Telangana High Court
Jatoth Jhansi vs State Of Telangana on 24 July, 2023
Author: P. Madhavi Devi
Bench: P. Madhavi Devi
THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION Nos.16928, 16903, 16083, 16088,
16489, 16675 and 17229 of 2023
COMMON ORDER:
In these writ petitions, the petitioners are seeking a writ of mandamus declaring that they are entitled to be continued in their respective contractual posts and further declaring that the action of respondent No.2 in not allowing the petitioners to continue in their respective contractual posts and issuing fresh Notification No.1479/SS/T/KGBV/ URS/2022, dated 16.06.2023 for filling up the said posts with other candidates is in violation of the Hon'ble Supreme Court Judgment in the case of Manish Gupta and another, etc., Vs. President, Janbhagidari Samithi and others, etc., reported in 2022 LiveLaw (SC) 406 and consequently, to set-aside the impugned Notification dated 16.06.2023 and to direct the respondents to continue the petitioners in 2 their respective posts in the interest of justice and to pass such other order or orders.
2. The brief facts for filing of the present writ petitions are that the Government of Telangana permitted the respondent No.2 to engage 937 posts of teachers with P.G. Contract Resident Teachers (PGCRTs), Contract Resident Teachers (CRTs), Physical Education Teachers (PETs) on contract basis for the academic year 2021-22 in various institutions of Kasturba Gandhi Balika Vidyalaya (in short 'KGBV') vide G.O.Rt.No.1321 dated 19.10.2021. Accordingly, the respondent Nos.2 and 11 to 18 issued advertisements in the month of November 2021 in various newspapers and sought applications from eligible candidates.
3. For the said recruitment, the prescribed educational qualifications were
1. Post Graduate Contract Resident Teachers (PGCRTs) - Post Graduate Degree and B.Ed, 3
2. Contract Resident Teachers (CRTs) - Degree and B.Ed.,
3. Post Graduate Contract Resident Teachers (PGCRTs), Nursing - Post Graduate Degree in Nursing, and
4. Physical Education Teachers (PETs) - Degree and B.P.Ed Degree.
4. The method of selection was on merit basis.
5. Pursuant to the Notifications issued by respondent Nos.2 and 11 to 18, the petitioners applied for the respective posts as per their eligibility and the selection lists were issued in the month of November 2021 and the petitioners were posted at the respective places for the academic year 2021-22. Few of the petitioners were appointed for the academic year 2022-23 and all the petitioners are being continued in the respective posts and they claim to be ready to discharge their duties continuously for the subsequent academic years.
6. The learned Senior Counsel appearing for the writ petitioners submitted that the petitioners are 4 discharging their duties without any complaint from any quarter and that they achieved 100% results in KGBV schools. It is submitted that many of the petitioners, who are working in various other jobs before the year 2021, quit their jobs and joined in the present posts and are the sole bread winners for their family members.
7. It is submitted that all of a sudden, in the month of June 2023, respondent No.2 has issued the impugned Notification No.1479/SS/T/KGBV/URS/ 2022, dated 16.06.2023, against the posts in which the petitioners are working. Aggrieved by the action of the respondents in not continuing the petitioners in their respective posts, though they are ready to work and issuing a fresh Notification, the present writ petitions are filed alleging unfair discrimination and unfair elimination of eligible candidates.
8. Learned counsel for the petitioners reiterated the above submissions made in the affidavits and has drawn 5 the attention of this Court to G.O.Rt.No.1321, dated 19.10.2021, whereby, the Government of Telangana has permitted engaging services of teachers on contract basis/hourly basis, part time basis, guest basis to work in various institutions of KGBV and other schools. Under the said Notification, it was pointed out that the number of services permitted in respect of KGBVs is
937. He has also drawn the attention of this Court to the press release issued by the District Education Officers at Nalgonda and Yadadri-Bhuvanagiri in the month of November 2021 inviting applications from the eligible candidates for teaching on purely temporary basis in KGBVs of Nalgonda and Yadadri Bhuvangiri Districts.
