persons in the vacancies caused due to retirement of regular employees initially on daily \ /ages and are given consolidated pay after some time and later given the srcale of enable to them to draw enhanced pay every year. But at no point of time they are given the impression that their seryices would be regularized in the aided vacancies.

14. The p,etitioner is an attender (Un-Aided) who is working in Mumtaz College, Hyderabad, is not eligible for regularization as per G.O.Ms.No.212. Finance & Planning (FW.PC.III) Department, dated 22.04.1994, as she has completed only 9 months aurtd 24 days of service as on 25.11.1993. As per the said G.O., it requires five years of seryice as on 25.11.1993. As such, the petitioner in question is short of required five years as on 25.1'1.1993 which is a pre-requisite condition in the said G.O.Ms.No.212

15. The method of regularizing the NMR/ Daily wages employees has been laid down in G.o.MS.No 1112 Fin & plg r, 9 dated: 22.04.1994. The foremost condition in terms of the said Government orders is the services of the persons who worked continuously for a minimum period of 5 years and are continuing on 24.11.1993 be regularized by the appointing authorities subject to fulfillment of the following conditions.

1. The persons appointed should possess the qualifications prescribed as per rules in force an on the date from which his/her services have to be regularized.

2. They should be within the age limits as on the date of appointment as NMR/Daily wage employee.

3. The rule followed vacancies of reservation wherever applicable will be and backlog will be set-off against future

4. Sponsoring of candidates from Employment Exchange is relaxed.

5. Absorption shall be against clear vacancies of posts considered necessary to be continued as per work-load excluding the vacancies already notified to the Andhra Pradesh Pubtic Service Commission/District Selection Committee.

16. The contention of the petitioner to regtiatize their services in terms of judgment of the Supreme Court of India whenever an employee completed 5 years of service is not correct because the Hon'ble Supreme Court in A. Manjula Bhashini & Others Vs M-D., A.P. Women's Co-Operative l0 Finance Corporation Ltd & ANR (2009) INSC 1135 (6 July, 2OO9) has.held that: "the question which remains to be mnsidered is uhether tle D;.uision Bench utas justifted in holding that all dailg utage employees who completed 5 gears seniice on the date <tf enforcement of Act No. 27 of 1998, i.e., 19.8.1998 uoulal be entitled to be considered for regulctization of their s;eraices. A reading of paragrapls 54, 67, 68 and 72 of tlrc impugned judgment shouts that euen though the Diubion Bench did not Jind the cutoff date i.e. 25.11 1993 specifred in ftrst prouiso to Sec:tion 7 for detennining the eligibilitg of daily wage empfl.oyees for regulorization to be arbitrary, irational or discrininatory, get il changed the said date from 25.1i.1993 to 19.8.1998 sobly on the premise that Act No. 27 of 1998 rtas enfored uith effect from that date. in our uieu.t, once tLe Diuision Bench negatiued the challenge to tLLe ualidity of Act Nos.3 of 1998 and 27 of 1998, tlere taas no wanant for alteing the date of eligibility speciJied in first proui.stt to Section 7 of the 1994 Act and therebg extend tte zone of eligibilitg of daily utage emplogees utho could be con.sid.ered for regulari"z,ation. As a corollary, ute hold tLnt tlle declaration made bA the Diuision Bench. that all person.s uLa ampleted 5 years seruice as on tlu,- date of coming into force of Act No.27 of 1998 uould be entitled to be ansidered for reqtlariz,ation of thetr serzices is legally unsustainable and. is liable to be set aside". Thus, the condition of 5 years continuous service as on

25. 1 1. 1993 has become mandatory. Therefore, the petitioner herein has not satisfied the conditions of completing of 5 years continuous service as on 25.11 1993.

17. Further, the Hon'ble Supreme Court of India in its order date 06.07.2009 in the case of A Manjula Bhashini Vs MD Women's Co-operative Finance Corporation Limited had upheld the validity of (AP. Regulation of Appointments to Public Services and rationalization of staff pattern and pay structure) Act-211994 as €unended by Acts 3 and 27 of 1998 so also the cutoff date as fixed for continuance of their services subject to the required period of service as on 25.11 1993.

18. The contention of the petitioner to regularize her services in terms of judgment of the Supreme Court of India is not correct. Further, in the state of Assam Vs. Ajit Kumar Stwrma (AIR 1965 SC 1 196) the Hon'ble Supreme court held that no mandamus could be issued against the State directing it to provide Grant-in-aid that what grants the State should be made to private educational institutions and upon what terms, were matter for the State to decide and, in the absence of any statutory provision governing such grant, no mandeunus could be issued directing the State to provide grant-in-aid. Following the said judgment, a Division Bench of the Hon'ble High Court in W.P.No. 8697 l2OO5, dated 07.ll.2OO5 observed i;. l I I t2 that no pri.vate educational institution or an employee of such an educaticnal institution had a legal right to c:,cmpel financial ) assistance by the State. In the foresaid circumstances, the Writ Petition filed by the petitioner is devoid of merits in its entirer-.y and is liable to be dismissed. FINDINGS OF THE COURT:

