JUDGMENT
C.V. Ramulu, J.
1. In these two Writ Petitions the parties are one and the same and they are interconnected. Hence, they are being disposed of by this common Judgment.
2. Writ Petition No. 29055 of 1995 is filed seeking a Mandamus directing the respondents to grant the scale of pay and allowances and other benefits on par with other employees in the cadre of Assistant from P.R.C. 1989, while Writ Petition No. 2’784 of 2001 is filed for a Mandamus directing the respondents to absorb the petitioner in service as Assistant/Typist/ TTOT from the date of Judgment in Writ Petition No. 16903 of 1989 i.e. 11-7-1991 and to pay all consequential benefits.
3. The facts in both the cases are similar. As such, the facts as stated in Writ Petition No. 2784 of 2001 are as under:
According to the petitioner, he had passed B. Com. degree and Typewriting Higher Grade and appeared for an interview for the post of Assistant/Typist in the respondent-organization having been sponsored by the Employment Exchange and was selected and appointed against a regular vacancy of Assistant by an Order dated 19-11-1986 of the respondent-organization on temporary basis. Though the initial order of appointment was for one year, subsequently, the same was extended year after year. On 30-11-1989 i.e., after serving for three years, his services were sought to be terminated. Questioning the same, he had approached this Court by way of filing Writ Petition No. 16903 of 1989, which was disposed of on 11-7-1991 with the following directions:
“………It is just and proper to give a direction to the respondents to absorb him (Petitioner) in regular vacancy of Assistant (Typist) as and when his turn comes. The question as to when the turn of the petitioner comes depends upon the number of temporary Assistants (Typists) who are senior to the petitioner and it is also necessary for the respondents to reserve posts for SCs and STs. So a direction that has to be given is that the respondents should not fill up the posts of Assistant (Typist) in regard to the general quota in the regular vacancy till the petitioner is absorbed. Of course, it is open to the respondents to terminate the services of the petitioner, if no work on temporary service is available before his turn for absorption in regular vacancy arises. The question whether the work on temporary basis is available or not has to be decided by treating all the posts of Assistants under the purview of Hyderabad Branch of R-1 as coming under one unit. Of course, in such a case, the principle of ‘last to come and first to go’ has to be followed”.
Aggrieved by the same, he filed Writ Appeal No. 1108 of 1991 and the respondents filed, Writ Appeal No. 1221 of 1991. However, both the Writ Appeals were dismissed for non-prosecution on 27-4-1995 and the Order in Writ Petition No. 16903 of 1989 has become final. Thereafter, the petitioner requested the 2nd respondent to grant the benefits of pay revision on par with other employees working in the same cadre i.e. Assistant/Typist with effect from the date when the revision of pay scales was made applicable for other employees. Since the said benefits was not extended to him, he filed Writ Petition No. 29055 of 1995, as stated supra, seeking a direction to the respondents to grant pay-scale and allowances on par with other employees in the cadre of Assistant/Typist.
4. Writ Petition No. 2784 of 2001 is filed seeking regularization of the services of the petitioner in the cadre of Assistant/Typist/ TTOT from the date of the said Judgment in Writ Petition No. 16903 of 1989 with all consequential benefits. The petitioner’s main contention is that he had completed about 15 years of service (as on date 17 years) and he is entitled for being absorbed in the services of the respondent-organization in the cadre of Assistant/Typist/TTOT on regular basis with all consequential monetary benefits.
5. A counter-affidavit has been filed on behalf of the respondents in Writ Petition No. 2784 of 2001 wherein the factual aspects stated by the petitioner are not in dispute. It is stated that the petitioner was appointed on contract basis and there is no vacancy available and the appointment of the petitioner is governed by the terms and conditions of the appointment order; as such, he is not entitled for regularization of his services and regular payscale.
6. However, a faint effort has been made in the counter-affidavit to state that the Writ Petition itself is not maintainable as the respondent-company is not a State with the meaning of Article 12 of the Constitution of India and not amenable to the jurisdiction of this Court under Article 226 of the Constitution of India. But, nowhere it is stated that the respondent-company is not an undertaking of the Government of India nor the Government of India has no deep and pervasive control over the administrative functions of the company. On the other hand, a reply has been filed stating that the company is fully owned and administrated by the Government of India and as such, it is a State within the meaning of Article 12 of the Constitution of India and amenable to the writ jurisdiction of this Court. However, no serious effort has been made by the counsel for the respondents to contend that the respondent-company is not a State within the ambit of Article 12 of the Constitution of India. As such, there is no necessity to go into this aspect.
