Full Judgment Text
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CASE NO.:
Appeal (civil) 2455 of 1999
PETITIONER:
The Divisional Manager, APSRTC & Ors.
RESPONDENT:
P. Lakshmoji Rao & Ors.
DATE OF JUDGMENT: 22/01/2004
BENCH:
S. RAJENDRA BABU & P. VENKATARAMA REDDI.
JUDGMENT:
JUDGMENT
With
CIVIL APPEAL Nos. 3017, 5881 & 4855 of 1999
P. Venkatarama Reddi, J.
These cases involving the issue as to the effective date
of regular appointment and seniority unfold certain
disturbing features\027non application of mind by the High
Court to the crucial aspects of the case, vagueness of the
directions issued, the deficiency of pleadings and material
placed on record by the contending parties and above all the
default of the appellant-Corporation in allowing other similar
orders becoming final while contesting certain others
including the present matters.
The undisputed facts common to all these cases may
be noticed:
Pursuant to the advertisements made by the appellant-
Corporation (hereinafter referred to as ’APSRTC’), the
respondents were selected as conductors and appointed on
daily-wages initially for a certain period of time and
thereafter their services were extended on the same terms
and ultimately regularized after a year or two. They were
placed on time scale of pay and their seniority was counted
from the date of such regularization. Long afterwards, the
respondents filed writ petitions contending that their
services ought to have been regularized from an anterior
date i.e., from the date of their initial appointment on daily-
wage basis and the service benefits should be granted
accordingly. This prayer was practically granted by the High
Court with a rider that they should have completed one year
of continuous service as defined in Section 25B of the
Industrial Disputes Act. There was practically no discussion
on the merits in any of these cases either in the judgments
under appeal or the earlier judgments which were followed
in the instant cases. All the writ appeals were disposed of at
the admission stage itself. One more fact to be noticed is
that no averment has been made nor any material placed
before us to establish that the judgments which were
followed in these cases or similar judgments in certain other
cases have been contested by APSRTC by filing LPAs or
SLPs.
Now, we will advert briefly to the facts in each of these
appeals.
Civil Appeal No. 2455 of 1999
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Pursuant to the advertisement issued by APSRTC
calling for the applications for the posts of Conductors in
Visakhapatnam, Vizianagaram and Srikakulam regions, the
respondents were selected and appointed as Conductors on
daily-wage basis in October, 1987. They joined the service
on various dates between 16.10.1987 and 12.12.1987. The
services of the respondents were regularized with effect
from 15.2.1989. It is to be mentioned that the order
appointing them on daily-wages and on regular basis is not
on record. The respondents filed writ petition in the year
1997 in the High Court of A.P. alleging that certain persons
employed by the private bus operators and absorbed into
Corporation service after nationalization of the routes,
though appointed later on i.e., after 12.12.1987, were
shown as seniors to the respondents in the seniority list (the
date of which is not mentioned). Thus, according to the
respondents, they were made juniors to the displaced
employees who were appointed subsequently. It does not
appear that any counter-affidavit was filed in the Writ
petition. The stand of the appellant as seen from the
grounds in the Writ appeal is that the respondents were
appointed on daily-wage basis after selection in order to
cope up with the peak season demands between January
and July and their services were regularized as and when
vacancies arose. The details of the vacancies that had arisen
were however not spelt out. The reason for offering
appointment to the respondents on regular basis with effect
from 15.2.1989 is not specifically mentioned either in the
memorandum of Writ appeal or the SLP. The learned single
Judge allowed the writ petition of the 50 respondents
directing regularization in the posts of Conductors
"reckoning continuous service of the writ petitioners as
envisaged in Section 25B of the Industrial Disputes Act for
the purpose of benefits of service". On appeal by APSRTC,
the Division Bench dismissed the same on the ground that
"on the appellants’ own showing, the matter is covered in
terms of the earlier order in writ appeal No. 705 of 1995".
We will be adverting to the order in W.A. 705 of 1995 a little
later.
