IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

WRIT PETITION Nos.22958, 26282, 27338, 27616 OF 2021;

% Dated 28.03.2024

#W.P.No.22958 OF 2021 & 3 other writ petitions

T Muni Ram Prasad,

S/o T Munaiah,

Aged 54 years, Occ Medical Officer,

Government Homeo Dispensary Kallur,

YSR Kadapa District

R/o D.No.2/525, Balaji Nagar, Proddatur,

YSR Kadapa District & 11 others ….. Petitioners

Vs.

$

The State of Andhra Pradesh,

Rep. by its Principal Secretary,

Health, Medical & Family Welfare Department,

A.P. Secretariat Building, Velagapudi,

Amaravathi, Guntur District ..Respondents

JUDGMENT PRONOUNCED ON: 28.03.2024

THE HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

Whether Reporters of Local newspapers

may be allowed to see the Judgments?

Whether the copies of judgment may be marked to Law

Reporters/Journals

Whether Their Ladyship/Lordship wish to see the fair

copy of the Judgment?

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* THE HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

+ WRIT PETITION Nos.22958, 26282, 27338, 27616 OF 2021;

% Dated 28.03.2024

# W.P.No.22958 OF 2021 & 3 other writ petitions

M/s. Al-Momin College of Education

Kandukur Revenue Division

East Palem Road, Podili

Prakasam District ….. Petitioners

Vs.

$

The Registrar,

Acharya Nagarjuna University

Guntur, Andhra Pradesh ..Respondents

! Counsel for the petitioner :

1. Sri Manoj Kumar Bethapudi

2. Sri K.S.S. Sanjay

^ Counsel for the respondent :

1. Sri Kasa Jagan Mohan Reddy

2. Sri T.S.N. Sudhakar

3. Sri V. Venkata Naga Raju

<GIST:

> HEAD NOTE:

? Cases referred

1. (2006) 4 SCC 1

2. AIR (2021) SC 3305

3. (2010) 9 Supreme Court Cases 247

4. (2006) 4 SCC 1

5. (2010) 9 SCC 247

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THE HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

WRIT PETITION Nos.22958, 26282, 27338, 27616 OF 2021

COMMON ORDER:-

1. All these writ petitions are filed under Article 226 of the Constitution

of India by different petitioners, claiming identical relief, as such, I find it

expedient to decide all the writ petitions by common order, since the issue

involved in all the writ petitions is one and the same.

W.P.No.22958 of 2021

2. By this writ petition, petitioners seek to declare the action of the

respondents in not considering their cases for absorption/regularization of

their services. Petitioners also seek relief of their being

absorbed/regularized to their posts which they are holding, and which

posts are contractual posts.

3. The petitioners herein were initially appointed as Medical Officers

(Homeopathy) in the year 2008 and they are presently working at various

Homeopathy dispensaries (Primary Healthcare Centers) on contract basis.

The contract period is initially for one year, which was extended from time

to time. The Government of Andhra Pradesh issued Notifications dated

02.04.2008 and 07.01.2009 seeking to fill-up Medical Officers in various

disciplines of country recognized medical practices i.e. Ayurveda,

Homeopathy, Unani and Siddha, pursuant to the scheme of National Rural

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Health Mission (NRHM). Some of the petitioners in the present writ

petitions were selected in the Notification dated 02.04.2008 and few of

them were selected in the Notification dated 07.01.2009.

4. The Government issued G.O.Rt.No.254 dated 01.02.2011 proposing

to fill-up the posts of 439 Medical Officers, including 108 posts of

Homeopathy. In the said Notification, the State Government had awarded

weightage for contract service rendered by the Medical Officers. Several

Medical Officers who were appointed along with the petitioners during the

years 2008 and 2009 came to be appointed on regular basis in the said

Direct Recruitment. However, the petitioners and others could not be

selected. It is submitted that the posts of Medical Officer are created by the

first respondent pursuant to the NRHM Scheme formulated by the Central

Government, which is funded 60% by the Central Government and 40% by

the State Government. The petitioners are discharging their duties on par

with the medical officers who are appointed regularly by the Government.

5. Subsequently, the Government issued G.O.Ms.No.105 dated

16.07.2013, G.O.Ms.No.163 dated 12.09.2018 and G.O.Rt.No.301 dated

20.06.2020, according weightage for recruitment of Civil Assistant

Surgeons, Dental Assistant Surgeons, Staff Nurses, Lab Technicians,

Pharmacists by extending the benefit of weightage for the contract service

rendered by them.

