Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh, vs Vrsvn Sambasiva Rao, on 7 October, 2021
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
WRIT APPEAL No. 489 of 2021
(Taken up through video conferencing)
The State of Andhra Pradesh, rep. by the
Principal Secretary to Government, Higher
Education Department, Secretariat, Government
of Andhra Pradesh, Hyderabad and another .... Appellants
Versus
V.R.S.V.N. Sambasiva Rao,
S/o V.V.S.Satyanarayana Murthy,
aged 46 years, Occ:un-aided Part Time
Lecturer in Vocational Course VEC,
Veeravasaram Junior College,
Bhimavaram, W.G. Dt., and another .... Respondents
Counsel for the appellant : Mr. K.V. Raghuveer
Government Pleader
Counsel for respondent No.1 : Mr. Ch. Dhanamjaya
Counsel for respondent No.2 : None appeared
Date of hearing : 15.09.2021
Date of Pronouncement : 07.10.2021
JUDGMENT
(Per Ninala Jayasurya, J)
Assailing the order dated 05.03.2020 passed by the learned Single Judge in
W.P.No.4703 of 2016 directing the respondent-State to regularize the services of the writ
petitioner, the present appeal came to be filed.
2. The petitioner, a Diploma Holder in Electrical and Electronics Engineering, was
appointed as Part-Time Junior Lecturer in Vocational Course i.e., Electrical Domestic
Appliances and Re-winding (EDAR) in the 3rd respondent-College on 31.07.1993. The
said course was sanctioned to the College along with another course i.e., Radio and T.V.
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under the Centrally Sponsored Scheme of Vocationalization of Secondary Education.
The Director of Intermediate Education, Hyderabad, vide proceedings in Rc.No.977/VC
1-4/90 dated 10.09.1990 sanctioned one post each for Full-Time Lecturer, Part-Time
Lecturer and Lab Attender for the two courses. The petitioner's appointment was made
against the sanctioned post of Part-Time Lecturer in the 3rd respondent-College, which is
a Private Aided Institution.
i) The petitioner filed W.P.No.18614 of 2010 seeking minimum scale of pay, and by
an order dated 02.08.2010, an interim direction was granted to consider the case of the
petitioner for grant of minimum scale of pay. As the said order was not complied with,
the petitioner filed C.C.No.760 of 2011 and thereafter, the Commissioner of Intermediate
Education vide proceedings dated 24.08.2011 rejected the petitioner's case for extending
the minimum scale of pay, on the ground that the benefit of minimum scale of pay was for
the Lecturers working in the Government Junior Colleges and not for those working in the
Private Aided Junior Colleges.
ii) Challenging the said proceedings dated 24.08.2011, the petitioner filed
W.P.No.18539 of 2013 seeking to declare the rejection for extending the minimum scale
of pay and not considering his case in terms of G.O.Ms.No.362, Education (CE.III-1),
dated 07.10.1994, as illegal and arbitrary. Pending consideration of the said writ petition,
the petitioner filed W.P.M.P.No.22649 of 2013 seeking for an interim direction to the
respondents therein to consider his case for extending the minimum scale of pay, as per
G.O.Ms.No.362, Education (CE.III-1), dated 07.10.1994, and a direction dated
12.07.2013 was accordingly granted as prayed for by the petitioner. As the said orders
were not considered by the respondents therein, the petitioner filed C.C.No.1927 of 2013.
Thereafter, vide Memo No.14371/1E/A2/2014 dated 28.04.2015, the request of the
petitioner for granting minimum time scale was rejected.
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iii) Challenging the rejection order dated 28.04.2015 and seeking regularization of
services from the date of his appointment and other reliefs, the petitioner filed writ
petition being W.P.No.4703 of 2016. In the affidavit filed in support of the writ petition,
while referring to the judgment of the Hon'ble Supreme Court in
the State of Karnataka Vs. M.L. Kesari, reported in (2010) 9 SCC 247, it was pleaded
that the petitioner is also entitled for regularization of services in terms of the above said
judgment, since he was appointed as Part-Time Lecturer temporarily, which cannot be
considered to be illegal and as he was being continued in a sanctioned post continuously
for a period more than ten years. It was also stated that the candidates, who are appointed
in the same College, were regularized vide proceedings in Rc.2327/JC5-1/95 dated
13.04.1998.
