Telangana High Court
P Uma Bhargavi vs The State Of Telangana on 19 November, 2024
*THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
*THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
+WRIT PETITION Nos.10744, 11643, 13223 and 14300 of
2023 and WRIT PETITION (TR) No.5972 of 2017
% 19-11-2024
# V. Praveen Kumar and Others. ...Petitioners
vs.
$ The State of Telangana, rep. by its Chief Secretary,
General Administration Department, Hyderabad and Others
... Respondents
!Counsel for the Petitioners : Sri A. Phani Bhushan in
W.P.No.10744 of 2023
Ms.B. Rajeshwari, representing
Ms.K.V.Rajasree in
W.P.No.11643 of 2023
Sri P.Rama Sharana Sharma in
W.P.No.14300 of 2023
Sri M. Surender Rao, learned Senior
Counsel representing Sri Srinivasa Rao
Madiraju in W.P.(TR).No.5972 of 2017
^Counsel for Respondents: Ms. M.Shalini, G.P. for Services
Ms. Vladimeer Khatoon in
W.P.No.14300 of 2023
Head Note :
? Cases referred
1. 2022 SCC OnLine TS 3384
2. 2006 (4) SCC 1
3. (2009) 4 SCC 342
4. (1974) 4 SCC 335
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5. (2007) 11 SCC 528
6. 1989 Supp (1) SCC 430
7. (1992) 1 SCC 335
8. (1987) 1 SCC 424
9. Civil Appeal No.2643 of 2022, dated 31.03.2022
10. AIR 1988 SC 740
11. (2011) 5 SCC 305
12. AIR 1959 SC 93
13. (2002) 1 SCC 633
14. AIR 1992 SC 1981
15. AIR 1998 SC 554
16. AIR 2001 SC 2856
17. AIR 2002 SC 1357
18. AIR 1998 SC 1388
19. (2013) 3 SCC 489
20. 2010 (9) SCC 247
21. (2021) 16 SCC 71
22. (2001) 9 SCC 261
23. (2009) 1 SCC 768
24. (2005) 6 SCC 138
25. (1971) 3 SCC 201
26. (1984) 4 SCC 371
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IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
WRIT PETITION Nos.10744, 11643, 13223 and 14300 of 2023
and WRIT PETITION (TR) No.5972 of 2017
Between:
V. Praveen Kumar and Others
...Petitioners
vs.
The State of Telangana, rep. by its Chief Secretary,
General Administration Department, Hyderabad and Others
... Respondents
JUDGMENT PRONOUNCED ON: 19.11.2024
THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? :
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? :
3. Whether His Lordship wishes to
see the fair copy of the Judgment? :
___________________
SUJOY PAUL, J
_____________________________________
NAMAVARAPU RAJESHWAR RAO, J
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THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU
RAJESHWAR RAO
WRIT PETITION Nos.10744, 11643, 13223 and 14300 of
2023 and WRIT PETITION (TR) No.5972 of 2017
COMMON ORDER:
(Per Hon’ble Justice Sujoy Paul)
In this batch of petitions filed under Article 226 of the
Constitution (except W.P.(TR) No.5972 of 2017, which is
transferred from Andhra Pradesh Administrative Tribunal upon its
abolishment), the petitioners have challenged the constitutional
validity of Section 10-A of the Telangana (Regulation of
Appointments to Public Services and Rationalization of Staff
Pattern and Pat Structure) Act, 1994 (‘Act of 1994’), whereby
respondents sought to regularize the alleged illegal appointments
made on contract basis.
Factual Background:
2. The facts are taken from W.P.No.10744 of 2023. The
petitioners are unemployed youth. The petitioners in paragraph
No.3 of the Writ Affidavit in tabular form mentioned their names,
qualifications and additional qualifications, which highlighted that
the petitioners are postgraduates, one of them has done his Ph.D,
two have qualified SET and two have qualified NET.
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3. The grievance of the petitioners is that the petitioners being
unemployed youth have a legitimate expectation and fundamental
right of consideration against the statutory posts in the
Government departments.
Contention of the petitioners:-
4. It is highlighted that the posts of Junior Lecturers,
Polytechnic Lecturers and Degree Lecturers were governed by
service rules, which were introduced through G.O.Ms.No.302,
dated 30.12.1993 (Annexure P-6). The Rules framed under
proviso to Article 309 of the Constitution are called as the Andhra
Pradesh Intermediate Education Service Rules (‘Education
Service Rules’). Rule 3 of the above rules prescribes method of
appointment to the post of Junior Lecturers and said posts can be
filled up as per the percentage prescribed for direct recruitment
and through promotion from the feeder posts. Similarly, for
the post of Degree Lecturers G.O.Ms.No.6, dated 06.02.2023 was
brought into force. The posts of Assistant/Associate Professor of
degree colleges and Degree Lecturers can be filled up by way of
direct recruitment or recruitment of transfer from Junior
Lecturers in the related subject in the Department of Intermediate
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Education. In both the aforesaid rules, the eligibility and
qualification is specifically mentioned.
5. The contention of the petitioners is that they are having
requisite qualifications for selection and appointment to the posts
of Junior Lecturers, Assistant/Associate Professors and Degree
Lecturers. In accordance with the aforesaid Education Service
Rules, the said posts ought to have been filled up as per the
procedure prescribed. An advertisement should have been issued
inviting candidature of eligible candidates and in that event, the
petitioners and similarly situated unemployed youth could have
submitted their candidature to occupy the aforesaid posts.