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6. The Commissioner of AYUSH had addressed a letter to the Principal

Secretary to the Government , Health Medical & Family Welfare

Department, A.P vide Lr.No.4762/B1/2015 dated 14.02.2017 stating that

all the Medical Officers appointed in the Department under contractual

services have been made duly following the procedure as done in case of

regular appointments by following merit, roster point and presidential

orders. As such they are fully eligible for the post of Medical Officer if the

recruitment is done on regular basis, the same contract Medical Officers

would have been selected. Since the recruitment of Medical Officers was

made on contract basis, they were selected as medical officers on contract

basis. In view of the instructions of the Government and as per the

business rules, the matter may be placed before the Council of Ministers to

take a decision for issue of necessary permission to the Commissioner of

AYUSH for filling of posts of Medical Officers (Ayurveda/Unani/

Homeopathy) by absorbing them, as the Commissioner is the appointing

authority for the post of Medical Officer. It is also requested that the

Government to consider their request on the same lines as was done

earlier, since they have completed 9 years of contractual service, as on

14.02.2017.

7. Basing on the letter addressed by the Commissioner of AYUSH on

14.02.2017, the Principal Secretary to Government addressed a letter to

the Secretary, A.P. Public Service Commission in Lr.No.293916/F.1/2016-

04 dated 25.09.2017 sta ting that the Commissioner of AYUSH has

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requested the Government for regularization of the services of Medical

Officers who were working on contract basis in various rural PHC centers

pursuant to NRHM scheme. The Secretary, APPPSC was informed that the

Government has examined the proposals of the Commissioner, AYUSH and

it was decided to delete 107 vacancies of Medical Officers in AYUSH from

the orders issued in G.O.Ms.No.110, Finance (HR.I. Plg.& Policy)

Department dated 17.06.2016, to enable to regularize services of Medical

Officers who are working on contract basis under NRHM dispensaries.

8. In response thereto, APPSC addressed Lr.No.415/RS-22/2016 dated

12.10.2017 to the Commissioner, AYUSH, requesting to furnish the revised

indents for the posts of Medical Officer (Homeo/Unani/Ayurveda) along

with the rules governing the post, breakup of the vacancies, roster points,

applicability of PH/Women reservation, Upper Age Limit, etc. In reply, the

Commissioner addressed letter dated 29.01.2018, giving clarifications and

requested to issue notification for filling up remaining 44 vacancies of

Medical Officers on regular basis at an early date.

9. On 03.09.2019, the Deputy Secretary to the Government issued a

Memo to the Commissioner, AYUSH to furnish the information in respect of

regularization of the services of Medical Officers, who were working on

contract basis pursuant to NRHM:

i. To state specifically that with whose permission a decision was

taken to regularizing the services of 107 Medical Officers working

on Contract basis in AYUSH dept and inform what is the criteria

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to withdraw the direct recruitment posts already permitted to

notify by the APPSC, in which orders were already issued by the

Finance Department vide G.O.Ms.No.110 dated 17.06.2016.

ii. Is there any rule provision to withdraw the posts related to direct

recruitment already permitted to facilitate the medical officers

working on contract basis to get regularization.

iii. Indicate whether is it necessary to withdraw the regular posts

which was already permitted to notify.

iv. To indicate why the direct recruitment was not taken place, when

the G.O. issued three years back. Health Medical department are

pursuing the matter with APPSC to take place of the recruitment.

v. To examine the issue of regularization of 107 Medical Officers

working on Contract basis without linking up with direct

recruitment duly invoking the rule position.

vi. To indicate specifically whether any assurance/order given to

these contract employees for their regularization when they are

appointed initially. Please furnish If any orders.

10. Later, vide G.O.Ms.No.49 Finance (HR-I Plg. & Policy) Department

dated 29.07.2021, the Government accorded permission to APPSC for issue

of Notification for various posts, wherein, 53 Medical Officers (Homeo) in

Ayush Department were notified, which were earlier deleted from the

purview of APPSC.

11. Though the petitioners made several representations seeking

regularization of their services to various higher authorities, no action was

taken by the respondent authorities.

12. Thereafter, APPSC has issued Notification No.9/2021 dated

24.09.2021 seeking to fill-up various posts, including the posts of Medical

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Officers (Homeopathy) without any benefits like age relaxation, service

weightage, etc. Hence, the petitioners preferred this writ petition to

regularize/absorb their services as Medical Officers (Homeo).

13. Respondent Nos.1 & 2 filed counter and additional counter affidavits.

Respondent Nos.4 to 11 filed counter affidavit and vacate stay petition,

denying material allegations. It is stated that the petitioners were engaged

on contract basis in the year 2008 & 2009 under NRHM Scheme. At the

time of engaging their services, in the notification, it was categorically

stated that the recruitment was only on contract basis. Specific contract

agreement was entered with the petitioners and there was no mention in

the contract agreement that their services would be regularized in future

and more so the duration of agreement was only for one year and later

renewed from time to time. The petitioners accepted the terms and

conditions of the contract and joined the service agreeing that they will not

claim any right to continue in service in the department of AYUSH beyond

the stipulated period. The petitioners have also agreed that they will not

claim any right for absorption in the regular vacancies that may arise in

future in the department of AYUSH. The Government has hired the

petitioners by giving weightage to their contract service in subsequent

regular recruitments. It does not mean that the petitioners have right to

claim and get weightage marks in every recruitment.

