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CASE NO.: Appeal (civil)  2455 of 1999

PETITIONER: The Divisional Manager, APSRTC & Ors.            

RESPONDENT: P. Lakshmoji Rao & Ors.                                  

DATE OF JUDGMENT: 22/01/2004

BENCH: S. RAJENDRA BABU & P. VENKATARAMA REDDI.

JUDGMENT: JUDGMENT

With

CIVIL APPEAL Nos. 3017, 5881 & 4855 of 1999

P. Venkatarama Reddi, J.

These cases involving the issue as to the effective date  of regular appointment and seniority unfold certain  disturbing features\027non application of mind by the High  Court to the crucial aspects of the case, vagueness of the  directions issued, the deficiency of pleadings and material  placed on record by the contending parties and above all the  default of the appellant-Corporation in allowing other similar  orders becoming final while contesting certain others  including the present matters. The undisputed facts common to all these cases may  be noticed: Pursuant to the advertisements made by the appellant- Corporation (hereinafter referred to as ’APSRTC’), the  respondents were selected as conductors and appointed on  daily-wages initially for a certain period of time and  thereafter their services were extended on the same terms  and ultimately regularized after a year or two. They were  placed on time scale of pay and their seniority was counted  from the date of such regularization. Long afterwards, the  respondents filed writ petitions contending that their  services ought to have been regularized from an anterior  date i.e., from the date of their initial appointment on daily- wage basis and the service benefits should be granted  accordingly. This prayer was practically granted by the High  Court with a rider that they should have completed one year  of continuous service as defined in Section 25B of the  Industrial Disputes Act. There was practically no discussion  on the merits in any of these cases either in the judgments  under appeal or the earlier judgments which were followed  in the instant cases. All the writ appeals were disposed of at  the admission stage itself. One more fact to be noticed is  that no averment has been made nor any material placed  before us to establish that the judgments which were  followed in these cases or similar judgments in certain other  cases have been contested by APSRTC by filing LPAs or  SLPs. Now, we will advert briefly to the facts in each of these  appeals.

Civil Appeal No. 2455 of 1999

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       Pursuant to the advertisement issued by APSRTC  calling for the applications for the posts of Conductors in  Visakhapatnam, Vizianagaram and Srikakulam regions, the  respondents were selected and appointed as Conductors on  daily-wage basis in October, 1987. They joined the service  on various dates between 16.10.1987 and 12.12.1987. The  services of the respondents were regularized with effect  from 15.2.1989. It is to be mentioned that the order  appointing them on daily-wages and on regular basis is not  on record. The respondents filed writ petition in the year  1997 in the High Court of A.P. alleging that certain persons  employed by the private bus operators and absorbed into  Corporation service after nationalization of the routes,  though appointed later on i.e., after 12.12.1987, were  shown as seniors to the respondents in the seniority list (the  date of which is not mentioned). Thus, according to the  respondents, they were made juniors to the displaced  employees who were appointed subsequently. It does not  appear that any counter-affidavit was filed in the Writ  petition. The stand of the appellant as seen from the  grounds in the Writ appeal is that the respondents were  appointed on daily-wage basis after selection in order to  cope up with the peak season demands between January  and July and their services were regularized as and when  vacancies arose. The details of the vacancies that had arisen  were however not spelt out. The reason for offering  appointment to the respondents on regular basis with effect  from 15.2.1989 is not specifically mentioned either in the  memorandum of Writ appeal or the SLP. The learned single  Judge allowed the writ petition of the 50 respondents  directing regularization in the posts of Conductors  "reckoning continuous service of the writ petitioners as  envisaged in Section 25B of the Industrial Disputes Act for  the purpose of benefits of service". On appeal by APSRTC,  the Division Bench dismissed the same on the ground that  "on the appellants’ own showing, the matter is covered in  terms of the earlier order in writ appeal No. 705 of 1995".  We will be adverting to the order in W.A. 705 of 1995 a little  later.