6. The Government of Andhra Pradesh enacted the Andhra
Pradesh College Service Commission Act, 1985 (‘Act of 1985’)
and as per the said Act, the posts of Junior Lecturers and Degree
Lecturers were required to be filled up by College Service
Commission under the Act of 1985. However, the said Act was
repealed in the year 2001. Thereafter, the respondents have
resorted to illegal methods for making the appointments to the
posts of Junior Lecturers and Degree Lecturers on contractual
basis by College Development Committee, which was constituted
through an executive order issued under Article 162 of the
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Constitution of India vide G.O.Ms.Nos.142 and 143, dated
09.10.2000 and G.O.Ms.No.94, dated 28.03.2003. Since a specific
method of recruitment is prescribed by the statutory
rules/Education Service Rules framed under proviso to Article 309
of the Constitution, the said contractual appointments were in fact
made through back door.
7. Sri A. Phani Bhushan, learned counsel for petitioners in
W.P.No.10744 of 2023, Ms. B. Rajeshwari, learned counsel
representing Ms. K.V. Rajasree, learned counsel for the petitioners
in W.P.No.11643 of 2023, Sri P. Rama Sharana Sharma, learned
counsel for the petitioners in W.P.No.14300 of 2023 and Sri M.
Surender Rao, learned Senior Counsel representing Sri Srinivasa
Rao Madiraju, learned counsel for the petitioners in
W.P.(TR).No.5972 of 2017, took a common ground that after 2002
for the posts in question no direct recruitment had taken place.
The official respondents appointed some persons on contractual
basis without following any transparent procedure. No
advertisement was issued inviting applications of eligible
candidates. The selection committee, eligibility and qualifications
prescribed for said contractual appointment were in utter violation
of Education Service Rules.
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8. In the Act of 1994, Section 10-A was inserted by
G.O.Ms.No.16, dated 26.02.2016. Criticizing this, the learned
counsel for the petitioners urged that this order is passed in
purported exercise of power under Section 101 of the Andhra
Pradesh Reorganisation Act, 2014 (‘Reorganisation Act’). It is
submitted that the existing recruitment rules namely Education
Service Rules, dated 30.12.1993, were neither amended nor
repealed. Withstanding the said Rules, it was no more open for
the respondents to insert Section 10-A under the Act of 1994
under the garb of Section 101 of the Reorganisation Act.
Furthermore, it is submitted that the Division Bench of this Court
in Healthcare Reforms Doctors Association v. State of
Telangana 1 decided on 06.12.2022 had an occasion to examine
the ambit and scope of Section 101 of the Reorganisation Act. It
was held that no modification or amendment is permissible if it
substantially changes the provision of existing Act/Rules. The
modification/ amendment can be made only in the ‘form’ and not
in ‘substance’.
9. It is strenuously contended that by inserting impugned
Section 10-A in the Act of 1994, the Government got itself
1
2022 SCC OnLine TS 3384
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equipped with the power to regularize the services of persons
appointed on contractual basis against the sanctioned posts. The
conditions are appended to the G.O., upon fulfillment of which the
regularization became permissible. The said conditions are (1)
Availability of a post in the relevant category in the respective
departments shall be the pre-requisite condition for considering
regularization. (2) Regularization may be considered only in
respect of persons appointed on full time contract basis on a
monthly remuneration. (3) Regularization may be considered only
in respect of eligible personnel working as on 2nd June, 2014,
immediately before formation of Telangana State, and continuing
till the date of proposed regularization. (4) For the purpose of
continuity the annual breaks in certain vacation departments like
Education and Welfare Departments may be ignored. This
condonation shall not, however, apply in respect of breaks on
account of unauthorized absence and disciplinary cases. (5) The
regularization shall be with prospective effect, i.e., from the date of
issue or orders of regularization and appointment to the category
and (6) The backlog in reservations if any arising out of
regularization as above shall be carried forward and treated as
backlog vacancies for that particular category.
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10. The bone of contention of the petitioners is that by applying
Section 10-A aforesaid, the respondents regularized the services of
contractual employees, who did not enter into services as per
transparent selection procedure. Such contractual employees
were backdoor entrants and were not having requisite eligibility
and qualifications as per Education Service Rules. In this regard,
reference is made to Constitution Bench judgment of Supreme
Court in the case of the Secretary, State of Karnataka v.
Umadevi 2, to bolster the submission that theory of legitimate
expectation has no role to play in favour of such contractual
employees. Such theory cannot be invoked to grant a positive
relief of becoming permanent in the post. It is further highlighted
that a public employment can only be made through fair and
equitable procedure by considering all those who are qualified.
11. Sri Rama Sharan Sharma, learned counsel for the
petitioners in W.P.No.14300 of 2023 added that in the
Constitution Bench judgment in the case of Umadevi (supra) it
was in clear terms held that there should not be any further
bypassing of constitutional requirement and regularization of
those not duly appointed as per constitutional scheme. The
2
2006 (4) SCC 1
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judgment in the case of Umadevi (supra) was pronounced on
10.04.2006 and in the instant case, the contractual appointments
were made after the judgment of Umadevi (supra). The impugned
Section 10-A was also inserted after the judgment of the Supreme
Court in the said case. Thus, the impugned provision is violative
of Articles 14, 16 and 21 of the Constitution which also runs
contrary to the binding principles laid down by the Constitution
Bench in the case of Umadevi (supra).
