*THE HON'BLE THE ACTING CHIEF JUSTICE AND THE HON'BLE SRI JUSTICE N.RAVI SHANKAR

+ W.A.Nos. 204, 205, 206, 235, 236, 237, 238 and 239 of 2012, W.P.Nos.8318, 11864, 12321, 13934 and 14310 of 2008, W.P.Nos.11660, 12489, 13129, 13065, 14519, 16485 and 22649 of 2009, W.P.No.13381 of 2010, W.P.Nos.13672, 21581, 27028, 28066, 28554, 29008, 29294, 29339 and 31896 of 2011

% 07—06—2012

The Government of A.P., rep. by its Secretary, Tribal Welfare Department, Secretariat Buildings, Hyderabad and others

…Appellants

… Respondents

vs.

$ G.Sanjeevi and others

!Counsel for the Appellants : Sri G.P. for Social Welfare

^Counsel for the Respondents : Sri G.Simhadri

<Gist :

Head Note :

? Cases referred 1. 2002 (2) ALT 77 (F.B.) 2. 2010 (11) SCC 733 3. 2011 (2) SCC 429

THE HON'BLE THE ACTING CHIEF JUSTICE AND

THE HON'BLE SRI JUSTICE N.RAVI SHANKAR

W.A.Nos. 204, 205, 206, 235, 236, 237, 238 and 239 of 2012, W.P.Nos.8318, 11864, 12321, 13934 and 14310 of 2008, W.P.Nos.11660, 12489, 13129, 13065, 14519, 16485 and 22649 of 2009, W.P.No.13381 of 2010, W.P.Nos.13672, 21581, 27028, 28066, 28554, 29008, 29294, 29339 and 31896 of 2011.

COMMON JUDGMENT: (Per the Hon'ble the Acting Chief Justice)

Since the issue involved in all these writ appeals and writ petitions is similar, they are being disposed of by this common order. The writ appeals are filed by the State, represented by its Secretary, Tribal Welfare Department, Hyderabad and its subordinate officers, against the common orders passed by the learned single Judge dated 12.9.2011 in W.V.M.P. No. 1937 of 2010 in W P No.8318 of 2008 and batch in refusing to vacate the earlier interim orders and making the same as absolute and directing to list the writ petitions for final hearing.

2. For the sake of convenience, the parties, are hereinafterwards referred to as they are arrayed in the writ petitions.

3. In the batch of writ petitions, most of them i.e., W.P. Nos. 8318, 13934 and 11864 of 2008, W.P.12489, 13065, 13129, 14519, 16485, 22649 of 2009, W.P.No. 13381 of 2010 and W.P.No.11660 of 2009 are filed questioning the action of the official respondents in creating artificial breaks in the service of petitioners for every 10 months and in not paying salaries for summer vacation and in not regularizing their services from the date of their initial appointments as Contract Residential Teachers (for short CRTs) as illegal and violative of their fundamental rights and for a consequential direction to regularize their services. In writ petition Nos. 13672, 21581, 27028, 28066, 29339, 29294, 31896 of 2011 apart from seeking regularization, the petitioners have sought for a direction to extend to them the benefits under G.O.Ms.No. 59 Social Welfare (RS-I) Department dated 10.8.2007 and

G.O.Ms.No.91 Social Welfare (TW.Ser.III) Department dated 21.5.2008. Further, W.P. No.29008 and 28554 of 2011 are filed questioning the action of the official respondents in initiating the process to fill up the posts of School Assistants in Ashram Schools vide notification dated 19.9.2011 without regularizing the services of the petitioners therein as illegal and for a consequential direction to exclude the posts in which they are working from the selection process. W.P.No.14310 of 2008 was filed questioning the proceedings in Memo Rc.No.B2/231/2006 dated 25.6.2008 issued by the Project Director, I.T.D.A., Paderu directing the Head Masters to engage the local Schedule Tribe Trained/Untrained CRTs, who worked during the academic year 2007-2008 for the academic year 2008-2009 as illegal and violative of Articles 14, 16 and 21 of the Constitution and to consequently hold that the petitioners are entitled for consideration for appointment in terms of guidelines issued by the Director of Tribal Welfare in proceedings RC No. 10717/02/D2 dt 30.11.2003 with all consequential benefits.

4. The learned single Judge, while admitting the writ petition No.8318 of 2008 by order dated 17.4.2008, granted interim direction, which reads as under:

"In case the petitioners are on the rolls of the respective schools as on today, they shall be continued in the same terms of engagement until further orders."

It is represented that similar orders were passed in other writ petitions also at the time of their admission.

