Telangana High Court
K. Srinivas vs Union Of India on 9 January, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P.No. 27532 of 2023
ORDER:
In this writ petition, the petitioners are seeking a writ of mandamus declaring the cancellation of the appointments of the petitioners as Office Attendants/Lab Attendants by the respondent No.4 vide individual proceedings dated 26.09.2023, as bad in law and consequently to set aside the same and to hold that the petitioners are entitled to be treated and continued as regular Office Attendants/Lab Attendants pursuant to the office orders issued on 20/21.06.2023 with all consequential benefits and to pass such other order or orders in the interest of justice.
2. Brief facts leading to the filing of the present writ petition are that the respondent organization was initially known as Regional Engineering College and subsequently, in the year 2002-03 it has been converted into National Institute of Technology, Warangal. The petitioners are all working in the respondent's institute as daily rated employees from the past 15 to 30 years in different skilled and highly skilled jobs. The petitioners, who were engaged by the Regional Engineering 2 TMD,J W.P.No. 27532 of 2023 College have been continued in the institute even after conversion as NIT on contract basis and the writ petitioners were making representations for regularization of their services.
3. It is submitted that when the respondents did not consider their requests for regularization of their services, the petitioners filed W.P.No.22427 of 2003 and 22846 of 2003 and this Court had disposed of the Writ Petitions by orders dated 04.10.2007 and 11.10.2007 directing the respondents to consider regularizing the services of the petitioners. It is submitted that when the directions of this Court were not complied with, the petitioners along with others, filed Contempt Case Nos.408 to 422 & 534 of 2009 and batch and this Court had disposed of the same vide order dated 04.04.2012 observing that the direction of the Court was subject to availability of sanctioned posts as well as permission of MHRD and since there were no sanctioned posts and also the permission of MHRD was not available, there was no willful disobedience on the part of the respondents.
4. Thereafter, the respondents issued Recruitment Advertisement No.1/2021, dated 16.08.2021, wherein the 3 TMD,J W.P.No. 27532 of 2023 online applications were called for direct recruitment on regular basis/direct recruitment on contract basis and on deputation basis for 129 posts at different levels. Challenging the same, the writ petitioners, along with others filed W.P.No.31379/2021 for regularization of their services in the said vacancies and to set aside the Recruitment Advertisement No.1/2021, dated 16.08.2021. This Court, vide orders dated 03.12.2021, has disposed of the writ petition permitting the petitioners herein, to submit their applications and also permitting them to participate in the recruitment process, however, the petitioners could not succeed in the said recruitment process.
5. Thereafter, on 22.09.2022 in its 58th meeting held by circulation of agenda vide Agenda Item No.58.2-"recruitment of non-faculty personnel against vacancies", the Board of Governors resolved to approve the proposal of the institute for releasing the advertisement for 7 officers (including the anticipated vacancy of Registrar) and 22 other non-teaching posts for direct recruitment. The Board has also approved the proposal for filling up the 25 posts of Office Attendants/Lab Assistants by internal circulation amongst the daily wage workers subject to the condition that they meet the eligibility 4 TMD,J W.P.No. 27532 of 2023 criteria as per Recruitment Rules-2019 and by giving relaxation in age only, as approved by Board of Governors in its 48th meeting held on 13.06.2019 as a onetime measure. It is submitted that in its 59th meeting held on 24.02.2023, the Board of Governors confirmed the said decision in the action taken report on the decisions of Board of Governors, and pursuant to the same, institute has issued vacancies Circular No.1/2023, dated 07.02.2023 inviting applications from amongst the eligible daily wage workers of the institute to fill up 25 vacant positions of Office Attendants/Lab Attendants duly indicating the reservations and essential qualifications. It is submitted that on 13.06.2023 and 14.06.2023, the petitioners herein attended the Rozgaar Mela and received the offer letters for the posts of Office Attendants/Lab Attendants from the hands of Shri G.Kishan Reddy, Hon'ble Union Minister for Tourism and accordingly, all the petitioners herein joined the institute as regular employees after thorough verification of their education and experience certificates. It is submitted that while the petitioners were discharging their duties without any complaint whatsoever from any quarter, the petitioners received the letter dated 26.09.2023 cancelling the appointment orders 5 TMD,J W.P.No. 27532 of 2023 dated 14.06.2023 on the ground that Board of Governors, in its 62nd meeting held on 29.08.2023, has reviewed the Recruitment Rules and inter-alia noticed that the appointments cited under reference were made by way of internal circulation without giving equal opportunity for outsiders by way of open advertisement and therefore, it was resolved to cancel the appointments. Challenging the said resolution, the present writ petition has been filed.
