Govt. of A.P. and Others vs M. Nageshwar Rao, Attender, Home Department

Ghulam Mohammed, J.—This writ petition is filed by the State represented by the Principal Secretary, Home Department, Hyderabad, and other officers, against the order dated 14-11-2006 passed in OA No. 4908 of 2005 with VMA No. 822 of 2005 by the AP Administrative Tribunal, Hyderabad.

The facts stated are:- The applicant-respondent herein was originally appointed and was working as Home Guard in Home Department at Hyderabad City. It is stated that the applicant made representation dated 28-10-2003 to the Government requesting to appoint him as Attender/Sweeper/Watchman in relaxation of rules as a special case in Home Department. The 1st petitioner-Principal Secretary, Home Department, acting on the representation, issued orders in G.O. Ms. No. 51, Home (OP-1) Department, dated 13-2-2004 and appointed him as Attender in Home Department, Secretariat, on temporary basis under Rule 10(a) of AP State and Subordinate Service Rules, in the scale of pay of Rs. 2650-50-2750-60-3050-80-3450-100-3950-120-4550-150-4850/- in relaxation of rules as a special case and the applicant joined duty with effect from 16-2-2004. That in the said G.O.Ms. No. 51, dated 13-2-2004, it was mentioned that his appointment was purely temporary and is liable to be terminated at any time without any notice and the said order cannot be quoted as precedent in future.

It is stated that pursuant to his appointment, as the applicant was not paid salary attached to the post of Attender, the applicant filed O.A. No. 3617 of 2005 seeking a direction to the authorities to release the salary attached to the post of Attender. Pursuant to the filing of O.A. No. 3617 of 2005, the 1st petitioner-Principal Secretary passed G.O.Ms. No. 174, Home (O.P-I) Department, dated 22-8-2005 cancelling his appointment as Attender in the Home Department and restored him to his original post of Home Guard. In the present OA, the said proceedings issued in G.O.Ms. No. 174, dated 22-8-2006 were called in question by the applicant before the Tribunal. The Tribunal by the impugned order, allowed the O.A and the connected O.A No. 3617 of 2005, by observing that the provisions Act 2 of 1994 are not applicable to the case of the applicant as he was appointed by the competent authority and accordingly directed authorities to pay salary to the post attached to which the applicant was appointed pursuant to the orders issued in G.O.Ms. No. 51, dated 13-2-2004. Assailing the said order, the State has filed this writ petition.

Heard the learned Government Pleader for Services-I appearing for the petitioners and the learned Counsel for the 1st respondent-applicant. Perused the impugned order passed by the Tribunal.

Section 3 of the A.P. (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994, (Act 2 of 1994), deals with prohibition of daily wage appointment and regularisation of temporary appointments. The said Section 3 of the Act reads thus:

3(1) The appointment of any person in any public service to any post, in any class, category or grade as a daily wage employee is hereby prohibited.

(2) No temporary appointment shall be made in any public service to any post, in any class, category or grade without the prior permission of the competent authority and without the name of the concerned candidate being sponsored by the Employment Exchange.

Further Section 7 of the Act deals with the bar of regularization of services, reads thus:

No person who is a daily wage employee and no person who is appointed on a temporary basis u/s 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 regularisation 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 Section 25F of the Industrial Disputes Act, 1947, one month''s 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.

It is clear from a reading of the above provisions that no temporary appointment shall be made in any public service to any post, in any class, category or grade without the prior permission of the competent authority and without the name of the concerned candidate being sponsored by the Employment Exchange. The temporary appointment of the applicant made in G.O.Ms. No. 51, dated 13-2-2004 was contrary to Section 3 of the Act as it was made without obtaining prior sanction and that mistake was sought to be rectified by the authorities by issuing G.O.Ms. No. 174, dated 22-8-2005. Under those circumstances, we are of the view that the Tribunal ought not to have set aside the subsequent G.O.Ms. No. 174, dated 22-8-2005 issued cancelling the temporary appointment of the applicant made contrary to the provisions of Act 2 of 1994. When once an appointment to a public post is regulated to be made in accordance with certain rules governing such appointments, no other mode or method can justify such appointment. The provisions of Act 2 of 1994 are having overriding effect over all other laws in view of the express provision contained in Section 17 of the Act, which reads thus:

The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force or any judgment decree or order to any Court Tribunal or other authority.

In view of the above, any relaxation or any orders passed invoking the provision of the State and Sub-ordinate Service Rules cannot be allowed to prevail over the proceedings under Act 2 of 1994. Act 2 of 1994 was enacted with a sole object to prevent irregular and illegal appointments in public service and in view of the express provisions contained in the Act, the orders issued in G.O.Ms. No. 174, dated 22-8-2005 are valid and in accordance with law. In the circumstances, the impugned order passed by the Tribunal is hereby quashed and the writ petition is allowed. No order as to costs.