AP Regularisation of teaching/ non-teaching temporary staff working on Daily Wage/NMR or Consolidated Pay as per G.O.RT.No 91 | Higher Education Regularisation of teaching/ non-teaching temporary staff working on Daily Wage/NMR or Consolidated Pay in the State funded Higher Educational Institutions – Examine proposal scrupulously in view of Act 2 of 1994, Orders of the Apex Court and various Act, Rules and Government Orders of State Government -Strict implementation – Orders Issued as per G.O.RT.No 91 Dated: 30-06-2021.
AP Regularisation of teaching/ non-teaching temporary staff working on Daily Wage/NMR or Consolidated Pay as per G.O.RT.No 91
1.Andhra Pradesh (Regulation of appointments to Public services and rationalisation of staff pattern and pay structure) Act, 1994 (Act 2 of 1994).
2.G.O.Ms.No.212, Finance & Planning (F.W.PC.III)Dept, dated: 22.4.1994.
3.Hon’ble Supreme Court Judgment in CA No.3702 of 2006 (ManjulaBhashin case).
4.Hon’ble Supreme Court in its judgment dated:10-4-2006 in 3595-2612 of 1999 in Umadevi Case.
5.From the Department of Personnel and Training (DOPT), Government of India, New Delhi, OM No. 49014/7/2020-Estt.(c), dated:07/10/2020.
It is observed that the State funded Higher Educational Institutions under the administrative control of Higher Education Department have submitted various proposals to Government for regularisation of teaching or non-teaching temporary staff working on Daily Wage/NMR or Consolidated Pay in their institutions in violation of the provisions of Andhra Pradesh (Regulation of appointments to Public services and rationalisation of staff pattern and pay structure) Act, 1994 (Act 2 of 1994), cited in the reference 2nd and various judgements of the Supreme Court of India in the reference 3rd and 4th read above.
In this regard, kind attention is invited to the Article 16 of the Constitution of India, which reads as: “16. Equality of opportunity in matters of public employment
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State”
Further, Hon’ble Supreme Court of India its judgement dated 21/02/2013 in the case of State of Orissa vs. Mamata Mohanty in Civil Appeal No.1272 of 2011 emphasized on the settled legal proposition that “the equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit”; relevant portions para 18 and 19 of the Apex Court Order are extracted hereunder: “18. At one time this Court had been of the view that calling the names from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment.
But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution.
Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates.
If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates
who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary.
For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled.
The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.”
As we are well aware that the judgments given by the Supreme Court is the Law of the land as they are binding under Article 141 of the Constitution of India. The Government felt that there is a dire need for reiterating the judgements of Apex Court, Acts and Orders of State Government of Andhra Pradesh with respect to regularization of services.
The Hon’ble Supreme Court in its judgment dated:10-4-2006 in 3595-2612 of 1999 in Umadevi Case held that for regularization individuals should have completed 10 years of continuous service, but not under cover of orders of courts or of tribunals, in a duly sanctioned vacant post and with possessing minimum requisite qualifications.
The paras 15 and 53 in the judgment of Umadevi case are extracted hereunder: “15. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.
One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.NARAYANAPPA (supra), R.N.NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant postsmight have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals.
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 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 regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten
As we are well aware that the judgments given by the Supreme Court is the Law of the land as they are binding under Article 141 of the Constitution of India. The Government felt that there is a dire need for reiterating the judgements of Apex Court, Acts and Orders of State Government of Andhra Pradesh with respect to regularization of services.
The Hon’ble Supreme Court in its judgment dated:10-4-2006 in 3595-2612 of 1999 in Umadevi Case held that for regularization individuals should have completed 10 years of continuous service, but not under cover of orders of courts or of tribunals, in a duly sanctioned vacant post and with possessing minimum requisite qualifications. The paras 15 and 53 in the judgment of Umadevi case are extracted hereunder: “
We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the Court, in appropriate cases, would have only the right to regularize an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.
One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.NARAYANAPPA (supra), R.N.NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant postsmight have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals.
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 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 regularize 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 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 regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.”
Further, para 2 and 3 of the circular of the Department of Personnel and Training (DOPT), Government of India vide OM No. 49014/7/2020-Estt.(c), dated.07/10/2020 on the subject of “regularization of qualified workers appointed against sanctioned postsUma Devi judgement facts/ clarification-reg” are extracted hereunder
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