9. He has also drawn the attention of this Court to the list of candidates who have been appointed and who are being paid the consolidated pay as per the contractual agreement. He has also drawn the attention of this Court to the impugned Notification dated 6 16.06.2023 whereunder, the posts in which the petitioners are already working are being sought to be filled up. He submitted that the above action of the respondents is illegal and arbitrary and the respondents are trying to fill up the posts by other contractual employees. He submitted that the Hon'ble Supreme Court in a number of cases, the latest being the case of Manish Gupta and another Vs. President, Janbhagidari Samithi and others1 has clearly held that an adhoc employee cannot be replaced by another adhoc employee and he can only be replaced by another candidate who is appointed on a regular basis by following a prescribed process.
10. He further placed reliance upon G.O.Rt.No.4271 dated 01.11.2008 wherein comprehensive guidelines have been issued by the then Government of Andhra Pradesh in respect of outsourcing of certain services. He 1 2022 LiveLaw (SC) 406 7 submitted that there is a reference to G.O.Rt.No.4459 (Finance, SMPC Dept.) dated 27.10.2006 in the G.O.Rt.No.4271 wherein a committee constituted for selection of outsourcing agencies at the district level was to be headed by the District Collector. He submitted that the said G.O.Rt., is only for selection of outsourcing agencies and in respect of contract appointments, the G.O., prescribed that the departmental selection committees shall make appointments by following contract guidelines.
11. He submitted that the paragraph No.3 of the said G.O.Rt., prescribed the guidelines for continuation of contract/outsourcing persons vide Circular Memo No.14863-F/547/A2/SMPC/2007 dated 14.06.2007 under which the Government has issued instructions to all the parties to extend the contract/outsourcing agencies contract by one year as long as the posts are outsourced within the sanctioned strength of the 8 department as per implementation committee orders without referring the file again to Finance Department. It was further directed that all the departments shall obtain concurrence of the Finance (SMPC) Department at the initial time of contract/outsourcing.
12. He also submitted that G.O.Rt.No.4271 dated 01.11.2008 provided that all the parties should follow guidelines scrupulously and ensure that the payment of remuneration to all contract/outsourcing persons are made on 1st of every month without fail. Thus, he submitted that the petitioners have been appointed under contract basis and their contract has been extended for a period of one year and that their contracts should be continued without further reference to the Finance Department and issuing the impugned Notification is not in accordance with the above guidelines issued by the Government of Telangana. 9
13. He has also referred to the Notification issued by the Government of Telangana, Education Department, Samagra Siksha Department, dated 27.06.2023, wherein they have issued a schedule for recruitment of temporary contract teachers, according to which, the written examinations are scheduled to be held on 24.07.2023, 25.07.2023 and 26.07.2023 and the vacancies are given district-wise. He submitted that these posts, not being the Government posts, cannot be reserved only to local candidates as the Presidential Order under Article 371-D of the Constitution of India is not applicable to said posts. He relied upon the Judgment of the High Court of Andhra Pradesh in the case of Dr.N. Ram Gopal V. Executive Officer, Tirumala Tirupati Devasthanam, Tirupathi and others2 wherein the dispute was relating to recruitment of Civil Assistant Surgeons by the Tirumala Tirupati 2 2005 (6) ALD 255 10 Devasthanam, to submit that Article 371-D and the Presidential Order neither expressly nor by necessary implication, apply to posts in the T.T.D. and any provision of local area reservation to posts in T.T.D. would be in violation of Article 16(1) of the Constitution of India.
14. He also placed reliance upon the Judgment of the High Court of Andhra Pradesh in the case of CH.Raji Reddy and others Vs. APSRTC and another3 for the proposition that neither the respondent corporation nor the State of Andhra Pradesh has competence to prescribe a qualification of 'residence' in a part of the State as a condition precedent for appointment to a public office in the State.
15. He placed further reliance upon the Judgment of the Division Bench of the High Court of Andhra Pradesh in the case of Government of Andhra Pradesh and 3 (2003) 4 ALT 36 11 others Vs. P. Vema Reddy, Head Master, Government MBHS and others4 for the proposition that teachers under local authorities were not organised into the local cadres. It was further held that since no local cadres have been organised, the Government integrating the same with the already organised local cadres does not arise. The learned Senior Counsel therefore submitted that since the posts under Samgram Siksha are not civil posts of employment under the Government, the reservations provided by the Government on the basis of residence is not tenable.
16. Learned Senior Counsel, therefore, prayed that the impugned Notification be set-aside and the petitioners be continued in the posts in which they are working from the Academic Year 2021-22, for the Academic Year 2023-24 as well.