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14. The AYUSH Department has separate service and the selection

methods, pay scales are also varying from the Allopathy Department.

Therefore, the service, rules and methods, G.Os followed by the Allopathy

Department may not be applicable to AYUSH Department unless the

Government specifies and issues the G.Os making the same applicable to

AYUSH Department.

15. It is submitted that, Government in G.O.Ms.No.153 HM&FW (I.2)

dated 30.07.2012 have entrusted the recruitment process to APPSC.

Further, Government issued G.O.Ms.No.110 dated 17.06.2016 have

accorded permission to fill up 151 posts of Medical Officers and the

department have requested the APPSC for recruitment of 151 po sts of

Medical Officers (Ayurveda-72, Homeo-53 & Unani-26) and furnished the

intends for the said posts. Accordingly, APPSC/Respondent No.3 has

issued open Notification on 24.09.2021 for direct recruitment as per the

prescribed procedure.

16. It is submitted that, in response to the notification, the petitioners

can apply to the same, but cannot demand for weightage for the service

and age relaxation. In case of existence of necessary circumstances, the

Government has a right to appoint contract/outsourcing e mployees or

casual labour for various projects, but such persons cannot claim any right

to regular employment on absorption. Such temporary/contrary employee

working for various schemes/outsourcing employees cannot claim

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absorption/regularization as they k new that they were appointed

temporarily as mentioned in the agreements. The Government did not give

any assurance of regularization without regular recruitment process being

followed under the State Government, as such there is no violation.

17. It is submitted that the petitioners are working due to a particular

scheme called as NRHM and not against the sanctioned posts, as such they

cannot claim for regularization of services as a matter of right solely on the

ground that they are working for several years. Regularization of services is

an exception and matter of policy of the Government. As the petitioners

were never appointed in any of the sanctioned posts created by State, they

are not entitled for regularization.

18. During hearing, learned counsel for the petitioners would submit

that, the petitioners are working as Medical Officers on contract basis since

2008 with meager salary. They were transferred to another PHC/CHC and

few employees were forced to take up the transfer. Even the petitioners

were transferred and entered into fresh contracts from time to time. The

contracts of the petitioners were extended from time to time. after 2012,

the respondents ought to have issued another notification to fill up rest of

the Medical Officers lying vacant in the Department of Ayush instead of

extracting the services from the petitioners.

19. Learned counsel would submit that, the petitioners were posted at

various PHCs under the control of Department of AYUSH and were allotted

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all the duties of Regular Medical Officer and also worked during Covid-19

Pandemic on par with regular Medical Officers. Since the petitioners

discharged the duties of regular Medical Officer of the concerned PHC

where no regular Medical Officer was appointed, all through their service,

they are deemed to be working in the sanctioned pots and they are entitled

for regularization as they have put in 14 to 15 years of contractual service

till date.

20. Learned counsel for the petitioners contended that, when the

petitioners were appointed as Medical Officers on contract basis after

following necessary selection process for appointment of regular employee

in the existing vacancies, they are entitled to claim absorption into services

in terms of the principle laid down by the Constitutional Bench of the

Hon‟ble Apex Court in State of Karnataka vs. Umadevi

1

and requested to

direct the respondents to regularize/absorb the services the petitioners

from the date of their initial appointment.

21. Learned counsel for the petitioners would further submit that, the

impugned notification is issued without giving any benefit of age relaxation

and service weightage to the petitioners who are working as contract

Medical Officers. Moreover, when the petitioners are at the end of crossing

their age limit, issuing the impugned notification after a decade seeking to

fill up the regular posts to which the petitioners have waited for so long,

1

(2006) 4 SCC 1

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would put the petitioners to loss, since it would be difficult for them to

compete at this age.

22. Learned counsel for the petitioner placed reliance on the judgment of

the Hon‟ble Apex Court in University of Delhi vs. Delhi University

Contract Employees Union

2

, State of Karnataka vs. M.L. Kesari

3

,

Secretary, State of Karnataka vs. Umadevi (referred supra) and on the

strength of the principle laid down in the above judgment, would contend

that benefit of age relaxation and service weightage should be given to all

the contract employees and separate/another notification should be given

to fill up the unsuccessful contract employees. Learned counsel submits

that, in the present case, the impugned notification is issued without giving

any benefits to the contract Medical Officers.

