Andhra Pradesh High Court - Amravati
Dasari Umadevi vs The State Of Andhra Pradesh on 16 March, 2023
THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION No.25519 of 2021
Dasari Umadevi, D/o Anjaneyulu, aged 41 years, Occ: Contract
Lecturer, H.No.9/464/1k, Sayeedstreet, Kadiri (M),
Anantapuram (Dt) and 114 others.
... Petitioners
Versus
The State of Andhra Pradesh, Rep. by its Principal Secretary,
School Education Department, Amaravathi and two others.
... Respondents
Counsel for the petitioners : Sri Y. Koteswara Rao,
learned counsel
Counsel for respondents : Learned Government
Pleader for Services-III
ORDER:
Petitioners, 115 in number, filed the above writ petition under Article 226 of the Constitution of India for issuance of Writ of Mandamus, seeking regularization of their services with effect from their respective dates of their appointments, to recognize the seniority, to pay time scale salary and to pay interim relief at the rate of 27 percent to the petitioners on par with the regular lecturers, to provide all the service facilities and monetary benefits etc.
2. 1st petitioner deposed to the affidavit on her behalf and on behalf of other petitioners. In the writ affidavit, it was contended inter alia that petitioners have been working as lecturers in Page 2 of 30 SRS,J W.P.No.25519 of 2021 various Government Junior Colleges in different Districts of Andhra Pradesh for more than ten years rising up to twenty years. Respective College committees appointed petitioners as Junior Lecturers on contract basis. The committees by applying pressure and coercion obtained signatures on prepared bonds. Petitioners were constrained to sign on the said bonds as they were in dire need of employment for their sustenance. Initially petitioners were paid Rs.5,000/- in rural areas and Rs.4,000/- urban areas towards their monthly salary. Said remuneration was being increased from time to time and monthly salary of Rs.31,100/- is being paid to the petitioners from the year, 2019. Contractual appointments were made till 2011 and subsequently, it was stopped. There was revision of pay scales of Junior Lecturers in the year, 2015 and several benefits of revision were not extended to the petitioners.
3. Vacant posts exist in all colleges where petitioners have been working. Since petitioners were not regularized, the present writ petition is filed.
4. Counter affidavit was filed by respondent No.3 on behalf of all the respondents. It was contended inter alia that a ban was imposed on part-time engagements after enactment of Act 02 of 1994. As a stop gap arrangement, Government took a policy decision to engage faculty on contract basis on need basis vide Page 3 of 30 SRS,J W.P.No.25519 of 2021 G.O.Rt.No.143, Higher Education (IE.2) Department, dated 09.10.2000 with an honorarium of Rs.4,000/- per month and additional honorarium of Rs.1,000/- per month in case of faculty appointed in Government Junior Colleges located in Tribal and Rural areas. As per Government Order, contract engagement was made for a maximum period of ten months in an academic year. The College Development Committee concerned would engage faculty basing on recommendations of three man committee consisting of 1) Principal of the Government Junior College concerned, 2) Subject expert either from the same Government Junior College or an adjacent Junior College and 3) Principal of another Junior College.
5. Qualification prescribed for the posts of Junior Lecturers in General stream is second class with not less than 50% of marks in Post Graduation in relevant subject/language. Remuneration is being enhanced from time to time. As per G.O.Ms.No.12 Finance (HR.I-Plg) Department dated 25.07.2019 ordered for payment of remuneration to the Contract Junior Lecturers for a period of twelve months with a break of ten days. Government, vide G.O.Ms.No.5, dated 17.01.2022, extended minimum time scale in Revised Pay Scales, 2022 w.e.f. 01.01.2022. Minimum time scale in revision pay scale, 2022 is being extended to contract employees engaged in Government Page 4 of 30 SRS,J W.P.No.25519 of 2021 Departments, Universities, Societies, KGBV and Model Schools. Thus, all the contract faculty are being paid Rs.57,100/- per month, which is minimum time scale to the post of Junior Lecturer.
6. Contract faculty is being engaged on contract basis only after executing contractual agreement bond with College Development Committee.
