Andhra Pradesh High Court - Amravati
B. Kishore Kumar, vs The State Of Andhra Pradesh, on 3 November, 2021
*HONOURBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
+ W.P.Nos. 15579, 20811 of 2019,
4703, 7790, 8584 of 2020
and 13087 of 2021
% 03.11.2021
WP.No.15579 of 2019
# S.Sudhamani and 10 others
... Petitioners
Vs.
$ The State of Andhra Pradesh,
Rep., by its Principal Secretary,
Higher Education, Guntur and 2 others.
... Respondents
! Counsel for the petitioners : Sri Sri Srinivasa Rao Bodduluri, Sri
S.Harinath Reddy, Ms.Yashoda, Sri G.V.L.Murthy, Sri Giri Babu
Marthy
! Counsel for the Respondents : Sri N.A.Ramachandra Murthy,
learned standing counsel for APPSC and Government Pleader for
Services-III
< Gist:
> Head Note:
? Cases referred:
1
(2006) 4 SCC 1
2
(2010) 9 SCC 247
(1992) 4 SCC 118
3
2
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.Nos.15579, 20811 of 2019,
4703, 7790, 8584 of 2020
and 13087 of 2021
COMMON ORDER:
The batch of writ petitions have been filed before this Court questioning the notification that has been issued on 31.12.2018 (Notification dated 23 of 2018) by the APPSC for recruitment to the post of Polytechnic lecturers/workshop attendants.
The entire batch was taken up for hearing together. In WP.No.4703 of 2020, there are 33 petitioners. According to them, they all have been rendering service as contract lecturers in various Government Polytechnics in the State. It is contended that all of them are validly recruited and have been rendering continuous service for more than 10 years. Hence, they argue that they are entitled to regularization in the category of lecturers, in view of the law laid down by the Hon‟ble Supreme Court of India in Secretary, State of Karnataka and Or. v. Umadevi' 1 case. They also contend that until they are regularized into service, the respondent-State cannot issue a notification to fill up all the posts.
1 (2006) 4 SCC 1 3 Similarly, in WP.No.7790 of 2020, there are 29 petitioners who have raised a similar plea about the notification that has been issued. They also contend that in view of their long service as contract lecturers, they are entitled to regularization.
In WP.No.8584 of 2020, there are 42 petitioners. All of them raised similar grounds. They have been working as contract lecturers and they have been recruited through a valid selection process. Therefore, it is argued that all the petitioners are entitled to regularization.
In WP.No.20811 of 2019, two petitioners, who are claiming to be physically dis-advantaged people have filed the writ petition questioning the notification 23 of 2018 on the ground that para 4.2 of the notification is illegal and contrary to the rights given to the physically challenged people under the Rights of Persons with Disabilities Act, 2016 ( for short „2016 Act‟). The prayer is to declare that the A.P. Technical Education Service Rules, 2005 and in particular Rule 4 is illegal and to direct the respondents to issue a fresh notification by providing 4% reservations. In this case also, the challenge is to the recruitment proposed to be made in notification 23 of 2018. These are the essential writ petitions that have been filed questioning this notification.
Apart from this, WP.No.13087 of 2021 has been filed by 40 petitioners questioning the inaction of the respondents in 4 finalizing the selection and making appointments pursuant to notification 23 of 2018. These petitioners have appeared for the examination, were selected in the same and were called for the oral interview. They urge that despite the tests conducted in March, 2020 and the oral test conducted in March, 2021, their results are not declared. They also question the right of the petitioners in the other writ petitions to claim regularization.
These are the writ petitions which have been taken for hearing.
Counters have been filed by APPSC and also the State. The essential defence raised is that the petitioners are not entitled to regularization. It is pointed out that since the petitioners are not working against a sanctioned post, they cannot, as a matter, claim regularization. Both the State and the APPSC point out that earlier notifications were already issued for recruitment of lecturers in polytechnics and that the petitioners have never questioned the same. Therefore, they urge on the ground of estoppel etc., that the petitioners are not entitled to any relief. They also point out that the notification was issued in December, 2018, and that at the last minute, these writs are filed and the entire procedure is being stalled. It is submitted on behalf of the respondents that a proper public recruitment through notification is the only recognized mode of recruitment and the entire procedure is being stalled on the tenuous ground that the petitioners 5 who worked as contract lecturers are entitled to regularization. It is submitted that till the rights of the petitioners are crystallized, they cannot seek further remedies from this Court.
