Telangana High Court
Jawaharlal Nehru Architecture And Fine ... vs S. Nageswara Chary, on 6 August, 2024
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
Writ Appeal No.567 OF 2017
JUDGMENT:
(Per Hon'ble Smt.Justice M.G. Priyadarsini) Aggrieved by the order dated 26.12.2016 passed in W.P.No.30902 of 2012, the respondent-University in the said Writ Petition preferred the present Writ Appeal.
2. The brief facts of the case are that W.P.No.30902 of 2012 is filed by the respondents declaring the action of the appellant- University in regularizing the services of the respondents as Assistant Professors with effect from 20.04.2010 as illegal and sought consequential direction to the Appellant-University to regularize the services of the respondents with effect from the date of judgment passed in W.P. No. 5019 of 1995, dated 13.05.2003 with all consequential benefits viz., fixation in the appropriate pay scale, seniority and etc.
3. The case of the respondents in the Writ Petition is that they were initially appointed as Academic Assistants in the JNTU in the years 1988 and 1991 respectively and they were continued on payment of consolidated salary and were denied for various service benefits for several years and hence, filed W.P. No. 5019 of 1995 seeking regularization of their services for the posts of Assistant 2 MB,J & MGP,J W.A.No.567/2017 Professors and the said Writ Petition was allowed by this Court on 13.03.2000 directing the appellant-University to consider the case of the respondents for their regularization in the cadre of Lecturers within a period of three months. Subsequently, the appellant/University filed W.A. No. 627 of 2003 challenging the order of W.P.No.5019 of 1995 and the same was dismissed vide order dated 28.07.2008 confirming the order of the Writ Petition. Since the appellant - University was not complying the order passed in Writ Petition, the respondents were constrained to file a Contempt Case against the respondent vide C.C.No.230 of 2009. Then, the appellant -University took steps for regularizing the services of the respondents and ultimately issued proceedings on 20.04.2010 regularizing the services of the respondents in the cadre of Assistant Professors in the pay scale of Rs. 8,000/- to Rs.13,500/- with effect from 20.04.2010. Now, it is the contention of the respondents that they ought to have been regularized from the date of the order in the Writ Petition that has also been confirmed in the Writ Appeal. But, due to pendency of the Writ Appeal for nearly five years, the respondents were denied of regularization and were continued on consolidated pay all these years and were denied of various service benefits due to the arbitrary action of the appellant-University in not regularizing their services as per the orders in the Writ Petition. It is further contended by the respondents that they have filed an application 3 MB,J & MGP,J W.A.No.567/2017 under the RTI Act seeking reasons for not regularizing their services from 13.05.2003 and were given reply dated 03.08.2012 stating that the Monitoring and Development committee has rejected their requests for regularization of their services from 13.05.2003 since the appellant-University had implemented the orders passed in W.A.No.627 of 2003 dated 28.07.2008. Aggrieved by the act of the appellant-University in not regularizing their services from the date of judgment in W.P.No.5019 of 1995, they filed Writ Petition No.30902 of 2012.
