Telangana High Court

V.Prema Chandrudu S/O V.Manikya ... vs State Of Telangana on 6 June, 2022

Bench: P.Madhavi Devi

             THE HON'BLE SMT. JUSTICE P.MADHAVI DEVI

                            W.P. No.1689 of 2016
ORDER:

This writ petition has been filed seeking a writ of

mandamus declaring:-

i) Firstly, the action of the second respondent in issuing

proceedings no.Admn-I-1/449/2004 dated 10.11.2015

rejecting the case of the petitioner for regularization from the

date of initial appointment i.e. 26.7.1993 on par with others

i.e. Smt.K.Meghamala, Junior lecturer as illegal and

discriminatory.

ii) Secondly, to regularize the services of the petitioner from

the date of initial appointment with effect from 20.3.1993 on

par with Smt.K.Meghamala, with all consequential benefits

and to pass such other orders as the Court deems fit and

proper in the circumstances.

2. Brief facts leading to the filing of this writ petition are that

the petitioner was appointed as a part time lecturer in English,

in the third respondent college vide orders dt.26.7.1993.

Thereafter, the petitioner made a representation for

regularization of his services Vide letter dated 22.12.1999, the PMD, J W.P.No.1689 of 2016

second respondent directed the third respondent to submit the

detailed report with his specific remarks on the eligibility of

V.Premachandrudu, the petitioner herein for regularization of

his services Vide letter dt.31.12.1999, the third respondent

reported that the petitioner is working as a part time lecturer in

English against the aided vacancy for which proposals have

already been submitted for permission to fill up through the

approved process. It is submitted that since there was a backlog

of SC vacancy, the grant-in-aid post belonged to SC category,

permission for filling up the vacancy through regular Selection

Committee was sought for. In reply thereto, the second

respondent issued a letter dated 9.5.2000 requesting him to

state as to how many posts of junior lecturers in English are

sanctioned under the grant-in-aid and the names of persons

admitted to grant-in-aid, at the time of admission to grant-in-

aid with copies of orders. The third respondent vide letter dated

13.6.2000 intimated that there were 4 posts of English lecturers

of their junior college, under grant-in-aid. It was submitted that

the first one, Mr T.Subbaramaiah retired and that vacancy was

filled up by Smt. Lygia Varaprasadam by the Selection

Committee and thereafter, Mr.V.Satya Prasad resigned and in

his place the petitioner is working as part time junior lecturer.

PMD, J W.P.No.1689 of 2016

3. In the mean time, the first respondent has issued GO RT

No.104, dated 05.02.2003 regularising the services of one

K.Meghamala a junior lecturer in English (In Keshava Memorial

Junior college, Narayanaguda). Pursuant to the direction of this

Court in WP.No.5251 of 1996 and contempt case No.943 of

2002, the petitioner also made request to consider his case for

regularization in the light of the above judgment. However, the

same was not considered and therefore the petitioner filed a writ

petition in WP No.3994/2006 and vide orders dated 13.02.2012,

this Court directed that if there are any vacancies in aided posts

in respect of SC backlog vacancies, the petitioner's case should

be considered in respect of SC backlog vacancy, as and when it

arises. He submits that vide GO.Rt.No.311 dated 16.12.2013,

the case of the petitioner was considered and his services were

regularised with effect from 16.12.2014. The petitioner

thereafter made the representation to consider his case for

regularization on par with the case of Smt. Meghamala from the

date of initial appointment. However, the same was rejected by

the respondents vide order dated 15.5.2005, however, since the

said representation was not disposed of, the present writ

petition is filed.

PMD, J W.P.No.1689 of 2016

4. The learned counsel for the petitioner submits that the

petitioner was appointed in a clear vacancy on retirement of one

Mr.V.Satya Prasad in an aided post and therefore, the

petitioner's case for regularisation should also be considered

from the date of his initial appointment as a junior part time

lecturer. He submits that even in the case of Smt K.Meghamala,

she was not selected through District Selection Committee but

was appointed against a clear grant-in-aid post and since the

Hon'ble Court has directed her regularisation from the date of

initial appointment, similar benefit should be given to the

petitioner as well.

