B. Kishore Kumar, vs The State Of Andhra Pradesh,
2021 Latest Caselaw 4479 AP

          *HONOURBLE SRI JUSTICE D.V.S.S. SOMAYAJULU

                  +   W.P.Nos. 15579, 20811 of 2019,

                         4703, 7790, 8584 of 2020
                            and 13087 of 2021


% 03.11.2021
WP.No.15579 of 2019
# S.Sudhamani and 10 others
                                                        ... Petitioners
Vs.
$ The State of Andhra Pradesh,
Rep., by its Principal Secretary,
Higher Education, Guntur and 2 others.
                                                     ... Respondents

! Counsel for the petitioners : Sri Sri Srinivasa Rao Bodduluri, Sri S.Harinath Reddy, Ms.Yashoda, Sri G.V.L.Murthy, Sri Giri Babu Marthy ! Counsel for the Respondents : Sri N.A.Ramachandra Murthy, learned standing counsel for APPSC and Government Pleader for Services-III < Gist:

> Head Note:

? Cases referred:

(2006) 4 SCC 1

(2010) 9 SCC 247 (1992) 4 SCC 118

HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

W.P.Nos.15579, 20811 of 2019, 4703, 7790, 8584 of 2020 and 13087 of 2021

COMMON ORDER:

The batch of writ petitions have been filed before this

Court questioning the notification that has been issued on

31.12.2018 (Notification dated 23 of 2018) by the APPSC for

recruitment to the post of Polytechnic lecturers/workshop

attendants.

The entire batch was taken up for hearing together.

In WP.No.4703 of 2020, there are 33 petitioners.

According to them, they all have been rendering service as

contract lecturers in various Government Polytechnics in the

State. It is contended that all of them are validly recruited

and have been rendering continuous service for more than 10

years. Hence, they argue that they are entitled to

regularization in the category of lecturers, in view of the law

laid down by the Hon‟ble Supreme Court of India in

Secretary, State of Karnataka and Or. v. Umadevi' 1 case.

They also contend that until they are regularized into service,

the respondent-State cannot issue a notification to fill up all

the posts.

(2006) 4 SCC 1

Similarly, in WP.No.7790 of 2020, there are 29

petitioners who have raised a similar plea about the

notification that has been issued. They also contend that in

view of their long service as contract lecturers, they are

entitled to regularization.

In WP.No.8584 of 2020, there are 42 petitioners. All of

them raised similar grounds. They have been working as

contract lecturers and they have been recruited through a

valid selection process. Therefore, it is argued that all the

petitioners are entitled to regularization.

In WP.No.20811 of 2019, two petitioners, who are

claiming to be physically dis-advantaged people have filed the

writ petition questioning the notification 23 of 2018 on the

ground that para 4.2 of the notification is illegal and contrary

to the rights given to the physically challenged people under

the Rights of Persons with Disabilities Act, 2016 ( for short

„2016 Act‟). The prayer is to declare that the A.P. Technical

Education Service Rules, 2005 and in particular Rule 4 is

illegal and to direct the respondents to issue a fresh

notification by providing 4% reservations. In this case also,

the challenge is to the recruitment proposed to be made in

notification 23 of 2018. These are the essential writ petitions

that have been filed questioning this notification.

Apart from this, WP.No.13087 of 2021 has been filed by

40 petitioners questioning the inaction of the respondents in

finalizing the selection and making appointments pursuant to

notification 23 of 2018. These petitioners have appeared for

the examination, were selected in the same and were called

for the oral interview. They urge that despite the tests

conducted in March, 2020 and the oral test conducted in

March, 2021, their results are not declared. They also

question the right of the petitioners in the other writ petitions

to claim regularization.

These are the writ petitions which have been taken for

hearing.

Counters have been filed by APPSC and also the State.

The essential defence raised is that the petitioners are not

entitled to regularization. It is pointed out that since the

petitioners are not working against a sanctioned post, they

cannot, as a matter, claim regularization. Both the State and

the APPSC point out that earlier notifications were already

issued for recruitment of lecturers in polytechnics and that

the petitioners have never questioned the same. Therefore,

they urge on the ground of estoppel etc., that the petitioners

are not entitled to any relief. They also point out that the

notification was issued in December, 2018, and that at the

last minute, these writs are filed and the entire procedure is

being stalled. It is submitted on behalf of the respondents

that a proper public recruitment through notification is the

only recognized mode of recruitment and the entire procedure

is being stalled on the tenuous ground that the petitioners

who worked as contract lecturers are entitled to

regularization. It is submitted that till the rights of the

petitioners are crystallized, they cannot seek further remedies

from this Court.

