Telangana State Pollution Control Board vs V R Maheswara Rao & Others

D.V.S.S. Somayajulu, J

This Court has heard Smt.B.Vasantha Lakshmi, learned counsel for the appellant and learned senior counsel Sri M.Vijay Kumar representing the respondents.

The appellant is the Telangana Pollution Control Board. At the outset, learned counsel for the appellant points out that the writ appeal is confined to respondent Nos.3, 9, 11, 13, 14, 16, 19, 22, 25, 26, 28, 29, 31, 34, 35 and 37 only and not against other respondents.

W.P.No.35477 of 2013 is initially filed by 37 writ petitioners against the Andhra Pradesh Pollution Control Board and the Telangana State Pollution Control Board. The petitioners are all employees in the said Pollution Control Boards. It is their contention that they were initially employed in 2001 and regularized in 2005. They are claiming regularization from the date of their initial employment and also for application of Andhra Pradesh Revised Pension Rules etc. Representations made were rejected by a resolution dated 04.12.2012. This was challenged in the writ petition. The learned single Judge allowed the writ petition and held that the petitioners are entitled to regularization from the date of their initial employment along with all consequential benefits including the Andhra Pradesh Revised Pension Rules.

Smt. B.Vasantha Lakshmi, learned counsel for the appellant argues that the order passed is contrary to law. It is pointed out that the various issues raised in the counter are not adequately or properly discussed. It is also submitted that the writ petitioners entered into a contract with their eyes wide open in the initial period. This recruitment by contract was due to a ban in the recruitment into the pollution boards. It is pointed out that the writ petitioners are educated professionals, who have entered into contracts for employment in the year 2001. Later, after seeking permissions/approvals etc., their services were regularized in the year 2005 by the Pollution Control Board. It is pointed out that it is not a case of continuing the writ petitioners for decades together and after pursuing the matter at the requisite levels their services were regularized within four years of initial recruitment. All these issues were not considered according to the learned counsel in the impugned order. It is also pointed out that the relevant Government Orders on the subject including the Government Orders relied with regard to Revised Pension Scheme were not considered by the learned single Judge. Lastly, it is pointed out that the conduct of the petitioners, who accepted the order dated 26.05.2005 for regularization estops them from claiming any relief. Learned counsel also relies upon judgment reported in Surendra Kumar and others v. Greater Noida Industrial Development Authority and others (2015) 14 SCC 382. Therefore, it is prayed that the order of the learned single Judge should be set aside as far as the respondents mentioned above are concerned.

Sri M.Vijay Kumar, learned senior counsel for the writ petitioners- present respondents also argues the matter at length. He points out that all the writ petitioners were recruited in available vacancies after an advertisement and after an examination and interview. Therefore, he submits that the due process was followed all through in recruiting the writ petitioners. Since there was a need to fill the posts, which were available, the writ petitioners were recruited. Thereafter, they were regularized on 26.12.2005. It is pointed out that at that stage, the writ petitioners had no choice but to accept the conditions under which they were regularized. It is also pointed out that earlier batch of employees who were regularized were given the benefits, while the writ petitioners are discriminated against. It is also pointed out that the State of Andhra Pradesh Pollution Control Board is implementing the order. The Telangana Pollution Control Board is challenging the same. This is also said to be an instance of discrimination. Learned counsel also relies upon the case reported in Arjun Singh and others v. State of Himachal Pradesh and others (2015) 15 SCC 713 to buttress his submissions. It is argued that in line with this judgment, the date of initial appointment should be considered with all necessary benefits.