5. The learned Government Pleader for Higher Education,

however, submits that the petitioner has not been selected

through District Selection Committee and the process of

selection has not been followed. She submits that even in an

aided post, the appointment should be made a party with the

consent of the Government and since no such direction was

taken by the third respondent college while appointing the

petitioner, the case of the petitioner cannot be considered for

regularisation. She placed reliance upon the judgment of this

Court in WP No.121/2017 wherein, the Court has held that an PMD, J W.P.No.1689 of 2016

irregularly appointed person in grant-in-aid vacancy cannot be

regularized from the date on which they were admitted to grant-

in-aid. She submits that even in the case before this Court, the

petitioner was never appointed by following selection process

and therefore he cannot be granted regularization from the date

of initial payment.

6. Having regard to the rival contentions and the material on

record, this Court finds that though the petitioner has been

working in third respondent's organisation against a clear

grant-in-aid vacancy, his selection has not been through

District Selection Committee nor has been approved by the

Government. It was in the year 1999 that the third respondent

initiated for procedure for regularization of the services of the

petitioner. The date of application by the petitioner seeking

regularization is not before the Court nor has it been mentioned

in the correspondence between the 2nd and 3rd respondent. The

Government has sanctioned the permission to fill in the vacancy

only by order dated 2014. Therefore, according to the

respondents, the petitioner is eligible for regularization only

from the date of appeal. However, on going through the material

on record, this Court observed that though initially there was a PMD, J W.P.No.1689 of 2016

ban of filling up of the aided posts in colleges, subsequently,

there was a partial lift of ban i.e. there was a direction given to

fill up the vacancies of only SC, ST category. Admittedly, the

petitioner belongs to SC category and was eligible to be

considered for regularization. Since, GO MS. No.328 has been

suspended by the Court, therefore, this Court is opining that

the petitioner's representation for regularising should have been

atleast considered from the year 1999 when the third

respondent recommended his case for regularisation.

7. The non selection of the petitioner through District

Selection Committee is not due to any fault attributable to the

petitioner and the petitioner has been making representations

from 1999 for his appointment in a regular post.

8. In view of the same, this Court is of the opinion that the

petitioner should be granted regularization atleast from the date

of his representation or recommendation of his case for

regularization by the third respondent vide his letter in the year

1999. The denial of regularization from the period the petitioner

has completed the required number of years for regularization

would badly affect the petitioner's prospects of getting pension

etc.

PMD, J W.P.No.1689 of 2016

9. The learned counsel for the petitioner prayed that the

petitioner's case may be treated on par with the case of

Smt.Meghamala as directed in the judgment of this Court and

prayed for notional seniority as the petitioner has already

retired from service.

10. The learned counsel for the respondents, at this stage,

submitted that the petitioner has entered into the service

through back door without following due process and therefore

the notional service also cannot be granted.

11. Having regard to the fact that the petitioner has been

working from 1993, in a vacancy of grant-in-aid post and he

had made a representation in the year 1999 which was

forwarded by the correspondent of the school recommending the

regularisation of the petitioner for regularisation through

regular Selection Committee and also the direction of this Court

to consider his case for regularisation, this Court is of the

opinion that the petitioner is eligible for regularization notionally

with effect from 1999.

12. The respondents have relied upon the judgment of this

Court in W.A.No.121 of 2017, wherein the order of the single PMD, J W.P.No.1689 of 2016

judge in W.P.No.9246 of 2008 was confirmed. For the sake of

ready reference the relevant paras are reproduced hereunder:-

2. Petitioner was appointed as part-time Lecturer in Telugu Department on 18-08-1998 in 3rd respondent college.

3. The 1st respondent issued G.O.Ms.No.362 EDN dt.07-10-1994 to submit proposals for regularization and payment of minimum scale to part-time lecturers/Junior Lecturers working in Private Degree/Oriental and Junior Colleges in the erstwhile combined State of Andhra Pradesh.

4. Thereafter, 2nd respondent by proceedings Rc.1503/JC8-3/94 dt.22-12-1994 directed 3rd respondent to submit annual statement regarding the petitioner for payment of minimum scale from 07-10-1994.

5. Vide G.O.Ms.328 Education (CE_III) Department dt.15-10-1997, 1st respondent proposed regularization of services of part-time lecturers, such as the petitioner, working in private aided degree colleges and junior colleges, but the 2nd respondent by proceedings in Rc.No.Admn-I-B-1/1277/2008 dt.09-03-2009 rejected petitioner's request for regularization w.e.f. 07-10-1994 and for payment of consequential benefits.