The learned counsel appearing for the respondents also

point out that regularization is an exception and not the rule.

Only if all the conditions stipulated by the relevant regulation

and the settled law are fulfilled, the petitioners are entitled to

regularization. If they are not entitled to regularization, they

cannot seek a relief against the notification dated 31.12.2018.

As far as the persons with physical disabilities are concerned,

it is submitted that the total recruitment under this

notification is for 405 posts (95 carry forward and 310 fresh

vacancies). Therefore, even if the 4% reservation as per the

2016 Act is to be given, at best, 17 or 18 posts alone should

be reserved for the physically challenged and the entire

process cannot be stalled.

Case law is also relied upon by all the learned counsel

for the petitioners and the respondents. It is vehemently

argued by the counsels for the petitioners that the

constitution Bench judgment in Umadevi's case (1 supra)

and the other clarificatory judgment of the Hon‟ble Supreme

Court reported in State of Karnataka and Ors. v. M.L.

Kesari.2 apply to the facts of the case.

(2010) 9 SCC 247

Respondents on the other hand submitted that basing

on the very same case law that the decision in Umadevi's

case (1 supra) provided for a one time exercise and the

petitioners never demanded the same earlier. They point out

that earlier notifications were issued in the last few years and

the petitioners never challenged the same or even participated

in the same. They allowed the recruitment to go ahead. It is

also argued that the recruitment in the case of petitioners

(except those in WP.No.20811 of 2019) is not a proper

recruitment at all for the purpose of regularization. It is

pointed out that there are no sanctioned posts against which

the petitioners in all these cases had worked as the contract

lecturers. On the basis of the case law it is submitted that a

mere long period of work does not give them the right to seek

regularization. Hence, it is submitted that the petitioners are

not entitled to any relief and that great loss is being caused to

the respondent-State because of the delayed filing of the writ

petitions and the orders that have been obtained.

These are the summarized submissions of the learned

counsels - Sri Srinivasa Rao Bodduluri, Sri S.Harinath Reddy,

Ms.Yashoda, Sri G.V.L.Murthy, Sri Giri Babu Marthy,

learned counsel for the petitioners, Sri N.A.Ramachandra

Murthy, learned standing counsel for APPSC and the

Government Pleader for Services-III for respondents.

In WP.No.20811 of 2019, Sri G.Tuhin Kumar argued for

the petitioners.

COURT: After hearing all the submissions, this Court is of

the opinion that the following issues/points arise for

determination:

(a) Whether the petitioners (other than the petitioners in

WP.No.20811 of 2019) are entitled to claim

regularization of their services?

(b) Whether they are estopped from seeking a relief

against the notification 23 of 2018 dated 31.12.2018 by

virtue of their conduct ?

(c) Whether the physically challenged petitioners in

WP.No.20811 of 2019 are entitled to a relief of fresh

notification and other reliefs.

The first question that arises for decision in these matters

is, whether the petitioners are entitled to regularisation. The

law on the subject is very well settled and as mentioned

earlier, both the parties relied upon a judgement of the

Constitution Bench of India in Umadevi's case (1 supra).

The decision given in the case of Umadevi has been clarified

by the Hon‟ble Supreme Court of India in M.L. Kesari's case

(2 supra) and many other cases. Since the law is well

settled, this Court does not wish to reproduce all the

passages. However, in M.L. Kesari's case, the judges of the

Supreme Court clarified the issue categorically and clarified

the two exceptions to the general principles against

regularization. These are contained in paras 7(i) and 7(ii) of

the judgement which are reproduced below:

7. It is evident from the above that there is an exception to the general principles against `regularization' enunciated in Umadevi, if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal.

In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

(ii) The appointment of such an employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.

This Court is therefore proposing to examine the issue in

this case against the backdrop of the Constitution Bench

judgement in Umadevi's case (1 supra) as further explained

in M.L. Kesari's case (2 supra).

As per para 7(i) reproduced above, for an employee to be

considered for regularization, he should have worked for 10

years or more in a duly sanctioned post without any Court

order in its favour. The respondent-State has gone on

record and filed its counters, wherein it is very clearly

reiterated that the posts against which the petitioners are

working are not sanctioned posts. Even the APPSC has

adopted the same line. Despite the clear and categorical

assertion made by the respondents in their counters, the

petitioners have not filed any document to show that the

respondent-State has sanctioned these posts.