3. A counter-affidavit was filed by the 2nd respondent on behalf of respondent Nos.1
and 2 inter alia stating that the petitioner was appointed as Part-Time Junior Lecturer in
E.W. & S.E.A. (Vocational) on 31.07.1993 by the Management of the 3rd respondent-
College without any prior permission from the Competent Authority. Referring to the
earlier writ petitions filed by the petitioner, the orders passed therein and the
consequential orders passed by the authorities, it was stated that pursuant to the interim
orders dated 12.07.2013 in W.P.No.18539 of 2013, the request of the petitioner for
minimum scale of pay was again examined in terms of G.O.Ms.No.362 dated 07.10.1994
and was found not feasible to comply with, since the petitioner had not fulfilled the
conditions laid down in the said G.O., which was also not in force.
i) It was further pleaded that the Government vide G.O.Ms.No.328 dated 15.10.1997
issued certain Guidelines for regularization of Part-Time Junior Lecturers and only those
who have put in a service of three academic years as on 30.04.1991 or five academic
years as on 25.11.1993, as the case may be, and also continuing in service as on the date
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of issue of the said orders are eligible for regularization. It was also stated that as the
petitioner was appointed only on 31.07.1993, fulfillment of conditions prescribed for
regularization in terms of G.O.Ms.No.328 dated 15.10.1997 does not arise and therefore,
the petitioner is not eligible for regularization. It was also stated that the petitioner's
claim for regularization of services in terms of the judgment of the Hon'ble Supreme
Court in M.L.Kesari's case is not tenable, as the orders were issued in the context of
matters pertaining to the State of Karnataka, but not to the State of Andhra Pradesh.
4. The 3rd respondent-College filed a counter-affidavit inter alia stating that the
Government of Andhra Pradesh vide G.O.Ms.No.353 Education (IE-2) Department dated
16.11.1989 sponsored the scheme of Vocationalization of Secondary Education and
issued Guidelines for implementation of the same by sanctioning funds to meet the
expenditure for the said scheme. In the said G.O., the Government also accorded sanction
for creation of 314 new courses as indicated in the Annexure to the said order, specifically
stating that appointment shall be on Part-Time basis. It was stated that the petitioner was
appointed as Part-Time Junior Lecturer in EDAR (Vocational Course) in the sanctioned
post on 31.07.1993 informing that the same is purely temporary. It was admitted in the
counter-affidavit that two other candidates, who were appointed in the 3rd respondent-
College under Centrally Sponsored Scheme of Vocationalization of Secondary Education,
were regularized vide proceedings in Rc.No.2327/JC5-1/95 dated 13.04.1998 issued by
the Director of Intermediate Education, and that they have been continuing in their
respective posts.
5. Against the background of the above stated pleadings, the matter came up for
consideration before the learned Single Judge and the order impugned in the present
appeal came to be passed, the relevant portion of which may be re-produced for ready
reference as under:
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"2. Heard the counsel for the petitioner, the Government Pleader for
Education appearing for the respondents 1 & 2, and Sri K.Chidambaram, the
counsel appearing for the 3rd respondent.
3. The counsel for the petitioner submits that the petitioner joined in service
on 31.7.1993 and has been continuing since then, but his services were not
regularized and the impugned order No.14371/1E/A2/2014, dated 28.4.2015
got to be issued stating that as per G.O.Ms. No.362, Education (CE-III-1)
Department, dated 07.10.1994, the petitioner is not eligible for regularization,
as he did not complete five years of service as on 25.11.1993, as specified by
G.O.Ms.No.212, Finance & Planning (FW.PC.II) Department, dated
22.4.1994. But the counsel for the petitioner relies on the judgment in State of
Karnataka v. M.L. Kesari, wherein the Supreme Court observed that the
object behind direction in paragraph No.53 of State of Karnataka v. Umadevi
is two-fold. First is to ensure that those who have put in more than ten years of
continuous service without the protection of any interim orders of courts or
tribunals, before the date of decision in Umadevi was rendered, are
considered for regularization in view of their long service. Second is to ensure
that the departments/ instrumentalities do not perpetuate the practice of
employing persons on daily wage/ad-hoc/casual for long periods and then
periodically regularize them on the ground that they have served for more
than ten years, thereby defeating the constitutional or statutory provisions
relating to recruitment and appointment. The true effect of the direction is that
all persons who have worked for more than ten years as on 10.4.2006 (the
date of decision in Umadevi) without the protection of any interim order of
any court or tribunal, in vacant posts, possessing the requisite qualification,
are entitled to be considered for regularization.
