Andhra Pradesh High Court – Amravati
Gangupalli Vara Lakshmi vs The State Of Andhra Pradesh, on 23 December, 2024
Author: R Raghunandan Rao
Bench: R Raghunandan Rao
APHC010127022021
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3508]
(Special Original Jurisdiction)
MONDAY, TWENTY-THIRD OF DECEMBER
TWO THOUSAND AND TWENTY-FOUR
PRESENT
THE HONOURABLE SRI JUSTICE R RAGHUNANDAN RAO
THE HONOURABLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
WRIT PETITION NO: 7231/2021
Between:
Naramamidi Rambabu and Others ...PETITIONER(S)
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
WRIT PETITION NO: 7233/2021
Between:
Gangupalli Vara Lakshmi ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. SREENIVASA RAO VELIVELA
Counsel for the Respondent(S):
1. S S.NAGESWARAREDDY
2. GP FOR LAW LEGISLATIVE AFFAIRS
2
The Court made the following:
COMMON ORDER:
(per Hon’ble Sri Justice Maheswara Rao Kuncheam)
The instant Writ Petition No.7231 of 2021 is filed by the petitioners seeking
the following main relief:-
“…..pleased to issue an appropriate Writ more particularly one
in the nature of Writ of Mandamus declaring the action of respondents
in not appointing / absorbing the petitioners as attenders / Class IV in
the Judicial Ministerial Service even though the petitioners completed
more than 5/10 years service as Full Time Masalchis in the unit of 3rd
respondent as highly illegal arbitrary and violative of Principles of
Natural justice and Art 14 16 and 21 of the Constitution of India and
consequently direct the respondents to consider for appointing /
absorbing the petitioners as Attenders / Class IV in the Judicial
Ministerial Service taking to consideration of their length of service as
Full Tine Masalchies and to pass…..”
Brief Case of the petitioners:-
2. The Petitioners 1, 3 to 5 submit that they were appointed as Full Time
Masalchis in various Courts of the 3rd respondent unit under various proceedings
of the year 2009, while the 2nd petitioner was appointed in 2014 as such. It is the
case of the petitioners that, the 2nd respondent issued circular vide ROC
No.2708/2003-D1(5) dated 28.08.2003, directing all the unit heads to consider
the cases of all the qualified full-time or part-time Masalchis, who completed
more than 15/10/5 years of service for recruitment to the posts of attenders,
3subject to availability of roster points, giving preference to their seniority, while
imposing ban not to fill up the vacancies of Class IV until further directions.
3. Later, through circular in ROCNo.2708/2003-D1(5) dated 06.01.2004,
while confirming the absorption, the ban imposed on filling up Class IV vacancies
was lifted. Considering the proceedings of 2nd respondent, the 3rd respondent
through proceedings dated 26.02.2005, appointed the masalchis, who fulfilled the
conditions, as Attenders.
4. It is further stated that, though the petitioners have completed more than
10 years of service as full-time Masalchies, they are only receiving Rs.3,850/- per
month along with allowances, making with very difficult to support their families
with such meager salaries. The 1st petitioner made representation on 02.05.2019
to the 3rd respondent requesting to absorb him as a Regular Attender. However,
the 3rd respondent returned his representation on the ground that the
appointment of the petitioners as Full Time Masalchis does not confer any right
to claim future absorption as Class IV employee.
5. It is the further case of the petitioners that, the 2nd respondent considered
the request of Masalchis working in the year 2003 and issued a circular, as
stated above permitting to absorb them as Class IV employees.
6. In respect of W.P.No.7233 of 2021 is filed by the petitioner seeking the
following relief:-
4
“……pleased to issue an appropriate Writ more particularly one
in the nature of Writ of Mandamus declaring the action of respondents
in not appointing / absorbing the petitioner as Attender / Class IV in
the Judicial Ministerial Service even though the petitioner completed
more than 15 years service as Part Time Masalchis in the unit of 3rd
respondent as highly illegal arbitrary and violative of Principles of
Natural justice and Art 14 16 and 21of the Constitution of India and
consequently direct the respondents to consider for appointing /
absorbing the petitioner as Attender / Class IV in the Judicial
Ministerial Service taking to consideration of their length of service as
Part Time Masalchies and to pass…..”
7. On similar lines, as stated by the petitioners in W.P.No.7231 of 2021 the
Writ Petitioners in W.P 7233 of 2021 further submits that, she was appointed by
the 3rd respondent vide proceedings dated 04.06.2002 as part-time Masalchi and
she has been discharging her duties since then. On 17.01.2017 as the petitioner
completed more than 15 years of service, she made a representation to the 3 rd
respondent requesting to consider her candidature and absorb her as Regular
Attender, as done earlier to the similarly appointed persons basing on the
directions of the 2nd respondent vide circular dated 28.08.2003. But her
representation was returned by the 3rd respondent on 02.03.2017 stating that
there are no instructions of the 2nd respondent in that regard. Hence, she
approached this Court by way of this writ petition.
