Telangana High Court
T.E. Rajagopalan vs Prl. Secy., Collegiate Edn. Dept. And 2 ... on 22 December, 2023
THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION No.25241 of 2017
ORDER:
This writ petition is filed seeking to declare the action of the respondents in not regularizing the services of the petitioner in the post of Lecturer in Degree College, as illegal and arbitrary, and consequently to direct the respondents to regularize the services of the petitioner from the date of his initial appointment with all consequential benefits.
2. The facts of the case, in brief, are that the petitioner passed M.Com with 60% of marks from Osmania University in the year 1990. He was appointed as a Lecturer in Pragathi Mahavidyalaya Junior College on 25.06.1990 in a vacant aided post, in pursuance of the selection made by a duly constituted Selection Committee. The petitioner worked in the said college upto June, 2008 and thereafter, he was shifted to respondent No.3 - Pragathi Mahavidyalaya Degree College of Commerce & Science against a vacant aided post by way of redeployment from the defunct Chanakya Junior College, Hyderabad, and since then, he is 2 working in the respondent No.3-college as a Lecturer in Commerce. It is stated that the petitioner is paid only consolidated amount of Rs.16,000/- per month, but not the regular pay scale and that he was also denied various other benefits, leaves, allowances etc.
3. It is further stated that the petitioner on an earlier occasion approached this Court and filed W.P.No.21281 of 1997 seeking regularization of his service. Thereafter, respondent No.3 terminated his services w.e.f. 01.02.1999. The said writ petition was dismissed as infructuous on 19.04.1999 with an observation that the question relating to regularization of services is left open and the same shall depend upon the result of the appeal, which is pending before the Appellate Authority. Thereafter, on 17.09.1999, the Appellate Authority has dismissed the appeal filed by the petitioner on the ground that the petitioner was a part time lecturer. Aggrieved by the same, the petitioner approached the Government, which in turn, vide G.O.Rt.No.251, Higher Education (CE-III-2) Department, dated 07.04.2000 ordered for reinstatement of the petitioner.
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4. It is further stated that the petitioner filed W.P.No.22840 of 2000 for implementation of the said G.O.Rt.No.251 dated 07.04.2000 and this Court vide order dated 24.11.2000 directed the respondent No.3 to reinstate the petitioner into service and pay arrears of salaries. The respondent No.3 did not implement the order of this Court dated 24.11.2000, and therefore, seeking implementation of the said order, the petitioner filed C.C.No.682 of 2001. Pursuant to the interim order passed by this Court in the said Contempt Case, the respondent No.3 had paid the salaries to the petitioner from 24.11.2000. It is further stated that challenging G.O.Rt.No.251 dated 07.04.2000, respondent No.3 has filed W.P.No.7515 of 2000. Pending the said writ petition, the parties have compromised the matter and agreed to withdraw all the pending cases before this Court.
5. It is further stated that the respondent No.3 issued the proceedings dated 29.03.2005 reinstating the petitioner into service and the petitioner started working since 30.03.2005. Thereafter, the petitioner submitted a representation to regularize his services as per G.O.Ms.No.328 dated 15.10.1997 and 4 Management of the respondent No.3 - college has also requested the respondent No.2 to regularize the services of the petitioner in terms of G.O.Ms.No.328 dated 15.10.1997 in the same terms as was done in the case of another Part Time Lecturer in Sarojini Naidu Vanitha Mahavidyalaya. However, the respondent No.2 vide proceedings dated 24.08.2011 held that G.O.Ms.No.328 dated 15.10.1997 cannot be extended to the petitioner since he fell short of the required number of years of service as on 25.06.1990.