4. In this case also, the undisputed fact is that the petitioner is working since
31.7.1993 continuously without any break and he has put in ten years of
service by 10.4.2006 not under any interim order of the Court or the Tribunal.
Hence, the petitioner would be entitled for regularization of his service as
prayed for."
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6. Heard Mr. K.V. Raghuveer, learned Government Pleader for Higher Education, for
the appellants/respondents-State, and Mr. Ch. Dhanamjaya, learned counsel appearing for
respondent No.1/writ petitioner.
7. Mr. K. V. Raghuveer, learned Government Pleader, submits that the order under
assailment is not sustainable either in law or facts. He contends that the learned Single
Judge failed to appreciate the stand of the State in the correct perspective and was carried
away by the arguments advanced by the learned counsel for the petitioner that the
judgment in M.L.Kesari's case referred to supra is applicable to the case of the petitioner.
He strenuously contends that the appointment of the petitioner was made, without any
prior permission from the competent authority and therefore, the order of the learned
Single Judge directing regularisation of services of the petitioner is not tenable. He
further submits that the petitioner was appointed purely on temporary basis, but not
against an aided vacancy.
i) Learned Government Pleader also submits that the petitioner's case for grant of
minimum time scale was considered as per the directions in the earlier writ petitions and
the same was rejected, as he was found ineligible and the present rejection proceedings
dated 28.04.2015 impugned in the writ petition was issued, as it is not feasible for
consideration in terms of G.O.Ms.No.362, Education (CE.III-1) dated 07.10.1994, which
was not in existence, as it was kept in abeyance by the Government vide Government
Memo No.71/CE.III-1/94-6 dated 06.01.1995 and subsequently, superseded by
G.O.Ms.No.328 Education (CE.III) Department dated 15.10.1997. Accordingly, he
submits that the proceedings dated 28.04.2015 cannot be found fault with. He submits
that in view of the specific condition imposed in G.O.Ms.No.328 dated 15.10.1997 that
only those who have put in a service of three academic years as on 30.04.1991 or five
academic years as on 25.11.1993, as the case may be, and also continuing in service on
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the date of issue of the said orders, are eligible for regularization. The petitioner is,
therefore, not entitled for regularization, he contends.
8. Mr. Ch. Dhanamjaya, learned counsel for respondent No.1/writ petitioner, on the
other hand, submits that the order passed by the learned Single Judge is based on the
Judgment of the Hon'ble Supreme Court in M.L.Kesari's case and considering the
undisputed factual position that the petitioner has been working since more than ten years
from the date of his appointment way back in the year 1993, the learned Single Judge had
rightly applied the ratio in M.L.Kesari's case and allowed the writ petition. He also
submits that the learned Single Judge had exercised the discretionary powers directing
regularization of the services of the petitioner having been satisfied that the petitioner is
entitled to the benefit of the judgment of the Apex Court in Secretary, State of Karnataka
Vs. Umadevi, reported in (2006) 4 SCC 1, and under the said circumstances, no
interference is called for by this Court, since there is no illegality or perversity in the
orders passed by the learned Single Judge.
9. This Court has considered the arguments advanced by both the learned counsel and
perused the material on record.
10. Before adverting to the contentions, it would be appropriate to refer briefly, the
relevant Government Orders, which have bearing on the issues falling for consideration
by this Court.
11. In G.O.Ms.No.362, dated 07.10.1994, the Government issued orders making the
scheme of regularization of Part-Time Lecturers working in Government Degree/Junior
Colleges introduced in G.O.Ms.No.166, Education dated 08.06.1994 mutatis mutandis to
the Part-Time Lecturers and Junior Lecturers in all Private Aided Degree, Oriental and
Junior Colleges, providing:
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"that the part-time lecturers who have been working in regular vacancies or
where work justified appointment of regular lecturers for more than 3 years by
30.04.1991 or teaching over 16 periods per week shall be paid the salary
calculated on the minimum scale of pay of Rs.1810-3230(RPS 1986) and
Rs.3640-7580 (RPS 1993) for Lecturers and Rs.1550-3050 (RPS 1986) and
Rs.3110-6380 (RPS 1993) for Junior Lecturers + allowances instead of an
hourly basis."
