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2024 DIGILAW 896 (AP)

Dornadula Sai Kumar v. State Of Andhra Pradesh

2024-07-31

HARINATH N., R.RAGHUNANDAN RAO

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ORDER : (R. Raghunandan Rao, J.) Heard Sri G. V. Shivaji, learned counsel appearing for the petitioners in both the writ petitions and Sri N. Ashwani Kumar, learned counsel appearing for the respondents. 2. This Court had initially heard three writ petitions together, viz.., W.P.Nos.32917, 36206 and 38372 of 2022. Though there are common issues raised in these writ petitions, certain additional issues were raised in W.P.No.38372 of 2022 and the same shall be taken up separately. 3. As the issues raised in W.P.Nos.32917 and 36206 of 2022 are one and the same, they are being disposed of by way of this common order. 4. The erstwhile Government of Andhra Pradesh of the combined State had issued G.O.Ms.No.35 dated 31.03.2011, accepting a proposal sent by the Registrar General of the High Court of Andhra Pradesh for sanction of 140 Special Magistrate Courts (Civil Junior Division) and 113 Judicial Magistrate of II Class/Special Metropolitan Magistrate Courts (Morning Courts). These courts were to be run for a specified period of time as the intention of creating these Special Magistrate Courts was for the purpose of reduction of pendency of cases and such Magistrate Courts were to be closed once such pendency had come down. However, these Magistrate Courts were continued by way of Government Orders, which were issued periodically, extending the term of these Magistrate Courts. The latest Government Order in this regard being G.O.Rt.No.446 LQAW (LA & J) Home Courts (A) Department, dated 04.04.2024. 5. These Special Magistrate Courts were to be manned by staff recruited from retired employees of the A.P. Judicial Ministerial Service or, in case of non-availability of retired employees, eligible candidates strictly on contract basis. In pursuance of this provision, the staff for running these Special Magistrate Courts were recruited and have been working in the Special Magistrate Courts. 6. Even prior to issuance of G.O.Ms.No.35, dated 31.03.2011, creating Special Magistrate Courts, the Government of Andhra Pradesh had issued G.O.Ms.No.38, dated 27.03.2001, for creating Fast Track Courts which were to be manned by District Judge rank Judicial Officers or retired District Judge rank Judicial Officers. These Fast Track Courts which had been set up on the recommendations of the XI Finance Commission had also undertaken recruitment of staff on similar lines. Initially these Fast Track Courts were being funded by the Central Government. These Fast Track Courts which had been set up on the recommendations of the XI Finance Commission had also undertaken recruitment of staff on similar lines. Initially these Fast Track Courts were being funded by the Central Government. After some time, the Central Government had decided not to fund these Fast Track Courts and the same was informed to the respective State Governments. The said decision not to fund these Fast Track Courts came to the challenged before the Hon’ble Supreme Court of India. The Hon’ble Supreme Court disposed of the said challenge in its judgment dated 19.04.2012 reported as Brij Mohan Lal vs. Union of India and Ors., (2012) 6 SCC 502 , accepting the decision of the Central Government to stop funding the Fast Track Courts. However, certain directions were also issued, in this regard, in Paragraph No.207.9 of the said judgment. These directions essentially related to the continuance of persons, who had been appointed by way of direct recruitment from the Bar as Judges, to preside over the Fast Track Courts. There were no directions in this judgment in relation to the judicial staff in these Courts. Subsequently, I.A.Nos.33 to 37 and 38 to 41 of 2012 were moved in Transfer Case (Civil) No.22 of 2001. It may be mentioned that Transfer Case (Civil) No.22 of 2001 was part of the batch of cases, which were disposed of by the Hon’ble Supreme Court in the above judgment. The Hon’ble Supreme Court after hearing the parties in I.A.No.26 of 2012, had in modification of the order dated 19.04.2012, passed an order dated 13.09.2012, allowing discontinuation of Fast Track Courts scheme, after the staff recruited therein was absorbed into the District Court services in pursuance of the direction in I.A.No.36 of 2012, dated 13.09.2012. 