5. To vacate the said interim directions, the Government/official respondents filed vacate petitions and the learned single Judge by order dated 12.9.2011 in W.V.M.P. No. 1937 of 2010 in W.P.No.8318 of 2008 and batch refused to vacate the earlier interim directions. Questioning the same, the Government filed writ appeals viz., W.A.Nos. 204, 205, 206, 235, 236, 237, 238 and 239 of 2012. The impugned order dated 12.09.2011 of the learned Single Judge reads as under:

"In this batch of writ petitions, the grievance of the writ petitioners is that they are not being continued in service as contract residential teachers and that salaries are not being paid to them. The background of the case is narrated in detail and reference is made to the proceedings that have ensued before the A.P. Administrative Tribunal, High Court and the Hon'ble Supreme Court. The controversy is as to whether 100% reservation can be effected in the matter of appointment of residential teachers in A.P. Tribal Welfare Residential Educational Institutions. On earlier occasion, a Division Bench of this Court quashed the G.Os. providing for such 100% reservation and Civil Appeals filed before the Supreme Court against the judgment were withdrawn. Similar exercise was undertaken and this time, a Division Bench with the majority of 2:1 had permitted such a course. It is represented that the matter is now pending before the Supreme Court and that it has been referred to a Larger Bench.

It is not in dispute that the petitioners were engaged at a time, when there was no prohibition and they cannot be discontinued abruptly. The question as to whether the petitioners are liable to be replaced by virtue of G.O.Ms.No.3, dated 10.01.2000 needs to be considered at the final hearing of the writ petitions, which, in turn, can be only after the Hon'ble Supreme Court pronounces upon the issue.

Hence, the interim orders are made absolute. The respondents shall however be entitled to fill the existing vacancies in accordance with G.O.Ms.No.3, dated 10.01.2000.

Post the writ petitions 'for final hearing' in February 2012."

6. In the writ appeals, on 2.3.2012, this Court made the following order:

"These writ appeals are filed against the common order dated 12.9.2011 passed by the learned single Judge of this Court, whereby the interim orders passed in the writ petitions earlier, to continue the writ petitioners therein in their respective schools which are situated in the schedule areas, are made absolute. However, the learned single Judge held that the official respondents i.e., the appellants herein are entitled to fill up the existing vacancies in accordance with G.O.Ms.No. 3 dated 10.1.2000.

Learned Government Pleader for Social Welfare submitted that if the writ petitioners are allowed to continue, there will not be many vacancies to be filled up

by the local scheduled tribe candidates who are qualified and entitled for their regular recruitment as teachers in accordance with the orders of the Government vide G.O.Ms.No. 3 Social Welfare Department, dated 10.1.2000. It is further submitted that the constitutional validity of the said G.O. has been upheld by a Full Bench of this Court in 2 : 1 which is a subject matter of S.L.P. before the Supreme Court and the Supreme Court has not granted any stay, but referred the matter to a larger Bench. Thus, it is stated that none of the writ petitioners have questioned the said G.O. in these batch of writ petitions.

Having regard to the facts and circumstances of the case, as both the parties agreed for hearing of the main writ petitions, in view of the fact that if the writ appeals are disposed of nothing survives in the writ petitions, we direct the Registry to post all these writ appeals along with W.P. Nos. 8318, 12321 and 13934 of 2008 and 11660, 13129, 14519, 16485, 22649 and 13065 of 2009 next week after obtaining necessary orders from the Hon'ble the Chief Justice. Till the disposal of the said W.As and W.Ps, the contempt proceedings are stayed."

7. That is how all these writ appeals and the connected batch of writ petitions have been listed before us for disposal.

8. Heard the respective learned counsel for the writ petitioners and the learned Government Pleader for Social Welfare for official respondents.

9. We must mention here now that His Excellency the Governor of Andhra Pradesh in exercise of his powers under sub-paragrah 1 of paragraph 5 of the V Schedule to the Constitution of India issued a notification prescribing that all posts of Teachers in schools situated in the scheduled areas of the State of Andhra Pradesh shall be filled up by local scheduled tribe candidates out of whom 33 1/3% shall be women. Certain laws and rules were also made applicable to them. This notification was published in part IV-B extraordinary issue of the Andhra Pradesh Gazette dated 10.01.2000 by the Government of Andhra Pradesh through G.O.Ms.No.3 Social Welfare (TW.EDN.II) Department dated 10.01.2000 and the said notification has been given retrospective effect from 05.11.1986.

We will refer to the details of this Governor's notification in the course of this judgment and hereafterwards, for convenience, the said notification will be referred to as G.O.Ms.No.3. The constitutional validity of this G.O.Ms.No.3 was upheld by a Full Bench of this court in PULUSAM

<span id="page-5-0"></span>KRISHNA MURTHY V. T.SUJAN KUMAR^[1]

$10.$ The controversy or point raised in all these writ petitions is whether petitioners who are working as CRTs in various schools in scheduled areas are entitled to the relief of regularization and other reliefs claimed by them even in the face of G.O.Ms.No.3. We will now proceed to mention the respective cases of the petitioners and official respondents.