6. It is stated that the respondent No.1 has taken up the aspect of solving the demands of the employees working in the private aided colleges against the regular posts before and after the enactment of A.P. (Regulation of Appointments to Public Services & Rationalization of Staff Pattern and Pay Structure) Act, 1994 (for short, 'Act 2 of 1994') and for taking further action in the matter. The respondent No.2 vide proceedings dated 29.10.2014 directed the respondent No.3 as well as various other private aided colleges to furnish the particulars of the employees, who are working against regular posts before and after the Act 2 of 1994. Pursuant to the same, the respondent No.3 has furnished 5 the list of employees, which includes the name of the petitioner, working in its college. Thereafter, respondent No.2 vide letter dated 10.05.2016 again requested all the colleges to furnish the particulars of the unaided lecturers working against the regular aided posts in the private aided colleges. Pursuant to the same, the respondent No.3 has again sent the list showing the particulars of such Lecturers, including the name of the petitioner.
7. The grievance of the petitioner is that that though he was appointed through duly constituted Selection Committee and though his name was included in the list of Lecturers sent by the respondent No.3 college to the respondent No.2 - Commissioner of Collegiate Education, the Government has not taken any steps to regularize his services, which resulted in continuation of the petitioner on consolidated pay.
8. The respondent Nos.1 and 2 filed counter affidavit denying the petition averments and inter alia stating that the petitioner is employee of the respondent No.3 - college, which is also running unaided sections, and therefore, the official respondents are no 6 way concerned with the employment of the petitioner with the respondent No.3 - college. If the petitioner was appointed in aided vacancies, the respondent No.3-college ought to have taken permission from the competent authority before filling up the vacancies by giving equal opportunity to all the eligible candidates. It is further stated that merely because the petitioner is working in the respondent No.3-college since long time, the petitioner cannot seek regularization. It is further stated that the Government through G.O.Ms.No.12, Education (CEI-2) Department dated 10.01.1992 has prescribed the procedure for selection of Lecturers in Private Colleges, but, the respondent No.3 - college has not followed the procedure prescribed under the said G.O.
9. It is further stated that as per the representation received from the Teaching Association, certain information was called for vide C.C.E's Memo No.144/Admn.V-2/2014 dated 29.10.2014 with regard to the staff working in Aided Colleges. Therefore, there is no relevance to the information sought and the case of the petitioner. The petitioner is working in unaided post and the 7 respondents are no way concerned with the post held by him. It is further stated that there is no scheme to absorb the employee from un-aided post to aided post and that the Government has imposed a ban on recruitment of aided posts vide G.O.Ms.No.35 Higher Education (CE.II-1) Department dated 27.03.2006.
10. The respondent No.3 filed a counter affidavit stating that respondent No.2 vide letter dated 29.10.2014 requested it to send the particulars of the employees, who are working against regular posts, joined prior to and after the enactment of Act No.2 of 1994; that the respondent No.3 has furnished the list of such employees, wherein the name of the petitioner was also included; that the other particulars of the petitioner were also furnished vide subsequent letter dated 12.04.2016 confirming that his original appointment was done through a duly constituted Selection Committee and he was working since 1990. The respondent No.2 vide letter dated 10.05.2016 again requested to furnish the list of employees and the same was furnished by the respondent No.3.
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11. It is stated that the petitioner was appointed as a Lecturer in Commerce in the year 1990 in a vacant aided post through a duly constituted Committee and he is being paid the consolidated salary monthly. The payment of salary to him in a regular pay scale will take place on the decision of the respondent Nos.1 and 2 and that in view of the ban on appointments under Act No.2 of 1994, no recruitments have taken place subsequently in any of the colleges in the State. The colleges are being run with the Lecturers like the petitioner on consolidated pay though they are working against aided posts.
12. This Court, on 04.01.2018, while admitting the writ petition, directed the respondent-Management to pay minimum time scale attached to the post of Lecturer to the petitioner, within a period of eight weeks from the date of receipt of a copy of that orders, in view of the ratio laid down by the Apex Court in Punjab v. Jagjit Singh 1.
