B.S.A. SWAMY, J.

( 1 ) THE vexed issue of regularization of the services of the employees who are

appointed under different nomenclatures like daily wage workers, casual labourers,

consolidated employees, N. M. Rs. for starvation wages and continued as such for

over a number of years without regularization has come to the fore again in these

batch of writ petitions. The petitioners in these batch of Writ Petitions numbering

more than 200 are working in different organizations under the control of the

government of Andhra Pradesh, whose existence is traceable to either statutes or

executive orders issued by the Government, floated to give effect to the popular

schemes to catch the vote banks, from time to time after 1975 and their existence

cannot be dispensed with now. This is the second or third round of litigation for

some of the petitioners. I feel that some more writ petitioners seeking similar relief

are pending in this Court apart from hundreds of cases filed by the temporary

employees working in governmental departments and local bodies are pending on

the file of A. P. Administrative Tribunal. This shows the gravity of the situation in the

State and the fate of thousands of graduates and post-graduates is like a ship

caught in high seas in deep storm.

( 2 ) THE relief sought for in this batch is stoutly opposed by the Government by

raising oft repeated objections which were overruled by the Court for over two

decades and in the normal course these writ Petitions would have been allowed

following those judgments, but for the amendments that were introduced to the

andhra Pradesh (Regulation of appointments to Public Services and rationalization of

Staff Pattern and Pay structures) Act, 1994, popularly known as act 2 of 1994,

nullifying the effect of the judgments of this Court as well as the Apex court.

( 3 ) I was hearing this batch for a considerable length of time in view of the public

importance involved in it. In fact, by order dated 20-4-2000, I directed the advocate

General, Government of Andhra pradesh, to find out whether the government is

prepared to come up with a scheme to regularize the services of the petitioners and

other temporary employees working in various organizations under the control of it

keeping the precarious financial position prevailing in the State. But unfortunately

from the letter of the secretary to the Government (Fin. and Plg.) f. W. Department,

bearing No. 9635, dated 04-07-2000, it is seen that a Committee consisting of

Ministers as well as Officers, held a meeting on 19-06-2000 in the chambers of the

Minister for Finance and passed the following resolution: "there is no necessity to

formulate any new scheme for regularization of all the daily wage, NMR, full time

contingent employees and consolidated employees, etc. , as there is already a

scheme formulated in g. O. Ms. No. 212, Finance and planning (FW. PCIII)

Department, dated 22-04-2000. "

( 4 ) IN the light of the irrevocable stand taken by the Government, I have no option

except to pronounce the judgment in this batch on merits. Before considering the

validity of the amendments made to act 2/1994, the circumstances that led to the

passing of Act 2/94 and the subsequent events that have taken place till this date

have to be recapitulated for better appreciation of the case.

( 5 ) AS per the information furnished by the respondents, since the year 1967, the

government was imposing ban on recruitment in its departments under the guise of

observance of austerity and was lifting the same from time to time. Some times the

services of the temporary employees were regularized by holding special qualifying

tests and some times as per the guidelines given by it by way of executive orders

without subjecting them to any test. As I am not dealing with the temporary

employees working in the government, I am not going into details of those cases.

Before leaving the subject, I would like to record the impressions gained by me after

going through various orders passed by the Government relating to temporary

appointments and the functioning of bureaucracy. If the bureaucratic set up is

comparable to that of a banian tree, the ministerial staff and Class iv staff are to be

considered as the trunk of the tree and the decision making authorities as the

branches of the banian tree. While every effort is being made by the authorities

concerned in trying to run the administration through ad hoc /temporary

appointments made to the ministerial and class IV staff by giving a go-by to the

rules of recruitment to avoid payment of time-scales of pay, the appointments of. A.

S. ,. P. S. and other Heads of Departments are on the increase. As per the

information furnished by the Government in Memo bearing No. 2256/special. A/99-

1, dated 17-11-1999, the cadre strength of the. A. S. and. P. S. Officers working in

the State are as follows:

( 6 ) FROM the press reports and the presence of the officers belonging to Civil

service Cadre. A. S. ,. P. S. , and F. S. in the courts it is seen that they are being

posted in non-cadre posts and in some cases like a. P. Infrastructure Corporation as

many as four. A. S. and. P. S. Officers are working. Likewise, the days of heading

the department by a single officer have gone and it is very difficult to know in each

department how many senior. A. S. Officers are working at the helm of affairs

branch-wise. In the normal course, to provide work to these officers, there should

be a corresponding increase in the supporting staff. But the present scenario is that

while the appointments of ministerial staff are diminishing year after year the

appointments of superior officers are increasing. In nutshell, while the trunk is

becoming weak day by day, the branches are strengthening correspondingly and we

have to see how long this system can be continued in this manner.

( 7 ) COMING to the instrumentalities of the state, most of them were brought into

existence for implementation of poverty alleviation schemes intended to improve the

living conditions of the weak and meek who constitute the bulk of the electorate and

Y

e

a

r

CADRE STRENGTH OF

OFFICERS EMPLOYED IN

THE STATE GOVERNMENT

INCLUDING THOSE ON

DEPUTATION

IA. S. . P. S.

(1) (2) (3)

1976 212 123

1981 263 150

1993 323 194

1998 319 194

with whose vote the successive governments were able to come to office. In the last

three decades, practically these organizations are forced to make temporary

appointments to meet the exigencies of the administration and as and when

pressures are being built up by the service associations, some orders are being

issued by the Government in office, as if they are going to regularise the services of

these employees. But from the material placed before this Court, it is seen most of

those orders remained on paper without implementation and almost all the

proposals sent by these organizations were either put in the cold storage or were

rejected on flimsy grounds. Hence these will Petitions.

( 8 ) COMING to the issue in controversy, as pointed supra, most of the petitioners

in these batch of writ petitions are working in various organizations that were

floated by the Government under the guise of implementing the Directive Principles

of the state policy, and it has to be kept in mind that at the time of establishment of

these organizations neither any service rules nor any cadre strength was fixed. To

meet the exigencies of administration, the authorities concerned were forced to

appoint persons who are graduates or post-graduates on starving wages by using

different nomenclatures without following rules of recruitment to avoid payment of

time-scales of pay. In fact, they are not even paying the wages to these employees

as per the minimum Wages Act. In this background, the Legislative Assembly

enacted Act 2/94 and the same received the Assent of the governor of Andhra

Pradesh on 15th january 1994. The objectives and reasons given for this enactment

are; (a) the expenditure on salaries being high, the Government is not able to

implement welfare and development programmes; (b) the total population of the

employees and their families constitute 10% of the total population and after

meeting the expenditure towards their salaries, little is remaining for the rest of the

90% of the people;

( 9 ) THEY have also dealt with the expenditure that is being incurred by the state

Government, Public Sector undertakings, Local Bodies towards payment of salaries

so on and so forth. Ultimately, it is their case that the authorities concerned are

resorting to these irregular appointments, adversely affecting several thousands of

unemployed persons, who have registered their names in employment Exchanges

and waiting for their turn to get employment. Irregular appointments are depriving

the legitimate recruiting bodies from performing their functions. Irregular

appointments in excess of sanctioned strength is resulting in industrial Undertakings

becoming unviable and eventually sick. Similarly the unauthorized appointments over

and above the sanctioned strength in Government departments would also increase

the number of employees and to that extent militate against the Government

looking after the existing employees, who have been recruited through proper

channel. Ultimately, it is stated that to protect the interests of the candidates

sponsored by the employment Exchanges, reserved categories, existing employees,

who are recruited through proper channel and the legitimate functions of the

properly recruiting agencies, the Act was brought into existence.

( 10 ) NEXTLY, it is stated that the financial position of the State arising out of

excessive expenditure on staff is so alarming that it cannot be tackled by ordinary

administrative actions and instructions. It is therefore, thought that a time has come

to take a deterrent action for illegal and irregular appointments by enacting a Law.

It has accordingly been decided to enact a law to achieve the following objects,

namely: (a) totally banning such appointments in the institutions covered by

legislation; (b) imposing stringent penalties for making appointments by public

servants on violation of the law; (c) to protect public servants from being held for

contempt for non-compliance of the orders of tribunal or High Court and also for

abatement of pending cases claiming regularization of services which are already

filed before the courts of law by making a suitable provision therefore; and (d) to

protect the interests of candidates registered with employment Exchange, the

reservation rights of Scheduled castes, Scheduled Tribes and backward Classes, the

rights of the existing employees who are recruited through proper channel and the

functions of Andhra pradesh Public Service commission, District Selection

committees and other Selection committees constituted by the government. The

legislation will prevent further deterioration of finances of the State and at the same

time conserve the resources for the welfare and developmental activities. As the

Legislative Assembly was not then in session having been prorogued and as it was

decided to give effect to the above decision immediately the andhra Pradesh

(Regulation of appointments to Public Services and rationalization of Staff Pattern)

ordinance 8 of 1993 was promulgated by the Governor on the 24th november, 1993.

"

( 11 ) FROM the above objectives and reasons, it is seen that the Act was made to

reduce the burden on the State exchequer towards salaries and other expenditure

on employees, and to curb appointment of temporary employees, which is adversely

affecting the interests of thousands of other persons who registered their names

with the local Employment Exchange and to see the recruiting bodies are not

deprived of their legitimate functions in making appointments.

( 12 ) NONE of the reasons given in the aims and objectives in enacting these

legislations are applicable to the cases on hand, as all the petitioners herein are

seeking regularisation of their services in the organizations they are working which

are brought into existence by the Government by an executive fiat or under a

statute. In all these cases neither anybody is entrusted with the recruitment of the

staff nor it is necessary to recruit the staff from the candidates sponsored by the

Employment exchange after the Judgment of the supreme Court.

( 13 ) ULTIMATELY, the legislation is intended to prevent further depletion of State

finances. The relevant provisions of the Act will be referred while dealing with the

merits of the case.

( 14 ) THE vires of this Act was questioned by some of the employees before the

supreme Court by filling a writ petition under Article 32 of the Constitution of india.

From the preamble of the G. O. Ms. No. 212, dated 22-04-1994 it is seen that the

Honble Court in C. A. No. 2979 of 1992 and batch, in its order dated 12-08-1992,

directed the State Government to evolve an appropriate policy for regularization.

Pursuant to the directions of the Supreme court, the Government issued two orders

on 22-04-1994. G. O. Ms. No. 211, constituting a Review Committee in the rank of

Secretary to the Government, as chairman with two more senior officers, in exercise

of its powers under Section 11 of act 2 1994, to review; (a) existing staff pattern in

any office or establishment XXXXX. (b) The pay scale, allowances, exgratia, bonus,

pension and gratuity and other terminal benefits and perks applicable to the posts

belonging to any public servant of such office or establishment (other than the

teaching staff of the universities) keeping in mind the qualification and job

requirement of each post.

( 15 ) PARAGRAPH No. 7 of this G. O. says that the Committee shall submit its

report or reports with its recommendations to the government as expeditiously as

possible. Since the start of hearing in this case. e. , almost for two years I was

repeatedly asking the learned Advocate General whether any reports were

submitted by the review Committee and any action was taken by the Government to

give effect to their recommendations. All through, the answer was in the negative.

Now at the time of dictating the Judgment, the learned government Pleader for

Finance produced g. O. No. 1515 dated 30-09-2000 extending the time of the

Committee upto 31-12-2000. The Principal Secretary of this Committee who

appeared in the Court to-day. e. , 17-11-2000 categorically stated that they have

reviewed the staff pattern in government Departments only, but not in the Public

Sector Undertakings and other bodies that are being created day in and day out to

carry out the popular schemes under the guise of giving effect to the directive

Principles of State policy. In these batch of cases, I am dealing with the

regularisation of the services of the employees in these, it can be safely concluded

that the Government did not make any earnest effort to find out whether any of the

persons employed by these organisations were appointed irregularly without any

need, though it is its specific case that all these appointments are irregular and they

far exceed the cadre strength prescribed for each of the organisations. Most of the

Counsel appearing for these Organisations stated in so many words that these

Organisations came into existence without any cadre strength or with a minimum

staff at the beginning and due to increase in the work load, the Officers concerned

have resorted to these appointments to meet the exigencies of the administration.

This aspect will be dealt with while dealing with the case of each of the

organizations after the general contentions are disposed of.

( 16 ) THE other order is G. O. Ms. No. 212, dated 22-04-1994, whereunder a

scheme was formulated by the Government for regularizing the services of all the

temporary employees working not only in government offices, but also in local

bodies, public Sector Undertakings, so on and so forth. As per this G. O. , the

Government decided to regularize the services of those employees who have

continuously worked for a minimum period of 5 years and are continuing in service

as on 25-11-1993, subject to the following conditions; (1) "the persons appointed

should possess the qualifications prescribed as per rules in force as 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 of

reservation wherever applicable will be followed and back-log will be set-off against

future vacancies. (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 Public Service commission/district Selection committee. (6) In

the case of Work Charged establishment, where there will be no clear vacancies,

because of the fact that the expenditure on work charged is at a fixed percentage of

p. S. charges and as soon as the work is over, the services of work charged

establishment will have to be terminated, they shall be adjusted in the other

departments, district Office provided there are clear vacancies of last Grade service.

"

( 17 ) BUT from the averment of the government in their counter at paragraph-11, it

is seen that the services of about 5,000 out of 70,000 employees were regularized.

It is not their case that they have considered claims of all the eligible employees for

regularization. On the other hand, while most of the proposals sent by the

appointing authority remained unattended by the Government, some of them were

rejected by giving untenable reasons. Be that as it may, some of the employees who

have not completed 5 years of service as on the cut-off date and who completed the

5 years afterwards, approached this Court by way of filing writ petitions, questioning

the action of the respondents in not considering their claims for regularization.

( 18 ) THIS Court in W. A. Nos. 603 to 605 of 1995 dated 30-6-1995 held that all

employees appointed prior to 25-11-1993 and continued as such are eligible to get

their services regularized on completion of five years of continuous service in

accordance with G. O. Ms. No. 212, dated 22-4-1994. The said judgment was

confirmed by the Apex Court in the case reported in District Collector/chairman and

others, vs. M. L. Singh and Others.

( 19 ) LIKEWISE, this Court while considering the validity of Memo no. 15/lib. 2/95

dated 3-6-1995 and Memo no. 909/lib. 2/95 dated 22-3-1996 issued by the

Government, wherein the proposal sent by the Director of Public Libraries for

absorption of the Attenders working in libraries functioning at Mandal headquarters

in Chittoor District, was negatived by contending that they are part-time employees

and G. O. Ms. No. 212 is not applicable to them, by an interim order dated 25-4-

1997, I directed the Government to formulate a scheme to regularize the services of

the Attenders working in libraries established under the orders of the government.

( 20 ) PURSUANT to the directions of this court dated 25-04-1997, the Government

came up with the G. O. (P) 112, Finance and planning (FW. PC. III) Department,

dated 23-07-1997 formulating a scheme to regularise the part-time employees. As

per this G. O. , the persons, who were appointed on part-time basis have to put in a

minimum of ten years service as part-time workers and are continuing as on 25-11-

1993, the day on which Act 2 of 1994 came into force, are alone entitled to be

regularised. The conditions prescribed for regularisation are not germane to the

issue and as such, they are not being referred in this order. While the arguments

are going on in the above writ petition the government thought it fit to amend Act 2

of 1994 for giving effect to G. O. Ms. No. 212, finance and Planning (FW. PC. III)

department, dated 22-04-1994 and the present G. O. (P) 112, Finance and Planning

(FW. PC. III) Department, dated 23-07-1997 by Amending Act 3 of 1998 and also to

save the appointments made in favour of members of Scheduled Caste or Scheduled

tribes. While rendering judgment in Zilla grandhalaya Samsthan Employees

Association, chittoor District vs. Secretary, Education department, Government of

Andhra Pradesh,i declared that the third proviso giving statutory effect to G. O. (P)

112 prescribing ten years continuous service as on 25-11-1993 is wholly

unconstitutional and the Writ Appeal filed by the Government against that Judgment

seemed to be pending. But, the Government Pleader produced an order of the

Supreme Court passed in Civil Appeal No. 5224 of 1998 dated 20th October, 1998. It

is seen from this order that the learned Judges of the supreme Court while setting

aside the judgment of this Court in W. A. No. 2310 of 1997 observed that those who

are in part-time employment will get benefit of g. O. Ms. No. 112 and those who are

in full-time employment will get benefit of g. O. Ms. No. 212 and learned

Government pleader tries to argue that the validity of g. O. Ms. 112 was upheld by

the Supreme court. As the Government Pleader did not make available the

Judgment of this Court and the Order of the Supreme it is not known whether the

Court considered the validity of the G. O. in that case or not and even the facts of

that case are not known. Hence, I am not able to express any opinion one way or

the other on the contention of the learned Government Pleader. Further, it is seen

that this Judgment was rendered on 26th October, 1998 by which time Act 2 of

1994 was amended by Act 3 of 1998, which came into force on 03-01-1998. But this

fact was not brought to the notice of the supreme Court by the Government at the

time of passing of the order in the above case. For the present, I am presuming that

the Supreme Court upheld the validity of g. O. (P) 112 and would like to proceed

with the cases on the hand.