6. In the said order, 2nd respondent stated that the petitioner had not been appointed or selected through properly constituted selection committee and her initial appointment was not as per Rules. But she was allowed to draw her pay minimum time scale attached to the post of Junior Lecturer with effect from 07-10-1994 in terms of G.O.Ms.No.362 dt.07-10-1994. He however stated that the petitioner was not considered for admission to grant-in-aid w.e.f. 07-10-1994 against the grant-in-aid post. He stated that she had not been appointed through a PMD, J W.P.No.1689 of 2016

properly constituted selection committee. He stated that basing on G.O.Ms.No.328 dt.15-10-1997 and proposal sent by the 3rd respondent and in terms of G.O.Ms.No.328 dt.15-10-1997, the petitioner was regularized by proceedings dt.06-04-1998 w.e.f.18-04-1998. He pointed out that the petitioner cannot seek regularization with retrospective effect from 07-10-1994 since the scheme of regularization as contemplated under G.O.Ms.No.328 dt.15- 10-1997 is only prospective and the Government had also issued a Memo dt.22964/CE-III/1999-5 dt.18-12-2000 to the same effect.

7. Learned counsel for the petitioner contended that this view of 2nd respondent is untenable in view of the fact that the benefit of regularization with retrospective effect was given to staff pertaining to Vizianagaram Junior College. He referred to G.O.Ms.No.375 Education (C.E.III-2) Department dt.20-10-1994 relating to grant-in-aid, wherein the Government adopted the said college along with sections and posts mentioned in the annexure to grant-in-aid w.e.f. 01-04-1994, the date on which the post where they were employed were admitted to grant-in-aid, which was also confirmed in the order dt.14-02-2005 in W.A.No.1492 of 2000.

8. Learned Government Pleader appearing for the respondents supported the order passed by 2nd respondent and stated that while in the case of Vizianagaram Junior College relied upon by the petitioner, the posts wherein the petitioners therein were employed were admitted to grant-in-aid, but they were not regularized from the date on which they were admitted to grant-in-aid, in the case of the petitioner, she was only a part-time lecturer, and her post was not considered for admission to grant-in-a id in view of the fact that she was not appointed or selected through a properly constituted selection committee and her initial appointment PMD, J W.P.No.1689 of 2016

itself was not as per rules. She contended that in spite of the fact that the petitioner was not appointed or selected through properly constituted selection committee, she was not only allowed to draw pay of minimum time scale for the post attached to Junior Lecturer w.e.f. 07-10-1994, but she was also given benefit of regularization pursuant to G.O.Ms.No.328 dt.15-10-1997. She contended that the benefit under G.O.Ms.No.328 is only prospective and the Government had clarified in their Memo dt.18-12-2000 that it would have retrospective effect.

9. From the facts narrated above, there is no doubt that the petitioner's initial appointment as part-time lecturer in the 3rd respondent college was not through properly constituted selection committee and her appointment was not as per rules, but due to the then policy of the Government, she was allowed to draw pay in minimum time scale attached to the post of Junior Lecturer w.e.f. 07-10-1994 in terms of G.O.Ms.No.362 dt.07-10-1994. She was also regularized with effect from 18-04-1998 by proceedings dt.06-04-1998 by giving her benefit of G.O.Ms.No.328 dt.15-10-1997.

10. The reliance placed by the learned counsel for the petitioner on the judgments of the learned Single Judge in W.P.No.19277 of 1999 and W.A.No .1492 of 2000 is misplaced inasmuch as in those cases, the posts where the petitioners therein were employed had been admitted to grant-in-aid on 01-04-1994 but they were denied the benefit of regularization from that date. But in the case of 3 rd respondent-college, the post where the petitioner was working was not admitted to grant-in-aid at the time when the petitioner was appointed on 18-08-19

88. Therefore, the petitioner cannot compare her position with the petitioners in the above cases and seek regularization her services from 07-10-1994. Therefore I do not find any arbitrariness in the action of the respondents in rejecting request of petitioner for regularization of her PMD, J W.P.No.1689 of 2016

services from 07-10-1994 as claimed by her instead of 06- 04-1998.

