Andhra Pradesh High Court - Amravati

P Devakanth vs The State Of Ap on 15 February, 2021

Bench: M.Satyanarayana Murthy

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

         WRIT PETITION NOs.467 AND 14658 OF 2020

COMMON ORDER:

    The relief claimed in both the writ petitions is as follows:

    "W.P.No.467 of 2020

    To issue Writ of Mandamus declaring the impugned
    G.O.Rt.No.1411 Revenue (Endts.III) Department dated
    28.11.2019 of the 1st Respondent as arbitrary, illegal,

discriminatory, void and without jurisdiction and contrary to TTD Employees Service Rules, 1989 issued in G.O.Ms.No.1060 Revenue (Endowment-I) Department dated 24.10.1989 and set-aside the same and also declare the action of the respondents in not absorbing or not regularizing the services of the petitioners as Librarian in the existing vacancies under the jurisdiction of the 2nd respondent as arbitrary, illegal, discriminatory and unconstitutional, violating Articles 14, 16 and 21 of the Constitution of India and issue consequential directions directing the respondents to forthwith absorb/regularize the services of the petitioners as Librarians in the existing vacancies before filling up the existing post of Librarians either by way of direct recruitment or by way of promotion or any other method and further direct the respondents to continue the petitioners as Librarians under the jurisdiction of the 2nd respondent till regularizing/absorbing their services of the petitioners as Librarians and also restrain the respondents from implementing G.O.Rt.No.1411 Revenue (Endts.III) Department dated 28.11.2019, insofar as it relates to the extent of 5 posts of Librarian which are being held by the petitioners."

W.P.No.14658 of 2020

To issue writ of Mandamus declaring the impugned G.O.Rt.No.1411 Revenue (Endts.III) Department dated 28.11.2019 of the 1st respondent and the consequential proceedings in ROC No.TTD-80021(31)49/2018-DEO-SEC- TTD dated 26.07.2020 issued by the 3rd respondent to the extent of appointing the 6th respondent as Librarian in place of the petitioner in the 5th respondent college as illegal, arbitrary, violative of principles of natural justice, contrary to the service rules of the T.T.D and also Articles 14 & 16 of the Constitution of India, consequently set-aside the impugned G.O.Rt.No.1411 Revenue (Endts.III) Department dated 28.11.2019 of the 1 respondent and the st

consequential proceedings of the 3rd respondent dated 26.07.2020 to the extent of the petitioner and further direct the respondents to continue the petitioner as Lecturer in Library Science in the 5th respondent college."

MSM,J WP.Nos.467 & 14658 of 2020

As the relief claimed in both the writ petitions is one and the

same, I find it expedient to decide both the petitions by common

order.

For the sake of convenience, the petitioners in both the writ

petitions will be referred as petitioners and the respondents will be

referred as arrayed in W.P.No.467 of 2020.

The factual matrix of both the cases is that, the second

respondent/Executive Officer, Tirumala Tirupati Devasthanams,

Tiurpati, issued paper publication on 09.7.2007 notifying certain

vacancies, including Librarian to be filled up from the eligible and

qualified candidates for the post of 'Lecturers' on 'contract basis'

for the academic year 2007-2008. The petitioners being qualified

persons, applied for the post of Librarian. In the said notification,

it is specifically stated that one vacancy to the post of Librarian is

existing. The petitioners having possessed requisite qualification

were called for interview and they were selected as Librarians on

contract basis on consolidated amount of Rs.6,000/- per month,

fixing specific period of appointment. The petitioners were

appointed in the clear vacancy of Librarian, which is a sanctioned

post, and the petitioners are discharging their duties as Librarians

to the utmost satisfaction of his superiors. In view of requirement

of their services in the Educational Institutions of Tirumala

Tirupati Devasthanams (for short 'T.T.D'), the term of the

petitioners is being extended from time to time.

While the things stood thus, the State Government issued

orders vide G.O.Ms.No.12 Finance (HR.I-Plg.& Policy) Department MSM,J WP.Nos.467 & 14658 of 2020

dated 28.01.2019 (for short 'G.O.Ms.No.12 dated 28.01.2019)

extending the minimum time scale to the contract employees

working in various government departments with effect from

01.04.2019 onwards. T.T.D also adopted the guidelines issued

under G.O.Ms.No.12 dated 28.01.2019. Accordingly, all the

contract employees working in T.T.D Educational Institutions have

been drawing minimum time scales.

Satisfied with the performance of these petitioners, the

Board of T.T.D extended the contract period of these petitioners as

Librarians. The Government issued G.O.Rt.No.187 Higher

Education Department dated 18.11.2019 through which

government accorded permission to the Special Commissioner of

Collegiate Education, A.P. Vijayawada for continuation of contract

period of 12 months with 10 days break from the academic year

2019-2020 to the contract lecturers working in Government Degree

Colleges in the State of Andhra Pradesh. The respondents by

following the guidelines issued by the Government, extended the

term of office of the contract employees who are working in the

colleges under the control of T.T.D. Accordingly, the petitioners

are discharging their duties as Librarians on the extended contract

period from the date of their appointment. In fact, the respondents

did not issue any extension order in continuation of the contract

employees for the academic year 2020-2021, but in view of the

requirement of the services of the petitioners, they were allowed to

discharge their duties for the academic year 2020-2021.

