P.LalithA Kumari v. The State Board of Technical Education and Training

(per The Honourable Sri Justice Dharma Rao Elipe) Writ Petition 27391 of 1996 is filed seeking a writ of mandamus declaring the seniority list of the employees working on the daily wage basis as illegal and consider the case of the petitioner taking into account her services rendered for four years in Census Board in terms of GOMs. No. 4769 (Gen. Admn. – Services-A) Department dated 1.12.1982, to regularize her services with effect from the date of her appointment and also to declare the action of the respondent Board in regularizing the services of 22 other members Proceedings No. SBTET/ESTT/C-1/DWC/90 dated 31.8.1991 as illegal, arbitrary, unconstitutional and inoperative insofar as the petitioner is concerned. WP No. 5267 of 1998 is filed to issue a writ of mandamus declaring the Memo No. SBTET/C-1/7925/95 dated

16.2.1996 as illegal, unconstitutional and arbitrary insofar as the petitioner is concerned and to consider the case of the petitioner in terms of GO Ms. No. 212 dated 22.4.1994 overlooking the artificial breaks by treating the services of the persons called on deputation by the respondent Board as illegal and to exhaust the seniority list prepared by the Board in terms of judgment in WP No. 18254 dated

4.7.1991. It is the case of the petitioner in WP No. 27391 of 1996 that she was appointed as Tabulator in the office of the Census Operation and after working as Tabulator from 8.12.1980 to 28.2.1982, since there was no further work as such, she was posted as a Coder w.e.f.

1.3.1982 and worked as such till 29.2.1984. Thereafter since the work in the Census Operation was over, the Board of Directors Census Operations took a collective decision and the staff was reduced and several persons along with the petitioner were retrenched. At the time of retrenchment, she was aged 35 years and as such there was no scope for the appointment. It is further the case of the petitioner that on the representation made by several individuals, the Government of India, Ministry of Home Affairs, Department of Personnel and AR, by their Proceedings 14024/6/81- ESTT.(D) dated 5.7.1982 granted certain concessions in favour of all the retrenched employees, such as relaxation in age, giving priority and sponsorship from the Employment Exchange, etc. on condition that the employees should have worked for more than six months in the Census Department. The said policy of the Union Government was followed by the State Government and certain guidelines were issued in GO Rt. No. 4769 Gen. Admn. (Ser.-A) Department dated

1.12.1982. In view of the above policy decision, there is no dispute with regard to the application of the guidelines issued by the State Government in pursuance of the policy decision taken by the Union Government. Therefore, the petitioner is entitled for the benefit on the ground that she has completed four years of service in Census Department as Tabulator and Coder and thereafter she was sponsored by the District Employment Exchange, Hyderabad by the letter dated 31.5.1987 and she was appointed as daily wage clerk in the Respondent Board. Though she was appointed initially for a period of two months, but continued in the respondent Board till August, 1991, on a daily wage of Rs.15/-. Several representations for regularization of her services along with others were given a dead ear by the respondent and therefore, she filed WP No. 2264 of 1990 before this High Court, which was disposed of by a common order dated 4.7.1991 giving certain directions, but since there was no positive direction in the said writ petition, the respondent Board did not consider the petitioner’s case and, therefore, the petitioner preferred WA No. 1149 of 1991 which was disposed of by a Bench of this Court giving liberty to the petitioner to file a separate writ petition, inasmuch as no relief was granted by the learned Single Judge in the writ petition since it was disposed of in a batch of cases. Thus this writ petition is came to be filed. It is pertinent to note that pursuant to the directions given by the learned Single Judge, the respondent Board has prepared Seniority List and the name of the petitioner was placed at Sl. No. 28. The claim of the petitioner is that her name must be placed at Sl. No.1 on the ground of length of service she has rendered in the Census Department. This claim, according to the petitioner, rests on the priority clause incorporated the GO issued by the State Government. The case of the petitioner in the other Writ Petition No.5267 of 1998 is that he was appointed as Typist on 7.10.1987 and to deprive him of the continuity of service, artificial breaks were given. Therefore, the petitioner filed WP No. 18254 of 1989 which was disposed of on

4.7.1991 and likewise the petitioner in WP No. 23791 of 1996, he also filed WA No. 275 of 1992 and a Division Bench of this Court directed the respondent to consider the case of the petitioner in terms of GO Ms. No. 212 dated 22.4.1994. But the respondents without consider his case in correct perspective in terms of the said GO, issued impugned memo and rejected the candidature of the petitioner. Thus the petitioner came up with the present writ petition. The main contention of the petitioners in these writ petitions is that the representations made by them were not properly considered by the Respondent Board and the objections raised were not properly given effect to in the light of the priority clause incorporated in the G.O. and, therefore, the seniority list prepared by them is bereft of merit. It is their case the respondent failed to consider qualifications and length of service for regularization of their services.

