Telangana High Court
Shaik Shafi Ahamed vs The Commissioner Of Collegiate ... on 31 January, 2024
THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
W.P.(TR)No.6009 of 2017 and
WP Nos.20171 of 2020 and 18884 of 2023
COMMON ORDER:
Since the issue involved in all these writ petitions is
intrinsically connected, all the writ petitions are heard together
and are being disposed of by this common order.
2. W.P.(TR).No.6009 of 2017 is filed seeking the following
relief:
"to declare that the appointment of Junior Lecturers
working in the Govt. Junior colleges by transfer is violative of
the law laid down by the Hon'ble Supreme Court of India in the
case of V.Jagannadha Rao and others Vs. State of A.P and
others reported in AIR 2002 SC 77 and consequently direct the
respondents not to fill up the post held by the applicant in S.R.
Govt. Arts & Science College, Kothagudem, and also to renew
the appointment of the applicant as contract Lecturer for the
academic Year 2016-2017".
3. The facts of the case, in brief, are that the petitioner was
appointed as a contract Lecturer in Hindi, by the duly constituted
Selection Committeevide proceedings dated 22.09.2003 and posted
at Government Degree College, Paloncha, and he has been
working continuously without any break. It is stated that though
the petitioner is fully qualified and eligible for regular
appointment as Lecturer in Government Degree College, he was
appointed as contract Lecturer.
4. It is further stated that the respondent No.1 addressed a
letter dated 01.06.2016 to the Government to accord permission to
renew the appointment of contract Lecturers for the Academic
Year 2016-17. The petitioner gave willingness to continue as
contract Lecturer on 08.06.2016. According to the petitioner, he
has completed 13 years of service, and therefore, he is entitled to
be continued as contract Lecturer.
5. It is further stated that the Government has taken a policy
decision to regularize the services of contract employees working
in the State of Telangana and appointed a Committee vide
G.O.Ms.No.22, Finance Department, dated 13.08.2014, to work
out the modalities of regularization of contract employees and the
Committee, in turn, has submitted its Report to the Government
for regularization of the contract employees. Pursuant to the
same, the Government has called for the particulars of the
contract employees, who are entitled to regularization. The
respondent No.3 vide letter dated 08.04.2016 furnished a list of
employees, who are entitled for regularization. In the said list,
the name of the petitioner was shown at Sl.No.5 and the matter is
under process and active consideration of the Government.
6. While so, on 16.06.2016, the respondent No.1 conducted
Departmental Promotion Committee for the Junior Lecturers for
appointing by transfer as Lecturers in Government Degree
Colleges. It is stated that the Junior Lecturers in Government
Junior Colleges belong to Intermediate Education Service,
whereas the Lecturers in Degree College belong to Collegiate
Education Service. In view of the same,the proposed
appointment of Junior Lecturers working in the Intermediate
Educational Service by transfer as Lecturers in Collegiate
Education Service is contrary to the judgment of the Hon'ble
Supreme Court in V. Jagannadha Rao v. State of Andhra
Pradesh 1.
7. It is further stated that there are about 20 Junior Lecturers
working in the Junior Colleges in Zone V and there is only one
clear vacancy of Lecturer in Government Degree College in Zone
V. In case, the Junior Lecturers working in the Junior Colleges
are appointed by transfer as Lectures in Government Degree
Colleges and posted to Zone V, the services of the petitioner will
not be continued for the Academic Year 2016-2017. Hence, the
petitioner filed O.A.No.2246 of 2016 before the Andhra Pradesh
Administrative Tribunal at Hyderabad.
8. The Tribunal vide order dated 21.06.2016 granted interim
order in O.A.No.2246 of 2016, which reads as under:
"Pending disposal of the O.A., the respondents are
directed not to fill up the post held by the applicant i.e., the post
of Lecturer in Hindi at SR Government Degree College (Arts
and Science College), Kothagudem, Khammam District."
9. However, subsequently, in view of abolition of the
Tribunal insofar as the State of Telangana is concerned,
AIR 2002 SC 77
O.A.No.2246 of 2016 was transferred to the combined High Court
for the States of Telangana and Andhra Pradesh and it is
renumbered as W.P (TR) No.6009 of 2017.