MSM,J WP.Nos.467 & 14658 of 2020

While so, the Government thought fit to constitute a working

committee to examine the matter of regularization of the services of

contract employees working in the Government departments and

other allied matters and issued G.O.Rt.No.2657 General

Administration (Cabinet-I) Department dated 26.11.2019. In the

said Government Order, it is observed that the State Government

constituted group of ministers vide G.O.Rt.No.1567 dated

10.07.2019 for examining the matter of regularization of services of

contract employees working in Government Department and

furnish its recommendations to the Government. Based on the

report of the Group of ministers, the Government formed working

committee under the Chairmanship of Chief Secretary to submit a

report by 31.03.2020 for regularization of the services of contract

employees who are working in the Government Departments.

G.O.Rt.No.1411 Revenue (Endts.III) Department dated

28.11.2019 (for short 'G.O.Rt.No.1411 dated 28.11.2019) was

issued based on the request made by the second respondent to fill

up six Librarian and six Graduate Librarian posts under

recruitment by transfer in T.T.D Educational Institutions as one

time measure for the academic year 2019-2020 instead of filling up

them through the promotional channel or by way of Direct

recruitment. The Government accepted the proposal of the second

respondent and ordered to fill up six Librarian and six Graduate

Librarian posts in T.T.D Educational Institutions as one time

measure for the academic year 2019-2020 instead of filling them

up through the promotional channel or by way of direct MSM,J WP.Nos.467 & 14658 of 2020

recruitment. Accordingly, a circular was issued calling applications

from the eligible employees for filling up the non-teaching posts of

Librarian and Librarian (Graduate) in Tirumala Tirupati

Devasthanams Employees Service Rules, 1989, (hereinafter 'T.T.D

Employees Service Rules') issued vide G.O.Ms.No.1060 dated

24.10.1989 through recruitment by transfer as one time measure

only. Hence, the petitioners requested to set-aside G.O.Rt.No.1411

dated 28.11.2019 and consequential proceedings issued by the

second respondent, as they are illegal and contrary to the T.T.D

Employees Service Rules issued under G.O.Ms.No.1060 dated

24.10.1989 & G.O.Ms.No.311 Revenue (Endowments) dated

09.04.1990.

The specific grounds urged in W.P.No.14658 of 2020 are as

follows:

a) G.O.Rt.No.1411 dated 28.11.2019 is not in exercise of the

power under Article 309 of the Constitution of India and it

is only an Executive Instruction and issue of such

Government Order without amending T.T.D Employees

Service Rules is illegal and arbitrary.

b) It is contended that the petitioners being the contract

employees having been paid their minimum time scale

payable to Librarian and Librarian (Graduate) and

appointed in the existing vacancies by following necessary

procedure for selection of regular Librarians are entitled to

regularization of their services. Issue of such Government

Order is contrary to the T.T.D Employees Service Rules and MSM,J WP.Nos.467 & 14658 of 2020

consequential proceedings, denude these petitioners for

selection in the institutions of T.T.D as illegal and

arbitrary.

c) The petitioners further contended that, G.O.Rt.No.1411

dated 28.11.2019 issued by the State Government,

accepting the proposal made by the Executive Officer,

T.T.D to fill up six Librarians and six Librarians (Graduate)

under recruitment by transfer to T.T.D Educational

institutions as one time measure for the academic year

2019-2020 instead of filling up the said vacancies through

direct recruitment or by promotional channel is illegal and

in deviation of the procedure prescribed under the T.T.D

Service Rules issued under G.O.Ms.No.1060 Revenue

(Endowments-I) dated 24.10.1989 & G.O.Ms.No.311

Revenue (Endowments) dated 09.04.1990. Hence, prayed

to set-aside G.O.Rt.No.1411 dated 28.11.2019 and

consequential proceedings, declaring the same as illegal

and arbitrary.

The specific grounds in addition to the grounds mentioned

hereinafter, urged in W.P.No.467 of 2020 are as follows:

a) It is specifically contended that, there cannot be ad-hocism

or temporary forever and in the event of any employee

working against the regular post for sufficiently long period,

that too, after following regular procedure for making regular

selections, such employees' cases shall be considered for

regularization and cannot continue only on contract basis or MSM,J WP.Nos.467 & 14658 of 2020

temporary basis. Therefore, T.T.D which is an independent

institution having its own source of income and which is

able to give financial assistance to the State Government

ought not have adopted such kind of appointments on

contract basis only to deprive regular salary attached to the

post in the guise of contract appointment which is like acting

any private institution, inasmuch as the 2nd respondent is a

State under Article 12 of the Constitution of India and these

petitioners are entitled for regularisation/absorption in the

department, though they are working on contract basis,

taking into consideration of their long tenure as Librarians

on contract basis.

b) It is further contended that, issuing G.O.Rt.No.1411 dated

28.11.2019 accepting the proposal of the Executive Officer,

T.T.D and ordering him to fill-up the posts of Librarians and

Librarians (Graduate) posts under recruitment by transfer

for T.T.D Educational Institutions as one time measure for

the academic year 2019-2020, instead of filling up the said

posts through promotional channel is nothing but depriving

the petitioners of their livelihood and that the petitioners

were appointed in the regular existing vacancies and thereby

they are entitled for regularization of their services.

