Andhra Pradesh High Court - Amravati
N. Ramadevi vs The Government Of A.P. Rep By Its ... on 26 July, 2022
THE HON'BLE Dr.JUSTICE K. MANMADHA RAO
WRIT PETITIONS Nos.23205 of 2013 + 16682 + 18174 + 20612 +
21378 + 23619 of 2012 + 25624 + 25625 + 25630 + 25634 +
27303 + 27325 + 27824 + 29741 of 2013 + 35841 of 2014 +
26181 and 33163 of 2016
COMMON ORDER:
Since common issue arises in all these Writ Petitions, they are being disposed of by this Common Order.
2. Heard the learned counsel for the petitioners in all the Writ Petitions and the learned Government Pleader for Higher Education, for the respondents.
3. In all these Writ Petitions the petitioners are working as un-aided posts of lecturers in private managements and seek absorption in available vacancies of aided posts in the said private managements. They seek setting aside the orders of rejection passed in respect of some of the petitioners by the Directorate of Collegiate Education, Andhra Pradesh and to absorb them in grant-in-aid posts.
4. It is undisputed fact that in some of the above Writ Petitions proposals were sent by the private managements where the petitioners are working in un-aided posts for consideration of the cases of such petitioners for absorption into existing vacant aided posts, and in other cases there are no such proposals, but however, the lecturers working in unaided posts have filed the Writ Petition seeking direction to the respondents to absorb them in the aided vacant posts of Lecturers in the subjects which they are teaching in the private managements.
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5. No counter-affidavit has been filed by the learned Government Pleader for Education appearing for the official respondents. So it is deemed that the official respondents have no response to file.
6. The learned counsel for petitioners contended that petitioners have been selected by duly constituted selection committees in the unaided lecturer posts where they are employed by the respective private managements; that there was a ban imposed making fresh recruitment vide G.O.Ms.No.35 dated 27.03.2006; that in several institutions the State Government had permitted absorption of unaided posts of Lecturers in vacant aided posts and the petitioners herein are being discriminated.
7. The learned counsel for petitioners contends that petitioners possess the qualifications prescribed in G.O.Ms.No.12 Education (C.E.I-2) Department dated.10.01.1992 and are eligible for absorption in the vacant aided posts of Lecturers in the private institutions. They have also cited several proceedings of the Commissioner and Director of Collegiate Education, Andhra Pradesh absorbing in grant-in-aid posts lecturers working in the unaided posts like the petitioners in the private managements. They have also cited G.O.Rt.No.525 Higher Education (CE.II.2) Department dt.17.07.2001 of the Government of Andhra Pradesh; G.O.Rt.No.160 Higher Education (CE.II.2) Department dated 16.02.2001, proceedings Rc.No.1093/Admn.III- 1/2001 dated 24.08.2001, etc., wherein several unaided lecturers working in private colleges were absorbed by the State Government.
8. They have also placed reliance on the order dated 26.02.2010 passed in W.P.No.9441 of 2005 wherein this Court considered the 3 plea of petitioner therein seeking absorption in aided post when her plea was rejected. In the said Writ Petition relief was granted to petitioner therein and the respondents were directed to re-consider the case of petitioner for regularization of her services and for her absorption in the aided post of Junior Lecturer in Mathematics in private management on par with another individual who had been given the said benefit. The said order was confirmed on 15.02.2012 in Writ Appeal No.851 of 2010 and in Special Leave to Appeal (Civil)/2012/CC.19308/2012 dt.27.09.2013. After the said SLP was dismissed, G.O.Ms.No.16 Higher Education (I.E.II) Department dt.12.03.2013 was issued granting admission into grant in aid to the petitioners in these cases.
9. In another W.P.No.5189 of 2006 also proceedings rejecting request of the management of a private degree college to admit the petitioner therein to grant in aid post of Librarian were challenged. The Writ Petition was allowed on 24.12.2010, and thereafter, G.O.Rt.No.776 Higher Education (CE.II) Department dt.21.10.2011 was issued admitting the said petitioner to grant-in-aid.
10. W.P.No.14482 of 2006 was filed by another unaided Junior Lecturer in a private management challenging proceedings rejecting absorption of the petitioner therein in the available aided posts. The said Writ Petition was allowed on 14.02.2011 by setting aside the order of rejection and a direction was given to absorb the petitioner against any one of the aided vacancies of Junior Lecturer in the subject he was teaching in the private management.