23. On the other hand, Sri Kasa Jaganmohan Reddy, learned Special

Government Pleader appearing for the official respondents would contend

that, when a person enters a temporary employment or gets engagement as

a contractual or casual worker, he is aware of the consequences of the

appointment being temporary, causal or contractual in nature. Such a

person cannot invoke the jurisdiction of this Court. Moreover, while

engaging these persons, the State did not make any promise either to

continue them where they are or to make them permanent and cannot seek

a positive relief of being made permanent in the post.

2

AIR (2021) SC 3305

3

(2010) 9 Supreme Court Cases 247

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24. Learned counsel drawn attention of this Court to Condition No.8(viii)

of the Agreement for employment in the Department of Ayush on Contract

Basis to the post of Medical Officer (Homeo) under NRHM Scheme, which it

reads as follows:

“It is expressly stated and agreed to by the party of the Second

party that any duration of service under this agreement shall in

no way provide her any right to claim for absorption in regular

vacancies that exist now or may arise in future in the

Department of AYUSH of the First part.

25. Basing on the above condition, it is contended that the petitioners

who have executed the Agreement for employment in the Department of

Ayush on Contract basis for the post of Medical Officer (Homeo) cannot

claim for absorption in regular vacancies existing at that point of time

during subsistence of the agreement or in future. Since the agreement is

undertaken and signed by the petitioners, that they will not and shall not

claim any right for absorption in regular vacancies in future, their right to

claim ceased as per the terms and conditions of the agreement.

26. It is contended that, any appointments in regular vacancies are to be

filled through the process by giving opportunity to all equally qualified

persons to compete and meritorious will be selected or appointed. Contract

employees have no legal right or claim for absorption. Contract

appointments made between employees and Government, to meet needs of

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the Government are, purely on renewal basis only and petitioners are

aware of the terms of their appointment and prayed to dismiss the writ

petition.

27. Sri T.S.N. Sudhakar, learned counsel appearing for Respondent

Nos.4 to 11 in W.P.No.22958 of 2021 and Sri Challa Gunaranjan for

Respondent Nos.4 to 23 in W.P.No.27616 of 2021 , while reiterating the

contentions of learned Special Government Pleader, would contend that the

Government has taken services of the petitioners on contract basis for a

period of one year on contract basis and thereafter, the said contract period

is extended by the as per the funds earmarked by the Government of India

to implement the NRHM Scheme. The dispensaries which are running

under the scheme do not come under the sanctioned posts of the AYUSH

Department. When the petitioners themselves executed personal bonds by

agreeing to the terms and conditions of the agreement to perform as

contract employee, they do not have any right to claim to regularization of

their services in the department against the regular vacancies that exist

now or may arise in future in the Department of AYUSH.

28. Heard the following:

a. W.P.No.22958 of 2021, heard Sri Manoj Kumar Bethapudi,

learned counsel for the petitioners; Sri Kasa Jagan Mohan

Reddy, learned Special Government Pleader for Respondent

Nos.1 & 2; Sri T.S.N. Sudhakar, learned cou nsel for

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Respondent Nos.4 to 11 and Sri V. Venkata Naga Raju, learned

Standing Counsel for APPSC;

b. W.P.No.26282 of 2021, heard Sri Manoj Kumar Bethapudi,

learned counsel for the petitioners; Sri Kasa Jagan Mohan

Reddy, learned Special Government Pleader for Respondent

Nos.1 & 2 and Sri V. Venkata Naga Raju, learned Standing

Counsel for APPSC;

c. In W.P.No.27616 of 2021, heard Sri K.S.S. Sanjay, learned

counsel for Sri P. Rajasekhar, learned counsel for the

petitioner; Sri Kasa Jagan Mohan Reddy, learned Special

Government Pleader for Respondent Nos.1 & 2 and Sri V.

Venkata Naga Raju, learned Standing Counsel for APPSC and

Sri Challa Gunaranjan for Respondent Nos.4 to 23;

d. In W.P.No.27338 of 2021, heard Sri K.S.S. Sanjay, learned

counsel for Sri P. Rajasekhar, learned counsel for the

petitioner; Sri Kasa Jagan Mohan Reddy, learned Special

Government Pleader for Respondent Nos.1 & 2 and Sri V.

Venkata Naga Raju, learned Standing Counsel for APPSC;

29. Originally, W.P.No.22958 of 2021 was filed against Respondent Nos.1

to 3, but later, as per the orders of this Court vide I.A.No.2 of 2021 dated

20.06.2022, Respondent Nos.4 to 11 were impleaded as party respondents.

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30. During pendency of the writ petition, an interim direction was passed

by this Court on 23.10.2021, directing the official respondents not to

proceed with the recruitment to the extent of 12 posts of Medical Officers

(Homeopathy) in pursuance of the Notification No.9 of 2021 dated

24.09.2021, in view of balance of the irreparable prejudice in favour of the

petitioner.