Finally, the petitioners sought direction to set-aside

G.O.Rt.No.1411 dated 28.11.2019 as it is illegal, arbitrary and

violative of Articles 14, 21 and 309 of the Constitution of India,

while directing Respondent Nos. 2 and 3 to absorb these MSM,J WP.Nos.467 & 14658 of 2020

petitioners as Librarians and Librarians (Graduate) in the

Educational Institutions of T.T.D.

Respondent Nos. 2, 4 to 9 in W.P.no.467 of 2020 filed

counter affidavit in both the writ petitions, denying material

allegations, while admitting the appointment of these petitioners

on contract basis for ten months in a year initially on payment of

Rs.6,000/- and subsequently the contract was extended from time

to time also extended minimum time scale to these petitioners in

view of the Government orders.

T.T.D Employees Service Rules are issued pursuant to

G.O.Ms.No.1060 dated 24.10.1989 which deals with method of

recruitment for the post of Librarian which is as follows:

1. By Direct Recruitment;

2. By promotion from Librarian (Graduate). For the post of

Graduate Librarian it is by Direct Recruitment only. It is submitted

that in order to provide an opportunity to the qualified employees

of TTD and to resolve the large persistent demand of the

Employees of TTD, an amendment was proposed vide Res.No.285

dated 24.07.2018 to the Service Rules of TTD Employees issued in

G.O.Ms.No.1060 Revenue (Endowment-I) Department dated

24.10.1989 as mentioned in the table below:

01 Librarian By Direct (i) Must possess PG degree in I or II class Recruitment (ii) Degree of B.Li.Sc or equivalent degree.

                       50%     of    the
                       cadre strength
                       By    Promotion     Must have not less than 5 years of service
                       25%     of    the   as Graduate Librarian
                       cadre strength
                                                                                   MSM,J
                                                               WP.Nos.467 & 14658 of 2020







                 By     Transfer    (i)   Must have not less than 5 years of
                 25%    of   the          service in any cadre of TTD services.
                 cadre strength     (ii) Must possess PG degree in I or II class
                 (proposed          (iii) Degree of B.Li.Sc or equivalent degree.
                 amendment)
02   Graduate    By        Direct   (i)   Must have passed the degree of B.A,
     Librarian   Recruitment              B.Com,     or   B.Sc,    of  recognized
                 (70%)                    University
                                    (ii) Must possess a Degree in Library
                                          Science or Diploma in Library science
                                          recognized University
                 By    Transfer     (i)   Must have not less than 5 years of
                 30%    of  the           service in any cadre of TTD services
                 cadre strength     (ii) Must have passed the degree of B.A,
                 (proposed                B.Com, or B.Sc, or equivalent of
                 amendment)               recognized University
                                    (iii) Must possess a Degree in Library
                                          Science or Diploma in Library science
                                          recognized University

T.T.D wanted to recruit the Librarians and Librarians

(Graduate) and proposed for amendment of Rules to fill those posts

by transfer from the Educational Institutions of T.T.D as shown in

the table. But, after lot of correspondence, the second respondent

sent a proposal for filling up those posts by transfer of

employeesfrom the Educational Institutions under the control of

T.T.D and accordingly, G.O.Rt.No.1411 dated 28.11.2019 was

issued as one time measure for the academic year 2019-2020.

Thus, the respondents admitted about issue of G.O.Rt.No.1411

dated 28.11.2019 as one time measure for filling up the posts of

Librarians and Librarians (Graduate) by transfer.

The petitioners are contract Librarians in T.T.D Educational

Institutions and their appointment is purely temporary on contract

basis. There are no rules for regularization their services in the

post in which they are working. Therefore, they cannot claim

regularization of their services in the educational institutions

under the control of T.T.D. The petitioners executed a contract in MSM,J WP.Nos.467 & 14658 of 2020

favour of T.T.D. Among others, it contains the following two

conditions:

a) That the contract faculty agrees that, he/she is fully aware of the fact that his/her service is not being taken to fill any vacancy either temporary or permanent basis, that he/she will be paid a consolidated amount during the contract period as per norms, that his/her contract shall automatically comes to an end on expiry of the said period or on report of a regular lecturer in that subject whichever is earlier.

b) That he/she shall not indulge in any activity detrimental to the interest of the party of the TTD.