7. Contract faculty are availing all the benefits for which they are eligible as per contractual agreement and, also Government accorded permission to allow one day casual leave per month of actual contractual service on full remuneration with facility of accumulating and availing maximum of three days casual leave at a time, to contract Junior Lecturers working in Government Junior Colleges or Government Degree Colleges.
8. Government issued G.O.Ms.No.221 Education (CE.I-2) Department, dated 20.06.1995 for regularization of part time lecturers or lecturers working in Government Degree Colleges and Government Junior Colleges in the State. As per said Government Order, the candidates who have put in service of three academic years as on 30.07.1991 or five academic years as on 25.11.1993 with or without breaks and are continuing in service on 30.07.1991 and 25.11.1993 are eligible for Page 5 of 30 SRS,J W.P.No.25519 of 2021 regularization of services. The nature of appointment of petitioners is governed by Rule 9 of A.P. State Subordinate Service Rules.
9. Any appointments in regular vacancies are to be filed through the process by giving opportunity to all equally qualified persons to compete and meritorious will be selected or appointed. Contract employees have no legal right or claim for absorption. Contract appointments made between employees and Government, to meet needs of the Government are, purely on renewal basis only and petitioners are aware of the terms of their appointment. Thus, prayed to dismiss the writ petition.
10. Rejoinder was filed and the same was deposed petitioner No.1 on behalf of the petitioners. It was contended that a committee consisting of Commissioner (FAC), Intermediate Education and others was constituted for the purpose of regularization of contract lecturers working in Junior Colleges. The said committee through its proceedings in Lr.RC.No.Ser.II- 2/SPL/CCMLC-REG/2018, dated 19.03.2018 mentioned regularization of Junior Lecturers as one of the issues to be considered by the committee. Government of Andhra Pradesh issued G.O.Rt.No.1567 General Administration (Cabinet.I) Department, dated 10.07.2019 through which Government constituted a committee of group of ministers to examine the Page 6 of 30 SRS,J W.P.No.25519 of 2021 matter of regularization of services of contract employees, working in government departments.
11. School Education (IE) Department of Government of Andhra Pradesh through their Memo No.1506599/IE-A1-2021-2 dated 25.09.2021 requested Special Commissioner of Intermediate Education AP, Guntur (w.e.) to examine the request of regularization of contract Junior Lecturers working in Government Junior Colleges and take necessary action. Thus, prayed to allow the writ petition.
12. Heard Sri Y. Koteswara Rao learned counsel for the petitioners and Sri A.K.Naidu, learned Government Pleader, Services-III.
13. Learned counsel for the petitioners would contend that petitioners have been working in different Government Junior Colleges in the State of A.P. for more than ten years raising up to 20 years. He would also submit that petitioners were appointed against sanctioned post (without pleading in the affidavit) and hence, petitioners are entitled for regularization in view of the decision reported in State of Karnataka v. Umadevi1. He would also submit that Government extended minimum time scale to the petitioners. Time scale would be extended to the 1 (2006) 4 SCC 1 Page 7 of 30 SRS,J W.P.No.25519 of 2021 persons, who were appointed against sanctioned posts and hence, petitioners are entitled for regularization.
14. Learned counsel for the petitioners' placed reliance upon judgment in State of Karnataka & Ors. Vs. M.L. Kesari and Ors.2, Narendra Kumar Tiwari and Others v. State of Jharkhand and Others3 and would submit that in view of the ratio laid down in the said decisions, petitioners are entitled for regularization.
15. Learned Government Pleader, on the other hand, would contend that petitioners were appointed on contract basis. Petitioners were not appointed through selection process and also not against sanctioned posts. Even though petitioners were engaged on contract basis minimum time scale was extended by issuing G.O.Ms.No.5, dated 17.01.2022. There are no sanctioned posts and hence petitioners' case cannot be considered for regularization.