7. In pursuance of this direction, the Registrar General of the combined High Court of Andhra Pradesh had issued proceedings in Roc.No.275/E1/2008, dated 31.12.2018 directing all the unit heads in both the States of Telangana and the Andhra Pradesh to issue proceedings absorbing the category of employees, mentioned in the proceedings, in the existing regular vacancies in their respective units with effect from 13.09.2012. The proceedings also directed the unit heads to absorb, in regular service, all those persons, who were recruited after 13.09.2012 also. The proceedings also directed the unit heads to absorb, in regular service, all those persons, who were recruited after 13.09.2012 also. The said direction for absorption being applicable to those persons who were not retired employees of the Andhra Pradesh Judicial Ministerial Services. On the basis of these proceedings, the Principal District Judges of various District Courts had been absorbing the persons appointed on contract basis in Fast Track Courts. 8. While the persons appointed on contract basis in Fast Track Courts were being absorbed by virtue of the above proceedings, no such regularization or absorption was provided for the contract employees appointed under the Special Magistrate Courts Scheme created under G.O.Ms.No.35 dated 31.03.2011. Some of the persons appointed, on contract basis in these Special Magistrate Courts, gave representations dated 17.01.2019, 18.09.2021 and 23.09.2021 for being absorbed into the regular District Judicial Services. The High Court of Andhra Pradesh, while these representations were pending consideration, had issued a notification dated 21.10.2022 for filling up of the vacancies available in the District Judicial Services. The contract employees in these Special Magistrate Courts, even prior to the notification dated 21.10.2022, had moved the High Court of Andhra Pradesh by way of W.P.No.6520 of 2022 for consideration of their representations. This writ petition came to be disposed of by a Division Bench of this Court, on 28.03.2022 leaving it open to the petitioners therein to submit a representation, for redressal of their grievance on the administrative side of the High Court, enclosing all relevant material in support of their claim, with a further direction to the High Court and the Principal District Judges of East Godavari, Nellore, Chittoor, Anantapur, and Visakhapatnam to consider such representations and pass orders within a period of eight weeks from the submission of the said representations. Thereafter, representations for absorption had been filed and were rejected. The petitioners in W.P. No.32917 of 2022 have challenged the order of rejection dated 05.09.2022, issued by the Principal District Judge, Chittoor while the petitioners in W.P. No. 36206 of 2022 challenged the order of rejection dated 05.09.2022 of the Principal District Judge, Chittoor. Thereafter, representations for absorption had been filed and were rejected. The petitioners in W.P. No.32917 of 2022 have challenged the order of rejection dated 05.09.2022, issued by the Principal District Judge, Chittoor while the petitioners in W.P. No. 36206 of 2022 challenged the order of rejection dated 05.09.2022 of the Principal District Judge, Chittoor. It may be recorded that the reason given in these orders of rejection was that the High Court had considered the representations of the contract employees, and had rejected the same on the ground that there was no enabling Government Order conferring the right or entitlement of regularization to a contract employee and as such the request for regularization cannot be accepted as per extant Rules. 9. Aggrieved by the said orders of rejection, W.P.No.36206 of 2022 and 32917 of 2022 have been filed before this Court. 10. The grounds of challenge in these writ petitions, for setting aside the orders of rejection and for positive orders of absorption, are as follows: a) The High Court, having absorbed the contract employees working in the Fast Track Courts, by virtue of the proceedings dated 31.12.2018, issued by the Registrar General of the Combined High Court, cannot refuse to absorb the contract employees working in the Special Magistrate Courts as both the sets of employees are similarly situated. This can be seen from the following: i. Both the Fast Track Courts under G.O.Ms.No.38 dated 27.03.2021 and the Special Magistrate Courts under G.O.Ms.No.35 dated 31.03.2011 had been established under the recommendations of the XI Finance Commission and XIII Finance Commission. ii. The method of appointment of the staff of both establishments was by selection and on contract basis. iii. The procedure adopted for selecting the contract employees was the same in both the cases including the issuance of notification for calling for applications, conduct of written examination, conducting of interviews and publication of final selected list. b) The High Court, could not have taken the defence that absorption of contract employees of the Special Magistrate Courts cannot