( 21 ) AFTER some time, the Government again amended Act 2 of 1994 by Act 27 of

1998 to the effect that the employees who are working on full time basis and who

have completed five years of service and who are in service as on the cut-off date.

e. , 25th November, 1993 alone are eligible for regularisation and the Judgments

rendered by this Court and the Supreme Court are sought to be nullified by stating

that they are abated.

( 22 ) THE principal question that has to be decided in this batch of writ petitions

would be the validity of the amendments made to Act 2 of 1994.

( 23 ) FIRST I will deal with the scheme of act 2 of 1994 before taking up the

amendments made to the Act. I have already adverted to the aims and objects

sought to be achieved by bringing out this legislation and I need not refer the same

again there. Under Section 1 (2), the Act was given retrospective effect from 25th

november, 1993, the day on which the ordinance was promulgated.

( 24 ) SECTION 2 deals with the definitions. I need not refer to all the definitions. It

is suffice to deal with the definition public service to note the ambit and scope of

the applicability of the provisions of Act. Sec. 2 (vi) public Service means, services

in any office or establishment of, (a) the Government; (b) a local authority; (c) a

Corporation or Undertaking wholly owned or controlled by the state Government;

(d) a body established under any law made by the Legislature of the state whether

incorporated or not, including a University; and (e) any other body established by

the state Government or by a society registered under any law relating to the

registration of societies for the time being in force, and receiving funds from the

State government either fully or partly for its maintenance or any educational

institution whether registered or not but receiving aid from the Government;

( 25 ) SECTION 3 deals with appointment of any person in any public service to any

post, in any class, category or grade as a daily wage employee was prohibited.

( 26 ) SECTION 4 deals with the procedure for future recruitment to any post in the

public services.

( 27 ) SECTION 5 mandates that the Pay and accounts Officer and Sub-Treasury

Officer are directed not to sign the salary bills of the appointees unless appointing

authority issues a certificate to the effect that the appointment has been made in

accordance with the procedure contemplated under section 4 of the Act.

( 28 ) SECTION 6 deals with the penalties to be imposed on any holder of an

elective office or the officer who makes the appointment in contravention of the

procedure contemplated under Section 4 of the Act.

( 29 ) SECTION 7 states that no daily wage employee or a person appointed on a

temporary basis continuing as such at the commencement of this Act shall claim for

regularisation of service and his services are liable to be terminated at any time

without issuing any notice and without assigning any reasons. (This section became

redundant after a scheme was formulated in G. O. Ms. No. 212 for regularisation of

the services of the temporary employees which received the approval of the

Supreme court ).

( 30 ) UNDER first proviso, even the services of the Industrial Workmen falling

within the scope of Section 25-F of the Industrial disputes Act, 1947, can be

terminated by giving one months wages.

( 31 ) UNDER second proviso, the workmen governed by Chapter V-B of the

Industrial disputes Act, 1947 are excluded from the purview of this Act.

( 32 ) SECTION 8 deals with the powers of the Government to give directions to

carry out the purpose of the Act to the Officers involved in pre-audit and the Head

of department to their Subordinate Officers. If any Subordinate Officer is guilty of

non- compliance of the direction given either by the Government or by the Head of

the department, it shall be deemed that he is guilty of misconduct and he is liable to

be proceeded against under the relevant disciplinary rules.

( 33 ) SECTION 9 states that any judgment, decree or order of any Court, Tribunal

or other authority whereunder the government was directed to regularise the

services of the daily wage employees are declared as abated.

( 34 ) UNDER sub-clause (a), the jurisdiction of the Courts in entertaining the claims

of the temporary employees for regularisation is ousted.

( 35 ) UNDER sub-clause (b), any decree or order directing the regularisation of the

services of such persons cannot be enforceable in a Court of law.

( 36 ) UNDER sub-clause (c) all pending proceedings shall stand abated.

( 37 ) SECTION 10 (1) mandates that no posts shall be created in any office or

establishment relating to a public service without the sanction of the competent

authority.

( 38 ) SECTION 10 (2) declared that the appointments made to any post created in

violation of sub-section (1) are invalid and provisions of Sections 5, 6 and 7 shall

mutatis mutandis apply to such appointments.

( 39 ) UNDER Section 11 (i) within a period of one month from the date of

commencement of this Act, the Government has to constitute a Committee with an

officer not less in rank than a Secretary to government as the Chairman and such

number of members of such rank as they may deem fit, to review, (a) the existing

staff pattern in any office or establishment employing persons belonging to any

public service keeping in view the workload of such office or establishment; and (b)

the pay scales, allowances, ex gratia, bonus, pension, gratuity and other terminal

benefits and perquisites applicable to the post belonging to any public service of

such office or establishment keeping in view the qualifications and job requirements

of each such post.

( 40 ) UNDER sub-clause (2), after completion of the review, the Committee shall

submit a report with its recommendations to the Government for such action as may

be prescribed by rules made in this behalf.

( 41 ) UNDER sub-clause (3), the Committee shall regulate its own procedure for

discharging the functions.

( 42 ) UNDER Section 12, the Committee so constituted shall have powers of a Civil

court while trying a suit under the Code of civil Procedure in respect of the matters

enumerated thereunder.

( 43 ) UNDER Section 13 (1) the person or authority who contravenes the provisions

of this Act shall, apart from the penalties otherwise provided for, be punishable with

imprisonment for a term which shall not be less than six months and which may

extend upto two years and also with fine which shall not be less than five thousand

rupees but which may extend upto ten thousand rupees.

( 44 ) UNDER sub-section (2), no Court shall take cognizance of the offence under

section (1) without previous sanction of the government.

( 45 ) UNDER Section 14, whoever abets any offence punishable under this Act shall

be punished with the punishment provided for in this Act for such offence.

( 46 ) SECTION 15 deals with the offences committed by the Company.

( 47 ) UNDER Section 16 the actions of the officers while giving effect to the

provisions of the Act done in good faith or intended to be done are saved from

criminal prosecution as well as legal proceedings in a Civil Court.

( 48 ) UNDER Section 17, the Act was given overriding effect over other laws that

are in force or any judgment, decree or order of any Court, Tribunal or other

authority.

( 49 ) UNDER Section 18, the Government is empowered to make rules by issuance

of a notification.

( 50 ) UNDER Section 19, the schedule to this act shall constitute the guidelines for

the interpretation and implementation of the act.

( 51 ) UNDER Section 20, the Ordinance no. 8 of 1993 is repealed.

( 52 ) FROM the above provisions, it is seen that while future appointments in any

public Service are prohibited, nowhere it is stated that the persons appointed prior

to the cut-off date. e. , 25-11-1993 shall cease to be in office except stating that

they shall not have any claim for regularisation and their services can be terminated

at any time without giving reasons and without assigning reasons. From this it is

seen that after the Act came into force, the services of temporary employees have

to be terminated by a written order, but not otherwise. The infirmity in Section 7 will

be dealt with while dealing with the amendments. Under Section 11 the government

is bound to constitute a review Committee to go into the existing staff pattern in

each of the organisations and to make suitable recommendation. In exercise of

powers under this Section, the government issued G. O. Ms. No. 211, finance and

Planning (FW. PC. III) department, dated 22-04-1994 constituting a Review

Committee with three retired officers with one B. C. Goel,. A. S. as chairman, as

referred supra and nothing transpired till this date.

( 53 ) NEXTLY, the length of service prescribed for regularization of services as on

the cut-off date was interpreted by this court as well as the Supreme Court as the

date on which a temporary employee appointed prior to 25-11-1993 would be the

date on which he completes five years and directed the authorities concerned to

regularize their services. At that stage the respondents might not have thought of

taking away the vested rights or the rights crystallized in favour of the employees

under the pronouncements of the Court after the cut-off date. When the temporary

employees on completion of five years of service started coming to Court, the

government have chosen to amend the Act once again by Act 27 of 1998 by

substituting the 1st proviso to Section 7 and introduced section 7-A to nullify the

effects of the judgments of this Court as well as the supreme Court apart from some

other amendments with which we are not concerned in this case and the same

came into force on 19th August, 1998. I have my own doubts on the revival of Act

2/94 after the scheme was formulated to regularize the services of temporary

employees at the instance of the Apex Court in G. O. Ms. No. 212 as the reasons

given in the aims and objectives of the Act no more holds good. Be that as it may, I

would like to extract section 7 which underwent major changes from time to time to

see whether Act 27/98 is legal or not.

( 54 ) SECTION 7 of the Andhra Pradesh (Regulation of Appointments to Public

services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994,

hereinafter called as act reads as follows:"no person who is a daily wage employee

and no person who is appointed on a temporary basis under section 3 and is

continuing as such at the commencement of this Act shall have or shall be deemed

ever to have a right to claim for regularization of services on any ground whatsoever

and the services of such person shall be liable to be terminated at any time without

any notice and without assigning any reasons: provided that in the case of workmen

falling within the scope of Sec. 25-F of the Industrial Disputes Act, 1947, one

months wages and such compensation as would be payable under the said section

shall be paid in case of termination of services: provided further that nothing in this

section shall apply to the Workmen governed by Chapter V-B of the industrial

Disputes Act, 1947. (Explanation need not be extracted, as it is not germane to the

issue).

( 55 ) BY amending Act 3/98, Section 7 of the Act was recasted by introducing the

underlined words and is as hereunder:"no person who is a daily wage employee and

no person who is appointed on a temporary basis under section 3 and no person

who is continuing as such at the commencement of this Act shall have or shall be

deemed ever to have a right to claim for regularization of services on any ground

whatsoever and the services of such person shall be liable to be terminated at any

time without any notice and without assigning any reasons: provided that the

services of a person, who worked on daily wage/nmr/ consolidated pay/contingent

worker on full time basis continuously for a minimum period of five years and is

continuing as such on the date of the commencement of the Act shall be regularized

in accordance with the scheme formulated in G. O. Ms. No. 212. Finance and

Planning (FW. PC. III) Department, dated the 22nd april. 1994: provided further

that the services of a person who worked on part-time basis continuously for a

minimum period of ten years and is continuing as such on the date of the

commencement of this act shall be regularized in accordance with the scheme

formulated in G. O. (P ). 112. Finance and Planning (FW. FC. III) Department, dated

the 23rd Tuly. 1997. Provided also that in the case of workmen falling within the

scope of section 25-F of the Industrial Disputes act, 1947, one months wages and

such compensation as would be payable under the said section shall be paid in case

of termination of services: provided also that nothing in this section shall apply to

the Workmen governed by Chapter V-B of the industrial Disputes Act, 1947".

( 56 ) NEW proviso introduced by Act 3 of 98 was again substituted by Act 27 of 98.

The newly introduced proviso as per section 4 of Act 27 of 98 reads as

follows:"provided that the services of those persons continuing as on the 25th

november. 1993 having completed a continuous minimum period of 5 years of

service on or before 25th november 1993 either on daily wage, or nominal muster

roll, or consolidated pay or as a contingent worker on full time basis, shall be

regularized in substantive vacancies, if they were otherwise qualified fulfilling the

other conditions stipulated in the scheme formulated in g. O. Ms. No. 212. Finance

and planning (FW. PC. III) Department, dated the 22nd April. 1994".

( 57 ) UNDER Section 5 of Amending Act new Section 7-A was introduced. Section 7-

A: (1) Notwithstanding any Government order, judgment, decree or order of any

Court. Tribunal or other authority, no person shall claim for regularisation of service

under the tirst proviso to Section 7 as it was incorporated by the Andhra

pradesh_____ (Regulation of appointments to Public Services and Rationalisation Act

3 of 1998 of staff Pattern and Pay Structure (Amendment) Act. 1988 (sic. 1998 ).

" (2) No suit or other proceedings shall be maintained or continued in any court.

Tribunal or other authority against the Government or any person or other authority

whatsoever for regularisation of services and all such pending proceedings shall

abate forthwith: (3) No Court shall enforce any decree or order directing the

Government or any person or other authority whatsoever for regularization.

( 58 ) BY amending Act 3/98, statutory effect was given to G. O. Ms. No. 212, under

which, one has to work for a minimum period of five years and continuing as such

as on the cut-off dates, in case of full time employees, and in case of part time

employees - the length of service is increased to ten years to claim regularisation.

Though this Act came into force on 03-01-1998, when the mater was heard by the

Supreme Court, on the interpretation placed by this Court with regard to the

enlargement of the cut-off date,. e. , on 06-02-1998, the learned Counsel appearing

for the Government failed to bring this amendment to the notice of the supreme

Court and the Supreme Court in district Collector/chairman (supra) accepted the

interpretation placed by this court and confirmed the judgment. With the result, a

right has accrued to the temporary employees who have not completed five years of

service as on the cut-off date to claim regularization as per the interpretation placed

by this Court as well as Apex Court. In other words, the right in favour of the

temporary employees who have not completed five years of service after the cut-off

date, have been crystalized and those persons started approaching this Court

claiming regularization and regular scale of pay attached to the post. This situation

landed the Government in a predicament, as it was not willing to regularize the

services of the employees and as per the interpretation placed by this Court. Hence

again the Act was amended. Under the amended act 27/98, the first proviso giving

statutory effect to G. O. Ms. No. 212 is totally replaced with the proviso extracted

supra, to the effect that only the employees who have completed five years of

services as on 25-11-1993 and who are continuing as such even thereafter alone are

entitled to claim regularization but not others.

( 59 ) TO nullify the effect of the judgment of this Court as well as the Supreme

Court, new Section. e. , Section 7-A was introduced to the effect that no one can

claim regularization on the basis of the judgment, decree or order of any Court, etc.

, under the first proviso introduced under Act 3/98 giving effect to G. O. Ms. No.

212.

( 60 ) SUB-SECTIONS (2) and (3) are in pari materia the same as Sections 9-A and

B of the Principal Act.

( 61 ) NOW it is to be seen whether the amendments brought into Act 2 of 1994 by

the Amending Act 27/98 are valid in law and whether they can take away the rights

accrued to the persons under the earlier pronouncement of the superior Courts.

( 62 ) WHILE it is the case of the learned advocate General that the Legislature is

fully empowered to amend the Act to remove the defects pointed out by the court.

The validity of the Act cannot be questioned before this Court.

( 63 ) COUNTERING the arguments of the learned Advocate General, the learned

counsel appearing for the petitioners strenuously contended that the amendment is

intended to nullify the effect of the judgment of the Apex Court and it is nothing but

encroaching upon the powers of the Judiciary to interpret the law made by the

Legislature and the same offends the principle of separation of powers between the

three wings.

( 64 ) THE law is well settled on this aspect. Though number of decisions were cited,

I feel that I need not refer to all of them as the legal position was expounded

succinctly in state of Haryana and others vs. Karnal Co-operative farmers Society

Limited and others. Their Lordships of the Supreme Court held that effect of the

proviso, introduced to section 7 (1), 13, 13-A to 13-D in the principal Act, viz. ,

Punjab Village Common lands (Regulation) Act, 1961 (as amended by Haryana

Amendment Act of 1974) is intended, to make the earlier decisions of the high Court

ineffective. The relevant portion of paragraphs 30 and 37 are extracted as

hereunder:"under our Constitution no legislature has the power to abrogate civil

Courts decrees or orders or judicial adjudications by merely declaring under a law

made by it that such decrees or orders or adjudications are no longer valid or

binding on the parties, for such power of declaration would be a judicial function

which cannot be encroached upon by a Legislature and the only way by which a

competent Legislature can make the judicial adjudications, decrees or orders

ineffective is by fundamentally altering the law on which they are based, is well

settled. Thus it becomes clear that a legislature while has the legislative power to

render ineffective the earlier judicial decisions, by removing or altering or

neutralising the legal basis in the unamended law on which such decisions were

founded, even retrospectively, it does not have the power to render ineffective the

earlier judicial decisions by making a law which simply declares the earlier judicial

decisions as invalid or not binding for such power if exercised would not be a

legislative power but a judicial power which cannot be encroached upon by a

Legislature under our Constitution. "

( 65 ) THE next case is that the Kerala government under Section 3 of the Kerala

essential Commodities Control (Temporary powers) Act, 1961 issued an order

imposing surcharge on supply of electrical energy in 1984. On 01-08-1988 the

Government of kerala discontinued the levy of surcharge with effect from that date

by issuing an ordinance called the Kerala Electricity Duty (Amendment) Ordinance,

1988 which later on became the Kerala Electricity Surcharge (Levy and Collection)

Act, 1989 (22 of 1989 ). The Kerala High Court declared the 1984 order to be ultra

vires the Kerala Essential articles Control Act, 1986, and directed refund of the

amount collected thereunder and the judgment was confirmed by the supreme

Court. Thereafter the Kerala legislature amended the said Act by Act 22/89. Section

11 of the 1989 Act validating the levy and collection of the surcharge under the

1984 order and a further provisions therein permitting non-refund of the collected

amount were unsuccessfully challenged before the Kerala High Court as

unconstitutional, being allegedly an encroachment on the Courts power of judicial

review.

