Andhra Pradesh High Court - Amravati

A.Sarala Kumari, vs State Of Andhra Pradesh, on 27 July, 2022

          THE HON'BLE DR. JUSTICE K. MANMADHA RAO

                   WRIT PETITION No.11360 OF 2021

ORDER:

This Writ Petition is filed under Article 226 of the Constitution

of India, seeking the following relief:

".....to issue a Writ, Order or direction more particularly one in the nature of Writ of mandamus declaring the action of the 2nd respondent vide his Letter No.3014/UE/A2/2017, dt 15.04.2021 rescinding the ratification orders issued vide Government Letter No. 3014/UE/A2/ 2017, dt 05.12.2018 as arbitrary, illegal and violative of Articles 14, 16 and 21 of the Constitution of India and provisions of A.P. Universities Act 1991 and consequently set aside the same and direct the respondents to release the retirement benefits of Petitioners 3, 4, 5, 6, 7 and 11 including the petitioners 15 and 16, who are the Legal Heirs of Late Deenadayal, Special Increments due to the petitioners under Automatic Advancement Scheme with interest 12% p.a grant costs of proceedings and pass such other orders...."

2. Heard Mr. M. Pitchaiah, learned counsel for the petitioners and

Learned Government Pleader for Services-I for the respondents 1, 3, 5

and 6; learned Government Pleader for Services-III for 2nd respondent;

Ms. A. Swarna Seshu, learned Standing Counsel appears for 4th

respondent; Smt. P. Radhika, learned counsel for the 7th respondent.

3. The precise case of the petitioners are that they were given

regular appointments as Office Subordinates and later they promoted

as Junior Assistants and Store Keepers in the year 2005 and 2007.

The petitioners were appointed in a sanctioned post by the 7th

respondent and they have 31 years of service. The 2nd respondent

addressed a letter dated 05.12.2018 to the 7th respondent, ratifying

the action of the 7th respondent, inter alia observing that they were

appointed against clear vacancies. The 3rd respondent issued Memo

dated 04.03.2021 agreeing for the proposal fo the 7th respondent for

dropping of audit objections and directing the 5th respondent to take

appropriate action. The 2nd respondent issued a letter bearing No.

3014/E/A2/2017, dated 15.04.2021, rescinding the ratification order

dated 05.12.2018 and directing the 7th respondent to take further

action, which is challenged in the present writ petition.

4. Per contra, 2nd respondent filed counter affidavit denying all

material averments made in the writ affidavit and mainly contended

that the 7th respondent suppressed the facts in the letters dated

03.11.2016 and 01.07.2017 and misdirected in another letter dated

07.08.2017 addressed to the 2nd respondent and obtained ratification.

Consequent on raising objection by the respondents 5 and 6, the 7th

respondent approached the 2nd respondent for finance concurrence on

the ratification orders issued by the 2nd respondent. The 2nd

respondent in turn have examined the proposal afresh and noted that

none of the petitioners were appointed against the sanctioned posts

on the daily wage appointment. The 7th respondent appointed the

petitioners without notifying/ advertising the posts, constituted

selection committee etc., which is mandatory to be followed under

Service Rules of the Non-Teaching staff. The appointments were made

without complying with the provisions of Sections 4(b) and (c) of Act 2

of 1994, which reads as:

4(b) from a panel prepared by any selection committee constituted for the purpose in accordance with the relevant rules and orders issued in that behalf; and

4(c) from the candidates having the requisite qualification and sponsored by the Employment Exchange in other cases where recruitment otherwise than in accordance with clauses (a) and (b) is permissible.

The University Authorities have used the word appointment to

misguide everybody instead of using the word regularization. The

appointments made without complying with Section 4(b) and (c) of Act

2 of 1994 are nothing but regularization of services of the petitioners

in violation of Section 7 of Act 2 of 1994 and also in violative of

Judgment of Hon'ble Apex Court in Manjulabashini case. The 7th

respondent failed to show the notification, when the vacancies arose

and when the advertisements for inviting the applications from the

candidates, for which no records are available with the 7th

respondent. The 7th respondent has not discussed the notification

given, selection committee recommendations, in which vacant post

the appointment was made etc., in the appointment orders to the

petitioner either in initial level or subsequently. Hence the 7th

respondent has simply regularized the services of all the petitioners

without following the recruitment procedures. In the absence of

proper procedure, the appointments of petitioners recruited on daily

wages/ NMR basis in the 7th respondent university clearly shows that

the 7th respondent regularized the services of the petitioners in

violative of Act 2 of 1994 and hence requested to dismiss the writ

petition.