10. Seeking to vacate the interim order dated 21.06.2016 passed
by the Tribunal, the respondent No.1 - Commissioner of
Collegiate Education, Government of Telangana, filed I.A.No.1 of
2023 in W.P. (TR) No.6009 of 2017, whereas alleging willful
disobedience of the order dated 21.06.2016 passed by the
Tribunal, the petitioner filed C.C.No.937 of 2021.
11. The respondent Nos.1 and 2 filed counter affidavit along
with I.A.No.1 of 2023 in W.P. (TR) No.6009 of 2017, denying the
petition averments and inter alia stating that the respondent No.1
has complied with the interim order dated 21.06.2016 passed by
the Tribunal in O.A.No.2246 of 2016 and that the post held by the
petitioner i.e., Lecturer in Hindi at S.R.Government Degree
College (Arts and Science College), Kothagudem, Khammam, has
not been filled up and the services of the petitioner were renewed
vide proceedings dated 08.11.2016. It is further stated that on
09.11.2016, the petitioner has given an undertaking that since his
services are renewed at S.R. Government Degree College (Arts
and Science), Kothagudem, Khammam District, he will withdraw
the writ petition filed before this Court.
12. In the counter affidavit, it is further stated that surplus
posts are identified for the Academic Year 2020-21 in Hindi
subject in Government Degree Colleges and regular faculty
working in the surplus posts are identified and shifted, based on
the guidelines, to the colleges within the District/erstwhile
District with strength and requirement (18-22 teaching hours as
per UGC guidelines. Dr. T. Aruna Kumari, Lecturer in Hindi,
was identified as working in the surplus post at Government
Degree College (A), Khammam, and shifted to Government
Degree College, Paloncha, as the said college is in the erstwhile
Khammam District. Hence, the petitioner was disengaged from
on 20.11.2020 due to the joining of regular Lecturer in the post.
13. Though the Government has issued G.O.Rt.No.1086 dated
08.10.2020 granting permission for engaging 825 Lecturers on
contract basis to work in various Government Degree colleges
under the administrative control of Collegiate Education,
Hyderabad, for the Academic Year 2020-201 i.e., from 01.06.2020
to 31.05.2021 or till the actual need ceased, whichever is earlier,
the petitioner is not entitled to continue in the service as the
existing post was already filled up by the regular faculty.
W.P.No.20171 of 2020:
14. This writ petition is filed by the petitioner challenging the
proceedings dated 24.10.2020 issued by the respondent No.2
posting respondent No.4-Dr. T. Aruna Kumari, as Lecturer in
Hindi in Government Degree College, Palonchai.e., in the post of
the petitioner.
15. The facts of the case are that the petitioner was appointed
as Lecturer on contract basis vide proceedings dated 22.09.2003
and posted at Government Degree College, Paloncha, in Zone V
and joined in service on 25.09.2003. It is stated that while the
petitioner was working at Government Degree College, Paloncha,
he was transferred to Government Degree College, Manugur, on
22.03.2012. However, due to the joining of the regular Lecturer in
Hindi on 13.04.2013 at Paloncha, the petitioner was allowed to
continue till 12.04.2013. Thereafter, the petitioner was transferred
from Munugur to Kothagudemvide proceedings dated 11.07.2013
due to the posting of regular Lecturer in Hindi at
Paloncha/Manugur and the petitioner joined at S.R. Government
Arts and Science College, Kothagudem, on 11.07.2013, and
continued till 05.05.2018.
16. It is stated that while the petitioner was working at S.R.
Govt. Degree College, Kothagudem, the respondents directed
him to work at Government Degree College, Paloncha.
Accordingly, the petitioner joined duties at Paloncha on
20.06.2018 and was continuing in the same place. Thereafter, his
contract period was extended by the Government for one year
vide G.O.Rt.No.185 dated 05.09.2019 and was further extended for
one year from 01.06.2020 to 31.05.2021 vide G.O.Rt.No.1086 dated
08.10.2020 and he is discharging his duties and he has completed
17 years long service.
17. It is stated that the respondent No.2 -the Commissioner of
Collegiate Education, Telangana, issued the impugned
proceedings dated 24.10.2020 posting the respondent No.4 -Dr. T.
