Bhagya Jyostna vs State Of Telangana
2022 Latest Caselaw 3759 Tel

THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

                W.P.No. 8178 OF 2015

ORDER:

This Writ Petition is filed by the petitioner seeking

writ of mandamus declaring the action of respondents

in considering the case of the petitioner for absorption

into existing clear vacancy of aided Assistant Librarian

post available in the 4th respondent college which was

fallen vacant due to relinquishment of the said post by

Mrs.K.Bharati on 16.01.1995, as illegal, arbitrary and

to consequently direct the respondents to absorb the

petitioner from unaided post of Library Record

Assistant to post of aided Library Record Assistant in

the existing clear vacancy of 4th respondent college

with all consequential benefits.

2. Heard the learned counsel for the petitioner as

well as the learned Government Pleader for Higher

Education, representing respondents No.1 to 3. There

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was no representation on behalf of the respondent

No.4 college.

3. Brief facts of the case leading to filing of the

present writ petition are that the petitioner was

appointed as a Book Bearer/Record Assistant on

28.01.1991 in the leave vacancy of one Mrs.Sheela

Devraj and later on vide proceedings

ref.No.6258/DBPM/91, dated 01.05.1991, the services

of Mrs.Sheela Devraj, book bearer, was terminated and

in the said vacancy, the petitioner was temporarily

appointed as book bearer from 01.05.1991, on a

consolidated salary of Rs.600/- per month and her

seniority was also fixed at serial No.11, just below

K.Bharathi, book bearer, in modification of seniority

list communicated by the 4th respondent vide its Office

Memorandum No.6090/90, dated 22.09.1990. The

learned counsel for the petitioner submitted that the

Government of Andhra Pradesh has admitted certain

PMD,J W.P.No.8178 of 2015

Junior and Degree unaided colleges to grain-in-aid and

issued orders vide G.O.Ms.No.173, dated 04.05.1991.

Vide the said G.O., the 4th respondent college was also

admitted to grant-in-aid along with teaching and non-

teaching staff with effect from 16.04.1990 with

relaxation of Rule of Communal Reservations and the

Provision of the Employment Acts and Rules.

4. Smt.K.Bharati, who was working in a grant-in-aid

post of Library Record Assistant with the 4th

respondent college got selected to the post of Librarian

in Durga Prasad Banwarilal college and therefore she

left the 4th respondent college and joined as a Librarian

in Durga Prasad Banwarilal Girls Junior College. In

her place, two names including petitioner's name were

forwarded by the 4th respondent college to be absorbed

in the grant-in-aid post of Library Record Assistant

vide letter dated 25.02.1995. The respondent No.2 vide

letter dated 07.07.1995 required certain information to

PMD,J W.P.No.8178 of 2015

be furnished. Further, the petitioner also submitted a

representation through proper channel to the 2nd

respondent on 24.02.1995 to consider her candidature

against Library Record Assistant grant-in-aid post in

place of Mrs.K.Bharati, which fell vacant due to her

joining as librarian in another Junior College. The

management also forwarded the petitioner's

representation to the 2nd respondent. The 4th

respondent college also submitted its reply to the 2nd

respondent on 20.07.1995 furnishing the information

as required by them as per their letter dated

27.06.1995 and requesting them to admit the

petitioner into grant-in-aid post which was fallen

vacant in lieu of Bharati Devi's relinquishment, who

was appointed along with the petitioner and who was

working in the said grant-in-aid post. Again on

25.10.1997, the 4th respondent requested the 2nd

respondent to admit the petitioner into grant-in-aid

PMD,J W.P.No.8178 of 2015

post. However, no decision was taken by the 2nd

respondent.

5. Therefore, the petitioner made another

representation dated 22.02.2010 to the Commissioner

of Collegiate Education and in response thereto, the

Commissioner issued Memo.No.468/admn./V.2/2010,

dated 10.05.2010 requesting the 4th respondent college

to furnish a detailed report for admitting the post into

grant-in-aid on or before 20.05.2010 and the

management accordingly furnished the information.

The 2nd respondent vide proceedings

R.C.No.468/admn/V-2/2010, dated 03.07.2010

declined the request of petitioner to consider her

request for absorpotion into grant-in-aid post on the

ground that she has not completed five years of service

as on 25.11.1993 as required in G.O.Ms.No.212, dated

22.04.1994 and that the 4th respondent Management

was accordingly informed.

