http://judis.nic.in/HCS/list_new2.asp?FileName=14375&Table_Main_Txt=apordtext
THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN & THE HONBLE SMT JUSTICE T. RAJANI
WRIT PETITION No.41594 OF 2015
11-10-2017
A.Narsimha Reddy.... PETITONER
The State of Telangana, Rep. by its Secretary, Law Department, Secretariat, Hyderabad and others. ... RESPONDENTS
COUNSEL FOR THE PETITIONER: MR. P. VENKATESHWER RAO
COUNSEL FOR THE RESPONDENT: GP FOR LAW & LEG.
AFFAIRS
MR. SWAROOP OORILLA
STANDING COUNSEL FOR TAPHC
<GIST :
>HEAD NOTE:
? Cases referred:
LAWS (ALL) 2011 8 21
THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN
&
THE HONBLE SMT JUSTICE T. RAJANI
WRIT PETITION No.41594 of 2015
DATED: 11.10.2017
THE COURT MADE THE FOLLOWING:
THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN
&
THE HONBLE SMT JUSTICE T. RAJANI
WRIT PETITION No.41594 of 2015
ORDER: (Per Honble Smt. Justice T. Rajani)
Scorned by the slip caused by the minute shortfall of service,
for the application of the circular of the High Court dated
06.01.2004,
(herein after referred to as the circular) directing to recruit the full
time and part time Masalchies, who have put in more than 15/10/5
years of service in their respective units for recruitment to the posts
of Attenders, the petitioner, who is also a part time masalchie,
comes before us by way of this writ petition, seeking for such
recruitment as an Office Subordinate. His long wait of all these
seventeen long years, since the date of the circular, with a hope that
history would repeat, did not fetch him any benefit of the like,
which similarly placed employees earlier had.
2. Petitioner was appointed as part time masalchie on 31.07.1999
and has been working as such since then and also as on the date of
the circular of the High court issued in the year 2004. Petitioner
would have become eligible for recruitment as office subordinate
under the said circular but for the shortage of few months to
complete five years of service. He then made a representation to the
High Court on 11.05.2015 stating that there is a post of office
subordinate vacant in the Court of Special Judge for Economic
Offences and he sought for relaxation of age, to become eligible for
being appointed in the said vacancy. Petitioner still awaits reply from
the High Court. Not being successful in the said attempt, the
petitioner seeks to go under the circular dated 06.01.2004 drawing
comparison with another employee, who, he alleges, was recruited
under the said circular, even after the date for the application of the
circular has expired.
3. One M. Srinivasulu, part time masalchie, was recruited as an
attender by relaxing his age, by virtue of the proceedings of the High
Court dated 12.05.2009. Under an impression that since the
direction was given on 09.04.2009, by which date this petitioner also
became eligible by completing his five years of service as part time
masalchie, the petitioner contends that he also is eligible for such
recruitment. But a reading of the relevant material on record shows
that, after the High Court issued the circular dated 06.01.2004, unit
heads of various units forwarded the names of part time masalchies
and the process of approving the said masalchies to be recruited
under the circular was taken up by the High Court and the direction
for appointment of said M. Srinivasulu is a consequence of such
consideration. A list of 39 masalchies was approved by the High
Court and M. Srinivasulu is one candidate in the list, figuring at
Sl.No.38. Hence, the understanding of the petitioner that M.
Srinivasulu was appointed subsequent to the said circular is
misconceived and no parity can be drawn between them.
4. The vexed issue of appointment of masalchies into regular
service came up before the Supreme Court in several cases.
