Telangana High Court
Shaik Shafi Ahamed vs The State Of Telangana And 3 Orther on 31 January, 2024
THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
W.P.(TR)No.6009 of 2017 and
WP Nos.20171 of 2020 and 18884 of 2023
COMMON ORDER:
Since the issue involved in all these writ petitions is intrinsically connected, all the writ petitions are heard together and are being disposed of by this common order.
2. W.P.(TR).No.6009 of 2017 is filed seeking the following relief:
"to declare that the appointment of Junior Lecturers working in the Govt. Junior colleges by transfer is violative of the law laid down by the Hon'ble Supreme Court of India in the case of V.Jagannadha Rao and others Vs. State of A.P and others reported in AIR 2002 SC 77 and consequently direct the respondents not to fill up the post held by the applicant in S.R. Govt. Arts & Science College, Kothagudem, and also to renew the appointment of the applicant as contract Lecturer for the academic Year 2016-2017".
3. The facts of the case, in brief, are that the petitioner was appointed as a contract Lecturer in Hindi, by the duly constituted Selection Committeevide proceedings dated 22.09.2003 and posted 2 at Government Degree College, Paloncha, and he has been working continuously without any break. It is stated that though the petitioner is fully qualified and eligible for regular appointment as Lecturer in Government Degree College, he was appointed as contract Lecturer.
4. It is further stated that the respondent No.1 addressed a letter dated 01.06.2016 to the Government to accord permission to renew the appointment of contract Lecturers for the Academic Year 2016-17. The petitioner gave willingness to continue as contract Lecturer on 08.06.2016. According to the petitioner, he has completed 13 years of service, and therefore, he is entitled to be continued as contract Lecturer.
5. It is further stated that the Government has taken a policy decision to regularize the services of contract employees working in the State of Telangana and appointed a Committee vide G.O.Ms.No.22, Finance Department, dated 13.08.2014, to work out the modalities of regularization of contract employees and the Committee, in turn, has submitted its Report to the Government for regularization of the contract employees. Pursuant to the 3 same, the Government has called for the particulars of the contract employees, who are entitled to regularization. The respondent No.3 vide letter dated 08.04.2016 furnished a list of employees, who are entitled for regularization. In the said list, the name of the petitioner was shown at Sl.No.5 and the matter is under process and active consideration of the Government.
6. While so, on 16.06.2016, the respondent No.1 conducted Departmental Promotion Committee for the Junior Lecturers for appointing by transfer as Lecturers in Government Degree Colleges. It is stated that the Junior Lecturers in Government Junior Colleges belong to Intermediate Education Service, whereas the Lecturers in Degree College belong to Collegiate Education Service. In view of the same,the proposed appointment of Junior Lecturers working in the Intermediate Educational Service by transfer as Lecturers in Collegiate Education Service is contrary to the judgment of the Hon'ble 4 Supreme Court in V. Jagannadha Rao v. State of Andhra Pradesh 1.
7. It is further stated that there are about 20 Junior Lecturers working in the Junior Colleges in Zone V and there is only one clear vacancy of Lecturer in Government Degree College in Zone V. In case, the Junior Lecturers working in the Junior Colleges are appointed by transfer as Lectures in Government Degree Colleges and posted to Zone V, the services of the petitioner will not be continued for the Academic Year 2016-2017. Hence, the petitioner filed O.A.No.2246 of 2016 before the Andhra Pradesh Administrative Tribunal at Hyderabad.
8. The Tribunal vide order dated 21.06.2016 granted interim order in O.A.No.2246 of 2016, which reads as under:
"Pending disposal of the O.A., the respondents are directed not to fill up the post held by the applicant i.e., the post of Lecturer in Hindi at SR Government Degree College (Arts and Science College), Kothagudem, Khammam District."
9. However, subsequently, in view of abolition of the Tribunal insofar as the State of Telangana is concerned, 1 AIR 2002 SC 77 5 O.A.No.2246 of 2016 was transferred to the combined High Court for the States of Telangana and Andhra Pradesh and it is renumbered as W.P (TR) No.6009 of 2017.