Civil Appeal Nos. 3017 and 5881 of 1999         There are three respondents in these appeals.  The two  respondents in Civil Appeal No. 3017 of 1999 were  appointed as casual Conductors on 15.12.1983 on daily- wage basis after due selection in Cuddapah region of  APSRTC and they reported for duty on 19.12.1983. Their  services were regularized with effect from 6.4.1985. The  respondents filed the writ petitions in the year 1998 seeking  regularization with effect from 19.12.1983 instead of  6.4.1985 and praying for all benefits of service with  reference to the said date of their initial appointment. The  respondent in Civil Appeal No. 5881 of 1999 was appointed  on 3.4.1984 as a casual Conductor in Cuddapah region after  due selection and his services were regularized with effect  from 21.3.1986. He prayed for a similar direction to treat  the effective date of regularization as 3.4.1984 instead of  21.3.1986. The learned single Judge dismissed both the writ  petitions (filed in the year 1998) on the ground of  unexplained delay in approaching the Court and non joinder  of necessary parties whose seniority was likely to be  affected. On appeal by the writ petitioners, the Division  Bench set aside the order of the learned single Judge and  directed the Corporation to consider the cases of the writ  petitioners for regularization "notionally, with effect from the  date they were entitled to" with a further observation; "it is

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made clear that the appellant should be given the same  benefits which have been granted by the respondents in  respect of similarly situated persons". The learned Judges of  the Division Bench noticed that in writ petition No. 26111 of  1998, which was disposed of by another learned single  Judge, there was no opposition by the Corporation and  therefore it was not fair on the part of the Corporation to  raise the technical ground of latches in respect of similarly  situated employees. It may be mentioned that in W.P.No.  26111 of 1998, the learned single Judge directed  regularization with effect from the date of initial  appointment purportedly following the decision of Division  Bench in APSRTC Vs P.T. Rao [1998 2 ACT 447]. There  was in fact no concession on merits in that case. It is not  known whether any writ appeal was filed against the order  in W.P.No. 26111 of 1998.

Civil Appeal No. 4855 of 1999         The four respondents in this appeal were recruited on  daily-wage basis as casual Conductors after due selection  and offered appointment in Governorpet depot of  Vijayawada region in June/July, 1991. Their services were  regularized in January/August, 1994. Claiming regularization  on completion of 240 days of continuous service and placing  reliance on the decision in Writ Appeal No. 705 of 1995, they  filed writ petition in the year 1997. The writ petition was  disposed of on 1.10.1997 with a direction to the respondents  to consider the case of the petitioners for regularization as  per the judgment in W.A. No. 705 of 1995. On appeal to the  Division Bench, the writ appeal was dismissed in limine by a  non-speaking order. In the writ appeal, an affidavit was filed  by the Chief Law Officer of APSRTC. It is stated therein that  on account of large scale nationalization of bus routes  between 1986 and 1990 and the heavy passenger traffic  during the peak season, the APSRTC resorted to recruitment  of Conductors and Drivers on daily-wage basis in the hope of  absorbing them on regular basis later on depending on the  availability of the sanctioned posts. Keeping the anticipated  regularization in view, they were chosen on the basis of  selection. It is further stated that the regularization is done  according to the prescribed norms envisaged in the  memorandum of settlement dated 28.4.1994 entered into  under Section 12(3) of the I.D. Act. For those employed  between December 1991 and December 1994, the agreed  date of regularization as per the settlement, falls between  31.12.1995 and 31.7.1997. The deponent of the affidavit  also relied on the provisions of A.P. Act 2 of 1993 which  seem to place restrictions on regularization of certain  categories of employees. It was then pointed out that  regularization from the date of initial appointment on daily- wages would cause administrative problems and upset the  settled seniority.         It is seen from various judgments placed on record that  the genesis of this litigation relating to the correct date of  regularization is traceable to writ petition No. 12132 of  1984. That writ petition was filed by the daily-wage Drivers  appointed in June, 1983 after a process of selection. Their  services were terminated on 30th June, 1984 but they were  reappointed in July, 1984 on the same terms. Then they  filed the said writ petition in which they sought for a  direction that they must be treated as Drivers on regular  basis from the dates of their initial appointment. Evidently,  the services of the petitioners therein were actually not  regularized. A learned single Judge disposed of the writ  petition on 20.6.1988 with a direction to the respondents to

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"declare the petitioners to be in service on regular basis  from the dates of their joining duty and give consequential  benefits". The only reason given by the learned Judge is  contained in the following paragraph which we quote: "The petitioners were selected by a Committee on  the basis of their eligibility and they have been  appointed on June 10, 1983. Therefore, though  there appears the term "on temporary basis" "on  daily wages" the fact remains that they have been  discharging the duties on regular basis."

