Telangana High Court
Jawaharlal Nehru Architecture And Fine ... vs S. Nageswara Chary, on 6 August, 2024
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
Writ Appeal No.567 OF 2017
JUDGMENT:
(Per Hon'ble Smt.Justice M.G. Priyadarsini)
Aggrieved by the order dated 26.12.2016 passed in
W.P.No.30902 of 2012, the respondent-University in the said Writ
Petition preferred the present Writ Appeal.
2. The brief facts of the case are that W.P.No.30902 of 2012 is
filed by the respondents declaring the action of the appellant-
University in regularizing the services of the respondents as
Assistant Professors with effect from 20.04.2010 as illegal and
sought consequential direction to the Appellant-University to
regularize the services of the respondents with effect from the date
of judgment passed in W.P. No. 5019 of 1995, dated 13.05.2003
with all consequential benefits viz., fixation in the appropriate pay
scale, seniority and etc.
3. The case of the respondents in the Writ Petition is that they
were initially appointed as Academic Assistants in the JNTU in the
years 1988 and 1991 respectively and they were continued on
payment of consolidated salary and were denied for various service
benefits for several years and hence, filed W.P. No. 5019 of 1995
seeking regularization of their services for the posts of Assistant
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Professors and the said Writ Petition was allowed by this Court on
13.03.2000 directing the appellant-University to consider the case
of the respondents for their regularization in the cadre of Lecturers
within a period of three months. Subsequently, the
appellant/University filed W.A. No. 627 of 2003 challenging the
order of W.P.No.5019 of 1995 and the same was dismissed vide
order dated 28.07.2008 confirming the order of the Writ Petition.
Since the appellant - University was not complying the order
passed in Writ Petition, the respondents were constrained to file a
Contempt Case against the respondent vide C.C.No.230 of 2009.
Then, the appellant -University took steps for regularizing the
services of the respondents and ultimately issued proceedings on
20.04.2010 regularizing the services of the respondents in the
cadre of Assistant Professors in the pay scale of Rs. 8,000/- to
Rs.13,500/- with effect from 20.04.2010. Now, it is the contention
of the respondents that they ought to have been regularized from
the date of the order in the Writ Petition that has also been
confirmed in the Writ Appeal. But, due to pendency of the Writ
Appeal for nearly five years, the respondents were denied of
regularization and were continued on consolidated pay all these
years and were denied of various service benefits due to the
arbitrary action of the appellant-University in not regularizing their
services as per the orders in the Writ Petition. It is further
contended by the respondents that they have filed an application
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under the RTI Act seeking reasons for not regularizing their
services from 13.05.2003 and were given reply dated 03.08.2012
stating that the Monitoring and Development committee has
rejected their requests for regularization of their services from
13.05.2003 since the appellant-University had implemented the
orders passed in W.A.No.627 of 2003 dated 28.07.2008. Aggrieved
by the act of the appellant-University in not regularizing their
services from the date of judgment in W.P.No.5019 of 1995, they
filed Writ Petition No.30902 of 2012.
4. It is the contention of the appellant-University made in its
counter that the JNAFA University was established in the year
2008 through an Act.31 of 2008 passed by The A.P. Legislative
Assembly and prior to its establishment, it functioned as a part
and parcel of the JNTU vide Act No.16 of 1972 and after
establishment of JNAFA University, the Government of Andhra
Pradesh has not constituted an Executive Council and the
University had not formulated its own rules or statutes and is
following the rules and regulations framed by JNTU. The
appointment of Academic Assistant was made with certain
conditions mentioned under Clause 13(i) of Statute XIV of First
Statutes of JNTU and which were approved by the Executive
Council on 13.05.1991. The petitioners herein were appointed
temporarily as Academic Assistants from 14.10.1988 and
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25.01.1991 respectively and their services were terminated for
every three months. Challenging the said termination orders, the
petitioners filed W.P.No.9383 of 1995 before the erstwhile High
Court of Andhra Pradesh and the Court granted interim stay vide
W.P.M.P.11689 of 1995 in W.P.No.9383 of 1995, dated 02.05.1995.