13. Heard Sri Vedula Srinivas, the learned Senior Counsel appearing for the petitioner, the learned Government Pleader for 1 (2017 (1) SCC 148) 9 Education for respondent Nos.1 and 2 and Sri T.S. Praveen Kumar, the learned counsel for the respondent No.3. Perused the record.
14. The learned Senior Counsel appearing for the petitioner would submit that the petitioner was appointed as Part Time Lecturer against a vacant aided post in the respondent No.3 - college by the Selection Committee duly following the process. He further submitted that the Government had issued G.O.Ms.No.328 dated 15.10.1997 for regularisation of services of Part Time Lecturers in aided colleges. The condition specified in the said G.O. for regularisation of the services of Part Time Lecturers is that the individual has to put in service of three academic years as on 30.07.1991 or five academic years as on 25.11.1993, as the case may be, and also continuing in service as on the date of issuance of the said G.O. He further submitted that in response to the request made by respondent Nos.1 and 2, the respondent No.3 - college has submitted the list of Lecturers working in its college and the petitioner's name was also included in the said list.
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15. The learned Senior Counsel further submitted that the petitioner is continuing in service since long time, and therefore, his case has to be considered for regularisation. In support of the said contentions, the learned Senior Counsel has relied upon the judgments of the Supreme Court in State of Karnataka v. Uma Devi 2 and District Collector v. M.L. Singh 3.
16. Per contra, the learned Government Pleader for Education appearing for respondent Nos.1 and 2 would submit that the respondent No.3 - college has both aided and unaided Sections and the Government is no way concerned with the employment of the petitioner, who was appointed in unaided post. He further submitted that the case of the petitioner for regularisation was earlier considered and rejected vide proceedings dated 24.08.2011 as he fell short of the required number of years of service as on 25.11.1993. He further submitted that as per G.O.Ms.No.12, Education (CE 1-2) Department, dated 10.01.1992, the aided posts have to be filled up duly affording an opportunity to all the unemployed youth by giving advertisement etc. However, in the 2 2006 (4) SCC 1 3 1998 (2) ALT 5 11 instant case, the respondent No.3 - college had not followed the said procedure and appointed the petitioner contrary to the guidelines issued under the said G.O. As the petitioner was appointed in backdoor method and there is no policy to regularise the Part Time Lecturers, the petitioner cannot claim regularisation as a matter of right.
17. The learned Government Pleader further contended that the Government vide G.O.Ms.No.283, Education (CE.II.1) Department, dated 03.11.1999, annulled the scheme formulated in G.O.Ms.No.328 dated 15.10.1997. Therefore, G.O.Ms.No.328 dated 15.10.1997 is no longer in operation and the petitioner cannot avail the benefit under the said G.O.
18. The learned Government Pleader specifically referred to the letter dated 26.03.2015 addressed by respondent No.3 to respondent No.2-Commissioner of Collegiate Education, in response to the Memo No.213/Admn.V-2/2014, dated 12.03.2015, wherein it was categorically admitted by respondent No.3 that the petitioner was appointed as a Part Time Lecturer in Commerce in Pragathi Mahavidyalaya Junior College on 12 25.06.1990 by obtaining oral permission from the Commissioner of Intermediate Education; that the Regular Selection Committee was not constituted, however, interview was conducted by an expert from Osmania University and that minutes book was not traceable.
19. In support of the said contentions, the learned Government Pleader has relied upon the judgments of the Supreme Court in Ganesh Digamber Jambhrunkar v. State of Maharashtra 4; this Court in Government of Andhra Pradesh, rep. by its Secretary, Higher Education (CE.II) Department v. Raju Bolla, Lecturer in Botony (on contract basis, ABV Degree College, Janagaon 5; and Punjab and Haryana High Court in State of Haryana v. Balwinder Singh 6.
20. Insofar as the judgments relied upon by the learned Senior Counsel for the petitioner are concerned, in Uma Devi's case, the Supreme Court held as under:
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2023 LiveLaw (SC) 801 5 2007 (4) ALT 106 (DB) 6 2023(2) RCR (Civil) 336 13 "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 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 courts or of tribunals. The question of regularization 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 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 regularization, 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 regularizing or making permanent, those not duly appointed as per the constitutional scheme."
