Telangana High Court
K. Srinivas vs Union Of India on 9 January, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P.No. 27532 of 2023
ORDER:
In this writ petition, the petitioners are seeking a writ of
mandamus declaring the cancellation of the appointments of
the petitioners as Office Attendants/Lab Attendants by the
respondent No.4 vide individual proceedings dated 26.09.2023,
as bad in law and consequently to set aside the same and to
hold that the petitioners are entitled to be treated and continued
as regular Office Attendants/Lab Attendants pursuant to the
office orders issued on 20/21.06.2023 with all consequential
benefits and to pass such other order or orders in the interest of
justice.
2. Brief facts leading to the filing of the present writ
petition are that the respondent organization was initially
known as Regional Engineering College and subsequently, in
the year 2002-03 it has been converted into National Institute of
Technology, Warangal. The petitioners are all working in the
respondent's institute as daily rated employees from the past 15
to 30 years in different skilled and highly skilled jobs. The
petitioners, who were engaged by the Regional Engineering
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College have been continued in the institute even after
conversion as NIT on contract basis and the writ petitioners
were making representations for regularization of their services.
3. It is submitted that when the respondents did not
consider their requests for regularization of their services, the
petitioners filed W.P.No.22427 of 2003 and 22846 of 2003 and
this Court had disposed of the Writ Petitions by orders dated
04.10.2007 and 11.10.2007 directing the respondents to
consider regularizing the services of the petitioners. It is
submitted that when the directions of this Court were not
complied with, the petitioners along with others, filed Contempt
Case Nos.408 to 422 & 534 of 2009 and batch and this Court
had disposed of the same vide order dated 04.04.2012 observing
that the direction of the Court was subject to availability of
sanctioned posts as well as permission of MHRD and since
there were no sanctioned posts and also the permission of
MHRD was not available, there was no willful disobedience on
the part of the respondents.
4. Thereafter, the respondents issued Recruitment
Advertisement No.1/2021, dated 16.08.2021, wherein the
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online applications were called for direct recruitment on regular
basis/direct recruitment on contract basis and on deputation
basis for 129 posts at different levels. Challenging the same, the
writ petitioners, along with others filed W.P.No.31379/2021 for
regularization of their services in the said vacancies and to set
aside the Recruitment Advertisement No.1/2021, dated
16.08.2021. This Court, vide orders dated 03.12.2021, has
disposed of the writ petition permitting the petitioners herein, to
submit their applications and also permitting them to
participate in the recruitment process, however, the petitioners
could not succeed in the said recruitment process.
5. Thereafter, on 22.09.2022 in its 58th meeting held
by circulation of agenda vide Agenda Item No.58.2-"recruitment
of non-faculty personnel against vacancies", the Board of
Governors resolved to approve the proposal of the institute for
releasing the advertisement for 7 officers (including the
anticipated vacancy of Registrar) and 22 other non-teaching
posts for direct recruitment. The Board has also approved the
proposal for filling up the 25 posts of Office Attendants/Lab
Assistants by internal circulation amongst the daily wage
workers subject to the condition that they meet the eligibility
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criteria as per Recruitment Rules-2019 and by giving relaxation
in age only, as approved by Board of Governors in its 48th
meeting held on 13.06.2019 as a onetime measure. It is
submitted that in its 59th meeting held on 24.02.2023, the
Board of Governors confirmed the said decision in the action
taken report on the decisions of Board of Governors, and
pursuant to the same, institute has issued vacancies Circular
No.1/2023, dated 07.02.2023 inviting applications from
amongst the eligible daily wage workers of the institute to fill up
25 vacant positions of Office Attendants/Lab Attendants duly
indicating the reservations and essential qualifications. It is
submitted that on 13.06.2023 and 14.06.2023, the petitioners
herein attended the Rozgaar Mela and received the offer letters
for the posts of Office Attendants/Lab Attendants from the
hands of Shri G.Kishan Reddy, Hon'ble Union Minister for
Tourism and accordingly, all the petitioners herein joined the
institute as regular employees after thorough verification of
their education and experience certificates. It is submitted that
while the petitioners were discharging their duties without any
complaint whatsoever from any quarter, the petitioners received
the letter dated 26.09.2023 cancelling the appointment orders
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dated 14.06.2023 on the ground that Board of Governors, in its
62nd meeting held on 29.08.2023, has reviewed the Recruitment
Rules and inter-alia noticed that the appointments cited under
reference were made by way of internal circulation without
giving equal opportunity for outsiders by way of open
advertisement and therefore, it was resolved to cancel the
appointments. Challenging the said resolution, the present writ
petition has been filed.