7. It may be necessary to note here, after admitting Writ Petition No. 29055 of 1995, this Court passed an interim Order dated 28-2-1996 in W.P.M.P.Nos. 35871 and 35872 of 1995, after hearing both the parties, to the effect that the petitioner shall be paid the same salary as being paid to his juniors working in the same cadre. This order was clarified on 24-1-1997 directing the respondents to pay whatever is being paid to the juniors including the allowances for the works which are carried out by the petitioner in the same cadre.
8. Sri P. Nageswara Sree, learned counsel for the respondents, strenuously contends that the petitioner, though was not recruited by back door methods, the very appointment was on contract basis and simply because it is extended for another two years, it cannot be said that he acquires any right of being continued in the service of the respondent-organization. He also stated that on 30-11-1989 when the services of the petitioner were sought to be terminated, he filed Writ Petition No. 16903 of 1989 and continued in service in view of the interim orders passed by this Court, till the disposal of the Writ Petition i.e., 11-7-1991. Thereafter, in view of the fact that there were some projects undertaken by the organization, petitioner’s services were utilized continuously from 1991 till date. Simply because the petitioner has been continued in view of some projects undertaken by the respondent-organization, that does not mean that the petitioner has acquired any right to continue on regular basis and he is entitled for salary on par with the regular employees and the petitioner is strictly governed by the order of appointment.
9. Sri V. Srinivas, learned counsel for the petitioner, submits that, admittedly, the petitioner was appointed on being sponsored by the Employment Exchange and being eligible and qualified to hold the post of Assistant. The petitioner was appointed on contract basis for a period of one year from 19-11-1986. However, his services were extended year after year upto 30-11-1989 and when his services were sought to be terminated he filed Writ Petition No. 16903 of 1989 and in view of the interim order granted therein, his services were continued till the date of disposal of the case i.e. 11-7-1991. There was nothing in the said order, which prevented the management from terminating the services of the petitioner. On the other hand, the respondents continued the petitioner till date as Assistant on temporary basis without regularizing his services and without paying the scale attached to the post. Sri Srinivas further contends that having continued the petitioner for more than 17 years as on date, it does not lie in the mouth of the management to say that no regular sanctioned vacancy is available and the appointment made by the petitioner was only on contract basis and his services are liable to be terminated at any point of time without assigning any reasons and he cannot be absorbed as a regular employee and he cannot be put on scale of pay on par with other employees in the cadre of Assistant and no right, as such, is acquired by the petitioner.
10. From the pleadings and arguments of both sides, the admitted facts are that the petitioner is qualified and eligible to hold the post of Assistant/Typist and was appointed as such, being sponsored by the Employment Exchange and after conducting an interview. Though, the petitioner’s appointment was made on temporary basis for one year, his services were extended for another two years. Thereafter, when his services were sought to be terminated with effect from 30-11-1989, he filed Writ Petition No. 16903 of 1989 and the same was disposed of on 11-7-1991 as stated supra.
11. Though this Court, by the said Order, directed that it is open to the respondents to terminate the services of the petitioner, if no work on temporary basis is available before his turn for absorption in regular vacancy arises, the petitioner’s services were not terminated till date. Between 11-7-1991 till date, nothing prevented the management to terminate the services of the petitioner on the ground that there was no work available and he cannot be absorbed on regular basis. It is surprising to note that in the counter, it is stated that there is no sufficient work to the petitioner and he is being continued in service in view of the pendency of the Writ Appeals and on humanitarian grounds. The Writ Appeals have been dismissed long back on 27-4-1995 and the order passed in Writ Petition No. 16903 of 1989 has become final. Thus, even after the disposal of the said Writ Petition, the petitioner is being continued for the last more than 12 years. This itself shows that there is every need to continue the petitioner on regular basis and as such, he is entitled for being absorbed on regular basis and to be put on regular scale of pay on par with others in the cadre of Assistant. The contention of the counsel for the respondents that though the petitioner was continued for more than 17 years as on date and is being continued only on contract basis and he is not entitled for regularization cannot be accepted. Further, the counsel submitted that the respondent-organization is at the verge of closure and the voluntary retirement scheme is contemplated and may be introduced within a short period. This does not mean that the petitioner is not entitled for regularization of his services on par with others in the cadre of Assistant. If at all the organization is closed and VRS is contemplated, even the petitioner may be offered with the same benefit on par with other employees.
