T.E. Rajagopalan vs Prl. Secy., Collegiate Edn. Dept. And 2 ...
2023 Latest Caselaw 4376 Tel

Telangana High Court

T.E. Rajagopalan vs Prl. Secy., Collegiate Edn. Dept. And 2 ... on 22 December, 2023

THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                WRIT PETITION No.25241 of 2017

ORDER:

This writ petition is filed seeking to declare the action of

the respondents in not regularizing the services of the petitioner

in the post of Lecturer in Degree College, as illegal and arbitrary,

and consequently to direct the respondents to regularize the

services of the petitioner from the date of his initial appointment

with all consequential benefits.

2. The facts of the case, in brief, are that the petitioner passed

M.Com with 60% of marks from Osmania University in the year

1990. He was appointed as a Lecturer in Pragathi Mahavidyalaya

Junior College on 25.06.1990 in a vacant aided post, in pursuance

of the selection made by a duly constituted Selection Committee.

The petitioner worked in the said college upto June, 2008 and

thereafter, he was shifted to respondent No.3 - Pragathi

Mahavidyalaya Degree College of Commerce & Science against a

vacant aided post by way of redeployment from the defunct

Chanakya Junior College, Hyderabad, and since then, he is

working in the respondent No.3-college as a Lecturer in

Commerce. It is stated that the petitioner is paid only

consolidated amount of Rs.16,000/- per month, but not the

regular pay scale and that he was also denied various other

benefits, leaves, allowances etc.

3. It is further stated that the petitioner on an earlier occasion

approached this Court and filed W.P.No.21281 of 1997 seeking

regularization of his service. Thereafter, respondent No.3

terminated his services w.e.f. 01.02.1999. The said writ petition

was dismissed as infructuous on 19.04.1999 with an observation

that the question relating to regularization of services is left open

and the same shall depend upon the result of the appeal, which is

pending before the Appellate Authority. Thereafter, on

17.09.1999, the Appellate Authority has dismissed the appeal

filed by the petitioner on the ground that the petitioner was a part

time lecturer. Aggrieved by the same, the petitioner approached

the Government, which in turn, vide G.O.Rt.No.251, Higher

Education (CE-III-2) Department, dated 07.04.2000 ordered for

reinstatement of the petitioner.

4. It is further stated that the petitioner filed W.P.No.22840 of

2000 for implementation of the said G.O.Rt.No.251 dated

07.04.2000 and this Court vide order dated 24.11.2000 directed the

respondent No.3 to reinstate the petitioner into service and pay

arrears of salaries. The respondent No.3 did not implement the

order of this Court dated 24.11.2000, and therefore, seeking

implementation of the said order, the petitioner filed C.C.No.682

of 2001. Pursuant to the interim order passed by this Court in the

said Contempt Case, the respondent No.3 had paid the salaries to

the petitioner from 24.11.2000. It is further stated that challenging

G.O.Rt.No.251 dated 07.04.2000, respondent No.3 has filed

W.P.No.7515 of 2000. Pending the said writ petition, the parties

have compromised the matter and agreed to withdraw all the

pending cases before this Court.

5. It is further stated that the respondent No.3 issued the

proceedings dated 29.03.2005 reinstating the petitioner into

service and the petitioner started working since 30.03.2005.

Thereafter, the petitioner submitted a representation to regularize

his services as per G.O.Ms.No.328 dated 15.10.1997 and

Management of the respondent No.3 - college has also requested

the respondent No.2 to regularize the services of the petitioner in

terms of G.O.Ms.No.328 dated 15.10.1997 in the same terms as

was done in the case of another Part Time Lecturer in Sarojini

Naidu Vanitha Mahavidyalaya. However, the respondent No.2

vide proceedings dated 24.08.2011 held that G.O.Ms.No.328 dated

15.10.1997 cannot be extended to the petitioner since he fell short

of the required number of years of service as on 25.06.1990.

