HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE K. LAKSHMAN
Writ Appeal No.311 of 2019
and
Writ Petition No.17717 of 2020
COMMON JUDGMENT: (Per Sri Justice M.S.Ramachandra Rao)
Writ Appeal No.311 of 2019 and Writ Petition No.17717 of 2020
were clubbed together since petitioners in Writ Petition No.17717 of
2020 are respondent nos.1 and 9 in Writ Appeal No.311 of 2019; and the
Appellant in Writ Appeal No.311 of 2019 is the 3rd respondent in Writ Petition No.17717 of 2020, and common questions of law and fact arise for consideration in these cases.
2. On 25.11.2020, the Hon'ble Chief Justice passed orders on the administrative side for posting Writ Petition No.17717 of 2020 along with I.A.No.1 of 2019 in Writ Appeal No.311 of 2019 before this Bench.
3. Though the said Writ Appeal had been preferred in November, 2018, due to certain reasons there was a delay in re-submission of the Writ Appeal of (119) days, and it was not listed for admission before the Division Bench for considerable period of time till 27.01.2021.
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4. The said Writ Appeal was ultimately listed on 27.01.2021 and I.A.No.1 of 2019 filed by the University therein for condonation of delay of (119) days in re-submission of the appeal was condoned by the Bench presided over by the Chief Justice, and the matter was directed to be listed on 24.03.2021 along with Writ Petition No.17717 of 2002 before this Bench.
5. On 19.04.2021, both the matters were reserved after hearing submissions of both sides.
6. Heard Sri K. Rama Murthy, counsel for appellant in Writ Appeal No.311 of 2019, and for 3rd respondent in Writ Petition No.17717 of 2020; and Sri G. Satyanarayana Yadav, counsel for respondent nos.1 to 12 in Writ Appeal No.311 of 2019, and for Writ Petitioners in Writ Petition No.17717 of 2020.
The background facts
7. The Potti Sreeramulu Telugu University (for short, 'the University') is a University imparting higher education in traditional dance, literature, history, language, journalism and fine arts. It has campuses in Hyderabad, Rajahmundry, Srisailam, Warangal and Kuchipudi in both the States of Andhra Pradesh and Telangana.
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Writ Appeal No.311 of 2019
8. Writ Appeal No.311 of 2019 is filed by the Potti Sreeramulu Telugu University, Hyderabad challenging the order dt.03.10.2018 passed in Writ Petition No.11162 of 2005 by the learned single Judge. W.P.No.11162 of 2005
9. The petitioners in W.P.No.11162 of 2005 are all employed in the University as Instructors/Accompanist in various disciplines from 1988 and 1992.
10. They had previously filed W.P.No.8770/1998 in the A.P.High Court seeking directions to the State of A.P and the University to regularize their services in various faculties against available vacancies. On 4.9.1998, the High Court had directed the State of A.P. to consider the case of petitioners for absorption as Project Assistants keeping in view G.O.Ms.No.212 dt.22.4.1994 within 2 months. It was further directed that the University should consider cases of such of the petitioners who fulfill the requirements for appointment to the post of Reader, Lecturer, Assistant professor as the case may be subject to their selection by the Selection Committee. Pending consideration of their cases for regularization, since the petitioners have been discharging the functions of teaching staff/Instructor, it is necessary that they should be paid with regular scales of pay attached to the post. The State was therefore directed to pay regular scales of pay attached to the post 2750-
MSR,J & KL,J ::4:: wa_311_2019& wp_17717_2020 5960 (pay of Asst. Lecturers) pending regularization of their services from 1.1.1998.
11. This order was challenged in W.A.No.1730 of 1998 by the University before a Division Bench of the A.P. High Court. The said Appeal was partly allowed on 3.12.2002 in the following terms:
" In order to avoid further controversy, we direct the Government of Andhra Pradesh represented by its Principal secretary, higher Education to consider the cases of the respondents-writ petitioners for regularization of their services in terms of the said directions issued by the learned single Judge in W.P.No.8770 of 1998 dt.4.9.1998 within 8 weeks from the date of receipt of a copy of this order. It is needless to observe that the payment of regular scales shall depend upon the decision of the Government regarding regularization of the services of the respondents-writ petitioners..."
12. When the case of petitioners in W.P.No.11162 of 2005 for regularization was not considered in terms of the order dt.3.12.2002 in W.A.No.1730 of 1998 and there was a notification No.PSTU/Admn1/4T/3/2005 dt.3.4.2005 issued by the University to fill up posts of Asst. Professors in Department of Music, Department of Sculpture and Painting and Department of Theater Arts by direct recruitment, they filed the said Writ to set aside the said notification and to direct the University to consider their cases for recruitment to the said posts on regular basis as they were all professional artists possessing highly commendable achievements in their respective fields of study.