21. In M.L. Singh's case, the Supreme Court held that the services of the employee have to be considered for regularisation as and when they complete the requisite period of service. 14
22. Insofar as the judgments relied upon by the learned Government Pleader are concerned, in Ganesh Digamber Jambhrunkar's case, the Supreme Court held as under:
"We appreciate the argument of the petitioners that they have given best part of their life for the said college but so far as law is concerned, we do not find their continuous working has created any legal right in their favour to be absorbed. In the event there was any scheme for such regularization, they could have availed of such scheme but in this case, there seems to be none. We are also apprised that some of the petitioners have applied for appointment through the current recruitment process. The High Court has rejected their claim mainly on the ground that they have no right to seek regularization of their service. We do not think any different view can be taken"
23. In Raju Bolla's case, the Division Bench of this Court held as under:
"Admittedly, though all these appointments are made through a selection process but the same are at the instance of the respective private management rather than with the intervention of the Government or any assistance as that of the aided posts. Therefore, the entire process involves a direct relationship between the management and such employees and therefore, nothing can be attributed against the Government".
24. A perusal of record discloses that the Government has issued G.O.Ms.No.12 dated 10.01.1992 prescribing the procedure 15 for selection of Lecturers/Junior Lecturers in Private Degree/Junior Colleges. As per the said G.O, the Management of the private colleges shall notify the vacancies to the Employment Exchange (Professional and Executive Officers) Hyderabad, and that without waiting for sponsoring of the candidates by the Employment Exchange, after a lapse of 15 days, the Management of the private colleges shall notify the vacancies in two daily newspapers (Local and National) indicating the roster point calling for applications from eligible candidates. The said G.O. further specifies the educational qualification, rule of reservation and the manner in which the selection has to be completed.
25. It is apt to refer to Act 2 of 1994, which laid down the norms and procedures for regularisation of appointments to public services and rationalisation of staffing patterns and pay structures and the said Act prohibits the Government Departments, Corporations, Universities and Local bodies etc., from making illegal unauthorised appointments through the backdoor as NMRs on daily wages or on consolidated pay. 16
26. Admittedly, in the present case, neither the petitioner nor the respondent No.3 - college has placed any material on record to show that the procedure prescribed for selection of Lecturers/Junior Lecturers i.e., providing opportunity to eligible candidates by notifying the vacancies in the Employment Exchange or issuing paper publication has been followed. Furthermore, no selection committee has been constituted and no prior approval has been obtained from the Government. Therefore, the appointment of the petitioner in respondent No.3- college cannot be termed as legal.
27. Further, though the petitioner claims that he is entitled to be regularized in terms of G.O.Ms.No.328 dated 15.10.1997, he cannot avail the benefit under the said G.O., as the scheme formulated in the said G.O. has been annulled by the Government by issuing G.O.Ms.No.283 dated 03.11.1999.
28. As held by the Supreme Court in Ganesh Digamber Jambhrunkar's case, the petitioner cannot seek regularisation as a matter of right though he has put in long period of service. 17
29. Further, in Raju Bolla's case, the erstwhile High Court of Andhra Pradesh held that where the appointments were made by the private colleges though through selection process without intervention or assistance of the Government, nothing can be attributed against the Government, as the entire process involves a direct relationship between the management and such employees.
30. In view of the aforesaid discussion and the observations of the Hon'ble Supreme Court as well as the erstwhile High Court of Andhra Pradesh in the judgments referred to above, this Court is of the considered opinion that the present writ petition is devoid of any merit.
31. The writ petition is accordingly dismissed. There shall be no order as to costs.
Pending Miscellaneous Applications, if any, shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 22.12.2023 Note: L.R. Copy to be marked va