ORDER
1. These writ petitions raise common questions of fact and law and hence I am disposing of all of them by this common judgment.
2. The petitioners in WPs.3537 of 1998, 34580 of 1997 and 34698 of 1997 are the watchmen/attenders. The slight difference in the designation of the petitioner in \VP 3526 of 1998 is watchman/office boy. The petitioner in WP 34825 of 1997 is the Junior Assistant.
3. The case of the petitioners is that they were appointed as daily wagers and they have worked for more than 5 years and as such they are entitled to be regularised under the G.O.Ms. No.2] 2, dated 22-4-1994, which came into force with effect from 25-11-1993. It is not in dispute that the petitioners services were retrenched and challenging those retrenchment orders the petitioners and others had earlier preferred writ petitions before this. Court in WP No.14740 of 1996 and batch and those writ petitions were disposed of by a ieamed single Judge of this Court by a judgment and order of this Court dated 3-7-1997. It is necessary to extract the operative portion of the said judgment which is as under:
“In these circumstances, I am of the opinion that it would be sufficient if the respondents are directed to give an opportunity
individually to each workman to state whether he fulfils the conditions under G.O.Ms. No.212, consider his case and decide whether on such fulfilment, he is entitled to have his services regularised. If it cannot be done, then a speaking order has to be issued to him stating the reasons why his services cannot be regularised. The Corporation shall issue show-cause notices to each of the petitioners individually and in reply to the show cause notice the petitioners are at liberty to establish that they fulfil conditions under G.O.Ms. No.212 and also take any other grounds they may have for establishing their claim for regularisation. Until such exercise is undertaken and an order is passed, the workmen concerned who are still in service, are entitled to be continued in service. This, however, does not mean tliat those who are not in service as on date, would be reinstated. But they wilt also be entitled to a show-cause notice giving specific opportunity to claim that they fulfil conditions under G.O.Ms. No.212 so that if they do eslablish that they are entitled to regularisation, they shall be taken back and their services shall be regularised. It was brought to my notice that in certain individual cases, there are already decisions either of Industrial Tribunal or Court requiring the continuation of services, and such orders have become final. If so, the persons concerned may bring it to the notice of the Corporation and the Corporation shall give effect to the orders produced on the terms therein.”
4. In pursuance of the said directions of this Court, the respondents issued show cause notice to the petitioners calling for their particulars and explanation as to on what basis they are entitled to be regularised. After considering their explanation, the impugned proceedings dated 24-11-1997 was passed vide No.SSDC/Admn./97-98. Different orders were passed in relation to the different petitioner indicating as to the ground on which such particular petitioner cannot be regularised, and
consequently rejected their case for regularisation. It is in these circumstances the petitioners have again approached this Court in this batch of writ petitions.
5. So far as the petitioner in WP No.3526 of 1998 is concerned, the reason assigned is that this petitioner is not entitled for absorption since he docs not fulfil the qualification as per the recruitment Rules of the Corporation, Learned Counsel for the petitioner strenuously contended that this petitioner was appointed as a watchman/office boy on the basis of daily wages and he has passed 5th class, therefore, he was eligible to be regularised, but, the respondent-Corporation has rejected his case on the ground that the minimum qualification required is 7th class, and the same is not correct. He relied upon the A.P. Last Grade Service Rules, 1992 in support of his contention. He further invited my attention to Annexure I under Rule 5(a) of the said Rules and stated that regarding the posts at item No.3 – watchman and other posts, the qualification required is 5th class. I think it appropriate to extract item No.3 under Annexure I of the said Rules as under:
Category
Method of appointment
Qualifications
“3
Watchman and other posts (Category-3)
By any method specified
(i)
Must have passed V class or
its equivalent examination.
(ii)
Must be an Ex-service man
or must have been trained in Civil Defence or as a Home Guard.
(iii)
Must be able to ride a
Bicycle.
6. . On the other hand, the learned Counsel appearing for the respondent-Corporation has contended that the Corporation has got its own Rules and according to the said Rules the minimum qualification prescribed is 7th Class and as such this
petitioner was not eligible. He relied upon the minutes of the 52nd meeting of the Board of Directors, held on 5-12-1984. He also produced copies of the said proceedings. Item No.7(a) of the proceedings of the 52nd meeting of the Board dated 5-12-1984 reads as under:
“Item No.7(a): Recommendations of the sub-committee on staff matters and manpower requirements etc.
While approving the recommendations of the sub-committee on staff matters regarding cadre strength, qualifications, source of recruitment, promotion policies etc. in toto, the Board, however, accorded approval and sanctioned only the total cadre strength recruitment of 297 for 1984-85 category-wise as indicated in column No.8 of the statement enclosed. The Board further directed to fill up the vacant posts out of the 297 cadre strength which are not manned by regular staff, through regularisation of daily wage employees, promotion, direct recruitment, deputation, transfer etc.