13. When the said WP was heard by a learned Single Judge, the counsel for the University informed that all posts notified had already MSR,J & KL,J ::5:: wa_311_2019& wp_17717_2020 been filled up, that cases of petitioners were also considered and that they did not come up within the zone of consideration.
14. So the said WP No.11162 of 2005 was disposed off on 3.10.2018 directing the University and the State of A.P. to regularize the services of the petitioners within a period of 8 weeks from the date of receipt of a copy of the said order.
15. Challenging the same W.A.No.311 of 2019 was filed by the University.
Contentions of the University in WA No.311 of 2019
16. It is the contention of the University in the Writ Appeal that the learned single Judge did not consider the material facts, and as per Rules governed, appointment to posts in the University recruitment has to be done in accordance with guidelines revised from time to time by the University Grants Commission, and that no appointment can be made granting exemption to the respondents in Writ Appeal No.311 of 2019 regarding passing of National Eligibility Test or State Eligibility Test. It further stated that the State Government had permitted to fill up vacant posts of Assistant Professors out of the posts lying unfilled for a long time, and thereafter, a decision was taken in a meeting held on 18.03.2005 by the Vice-Chancellor of the University with the Deans and Heads of the University to recommend filling up of three posts of Assistant Professors in the Department of Music, Department of Sculpture and Painting and Department of Theatre Arts; that this was MSR,J & KL,J ::6:: wa_311_2019& wp_17717_2020 approved by the Executive Council of the University, and so the order dt.03.10.2018 passed in Writ Petition No.11162 of 2005 deserves to be set aside.
Writ Petition No.17717 of 2020
17. While the W.A.No.311 of 2019 was pending for listing, in the mean time, Writ Petition No.17717 of 2020 had been filed by petitioners / petitioners 1 and 9 in W.P.11162 of 2005/ respondent nos.1 and 9 in Writ Appeal No.311 of 2019 to declare the action of the respondents in not regularizing their services on one-time basis in spite of Law laid down by the Supreme Court in Government of Karnataka vs. Uma Devi1 and State of Karnataka vs. M.L. Kesari2, and C. Mahender and four others vs. Potti Sreeramulu Telugu University and three others3 as illegal, arbitrary and violative of art.14, 16 and 21 of the Constitution of India and to direct the respondents to regularize their services in respective posts such as Asst. Professors /Associate professor/Professor/project Assistant as the case may be from the date of completing 10 years of service as on 10.4.2006 duly counting the consolidated pay service from the dates of their initial appointment for the purpose of pension and notional pay fixation, increments and with all consequential benefits.
18. Petitioners in Writ Petition No.17717 of 2020 / respondent nos.1 and 9 in Writ Appeal No.311 of 2019 were appointed as Instructor and 1 (2006) 4 S.C.C. 1 2 (2010) 9 S.C.C. 247 3 order dt.21.04.2020 passed in Writ Petition No.23057 of 2019 MSR,J & KL,J ::7:: wa_311_2019& wp_17717_2020 Accompanist on consolidated pay against sanctioned posts and they have been working in the said posts since 19.11.1991 and 04.02.1993, respectively in the Department of Dance, Hyderabad.
19. They asserted that they had submitted a representation on 05.11.2018 to the University to comply with the order dt.03.10.2018 passed in Writ Petition No.11162 of 2005, but the University has not implemented the said order. It is alleged that they (petitioners in Writ Petition No.17717 of 2020) had been continuously discharging their duties since 1992 and 1993 in the posts of Instructor and Accompanist against sanctioned posts on consolidated pay; that they possess all requisite qualifications and they had put in almost 28 years of service as on the date of filing of the said Writ Petition, and they should be directed to be regularized by the 3rd respondent-University. Counter-affidavit filed by respondents in Writ Petition No.17717 of 2020
20. Counter-affidavit has been filed by respondents in Writ Petition No.17717 of 2020 taking a plea that petitioners in the Writ Petition are not entitled to seek regularization because the same is not permitted by G.O.Ms.No.212 dt.22.04.1994; that S.L.P. (C) Diary No.19030 of 2020 had been filed against the order dt.21.04.2020 passed in C. Mahender and four others (3 supra) which could be listed on 18.11.2020; and that the order dt.21.04.2020 passed in C. Mahender and four others (3 supra) has not attained finality.
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21. It was further contended that petitioners in Writ Petition No.17717 of 2020 had not completed five years of service as on 25.11.1993 for regularization as per G.O.Ms.No.212 dt.22.04.1994, and that the judgment of the Supreme Court in Uma Devi (1 supra) is not applicable to them.
22. While admitting that petitioners in Writ Petition No.17717 of 2020 are being paid consolidated pay, it is contended that the judgment of the Supreme Court in Uma Devi (1 supra) will not apply to them since there is a scheme existing in the State for regularization of services in G.O.Ms.No.212 dt.22.04.1994.