12. It is forcefully argued that Section 101 of Reorganisation Act
cannot be the source for making a parallel provision prescribing
different eligibility and qualification when statutory
rules/Education Service Rules are still in vogue.
13. He placed heavy reliance on Rule 9 of the Telangana State
Subordinate Service Rules, 1996 (Subordinate Service Rules) to
bolster the submission that although the Government had power
to make appointment to any post in a service other than in
accordance with the Rules or Special Rules through agreement or
contract, such appointees cannot be treated to be members of
service. Thus, a combined reading of Education Service Rules and
Subordinate Service Rules with Articles 14 and 16 makes it crystal
clear that in exercise of power under Section 101 of the
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Reorganisation Act, Section 10-A of the Act of 1994 could not have
been introduced. Section 10-A is not only introduced without
authority of law because it is not inconsonance with Section 101
of the Reorganisation Act, but also violates Articles 14 and 16 of
the Constitution as well as provisions of statutory recruitment
rules i.e., Education Service Rules. Thus, it is common prayer
that impugned Section 10-A may be set aside.
14. Sri M. Surender Rao, learned Senior Counsel for the
petitioners in W.P.(TR) No.5972 of 2017, placed reliance on a
judgment of the Supreme Court in the case of State of Karnataka
v. G.V. Chandrashekar 3. He submits that the order issued
pursuant to Section 101 of the Reorganisation Act will at best can
be treated to be an executive order akin to an order passed in
exercise of power under Article 162 of the Constitution. Such
executive order cannot be enforced when statutory rules like
Education Service Rules are in force and holding the field.
15. Anticipating the objection of other side, it is common stand
of the learned Senior Counsel for the petitioners that in a case of
this nature where constitutionality of enabling statutory provision
is subject matter of challenge, there was no need to implead all
3
(2009) 4 SCC 342
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regularised contractual employees as party respondents.
Reference is made to the judgments of the Supreme Court in
General Manager, S.C. Railway v. Siddhantti 4 and Govt. of A.P.
v. G.Jaya Prasad Rao 5. Even otherwise, few of such regularised
employees have filed implead petitions which have been allowed
and they are representing such regularised contractual employees.
Since few of them have already become party to these matters and
contesting the same the objection even otherwise does not hold
water.
16. The petitioner in his written submissions, made an effort to
counter the stand taken in the counter affidavit by placing
reliance on the judgment of the Supreme Court in the case of
Ramesh Birch v. Union of India 6. It is submitted that in view of
the said judgment, by exercising power under Section 101 of the
Reorganisation Act, substantial changes contrary to existing
statutory rules could not have been made. Such power is limited
and could have exercised within the aforesaid boundaries only.
4
(1974) 4 SCC 335
5
(2007) 11 SCC 528
6
1989 Supp (1) SCC 430
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Stand of the State of Telangana:
17. The counter-affidavit is filed by respondent No.2 by stating
that Section 101 of the Reorganisation Act is an enabling
provision pursuant to which existing law within stipulated period
can be subjected to adoption/modification/alteration/amendment
or can be repealed. Considering the unique demand and
challenges faced by nascent State, power under Section 101 of the
Reorganisation Act was rightly exercised by introducing Section
10-A of the Act of 1994 vide G.O.Ms.No.16, dated 26.02.2016. Six
conditions mentioned below Section 10-A for the purpose of
deciding eligibility for regularisation which are already reproduced
hereinabove were highlighted.
18. In the counter, it is further submitted that a proposal duly
submitted was examined in terms of G.O.Ms.No.16, dated
26.02.2016 and orders were issued for regularisation of services of
5544 contractual persons vide G.O.Ms.No.38, dated 30.04.2023.
The proposal of the Government for future recruitment is also
highlighted. Since further posts will be filled up in future and said
process is an ongoing process, the petitioners’ apprehension that
impugned provision will foreclose the opportunities of unemployed
youth is incorrect. The impugned provision and action is in
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accordance with law and does not infringe the petitioners’ rights
flowing from Articles 14 and 16 of the Constitution.
19. It is further averred in the counter that impugned Section
10-A of the Act of 1994 and guidelines were issued inconsonance
with the law laid down by the Supreme Court in Umadevi (supra).
Emphasis is laid in para No.7 of the counter on the law laid down
by the Supreme Court wherein it is held that regularisation as a
one-time measure is permissible. In exercise of said power in the
peculiar circumstances by taking into account the age of the
persons and other factors regularisation was considered. The
contention of the petitioners that the official respondents are
considering all contractual lecturers on rolls without verification of
certificates possessed by them is incorrect. The regularisation had
taken place in accordance with the conditions appended to
impugned Section 10-A.
20. Lastly, in the counter, it is stated that G.O.Ms.No.38, dated
30.04.2023, permitted the administrative Departments to appoint
contractual persons on regular basis against sanctioned posts as
per G.O.Ms.No.16, dated 26.02.2016. Accordingly, respondent
No.2 vide different GOs had permitted respondent Nos.4 and 6 to
regularise the contractual lecturers working in Government
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colleges against sanctioned posts in terms of G.O.Ms.No.16, dated
26.02.2016.