The Board further decided that the balance requirement of staff indicated for 1986-87, should be filled up only after a thorough review again by the sub-committee on staff matters having relevance to production and marketing activities of the Corporation at that time.”
From this it is clear that the Board approved the recommendations of the sub-committee on staff matters regarding cadre strength, qualification, sourccof recruitment, promotion policy etc. in toto. The Board also further directed to fill up the vacant posts which are lanned by regular staff, by regularisation of the daily wage employees or by promotion or by direct recruitment or by deputation or by transfer etc.
7. Learned Counsel fop1 r the respondent-Corporation also brought to my notice the proceedings of the sub-committee dated 5-12-1984 at page 5, where the Committee,
under the heading AttendersAVatchmen, has recommended as under:
“Attenders/Watchmeii:
The qualifications for future appointments will be 7th class as suggested by IPE. For the present incumbents, relaxation can be considered where otherwise suitable.”
8. On this basis he contended that the minimum qualification required for attenders/ watchmen is 7th class. However, learned Counsel for the petitioner contended that the Board has no power to modify the A.P. Last Grade Service Rules, 1992. But, the contention of the learned Counsel for the respondent-Corporation is that these Rules do not apply to the Corporation at all.
9. From a reading of these Rules called A.P. Last Grade Service Rules, 1992, I find these are the Rules framed under Article 309 of the Constitution and applicable to all the Government Servants. But, in the instant case, the A.P. State Seeds Development Corporation Limited is one registered under the Companies Act. Thus, prima facie it is clear that the Company is entitled to frame its own Rules regarding the recruitment and appointment of its own staff. The Company being the employer has all the power and authority to prescribe the qualifications, staff pattern, pay scale etc, From this it follows that the A.P. Last Grade Service Rules would not be applicable to this Corporation at all. When they are not applicable to the Corporation, it cannot be ‘said that the Corporation lias no power to modify the said Rules, hi this view of the matter, I have to proceed only on the basis of the Rules framed by the Corporation in order to find out whether the petitioner is qualified for the post in question or not.
10. As I have already noted above, the qualification prescribed for the Post of attender/watchman by the Board by proceedings dated 5-12-1984 is 7th class and it is not in dispute in this case that the petitioner in Writ Petition No.3526 of 1998 has passed
only a 5th class and, consequently, he would not be eligible. In this view of the matter, the reason assigned by the Corporation that the petitioner’s services cannot be regularised because he does not possess the qualification prescribed under the Rules cannot be found fault with. ‘Consequently it follows the petitioner would not be entitled to be regularised.
11. Before taking up the other issues for consideration, I think it appropriate to deal with one of the reasons assigned- by the respondent-Corporation for refusing the reguiarisation of the petitioners in Writ Petition Nos.34580 of 1997,34698 of 1997 and 34825 of 1997 i.e., the respective petitioner has not completed 5 years of service as on die date of commencement of G.O.Ms. No.212, i.e., 25-11-1993. In addition to that there is the other reason that there arc no vacancies. So far as the reason assigned regarding nonavailability of the vacancies is concerned, I will be dealing with it separately. Taking up the reason that the petitioners in these writ petitions have not completed 5 years as on 25-! 1-1993, I find that this reason is not tenable in view of the judgment of the Supreme Court in District Collector v. M.L. Sirgh, . In this case, the Supreme Court lias ruled as under:
“We have heard the learned Counsel for the parties. These matters relate to reguiarisation and payment of wages to the respondents who were employed on daily wage basis. By the impugned judgment the Division Bench of the High Court, while affirming with modification of the order passed by the learned single Judge has directed that all employees who have completed five years of continuous service should be considered for reguiarisation in accordance with the terms of G.O.Ms. No.212, dated April 22, 1994 and that they should be paid their wages at par rath the wages paid to the permanent employees of that category. As regards payment of wages there is no dispute between the parties that the same have to
be paid from the date of reguiarisation. Insofar as reguiarisation is concerned, we arc of the view that the High Court has rightly directed that on the basis of the Notification G.O.Ms. No.212, the respondent employees shall be regularised with effect from the date or dates, they completed five years continuous service. It is, however, made clear that the other conditions laid down in the said G.O.Ms. No.212 will have to be satisfied for the purpose of reguiarisation. The special leave petitions are disposed of accordingly. No costs.”
12. From the above law declared by the Supreme Court, it is clear that in terms of G.O.Ms. No.212, dated 22-4-1994, a person should have, in order to be eligible for reguiarisation, completed 5 years not necessarily as on the date of G.O.Ms. No.212 came into force i.e. as on 25-11-1993, but, as on the date of his consideration for reguiarisation. The Supreme Court further held that if a person has completed 5 years as on the date of consideration of his case, he would be entitled to be regularised. In -this view of the matter, the reason that the petitioners in these petitions were not entitled to be regularised because they had not completed 5 years as on 25-11-1993 cannot be sustained. The other reason assigned is that there are no vacancies, therefore, the petitioners cases cannot be considered for reguiarisation.
