P. Babaiah Vs. Govt. of A.P., Rep. by Its Secretary, Finance Dept. and ors. - Court Judgment

Excerpt:
- specific relief act, 1963 [c.a. no. 47/1963]. sections 31 & 34: [bilal nazki, v.v.s. rao & g. chandraiah, jj] [per court] cancellation of registered sale deed inherent power of registering authority - fraudulent transfer of property sale taking place by reason of fraud played by transferor and transferee held, it is void. true owner can nullify the sale by executing and registering a cancellation deed without seeking declaration or cancellation of fraudulent transfer deed from court. registering authority is empowered to cancel sale deed earlier registered. registration of document cannot be understood to be an absolute sale divesting vender of its title else it would render sections 31 and 34 of specific relief act, otiose. -- transfer of property act,1882[c.a. no. 4/1882]. sections 53 & 126: [per court] cancellation of registered sale deed inherent power of registering authority - fraudulent transfer of property sale taking place by reason of fraud played by transferor and transferee held, it is void. true owner can nullify the sale by executing and registering a cancellation deed without seeking declaration or cancellation of fraudulent transfer deed from court. registering authority is empowered to cancel sale deed earlier registered. registration of document cannot be understood to be an absolute sale divesting vender of its title else it would render sections 31 and 34 of specific relief act, otiose. - iii) department, dated 13-11-1989 with effect from 16-3-1990 as he completed five years of service as on 15-3-1990 and satisfied the other requirements of the said g. iii) department, dated 22-4-1994 and submits that as the petitioner had been continuously working for a minimum period of five years and was continuing on 25-11-1993, he should be regularised in view of the fact that the petitioner satisfied all the conditions imposed therein. 212, dated 22-4-1994 and that he would be entitled to the benefits thereunder, if he satisfied the conditions for regularisation specified therein.s. parvatha rao, j.1. the petitioner in this writ petition was appointed as full time masalchi under proceedings dated 15-3-1985 by the munsif magistrate, hyderabad east and north basing on the proceedings of the 2nd respondent, dated 26-5-1985 and proceedings in memo dis. no. 1402/85-a, dated 13-3-1985 of the 3rd respondent i.e. the district judge, ranga reddy district at saroornagar, and he has been continuously working since then as a full time masalchi. he was also paid the remuneration at rs. 740/- per month pursuant to g.o.ms. no. 344, finance and planning (fw.prc.iii) department, dated 13-11-1989 with effect from 16-3-1990 as he completed five years of service as on 15-3-1990 and satisfied the other requirements of the said g.o. he contends that he is covered by g.o. (p) no. 259, finance and planning (fw.pc.ii) department, dated 18-6-1993 and the post in which he has been working has to be converted into a regular government post in the last grade service as per the said g.o. with immediate effect subject to the conditions mentioned therein.2. but reading g.o. (p) no. 259, dated 18-6-1993 we find that unless the petitioner completed 10 years of service as on 1-6-1991, he will not be attracted by the said g.o. in the circumstances, the petitioner cannot rely upon the judgment of this court, dated 8-10-1996 in writ petition no. 25326 of 1995. however, the learned counsel for the petitioner relies on g.o. ms no. 212, finance and planning(fw.pc.iii) department, dated 22-4-1994 and submits that as the petitioner had been continuously working for a minimum period of five years and was continuing on 25-11-1993, he should be regularised in view of the fact that the petitioner satisfied all the conditions imposed therein. he also relies on the decision of a division bench of this court, of which one of us (s. parvatha rao, j.) was a member, in government of andhra pradesh and ors. v. a. narayana swamy and ors., 1995 (2) ald 403 (d.b.).3. in that case, after considering the various provisions of the andhra pradesh (regulation of appointments to public services and rationalisation of staff pattern and pay structure) act, 1994 ('the act' for short), the division bench held as follows:-'sub-section (1) of section 3 prohibits the appointment of any person in any public service as a daily wage employee. therefore, after the commencement of the act, there can be no daily wage employee appointed in any public service. when section 7 refers to a person who is a daily wage employee, obviously it refers to a person who was so appointed prior to the commencement of the act. in the case of temporary appointments, sub-section (2) of section 3 does not totally prohibit such appointments it provides that such appointments shall be made only subject to two conditions: (i) prior permission of the competent authority; and (ii) the name of the concerned candidate being sponsored by the employment exchange. such are the temporary appointments allowed under section 3 after the coming into force of the act - no other temporary appointment can be made after the act came into force: the language of sub-section (2) of section 3 is imperative being in negative terms. but those appointed on a temporary basis prior to the commencement of the act might be continuing even after its commencement. it is obvious that section 7 purports to deal with these two categories of persons appointed on temporary basis when it says 'no person who is appointed on a temporary basis under section 3 and is continuing as such at the commencement of this act.......'