6. Initially, when the matter came up for admission, this Court has granted interim stay as prayed for in I.A.No.1 of 2023 vide orders dated 04.10.2023.
7. Learned Counsel for the respondents No.3 and 4 have filed their counter affidavits along with Stay Vacate Petitions and therefore, the matter has been taken up for hearing at the admission stage itself.
8. Learned counsel for the petitioners has reiterated the above submissions made in the writ affidavit.
9. Learned Standing Counsel for the respondents has made detailed submissions and supported the averments made in the counter affidavit. He has painstakingly taken this Court 6 TMD,J W.P.No. 27532 of 2023 to all the documents filed along with the counter affidavit to demonstrate that as per the National Institute of Technology Service Rules, it is the function of the Executive Council to lay down the policy regarding cadres, methods of recruitment and conditions of service of employees and accordingly, a policy decision has been taken. It is submitted that Sections 12 and 23 of Service Rules also provides that the institute is an Estate under Article 12 of the Constitution of India and therefore, the appointments to the posts of the institute shall be filled up by advertisement on all India basis, by maintaining the ratio between the direct recruitment and promotion posts and that the posts are to be filled up by issuing an advertisement and that the Registrar shall advertise the terms and conditions of the posts and the Screening Committee shall short list the eligible and most desirable candidates and all the appointments should be reported to the Board at its next meeting. It is submitted that as admitted by the petitioners themselves, internal vacancies Circular was issued on 07.02.2023 i.e., much prior to the 59th meeting held on 24.02.2023 and the approval of the Board of Governors was given vide 60th meeting held on 18.05.2023. It is submitted that inviting applications from 7 TMD,J W.P.No. 27532 of 2023 internal candidates was not only irregular, but also illegal in view of they being issued in violation of the provisions of the Act. He further referred to the extract of minutes of 62nd meeting of the Board of Governors held on 29.08.2023 wherein, the Board of Governors has reviewed the Recruitment Rules and have held that appointment of 23 Office Attendants/Lab Attendants was made through internal circulation without giving equal opportunity for outsiders through an open advertisement and therefore, the institute was directed to cancel these 23 appointments and further, directed the institute to initiate recruitment of personnel against these posts through an open advertisement and the Board was also advised to consider the applications of these 23 candidates. He also submitted that the petitioners have not stated the correct facts before this Court.
10. Leaned Standing counsel for the respondents further submitted that pursuant to the directions of this Court dated 04.10.2007 in W.P.Nos.22424 of 2023 and batch, the case of the petitioners therein was considered for absorption and regularization of their services and the Ministry of Human Resource Development had turned down the request of the 8 TMD,J W.P.No. 27532 of 2023 institute and advised to adhere to the Ministry's directions not to make any appointments, restructuring, etc., until further orders and also directed all the NITs, to strictly follow 1:1.5 and a maximum of 1:2 ratio for teaching and non-teaching staff. Therefore, the requests of the petitioners were rejected and the services of all the daily rated workers including the petitioners herein were terminated.
11. It is submitted that due to agitation of the petitioners herein and others, the implementation of termination orders has been deferred until further orders vide orders dated 25/28.07.2008. It is submitted that the petitioners have not challenged the termination orders till date.
12. Learned Standing counsel further relied upon the following contentions:
(i) that illegal appointment made by the respondents cannot have any legal right to continue;
(ii) any appointment made in violation of constitutional scheme of equality under Article 14 of the Constitution of India, as also in violation of provisions of the Act and Subordinate legislations framed there under, would be wholly illegal and without jurisdiction;9
TMD,J W.P.No. 27532 of 2023
(iii) an order cannot be quashed or set aside if it revives an illegality or an illegal order.