The High Court of Allahabad in KRISHNA PRSAD v. STATE OF
UTTAR PRADESH observed that Articles 14 and 16 of the
Constitution of India have been considered by the Constitution
Bench of the Supreme Court in SECRETARY, STATE OF
KARNATAKA v. UMA DEVI [(2006) 4 SCC 44] and subsequently in
the case of STATE OF BIHAR v. UPENDRA NARAYAN SINGH [JT
2009 (4) SC 577]
in detail with reference to the appointment of the Daily Wager, ad
hoc and temporary appointment. The Supreme Court in UPENDRA
NARAYAN SINGHs case observed that the equality clause
enshrined in Article 16 of the Constitution of India mandates that
every appointment to a public post or office should be made by way
of open advertisement so as to enable all eligible persons to compete
for selection on merit. The Supreme Court observed as under:
Article 14 is the genus while Article 16 is a species.
Article 14 declares that the State shall not deny any
person equality before law or equal protection of the
laws within the territory of India. Article 16 gives effect
to the doctrine of equality in all matters relating to
public employment. Article16 embodies the fundamental
guarantee that there shall be equality of opportunity for
all citizens in matters relating to employment or
appointment to any office under the State. No citizen
shall eb ineligible for or discriminated against
irrespective of any employment or office under the State
on the grounds of religion, race, caste, sec, descent,
place of birth, residence or any of them. Though,
enacted as a distinct and independent fundamental
right, because of its great importance as a principle
ensuring equality of opportunity in public employment
which is so vital to the building up of the new classless
egalitarian society envisaged in the Constitution, The
basic principle which, therefore, informs both Arts. 14
and 16 is equality and inhibition against discrimination.
Now, what is the content and reach of this great
equalising principle? It is a founding faith, to use the
words of Bose J., "a way of life", and it must not be
subjected to a narrow pedantic or lexicographic
approach. We cannot countenance any attempt to
truncate its all-embracing scope and meaning, for to do
so would be to violate its activist magnitude. Equality is
a dynamic concept with many aspects and dimensions
and it cannot be "cribbed cabined and confined" within
traditional and doctrinaire limits. From a positivistic point
of view, equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while the other,
to the whim and caprice of an absolute monarch. Where
an act is arbitrary it is implicit in it that it is unequal both
according to political logic and constitutional law and is
therefore violative of Article 14, and if it affects any
matter relating to public employment, it is also violative
of Article 16. Articles 14 and 16 strike at arbitrariness in
State action and ensure fairness and equality of
treatment.
The Allahabad High Court referred to a decision of the
Supreme Court in ARUN KUMAR NAYAK v. UNION OF INDIA
[(2006) 8 SCC 111), wherein the Supreme Court observed as under:
This Court in Visweshwara Rao, therefore, held that
intimation to the employment exchange about the
vacancy and candidates sponsored from the
employment exchange is mandatory. This Court also
held that in addition and consistent with the principle of
fair play, justice and equal opportunity, the appropriate
department or establishment should also call for the
names by publication in the newspapers having wider
circulation, announcement on radio, television and
employment news bulletins and consider all the
candidates who have applied. This view was taken to
afford equal opportunity to all the eligible candidates in
the matter of employment. The rationale behind such
direction is also consistent with the sound public policy
that wider the opportunity of the notice of vacancy by
wider publication in the newspapers, radio, television
and employment news bulletin, the better candidates
with better qualifications are attracted, so that adequate
choices are made available and the best candidates
would be selected and appointed to subserve the public
interest better."
The Supreme Court also further observed as under:
Notwithstanding the basic mandate of Article 16 that
there shall be equality of opportunity for all citizens in
matters relating to employment for appointment to any
office under the State. The spoil system which prevailed
in America in 17th and 18th centuries has spread its
tentacles in various segments of public employment
apparatus and a huge illegal employment market has
developed in the country adversely affecting the legal
and constitutional rights of lakhs of meritorious
members of younger generation of the country who are
forced to seek intervention of the court and wait for
justice for years together. However, the hope and
expectation of the framers of the Constitution that after
independence every citizen will get equal opportunity in
the matter of employment or appointment to any office
under the State and members of civil services would
remain committed to the Constitution and honestly
serve the people of this country have been belied by
what has actually happened in last four decades.