Subsequently, the petitioners again filed W.P.No.5019 of 1995
seeking regularization of their services as lecturers and the said
Writ Petition was disposed of on 13.03.2003 by giving direction to
the respondent to consider the case of the petitioners for
regularization of their services in the cadre of Lecturers in
University college within a period of three months from the date of
receipt of a copy of this order. Aggrieved by the said order, the
respondent preferred W.A.No.627 of 2003 and the same was
dismissed vide orders dated 28.07.2008. In the meanwhile the
JNTU was divided into four universities from 18.08.2008 through
an Act.31 of 2008 passed by the Legislative Assembly and the
appellant-University is one among them. As per Court direction,
the University had made correspondence with Principal Secretary
to Government, Higher Education Department requesting the
Government to consider the cases of the respondents as a special
case and exempt the condition pertaining to the selection process
and roster as a onetime measure and to permit the University to
regularize their services so as to enable the university to implement
the orders of the High Court of Andhra Pradesh passed in
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C.C.No.230 of 2009 dated 31.03.2010. The Government permitted
the University for their Appointment and accordingly their services
were regularized with effect from 20.04.2010 by giving time scale
and other service benefits. Now the respondents are claiming that
their services should be regularized from 13.03.2003 as per orders
passed in W.P.No.5019 of 1995.
5. It is also the contention of the appellant/University that the
respondents do not have any vested right to seek regularization of
their services to a particular date as they did not enter into their
service as per UGC guidelines and norms and that they were given
permission for their regularization only after the State Government
had given permission with effect from 20.04.2010.
6. After hearing the rival contentions made by both the parties,
Single Judge of this Court allowed W.P.No.30902 of 2012 on
26.12.2016 directing the appellant/University to regularize the
services of the petitioners with effect from 13.05.2003 with all
consequential benefits, including pay fixation, seniority, financial
benefits due to the respondents, within a period of three months
from the date of receipt of a copy of the order. Aggrieved by the said
order, the appellant/University preferred the present Writ Appeal.
7. Heard both sides and perused the record including the
grounds of appeal.
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8. Now the point for determination is whether the impugned
order dated 26.12.2016 passed in W.P.No.30902 of 2012 by the
learned Single Judge of this Court is liable to be set aside?
9. The first and foremost contention of the learned counsel for
the appellant-University is that the learned Single Judge failed to
properly appreciate the direction given in W.P.No.5019/95 as the
said direction was only to consider the case of the respondents for
regularization of their services in the cadre of Lecturer within a
period of three months. It is further contended that the learned
Single Judge failed to consider the aspect that the respondents
were purely employed on temporary basis as a stop gap
arrangement to meet the contingencies of the University and they
cannot be equated with the post of regular appointments made
through prescribed selection procedure after due notification.
10. It is also contented by the learned counsel for the appellant-
University that the learned Single Judge failed to properly
appreciate the direction given in W.P.No.5019 of 1995 and
W.A.No.627 of 2003 as they were ordered to consider the case of
the respondents for regularization and no date has been fixed from
when they should be regularized and as such, the direction given
in W.P.30902 of 2012 to regularize the services of the respondents
from the date of disposal of W.P.No.5019/1995 is contrary to law.
7 MB,J & MGP,J
11. There is no doubt the respondents herein have rendered
service to appellant-University for the past several years, for which
the appellant-University has agreed to regularize the services of the
respondents from the date of Government Order with effect from
20.04.2010. But whether such regularization of the respondents
can be done with retrospective effective i.e., from the date of orders
dated 13.005.2003 passed in W.P.No.5019 of 1995 is the question
that needs to be adjudicated.
12. The learned counsel for the appellant-University relied upon
a decision in Surendra Kumar and others v. Greater Noida Industrial
Development Authority and others 1, the Apex Court observed as
under:
"12. The appellants were initially engaged on contractual basis
and they were not appointed against any sanctioned post before they
were substantially appointed on the said post on 6.08.2010. Even
though advertisement dated 20.11.2002 indicated that there were
vacancies, the policy of regularization of contractual employees was
approved by the State Government only on 05.03.2008. The appellants
were appointed on the post of Assistant Manager (Civil) only pursuant
to the policy decision of the respondents for regularisation of
contractual employees and thus, the appellants cannot seek for
regularization with retrospective effect from 20.11.2002, that is when
the advertisement was issued, because at that time regularisation
policy was not in vogue. By policy of regularisation, it was intended to
give the benefit only from the date of appointment. The Court cannot
read anything into the policy decision which is plain and
unambiguous. Having accepted the appointment orders dated
1 (2015) 14 Supreme court Cases 382
8 MB,J & MGP,J
6.08.2010 and also joined the post, the appellants cannot turn round
and claim regularisation with retrospective effect."