4 (2007) 3 ALT 287 12
17. Learned Special Government Pleader appearing for the respondents relied upon the averments made in the counter affidavit filed by respondent No.2. It is submitted that Kasturba Gandhi Balika Vidyalayas (KGBVs) are the residential schools for girls functioning under Samagra Siksha, School Education Department with a budget sharing in 60:40 ratio between the State and Central Governments with the objective of ensuring access and quality education to girls belonging to disadvantaged groups and under privileged sections of the society. He submitted that KGBVs are run from classes VI to XII and are functioning from the year 2004 in the united State of Andhra Pradesh under Sarva Siksha Abhiyan, now it is called as Samagra Siksha and staff are working on contractual basis only in these KGBVs since inception. He submitted that the schools are continued as long as the scheme is extended from time to time.
13
18. It is submitted that the staff pattern of the teaching staff in KGBVs is as under:-
For classes VI to X:
(1) Special Officer; (7) Subject-wise Contract Resident Teachers (CRTs); and (1) Physical Education Teacher Total (9).
For upgraded KGBVs (up to intermediate level) i.e., VI to XII:
(1) Special Officer;
(7) Subject-wise Contract Resident Teachers (CRTs);
(7) Subject-wise Post Graduate Contract Resident Teachers (PGCRTs); and (1) Physical Education Teacher Total (16).
19. It is submitted that the teaching staff of KGBVs are filled by conducting state-level online written test as per the Notification issued from the State Project Office and the selected candidates will be engaged at district level as per their merit duly following the rule of reservation on contractual terms and conditions with fixed monthly 14 honourarium. It is submitted that such teachers are terminated on the last working day of the academic year and with a gap of three (3) days, they are engaged afresh for the next academic year based on their performance appraisals and fresh contractual agreements.
20. It is submitted that during the academic year 2018-19, an online written test was conducted at state- level as per the Notification issued from the State Project Office for engaging teaching staff i.e., Special Officers, Post Graduate Contract Resident Teachers (PGCRTs), Contract Resident Teachers (CRTs) and Physical Education Teachers (PETs) on contractual basis and the selected candidates were engaged in the KGBVs and at present they are continuing their services on contractual terms and conditions based on the performance appraisals and by entering into afresh contractual agreements.
15
21. It is submitted that in the subsequent academic year, due to Covid-19 situation, the selection process for appointment of contractual teachers could not be taken up and therefore, the Government has accorded permission vide G.O.Rt.No.1321, dated 19.10.2021, for engaging 937 temporary Post Graduate Contract Resident Teachers (PGCRTs) and Contract Resident Teachers (CRTs) on contract basis for the period of 01.09.2021 to 30.04.2022 or the last working day before the academic year 2021-22 or till the actual need ceases, whichever is earlier and accordingly, it was decided to make stop gap arrangements in the existing vacancies by utilizing the services of locally available eligible candidates on temporary basis as guest faculty and oral instructions were issued to the District Educational Officers in the State to make stop gap arrangements at the school level for the relevant academic year. Therefore, for the benefit of information 16 of all the eligible qualified candidates, press notes were issued by the respective District Educational Officers and as per the need of the schools, applications were received at school level and if there were more than one application, the candidate who obtained higher marks in the qualifying examination was considered. No rule of reservation is followed in the process and thus, the guest faculty's services were utilized purely on temporary basis by the school level special officers.
22. It is submitted that school is a unit for taking the services of guest faculty on temporary basis and vacancy at school level only was taken into consideration. It is submitted that out of 33 districts, except for Hyderabad and Medchal-Malkajgiri District in which KGBVs are functioning in the State, only the district Educational Officers, Bhadradri Kothagudem District has issued Proceedings Rc.No.Spl/B6/TSS/KGBV/2022, dated 10.11.2022, for continuation of the special officers of 17 two upgraded KGBVS for temporary arrangements of 18 teaching staff, but it is not to the petitioners. It is submitted that during the year 2022-23 also, services of guest faculty are utilized on temporary basis at school level based on the school needs as a stop gap arrangement.
23. He further submitted that as per the existing procedure, the vacancies in KGBVs shall be filled up on contract basis after conducting an online written test as per the Notification issued by the State Project Office and selection shall be taken up by the District level Committee headed by the District Collector and Chairman of Samagra Siksha of the District by following rule of reservation and merit in the online written test. It is submitted that in the case of the petitioners, during the academic year 2021-22, due to Covid-19 situation, there was no Notification, nor was any written test conducted and there was no selection by the District 18 level Committee and no rule of reservation and no District level merit was considered. Therefore, according to him, the petitioners cannot claim that they were appointed on contract basis through the Notification.