As per the settled law on the subject, a sanctioned post is

created by the Government based on its power derived from

the Constitution of India/enacted laws or powers that are

delegated further. Article 309 of the Constitution of India

gives the power to the State to sanction these posts. Either

the Union Government or the State Government through

Statutes, Rules etc., can create these posts by providing a

proper and a formal sanction. In the case on hand, there is

no material placed before this Court to show that these posts

are actually sanctioned posts. The burden which lies on the

petitioners is not discharged. No rejoinder has also been filed

to rebut the stand of the State/APPPSC on this issue. The

mere fact that they were appointed in a temporary post/ad

hoc post does not lead to a conclusion that they are

appointed against "sanctioned posts" In view of the fact that

the appointments are not made against a sanctioned post,

this Court has to hold that the appointment is illegal in line

with para 7.2 of M.L. Kesari's case (2 supra).

The second issue which is raised and strongly argued by

the counsel for the petitioners is that the petitioners put in

long years of service after being recruited through a proper

procedure of selection On the other hand, the State has

clearly and categorically taken his stand that as per Rule 4 (b)

of the State and Subordinate Service Rules, employment can

only be by direct recruitment and not by any other method.

Coming to the post of a lecturer in the Government

Polytechnics, it is clearly urged that as per G.O.Ms.No.178,

there are only two methods of appointment, one by direct

recruitment and other by promotion in the ratio of 90:10.

The State has asserted that the petitioners, who were

employed as contract employees and were not selected

through any competition, written examination, interview etc.,

cannot claim to be regularly appointed. It is also mentioned

in the counter filed that the only procedure adopted in the

petitioner's selection was that their marks were scrutinized by

a committee. These marks are the marks obtained by the

petitioners in the qualifying examinations. Therefore, it is

asserted in the counter that the three member committee only

verified the certificates at the examination and appointed the

petitioners. It is urged very clearly that the petitioners are

not validly appointed. Paras 12 to 17 of the counter in

WP.No.15579 of 2019.

The petitioners have also filed a copy of notification like the

one dated 03.06.2011, which clearly spells out that the

appointments are temporary and will be terminated as and

when selected candidates are made available for appointment

against the vacancies. Similarly, in WP.No.7790 of 2020 also,

copies of the orders issued to the petitioners are also filed.

The original G.O.Ms.No.138 dated 01.10.2005 is also filed

which clearly states that 315 faculty in Engineering and Non-

Engineering and 200 workshop vacancies are permitted to be

appointed on contract basis. Rule 9 of the A.P.State and

Subordinate Service Rules is also highlighted in the G.O. It

is made clear that a person appointed under Rule 9 cannot be

considered to be a member of the State services. The tenure

of contractual appointments etc., are clearly specified. It is

also clarified that the appointee will not be entitled to other

allowances like Dearness Allowance, LTC, Medical Treatment,

Pension etc. This was followed in all the subsequent orders

also. The appointment orders issued to some of the

candidates are also filed. For example, the appointment order

to the first petitioner in WP.No.7790 of 2020 clearly specifies

that she has been appointed on contract basis, on purely

temporary basis and is not a member of the service. It is

made clear that the contractual appointment can be

terminated by a one month‟s notice. The petitioner was also

directed to execute an agreement agreeing to the terms and

conditions. Similarly, agreements were entered into with

many candidates and they are filed as documents.

In the light of the above, this Court is of the opinion that

with their eyes wide open, the petitioners had entered into

these contracts for appointment. These contracts/agreements

make it doubly clear that the petitioners were not employed

against a post by a due process of selection/exam. In fact,

in para 44 of Umadevi's case (1 supra), the Constitution

Bench noticed the fact that a person who enters into such an

engagement is aware of the consequences and of the

agreement that he has entered into. The Constitution Bench

clearly held that a party in such a case enters into an

agreement with his eyes wide open. Later, the Supreme

Court clearly held on this ground alone, it would not be

appropriate to jettison the constitutional scheme of

appointments. The same is also stated in paragraphs 43 and

47 of Umadevi's case. As far as the constitutional scheme of

appointment is concerned, the Constitution Bench clearly

dealt with the same in paragraphs 11 to 13 of the judgement,

wherein it is clearly held that only if a proper recruitment is

done through the public service commission etc., can it be

said that the parties were appointed under a due process of

selection as envisaged by the constitutional scheme. In this

Court's opinion the mere publication of an advertisement

does not make the petitioners appointment a valid

appointment as per the constitutional scheme.

The earlier order in State of Haryana and Ors. v.

Piara Singh and Ors.3 was also approved to a large extent in

the judgement of the Constitution Bench. Ultimately, in para

43, it was held that unless the appointment is in terms of the

relevant rules and after a proper competition among qualified

persons, the same would not confer any right on the

appointee. If it is a contractual appointment, the appointment

comes to an end at the end of the contract. It was also

clarified that merely because a temporary employee continued

beyond the term of his appointment, he would be absorbed

into regular service and made permanent merely on the

strength of such continuance, if the original appointment was

not by a "due process "of selection.