23. It was also stated that the University and the State of Telangana had considered the case of petitioners as per orders passed in Writ Petition No.8770 of 1998 and Writ Appeal No.1730 of 1998 as per G.O.Ms.No.212 dt.22.04.1994, and that petitioners are not coming within those parameters. It was also mentioned that Writ Appeal No.311 of 2019 had been preferred against the order dt.03.10.2018 passed in Writ Petition No.11162 of 2005, and that the same is pending before this Court.
24. The learned Government Pleader for Services-I appearing for the State of Telangana adopted the contentions of Sri K. Rama Murthy, counsel for the appellant-University.
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Consideration by the Court
25. In Uma Devi (3) (1 supra), the Supreme Court has held that any public employment has to be in terms of the constitutional scheme and a sovereign Government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. It however declared that a regular process of recruitment or appointment has to be resorted to when regular vacancies in posts at a particular point of time are to be filled up and filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. It declared that regular appointments must be the rule. It held that in situations where irregular appointments (not illegal appointments) of duly qualified persons in duly sanctioned vacant posts are made, and all the employees have continued to work for ten years or more, but without the intervention of orders of Courts or of Tribunals, their claim for regularization of services have to be considered on merits. It directed that the Union of India, the State Governments and their instrumentalities should take steps for regularization, as a one-time measure, the services of such irregularly appointed persons who have worked for ten (10) years or more in duly sanctioned posts but not under cover of orders of Courts or of Tribunals. It also directed that Court should ensure that regular appointments are undertaken to fill those vacant sanctioned posts. It directed the said process to be set in motion MSR,J & KL,J ::10:: wa_311_2019& wp_17717_2020 within six (06) months from the date of pronouncement of its order in Uma Devi (1 supra), i.e., 10.04.2006.
26. It further held regarding the aspect of regularization as under:
"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa4, R.N. Nanjundappa5 and B.N. Nagarajan6 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 regularise 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."( emphasis supplied)
27. M.L. Kesari (2 supra) explained the decision in Uma Devi (3) (1 supra) as one meaning that after the decision in Uma Devi (3) (1 supra) each Department or each instrumentally should undertake a one-time exercise and prepare a list of all casual, daily wage or ad hoc 4 AIR 1967 SC 1071 5 1972 (1) SCC 409 6 1979 4 SCC 507 MSR,J & KL,J ::11:: wa_311_2019& wp_17717_2020 employees who have been working for more than (10) years without the intervention of Courts and Tribunals and subject them to a process of verification as to whether they are working against vacant posts and possess the requisite services.
28. We may also point out that in relation to persons similarly placed like the petitioners in Writ Petition No.17717 of 2020 / respondents in Writ Appeal No.311 of 2019, a Division Bench consisting of one of us, viz., (MSR,J) and TA,J in C. Mahender and four others (3 supra) had rejected similar defences raised by the University, i.e., non-compliance with the condition of completing 5 years service by 25.11.1993 specified in G.O.Ms.No.212 dt.22.04.1994 and inapplicability of the judgment of the Supreme Court in Uma Devi (3) (1 supra).
29. The Division Bench in C. Mahender and four others (3 supra) held that the University was bound by the judgment in Uma Devi (3) (1 supra) and in M.L. Kesari (2 supra) and ought to have undertaken one-time exercise of preparing list of daily-wage employees/consolidated wage employees who had worked for more than 10 years without interruption of Courts and Tribunals as on 10.04.2006; subject them to process verification as to whether they are working against vacant posts and possess requisite qualifications for the posts, and if so, regularize their services.
30. This Court also held in C. Mahender and four others (3 supra) that G.O.Ms.No.212 dt.22.04.1994 and Act No.2/1994 (giving statutory MSR,J & KL,J ::12:: wa_311_2019& wp_17717_2020 effect to the said G.O) do not come in the way of petitioner in regularizing the services of petitioners since they do not whittle down the effect of the principle laid down in para no.53 in Uma Devi (3) (1 supra) wherein the Supreme Court had ordered for one-time absorption / regularization of those who had worked for a period not less than (10) years, and such directions were held to be binding on all State Governments and also the Union of India.
31. This Court in C. Mahender and four others (3 supra) followed the decision of an earlier Division Bench of this Court in U.V.S.R. Prasad and others vs. State of Andhra Pradesh7 wherein the said Division Bench had held that the Supreme Court is presumed to be conscious of the various State enactments such as Act No.2/94 and Executive Orders such as G.O.Ms.No.212 dt.22.04.1994 while giving directions in para no.53 of the judgment in Uma Devi (3) (1 supra) ordering one-time absorption / regularization of those who had worked for a period not less than ten years, and had taken a view that Act No.2/94 and G.O.Ms.No.212 dt.22.04.1994 do not whittle down, and even the judgment of the Supreme Court in A. Manjula Bhashini vs. Andhra Pradesh Womens' Co-operative Financial Corporation Ltd.8 (upholding Act No.2/1994), did not lower the trajectory of the directions contained in para no.53 of the decision in Uma Devi (3) (1 supra).