be done as there are no Government Orders or enabling provisions for such absorption. This stand runs contrary to the manner in which the High Court has absorbed the contract employees of the Fast Track Courts. b) The High Court, could not have taken the defence that absorption of contract employees of the Special Magistrate Courts cannot be done as there are no Government Orders or enabling provisions for such absorption. This stand runs contrary to the manner in which the High Court has absorbed the contract employees of the Fast Track Courts. The direction of the Hon’ble Supreme Court dated 13.09.2012 in I.A.No.36 of 2012 was to discontinue the Fast Track Courts Scheme, after the staff recruited therein were absorbed in the District Court Services. The Fast Track Courts have never been discontinued in the State of Andhra Pradesh and as such the contract employees in the Fast Track Courts could not have been absorbed. Further, the said direction was in relation to the contract employees, in Fast Track Courts, appointed prior to 13.09.2012 whereas the proceedings of the Registrar General dated 31.12.2018 directed that, even persons, who had been appointed on contract basis after 13.09.2012, should also be absorbed. The High Court, after having gone beyond the order of the Hon’ble Supreme Court should have extended similar benefits of the Scheme to the contract employees working in the Special Magistrate Courts. c) The contention of the respondents that absorption of contract employees is prohibited in view of the judgment of the Constitution Bench of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka vs. Umadevi, (2006) 4 SCC 1 , and the judgment of the Hon’ble Supreme Court in Renu and Ors., vs. District and Sessions Judge, TIS Hazari Courts, Delhi and Anr., (2014) 14 SCC 50 , does not apply to the present case. A close reading of the judgments in both the cases would show that the Hon’ble Supreme Court had held that illegal appointments made by way of backdoor methods cannot be regularized while the irregular recruitments made in a transparent way, by issuance of notification, applying a transparent selection procedure and selecting persons on the basis of such procedure can be regularized where such employees have been working for long periods of time. However, this distinction is not being applied and even though the petitioners, in both these cases, had undergone a selection process, mentioned above, their appointments have been treated as illegal appointments and their services are not being regularized. However, this distinction is not being applied and even though the petitioners, in both these cases, had undergone a selection process, mentioned above, their appointments have been treated as illegal appointments and their services are not being regularized. The High Court, having regularized the services of the contract employees of the Fast Track Courts, cannot refuse regularization or absorption for employees of Special Magistrate Courts by citing the above two judgments and as both the judgments were also available at the time when the contract staff of the Fast Track Courts have been regularized. d) In a similar situation, the Hon’ble High court of Telangana in its common order dated 12.06.2023 in W.P.No.24506 of 2019 and W.P.No.8096 of 2021 had held that the contract employees of Special Magistrate Courts are entitled for regularization of their services in the existing vacancies. Similarly, a Division Bench of this Court in W.P.No.2655 of 2019 had directed that the contract employee, working in the Fast Track Courts, who were terminated on 22.10.2018, were also entitled for regularization under the proceedings of the Registrar General, dated 31.12.2018. In such circumstances, the requests of the petitioners herein cannot be denied. 11. The respondents, in their counter affidavit, have raised various contentions, which can be summarized as follows: a) The judgment of the Hon’ble Supreme Court in the case of Secretary, State of Karnataka vs. Umadevi and Renu and Ors., vs. District and Sessions Judge, TIS Hazari Courts, Delhi and Anr., specifically prohibited the absorption or regularization of contract staff who had been appointed without following any transparent procedure of selection. Further, the Hon’ble Supreme Court in the case of Secretary, State of Karnataka vs. Umadevi had specifically stipulated that no such regularization is permissible after the judgment of the Hon’ble Supreme Court accepted, as a onetime measure, for those persons who had been appointed on the basis of a proper selection procedure and who had been serving against the vacancies for a long period of time. In the counter affidavits, the respondents have taken a further plea that