( 66 ) IN Indian Aluminium Co. vs. State of kerala while upholding the validity of the

act the Supreme Court specified the tests in para 36 of the Judgment to find out

whether a Validating Act is valid or not:"the validity of the Validating Act is to be

judged by the following tests: (i) Whether the Legislature enacting the Validating Act

has competence over the subject matter; (ii) Whether by validation, the legislature

has removed the defect which the Court had found in the previous law; (iii) Whether

the validating law is consistent with the provisions of chapter III of the Constitution.

and held if these tests are satisfied, the act can validate the past transactions which

were declared by the Court to be unconstitutional. The Legislature cannot assume

power of adjudicating a case by virtue of its enactment of the law without leaving it

to the judiciary to decide it with reference to the law in force. The Legislature also is

incompetent to overrule the decision of a Court without properly removing the base

on which the judgment is founded. "para 56: the adjudication of the rights of the

parties is the essential judicial function. The Legislature has to lay down the norms

of conduct or rules which will govern the parties and the transactions and require

the Court to give effect to them. The Constitution delineated delicate balance in the

exercise of the sovereign power by the legislature, Executive and Judiciary. In a

democracy governed by rule of law, the Legislature exercises the power under

Articles 245 and 246 and other companion articles read with the entries in the

respective lists in the seventh Schedule to make the law which includes power to

amend the law. Courts in their concern and endeavour to preserve judicial power

equally must be guarded to maintain the delicate balance devised by the

constitution between the three sovereign functionaries. In order that rule of law

permeates to fulfill constitutional objectives of establishing an egalitarian social

order, the respective sovereign functionaries need free play in their joints so that

the march of social progress and order remains unimpeded. The smooth balance

built with delicacy must always be maintained. In its anxiety to safeguard judicial

power, it is unnecessary to be overzealous and conjure up intrusion into the judicial

preserve invalidating the valid law competently made. Their Lordships further

held:"that in exercising legislative power, the Legislature by mere declaration,

without anything more, cannot directly overrule, revise or override a judicial

decision. It can render judicial decision ineffective by enacting valid law on the topic

within its legislative filed fundamentally altering or changing its character

retrospectively. The changed or altered conditions should be such that the previous

decision would not have been rendered by the Court, if those conditions had existed

at the time of declaring the law as invalid.

( 67 ) A Constitutional Bench of the supreme Court in State of Gujarat vs. Raman lal

Keshav Lal had an occasion to consider the Gujarat Panchayat Act 28/78 (3rd

amendment) and declared as follows:"we then come to the Writ Petitions. As

mentioned by us earlier, the gujarat Panchayats Act was amended during the

pendency of the appeal in an effort to nullify the effect of the judgment of the

Gujarat High Court. Firstly, the Government promulgated an Ordinance and next the

Legislature enacted the Amending Act. Section 1 of the Amending Act stipulates the

dates from which the various amending provisions must be deemed to have come

into force. We shall refer to the dates from which some of the provisions are

deemed to have come into force when we refer to those provisions". By Section 2 of

the Amending Act, original Section 11 (1) which declared that the Gram Panchayats,

Taluqa panchayats, District Panchayats, Gram sabhas, Nagar Panchayats and

conciliation Panchas shall constitute the Panchayat Organisation of the state of

Gujarat was omitted and original Section 11 (2) which provided for the control of the

State government over Panchayats directly or through their officers was made. It is

extremely difficult to understand the omission of old Section 11 (1 ). The whole

object of the Gujarat Panchayats act is "democratic decentralization of power and

the consequent reorganization of the administration of local Government". The

object is to decentralize and reorganize. So it was thought that Gram Panchayats,

Nagar panchayats, Taluqa Panchayats, district Panchayats, etc. , should constitute

the Panchayat Organisation of the State of Gujarat. The object of the Act is still the

same, yet Sec. 11 (1) has been omitted. Does it mean that there is a disbandment

of organization According to the statement of Objects and Reasons, the

amendments were necessitated to get over the judgment of the Gujarat High court

that the Panchayat Service is a state Service. But surely that cant be a reason to go

against the object of the principal Act and to abandon the constitution of a State

Panchayat organisation. No wonder it was described as an act of cutting the nose to

spite the face.

( 68 ) ULTIMATELY, in para 52, the powers of the Legislature in validating the

invalid law was summarised as hereunder: "the legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a legislature-made

law. The Legislature is undoubtedly competent to legislate with retrospective effect

to take away or impair any vested right acquired under existing laws but since the

laws are made under a written constitution, and have to conform to the dos and

donts of the Constitution, neither prospective nor retrospective laws can be made

so as to contravene fundamental Rights. The law must satisfy the requirements of

the constitution today taking into account the accrued or acquired rights of the

parties today. The law cannot say, twenty years ago the parties had no rights,

therefore, the requirements of the Constitution will be satisfied if the law is dated

back by twenty years. We are concerned with todays rights and not yesterdays. A

Legislature cannot legislate today with reference to a situation that obtained twenty

years ago and ignore the march of events and the constitutional rights accrued in

the course of the twenty years. That would be most arbitrary, unreasonable and a

negation of history. It was pointed out by Constitution Bench of this Court in B. S.

Yaddv vs. State of haryana Chandrachud, C.. speaking for the Court, "since the

Governor exercises the legislative power under the proviso to Article 309 of the

constitution, it is open to him to give retrospective operation to the rules made

under that provision. But that date from which the rules are made to operate must

be shown to bear either from the face of the rules or by extrinsic evidence,

reasonable nexus with the provisions contained in the rules, especially when the

retrospective effect extends over a long period as in this case". Todays equals

cannot be made unequals by saying that they were unequal twenty years ago and

we will restore that position by making law today and making it, retrospective.

Constitutional rights, constitutional obligations and constitutional consequences

cannot be tampered with that way. Law which if made today would be plainly invalid

as offending constitutional provisions in the context of the existing situation cannot

become valid by being made retrospective. Past virtue (constitutional) cannot be

made to wipe out present vice (constitutional) by making retrospective laws. We

are, therefore, firmly of the view that the gujarat Panchayats (Third amendment)

Act, 1978 is unconstitutional, as it offends article 311 and 14 and it is arbitrary and

unreasonable. We have considered the question whether any provision of the

Gujarat Panchayat (Third Amendment) Act, 1978 might be salvaged. We are afraid

that the provisions are so intertwined with one another that it is well-nigh impossible

to consider any life saving surgery. The whole of the Third Amendment act must go.

In the result the Writ petition Nos. 4266-70 are allowed with costs quantified at Rs.

15,000. 00. The directions given by the High Court, which we have confirmed,

should be complied with before June 30,1983.

( 69 ) FROM the above it is seen that though the Legislature is competent to

legislate more so with retrospective effect, to take away the vested rights, the Act

has to conform to the provisions of the constitution more so fundamental rights and

the Legislature cannot legislate to-day with reference to a situation that obtained

twenty years ago and ignore the march of events and the constitutional rights

accrued in the course of the twenty years. Their lordships further observed that the

date from which the rules are made to operate must be shown to bear either from

the face of the rules or by extrinsic evidence and reasonable nexus with the

provisions contained in the rules, especially when the retrospective effect extends

over a long period as in this case and Constitutional rights, Constitutional obligations

and constitutional consequences cannot be tampered with that way.

( 70 ) IN Madan Mohan Pathak vs. Union of india and others Constitution Bench of

the supreme Court in para 38 while considering the Validity of Payment of

compensation (Amendment) Act, 1976 nullifying various settlements entered into

between the Corporation and its employees relating to payment of Bonus to Class

III and Class IV of the employees of the corporation held as follows:"in the light of

this discussion, the conclusion is inevitable that the direct effect of the impugned Act

was to transfer ownership of the debts due and owing to Class III and Class IV

employees in respect of annual cash bonus to the Life Insurance corporation and

since the Life insurance Corporation is a corporation owned by the State, the

impugned Act was a law providing for compulsory acquisition of these debts by the

State within the meaning of clause (2a) of Article 31. If that be so, the impugned

Act must be held to be violative of Article 31, clause (2) since it did not provide for

payment of any compensation at all for the compulsory acquisition of these debts.

"in fact, their Lordships went a step ahead and held that:"if by reason of

retrospective alteration of the factual or legal situation, the judgment is rendered

erroneous, the remedy may be by way of appeal or review, but so long as the

judgment stands, it cannot be disregarded or ignored and it must be obeyed by the

life Insurance Corporation. We are, therefore, of the view that, in any event,

irrespective of whether the impugned Act is constitutionally valid or not, the Life

Insurance Corporation is bound to obey the Writ of mandamus issued by the

Calcutta high Court and to pay annual cash bonus for the year April 1, 1975 to

march 31, 1976 to Class II and IV employees:

( 71 ) THIS Court, while considering the amendment in question has taken a similar

view in The Managing Director, A. P. Travels Tourism Corporation Limited vs..

Pardhasaradhi and others in the following words:"at this stage Sri Gulam

Mohammed, the learned Government Pleader tried to submit that during the

pendency of the matter before the Honble Supreme court there was an amendment

to the act 2 of 1994 which was given effect from 3rd January, 1998. It is submitted

that the State was represented by the counsel before the Honble Supreme court.

The Supreme Court passed the above order on 6-2-1998 whereas the amendment

was made on 3-1-1998. It is not known why this fact was not brought to the notice

of the Honble supreme Court. However, if mr. Gulam Mohammed feels that by

virtue of that amendment the employer is not bound to comply with the order of the

Honble Supreme court, it is open for the Counsel to move the Honble Supreme

Court for review".

( 72 ) FROM the decisions cited above, the law is now well settled. e. , the

Legislature is having power to remove the defect pointed out by the Courts. But the

legislature is incompetent to amend the Act by way of declaration nullifying the

effect of the judgments as it amounts to encroaching upon the powers of the

judiciary to interpret the law.

( 73 ) AT any rate, following the dicta laid down in Madan Mohan Pataks case

(supra) and the unreported judgment of this Court in W. A. No. 1744 of 1995, it is

seen that by the time the Supreme Court interpreted section 7 of Act 2 of 1994 in

District Collector (supra) on 6-2-1998, the amendment in question has already come

into force. Hence, if the respondents feel that by virtue of the amendment that was

made to Act 2 of 1994, the judgment of the Supreme Court is not binding on them

they have to seek review of the judgment of the Supreme court but they cannot try

to get over the binding effect of the decision by resorting to its legislative power.

( 74 ) AFTER this judgment, Act 2 of 1994 was subjected to further amendment by

Act 27 of 1998 in August, 1998. Subsequently, their Lordships of the Supreme Court

disposed of Civil Appeal Nos. 82 and 83 of 1999 in Rambabu and others vs.

Secretary to government, Finance and Planning departments and others. Even at

this belated stage, the respondents did not bring to the notice of the Supreme Court

the legislative changes that were brought in to Act 2 of 1994 way back on 3-2-1998.

( 75 ) G. V. K. Girls High School vs. Government of Andhra Pradesh a Division bench

of this Court in similar circumstances considered the powers of the Legislature in

making law retrospectively nullifying the effect of the judgment of the Court under

the Andhra Pradesh Private Educational institutions Grant-in-Aid (Regulation) Act,

1988 which came into force on 20-08-1988. The Government stopped Grant-in-Aid

released to certain schools in G. O. Ms. 347, dt. 01-08-1986, as there were

complaints of misuse of the Grant-in-Aid, and appointed a High Level Committee to

go into the irregularities committed by various institutions and misuse of the Grantin-

Aid by them. Pursuant to the Report of the committee, Government issued g. O.

Ms. No. 326, dt. 17-10-1989 admitting grant-in-Aid to various institutions mentioned

in the Annexure appended to the Government Order. While admitting these

institutions to Grant-in-Aid, the government in paragraph 8 of its order stated:

"regarding payment of arrears to schools now admitted to Grant-in-Aid, orders will

be issued separately". When the government was not passing any orders with

regard to the payment of arrears, several schools admitted to Grant-in-Aid,

approached the Court by way of filing writ petitions. At that stage, the Government

issued G. O. Ms. No. 138, dt. 25-04-1994 stating that no arrears would be paid to

the educational institutions which were admitted to Grant-in-Aid under g. O. Ms. No.

326, dated 17-10-1989. The main reason given for refusing arrears is that in the

present financial position, the state Government was not in a position to pay the

arrears and the schools have no right to claim Grant-in-Aid. The learned single

Judge having rejected the contentions, directed the Government to pay arrears to

the school. Having preferred an appeal, the Government passed another act called

as the Andhra Pradesh educational Institutions Grant-in-Aid (Regulation)

supplementary Provision act and the same was given retrospective effect from 17-

10-1989, the date on which the respondent school was admitted to grant-in-Aid.

Under Section 2 of the said act, a similar declaration to that of section 7-A which

found place in Act 2/94 u/act 27 of 1998. Their Lordships having considered the

entire case law on the powers of the Legislature, summarized the position and the

tests finally culled out are as follows: (i) Whether the Legislature enacting the

Validating Act has competence over the subject matter; (ii) Whether by validation,

the legislature has removed the defect which the Court had found in the previous

law; and (iii) Whether the Validating Law is inconsistent with the provisions of

chapter III of the Constitution. If these tests are satisfied, the Act can be held to be

valid. Otherwise, it will be something which judiciary has to do, which the

Legislature would be doing and it is impermissible. Having stated the legal position,

their lordships held thus: "under the said Act, no attempt was made to remove any

defect in the earlier Government Orders or the enactment which has rendered its

executive action invalid and the Court has found fault on that score. It is out and out

a legislation to nullify the instant judgment or any judgment, decree or order of any

Court or authority by a declaration in the shape of a decree of the Legislature. The

same, in our view, cannot be sustained and has to be held to be invalid and beyond

the competence of the State Legislature. "

( 76 ) REGARDING the financial position of the State, their Lordships categorically

held that the law on the subject is well settled that Grant-in-Aid cannot be denied on

the ground of paucity of funds.

( 77 ) THIS judgment was confirmed by the supreme Court in The Government of

Andhra pradesh vs. G. V. K. Girls High School. Justice jagannadha Rao, learned

Judge speaking for the Division Bench in para 30 observed as follows:"section 2 of

the Act 34/95 also purports to nullify the effect of the judgment of the learned

Single Judge. It is well settled that the Legislature cannot overrule a judgment by

passing a law to that effect unless it removes the basis of the legal rights upon

which the judgment is based, with retrospective effect and provided there is no

violation of any constitutional provision in such withdrawal of rights retrospectively".

( 78 ) IN Indra Sawhney vs. Union of India and other, considering the validity of

Kerala state Backward Classes (Reservation of appointments or Posts in the Services

under the State) Act, 1995, whereunder the state declared that there are no socially

advanced sections in any Backward Classes who have acquired capacity to compete

with forward classes and refused to identify the creamy layer amongst the Backward

classes. Justice Jagannadha Rao speaking for the Court in para 28 observed as

follows:"the question of validation arises in the context of Section 6 of the Act. It is

true that whenever legislative or executive action is declared as being violative of

the provisions of Part III of the Constitution, it will be permissible for the Executive

or the Legislature to remove the defect which is the cause for discrimination

prospectively and which defect has been pointed out by the Court. The defect can

be removed retrospectively too by legislative action and the previous actions can

also be validated. But where there is a mere validation with retrospective effect,

without the defect being legislatively removed with retrospective effect, the

legislative action will amount to overruling the judgment of the Courts by way of

legislative fiat and will be invalid as being contrary to the doctrine of separation of

powers".