The learned counsel appearing for the respondents also point out that regularization is an exception and not the rule. Only if all the conditions stipulated by the relevant regulation and the settled law are fulfilled, the petitioners are entitled to regularization. If they are not entitled to regularization, they cannot seek a relief against the notification dated 31.12.2018. As far as the persons with physical disabilities are concerned, it is submitted that the total recruitment under this notification is for 405 posts (95 carry forward and 310 fresh vacancies). Therefore, even if the 4% reservation as per the 2016 Act is to be given, at best, 17 or 18 posts alone should be reserved for the physically challenged and the entire process cannot be stalled.
Case law is also relied upon by all the learned counsel for the petitioners and the respondents. It is vehemently argued by the counsels for the petitioners that the constitution Bench judgment in Umadevi's case (1 supra) and the other clarificatory judgment of the Hon‟ble Supreme Court reported in State of Karnataka and Ors. v. M.L. Kesari.2 apply to the facts of the case.
2 (2010) 9 SCC 247 6 Respondents on the other hand submitted that basing on the very same case law that the decision in Umadevi's case (1 supra) provided for a one time exercise and the petitioners never demanded the same earlier. They point out that earlier notifications were issued in the last few years and the petitioners never challenged the same or even participated in the same. They allowed the recruitment to go ahead. It is also argued that the recruitment in the case of petitioners (except those in WP.No.20811 of 2019) is not a proper recruitment at all for the purpose of regularization. It is pointed out that there are no sanctioned posts against which the petitioners in all these cases had worked as the contract lecturers. On the basis of the case law it is submitted that a mere long period of work does not give them the right to seek regularization. Hence, it is submitted that the petitioners are not entitled to any relief and that great loss is being caused to the respondent-State because of the delayed filing of the writ petitions and the orders that have been obtained.
These are the summarized submissions of the learned counsels - Sri Srinivasa Rao Bodduluri, Sri S.Harinath Reddy, Ms.Yashoda, Sri G.V.L.Murthy, Sri Giri Babu Marthy, learned counsel for the petitioners, Sri N.A.Ramachandra Murthy, learned standing counsel for APPSC and the Government Pleader for Services-III for respondents.
In WP.No.20811 of 2019, Sri G.Tuhin Kumar argued for the petitioners.
7COURT: After hearing all the submissions, this Court is of the opinion that the following issues/points arise for determination:
(a) Whether the petitioners (other than the petitioners in WP.No.20811 of 2019) are entitled to claim regularization of their services?
(b) Whether they are estopped from seeking a relief against the notification 23 of 2018 dated 31.12.2018 by virtue of their conduct ?
(c) Whether the physically challenged petitioners in WP.No.20811 of 2019 are entitled to a relief of fresh notification and other reliefs.
The first question that arises for decision in these matters is, whether the petitioners are entitled to regularisation. The law on the subject is very well settled and as mentioned earlier, both the parties relied upon a judgement of the Constitution Bench of India in Umadevi's case (1 supra). The decision given in the case of Umadevi has been clarified by the Hon‟ble Supreme Court of India in M.L. Kesari's case (2 supra) and many other cases. Since the law is well settled, this Court does not wish to reproduce all the passages. However, in M.L. Kesari's case, the judges of the Supreme Court clarified the issue categorically and clarified the two exceptions to the general principles against 8 regularization. These are contained in paras 7(i) and 7(ii) of the judgement which are reproduced below:
7. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, 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 an 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.
This Court is therefore proposing to examine the issue in this case against the backdrop of the Constitution Bench judgement in Umadevi's case (1 supra) as further explained in M.L. Kesari's case (2 supra).