The observations also came with regard to the appointment of
lower strata of the civil services and the scenario of appointment to
lower strata is considered to be worst. The relevant observations of
the Supreme Court are as under:
Those who have been bestowed with the power to
make appointment on Class III and Class IV posts have
by and large misused and abused the same by violating
relevant rules and instructions and have indulged in
favouritism and nepotism with impunity resulting in total
negation of the equality clause enshrined in Article 16
of the Constitution. Thousands of cases have been filed
in the Courts by aggrieved persons with the complaints
that appointment to Class III and Class IV posts have
been made without issuing any advertisement or
sending requisition to the employment exchange as per
the requirement of the 1959 Act and those who have
links with the party in power or political leaders or who
could pull strings in the power corridors get the cake of
employment. Cases have also been filed with the
complaints that recruitment to the higher strata of civil
services made by the Public Service Commissions have
been affected by the virus of spoil system in different
dimensions and selections have been made for
considerations other than merit.
In State of Haryana v. Piara Singh [(1992) 4 SCC 118],
this Court reiterated that appointment to the public
posts should ordinarily be made by regular recruitment
through the prescribed agency and that even where ad
hoc or temporary employment is necessitated on
account of the exigencies of administration, the
candidate should be drawn from the employment
exchange and that if no candidate is available or
sponsored by the employment exchange, some method
consistent with the requirements of Article 14 of the
Constitution should be followed by publishing notice in
appropriate manner calling for applications and all those
who apply in response thereto should be considered
fairly, but proceeded to observe that if an ad hoc or
temporary employee is continued for a fairly long spell,
the authorities are duty bound to consider his case for
regularization subject to his fulfilling the conditions of
eligibility and the requirement of satisfactory service.
5. The concern of the Supreme Court was about the temporary
appointments being made through back doors, defeating the rights
of the other eligible persons. But the other side of the coin comes to
our vision. The masalchies, who are appointed 5, 10, 15 years ago,
were absorbed as regular attenders by virtue of the circular of the
High Court, which goes to show that they could not be regularized
immediately, after their appointment and they were not regularized
before five years. That would imply that the services of the petitioner
and similarly placed masalchies were required by the Courts as an
exigency and that they were not necessarily brought in through
backdoors with an intention to get their entry first and regularise
their services later. If they had the favour of the employer, they
would not have been made to wait for so many long years without
regularisation.
The efficiency of the contract employees was recognised by the High
Court of Allahabad in the decision supra and observed as follows:
In the present scenario of Globalisation and Economic
growth, the execution of work by engaging the persons
on contractual basis, daily basis and part time basis has
become well recognised system and its results are more
productive, efficient and economical.
The constitutionality of such appointments is spelled in the
following lines:
Having regard to the financial aspects the Central Government,
State Government and their instrumentalities have right to
engage daily wagers on the agreed wages, on contractual basis,
ad hoc and temporary basis and there is no prohibition in the
Constitution or under any law of the land. However, their
appointment should be in accordance to law.
6. Merely because the masalchies were not appointed by
following the procedure prescribed for the post into which they are
absorbed,
it cannot be said in all cases, that their initial appointment itself was
with ulterior motive. The penury of the petitioner and the likes may
be one of the reasons for them to accept the employment with
meagre wages. But, however, our sympathies to the petitioner, who
has worked in the same capacity, with meagre wages, for several
years, do not permit us to apply the circular to the petitioner as it is
only issued as one time measure, as is made clear by the circular of
the High Court dated 26.07.2014 by the words that the circular is
only one time arrangement and would be applicable to the existing
incumbents as on the date of the circular.
7. How peaceful would the society be if the State can provide
employment to all the needy persons, with wages sufficient enough
to sustain their lives with dignity, we muse. With that thought, we
can only recommend to the High Court to consider the case of the
petitioner and other similarly placed employees and to explore the
possibility and feasibility of issuing a circular similar to the circular
issued earlier.
The writ petition is disposed of. Consequently, pending
miscellaneous applications, if any, shall stand closed. There shall be
no order as to costs.