Civil Appeal Nos. 3017 and 5881 of 1999
There are three respondents in these appeals. The two
respondents in Civil Appeal No. 3017 of 1999 were
appointed as casual Conductors on 15.12.1983 on daily-
wage basis after due selection in Cuddapah region of
APSRTC and they reported for duty on 19.12.1983. Their
services were regularized with effect from 6.4.1985. The
respondents filed the writ petitions in the year 1998 seeking
regularization with effect from 19.12.1983 instead of
6.4.1985 and praying for all benefits of service with
reference to the said date of their initial appointment. The
respondent in Civil Appeal No. 5881 of 1999 was appointed
on 3.4.1984 as a casual Conductor in Cuddapah region after
due selection and his services were regularized with effect
from 21.3.1986. He prayed for a similar direction to treat
the effective date of regularization as 3.4.1984 instead of
21.3.1986. The learned single Judge dismissed both the writ
petitions (filed in the year 1998) on the ground of
unexplained delay in approaching the Court and non joinder
of necessary parties whose seniority was likely to be
affected. On appeal by the writ petitioners, the Division
Bench set aside the order of the learned single Judge and
directed the Corporation to consider the cases of the writ
petitioners for regularization "notionally, with effect from the
date they were entitled to" with a further observation; "it is
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made clear that the appellant should be given the same
benefits which have been granted by the respondents in
respect of similarly situated persons". The learned Judges of
the Division Bench noticed that in writ petition No. 26111 of
1998, which was disposed of by another learned single
Judge, there was no opposition by the Corporation and
therefore it was not fair on the part of the Corporation to
raise the technical ground of latches in respect of similarly
situated employees. It may be mentioned that in W.P.No.
26111 of 1998, the learned single Judge directed
regularization with effect from the date of initial
appointment purportedly following the decision of Division
Bench in APSRTC Vs P.T. Rao [1998 2 ACT 447]. There
was in fact no concession on merits in that case. It is not
known whether any writ appeal was filed against the order
in W.P.No. 26111 of 1998.
Civil Appeal No. 4855 of 1999
The four respondents in this appeal were recruited on
daily-wage basis as casual Conductors after due selection
and offered appointment in Governorpet depot of
Vijayawada region in June/July, 1991. Their services were
regularized in January/August, 1994. Claiming regularization
on completion of 240 days of continuous service and placing
reliance on the decision in Writ Appeal No. 705 of 1995, they
filed writ petition in the year 1997. The writ petition was
disposed of on 1.10.1997 with a direction to the respondents
to consider the case of the petitioners for regularization as
per the judgment in W.A. No. 705 of 1995. On appeal to the
Division Bench, the writ appeal was dismissed in limine by a
non-speaking order. In the writ appeal, an affidavit was filed
by the Chief Law Officer of APSRTC. It is stated therein that
on account of large scale nationalization of bus routes
between 1986 and 1990 and the heavy passenger traffic
during the peak season, the APSRTC resorted to recruitment
of Conductors and Drivers on daily-wage basis in the hope of
absorbing them on regular basis later on depending on the
availability of the sanctioned posts. Keeping the anticipated
regularization in view, they were chosen on the basis of
selection. It is further stated that the regularization is done
according to the prescribed norms envisaged in the
memorandum of settlement dated 28.4.1994 entered into
under Section 12(3) of the I.D. Act. For those employed
between December 1991 and December 1994, the agreed
date of regularization as per the settlement, falls between
31.12.1995 and 31.7.1997. The deponent of the affidavit
also relied on the provisions of A.P. Act 2 of 1993 which
seem to place restrictions on regularization of certain
categories of employees. It was then pointed out that
regularization from the date of initial appointment on daily-
wages would cause administrative problems and upset the
settled seniority.
It is seen from various judgments placed on record that
the genesis of this litigation relating to the correct date of
regularization is traceable to writ petition No. 12132 of
1984. That writ petition was filed by the daily-wage Drivers
appointed in June, 1983 after a process of selection. Their
services were terminated on 30th June, 1984 but they were
reappointed in July, 1984 on the same terms. Then they
filed the said writ petition in which they sought for a
direction that they must be treated as Drivers on regular
basis from the dates of their initial appointment. Evidently,
the services of the petitioners therein were actually not
regularized. A learned single Judge disposed of the writ
petition on 20.6.1988 with a direction to the respondents to
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"declare the petitioners to be in service on regular basis
from the dates of their joining duty and give consequential
benefits". The only reason given by the learned Judge is
contained in the following paragraph which we quote:
"The petitioners were selected by a Committee on
the basis of their eligibility and they have been
appointed on June 10, 1983. Therefore, though
there appears the term "on temporary basis" "on
daily wages" the fact remains that they have been
discharging the duties on regular basis."