13. The learned counsel for the appellant-University relied upon
a decision in State of Orissa and others v. Prasana Kumar Sahoo 2,
wherein the Apex Court observed that regularization as is well
known is not a mode of recruitment and a policy decision to absorb
a person, who is not in employment of the State without following
the recruitment rules, would not confer any legal right on him.
Thus, from the principle laid down in the above said decision, it is
clear that regularization cannot be claimed as a matter of right and
such regularization shall proceed in accordance with policy
decision including rules and regulations.
14. Even in the present case the respondents were appointed
purely on temporary basis and their services were regularized only
by extending sympathy towards their long standing service
rendered by them but not as a matter of right. The Government
has accorded permission to the appellant-University to regularize
the services of the respondents with effect from 20.04.2010. Thus,
the appellant - University cannot go beyond the permissions
accorded by the Government in regularizing the services of the
respondents with retrospective effect, which would have severe
2 (2007) 15 Supreme Court Cases 129
9 MB,J & MGP,J
monetary repercussions on the appellant - University as well as
Government.
15. The learned counsel for the appellant-University placed his
reliance on a decision in Secretary, State of Karnataka and others
v. Umadevi and others 3 wherein the Apex Court observed as under:
"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 subjudice, need not be reopened based on
this judgment, but there should be no further by-passing of the
constitutional requirement and regularizing or making permanent,
those not duly appointed as per the constitutional scheme."
16. On the other hand, the learned counsel for the respondents
relied upon a decision in Vinod Kumar and others V. Union of India
3 (2006) 4 Supreme Court Cases 1
10 MB,J & MGP,J
(UOI) and others 4 wherein the Honourable Supreme Court observed
as under:
"The judgment in the case Uma Devi (supra) also
distinguished between "irregular" and "illegal" appointments
underscoring the importance of considering certain appointments
even if were not made strictly in accordance with the prescribed
Rules and Procedure, cannot be said to have been made illegally if
they had followed the procedures of regular appointments such as
conduct of written examinations or interviews as in the present
case."
17. Even as per the principle laid down in Umadevi's case
(supra) regularization of the employees can be done only in respect
of employees, who were appointed in duly sanctioned posts but not
under the cover of orders of courts or of Tribunals. In the present
case, the respondents-employees were neither appointed in the
sanctioned posts nor selected through any process of selection and
there was no scheme prevalent at the time of passing of the orders
by the learned Single Judge.
18. It is the specific case of the appellant-University that the
absence of pay scale attached to temporary posts, the direction of
learned Single Judge to regularize their services from a particular
date (with retrospective effect) with all consequential benefits will
have adverse financial implications on the University and in the
absence of any permission from the Government, University cannot
regularize their services, which would have a financial implication
4 MANU/SC/0338/2024
11 MB,J & MGP,J
on the Government as there is no budgetary provision for paying
the arrears.
19. In the impugned order, it was observed by the learned Single
Judge that once services of persons employed on temporary basis
are regularized, they are entitled to pay payable to regular
employees. It is observed that regularization with retrospective
effect cannot be granted in violation of the rules and regulations in
force and such retrospective regularization is to be granted only if
the appointees were recruited based on the rules and regulations.
The contract appointments cannot be compared with the regular
appointments, which are to be made by following the procedures as
contemplated under the rules.
20. Admittedly, the respondents have not applied for any posts
against which they were appointed and they did not even undergo
any selection process for their appointment. It is not out of place
to mention that in the Common Judgment passed in Writ Appeal
Nos.1241 and 1242 of 2021 and Writ Appeal No.627 of 2003 the
candidature of the respondents was ordered to be considered
sympathetically for regularization and there was no clear finding as
to whether such regularization is with retrospective effect or not.