_____________________
V. RAMASUBRAMANIAN, J
__________
T. RAJANI, J
October 11, 2017
THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN & THE HONBLE SMT JUSTICE T. RAJANI
WRIT PETITION No.41594 OF 2015
11-10-2017
A.Narsimha Reddy.... PETITONER
The State of Telangana, Rep. by its Secretary, Law Department, Secretariat, Hyderabad and others. ... RESPONDENTS
COUNSEL FOR THE PETITIONER: MR. P. VENKATESHWER RAO
COUNSEL FOR THE RESPONDENT: GP FOR LAW & LEG.
AFFAIRS
MR. SWAROOP OORILLA
STANDING COUNSEL FOR TAPHC
<GIST :
>HEAD NOTE:
? Cases referred:
LAWS (ALL) 2011 8 21
THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN
&
THE HONBLE SMT JUSTICE T. RAJANI
WRIT PETITION No.41594 of 2015
DATED: 11.10.2017
THE COURT MADE THE FOLLOWING:
THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN
&
THE HONBLE SMT JUSTICE T. RAJANI
WRIT PETITION No.41594 of 2015
ORDER: (Per Honble Smt. Justice T. Rajani)
Scorned by the slip caused by the minute shortfall of service,
for the application of the circular of the High Court dated
06.01.2004,
(herein after referred to as the circular) directing to recruit the full
time and part time Masalchies, who have put in more than 15/10/5
years of service in their respective units for recruitment to the posts
of Attenders, the petitioner, who is also a part time masalchie,
comes before us by way of this writ petition, seeking for such
recruitment as an Office Subordinate. His long wait of all these
seventeen long years, since the date of the circular, with a hope that
history would repeat, did not fetch him any benefit of the like,
which similarly placed employees earlier had.
2. Petitioner was appointed as part time masalchie on 31.07.1999
and has been working as such since then and also as on the date of
the circular of the High court issued in the year 2004. Petitioner
would have become eligible for recruitment as office subordinate
under the said circular but for the shortage of few months to
complete five years of service. He then made a representation to the
High Court on 11.05.2015 stating that there is a post of office
subordinate vacant in the Court of Special Judge for Economic
Offences and he sought for relaxation of age, to become eligible for
being appointed in the said vacancy. Petitioner still awaits reply from
the High Court. Not being successful in the said attempt, the
petitioner seeks to go under the circular dated 06.01.2004 drawing
comparison with another employee, who, he alleges, was recruited
under the said circular, even after the date for the application of the
circular has expired.
3. One M. Srinivasulu, part time masalchie, was recruited as an
attender by relaxing his age, by virtue of the proceedings of the High
Court dated 12.05.2009. Under an impression that since the
direction was given on 09.04.2009, by which date this petitioner also
became eligible by completing his five years of service as part time
masalchie, the petitioner contends that he also is eligible for such
recruitment. But a reading of the relevant material on record shows
that, after the High Court issued the circular dated 06.01.2004, unit
heads of various units forwarded the names of part time masalchies
and the process of approving the said masalchies to be recruited
under the circular was taken up by the High Court and the direction
for appointment of said M. Srinivasulu is a consequence of such
consideration. A list of 39 masalchies was approved by the High
Court and M. Srinivasulu is one candidate in the list, figuring at
Sl.No.38. Hence, the understanding of the petitioner that M.
Srinivasulu was appointed subsequent to the said circular is
misconceived and no parity can be drawn between them.
4. The vexed issue of appointment of masalchies into regular
service came up before the Supreme Court in several cases.
The High Court of Allahabad in KRISHNA PRSAD v. STATE OF
UTTAR PRADESH observed that Articles 14 and 16 of the
Constitution of India have been considered by the Constitution
Bench of the Supreme Court in SECRETARY, STATE OF
KARNATAKA v. UMA DEVI [(2006) 4 SCC 44] and subsequently in
the case of STATE OF BIHAR v. UPENDRA NARAYAN SINGH [JT
2009 (4) SC 577]
in detail with reference to the appointment of the Daily Wager, ad
hoc and temporary appointment. The Supreme Court in UPENDRA
NARAYAN SINGHs case observed that the equality clause
enshrined in Article 16 of the Constitution of India mandates that
every appointment to a public post or office should be made by way
of open advertisement so as to enable all eligible persons to compete
for selection on merit. The Supreme Court observed as under:
Article 14 is the genus while Article 16 is a species.
