HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.2891 OF 2007 AND CONTEMPT CASE NO.1372 OF 2011 DATED 26th NOVEMBER, 2013 Between: P.Renuka …Petitioner and Sri Padmavathi Mahila University, Tirupati, Chittoor District, represented by its Registrar. …Respondent HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.2891 OF 2007 AND CONTEMPT CASE NO.1372 OF 2011 C O M M O N O R D E R The petitioner, an Assistant Professor in the Department of Education in Sri Padmavathi Mahila University, Tirupati, Chittoor District, is aggrieved by its action in not regularizing her services. She also complains of irregular payment of monthly salary and failure to sanction her second annual grade increment. She seeks directions to the University to forthwith regularize her services as an Assistant Professor in the Department of Education from the date of her initial appointment; to sanction her second annual grade increment which was due on 01.03.2006; to pay her monthly salary regularly; and to extend to her all other benefits applicable to regular employees of the University. By interim order dated 15.02.2007, this Court directed the University to engage the petitioner on the same terms and conditions as were existing on the date of filing of the writ petition. Thereafter, by interim order dated 07.02.2008, this Court directed the University to pay salary to the petitioner regularly as per her eligibility. The earlier order dated 15.02.2007 was made absolute on 07.02.2008, when the vacate stay petition filed by the University was dismissed. On 12.10.2010, this Court passed another interim order in WPMP.No.27186 of 2010. This order reads as under: “The notification dated 10.11.2003 in response to which the petitioner was selected and appointed as an Assistant Professor in Special Education does not indicate that the vacancy in which she was appointed was under any particular scheme or was time bound in nature. It is only under the appointment order dated 04.03.2004 that the respondent-University for the first time mentioned that the petitioner was appointed under a scheme. Even this order does not indicate that the scheme, if any, was time bound in nature. Further the University also placed the petitioner on a time scale under the said order of appointment which would not be the case in the event she was given only a temporally restricted appointment. That being so, the stand of the University that the petitioner was only temporarily appointed under a time bound scheme so as to deny the petitioner’s claim for regularization prima facie cannot be countenanced. As it is stated that a regular vacancy has arisen now owing to the retirement of an Assistant Professor in Special Education under O.C. category, there shall be a direction to the respondent-University to consider the case of the petitioner for regularization of her services in the said post pending further orders.” Pursuant to this order, the University had to consider the petitioner’s case for regularization of her services in the regular vacancy that had arisen owing to a retirement. Alleging disobedience to this order, the petitioner filed Contempt Case No.1372 of 2011. The writ petition and the contempt case were listed before this Court on the orders of the Hon’ble The Chief Justice. After initiation of the contempt proceedings, the University filed a petition to vacate the interim order dated 12.11.2010 and the same was also listed. However, as arguments were advanced by both sides touching upon the merits of the main cases, they are taken up for final disposal with the consent of the learned counsel. The case of the petitioner as set out in her affidavit is as follows: The University issued advertisement dated 10.11.2003 inviting applications from eligible candidates for filling up various posts, including the unreserved post of Assistant Professor, B.Ed Special Education (Hearing Impairment), in the Department of Education. The petitioner applied for the said post and was called for an interview. The duly constituted selection committee thereupon selected her for appointment. By order dated 04.03.2004, the University appointed her as an Assistant Professor in the said vacancy on the pay scale of Rs.8000-275-13500/- along with allowances. At that time, the petitioner was in regular Government service as a Secondary Grade Teacher and had put in more than six years of pensionable service. However, as University employment presented better career prospects, she claimed that she resigned from the Government post. As she could not report for duty in the University by the stipulated date, 20.03.2004, she sought extension of time and in the meanwhile, her resignation from Government service was accepted enabling her to join duty in the University. She however had to forgo three months Government salary. She joined duty in the University on 31.03.2004 and started discharging her functions as an Assistant Professor for the hearing impaired. She was paid salary regularly till July, 2005 and was also sanctioned