31. The National Rural Health Mission Scheme which was envisaged by

the Government of India. The petitioners were not recruited as Medical

Officers on contract basis under the scheme by the Central Government or

through any agency created under the scheme. But, the recruitment was

done by the Department of Ayush pursuant to the availability of funds

under NRHM Scheme.

32. It can be seen that the appointment made to the temporary/contract

posts under a scheme. In G.O.Ms.No.73 dated 15.03.2008, it was clarified

by the Government that the posts created pursuant to NRHM will be

included in the State Plan after 2012. Hence, the respondents have asked

all the contractual employees to enter into fresh contracts with the

Department of AYUSH of the State Government without intervention of the

Mission Director, NRHM. Therefore, the contract employees who initially

worked with NRHM are now working in the Department of AYUSH in the

State Government.

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33. The petitioners were appointed on fixed tenure of one at a time; their

services terminated notionally for a cosmetic one day break to create the

facade of the termination of the appointment immediately followed by fresh

appointment letter issued for one year. This practice has been continuing

for a period of over three decades. Many Medical Officers were initially

appointed on ad-hoc basis after written test and interview and were being

paid full salaries and allowances payable to a newly appointed Medical

Officers. These very persons were subsequently appointed on contract basis

for a fixed „fee‟.

34. It is an admitted position before this Court that the persons so

appointed are holding the same qualification, if not better, than persons

holding permanent posts of Medical Officers. They are also performing the

same functions. It is also undisputed that all these persons have rendered

satisfactory service.

35. This writ petition was filed for the reason that the respondents are

not considering the cases of the petitioners for absorption/ regularization

of their services and issuing Notification No.9 of 2021 without according

the benefit of concessions like weightage of marks, age relaxation, etc,.

36. The petitioners have pointed out that the essential qualifications as

well as the mode of selection was identical to the manner in which they

were appointed and thus apprehended denial of absorption/regularization

of their services in a clandestine manner on the basis of a condition

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incorporated in the terms and conditions of the contract in the

appointment letter which enables the respondents to prohibit the petitioner

from claiming any right for absorption in regular vacancies leading to the

filing of the writ petitions.

37. It is also the case of the petitioners that they had been continuing as

Medical Oficerasual workers without the aid of any order from any Court. It

is further stated that the petitioners had been doing their work to the

satisfaction of any concerned and there has been no complaint against

anyone as regards the services provided by them.

38. The petitioners were appointed against vacant post and hence,

petitioners are entitled for regularization in view of the decision reported

in State of Karnataka v. Umadevi. For better understanding, Paragraph

No.53 of the Judgment in Umadevi case is extracted hereunder:

“53. One aspect needs to be clarified. There may be cases where

irregular appointments (not illegal appointments) as explained in S.V.

Narayanappa, R.N. Nanjundappa and B.N. Nagarajan 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

abovereferred to and in the light of this judgment. In that context, the

Union of India, the State Governments and their instrumentalities

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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. 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 by passing of the

constitutional requirement and regularising or making permanent,

those not duly appointed as per the constitutional scheme.”

39. The petitioners before this Court are pressing for a direction to the

respondents to extend the benefit of regularization of their services as

Medical Officers (Homeopathy) whereby they could be considered for

appointment taking into account the years of their experience in the light of

their possessing the requisite eligibility qualifications.

40. The further submission is that the contractual appointments of the

petitioners were made as per the exigency of the situation. It is submitted

that these contractual appointments were for a fixed tenure of period on

consolidated remuneration. No difference could be pointed out on behalf of

the respondents to the process of recruitment which was undergone by

these contractual recruits from that which is undergone by persons to

whom regular appointment is offered under the rules. It is writ large on the

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face of the record that the petitioners have actually undergone a procedure

akin to that prescribed under the recruitment rules for regular

appointment to the post of Medical Officer, though they have been offered

only the contractual appointment.

41. So far as the notification of the tenure on the appointment letter is

concerned and the respondent‟s contention that the employees accepted

the same, in the view of this Court, the said stipulation is not being treated

as sacrosanct by the respondent for the reason that the authorities were

aware that the appointment was being made against vacant permanent

posts and that there was need for the services of the person concerned. For

this reason, technical and cosmetic breaks of merely a single day were

being given between extensions of the same appointment by a further

tenure. Such breaks were in vogue and a strategy was adopted by the

statutory authorities for decades to avoid claims of regularization, viz

employing “daily wagers”, “muster roll employees (even “temporary muster

roll” and “regular muster roll”, adhoc employment and contractual

employment. Several such engagements led to regularisation orders which

have come to an end by the binding and authoritative Constitutional Bench

pronouncement in Secretary, State of Karnataka & Ors. v. Umadevi &

Ors

4

.

4

(2006) 4 SCC 1

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42. In the same breath, it has been argued by Sri Manoj Kumar

Bethapudi, learned counsel for the petitioners that if the respondents did

not make the appointments on contract basis, the Medical Department

could not have functioned and the interest of the State would have

suffered. This submission in fact clearly underlines the imperative need of

the services of the appellants.