The respondents submitted in the counter that, the

petitioners have violated the above two conditions and thereby,

they are not entitled to claim any relief in these writ petitions. It is

also contended that, G.O.Rt.No.1411 dated 28.11.2019 was issued

by the State Government based on the resolution passed by the

Board of T.T.D and proposals submitted to the Government for

proposing amendment. Later, after lot of correspondence between

the Government and the second respondent/Executive Officer,

TTD, G.O.Rt.No.1411 dated 28.11.2019 was issued by the

Government, only for limited period of one year as a one time

measure and not intended to deprive these petitioners or any other

persons for being appointed as Librarians or Librarians (Graduate).

The respondents contended that, G.O.Rt.No.1411 dated

28.11.2019 was issued in view of the resolution passed by the

Board of TTD, within the limitations prescribed under the Rules,

therefore, it is not in violation of any of the Rules and thereby, the MSM,J WP.Nos.467 & 14658 of 2020

Government Order and consequential proceedings cannot be set-

aside.

It is undoubtedly true that, the second respondent/

Executive Officer, TTD by following the Government Orders issued

from time to time, posts of Librarian and Librarian (Graduate)

which are vacant for the posts for the past few years, which could

not be filled-up due to ban imposed by the Government on

recruitment. Further, more clarifications were sought for by the

Government regarding local category posts. Therefore, TTD has

engaged Librarians on contract basis and merely because the

services of these petitioners were engaged on contract basis, they

are not entitled to claim regularization/absorption in the said post.

It is further submitted that the contract Librarians, except

Sri Y. Vikram Sagar, Contract Librarian working at SPW Junior

College, Tirupati were engaged in TTD without implementation of

rule of reservations and without any specific selection procedure

and the petitioners were engaged first in junior/music/oriental

colleges and then some of them were shifted to degree colleges due

to necessity on account of retirement of regular Librarians.

Further, in cases where contract Librarians were engaged through

notification, the notification was only for appointment on contract

basis. Thus, the contention of the petitioners that they were

appointed on contract basis after following regular process has to

be read contextually and the averments made by the petitioners

are misleading. Further, while offering appointment on contract

basis, the petitioners were specifically informed that their MSM,J WP.Nos.467 & 14658 of 2020

appointment is on contract basis till regular recruitment is made

by management and the contractual appointment does not in any

manner influence the selection process for regular appointment

and does not guarantee regular service on the basis of the contract

appointment and the Principal may terminate their appointment at

any time without any notice and without assigning any reason

thereof. The petitioners were also informed to report for duty if they

accept the terms and conditions laid down by TTD. Having agreed,

the petitioners joined the post of Librarians on contract basis. The

respondents contended that, when the petitioners agreed to the

terms and conditions, they are estopped from pleading any other

contentions, contrary to the terms and conditions of the contract

and thereby, they are not entitled to claim any relief in the writ

petitions.

The respondents admitted about extension of minimum time

scale to the employees appointed under contract basis, but they

are not entitled for regularization because, benefit of minimum

time scale is extended to them from 01.04.2019 as per

G.O.Ms.No.12 dated 28.01.2019 and as per proceedings

RocNo.80021(31)/13/2019-D2-DEO-SEC dated 31.10.2019. It is

contended that, there are no rules permitting regularization/

absorption of these petitioners and thereby they are not entitled to

the relief claimed for. Further, the petitioners were extended

benefits as fixed by the government to the contractual employees

and they are not entitled to claim regularization /absorption in the

said posts. Even though the management does not receive any MSM,J WP.Nos.467 & 14658 of 2020

financial aid from the government, it has to follow the service rules

fixed by the Government, governing the service conditions of TTD

employees and in the absence of TTD Employees Service Rules, the

petitioners are not entitled to claim any relief in these writ

petitions. It is further contended that, G.O.Rt.No.1411 dated

28.11.2019 and consequential proceedings issued by the Executive

Officer, TTD are not hit by Articles 14, 19 and 309 of the

Constitution of India and it is in consonance with the decision

taken by the TTD Board, thereby, the contention of these

petitioners is without any merit and the same cannot be sustained

either on fact or law and requested to dismiss the writ petitions.

Heard Sri P.V. Krishnaiah and Sri K. Koutilya, learned

counsel appearing for the writ petitioners and Sri A. Sumanth,

learned Standing Counsel appearing for Tirumala Tirupati

Devasthanams, Tirupati, in detail.

Considering rival contentions, perusing the material

available on record, the points that arise for consideration are as

follows:

1. Whether G.O.Rt.No.1411 Revenue (Endts.III) Department dated 28.11.2019 is in violation of TTD Service Rules. If so, whether G.O.Rt.No.1411 Revenue (Endts.III) Department dated 28.11.2019 is illegal, arbitrary, violative of statutory rules framed by the TTD and liable to be set-aside?

2. Whether the petitioners being contract employees are entitled for absorption/regularization for the post of Librarian and Librarian (Graduate) from the date of their appointment with backwages in terms of TTD Service Rules?