10. Seeking to vacate the interim order dated 21.06.2016 passed by the Tribunal, the respondent No.1 - Commissioner of Collegiate Education, Government of Telangana, filed I.A.No.1 of 2023 in W.P. (TR) No.6009 of 2017, whereas alleging willful disobedience of the order dated 21.06.2016 passed by the Tribunal, the petitioner filed C.C.No.937 of 2021.
11. The respondent Nos.1 and 2 filed counter affidavit along with I.A.No.1 of 2023 in W.P. (TR) No.6009 of 2017, denying the petition averments and inter alia stating that the respondent No.1 has complied with the interim order dated 21.06.2016 passed by the Tribunal in O.A.No.2246 of 2016 and that the post held by the petitioner i.e., Lecturer in Hindi at S.R.Government Degree College (Arts and Science College), Kothagudem, Khammam, has not been filled up and the services of the petitioner were renewed vide proceedings dated 08.11.2016. It is further stated that on 09.11.2016, the petitioner has given an undertaking that since his 6 services are renewed at S.R. Government Degree College (Arts and Science), Kothagudem, Khammam District, he will withdraw the writ petition filed before this Court.
12. In the counter affidavit, it is further stated that surplus posts are identified for the Academic Year 2020-21 in Hindi subject in Government Degree Colleges and regular faculty working in the surplus posts are identified and shifted, based on the guidelines, to the colleges within the District/erstwhile District with strength and requirement (18-22 teaching hours as per UGC guidelines. Dr. T. Aruna Kumari, Lecturer in Hindi, was identified as working in the surplus post at Government Degree College (A), Khammam, and shifted to Government Degree College, Paloncha, as the said college is in the erstwhile Khammam District. Hence, the petitioner was disengaged from on 20.11.2020 due to the joining of regular Lecturer in the post.
13. Though the Government has issued G.O.Rt.No.1086 dated 08.10.2020 granting permission for engaging 825 Lecturers on contract basis to work in various Government Degree colleges under the administrative control of Collegiate Education, 7 Hyderabad, for the Academic Year 2020-201 i.e., from 01.06.2020 to 31.05.2021 or till the actual need ceased, whichever is earlier, the petitioner is not entitled to continue in the service as the existing post was already filled up by the regular faculty. W.P.No.20171 of 2020:
14. This writ petition is filed by the petitioner challenging the proceedings dated 24.10.2020 issued by the respondent No.2 posting respondent No.4-Dr. T. Aruna Kumari, as Lecturer in Hindi in Government Degree College, Palonchai.e., in the post of the petitioner.
15. The facts of the case are that the petitioner was appointed as Lecturer on contract basis vide proceedings dated 22.09.2003 and posted at Government Degree College, Paloncha, in Zone V and joined in service on 25.09.2003. It is stated that while the petitioner was working at Government Degree College, Paloncha, he was transferred to Government Degree College, Manugur, on 22.03.2012. However, due to the joining of the regular Lecturer in Hindi on 13.04.2013 at Paloncha, the petitioner was allowed to 8 continue till 12.04.2013. Thereafter, the petitioner was transferred from Munugur to Kothagudemvide proceedings dated 11.07.2013 due to the posting of regular Lecturer in Hindi at Paloncha/Manugur and the petitioner joined at S.R. Government Arts and Science College, Kothagudem, on 11.07.2013, and continued till 05.05.2018.
16. It is stated that while the petitioner was working at S.R. Govt. Degree College, Kothagudem, the respondents directed him to work at Government Degree College, Paloncha.
Accordingly, the petitioner joined duties at Paloncha on 20.06.2018 and was continuing in the same place. Thereafter, his contract period was extended by the Government for one year vide G.O.Rt.No.185 dated 05.09.2019 and was further extended for one year from 01.06.2020 to 31.05.2021 vide G.O.Rt.No.1086 dated 08.10.2020 and he is discharging his duties and he has completed 17 years long service.