Aruna Kumari, Lecturer in Hindi, in Government Degree
College, Paloncha, where the petitioner is working on contract
basis, which is contrary to G.O.Rt.No.1086 dated 08.10.2020,
whereby the Government had accorded permission for engaging
825 Lecturer services on contract basis, 323 various categories of
services on outsourcing basis and 67 TSKC Full Time Mentors on
Honorarium basis, to work in various Government Degree
colleges under the administrative control of Collegiate Education,
Hyderabad, for the Academic Year 2020-201 i.e., from 01.06.2020
to 31.05.2021.
18. This Court, on 11.08.2021, while admitting W.P.No.20171 of
2020, granted interim direction as prayed for in I.A.No.1 of 2020,
which is filed to continue the services of the petitioner on contract
basis.
19. The respondent Nos.1 and 2 filed counter affidavit denying
the petition averments and inter alia stating that Government vide
G.O.Ms.No.142, Higher Education (HE) Department, dated
09.10.2000, issued directions to the Commissioner of Collegiate
Education for engaging faculty in Government Degree Colleges
on contract basis depending upon the necessity. It is stated that
Dr. T. Aruna Kumari, Lecturer in Hindi, was identified as
working in the surplus post at Government Degree College (A),
Khammam, and posted her at Government Degree College,
Paloncha. Hence, the services of the petitioner, who was working
as contract lecturer at Government Degree College, Paloncha, was
disengaged on joining of regular Lecturer. It is further stated that
in view of G.O.Rt.No.1086 dated 08.10.2020, the petitioner is not
entitled to continue in service till 31.05.2021 as the existing post
was filled up by regular faculty.
20. It is pertinent to note that alleging willful disobedience of
the order dated 11.08.2021 passed by this Court in I.A.No.1 of
2020 in W.P.No.20171 of 2020, the petitioner filed C.C.No.1259 of
2021.
21. This writ petition is filed seeking a writ of mandamus
declaring the action of the respondents in not accepting and
considering the service of the petitioner for appointment to the
sanctioned post of Lecturer in Government Degree College in
terms of G.O.Ms.No.38, dated 30.04.2023, as illegal and arbitrary
and consequently, to direct the respondents to receive the
certificates of the petitioner for verification and consider his case
for appointment as Lecturer in Government Degree College, on
par with the Lecturers appointed in terms of G.O.Ms.Nos.23, 24,
29 and 30 dated 01.05.2023.
22. It is stated that the Government has issued G.O.Ms.No.38
dated 30.04.2023 giving instructions for appointment of 270
contract Degree Lecturers working in the Government Degree
Colleges in the State against the sanctioned posts in terms of
G.O.Ms.No.16 dated 26.02.2016. The petitioner approached the
respondents in May, 2023, along with relevant certificates for
verification in terms of G.O.Ms.No.38 dated 30.04.2023.
However, the respondents refused to receive the documents filed
by the petitioner for verification. It is stated that the respondent
No.2 issued G.O.Ms.No.23 dated 01.05.2023, G.O.Ms.No.24 dated
01.05.2023, G.O.Ms.No.29 dated 01.05.2023 and G.O.Ms.No.30
dated 01.05.2023 appointing 270 contract lecturers in Government
Degree Colleges in the State against the sanctioned posts in terms
of G.O.Ms.No.16 dated 26.02.2016.
23. The respondent Nos.1 to 3 filed counter affidavit denying
the petition averments and inter alia stating that the
Commissioner of Collegiate Education has complied with the
interim order dated 21.06.2016 passed by the Tribunal in
O.A.No.2246 of 2016 and that the post held by the petitioner i.e.,
Lecturer in Hindi at S.R. Government Degree College (Arts and
Science College), Kothagudem, has not been filled up and that the
services of the petitioner were renewed vide proceeding dated
08.11.2016. It is stated that the petitioner has given an
undertaking on 09.11.2016 stating that since his services were
renewed at S.R. Government Degree College (Arts and Science
College), Kothagudem, he will withdraw the petition filed before
the Tribunal.
24. It is stated that in Government Degree Colleges, surplus
posts were identified for the Academic Year 2020-21 in Hindi
subject and regular faculty working in the surplus posts are
identified and shifted to the colleges within the District/erstwhile
District with strength and requirement, based on the guidelines.