( 79 ) THEIR Lordships further went into the question whether the Court is

precluded from lifting the veil to find out whether the legislative declaration is a valid

one or not, and observed in para 36 to the following effect:"it is now fairly well

settled that legislative declarations of facts are not beyond judicial scrutiny in the

constitutional context of Articles 14 and 16. In Kesavananda Bharati vs. State of

Kerala the question arose in the context of legislative declarations made for

purposes of Article 31-C-whether the Court was precluded from lifting the veil,

examining the facts and holding such legislative declarations as invalid. The said

issue was dealt with in various judgments in that case, e. g. , judgments of Ray.. (as

he then was), Palekar, Kanna, Mathew, dwivedi,. , and Beg,. and chandrachud J (as

they then were ). The learned Judges held that the courts could lift the veil and

examine the position in spite of a legislative declaration. Ray,. (as he then was )

observed: (SCC Head note)"the Court can tear the veil to decide the real nature of

the statute if the facts and circumstances warrant such a course. A conclusive

declaration would not be permissible so as to defeat a fundamental right". Palekar,.

said that if the legislation was merely a pretence and the object was discrimination,

the validity of the statute could be examined by the court notwithstanding the

declaration made by the Legislature and the learned Judge referred to Charles

russell vs. R. and to Attorney General for Quebee vs. Queen Insurance company

held that the declarations were amenable to judicial scrutiny. If the law was passed

only "obstensibly" but was in truth and substance, one for accomplishing an

unauthorized object, the Court, it was held, would be entitled to tear the veil. Beg, J

(as he then was ) held that the declaration by the Legislature would not preclude a

judicial examination. Dwivedi,. said that the Courts retain the power in spite of

Article 31-C to determine the correctness of the declaration. Chandrachud, J (as he

then was) held that the declaration could not be utilized as a cloak to evade the law

and the declaration would not preclude the jurisdiction of the Courts to examine the

facts".

( 80 ) IN S. R. Bhagwat and others vs. State of mysore , a Full Bench of the Apex

Court while considering the validity of sub-sections (2) (3) (4) (5) (6) and (8) of Sec.

4 as well as Section 11 (2) of the Karnataka State civil Services (Regulation of

Promotion, pay and Pension) Act, 1973 intended to take away the effect of the

orders of the High court which have become final, their lordships of the Supreme

Court held; para 11;"it is now well settled by a catena of decisions of this Court that

a binding judicial pronouncement between the parties cannot be made ineffective

with the aid of any legislative power by enacting a provision which in substance

overrules such judgment and is not in the realm of a legislative enactment which

displaces the basis of foundation of the judgment and uniformly applies to a class of

persons concerned with the entire subject sought to be covered by such an

enactment having retrospective effect". In para 15 of the judgment, their lordships

again observed;"we may note at the very outset that in the present case the High

Court had not struck down any legislation which was sought to be re-enacted after

removing any defect retrospectively by the impugned provisions. This is a case

where on interpretation of existing law, the High Court had given certain benefits to

the petitioners. That order of mandamus was sought to be nullified by the

enactment of the impugned provisions in a new statute. This, in our view would be

clearly impermissible legislative exercise".

( 81 ) DEALING with the validity of section 11 (2) of the Act, their Lordships again

held as under;"a mere look at sub-section (2) of section 11 shows that the

respondent state of Karnataka, which was a party to the decision of the Division

Bench of the High Court against it had tried to get out of the binding effect of the

decision by resorting to its legislative power. The judgments, decrees and orders of

any Court or the competent authority which had become final against the State were

sought to be done away with by enacting the impugned provisions of sub-sec.

(2) of section 11. Such an attempt cannot be said to be a permissible legislative

exercise. Section 11 (2), therefore, must be held to be an attempt on the part of the

State Legislature to legislatively overrule binding decisions of competent Courts

against the State".

( 82 ) THE other contention of the State is that even assuming that the Division

Bench judgment remained binding on the State despite the provisions of the

impugned Act, all that the Division Bench has directed the state Government is to

consider the case of the petitioners for deemed promotions on the basis of final

seniority list. That has already been done and the petitioners have no grievance for

the same. So far as the consequential financial benefits are concerned, they would

not cover the monetary benefits flowing from such deemed promotions. Rejecting

the above contention their Lordships held that even this submission cannot be

countenanced. We have already extracted earlier the operative portion of the

Judgment of the division Bench. It has been in terms directed that if the petitioner is

found fit and promoted he may be given all the benefits consequential there to

including the financial benefits. It is therefore, obvious that once the deemed date

of promotion is given to the petitioners concerned it cannot be merely notional

promotion refixing his pay in the promotional cadre with increments etc. , but also

would bring in its wake all consequential financial benefits, namely, the salaries that

have accrued to them on account of such deemed promotions. Whether such

deemed promotions can also entail actual monetary benefits when the employees

concerned had not worked on the promotional posts, is a question which could have

been agitated by the respondent-State, if so advised, by challenging the order of the

division Bench before this Court. That was not done. Instead it resorted to its

legislative power for undoing the said directions of the division Bench by arming

itself with the power to review that judgment by resort to its legislative function.

That was clearly not permissible as it was an act of encroachment on the judicial

pronouncement of the High Court which had remained binding on the respondent-

State. " in the result, Section 11 (2) of the impugned Act was declared as ultra vires

invalid.

( 83 ) FROM the decisions cited above, the law is now well settled that the

Legislature is having power to remove the defect pointed out by the Courts and in

that process, the defects of the judgments can be removed. But the Legislature is

incompetent to amend the Act by way of declaration with a view to nullify the effect

of the judgments as it amounts to encroaching upon the powers of the judiciary to

interpret the law.

( 84 ) NOW coming to the facts of the case on hand, from the aims and objects of

the amending Act 27/98, it is seen that the interpretation placed by the Court with

regard to the cut-off date runs contrary to the policy of the Government. Except

this, no other reason whatsoever was given for bringing this amendment.

( 85 ) I have gone through the provisions of act 2/94 carefully. In fact, at the time

when the Supreme Court was inclined to strike down the law, the Government came

forward with a scheme to regularize the services of the persons working in the

government and Governmental organizations. As far as the Act is concerned, as

stated supra, under Section 3 of the Act, future appointments were prohibited and

the appointments made prior to the commencement of the Act were not set at

naught. In fact, a reading of this section clearly reveal that the persons who were

appointed under Section 3 of the Act, are continuing as such on the commencement

of the Act shall not have any right to claim any regularization. This is nothing but

defective draughtsmanship for the simple reason that Sec. 3 prohibits temporary

appointments from the date the act came into force. Hence the words "are

continuing as such on the commencement of the Act" do not convey any meaning

whatsoever. Admittedly, none of these petitioners were appointed under Section 3

of the Act and none of the provisions of the act prohibits regularization of the

services of the employees who were appointed prior to the date of commencement

of the Act. It is only in G. O. Ms. No. 212, for the first time it is mentioned that the

persons appointed either in the Government offices or various other organizations

under the control of the government, prior to the commencement of the Act and

who have put in 5 years of service as on 25-11-1993, are eligible for regularization

of their services subject to the conditions mentioned therein. From this, the only

embargo placed on the temporary employees who were appointed prior to the

commencement of the Act was that they must put in minimum five years of service

and they should be working as such on 25-11-1993 for claiming regularization.

( 86 ) EVEN according to the counter filed by the respondents, out of 70,000

employees working in various organizations, the government has regularized the

services of only 5,000 people and left 65,000 temporary employees high and dry by

inventing new reasons from time to time to deny the benefit of regularisation

though most of them have completed five years service as on 25-11-1993. As per

the interpretation given by this Court, to complete the prescribed qualifying service,

the cut-off date is extendable in case of persons who were appointed prior to 25-11-

1993 and continuing in service till that date. If such an interpretation is not given to

the cut-off date a very serious analogous (sic. anomalous) position would have

developed. e. , the temporary employees appointed prior to 25-11-1993 will be

continued for decades without regularisation and on starving wages for no fault of

them. If there is no work, as contended by the respondents now they would not

have been continued in service all these years. Further all these persons were

appointed in the organizations brought into existence, in pursuit of vote catching

devices without service rules and cadre strength. Further it is seen in most of these

cases the Heads of organisations sent proposal for regularisation. Some of the

proposals were rejected mainly on the ground of non-availability of sanctioned

posts, other proposals are gathering dust in the cupboard of Secretariat. If there is

no justification for their continuing why there is silence on the part of the

Government all these years.

( 87 ) FURTHER, it is not the case of the government that it is not aware of the

factual position as all the pay bills that are being submitted by the appointing

authority are subjected to pre-audit as well as post-audit. Nextly, unless the

government releases the required funds, the appointing authorities themselves

cannot pay the salaries to these temporary employees. It is too late in the day to

contend that without knowing the employment of those persons on temporary basis,

the Government is releasing the amounts required for effecting payments to these

employees. Now though the government is repeatedly contending that these

persons were appointed without reference to the work load, the services of none of

the petitioners were terminated, all these years. It is only when the employees,

vexed with the attitude of the respondents in not regularizing their services and in

not paying the regular scales of pay approached to this Court, this Court keeping the

length of the service put in by them and their need in the organization, interpreted

the cut-off date with reference to the regularization of services of the temporary

employees and gave a direction to regularize the services of the temporary

employees who were appointed prior to 25-11-1993 on completion of five years

service as prescribed in G. O. Ms. No. 212. Hence it cannot be said that the

interpretation placed by this Court on the cut-off date is contrary to the intendment

of the policy of the government. Now the Government has gone to the extent of

saying that it does not want to make any appointments and it does not want to

regularize the temporary services of the employees who are working for decades

and who might have crossed the upper age limit prescribed for appointment in

public services.

( 88 ) IN G. B. Pant-University of Agriculture and Technology, Patnagar, Naintial vs.

State of uttar Pradesh and others their Lordships while rejecting a similar contention

advanced by the learned Solicitor General appearing for the University that the

employees in the Cafeteria are not the employees of the University and there is no

relationship of Master and Servant, observed as under:". . . . The society shall have

to prosper and this prosperity can only come in the event of there being a wider

vision for total social good and benefit. It is not bestowing any favour to anybody

but it is a mandatory obligation to see that the society thrives. The deprivation of

the weaker section we had for long but time has now come to cry halt and it is for

the law Courts to rise up to the occasion and grant relief to a seeker of a just cause

and just grievance. Economic justice is not a mere legal jargon but in the new

millennium it is the obligation for all to confer this economic justice to a seeker.

Society is to remain, social justice is the order and economic justice is the rule of the

day. Narrow pedantic approach to statutory documents no longer survives. The

principle of corporate jurisprudence is now being imbibed on to industrial

jurisprudence and there is a long catena of cases in regard thereto - the law thus is

not in a state of fluidity since the situation is more or less settled. As regards

interpretation widest possible amplitude shall have to be offered in the matter of

interpretation of statutory documents under industrial jurisprudence. The draconian

concept is no longer available. Justice - social and economic, as noticed above ought

to be made available with utmost expedition so that the socialistic pattern of the

society as dreamt of by the founding father can thrive and have its foundation so

that the future generation do not live in the dark and cry for social and economic

justice. "

( 89 ) FURTHER, the intention sought to be achieved by the Government by

introducing these amendments runs counter to the fundamental Rights guaranteed

under Articles 16 and 21 of the constitution of India apart from Arts. 39-A, 41, 42

and 43 as enshrined in the Directive principles of State Policy. P. A. Chowdary,. (as

he then was) observed in a. P. S. R. T. Corpn. vs. Labour Court, Guntur that right to

employment is a new form of property, the enjoyment of which is necessary for the

exercise of the creative faculties of man. This observation received the approval of

the Supreme Court in State of Maharashtra vs. Chandrabhan while considering the

validity of the second proviso to Rule 151 (j) (ii) (b) which provides for payment of

subsistence allowance at the rate of Re. 1/- per month to a Government servant,

who is convicted by a competent Court and sentenced to imprisonment and whose

appeal against the conviction and sentence is pending, as void as it offends Articles

14, 15, 21 and also 311 (2) of the Constitution. Both O. Chinnappa Reddy and a.

Varadarajan,. (as they then were) in different judgments concurrently held that

public employment was a national wealth.

( 90 ) IN Gujamth Electricity Board, Ukai vs. Hind Mazdoor Sabha, their Lordships of

the supreme Court upholding an award of the industrial Tribunal wherein the

Tribunal held that the workmen working under different contractors should be

deemed to be the workmen of the Board, gave a consequential direction for

payment of arrears of wages to the workmen. It is worthwhile to extract the

observations made by the Supreme Court as hereunder:""while parting with these

matters, we cannot help expressing our dismay over the fact that even the

undertakings in the public sector have been indulging in unfair labour practice by

engaging contract labour when workmen can be employed directly even according

to the tests laid down by Section 10 (2) of the Act. The only ostensible purpose in

engaging the contract labour instead of the direct employees is the monetary

advantage by reducing the expenditure. Apart from the fact that it is an unfair

labour practice, it is also an economically short-sighted and unsound policy, both

from the point of view of the undertaking concerned and the country as a whole.

The economic growth is not to be measured only in terms of production and profits.

It has to be gauged primarily in terms of employment and earnings of the people.

Man has to be the focal point of development. The attitude adopted by the

undertakings is inconsistent with the need to reduce unemployment and the

Government policy declared from time to time to give jobs to the unemployed. This

is apart from the mandate of the directive principles contained in articles 38, 39, 41,

42, 43 and 47 of our constitution. "

( 91 ) UNDER Article 21 of the Constitution, no person shall be deprived of his life or

personal liberty except according to procedure established by law. The Supreme

court, while interpreting Article 21 of the constitution in State of Maharasthras case

(supra), held that the word life to mean something more than survival or animal

existence and it would include the right to live with human dignity.

( 92 ) IN Maneka Gandhi vs. Union of India, their Lordships, while considering the

words personal liberty occurring in article 21 of the Constitution, held that the

expression "personal liberty" is of the widest amplitude and it covers a variety of

rights which go to constitute the personal liberty of man and some of them have

been raised to the status of distinct fundamental rights and given additional

protection under Art. 19. Their Lordships further held that if a law depriving a

person of personal liberty and prescribing a procedure for the purpose within the

meaning of Article 21 has to stand the test of one or more of the fundamental rights

conferred under article 19 which may be applicable in a given situation, exhypothesi

it must also be liable to be tested with reference to article 14 on the principle of

reasonableness. Their Lordships also held:"the principle of reasonableness, which

legally as well as philosophically, is an essential element of equality of nonarbitrariness, pervades Art. 14 like a brooding omnipresence and the procedure

contemplated by Art. 21 must answer the test of reasonableness in order to be in

conformity with Art. 14. It must be right and just and fair and not arbitrary, fanciful

or oppressive; otherwise, it should be no procedure at all and the requirement of

Art. 21 would not be satisfied".

( 93 ) IN the preamble, the citizens of this country are assured of justice, social,

economic and political apart from other rights. Pandit Jawahar Lal, the first Prime

minister of this Republic, while speaking in the Parliament on the First Amendment

to the Constitution, stated our final aim can only be a classless society with equal

economic Justice and opportunity to all, a society organised on a planned basis for

the raising of mankind to higher material and cultural level, Part III deals with the

fundamental Rights whereas Part IV deals with the Directive Principles of State

Policy.

( 94 ) NEXTLY, a bounden duty is cast on the government to find out whether the

existing staff pattern of any office or establishment needs review keeping in view

the work load and whether there is any need to review their pay and allowances,

terminal benefits etc. (2) Whether any of the temporary employees were appointed

indiscriminately without there being any need, (3) The fate of seventy thousand

temporary employees working on starvation wages for a fairly long period in

different organizations that were brought into existence to implement poverty

alleviation programmes, to improve the economic conditions of the people without

fixation of cadre strength and the scales of pay payable to them, (4) The steps to be

taken with regard to the employees who crossed upper age limit for pubic

employment on the basis of recommendations of the Committee constituted for that

purpose under Sec. 11 of the Act. Having miserably failed to discharge the duty cast

on it, the government introduced the Bill to amend act 2 of 1994 only with a view to

nullify the judgments of superior Courts.

( 95 ) WHILE introducing the Bill without making any exercise and furnishing

information to the Legislature on the above aspects, it is simply stated in the aims

and objectives of the Bill seeking amendment that the Judgments rendered by

different courts are contrary to the intendment and the policy of the Government.