4. It is the contention of the appellant-University made in its counter that the JNAFA University was established in the year 2008 through an Act.31 of 2008 passed by The A.P. Legislative Assembly and prior to its establishment, it functioned as a part and parcel of the JNTU vide Act No.16 of 1972 and after establishment of JNAFA University, the Government of Andhra Pradesh has not constituted an Executive Council and the University had not formulated its own rules or statutes and is following the rules and regulations framed by JNTU. The appointment of Academic Assistant was made with certain conditions mentioned under Clause 13(i) of Statute XIV of First Statutes of JNTU and which were approved by the Executive Council on 13.05.1991. The petitioners herein were appointed temporarily as Academic Assistants from 14.10.1988 and 4 MB,J & MGP,J W.A.No.567/2017 25.01.1991 respectively and their services were terminated for every three months. Challenging the said termination orders, the petitioners filed W.P.No.9383 of 1995 before the erstwhile High Court of Andhra Pradesh and the Court granted interim stay vide W.P.M.P.11689 of 1995 in W.P.No.9383 of 1995, dated 02.05.1995. Subsequently, the petitioners again filed W.P.No.5019 of 1995 seeking regularization of their services as lecturers and the said Writ Petition was disposed of on 13.03.2003 by giving direction to the respondent to consider the case of the petitioners for regularization of their services in the cadre of Lecturers in University college within a period of three months from the date of receipt of a copy of this order. Aggrieved by the said order, the respondent preferred W.A.No.627 of 2003 and the same was dismissed vide orders dated 28.07.2008. In the meanwhile the JNTU was divided into four universities from 18.08.2008 through an Act.31 of 2008 passed by the Legislative Assembly and the appellant-University is one among them. As per Court direction, the University had made correspondence with Principal Secretary to Government, Higher Education Department requesting the Government to consider the cases of the respondents as a special case and exempt the condition pertaining to the selection process and roster as a onetime measure and to permit the University to regularize their services so as to enable the university to implement the orders of the High Court of Andhra Pradesh passed in 5 MB,J & MGP,J W.A.No.567/2017 C.C.No.230 of 2009 dated 31.03.2010. The Government permitted the University for their Appointment and accordingly their services were regularized with effect from 20.04.2010 by giving time scale and other service benefits. Now the respondents are claiming that their services should be regularized from 13.03.2003 as per orders passed in W.P.No.5019 of 1995.
5. It is also the contention of the appellant/University that the respondents do not have any vested right to seek regularization of their services to a particular date as they did not enter into their service as per UGC guidelines and norms and that they were given permission for their regularization only after the State Government had given permission with effect from 20.04.2010.
6. After hearing the rival contentions made by both the parties, Single Judge of this Court allowed W.P.No.30902 of 2012 on 26.12.2016 directing the appellant/University to regularize the services of the petitioners with effect from 13.05.2003 with all consequential benefits, including pay fixation, seniority, financial benefits due to the respondents, within a period of three months from the date of receipt of a copy of the order. Aggrieved by the said order, the appellant/University preferred the present Writ Appeal.
7. Heard both sides and perused the record including the grounds of appeal.
6 MB,J & MGP,J W.A.No.567/2017
8. Now the point for determination is whether the impugned order dated 26.12.2016 passed in W.P.No.30902 of 2012 by the learned Single Judge of this Court is liable to be set aside?
9. The first and foremost contention of the learned counsel for the appellant-University is that the learned Single Judge failed to properly appreciate the direction given in W.P.No.5019/95 as the said direction was only to consider the case of the respondents for regularization of their services in the cadre of Lecturer within a period of three months. It is further contended that the learned Single Judge failed to consider the aspect that the respondents were purely employed on temporary basis as a stop gap arrangement to meet the contingencies of the University and they cannot be equated with the post of regular appointments made through prescribed selection procedure after due notification.
10. It is also contented by the learned counsel for the appellant- University that the learned Single Judge failed to properly appreciate the direction given in W.P.No.5019 of 1995 and W.A.No.627 of 2003 as they were ordered to consider the case of the respondents for regularization and no date has been fixed from when they should be regularized and as such, the direction given in W.P.30902 of 2012 to regularize the services of the respondents from the date of disposal of W.P.No.5019/1995 is contrary to law.
7 MB,J & MGP,J W.A.No.567/2017
11. There is no doubt the respondents herein have rendered service to appellant-University for the past several years, for which the appellant-University has agreed to regularize the services of the respondents from the date of Government Order with effect from 20.04.2010. But whether such regularization of the respondents can be done with retrospective effective i.e., from the date of orders dated 13.005.2003 passed in W.P.No.5019 of 1995 is the question that needs to be adjudicated.