Thus, the performance of duties carried out by regular
employees, was taken to be the basis for directing
regularization. The fact that they underwent a process of
selection was also relied on. Insofar as the decision purports
to lay down a proposition of service law that the employees
selected on daily-wage basis after selection automatically
become regular employees from day one if they perform the
duties similar to regular employees, it is utterly untenable.
In the absence of any service rule entitling the employees
recruited on daily-wages to get the status of regular
employees with pay-scale from the very date of joining, it
would be difficult to countenance such proposition especially
when there is no finding that the daily-wage employment
was a ploy or a colourable device to postpone regularization
indefinitely. In State of Haryana Vs. Piara Singh [(1992)
4 SCC 118] this Court set aside the direction of the High
Court to regularize the services of the ad hoc/temporary
employees who have worked for more than one year and
observed that there can be no rule of thumb in such matters
and in any case, service for one year does not by itself
confer a right of regularisation.
The next phase of litigation is writ petition No. 8070 of
1990. The order in W.P.No. 12232 of 1984 (referred to
supra) was followed by another learned single Judge and a
direction was issued to declare the petitioners as having
been regularly appointed from the respective dates of their
joining the post for which they were selected with all
consequential benefits. It is not known whether the services
of the three writ petitioners therein were regularized by the
date of filing the writ petition and whether they wanted the
benefit of retrospective regularization.
The APSRTC filed writ appeal against the order in
W.P.No. 8070 of 1990 and it was disposed of cursorily
without adverting to any issue on merits. The short order
passed by the Division Bench on 24.7.1995 reads as follows:
"Heard learned counsel for the appellant and
learned counsel for the respondent.
We do not think there is any mistake in the
direction issued by the learned single Judge
except that a clarification is required to reckon the
date of continuous appointment and thus
regularization in the post held by the petitioners
respondents from the date of continuous
appointment for the purpose of both of
emoluments as well as seniority.
We accordingly clarify that the date of initial
appointment as indicated in the order of the
learned single Judge will be read as the date of
continuous appointment as defined under Section
25B of the Industrial Disputes Act. Such
continuous service of the petitioner/respondents
shall be counted for all benefits in the service in
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accordance with law.
With the clarification as above, the appeal is
dismissed."
This order was followed in most of the writ petitions and writ
appeals including the orders under appeal.
It is difficult to comprehend the ratio of the above
decision. While purporting to clarify the order passed in the
writ petition by the learned single Judge, the Division Bench
imported a totally alien concept of continuous service within
the meaning of Section 25B of the I.D. Act which was for the
special purpose of applying the provisions as to lay off and
retrenchment contained in Chapter V-A of the Act. Moreover,
the order in the writ appeal is as vague as it could be. The
expression ’date of continuous appointment’ makes no
sense. Even if it is taken that the said wording has been
inaccurately used for the words ’continuous service’, still,
the direction is unintelligible. Continuous service within the
meaning of Section 25B\027 for how long? Nothing has been
specified. In this state of things, in W.P. No. 24263 of 1998,
a learned single Judge proceeded on the basis that as per
the decision in W.A. 705/1995, the employees were entitled
to seek regularization with effect from the date of initial
appointment, thus making the clarification given by the
Division Bench virtually otiose.
The problem was compounded by another Division
Bench decision of the High Court in Writ Appeal No. 1108 of
1997 APSRTC Vs. P.T. Rao [1998 (2) ALT 447]. That
was an appeal against the order of the learned single Judge
directing regularization keeping in view the directions given
in writ appeal No. 705 of 1995 (supra). The learned Judges
after referring to the decision of this Court in State of
Haryana Vs. Piara Singh [AIR 1992 SC 2130] observed:
"Thus, it is clear that the High Court cannot issue
a blanket direction to regularize the services of the
employees on completion of a particular period. If
we examine the cases of the respondents-
workmen here in the light of the principles laid
down by the Supreme Court in State of Haryana
Vs. Piara Singh (supra), we have to hold that the
order of the learned single Judge requires
modification."
Having said so, curiously, the following order was
passed in the next paragraph which is the operative part of
the judgment:
"Therefore, the order of the learned single Judge
is modified to the effect that the respondents-
workmen are entitled to the regularization of their
services from the date of their initial appointment
to such posts on completion of 240 working days.
If there are number of claimants seeking
regularization, the same can be done only in a
phased manner. In so far as the claim of the
workmen for arrears or backwages is concerned,
having regard to the facts and circumstances of
this case, we hold that the respondents-workmen
are not entitled to the same.