17. It is stated that the respondent No.2 -the Commissioner of Collegiate Education, Telangana, issued the impugned proceedings dated 24.10.2020 posting the respondent No.4 -Dr. T. 9 Aruna Kumari, Lecturer in Hindi, in Government Degree College, Paloncha, where the petitioner is working on contract basis, which is contrary to G.O.Rt.No.1086 dated 08.10.2020, whereby the Government had accorded permission for engaging 825 Lecturer services on contract basis, 323 various categories of services on outsourcing basis and 67 TSKC Full Time Mentors on Honorarium basis, to work in various Government Degree colleges under the administrative control of Collegiate Education, Hyderabad, for the Academic Year 2020-201 i.e., from 01.06.2020 to 31.05.2021.
18. This Court, on 11.08.2021, while admitting W.P.No.20171 of 2020, granted interim direction as prayed for in I.A.No.1 of 2020, which is filed to continue the services of the petitioner on contract basis.
19. The respondent Nos.1 and 2 filed counter affidavit denying the petition averments and inter alia stating that Government vide G.O.Ms.No.142, Higher Education (HE) Department, dated 09.10.2000, issued directions to the Commissioner of Collegiate Education for engaging faculty in Government Degree Colleges 10 on contract basis depending upon the necessity. It is stated that Dr. T. Aruna Kumari, Lecturer in Hindi, was identified as working in the surplus post at Government Degree College (A), Khammam, and posted her at Government Degree College, Paloncha. Hence, the services of the petitioner, who was working as contract lecturer at Government Degree College, Paloncha, was disengaged on joining of regular Lecturer. It is further stated that in view of G.O.Rt.No.1086 dated 08.10.2020, the petitioner is not entitled to continue in service till 31.05.2021 as the existing post was filled up by regular faculty.
20. It is pertinent to note that alleging willful disobedience of the order dated 11.08.2021 passed by this Court in I.A.No.1 of 2020 in W.P.No.20171 of 2020, the petitioner filed C.C.No.1259 of 2021.
W.P.No.18884 of 2023
21. This writ petition is filed seeking a writ of mandamus declaring the action of the respondents in not accepting and considering the service of the petitioner for appointment to the 11 sanctioned post of Lecturer in Government Degree College in terms of G.O.Ms.No.38, dated 30.04.2023, as illegal and arbitrary and consequently, to direct the respondents to receive the certificates of the petitioner for verification and consider his case for appointment as Lecturer in Government Degree College, on par with the Lecturers appointed in terms of G.O.Ms.Nos.23, 24, 29 and 30 dated 01.05.2023.
22. It is stated that the Government has issued G.O.Ms.No.38 dated 30.04.2023 giving instructions for appointment of 270 contract Degree Lecturers working in the Government Degree Colleges in the State against the sanctioned posts in terms of G.O.Ms.No.16 dated 26.02.2016. The petitioner approached the respondents in May, 2023, along with relevant certificates for verification in terms of G.O.Ms.No.38 dated 30.04.2023. However, the respondents refused to receive the documents filed by the petitioner for verification. It is stated that the respondent No.2 issued G.O.Ms.No.23 dated 01.05.2023, G.O.Ms.No.24 dated 01.05.2023, G.O.Ms.No.29 dated 01.05.2023 and G.O.Ms.No.30 dated 01.05.2023 appointing 270 contract lecturers in Government 12 Degree Colleges in the State against the sanctioned posts in terms of G.O.Ms.No.16 dated 26.02.2016.
23. The respondent Nos.1 to 3 filed counter affidavit denying the petition averments and inter alia stating that the Commissioner of Collegiate Education has complied with the interim order dated 21.06.2016 passed by the Tribunal in O.A.No.2246 of 2016 and that the post held by the petitioner i.e., Lecturer in Hindi at S.R. Government Degree College (Arts and Science College), Kothagudem, has not been filled up and that the services of the petitioner were renewed vide proceeding dated 08.11.2016. It is stated that the petitioner has given an undertaking on 09.11.2016 stating that since his services were renewed at S.R. Government Degree College (Arts and Science College), Kothagudem, he will withdraw the petition filed before the Tribunal.