24. It is submitted that for the present academic year 2023-24, it was decided to fill up the vacancies of the teaching staff of KGBVs and Urban Residential Schools (URSs) in the State on contractual basis as was done during the year 2018-19. Accordingly, the permission was accorded by the Government vide Notification No.1479/SS/T/KGBV/URS/2022, dated 16.06.2023, and a Notification was issued inviting applications from the eligible candidates to fill up the vacancies of teaching staff at KGBVs on contractual basis.
25. In order to demonstrate the selection process adopted for contract teachers in KGBVs in the earlier years, the learned Special Government Pleader has annexed a copy of the Notification 19 Rc.No.3480/SSA/Plg/T7/2017, dated 18.06.2018. With regard to the reservation in favour of local candidates, he submitted that the respondents have not raised any such ground in the writ petitions and therefore, the respondents did not have an occasion to meet the said issue in their counter affidavit filed in these writ petitions. Therefore, he prayed for vacation of the interim order and dismissal of the writ petitions.
26. Having regard to the rival contentions and the material on record, this Court finds that the KGBVs are being run by Samagra Siksha Scheme formulated by the State and Central Governments in a budget ratio of 60:40. It is also found that that there is no cadre strength sanctioned in these schools and therefore, the teachers are being appointed from time to time on contractual basis following a recruitment process. The respondent No.2 is issuing a Notification and is following a procedure, after which, the selected candidates are 20 being offered a contact for an academic year and the said contracts are being extended from time to time. Admittedly, for the academic year 2021-22 and 2022-23, Notification for recruitment was not issued and the petitioners and others were selected only on the basis of their merit in the qualifying examination. The procedure prescribed under the Notification of 2018 was conducting of a written examination with prescribed percentage of marks for the written test and a percentage of marks for experience in the related area. The reservation for local candidates was also applicable. Admittedly, no Notification was issued for filling up the vacancies in KGBVs for the year 2021. The approval was accorded for engaging various categories of new services on contract/hourly basis vide G.O.Rt.No.1321 dated 19.10.2021 and selections were made pursuant to press release issued by the concerned District Educational Officers. Neither any written examination was conducted 21 nor was any weightage given for the experience in the relevant field and the rule of reservation was also not followed.
27. Therefore, even though they were appointed on contract basis, the petitioners cannot claim to be on par with the selected candidates pursuant to the Notifications of 2018 and earlier. The impugned Notification No.1479/SS/T/KGBV/URS/2022, dated 16.06.2023 again prescribed the procedure of written examination followed by the weightage of marks to be given for the experience in the relevant field and the rule of reservation is also to be followed. Therefore, the claim of the petitioners that they are being replaced by other adhoc employees cannot be accepted.
28. Learned Special Government Pleader had stated across the bar that the candidates who were selected pursuant to the Notifications issued prior to the one issued in the year 2021 are being continued on contract 22 basis on the basis of their appraisal reports and since the petitioners have not been engaged after following the prescribed procedure, they cannot be permitted to continue in the posts but they are also eligible to apply for the posts and participate in the selection process.
29. From the above, it is clear that the petitioners have not undergone their selection as per the procedure prescribed by the Government and therefore, they cannot claim to have been appointed by following due procedure. Therefore, their reliance upon the judgment of the Hon'ble Supreme Court in the case of Manish Gupta and another, etc., Vs. President, Janbhagidari Samithi and others, etc., reported in 2022 LiveLaw (SC) 406 is misplaced.
30. In view of the same, this Court does not find any merit in these writ petitions and the writ petitions are accordingly, dismissed. However, liberty is given to the petitioners to participate in the selection process and if 23 they are found to be eligible, the respondents shall consider and appoint them in the vacant posts as per the rule of reservation. The respondents, however, may consider granting weightage marks for the services rendered by the petitioners and others during the academic years 2021-22 and 2022-23. No costs Pending miscellaneous petitions, if any, in these Writ Petitions shall also stand dismissed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 24.07.2023 GSP 24 THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI WRIT PETITION Nos.16928, 16903, 16083, 16088, 16489, 16675 and 17229 of 2023 Dt:24.07.2023 GSP