21. The State also filed written submissions and reiterated that
impugned Section 10-A of the Act of 1994 has a statutory
foundation in Section 101 of the Reorganisation Act. As per para
53 of Constitution Bench Judgment of the Supreme Court in
Umadevi (supra), the one-time exercise of regularising the
contractual employees was permissible. Such contractual
employees who have worked for long time had legitimate
expectation of being regularised. The judgment of Supreme Court
in R.S. Raghunath v. State of Karnataka 7 is referred to submit
that when the words ‘notwithstanding anything…’ are added to a
provision, the provision must be interpreted harmoniously and
cannot be held void on the ground that it infringes any
constitutional provision. The judgment of the Supreme Court in
RBI v. Peerless General Finance & Investment Co. Ltd. 8 was
referred to point out that non-obstante clauses have been placed
to ensure that provisions are not in conflict with each other and
such clauses must be interpreted in the manner that both the
context and textual interpretation match. The decision to
7
(1992) 1 SCC 335
8
(1987) 1 SCC 424
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regularise the contractual employees is based on directive
principles of State policy enshrined in the Constitution
particularly Articles 38, 39(a), 41 and 43 of the Constitution.
G.O.Ms.No.16, dated 26.02.2016, contains proper guidelines for
regularisation.
22. The statute must be read as a whole and then section by
section. This contention is based on the judgment of the Supreme
Court in Kalyan Dombivali Municipal Corporation v. Sanjay
Gajanan Gharat 9. Since Section 10-A of the Act of 1994 is
inserted carefully with calibrated approach consistent with
principles of equity, efficiency and administrative necessity, there
is no scope of interference by this Court
Stand of Unofficial Respondents:
23. Ms. Vladimeer Khatoon, learned counsel for unofficial
respondents/regularised contractual employees in W.P.No.14300
of 2023, at the threshold urged that the present Writ Petitions are
barred by principle of res judicata. However, she fairly submitted
that her argument is based on order of previous round of litigation
in W.P.(PIL) No.122 of 2017 filed by certain unemployed youth
which was not entertained. She fairly admitted that present
9
Civil Appeal No.2643 of 2022, dated 31.03.2022
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petitioners were not parties to the earlier litigation. She raised
objection for not impleading 5544 regularised employees as party
respondents and urged that in absence of impleading them as
necessary parties, the Writ Petitions are liable to be dismissed.
24. She further submitted that on 21.08.2023, this Court
directed the Writ Petitioners to implead all the regularised
employees. The unofficial respondents are working since 2009. If
they are terminated at this juncture, it will cause serious hardship
to them.
25. Respondent Nos.3, 4 and 7 and respondent Nos.7 to 24 also
filed written submissions. It is common ground that since W.P.
(PIL) No.122 of 2017 was dismissed, the present Writ Petitions are
hit by principle of res judicata and the petitioners have no locus to
file the present Writ Petitions.
26. Respondent Nos.7 to 24, in their written submissions,
borrowed similar argument and in addition, urged that order
passed in the aforesaid W.P. (PIL) No.122 of 2017 was in rem and
hence, the doctrine of res judicata is attracted. The unofficial
respondents have been appointed on satisfying the recruitment
rules then existing at the time of their recruitment on the
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assurance that either regular appointment will be made or their
services will be regularised. The judgment of the Supreme Court
in the case of Bhagat Ram Sharma v. Union of India 10 is
highlighted to submit that amendment is a wider term and it
includes abrogation or deletion of a provision in an existing
statute. If amendment of the existing law is small, the Act
professes to amend, if it is extensive, it repeals the law and
re-enacts it. Another judgment of the Supreme Court in the case
of State of Uttar Pradesh v. Hirendra Pal Singh 11 is referred to
show the distinction between repeal and amendment.
Rejoinder:-
27. Sri A. Phani Bhushan, learned counsel for the petitioners in
W.P.No.10744 of 2023, submitted that no doubt earlier certain
unemployed youth filed Writ Petitions before this Court but the
matter travelled up to the Supreme Court. The order dated
19.09.2022 of the Supreme Court in SLP (C) Diary No.15637 of
2022 shows that liberty was given to file fresh Writ Petitions.
Thus, present Writ Petitions are filed which does not attract
principle of res judicata.
10
AIR 1988 SC 740
11
(2011) 5 SCC 305
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FINDINGS:
Barred by res judicata?
28. The respondents took a common ground that the present
petitions are hit by principles of res judicata. This argument is
advanced in view of the order passed in W.P.(PIL) No.122 of 2017.
Admittedly, the said order passed by this Court became subject
matter of challenge in S.L.P.(Civil) Diary No.15637 of 2022,
wherein, the Supreme Court opined as under:
“Both the orders show that the matters were not considered
on merits and the matters were disposed of on technical
issues such as whether the public interest litigation would be
maintainable and whether the petitioners could have raised
the second challenge.”
(Emphasis Supplied)
29. A plain reading of the finding of the Supreme Court shows
that the adjudication and order passed in W.P.(PIL) No.122 of
2017 was not on merits. It was not in dispute between the parties
that all the petitioners herein were not parties to the said PIL and
hence, principles of res judicata, cannot be pressed into service.
Apart from this, the Supreme Court in the said order dated
10.09.2022 (Annexure P-16) gave liberty to the petitioners to file
fresh proceedings or implead themselves in pending proceedings.
For these cumulative reasons, the aforesaid objection deserves to
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be rejected. For the same reason, objection about ‘locus’ of
petitioners must fail.
Necessary parties:-
30. The argument forcefully advanced by the respondents is that
the petitioners have not impleaded all the regularized contractual
employees and in absence of their impleadment, the petitions
must be dismissed.