11. The State challenged it in Writ Appeal No.1047 of 2012 which was dismissed on 05.09.2012 and the said order was also got 4 confirmed in Special Leave to Appeal (Civil) No.38336 of 2012. Thereafter, G.O.Ms.No.15 Higher Education (I.E.) Department dt.07.03.2013 was issued absorbing the petitioner in that Writ Petition into grant in aid post.
12. Learned counsel for the petitioners placed reliance on the decision of erstwhile High Court of Andhra Pradesh in W.P.No.7789 of 2012, dated 20.12.2018, wherein the learned Single Judge directed to absorb the petitioners in the aided posts of Lecturers in the respective private managements with all consequential benefits and set aside the impugned rejection orders therein. Assailing the same, State of Andhra Pradesh filed Writ Appeal Nos. 263, 340 of 2019 and 69 and 218 of 2020 against the some of the writ petitions. The Hon'ble Division Bench of this Court dismissed the Writ Appeals by a common Judgment dated 31.07.2020 by confirming the impugned common order passed by the learned Single Judge.
13. In all these cases, the sole objection taken by the respondents is that there was a ban on recruitment imposed vide G.O.Ms.No.35 dated 27.03.2006 and therefore the question of considering the cases of the unaided lecturers in private managements for absorbing them into aided services would not arise.
14. Though the learned Government Pleader for Higher Education sought to contend that there might be some doubt about the petitioners working in the unaided posts in private managements, in the instant cases, since no counter-affidavit is filed raising any doubt about the working of the respective petitioners in the unaided posts, the pleading in the Writ Petitions has to be accepted. 5
15. This Court has also on occasions issued directions which could not be said to be consistent with the constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualisation of justice. The question arises, equity to whom? Equity for the handful of people who have approached the court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment?. When one side of the coin is considered, the other side of the coin has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the constitutional scheme, certainly tend to water down the constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.
16. In the case of Secretary to Government, School Education Department, Chennai Vs. R. Govindaswamy and Others1, wherein the Hon'ble Supreme Court has observed as follows:
8.this Court in State of Rajasthan & Ors. v. Daya Lal &Ors., AIR 2011 SC 1193, has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:
(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation 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 regularisation of services of an employee which would be violative of the 1 2014 (4) SCC 769 6 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 regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(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 regularisation, if he is not working against a sanctioned post. Sympathy and sentiment 5 Page 6 cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation 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 regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run http://www.judis.nic.in institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for A.Glory Marry vs The Secretary To Government (decided on 27 February, 2019) 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.
17. Reiterating the principles laid down in the Case of Secretary to Government, School Education Department, Chennai Vs. R.Govindaswamy and others2, the Hon'ble Supreme Court of India emphatically ruled that the High Courts, in exercising power under Article 226 of the Constitution of India will not issue 2 (2014) 4 SCC 769 7 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 policy.
18. Elaborating upon the principles laid down in Umadevi's case3 and explaining the difference between irregular and illegal appointments in State of Karnataka v. M.L. Kesari4, this Court held as under:
"It is evident from the above that there is an exception to the general principles against regularisation enunciated in Umadevi's case, 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.
19. As rightly contended by the counsel for petitioners, when the State itself had absorbed similarly situated persons like the Writ 3 (2006) 4 SCC 1 : 2006 SCC (L&S) 753 4 (2010) 9 SCC 247 : (2010) 2 SCC (L&S) 826 8 Petitioners into grant-in-aid posts on its own and also pursuant to orders passed by this Court, it cannot be contended that petitioners have to be treated on a different footing and they should be denied consideration for absorption in the grant in aid vacancies in the respective subjects existing in the private managements where the respective petitioners are working.
20. Therefore, following the decisions cited supra, all these Writ Petitions are allowed. The orders rejecting absorption in aided posts passed by the Commissioner and Directorate of Collegiate Education, Andhra Pradesh in the case of the petitioners are set aside; and the State of Andhra Pradesh and the Commissioner of Collegiate Education are directed to absorb the petitioners in the aided posts of Lecturers in the respective private Managements with all consequential benefits.
21. Accordingly, the Writ Petitions are allowed as above. No order as to costs.
As a sequel, miscellaneous applications pending, if any, shall also stand closed.
___________________________________ DR. JUSTICE K. MANMADHA RAO Date:26.07.2022.
KK 9 THE HON'BLE Dr.JUSTICE K. MANMADHA RAO WRIT PETITIONS Nos.23205 of 2013 + 16682 + 18174 + 20612 + 21378 + 23619 of 2012 + 25624 + 25625 + 25630 + 25634 + 27303 + 27325 + 27824 + 29741 of 2013 + 35841 of 2014 + 26181 and 33163 of 2016 Date: 26.07.2022.
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