12. The learned counsel for the appellant-University relied upon a decision in Surendra Kumar and others v. Greater Noida Industrial Development Authority and others 1, the Apex Court observed as under:
"12. The appellants were initially engaged on contractual basis and they were not appointed against any sanctioned post before they were substantially appointed on the said post on 6.08.2010. Even though advertisement dated 20.11.2002 indicated that there were vacancies, the policy of regularization of contractual employees was approved by the State Government only on 05.03.2008. The appellants were appointed on the post of Assistant Manager (Civil) only pursuant to the policy decision of the respondents for regularisation of contractual employees and thus, the appellants cannot seek for regularization with retrospective effect from 20.11.2002, that is when the advertisement was issued, because at that time regularisation policy was not in vogue. By policy of regularisation, it was intended to give the benefit only from the date of appointment. The Court cannot read anything into the policy decision which is plain and unambiguous. Having accepted the appointment orders dated 1 (2015) 14 Supreme court Cases 382 8 MB,J & MGP,J W.A.No.567/2017 6.08.2010 and also joined the post, the appellants cannot turn round and claim regularisation with retrospective effect."
13. The learned counsel for the appellant-University relied upon a decision in State of Orissa and others v. Prasana Kumar Sahoo 2, wherein the Apex Court observed that regularization as is well known is not a mode of recruitment and a policy decision to absorb a person, who is not in employment of the State without following the recruitment rules, would not confer any legal right on him. Thus, from the principle laid down in the above said decision, it is clear that regularization cannot be claimed as a matter of right and such regularization shall proceed in accordance with policy decision including rules and regulations.
14. Even in the present case the respondents were appointed purely on temporary basis and their services were regularized only by extending sympathy towards their long standing service rendered by them but not as a matter of right. The Government has accorded permission to the appellant-University to regularize the services of the respondents with effect from 20.04.2010. Thus, the appellant - University cannot go beyond the permissions accorded by the Government in regularizing the services of the respondents with retrospective effect, which would have severe 2 (2007) 15 Supreme Court Cases 129 9 MB,J & MGP,J W.A.No.567/2017 monetary repercussions on the appellant - University as well as Government.
15. The learned counsel for the appellant-University placed his reliance on a decision in Secretary, State of Karnataka and others v. Umadevi and others 3 wherein the Apex Court observed as under:
"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 subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."
16. On the other hand, the learned counsel for the respondents relied upon a decision in Vinod Kumar and others V. Union of India 3 (2006) 4 Supreme Court Cases 1 10 MB,J & MGP,J W.A.No.567/2017 (UOI) and others 4 wherein the Honourable Supreme Court observed as under:
"The judgment in the case Uma Devi (supra) also
distinguished between "irregular" and "illegal" appointments
underscoring the importance of considering certain appointments even if were not made strictly in accordance with the prescribed Rules and Procedure, cannot be said to have been made illegally if they had followed the procedures of regular appointments such as conduct of written examinations or interviews as in the present case."
17. Even as per the principle laid down in Umadevi's case (supra) regularization of the employees can be done only in respect of employees, who were appointed in duly sanctioned posts but not under the cover of orders of courts or of Tribunals. In the present case, the respondents-employees were neither appointed in the sanctioned posts nor selected through any process of selection and there was no scheme prevalent at the time of passing of the orders by the learned Single Judge.
18. It is the specific case of the appellant-University that the absence of pay scale attached to temporary posts, the direction of learned Single Judge to regularize their services from a particular date (with retrospective effect) with all consequential benefits will have adverse financial implications on the University and in the absence of any permission from the Government, University cannot regularize their services, which would have a financial implication 4 MANU/SC/0338/2024 11 MB,J & MGP,J W.A.No.567/2017 on the Government as there is no budgetary provision for paying the arrears.
19. In the impugned order, it was observed by the learned Single Judge that once services of persons employed on temporary basis are regularized, they are entitled to pay payable to regular employees. It is observed that regularization with retrospective effect cannot be granted in violation of the rules and regulations in force and such retrospective regularization is to be granted only if the appointees were recruited based on the rules and regulations. The contract appointments cannot be compared with the regular appointments, which are to be made by following the procedures as contemplated under the rules.
20. Admittedly, the respondents have not applied for any posts against which they were appointed and they did not even undergo any selection process for their appointment. It is not out of place to mention that in the Common Judgment passed in Writ Appeal Nos.1241 and 1242 of 2021 and Writ Appeal No.627 of 2003 the candidature of the respondents was ordered to be considered sympathetically for regularization and there was no clear finding as to whether such regularization is with retrospective effect or not. In such circumstances, the respondents cannot seek extension of such sympathy to the extent of availing benefits of such regularization with retrospective effect.