6. Initially, when the matter came up for admission,
this Court has granted interim stay as prayed for in I.A.No.1 of
2023 vide orders dated 04.10.2023.
7. Learned Counsel for the respondents No.3 and 4
have filed their counter affidavits along with Stay Vacate
Petitions and therefore, the matter has been taken up for
hearing at the admission stage itself.
8. Learned counsel for the petitioners has reiterated
the above submissions made in the writ affidavit.
9. Learned Standing Counsel for the respondents has
made detailed submissions and supported the averments made
in the counter affidavit. He has painstakingly taken this Court
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to all the documents filed along with the counter affidavit to
demonstrate that as per the National Institute of Technology
Service Rules, it is the function of the Executive Council to lay
down the policy regarding cadres, methods of recruitment and
conditions of service of employees and accordingly, a policy
decision has been taken. It is submitted that Sections 12 and
23 of Service Rules also provides that the institute is an Estate
under Article 12 of the Constitution of India and therefore, the
appointments to the posts of the institute shall be filled up by
advertisement on all India basis, by maintaining the ratio
between the direct recruitment and promotion posts and that
the posts are to be filled up by issuing an advertisement and
that the Registrar shall advertise the terms and conditions of
the posts and the Screening Committee shall short list the
eligible and most desirable candidates and all the appointments
should be reported to the Board at its next meeting. It is
submitted that as admitted by the petitioners themselves,
internal vacancies Circular was issued on 07.02.2023 i.e., much
prior to the 59th meeting held on 24.02.2023 and the approval
of the Board of Governors was given vide 60th meeting held on
18.05.2023. It is submitted that inviting applications from
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internal candidates was not only irregular, but also illegal in
view of they being issued in violation of the provisions of the
Act. He further referred to the extract of minutes of 62nd meeting
of the Board of Governors held on 29.08.2023 wherein, the
Board of Governors has reviewed the Recruitment Rules and
have held that appointment of 23 Office Attendants/Lab
Attendants was made through internal circulation without
giving equal opportunity for outsiders through an open
advertisement and therefore, the institute was directed to cancel
these 23 appointments and further, directed the institute to
initiate recruitment of personnel against these posts through an
open advertisement and the Board was also advised to consider
the applications of these 23 candidates. He also submitted that
the petitioners have not stated the correct facts before this
Court.
10. Leaned Standing counsel for the respondents
further submitted that pursuant to the directions of this Court
dated 04.10.2007 in W.P.Nos.22424 of 2023 and batch, the
case of the petitioners therein was considered for absorption
and regularization of their services and the Ministry of Human
Resource Development had turned down the request of the
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institute and advised to adhere to the Ministry's directions not
to make any appointments, restructuring, etc., until further
orders and also directed all the NITs, to strictly follow 1:1.5 and
a maximum of 1:2 ratio for teaching and non-teaching staff.
Therefore, the requests of the petitioners were rejected and the
services of all the daily rated workers including the petitioners
herein were terminated.
11. It is submitted that due to agitation of the
petitioners herein and others, the implementation of
termination orders has been deferred until further orders vide
orders dated 25/28.07.2008. It is submitted that the petitioners
have not challenged the termination orders till date.
12. Learned Standing counsel further relied upon the
following contentions:
(i) that illegal appointment made by the respondents
cannot have any legal right to continue;
(ii) any appointment made in violation of constitutional
scheme of equality under Article 14 of the Constitution of India,
as also in violation of provisions of the Act and Subordinate
legislations framed there under, would be wholly illegal and
without jurisdiction;
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(iii) an order cannot be quashed or set aside if it revives
an illegality or an illegal order.
13. In rebuttal, the learned counsel for the petitioners
submitted that the minutes of the 58th meeting was circulated
to the members of Board of Governors on 16.12.2022 and none
of the members have raised any objection nor made any
changes or corrections to the minutes and in the 59th meeting
held on 24.02.2023, the Board has confirmed the above
decision/minutes and the action taken report on the decisions
of Board of Governors were approved on 60th meeting held on
18.05.2023. It is submitted that having taken a decision and
having implemented the same, the Board of Governors become
functus-officio and therefore they cannot review the decision to
cancel the appointments of the petitioners and that too without
giving any notice to them. It is submitted that such an action is
without jurisdiction and is also in clear violation of principles of
natural justice. It is further submitted that the petitioners were
selected after Scrutiny Committee has screened all the
petitioners and the petitioners were subjected to examination
and also after conducting the mock test for the post of Office
Attendant/Lab Attendant. It is submitted that the petitioners
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have also been issued ID Cards indicating their designation as
the Office Attendant/Lab Attendant, Employee number, etc.,
valid upto the age of superannuation i.e., upto 60 years and
therefore, the action of the respondents is illegal and arbitrary.