Such an Act on the part of the executive is nothing but misleading the Legislature to

put in motion the democratic process of making a legislation to nullify the effect of

the judgments of the Courts, as mala fides or bad faith cannot be attributed to the

legislature while considering the virus of the enactment and to cover up its

illmotivated intention to avoid regularisation of their services and payment of regular

time-scales of pay in the teeth of the judgments and at the same time to utilise their

services by not paying living wages by way of a legislative fiat.

( 96 ) IN the light of the ratio decidendi laid down by the Supreme Court coupled

with the statement of the 1st Prime Minister of the Country and non-furnishing of

the full and required information to the Legislature it is futile to contend that the

appointing authorities were making appointments indiscriminately and such an

action is resulting in unnecessary financial burden on the exchequer more so when

the pay bills submitted by the drawing officers are subjected to both pre and post

audit regularly. Hence, it cannot be said that the legislature passed the Amending

Acts on hand knowing fully well the consequences of their action and on proper

application of mind to all the facts and circumstances under which these

appointments were made and whether they were appointed without there being any

need as is being contended by the Government now. e. , after decades of their

appointments.

( 97 ) FURTHER, I repeatedly directed the learned Advocate General to produce the

assembly Debates on this amending Act to find out whether any proper discussion

has taken place on this subject as it is likely to affect the livelihood of thousands and

thousands of people in the State. But the debates were not produced and it gives

me an impression that this Act might have been passed by applying guillotine

without proper discussion as to whether facts and circumstances substituting the

amendment act 27 of 1998. The objectives and reasons of the Act 27 of 1998 also

did not mention about the Judgments of the High Court and supreme Court

regarding the cut-off date. This information was withheld by government from the

Legislature which amounts to curtailing the wisdom of legislature. In fact, the Bill

leading to Act 27 of 1998 was not even reported to Legislative committee nor any

information was sought nor supplied to the Legislature. In that manner, the Act

suffers from the vice of non-application of mind by the Legislature and offends

Article 14 of the Constitution of india.

( 98 ) I am fortified in my view by a judgment of the Supreme Court of the united

States of America in Me. Grain vs. Daugherty. In that case one m. S. Daugherty

brother of Harry Mc. Daugherty, former Attorney General who was charged for

misfeasance and nonfeasance in the Department of Justice filed a Writ of Habeas

Corpus in the Dederal district Court in Cincinnati questioning the action of the.

President of the Senate in issuing warrant for his arrest consequent upon his failure

to appear before the committee to give testimony on the subject under investigation

against his brother. The questions that arose before that Court were (1) whether the

Senate- or the House of Representatives, both of them being on the same plane in

this regard - has power, through its own process, to compel a private individual to

appear before it or one of its committees and give testimony needed to enable it

efficiently to exercise a legislative function belonging to it under the Constitution and

(2) whether it sufficiently appears that the process was being employed in this

instance to obtain testimony for that purpose, as there is no specific provision

expressly investing either house with power to make investigations and exact

testimony to end that it may exercise its legislative function advisedly and

effectively. The question that cropped up in that case was whether this power is so

far incidental to the legislative function as to be implied. Answering the above issue,

the federal District Court observed:"while the power to exact information in aid of

the legislative function was not involved in those cases, the rule of interpretation

applied there is applicable here. A legislative body cannot legislate wisely or

effectively in the absence of information respecting the conditions which the

legislation is intended to affect or change; and where the legislative body does not

itself possess the requisite information - which not infrequently is true- recourse

must be had to others who do possess it".

( 99 ) NOW the first proviso to Section 7 of the principal Act newly introduced by Act

27 of 1998 substituting the earlier proviso is intended to take away the right of

temporary employees who were appointed prior to 25-11-1993 and are continuing

as such on that day seeking regularisation after completion of five years of service

as per the judgment of the Apex Court in district Collector/chairman (supra) the

same cannot be held to be valid as rights of this class of temporary employees have

been crystallized under various pronouncements of this Court as well as the

supreme Court.

( 100 ) NOW, coming to Section 7-A that was introduced in Act 2 of 1994 under

section 5 of Amending Act 27 of 1998, the purport and intention in introducing this

section is to nullify the effect of the interpretation given by this Court on g. O. Ms.

No. 212. It is seen from Clause (1), the rights that have flown from orders of various

Courts in favour of the temporary employees to get their services regularised as per

interpretation placed by this Court as well as Apex Court on the cut-off date

mentioned in G. O. Ms. No. 212 to get their services regularised, which was given

statutory effect by amending Act 3 of 1998, were sought to be wiped out. Under

sub-section (2), all proceedings pending in any court, Tribunal or authority seeking

regularisation of services shall stand abated. Under sub-section (3) any decree or

order directing the Government to regularise the services of any of the temporary

employees cannot be enforced. This Section is almost similar to Section 9 of the

Principal Act that came into force on 25-11-1993 and under that Section, the claims

of the temporary employees on the basis of any judgment, decree or order of any

Court etc. , were declared as abated. On an earlier occasion in Maize Beedar

Agriculture Research Station, hyderabad and another vs. Silar Bee (SMT), this Court

held that no ordinary law made by any Legislature can curtail or affect the

jurisdiction of the High Court under articles 226 and 227 of the Constitution in the

following words:"any notion, however, entertained by any person in authority

including the appellants herein that abatement of claims as stipulated in Section 9

above or the bar to the institution of the proceedings and to the authority of the

court to enforce any decree or order directing regularisation of the services of a

daily wage employee or a person appointed on temporary basis, shall apply to the

jurisdiction of this Court under Article 226 of the Constitution of India, is not only a

mistake but defiance of the plenary power of the court. No ordinary law made by

any legislature can curtail or affect the jurisdiction of this Court under articles 226

and 227 of the constitution of India and all authorities subordinate to this Court as

contemplated under these Articles must realise that they, in no case, can defy this

Courts powers and authorities. It is not known, but it seems, powers and authority

is. It is not known, but it seems, it is in such defiance that the direction issued by

this Court in W. P. No. 17738 of 1988 has not been implemented. It constitutes, in

our opinion, a clear contempt of Court and this Court shall be justified in invoking its

power under Article 215 of the Constitution of India. It is almost touching the

borders of ignorance of the law when it is argued before us that the said Act

imposes a bar under Section 7 on giving any substantive appointment to a daily

wage earner or a temporary employee and that even when the court in the said Writ

Petition has ordered to do so. We have chosen to call such act as an act in

ignorance of the correct legal position instead of calling it an act of arrogance on the

part of the appellants-respondents who have chosen to defy the directions of this

Court under one or other pretext and compelled the Writ petitioner-respondent to

move again for a direction for her absorption on permanent basis as an employee of

the appellants. "

( 101 ) HAVING considered the effect of section 7 of the Act, their Lordships further

observed as follows:"we have made the above observation only to emphasis that

the directions issued by this Court in W. P. No. 17738 of 1988, were always in force

and were, in no way, adversely affected by the abatement provision in Section 9 of

the Act 2 of 1994. The appellants were still under the command of the Court and

they are bound to give effect, under all circumstances, to the said directions in W. P.

No. 17738 of 1988, and they are obliged, accordingly, to give to the writ petitioner respondent a substantive appointment".

( 102 ) FROM the above decision, it is seen that power of judicial review vested in

this court in exercise of its plenary powers under Article 226 of the Constitution of

india cannot be taken away by any law made by the Legislature.

( 103 ) SEVEN Judges Bench of the Supreme court in L. Chandra Kumar vs. Union of

India and others declared Clause 2 (d) of article 323-A and Clause 3 (d) of article

323-B and Section 28 of administrative Tribunals Act excluding the jurisdiction of

High Court and Supreme court under Articles 226 and 227 and 32 of the

Constitution of India as unconstitutional, as the jurisdiction conferred upon this

Court is part of inviolable basic structure of our constitution. In Minerva Mills Ltd. ,

and others vs. Union of India and others, their lordships of the Supreme Court while

considering the effect of clauses 4 and 5 of article 368 introduced by way of 42nd

amendment conferring upon the Parliament a vast and undefined power to amend

the constitution held as follows:"the newly introduced Clause (4) of article 368 must

suffer the same fiat as clause (5) because the two clauses are inter-linked on the

amending power while Clause (4) deprives the Courts of their power to call in

question any amendment of the Constitution. Our constitution is founded on a nice

balance of power among the three wings of the State, namely, the executive, the

Legislature and the judiciary. It is the function of the judges, nay their duty, to

pronounce upon the validity of laws. If Courts are totally deprived of that power the

fundamental rights conferred upon the people will become a mere adornment

because rights without remedies are as writ in water. A controlled constitution will

then become uncontrolled. Clause (4) of Article 368 totally deprives the citizens of

one of the most valuable modes of redress, which is guaranteed by Article 32. The

conferment of the right to destroy the identity of the Constitution coupled with the

provision that no Court of law shall pronounce upon the validity of such destruction

seems to us a transparent case of transgression of the limitations on the amending

power. ""if a constitutional amendment cannot be pronounced to be invalid even if it

destroys the basic structure of the constitution, a law passed in pursuance of such

an amendment will be beyond the pale of judicial review because it will receive the

protection of the constitutional amendment which the Courts will be powerless to

strike down. Article 13 of the Constitution will then become a dead letter because

even ordinary laws will escape the scrutiny of the Courts on the ground that they

are passed on the strength of a constitutional amendment which is not open to

challenge. "from this decision, it is evident that our constitution is founded on nice

balance of power among the three wings of the State, namely, the Executive, the

Legislature and the Judiciary and by a legislative fiat the power of the Courts to

adjudicate on the validity of the laws made by the Legislature vested in the Supreme

Court under article 32 and the High Court under articles 226, 227 of the Constitution

of India cannot be taken away even by a constitutional amendment, leave apart, by

an ordinary law made by the Legislature. Hence when once the rights of the parties

are crystallized under orders of the Courts exercising plenary powers, the Legislature

is incompetent to make any law setting at naught the effect of the judgment and it

cannot take away the rights accrued to the petitioners. In Indra Sawhneys case

(supra) their Lordships of the Supreme court categorically observed that the defect

can be removed retrospectively too by legislative action and the previous actions can

also be validated. But where there is a mere validation with retrospective effect,

without the defect being legislatively removed with retrospective effect, the

legislative action will amount to overruling the judgment of the Courts by way of

legislative fiat and will be invalid as being contrary to the doctrine of separation of

powers.

( 104 ) THE next question that falls for consideration would be, whether amending

act 27 of 1998 is retrospective in operation in the absence of any provision to that

effect in the amending Act. In this case, it is seen that while Section 3 (1) of the

amendment act providing employment to the children of the persons died in harness

was given retrospective effect stating that the Section is deemed to have come into

force on 28th october, 1996 the remaining provisions come into force at once. e. ,

from the day the act received the assent of the Governor. From this it is seen the

Legislature has expressed in so many terms that the other amendments are only

prospective in nature but not retrospective. The learned Advocate general tries to

persuade me that when once the provision is incorporated in the act it dates back to

the date of which of the act came into force and it should be treated that the

amendment is made with retrospective effect and it is not necessary to mention

specifically that the amendment dates back to the legislation as it is only in the

nature of clarification. In Garikapati veeraya vs. N. Subbaiah Choudary while

considering the retrospective effect of the amendment Justice S. R. Das as he then

was speaking for the Bench observed as hereunder:"in construing the articles of the

constitution we must bear in mind certain cardinal rules of construction. It has been

said in Hough vs. Windus, that "statutes should be interpreted, if possible, so as to

respect vested right". The golden rule of construction is that, in the absence of

anything in the enactment to show that it is to have retrospective operation, it

cannot be so construed as to have the effect of altering the law applicable to a claim

in litigation at the time when the Act was passed. "

( 105 ) IN Statutory Construction and interpretation of Laws by Craford it is

observed "in the absence of any indication in the statute that the Legislature

intended for it to operate retrospectively, it must not be given retrospective effect. If

perchance any reasonable doubt exists, it should be resolved in favour of

prospective operation. In other words, before a law will be construed as

retrospective, its language must imperatively and clearly require such a construction.

" In People vs. Dilliard, the court held as follows:"it is chiefly where the enactment

would prejudicially affect vested rights, or the legal character of part transactions,

that the rule in question applies. Every statute, it has been said, which takes away

or impairs vested rights acquired under existing laws, or creates a new obligation, or

imposes a new duty, or attaches a new disability in respect of transactions or

considerations already past, must be presumed, out of respect to the legislature, to

be intended not to have a retrospective operation. "

( 106 ) IN fact, this position is being reiterated from time to time by the Supreme

court and some of the cases were already referred by me while considering the

effect of the Amending Act 27 of 1998. In fact, a division Bench of this Court in W.

A. No. 292 of 1999 dated 4-3-1999 held that the amending Act has no retrospective

effect in the following words:"there is no gainsaying that the Act xxvii of 1998 came

into force much after rights of the respondent/ petitioner matured to regularise in

terms of G. O. Ms. No. 212 dated 22-4-1994. The Act XXVII of 1998 is not

retrospective in operation. Consequently, the respondent, writ petitioner is required

to be regularised on the date he completed five years service in terms of G. O. Ms.

No. 212. We find no merit in the appeal"

( 107 ) HENCE, it is difficult to hold that the amendment is retrospective in operation

as no indication to that extent is available in the statute and the vested rights in

favour of the citizens cannot be set at naught by holding that the amending Act is

retrospective in operation. Hence, this contention of the learned Advocate General is

also rejected.

( 108 ) FOR the foregoing discussion amending Act 27 of 1998 to Act 2 of 1994

taking away the crystallized rights of temporary employees who have completed five

years of service after the cut-off date under various pronouncements of this court as

well as the Supreme Court and trying to nullify the judgments of this Court as well

as the Supreme Court in the above aspect to wriggle out of its obligation/duty to

regularize their services under the pronouncements of this Court in exercise of its

plenary powers suffers from the following vices: (1) The Amending Act No. 27 of

1998 to Act 2 of 1994 is neither intended to cure the defect pointed out by the Court

nor any clarification is sought to be made to the existing legislation and as such it

offends the doctrine of separation of powers as envisaged under the constitution of

India. (2) This Court is having ample powers to lift the veil to find out whether the

legislative declaration is a valid one or not. (3) Judicial pronouncements binding on

the parties cannot be made ineffective with the aid of any legislative power by

enacting a provision which in substance overrules such judgments and is not in the

realm of a legislative enactment which displaces the basis or foundation of the

judgment and uniformly applies to a class of persons concerned with the entire

subject sought to be covered by such an enactment having retrospective effect. (3a)

The Legislature is incompetent to amend the Act by way of a declaration nullifying

the effect of the Judgments as it amounts encroaching upon the powers of judiciary

to interpret the law. (4) Right to employment is a new form of property, the

impugned Act violates Articles 16 and 20 of the constitution of India apart from

articles 39-A, 41, 42 and 43 of directive Principles of State Policy. (5) Society is to

remain, social justice is the order and economic justice is the rule of the day and the

law courts have to rise up to the occasion and grant relief to a seeker of a just cause

and grievance. (6) The economic growth is not to be measured only in terms of

production and profits. It has to be gauged primarily in terms of employment and

earnings of the people. Man has to be the focal point of development. (7) As the Act

is neither reasonable nor just and fair and it suffers from the vice of arbitrariness

and as such it offends Article 14 and Article 21 of the Constitution of India. (8) No

ordinary law made by any legislature can curtail or affect the jurisdiction of this

Court under articles 226 and 227 of the constitution of India and the

orders/directions given by the court from time to time in various cases are in no way

adversely affected by the abatement provision either under Section 9 of the Principal

Act or under Section 7-A of the Act introduced by the impugned amending Act. (9)

The Constitution is founded on nice balance of power among three wings of the

State, namely, the executive, the Legislature and the judiciary and by a legislative

fiat the power of the Courts to adjudicate on the validity of the laws made by the

Legislature vested in the Superior Courts under Articles 32 and 226 and 227 of the

Constitution of India cannot be taken away even by a constitutional amendment,

leave apart, by an ordinary law made by the Legislature. Once the rights of the

parties are crystallized under the Orders of the Courts exercising plenary powers,

the Legislature is incompetent to make any law setting at naught the effect of the

judgment and it cannot take away the rights accrued to the petitioners. (10) Only

Section 3 (1) of the amendment Act providing employment to the children of the

persons died in harness was given retrospective effect with effect from 28th

October, 1996 and the remaining provisions came into force from the date of

enactment. (11) Any Act which takes away or impairs vested rights acquired under

existing laws must be presumed to have been made prospectively unless respective

(sic. retrospective) effect is given to the legislation in saying the words in the Act

itself. (12) The temporary appointments of starving wages were necessitated due to

creation of these organizations without infrastructure or rules governing the service

conditions of the employees and without sanctioned staff strength. (13) It is too late

in the day to contend that all these petitioners were appointed indiscriminately

without following rules of procedure so on and so forth and in fact the government

encouraged this sort of appointment to wriggle out of its obligations to pay living

wages in the event the appointments are made following the rules of procedure.