       Thus, the performance of duties carried out by regular  employees, was taken to be the basis for directing  regularization. The fact that they underwent a process of  selection was also relied on. Insofar as the decision purports  to lay down a proposition of service law that the employees  selected on daily-wage basis after selection automatically  become regular employees from day one if they perform the  duties similar to regular employees, it is utterly untenable.  In the absence of any service rule entitling the employees  recruited on daily-wages to get the status of regular  employees with pay-scale from the very date of joining, it  would be difficult to countenance such proposition especially  when there is no finding that the daily-wage employment  was a ploy or a colourable device to postpone regularization  indefinitely. In State of Haryana Vs. Piara Singh [(1992)  4 SCC 118] this Court set aside the direction of the High  Court to regularize the services of the ad hoc/temporary  employees who have worked for more than one year and  observed that there can be no rule of thumb in such matters  and in any case, service for one year does not by itself  confer a right of regularisation.         The next phase of litigation is writ petition No. 8070 of  1990. The order in W.P.No. 12232 of 1984 (referred to  supra) was followed by another learned single Judge and a  direction was issued to declare the petitioners as having  been regularly appointed from the respective dates of their  joining the post for which they were selected with all  consequential benefits. It is not known whether the services  of the three writ petitioners therein were regularized by the  date of filing the writ petition and whether they wanted the  benefit of retrospective regularization. The APSRTC filed writ appeal against the order in  W.P.No. 8070 of 1990 and it was disposed of cursorily  without adverting to any issue on merits. The short order  passed by the Division Bench on 24.7.1995 reads as follows: "Heard learned counsel for the appellant and  learned counsel for the respondent.

We do not think there is any mistake in the  direction issued by the learned single Judge  except that a clarification is required to reckon the  date of continuous appointment and thus  regularization in the post held by the petitioners  respondents from the date of continuous  appointment for the purpose of both of  emoluments as well as seniority.

We accordingly clarify that the date of initial  appointment as indicated in the order of the  learned single Judge will be read as the date of  continuous appointment as defined under Section  25B of the Industrial Disputes Act. Such  continuous service of the petitioner/respondents  shall be counted for all benefits in the service in

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accordance with law.

With the clarification as above, the appeal is  dismissed."

This order was followed in most of the writ petitions and writ  appeals including the orders under appeal. It is difficult to comprehend the ratio of the above  decision. While purporting to clarify the order passed in the  writ petition by the learned single Judge, the Division Bench  imported a totally alien concept of continuous service within  the meaning of Section 25B of the I.D. Act which was for the  special purpose of applying the provisions as to lay off and  retrenchment contained in Chapter V-A of the Act. Moreover,  the order in the writ appeal is as vague as it could be. The  expression ’date of continuous appointment’ makes no  sense. Even if it is taken that the said wording has been  inaccurately used for the words ’continuous service’, still,  the direction is unintelligible. Continuous service within the  meaning of Section 25B\027 for how long? Nothing has been  specified.  In this state of things, in W.P. No. 24263 of 1998,  a learned single Judge proceeded on the basis that as per  the decision in W.A. 705/1995, the employees were entitled  to seek regularization with effect from the date of initial  appointment, thus making the clarification given by the  Division Bench virtually otiose. The problem was compounded by another Division  Bench decision of the High Court in Writ Appeal No. 1108 of  1997 APSRTC Vs. P.T. Rao [1998 (2) ALT 447]. That  was an appeal against the order of the learned single Judge  directing regularization keeping in view the directions given  in writ appeal No. 705 of 1995 (supra). The learned Judges  after referring to the decision of this Court in State of  Haryana Vs. Piara Singh [AIR 1992 SC 2130] observed: "Thus, it is clear that the High Court cannot issue  a blanket direction to regularize the services of the  employees on completion of a particular period. If  we examine the cases of the respondents- workmen here in the light of the principles laid  down by the Supreme Court in State of Haryana  Vs. Piara Singh (supra), we have to hold that the  order of the learned single Judge requires  modification."

Having said so, curiously, the following order was  passed in the next paragraph which is the operative part of  the judgment: "Therefore, the order of the learned single Judge  is modified to the effect that the respondents- workmen are entitled to the regularization of their  services from the date of their initial appointment  to such posts on completion of 240 working days.  If there are number of claimants seeking  regularization, the same can be done only in a  phased manner. In so far as the claim of the  workmen for arrears or backwages is concerned,  having regard to the facts and circumstances of  this case, we hold that the respondents-workmen  are not entitled to the same.