11. Accordingly, both the Writ Petitions are dismissed. No costs.

12. As a sequel, the miscellaneous petitions pending, if any,shall stand closed.

13. The facts of the above case are distinguishable on facts. In

the above case, there was no post of grant-in-aid as on the date

of the petitioner's initial appointment, whereas, in the case on

hand, the petitioner has been working in the post of grant-in-aid

and also possessed the necessary qualification. Therefore, the

case of the petitioner in this writ petition is covered by the

decision in the case of Meghamala in W.P.No.5251/1996 dated

14.12.2001. The relevant portion of the order is reproduced

hereunder for ready reference:-

The petitioner was appointed as Part Time Junior Lecturer in English in the year 1990 in Keshav Memorial Education Society, Narayanaguda, Hyderabad. While so, the Correspondent College issued notification dated 26-9- 1992 proposing to filling the said post from a person belongs to ST Category. Questioning the same, the petitioner filed writ petition No.13499 of 1992. This Court while admitting the said writ petition granted interim direction not to fill up the said post till further orders.

Thereafter, the petitioner filed another Writ Petition No.5251 of 1996 seeking regularisation of his services on the ground that he has been working as part time lecturer since 1990. This Court while admitting the said Writ PMD, J W.P.No.1689 of 2016

Petition granted interim direction on 18-3-1996 directing the respondents to pay salary to the petitioner in the minimum scale of pay. Pursuant to the order of this Court, the Government issued G.O.Rt.No.195, dated 24.2.1998, where through the petitioner was paid salary in the minimum scale of pay.

Be that as it may, the management of the respondent Education society issued notification to fill up the post of Lecturer in English with a person who belongs to SC category. Questioning the same the petitioner filed Writ Petition No.21072 of 2001 and this Court while admitting the said Writ Petition on 17.10.2001 granted interim direction not to fill up the said post till further orders.

Since the petitioner in all these Writ petitions is common and relief claimed is also one and the same, they are heard together and disposed of by this common order. Sri Ella Reddy and Sri P.Srinivas unlearned counsel for the petitioner submits that the petitioner has been working since 1990 as part-time lecturer and the respondent Government has issued G.O.Rt.No.195, dated 24-2-1998 permitting the petitioner to draw minimum scale of pay from March 1996. It is their further contention that unless the services of the petitioner are regularised, no fresh recruitment can be made. In support of their contention, they also placed reliance on the Judgment of a Division Bench of this Court in Writ Appeal 1519 of 1999, dated 3- 10-2001 and contended that the power of reservation of the state emanates only from Articles 15 and 16 of the Constitution and such power of the State can be expressed only in relation to its own employees. In other words, the reservation policy can be extended in the field of public employment only and where the institutions are under the control of private management the rule of reservation cannot be extended.

PMD, J W.P.No.1689 of 2016

Following the decision of the Division Bench stated supra. It has to be held that the learners of a private institution, having regard to the scheme and object of the Act cannot come within the purview of the doctrine of public employment and Articles 15 and 16 of the constitution thus per so cannot be held to be applicable.

Sri D.Narasimha Sarma, learned counsel for the respondent Institution submits that instructions have been issued in pursuance to the proceedings of the commissioner and Director of Collegiate Education vide Rc.No.G3/961/ 2001-5, dated 5.10.01 directing that the persons, including the petitioner, who are being continued in the services shall not be disturbed as per the directions of this Court, he further submits that after obtaining the necessary orders from the Government the services of the petitioner could be regularised.

Having regard to the facts and circumstances of the case, the Management of the respondent Keshav Memorial Junior College, Hyderabad is at liberty to go ahead with the selection process without disturbing the petitioner. Taking into consideration the fact that the petitioner has been working since eleven years there shall be a direction to the commissioner of Intermediate Education, Hyderabad to regularise the services of the petitioner within a period of three months from the date of receipt of a copy of this order.

With the above direction, all three Writ petitioners are disposed of. No costs.

14. It is also noticed that vide GO Ms.No.6, dt.19.1.2011, the

services of Smt.K.Meghamala were regularised w.e.f.1.3.1996,

i.e. the date from which the petitioner was granted Minimum PMD, J W.P.No.1689 of 2016

scale of pay with all consequential benefits, such as seniority

and arrears of salary etc. Since, the facts and circumstances of

this case are similar to the facts of the case of

Smt.K.Meghamala, the respondents are directed to pass orders

of regularisation of the petitioner notionally and grant the

consequential benefits to the petitioner within a period of 90

days from the date of receipt of this order.

15. The writ petition is accordingly partly allowed. No order as