PMD,J W.P.No.8178 of 2015

6. It is submitted that subsequently, the 2nd

respondent issued a Memo.no.199/admn/V-1

/2014, dated 27.10.2014 requesting the

Correspondents/Principals of the private aided colleges

in the State to furnish information for absorption of

the staff of non-teaching staff working in aided degree

colleges in response to a representation, dated

07.10.2014 of the General Secretary, Telangana, Aided

Non-Teaching Staff Association. In response to the

same, the college has forwarded and recommended the

name of petitioner to be absorbed into the aided post

as she has possessed the required qualification and

also acquired the Masters Degree in Library Science

and completed computer courses in this regard and

became eligible for the post of Librarian in the year

2010. However, the petitioner was not absorbed into

the aided post. Aggrieved by the non-consideration of

PMD,J W.P.No.8178 of 2015

her case for absorption, the petitioner has filed the

present writ petition.

7. Learned counsel for the petitioner, while

reiterating the submissions made by the writ petitioner

in the writ affidavit, has placed reliance upon the

recommendations of the college for absorption of

petitioner into grant-in-aid post i.e. from the date the

said vacancy had arisen on Mrs.K.Bharati

relinquishing the said post with affect from

17.01.1995. He submits that petitioner is eligible for

regularization by virtue of Judgment of Hon'ble

Supreme Court in the case of State of Karnataka and

Others Vs. Umadevi and others1 and also State of

Karnataka Vs. M.L.Kesari2. He also placed reliance

upon various other judgments of this Court which are

placed along with rejoinder. He has drawn the

attention of this Court to the recommendations of the

1 (2006) 4 SCC 1 2 (2010) 9 SCC 247

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college and particularly that the petitioner has been

selected as Record Assistant in the year 1991 through

duly constituted selection committee and that she has

been discharging the duties of a Librarian for the past

several years. He further submitted that the

Government is not following the directions of this

Court issued in various cases of similar nature and

therefore suitable direction be given to the respondents

as in the case of T.Satyanarayana, Lab Attender in

RBVRR Women's College appointed by way of

promotion.

8. Learned Government Pleader for Higher

Education, on the other hand, submitted that the case

of the petitioner for absorption was already rejected in

the year 2010, and that the petitioner has not

challenged the same and therefore it has become final.

She further submitted the procedure as laid down in

G.O.Ms.No.1119/Edn, dated 18.12.1976 has to be

PMD,J W.P.No.8178 of 2015

followed in selection of the candidates. She submitted

that a selection committee comprising of the

representative of Director of Higher Education,

Principal of the College concerned and a representative

of the management have to be constituted and the

posts are to be filled up after publishing in the

notification or advertising the notification in at least

two prominent daily news papers and also after issuing

the notification of the vacancies to the employment

exchange wherever it is applicable, before the interview

and selection. It is further submitted the respondent

college has not followed the procedure as prescribed in

the above cited G.O., for recruitment and prior

permission was not obtained and the representative of

Government was also not present. It is submitted that

the post to which the petitioner was recruited i.e., the

post book bearer, is not in cadre strength of aided

posts of the college and the recruitment of the

PMD,J W.P.No.8178 of 2015

petitioner itself is not as per the procedure laid down

by the Government. As regards the reliance of the

petitioner on G.O.Ms.No.212, dated 22.04.1994, she

submitted that the services of the petitioner as on

25.11.1993 was not more than five years and

therefore, she could not be regularized under the said

G.O.