31. We do not see any merit in this contention for twin reasons.
Firstly, the petitioners have challenged the constitutionality of the
enabling provision namely Section 10-A of Act of 1994. When
enabling provision itself is subject matter of challenge, it is not
necessary to implead persons who are going to be affected. In,
A.V.R. Siddhantti (supra) (check) it was held as under:
“15. As regards the second objection, it is to be noted that
the decisions of the Railway Board impugned in the writ
petition contain administrative rules of general application,
regulating absorption in permanent departments, fixation of
seniority, pay etc. of the employees of the erstwhile Grain
Shop Departments. The respondents-petitioners are
impeaching the validity of those policy decisions on the
ground of their being violative of Articles 14 and 16 of the
Constitution. The proceedings are analogous to those in
which the constitutionality of a statutory rule regulating
seniority of Government servant is assailed. In such
proceedings the necessary parties to be impleaded are
those against whom the relief is sought, and in whose
absence no effective decision can be rendered by the
Court….”
(Emphasis Supplied)
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32. The aforesaid principle was also followed by Supreme Court
in G.Jaya Prasad (supra), which reads and under:
“29. It is true that when the validity of the rules is
challenged it is not necessary to implead all persons who
are likely to be affected as party. It is not possible to
identify who are likely to be affected and secondly, the
question of validity of the rule is a matter which is decided on
merit and ultimately, if the rule is held to be valid or invalid,
the consequence automatically flows. Therefore, the original
application filed before the Andhra Pradesh Administrative
Tribunal or for that matter before the High Court does not
suffer from the vice of non-joinder of necessary party.”
(Emphasis Supplied)
33. Since vires of enabling provision is under challenge, it was
not necessary to implead all the persons going to be affected.
However, in the instant case, sizeable numbers of regularized
contract employees have joined the petition upon allowing their
applications for impleadment as respondents and vehemently
contested the matter. For this reason alone, no such defect
remains in the petitions. Hence, the petitions cannot be thrown to
wind on such technical ground.
Constitutionality of Impugned Section 10-A:
34. Admittedly, the said provision came into being in exercise of
power under Section 101 of the Reorganisation Act. This
provision came up for consideration in three matters before
different Division Benches of this Court. In W.P.No.4401 of 2019,
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decided on 11.07.2019, the petitioner therein prayed for transfer
on spousal ground and took assistance of G.O.Rt.No.450, dated
17.04.2014. Speaking for the Division Bench, Hon’ble Sri Justice
Sanjay Kumar (as his Lordship then was) of the opinion that
Section 2(f) of the Reorganisation Act defines ‘law’ which includes
any enactment, ordinance, regulation, order, bye-law, rule,
scheme, notification or other instrument having, immediately
before the appointed day, the force of law in the whole or in any
part of existing State of Andhra Pradesh. Thus, the executive
order i.e., G.O.Rt.No.450, dated 17.04.2014, was held to be ‘law’
in terms of definition mentioned in Section 2(f). While considering
the scheme of Sections 101 and 102 of the Reorganisation Act,
this Court came to hold that under Section 102, the Court is
empowered to enforce a law and construe the same in such
manner, without affecting the substance, as may be necessary or
proper in regard to the matter before such Court, Tribunal or
Authority.
35. G.O.Rt.No.450, dated 17.04.2014, was considered on the
anvil of Section 2(f) read with Section 101 of the Reorganisation
Act and it was held as follows:
“…Admittedly, the State of Telangana did not choose to issue
any further executive instructions canceling or modifying the
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WP_10744_2023_&_batchdecision embodied in G.O.Rt.No.450 dated 17.04.2014.
Therefore, any authority before whom the said executive
decision came up for enforcement, necessarily had to construe
it in terms of Section 102 of the Act of 2014, without affecting
the substance thereof. In consequence, it was not open to the
Government of Telangana to baldly ignore the substance of
the executive decision embodied in G.O.Rt.No.450 dated
17.04.2014 and dismiss the plea of the petitioner to
implement the decision in the aforestated G.O. by claiming
that it was not feasible for consideration at this stage. By its
very inaction in the context of the statutory scheme of Section
101 of the Act of 2014, the Government of Telangana
committed itself to be bound by the executive decision of the
Government of the combined State as set out in
G.O.Rt.No.450 dated 17.04.2014…”
(Emphasis Supplied)
36. Pausing here for a moment, this judgment shows that if any
previous ‘law’ is not cancelled, repealed or modified, the State is
bound by the previous law.
37. The impugned provision i.e., Section 10-A of the Act of 1994
read as under:
“Regularisation of Services of persons appointed on
contract basis.
10-A. Notwithstanding anything contained in this Act, the
Government may regularise the services of the persons
appointed on contract basis against the sanctioned posts in
the Government, subject to fulfilment of the following
conditions:
(Emphasis Supplied)
38. A careful reading of this provision shows that it begins with
a non-obstante clause and such overriding provision is only in
relation to other provisions of the same Act i.e., Act of 1994. The
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non-obstante clause cannot have overriding effect on any other
enactment including the Education Service Rules. More-so when
service rules are statutory in nature and introduced in exercise of
power flowing from proviso to Article 309 of the Constitution.
39. The parties are at loggerheads on the interpretation of
Section 101 of the Reorganisation Act. For better understanding,
the said provision is split up as under:
“101. Power to adapt laws.