Article 14 declares that the State shall not deny any
person equality before law or equal protection of the
laws within the territory of India. Article 16 gives effect
to the doctrine of equality in all matters relating to
public employment. Article16 embodies the fundamental
guarantee that there shall be equality of opportunity for
all citizens in matters relating to employment or
appointment to any office under the State. No citizen
shall eb ineligible for or discriminated against
irrespective of any employment or office under the State
on the grounds of religion, race, caste, sec, descent,
place of birth, residence or any of them. Though,
enacted as a distinct and independent fundamental
right, because of its great importance as a principle
ensuring equality of opportunity in public employment
which is so vital to the building up of the new classless
egalitarian society envisaged in the Constitution, The
basic principle which, therefore, informs both Arts. 14
and 16 is equality and inhibition against discrimination.
Now, what is the content and reach of this great
equalising principle? It is a founding faith, to use the
words of Bose J., "a way of life", and it must not be
subjected to a narrow pedantic or lexicographic
approach. We cannot countenance any attempt to
truncate its all-embracing scope and meaning, for to do
so would be to violate its activist magnitude. Equality is
a dynamic concept with many aspects and dimensions
and it cannot be "cribbed cabined and confined" within
traditional and doctrinaire limits. From a positivistic point
of view, equality is antithetic to arbitrariness. In fact
equality and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while the other,
to the whim and caprice of an absolute monarch. Where
an act is arbitrary it is implicit in it that it is unequal both
according to political logic and constitutional law and is
therefore violative of Article 14, and if it affects any
matter relating to public employment, it is also violative
of Article 16. Articles 14 and 16 strike at arbitrariness in
State action and ensure fairness and equality of
treatment.
The Allahabad High Court referred to a decision of the
Supreme Court in ARUN KUMAR NAYAK v. UNION OF INDIA
[(2006) 8 SCC 111), wherein the Supreme Court observed as under:
This Court in Visweshwara Rao, therefore, held that
intimation to the employment exchange about the
vacancy and candidates sponsored from the
employment exchange is mandatory. This Court also
held that in addition and consistent with the principle of
fair play, justice and equal opportunity, the appropriate
department or establishment should also call for the
names by publication in the newspapers having wider
circulation, announcement on radio, television and
employment news bulletins and consider all the
candidates who have applied. This view was taken to
afford equal opportunity to all the eligible candidates in
the matter of employment. The rationale behind such
direction is also consistent with the sound public policy
that wider the opportunity of the notice of vacancy by
wider publication in the newspapers, radio, television
and employment news bulletin, the better candidates
with better qualifications are attracted, so that adequate
choices are made available and the best candidates
would be selected and appointed to subserve the public
interest better."
The Supreme Court also further observed as under:
Notwithstanding the basic mandate of Article 16 that
there shall be equality of opportunity for all citizens in
matters relating to employment for appointment to any
office under the State. The spoil system which prevailed
in America in 17th and 18th centuries has spread its
tentacles in various segments of public employment
apparatus and a huge illegal employment market has
developed in the country adversely affecting the legal
and constitutional rights of lakhs of meritorious
members of younger generation of the country who are
forced to seek intervention of the court and wait for
justice for years together. However, the hope and
expectation of the framers of the Constitution that after
independence every citizen will get equal opportunity in
the matter of employment or appointment to any office
under the State and members of civil services would
remain committed to the Constitution and honestly
serve the people of this country have been belied by
what has actually happened in last four decades.