9. It is submitted by way of filing an additional

counter affidavit that as per proceedings in

R.C.No.4996/PC-1-4/95, dated 18.09.1995 of the

Director/Commissioner of Collegiate Education, the

management of private aided colleges should identify

the anticipated vacancies that may arise in next three

or four months and said proposals seeking permission

to fill up the posts have to be given in the format given

in Annexure -A-1 for non-teaching posts. She

submitted that it was also made a clear that after

obtaining necessary permission from the Director/

PMD,J W.P.No.8178 of 2015

Commissioner of Collegiate Education, the aided

private colleges should follow the due procedure laid

down in various orders and complete the process of

selection and obtain approval from the

Director/Commissioner of Collegiate Education by

sending the proposals in the formats given Annexures-

C, D and E. It is submitted that in this particular case,

the respondent management has not followed the said

procedure and therefore, it cannot be said that the

petitioner has been appointed in any aided vacancy. It

is further submitted that the petitioner is only an

employee of a private college and not a temporary

employee of a Government college and therefore,

G.O.Ms.212, dated 22.04.1994 and also the judgment

of the Hon'ble Supreme Court in the case of State of

Karnataka and Others Vs. Umadevi and others (1

supra) is not applicable and therefore, she has no right

to seek absorption into aided post in the 4th

PMD,J W.P.No.8178 of 2015

respondent college. It is further submitted that as

regards the reliance upon the judgment in Writ

Petition No.19090 of 2011, dated 21.06.2012 by the

petitioner is concerned, it is submitted that the

Government had filed Writ Appeal No.1393 of 2011

against the said order, and it was dismissed and the

SLP filed by the Government against the order in writ

appeal has also been dismissed and incompliance of

the orders of the High Court in the writ appeal, the

Government has issued G.O.Rt.No.269 H.E (CE/A2),

Department, dated 13.11.2014 according permission

for regularization of the services of the petitioners in

those cases in the vacancies available in the respective

colleges with prospective effect only i.e., from the date

of judgment of the Hon'ble High Court subject to

condition that the impugned orders shall not be

quoted as a precedent in any other case. It is

submitted that the petitioner has been appointed

PMD,J W.P.No.8178 of 2015

without following the due procedure and therefore, the

judgment of Hon'ble Supreme Court is not applicable

to the petitioner. She also submits that in the year

2006, the Government has imposed a ban on

recruitment of aided posts vide G.O.Ms.No.35, Higher

Education (CE.II-1) Department, dated 27.03.2006 and

accordingly the petitioner cannot be absorbed into any

aided post in the 4th respondent college. Government

Pleader accordingly prayed for dismissal of the writ

petition.

10. The learned counsel for respondents also placed

reliance upon the judgments of Division Bench of this

Court in Writ Appeal No.121 of 2017 and the

Judgment of the Supreme Court in Civil Appeal Nos.

5689 and 5690 of 2021.

11. Having regard to the rival contentions and the

material on record, it is noticed that the decisions

relied upon by the learned counsel for the respondents

PMD,J W.P.No.8178 of 2015

are not applicable to the facts of the case before this

Court.

12. The Hon'ble Supreme Court in the case of Union

of India and others Vs. Ilmo Devi and another3 was

considering the case of regularisation of part-time

employees in the absence of any vacancies for such

regularisation. Therefore, the said judgment is not

applicable to the case before this Court.

13. The judgment of a Division Bench of this Court in

W.A.No.121 of 2017 dt.31.12.2021 also would not

apply to this case as the petitioner therein had worked

in an aided post without absorption for a very long

period and it was not the case of regularisation from

the date of her choice. In the case before the Division

Bench, it was the case of the petitioner therein that

she was seeking regularisation from the date of her

appointment though she was working as part-time

3 Civil Appeal Nos.5689-5690 of 2021 dt.07.10.2021 : LL 2021 SC 561

PMD,J W.P.No.8178 of 2015

lecturer and her request was rejected by the Single

Judge and thereafter also by a Division Bench.

Therefore, this decision is also not applicable to the

case on hand.

14. The petitioner has relied upon the judgment of

this Court in the case of T. Satyanarayana Vs. The

State of A.P. rep. by its Secretary, Higher

Education Department and others4, wherein case of

the petitioner who was similarly placed with that of the

petitioner herein, was considered and a direction was

given to the respondent to consider the regularization

of the petitioner therein in the light of the judgment of

the Hon'ble Supreme Court in the case of State of

Karnataka and Others Vs. Umadevi and others (1

supra) and State of Karnataka Vs. M.L.Kesari (2

supra). The petitioner has been working in the

organization and it is not the case of the respondents

PMD,J W.P.No.8178 of 2015

that vacancy was not available or that the petitioner

was not qualified for the said aided post. Though the

petitioner has not completed 5 years as on the cut off

date in 1993, thereafter, the petitioner has put in

continuous service of more than 15 years and

therefore, he is eligible to be considered for

regularisation/absorption into the aided post after

completion of the required period of 10 years of service

in the said post as on 10.04.2006 or from the date she

has become qualified to hold the post of Assistant

Librarian.

15. The respondents are therefore directed to

reconsider the case of the petitioner for absorption into

the aided post on her completion of the required

number of years as per the judgment of the Hon'ble

Supreme Court in the case of State of Karnataka Vs.

M.L.Kesari (2 supra) or from the date of her acquiring

the necessary qualification to hold the post of

PMD,J W.P.No.8178 of 2015

Assistant Librarian in the existing vacancy of the

Assistant Librarian in the 4th respondent college.

15. The Writ Petition is accordingly allowed. No order

as to costs.

16. Pending miscellaneous, if any, in this Writ

Petition shall stand closed.

_____________________________ JUSTICE P. MADHAVI DEVI Date: 18.07.2022 BAK/Svv Note: Issue C.C. by tomorrow.

B/o Svv