For the purpose of facilitating the application in relation to
the State of Andhra Pradesh or the State of Telangana of any
law made before the appointed day,the appropriate Government may, before the expiration of two
years from that day,by order, make such adaptations and modifications of the
law, whether by way of repeal or amendment,as may be necessary or expedient,
and thereupon every such law shall have effect subject to the
adaptations and modifications so made until altered, repealed
or amended by a competent Legislature or other competent
authority.”
40. A microscopic reading of Section 101 of the
Reorganisation Act shows that it deals with ‘Power to adapt
laws’. The question of adaptation arises only in relation to
pre-existing laws. This is also clear that Section 10-A of the
Act of 1994 deals with any law (existing law) made before the
appointed day. In this case, the parties have not raised
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ground regarding limitation within which power could have
been exercised. Thus, it is unnecessary for us to deal with
the said aspect of Section 101 which deals with limitation
within which power under Section 101 can be exercised.
41. The next portion of the said section provides that by
‘order’ adaptations or modifications of law can be made,
which can be done by way of amendment or repeal. The
discretion for this purpose is left on the wisdom of the State of
Andhra Pradesh or Telangana, as the case may be. When
such order is passed in exercise of power under Section 101
of the Reorganisation Act and any existing law is amended,
modified or repealed, such law shall have effect subject to
adaptations and modifications so made. This modified law
will continue to govern the field unless it is altered, repealed
or amended by competent Legislature/Authority.
42. The matter may be viewed from another angle. Section 102
of the Reorganisation Act reads as under:
“102. Power to construe laws.
“Notwithstanding that no provision or insufficient provision
has been made under section 102 for the adaptation of a law
made before the appointed day, any court, tribunal or
authority, required or empowered to enforce such law may, for
the purpose of facilitating its application in relation to the
State of Andhra Pradesh or the State of Telangana, construe
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WP_10744_2023_&_batchthe law in such manner, without affecting the substance,
as may be necessary or proper in regard to the matter before
the court, tribunal or authority.”
(Emphasis Supplied)
43. There is a statutory obligation on the Authority, Court or
Tribunal for construing the law in a manner which does not affect
the substance. Section 101, as discussed above, deals with
adaptation of laws. As the word ‘adapt’ suggests, adaptation can
be of a law which is already in existence. In ‘The Law Lexicon’
(Fifth Edition) by P.Ramanatha Aiyar, the meaning of ‘Adaptation
Order’ is assigned thus:
“An order issued for the purposes of adaptation, particularly
an order modifying the existing laws so as to bring them in
conformity with the new constitutional provisions.”
44. Thus, the only plausible interpretation of Section 101 by
taking assistance of Section 102 will be that adaptation is
permissible in the manner prescribed in Section 101. In view of
our elaborate analysis, impugned Section 10-A of the Act of 1994
cannot be said to be a valid exercise of insertion in the Act of
1994. Such insertion of Section 10-A, by no stretch of
imagination amounts to adaptation by way of ‘amendment’,
‘repeal’ or ‘modification’ of existing ‘law’. Thus, Section 10-A is not
inserted as permissible under the enabling provision i.e., Section
101 of the Reorganisation Act.
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Non-obstante clause in Section 10-A:
45. A bare reading of impugned Section 10-A of the Act of 1994
makes it clear like noon day that no ‘existing law’ is referred in the
said provision. Thus, there is no intent behind it which seeks to
alter, modify, amend or repeal the Education Service Rules or any
other existing provision of ‘law’. This is trite that if a law
prescribes a thing to be done in a particular manner, it has to be
done in the same manner and other methods are forbidden (see
Baru Ram v. Prasanni 12 and Commissioner of Income Tax,
Mumbai v. Anjum M.H. Ghaswala 13). It is equally well settled
that if language of statute is plain and unambiguous, it has to be
given effect to irrespective of its consequences (see Nelson Motis
v. Union of India 14).
46. The judgment cited by respondents in the cases of R.S.
Raghunath, Kalyan Dombivalli Municipal Corporation, Bhagat
Ram Sharma and Hirendra Pal Singh (supra) are not applicable
in the facts and circumstances of this case. The combined
reading of Section 101 of the Reorganisation Act and Section 10-A
of the Act of 1994 does not lead to an interpretation that despite
not impliedly or expressly repealing, modifying or amending the
12
AIR 1959 SC 93
13
(2002) 1 SCC 633
14
AIR 1992 SC 1981
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WP_10744_2023_&_batchEducation Service Rules, the same will become
inoperative/superseded or vanish in thin air.
47. The expression ‘notwithstanding anything in any other law’
occurring in a section of an Act cannot be construed to take away
the effect of any provision of the Act in which that section appears
(see P.Virudhachalam v. Management of Lotus Mills 15). In
other words ‘any other law’ will refer to any law other than the Act
in which that section occurs {see P.Virudhachalam (supra)}. In
contrast the expression ‘notwithstanding anything contained in
this Act’ may be construed to take away the effect of any provision
of the Act in which the section occurs but it cannot take away the
effect of any other law (see Satyanarayan Sharma v. State of
Rajasthan 16). Above highlighted portion is in conformity with our
view mentioned in para 38 above. The expression
‘notwithstanding anything to the contrary in any enactment’
cannot take away the effect of any provision in a law which is not
an enactment (see Sharada Devi v. State of Bihar 17). Even if the
notwithstanding clause is very widely worded, its scope may be
restricted by construction having regard to the intention of the
Legislature gathered from the enacting clause or other related
15
AIR 1998 SC 554
16
AIR 2001 SC 2856
17
AIR 2002 SC 1357
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WP_10744_2023_&_batchprovisions in the Act. This may be particularly so when the
notwithstanding clause ‘does not refer to any particular provision
which it intends to override but refers to the provisions of the
statute generally (see A.G. Varadarajulu v. State of Tamil
Nadu 18).