Accordingly, Dr. T. Aruna Kumari, Lecturer in Hindi, was
identified as working in the surplus post at Government Degree
College (A), Khammam, and posted her at Government Degree
College, Paloncha. Hence, the services of the petitioner, who was
working as contract lecturer at Government Degree College,
Paloncha, was disengaged on joining of regular Lecturer.
25. The Government has issued G.O.Ms.No.16, Finance
(HRM.I) Department, dated 26.02.2016, stipulating conditions for
regularization of services of persons appointed on contract basis.
Clauses 4(b)(1) and 4(b)(3) thereof reads as under:
"Cl.4(b)(1). Availability of a post in the relevant category in
the respective departments shall be the pre-requisite condition
for considering regularization.
4(b)(3) Regularization may be considered only in respect of
eligible personal working as on 02.06.2014 immediately before
formation of Telangana State and continuing till the date of
proposed regularization."
26. It is further stated that the Government vide Memo
No.2531/CE/A1/2016 dated 30.03.2022 requested to send
proposals for regularization of services of eligible persons
appointed against sanctioned post on contract basis in
Government Degree Colleges and working as on 02.06.2014 who
fulfils conditions mentioned in the Circular Memo No.A/51/A3/
HRM-I/2014-I dated 26.02.2016 and G.O.Ms.No.16 dated
26.02.2016 in individual and category wise as per the checklist
mentioned for taking further action in the matter.
27. It is further stated that the petitioner was disengaged from
service on 20.11.2020 due to joining of regular Lecturer in the
post. Therefore, the petitioner is not eligible for regularization of
service as per G.O.Ms.No.16 dated 26.02.2016.
28. The Hon'ble Supreme Court vide order dated 25.03.2021 in
Civil Appeal No.1007 of 2021 held that though the benefit of
regularization cannot be granted to contract employees, a
window of opportunity must be given to them to compete with
the available talent through public advertisement. A separate and
exclusive test meant only for the contract employees will not be
an answer as that would confine the zone of consideration to
contract employees themselves. The modality suggested by the
University on the other hand will given them adequate chance
and benefit to appear in the ensuing selection.
29. Heard Sri D. Linga Rao, the learned counsel for the
petitioner and the learned Government Pleader for Services I.
Perused the record.
Consideration:
30. A perusal of the record discloses that the petitioner was
appointed as contract Lecturer in Hindi by the duly constituted
Selection Committee and he continuously worked for a period of
17 years and the proposals for regularization are pending.
Further, the Tribunal has passed interim order dated 21.06.2016 in
O.A.No.2246 of 2016, directing the respondents not to fill up the
post of Lecturer in Hindi in S.R. Government Degree College
(Arts and Science College), Kothagudem, Khammam District.
This High Court in I.A.No.1 of 2020 in W.P.No.20171 of 2020
passed interim order dated 11.08.2021 directing the respondents
to continue the services of the petitioner on contract basis.
31. Despite the same, the official respondents have transferred
and posted the respondent No.4 - Dr. T. Aruna Kumari in the
place of the petitioner and the petitioner was discharged from
service orally, on 20.11.2020, without issuing any notice and
opportunity of hearing. The petitioner filed the Contempt Case
vide C.C.No.937 of 2021 alleging willful disobedience of the order
dated 21.06.2016 in O.A.No.2246 of 2016 and the same is pending
before this Court.
32. Admittedly, the Junior Lecturers in Government Junior
Colleges belong to and are governed by Intermediate Education
Service, whereas the Lecturers in Degree College belong to and
are governed by Collegiate Education Service.
33. In V. Jagannadha Rao's case (1 supra), which was relied
upon by the learned counsel for the petitioner, the Hon'ble Apex
Court held that in view of the provisions in Presidential Order,
promoting persons/employees working in one Department by
transfer to another Department is unconstitutional.
34. Insofar as the contentions of the respondents that the
Department has identified an imbalance in the teaching faculty in
the colleges based on the workload calculation and accordingly,
identified the surplus regular faculty in some Government
Degree Colleges and shifted them to the required colleges based
on the workload calculation for optimum utilization of regular
teaching staff on administrative grounds is concerned, there is no
dispute with regard to the utilization of regular teaching staff, on
administrative grounds, in the vacant posts in order to meet the
necessities of the colleges.