14. Having regard to the rival contentions and the
material on record, this Court finds that the petitioners were
initially appointed as daily rated workers in respect of the
projects allotted to Regional Engineering College and their
services were co-terminus with the respective projects and they
were engaged from time to time as per the availability of the
projects. It is also not in dispute that the petitioners had
approached this Court earlier for regularization of their services
and the same could not be considered in spite of the directions
of this Court, in view of the directions of MHRD to maintain the
ratio of 1:1:1 in respect of the teaching and non-teaching staff
and non-availability of number of vacancies for regularization of
their services. It is also not in dispute that their services have
been continued even after conversion of the Regional
Engineering College to The National Institute of Technology in
the year 2002-03. The petitioner's services were terminated in
the year 2008, but the implementation of the same has been
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deferred by the respondents themselves and accordingly, the
petitioners are being continued in services as daily wage
workers. In the light of these facts and also the fact that the
petitioners participated in the direct recruitment process and
could not succeed in the year 2021, the Board of Governors has
taken a decision to issue an internal notification for filling up of
25 vacancies of Office Attendants/Lab Attendants from amongst
the willing and eligible daily wage workers of the institute who
possessed the requisite qualification as mentioned in the
notification, and also that it is not in dispute that the Selection
Committee has conducted a written examination as well as
mock test and has found all the petitioners to be eligible and
accordingly, they have been selected and the appointment
orders have also been given to them and all the petitioners have
assumed charge of their respective posts. Having done so,
whether the appointment orders of the petitioners can be
cancelled without any notice to the petitioners, is the question
before this Court. The contention of the learned standing
counsel for the respondents has been that for setting aside or
cancelling an illegal order, no notice is required. In support of
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his contentions, he has placed reliance upon the following
decisions. The relevant portions of the decisions are as under:
(1) State of Madhya Pradesh Vs. Lalit Kumar Verma 1:
"[13] The question which, thus, arises for consideration, would
be: Is there any distinction between 'irregular appointment' and
'illegal appointment? The distinction between the two terms is
apparent. In the event the appointment is made in total disregard
of the constitutional scheme as also the recruitment rules framed
by the employer, which is State within the meaning of Article 12 of
the Constitution of India, the recruitment would be an illegal one;
whereas there may be cases where, although, substantial
compliance of the constitutional scheme as also the rules have
been made, the appointment may be irregular in the sense that
some provisions of some rules might not have been strictly
adhered to.
In National Fertilizers Ltd. vs. Somvir Singh [2006) 5 SCC 493],
it has been held:
"The contention of the learned counsel appearing on behalf of
the respondents that the appointments were irregular and not
illegal, cannot be accepted for more than one reason. They were
appointed only on the basis of their applications. The Recruitment
Rules were not followed. Even the Selection Committee had not
been properly constituted. In view of the ban on employment, no
recruitment was permissible in law. The reservation policy
adopted by the appellant had not been maintained. Even cases of
minorities had not been given due consideration.
The Constitution Bench thought of directing regularisation of
the services only of those employees whose appointments were
irregular as explained in State of Mysore v. S.V. Narayanappa,
R.N. Nanjundappa v. T. Thimmiah and B.N.Nagarajan v. State of
Karnataka wherein this Court observed: [ Umadevi (3) case 1, SCC
p.24, para 16]
"16. In B.N. Nagarajan v. State of Karnataka this Court clearly
held that the words 'regular' or 'regularisation' do not connote
permanence and cannot be construed so as to convey an idea of
the nature of tenure of appointments. They are terms calculated
to condone any procedural irregularities and are meant to cure
1 2006 LawSuit (SC) 1078
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only such defects as are attributable to methodology followed in
making the appointments."
Judged by the standards laid down by this Court in the
aforementioned decisions, the appointments of the respondents
are illegal. They do not, thus, have any legal right to continue in
service"".
(2) Veer Kunwar Singh University Adhoc Teachers
Association Vs. Bihar State University (CC) Service
Commission 2:
[27] It is now a well-settled principle of law that any
appointment made in violation of the constitutional scheme of
equality as adumbrated under Art. 14 of the Constitution of India
as also in violation of the provisions of the Act and the
subordinate legislations framed thereunder would be wholly illegal
and without jurisdiction. It has been so held by a Constitution
Bench of this Court in Secretary, State of Karnataka and Others
V/s. Umadevi (3) and Others, 2006 4 SCC 1.