In such circumstances, the respondents cannot seek extension of
such sympathy to the extent of availing benefits of such
regularization with retrospective effect.
12 MB,J & MGP,J
21. The appellant-University after obtaining permission from the
State Government gave permissions for regularization of their
services from 20.04.2010, which is in proper perspective. As
stated supra, the respondents were not appointed against the
sanctioned posts and merely because the respondents were
rendering uninterrupted service to the appellant - University, the
respondents cannot seek regularization of their services with
retrospective effect as a matter of right. That apart the appellant -
University cannot be compelled to proceed against rules and
regulations formulated by government for retrospective
regularization of the respondents, who were neither appointed
against the sanctioned posts nor selected through any process of
selection.
22. It is the apprehension of the appellant that if the appellant -
University fails to abide by any of the guidelines or orders as
specified by the government, then there is every chance of
withholding the grants to the appellant-University. The
respondents were initially appointed purely on temporary basis as
a stop gap arrangement to meet the contingencies of the University
and they cannot be equated with the regular appointees made
through prescribed selection procedure after due notification.
While passing orders of regularizing the services of temporary
employees with retrospective effect, a great caution and care must
13 MB,J & MGP,J
be exercised to ensure that such orders of regularization from
retrospective dates are not likely to be against the careers of other
employees.
23. Further, the Division Bench of this High Court in the said
common judgment has not specifically given any direction for
extending any monetary benefits by granting regular pay scales to
the respondents in the event of their regularization from the date of
said orders. Therefore, at this stage, having regard to the fact that
the initial recruitment of respondents to the posts in which they
were appointed was not against sanctioned post by way of any
selection process or by way of any methodology known to law, the
sympathetic consideration of the respondents to regularize them
from the dates as mentioned in the order dated 26.12.2016 cannot
be a ground to extend additional leverage or to confer a premium
on them to extend the benefit of full and regular pay scales to them
from 13.03.2003 i.e., the date of orders in W.P.No.5019 of 1995,
which is construed to be irregular, if not illegal. Therefore, the
claim of the respondents that they are entitled for full pay scale
sanctioned for the said posts from 13.03.2003, which is not regular
in terms of order of the learned Single Judge, cannot be
countenanced. More so, the same has not been enumerated by the
Division Bench of this Court vide Common Judgment passed in
Writ Appeal Nos.1241 and 1242 of 2021 and Writ Appeal No.627 of
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2003. In the State of Bihar and others v. Arbind Jee 5 the
Honourable Apex Court observed that it is also necessary to bear
in mind that retrospective seniority unless directed by court or
expressly provided by the applicable Rules, should not be allowed,
as in so doing, others who had earlier entered service will be
impacted. Thus, regularization of contract employees with
retrospective effect would tantamount to unsettling the rights of
other employees. In the event of granting such retrospective
regularization, the Courts must be slow in considering those cases.
Moreover, the respondents herein did not specify any rule or
provision under which they are entitled for regularization of their
services with retrospective effect.
24. Without considering the above aspects, W.P.No.30902 of
2012 was allowed only on the sole ground that the appellant-
University cannot deny the financial benefits to the respondents
and thereby regularized the services of the respondents with
retrospective effect. Hence, though the appellant - university had
regularized the services of the respondents from 20.04.2010 after
obtaining due permission from the competent authority is held to
be proper, however, extending the benefits of regularization with
retrospective effect is unsustainable and therefore, this direction of
5 2021 SCC OnLine SC 821
15 MB,J & MGP,J
the learned Single Judge in the impugned order is unsustainable
and set aside. It is however, needless to mention that the
appellant-University shall consider extending notional service
benefits to the respondents, except the pay scales, from
13.03.2003 according to the relevant rules governing them.
25. Accordingly, the Writ Appeal is allowed by setting aside the order
dated 26.12.2016 passed in W.P.No.30902 of 2012. The act of
appellant-University in regularizing the services of respondents from
20.04.2010 in pursuance of the orders from the State Government
holds good. There shall be no order as to costs.
As a sequel, pending miscellaneous applications, if any,
shall stand closed.
__________________________________
MOUSHUMI BHATTACHARYA, J
________________________
M.G.PRIYADARSINI, J
Date: 06.08.2024
Ysk/AS