43. This Court now proposes to discuss the directions of the Supreme

Court in the pronouncement reported in Secretary, State of Karnataka &

Ors. v. Umadevi & Ors. In this case, the Supreme Court was concerned

with a challenge to matters of absorption, regularization of permanent

continuance of temporary, contractual, casual, daily wage or adhoc

employees appointed/recruited and continued for long in public

employment dehors the constitutional scheme of public employment. In

para 52, the Court has declared that no writ of mandamus should be

issued in favour of employees notifying the government to make them

permanent since the employees cannot show that they have an enforceable

legal right to be permanently absorbed or that the state has a legal duty to

make them permanent.

44. In Paragraph No.53 of Uma Devi case, it is 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

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[(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 consi dered 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. 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.”

45. A distinction between an illegal and an irregular appointment is that,

illegal appointment would be of a kind where there exists no sanctioned

post and a person is appointed by means of a selection process which hits

the very essence of a Recruitment Rule. An irregular appointment would be

where a procedure to follow the appointment, not going to the root of the

appointment is followed. Now, a procedure or manner of appointment

which goes to the root of the appointment would be where a person who is

ineligible is appointed and there is no sanctioned post; eligibility, with

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reference to the educational, experience and age requirement is ignored. In

the present case, the writ petitioners have undergone the recruitment

process for being selected as contract Medical Officers (Homeo).

46. The petitioners have however urged that the respondents have

ignored one material factor in the manner in which they were denied the

benefit of absorption/regularization, as was extended to other members in

the earlier notifications. It is submitted that the respondents are conscious

when they gave the one-time benefit earlier to the other members who were

equally educationally and technically trained under courses and training

programmes then in vogue, akin to the petitioners. There is no dispute to

the fact that all such persons who applied possessed the prescribed

qualifications and were eligible for consideration of regularization. The

qualifications and skills were acquired prior to the appointments on

contract basis which have admittedly continued/renewed over a long

period of time. As noted by this Court, the petitioners/contract employees

have rendered satisfactory service.

47. On a reading of paragraph 53 of the Judgment in Umadevi's case, it

can be seen that the said Judgment pro vides that in respect of

appointments made in favour of persons who are duly qualified, against

sanctioned vacant posts, and have continued to work for more than ten

years and without the intervention of any order of the Courts or Tribunals,

such persons may be regularized in service as an one time measure.

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48. In paragraph 7 of the State of Karnataka vs. M.L. Kesari

5

, it has

been provided that there is an exception to the general principles against

regularization enunciated in Umadevi's case, if the employees concerned

have worked for more than ten years or more in duly sanctioned post

without the benefit or protection of the interim order of any Court or

Tribunal, the State Government or its instrumentality should have

employed the employee and continued him i n service voluntarily and

continuously for more than ten years. Further, the appointment should not

be illegal, even if irregular, where appointments not made or continued

against sanctioned posts or where the persons appointed do not possess

the prescribed minimum qualifications were considered to be illegal and

where persons employed possessed the prescribed qualification and was

working against a sanctioned post, but had been selected without

undergoing the process of open competitive selection were considered to be

irregular. Paragraph 8 of M.L. Kesari's case provides that a duty is cast

upon the Government for regularizing the services of the irregularly

appointed employees, who had served for more than ten years without the

benefit or protection of any interim order of the Courts and Tribunals, as a

one-time measure. Further, paragraph 9 provides that the term one time

measure would normally mean that after the decision in Umadevi's case,

each department or instrumentality should undertake an one time exercise

rind prepare a list of all casual, daily wage, ad-hoc employees, who have

5

(2010) 9 SCC 247

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worked for more than ten years without an intervention of Courts and

Tribunals and subject them through a process verification as to whether

they are working against vacant p osts and possesses the requisite

qualification for the post and if yes, regularize their services.

49. From the aforesaid provisions in paragraph 53 of the Judgment in

Umadevi's case and paragraphs 7 to 10 in M.L. Kesari's case, what is

discernible is that all such employees who are working continuously for ten

years or more as on 10.04.2006, without the aid and protection of any

interim order from the Courts or Tribunals and might have been appointed

in an irregular manner, would be entitled to be considered for

regularization as an one time measure and each department is required to

carry out such an exercise for regularization. The other requirement for

being entitled to be regularized under the one time measure provided in

paragraph 53 of the Judgment in Um adevi's case and explained in

paragraphs 7 to 10 of M.L. Kesari's case is that the concerned employee

has to be working against a sanctioned post for the aforesaid period of ten

years or more without the aid and protection of any interim order from the

Courts or Tribunals

50. As a corollary to the aforesaid provisions in paragraph 53 in the

Judgment of Umadevi's case and paragraphs 7 to 10 in the Judgment of

M.L. Kesari's case. In the event, it is verified and established that the

petitioners in the present case were working as Medical Officers (Homeo)

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against sanctioned vacant post, the provisions of paragraph 53 of the

judgment in Umadevi's case and paragraphs 7 to 10 in the judgment in

M.L. Kesari's case, would squarely be applicable to the case of the

petitioners and they would be entitled for a regularization as an one time

measure.