48. The State has rightly placed reliance on the judgment in
Peerless General Finance & Investment Co. Ltd. (supra),
wherein it was poignantly held that while interpreting a statutory
provision, the text and context both should be considered. It is
further held that the the judicial key to construction is the
composite perception of the deha and the dehi of the provision.
The said ratio decidendi was followed by the Supreme Court in
Ajay Maken v. Adesh Kumar Gupta 19.
49. In view of language employed in Section 10-A of the Act of
1994 and Section 101 of the Reorganisation Act mentioned above,
we are unable to persuade ourselves with the line of argument
that Section 10-A will override repeal, amend or modify the pre-
existing law. At the cost of repetition, it is clear that it is nowhere
mentioned in Section 10-A that it seeks to repeal, amend or
18
AIR 1998 SC 1388
19
(2013) 3 SCC 489
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modify any existing law and the only intent is to override the other
provisions of the Act of 1994.
50. Another Division Bench of this Court in W.P.No.1111 of
2019, dated 11.07.2019, opined that in exercise of power under
Section 101 of the Reorganisation Act, the modification or
amendment can only be in the ‘form’ and not in ‘substance’. In
that case, what was sought to be amended by way of para 4 (3)(i)
was held to be substantial amendment to Section 3(2)(b) of Parent
Act affecting the substance of the Legislation. The Division Bench
opined that by way of adaptation order, the aforesaid exercise is
impermissible. For a Legislative Act, a legislation is necessary by
way of amendment by the Legislature. The same could not have
been carried out by way of an executive order or in the form of an
adaptation order. The attempt was being made to nullify the
statutory rules and change the entire substance which was held to
be impermissible.
51. The parties, during the course of hearing, informed that a
Special Leave Petition is pending consideration against the
Division Bench order passed in W.P.No.1114 of 2019. Thus, we
are not inclined to give any finding on this piece of argument.
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52. A recent judgment on interpretation of Section 101 of the
Reorganisation Act was delivered by another Division Bench of
this Court in W.P.No.22362 of 2016 and batch decided on
29.08.2024. In the said case, in exercise of power under Section
101 of the Reorganisation Act, A.P. Land Grabbing (Prohibition)
Act, 1982 was repealed. Since repeal is empowered under Section
101 and enabling provision i.e., Section 101 was not questioned
before this Court, interference was declined. In the instant case,
as noticed above, there is no amendment, modification or repeal of
existing law at all.
53. In view of forgoing discussion, it is clear like noon day that
the Education Service Rules being statutory in nature were not
repealed, modified or amended. Since statutory rules of pre-
existence period were in force, Section 10-A of Act of 1994 cannot
prevail over the statutory rules. Any other interpretation will lead
to a situation, where two parallel provisions namely Education
Service Rules and Section 10-A will co-exist. Both the aforesaid
provisions are pregnant with different eligibility conditions,
qualifications and methodology for selecting the persons in
Government service.
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54. The power under Section 101 of the Reorganisation Act deals
with power to adapt laws. In exercise of the said power, the
Government can make adaptations to modify, amend or repeal any
existing law. There exists no power to introduce an independent
provision like Section 10-A of Act of 1994, which runs contrary to
an existing provision i.e., Education Service Rules without
amending, modifying or repealing it. Thus, insertion of Section
10-A is contrary to the intent and scope of Section 101 of the
Reorganisation Act. Since Section 10-A runs contrary to Section
101 of the Reorganisation Act and statutory Education Service
Rules, it cannot sustain judicial scrutiny. Thus, we have no
hesitation in holding that Section 10-A is ultra vires in nature and
accordingly liable to be set aside.
55. Pertinently, in W.P.No.4401 of 2019, this Court poignantly
held that executive instruction i.e., G.O.Rt.No.405, dated
17.04.2014 (existing law), is binding. Present case is on a better
footing because existing law i.e., ‘Education Service Rules’ are of
statutory nature and on a higher footing than any executive order
like G.O.Rt.No.450 (supra).
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Rules of 1996 and other provisions:-
56. Rule 9(a) of Rules of 1996 permits the State to appoint the
persons in administrative exigencies on contract basis. However,
Clause (b) of the said Rule makes it clear that such person
appointed on contractual basis cannot become member of the
service. The said clause reads as under:
“Rule 9: Appointment by agreement or contract:
(a)…
(b) A person appointed under sub-rule (a) shall not be
regarded as member of the service, in which the post to which
he is appointed, is included and shall not be entitled by
reason only of such appointment, to any preferential right to
any other appointment in that or in any other service.”
(Emphasis Supplied)
57. Sri M.Surender Rao, learned Senior Counsel for the
petitioners appearing in W.P.(TR) No.5972 of 2017, placed reliance
on Section 7 of the Act of 1994 to press the point that the daily
wages/temporary employees shall not have any right of
regularization. This argument is not of much help in view of non-
obstante clause mentioned in impugned Section 10-A. Putting it
differently, Section 10-A although, does not have any implied or
express impact of modifying, nullifying, amending or repealing any
other existing law, it certainly has overriding effect on other
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provision of same Act. Section 7 on which reliance is placed is
part of the same Act. Thus, this argument will not cut any ice.