16. Whether petitioners who were appointed on contract basis are entitled for regularization or absorption in services?
17. As per the averments in the affidavit petitioners were engaged on contract basis only after executing contractual 2 2010 (9) SCC 247 3 2018 8 SCC 238 Page 8 of 30 SRS,J W.P.No.25519 of 2021 agreement bond with College Development Committee. Some of the relevant terms and conditions of contract are extracted hereunder:
3) The Second party agrees after being informed that, he or she is fully aware of the fact that his or her service is not being taken to fill up any vacancy either on temporary or permanent basis. That he or she will be paid an honorarium of Rs.37,100/- (Rupees thirty seven thousand one hundred only) per month in terms of G.O.Ms.No.12 Finance (HR.1-Plg & Policy) Department dated 28.01.2019 communicated in Proc. Rc. No. Ser.II -
2/SPL/CCMLC-TS/2018-1 dated 25.07.2019 during the contract period and that his or her contract shall automatically come to an end or expiry of the said period and that his or her contract shall automatically come to an end or expiry of the said period or on the report of a regular Junior Lecturer in that subject which is earlier. That the Second party agrees for the review of the performance by the first party periodically and also to receive the honorarum i.e. subject to revision in relation to the performance of the second party from time to time.
5) That the second party is not entitled for any other perks, allowances or any other facility except for the Honorarium payable monthly mentioned in condition 3 above.
7) That the service rendered during the contract period will not be considered and reckoned as part of any regular appointment for any post in Government and therefore no credit/weightage will be given for service rendered in the contract period and the service will not have any preferential right for regularization. Page 9 of 30 SRS,J W.P.No.25519 of 2021
15) The engagement shall be strictly based on the actual requirement and subject to the following General terms and conditions stipulated in G.O.Rt.No.125 School Education (IE.A1) Department dated 24.05.2021.
18. A perusal of the above terms would indicate that petitioners signed the agreement, with their eyes wide open. In the terms and conditions of the contract, it was specifically mentioned that services are not being taken to fill up vacancy either on temporary or permanent basis. Being the signatories petitioners are aware of the said terms and conditions. The contract comes to an end either on expiry or on the report of regular Junior Lecturer in that subject, whichever is earlier. Services rendered during the contract period will not be considered and recognized as part of any regular appointment for any post in the Government and no credit or weightage will be given. The engagement of petitioners shall be strictly based on actual requirement and subject to general terms and conditions stipulated in G.O.Rt.No.125 School Education (IE.A1) Department, dated 24.05.2021.
19. Rule 9 of A.P. State Subordinate Service Rules, 1996 authorizes the State Government to make appointment by agreement or contract. Rule 9 (iii)(b) manifests that person appointed under Sub rule (a) shall not be regarded as members Page 10 of 30 SRS,J W.P.No.25519 of 2021 of service and also not entitled to any preferential right to any other appointment.
20. In State of Karnataka v. Umadevi (referred to supra), the Hon'ble Apex Court observed as under:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] , R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub-judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme."Page 11 of 30 SRS,J W.P.No.25519 of 2021
21. The facts in Nihal Singh v. State of Punjab4, are that in view of disturbance in the State of Punjab in 1980s, as the State was not in a position to handle the prevailing law and order situation with the available Police personnel, State of Punjab resorted to recruitment under Section 17 of the Police Act, 1861, which enabled the State to appoint Special Police Officers. The appellants are ex-servicemen registered with the employment exchange and they were recruited as Special Police Officers. When the appellants approached the High Court seeking regularization, writ petition was dismissed directing the respondents to consider petitioners' case. Pursuant to the said order, Senior Superintendent of Police, Amritsar rejected the claim of the appellants. Challenging the same, appellants again approached the High Court and the same was dismissed, which was confirmed by Division Bench. In the above backdrop, the Hon'ble Apex Court observed as under:
20. But we do not see any justification for the State to take a defence that after permitting the utilization of the services of a large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. The State has to create them by a conscious choice on the basis of some rational assessment of the need.4
2013 (14) SCC 65 Page 12 of 30 SRS,J W.P.No.25519 of 2021
24. In our opinion, the initial appointment of the appellants can never be categorised as an irregular appointment. The initial appointment of the appellants is made in accordance with the statutory procedure contemplated under the Act. The decision to resort to such a procedure was taken at the highest level of the State by conscious choice as already noticed by us. (emphasis is mine)
33. It is no doubt that the assessment of the need to employ a certain number of people for discharging a particular responsibility of the State under the Constitution is always with the executive government of the day subject to the overall control of the legislature. That does not mean that an examination by a constitutional court regarding the accuracy of the assessment of the need is barred.