8. In nutshell, the petitioners are the Full-Time Masalchis working under the
Judicial Ministerial Service, who were appointed through different proceedings,
have filed the present writ petitions seeking direction for absorbing them as
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Attenders/Class-IV on the ground that they have completed more than 5/10/15
years of service in the said post.
Brief case of the respondents:-
9. The 3rd respondent – The Principal District Judge, Eluru, West Godavari
District, filed detailed counters in both the writ petitions denying the averments
made in the affidavit of the petitioners to some extent and specifically admitting
the fact that the petitioners were appointed as Full Time Masalchis through
various proceedings issued in its unit.
10. The 2nd respondent vide its circular in Roc.No.2708/2003/5 dated
28.08.2003, directed all the unit heads to consider the cases of all the qualified
Full-time Masalchis who had completed more than 15/10/5 years of service in
their respective units for recruitment to the posts of Attenders subject to certain
pre-requisites. Further, through a circular in Roc.No.2708/2003 dated
06.01.2005, a ban imposed on filling of Class-IV vacancies was lifted.
Consequently, the 3rd respondent through proceedings dated 26.02.2005
appointed Masalchis, who have fulfilled the conditions as Attenders, are true and
correct.
11. It is the specific case of the 3rd respondent that the petitioners were
drawing a minimum pay of Rs.3,850/- in terms of G.O.P No.238 Finance and
Planning (PC-III) Department dated 23.09.2005 and the same was enhanced
6
periodically and presently they are drawing a salary of Rs.13,000/- per month. It
is also admitted that the representation preferred by the petitioners dated
02.05.2019 by petitioner No.1 seeking absorption as regular attender was
rejected by the 3rd respondent on 03.06.2019. This rejection was primarily on the
ground that the appointment of the said Writ petitioner as Full-time Masalchi does
not confer any absolute right to claim future absorption as Class-IV employees.
The Government of Andhra Pradesh, taking into consideration of the dictum of
Apex Court dated 12.08.1992 in Civil Appeal No.2979 of 1992, issued
G.O.Ms.No.212 Finance and Planning (F.W.P.C.III) Department dated
22.04.1994, whereunder it was decided that the services of the persons who
worked continuously for a minimum period of five years and were continuing as
of 25.11.1993, be regularized by the appellate authority subject to satisfaction of
certain conditions. It is also stated in the counter affidavit that the Government of
Andhra Pradesh introduced a specific scheme for regularization and absorption
of Daily Wages/N.M.R./Consolidated Pay in G.O.(P).No.112, Finance and
Planning (F.W.P.C.III) Department dated 23.07.1997. This scheme allowed for
regularization of services of the part-time basis workers who have worked
continuously, for a minimum period of ten years and were continuing as of
25.11.1993, the date on which A.P Act 2 of 1994 came into force, subject to
fulfillment of certain conditions.
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12. It is also stated by the respondent No.3 that the petitioners 1, 3 to 5, joined
as Full Time Masalchis in the year 2009, while the 2nd petitioner joined as Full
Time Masalchi in the year 2014 i.e., subsequent to the Hon’ble High Court
Circular Roc.No.2708/2003-D1(5) dated 06.01.2004. As per the circular, the
appointment of Full -Time and Part -Time Masalchi in regular vacancy was only a
one-time arrangement applicable only to the existing incumbents as on the date
of the Circular, providing they met the prerequisite requirements. Since the
petitioners joined the service after the issuance of the Circular, it is not applicable
to their case.
13. Heard Sri Sreenivasa Rao Velivela, learned counsel appearing for the
petitioners in both the writ petitions and Sri N.Nageswara Reddy, learned counsel
appearing for the 3rd respondent.
14. As the issues raised in W.P.Nos.7231 of 2021 and 7233 of 2021 are the
same, they are being disposed of by way of this common order.
Analysis:-
15. In fact, the petitioners are challenging the inaction of the respondents in
appointing/absorbing them as attenders in the Judicial Ministerial Service, even
though they have completed more than 15/10/5 years of service as full-time
Masalchis in the 3rd respondent unit as illegal and arbitrary and are claiming
8
rights similar to those of persons who were absorbed as Class-IV employees as
per the Circular dated 06.01.2004 issued by the 2nd respondent.