$11.$ The case of the writ petitioners is this. The Government of Andhra Pradesh represented by its Secretary, Tribal Welfare Department, Hyderabad, has constituted a society known as "Integrated Tribal Development Agency" (for short ITDA)/third respondent in W.P.No.8318 of 2008, with an object to develop the socio-economic interests of the tribal people. From 2002 onwards, the ITDA has been issuing paper publication for appointment of CRTs in schools in scheduled areas and in pursuance of the same, the writ petitioners have applied for CRT posts in various subjects and have attended interviews conducted by the District Tribal Welfare Officer and the Project Director. They were selected and joined the duty as CRTs and are working as such regularly except for the artificial breaks in every summer vacation. It is stated that the posts held by the petitioners are regular posts and sanctioned by the Government and they are working for about 18 hours a day without availing any holidays and because of the prolonged timings of the residential schools, they hardly find any time to prosecute the further studies and to avail other job opportunities and that they have now become over-aged and have been working with the fond hope that their services would be regularized.

12. It is further stated that they were not issued with any appointment orders but their salaries are being paid every month through Andhra Bank to their respective individual accounts. They allege that giving artificial breaks and non payment of salary during the summer vacation, is illegal and unconstitutional and they cannot be replaced at this length of time as they have become over aged and are entitled for regularization of their services from the date of their appointment.

13. It is the version of the petitioners that the respondents have promised to pay a consolidated salary of Rs.8,000/- per month without any deductions but after deducting the salary towards the public holidays, they are actually being paid an amount of Rs.5,000/- per month only and in spite of the same, they are continuing and discharging their services on par with the regular employees, with the fond hope that their services would be regularised by the respondents. The grievance of the writ petitioners is that now the third respondent is trying to remove them from the service and to fill the said posts with the Scheduled Tribe candidates. It is stated that the respondents from 1985 onwards have regularized the services of nontribals, and the similarly situated persons whose services were not regularized have approached the A.P. Administrative Tribunal by filing R.P.No.6377 and 6379 of 1988 questioning G.O.Ms.No.275 Social Welfare Department dated 5.11.1986 and proceedings dated 22.10.1988 as illegal and the Tribunal by order dated 25.8.1989 allowed the R.Ps and quashed G.O.Ms.No. 275 dated 5.11.1986 and proceedings dated 22.10.1988. It is then stated that questioning the said orders, the Government filed an appeal before the Supreme Court in Special Leave to Appeal (Civil) No. 14562-63 of 1989 and subsequently withdrew the same and as such the orders of the Tribunal dated 25.8.1989 in R.P.No.6377 of 1988 have become final. It is further stated that as against the orders of third respondent herein terminating the services of non-schedule tribe candidates, W.P. Nos. 5276, 8467 and 7995 of 1993 were filed before this court and the same were

allowed by order dated 15.6.1996 and the said orders have become final. Thus, it is stated that the petitioners are similarly situated and they are also entitled to regularization on par with the candidates whose services have been regularized earlier.

14. The stand of the Government/official respondents is this. G.O.Ms.No.275 dated 5.11.1986 was earlier issued publishing the earlier notification of the Governor issued under para 5 (1) of the V Schedule to the Constitution reserving all the teachers posts in the schools in scheduled areas in favour of scheduled tribe candidates and the same was challenged before the Tribunal in R.P.Nos.6377 and 6379 of 1988 and the Tribunal quashed the said Government Order, and questioning the said order, appeals in C.A.No.2305-06 of 1991 were filed and the Hon'ble Supreme Court while granting leave, by order dated 24.1.1990, suspended the orders of the Tribunal and later the Government withdrew the appeals and the same were dismissed as withdrawn by order dated 20.3.1998. Earlier the Government issued orders in G.O.Ms.No.73 Social Welfare (E) Department dated 25.4.1988 by way of amendment to G.O.Ms.No.275 wherein it was clarified that non-tribals can be appointed temporarily till the qualified tribal candidates are available and some non-tribal candidates were appointed as teachers temporarily for 89 days and on completion of the said period, they were removed. It is stated that aggrieved candidates filed W.P.No.5276 of 1993 and batch and this Court allowed the said writ petitions holding that the action of the respondents is violative of Articles 14 and 16 of the Constitution of India. It is further stated that in Government's writ appeal No.874 of 1997 against the above order, a Division Bench of this Court allowed that appeal and set aside the order of the learned single Judge and held that G.O.Ms.No.73 dated 25.4.1988 does not suffer from any illegality. Aggrieved by the same, an appeal in Civil Appeal No.6437 of 1988 was filed and the Supreme Court allowed the said appeal by order dated 18.12.1988.

15. It is now the plea of Government that subsequently the Governor of Andhra Pradesh issued another notification under paragraph 5 (1) of V Schedule to the Constitution which was published through G.O.Ms.No.3 governing appointments for teachers posts in the schools situated in the scheduled areas of Andhra Pradesh. The said Notification reads that the Governor directed that the provisions of Sections 78 and 79 of the A.P. Education Act, 1982 (Act 1 of 1982) and Sections 169, 195 and 268 of A.P.Panchayat Raj Act, 1994 (Act No. 13 of 1994) and Rule 4 (a) of A.P.School Education Subordinate Service Rules, 1988 and Rules 22 and 22 (A) of the A.P.State and Subordinate Service Rules, 1986 shall apply to the posts of the teachers in schools situated in scheduled areas subject to modification that all the posts of teachers in the schools situated in the scheduled areas shall be filled up by the local scheduled tribe candidates only, out of whom 33 1/3% shall be women. Thus the women candidates should also be local scheduled tribe candidates. The said notification also defines "local scheduled tribe candidate" in the Explanation. That Explanation reads as follows.