35. However, the action of the respondents in transferring
Dr.T. Aruna Kumari, as Lecturer in Hindi to Government Degree
College, Paloncha,Kothagudem, is in clear violation of interim
orders granted by the Tribunal in O.A.No.2246 of 2016 and this
Court in I.A.No.1 of 2020 in W.P.No.20171 of 2020, since the
Tribunal vide order dated 21.06.2016 in O.A.No.2246 of 2016
directed the respondents not to fill up the post held by the
petitioner i.e., post of Lecturer in Hindi at Government Degree
College, Kothagudem, and further, this Court vide order dated
11.08.2021 in I.A.No.1 of 2020 in W.P.No.20171 of 2020 directed
the respondents to continue the services of the petitioner on
contract basis.
36. The further contention of the respondents that the order
dated 21.06.2016 passed by the Tribunal in O.A.No.2246 of 2016
is not violated, since the post held by the petitioner was not filled
up by way of regular appointment and that Dr. T. Aruna Kumari
was only transferred and posted as Lecturer in Hindi, cannot be
countenanced, since posting of Dr.T. Aruna Kumari amounts to
filling up of the regular post only.
37. It is well settled that what cannot be done directly cannot
be permitted to be done indirectly i.e., filling of post by transfer
and disengaging services of the petitioner when there is a clear
direction not to fill the post by appointment and also to continue
the services of the petitioner.
38. Admittedly, the direction issued by the Tribunal in
O.A.No.2246 of 2016 is not to fill up the post held by the
petitioner. In view of the transfer and posting of Dr. T.Aruna
Kumari, the petitioner is deprived of continuation of services. In
view of joining of Dr.T. Aruna Kumari in duty on 20.11.2020, the
petitioner's services were disengaged, which amounts to
circumvention of the order of the Tribunal dated 21.06.2016 in
O.A.No.2246 of 2016 and also orders of the High Court dated
11.08.2021 in W.P.No.20171 of 2020.
39. The respondents contended that as per G.O.Rt.No.1086
dated 08.10.2020, permission was accorded for engaging the
services of 825 Lecturers of contract basis, under the control of
Commissioner of Collegiate Education, Hyderabad, for the
Academic Year 2020-201 i.e., from 01.06.2020 to 31.05.2021 or till
the actual need ceased, whichever is earlier, and therefore, the
petitioner is not entitled to continue in the service as the existing
post was already filled up by Dr. T. Aruna Kumari by transfer.
40. As per G.O.Rt.No.1086 dated 08.10.2020, seven contract
Lecturer posts were sanctioned to the Government Degree
College, Paloncha, and the petitioner's name is also included and
only six contract Lecturers are working at Paloncha.
41. In the counter affidavits, the respondents referred to the
letter dated 09.11.2016, by which the petitioner undertook to
withdraw the writ petition in view of renewal of his services
period, however, contrary to the said undertaking, the petitioner
did not withdraw the writ petition.
42. A perusal of letter of undertaking dated 09.11.2016
discloses that the petitioner has given undertaking to withdraw
the writ petition since his services are renewed at S.R.
Government Degree College (Arts and Science College),
Kothagudem, Khammam. However, the number of the writ
petition, which the petitioner intends to withdraw, is not
mentioned in the said letter of undertaking.
43. It is pertinent to note that the petitioner herein filed
W.P.No.34312 of 2016 to declare the action of the respondents in
not renewing his services though there is a clear vacancy, as
illegal and contrary to G.O.Rt.No.21 dated 23.07.2016.
44. The learned counsel for the petitioner contended that the
said letter of undertaking dated 09.11.2016 has been given in
respect of W.P.No.34312 of 2016 and not in respect of W.P (TR)
No.6009 of 2017.
45. Having regard to the facts and circumstances of the case,
this Court is of the considered view that the letter of undertaking
dated 09.11.2016 given by the petitioner has to be treated to have
been given in respect of W.P.No.34312 of 2016, but not in respect
of W.P. (TR)No.6009 of 2017.