As per para 7(i) reproduced above, for an employee to be considered for regularization, he should have worked for 10 years or more in a duly sanctioned post without any Court order in its favour. The respondent-State has gone on 9 record and filed its counters, wherein it is very clearly reiterated that the posts against which the petitioners are working are not sanctioned posts. Even the APPSC has adopted the same line. Despite the clear and categorical assertion made by the respondents in their counters, the petitioners have not filed any document to show that the respondent-State has sanctioned these posts. As per the settled law on the subject, a sanctioned post is created by the Government based on its power derived from the Constitution of India/enacted laws or powers that are delegated further. Article 309 of the Constitution of India gives the power to the State to sanction these posts. Either the Union Government or the State Government through Statutes, Rules etc., can create these posts by providing a proper and a formal sanction. In the case on hand, there is no material placed before this Court to show that these posts are actually sanctioned posts. The burden which lies on the petitioners is not discharged. No rejoinder has also been filed to rebut the stand of the State/APPPSC on this issue. The mere fact that they were appointed in a temporary post/ad hoc post does not lead to a conclusion that they are appointed against "sanctioned posts" In view of the fact that the appointments are not made against a sanctioned post, this Court has to hold that the appointment is illegal in line with para 7.2 of M.L. Kesari's case (2 supra). 10 The second issue which is raised and strongly argued by the counsel for the petitioners is that the petitioners put in long years of service after being recruited through a proper procedure of selection On the other hand, the State has clearly and categorically taken his stand that as per Rule 4 (b) of the State and Subordinate Service Rules, employment can only be by direct recruitment and not by any other method. Coming to the post of a lecturer in the Government Polytechnics, it is clearly urged that as per G.O.Ms.No.178, there are only two methods of appointment, one by direct recruitment and other by promotion in the ratio of 90:10. The State has asserted that the petitioners, who were employed as contract employees and were not selected through any competition, written examination, interview etc., cannot claim to be regularly appointed. It is also mentioned in the counter filed that the only procedure adopted in the petitioner's selection was that their marks were scrutinized by a committee. These marks are the marks obtained by the petitioners in the qualifying examinations. Therefore, it is asserted in the counter that the three member committee only verified the certificates at the examination and appointed the petitioners. It is urged very clearly that the petitioners are not validly appointed. Paras 12 to 17 of the counter in WP.No.15579 of 2019.
The petitioners have also filed a copy of notification like the one dated 03.06.2011, which clearly spells out that the 11 appointments are temporary and will be terminated as and when selected candidates are made available for appointment against the vacancies. Similarly, in WP.No.7790 of 2020 also, copies of the orders issued to the petitioners are also filed. The original G.O.Ms.No.138 dated 01.10.2005 is also filed which clearly states that 315 faculty in Engineering and Non- Engineering and 200 workshop vacancies are permitted to be appointed on contract basis. Rule 9 of the A.P.State and Subordinate Service Rules is also highlighted in the G.O. It is made clear that a person appointed under Rule 9 cannot be considered to be a member of the State services. The tenure of contractual appointments etc., are clearly specified. It is also clarified that the appointee will not be entitled to other allowances like Dearness Allowance, LTC, Medical Treatment, Pension etc. This was followed in all the subsequent orders also. The appointment orders issued to some of the candidates are also filed. For example, the appointment order to the first petitioner in WP.No.7790 of 2020 clearly specifies that she has been appointed on contract basis, on purely temporary basis and is not a member of the service. It is made clear that the contractual appointment can be terminated by a one month‟s notice. The petitioner was also directed to execute an agreement agreeing to the terms and conditions. Similarly, agreements were entered into with many candidates and they are filed as documents. 12 In the light of the above, this Court is of the opinion that with their eyes wide open, the petitioners had entered into these contracts for appointment. These contracts/agreements make it doubly clear that the petitioners were not employed against a post by a due process of selection/exam. In fact, in para 44 of Umadevi's case (1 supra), the Constitution Bench noticed the fact that a person who enters into such an engagement is aware of the consequences and of the agreement that he has entered into. The Constitution Bench clearly held that a party in such a case enters into an agreement with his eyes wide open. Later, the Supreme Court clearly held on this ground alone, it would not be appropriate to jettison the constitutional scheme of appointments. The same is also stated in paragraphs 43 and 47 of Umadevi's case. As far as the constitutional scheme of appointment is concerned, the Constitution Bench clearly dealt with the same in paragraphs 11 to 13 of the judgement, wherein it is clearly held that only if a proper recruitment is done through the public service commission etc., can it be said that the parties were appointed under a due process of selection as envisaged by the constitutional scheme. In this Court's opinion the mere publication of an advertisement does not make the petitioners appointment a valid appointment as per the constitutional scheme. 13
The earlier order in State of Haryana and Ors. v. Piara Singh and Ors.3 was also approved to a large extent in the judgement of the Constitution Bench. Ultimately, in para 43, it was held that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract. It was also clarified that merely because a temporary employee continued beyond the term of his appointment, he would be absorbed into regular service and made permanent merely on the strength of such continuance, if the original appointment was not by a "due process "of selection.