"EXPLANATION: For the purpose of this notification, the 'Local Scheduled Tribe Candidate' means, the candidate belonging to the Scheduled Tribes notified as such under Article 342 of the Constitution of India and the candidates themselves or their parents have been continuously residing in the scheduled areas of Districts in which they are residents till to date since the 26 th January, 1950."

The contents of this G.O.Ms.No.3 which is dated 10.01.2000 are not in dispute. The Government is relying upon the above Notification for opposing the reliefs claimed in all these writ petitions. It is seen that though some of the writ petitions have been filed by tribals and some by non-tribals, all of them are aggrieved by the aforesaid G.O.Ms.No.3 which not only prescribes 100% reservation in favour of tribals, but also further says that such tribals should be local scheduled tribe candidates as defined in the Explanation in G.O.Ms.No.3 which is already mentioned.

16. It is further pleaded on behalf of the Government that the aforesaid G.O.Ms.No.3 was questioned in O.A.No.2138 of 2000 before the Tribunal and the Tribunal by orders dated 19.9.2000 quashed the same and as against the said orders one Mr.P.Krishna Murthi and others filed W.P.Nos.19392, 20239 and 22823 of 2000 and ultimately the matter was referred to a Full Bench of this Court and the Full Bench by majority of 2 : 1 allowed the writ petitions by order dated 3.11.2001 and set aside the orders of the Tribunal upholding the constitutional validity of G.O.Ms.No.3 with regard to 100% reservation of posts of teachers in schools situated in scheduled areas in favour of local scheduled tribe candidates as defined in the G.O.Ms.No.3. This Full Bench decision is the one given in Pulusam Krishna Murthy's case (1 supra). It is thus contended that the writ petitioners herein who are non-tribals and who were temporarily appointed are not entitled either for continuation or for regularization of their services in view of G.O.Ms.No.3 which was upheld by this Court.

17. It is also pleaded on behalf of the Government that the public employment being repository of power always gives status and power besides means of livelihood and by entrenching such a right in Article 16, the Constitution of India has taken special care to guarantee equality of opportunity in the matter of public employment and that the right to public employment is also a new form of property and constitutes national wealth in which all citizens have equal shares. It is also stated that the right to social development is a human right and no citizen or group of citizens can be denied the right to development. The stand of the Government is that keeping in view all the inherent inequalities in the society as well as geographical imbalances and the plight of tribals, the Government have taken special care and steps to provide for upliftment of the tribals and therefore they are being enriched by providing employment in scheduled areas through G.O.Ms.No.3. It is stated that the petitioners have no right

much less a Fundamental right seeking for continuation or regularization, as their appointment is only for a period of 89 days and the contention that the officials have unconstitutionally and illegally created artificial breaks without regularizing their services is untenable as they have no right inasmuch as their appointment is purely temporary and on contractual basis only till the qualified tribal candidates become available. It is stated that qualified scheduled tribe candidates are available and in fact some of them have got impleaded seeking appointment in various posts of teachers in various schools situated in scheduled areas. It is in the above background the controversy and claims of petitioners have to be decided.

18. None of the petitioners have questioned the constitutional validity of G.O.Ms.No.3 in as much as it was already upheld by the Full Bench of this Court in Pulusam Krishna Murthy's case (1 supra) and the petitioners are aware of the same. Some of the aggrieved persons filed an appeal before the Supreme Court in Civil Appeal No.3609 of 2002 and other appeals challenging the above Full Bench Judgment of this court. It is the case of both sides that the Supreme Court did not grant any stay of operation of the Full Bench judgment of this court, but referred the appeals to a Larger Bench for hearing on the questions formulated therein and this is also mentioned in the impugned order of the learned Single Judge which is the subject matter of the writ appeals. The contention of the official respondents is that the petitioners are well aware about the Full Bench judgment of this court upholding the constitutional validity of G.O.Ms.No.3 and consequently it is not open for them to seek regularization or for their continuation without there being any vested right or any fundamental right in their favour in view of G.O.Ms.No.3. It is also stated that all the petitioners have been appointed as CRTs after issuance of G.O.Ms.No.3 and therefore it cannot be said that they are entitled to be considered on par with the non-tribal candidates who have been appointed much earlier in the scheduled areas. It is stated that even those candidates whose services have been

regularized are sought to be shifted to non-scheduled areas. It is also stated by the official respondents that to implement G.O.Ms.No.3, a notification/notifications has been issued calling for applications from the eligible scheduled tribe candidates for filling up various teacher posts in the schools situated in scheduled areas. The plea of the official respondents is that when sufficient number of scheduled tribe candidates are available, the petitioners cannot be re-appointed on contract basis and the petitioners cannot have any grievance for implementation of G.O.Ms.No.3.