34. This Court in S.S. Dhanoa v. Union of India5 did examine the correctness of the assessment made by the executive government. It was a case where the Union of India appointed two Election Commissioners in addition to the Chief Election Commissioner just before the general elections to the Lok Sabha. Subsequent to the elections, the new Government abolished those posts. While examining the legality of such abolition, this Court had to deal with an argument whether the need to have additional Commissioners ceased subsequent to the election. It was the case of the Union of India that on the date posts were created there was a need to have additional Commissioners in view of certain factors such as the reduction of the lower age-limit of the voters, etc. This Court categorically held that: (SCC p. 585, para 27) "27. ... The truth of the matter as is apparent from the record is that ... there was no need for the said appointments...." 5 (1991) 3 SCC 567 Page 13 of 30 SRS,J W.P.No.25519 of 2021
35. ... demonstrate that there is need for the creation of posts, the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons such as the appellants herein for decades together itself would be arbitrary action (inaction) on the part of the State.
36. ... However, in the instant case creation of new posts would not create any additional financial burden to the State as the various banks at whose disposal the services of each of the appellants is made available have agreed to bear the burden. ..... The result is the various banks which avail the services of these appellants enjoy the supply of cheap labour over a period of decades. It is also pertinent to notice that these banks are public sector banks.
22. The facts of the case in State of Karnataka and Ors vs M.L. Kesari and Ors. (referred to supra) are that the respondents therein were appointed on daily wage and were continued as daily wagers for more than fifteen years without protection of any interim orders of any Court or Tribunal. In the year, 2002, the respondents approached High Court and sought for regularization. Later Single Judge allowed the writ petition(s) with a direction to consider the representations in accordance with judgment in W.A.Nos.5697, 6677 and 7351 of 2000. Intra Court appeal, filed, was dismissed holding that the respondents will be entitled for regularization, depending upon terms and conditions of appointment, availability of existing substantive vacancies, eligibility, qualifications, continuity of service, Page 14 of 30 SRS,J W.P.No.25519 of 2021 seniority and the prevailing rules. Division Bench directed that case of each of the appellants, shall be considered independently on its own facts. Against the said judgment, State filed appeal before the Hon'ble Apex Court. While considering para 53 of the Hon'ble Apex Court in Uma Devi's case, the following observations were made:
7. It is evident from the above that there is an exception to the general principles against "regularisation" enunciated in Umadevi (3) [(2006) 4 SCC 1], if the following conditions are fulfilled:
(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.
9. The term "one-time measure" has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3) [(2006) 4 SCC 1] , each department or Page 15 of 30 SRS,J W.P.No.25519 of 2021 each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.
11. The object behind the said direction in para 53 of Umadevi (3) [(2006) 4 SCC 1] is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) [(2006) 4 SCC 1] was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments/ instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4- 2006 [the date of decision in Umadevi (3) [(2006) 4 SCC 1] ] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) [(2006) 4 SCC 1] or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) [(2006) 4 SCC 1] as a one-time measure.
13. The Division Bench of the High Court has directed that the cases of the respondents should be considered in accordance Page 16 of 30 SRS,J W.P.No.25519 of 2021 with law. The only further direction that needs to be given, in view of Umadevi (3) [(2006) 4 SCC 1] , is that the Zila Panchayat, Gadag should now undertake an exercise within six months, as a general one-time regularisation exercise, to find out whether there are any daily-wage/casual/ad hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para 53 of Umadevi (3) [(2006) 4 SCC 1] . If they fulfil them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of Respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one-time exercise within three months. It is needless to say that if the respondents do not fulfil the requirements of para 53 of Umadevi (3) [(2006) 4 SCC 1] , their services need not be regularised. If the employees who have completed ten years' service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts.