13. In rebuttal, the learned counsel for the petitioners submitted that the minutes of the 58th meeting was circulated to the members of Board of Governors on 16.12.2022 and none of the members have raised any objection nor made any changes or corrections to the minutes and in the 59th meeting held on 24.02.2023, the Board has confirmed the above decision/minutes and the action taken report on the decisions of Board of Governors were approved on 60th meeting held on 18.05.2023. It is submitted that having taken a decision and having implemented the same, the Board of Governors become functus-officio and therefore they cannot review the decision to cancel the appointments of the petitioners and that too without giving any notice to them. It is submitted that such an action is without jurisdiction and is also in clear violation of principles of natural justice. It is further submitted that the petitioners were selected after Scrutiny Committee has screened all the petitioners and the petitioners were subjected to examination and also after conducting the mock test for the post of Office Attendant/Lab Attendant. It is submitted that the petitioners 10 TMD,J W.P.No. 27532 of 2023 have also been issued ID Cards indicating their designation as the Office Attendant/Lab Attendant, Employee number, etc., valid upto the age of superannuation i.e., upto 60 years and therefore, the action of the respondents is illegal and arbitrary.
14. Having regard to the rival contentions and the material on record, this Court finds that the petitioners were initially appointed as daily rated workers in respect of the projects allotted to Regional Engineering College and their services were co-terminus with the respective projects and they were engaged from time to time as per the availability of the projects. It is also not in dispute that the petitioners had approached this Court earlier for regularization of their services and the same could not be considered in spite of the directions of this Court, in view of the directions of MHRD to maintain the ratio of 1:1:1 in respect of the teaching and non-teaching staff and non-availability of number of vacancies for regularization of their services. It is also not in dispute that their services have been continued even after conversion of the Regional Engineering College to The National Institute of Technology in the year 2002-03. The petitioner's services were terminated in the year 2008, but the implementation of the same has been 11 TMD,J W.P.No. 27532 of 2023 deferred by the respondents themselves and accordingly, the petitioners are being continued in services as daily wage workers. In the light of these facts and also the fact that the petitioners participated in the direct recruitment process and could not succeed in the year 2021, the Board of Governors has taken a decision to issue an internal notification for filling up of 25 vacancies of Office Attendants/Lab Attendants from amongst the willing and eligible daily wage workers of the institute who possessed the requisite qualification as mentioned in the notification, and also that it is not in dispute that the Selection Committee has conducted a written examination as well as mock test and has found all the petitioners to be eligible and accordingly, they have been selected and the appointment orders have also been given to them and all the petitioners have assumed charge of their respective posts. Having done so, whether the appointment orders of the petitioners can be cancelled without any notice to the petitioners, is the question before this Court. The contention of the learned standing counsel for the respondents has been that for setting aside or cancelling an illegal order, no notice is required. In support of 12 TMD,J W.P.No. 27532 of 2023 his contentions, he has placed reliance upon the following decisions. The relevant portions of the decisions are as under:
(1) State of Madhya Pradesh Vs. Lalit Kumar Verma 1:
"[13] The question which, thus, arises for consideration, would be: Is there any distinction between 'irregular appointment' and 'illegal appointment? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance of the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to.
In National Fertilizers Ltd. vs. Somvir Singh [2006) 5 SCC 493], it has been held:
"The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration.
The Constitution Bench thought of directing regularisation of the services only of those employees whose appointments were irregular as explained in State of Mysore v. S.V. Narayanappa, R.N. Nanjundappa v. T. Thimmiah and B.N.Nagarajan v. State of Karnataka wherein this Court observed: [ Umadevi (3) case 1, SCC p.24, para 16] "16. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words 'regular' or 'regularisation' do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure 1 2006 LawSuit (SC) 1078 13 TMD,J W.P.No. 27532 of 2023 only such defects as are attributable to methodology followed in making the appointments."
Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service"".