12 MB,J & MGP,J W.A.No.567/2017
21. The appellant-University after obtaining permission from the State Government gave permissions for regularization of their services from 20.04.2010, which is in proper perspective. As stated supra, the respondents were not appointed against the sanctioned posts and merely because the respondents were rendering uninterrupted service to the appellant - University, the respondents cannot seek regularization of their services with retrospective effect as a matter of right. That apart the appellant - University cannot be compelled to proceed against rules and regulations formulated by government for retrospective regularization of the respondents, who were neither appointed against the sanctioned posts nor selected through any process of selection.
22. It is the apprehension of the appellant that if the appellant - University fails to abide by any of the guidelines or orders as specified by the government, then there is every chance of withholding the grants to the appellant-University. The respondents were initially appointed purely on temporary basis as a stop gap arrangement to meet the contingencies of the University and they cannot be equated with the regular appointees made through prescribed selection procedure after due notification. While passing orders of regularizing the services of temporary employees with retrospective effect, a great caution and care must 13 MB,J & MGP,J W.A.No.567/2017 be exercised to ensure that such orders of regularization from retrospective dates are not likely to be against the careers of other employees.
23. Further, the Division Bench of this High Court in the said common judgment has not specifically given any direction for extending any monetary benefits by granting regular pay scales to the respondents in the event of their regularization from the date of said orders. Therefore, at this stage, having regard to the fact that the initial recruitment of respondents to the posts in which they were appointed was not against sanctioned post by way of any selection process or by way of any methodology known to law, the sympathetic consideration of the respondents to regularize them from the dates as mentioned in the order dated 26.12.2016 cannot be a ground to extend additional leverage or to confer a premium on them to extend the benefit of full and regular pay scales to them from 13.03.2003 i.e., the date of orders in W.P.No.5019 of 1995, which is construed to be irregular, if not illegal. Therefore, the claim of the respondents that they are entitled for full pay scale sanctioned for the said posts from 13.03.2003, which is not regular in terms of order of the learned Single Judge, cannot be countenanced. More so, the same has not been enumerated by the Division Bench of this Court vide Common Judgment passed in Writ Appeal Nos.1241 and 1242 of 2021 and Writ Appeal No.627 of 14 MB,J & MGP,J W.A.No.567/2017 2003. In the State of Bihar and others v. Arbind Jee 5 the Honourable Apex Court observed that it is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service will be impacted. Thus, regularization of contract employees with retrospective effect would tantamount to unsettling the rights of other employees. In the event of granting such retrospective regularization, the Courts must be slow in considering those cases. Moreover, the respondents herein did not specify any rule or provision under which they are entitled for regularization of their services with retrospective effect.
24. Without considering the above aspects, W.P.No.30902 of 2012 was allowed only on the sole ground that the appellant- University cannot deny the financial benefits to the respondents and thereby regularized the services of the respondents with retrospective effect. Hence, though the appellant - university had regularized the services of the respondents from 20.04.2010 after obtaining due permission from the competent authority is held to be proper, however, extending the benefits of regularization with retrospective effect is unsustainable and therefore, this direction of 5 2021 SCC OnLine SC 821 15 MB,J & MGP,J W.A.No.567/2017 the learned Single Judge in the impugned order is unsustainable and set aside. It is however, needless to mention that the appellant-University shall consider extending notional service benefits to the respondents, except the pay scales, from 13.03.2003 according to the relevant rules governing them.
25. Accordingly, the Writ Appeal is allowed by setting aside the order dated 26.12.2016 passed in W.P.No.30902 of 2012. The act of appellant-University in regularizing the services of respondents from 20.04.2010 in pursuance of the orders from the State Government holds good. There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
__________________________________ MOUSHUMI BHATTACHARYA, J ________________________ M.G.PRIYADARSINI, J Date: 06.08.2024 Ysk/AS