13. The’ reason assigned by the Corporation for rejecting the claim of the petitioners in WP Nos.3537 of 1998, 34580 of 1997, 34698 of 1997 is that though the petitioners are qualified to the post in question, but there are no vacancies for regularising their services. Learned Counsel for the respondent-Corporation relied upon a judgment of this Court in Y. Rambabu v. University of Health Sciences, Vijaycnvada (A.P.), 1997 (1) SLR 503, contending that in terms of G.O.Ms. No.212, reguiarisation is possible only if there arc clear vacancies. For
appreciating his contention, I am extracting the relevant para of the judgment as under:
“I am of the considered opinion tiiat since the scheme itself came into force only in 1994 by which date the ban on recruitment had already taken place with effect from 25-11-1993, the proper and reasonable construction would be that those who were in service for five years whether before or after that date would be entitled to the regularisation if any sanctioned post is available in respect of their needed services.”
14. From the above judgment it is clear that this Court held that a person who fulfils the conditions of G.O.Ms. No.212 would be entitled to be regularised “if any sanctioned post is available in respect of their needed services”. Learned Counsel for the petitioners contended that there are number of vacancies and the petitioners being eligible, their services could be regularised. Whereas, learned Counsel for the respondent-Corporation submitted that absolutely there are no vacancies in the Corporation for regularising the services of the petitioners. He invited my attention to the resolution taken in 52nd meeting of the Board, held on 5-12-1984, even regarding the staff pattern. Under the heading ‘Consolidated statement showing tlie staff to be required during 1984-85 and 1986-87’, regarding the posts ofattendcrs/ watchmen at Item No.36, it is noted that for the year 1986-87 after excluding the employees available, there would be 9 vacancies. In other words, there were in all 77 posts of attcnders/watchmcn and out of them 68 persons were available and there were 9 vacancies, and these 9 vacancies were filled up. He also brought to my notice the other proceedings dated 15-11-1997 – the statement showing the manpower sanctioned, number of vacancies filled and vacancies as on 15-11-1997 for the Corporation. Vide item No.49, it is stated that out of 77 posts meant for attendcrs/watchmen, 69 persons are available and there are 8 vacancies. Learned
Counsel for the respondent-Corporation submitted that these 8 vacancies were filled up by regularising daily wagers by taking into account their qualification, eligibility and also seniority in terms of G.O.Ms. No.212 and after filling up these 8 vacancies there are absolutely no vacancies in the Corporation in post of attendersAvatchmen. He also brought to my notice the subsequent proceedings dated 1-8-1998 – the statement showing the manpower sanctioned, number of vacancies filled and vacancies as on 1-8-1998 for the Corporation. Vide item No.49 i.e. attenders/ watchmen, it is stated that the sanctioned strength is 77 and the employees available are 77 and as such there is no vacancy. If this is the position that there are no vacancies as per the sanctioned strength in the Corporation, no person can insist that he shall be regularised notwithstanding the said position. As I have already noticed above, the judgment of this Court in Y. Rambabu v. University of Health Sciences, Vijayawada (A.P.) (referred to supra) stated that a person is entitled to be regularised in terms of G.O.Ms. No.212 only in respect of sanctioned posts available. From this material, it is absolutely clear that there arc no sanctioned posts available and as such the petitioners would not be entitled to be regularised.
15. The last petition that requires to be considered now is WP No.34825 of 1997. In this case the petitioner is the Junior Assistant. In his case also, the only other ground is that there arc no vacancies available in the Corporation. From the reading of the proceedings of the Board as noticed above, I find that there are no vacancies even in the post of Junior Assistants also. For the years 1984-85 and 1986-87 vide Item No. 17 of the proceedings of the consolidated statement, 5 vacancies were there and there are 5 persons already working and there are no vacancies. As per statement dated 15-11-1997 I find that vide Item No.43 regarding Junior Assistants, there were 25 vacancies and 25 persons available, and also as per the statement dated 1-8-1998 vide Item
No.43 there are 25 posts of Junior Assistants and 25 Junior Assistants are already working, and as such there are no vacancies. From this it is clear that there are absolutely no vacancies in the Posts of Junior Assistants and, hence, the question of regularising the petitioner in terms of G.O.Ms. No.212 would not, arise even though he may fulfil the other requirements.
16. For the above reasons, I am of the opinion that the petitioners in all the writ petitions are not entitled to be regularised and accordingly these writ petitions have to fail. Consequently, I pass the order as under:
1 do not find any merit in these writ petitions. Consequently these writ petitions are dismissed, but in the circumstances without costs.