IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY NINETH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 35149 of 1998 Between: Dr.G.V.Ramana Murthy S/o.G.K.Murthy 16/14, II Floor, Gaddamvari Street, Nellore-1 ..... PETITIONER AND 1 The Commissioner for Collegiate Education Government of A.P., Hyderabad 2 The Regional Joint Director of Higher Education Guntur 3 V.R.College rep.by its Secretary and Correspondent, Nellore .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ order or direction particularly in the nature of mandamus to declare the proceedings of the 1st respondent in L.Dis.No.272/PC.II-1/98, Dt.15/10/1998 as arbitrary, illegal and violative of the fundamental rights guaranteed under Art.14 and 16 of the Constitution of India and issue a consequential direction to the respondents to regularise my services as lecturer in Chemistry and pass such other order or orders. Counsel for the Petitioner: Sri D.V. Seetharamamurthi Counsel for respondents 1 and 2: G.P. for Higher Education Counsel for the Respondent No.3: Sri S.R. Ashok The Court made the following : THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No. 35149 of 1998 ORDER: Seeking a declaration that the proceedings of the first respondent dated 15.10.1998 is arbitrary, illegal and in violation of Articles 14 and 16 of the Constitution of India, and for a consequential direction to regularise his services as a lecturer in Chemistry in the third respondent – college, Dr. G.V. Ramana Murthy, Ph.D in Chemistry, has invoked the jurisdiction of this Court under Article 226 of the Constitution of India. It is the case of the petitioner that, even before he submitted his Ph.D thesis, he joined as a part-time lecturer in the third respondent college on 01.11.1989, that he worked as such till 28.2.1990 during the academic year 1989-90 and that the third respondent did not issue any formal order of appointment. He would rely on the service certificate issued by the then in-charge Principal counter-signed by the Secretary and Correspondent for the said period. While appointment of the petitioner on 01.11.1989, and his claim to have worked till 28.2.1990 during the academic year 1989-90 is disputed by the respondents, it is, however, not in dispute that the petitioner, along with six others was appointed as a part-time lecturer by the third respondent, vide proceedings dated 20.09.1990, with effect from 1.9.1990, during the academic year 1990-91 and that he has been working ever since as a part-time lecturer in the third respondent college. The State Government issued G.O.Ms. No. 328 dated 15.10.1997 formulating a scheme for regularizing the services of part- time lecturer working in various colleges in the State subject to fulfillment of the conditions specified therein. Among the conditions stipulated in the said G.O, to be fulfilled by part-time lecturer for their being entitled for regularization, were (a) service of three academic years as on 30.07.1991, or five academic years as on 25.11.1993, as the case may be; (b) should be continuing in service on the date of issue of the orders; (c) should have put in 360 working days as on 30.07.1991 and 600 working days as on 25.11.1993; (d). service put in more than one private aided college, with or without breaks, may be taken into account; (e) counting of service would be based on the certificate issued by the concerned Regional Joint Director and counter-signed by the Commissioner of Collegiate Education/Commissioner & Director of Intermediate Education, as the case may be; (f). such certificate shall be issued by the Regional Joint Director (Higher Education) based on the certificate issued by the Correspondent of the respective college and counter-signed by the Principal of the private college along with the audit certificate for the concerned period. Since the entire controversy in the present case revolves around conditions (a), (e) and (f) aforementioned, it is wholly unnecessary to analyse the other conditions stipulated in the said G.O. Suffice to note that, after issuance of the said G.O, the Director of Collegiate Education requested the Correspondents of all aided colleges to furnish information of such of those part-time lecturers who satisfied the conditions prescribed in G.O.Ms. No. 328 dated 15.10.1997, in the Annexure enclosed and forwarded it to the Regional Joint Directors concerned who, in turn, were directed to verify the particulars furnished with the original records, counter-sign the proposals and send it to the Directorate of Collegiate Education. In order to ensure that the information furnished by the colleges was correct, the Regional Joint Directors were instructed to verify the following original records (1). Scale Registers; (2) Acquaintance Register; (3) Cash Books; (4) Attendance Registers; (5) Financial Statements; (6) Work load statements; (7) Admission Registers; and (8) Term Fee Registers. G.O.Ms. No. 328 dated 15.10.1997, which was initially valid only for a period