(2) Veer Kunwar Singh University Adhoc Teachers Association Vs. Bihar State University (CC) Service Commission 2:
[27] It is now a well-settled principle of law that any appointment made in violation of the constitutional scheme of equality as adumbrated under Art. 14 of the Constitution of India as also in violation of the provisions of the Act and the subordinate legislations framed thereunder would be wholly illegal and without jurisdiction. It has been so held by a Constitution Bench of this Court in Secretary, State of Karnataka and Others V/s. Umadevi (3) and Others, 2006 4 SCC 1.
(3) St.Theresas Tender Loving Care Home Vs. Chairperson, Board of Control and Supervision of homes, Office of the Director, Women Development and Child Welfare, Government of Andhra Pradesh 3:
[23] For this reason, in the ordinary course, impugned order has to be declared as illegal. If declaration of illegality gives rise to another illegal action of permitting petitioner to be adoption placement agency, that would certainly amount to allowing it to do so without proper licence/certificate of recognition. By not adhering to procedure with regard to accepting abandoned children and by creating fictitious relinquishment documents and not registering biological parents correctly, petitioners certainly violated the Orphanage Rules and Institution Rules. In such an event, a declaration cannot be granted because it would amount to permitting petitioner to continue illegality. It is well settled that an order cannot be quashed or set aside if it revives an illegality or an illegal order. A reference may be made to Gadde Venkateswara Rao V. Government of A.P, 1966 AIR(SC) 828 and State of Uttaranchal v. Ajit Singh Bhola, 2004 6 SCC 800. If the impugned order is set aside on the ground the it contravenes some provision of law and also on the ground that petitioner was not given 2 2007 LawSuit (SC) 698 3 2009 LawSuit (AP) 130 14 TMD,J W.P.No. 27532 of 2023 opportunity to meet the allegations in the show cause notice, and a direction is issued to first respondent to grant recognition to the petitioner, it would enable unrecognized institution to handle in-
country and inter-country adoption which is quite contrary to two Parliamentary Enactments as well as binding CARA Guidelines. Therefore, submission of learned Counsel for petitioner cannot be accepted.
(4) Abdul Sattar Vs. District Collector, Nizambad 4:
[8] it is obvious that any interference by this Court setting aside the order of review would amount to resurrecting that part in the award which is evidently an illegal one. It is settled law that no writ could be issued quashing an illegal order to give effect to or reviving another illegal order (See: G. Venkateshwara Rao v. Government of A.P., , Jagan Singh v. State Transport Appellate Tribunal, ) (FB) and Kalasagaram (Regd) Sscunderabad Cultural Assn. v. Municipal Admn. and Labour Development Dept.,. The order of review by the Land Acquisition Officer, though without jurisdiction, has not resulted in failure of justice. The Court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power.
(5) Mahajan (Taka) Latchaiah Vs. Government of Andhra Pradesh and Others 5:
[42] Even assuming for the sake of argument that petitioners contention that impugned Memo of 1st respondent is erroneous, no relief can be granted to petitioner because if the said Memo is set aside it will revive the illegal and void order of the District Panchayat Officer dt. 9.8.2000. In Gadde Venkateswara Rao v. Govt. of A.P., 1966 AIR(SC) 828, the Supreme Court has held that if setting aside of an order under Art. 226 would have the effect of reviving another order which is also contrary to law, this Court should not grant any relief to petitioner in the Writ Petition. It observed:
19. The result of the discussion may be stated thus:
The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolutions which they were entitled to do and 4 1999 LawSuit (AP) 165 5 2014 LawSuit (HYD) 636 15 TMD,J W.P.No. 27532 of 2023 passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April 18, 1963, were not legally passed: the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem village. In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963?
If the High Court had quashed the said order, it would have restored an illegal order it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary discretionary power in the circumstances of the case.