6. It is stated that the respondent No.1 has taken up the aspect

of solving the demands of the employees working in the private

aided colleges against the regular posts before and after the

enactment of A.P. (Regulation of Appointments to Public Services

& Rationalization of Staff Pattern and Pay Structure) Act, 1994

(for short, 'Act 2 of 1994') and for taking further action in the

matter. The respondent No.2 vide proceedings dated 29.10.2014

directed the respondent No.3 as well as various other private

aided colleges to furnish the particulars of the employees, who

are working against regular posts before and after the Act 2 of

1994. Pursuant to the same, the respondent No.3 has furnished

the list of employees, which includes the name of the petitioner,

working in its college. Thereafter, respondent No.2 vide letter

dated 10.05.2016 again requested all the colleges to furnish the

particulars of the unaided lecturers working against the regular

aided posts in the private aided colleges. Pursuant to the same,

the respondent No.3 has again sent the list showing the

particulars of such Lecturers, including the name of the

petitioner.

7. The grievance of the petitioner is that that though he was

appointed through duly constituted Selection Committee and

though his name was included in the list of Lecturers sent by the

respondent No.3 college to the respondent No.2 - Commissioner

of Collegiate Education, the Government has not taken any steps

to regularize his services, which resulted in continuation of the

petitioner on consolidated pay.

8. The respondent Nos.1 and 2 filed counter affidavit denying

the petition averments and inter alia stating that the petitioner is

employee of the respondent No.3 - college, which is also running

unaided sections, and therefore, the official respondents are no

way concerned with the employment of the petitioner with the

respondent No.3 - college. If the petitioner was appointed in

aided vacancies, the respondent No.3-college ought to have taken

permission from the competent authority before filling up the

vacancies by giving equal opportunity to all the eligible

candidates. It is further stated that merely because the petitioner

is working in the respondent No.3-college since long time, the

petitioner cannot seek regularization. It is further stated that the

Government through G.O.Ms.No.12, Education (CEI-2)

Department dated 10.01.1992 has prescribed the procedure for

selection of Lecturers in Private Colleges, but, the respondent

No.3 - college has not followed the procedure prescribed under

the said G.O.

9. It is further stated that as per the representation received

from the Teaching Association, certain information was called for

vide C.C.E's Memo No.144/Admn.V-2/2014 dated 29.10.2014

with regard to the staff working in Aided Colleges. Therefore,

there is no relevance to the information sought and the case of the

petitioner. The petitioner is working in unaided post and the

respondents are no way concerned with the post held by him. It

is further stated that there is no scheme to absorb the employee

from un-aided post to aided post and that 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.

10. The respondent No.3 filed a counter affidavit stating that

respondent No.2 vide letter dated 29.10.2014 requested it to send

the particulars of the employees, who are working against regular

posts, joined prior to and after the enactment of Act No.2 of 1994;

that the respondent No.3 has furnished the list of such

employees, wherein the name of the petitioner was also included;

that the other particulars of the petitioner were also furnished

vide subsequent letter dated 12.04.2016 confirming that his

original appointment was done through a duly constituted

Selection Committee and he was working since 1990. The

respondent No.2 vide letter dated 10.05.2016 again requested to

furnish the list of employees and the same was furnished by the

respondent No.3.

11. It is stated that the petitioner was appointed as a Lecturer

in Commerce in the year 1990 in a vacant aided post through a

duly constituted Committee and he is being paid the consolidated

salary monthly. The payment of salary to him in a regular pay

scale will take place on the decision of the respondent Nos.1 and

2 and that in view of the ban on appointments under Act No.2 of

1994, no recruitments have taken place subsequently in any of the

colleges in the State. The colleges are being run with the Lecturers

like the petitioner on consolidated pay though they are working

against aided posts.

12. This Court, on 04.01.2018, while admitting the writ petition,

directed the respondent-Management to pay minimum time scale

attached to the post of Lecturer to the petitioner, within a period

of eight weeks from the date of receipt of a copy of that orders, in

view of the ratio laid down by the Apex Court in Punjab v. Jagjit

Singh 1.