More so, having realized the required funds from time to time and the pay bills, all

these organizations are subjected to both pre and post-audit.

( 109 ) HENCE, 1 hold the substituted proviso to Section 7 and newly introduced

section 7-A to Act No. 2 of 1994 by sections 4 and 5 of the Amending Act as illegal

and unconstitutional. As these two provisions have nothing to do with the other

provisions of the Amending Act 27 of 1998 and the other provisions of the amending

Act can be given effect to without reference to these provisions, only these two

sections of the amending Act are declared as invalid without touching the other

amendments introduced by amending Act No. 27 of 1998.

( 110 ) NEXTLY, on behalf of the State, it is contended by the learned Advocate

General that any appointments made on ad hoc basis do not confer any right. In

support of his contention, he relied upon the judgment in state of Haryana vs. Piara

Singh (infra ). Though their Lordships made some observations favourable to the

respondents, the result is more in favour of the petitioners than the respondents.

Further, that Judgment relates to the ad hoc appointments made in Government

department de hors the rules of recruitment whereas this batch of cases relate to

temporary appointments made in the instrumentalities of the State not governing by

any rules of recruitment. Hence I need not refer the judgment again.

( 111 ) THE learned Advocate General has next relied on the judgment of the

Supreme court in Surinder Singh Jamwal vs. State of j and k. The principle laid down

in this judgment cannot be made applicable to the petitioners in this batch of writ

petitions for the simple reason that in that case recruitment has to be made by

Public service Commission under the rules. Consequently, any ad hoc appointments

made by the appointing authority would be only temporary appointments de hors

the rules, pending regular recruitment, without conferring any right to regularization

of service. But in the present batch of cases, the service Commission is not the

recruiting agency, as they are instrumentalities of the state created by the State to

implement poverty alleviation scheme formulated by the Central and State

Governments from time to time and the appointing authority is no other than the

District head or head of the organisation. The only observation they can raise

against these appointments is that they were not sponsored by the employment

Exchange, but the stune was relaxed in G. O. Ms. No. 212. Further had they

resorted to these appointments by drawing the candidates from Employment

exchange, the respondents would have been preempted from paying starving wages

and they would have been compelled to pay time-scales of pay as they cannot send

requisition to Employment exchange to sponsor candidates for appointment on daily

wages. In fact in most of these instrumentalities of the State neither any rules were

framed for recruitment nor any cadre strength was fixed at the time when

appointments were made. Hence this judgment will not come to the aid of the State.

( 112 ) THE learned Advocate General further relied on the judgment of the

supreme Court in Ashwani Kumar vs. State of bihar. In this case eradication

tuberculosis was taken up as a part of 20-Point programme under planned

expenditure. While the Selection Committee was entrusted to recruit 2250 Class III

and class IV employees, the Committee recruited as many as 6,000 employees by

following pick and choose principle without following established procedure for

recruitment of Class III and Class IV employees. In those circumstances, their

lordships of the Supreme Court held that the employee whose entry in service is

illegal, being in total disregard of recruitment rules or being not on existing vacancy

has no case for regularization. As stated supra again the facts of this case are

different from the circumstances under which appointments have taken place in the

instrumentalities of the State in this State. Except stating that certain percentage

out of funds were allocated either by the State or the Centre towards administrative

expenses, there was neither any budgetary allotment nor any sanctioned posts leave

apart the rules governing recruitment in these organisations. As there was neither

cadre strength nor required monies to operate the scheme by paying full time scale

of pay, the authorities resorted to this unfair labour practice of appointment of the

graduates and post-graduates for Rs. 10. 00 or Rs. 20. 00 per day and reduced the

status of the literate unemployed, worse than that of manual labourers who depend

more on their physical energy than mental faculties to earn their livelihood. The

State having availed the services of these educated youth for so many years, cannot

throw them in lurch at this belated stage by stating that because of the financial

stringency they cannot regularize the services of these employees. I am sure that

almost all the ministerial and Class IV employees in these organisations are working

on ad hoc basis. If these employees are thrown out of employment, now, perhaps,

all the schemes have to be wound up as there would not be any man power left to

carry on day-to-day work in these organisations.

( 113 ) IN fact, in the above case, their lordships of the Supreme Court having

observed that it will be difficult to decide whether who has to be removed from the

employment out of the employees appointed over and above the employment

directed constitution of a Selection committee before whom the employees were

directed to appear and on the basis of the selection the required number of people

have to be continued in service and the rest of the employees have to be

terminated. Their Lordships further observed that as and when the Government

proposes to make appointment, in future the retrenched employees have to be

given preference by giving due weightage to the experience and training which they

have gained/received. In fact their Lordships have gone to the extent of observing

that if these erstwhile employees are appointed afresh, the entire proved period

during which they have worked as daily wager and/or confirmed employees will be

computed for the pensionary and other retiral benefits but not for seniority. Hence

this judgment is also in a way supports the case of the petitioners and of no avail to

the State.

( 114 ) THE learned Advocate General also brought to my notice another judgment

of the Supreme Court in State of Rajasthan vs. Dinesh Kumar Bhart. In that case the

respondent was appointed on ad hoc basis as teacher in 1970 and subsequently a

screening Committee was constituted to regularise the services of ad hoc teachers,

found that the respondent was not found fit to be confirmed. The suit filed by him

was decreed and the same was confirmed by the high Court. The trial Court as well

as the high Court decreed the suit by relying on rule 23-A of Rajasthan Service Rules

under which consultation of Public Service commission is required for termination of

services. Their Lordships of the Supreme court held that Section 23-A is not

applicable to the facts of the case, but at the same time, the appeal filed by the

State was dismissed on the ground of latches. On the other hand in a catena of

decisions since 1982 the Supreme Court interpreted the words ad hoc, stop-gap

and fortuitous which are being often used nowadays while making appointments to

deny the benefits that will flow from regular appointment and it is suffice to refer

the latest judgment of the Constitution Bench of the Supreme court in Rudra Kumar

Sain vs. Union of india. Their Lordships referred to the dictionary meaning of the

above terms and put a quietus to the controversy in the following terms. "the three

terms ad hoc, stop gap and fortuitous are in frequent use in service jurisprudence.

In the absence of definition of these terms in the rules in question we have to look

to the dictionary meaning of the words and the meaning commonly assigned to

them in service matters. The meaning given to the expression "fortuitous" in

strouds Judicial Dictionary is "accident or fortuitous casualty". This should obviously

connote that if an appointment is made accidentally, because of a particular

emergent situation and such appointment obviously would not continue for a fairly

long period. But an appointment made either under Rule 16 or 17 of the recruitment

Rules, after due consultation with the High Court and the appointee possesses the

prescribed qualification for such appointment provided in Rule 7 and continues as

such for a fairly long period, then the same cannot be held to be "fortuitous". In

Blacks Law dictionary, the expression "fortuitous" means "occurring by chance", "a

fortuitous event may be highly unfortunate". In thus, indicates that it occurs only by

chance or accident, which could not have been reasonably foreseen. The expression

"ad hoc" in blacks Law Dictionary, means "something which is formed for a

particular purpose". The expression "stop-gap" as per Oxford Dictionary, means "a

temporary way of dealing with a problem or satisfying a need".

( 115 ) FROM this it is evident that any ad hoc appointment or stop gap

appointment or fortuitous appointment can be made only in the circumstances

specified by their lordships of the Supreme Court in the above judgment. Admittedly

none of the petitioners were appointed in any of the contingencies pointed out by

the Supreme court in the above judgment and they are working continuously from

the date of their initial appointment over a decade or so.

( 116 ) ULTIMATELY in para 20 of the judgment their Lordships of the Supreme

court held thus:"in the service Jurisprudence, a person who possesses the requisite

qualification for being appointed to a particular post and then he is appointed with

the approval and consultation of the appropriate authority and continues in the post

for a fairly long period, then such appointment cannot be held to be "stop-gap or

fortuitous or purely ad hoc".

( 117 ) IN this batch of cases also though the State is contending that the

petitioners were appointed without sanctioned cadre strength or without following

the rules of procedure, they cannot contend that these appointments have taken

place without their knowledge and their approval as required funds are being

released by the state every year. Even assuming for a moment that the

appointments have taken place initially without obtaining prior permission, the very

fact that these temporary employees are continued for over a number of years, will

amply prove that these appointments are ratified by the state Government which

has to make budgetary allotment for payment of salaries to these petitioners.

Otherwise employees would not have been continued fairly for a long period, more

so when these institutions are subjected to pre-audit as well as post-audit. If the

appointments are irregular as contended by the State they would have given

necessary instructions to the appointing authorities concerned to terminate the

services of the temporary employees then and there itself. e. , at the earliest

opportunity, and they would not have allowed these employees to continue in

service, if they are found surplus or appointed without need in its opinion. The

matter can be viewed from another angle also. Under Section 3 (2) of Act 2 of 1994,

no temporary appointment can be made from the date, the Act came into force. But

the state started contending that the employees, who were appointed prior to that

date cannot have any claim for regularisation of their services, even though the Act

do not speak of the appointment made prior to 25-11-1993. But at the same time

neither the State Government nor the authorities concerned tried to terminate the

services of these temporary employees on the ground that their entry is either illegal

or not in accordance with the rules or they are being continued without any need till

they approached the Courts for regularization of their services. In fact under Section

11 of the Act a Review committee was constituted for fixing cadre strength apart

from recommending time-scales of pay. The Secretary of the committee who

appeared in person in this court categorically stated that they have not reviewed the

staffing pattern of any of the instrumentalities of the State. They have limited their

work only to the Government departments. From this it is seen that they have

neither terminated the services of the employees, which according to them are not

required to carry on the day-to-day affairs of these organisations or they have taken

steps to find out whether these employees are surplus as is being contended by

State now.

( 118 ) AT any rate, pursuant to the directions of the Supreme Court, the State

government framed a scheme for regularization of the temporary employees who

were appointed without reference of the Employment Exchange or without following

the rules of procedure subject to the terms and conditions specified therein. It is not

the case of the State Government now that they are not bound by the scheme

framed by them for regularization of the services. What all they say is that they will

regularize the services of those temporary employees who completed five years of

service as on 25-11-1993 but not others. In fact they have not even regularised the

services of those employees who fulfilled the conditions specified in the scheme as

seen from some of the cases on hand including the Respondent department in this

case. For all these reasons this contention also falls to ground.

( 119 ) NEXTLY the Advocate General contended that this Court cannot give a

direction to consider the cases of the applicants under the existing rules and a

direction to create posts is not permissible. Both these contentions are answered by

the apex Court. In per Piara Singhs case (infra), as well as the latest judgment of

the supreme Court in Rudra Kumar Jains case (supra) under which an obligation is

cast on the State to regularize the services of the temporary employees who are

working for over a number of years as there arises a presumption about the need

for their continuance in the service and the required posts have to be created

accordingly. Further, I have already dealt with the explanation to Rule 4 of A. P.

State and subordinate Service Rules, whereunder the state has taken a decision that

the posts which are existing over five years have to be treated as permanent.

( 120 ) ACCORDINGLY, these two contentions also falls to the ground.

( 121 ) NEXTLY, the learned Advocate general contended that no daily wage

employee can claim the wages in the time scale of pay or scale attached to the post

without regularization of the services and he relied on some cases. I need not refer

to them for the simple reason that the issue was dealt with in Food Corporation of

India and others vs. Shyamal K Chatterjee wherein their lordships categorically held

that a casual worker doing the same job is entitled to wages on par with class IV

employees of the Government undertaking. In fact this is the earliest view taken by

the Supreme court in Randhir Singh vs. Union of India. From that date till this date,

there is no change in the view taken by the Supreme court with regard to the

payment of time scales of pay attached to the posts to the temporary employees

and the ratio decidendi laid down by the Supreme Court is in consonance with

Article 39 (d) of the constitution of India which is fundamental in governance of the

country. Hence this contention is also rejected.

( 122 ) NEXTLY, the learned Advocate general contended that no vested right for

regularization will accrue to the temporary employees who are being continued in

employment under the interim orders of the court. This contention was raised by the

learned Advocate General forgetting the facts of the case. Admittedly almost all the

petitioners having completed five years of service as per the interpretation given by

this Court to G. O. Ms. No. 212 approached this Court for regularization of their

services when the Government is consistently refusing to regularise their services on

one pretext or the other and this court might have given interim directions to

preempt the authorities concerned from acting vindictively against the employees for

the sin of approaching the Court for regularization of their services. As stated supra,

this Court as well as the Supreme court, interpreted the scheme framed by the State

Government and held that every temporary employee appointed prior to 25-11-1993

on completion of five years service is entitled to claim regularization, the pre

requisite qualification under g. O. MS. No. 212 dated 22-4-1994. Only after a vested

right accrued in favour of temporary employees to get their services regularised as

per the decision in District collectors case (supra) they approached this Court and

obtained orders restraining the respondents from terminating their services

vindictively. Even now I am sure that the respondents can do nothing by terminating

the services of the petitioners unless they are going to close down their vote

catching devices which they cannot do as long as the present system of elections

are there.

( 123 ) LASTLY the learned advocate General contended that employment in

Government departments through Employment exchange as well as through open

advertisement is proper. In support of his contention he relied on the decision in

The excise Superintendent Machilipatnam Krishna district A. P. vs. KBN.

Visiveshwara Rao. It is suffice to state that while framing the scheme for

regularization of the temporary employees in G. O. Ms. No. 212 this condition was

relaxed and it is suffice if they comply with the conditions specified therein. In the

teeth of the above scheme, this Court will not take any contrary view than the

scheme formulated by the Government itself. Hence it is too late in the day to raise

this contention.

( 124 ) THE ostensible plea for raising all these untenable contentions is that in the

light of the law of the land as declared by the apex Court as well as this Court for

over two long decades is perhaps the financial stringency. The Supreme Court

repeatedly held that financial stringency cannot be a ground for refusing to

regularize the services of the temporary employees. In chief Conservator of Forests

vs.. M. Kondhare the Supreme Court held as thus:"in so far as the financial strain on

state exchequer is concerned, which submission is sought to be buttressed by Shri

Dholakia by stating that in the forests Department itself the casual employees are

about 1. 4 lakhs and if all of them were to be regularised and paid at the rate

applicable to permanent workmen, the financial involvement would be in the

neighbourhood of Rs. 300 crores a very high figure indeed. We have not felt inclined

to bear in mind this contention of Shri Dholakia as the same has been brought out

almost from the hat. The argument relating to financial burden is one of despair or

in terrorem. We have neither been impressed by the first nor frightened by the

second inasmuch as we do not intend that the view to be taken by us in these

applies should apply, proprio vigore, to all casual labourers of the forests

Department or any other department of the Government. We wish to say further

that if Shri bhandares submission is taken to its logical end, the justification for

paying even minimum wages could wither away, leaving any employer, not to speak

of model employer like the state, to exploit unemployed persons. To be fair to Shri

Bhandare it may, however, be stated that the learned counsel did not extend his

submission this far, but we find it difficult to limit the submission of Shri Bandare to

payment of, say fair wages, as distinguished from minimum wages. We have said

so, because if a pay scale has been provided for permanent workmen that has been

done by the state Government keeping in view its legal obligations and must be one

which had been recommended by the state Pay Commission and accepted by the

Government. We cannot deny this relief of permanency to the respondents workmen

only because in that case they would be required to be paid wages meant

for permanent workers. This right flows automatically from the relief of

regularization to which no objection can reasonably be taken, as already pointed

out. We would, however, observe that the relief made available to the respondents

is not one which would be available ipso facto to all the casual employees either of

the Forests department or any other Department of the State. Claim of casual

employees for permanency or for higher pay shall have to be decided on the merits

of their own cases. "

( 125 ) IN another decision in G. B. Pant university of Agriculture and Technology vs.

State of U. P. it was held thus:"in a faint attempt Mr. Trivedi wanted to introduce a

pragmatic approach to the problem and contended that the law Courts should

consider the matter from different angles applying practical experience and factual

contexts before arriving at the solution. It has been contended that the plea that the

financial implications would be rather much too heavy on the University to be borne

by it and unless State assistance is made available, it would a well nigh impossibility

to meet the burden, we are, however, unable to record our concurrence thereto.