of six months from the date of issuance of the G.O, was extended from time to time and the last such extension was only upto 09.10.1998. Pursuant to the proceedings of the first respondent dated 25.04.1997, the third respondent submitted particulars of part-time lecturers, working against aided posts, for regularization of their services. According to the petitioner the third respondent, in the particulars furnished by them to the 1st respondent, took into consideration the service particulars of part-time lecturers, including the petitioner, only from 01.9.1990 till 25.11.1993 covering four academic years but did not include the service rendered by him from 01.11.1989 to 28.02.1990 i.e., for the academic year 1989-90. Petitioner would contend that, if the said period were to be included, he would have completed five academic years and nearly 670 days of service during the said period. He would also contend that, though he worked for 602 days during the period from 01.09.1990 to 25.11.1993, the first respondent had rejected the proposal of the third respondent on the ground that he did not work during five academic years, as contemplated in the G.O, for regularisation of his services. Petitioner also contends that, while submitting the proposals, the third respondent had recommended the case of two of the six persons appointed along with him on 20.09.1990, Sri K. Srinivasulu and Smt. M.V.L. Sailaja, lecturers in Commerce as they had worked from 01.09.1989 and 21.01.1989 respectively, though they were also not given appointment orders as in his case. The petitioner would further contend that the particulars of Sri M. Yellamanda Rao, a part-time lecturer in English, was also sent subsequent to the submission of the proposals of the third respondent wherein he was shown to have worked with effect from February, 1990 by separate proceedings of the third respondent, so as to bring him within the eligibility criteria of five years. According the petitioner, based on the proposals of the third respondent, the second respondent had reported to the first respondent that the petitioner, and a few others, had not completed five years of service and, as a result, the first respondent had issued proceedings dated 13.04.1998. Petitioner submits that, even before his claim was rejected, on coming to know of the non-inclusion of his service, he had submitted a representation to the first respondent dated 27.03.1998 informing him that he had worked as a part-time lecturer from 01.11.1989 to 28.02.1990, and that he had enclosed a service certificate issued by the then in-charge Principal counter- signed by the then Correspondent. He also submits that he had sent another representation on 30.03.1998 and, even after the order of rejection dated 13.04.1998, he had sent another representation on 27.04.1998 to the first respondent through the third respondent. Petitioner contends that the third respondent had again sent proposals for regularization of his services after including the period of service rendered by him from 01.11.1989 to 28.02.1990, that the third respondent had, in the said proposal, stated that the previous management had not maintained records properly and that he had enclosed records to show that the petitioner had done invigilation duty at the end of the academic year 1989-90 in the Sri Venkateswara University Degree examination for which the third respondent college was one of the centres. According to the petitioner the first respondent had directed the second respondent to conduct an enquiry into the service particulars furnished by him, that the third respondent, while accepting the genuineness of the service certificate issued by the in-charge Principal counter-signed by the then Secretary and Correspondent, did not produce the records even during the said enquiry and that the second respondent, without examining the records, had submitted a report to the first respondent that the petitioner did not complete five years of service as on 25.11.1993, based on which the first respondent had issued proceedings dated 15.10.1998 informing the college that their request, for regularization of the petitioner’s services, was not feasible of compliance. Petitioner contends that, on a bare perusal of the impugned proceedings, it was evident that the 3rd respondent had not produced the records for the relevant period before the second respondent, that the second respondent did not take any steps to cause production of the records and, if only the second respondent had forced the third respondent to produce the records, the petitioner’s claim would have been established. He would contend that the first and second respondents were duty bound to look into the records as the service certificate produced by him was accepted as genuine even by the present management of the third respondent college and, in the absence of any efforts by the second respondent to look into the relevant records, any report submitted would be perfunctory and