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Judgment
In this writ petition, the petitioner is seeking a writ of mandamus calling for the records relating to the show cause notice Roc.No.E-292582/326/2018/RDMA/A3, dt.01.04.2021 issued by the respondent No.3 and the G.O.Rt.No.271, MA and UD dt.29.03.2019 issued by the respondent No.1 in exercise of powers under Section 59 of the Municipalities Act, as invalid and ultra Virus Section 59 of the Act and to declare the same as illegal, arbitrary and in violation of the principles of natural justice and contrary to the orders passed by this Court in W.P.No.12099/2018, W.P.No.43878/2018, dt.29.03.2019 and in W.P.No.6966/2019, dt.02.04.2019 and consequently to direct the respondents to continue the petitioner as Health Assistant in Mahabubnagar Municipality and to pass such other order or orders.
Brief facts leading to the filing of the present writ petition are that the petitioner was selected and appointed as Health Assistant in terms of Council Resolution No.1034, dated 24.01.2005 vide Proceedings No.F1/1419/2005, dated 24.01.2005 issued by the Chairperson, Municipal Council, Mahabubnagar, pursuant to the advertisement issued in the newspaper on behalf of the Mahabubnagar Municipality and having regard to the petitioner’s eligibility and qualifications. However, the petitioner was being denied wages as per the Government Orders and therefore, the petitioner filed O.A.No.1088 of 2008 before A.P.Administrative Tribunal and initially by way of Interim Order dated 26.12.2008, Tribunal was pleased to direct the respondents therein to pay basic pay as per Para-2 of G.O.Rt.No.217, dated 26.02.2001 and as per Para-4 of G.O.Ms.No.10, dated 08.01.2008. Pursuant to the Interim Orders, Municipal Council has passed resolution No.30 dated 30.05.2009 to pay wages with effect from 24.01.2006 and further resolved to regularize the services of the petitioner with effect from 01.06.2009 vide Proceedings Rc.No.C1/4750/2008-09 dated 10.05.2010 and the said proceedings were issued by the Chairperson, Municipal Council, Mahabubnagar Municipality.
Pursuant thereto, the Government issued G.O.Rt.No.959 dated 15.06.2013 permitting the respondent No.2 to authorize respondent No.4 to send proposals to the District Audit Officer for payment of arrears to the petitioner as Health Assistant through Treasury under 010 Head of Account on par with other employees of the Municipality. Accordingly, the Special Officer and District Collector, Mahabubnagar, issued Proceedings Rc.No.C1/4435/2013 dated 28.06.2013 permitting the petitioner to draw the pay and allowance from Treasury and accordingly, the petitioner claims to be drawing pay and allowances.
The respondent No.4, thereafter, addressed a letter vide Lr.Roc.No.C1/9044/2013, dated 05.07.2013 to the respondent No.3 recommending inclusion of petitioner’s name in the seniority list of Health Assistants, but when the respondent No.3 has communicated the tentative seniority list of Health Assistants vide Proceedings dated 26.07.2016, the petitioner’s name was not included therein. It is submitted that the respondent No.4 later sent proposals for inclusion of names of others and the petitioner submitted his representation dated 27.12.2016 to the respondent No.3 with a request to include his name in the seniority list, but when the name of the petitioner was not included, the petitioner filed W.P.No.37849 of 2017 assailing the action of the respondents in not including the petitioner’s name in the seniority list and further denying promotion as Sanitary Inspector. Further aggrieved in promoting the petitioner’s junior as Sanitary Inspector vide Proceedings dated 27.10.2017, the petitioner filed another writ petition in W.P.No.12099 of 2018 and an interim order dated 10.04.2018 was passed therein, but the same was not complied with and therefore the petitioner filed Contempt Case No.2511 of 2018.