12. In the said G.O., it was also ordered that as the scheme formulated in
G.O.Ms.No.212, Finance & Planning (Fin.) Department dated 22.04.1994 is more liberal
and as it reflects the intention of the Government for regularization of existing personnel,
who are working on daily wage/NMR etc., which was upheld by the Hon'ble Supeme
Court and extended to Part-time Lecturers working in Government Degree and Junior
Colleges vide G.O.Ms.No.166 dated 08.06.1994 shall be extended to Part-Time
Lecturers/Junior Lecturers, who are working against the posts admitted to grant-in-aid in
all Private Aided Degree, Oriental and Junior Colleges from the date of issue of orders,
subject to certain conditions viz.,
(i) they should have put in five years of service by 25.11.1993;
(ii) they should have 16 hours of work load in a week;
(iii) they should be working in a regular vacancy and;
(iv) they should possess prescribed qualification for the posts of Lecturers,
Junior Lecturers (vocational course);
(v) to extend the minimum pay of the pay scale to the post.
13. The said G.O. was kept in abeyance vide Government Memo No.71/CE.III-1/94-6
dated 06.01.1995 and thereafter, G.O.Ms.No.362 dated 07.10.1994 was superseded by
G.O.Ms.No.328 dated 15.10.1997. A perusal of the said G.O. goes to show that the
Government inter alia approved the scheme for regularization of services of Part-Time
Lecturers/Part-Time Junior Lecturers working in Private Aided Degree/Junior Colleges
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including Oriental Colleges and Junior Colleges with vocational courses in the State, who
fulfill the conditions/norms laid down therein, which, inter alia stipulates thus:
"5. Only those who have put in a service of three academic years as on
30.04.1991 or five academic years as on 25.11.1993, as the case may be, and
also continuing in service on the date of issue of the orders are eligible for
regularization."
14. It may be appropriate to observe here that para 13 of the said G.O. provides that:
"13. All cases will be considered on the basis of the above
Principles/Guidelines and appropriate orders will be passed within a period
not exceeding six months from the date of issue of this G.O. Therefore, this
G.O. will stand automatically annulled after expiry of above mentioned period
of six months."
Though reliance is placed on the said G.O. by the learned Government Pleader, there is
nothing on record to show that as to whether any orders were passed considering the case
of the petitioner for regularization in terms of para 13 of G.O.Ms.No.328 dated
15.10.1997. Be that as it may.
15. It is trite to mention here that where a temporary or ad-hoc appointment is
continued for long, the need and warrant for a regular post can be visualised. In the
counter-affidavit filed by the appellants/respondents, there is no denial to the effect that
the writ petitioner was working from 1993 onwards, nor was a plea taken to the effect
that the post in which he is working is not a sanctioned post or vacant sanctioned post.
16. The learned Single Judge, considering the undisputed fact that the writ petitioner
is working in the 3rd respondent-College from 31.07.1993, directed the
appellants/respondents to regularize the services of the petitioner in terms of the
expression of the Hon'ble Apex Court in Uma Devi's case referred to supra.
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17. A Constitution Bench, in the said case, while dealing with the instances pertaining
to appointments of employees on temporary, contractual, casual, daily-wage or ad-hoc
basis and continuation of their services de hors the Constitutional Scheme of public
employment, made a detailed survey of the legal precedents and opined at Para No.53 of
the said judgment that there may be cases where irregular appointments (not illegal
appointments) of duly qualified persons in duly sanctioned vacant posts might have been
made and the employees have continued to work for 10 years or more but without the
intervention of the orders of the Courts or of Tribunals and the question of regularisation
of the services of such employees have to be considered on merits in the light of the
principles settled by the Hon'ble Supreme Court in the cases referred to and in the light
of the judgment in the said case. The Hon'ble Supreme Court also refers to formation of
a scheme in this regard by the Union of India, State Governments and their
instrumentalities to regularize such employees as one-time measure. The relevant portion
of the said judgment reads as follows:
"53. One aspect needs to be clarified. There may be cases where
irregular appoints (not illegal appointments), as explained in
S.V.Narayanappa [(1967) 1 SCR 128], R.N.Nanjundappa [(1972) 2 SCR 799]
and B.N.Nagarajan [(1979) 3 SCR 937] and referred to in para 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 the orders of the 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 the courts or of tribunals and should further ensure that
regular recruitments are undertaken to fill those vacant sanctioned posts that
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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 bypassing of the constitutional requirement and regularizing or
making permanent, those not duly appointed as per the constitutional
scheme."