With the above modification, the Writ Appeal is
disposed of."
The direction given in paragraph 5 is not quite
consistent with what was held in the previous para of the
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judgment after referring to the law laid down in Piara
Singh’s case. The concept of ’continuous service for a
period of one year’ as per Section 25B of the I.D. Act has
been imported by this Division Bench also. Moreover, it is
difficult to reconcile the two directions in para 5 (contained
in the first two sentences). Perhaps, what the learned
Judges meant was that the employees’ claim for
regularization should be considered on completion of 240
working days and if they are otherwise eligible, they should
be absorbed on regular basis to the extent of vacancies
available. In the event of such regularization, it would take
effect from the date of initial appointment.
It is difficult to follow the logic or the reason behind the
law laid down by the Division Bench. If the regularization
has to take place in a phased manner subject to availability
of vacancies etc., the question of according regular status to
the employees right from the date of initial appointment on
daily-wages does not arise. Moreover, if the services of
respondents in the writ appeal have already been
regularized and they claim regular status from the date of
initial appointment, the High Court should have addressed
itself to the specific question whether the regularization after
some period of daily wage service was legally correct and
recorded a finding thereon. The observations made and the
directions given have only added to the dimension of
controversy rather than solving the problem. How and in
what manner the said judgment in [1998 (2) ALT 447],
which is sought to be relied upon by the appellants, was
implemented is not known. No details are available in this
regard. However, it is difficult to construe the judgment in
the said writ appeal as upholding the contention of the
appellants excepting the passing observation that the
regularization could be done in a phased manner.
In the light of the above discussion, we are of the view
that the law laid down or the directions given in various writ
petitions/writ appeals are not legally sustainable for more
than one reason. Firstly, wrong criterion based on Section
25B of I.D. Act was applied in case after case. Secondly, the
respondents and other similarly situated employees
approached the Court under Article 226 long after their
regularization, thereby unsettling the settled position.
Thirdly, on the facts of these cases, it is evident that the
services of the employees who were recruited as Conductors
were regularized within a reasonable time. The respondent-
employees were therefore treated fairly. No service rule or
regulation or any other principle of law has been pressed
into service by the respondents to claim regularization from
an anterior date i.e. right from the date of their initial
appointment as daily wage employees.
For the above reasons, we should have, in the normal
course set aside the judgments under appeal and dismissed
the writ petitions. However, there are certain facts which
stare at the appellants, that come in the way of these
appeals being allowed in toto. We have to take note of the
material fact that the appellants failed to question the
adverse decisions by filing appeals at the appropriate time.
They allowed many judgments to become final though they
related to employees of the same Region/Division. For
instance Writ Petition No. 33077 of 1997 filed by 26
Conductors was disposed of on the same day on which Writ
Petition No. 33083 of 1997 (which is under appeal in C.A.No.
2455 of 1999) was disposed of. In the Writ Appeals which
have given rise to C.A.Nos. 3017 of 1999 and 5881 of 1999,
reference has been made by the Division Bench to Writ
Petition No. 26111 of 1998 disposed of on 4.11.1998 in
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which there were 30 petitioners. In the affidavit filed in the
High Court in Writ Petition No. 33083 of 1997 which has
given rise to C.A. No. 2455 of 1999, reference has also been
made to two other writ petitions namely W.P.Nos. 31361 of
1996 and 14709 of 1996 decided on 19.4.1996 and
26.7.1996 respectively, wherein it was alleged that
directions were given to regularize the services from the
date of original appointment. Above all, it seems that the
orders of the Division Bench passed in Writ Appeal Nos. 410
of 1997 and 1108 of 1997 (elaborately referred to supra)
seem to have become final.
In view of this peculiar situation and in order to avoid
the anomalies that might otherwise ensue, while we hold
that the respondent-employees have failed to establish their
legal right to get the status of regular employees right from
the date of their initial appointment on daily wage basis and
the respective dates of regularization assigned to the
respondents cannot be legally faulted, we are inclined to
mould the relief in modification of the directions given in the
judgments under appeal and direct as follows:
If any of the Conductors, junior to the respondents in
the relevant seniority list of the concerned Division/Region,
have got the benefit of seniority and regularization OR are
entitled to get the same by virtue of the judgments that
have become final, then the respondents who are seniors to
them, shall be given the same benefit on the same principle.
With these directions and observations, the Civil
Appeals are disposed of without costs.