the petitioners in both the cases had not been appointed after undergoing a selection process and as such their appointments can only be treated as illegal appointments rather than irregular appointments which can be regularized, even under the judgment of the Hon’ble Supreme Court in Secretary, State of Karnataka vs. Umadevi and Renu and Ors., vs. District and Sessions Judge, TIS Hazari Courts, Delhi and Anr. 12. The respondents would also submit that the contract employees in the Fast Track Courts were regularized on account of the direction of the Hon’ble Supreme Court in I.A.No.36 of 2012 dated 13.09.2012 in Brij Mohan Lal vs. Union of India and Ors. It is submitted that in view of the peremptory directions therein, the contract employees working in the Fast Track Courts were regularized their services. There was no direction for the contract employees working in the Special Magistrate Courts and in view of the special prohibition enumerated by the Hon’ble Supreme Court, there is no scope for absorption of the contract employees in the Special Magistrate Courts. Consideration of the Court: 13. Before going into the facts of the case, it is necessary to look at the judgments of the Hon’ble Supreme Court in Secretary, State of Karnataka vs. Umadevi and Renu and Ors., vs. District and Sessions Judge, TIS Hazari Courts, Delhi and Anr. In Secretary, State of Karnataka vs. Umadevi, the Hon’ble Supreme Court had been considering the question of the right of employees appointed by the State or by it’s instrumentalities on a temporary basis/daily wages/casual to approach the High Court for issue of a writ directing that they may be made permanent in the appropriate courts. This claim is based on continuance of employment, for a significant length of time. The Constitution Bench of the Hon’ble Supreme Court, after due consideration, had held that the Constitutional scheme of public employment in the country requires appointments to be made after following a transparent due procedure of selection on objective criteria. The Hon’ble Supreme Court further held that directing regularization of employees, who had not undergone such a process, would amount to jettisoning the constitutional scheme of appointment and that, such employees cannot seek regularization. The Hon’ble Supreme Court further held that directing regularization of employees, who had not undergone such a process, would amount to jettisoning the constitutional scheme of appointment and that, such employees cannot seek regularization. However, the Hon’ble Supreme Court, after holding so, had made a clear distinction between irregular appointments of duly qualified persons, who had been selected by way of a transparent procedure of selection answering the requirements of Articles 14 and 16 of the Constitution of India and illegal appointments of persons who had been selected by way of backdoor methods or without any rational criteria and those who had been appointed even without being qualified for such a post. On the basis of this distinction, the Hon’ble Supreme Court in State of Karntaka vs. Umadevi, at paragraph 53, had held as follows: 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [ (1967) 1 SCR 128 : AIR 1967 SC 1071 ] , R.N. Nanjundappa [ (1972) 1 SCC 409 : (1972) 2 SCR 799 ] and B.N. Nagarajan [ (1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979) 3 SCR 937 ] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. 14. Subsequently, the Hon’ble Supreme Court in Renu and Ors., vs. District and Sessions Judge, TIS Hazari Courts, Delhi and Anr., came to consider regularization of staff in the District Court at TIS Hazari, Delhi. In the course of considering the said regularization of staff, the Hon’ble Supreme Court had called for reports from all the High Courts, as to the manner in which employees were being recruited or appointed and had disposed of the litigation, by setting down certain guidelines contained in paragraph 35 of the said judgment. The directions were to the effect that all the High Courts should bring in statutory rules dealing with appointment of staff in the High Court as well as in the subordinate courts and ensure that such rules are in consonance with Articles 14 and 16 of the Constitution of India. Thereafter, any vacancy for any post should be filled up in strict compliance with the statutory rules so made. 15. The Hon’ble Supreme Court also directed that such recruitment should be done by issuing advertisement in at least two newspapers to ensure that there is adequate publicity to the selection process which is being undertaken. 