24. It is stated that in Government Degree Colleges, surplus posts were identified for the Academic Year 2020-21 in Hindi subject and regular faculty working in the surplus posts are identified and shifted to the colleges within the District/erstwhile 13 District with strength and requirement, based on the guidelines. Accordingly, Dr. T. Aruna Kumari, Lecturer in Hindi, was identified as working in the surplus post at Government Degree College (A), Khammam, and posted her at Government Degree College, Paloncha. Hence, the services of the petitioner, who was working as contract lecturer at Government Degree College, Paloncha, was disengaged on joining of regular Lecturer.
25. The Government has issued G.O.Ms.No.16, Finance (HRM.I) Department, dated 26.02.2016, stipulating conditions for regularization of services of persons appointed on contract basis. Clauses 4(b)(1) and 4(b)(3) thereof reads as under:
"Cl.4(b)(1). Availability of a post in the relevant category in the respective departments shall be the pre-requisite condition for considering regularization.
4(b)(3) Regularization may be considered only in respect of eligible personal working as on 02.06.2014 immediately before formation of Telangana State and continuing till the date of proposed regularization."
26. It is further stated that the Government vide Memo No.2531/CE/A1/2016 dated 30.03.2022 requested to send proposals for regularization of services of eligible persons appointed against sanctioned post on contract basis in 14 Government Degree Colleges and working as on 02.06.2014 who fulfils conditions mentioned in the Circular Memo No.A/51/A3/ HRM-I/2014-I dated 26.02.2016 and G.O.Ms.No.16 dated 26.02.2016 in individual and category wise as per the checklist mentioned for taking further action in the matter.
27. It is further stated that the petitioner was disengaged from service on 20.11.2020 due to joining of regular Lecturer in the post. Therefore, the petitioner is not eligible for regularization of service as per G.O.Ms.No.16 dated 26.02.2016.
28. The Hon'ble Supreme Court vide order dated 25.03.2021 in Civil Appeal No.1007 of 2021 held that though the benefit of regularization cannot be granted to contract employees, a window of opportunity must be given to them to compete with the available talent through public advertisement. A separate and exclusive test meant only for the contract employees will not be an answer as that would confine the zone of consideration to contract employees themselves. The modality suggested by the University on the other hand will given them adequate chance and benefit to appear in the ensuing selection. 15
29. Heard Sri D. Linga Rao, the learned counsel for the petitioner and the learned Government Pleader for Services I. Perused the record.
Consideration:
30. A perusal of the record discloses that the petitioner was appointed as contract Lecturer in Hindi by the duly constituted Selection Committee and he continuously worked for a period of 17 years and the proposals for regularization are pending. Further, the Tribunal has passed interim order dated 21.06.2016 in O.A.No.2246 of 2016, directing the respondents not to fill up the post of Lecturer in Hindi in S.R. Government Degree College (Arts and Science College), Kothagudem, Khammam District. This High Court in I.A.No.1 of 2020 in W.P.No.20171 of 2020 passed interim order dated 11.08.2021 directing the respondents to continue the services of the petitioner on contract basis.
31. Despite the same, the official respondents have transferred and posted the respondent No.4 - Dr. T. Aruna Kumari in the place of the petitioner and the petitioner was discharged from 16 service orally, on 20.11.2020, without issuing any notice and opportunity of hearing. The petitioner filed the Contempt Case vide C.C.No.937 of 2021 alleging willful disobedience of the order dated 21.06.2016 in O.A.No.2246 of 2016 and the same is pending before this Court.
32. Admittedly, the Junior Lecturers in Government Junior Colleges belong to and are governed by Intermediate Education Service, whereas the Lecturers in Degree College belong to and are governed by Collegiate Education Service.
33. In V. Jagannadha Rao's case (1 supra), which was relied upon by the learned counsel for the petitioner, the Hon'ble Apex Court held that in view of the provisions in Presidential Order, promoting persons/employees working in one Department by transfer to another Department is unconstitutional.