MSM,J WP.Nos.467 & 14658 of 2020

P O I N T No.1

All these petitioners were engaged by the second respondent

on contract basis and the contract is between the petitioners and

second respondent. The appointment dates of the petitioners who

were engaged on contract basis is as follows:

              S.No    Name                             Date of
                                                       appointment

              1       P. Devakanth                     03.10.2007
              2       K.C. Muthyclaiah Chetty          01.12.2007
              3       D. Tulasi Ram                      01.2008
              4       M. Venugopal Naik                01.02.2008
              5       Y. Vikram Sagar                  12.09.2016
              6       Dr. N. Kalpalatha                17.01.2008

The second respondent admittedly issued a notification for

filling up of vacancies in the cadre of Librarian by issuing

Notification dated 09.07.2007 for the academic year 2007-2008,

inviting applications from the eligible candidates, fixing the last

date for applications as 31.07.2007.

The very first line of the notification dated 09.07.2007 reads

as follows:

"For the academic year 2007-2008 the below mentioned vacancies are to be filed for the following posts from the required eligible and qualified candidates for the post of "Lecturers" on "contract basis"

Thus, the notification is very specific that the appointment of

Lecturers is on contract basis. In pursuance of the notification, the

petitioners were appointed on contract basis after following certain

procedure for selection and issued proceedings appointing these

petitioners initially on monthly consideration of Rs.6,000/- i.e.

salary for their service. Though the initial contract has expired, the MSM,J WP.Nos.467 & 14658 of 2020

contract is being extended from time to time and finally it was

extended for the year 2019-2020 engaging the services of the

petitioners on contract basis only for ten months, extended by

minimum time scale to these petitioners. As such, the service

contract was subsisting as on the date of filing the writ petitions

and entitled to serve as Librarians and Librarians (Graduate) in

terms of the proceedings issued by the second respondent dated

03.06.2019.

As on date, the petitioners are continuing in contract

employment as Librarians or Librarians (Graduate) for the

academic year 2019-2020, but no material to establish that the

contract was extended for the year 2020-2021. After expiry of the

contract period, the same was extended vide proceedings dated

03.06.2019, the academic year 2019-2020 expired by the end of

March, 2020 and as such there was no subsisting contract of

employment between the petitioners and the second respondent

and there was no direct relationship between them as employee

and employer as on today.

The main endeavour of the petitioners in both the writ

petitions is that, the second respondent issued a notification for

recruitment of Librarians and Librarians (Graduate) on transfer, in

pursuance of G.O.Rt.No.1411 dated 28.11.2019 which is not

authorized as per TTD Employees Service Rules. Therefore, the

notification in G.O.Rt.No.1411 dated 28.11.2019 is contrary to

TTD Employees Service Rules, governing the eligibility, process of

recruitment, process of promotion and other service conditions of MSM,J WP.Nos.467 & 14658 of 2020

employees working in the educational institutions under the

control of the second respondent. TTD Employees Service Rules

were framed vide G.O.Ms.No.1060 dated 24.10.1989, they govern

the eligibility, selection process, promotions and service conditions

of employees working in the educational institution working under

the control of TTD.

Annexure-I of the TTD Employees Service Rules prescribed

certain qualifications for the post of Librarian and Librarian

(Graduate) which are non-teaching posts in educational

institutions and they are as follows:


01   Librarian    By       Direct      (i)    Must possess a post graduate
                  Recruitment                 degree in I or II class from a
                                              recognized university and a
                                              degree of B.L.Sc, or equivalent
                                              degree thereto.
                                       (ii)   Must possess a fair knowledge of
                                              Sanskrit
                  By Promotion      By promotion from Librarian (graduate)

                                       (i)    Must possess a fair knowledge in
                                              Sanskrit
                                       (ii)   Must have not less than 5 years
                                              of service as Graduate Librarian
02   Graduate     By       Direct      (i)    must have passed the Degree of
     Librarian    Recruitment                 B.A, B.Com or B.Sc of a
                                              recognized University.
                                       (ii)   Must possess a Degree in
                                              Library Science or a Diploma in
                                              Library     Science   from    any
                                              recognized University

The post of Librarian can be filled in two modes i.e. by Direct

Recruitment and by Promotion. Whereas, the post of Librarian

(Graduate) must be filled up by direct recruitment only as shown

in the table referred supra.

As per the notification impugned in the writ petitions,

G.O.Rt.No.1411 dated 28.11.2019, the mode of recruitment of MSM,J WP.Nos.467 & 14658 of 2020

Librarian and Librarian (Graduate) is totally changed. The second

respondent/Executive Officer, TTD initially requested the

government for amendment of Rules for recruitment of Librarians

by transfer to an extent of 25% to Librarian and 30% to Librarian

(Graduate) in educational institutions under the control of TTD.

But, later, certain correspondence took place between the second

respondent and the Government and finally, on examination of the

matter, the proposal made by the second respondent was accepted

and issued G.O.Rt.No.1411 dated 28.11.2019 to fill up six

Librarian posts and six Librarian (Graduate) posts under

recruitment by transfer in the educational institutions under the

control of TTD, as one time measure, only for the academic year

2019-2020, instead of filling them up through promotional

channel. The relevant paragraph in G.O.Rt.No.1411 dated

28.11.2019 reads as follows:

"3) Government after careful examination of the matter hereby accept the proposal of the Executive Officer, Tirumala Tirupathi Devasthanams and order to filling up of 6 Librarian and 6 Graduate Librarian posts under recruitment by transfer in Tirumala Tirupathi Devasthanams educational institutions as one-time measure only for the academic year 2019-2020 instead of filling them up through the promotion channel."

