Telangana High Court: In the present case, a batch of petitions were filed under Article 226 of the Constitution, wherein petitioners 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 (‘the 1994 Act’), whereby respondents sought to regularize the alleged illegal appointments made on contract basis. The Division Bench of Sujoy Paul* and Namavarapu Rajeshwar Rao, JJ., held that the insertion of Section 10-A was contrary to the intent and scope of Section 101 of the Andhra Pradesh Reorganisation Act, 2014 (‘the Reorganisation Act’) and since Section 10-A runs contrary to Section 101 of the Reorganisation Act and Andhra Pradesh Intermediate Education Service Rules (‘the Education Service Rules’), it could not sustain judicial scrutiny. The Court, therefore, held that Section 10-A was ultra vires in nature and was accordingly liable to be set aside.
Background
Petitioners were postgraduates, one of them had done his Ph.D, two had qualified SET and two had qualified NET. Petitioners stated that they, being unemployed youth, had a legitimate expectation and fundamental right of consideration against the statutory posts in the Government departments. They stated that they had requisite qualifications for selection and appointment to the posts of Junior Lecturers, Assistant/Associate Professors and Degree Lecturers and in accordance with the Andhra Pradesh Intermediate Education Service Rules (‘the 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 then, petitioners and other unemployed youth could have submitted their candidature to occupy the said posts.
Petitioners stated that in the 1994 Act, Section 10-A was inserted by G.O.Ms.No.16 in 2016 and it was passed in exercise of power under Section 101 of the Andhra Pradesh Reorganisation Act, 2014 (‘Reorganisation Act’). Petitioners submitted that the Education Service Rules, were neither amended nor repealed and withstanding the Education Service Rules, it was no more open for respondents to insert Section 10-A under the 1994 Act under the garb of Section 101 of the Reorganisation Act. It was submitted that by inserting Section 10-A in the 1994 Act, the Government got itself equipped with the power to regularize the services of persons appointed on a contractual basis against the sanctioned posts.
By applying Section 10-A, respondents regularized the services of contractual employees, who did not enter into services as per transparent selection procedure and such contractual employees were backdoor entrants and were not having requisite eligibility and qualifications as per the Education Service Rules.
Analysis, Law, and Decision
The Court noted that Section 10-A came into being in exercise of power under Section 101 of the Reorganisation Act. The Court stated that Section 10-A was only in relation to other provisions of the 1994 Act and the said section begins with a non-obstante clause and the said clause could not have overriding effect on any other enactment including the Education Service Rules. Further, the Court opined that when service rules were statutory in nature and introduced in exercise of power flowing from proviso to Article 309 of the Constitution.
The Court stated that the only plausible interpretation of Section 101 by taking assistance of Section 102 would be that adaptation was permissible in the manner prescribed in Section 101. The Court opined that Section 10-A of the 1994 Act could not be said to be a valid exercise of insertion in the 1994 Act. As such insertion, by no stretch of imagination amounted to adaptation by way of ‘amendment’, ‘repeal’ or ‘modification’ of existing ‘law’. Thus, Section 10-A was not inserted as permissible under the enabling provision i.e., Section 101 of the Reorganisation Act.
The Court opined that if a law prescribed a thing to be done in a particular manner, it must be done in the same manner and other methods were forbidden and that if language of statute was plain and unambiguous, it must be given effect to irrespective of its consequences.
The Court noted that Section 10-A made it clear that no ‘existing law’ was referred to in the said provision and thus, there was no intent behind it which sought to alter, modify, amend, or repeal the Education Service Rules or any other existing provision of law. The Court opined that the combined reading of Section 101 of the Reorganisation Act and Section 10-A of the 1994 Act did not lead to an interpretation that despite not impliedly or expressly repealing, modifying, or amending the Education Service Rules, the same would become inoperative/superseded or vanish in thin air.
The Court did not agree with the contention that Section 10-A would override repeal, amend, or modify the pre-existing law as in Section 10-A, it was nowhere mentioned that it sought to repeal, amend, or modify any existing law and the only intent was to override the other provisions of the 1994 Act. Therefore, the Education Service Rules being statutory in nature were not repealed, modified, or amended and since statutory rules of pre-existence period were in force, Section 10-A of the 1994 Act could not prevail over the statutory rules. The Court opined that any other interpretation would lead to a situation where two parallel provisions, namely, the Education Service Rules and Section 10-A would co-exist. Both these provisions have different eligibility conditions, qualifications, and methodology for selecting the persons in Government service.
The Court stated that the power under Section 101 of the Reorganisation Act dealt with the power to adapt laws and in the exercise of the said power, the Government could make adaptations to modify, amend, or repeal any existing law. There existed no power to introduce an independent provision like Section 10-A, which runs contrary to an existing provision i.e., the Education Service Rules without amending, modifying, or repealing it. Thus, the insertion of Section 10-A was contrary to the intent and scope of Section 101 of the Reorganisation Act and since Section 10-A runs contrary to Section 101 of the Reorganisation Act and Education Service Rules, it could not sustain judicial scrutiny. Therefore, the Court held that Section 10-A was ultra vires in nature and was accordingly liable to be set aside.
The Court referred to Rule 9(a) of the Telangana State Subordinate Service Rules, 1996 (‘the 1996 Rules’) which permitted the State to appoint the persons in administrative exigencies on contract basis, however, Clause (b) of the 1996 Rules made it clear that such person appointed on contractual basis could not become member of the service.
The Court agreed with the contention of petitioners that the action of official respondents in regularizing the contractual employees was bad in law and more so when their contractual appointments were against public policy. Further, no public advertisement was issued inviting candidatures of eligible candidates and instead, contractual employees were given contractual employment in an opaque manner and thereafter, by prescribing eligibility conditions mentioned under Section 10-A, which were different and contrary to conditions of the Education Service Rules, they were regularized. Hence, it could not be held that such exercise of power of regularizing was in consonance with law.
The Court relied on Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 and opined that it would not disturb the appointments after several years. The Court further opined that it disapproved of 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 was held to be unconstitutional. The Court stated that even if the relief would have been claimed to strike down the illegal regularizing orders, it could not have set aside the orders as it would have caused serious hardship to contractual employees and in exercise of power under Article 226 of the Constitution, the Court should keep the larger public interest in the mind to decide whether intervention was called for or not.
The Court partly allowed the writ petition and directed that henceforth, the State Government shall fill up the posts in accordance with law and not by regularizing the contractual employees.
[V. Praveen Kumar v. State of Telangana, Writ Petition No. 10744 of 2023, decided on 19-11-2024]
*Judgment authored by: Justice Sujoy Paul
Advocates who appeared in this case:
For the Petitioners: A. Phani Bhushan, Counsel; B. Rajeshwari, Counsel representing K.V. Rajasree, Counsel; P. Rama Sharana Sharma, Counsel; M. Surender Rao, Senior Counsel representing Srinivasa Rao Madiraju, Counsel
For the Respondents: M. Shalini, GP; Vladimeer Khatoon, Counsel
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