19. Sri G.Simhadri, learned counsel appearing for the writ petitioners submits that even after upholding the constitutional validity of G.O.Ms.No.3 by the Full Bench of this Court, the services of the CRTs in A.P. Social Welfare Residential Educational Institutions Society (for short APSWREIS) and A.P. Tribal Welfare Residential Educational Society (APWRES) were regularized by the Government in G.O.Ms.No.59 dated 10.8.2007 and G.O.Ms.No.91 dated 21.5.2008 and therefore the petitioners made representations through their associations to consider their cases for regularization in Tribal Welfare Ashram Schools. Accordingly, the Chief Minister conducted a meeting on 10.9.2008 for fixing the cadre strength of ITDAs/TW Ashram Schools/Hostels/TW Engineering Department and the following decisions were taken:

• i) The cadre strength of all the ITDAs should be fixed on the basis of the work load,
• ii) After fixing the cadre strength, all the employees of ITDAs belonging to Scheduled Tribe community working in ITDA areas are to be regularized as per their eligibility,
• iii) As for employees other than ST employees, action to be taken as was done in respect of personnel working in IKP in Rural Development Department as per their HR policy,
• iv) Similar exercise to be carried out in respect of persons working in TW Ashram schools/Hostels/ TW Engineering Department
• v) In those posts which have been reserved for local STs in ITDA areas but non ST members have been working in those posts, on retirement of such members, the posts in future shall

be reserved only for local STs as per the existing rules and an order to this effect shall be issued.

20. It is further stated on behalf of the petitioners that another meeting was conducted on 13.9.2010 in the chambers of the Minister for Tribal Welfare, Secretariat, Hyderabad, wherein certain decisions have been taken to consider the cases of the CRTs working in T.W. Ashram Schools for regularization, to grant casual leaves, to enhance the remuneration etc. and proposals to that effect were sent. Accordingly the Government issued Memo No.466/TW.Ser.III/A1/2008 dated 14.9.2010 requesting the District Tribal Welfare Officers to submit report. It is further stated that if the petitioners are discontinued from the service, the Government may not consider their request for regualrisation of services on par with the similarly situated teachers whose cases were considered by the aforesaid Government orders. It is also stated that the Commissioner, Tribal Welfare sent proposals on 15.6.2011 to the Government for according permission for regularization of 605 CRTs engaged in the Tribal Welfare Department working in Ashram Schools in the existing vacancies of Secondary Grade Teachers and the issue is pending with the Government and therefore it is stated that if their services are discontinued after lapse of 8 or 9 years, they will suffer serious and irreparable loss. It is submitted that the Government may take a decision for regularization of their services in terms of the guidelines contained in G.O.Ms.No. 59 dated 10.8.2007 and G.O.Ms.No.91 dated 21.8.2008 and even before the Government takes a decision, if the cases are disposed of, their interests would be affected adversely. It must be mentioned here that none of the above submissions made on behalf of the petitioners can be said to be based upon any legal right in view of G.O.Ms.No.3.

21. Sub paragraph 1 of paragraph 5 of the V Schedule to the Constitution, under which the Governor's notification was published through G.O.Ms.No.3, reads as under:

"Notwithstanding anything in this Constitution, the

Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub paragraph may be given as to have retrospective effect."

22. From the aforesaid para, it is clear that in exercise of the power under paragraph 5 (1) of V Schedule to the Constitution, the Governor may (i) direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled area; and (ii) may direct that any law of Parliament or Legislature of the State shall apply to a Scheduled area with such exceptions and modifications as the Governor may specify in the notification. Be it also noted that any notification under Paragraph 5 (1) can as well be with retrospective effect. By reason of the words or non obstante clause "Notwithstanding anything in this Constitution", contained in Paragraph 5 (1) the said provision is given overriding effect over all the provisions of the Constitution including arguably, the provisions in part III i.e. Fundamental rights.

23. After considering the various judgments of this court and the Supreme Court, the Full Bench of this court in Pulusam Krishna Murthy's case (1 supra) upheld the competency of the Governor in issuing the notification in G.O.Ms.No.3 under para 5 (1) of the V Schedule which in effect prohibits non-tribals and non-local scheduled tribe candidates also from being appointed as teachers in the schools in the scheduled areas. In upholding the constitutional validity of G.O.Ms.No.3 which provides for 100% reservation in favour of local scheduled tribe candidates, the Full Bench concluded (i) the classification of the schools in scheduled areas is one that falls under Article 16(1) of the Constitution and the same cannot be considered to be a reservation for the purpose of Article 16(4), (ii) the classification of the schools in scheduled areas for the purpose of

reservation of all teachers posts in them in favour of local scheduled tribe candidates has intelligible differentia and the said classification is intended to achieve the object of educational development of the tribals and solve the phenomenal absenteeism of teachers in such schools, (iii) the classification based on geography and social and economic imbalances of scheduled tribe people is permissible under Article 14 of the Constitution, (iv) the classification does not in any way offend Articles 14 and 16(1) of the Constitution and (v) the power of Governor under para 5(1) of V Schedule includes the power to extend even delegated legislation to scheduled areas.