46. The petitioner was initially appointed as contract lecturer
in Hindi by duly constituted by the Selection Committee vide
proceedings dated 22.09.2003 and posted at Government Degree
College, Paloncha in existing post. The petitioner is fully qualified
and eligible for regular appointment as Lecturer in Govt. Degree
College, which is evident from the list of employees entitled for
regularization prepared by the respondent no.3 vide letter dated
08.04.2016 pursuant to the G.O.Ms.No.22 dated 13.08.2014. In the
said list, name of the petitioner was shown at Sl.No.5. Petitioner
has completed 17 long years of service from 22.09.2003 to
20.11.2020, and his services were disengaged by the respondents
from 20.11.2020 pursuant to transfer of Smt. T.Aruna Kumari.
47. The Hon'ble Apex Court in Nihal Singh and others vs.
State of Punjab and others 2 had observed that the dicta laid
down in Secretary, State of Karnataka and Ors. V. Umadevi and
Others 3 cannot become a license for exploitation by the State and
its instrumentalities by claiming that the appointments made by
them are of temporary in nature, when there is need for creation
of posts. The Hon'ble Apex Court also observed that the failure of
the executive government to apply its mind and take a decision to
create posts or stop extracting work from persons, such as the
appellants therein for decades together itself would be an
arbitrary action on the part of the State. The ratio laid down in
Nihal Singh's case (supra) in our consider view, applies in all
force to the facts of the present case.
48. The petitioner was appointed in the year 2003 by duly
constituted selection committee in existing vacancy and was
continued in service till 20.11.2020, on which date, his services
were disengaged thus, the petitioner put in 17 years of
continuous service. In view of the long standing service of 17
2013 (14) SCC 65
2006 (4) SCC 1
years, petitioner attained the status of de-jure permanency and
therefore, petitioner cannot be deprived of his livelihood at this
juncture in violation of Articles 14 and 16 of the Constitution of
India.
49. W.P.(TR).No.6009 of 2017 has been filed to declare that
the appointment of Junior Lecturers working in the Government
Junior Colleges by transfer is violative of the law laid down by
the Hon'ble Supreme Court of India in the case of V.Jagannadha
Rao and others Vs. State of A.P 4 and not to fill up the post held
by the petitioner in S.R. Government Arts & Science College,
Kothagudem and also to renew the appointment of the petitioner
as contract Lecturer for the academic year 2016-2017.
Admittedly, the Junior Lecturers working in the Government
Junior Colleges have not been transferred and filled the post held
by the petitioner herein. In fact, Smt. T.Aruna Kumari, who was
working in the Government Degree College, Khammam has been
transferred and posted in S.R. Govt. Degree College (Arts &
Science college), Kothagudem in the place of the petitioner
AIR 2002 SC 77
herein. Further, petitioner filed another W.P.No.34312 of 2016 to
renew his services. It is also represented that petitioner's services
were renewed for the year 2016-17 and therefore, this writ
petition has become infructuous and is accordingly dismissed.
50. In the light of the above facts, circumstances and
discussion, W.P.No.20171 of 2020 is allowed and the proceedings
dated 24.10.2020 issued by the Commissioner of Collegiate
Education, Hyderabad, transferring Dr. T. Aruna Kumari, Hindi
Lecturer, to Government Degree College, Paloncha, Bhadradri-
Kothagudem District, are set aside. Consequently, petitioner is
entitled to continuity of services, notional benefits and for
regularization of his services. However, in view of the principle
''no work no pay'', petitioner is not entitled to salary for the
period not in service.
51. In the light of above facts, circumstances and discussion,
W.P.No.18884 of 2023 is disposed of, directing the respondents to
consider the petitioner for appointment to the sanctioned post of
Lecturer in Government Degree Colleges on par with lecturers
appointed in terms of G.O.Ms.Nos.23, 24, 29 and 30 dated
01.05.2023, and pass orders, within a period of eight weeks from
the date of receipt of a copy of this order.
Pending Miscellaneous Applications, if any, shall stand
closed. There shall be no order as to costs.
__________________________________
LAXMI NARAYANA ALISHETTY,J
Date: 31.01.2024
Va/kkm