It is submitted that the respondents, thereafter filed a stay vacate petition in W.P.No.12099 of 2018 and the respondent No.3 issued an order rejecting the petitioner’s claim for inclusion in the seniority list terming petitioner’s employment as Contractual vide Proceedings No.326/2012/RDMA/A1, dated 13.08.2018 without even referring to the order of regularization and earlier litigation. Aggrieved by the said order dated 13.08.2018 issued by the respondent No.3, the petitioner filed W.P.No.43878 of 2018. This Court vide final orders dated 29.03.2019 disposed of the W.P.No.12099 of 2018 and W.P.No.43878 of 2018 directing the respondents to consider the petitioner’s case for promotion duly observing that the petitioner was entitled to be promoted as Sanitary Inspector. Thereafter, at the time of dictation of order by the Hon’ble Court, it was submitted that the impugned orders G.O.Rt.No.271 MA, dated 29.03.2019 was issued only to frustrate the petitioner’s claim for promotion and to defeat the judgment rendered in earlier two writ petitions. It is submitted that G.O.Rt.No.271, Municipal Administration & Urban Development (TPE2), dated 29.03.2019 was passed by the Municipal Council, Mahabubnagar Municipality, cancelling the Council Resolution No.1034, dated 24.01.2005 and Council Resolution No.30, dated 30.05.2009. Thus, the petitioner was constrained to approach this Court by filing W.P.No.6966 of 2019 and the same was disposed of by observing that the learned Government Pleader appearing for the respondents, on instructions, submitted that the respondents would withdraw the impugned orders and an opportunity would be given to the petitioner and thereafter appropriate orders will be passed in accordance with law and thus, writ petition was closed. Thereafter, the respondent No.3 issued show cause notice Roc.No.E-292582/326/2018/ RDMA/A3, dated 01.04.2021 directing the petitioner to show cause as to why his services should not be terminated/dis-engaged consequent to proposed cancellation of CR No.1034, dated 24.01.2005 and CR No.30, dated 30.05.2009 with fourteen days from the date of receipt of the notice. Challenging the said show cause notice dated 01.04.2021 and a declaration that G.O.Rt.No.271, MA&UD Department, dated 29.03.2019 is invalid, the W.P.No.9206 of 2021 was filed.
While issuing the Notice before admission, vide interim orders dated 23.12.2022 in W.P.No.45737 of 2022, this Court had directed the respondents not to fill up one post of Sanitary Inspector in Zone-VII (Jogulamba region) pending further orders. Subsequently, at the admission stage vide orders dated 12.04.2021 the impugned show cause notice dated 01.04.2021 was suspended. Subsequently thereto, the respondents have withdrawn the G.O.Rt.No.271, MA&UD Department, dated 29.03.2019, vide G.O.Rt.No.745, dated 23.11.2022. Subsequently, respondent No.3 prepared a tentative seniority list of the Health Assistants working in the region, but the petitioner’s name did not find place in the said list which was prepared vide Memo dated 24.11.2022. Therefore, the petitioner made a representation dated 02.12.2022 to the respondent No.2 herein seeking consideration of his case for inclusion in the seniority list, but no action was taken and therefore, he filed W.P.No.45737 of 2022.
This Court after taking note of all the above circumstances, has directed the respondents not to fill up one post of Sanitary Inspector in Zone-VII (Jogulamba region) pending further orders.
In view of the above facts and circumstances, the W.P.No.9206 of 2021 has become infructuous and it is accordingly closed as infructuous.
In respect of the W.P.No.45737 of 2022, the respondents have filed a counter affidavit admitting that the Government Orders issued in G.O.Ms.No.271, dated 29.03.2019 regarding cancellation of council resolution of appointment and regularization of services of the petitioner made irregularly without Government permission, was withdrawn in G.O.Rt.No.745, dated 23.11.2022. However, it is stated that since his appointment has been on contract basis and regularization has been done without obtaining the permission from the Government, his case cannot be considered for inclusion in the seniority list of Health Assistants.
Learned counsel for the petitioner submitted that once the cancellation of regularization has been withdrawn by the Government, the consequences that follow are that the regularization of the services of the petitioner have become valid and therefore, the petitioner is entitled for inclusion of his name in the seniority list of the Health Assistants and subsequent promotion.
Learned Government Pleader, however, supported the orders of the authorities below.
Having regard to the rival contentions and the material on record, this Court finds that the withdrawal of G.O.Rt.No.271, dated 29.03.2019 vide G.O.Rt.No.745, dated 23.11.2022, the appointment of the petitioner and subsequent regularization have been validated. Having done so, the respondents cannot now take a stand that the appointment of the petitioner is irregular. The consequential benefits of regularization have to be given to the petitioner and therefore, the petitioner is eligible for consideration and inclusion of his name in the seniority list of Health Assistants and all consequential benefits thereafter. It is noticed that the petitioner had approached this Court on a number of occasions and the respondents have been taking stand that his appointment was irregular and this Court has not accepted the said contention all along and ultimately, the respondents have withdrawn the cancellation of his appointment as well as his regularization.
In view of the same, this Court deems it fit and proper to direct the respondents to include the name of the petitioner in the seniority list of Health Assistants and confer all the consequential benefits including promotion to the petitioner as per his eligibility and seniority.
Accordingly, the W.P.No.45737 of 2022 is allowed and W.P.No.9206 of 2021 is closed as infructuous. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in these writ petitions, shall stand closed.