her first annual increment of Rs.275/- with effect from 01.03.2005 by the University’s proceedings dated 21.03.2005 on completion of the first year, along with other permanent teaching staff. The petitioner claimed that after August, 2005, she was not paid her monthly salary regularly on par with others similarly situated and her services were also not regularized. Her representation dated 08.11.2006 resulted in the release of her salary from December, 2005 to November, 2006 but the same situation continued thereafter. The petitioner claimed that she came to know in February, 2007, that the University had submitted proposals to the University Grants Commission (UGC) for financial assistance under the ‘Teacher Preparation in Special Education’ (TEPSE) scheme and as the UGC had not released the same, the University was irregular in payment of her salary. The petitioner stated in this connection that the UGC, by its letter dated Nil July, 2005, had called upon the Vice-Chancellors of various universities to avail UGC assistance for providing higher education to disabled persons under the TEPSE scheme. The concerned college/university was required to fulfill certain conditions for availing the UGC assistance. One such condition was that an undertaking had to be given that the course would be continued with the assistance of the State Government or with self-generated resources, as the UGC assistance was restricted to the plan period only. The University, according to the petitioner, sent proposals to the UGC for availing this assistance under the TEPSE scheme in August, 2005, by showing the post occupied by her as one falling under the scheme. However, as the University did not fulfill the conditions stipulated, the UGC did not release the financial assistance leading to irregular payment of her salary. The petitioner contended that her appointment in March, 2004, could not be connected with the TEPSE scheme of August, 2005, and therefore, the linking of her post with the scheme was itself untenable. She contended that she should ‘s service and that she ought to have been regularized in service and given benefits on par with others who were selected and appointed against the posts notified in the advertisement dated 10.11.2003. The petitioner stated that she apprehended that the University would discontinue her services owing to her insistence on being regularized in service. Owing to the petitioner’s perceived threat of discontinuance from service, this Court, by order dated 15.02.2007, directed the University to continue to engage her services on the same terms and conditions existing on the date of the filing of the writ petition. WVMP.No.964 of 2007 was filed by the University to vacate the interim order dated 15.02.2007. In the counter filed in support thereof, the University, while referring to the advertisement dated 10.11.2003, admitted that the post of Assistant Professor, Special Education, was notified therein as an existing vacant post in open category. However, this post was stated to be not on par with the other posts advertised as it was sanctioned by the UGC under the TEPSE scheme for M.Ed Special Education (Hearing Impairment), under its letter dated 26.03.2002 for a period of five years from the date of implementation. The University stated that the temporary nature of this post was demonstrated by the reference to the TEPSE scheme in the petitioner’s appointment order dated 04.03.2004. The University further stated that upon receiving the said order, the petitioner herself addressed letter dated 18.03.3004, wherein she stated that she was losing regular Government service so as to join the University post and that she had come to know that the said appointment was under the TEPSE scheme. She accordingly requested that her services be continued even after closure of the scheme. The University therefore asserted that the petitioner was fully aware that the subject post was under a scheme and was a temporary one. The University contended that as the UGC had only sanctioned the post with limited financial assistance for a period of five years, the petitioner could not seek regularization of her services. The delay in the release of the grant by the UGC was stated to be the reason for the delay and irregularity in payment of her salary. The University asserted that it was not responsible for the petitioner resigning her permanent job in Government service and claimed that she joined service on 31.03.2004, knowing fully well that her appointment was a temporary one under a scheme sanctioned for a specified period. The University therefore sought vacating of the order dated 15.02.2007 and dismissal of the case. In her reply to the above counter, the petitioner pointed out that there was no indication in the advertisement dated 10.11.2003 that the post of Assistant Professor in B.Ed Special Education (Hearing Impairment) was temporary in nature or that it was under a scheme sanctioned for a specified period. She further pointed out that the