The mode of recruitment of Librarian under the TTD

Employees Service Rules is limited to direct recruitment and

promotion, whereas, recruitment of Librarian (Graduate) is only by

direct recruitment. G.O.Rt.No.1411 dated 28.11.2019 appears to

have been issued for certain extraneous reasons and the

petitioners could not bring on record the hidden reason or lurking

interest behind issue of G.O.Rt.No.1411 dated 28.11.2019. Unless MSM,J WP.Nos.467 & 14658 of 2020

the TTD Employees Service Rules are amended, the State

Government cannot permit the Executive Officer, TTD to fill up the

post of Librarian and Librarian (Graduate) by transfer in TTD

educational institutions as one time measure for the academic year

2019-2020.

No doubt, the posts of Librarian and Librarian (Graduate)

are vacant since 2007-2008 and vacancies were filled up engaging

the services of these petitioners on contract basis till the academic

year 2019-2020 i.e approximately for a period of 13 years and

allowed these petitioners to work on contract basis. But, all of a

sudden, the second respondent intended to fill up those vacancies

by amending the TTD Employees Service Rules for unknown

reasons. The State did not amend the TTD Employees Service

Rules and started correspondence with the second respondent.

Ultimately, at the instance of the State Government, the second

respondent addressed a letter to permit the second respondent to

fill up the vacancies of six Librarian and six Librarian (Graduate)

in the educational institutions under the control of TTD. Accepting

the request, the State Government issued G.O.Rt.No.1411 dated

28.11.2019 permitting the second respondent/Executive Officer,

TTD to recruit six Librarian and six Librarian (Graduate) by

transfer only as one time measure for the academic year 2019-

2020, without amending the substantive Rules governing the

service conditions of employees working in the educational

institutions under the control of second respondent/Executive

Officer, TTD. Therefore, G.O.Rt.No.1411 dated 28.11.2019 cannot MSM,J WP.Nos.467 & 14658 of 2020

be upheld unless substantive rules are amended by exercising

power under Article 309 of the Constitution of India, governing the

service conditions of employees working under the control of the

second respondent.

The correspondence between the State Government and the

second respondent is suffice to draw an inference that

G.O.Rt.No.1411 dated 28.11.2019 is tainted with malafides. Even

otherwise, the State Government is expected to pass such a

Government Order following the TTD Employees Service Rules.

But, totally in contravention of the procedure prescribed under the

TTD Service Rules, vide G.O.Ms.No.1060 dated 24.10.1989 and

permitting the second respondent to recruit six Librarian and six

Librarian (Graduate) on transfer, as one time measure. The Court

can infer reasons for issuing such order changing the procedure

for recruiting Librarian and Librarian (Graduate) based on the

correspondence of the second respondent and the State

Government. Issue of G.O.Rt.No.1411 dated 28.11.2019 as one

time measure itself is indicative of malafides. Issue of such

Government Order is nothing but fraud on power or abuse of

power.

As discussed above, G.O.Rt.No.1411 dated 28.11.2019 is

issued not only in violation of TTD Employees Service Rules

notified vide G.O.Ms.No.1060 dated 24.10.1989 and tainted with

malafides, besides abuse of power. Hence, G.O.Rt.No.1411 dated

28.11.2019 is declared as illegal, arbitrary and in violation of MSM,J WP.Nos.467 & 14658 of 2020

Rule 9(2) of TTD Employees Service Rules and Annexure-I of TTD

Service Rules, and the same is liable to be set-aside.

Accordingly, the point is answered in favour of the

petitioners and against the respondents.

P O I N T No.2:

The petitioners in both the writ petitions claimed absorption

/regularization of their services under the second respondent, as

they are working in the same post for the last more than 13 years.

The main endeavour of the petitioners is that, when once the

petitioners are engaged on contract basis, their legitimate

expectation is absorption/regularization into service. Whereas, the

learned Standing Counsel appearing for TTD contended that, when

the order of their appointment is made clear that the petitioners

have no right to claim absorption/regularization into services, on

the other hand, if their acts are prejudicial to the interest of the

second respondent, their services can be disengaged. When the

contract of the petitioners is only for ten months for every year, the

petitioners are not entitled to claim regularization of services, since

the contract was entered into for rendering services on payment of

consideration by way of remuneration, after satisfying the

requirements to constitute a valid contract. Such contract was

entered into by the petitioners out of free volition and not under

any compelling circumstances, as such, they are not entitled for

absorption.

MSM,J WP.Nos.467 & 14658 of 2020

During hearing, learned counsel for the petitioners

contended that, when the petitioners were appointed after following

necessary selection process for appointment of regular employee in

the existing vacancies, they are entitled to claim absorption into

services in terms of the principle laid down by the Constitutional

Bench of the Apex Court in State of Karnataka v. Uma Devi1 and

requested to direct the respondents to regularize/absorb the

services of the petitioners from the date of their initial

appointment.