23. In Narendra Kumar Tiwari and Others v. State of Jharkhand and Others6, petitioners therein who are daily wage or contract workers were denied the benefit of regularization under the provisions of Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015. Eventually they approached the Hon'ble Apex Court. The Hon'ble Apex Court after considering the ratio in State of Karnataka v. Umadevi and State of Karnataka v. M.L. Kesari observed as under: 6
2018 8 SCC 238 Page 17 of 30 SRS,J W.P.No.25519 of 2021 "8. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3) [State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 : 2006 SCC (L&S) 753] , is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15-11-2000 and the cut-off date was fixed as 10-4-2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.
9. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise -- the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.
10. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct, etc.
11. The impugned judgment and order [Anil Kumar Sinha v.
State of Jharkhand, 2016 SCC OnLine Jhar 2904] passed by the High Court is set aside in view of our conclusions. The State should take a decision within four months from Page 18 of 30 SRS,J W.P.No.25519 of 2021 today on regularisation of the status of the appellants. The appeals are accordingly disposed of.
12. We may add that that it would be worthwhile for the State of Jharkhand to henceforth consider making regular appointments only and dropping the idea of making irregular appointments so as to short circuit the process of regular appointments."
24. In U.V.S.R.Prasad v. State of Andhra Pradesh7 case, after considering the ratio in State of Karnataka v. Umadevi and A.Manjula Bhashini v. Managing Director, A.P. Women's Cooperative Finance Ltd.8 the Division Bench observed as follows:
"16. It is trite that the law declared by the Supreme Court is binding throughout the country under Article 141 of the Constitution of India. It is noteworthy that by the time the judgment in Uma Devi's case was rendered, the provisions of Act 2 of 1994 and G.O.Ms.No.212, dated 22.04.1994, were in existence. The Supreme Court, while denouncing the practice of regularization and absorption of persons, who entered service through backdoors by giving a go-bye to the due procedure prescribed for appointments to public posts, consciously ordered for one-time absorption/ regularization of those, who were working for a period of not less than 10 years. It has given directions in this regard to all the State Governments and, also Union of India. The Supreme Court is presumed to be conscious of various State enactments such as Act 2 of 1994 and executive orders such as G.O.Ms.No.212, dated 22.04.1994, while giving directions in para No.53 of the judgment in Uma 7 2017 (6) ALT 751 (DB) 8 (2009) 8 SCC 431 Page 19 of 30 SRS,J W.P.No.25519 of 2021 Devi's case. But still, it has not made any exception in favour of the States where State enactments banning regularization/absorption exist. Therefore, Act 2 of 1994 and G.O.Ms.No.212, dated 22.04.1994, do not whittle down the width and the judgment in Manjula Bhashini's case does not lower the trajectory of the directions issued by the Supreme Court in para 53 of its judgment in Uma Devi's case. It is, therefore, not permissible for the respondents to take shelter under Act 2 of 1994 and G.O.Ms.No.212, dated 22.04.1994, to deny regularization to the petitioners who have, admittedly, satisfied the criteria laid down in para No.53 of the judgment in Uma Devi's case."
25. In C. Mahender v. Pottisreeramulu Telugu University 9, Telangana High Court, while allowing writ petition set aside order passed by the government rejecting claim of petitioners therein for regularization. However, directed the respondents to regularize on one time basis, petitioners services from the date of each of the petitioner's completing ten years of service on daily wages from initial dates of their appointment. Petitioners therein were engaged on daily wages in the University as office subordinate/attender against sanction post with required qualifications approached the High Court. Selection committee was constituted by the Vice Chairman and the committee made recommendations for regularization of the services. Petitioners gave representation on 21.06.2019 and approached the Court by filing W.P.No.11016 of 2019, after disposal of writ petition, 9 2020 (4) A.L.D. 379 Page 20 of 30 SRS,J W.P.No.25519 of 2021 respondents rejected petitioners' representations and hence, petitioners filed another writ petition. After considering the facts of the case and ratio laid down in Uma Devi's case etc., Division Bench directed respondents to consider regularization of service on one time basis.