UGC sanction for the TEPSE scheme, under its letter dated 26.03.2002, was in relation to M.Ed Special Education (Hearing Impairment) course and had nothing to do with the post of Assistant Professor in B.Ed Special Education (Hearing Impairment), which was notified in the advertisement dated 10.11.2003. Alternatively, she contended that even if the subject post was covered by the TEPSE scheme, the guidelines of the UGC required the University to give an undertaking that it would continue the post with State assistance or through its own resources after the expiry of the period during which the UGC assistance was available. She therefore asserted that the post, in any event, could not be treated as a temporary one and that it had to be continued even after expiry of the UGC assistance. The petitioner further stated that as there was a discrepancy between the advertisement dated 10.11.2003 and the appointment order dated 04.03.2004, which for the first time mentioned the TEPSE scheme, she had informed the University that she had resigned from her regular post in Government service and requested the University to continue her in service on a regular basis. She claimed that she was informed that all appointments in University service would be on a temporary basis initially and that her services would automatically get regularized thereafter. She stated that but for this assurance she would not have left her permanent Government post and joined University service on 31.03.2004. She stated that after joining in the post, she was informed by the University under letter dated 02.06.2004 that she should request for continuation of her services after the closure of the TEPSE scheme. She furnished the details of the irregular salaries paid to her and contended that after January, 2007, she had been denied her salary altogether. She contested the claim of the University that she could not seek regularization of her services, pointing out that she had nothing to do with the M.Ed Special Education (Hearing Impairment) course. The petitioner thereafter filed WPMP.No.26641 of 2007 seeking a direction to the University to pay monthly salary to her regularly from January, 2007 onwards. This Court ordered this petition on 07.02.2008 directing the University to pay monthly salary to the petitioner regularly as per her eligibility. The petitioner then filed WPMP.No.27186 of 2010 seeking a direction to the University to regularize her services in the post of Assistant Professor (Special Education) which had fallen vacant on the retirement of one Dr.Philomena Joseph. In the affidavit filed in support thereof, she stated that she was still being paid salary irregularly and that after release of her first annual increment, the University had not sanctioned any increments to her. She claimed that as a result thereof she was being put to huge loss. She estimated the loss caused to her at Rs.4,34,164/- as on that date. She stated that a regular vacancy had arisen due to a retirement and that her case could therefore be considered. By order dated 12.11.2010, this Court directed the University to consider the petitioner’s case for regularization of her services in the said post. WVMP.No.848 of 2012 was filed by the University to vacate this order. In the affidavit filed in support thereof, the Registrar of the University stated thus: Since 2009, no student was admitted in B.Ed and M.Ed Special Education courses. 29 students were admitted in B.Ed Special Education in 2011-12, but no student joined in M.Ed Special Education. There was thus a likelihood of discontinuation of the course. The UGC, under letter dated 26.03.2002, informed the University that it was implementing the TEPSE scheme for providing assistance to universities/colleges of education for starting special education, teacher preparation courses at the B.Ed and M.Ed levels and for providing facilities for persons with special needs (disabled persons) in higher education. A proposal was submitted by the University and thereupon the UGC agreed to provide assistance to the University for a period of five years and approved one Reader’s post and one post of Lecturer/Assistant Professor for M.Ed Special Education (Hearing Impairment). Pursuant to this letter dated 26.03.2002, the University proposed to fill up the sanctioned post and accordingly issued the advertisement dated 10.11.2003. However, owing to an oversight, it was not mentioned in the notification that the post of Assistant Professor in Special Education was sanctioned under the TEPSE scheme. The petitioner was selected and appointed to the said post under the order dated 04.03.2004, which however indicated that her appointment was under the TEPSE scheme. On 18.03.2004, the petitioner addressed a letter to the University stating that she had come to know of her appointment under the TEPSE scheme and requested the Registrar to continue her services even after closure of the scheme. The University therefore reiterated that she was aware that her appointment was to