Regularizing Contractual Employees Appointed Against Public Policy Bad In Law: Telangana HC Declares S.10-A Of 1994 Law Ultra Vires

The Telangana High Court has, in a case pertaining to regularization of contractual employees, declared Section 10-A of the Regulation of Appointments to Public Services and Rationalization of Staff Pattern and Pat Structure) Act, 1994 as ultra vires.

The provision was challenged for allegedly regularizing illegal appointments made on contractual basis. Division bench of Justice Sujoy Paul and Justice Namavarapu Rajeshwar Rao stated Section 10-A is contrary to the Education Service Rules.

Rule 3 of the Education Service Rules prescribes method of appointment to the post of Junior Lecturers by direct recruitment and through promotion from the feeder posts. Similarly, posts of Assistant/Associate Professor of degree colleges and Degree Lecturers can be filled up by way of direct recruitment or recruitment of transfer from Junior Lecturers in the related subject.

Bench of Justice Sujoy Paul and Justice Namavarapu Rajeshwar Rao observed,

"...action of official respondents in regularizing the contractual employees is bad in law. More-so, when their contractual appointments were against public policy. No public advertisement was issued inviting candidatures of eligible candidates. Instead, contractual employees were given contractual employment in an opaque manner and thereafter, by prescribing eligibility conditions mentioned under impugned Section 10-A, which were different and contrary to conditions of Education Service Rules, they were regularized. Hence, we are unable to hold that such exercise of power of regularizing is inconsonance with law."

The bench then cited Section 101 of the Andhra Pradesh Reorganisation Act, 2014 and observed that the State does not have the power to introduce an independent provision like Section 10-A, which runs contrary to an existing provision (of Education Service Rules), without amending, modifying or repealing it. It said,

“Since Section 10-A runs contrary to Section 101 of the Reorganisation Act and statutory Education Service Rules, it cannot sustain judicial scrutiny. Thus, we have no hesitation in holding that Section 10-A is ultra vires in nature and accordingly liable to be set aside.”

Court also referred to Rule 9(a) of the Telangana State Subordinate Service Rules, 1996 which permits the State to appoint the persons in administrative exigencies on contract basis. However, it clarified that Clause (b) of the said Rule makes it clear that such person appointed on contractual basis cannot become member of the service.

In the case at hand, some unemployed youth had approached the High Court against "back door" appointments to the posts of Junior Lecturers and Degree Lecturers on contractual basis by College Development Committee. It was their case that the posts could be filled only after issuing a public advertisement and if the same was done, they having the requisite qualifications will be eligible for consideration to the posts.

They were primarily aggrieved by use of Section 10-A to regularize the alleged illegal appointments made on contract basis.

The bench thus delved into the constitutionality of Section 10A and noted that though the provision begins with non-obstante clause, it cannot have an over-riding effect on any other enactment.

“A careful reading of this provision shows that it begins with a non-obstante clause and such overriding provision is only in relation to other provisions of the same Act i.e., Act of 1994. The non-obstante clause cannot have over-riding effect on any other enactment including the Education Service Rules. More-so when service rules are statutory in nature and introduced in exercise of power flowing from proviso to Article 309 of the Constitution.”

The respondents cited cases like R.S. Raghunath v. State of Karnataka which held that when the words 'notwithstanding anything…' are added to a provision, the interpretation must be done harmoniously and cannot be said to be void on the ground that it infringes any constitutional provision.

It also referred to RBI v. Peerless General Finance & Investment Co. Ltd. which held that the non-obstante clauses are placed to ensure that provisions are not in conflict with each other and such clauses must be interpreted in the manner that both the context and textual interpretation match. The step taken to regularise the contractual employees was based on directive principles of State policy enshrined in the Articles 38, 39(a), 41 and 43 of the Constitution.

The court discussed that the "notwithstanding" part of the provision is restricted by the scope of the legislation. “Even if the notwithstanding clause is very widely worded, its scope may be restricted by construction having regard to the intention of the Legislature gathered from the enacting clause or other related provisions in the Act. This may be particularly so when the notwithstanding clause 'does not refer to any particular provision which it intends to override but refers to the provisions of the statute generally”

The court also observed that from the language employed in Section 10-A and Section 101 of the Reorganisation Act is unable to persuade that Section 10-A will override repeal, amend or modify the pre-existing law. “it is clear like noon day that the Education Service Rules being statutory in nature were not repealed, modified or amended. Since statutory rules of pre-existence period were in force, Section 10-A of Act of 1994 cannot prevail over the statutory rules.”

Nonetheless, it refused to disturb the appointments after several years. In doing so, it cited Tridip Kumar Dingal v. State of West Bengal (2009), whereby the Supreme Court held that it would be inequitable if the appointments of the candidates working for more than 10 years were set aside.

However, it directed the State Government to henceforth fill up the posts in accordance with law and not by regularizing the contractual employees.

Case title: Praveen Kumar and Others vs. The State of Telangana, rep. by its Chief Secretary, General Administration Department, Hyderabad and Others

Case No: WRIT PETITION Nos.10744, 11643, 13223 and 14300 of 2023

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