12. Learned counsel for the petitioner relied upon a decision in Bhagawati Prasad v. D.S.M. Development Corporation, 1990 (1) LLJ 320 wherein the apex Court held that the daily rated workmen of public sector corporation are entitled to equal pay at par with the persons appointed on a regular basis to similar posts or discharge similar duties and are entitled to the scale of pay and all allowances revised from time to time. The learned counsel also relied upon the Judgment in Govt. of Tamil Nadu v. T.N. Race Course General Employees Union, 1993 (1) LLJ 977 wherein a Division Bench of the Madras High Court held that it is settled law that to employ workman as casuals and continue them as such for years with the object of depriving them of the status and privileges of permanent workman is unfair labour practice. The facts in the instant case are almost identical to the facts in the said decision. Therefore, denial of regularization and not putting the petitioner on regular scale of pay amounts to indulging in unfair labour practice.
13. Sri P. Nageswara Sree, learned counsel for the respondent, contended that as the petitioner is appointed on contract basis, he is not entitled for regularization of his services. In support of his contention, he relied upon the decision of a learned single Judge of this Court in P.R. Krishna Reddy v. Director, National Remote Sensing Agency, . That is a case where the post was purely temporary for a period of one year against a project and carried a consolidated monthly salary. The petitioners therein applied for the posts. They were appointed in the year 1991 as Project Scientists (Geography) for a period of one year. Their term was extended for a further period of one year and subsequent extensions were given. Later, on 6-6-1994 they were appointed on contract basis with periodical extensions upto 2-12-1995 in the case of the 1st petitioner and upto 30-11-1995 in the case of the 2nd petitioner. They claim that conversion of jobs into a contract was only a camouflage for the purpose of defeating their claim for regularization. They, therefore, filed the Writ Petition seeking a direction to the respondents to absorb them in regular vacancies. In the set of circumstances arose in the said Writ Petition, it was held that the petitioners therein cannot claim regularization. But, in the instant case, the petitioner is being continued for 17 years and the best of his life has been spent serving the respondent-organization as temporary employee and as such, the principle laid down in the said judgment, has no application to the facts of this case. It is further required to note that Smt. Rajini and Sri Jamal, who were far juniors to the petitioner and appointed in the cadre of Assistant were regularly appointed and put on scale applicable to the said cadre; whereas the petitioner, though, is senior to them, is being continued on contract basis taking advantage of the initial appointment order.
14. As stated above, this is not a case of procuring employment by back door method and seeking regularization of service and pay scale. This is a case where the services of the petitioner are being utilized on contract basis, even though there is a necessity of a regular vacancy as the petitioner is being continued for more than 17 years. Now, it is well settled that once the appointment made was not by back door method and the employee is continued for unreasonably long period by the management itself, it must be deemed that there is a regular work and vacancy. After serving for more than 17 years, the petitioner cannot be thrown out on the ground of technicality.
15. For all the above reasons, this Court is of the opinion that the petitioner is entitled for being appointed on regular basis and put on the regular pay scale applicable to the cadre of Assistant/Typist in the respondent-organization.
16. Now coming to Writ Petition No. 29055 of 1995, it is noticed that in view of the interim orders granted by this Court on 24-1-1996 in W.P.M.P.Nos. 35871 and 35872 of 1995, the petitioner was put on minimum scale of pay as applicable to the cadre of Assistant. In the overall circumstances of this case, the respondents are directed to fix the pay of the petitioner in the scale applicable to the employees in the cadre of Assistant with effect from January, 1995 and grant all the increments and other benefits from that date. However, his services shall be regularized from the date of his initial appointment i.e. 19-11-1986. In case, the petitioner is also sought to be offered voluntary retirement scheme along with other employees, the benefits flowing out of this order shall be calculated and paid to him.
17. Accordingly, the Writ Petitions are disposed of No order as to costs.