19. A perusal of the record shows that the petitioner was appointed as an attender on 01.02.1993 and rvorked up to

01.09.2006. Sometimes the management utilized the petitioner's services as a cashier also. Petitiont:r was initially paid Rs.75;O/- per month and thereafter the salary was enhanced from time to time and the minimum scale to the said post was R:s.2,500 - 4,550/- p.m. The petitioner,s pay was enhanced to Rs.2,2OO/- per month titl 30.09.'2,006 (wrongly mentioned as 31.09.2006). Thereafter, the petitioner's services were orally terminated. Even this minimum of scale is also for certain t:mployees as per Court directions in W.P.No. l414l of 1999. .{gainst the W.P.No. 14541 of 1999, some of the petitioners rvent to Supreme Court also and the Supreme Court in special L,eave to Appeal (civil).. cc Bgg4 of 2001. In the said case, the supreme court passed the following order: l3 "54. Keeping in uiew of tle prospectiue effect giuen to Act 27 of 1998, all persons uho haue completed 5 years of seruiee as on tlrc date of coming into force thereof would be entitled to be considered for regularization of their seruices. Bg reason of the ualidating Act, the judgment of this court cannot be said. to haue been ouerntled, in th.e meanwhilq stafus obtaining as on today shall corfiinue until furtlrcr orders of this court." Ultimately, the above appeal was dismissed on

06.07 .2009.

20. The contention of the petitioner is that, four vacant posts of attenders were shown by the management and sought for permission to fill up the vacant aided non-teaching posts as per the proceedings dated 30.03.1996 itself, which was addressed to the Commissioner of Collegiate Education, A.P., Hyderabad. After the request letter for approval of non-teaching posts, reminded the same to the authorities on 03.10.1997. As per the pleadings of the petitioner, there is no further development in the request of approval. The petitioner is fully qualified and entitled for absorption/regularrz.ation in the post of attender.

21. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of State of Karnataka V. L. Kesqrll decided on 03.O8.2010. tn the said case, the Honble Supreme Court discussed the case of State of Karnataka Vs. Umadevi, rendered on 10.04.20C,6, (reported in 20O6 (a) SCC 1 in t ZOtO(t) Decisions TodaY (SC) 358 t t4 '*,hich, thelr extracted para No.53 of the said judgrnent, which reads as under: ,l "53. One aspect needs to be clarified. There may be caseri tuhere irregular appointments (rrct illegal appointments) as explained in S.y. Narayanappa [1967(1) SCR 128], R.N. Nanjundappa [1972(1) SCC 4091 and B.N. Nagarajan [1979 (4) SCC 507] and re.ferred to in para 15 aboue, of duly qualifred person.s in duly sanclioned uacant posfs, might haue been mctde and the employees haue continued to utork for 10 years or more but utithout the interuention of orders of tlrc Ctourts or of Tnbunals. The question of regularization of the seruices of su,:h employees maA Lwue to be considered. on meits in the light of the principles settled by this Court. In the cases aboue referced to and in the light of this judgment. In thctt context, the Union of India, tlrc State Gouernments and tLrcir instrumentalities should take steps to reguloriz,e as a onetime measure, th.e seruice,-s of such irregularlg appointed, who Lruue worked for 10 years or more in duly sanctioned posts but not under couer of order:; of the Courts or of TibunaLs and shottld further ensure that regular recnitments are undertaken to fill those uacant sanctioned posts that required to be filled up, in cases where temporary employees or daily wagers are b'eing now employed. The process musf be set in motion within six montls from thi"s date..."

5. h is etuident from the aboue that there is an exception to the eenera"l pinciples against regularization enunciated in Umadeui, if the following conditions arefulfilled .. l5

22. Out of the said conditions, No.l condition is that the employee concerned should have worked for 10 years or more in duly sanctioned posts without the benefit or protection of the interim order of any Court or Tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

23. In the case on hand, the petitioner in her own affidavit stated that she worked as an attender on temporary basis and her post was not against any sanctioned post. Hence, the Umadevi case is not applicable in the present case.

24. As per the submission of the respondent authorities, the G.O.Ms.No.2I2, dated 22.O4.1994 shall be mad.e applicable to those who have put in a continuous service of five years as on

25.11.1993. If G.O. has to be applied, the persons must and should work minimum five years of service, whereas the petitioner worked only for 9 months and 24 days as on

25.11.1993. As such, the said G.O. is not applicable to the petitioner's case. Though in the counter at para No.6, the above said issue was discussed, there is no discussion in reply affidavit to that effect. Moreover, the petitioner filed service certificate, dated L8.02.2O11, in the said certificate mentioned I ,, I 16 as urorked as Office Attender from 01.02.1993 to O1.09.2006. But, nothirrg is mentioned in the said certificate that whether i-l she workr:d against the sanctioned post or not or her recruitment was made under any rules and regulations. In the said circurnstances, the service certificate. cal-lnot be looked into.

25. In view of the foregoing discussion, the petitioner is not entitled to regularize h,er service. As such, the u,rit petition is Iiable to be dismissed

26. Accordingly, this Writ Petition is dismissed. No order as to costs. Miscellaneous petitions, if any, pending shall stand closed \ //TRUE COPY// Sd/.AHMED ABDULLA KE4I --' ASSIsTANT 9EGISTRAR sEcr6 oFFlcER To,

1. 2 3 One CC to S;Rl SADU RAJESWARA REDDY' Advocate IOPUC] One CC to SiRl KHAJA MOIZUDDIN' Advocate [OPUC] EDUCA,.N' Hish court ror the State or +H,:^33;,h 3I.53*XE!fi-

4. Two CD CoPies q+. BSR PMK HIGH COURT DATED i3111012025 t I ORDER WP.No.4862 of 2011 'i?lt: -7 ;,r:, i' .',1 14 lrfitl ftUt * -* DISMISSING THE WRIT PETITION, WITHOUT COSTS ?u tr 2,L