Validity of Regularization:
58. The parties have taken a diametrically opposite stand on the
aspect of entitlement of regularization of contractual employees.
Both the parties, for this purpose, have relied on Constitution
Bench judgment in the case of Umadevi (supra). A careful
reading of the said judgment shows that it does not deal with
contractual employees at all. The said judgment is about the
regularization of daily rated employees.
59. Undisputedly, in the judgment of Umadevi (supra) it was
held that the Government and their instrumentalities must take
steps to regularize the services of those irregular employees (not
illegally appointed), who had served more than 10 years without
the benefit of protection of interim order of the Court as one time
measure. The meaning of one time measure was explained by
subsequent Bench in State of Karnataka v. M.L.Kesari 20. In no
uncertain terms, it was made clear that ‘one time measure’
exercise is to be done for daily wages, ad hoc and casual
20
2010 (9) SCC 247
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employees, who had put in 10 years of continuous service as on
‘10.04.2006’ without availability of any interim order or protection
of Courts or Tribunal. Thus, this ‘one time measure’ exercise was
available to daily wages, ad hoc and casual employees only and
not to contractual employees. For those employees also the one
time measure exercise was permissible only if they have completed
more than 10 years of service on the cutoff date i.e., ‘10.04.2006’.
60. Apart from this, the Supreme Court after considering the
judgment of Umadevi (supra), in the case of University of Delhi
v. Delhi University Contract Employees Union 21, held that in
view of paragraph No.53 of the decision in the case of Umadevi
(supra), the contractual employees cannot have any claim of
regularization.
61. Thus, we find substance in the argument of the learned
counsel for the petitioners that action of official respondents in
regularizing the contractual employees is bad in law. More-so,
when their contractual appointments were against public policy.
No public advertisement was issued inviting candidatures of
eligible candidates. Instead, contractual employees were given
contractual employment in an opaque manner and thereafter, by
21
(2021) 16 SCC 71
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prescribing eligibility conditions mentioned under impugned
Section 10-A, which were different and contrary to conditions of
Education Service Rules, they were regularized. Hence, we are
unable to hold that such exercise of power of regularizing is
inconsonance with law.
Consequence:-
62. Undisputedly, the contract employees were appointed in the
year 2009 and were regularized subsequently. Thus, they are in
employment for more than 15 years. The quagmire before us is
whether such contractual employees should be directed to be
terminated/discontinued and whether the State must be directed
to advertise the said posts against which the present petitioners
may submit their candidatures.
63. In our considered opinion, for three reasons, such directions
need not be issued. Firstly, in none of the petitions, the
petitioners have prayed for any specific directions to
discontinue/terminate the existing regular employees and then
issue advertisement covering those vacancies for the purpose of
filling them up from eligible candidates. Secondly, in
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M.A.Hameed v. State of A.P. 22, the Supreme Court opined that
when appointment is temporary/irregular in any manner,
reversion should be carried out within a reasonable period. In
that case, the reversion after 10 years was repelled. In Tridip
Kumar Dingal v. State of West Bengal 23, after considering
several judgments of the Supreme Court, it was held that it would
be inequitable if the appointments of the candidates working for
more than 10 years are set aside. Hence, their appointments were
saved. For the same reason, we are not inclined to disturb the
appointments after several years. However, we are totally
disapproving the method adopted by the State in appointing
unofficial respondents on contractual basis against the public
policy and regularizing them in the teeth of Section 10-A which is
held to be unconstitutional. Thirdly, in view of the second reason,
even if the relief would have been claimed to strike down the illegal
regularizing orders, we would not have set aside those orders for
the simple reason that it will cause serious hardship to such
contractual employees. This is trite that in exercise of power
under Article 226 of the Constitution, the Court should always
keep the larger public interest in the mind in order to decide
22
(2001) 9 SCC 261
23
(2009) 1 SCC 768
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whether intervention is called for or not (see M/S Master Marine
Services Pvt. Ltd v. Metcalfe & Hodgkinson Pvt. Ltd. 24). Article
226 grants extraordinary remedy which is essentially
discretionary, although founded on legal injury. It is perfectly
open for the Court, exercising this flexible power, to pass such
order as public interest dictates and equity projects. In,
Champalal Binani v. CIT 25, it was held that the Court may not
strike down the illegal order although it would be lawful to do so.
In a given case, the High Court may refuse to extend the benefit of
a discretionary relief to the applicant. Similar view is taken by
Supreme Court in M.P.Mittal v. State of Haryana 26.
Conclusion:-
64. In view of forgoing analysis, Section 10-A of the Telangana
(Regulation of Appointments to Public Services and Rationalization
of Staff Pattern and Pat Structure) Act, 1994 is declared as ultra
vires and consequently set aside. Contractual employees, who
were already regularized, need not be terminated. Henceforth, the
State Government shall fill up the posts in accordance with law
and not by regularizing the contractual employees.
24
(2005) 6 SCC 138
25
(1971) 3 SCC 201
26
(1984) 4 SCC 371
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65. In the result, the Writ Petitions are partly allowed to the
extent indicated above. There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
_______________________
JUSTICE SUJOY PAUL
____________________________________________
JUSTICE NAMAVARAPU RAJESHWAR RAO
Date: 19.11.2024.
Note: L.R. copy be marked.
TJMR/GVR