16. The petitioners have also relied upon the judgment of a Division Bench of the High Court of Telangana and as well as a judgment of a Division Bench of our High Court. The Division Bench of the Hon’ble High Court of Telangana had been dealing with a case relating to absorption of contract employees working in the Special Magistrate Courts created under G.O.Ms.No.35 dated 31.03.2011. The Division Bench of the Hon’ble High Court of Telangana had been dealing with a case relating to absorption of contract employees working in the Special Magistrate Courts created under G.O.Ms.No.35 dated 31.03.2011. The Division Bench, after considering the judgment of the Hon’ble Supreme Court in, Secretary, State of Karnataka vs. Umadevi and others and Brij Mohan Lal, had held that the Hon’ble Supreme Court in, Secretary, State of Karnataka vs. Umadevi had permitted one time regularization of staff who had been irregularly appointed, after following a due process of selection, disposed of the writ petition with a declaration that the petitioners therein, whose services have been terminated without regularization, are entitled for regularization of their services in the existing vacancies. This decision was arrived at, on the ground that the petitioners before the Division Bench had been appointed on a contract basis, after going through a proper selection process, as prescribed in the A.P. Judicial Ministerial Service Rules in force at the time of the initial appointments. The Division Bench had also pointed out that it would be in public interest to give regular employment to the petitioners therein as they had acquired in depth knowledge in the functioning of the Courts on account of their long service and continuing the petitioners instead of recruiting fresh persons, would be in public interest. 17. The Division Bench of this court, was considering a case of persons who had been terminated from service prior to 31.12.2018 and whether such persons would be entitled to the benefit of the proceedings of the Registrar General dated 31.12.2018 directing the unit heads of the Districts to absorb all persons who had been appointed on contract basis prior to 13.09.2012 and those who had been appointed after 13.09.2012. The Division Bench had taken the view that the petitioners therein are entitled for regularization under the proceedings of the Registrar General dated 31.12.2018 and termination of their services prior to the said date would not in any manner disqualify them for such appointment. 18. A conspectus of the above facts and law makes it clear that the petitioners herein can be regularized and absorbed into the District Judicial Service if it is found that their appointments were irregular appointments and not illegal appointments. 18. A conspectus of the above facts and law makes it clear that the petitioners herein can be regularized and absorbed into the District Judicial Service if it is found that their appointments were irregular appointments and not illegal appointments. The petitioners, to succeed in the present cases, would have to demonstrate that they had been appointed on a contract basis, after they had undergone a selection process which meets the test of Articles 14 and 16 of the Constitution of India. The respondents have taken a specific stand, in their counter affidavits that the petitioners in both the writ petitions had not undergone a selection process and had been appointed on an arbitrary basis which would amount to an illegal appointment, set out by the Constitution Bench of the Hon’ble Supreme Court in Secretary, State of Karnataka vs. Umadevi. 19. The petitioners have placed material before this Court to show that they were appointed only after following a regular process of recruitment. The material placed before this Court, discloses that notifications were issued, calling for applications whenever persons had to be recruited, on contract basis, and thereafter transparent selection process of testing the merit of the applicants etc., had been carried out, before selecting the petitioners, to the posts for which notifications had been issued. It appears that some of the petitioners had also been sent on deputation to the regular Courts as can be seen from the proceedings issued by the Principal District and Sessions Judges of the Districts of Visakhapatnam, Nellore, Chittoor and Ananthapur. These Petitioners have also been working for a considerable period of time. 20. In that view of the matter, and keeping in view the judgment of the Hon’ble High court of Telangana, mentioned above, these writ petitions are allowed with a direction to the respondents to regularize the services of the petitioners on the same lines as that of the contract employees of Fast Track Courts, within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs. As a sequel, pending miscellaneous applications, if any, shall stand closed.