There is a basic difference between contractual employment

and regular employment. An employment contract is an agreement

that covers the working relationship of an employer and an

employee. It allows both parties to clearly understand their

obligations and the terms of employment. More specifically, an

employment contract can include salary or wages, schedule,

duration of employment, general responsibilities, confidentiality,

communications, benefits, future competition etc. A written

contract is a great way to clearly define the role, the

responsibilities, and the benefits and to prevent any confusion.

Upon careful reading of the terms and conditions, the parties shall

enter into contract of employment with free consent and for

consideration. Therefore, such contract of employment requires to

satisfy the ingredients of ordinary contract as defined under the

Indian Contract Act.

(2006) 4 SCC 1 MSM,J WP.Nos.467 & 14658 of 2020

However, in certain compelling circumstances, with

legitimate expectation of regularization or absorption and due to

lack of employment in the State, the prospective candidates are

entering into contract of employment and rendering services on

meagre amount of agreed consideration as salary or wage. It is one

type of exploitation of services of employee by the employer.

In view of these specific contentions raised by the petitioners

it is appropriate to advert to the law declared by the Apex Court

and other Courts to order regularization of services of the

petitioners. The basis for this claim is the principle laid down by

the Apex Court in State of Karnataka v. Uma Devi (referred

supra). The ratio laid down by the Constitutional Bench of the

Apex Court can be analyzed as follows:

(I) The questions to be asked before regularization are:-

(a)

(i) Was there a sanctioned post (court cannot order creation of posts because finances of the state may go haywire),

(ii) is there a vacancy,

(iii) are the persons qualified persons and

(iv) are the appointments through regular recruitment process of calling all possible persons and which process involves inter-se competition among the candidates

(b) A court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter.

(II) For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14, 16, 309, 315, 320 etc is violated.

(III) In case of existence of necessary circumstances the government has a right to appoint contract employees or casual labour or employees for a project, but, such persons form a class in themselves and they cannot claim equality except possibly for equal pay for equal work) with regular employees who form a separate class. Such temporary employees cannot claim legitimate expectation of absorption/regularization as they knew when they were appointed that they were temporary inasmuch as the government did not give and nor could have given an assurance of regularization without the regular recruitment process being followed. Such irregularly appointed persons cannot claim to be regularized alleging violation of Article 21. Also the equity in favour of the millions who await public employment through the regular MSM,J WP.Nos.467 & 14658 of 2020

recruitment process outweighs the equity in favour of the limited number of irregularly appointed persons who claim regularization.

(IV) Once there are vacancies in sanctioned posts such vacancies cannot be filled in except without regular recruitment process, and thus neither the court nor the executive can frame a scheme to absorb or regularize persons appointed to such posts without following the regular recruitment process.

(V) At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure.

(VI) If there are sanctioned posts with vacancies, and qualified persons were appointed without a regular recruitment process, then, such persons who when the judgment of Uma Devi is passed have worked for over 10 years without court orders, such persons be regularized under schemes to be framed by the concerned organization.

(VII) The aforesaid law which applies to the Union and the States will also apply to all instrumentalities of the State governed by Article 12 of the Constitution."

If the appointment on contract basis or otherwise satisfies

the above requirements, the Court can order regularization or

absorption of services of contract employees. But, the Court

observed that there is no legitimate expectation of contractual

employees or work charged employees to get regularization. The

Supreme Court has categorically observed that people who take

employment with open eyes for a contractual period or for a

specific project cannot claim regularization and there is no equity

in their favour inasmuch as the equity is in favour of millions who

have been waiting for public employment through the regular

recruitment process outweighs the equities claimed by the limited

number of employees. (vide Indu Munshi v. Union of India2).

WP(C) No.2574 of 2010 dated 05.04.2013 MSM,J WP.Nos.467 & 14658 of 2020

In Surendra Kumar & ors. V. Greater Noida Industrial

Development Authority & ors3, the Supreme Court considered

the scope of regularization of contractual employees. In the facts of

the above case, the respondent published an advertisement on

20.11.2002 for engagements to the post of Assistant Manager. The

Appellants, engaged on contractual basis, sought regularisation of

their service with the Respondent for the advertised post. The high

court directed the Respondent to consider the claim of the

Appellants for regularisation. A scheme for regularisation of the

Appellants was formulated by the Respondent, and the Appellants

were appointed to the post vide appointment orders dated

06.08.2010. A subsequent petition by the Appellants for

regularisation of service from the date of the advertisement,

20.11.2002, with all consequential benefits is allowed by the

Tribunal. The Respondent filed a petition before the High Court

against the order. Allowing the petition, the court quashed the

grant of retrospective benefits to the Appellants, and also quashed

the appointments of the Appellants as ex-facie illegal. The Apex

Court concluded that the scheme of regularization of contractual

employees was not in vogue and it was only subsequently to

16.04.2003.

In Paragraph 53 of the judgment in State of Karnataka v.