26. It is not out of place to mention here that subsequent to the decision in Uma Devi's case, the Hon'ble Apex Court in State of Rajasthan and Others v. Daya Lal and Others10, observed as under:
"12. We may at the outset refer to the following well-settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of the constitutional scheme.
While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be 10 2011 (2) SCC 429 Page 21 of 30 SRS,J W.P.No.25519 of 2021 regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized. (emphasis is mine)
(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad-hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right. (emphasis is mine)
(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular Page 22 of 30 SRS,J W.P.No.25519 of 2021 employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
27. In Vibhuti Shankar Pandey vs. State of Madhya Pradesh and Ors.11, the appellants therein approached the High Court of Madhya Pradesh seeking regularization in the post of Supervisor/Time Keeper. Learned Single Judge allowed the writ petition against which appeal was filed and Division Bench set aside order of the learned Single Judge. Petitioner carried out the matter to the Hon'ble Apex Court. The Hon'ble Apex Court observed as follows:
"... initial appointment must be done by the competent authority and there must be a sanctioned post on which the daily rated employee must be working."
28. A conspectus of the above authorities would manifest that the entitlement of petitioners for regularization would depend upon their appointment against sanctioned post and by competent authority by following procedure.
29. In the case on hand, in the affidavit, none of the particulars regarding the date of appointment and whether the appointment is against sanctioned post, are forthcoming. 11
2023 Livelaw SC 91 Page 23 of 30 SRS,J W.P.No.25519 of 2021 Though learned counsel for the petitioners would contend that the appointment is against sanctioned post, in the absence of any material substantiating the said contention, this Court is not persuaded with the contention of learned counsel for the petitioners that all the petitioners were appointed against sanctioned posts. It is pertinent to mention here that in para No.10 of the Writ affidavit, it was averred that there are vacant posts in the colleges where petitioners are presently working. Thus, it is not the case of the petitioners that they were appointed on contract basis against sanctioned post.
30. Pleadings, even in the writ petition, plays vital role. While pointing out importance of pleadings, Hon'ble Apex Court in Bharat Singh and others Vs State of Haryana and others 12 observed as follows:
13. ..... where a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit as the case may be, the Court will not entertain the point. There is a distinction between a pleading under the Civil procedure code and a writ 12 AIR 1988 SC 2181 Page 24 of 30 SRS,J W.P.No.25519 of 2021 petition of a counter affidavit. While in a pleading, that a point or a written statement, the facts and no evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.
31. In Narmada Bachao Andolan Vs State of M.P. and another13 the Hon'ble Apex Court observed importance of pleadings as follows:
10. Pleading and particulars are required to enable the court to decide the rights of parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the questions in issue, so that the parties may adduce appropriate evidence on said issue. It is settled legal proposition that " as a rule relief not founded on the pleadings should not be granted".
Therefore, a decision of a case cannot be based on grounds outside the pleadings of parties.
11. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issues, despite having merit, has not been raised by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of principles of natural justice."
32. In the case on hand, writ petition was filed by 115 persons. As pointed out supra, nothing is forthcoming as to 13 AIR 2011 SC 1989 Page 25 of 30 SRS,J W.P.No.25519 of 2021 when each of the petitioners joined in the respective college, on contract basis, and their qualification i.e. marks. The appointing authority of Junior Lecturers is by Regional Joint Director of Intermediate Education through APPSC. In case of regular selection government must identify vacancy, apply rule of reservation etc. All these aspects are conspicuously silent in the writ petition. Writ Proceedings Rules, 1977 specially Rules 5 and 6 prescribes the procedure to furnish necessary particulars.