. we make the same clear and unambiguous by reading it as 'no person who is appointed on a temporary basis under section 3 and no person who is continuing as such at the commencement of this act'.4. in view of the order of the government of andhra pradesh in g.o.ms no. 212, dated 22-4-1994, this court directed the authorities concerned to consider the cases of the teachers, etc. , in those cases for regularisation as per the said g.o. and pass final orders in that regard within six months, and that, in the meanwhile, they should be continued till final orders are made. orders in the said g.o.ms no. 212 were issued by the government when some government employees approached the supreme court by way of writ petition (civil) no. 31/94 and 159/94(2) questioning the vires of the act. the supreme court disposed of the said matters by order dated 2-5-1994 observing as follows:-'during the pendency of these writ petitions the respondent-state government has prepared a scheme for regularisation and has issued g.o.ms no. 212, dated 22nd april, 1994 in that behalf. the learned counsel for the state says that it has been averred in the counter affidavit that those petitioners of these writ petitions, who are entitled to be regularised under the said g.o. will be given the benefit thereof. in view of this statement and in view of the issuance of the g.o. the learned counsel for the petitioners also states that nothing further survives but they contend that the implementation process must be completed within a reasonable time, say four months from today. the learned counsel for the state, however, says that some more time would be required for the purpose of completing the regularisation process. we think it would be reasonable to grant them six months time to do sp. the petitions will stand disposed of accordingly.'5. mr. p. ravi prasad appearing for respondents 2 and 3 has placed before us communication in letter dis no. 564/97, dated 29-1-1997 from the 3rd respondent to the 2nd respondent, wherein he has stated that the petitioner in this writ petition was appointed as a full time masalchi in the court of munsif magistrate, hyderabad east and north with effect from 15-3-1985 and that he was working in the court of principal district munsif, west and south on the date of that communication. it is also stated that the petitioner was being given rs. 740/- per month with other allowances with effect from 16-3-1990 as per g.o.ms no. 344/89, dated 13-11-1989.6. that is also stated in the counter affidavit dated 13-3-1997 given by the joint secretary to government, finance and planning (f.w.) department on behalf of the 1st and 4th respondents. in that counter affidavit, it is further stated that g.o.(p) no. 259, finance and planning (fw.pc.ii) department, dated 18-6-1993 is not attracted to the petitioner because he did not complete ten years as on 1-6-1991 because he was appointed as full time masalchi with effect from 15-3-1985 and that, therefore, he is not eligible for conversion to last grade service post as per the said g.o. and that the decision of this court in writ petition no. 25326/1995 dated 8-10-1996 has no application to the facts of the present case.7. the learned advocate general appearing for respondent 1 and 4 does not dispute that the petitioner is a daily wage employee as defined in clause (ii) of section 2 of the act and that, as the petitioner had completed five years by 25-11-1993, he is attracted by g.o.ms no. 212, dated 22-4-1994 and that he would be entitled to the benefits thereunder, if he satisfied the conditions for regularisation specified therein. in view of the guidance given by the order of the supreme court dated 2-5-1994 in g. mallaiah's case, [(g. malhiah v. state of andhra pradesh (w.p. (civil) no. 31/94 and 159/94 of supreme court)] and in view of the decision of this court in narayana swamy's case (1 supra), we direct the respondents to implement the g.o.ms. no. 212, dated 22-4-1994 in respect of the petitioner within four months from the date of receipt of a copy of this judgment.8. under clause (a) of rule 5 of the andhra pradesh last grade service rules, 1992 the qualification for appointment to the post of masalchi, which falls under category 8 of rule 2 of those rules, is 'must be able to read and write telugu or urdu or english or hindi.' according to the petitioner, he was aged about 21 years when he was appointed as a full time masalchi. in state of haryana v. piara singh, : (1993)iillj937sc a three judges bench of the supreme court observed as follows:-'ordinarily speaking, the creation and abolition of a post is the prerogative of the executive. it is the executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. this power to prescribe the conditions of service can be exercised either by making rules under the proviso to article 309 of the constitution or (in the absence of such rules) by issuing rules / instructions in exercise of its executive power. the court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any, governing the conditions of service. the main concern of the court in such matters is to ensure the rule of law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of articles 14 and 16. it also means that the state should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. as is often said, the state must be a model employer. it is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the constitution. it is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularisation. while all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above. the principles relevant in this behalf are stated by this court in several decisions, of which it would be sufficient to mention two decisions having a bearing upon the issue involved here. they are dharward distt. p. w.d. literate daily wage employees association v. state of karnataka : (1990)iillj318sc and jacob m. puthuparambil v. kerala water authority : (1991)iillj65sc '.it is not the case of the respondents, including respondents 2 and 3, that the services of the petitioner are not required. if that was so, the respondents could have terminated the services of the petitioner under section 7 of the act which provides as follows:-'bar for regularisation of services:-no person who is a daily wage employee and no person who is appointed on a temporary basis under section 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 25-f 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.explanation: for the removal of doubts it is hereby declared that the termination of services under this section shall not be deemed to be dismissal or removal from service within the meaning of article 311 of the constitution or of any other relevant law providing for the dismissal or removal of employees but shall only amount to termination simpliciter, not amounting to any punishment.'the very fact that his services have not been terminated till now establishes that his services are required by the court concerned. all these aspects will have to be taken into consideration by the respondents and due consideration given in regularisation of the services of the petitioner under g.o.ms no. 212, dated 22-4-1994.9. the writ petition is, accordingly, allowed. no costs.