Pragmatism does not necessarily be deprivation of the legitimate claims of the

weaker sections of the society. The submission, if we may say with respect, is totally

misplaced and does not warrant any further discussion thereon"

( 126 ) FOR all these reasons, the several contentions raised by the State have to

fail and accordingly they are rejected.

( 127 ) THIS leaves me with some incidental contentions raised by the learned

Advocate general against the relief sought for by the petitioners in these batch of

writ petitions.

( 128 ) THE learned Advocate General contended that these batch of writ petitions

are not maintainable in view of Sees. 7-A and 9 of Act No. 2 of 1994. In support of

his contention he placed reliance on a judgment of the Division Bench of this Court

in a. Sudershan vs. A. P. S. E. B. , represented by member-Secretary, Hyderabad. As

I have already taken the view that 1st priority to sec 7, 7 (A) introduced by

Amending Act no. 27 of 1998 is unconstitutional, this contention has to be rejected

outright. I have gone through the judgment cited by the learned Advocate General.

This judgment is based on Section 7 of Act 2/94 which came into force on 25-11-

1993. As much water has flown after this judgment, it has lost its relevance.

Further, this judgment cannot be treated as an authority as their Lordships simply

extracted section 9 of the Act without considering whether the Government is well

within its powers to make the claims of the individuals flown from the orders of the

high Court, Tribunal or other authorities, abated or nullified.

( 129 ) FIRSTLY, the validity of Act 2/94 was questioned by some of the temporary

employees directly before the Supreme court under Article 32 of the Constitution of

India. Pursuant to the observations made by the Supreme Court, the State

government framed a scheme in g. O. Ms. No. 212, dt. 22-04-1994 and the order

passed by the Supreme Court in g. Mallaiah and others vs. The State of Andhra

pradesh and others in Civil Appeal 21/94/ 159/94, dt. 02-09-1994 is extracted

hereunder:"during the pendency of these writ petitions the respondent State

government have prepared a scheme for regularization and has issued g. O. Ms. No.

212, dt. 22-04-1994 in that behalf. The learned Counsel for the state says that it has

been averted in the counter-affidavit that those petitions of these writ petitioners,

who are entitled to be regularized under the said G. O. , will be given the benefit

thereof. In view of this statement and in view of the issuance of the G. O. , the

learned Counsel for the petitioners also stated that nothing further survives but they

contend that the implementation process must be completed within a reasonable

time, say four months from today. The learned Counsel for the State, however, says

that now more time would be required for the purpose of completing the

regularization process. We think it would be reasonable to grant them six months

time to do so. The petitions will stand disposed of accordingly. "

( 130 ) FROM this it is seen that the State government has not only given a firm

commitment before the Supreme Court to regularise the services of those

petitioners who are entitled to be regularized under the said scheme, will be given

benefit thereon, but they also undertook to complete the exercise within 6 months

time. But unfortunately, the commitment given before the Supreme Court was not

complied with. From the very statement made by the State in the counter, it is seen

that out of 70,000 temporary employees, the services of only 5,000 employees were

regularized.

( 131 ) ON the other hand, in Maize Beedar agriculture Research Station,

Hyderabads case (supra) this Court categorically held that no ordinary law made by

any Legislature can curtail or affect the jurisdiction of this court under Articles 226

and 227 of the constitution of India.

( 132 ) THE dicta laid down in this case was again approved by the Supreme Court

in the Chief Conservator Forestss case (supra) which is to the following effect: "as

in the cases at hand the concerned workmen had, by the time they approached the

Industrial Courts for more or less 5 years continuously, no case for interference with

this part of the relief has been made out.

( 133 ) HENCE I am inclined to follow the later judgment wherein the powers of

legislature vis-a-vis the plenary powers that are being exercised by the

Constitutional courts under Article 226 of the Constitution of India, which is in

consonance with the preponderant judicial view of the superior courts of this

Country, than the judgment cited by the learned Advocate General. Accordingly, this

contention is rejected.

( 134 ) NEXTLY, the learned Advocate general contended that existence of

sanctioned posts is a condition precedent for filling up the posts on permanent

basis. Before adverting to the citation referred to by the learned Advocate General,

it is useful to mention that in these batch of writ petitions, I am dealing with the

regularization of the services of temporary employees working in various subsidiary

organizations floated by the State and the circumstances under which they were

brought into existence were already referred supra. Most of these organizations are

implementing popular schemes. In fact, the situation prevailing in each of the

corporations will be dealt with while dealing with the cases relating to these

organizations separately. For the present, it is suffice to state that most of these

organizations were brought in to existence either without any cadre strength or

minimal cadre strength and as the days passed by, due to increase of work load

most of the authorities are forced to make appointments on ad hoc basis by giving

different nomenclature and paying starvation wages to these employees as the ban

on recruitment is almost in force, from the later part of 1960s, both in Government

and other undertakings. The Supreme court deprecated the unfair labour practices

that are being followed by the state as well as its subsidiaries, in Gujarat electricity

Boards case (supra ). Their lordships have categorically held as thus:"apart from the

fact that it is an unfair labour practice, it is also an economically short sighted and

unsound policy, both from the point of view of the undertaking concerned and the

Country as a whole. The economic growth is not to be measured only in terms of

production and profit. It has to be gauged primarily in terms of employment and

earnings of the people. "the Andhra Pradesh State and Subordinate services Rules

are not applicable to the petitioners in these writ petitions. But the intention of the

State Government on the cadre strength can be gathered from the explanation to

Rule 4 relating to regular appointment. e. , (1) Direct recruitment, (2)

Recruitment/appointment by transfer (3) Promotion, or (4) Contract/agreement/ reemployment. Explanation to Rule 4 (1) is extracted hereunder: explanation: (1) For

the purpose of this rule, notwithstanding anything contained in these rules or special

or ad hoc rules, substantive vacancies shall mean all vacancies in the permanent

cadre and all vacancies in the posts which have been in existence for more than 5

years.

( 135 ) FROM this it is seen that if a post is in existence for more than 5 years, it has

to be treated as a substantive post. Viewed from that angle, as almost all the

petitioners are working for more than 5 years, these posts have to be treated as not

only permanent posts but as sanctioned posts. Now I will refer to the judgment

cited by the learned advocate General in State of Haryana vs. Piara Singh which is

more in favour of the petitioners than supporting the contention of the learned

Advocate General. The relevant portion of the judgment in paras 12, 17 and 19 is

extracted as hereunder:"as would be evident from the observations made and

directions given in the above two cases, the court must, while giving such directions

act with due care and caution. It must first ascertain the relevant facts, must be

cognizant of the several situations and eventualities that may arise on account of

such directions. A practical and pragmatic view has to be taken, inasmuch as every

such direction not only tells upon the public exchequer but also has the effect of

increasing the cadre strength of a particular service, class or category. Now, take

the directions even in the judgment under appeal. Apart from the fact that the High

court was not right - as we shall presently demonstrate in holding that several

conditions imposed by the two governments in their respective orders relating to

regularization are arbitrary not valid and justified - the high Court acted rather

hastily in directing wholesome regularization of all such persons who have put in one

year service, and that too unconditionally. We may venture to point out the several

problems that will arise if such directions will become the norm: (a) Take a case

where certain vacancies are existing or expected and steps are taken for regular

recruitment either through Public Service commission or other such body, as the

case may be. A large number of persons applied. Inevitably there is bound to be

some delay in finalizing the selections and making the appointments. Very often the

process of selection is stayed or has to be re-done for one or the other reason.

Meanwhile the exigencies of administration may require appointment of temporary

hands. It may happen that these temporary hands are continued for more than one

year because the regular selection has not yet been finalized. Now according to the

impugned direction, the temporary hands completing one years service will have to

be regularized in those posts which means frustrating the regular selection. There

would be no post left for regularly selected persons even if they are selected. Such

cases have indeed come to this Court from these very two States. (b) In some

situations, the permanent incumbent of a post may be absent for more than a year.

Examples of this are not wanting. He may go on deputation, he may go on Faculty

improvement Programme pending enquiry into charges against him and so on.

There may be any number of such situations. If a person is appointed temporarily in

his place and after one year he is made permanent where will the permanent

incumbent be placed on his return Two persons cannot hold the same post on a

regular or permanent basis. (c) It may also happen that for a particular post a

qualified person is not available at a given point of time, pending another attempt of

selection later on an unqualified person may be appointed temporarily. He may

continue for more than one year. If he is to be regularized, it would not only mean

foreclosing of appointment of a regular qualified person, it would also mean

appointment of an unqualified person. (d) Such directions have also the effect of

disregarding and violating the rule relating to reservation in favour of backward class

of citizens made under Article 16 (4 ). What can be done directly cannot be allowed

to be done in such indirect manner. (e) Many appointments may have been made

irregularly as in this case - in the sense that the candidates were neither sponsored

by the Employment Exchange nor were they appointed after issuing a proper

advertisement calling for the applications. In short, it may be a back door entry. A

direction to regularize such appointments would only result in encouragement to

such unhealthy practices. These are but a few problems that may arise, if such

directions will become the norm. There may be many such and other problems that

may arise. All this will only emphasize the need for a fuller consideration and due

circumspection while giving such directions. . . . . Now coming" to the direction that

all those ad hoc /temporary employees who have continued for more man one year

should be regularized, I find it difficult to sustain it. The direction has been given

without reference to the existence of a vacancy. The direction in effect means that

every ad hoc/ temporary employee who has been continued for one year should be

regularized even though (a) no vacancy is available for him which means creation of

a vacancy (b) he was not sponsored by the Employment exchange nor was he

appointed in pursuance of a notification calling for applications which means he had

entered by a back-door (c) he was not eligible and/or qualified for the post at the

time of his appointment (d) his record of service since his appointment is not

satisfactory. These are in addition to some of the problems indicated by us in para

12, which would arise from giving of such blanket orders. None of the decisions

relied upon by the High Court justify such wholesale, unconditional orders.

Moreover, from the mere continuation of an ad hoc employee for one year, it cannot

be presumed that there is need for a regular post. Such a presumption may be

justified only when such continuance extends to several years. Further, there can be

no rule of thumb in such matters. Conditions and circumstances of one unit may

not be the same as of the other. Just because in one case, a direction was given to

regularize employees who have put in one years service as far as possible and

subject to fulfilling the qualifications, it cannot be held that in each and every case

such a direction must follow irrespective of and without taking into account the

other relevant circumstances and considerations. The relief must be molded in each

case having regard to all the relevant facts and circumstances of that case. It cannot

be a mechanical act but a judicious one. Judged from this stand point, the impugned

directions must be held to be totally untenable and unsustainable. . . . . . The High

Court has also directed that all those employees who fall within the definition of

workmen contained in the Industrial Disputes Act will also be entitled to

regularisation on par with the work-charged employees in whose case it is directed

that they should be regularized on completing five years of service in Punjab and

four years of service in Haryana. This direction is given in favour of those casual

labourers and daily wagers who fall within the definition of workmen. In so far as

work-charged employees, daily wage workers and casual labourers who do not fall

within the definition of workmen are concerned, the High Court had directed their

regularization on completion of one years service. We find this direction as

untenable as the direction given in the case of ad hoc/ temporary employees. In so

far as the persons belonging to the above categories arid who fall within the

definition of workmen are concerned, the terms of such directions have been given

by the High Court cannot be sustained. While we agree that persons belonging to

these categories continuing for over number of years have a right to claim

regularization and the authorities are under an obligation to consider their case for

regularization in a fair manner, keeping in view the principles enunciated by this

Court. The blanket direction given cannot be sustained. We need not, however,

pursue this discussion in view of the orders of the government of Haryana contained

in the letter dated 06-04-1990 which provides for regularization of these persons on

completion of ten years. We shall presently notice the contents of the said letter. In

view of the same, no further directions are called for at this stage. The Government

of Punjab, of course, does not appear to have issued any such orders giving these

categories. Accordingly, there shall be a direction to the Government of punjab to

verify the vacancy position in the categories of daily wagers and casual labour and

frame a scheme of absorption in a fair and just manner providing for regularization

of these persons, having regard to their length of service and other relevant

conditions. As many persons as possible shall be absorbed. The scheme shall be

framed within six months from to-day. "

( 136 ) IT is true that their Lordships in para 22 observed that the Court must, while

giving directions should act with due care and caution, it must first ascertain the

relevant facts, and must be cognizant of several situations and eventualities that

may arise on account of such directions. A practical and pragmatic view has to be

taken, inasmuch as every such direction not only tells upon the public exchequer but

also has the effect of increasing that cadre strength of a particular service, class, or

category.

( 137 ) IN para 17 their Lordships observed that just because in one case, a

direction was given to regularize the employees who have put in one years service

as far as possible and subject to fulfilling the qualifications, it cannot be held that in

each and every case such a direction must follow irrespective of and without taking

into account the other relevant circumstances and considerations. The relief must be

moulded in each case having regard to all the relevant facts and circumstances of

that case. It cannot be a mechanical act but a judicious one.

( 138 ) IN para 19 their lordships reversed the directions given by the High Court by

observing that while we agree that persons belonging to these categories continuing

over a number of years have a right to claim regularization and the authorities are

under an obligation to consider their case for regularization in a fair manner,

keeping in view the principles enunciated by this court, the blanket direction given

cannot be sustained.

( 139 ) IN para 10 of the judgment their lordships observed as follows:"ordinarily

speaking, creation and abolition of a post is the prerogative of the Executive. It is

the Executive again that lays down the conditions of service subject, of course, to a

law made by the appropriate Legislature. This power to prescribe the conditions of

service can be exercised either by making Rules under the proviso to article 309 of

the Constitution of India or (in the absence of such Rules) by issuing

Rules/instructions in exercise of its executive power. The Court comes into the

picture only to ensure observance of fundamental rights, statutory provisions, Rules

and other instructions, if any, governing the conditions of service. The main concern

of the Court in such matters is to ensure the Rule of law and to see that the

executive acts fairly and gives a fair deal to its employees consistent with the

requirements of Articles 14 and 16. It also means that the State should not exploit

its employees nor should it seek to take advantage of the helplessness and misery of

either the unemployed persons or the employees, as the case may be. As is often

said, the State must be a model employer. It is for this reason, it is held that equal

pay must be given for equal work, which is indeed one of the directive principles of

the constitution. It is for this very reason it is held that a person should not be kept

in a temporary or ad hoc status for long. Where a temporary ad hoc appointment is

continued for long the court presumes that there is need and warrant for a regular

post and accordingly directs regularisation. "

( 140 ) FROM this it is evident that the Court should be cautious in giving directions

duly keeping in mind the eventualities that may arise on account of such directions.

The state which is a model employer, cannot exploit its employees nor should it

seek to take advantage of the helplessness and misery of either the unemployed

persons or the employees as the case may be. In para 25 of the judgment while

summarizing the directions given in the judgment, their lordships categorically

observed as follows:"so far as the work-charged employees and casual labour are

concerned, the effort must be to regularize them as far as possible and as early as

possible subject to their fulfilling the qualifications, if any, prescribed for the post

and subject also to availability of work. If a casual labourer is continued for a fairly

long spell - say two or three years -presumption may arise that there is regular need

for his services. In such a situation, it becomes obligatory for the concerned

authority to examine the feasibility of his regularization. While doing so, the

authorities ought to adopt a positive approach coupled with an empathy for the

person. As has been repeatedly stressed by this court, security of tenure is

necessary for an employee to give his best to the job. In this behalf, we do

commend the orders of the Government of Haryana (contained in its letter dated

06-04-1990 referred to herein before) both in relation to work charged employees

as well as casual labour".

( 141 ) FROM this it is evident that though the Lordships of the Supreme Court left a

word of a caution in giving blanket directions for regularisation of the services of

temporary employees, observed that the relief must be moulded in each case by

taking judicial note of the relevant facts and circumstances of that case. At the same

time, their Lordships emphasized the need that tl State being a model employer,

shall not exploit its employees nor it should take advantage of the helplessness and

misery of either of the unemployed persons or employees as the case may be.

Further, in so many words, their Lordships declared that the of work charged

employees and casual labour, if they are continued for a fairly long spell - say two or

three years - a presumption will arise that there is regular need for their services. In

this case also, most of the petitioners are employed as work charged employees or

casual workers in the Governmental undertakings without there being any

sanctioned ca ire strength and they are working not for one or two years, but for

decades. In fact, when the sorry state of affairs were brought to the notice of the

Supreme Court by filing a writ petition under Article 32 of the Constitution of India,

questioning the virus of Act 2/94, the State Government promptly came up with a

scheme and gave a firm commitment that it will regularize the services of all the

temporary employees who have completed 5 years of service as on 25-11-1993,

subject to the terms and conditions mentioned in g. O. Ms. No. 212.