24. The Full Bench also considered the effect of earlier litigation which resulted in invalidation of the earlier notification of the Governor issued under para 5(1) of the V Schedule and published in G.O.Ms.No.275, and also G.O.Ms.No.73 dated 25.4.1988 in paras 97 to 101 of the majority view. It observed that the Tribunal has earlier in R.P.Nos.6377 and 6379 of 1988 set aside G.O.Ms.Nos.275 on the only ground that the notification in the said G.O.Ms.No.275 did not disclose the existence of any law which enabled the Governor to exercise the power under para 5(1) of the V Schedule and that the Tribunal did not consider the constitutional validity of G.O.Ms.No.275 on merits. It may also be noted that the Government's appeals i.e. Civil Appeal Nos.2305-06 of 1991 against the above judgment of the Tribunal were dismissed on 20.3.1998 as Government withdrew the same.

25. With regard to G.O.Ms.No.73 dated 25.4.1988, the same was issued by the Government for appointing non-tribals as teachers temporarily as no qualified scheduled tribe candidates were available and the above G.O.Ms.No.73 was issued by way of an amendment to G.O.Ms.No.275. It may be noted that, W.P.No.5276 of 1993 and batch were filed by aggrieved persons questioning the aforesaid G.O.Ms.No.73 when the appeals of the Government against the Tribunal order setting aside G.O.Ms.No.275 were

pending in the Supreme Court. W.P.Nos.5276 of 1993 and batch were initially allowed by a learned Single Judge of this court, but the Government succeeded in its writ appeal i.e. W.A.No.874 of 1987, wherein a Division Bench of this court upheld G.O.Ms.No.73. The matter was again carried to Supreme Court by the aggrieved persons by way of Civil Appeal No.6437 of 1998. The Supreme Court allowed the said appeal on 18.12.1998 on the ground that since the Government appeals against the Tribunal order setting aside G.O.Ms.No.275 were dismissed as withdrawn allowing the Tribunal order to stand, G.O.Ms.No.73 cannot also be allowed to stand as it was only by way of amendment to G.O.Ms.No.275. All these aspects are dealt with by the Full Bench in paras 97 to 100 of the majority view. Reference about the above previous litigation pertaining to G.O.Ms.No.275 and G.O.Ms.No.73 is also briefly made in the preamble paragraphs of G.O.Ms.No.3, and G.O.Ms.No.275 is also given reference at the top in G.O.Ms.No.3.

26. The Full Bench then summed up its conclusion regarding earlier litigation in para 101 of the judgment as under:

"A reading of G.O.Ms.No.275 dated 5.11.1986 and G.O.Ms.No.75 (should be read as G.O.Ms.No.73) dated 25.4.1988 and various judgments and orders of the Tribunal, this Court as well as the Supreme Court would show that the issue before the Courts in earlier litigation is altogether different. As can be seen from the judgment of the Tribunal in R.P.Nos.6377 and 6379 of 1988 dated 25.8.1989, the notification in G.O.Ms.No. 275, was quashed only on the ground that the Government of Andhra Pradesh failed to show any law existing enabling the Governor to exercise power under Para 5 (1) of V Schedule. The question whether the Governor can reserve all the posts of teachers in all the schools in Scheduled areas in favour of local Scheduled Tribe candidates was neither raised nor considered. As noticed, by virtue of the notification impugned in these writ petitions the Governor has applied the relevant provisions of A.P. Education Act, A.P. Panchayat Raj Act as well as the General Rules and Special Rules to all the schools in Scheduled areas with certain modifications. The exercise

of power by the Governor under para 5 (1) of the V Schedule is well in accordance with the said provisions. In view of this, we are convinced that the respondents/applicants cannot draw any support from the judgment of the Tribunal in the earlier litigation."

27. What should be noted is that, according to the Full Bench, the constitutional validity of G.O.Ms.No.275 was not an issue before the Tribunal and also in the further appeals and therefore as that issue was specifically raised with regard to G.O.Ms.No.3 before the Full Bench, it proceeded to adjudicate the same and upheld it. Accordingly, the Full Bench, held that the judgment and order of the Tribunal setting aside G.O.Ms.No.3 suffers from grave error apparent on the face of the record and set aside the same and allowed the writ petitions upholding the constitutional validity of G.O.Ms.No.3. Thus the earlier litigation which ended in invalidation of G.O.Ms.No.275 and G.O.Ms.No.73 cannot help the petitioners and they cannot claim any rights of regularization in view of G.O.Ms.No.3 which is upheld now.

28. It is the admitted case of both sides that though appeals are pending in the Hon'ble Supreme Court against the above Full Bench Judgment, the operation of the same is not stayed nor is it suspended by the Supreme Court pending disposal of the said appeals. Thus the Full Bench judgment must be held to be in force and consequently G.O.Ms.No.3 must also be held to be in force. Therefore in the face of the said Full Bench Judgment, the petitioners cannot be granted any relief on the ground that the appeals against it are pending in the Supreme Court as mere pendency of appeal does not operate as a stay of or the suspension of the judgment.