(3) St.Theresas Tender Loving Care Home Vs.
Chairperson, Board of Control and Supervision of homes,
Office of the Director, Women Development and Child
Welfare, Government of Andhra Pradesh 3:
[23] For this reason, in the ordinary course, impugned order
has to be declared as illegal. If declaration of illegality gives rise to
another illegal action of permitting petitioner to be adoption
placement agency, that would certainly amount to allowing it to
do so without proper licence/certificate of recognition. By not
adhering to procedure with regard to accepting abandoned
children and by creating fictitious relinquishment documents and
not registering biological parents correctly, petitioners certainly
violated the Orphanage Rules and Institution Rules. In such an
event, a declaration cannot be granted because it would amount
to permitting petitioner to continue illegality. It is well settled that
an order cannot be quashed or set aside if it revives an illegality or
an illegal order. A reference may be made to Gadde Venkateswara
Rao V. Government of A.P, 1966 AIR(SC) 828 and State of
Uttaranchal v. Ajit Singh Bhola, 2004 6 SCC 800. If the impugned
order is set aside on the ground the it contravenes some provision
of law and also on the ground that petitioner was not given
2 2007 LawSuit (SC) 698
3 2009 LawSuit (AP) 130
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opportunity to meet the allegations in the show cause notice, and
a direction is issued to first respondent to grant recognition to the
petitioner, it would enable unrecognized institution to handle in-
country and inter-country adoption which is quite contrary to two
Parliamentary Enactments as well as binding CARA Guidelines.
Therefore, submission of learned Counsel for petitioner cannot be
accepted.
(4) Abdul Sattar Vs. District Collector, Nizambad 4:
[8] it is obvious that any interference by this Court setting
aside the order of review would amount to resurrecting that part
in the award which is evidently an illegal one. It is settled law that
no writ could be issued quashing an illegal order to give effect to
or reviving another illegal order (See: G. Venkateshwara Rao v.
Government of A.P., , Jagan Singh v. State Transport Appellate
Tribunal, ) (FB) and Kalasagaram (Regd) Sscunderabad Cultural
Assn. v. Municipal Admn. and Labour Development Dept.,. The
order of review by the Land Acquisition Officer, though without
jurisdiction, has not resulted in failure of justice. The Court of
equity, when exercising its equitable jurisdiction under Article 226
of the Constitution must so act as to prevent perpetration of a
legal fraud and the Courts are obliged to do justice by promotion
of good faith, as far as it lies within their power.
(5) Mahajan (Taka) Latchaiah Vs. Government of
Andhra Pradesh and Others 5:
[42] Even assuming for the sake of argument that petitioners
contention that impugned Memo of 1st respondent is erroneous,
no relief can be granted to petitioner because if the said Memo is
set aside it will revive the illegal and void order of the District
Panchayat Officer dt. 9.8.2000. In Gadde Venkateswara Rao v.
Govt. of A.P., 1966 AIR(SC) 828, the Supreme Court has held that
if setting aside of an order under Art. 226 would have the effect of
reviving another order which is also contrary to law, this Court
should not grant any relief to petitioner in the Writ Petition. It
observed:
19. The result of the discussion may be stated thus:
The Primary Health Centre was not permanently located
at Dharmajigudem. The representatives of the said village
did not comply with the necessary conditions for such
location. The Panchayat Samithi finally cancelled its
earlier resolutions which they were entitled to do and
4 1999 LawSuit (AP) 165
5 2014 LawSuit (HYD) 636
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passed a resolution for locating the Primary Health
Centre permanently at Lingapalem. Both the orders of the
Government, namely, the order dated March 7, 1962, and
that dated April 18, 1963, were not legally passed: the
former, because it was made without giving notice to the
Panchayat Samithi, and the latter, because the
Government had no power under Section 72 of the Act to
review an order made under Section 62 of the Act and
also because it did not give notice to the representatives
of Dharmajigudem village. In those circumstances, was it
a case for the High Court to interfere in its discretion and
quash the order of the Government dated April 18, 1963?
If the High Court had quashed the said order, it would
have restored an illegal order it would have given the
Health Centre to a village contrary to the valid resolutions
passed by the Panchayat Samithi. The High Court,
therefore, in our view, rightly refused to exercise its
extraordinary discretionary power in the circumstances of
the case.
(6) G.Muneswaran Vs. Chief Commissioner of Land
Administration and Others 6:
[12] There is no dispute that grant of separate amounts to the
Well situated in the land acquired is not permissible under the
provisions of the Act see O. Janardhan Reddy v. Spl. Dy.