34. Insofar as the contentions of the respondents that the Department has identified an imbalance in the teaching faculty in the colleges based on the workload calculation and accordingly, identified the surplus regular faculty in some Government 17 Degree Colleges and shifted them to the required colleges based on the workload calculation for optimum utilization of regular teaching staff on administrative grounds is concerned, there is no dispute with regard to the utilization of regular teaching staff, on administrative grounds, in the vacant posts in order to meet the necessities of the colleges.
35. However, the action of the respondents in transferring Dr.T. Aruna Kumari, as Lecturer in Hindi to Government Degree College, Paloncha,Kothagudem, is in clear violation of interim orders granted by the Tribunal in O.A.No.2246 of 2016 and this Court in I.A.No.1 of 2020 in W.P.No.20171 of 2020, since the Tribunal vide order dated 21.06.2016 in O.A.No.2246 of 2016 directed the respondents not to fill up the post held by the petitioner i.e., post of Lecturer in Hindi at Government Degree College, Kothagudem, and further, this Court vide order dated 11.08.2021 in I.A.No.1 of 2020 in W.P.No.20171 of 2020 directed the respondents to continue the services of the petitioner on contract basis.
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36. The further contention of the respondents that the order dated 21.06.2016 passed by the Tribunal in O.A.No.2246 of 2016 is not violated, since the post held by the petitioner was not filled up by way of regular appointment and that Dr. T. Aruna Kumari was only transferred and posted as Lecturer in Hindi, cannot be countenanced, since posting of Dr.T. Aruna Kumari amounts to filling up of the regular post only.
37. It is well settled that what cannot be done directly cannot be permitted to be done indirectly i.e., filling of post by transfer and disengaging services of the petitioner when there is a clear direction not to fill the post by appointment and also to continue the services of the petitioner.
38. Admittedly, the direction issued by the Tribunal in O.A.No.2246 of 2016 is not to fill up the post held by the petitioner. In view of the transfer and posting of Dr. T.Aruna Kumari, the petitioner is deprived of continuation of services. In view of joining of Dr.T. Aruna Kumari in duty on 20.11.2020, the petitioner's services were disengaged, which amounts to circumvention of the order of the Tribunal dated 21.06.2016 in 19 O.A.No.2246 of 2016 and also orders of the High Court dated 11.08.2021 in W.P.No.20171 of 2020.
39. The respondents contended that as per G.O.Rt.No.1086 dated 08.10.2020, permission was accorded for engaging the services of 825 Lecturers of contract basis, under the control of Commissioner of Collegiate Education, Hyderabad, for the Academic Year 2020-201 i.e., from 01.06.2020 to 31.05.2021 or till the actual need ceased, whichever is earlier, and therefore, the petitioner is not entitled to continue in the service as the existing post was already filled up by Dr. T. Aruna Kumari by transfer.
40. As per G.O.Rt.No.1086 dated 08.10.2020, seven contract Lecturer posts were sanctioned to the Government Degree College, Paloncha, and the petitioner's name is also included and only six contract Lecturers are working at Paloncha.
41. In the counter affidavits, the respondents referred to the letter dated 09.11.2016, by which the petitioner undertook to withdraw the writ petition in view of renewal of his services 20 period, however, contrary to the said undertaking, the petitioner did not withdraw the writ petition.
42. A perusal of letter of undertaking dated 09.11.2016 discloses that the petitioner has given undertaking to withdraw the writ petition since his services are renewed at S.R. Government Degree College (Arts and Science College), Kothagudem, Khammam. However, the number of the writ petition, which the petitioner intends to withdraw, is not mentioned in the said letter of undertaking.
43. It is pertinent to note that the petitioner herein filed W.P.No.34312 of 2016 to declare the action of the respondents in not renewing his services though there is a clear vacancy, as illegal and contrary to G.O.Rt.No.21 dated 23.07.2016.
44. The learned counsel for the petitioner contended that the said letter of undertaking dated 09.11.2016 has been given in respect of W.P.No.34312 of 2016 and not in respect of W.P (TR) No.6009 of 2017.
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45. Having regard to the facts and circumstances of the case, this Court is of the considered view that the letter of undertaking dated 09.11.2016 given by the petitioner has to be treated to have been given in respect of W.P.No.34312 of 2016, but not in respect of W.P. (TR)No.6009 of 2017.