29. Insofar as the contention of the learned counsel for the writ petitioners with regard to the consideration of their cases for regularization is concerned, it is to be seen that the Supreme Court in case of RAMESHWAR DAYAL Vs. INDIAN RAILWAY CONSTRUCTION COMPANY LIMITED

<span id="page-17-0"></span>AND OTHERS^[2], while upholding the Division Bench judgment of the Delhi High Court held that the Courts cannot issue directions for regularization as it is an executive function and it depends on the relevant rules and can only be directed by the authorities concerned and not the Court.

29. Similar questions as raised in this batch of cases, were considered by the Hon'ble Supreme Court in case of STATE OF RAJASTHAN AND

OTHERS Vs. DAYALAL AND OTHERS^[3], the relevant portion reads as under:

<span id="page-17-1"></span>11. Two questions therefore arise for consideration in these appeals:

(i) Whether persons appointed as Superintendents in aided non-governmental Hostels are entitled to claim absorption by way of regularization in government service or salary on par with Superintendents in Government Hostels?

(ii) Whether part-time cooks and chowkidars appointed temporarily by Mess Committees of Government Hostels, with two or three years service, are entitled to regularization by framing a special scheme?

12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:

(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.

(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some

interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be 'litigious employment'. Even temporary, ad hoc or dailywage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.

(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.

(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.

(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.

(See : Secretary, State of Karnataka vs. Uma Devi - 2006 (4) SCC 1, M. Raja vs. CEERI Educational Society, Pilani - 2006 (12) SCC 636, S.C. Chandra vs. State of Jharkhand - 2007 (8) SCC 279, Kurukshetra Central Co-operative Bank Ltd vs. Mehar Chand - 2007 (15) SCC 680, and Official Liquidator vs. Dayanand - 2008 (10 SCC 1)."

30. In the instant case also, all the writ petitioners are appointed on temporary basis for specified periods and their appointment is not pursuant to any notification or any statutory rules and it was made only as a 'stop gap arrangement' till the qualified scheduled tribe candidates are available to be appointed in schools situated in the scheduled areas.

31. Then turning to the petitioners' contention for regularization based upon some internal communications or correspondence, it may be noted that after issuance of G.O.Ms.No.3, a report was sent by the Director of Tribal Welfare through his letter dated 18.1.2003 to the Government about the vacant posts in various subjects viz., English, Mathematics, Science, Social Studies, Telugu etc, which could not be filled up due to lack of qualified tribal candidates and that due to the said vacancies, the performance of the institutions is being affected and accordingly he requested the Government to permit the Project Officers of ITDA to appoint the contract residential teachers as was done in Gurukulams against the vacant posts till qualified scheduled tribe candidates are available. Pursuant to the said letter of the Director, the Government issued memo dated 20.10.2003 accepting the proposal of the Commissioner, Tribal Welfare to engage the Contract Teachers for the time being till the qualified scheduled tribe candidates are made available. Accordingly, the Director of Tribal Welfare, A.P., Hyderabad issued orders in RC.No.10717/02/D2 dated 30.11.2003 permitting the Project Officers, ITDA to engage the teachers on contract basis against the sanctioned posts which have fallen vacant due to nonavailability of qualified scheduled tribe candidates on certain terms and conditions. This was also done as a 'stop gap arrangement' till qualified scheduled tribe candidates are available. As per the said orders, the contract tenure is one academic year and the service of CRT is purely temporary and they cannot claim any eligibility for continuing or for any right whatsoever against such posts. The period of contract automatically terminates on the last working day of the academic year. The selected candidates shall invariably have to execute an agreement in the format prescribed in Annexure II, etc. Further instructions were issued stating that if the performance of the CRTs is found satisfactory, their contract will be renewed for the next year and if their performance is not found satisfactory, the contract will be terminated without notice, even in the middle of the

academic year.

32. Then coming to Government memo No.466/TW.Ser.III/ A1/2008 Social Welfare (TW) Department dated 14.9.2010 issued to the Commissioner of Tribal Welfare and the proposals for regularization sent by the letter through his Rc.No.D2/1922/2011 dated 15.6.2011 which were relied upon by Sri Simhadri, we are of the opinion that the said communications also cannot help the petitioners to claim regularization by way of right. It is true that the Commissioner, Tribal Welfare in her letter dated 15.6.2011 sent proposals for regularization to cover certain types of candidates. The said letter also categorically in para 2 thereof clearly says that "as regard non-STs, in view of G.O.Ms.No.3, Social Welfare (TW.Edn.II) Department, dated 10.01.2000, it will be limited only to the vacancies outside the Scheduled area irrespective of the other eligibility conditions". The above letter of the Commissioner would show that the authorities were aware of limitations laid down by G.O.Ms.No.3 and that they could not do anything outside it in scheduled areas and any regularizations of non-tribals could be done only in non-scheduled areas. Thus the above correspondence cannot help the petitioners who are working as CRTs in scheduled areas and are not eligible as per the notification in G.O.Ms.No.3 and this court cannot go to their rescue in view of the said G.O.Ms.No.3. All the above communications and correspondence therefore cannot give any right to the petitioners to claim any relief in the face of the notification in G.O.Ms.No.3 and cannot be made the basis for granting relief to the petitioners.