13. Heard Sri Vedula Srinivas, the learned Senior Counsel

appearing for the petitioner, the learned Government Pleader for

(2017 (1) SCC 148)

Education for respondent Nos.1 and 2 and Sri T.S. Praveen

Kumar, the learned counsel for the respondent No.3. Perused the

record.

14. The learned Senior Counsel appearing for the petitioner

would submit that the petitioner was appointed as Part Time

Lecturer against a vacant aided post in the respondent No.3 -

college by the Selection Committee duly following the process.

He further submitted that the Government had issued

G.O.Ms.No.328 dated 15.10.1997 for regularisation of services of

Part Time Lecturers in aided colleges. The condition specified in

the said G.O. for regularisation of the services of Part Time

Lecturers is that the individual has to put in service of three

academic years as on 30.07.1991 or five academic years as on

25.11.1993, as the case may be, and also continuing in service as

on the date of issuance of the said G.O. He further submitted

that in response to the request made by respondent Nos.1 and 2,

the respondent No.3 - college has submitted the list of Lecturers

working in its college and the petitioner's name was also

included in the said list.

15. The learned Senior Counsel further submitted that the

petitioner is continuing in service since long time, and therefore,

his case has to be considered for regularisation. In support of the

said contentions, the learned Senior Counsel has relied upon the

judgments of the Supreme Court in State of Karnataka v. Uma

Devi 2 and District Collector v. M.L. Singh 3.

16. Per contra, the learned Government Pleader for Education

appearing for respondent Nos.1 and 2 would submit that the

respondent No.3 - college has both aided and unaided Sections

and the Government is no way concerned with the employment

of the petitioner, who was appointed in unaided post. He further

submitted that the case of the petitioner for regularisation was

earlier considered and rejected vide proceedings dated 24.08.2011

as he fell short of the required number of years of service as on

25.11.1993. He further submitted that as per G.O.Ms.No.12,

Education (CE 1-2) Department, dated 10.01.1992, the aided posts

have to be filled up duly affording an opportunity to all the

unemployed youth by giving advertisement etc. However, in the

2006 (4) SCC 1

1998 (2) ALT 5

instant case, the respondent No.3 - college had not followed the

said procedure and appointed the petitioner contrary to the

guidelines issued under the said G.O. As the petitioner was

appointed in backdoor method and there is no policy to

regularise the Part Time Lecturers, the petitioner cannot claim

regularisation as a matter of right.

17. The learned Government Pleader further contended that

the Government vide G.O.Ms.No.283, Education (CE.II.1)

Department, dated 03.11.1999, annulled the scheme formulated

in G.O.Ms.No.328 dated 15.10.1997. Therefore, G.O.Ms.No.328

dated 15.10.1997 is no longer in operation and the petitioner

cannot avail the benefit under the said G.O.

18. The learned Government Pleader specifically referred to

the letter dated 26.03.2015 addressed by respondent No.3 to

respondent No.2-Commissioner of Collegiate Education, in

response to the Memo No.213/Admn.V-2/2014, dated 12.03.2015,

wherein it was categorically admitted by respondent No.3 that

the petitioner was appointed as a Part Time Lecturer in

Commerce in Pragathi Mahavidyalaya Junior College on

25.06.1990 by obtaining oral permission from the Commissioner

of Intermediate Education; that the Regular Selection Committee

was not constituted, however, interview was conducted by an

expert from Osmania University and that minutes book was not

traceable.

19. In support of the said contentions, the learned Government

Pleader has relied upon the judgments of the Supreme Court in

Ganesh Digamber Jambhrunkar v. State of Maharashtra 4; this

Court in Government of Andhra Pradesh, rep. by its Secretary,

Higher Education (CE.II) Department v. Raju Bolla, Lecturer in

Botony (on contract basis, ABV Degree College, Janagaon 5; and

Punjab and Haryana High Court in State of Haryana v.

Balwinder Singh 6.

