The State Of Andhra Pradesh vs A Sarala Kumari
2023 Latest Caselaw 1858 AP

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

                 WRIT APPEAL No.17 of 2023

JUDGMENT: (per D.V.S.S.Somayajulu, J)

       This Court has heard the learned Government Pleader

for Higher Education appearing for the appellant and Sri M.

Pitchaiah, learned counsel for the respondents.

2) One of the essential grievances urged by the

learned Government Pleader for Higher Education is that

despite serious issues, both of fact and law, which raised in

the counter affidavit, the learned single Judge disposed the

matter purely on the basis of two earlier judgments. Learned

Government Pleader points out that in the counter filed by

the appellant-2nd respondent a large number of issues were

raised, which have a fundamental bearing on the merits of

the matter. It is asserted that the 22nd respondent -

University appointed the writ petitioners (herein respondents

1 to 16) without advertising to the post or following the due

procedure. The lack of records pertaining to the writ

petitioners was also pointed out. Serious issues about the

failure to follow the procedure were also raised. He points

out even in the counter affidavit filed by the 22nd

respondent-University it is pointed out that the writ

petitioners are not entitled to regularization as they were

appointed on daily wage basis and none of the appointments

are made against the sanctioned posts. Learned Government

Pleader, therefore, submits that while the Constitution

Bench judgment and the subsequent judgments hold the

field, the facts of this case have to be ascertained, discussed

and then either accepted or overruled. He points out that if

the impugned judgment is seen it merely discussed the

contentions of parties till paragraph 8; and in paragraph 9 it

is noted that some of the writ petitioners have retired and

ultimately the conclusions are reached allowing the Writ

Petition. Therefore, he submits that this Court should set

aside the impugned order or in the alternative remand it for

fresh hearing in accordance with law since none of the

essential issues or legal contentions were considered.

3) In reply, Sri M. Pitchaiah, learned counsel for the

unofficial respondents asserts that the respondent-University

is an autonomous institution and the State cannot interfere

in the appointments. He also points out that the essential

issues raised were considered before the impugned order was

passed. He also argues that para 44 of the leading judgment

of the State of Karnataka v Umadevi1 is applicable and

the judgment was also considered by the learned single

Judge in the course of his order. Subsequent judgment is

also considered before the conclusions were reached.

Therefore, he submits that the essential facts were taken into

note before the impugned orders were passed. He, therefore,

submits that this is not a fit case to dispose of the writ

appeal or even to remand the same. Without prejudice to his

contentions, he also submits that there is no need to remand

the matter because this Court can exercise powers akin to

Order XLI Rule 24 of C.P.C., as adequate material is available

and decide the matter on its merits.

4) This Court after considering the submissions

made notices that a reading of the counter affidavit of the

appellant-2nd respondent, in particular, makes it clear that

they have raised various issues about the manner in which

(2006) 6 SCC 1

the writ petitioners were appointed and also about the so

called regularization.

5) In addition, the respondent-University had also

clearly stated certain facts in its counter affidavit, which also

in the opinion of this Court, have a bearing on the issues

raised. As pointed out all these facts and factors are not

discussed in the course of the impugned judgment. It is a

fact that the writ petitioners were regularized. As per the

learned counsel Mr.Pitchaiah, once they are regularized in

line with the earlier judgments cited this Court should not

reopen the matter again and upset the settled position. But

a reading of the facts in this case would suggest certain basic

issues which have a bearing on the entire matter have been

raised in the counter affidavit but they have not been

considered or dealt with. Therefore, this Court is not going

into the merits of the matter, nor are the implications of the

same etc., are not being discussed in this order.

6) This Court is convinced that this is a fit case in

which an order for remand should be made. The issues of

fact and law which are raised must be discussed in the final

judgment. They should either be negatived or accepted,

leading to a final conclusion. The same is found lacking.

7) Without expressing anything on the merits of the

matter, this Court is of the opinion that the Writ Appeal

should be allowed for the purpose of remand.

8) Accordingly, the Writ Appeal is allowed setting

aside the impugned order, dated 27.07.2022, in

W.P.No.11360 of 2021. The matter is remanded for fresh

hearing and disposal on merits as expeditiously as possible.

There shall be no order as to costs.

9) Consequently, pending miscellaneous

applications, if any, shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J

________________ V. SRINIVAS, J Date: 11.04.2023.

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