An employee who has been wrongfully terminated from service and subsequently reinstated by a court order is entitled to regularization of his services under G.O.Ms.No.212, dated 22.04.1994, if he has the requisite qualification and has been in continuous service for more than five years as on the cut-off date.

JUDGMENT

(Per Hon’ble Sri Justice Joymalya Bagchi)

1. Petitioner had a chequered career after he had been appointed as NMR Work Inspector in the Irrigation Department on 01.08.1984. He worked in the office of the 5th respondent, i.e., Deputy Executive Engineer, Drainage Sub- Division, Bhimavaram, West Godavari District till 31.08.1987. On 01.09.1987, he was orally terminated. Petitioner challenged the order of termination before the Labour Court, Guntur. By Award dated 15.09.2001, the Labour Court set aside the termination and directed reinstatement of the petitioner in service without back wages. The Award of the Labour Court was challenged by the Department in the High Court in W.P.No.14480 of 2006 (‘first writ petition’).

2. During the pendency of the first writ petition, the petitioner was reinstated into service on 29.03.2005 and was again terminated on 29.05.2005, which was challenged by the petitioner in a subsequent writ petition being W.P.No.12755 of 2005 (‘second writ petition’).

3. In the year 2011, the first writ petition filed by the Department was dismissed and by order dated 14.02.2011, the High Court confirmed the order of the Labour Court and it was directed that the petitioner shall be deemed to be in continuous service from 01.08.1984 till 29.05.2005, i.e., the date of his subsequent termination.

4. At this stage, the petitioner approached the Tribunal in the present O.A and sought regularization of his services in view of G.O.Ms.No.212, Finance & Planning (FW.PC-II) Department, dated 22.04.1994. His prayer was, however, turned down by the impugned order dated 25.11.2014 inter alia on the ground that the petitioner had been terminated in May 2005 and was not in service as on the date of institution of the OA.

5. Mr. Pitchaiah, learned counsel appearing for the petitioner submit that the ground on which the Tribunal dismissed the OA, no longer survives in view of the judgment dated 05.10.2018 delivered by this Court in the second writ petition, wherein the subsequent order of termination was set aside and it was directed that the petitioner was deemed to be in service from the date of retrenchment with all consequential benefits. It is next contended that the other grounds, namely, lack of vacancy and qualification for regularization are unfounded as the NMRs junior to the writ petitioner were absorbed in the same Department and the petitioner has requisite secondary and ITI qualification.

6. Learned Government Pleader for Services-III submit that the petitioner was not in service at the time when the order was passed by the Tribunal and he had not rendered any services which would entitle him to seek regularization.

7. With regard to the primary issue that the petitioner was not in service at the time when the OA was instituted and therefore could not seek regularization, we are of the view the same may not be tenable in view of the subsequent order passed by this Court in the second writ petition. The petitioner had been employed as NMR in the Department on 01.08.1984 and had continued in service till 31.08.1987. Thereafter, his service was artificially broken by wrongful orders of termination initially on 01.09.1987 and thereafter on 29.05.2005. The first order of termination was set aside by the Labour Court vide Award, dated 15.09.2001 and the petitioner was directed to be reinstated with continuity of service but without back wages. The subsequent order of termination has also been set aside and this time by this Court in the second writ petition, wherein the learned Single Judge has observed that the petitioner shall be continued in service from the date of retrenchment. Hence, by operation of the aforesaid judicial orders, petitioner is deemed to be in continuous service from 01.08.1984 onwards. As the second order of termination was subsequently set aside with a direction for continuity in service, the finding of the Tribunal that the petitioner was not in service so as to direct regularization no longer sur