16. In the light of above facts and circumstances involved in the lis. It is trite to
refer to the Constitution Bench dictum of The Apex Court in the case of
Secretary, State of Karnataka Vs. Umadevi1, which primarily dealt with the two
main issues i.e.,
(a) The right of employees seeking regularization on the ground of working for a
long period
(b) And the power of High Court under Art.226 in issuing directions for
regularization of employees and held that :
“52. Normally, what is sought for by such temporary employees
when they approach the court, is the issue of a writ of mandamus
directing the employer, the State or its instrumentalities, to absorb
them in permanent a service or to allow them to continue. In this
context, the question arises whether a mandamus could be issued in
favour of such persons. At this juncture, it will be proper to refer to the
decision of the Constitution Bench of this Court in Rai Shivendra
Bahadur (Dr.) v. Governing Body of the Nalanda College. That case
arose out of a refusal to promote the writ petitioner therein as the
Principal of a college. This Court held that in order that a mandamus
may issue to compel the authorities to do something, it must be
shown that the statute imposes a legal duty on the authority and the
aggrieved party had a legal right under the statute or rule to enforce
it. This classical position continues and a mandamus could not be
issued in favour of the employees directing the Government to make1
(2006) 4 SCC
9them permanent since the employees cannot show that they have an
enforceable legal right to be permanently absorbed or that the State
has a legal duty to make them permanent.”
17. Thus, The Hon’ble Supreme Court has directed Constitutional Courts to
refrain from issuing directives for the regularization, absorption, or continuation of
temporary, contractual, casual, daily-wage, or ad hoc employees unless their
recruitment was conducted in accordance with the constitutional framework and
regular procedures.
18. Whereas, the Apex Court in Renu Vs. District and Sessions Judge, TIS
Hazari Courts, Delhi2, examined all relevant aspects and ground realities more
particularly, in the context of Judicial Ministerial Services and took note of all the
process that depleted the practices of illegal appointments.
19. Further, the Hon’ble Supreme Court of India, by referring to the above
authoritative dictums, categorically reiterated its decision in State of Jammu and
Kashmir Vs. District Bar Association, Bandipora3, regarding Regularization of
employees in High Courts and in the District Judiciary & Trial Courts, held as
follows:-
“……26. The principles will have to be formulated bearing
in mind the position set out in the above judgments. Regularisation
is not a source of recruitment nor is it intended to confer
permanency upon appointments which have been made without2
(2014) 14 SCC 50
3
(2017) 3 SCC 410
10following the due process envisaged by Articles 14 and 16 of the
Constitution…..”
20. In the light of the above well settled legal principles, the test in the lis is
whether the absorption of the petitioners is legally sustainable or not?
21. Coming to the facts in the instant case, the details of appointment process
such as issuance of notification through wide publicity in various
newspapers/media to invite applications from as many as eligible candidates,
scrutiny of applications, rejection of defective applications or elimination of
ineligible candidates, conducting examinations, calling for interview or viva voce
before the Selection Committee and preparation of list of successful candidates
for appointment of the petitioners has not been disclosed and stated.
22. Another point raised by the petitioners is their seeking parity with others
whose services were regularized by the High Court through Roc.No.2708/2003-
D1(5) dated 06.01.2004. So, the question revolves around whether employees
who joined the service after the issuance of the relevant circulars can claim the
benefits that were explicitly meant for earlier incumbents. But in the case on
hand, it is established that, the petitioners joined service after the issuance of the
Circular date 06.01.2004. Therefore, question of parity as claimed by the
petitioners does not arise at all.
23. In addition to the above, the case of the writ petitioners also fails on the
ground of negative equality, which means that if there has been a benefit or
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advantage conferred on one or a set of people, without legal basis, that benefit
cannot be relied upon the ground of parity or equality. Equality is a trite, which
cannot be claimed in illegality and therefore, cannot be enforced by a citizen or
court in a negative manner.
24. In this context, it is appropriate to refer the authoritative judicial principle in
the State of Odisha Vs. Anup Kumar Senapathi4, which reads as under:-
“In our opinion, there is no concept of negative equality
under Article 14 of the Constitution. In case the person has a
right, he has to be treated equally, but where right is not
available a person cannot claim rights to be treated equally
as the right does not exist, negative equality when the right
does not exist, cannot be claimed.”
25. Very recently, the Hon’ble Supreme Court of India in S.L.P. (Civil)
No.27549 of 2024 dated 10.12.2024, dealt with the regularization of temporary
employee, who was seeking parity with others who have received the benefit of
regularization, reiterated the ratio’s decided in Uma Devi (supra) as well as
discussed the concept of negative equality. Which further supports our
reasoning.
26. Although the petitioners at first glance may appear appealing, but a deeper
analysis reveals a potentially disastrous outcome as it stands as an antithesis to
the “Doctrine of Equality”, which is one of the fundamental principles of the
4
(2019) 19 SCC 626
12
Constitution of India. Hence, the case of the writ petitioners is liable to be
dismissed. The writ petitions are accordingly dismissed.
There shall be no order as to costs. The miscellaneous applications
pending, if any, shall stand closed.
____________________________
JUSTICE R RAGHUNANDAN RAO
___________________________________
JUSTICE MAHESWARA RAO KUNCHEAM
Date: 23.12.2024
GVK
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49
THE HON’BLE SRI JUSTICE R RAGHUNANDAN RAO
and
THE HON’BLE SRI JUSTICE MAHESWARA RAO KUNCHEAM
WRIT PETITION Nos.7231 & 7233 of 2021
Date:23.12.2024
GVK