Collector, 1994 6 SCC 456. Therefore, the award No. 8.2001-
2002, dated 7-7-2001, granting separate amount for the well
situated in the land of petitioner is itself illegal. On the holding
that third respondent does not have power of review the award, if
the order is set aside, the effect would be resurrecting an award
passed earlier-insofar as petitioner is concerned, which is ex faci
illegal and contravenes the law declared by Supreme Court, which
is binding on all authorities. Therefore, though this court has or
manner of doubt to hold that LAO has no power to review the
award except to a limited extent of correcting arithmetical and
clerical errors, this Court is not inclined to accept writ petition, as
it would amount to rendering an illegal award legal. The
jurisdiction under Article 226 of Constitution of India is intended
to ensure rule of law and not resurrect illegal orders
(7) Muvva Atchutha Rao Vs. State of Andhra Pradesh,
Rep., by its Principal Secretary to Government, Revenue
6 2009 LawSuit (AP) 403
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Department, Velagapudi, Amaravati, Guntur District and
Others 7:
[14] During the life time of petitioner's father, petitioner will not
get any right over the property. This Court, while exercising equity
jurisdiction, in certain cases, should consider, factual aspects
also. Petitioner, without any right and title, got his name mutated
in respect of lands referred to supra. Though the order passed by
respondent No.4 is against the principle laid down in Ratnamma's
case (1 supra), in the opinion of this Court, if the order passed by
Revenue Divisional Officer is set aside, it amounts to revival of
illegality and the same is not permissible.
15. It is therefore to be examined as to whether by
cancelling of the impugned order, will an illegal order be revived.
Before examining to this issue, it has to be examined if the
order of appointment is an illegal order. It is noticed that in the
W.P.No.31379 of 2021, the stand of the respondents No.3 and 4
was that recruitment notification No.1/21, dated 16.08.2021
was issued in accordance with Recruitment Rules and that the
writ petitioners therein also can respond to the said Notification
and can be regularly recruited in the posts which were notified.
It was also stated that the Board of Governors have relaxed the
age and educational requirements to enable the petitioners to
apply pursuant to the Recruitment Notification. Thus, taking
the above into consideration only, this Court had directed the
respondent to permit the petitioners to apply and participate in
7 2023 (5) ALT 538 (S.B.)
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the recruitment process if they come within the Zone of
consideration. It is also noticed that the petitioners participated
and were successful in the mock test and were accordingly
appointed. Therefore, this Court does not find any illegality in
this whole process. It may have been irregular in not inviting
the applications from the open market as well. The irregularity
can be cured by the respondents by taking necessary corrective
steps, but cannot terminate the services in this process,
particularly when there was no role of the petitioners in this
irregularity in appointments. The respondents have not
cancelled the Notification, but have only cancelled the
appointments of the writ petitioners herein. Therefore, the
impugned order of the respondents is clearly illegal and cannot
be sustained. All the decisions relied upon by the learned
standing counsel for the respondent University are where the
initial order which is cancelled is illegal and not where the
initial order is irregular. Therefore, they are distinguished on
facts.
16. Further, this Court is of the opinion that the
principles of natural justice would get attracted in this case as
the appointment orders are issued to the petitioners not due to
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any illegality committed by the petitioners, but solely due to the
irregular procedure adopted by the respondents. Having issued
the appointment orders and having led the petitioners to
assume the charge and render their services, the respondents
could not have cancelled the appointment orders without giving
any notice to the petitioners. Therefore, on this ground also the
writ petition is eligible to be allowed. The other ground raised by
the petitioners for regularization of their services is in view of
the judgment of the Hon'ble Supreme Court in the case of Uma
Devi, however, cannot be accepted in this case as it is not the
case of regularization of the services of the petitioners, but it is
appointment of the petitioners subsequent to the selection
process adopted consequent to the internal
circulation/notification for filling up the vacancies. The Board of
Governors have taken a decision to fill up the vacancies through
internal circulation and even if it is an irregular act, the
petitioners have the right to be intimated or put on notice before
their appointments are cancelled. Therefore, on this ground
also, the impugned orders cannot be sustained. Thus, the writ
petition is allowed.
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17. Accordingly, this writ petition is allowed. There
shall be no order as to costs.
18. Miscellaneous petitions, if any, pending in this writ
petition, shall stand closed.
____________________________
JUSTICE T.MADHAVI DEVI
Date: 09.01.2024
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THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
Dated: 09.01.2024
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