incomplete. According to the petitioner, the services of part-time lecturers, who worked during the academic year 1989-90 without appointment orders, were regularized by the first respondent based on the service certificate issued by the then Principal and that the entire problem was created on account of the third respondent not including the service rendered by him from November, 1989 to February, 1990 in the proposal sent by it originally. In his additional affidavit dated 18.12.2001, the petitioner contends that the first respondent had considered and regularized the services of Smt. B. Sailaja Kumari on 06.05.1999 even though her name was not reflected in some of the audit reports of the college for the academic year 1989-90, that the first respondent did not dispute the service certificates issued by the third respondent college or his attending invigilation duty for the S.V. University Examinations held in March/April 1990 for about fifteen days in the academic year 1989-90 and, if the first respondent had taken into consideration the said service certificates and invigilation reports, the objection raised by the first respondent, that the petitioner did not work for one day in the fifth academic year, would have been satisfied. The petitioner refers to the proceedings of the first respondent dated 31.07.1991 directing private managements to continue only those part time lecturers who had worked during the academic years 1989-90 and 1990-91 and had directed that no fresh candidates should be appointed. He submits that the very fact that the petitioner was continued as a part time lecturer necessitated the inference that he had worked during the academic years 1989-90 and 1990-91. In the counter-affidavit filed on behalf of the official respondents it is stated that the proposals, to regularize the services of part-time lecturers, including the petitioner, were received through the Regional Joint Director, Higher Education, Nellore and that the particulars furnished by the College authorities showed that the petitioner was appointed as a part-time lecturer on 01.09.1990. It is stated that while the petitioner had, in his representation dated 30.03.1998, stated that he had worked in the college from 01.11.1989 to 28.02.1990 and had requested that his case be considered for regularization, since his name was not reflected in the audit report of the College for the year 1989-90, his request was rejected vide proceedings dated 13.04.1998 on the ground that he had not fulfilled the condition of having worked for three academic years and 360 working days as on 30.07.1991 or five academic years and 600 days as on 25.11.1993. It is stated that the case of Sri K. Srinivasulu and Smt. M.V.L. Sailaja were considered as they had fulfilled all the conditions and, subsequently the case of Sri M. Yellamanda Rao was also considered on the basis of additional information submitted by the college authorities which showed that he too had fulfilled the prescribed conditions. It is stated that the petitioner’s representation dated 24.04.1998 was forwarded by the third respondent on 01.05.1998 and, on receipt thereof, the Regional Joint Director of Higher Education, Guntur was requested to go personally to the third respondent college, verify the original records and submit her report, that accordingly the Regional Joint Director of Higher Education, Guntur had visited the College, on 30.09.1998 and, during the course of verification, the correspondent of the college had stated that the part-time lecturers, whose proposals were rejected, had approached the management stating that they had put up some service in the earlier years which was not taken into consideration for regularization of their services and that the said representations were forwarded to the Commissioner of Collegiate Education. The Correspondent is said to have informed that the additional information was not reflected in the college records. It is stated that, at the time of verification, the Correspondent of the college had submitted only copies of the service certificates furnished by the part-time lecturers along with a copy of the examination invigilation duties and that no other evidence, supporting the service certificates furnished by the part-time lecturers, was produced, that the Secretary and Correspondent had stated that the management had engaged the services of part-time lecturers only on a conditional basis and, since the report of the Regional Joint Director disclosed that the petitioner did not complete the prescribed service for regularization, his request was once again rejected vide proceedings dated 15.10.1998. The petitioner’s contention that the Regional Joint Director had not conducted a proper enquiry is denied. It is further stated that, during the process of enquiry by the Regional Joint Director, the Correspondent had not produced any evidence and that the petitioner’s name was not reflected in the audit report of the college for the year 