Uma Devi (referred supra), the Constitutional Bench of the Apex

Court observed as follows:

"53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as

2015 (7) SCALE 386 MSM,J WP.Nos.467 & 14658 of 2020

explained in State of Mysore v. S.V. Narayanappa: (1967) 1 SCR 128, R.N. Nanjundappa v. T. Thimmiah: (1972) 1 SCC 409, and B.N. Nagarajan v. State of Karnataka (1979) 4 SCC 507, 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 by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme."

Based on the principle laid down in State of Karnataka v.

Uma Devi (referred supra), the Apex Court accepted regularization

of the contract employees as they were working for more than five

years as one time measure, framing a scheme for their

regularization while discouraging backdoor appointments. The

Apex Court in Rajnish Kumar Mishra v. State of Uttar Pradesh4

observed as follows:

"As a onetime measure the employer should take steps for regularisation of the services of the employees who had put in service of 10 years or more and had directed regularization of the appellants therein. The learned counsel further submits, that the appeals deserve to be allowed and the impugned order deserves to be quashed and set aside."

In Accounts Officer (A&I) APSRTC & Ors v. K. V. Ramana

& Ors5, the Division Bench of the Apex Court again by placing

reliance on the Constitutional Bench of the Supreme Court in

4 (2019) 17 SCC 648 5 2007 ALL SCR 1121 MSM,J WP.Nos.467 & 14658 of 2020

State of Karnataka v. Uma Devi (referred supra), held that,

absorption, regularization or permanent continuance of temporary,

contractual, casual, daily-wage or ad hoc employees dehors the

rules and constitutional scheme of public employment cannot be

granted by the Courts. As regards the circular dated 31.3.1998 the

same cannot override Article 16 of the Constitution of India, and

hence regularization cannot be granted under the said circular.

Even if the contract labourers or casual workers or ad hoc

employees have worked for a long period they cannot be

regularized dehors the rules for selection.

Similar question came up before Jharkhand High Court in

Bharat Coking Coal Ltd. v. Their Workmen, Being

Represented6. The facts in the above judgment are that, the

Management is that during the period 1973 to 1976, supply of

Railway Wagon being erratic, as some time, there used to be no

supply of any Wagon or some time as there were excess supply of

Wagons, in such a case, the work of loading and unloading was

being done by engaging extra labour who were separately enrolled

as Casual Wagon Loader, but their names do not find place either

in the roll of Permanent Wagon Loader or Casual Wagon Loader.

Therefore, according to them, the concerned persons were not

entitled to any relief. The learned single Judge of the Jharkhand

High Court placed reliance on the judgments of the Supreme Court

in Air India Statutory Corporation v. United Labour Union7 and

2005 (2) JCR 269 Jhr

(1997) 9 SCC 377 MSM,J WP.Nos.467 & 14658 of 2020

Sapan Kumar Pandit v. U.P. State Electricity Board8 and finally

concluded that, there was no relationship of employer and

employee between the management and employees, thereby, the

employees are not entitled for regularization in services.

There are conflicting views regarding regularization.

However, it is clear from the judgment of the Constitutional Bench

of the Supreme Court in State of Karnataka v. Uma Devi

(referred supra), that if these petitioners were selected based on

regular notification and based on regular selection process in the

existing vacancies, here, the petitioners are working as contract

employees continuously for the last more than 13 years and less

than 13 years. However, the contract period was only 10 months in

a year. Thus, the service rendered by the petitioners in a year is

not continuous contract in service. The petitioners were selected

based on notification inviting applications for the post. However,

the petitioners did not undergo regular selection process facing

competition. Therefore, the petitioners cannot be said to be in

service continuously for more than 13 years, as there is an

intermittent gap of two months between one contract and other

contract period.

No doubt, the contract period is not extended as admitted by

the petitioners and the petitioners are allegedly continuing to

render service. When once contract is not extended or entered into

afresh by TTD, the petitioners cannot be deemed to be in service as

on date.

2001 AIR SCW 2681 MSM,J WP.Nos.467 & 14658 of 2020

In any view of the matter, regularization is only subject to

satisfying the test or principle laid down by the Constitutional

Bench of the Supreme Court in State of Karnataka v. Uma Devi

(referred supra).

The Apex Court in Yogesh Mahajan v. Professor R.C. Deka,

Director, All India Institute Of Medical Sciences9 held as

follows:

"6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the Petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At best, the Petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the Petitioner."

Contractual appointment is for a specified period and not

entitled to regularization. Grant of extension of tenure based, does

not confer status of employee nor can he/she seek regularization of

his/her services in absence of any statutory Rule recognizing such

right in his/her favour. (vide Committee of Management, Arya

Nagar Inter College, Arya Nagar, Kanpur, Through Its Manager

And Another v. Sree Kumar Tiwary and another10)

In view of the catena of perspective pronouncements laid

down by the Apex Court, it is difficult to accept the request of these

petitioners to regularize/absorb their services in the educational

2018 (3) SCC 218

1997 (4) SCC 388 MSM,J WP.Nos.467 & 14658 of 2020