( 142 ) IN this batch of writ petitions, the court is called upon to adjudicate the

apathy that is being shown by the government in not regularizing the services of not

only the temporary employees who have completed five years of service as on 25-

11-1993, but also those persons who are appointed prior to that date but not

completed five years as on the cut-off date and continued in service as on to-day.

This court has interpreted the cut-off date mentioned in G. O. Ms. No. 212 and held

that all the temporary employees appointed prior to 25-11-1993 are entitled to

regularization as and when they complete 5 years of service and the said view taken

by this Court was upheld by the Supreme court in District Collector/chairmans case

(supra) and in Rambabus case (supra) while the First Judgment is after Amending

act 3/98, the second judgment is after act 27/98.

( 143 ) HENCE, I have no hesitation to reject this contention of the learned Advocate

general that a sanctioned post is a precondition for regularising the services of

temporary employee.

( 144 ) THE learned Advocate General brought to my notice another case in The

state of U. P. and others vs. U. P. Madhyamik shiksha Parishad Shramik Singh and

another. Their Lordships of the Supreme Court held as follows:"the exigencies of the

administration and the need for the creation of number of posts are matters of

executive policy by the appropriate government. It is stated in the Special leave

Petition filed in this Court that during the examinations conducted by the Board,

when the exigencies demand for doing the manual work like lifting of bundles,

pasting of envelopes and shifting of answer, books etc. , the daily wagers are

engaged and a sum of Rs. 25. 00 per day was being paid as fixed by the District

magistrates of Allahabad under the minimum Wages Act. Unless the posts are

created, they are not entitled to be fitted into any regular post. . . . . It is stated in

paragraph 5 (h) of the s. L. P. that the Board has been regularizing daily wagers in

class IV service as and when the post is created or falls vacant, on the basis of

length of engagement of the daily wagers and performance of the work. The

procedure so adopted is fair. Under these circumstances, we think that the

appropriate course would be that as and when regular posts are created or falls

vacant, on the basis of length of engagement of the daily wagers and performance

of the work. The procedure adopted is so fair. Under these circumstances, we think

that the appropriate course would be that as and when regular posts are created or

posts fall vacant, these daily wage employees, on the basis of their seniority, length

of service and performance of work, may be considered for regularization according

to rules and rules of reservation in vogue. Until then their services will be taken as

and when exigencies would arise and payment of daily wages made as determined

by the District Magistrate from time to time. "

( 145 ) THOUGH on facts and circumstances of the case Their Lordships refused to

fit in the employees in the regular cadre, it is made clear that as and when regular

posts are created or posts fall vacant, only daily wagers have to be absorbed on the

basis of seniority, etc. But in this case, the State government has taken an

unreasonable stand that it will not regularize the services of the employees who

have not completed 5 years of service as on 25-11-93 and they have gone to the

extent of stating that all the claims of the temporary employees flown from the

orders of competent Courts shall stand abated. Such a stand on the part of the

welfare State cannot be sustained in law apart from being violative of the basic

structure of the Constitution. e. , erosion of doctrine of separation of powers under

the constitution.

( 146 ) THE third case that is cited by the learned Advocate General is State of

haryana vs. Jasmer Singh and others.

( 147 ) IT is true, in this case, their lordships have taken the view that the persons

employed on daily wages cannot be treated on par with persons in regular services

of the State of Haryana holding similar posts on the ground that daily rated workers

are not required to possess the qualifications prescribed by regular workers nor they

do have at the time of recruitment apart from the fact that they are not selected in

the manner in which regular employees are selected. At the same time, their

lordships categorically noted the undertaking given by the State in para 12 of the

judgment to the following effect:"the appellants have fairly stated that the

Government of Haryana has, from time to time, issued notifications for

regularization of daily rated workmen such as the respondents, on the basis of a

policy decision taken by it to regularize the services of such employees as may be

specified. "

( 148 ) FIRSTLY, I am of the opinion that the facts and circumstances of that case

are altogether different from the facts of the cases on hand. It is not a case that the

daily rated workers are not having the qualifications nor they are subjected to any

transfer. In fact, G. O. Ms. No. 212 has taken care of all the eventualities and only

such of those persons who fulfilled those qualifications alone are eligible for

regularisation but not all the temporary employees. Be that as it may, again, in that

case, the Government of Haryana is formulating the schemes from time to time to

regularize the services of the temporary employees. In this case, the Government

has closed its eyes to the realities and went on amending the Act to nullify the

judgments that are being given by the courts which is not only unconstitutional but

unethical apart from abdicating the functions of a State under the Constitution which

has to formulate the policies not only for the creation of production of wealth, but

also employment potential to the citizens of this Country. Hence all these three

judgments cited by the learned Advocate general will not come to the aid of the

State in negativing the claims of the petitioner.

( 149 ) LASTLY, the learned Advocate general contended that at the worst the court

can give a direction to the respondents to consider their cases for regularization, but

it cannot issue a mandamus to regularize the services of the temporary employees.

As the Government has already considered the issue of regularization of the services

of the temporary employees, any direction to consider the cases of the temporary

employees is only a futile one.

( 150 ) THIS issue came up for consideration in a recent judgment of the supreme

Court in Badrinath vs. Government of Tamil Nadu and others. While rejecting a

similar contention raised by the learned senior Counsel appearing for the

government of Tamil Nadu that it is not the province of the Court to issue a

Mandamus to promote the appellant to the super-time scale nor to assess his

grading, their lordships observed in paragraph (84) as follows:"we may, however,

point out that it is not as if there are no exceptions to this general principle. The

occasions where the Court issued a writ of certiorari and quashed an order and had

also issued a Mandamus at the same time to the State or public authority could be

very rare but we might emphasise that the power of this Court to mould the relief in

the interests of justice in extraordinary cases cannot be doubted. "

( 151 ) HAVING surveyed the case law on the aspects, their Lordships issued a writ

of mandamus directing the respondents to promote the appellant to super-time

scale. It is useful to extract paragraphs (86) and (87) of the said judgment, which

are as follows:" (86 ). In the light of the above precedents, we have considered

whether this is a fit case here this court should issue a Mandamus or remit the

matter back to the State government. After giving our anxious consideration to the

facts of the case, we are of the view that having regard to our findings on Points 1

to 5 and to the continuous unfair treatment meted out to the appellant by the State

of tamil Nadu- even as accepted by the central Government in its comments - this is

a pre-eminently fit case requiring the issue of a Mandamus. We are, therefore,

constrained to exercise all the powers of this Court for rendering justice and to cut

short further proceedings. The consideration of the appellants case for the said

promotion has been hanging fire and going up and down for the last twenty-five

years. Disgusted with the delays, the appellant has also taken voluntary retirement.

In the light of our decision on Points 1 to 5, we declare the censure on the fourth

case as void and without jurisdiction and in the alternative also as liable to be

quashed under Wednesbury principles. The adverse remarks of bygone years prior

to 1972 have lost all their sting. The positive factors in the appellants favour both

recorded (at the compulsion of the Central government) and others to which we

have referred to earlier as meriting consideration are, in our opinion, sufficient to

entitle him for promotion to the super-time scale. The appellants case is, in our

view, no less inferior to the cases of the other officers who were conferred the

similar benefit of super-time scale by the State of Tamil nadu, details of which have

been profusely given in the writ petition. For the aforesaid reasons, we quash the

punishment of censure, the assessment made by the Joint screening Committee, the

orders passed by the State and Central government refusing to grant him supertime

scale and in rejecting the appeal of the appellant and we further direct as

follows: (87) In the special and peculiar circumstances of the case, we direct the

respondents to grant the appellant the benefit of the super-time scale from the date

on which the appellants junior Sri P. Kandaswamy was granted super-time scale.

The respondents are accordingly directed to pass an order in this behalf within eight

weeks of the receipt of this order and to give him all consequential benefits

attendant thereto. The said benefits shall also be reflected in his pension and other

retrial benefits. They shall be worked out and paid to him within the time

aforementioned. "

( 152 ) KEEPING the principles laid down by the apex Court in the above case, I feel

that no useful purpose will be served in again directing the respondents to consider

the claims of the petitioners who were appointed prior to 25-11-1993 and continuing

as such all these years, as the government is in no mood to regularise the services

of these employees even going to the extent of defying the orders of this court by

inventing new grounds. To my mind it appears that the executive knowing fully well

the law of the land as declared by the Supreme Court they are just trying to

postpone the evil day to avoid payment of living wages to them. Hence, instead of

giving a direction to the Government, I am inclined to issue a writ of Mandamus

directing the respondents to regularise the services of (1) the temporary employees

who have completed five years of service as on 25-11-1993 from that date and (2)

the temporary employees appointed prior to 25-11-1993 and continuing as such on

the cut-off date as and when they complete five years of service and extend all

benefits, without insisting for existence of clear vacancy as contemplated under

Clause 5 of the said G. O. Ms. No. 212 duly observing the rule of reservation in

favour of the reserved categories. If the persons belonging to the reserved

categories are not available to fill up the roaster point, they shall carry forward that

vacancy and the backlog vacancy has to be filled up in the next recruitment. On

such regularisation, the petitioners are entitled to count their service for all purposes

like seniority and terminal and pensionary benefits as are being enjoyed by the

regular employees of the instrumentalities of the State. However, the monetary

benefit in the time scale of pay to these petitioners is limited from 01-01-2001 if

they are not already drawing the time scale of pay either under the interim orders of

this Court or under the orders of the appointing authority. The respondents are

given 12 weeks time to pay the arrears of salary.

( 153 ) COMING to the factual back ground relating to the temporary appointments

in a. P. Womens Cooperation Limited, hyderabad, respondent in these batch of writ

petitions, the petitioners who are working in different categories of employment in

the respondent Corporation for several years excepting two or three individuals who

were appointed after the cut-off date. e. , 25-11-1993, filed these writ petitions

seeking regularisation of their services and for payment of regular scales of pay

attached to the posts in which they are working. The bye-laws that were framed in

the year 1975 governing the management of the Corporation underwent some

changes in the year 1998 and as per the bye-laws that are in existence, the

corporation was registered as a co-operative society under the provisions of a. P.

Co-operative Societies Act (Act 7 of 1964) in the year. e. , about 25 years back, with

a laudable objective of undertaking economic upliftment of women in the State.

Though as many as 14 activities have been identified for emancipation of the

women in the State, perhaps, I have my own doubts about the implementation of

the programmes enshrined in bye-law 3 of the bye-laws of the Corporation.

( 154 ) BYE-LAW No. 3 as mentioned in 1998 reads as follows:"the primary duty of

the Corporation is to undertake economic upliftment of women in the State. The

objects of corporation shall therefore be as follows: (i) The Corporation shall plan,

promote, undertake and assist programmes of agricultural development, animal

husbandry, marketing, processing, supply and storage of agricultural products, small

scale industry, village industry, cottage industry, trade business or any other activity

which will enable its members to earn better living and help them improve their

standard of living. (ii) To undertake a massive programme of employment oriented

activities in Agro-Industries, village Industries, cottage and Small Scale Industries,

khadi and Village Industries programme, by giving Training programmes for Skill

development, to provide technical know-how, managerial assistances financial

assistance and any other form of assistance which may be required in achieving the

objective of Self-reliance, empowerment. (iii) To provide working capital to the

members by advancing loans and cash credits. (iv) To coordinate, supervise and

control activities of affiliated societies and individual members indebted to the

Corporation of who obtained supplies and services from the Corporation. (v) To act

as the Agent of the government for procurement supply and distribution of

agricultural or other produce or other goods as and when required to do so. (vi) To

provide facilities for survey, research or study of the problems relating to cottage

and village industries, small business to assess potentialities of village cottage and

small scale industries and scope of their development with a view to promote such

industries and business for the purpose of providing employment in its members

especially the occupational groups among them. (vii) To arrange for publicity and

marketing of the finished products manufactured by the members if necessary by

opening show rooms, emporiums, exhibitions etc. , (viii) To invest or deposit surplus

funds of the Corporation in accordance with Section 46 of Andhra Pradesh

cooperative Societies Act, 1964. (ix) To issue bonds and debentures for raising

resources for fulfilling any of the objective of the Corporation. (x) Generally to

purchase, take on lease in exchange, hire or otherwise acquire, any real and

personal property and any rights or privileges which the Corporation may think

necessary, any or convenient for the purpose of its business and in particular and

land buildings easements machinery plant and stock in trade. (xi) To rent or own

godowns or undertake construction of godown on behalf of affiliated Societies, to

facilitate the grant of loans to members and the sale of their product or storage of

raw materials and manufactured goods. (xii) To provide for the Welfare of persons

in the employment of the corporation and families including wives, widows of such

persons by establishing provident or other funds, by grant of money, pensions or

other, payments towards educational and medical relief. (xiii) To encourage self,

help thrift and cooperation among the affiliated societies and their members. (xiv)

To do all other things as are incidental to or conducive to the attainment of the

above objects.

( 155 ) UNDER bye-law 10, the management of the Corporation vested in Board of

directors mentioned therein. Under bye-law 29, the Board is empowered to make

recruitment and prescribe the conditions of service to various posts in the

Corporation and to fix the scales of pay and allowances to be paid to the Officers or

employees of the Corporation. Special bye-laws governing the conditions of service

have to be approved by the General Body and the same have to be registered by

the Registrar of the Cooperative Societies. But unfortunately, the Corporation did not

frame any bye-laws with regard to recruitment, qualifications, cadre strength, scales

of pay for several years. In these circumstances, some employees of the corporation

filed writ petitions seeking writ of mandamus declaring the action or the Corporation

in not regularizing their services and in not paying the regular scales of pay attached

to the posts in which they are working. The writ petitions viz. , W. P. Nos.

17938,17947 and 17961 of 1996, 32196 and 32589 of 1997 were allowed by this

court and a writ mandamus was issued to the respondents to create regular posts

and absorb the petitioners therein in the posts held by them on regular basis as

early as possible at any rate not exceeding four months from the date of receipt of

the order and in the mean time they shall pay the minimum salary in the time scale

of pay attached to those posts from the date of filing of the writ petitions. The

Corporation filed Writ Appeal Nos. 334, 340 and 341 of 1997, 771 of 1999

unsuccessfully. Thereafter, they carried the matter to the Supreme court in Civil

Appeal Nos. 1959 to 1961 of 1998 and 11905 of 1999 which were dismissed by the

Supreme Court. The respondent Corporation having lost the civil Appeals framed the

bye-laws governing the service conditions of the employees and after obtaining the

approval of the General Body, these special bye-laws were forwarded to the

Registrar of Co-operative societies for their registration and to the Government for

approval as the government happened to be the funding agency for the activities

that are being carried on by the Corporation. Neither the registrar registered the

said bye-laws nor the Government has taken any decision either to approve or

disapprove the bye-laws framed by the Corporation. With the result, as on to-day,

the Corporation is functioning for the last quarter century without there being any

bye-laws governing the service conditions of the employees and without fixation of

cadre strength and the Corporation has resorted to making appointments on

consolidated basis all these years. From the particulars furnished by the parties, it is

seen that most of the employees have completed five years as on 25-11-1993 and

their services have to be regularized as per the scheme formulated in G. O. Ms. No.

212, dated 22-04-1994. But the Corporation did not choose to do so. Even if the

Amendment act 27 of 1998, which is declared to be unconstitutional, is held to be

good, most of the employees have to be regularized under g. O. Ms. No. 212, only

in case of the employees who are appointed prior to 25-11-1993 and who did not

complete five years of service as on that date, the government may take shelter

under the amendment Act. But as per the interpretation placed on the scheme

formulated by the Government, by this court as well as the Apex Court, the

employees who were appointed prior to 25-11-1993 are entitled to get their services

regularized with all consequential benefits as and when they have completed five

years of service vide District Collector/ chairmans case (supra ). Consequent upon

the regularisation of their services they are entitled to get the service counted for

seniority and other attendant benefits. But the monetary relief is restricted from the

date of filing of the writ petitions. In other words, the arrears of salary will have to

be paid with effect from the date of filing the writ petitions. The orders passed

rejecting the proposals sent by the Corporation for regularisation of the services of

their employees on the ground that there are no existing vacancies are quashed as

the question of existence of vacancies would not arise when there was no cadre

strength fixed and when there was no service rules framed coupled With the fact

that the petitioners are working for more than a decade.

( 156 ) THE writ petitions are accordingly allowed. No costs.