With the above modification, the Writ Appeal is  disposed of."

The direction given in paragraph 5 is not quite  consistent with what was held in the previous para of the

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judgment after referring to the law laid down in Piara  Singh’s case.  The concept of ’continuous service for a  period of one year’ as per Section 25B of the I.D. Act has  been imported by this Division Bench also.  Moreover, it is  difficult to reconcile the two directions in para 5 (contained  in the first two sentences).  Perhaps, what the learned  Judges meant was that the employees’ claim for  regularization should be considered on  completion of 240  working days and if they are otherwise eligible, they should  be absorbed on regular basis to the extent of vacancies  available. In the event of such regularization, it would take  effect from the date of initial appointment. It is difficult to follow the logic or the reason behind the  law laid down by the Division Bench. If the regularization  has to take place in a phased manner subject to availability  of vacancies etc., the question of according regular status to  the employees right from the date of initial appointment on  daily-wages does not arise. Moreover, if the services of  respondents in the writ appeal have already been  regularized and they claim regular status from the date of  initial appointment, the High Court should have addressed  itself to the specific question whether the regularization after  some period of daily wage service was legally correct and  recorded a finding thereon. The observations made and the  directions given have only added to the dimension of  controversy rather than solving the problem. How and in  what manner the said judgment in [1998 (2) ALT 447],  which is sought to be relied upon by the appellants, was  implemented is not known. No details are available in this  regard.  However, it is difficult to construe the judgment in  the said writ appeal as upholding the contention of the  appellants excepting the passing observation that the  regularization could be done in a phased manner. In the light of the above discussion, we are of the view  that the law laid down or the directions given in various writ  petitions/writ appeals are not legally sustainable for more  than one reason. Firstly, wrong criterion based on Section  25B of I.D. Act was applied in case after case. Secondly, the  respondents and other similarly situated employees  approached the Court under Article 226 long after their  regularization, thereby unsettling the settled position.  Thirdly, on the facts of these cases, it is evident that the  services of the employees who were recruited as Conductors  were regularized within a reasonable time. The respondent- employees were therefore treated fairly. No service rule or  regulation or any other principle of law has been pressed  into service by the respondents to claim regularization from  an anterior date i.e. right from the date of their initial  appointment as daily wage employees. For the above reasons, we should have, in the normal  course set aside the judgments under appeal and dismissed  the writ petitions. However, there are certain facts which  stare at the appellants, that come in the way of these  appeals being allowed in toto. We have to take note of the  material fact that the appellants failed to question the  adverse decisions by filing appeals at the appropriate time.  They allowed many judgments to become final though they  related to employees of the same Region/Division. For  instance Writ Petition No. 33077 of 1997 filed by 26  Conductors was disposed of on the same day on which Writ  Petition No. 33083 of 1997 (which is under appeal in C.A.No.  2455 of 1999) was disposed of. In the Writ Appeals which  have given rise to C.A.Nos. 3017 of 1999 and 5881 of 1999,  reference has been made by the Division Bench to Writ  Petition No. 26111 of 1998 disposed of on 4.11.1998 in

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which there were 30 petitioners. In the affidavit filed in the  High Court in Writ Petition No. 33083 of 1997 which has  given rise to C.A. No. 2455 of 1999, reference has also been  made to two other writ petitions namely W.P.Nos. 31361 of  1996 and 14709 of 1996 decided on 19.4.1996 and  26.7.1996 respectively, wherein it was alleged that  directions were given to regularize the services from the  date of original appointment. Above all, it seems that the  orders of the Division Bench passed in Writ Appeal Nos. 410  of 1997 and 1108 of 1997 (elaborately referred to supra)  seem to have become final. In view of this peculiar situation and in order to avoid  the anomalies that might otherwise ensue, while we hold  that the respondent-employees have failed to establish their  legal right to get the status of regular employees right from  the date of their initial appointment on daily wage basis and  the respective dates of regularization assigned to the  respondents cannot be legally faulted, we are inclined to  mould the relief in modification of the directions given in the  judgments under appeal and direct as follows: If any of the Conductors, junior to the respondents in  the relevant seniority list of the concerned Division/Region,  have got the benefit of seniority and regularization OR are  entitled to get the same by virtue of the judgments that  have become final, then the respondents who are seniors to  them, shall be given the same benefit on the same principle. With these directions and observations, the Civil  Appeals are disposed of without costs.