51. One of the contention raised by the respondents is that the

contractual workers like the petitioners were engaged de -hors the

constitutional scheme. Firstly, the petitioners who are engaged in such

manner as Medical Officers, are all duly qualified for the work for which

they are engaged and they have been selected/appointed on contract basis

by following due process of selection. If looked from the point of view of the

provisions of paragraph 7 of the M.L. Kesari's case, such engagement

would at the best, can be termed as irregular, but not illegal. From the said

point of view also, the engagement of the petitioners cannot be said that

they are not entitled to any benefit in the nature of a regularization.

52. In the aforesaid background of the Judgment in Umadevi's case, it

can be seen that the provision made in paragraph -53 of the Judgment

pertains to such cases where appointments had been made against

sanctioned vacant post and therefore, one of the pre-requisites of a

regularization under paragraph 53, as a one-time measure, is that the

appointments had been made against sanctioned vacant post.

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53. That apart, the Legislature of the State of Andhra Pradesh enacted

Act No.30 of 2023 i.e. An Act Further to Regularize the Services of Persons

Appointed on Contract Basis in the Gazette in Part IV -B Extraordinary

dated 20.10.2023, wherein, in Chapter-II, specifically says that the persons

appointed on contract basis shall be regularized, subject to fulfilling certain

conditions. A Schedule is annexed to the Gazette mentioning the codes and

name of the department(s) to which the said act would be made applicable.

Among them, at Serial No.65 – HMF06 – Ayurveda, Yoga, Unani, Siddha &

Homeopathy (Ayush) Department is mentioned.

54. According to Clause (1) of the Act, persons appointed on Contract

Basis means a person appointed in Government Departments duly

following the conditions specified in Clause 3 under Chapter-II of this Act.

At the same time, under Chapter-II Clause 3(3), specifies that the contract

appointments should have been made on full time basis only and

Clause 3(4) says that the contract appointments should have been made

against substantive vacancies of permanent sa nctioned posts with

concurrence of Finance Department under the provisions of the Act,

provided that such persons appointed on contract basis, if discontinued

temporarily in vacation departments, shall also be entitled to be

regularized. Clause 3(5) specified that the regularization of a person

appointed on contract basis shall be considered only if his initial

appointment was in due compliance with the procedure relating to

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selection process, rule of reservation, eligibility, age & educational

qualifications prescribed for the post and notification of vacancies.

55. In the present case, the petitioners are qualified persons and duly

selected, who are working as Contract Medical Officers (Homeo) against the

duly sanctioned vacant posts are continuing to work for ten years or more

but without the intervention of orders of the courts or of tribunals. The

petitioners are appointed on Contract Basis and working under the

Department of Ayush and their appointments were made on full time basis

and against the substantive vacancies of permanent sanctioned posts. As

per proviso to Clause 3(4) under Chapter-II, even though the petitioners

appointed on contract basis are discontinued temporarily, they shall also

be entitled to be regularized as per the Act. Hence, tempora ry

discontinuation or cosmetic break is not a bar for regularization of the

petitioners. Moreover, the petitioners have undergone regular selection

process, complied with the eligibility, age and educational qualifications,

thereby, the petitioners are entitled for regularization.

56. Hence, the question of regularization of the services of such

employees may have to be considered on merits in the light of the

principles settled by the Hon‟ble Apex Court in the judgments referred

supra and also in view of the Act No.30 of 2023 enacted by the State

Legislature i.e. An Act Further to Regularize the Services of Persons

Appointed on Contract Basis. Hence, the State Government and it‟s

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instrumentalities should take steps to regularize the petitioners as a one-

time measure, since the petitioners were neither appointed irregularly in

duly sanctioned posts nor they are working under the cover of orders of the

courts or tribunals. Even as per the directions in Paragraph No.53 of the

judgment of the Hon‟ble Apex Court in the judgments referred supra, it is

the duty of the State to ensure that regular recruitments are undertaken to

fill those vacant posts that require to be filled up, in cases where temporary

employees are being now employed. The process must be set in moti on

within six months from this date.

57. Indeed, it is undeniable that at the time of the judgment in Umadevi case

delivered by this Court, the contract employees had only accrued

approximately 3 to 4 years of service. However, at present, the majority of

them have surpassed the milestone of 10 years of service on a contractual

basis. While the prospect of regularization may not be feasible, it is

imperative to afford them a fair chance to compete alongside other

candidates by means of public advertisement. Pr oposing a distinct

examination solely for contract employees would be counterproductive, as

it would limit the pool of eligible candidates exclusively to those already

engaged in contractual roles.