46. The petitioner was initially appointed as contract lecturer in Hindi by duly constituted by the Selection Committee vide proceedings dated 22.09.2003 and posted at Government Degree College, Paloncha in existing post. The petitioner is fully qualified and eligible for regular appointment as Lecturer in Govt. Degree College, which is evident from the list of employees entitled for regularization prepared by the respondent no.3 vide letter dated 08.04.2016 pursuant to the G.O.Ms.No.22 dated 13.08.2014. In the said list, name of the petitioner was shown at Sl.No.5. Petitioner has completed 17 long years of service from 22.09.2003 to 20.11.2020, and his services were disengaged by the respondents from 20.11.2020 pursuant to transfer of Smt. T.Aruna Kumari. 22
47. The Hon'ble Apex Court in Nihal Singh and others vs. State of Punjab and others 2 had observed that the dicta laid down in Secretary, State of Karnataka and Ors. V. Umadevi and Others 3 cannot become a license for exploitation by the State and its instrumentalities by claiming that the appointments made by them are of temporary in nature, when there is need for creation of posts. The Hon'ble Apex Court also observed that the failure of the executive government to apply its mind and take a decision to create posts or stop extracting work from persons, such as the appellants therein for decades together itself would be an arbitrary action on the part of the State. The ratio laid down in Nihal Singh's case (supra) in our consider view, applies in all force to the facts of the present case.
48. The petitioner was appointed in the year 2003 by duly constituted selection committee in existing vacancy and was continued in service till 20.11.2020, on which date, his services were disengaged thus, the petitioner put in 17 years of continuous service. In view of the long standing service of 17 2 2013 (14) SCC 65 3 2006 (4) SCC 1 23 years, petitioner attained the status of de-jure permanency and therefore, petitioner cannot be deprived of his livelihood at this juncture in violation of Articles 14 and 16 of the Constitution of India.
49. W.P.(TR).No.6009 of 2017 has been filed to declare that the appointment of Junior Lecturers working in the Government Junior Colleges by transfer is violative of the law laid down by the Hon'ble Supreme Court of India in the case of V.Jagannadha Rao and others Vs. State of A.P 4 and not to fill up the post held by the petitioner in S.R. Government Arts & Science College, Kothagudem and also to renew the appointment of the petitioner as contract Lecturer for the academic year 2016-2017. Admittedly, the Junior Lecturers working in the Government Junior Colleges have not been transferred and filled the post held by the petitioner herein. In fact, Smt. T.Aruna Kumari, who was working in the Government Degree College, Khammam has been transferred and posted in S.R. Govt. Degree College (Arts & Science college), Kothagudem in the place of the petitioner 4 AIR 2002 SC 77 24 herein. Further, petitioner filed another W.P.No.34312 of 2016 to renew his services. It is also represented that petitioner's services were renewed for the year 2016-17 and therefore, this writ petition has become infructuous and is accordingly dismissed.
50. In the light of the above facts, circumstances and discussion, W.P.No.20171 of 2020 is allowed and the proceedings dated 24.10.2020 issued by the Commissioner of Collegiate Education, Hyderabad, transferring Dr. T. Aruna Kumari, Hindi Lecturer, to Government Degree College, Paloncha, Bhadradri- Kothagudem District, are set aside. Consequently, petitioner is entitled to continuity of services, notional benefits and for regularization of his services. However, in view of the principle ''no work no pay'', petitioner is not entitled to salary for the period not in service.
51. In the light of above facts, circumstances and discussion, W.P.No.18884 of 2023 is disposed of, directing the respondents to consider the petitioner for appointment to the sanctioned post of Lecturer in Government Degree Colleges on par with lecturers appointed in terms of G.O.Ms.Nos.23, 24, 29 and 30 dated 25 01.05.2023, and pass orders, within a period of eight weeks from the date of receipt of a copy of this order.
Pending Miscellaneous Applications, if any, shall stand closed. There shall be no order as to costs.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 31.01.2024 Va/kkm