1989-90. The third respondent, in their counter-affidavit dated 06.09.2004, contend that the college had placed all the records before the second respondent and, since the petitioner did not fulfil the conditions mentioned in the G.O., his case was rejected by the Commissioner of Collegiate education. According to the third respondent, the petitioner was appointed on 01.09.1990 as a part time lecturer in Chemistry in their college vide proceedings dated 20.09.1990 and since then he has been working as part time lecturer, taking classes in spill over work upto academic year 1991-92, that, from the academic year 1992-93 and onwards, work was entrusted to the petitioner as a vacancy arose on account of one of the permanent lecturers retiring from service and, accordingly, he was paid part time remuneration. According to the third respondent there was no material in the college to suggest that the petitioner’s services were engaged prior to September, 1990, that, if at all the management had erred in any respect, it had erred in favour of the petitioner but not otherwise, that, after the rejection order dated 13.04.1998, the petitioner had approached the management of the third respondent college and had placed before it a purported service certificate which, according to him, evidenced that he had worked in the third respondent college prior to 01.09.1990, that the management did not accede to his request since there was absolutely no truth in the said plea nor was there any material in the college to suggest, much less establish, that his services were engaged prior to September, 1990, that it is only after due verification of all the records, including the audit report for the academic year 1989-90, that the third respondent had come to the bonafide conclusion that the petitioner's services were never engaged prior to 1st September, 1990 and that the petitioner could not produce any material even before the second respondent in support of his contention that he had rendered service prior to September, 1990 and that failure on the part of the petitioner, coupled with absence of records in the college, falsified his claim. They refer to the affidavit filed by the petitioner himself in W.P. No. 14788 of 1997 wherein he had claimed his date of appointment to be September, 1990. The third respondent states that there was no whisper in the said affidavit about his working in the third respondent college prior to September, 1990. According to the third respondent, the petitioner was a research scholar in the year 1989 at Ananthapur, his claim to have worked prior to September, 1990 was an afterthought made only to overcome the stipulations prescribed in G.O.Ms.No. 328, he had approached this Court with unclean hands and was attempting to fabricate records contrary to his own pleadings in the affidavit filed in support of the writ petition filed earlier. With regards other part time lecturers, the third respondent contends that the plea of the petitioner was unfounded, that the service particulars of these lecturers were very much available in the records of college, that the same was verified by the second respondent and their cases regularized and that the petitioner could not claim parity with those lecturers who had fulfilled the conditions stipulated in the said G.O. In their counter-affidavit dated 06.02.2008, the third respondent states that the first respondent had rejected the petitioner's case since he did not fulfil the requirement of completing five academic years of service as on 25.11.1993, that the petitioner had requested the management once again to forward proposals for regularization based on a purported service certificate said to have been issued in his favour as per which he is said to have worked in the third respondent college prior to September, 1990, that the management did not accede to his request as there was no material available in the third respondent college to suggest that his services were engaged prior to September, 1990 and, after due verification, including the audit report for the academic year 1989-90, the third respondent college had come to the conclusion that the petitioner's services were never engaged prior to 01.09.1990. However, the proposals of the petitioner was still forwarded and the first respondent was requested to regularize his services. The third respondent further states that the petitioner could have produced some semblance of evidence such as cash receipts or work allotment table etc and that failure on his part, coupled with absence of records in the college, falsified his claim, that the petitioner was appointed as a part time lecturer only from 1.9.1990 and that he himself had earlier claimed his date of appointment in the third respondent college as September, 1990. According to the third respondent, the petitioner was a research scholar in Anantapur, that it was not even his case that he had worked prior to September, 1990 at any time before the third respondent sent