58. The Hon‟ble Apex Court in University of Delhi vs. Delhi University

Contract Employees Union (referred supra) held as follows:

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(a) The benefit of age relaxation as contemplated in paragraph 6 of

the affidavit without any qualification must be extended to all the

contract employees.

(b) In modification of paragraph 7 of the affidavit, those employees

who were engaged in the year 2011 be given the benefit of 10 marks

in the ensuing selection process while for every additional year that

a contract employee had put in, benefit of one more mark subject to

the ceiling of 8 additional marks be given. In other words, if a

contract employee was engaged for the first time in the year 2010, he

shall be entitled to the benefit of 11 marks, while one engaged since

2003 shall be given 18 marks, as against the appointee of 2011 who

will have the advantage of only 10 marks. The contract appointees of

2012 and 2013 will have the advantage of 9 and 8 marks

respectively.

(c) The Public Notice inviting applications from the candidates shall

specifically state that the advantage in terms of the order passed by

this Court would be conferred upon the contract employees so that

other candidates are put to adequate notice.

(d) All the contract employees shall be entitled to offer their

candidature for the ensuing selection in next four weeks and in order

to give them sufficient time to prepare, the test shall be undertaken

only after three months of the receipt of applications from the

candidates.

59. A stand on the part of the State respondent authorities that such

contract employees had accepted the offered employment at a lower wage

on their own volition and that they are not working against any sanctioned

posts, and as such, not entitled to claim absorption or regularization, is not

acceptable and unsustainable, for the reason that, continuation of services

of petitioners for a period more than one and half decade, proves that

petitioners have been continuing against vacant posts only.

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60. In view of foregoing discussion, W.P.No.22958 of 2021 is allowed with

the following directions:

a. The action of the respondents in not considering the cases of the

petitioners for regularization/absorption of their services and issuing

Notification No.9 of 2021 dated 24.09.2021 without according benefit

of concessions like weightage of marks, age relaxation etc to the

petitioners, who are working as Medical Officers on contract basis is

declared as illegal and arbitrary.

b. The respondents/authorities are directed to verify the credentials of

the petitioners and arrive at a decision, since they are working

against vacant posts and if they are working for more than ten years

and whether they are continuing in service pursuant to any interim

order from any Court or Tribunal. In the event, it is found that the

above condition is satisfied in respect of any of the petitioners, their

services is to be regularized as an one time measure in consonance

with paragraph-53 of the Judgment in Umadevi's case.

c. If the respondents found that any of the petitioners do not meet the

aforesaid conditions, more particularly the condition that they are

working against vacant posts, their cases are to be determined as to

whether they are performing the same nature, quality and quantity of

work as is being performed by a regular employee working against

the same/corresponding posts. If upon the determination it is found

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that any such petitioner is performing the same nature, quality and

quantity of work as is being performed by a regular employee working

against the same/corresponding posts, such petitioners are to be

given

(i) benefit of age relaxation.

(ii) They shall be given the benefit of 10 marks in the

ensuring selection process, while for every additional year that

a contract employee had put in.

(iii) Benefit of one more mark subject to the ceiling of 8

additional marks be given.

(as per University of Delhi vs. Delhi University Contract

Employees Union).

d. The respondents are permitted to resume the recruitment process

from the point where it was halt, taking into consideration the

directions issued by this Court.

e. Consequently, I.A.Nos.1, 2 & 3 of 2022, shall stand closed.

f. In view of the detailed order passed in W.P.No.22958 of 2021,

I.A.No.4 of 2022 becomes infructuous.

61. Consequently, miscellaneous applications pending if any, shall also

stands closed.

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W.P.No.26282 of 2021

62. In view of the detailed order passed by this Court in W.P.No.22958 of

2021; W.P.No.26282 of 2021 is also allowed. No order as to costs.

63. Consequently, miscellaneous applications pending if any, shall stand

closed.

W.P.No.27338 of 2021

64. In view of the detailed order passed by this Court in W.P.No.22958 of

2021; W.P.No.27338 of 2021 is also allowed. No order as to costs.

65. Consequently, miscellaneous applications pending if any, shall stand

closed.

W.P.No.27616 of 2021

66. In view of the detailed order passed by this Court in W.P.No.22958 of

2021; W.P.No.27616 of 2021 is also allowed. No order as to costs.

67. Consequently, miscellaneous applications pending if any, shall stand

closed.

____________________________________________

JUSTICE VENKATESWARLU NIMMAGADDA

Date:28.03.2024

Note: LR copy to be marked

b/o

SP

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THE HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

WRIT PETITION Nos.22958, 26282, 27338, 27616 OF 2021

Date:28.03.2024

SP