a temporary post covered by a UGC scheme and contended that she was not entitled to seek regularization of her services. In her reply to this counter, the petitioner stated that she had applied to the University under the Right to Information Act, 2005, for a copy of the Executive Council Resolution No.CA (04-03) dated 28.02.2004, pursuant to which she had been appointed. Under letter dated 22.02.2012, the Registrar supplied a photocopy of the said resolution. This resolution reads as under: “Extract of the minutes of the items of the Confidential Agenda of the 51st Meeting of the Executive Council held on 28.2.2004 at 13.00 a.m in the Committee Hall, AP State Council of Higher Education, Hyderabad. C.A (04-03): Teaching Establishment – Filling up of sanctioned teaching positions in the Department of Special Education – Minutes of the Selection committee – Regarding. Resolved to approve the recommendation of the Selection Committee and to appoint Mrs. P. Renuka as Assistant Professor in Special Education (Hearing Impaired) in the Department of Special Education.” As the said photocopy was not attested, the petitioner requested the Registrar to attest the same and return it to her. Thereupon, the very same Registrar, under letter dated 12.03.2012, sent the petitioner an attested copy of the resolution. However, this resolution differed from the resolution earlier communicated to the petitioner. This resolution reads as under: “Extract of the minutes of the items of the Confidential Agenda of the 51st Meeting of the Executive Council held on 28.2.2004 at 11.30 a.m, in the Committee Hall, AP State Council of Higher Education, Hyderabad. C.A. (04-03): Teaching Establishment – Filling up of sanctioned teaching positions in the Department of Special Education – Minutes of the Selection Committee – Regarding. Resolved to approve the recommendation of the Selection Committee and to appoint Mrs.P.Renuka as Assistant Professor in Special Education (Hearing Impaired) in the Department of Special Education under TEPSE scheme.” (emphasis added) Upon noticing this difference, the petitioner stated that she submitted representation dated 14.03.2012 requesting the Registrar to attest the original copy which was sent to her, but the said request was not complied with. The petitioner therefore asserted that this demonstrated that not only as per the advertisement dated 10.11.2003 but even as per the original resolution of the Executive Council on 28.02.2004, the post of Assistant Professor to which she was appointed was not considered to be one under the TEPSE scheme. She asserted that it was only thereafter that the same was introduced in the appointment order. The petitioner further stated that on the retirement of Dr.Philomena Joseph on 31.08.2009, a post of Assistant Professor in Special Education had fallen vacant and apart from that, a few vacancies were also available in the Department of General Education. She stated that services of the teaching faculty in the Special Education department were also utilized for teaching the General Education courses, but the General Education teaching faculty could not teach the subjects of Special Education. She stated that her services were utilized by the University for teaching subjects pertaining to General Education courses also. She further stated that she, being the senior most Assistant Professor, had been appointed as the in-charge Head of the Education Department whenever the regular Head of the Department was not available. She therefore claimed that she was treated as a regular Assistant Professor in the University but was not being extended the benefits commensurate therewith. It is pertinent to note that WVMP No.848 of 2012 was filed after the institution of C.C.No.1372 of 2011, alleging disobedience to the interim order dated 12.11.2010. The petitioner complained in the affidavit filed in support of this contempt case that the University was issuing vague replies to her representations, claiming that the UGC had been addressed for a clarification as to re-fixation of her pay, annual grade increments, UGC RPS 2006 and regularization of her services. She therefore asserted that her continuance in service in the existing conditions was causing great financial detriment to her. In its counter in the contempt case, the University stated that pursuant to the interim order dated 12.11.2010, a letter would be addressed to the Government to consider the petitioner’s case for absorption in the existing vacant position after placing the matter before the Executive Council. The University then filed an additional counter through its present Registrar. This counter was deposed to on 05.03.2013. Therein, she stated that the University originally started B.Ed course for the hearing impaired in the year 1989-90. The sanctioned cadre strength for Education and Special Education courses was stated to be one Professor, three Associate Professors and seven Assistant Professors. The cadre strength and details of the Assistant