COURT: This Court after hearing the submissions notices that it is a fact that there were vacancies existing in which a recruitment had to be carried out. However, the Principal Secretary to the Government directed the Andhra Pradesh Pollution Control Board (as it then was) to fill up the vacancies for the post of Assistant Environmental Engineer and Analysts in a phased manner. The State directed the Board to recruit persons for these posts on contract basis for three years only. Advertisements were made in the newspaper inviting applications for appointment by direct contract for a period of three years only. In bold capital letters it is mentioned as ‘Contract Employment Notification’. Even the extensions of the last date for application which were made in the papers clearly say that ‘extension of last date for contract employment’ for three years. The letters addressed to the employment exchanges also specified that the selected persons would be on a contract for three years. The writ petitioners applied for the posts and they were selected after the test and interview. In the appointment order itself, it is specified that it is on a contract basis with a consolidated pay of Rs.7,500/- for a period of three years only. A bond is to be executed for rendering services for three years along with sureties. It was clearly specified that the writ petitioners are not entitled to any other allowance or benefit except the consolidated pay indicated above. Lastly, it was specified that in case the same is acceptable, the candidate should report for duty. Pursuant to this, the writ petitioners were appointed and joined in their respective posts. After the matter underwent some amount of correspondence, orders of regularization were issued on 26.12.2005. The scale of pay was fixed in this order of regularization. It was also clearly specified that the individuals are not (a) entitled to/eligible for any service benefits for the contract period served earlier in the Board and (b) their services will be accounted from the date of joining in the regular post. It is also informed that they would be on probation for a fixed period and that physical fitness certificates and other certificates should be produced.

The question that therefore arises now is, whether learned single Judge was right in the light of these documents and the clauses therein in passing the impugned order?

This Court notices that the element of compulsion or lack of choice which is articulated by the learned senior counsel is not supported by adequate pleading or evidence. Admittedly, all the writ petitioners (present respondents) are educated professionals. The advertisement under which they appeared is crystal clear. It talks of a three year contact only. They accepted the same and joined in the services. Later, when the regularization was given also in 2005, they were clearly informed that they are not eligible for any service benefits for the period served earlier in the Board and that their services would be accounted from the date of joining in the regular post. This was also accepted by the employees in question. With their eyes wide open they entered into the contracts in question. They cannot now turn around/reprobate.

In the opinion of this Court, the case relied upon by the learned counsel for the appellant in Surendra Kumar is applicable. In this case also, the appellants were engaged on contractual basis. They were recruited through an advertisement. A policy of regularization was later framed and was to give benefits only from the date of the appointment. This Court held that once the appellant accepted the appointment orders and joined the post, they cannot turn around and claim regularization with retrospective effect. The judgment cited by the learned senior counsel on the other hand is distinguishable. It was found by the Hon’ble Supreme Court that the term condition of payment of 50% of regular pay and the nature of appointment on contract basis is contrary to the decision taken by the Electricity Board itself. Therefore, it was held that it is not a case of regularization of services of appellants, but it is a case where a direction had to be issued to provide the appellants with orders of regular appointment from the date of their initial appointment.

In the case on hand, this Court finds that there is a rationale/reason for recruitment on contract basis. As mentioned earlier in this order; the State Government at the very outset did not give any permission to the Pollution Control Board to recruit the employees on regular basis. The very first direction which is available on the record shows that the State Government directed the Pollution Control Board to recruit the Officers on contract basis only. Advertisements were also issued inviting applications on contract basis. Offers of appointment issued clearly said that the incumbents will work on consolidated salary and would not be entitled to any allowance or benefits except consolidated pay. All of these were accepted and for four years the writ petitioners worked under these conditions. Thereafter, after pursuing the matter by the Board, a decision was taken to regularize the employees with effect from the date of joining on a regular basis only without any eligibility for service benefits for the contract period.

In the opinion of this Court, these facts make a vital difference to the applicability of the judgment relied on by the learned senior counsel. Even a difference of one fact can make a difference to the applicability of the case as per the settled law (Bharat Petroleum Corporation v. N.R.Vairamani and another (2004) 8 SCC 579).

Even the Government Orders with relation to pension, namely G.O.Ms.No.653 and 654 clearly states that the pension scheme will not apply to any appointment made on or after 01.09.2004. this is clear from a reading of these orders itself. The petitioners were appointed in 2005 only on a regular basis.

Therefore, on a consideration of all the facts, this Court is of the opinion that the order of he learned single Judge is not sustainable both on fact and in law and the appeal has to succeed.

The writ appeal is therefore allowed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.