33. It is true that the Government issued orders in G.O.Ms. No.59 dated 10.8.2007 permitting the Board of Governors of the APSWREIS to take necessary action to regularize the services of 1243 contract teachers working from various dates from the year 1996 onwards upto 2002-03, and G.O.Ms.No.91 dated 21.5.2008 permitting regularization of the service of 401 CRTs working in various institutions under Gurukulam, but the said

Government Orders do not relate to the CRTs working in the scheduled areas. This is also made clear in the circular issued in RC.No.D2/4957/2009 dated 15.12.2009 of the Commissioner, Tribal Welfare and hence the above G.Os. also cannot help the petitioners.

34. The Government runs schools both in tribal and non-tribal areas through its Social Welfare Department and Tribal Welfare Department i.e., APSWREIS and ITDA and merely because the services of some of the CRTs were regularized by APSWREIS, that does not mean that petitioners have acquired any right to continue or for regularization of their services in the posts in the schools situated in tribal areas, which are to be exclusively filled up by the qualified scheduled tribe candidates in terms of the notification in G.O.Ms.No.3. The learned Government Pleader submits that the services of none of the CRTs working in the schools situated in the tribal areas were regularized after issuance of the notification in G.O.Ms.No.3, and even in respect of those posts in which regularizations were made prior to G.O.Ms.No.3, remedial steps are being taken and those teachers are sought to be shifted to non-tribal areas.

35. Now the notifications have been issued inviting applications to fill up various posts of School Assistants and others in various subjects Viz., Mathematics, Physics, Social Studies, English, Hindi, Telugu etc. from the scheduled tribe candidates and now a number of qualified local scheduled tribe candidates are available and in the absence of any constitutional or statutory right, the petitioners are not entitled to prevent or stall the recruitment of scheduled tribe candidates in the schools situated in the scheduled areas pursuant to the subject notifications which are in conformity with G.O.Ms.No.3 and other orders and instructions which are in accordance with the said G.O.Ms.No.3. Having regard to the Governor's notification in G.O.Ms.No.3 which is in force, the above submissions of the Government have to be upheld and the contentions of the petitioners have to

be rejected as untenable.

36. The methodologies of recruitment process for regular appointments and for contract residential teachers are entirely different. Merely because the petitioners are working as contract residential teachers for the last 6 to 8 years temporarily on contract basis, no right accrues in their favour for regularization of their services as all the posts in the schools situated in scheduled areas are to be filled up by the qualified scheduled tribe candidates in accordance with G.O.Ms.No.3 which is in force. The recruitment shall be in accordance with the public policy and inviting applications, but insofar as the scheduled areas are concerned, the Governor's notification in G.O.Ms.No.3 governs the appointments, and petitioners are not given any right. The main point in the controversy is accordingly decided against the petitioners and therefore they cannot be granted any other reliefs also.

37. For the foregoing reasons, we are of the opinion that there are no merits in the writ petitions. Accordingly, the writ appeals are allowed and the writ petitions are dismissed. Sequel to the same, the miscellaneous petitions filed along with writ appeals are disposed of and the miscellaneous petitions filed along with the writ petitions stand dismissed. No costs.

38. Parting with the matters, if the Government want to go to the rescue of the petitioners having regard to their length of service and usefulness for the schools not covered by the notification in G.O.Ms.No.3 and want to adjust them in such schools or in other areas of employment, it is open for the Government to do so, but in accordance with the service law and rules governing them.

____________________ V.ESWARAIAH, ACJ

N.RAVI SHANKAR,J

____________________

DATE: 07-06-2012 TVK/TJMR L.R. copy to be marked B/o. TNB

THE HON'BLE THE ACTING CHIEF JUSTICE AND THE HON'BLE SRI JUSTICE N.RAVI SHANKAR

W.A.Nos. 204, 205, 206, 235, 236, 237, 238 and 239 of 2012,

W.P.Nos.8318, 11864, 12321, 13934 and 14310 of 2008, W.P.Nos.11660, 12489, 13129, 13065, 14519, 16485 and 22649 of 2009, W.P.No.13381 of 2010, W.P.Nos.13672, 21581, 27028, 28066, 28554, 29008, 29294, 29339 and 31896 of 2011.

(Per the Hon'ble the Acting Chief Justice)

Dated: 07-06-2012

TVK/TJMR

<span id="page-24-2"></span><span id="page-24-1"></span><span id="page-24-0"></span>[1] 2002 (2) ALT 77 (F.B.) [2] 2010 (11) SCC 733 [3] 2011 (2) SCC 429