5. Per contra, 7th respondent filed counter affidavit denying all

material averments made in the writ affidavit and mainly contended

that the services of the petitioners were initially taken on daily wages/

consolidated basis during the year 1989 and none of the

appointments were made against the sanctioned posts, therefore the

petitioner cannot claim any regularization or any benefits. It is further

contended that in the course of Audit, the 1st respondent has objected

in 1997-98 to the appoints in view of A.P (Regularization of

Appointments to Public Services and Rationalization of Staff Pattern

and Pay Structure) Act, 1994 (in short "Act 2 of 1994"), so also in

terms of G.O.Ms.No.212, dated 22.04.1994. The case law relied on by

the petitioners is not at all applicable to this case, in view of special

enactment i.e Act 2 of 1994 applicable to State of A.P, therefore the

petitioners are not entitled to any claim on the basis of State of

Karnataka Vs. Umadevi1. Hence the writ petition deserves to be

dismissed.

6. Learned counsel for the petitioners placed on the record the

impugned Letter No. 3014/UE/A2/2018, dated 05.12.2018, wherein

it is stated as follows:

" In circumstances reported by the Registrar, Sri Padmavati Mahila Visvavidhyalayam, Tirupati in references 1st & 3rd cited, Government hereby ratify the action taken by the University for appointment of Eighteen (18) employees after enactment of Act 2 of 1994, since they were appointed in clear sanctioned vacancies by following the Rule of Reservation and were appointed by conducting interviews. The expenditure on account of this is being met from the block grant of the university would be continued as such including person, gratuity etc.,

7. As could be seen from the Memo dated 04.03.2021, it is

mentioned at Paragraph 3(viii) that the University addressed letters

dated 18.03.2019, 16.04.2019 and 10.06.2019 to the Principal

Secretary to Government, Higher Education to obtain the concurrence

of the Finance Department on the letter dated 05.12.2018 as there

will be no additional financial burden on the Government. Further at

Paragraph 4 it is stated that Government, after careful examination in

(2006) 4 SCC 1 (DB)

the matter based on the material available on hand, agreed to the

proposal of the Registrar, SPMVV for dropping of audit objections.

8. Further learned counsel for the petitioners placed reliance on

the decisions of Division Bench of erstwhile High Court of A.P in

"U.V.S.R.Prasad and Others Vs. State of Andhra Pradesh and

Another"2 wherein it was held as follows:

"16. It is tried that the law declared by the Supreme Court is binding throughout the country under Article 141 of the Constitution of India. It is noteworthy that by the time of judgment in Uma Devi's case (Supra) was rendered, the provisions of Act 2 of 1994 and G.O.Ms.No.212, dated 22.04.1994 were in existence. The Supreme Court, while denouncing the practice of regularization and absorption of persons, who entered into service through back doors by giving a go-bye to the due procedure prescribed for appointments to public posts, consciously ordered for one-time absorption/ regularization of those, who were working for a period of not less than 10 years. It has given directions in this regard to all the State Governments and also Union of India. The Supreme Court is presumed to be conscious of various State enactments such as Act 2 of 1994 and executive orders such as G.O.Ms.No.212, dated 22.04.1994, while giving directions in Para No.53 of the judgment in Uma Devi's case (supra). But still, it has not made any exception in favour of the States where State enactments banning regularization absorption exists. Therefore, Act 2 of 1994 and G.O.Ms.No.212, dated 22.04.1994, do not settle down the width and the judgment of Manjula Bashini's case (supra), does not lower the trajectory of the directions issued by the Supreme Court in Para 53 of the Judgment in Uma Devi's Case (supra). It is therefore, not permissible for the respondents to take shelter under Act 2 of 1994 and G.O.Ms.No.212, dated 22.04.1994, to deny regularization to the petitioners, who have admittedly, satisfied the criteria laid down in Para No.53 of the judgment in Uma Devi's case (supra).

9. It is observed that the petitioners 3 to 7 and 11 have retired

from services and at this stage the objection raised by the official

respondents that too after long lapse of time is unwarranted.

2018(2) ALD 282 (DB)

10. However, following the decision cited supra, this Court in the

interest of justice, considering the submissions of the learned

counsel, inclined to allow the writ petition, while declaring the action

of the 2nd respondent vide Letter No. 3014/UE/A2/2017, dated

15.04.2021, rescinding the ratification orders issued vide

Government Letter No. 3014/UE/A2/2017, dated 05.12.2018 as

illegal, arbitrary and same is hereby set aside. Further the

respondents are directed to release the retirement benefits of