Therefore, they sought for a direction to set aside the seniority list and to direct the respondent to consider their length of service and regularize them in the respective posts, in terms of the policy decision taken by the Union Government and followed by the State Government. The respondent filed their counter affidavit admitting the factum of appointment of the petitioners. It is further stated that as per the policy decision of the Union Government, relaxation of age on the basis of the minimum services of six months and sponsorship from the Employment Exchange in respect of those who were retrenched from the Census Department was given for other posts in the Government Service. It is categorically stated that the Board is constituted with an obligation to conduct arious types of Diplomas and Technical Examinations and it does not carry any business activities, which generates profits, that as per the Rules, the Board may take officers and staff from the Department of Technical Education on deputation in addition to resorting to direct recruitment.

The Government or the Director of Technical Education, as the case may be, shall issued necessary orders of deputation at the request of the Board. It is also submitted that as per the policy decision, the age relaxation for three years and exemption the sponsorship the District Employment Exchange were given. It is further submitted that though the petitioner in WP No. 27391 of 1996 was over aged, in view of the age relaxation, she was engaged and therefore, having taken advantage of the GO, at the time of appointment, she is estopped from seeking any other benefit more particularly counting of her past services in the Census Department to place her at Sl. No.1. It is further submitted that by virtue of the date of appointment, the seniority list was prepared and at that point of time, she did not raise issue with regard the seniority. The petitioners have misconstrued the priority clause. There is no such policy decision to give priority to such of the employees who are sponsored by the Employment Exchange, as alleged by the petitioners or that the retrenched employees of the Census Department would be preferred with compared to the other candidates who were drawn from other sources.

It is further submitted that as there were no regular vacancies, the daily wage employees who stands in the seniority list are not regularly appointed and the cases of the petitioners will be considered for regular appointment according to their own turn as per the seniority list and depending on the regular vacancies in the post of Junior Assistants. In the earlier round of litigation, it is stated by the respondents that the name of the petitioner in WP No. 27391 of 1996 was not sponsored by the Employment Exchange and therefore, her case does not deserve consideration for regularsiation. As can be gathered from the material placed before us, prior to the appointment of the petitioner i.e. on 5.6.1987, several others were appointed from 3.12.1984 to

27.5.1987 and by virtue of their appointments and length of service, they were placed at appropriate places in the seniority list. Several contentions raised in the present writ petition are not germane for consideration now. Evidently, it is made clear in the counter affidavits this court directed the respondent to publish a list of daily wage employees on the basis of the length of service of each category of employees in the Notice Board by the end of July, 1991 after considering the representations. The respondent has disposed of the representations of all the daily wage employees including the petitioners and finalized the seniority list as on 31.8.1991 and, thus the impugned action of the respondent is solely based on the judgment of this court dated 4.7.1991 and in consonance of the policy decision taken by the Union Government and followed by the State Government. Evidently, the petitioners are appointed on 5.6.1987 and 7.10.1987 respectively.

Prior their appointments, several others were appointed and attained seniority over them. If the petitioners feel that they are seniors to those appointed earlier to their appointment, they ought to have taken objection in the first instance stating that since they are retrenched employees of the Census Department and in view of the length of service they have rendered, the seniority list should be prepared taking into account the length of service rendered in the Census Department. As can be seen from the policy decision of the Union Government and the guidelines issued thereunder by the State Government, there is nothing in the communication which denotes that the length of service rendered in the Census Department shall be taken account of while fixing the seniority in the respective cadres. The policy decision taken in respect of the retrenched employees only confers the privilege of relaxation of age upto 3 years and sponsorship of the names of retrenched employees from the Employment Exchange irrespective of their crossing the age for public employment.

In this writ petition, at this moment, we are not concerned with the drawing of staff on deputation. Evidently, when there are no qualified, eligible and competent persons available Department, it is prerogative of the administration, to draw personnel on deputation from other departments and, the employees like that of the petitioners, have no right to contend that the should be placed above such employees, drawn on deputation, in the seniority list. Therefore, we have no hesitation in coming to the conclusion that the petitioners have no right to contend that the seniority list shall be prepared taking into account their services rendered in Census Department, which is not the spirit of either the Judgment of this court in earlier round of litigation nor the policy decision taken by the Union Government followed by the State Government. Insofar as the decision Govt. of T.N. and another V. G.Mohamed Ameenudeen and others() is concerned, the employees were recruited through the employment exchange for the purpose of census work in Tamil Nadu for specified period of 18 months from

1.2.1991 to 30.6.1992 and upon completion of the work, their services were terminated, but during the subsisting of their work, on

15.5.1991, the Government of Tamil Nadu, issued an order imposing a ban on recruitment of temporary employees for one year starting from the date of the said order excepting the candidates sponsored by the Tamil Nadu Public Service Commission. In such circumstance, considering the special features of the case, the Apex Court directed the State Government to frame a scheme to absorb such employees and others who were similarly placed and who have been retrenched. When the Government of Tamilnadu, framed the scheme in terms of the direction of the Apex Court given in Ameenuddin’s case and when the same scheme came up for judicial scrutiny before the Apex Court in a decision N.Palani V. Thiru A.P. Muthuswamy and another(), the Apex Court held that the proper course was to consider the retrenched employees in a separate category and to work out a scheme to fit them in appropriate posts in appropriate departments of the State Government, local bodies and public under takings without requiring them to be sponsored by employment exchanges.

The Secretary , State Board of Technical Education and Training, B.R.K.R, Government Office Building, Tank Bund, Hyderabad.

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