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32. This Court has also recorded in C. Mahender and four others (3 supra) that it had taken a similar view in Government of Andhra Pradesh vs. N. Venkaiah and others9.
33. It is important to note that the decision in U.V.S.R. Prasad (4 supra) had been challenged by the then State of Andhra Pradesh in S.L.P.(C).Diary No.15327 of 2018 and was dismissed by the Supreme Court on 07.05.2018.
34. It is also important to note that though the decision in C. Mahender and four others (3 supra) had been challenged in S.L.P.(C).Diary No.19030 of 2020, the Supreme Court did not grant stay of the said judgment but only directed that coercive proceedings should not be adopted by petitioners in C. Mahender and four others (3 supra).
35. It is also important to note that in the counter-affidavits filed by the University in Writ Petition No.17717 of 2017, it has not denied that petitioners were working against sanctioned posts on consolidated pay from 1992 and 1993, respectively. It is also not contended by the respondents that petitioners do not fulfill the qualifications prescribed for the posts of Instructor and Accompanist or the fact that they had been continuously working for the last 27 plus years in the said post.
36. We are therefore of the opinion that the cases of petitioners in Writ Petition No.17717 of 2020 and respondents in Writ Appeal No.311 9 2018 (4) ALT 6 MSR,J & KL,J ::14:: wa_311_2019& wp_17717_2020 of 2019 is squarely covered by the decision of this Court in C. Mahender and four others ( 3 supra) rendered on 21.04.2020.
37. We also hold that G.O.Ms.No.212 dt.22.4.1994 had directed consideration for regularization of persons employed on consolidated wages/daily wages etc if they completed 5 years of service by 25.11.1993, but between 22.4.1994 and today i.e., 27 years+, the University had been exploiting persons like the petitioners by continuing them on consolidated wages without giving them any scale of pay in total violation of the decision in Uma Devi ( 1 supra) to make regular appointments in accordance with the applicable law and the Constitution and also violating the directive in para 53 of Uma Devi ( 1 supra) one- time absorption / regularization of those who had worked for a period not less than ten years.
38. So on the ground that petitioners did not complete 5 years of service as on 25.11.1993, the University cannot now, 27 years later after they were taken into service, deny them regularization.
39. In our opinion, the decision in Uma Devi (1 supra) would override the G.O.Ms.No.212 dt.22.4.1994 and Act 2/1994 and also prevail over the decision in A. Manjula Bhashini (5 supra).
40. The University cannot harp on the Act 2/1994 or G.O.Ms.No.212 dt.22.4.1994 and expect the Court to turn a blind eye to it's arbitrary conduct practically akin to an unfair labour practice in exploiting MSR,J & KL,J ::15:: wa_311_2019& wp_17717_2020 petitioners for more than 27+ years in defiance of the law laid down in Uma Devi (1 supra) and also W.A.No.1730 of 1998.
41. We also state that there is no material placed before this Court by the University showing that they had considered the case of respondents in Writ Appeal No.311 of 2019 / petitioners in Writ Petition No.17717 of 2020 for purposes of regularization at any point of time as per the order dt.03.12.2002 passed in Writ Appeal No.1730 of 1998; and the bald plea taken in para no.6 of its counter in Writ Petition No.17717 of 2020 that it had considered their cases and found that they were not coming within the parameters prescribed in G.O.Ms.No.212 dt.22.04.1994, is not borne out by any record.
42. For these reasons, we dismiss the Writ Appeal No.311 of 2019 and confirm the order of the learned single Judge dt.03.10.2018 passed in Writ Petition No.11162 of 2005, and direct the appellant-University to comply with the order of the learned single Judge dt.03.10.2018 passed in Writ Petition No.11162 of 2005 in 4 weeks from date of receipt of copy of this order.
43. Consequently, Writ Petition No.17717 of 2020 which is filed for the same relief for regularization by respondent nos.1 and 2 in Writ Appeal No.311 of 2019 is disposed off in terms of our order in WA.No.311 of 2019.
44. Accordingly, Writ Appeal No.311 of 2019 is dismissed, and Writ Petition No.17717 of 2020 is disposed of as above. No order as to costs.
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45. As a sequel, miscellaneous petitions pending if any in the Writ Appeal and Writ Petition, shall stand closed.
____________________________ M.S.RAMACHANDRA RAO, J _______________________ K. LAKSHMAN, J Date: 02.06.2021 Ndr