As mentioned earlier in this judgement, many of the

issues that are raised by the learned counsel for the

petitioners are in fact answered by the judgement in

Umadevi's case (1 supra) itself. The subsequent clarification

in the case of M.L. Kesari's case (2 supra) carries the issue

forward. The proper method of selection that is needed is as

per the notification like in this case. There should be an

advertisement/wide publicity, examination, interview or the

like to prove that there was a competitive testing/elimination

process after a proper screening of the applicants. This is the

approved/recognized scheme/procedure for appointment.

(1992) 4 SCC 118

Only if such a procedure is followed, it can be said that

petitioners were "duly appointed".

In the opinion of this Court, the petitioners failed to prove

both the important requirements that are mentioned in

Umadevi and M.L. Kesari's cases, namely, that they were (a)

recruited in duly sanctioned posts and (b) that they were

recruited by a proper system of selection.

Conduct of the petitioners - A reading of the counter filed

by the APPSC shows that the Government of Andhra Pradesh

gave permission to fill 405 posts through direct recruitment.

Applications were invited on 06.02.2019 to 27.09.1990.

58,178 applications were received. A written examination

was held from 12.03.2020 to 15.03.2020. After the

examination, the successful candidates were called for an

interview in the ratio of 1:2. The schedule was fixed on

02.03.2021 to 26.03.2021. In view of these various writ

petitions, the issue is still pending and it could not be

finalized till date. These facts cannot be lost sight of. The

practice of filing writ petitions at the last minute and stopping

the selections is causing great loss to the APPSC/the State

also. In addition, it is also important to note that the

respondents have asserted that earlier also a number of

notifications were issued but the same were not challenged.

This is also not rebutted by the petitioners. In para 7,8,11 of

the counter in WP.No.15579 of 2019, it is clearly spelt out

that six (6) notifications were issued for these posts earlier in

the period 2006-2012 and about 1000 posts of lecturers were

filled. Similar clear assertions are made in the counter in

WP.No.7790 of 2012. These are not denied or rebutted.

Hence this Court holds that the conduct of the petitioners

debars/estops them from challenging the present notification

of 2018. The rules of estoppel, acquiescence and standing by

are clearly applicable. This conduct thus disentitles them

from claiming any relief now.

However, insofar as WP.No.20811 of 2019, this Court is of

the opinion that the petitioners are entitled to a certain relief.

The notification issued in the opinion of this Court did not

look into the 2016 Act. The counter affidavits filed also

indicate that the State wanted to take appropriate steps in

this matter by changing the rules etc. This Court is of the

opinion that staying the entire process of selection of the

2018 notification at this stage is not called for. The interest

of the State and the need for finalizing the selection of

lecturers is also important. Therefore, by balancing the

interests of both parties, 4% of the posts advertised shall not

be filled for now. There shall be a direction in terms of

sections 33 and 34 of 2016 Act, to the respondent-State

Government to carry out the necessary exercise i.e to

constitute an expert committee with representatives of the

persons with benchmark disability for identification of such

posts and their suitability etc for these jobs and to complete

the same within four (4) months. After carrying out the

necessary study and based on the report of the expert

committee, the State is directed to proceed with the further

steps in accordance with section 34 for recruitment of

persons with benchmark physical disabilities for these 4%

posts only. After this exercise is completed, a fresh

notification or a supplementary notification must be issued

by APPSC with the same qualifications, age requirements as

in the impugned notification ( 23/2018) for the physically

challenged and the supplementary exam/interview etc., must

be conducted for the posts. The petitioners in W.P.No.20811

of 2019 and others who meet the criteria should be permitted

as a special case to participate in the selection process in the

supplementary notification for these 4% posts. Needless to

say, they must have the necessary benchmark disability. To

this limited extent, this W.P.No.20811 of 2019 is allowed and

other reliefs/claims are all negatived.

Rule of 4 of the A.P.Technical Education Service Rules is

also held contrary to the provisions of 2016 Act and is set

aside.

With these observations, WP.No.20811 of 2019 is partly

allowed. WP.No.13087 of 2021 is also allowed. The APPSC is

directed to take steps to complete the recruitment process.

All other writ petitions are dismissed.

As a sequel, the miscellaneous petitions if any pending

shall stand dismissed.

___________________________ D.V.S.S.SOMAYAJULU, J

Date:03.11.2021 Note: L.R. copy be marked.

KLP