18. Though it is the submission of learned Government Pleader that on the earlier
occasions, the petitioner's case was considered and rejected for extending the benefit of
minimum scale of pay, no order appears to have been passed nor any material is placed to
show that the case of the petitioner was considered in the light of the observations of the
Constitution Bench of the Hon'ble Supreme Court for regularization or other applicable
Government Orders dealing with regularization of services of Part-Time Lecturers in
Private Aided Junior Colleges, as one time measure.
19. In M. L. Kesari's case, the Hon'ble Supreme Court had an occasion to consider
the term 'One-time measure" referred to in Umadevi's case and at para No.9 of the said
judgment it was observed thus:
"9. The term "one-time measure" has to be understood in its proper
perspective. This would normally mean that after the decision in
Umadevi(3)1, each department or each instrumentality should undertake a
one-time exercise and prepare a list of all casual, daily-wage or ad-hoc
employees who have been working for more than ten years without the
intervention of courts and tribunals and subject them to a process verification
as to whether they are working against vacant posts and possess the requisite
qualification for the post and if so, regularise their services."
20. Further, while taking note of the fact that even at the end of six months from the
date of decision in Umadevi's case, cases of several daily-wage/ad-hoc/casual employees
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were still pending before the Courts and consequently, several departments and
instrumentalities did not commence the one-time regularisation process, the Hon'ble
Supreme Court further opined as follows:
".....some government departments or instrumentalities undertook the one-
time exercise excluding several employees from consideration either on the
ground that their cases were pending in courts or due to sheer oversight. In
such circumstances, the employees who were entitled to be considered in
terms of para 53 of the decision in Umadevi(3)1, will not lose their right to be
considered for regularisation, merely because the one-time exercise was
completed without considering their cases, or because the six-month period
mentioned in para 53 of Umadevi(3)1 has expired...."
21. The Hon'ble Supreme Court in the said judgment categorically held that "The
one-time exercise should consider all daily-wage/ad-hoc/casual employees who had put
in 10 years of continuous service as on 10-4-2006 without availing the protection of any
interim orders of courts or tribunals". Again at Para No.11, the Hon'ble Supreme Court
in no uncertain terms held that "The True effect of the direction is that all persons who
have worked for more than ten years as on 10-4-2006 [the date of decision in
Umadevi(3) 1] without the protection of any interim order of any court or tribunal, in
vacant posts, possessing the requisite qualification, are entitled to be considered for
regularisation."
22. Even assuming, as contended by the learned Government Pleader, the petitioner's
appointment was not made by the competent authority as alleged, such an appointment
may be irregular, but not illegal, as there is no dispute with regard to qualifications of the
petitioner and that the post is a sanctioned post. In this context, it may be appropriate to
refer to para 7 of the judgment of the Hon'ble Supreme Court in M.L. Kesari's case
wherein it was opined that there is an exception to the general principles against
regularization enunciated in Umadevi's case, if the following conditions are fulfilled:
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(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 of 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 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."
23. The petitioner has completed more than ten years of service as on 10.04.2006 and
the direction issued by the learned Single Judge to regularize the services of the petitioner
on the basis of the judgment of the Hon'ble Supreme Court in M.L.Kesari's case, cannot
be found fault with.
24. In the light of the above legal and factual position, the order of the learned Single
Judge under appeal cannot be viewed as unjust or perverse.
25. Accordingly, the Writ Appeal is dismissed. No order as to costs. As a sequel,
miscellaneous applications, if any, pending shall stand disposed of.
ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J
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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
WRIT APPEAL No.489 of 2021
7th October, 2021
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