(6) G.Muneswaran Vs. Chief Commissioner of Land Administration and Others 6:
[12] There is no dispute that grant of separate amounts to the Well situated in the land acquired is not permissible under the provisions of the Act see O. Janardhan Reddy v. Spl. Dy. Collector, 1994 6 SCC 456. Therefore, the award No. 8.2001- 2002, dated 7-7-2001, granting separate amount for the well situated in the land of petitioner is itself illegal. On the holding that third respondent does not have power of review the award, if the order is set aside, the effect would be resurrecting an award passed earlier-insofar as petitioner is concerned, which is ex faci illegal and contravenes the law declared by Supreme Court, which is binding on all authorities. Therefore, though this court has or manner of doubt to hold that LAO has no power to review the award except to a limited extent of correcting arithmetical and clerical errors, this Court is not inclined to accept writ petition, as it would amount to rendering an illegal award legal. The jurisdiction under Article 226 of Constitution of India is intended to ensure rule of law and not resurrect illegal orders (7) Muvva Atchutha Rao Vs. State of Andhra Pradesh, Rep., by its Principal Secretary to Government, Revenue 6 2009 LawSuit (AP) 403 16 TMD,J W.P.No. 27532 of 2023 Department, Velagapudi, Amaravati, Guntur District and Others 7:
[14] During the life time of petitioner's father, petitioner will not get any right over the property. This Court, while exercising equity jurisdiction, in certain cases, should consider, factual aspects also. Petitioner, without any right and title, got his name mutated in respect of lands referred to supra. Though the order passed by respondent No.4 is against the principle laid down in Ratnamma's case (1 supra), in the opinion of this Court, if the order passed by Revenue Divisional Officer is set aside, it amounts to revival of illegality and the same is not permissible.
15. It is therefore to be examined as to whether by cancelling of the impugned order, will an illegal order be revived.
Before examining to this issue, it has to be examined if the order of appointment is an illegal order. It is noticed that in the W.P.No.31379 of 2021, the stand of the respondents No.3 and 4 was that recruitment notification No.1/21, dated 16.08.2021 was issued in accordance with Recruitment Rules and that the writ petitioners therein also can respond to the said Notification and can be regularly recruited in the posts which were notified. It was also stated that the Board of Governors have relaxed the age and educational requirements to enable the petitioners to apply pursuant to the Recruitment Notification. Thus, taking the above into consideration only, this Court had directed the respondent to permit the petitioners to apply and participate in 7 2023 (5) ALT 538 (S.B.) 17 TMD,J W.P.No. 27532 of 2023 the recruitment process if they come within the Zone of consideration. It is also noticed that the petitioners participated and were successful in the mock test and were accordingly appointed. Therefore, this Court does not find any illegality in this whole process. It may have been irregular in not inviting the applications from the open market as well. The irregularity can be cured by the respondents by taking necessary corrective steps, but cannot terminate the services in this process, particularly when there was no role of the petitioners in this irregularity in appointments. The respondents have not cancelled the Notification, but have only cancelled the appointments of the writ petitioners herein. Therefore, the impugned order of the respondents is clearly illegal and cannot be sustained. All the decisions relied upon by the learned standing counsel for the respondent University are where the initial order which is cancelled is illegal and not where the initial order is irregular. Therefore, they are distinguished on facts.
16. Further, this Court is of the opinion that the principles of natural justice would get attracted in this case as the appointment orders are issued to the petitioners not due to 18 TMD,J W.P.No. 27532 of 2023 any illegality committed by the petitioners, but solely due to the irregular procedure adopted by the respondents. Having issued the appointment orders and having led the petitioners to assume the charge and render their services, the respondents could not have cancelled the appointment orders without giving any notice to the petitioners. Therefore, on this ground also the writ petition is eligible to be allowed. The other ground raised by the petitioners for regularization of their services is in view of the judgment of the Hon'ble Supreme Court in the case of Uma Devi, however, cannot be accepted in this case as it is not the case of regularization of the services of the petitioners, but it is appointment of the petitioners subsequent to the selection process adopted consequent to the internal circulation/notification for filling up the vacancies. The Board of Governors have taken a decision to fill up the vacancies through internal circulation and even if it is an irregular act, the petitioners have the right to be intimated or put on notice before their appointments are cancelled. Therefore, on this ground also, the impugned orders cannot be sustained. Thus, the writ petition is allowed.
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17. Accordingly, this writ petition is allowed. There shall be no order as to costs.
18. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Date: 09.01.2024 bak 20 TMD,J W.P.No. 27532 of 2023 2 THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI W.P.No.27532 of 2023 Dated: 09.01.2024 bak