As mentioned earlier in this judgement, many of the issues that are raised by the learned counsel for the petitioners are in fact answered by the judgement in Umadevi's case (1 supra) itself. The subsequent clarification in the case of M.L. Kesari's case (2 supra) carries the issue forward. The proper method of selection that is needed is as per the notification like in this case. There should be an advertisement/wide publicity, examination, interview or the like to prove that there was a competitive testing/elimination process after a proper screening of the applicants. This is the approved/recognized scheme/procedure for appointment. 3 (1992) 4 SCC 118 14 Only if such a procedure is followed, it can be said that petitioners were "duly appointed".
In the opinion of this Court, the petitioners failed to prove both the important requirements that are mentioned in Umadevi and M.L. Kesari's cases, namely, that they were (a) recruited in duly sanctioned posts and (b) that they were recruited by a proper system of selection.
Conduct of the petitioners - A reading of the counter filed by the APPSC shows that the Government of Andhra Pradesh gave permission to fill 405 posts through direct recruitment. Applications were invited on 06.02.2019 to 27.09.1990. 58,178 applications were received. A written examination was held from 12.03.2020 to 15.03.2020. After the examination, the successful candidates were called for an interview in the ratio of 1:2. The schedule was fixed on 02.03.2021 to 26.03.2021. In view of these various writ petitions, the issue is still pending and it could not be finalized till date. These facts cannot be lost sight of. The practice of filing writ petitions at the last minute and stopping the selections is causing great loss to the APPSC/the State also. In addition, it is also important to note that the respondents have asserted that earlier also a number of notifications were issued but the same were not challenged. This is also not rebutted by the petitioners. In para 7,8,11 of the counter in WP.No.15579 of 2019, it is clearly spelt out that six (6) notifications were issued for these posts earlier in 15 the period 2006-2012 and about 1000 posts of lecturers were filled. Similar clear assertions are made in the counter in WP.No.7790 of 2012. These are not denied or rebutted. Hence this Court holds that the conduct of the petitioners debars/estops them from challenging the present notification of 2018. The rules of estoppel, acquiescence and standing by are clearly applicable. This conduct thus disentitles them from claiming any relief now.
However, insofar as WP.No.20811 of 2019, this Court is of the opinion that the petitioners are entitled to a certain relief. The notification issued in the opinion of this Court did not look into the 2016 Act. The counter affidavits filed also indicate that the State wanted to take appropriate steps in this matter by changing the rules etc. This Court is of the opinion that staying the entire process of selection of the 2018 notification at this stage is not called for. The interest of the State and the need for finalizing the selection of lecturers is also important. Therefore, by balancing the interests of both parties, 4% of the posts advertised shall not be filled for now. There shall be a direction in terms of sections 33 and 34 of 2016 Act, to the respondent-State Government to carry out the necessary exercise i.e to constitute an expert committee with representatives of the persons with benchmark disability for identification of such posts and their suitability etc for these jobs and to complete the same within four (4) months. After carrying out the 16 necessary study and based on the report of the expert committee, the State is directed to proceed with the further steps in accordance with section 34 for recruitment of persons with benchmark physical disabilities for these 4% posts only. After this exercise is completed, a fresh notification or a supplementary notification must be issued by APPSC with the same qualifications, age requirements as in the impugned notification ( 23/2018) for the physically challenged and the supplementary exam/interview etc., must be conducted for the posts. The petitioners in W.P.No.20811 of 2019 and others who meet the criteria should be permitted as a special case to participate in the selection process in the supplementary notification for these 4% posts. Needless to say, they must have the necessary benchmark disability. To this limited extent, this W.P.No.20811 of 2019 is allowed and other reliefs/claims are all negatived.
Rule of 4 of the A.P.Technical Education Service Rules is also held contrary to the provisions of 2016 Act and is set aside.
With these observations, WP.No.20811 of 2019 is partly allowed. WP.No.13087 of 2021 is also allowed. The APPSC is directed to take steps to complete the recruitment process. All other writ petitions are dismissed.
17
As a sequel, the miscellaneous petitions if any pending shall stand dismissed.
___________________________ D.V.S.S.SOMAYAJULU, J Date:03.11.2021 Note: L.R. copy be marked.
KLP