Professor posts were furnished to indicate that there was no O.C vacancy available in the year 2004. On this basis she asserted that the post which was advertised on 10.11.2003 was one relatable to the TEPSE scheme only but by mistake, the said advertisement did not mention ‘M.Ed Special Education’ and wrongly showed it as a ‘B.Ed Special Education’ post. She further stated that no O.C vacancy was available as on date for accommodating the petitioner. According to the Registrar, pursuant to the UGC’s letter dated 03.05.2001, the University sought sanction of one post of Professor, one post of Reader and three posts of Lecturers for M.Ed Special Education (Hearing Impairment) under the TEPSE scheme under its letter dated 21.05.2001. The scale of pay for the post of Lecturer was shown as Rs. 8000-275-12000. The University also submitted ‘Undertaking’ dated 21.05.2001 to the UGC whereby it undertook the responsibility of continuing the M.Ed Special Education course even after completion of the ninth plan by seeking necessary assistance from the State Government or by generating its own resources to meet the expenditure. Thereupon, the UGC under its letter dated 26.03.2002 informed the University that it was agreeable to provide financial assistance to it under the TEPSE scheme for a period of five years from the date of implementation of the scheme in respect of M.Ed (Special Education) for the hearing impaired with the posts of one Reader and one Lecturer. Thereupon, the Executive Council, at its meeting held on 28.02.2004, was stated to have considered the petitioner’s candidature only under the TEPSE scheme and the same was reflected in the appointment order dated 04.03.2004. As regards the copy of the resolution relied upon by the petitioner which did not indicate the words ‘under TEPSE Scheme’, the Registrar stated that the same was not a true copy but was a tampered one. She stated that an enquiry would be conducted into the matter. According to her, the sanction of the first annual increment to the petitioner was also by mistake and once it was realized that she was not a regular employee, no further increments were released. She further stated that the TEPSE scheme had expired on 31.03.2012 and that there was no intake of M.Ed students from 2008-09. The petitioner was stated to be continuing in the service of the University only because of the interim orders granted by this Court. In her reply to this additional counter affidavit, the petitioner stated that even as per the University, one post of Assistant Professor in Special Education was vacant as on 10.11.2003. Further, Dr.Philomena Joseph had retired on 31.08.2009 and her post was also vacant. She stated that only Dr.T.G.Amruthavalli belonged to the Special Education Department. She pointed out that the advertisement dated 10.11.2003 and the prospectus issued pursuant thereto did not indicate that any of the posts notified were relatable to M.Ed Special Education (Hearing Impairment) course or to a scheme sanctioned by the UGC. Reiterating her earlier stand as to the resolution dated 28.02.2004 of the Executive Council, she alleged that the record had been altered thereafter to suit the University’s interest. She pointed out that her appointment order was identical to those issued to the regular teaching staff of the University and asserted that the inclusion of the words ‘under TEPSE scheme’ was only for appeasing the UGC. She pointed out that she had attended to various additional duties allotted to her, which would not have happened had she not been a regular teacher in the University. She further alleged that her appointment order was made out with the words ‘under TEPSE scheme’ only to mislead the UGC for seeking the grant under the said scheme which was sanctioned for M.Ed Special (Hearing Impairment) course. She further stated that owing to this ruse on the part of the University, she was being paid much less than regular teachers in the University. She further stated that she had never been asked to teach M.Ed course and all through, her services were used only for teaching B.Ed Special Education (Hearing Impairment) and B.Ed General Education courses. The workload details of the staff members for the years 2004-05, 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 and 2011-12 were placed on record in support of this statement. The original ‘Roster Register of the Teaching Establishment Section pertaining to the School of Social Sciences, Humanities and Management, relating to the posts of Associate Professors and Assistant Professors, was placed before the Court. Perusal thereof reflects that the 60th roster point in the Department of English, pertaining to B.C (B) category, was filled up in the year 1999 with the appointment of one Dr.M.Neeraja. The next roster point was therefore No.61 relating to ‘open competition’ and the petitioner was appointed as against this roster point in the year 2004. The register reflects the entry as under: Recruit-ment year S.No. of the vacancy in the