The observations also came with regard to the appointment of
lower strata of the civil services and the scenario of appointment to
lower strata is considered to be worst. The relevant observations of
the Supreme Court are as under:
Those who have been bestowed with the power to
make appointment on Class III and Class IV posts have
by and large misused and abused the same by violating
relevant rules and instructions and have indulged in
favouritism and nepotism with impunity resulting in total
negation of the equality clause enshrined in Article 16
of the Constitution. Thousands of cases have been filed
in the Courts by aggrieved persons with the complaints
that appointment to Class III and Class IV posts have
been made without issuing any advertisement or
sending requisition to the employment exchange as per
the requirement of the 1959 Act and those who have
links with the party in power or political leaders or who
could pull strings in the power corridors get the cake of
employment. Cases have also been filed with the
complaints that recruitment to the higher strata of civil
services made by the Public Service Commissions have
been affected by the virus of spoil system in different
dimensions and selections have been made for
considerations other than merit.
In State of Haryana v. Piara Singh [(1992) 4 SCC 118],
this Court reiterated that appointment to the public
posts should ordinarily be made by regular recruitment
through the prescribed agency and that even where ad
hoc or temporary employment is necessitated on
account of the exigencies of administration, the
candidate should be drawn from the employment
exchange and that if no candidate is available or
sponsored by the employment exchange, some method
consistent with the requirements of Article 14 of the
Constitution should be followed by publishing notice in
appropriate manner calling for applications and all those
who apply in response thereto should be considered
fairly, but proceeded to observe that if an ad hoc or
temporary employee is continued for a fairly long spell,
the authorities are duty bound to consider his case for
regularization subject to his fulfilling the conditions of
eligibility and the requirement of satisfactory service.
5. The concern of the Supreme Court was about the temporary
appointments being made through back doors, defeating the rights
of the other eligible persons. But the other side of the coin comes to
our vision. The masalchies, who are appointed 5, 10, 15 years ago,
were absorbed as regular attenders by virtue of the circular of the
High Court, which goes to show that they could not be regularized
immediately, after their appointment and they were not regularized
before five years. That would imply that the services of the petitioner
and similarly placed masalchies were required by the Courts as an
exigency and that they were not necessarily brought in through
backdoors with an intention to get their entry first and regularise
their services later. If they had the favour of the employer, they
would not have been made to wait for so many long years without
regularisation.
The efficiency of the contract employees was recognised by the High
Court of Allahabad in the decision supra and observed as follows:
In the present scenario of Globalisation and Economic
growth, the execution of work by engaging the persons
on contractual basis, daily basis and part time basis has
become well recognised system and its results are more
productive, efficient and economical.
The constitutionality of such appointments is spelled in the
following lines:
Having regard to the financial aspects the Central Government,
State Government and their instrumentalities have right to
engage daily wagers on the agreed wages, on contractual basis,
ad hoc and temporary basis and there is no prohibition in the
Constitution or under any law of the land. However, their
appointment should be in accordance to law.
6. Merely because the masalchies were not appointed by
following the procedure prescribed for the post into which they are
absorbed,
it cannot be said in all cases, that their initial appointment itself was
with ulterior motive. The penury of the petitioner and the likes may
be one of the reasons for them to accept the employment with
meagre wages. But, however, our sympathies to the petitioner, who
has worked in the same capacity, with meagre wages, for several
years, do not permit us to apply the circular to the petitioner as it is
only issued as one time measure, as is made clear by the circular of
the High Court dated 26.07.2014 by the words that the circular is
only one time arrangement and would be applicable to the existing
incumbents as on the date of the circular.
7. How peaceful would the society be if the State can provide
employment to all the needy persons, with wages sufficient enough
to sustain their lives with dignity, we muse. With that thought, we
can only recommend to the High Court to consider the case of the
petitioner and other similarly placed employees and to explore the
possibility and feasibility of issuing a circular similar to the circular
issued earlier.
The writ petition is disposed of. Consequently, pending
miscellaneous applications, if any, shall stand closed. There shall be
no order as to costs.
_____________________
V. RAMASUBRAMANIAN, J
__________
T. RAJANI, J
October 11, 2017