33. All the petitioners were appointed on contract basis. Even those agreements are not filed before the Court. Terms, extracted supra, are part of an agreement filed along with the counter. In the absence of basic requirements, the averment in the affidavit that all the petitioners have been working in different colleges in different districts from 10 to 20 years is as vague as it is. The above writ petition was filed not to expose public cause in the nature of pro bono publico, but it was filed seeking writ of Mandamus to direct the respondent-authorities to regularize the services and other benefits. Unless the petitioners divulge each and every fact necessary to adjudicate the issue this court may not be in a position to redress the grievance of the each of the petitioners. In case of regularization each case needs to be examined.
Page 26 of 30 SRS,JW.P.No.25519 of 2021
34. As can be seen from the averments, all the petitioners entered into agreements with respective college committees. As stated supra, the terms of agreement are clear and petitioners signed those agreements with their eyes wide open. Petitioners were also granted minimum time scale and they were also extended benefits as mentioned supra i.e. casual leave and accumulated casual leave.
35. It is settled legal position that no person shall be appointed even on temporary or ad hoc basis without inviting applications from eligible candidates.
36. In proper mode of selection, there should be an advertisement/wide publicity, examination, interview or the like to prove that there is competitive test after proper scrutiny of the applications. This is approved/recognized procedure for appointment in any post. If such procedure is followed, it can be said that petitioners were duly appointed. Contractual employment comes to an end at the end of contract. Petitioners having accepted the terms and conditions stipulated in the appointment order are not permitted to turn back and claim that they are entitled to be absorbed. Once, terms of contract are duly performed and the contract comes to an end, there shall be no obligation on the part of the State to extend any Page 27 of 30 SRS,J W.P.No.25519 of 2021 further benefits. Petitioners also cannot invoke doctrine of fairness and reasonableness.
37. In Satish Chandra Anand v. Union of India14, the Hon'ble Apex Court observed as under:
12. There was no compulsion on the petitioner to enter into the contract he did. He was as free under the law as any other person to accept or to reject the offer which was made to him. Having accepted, he still has open to him all the rights and remedies available to other persons similarly situated to enforce any rights under his contract which have been denied to him, assuming there are any, and to pursue in the ordinary courts of the land such remedies for a breach as are open to him to exactly the same extent as other persons similarly situated. He has not been discriminated against and he has not been denied the protection of any laws which others similarly situated could claim. The remedy of a writ is misconceived.
13. ... The petitioner has not been denied any opportunity of employment or of appointment. He has been treated just like any other person to whom an offer of temporary employment under these conditions was made. His grievance, when analysed, is not one of personal differentiation but is against an offer of temporary employment on special terms as opposed to permanent employment. But of course the State can enter into contracts of temporary employment and impose special terms in each case, provided they are not inconsistent with the Constitution, and those who chose to accept those terms and enter into the contract are bound by them, even as the State is bound.14
AIR 1953 SC 250 Page 28 of 30 SRS,J W.P.No.25519 of 2021
38. In Uma Devi's case, the Hon'ble Apex Court, held as follows at para No.43:
"Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution."
39. In State of Orissa and Another v. Mamata Mohanty 15, the Hon'ble Supreme Court held as under:
"35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, it came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the Constitution.15
2011 (3) SCC 436 Page 29 of 30 SRS,J W.P.No.25519 of 2021
36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. ..."
40. Thus, in view of the discussion supra, petitioners, who allegedly entered contracts with college management committees and discharging their duties as contract lecturers, in the opinion of this court, are not entitled to the relief sought for in the writ petition. Since there is no sanctioned post as per the material on record and appointment of petitioners is not as per the procedure, this Court cannot apply the ratio in Umadevi's case and other cases. However, it is to the government to take appropriate decision in this regard keeping in view the long standing service of the petitioners, merit and rule of reservation etc.
41. Thus, this court doesn't find any merit in the writ petition and Writ petition is liable to dismissed.
42. Accordingly, writ petition is dismissed. No costs.
As a sequel, all the pending miscellaneous petitions shall stand closed.
_________________________ SUBBA REDDY SATTI, J Date : 16.03.2023 ikn Page 30 of 30 SRS,J W.P.No.25519 of 2021 THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI WRIT PETITION No.25519 of 2021 Date : 16.03.2023 ikn