proposals to the second respondent, that this contention was only an after thought, and was merely an attempt to overcome the stipulations of the said G.O. In his reply affidavit dated 18.12.2001, the petitioner makes an analysis of the workload to contend that there is a requirement of one more lecturer and that he would be prejudiced if the backlog vacancies were filled up. In his reply affidavit dated 04.02.2008, the petitioner contends that Sri M. Yallamanda Rao and Sri V.V. Krishna Reddy were regularized though they had not fulfilled the conditions stipulated in G.O.Ms. No. 328, that the services of other part time lecturers were regularized on the basis of a certificate issued by the management that they had worked during the academic year 1989-90 and, while the said certificate was accepted in the case of Sri Yalamanda Rao and Sri V.V. Krishna Reddy, there was no justifiable reason not to accept the certificate produced by him. Petitioner states that the third respondent college was covered under the Employment Provident Fund & Miscellaneous Provisions Act, 1952, that he had worked during the academic year 1989-90 and had paid Employees Provident Fund contribution for the period Noveember 1989 to February, 1990. He would also contend that the then correspondent, Sri Anam Bhaktavatsalam Reddy, had given a notarized sworn affidavit to the effect that the certificates dated 01.03.1990, 17.02.1992 and the appointment order dated 20.09.1990 were issued by the third respondent college only after being counter- signed by him. Petitioner contends that Sri V.V. Krishna Reddy, a part time lecturer in Zoology, is the brother-in-law of the correspondent of the third respondent college for whose sake he was made a scape goat, and his case for regularization was rejected vide proceedings dated 15.10.1998. He also contends that the third respondent was able to secure regularization of the services of Sri V.V. Krishna Reddy ante-dating his date of appointment hiding the attendance and acquittance registers. Sri D.V. Seetharamamurthi, learned Counsel for the petitioner, points out that, in the certificate dated 17.02.1992 issued by the Principal in-charge of the college, and attested by the Secretary and Correspondent, it is stated that the petitioner had been handling classes in intermediate and degree courses in Chemistry for the period from 01.11.1989 to 28.02.1990 for 70 working days. He also relies on a service certificate, said to have been issued by the college, wherein while certifying that the petitioner was appointed on 01.09.1990, it is stated at the bottom of the page that, prior to the date of his appointment on 01.09.1990, he had worked as a part time lecturer from 01.11.1989 to 28.02.1990. Learned Counsel would also draw attention of this Court to a statement, said to have been issued by S.V. University, reflecting the dates on which persons had attended invigilation duties and, thereunder, the petitioner is shown to have attended invigilation work for fifteen days from 1st February to 26th April and again on 19.05.1990. Learned Counsel would also refer to the service certificate said to have been issued by the Secretary and Correspondent attested both by the Principal of the college and Dr. C.V.S. Bhaskar on 28.08.1998. According to the Learned Counsel, these documents clinchingly established that the petitioner had worked during the academic year 1989-90, that though these documents were produced they were not taken into consideration, that the petitioner could not be denied regularization merely because the third respondent had failed to produce the records and that non- consideration of the material documents vitiated the impugned order. The Government Pleader for Higher Education contends that G.O.Ms. No. 328 was extended only upto 09.10.1998, and not thereafter, and that there is no scheme of regularization in existence as on date. He further contends that, as the first respondent, on the basis of the evidence on record, had concluded that the petitioner did not satisfy the requirements of G.O.Ms. No. 328 it was not open to him convert proceedings under Article 226 of the Constitution of India into appellate proceedings or to request this Court to minutely examine, like an appellate authority, whether or not he satisfied the requirements of the G.O. and to adjudicate disputed questions of fact regarding his claim to have worked in the third respondent college for the academic year 1989-90. Sri S.R. Ashok, learned Senior Counsel appearing on behalf of the third respondent, submits that the very fact that the college had issued proceedings dated 20.09.1990 appointing the petitioner as a part time lecturer was itself sufficient proof that the college was in the practice of issuing appointment orders and as such the petitioner’s contention, that no appointment orders were issued when his services were engaged during the academic year 1989-90, was made only to avoid the requirement of producing proof in support of his