20. Insofar as the judgments relied upon by the learned Senior

Counsel for the petitioner are concerned, in Uma Devi's case, the

Supreme Court held as under:

2023 LiveLaw (SC) 801

2007 (4) ALT 106 (DB)

2023(2) RCR (Civil) 336

"One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra), and B.N. Nagarajan (supra), and referred to in paragraph 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 orders of 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 courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that 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."

21. In M.L. Singh's case, the Supreme Court held that the

services of the employee have to be considered for regularisation

as and when they complete the requisite period of service.

22. Insofar as the judgments relied upon by the learned

Government Pleader are concerned, in Ganesh Digamber

Jambhrunkar's case, the Supreme Court held as under:

"We appreciate the argument of the petitioners that they have given best part of their life for the said college but so far as law is concerned, we do not find their continuous working has created any legal right in their favour to be absorbed. In the event there was any scheme for such regularization, they could have availed of such scheme but in this case, there seems to be none. We are also apprised that some of the petitioners have applied for appointment through the current recruitment process. The High Court has rejected their claim mainly on the ground that they have no right to seek regularization of their service. We do not think any different view can be taken"

23. In Raju Bolla's case, the Division Bench of this Court held

as under:

"Admittedly, though all these appointments are made through a selection process but the same are at the instance of the respective private management rather than with the intervention of the Government or any assistance as that of the aided posts. Therefore, the entire process involves a direct relationship between the management and such employees and therefore, nothing can be attributed against the Government".

24. A perusal of record discloses that the Government has

issued G.O.Ms.No.12 dated 10.01.1992 prescribing the procedure

for selection of Lecturers/Junior Lecturers in Private

Degree/Junior Colleges. As per the said G.O, the Management of

the private colleges shall notify the vacancies to the Employment

Exchange (Professional and Executive Officers) Hyderabad, and

that without waiting for sponsoring of the candidates by the

Employment Exchange, after a lapse of 15 days, the Management

of the private colleges shall notify the vacancies in two daily

newspapers (Local and National) indicating the roster point

calling for applications from eligible candidates. The said G.O.

further specifies the educational qualification, rule of reservation

and the manner in which the selection has to be completed.

25. It is apt to refer to Act 2 of 1994, which laid down the

norms and procedures for regularisation of appointments to

public services and rationalisation of staffing patterns and pay

structures and the said Act prohibits the Government

Departments, Corporations, Universities and Local bodies etc.,

from making illegal unauthorised appointments through the

backdoor as NMRs on daily wages or on consolidated pay.

26. Admittedly, in the present case, neither the petitioner nor

the respondent No.3 - college has placed any material on record

to show that the procedure prescribed for selection of

Lecturers/Junior Lecturers i.e., providing opportunity to eligible

candidates by notifying the vacancies in the Employment

Exchange or issuing paper publication has been followed.

Furthermore, no selection committee has been constituted and no

prior approval has been obtained from the Government.

Therefore, the appointment of the petitioner in respondent No.3-

college cannot be termed as legal.

27. Further, though the petitioner claims that he is entitled to

be regularized in terms of G.O.Ms.No.328 dated 15.10.1997, he

cannot avail the benefit under the said G.O., as the scheme

formulated in the said G.O. has been annulled by the

Government by issuing G.O.Ms.No.283 dated 03.11.1999.

28. As held by the Supreme Court in Ganesh Digamber

Jambhrunkar's case, the petitioner cannot seek regularisation as a

matter of right though he has put in long period of service.

29. Further, in Raju Bolla's case, the erstwhile High Court of

Andhra Pradesh held that where the appointments were made by

the private colleges though through selection process without

intervention or assistance of the Government, nothing can be

attributed against the Government, as the entire process involves

a direct relationship between the management and such

employees.

30. In view of the aforesaid discussion and the observations of

the Hon'ble Supreme Court as well as the erstwhile High Court

of Andhra Pradesh in the judgments referred to above, this Court

is of the considered opinion that the present writ petition is

devoid of any merit.

31. The writ petition is accordingly dismissed. There shall be

no order as to costs.

Pending Miscellaneous Applications, if any, shall stand

closed.

__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 22.12.2023 Note: L.R. Copy to be marked va