'Backdoor Entry And Against Public Policy': Telangana High Court Cancels Reappointment Of 1,200 Multipurpose Health Assistants

The Telangana High Court has set aside the appointment of almost 1,200 Multi Purpose Health Assistant who were reappointment to the post by way of a Government Order, in contradiction of the High Court order, which was later upheld by the Supreme Court.

"If G.O.Rt.No.1207, dated 09.10.2013, is examined in juxtaposition to the direction contained in para (d) of para 60 of the common order passed by this Court in W.P.No.15107 of 2002 and batch, it will be crystal clear that the direction was clear and candid that appointment order needs to be issued only for those candidates whose names figure in the merit list. Remaining candidates were required to be terminated. The Government in obedience of the said order initially terminated their services by G.O.Rt.No.273, dated 16.02.2012, but re-employed them by issuing G.O.Rt.No.1207. Thus, the State has undertaken an exercise of taking them back indirectly and continued them in employment by issuing G.O.Rt.No.1207 which exercise of continuance was not possible to be undertaken directly as per this Court's order in W.P.No.15107 of 2002 and batch," held division Bench of Justice Sujoy Paul and Justice Namavarapu Rajeshwar Rao.

The batch of cases originated from a challenge made to a 2022 Notification issued by the combined State of Andhra Pradesh, that stipulated the qualification required for being eligible for the selection process to the post of MPHA.

The petitioners/applicants contended that an intermediate degree should suffice as pre-eligibility qualifications. However, the Tribunal, High Court and Supreme Court upheld the eligibility criteria stipulated in the Notification; i.e. SSC + Diploma in the concerned field.

During the pendency of the Civil Appeals, the State Government filed an application seeking to appoint MPHA due to exigency in administration. This application was allowed by the Apex Court in 2006 and individual who did not meet the eligibility criteria were appointed to the post of MPHA.

However, when the case was decided finally in 2011, the Supreme Court upheld the decision rendered by the High Court and directed to remove all employees that did not meet the cut off and prepare the merit list afresh.

Considering these orders, GOMs No. 273 was issued in 2012 to terminate less meritorious candidates and redraw the selected list.

However, following this, the State concluded that employees who had been engaged for a long time (roughly more than 9 years) should be permitted to continue as MPHA on a contractual basis even though they did not have the requisite qualifications. Thus, paving the way for the reappointment of 1200 employees vide GO 1207.

This GO came to be challenged before the Tribunal, which dismissed the application, giving rise to the present petitions. During the pendency of hearing in 2015, the Court permitted the now bifurcated States to appoint all candidates more meritorious than the candidate covered under GO 1207.

Senior Counsel M. Surender Rao representing the candidates more meritorious than those taken back under GOMs No. 1207 contended that they should be given preference over candidates who do not fulfill the eligibility criteria.

Senior counsel Vidyasagar representing the beneficiaries of GOMS 1207 urged that the taking back of employees was not related to the original notification issued in 2002. That the State had taken a well-founded policy decision, and the same had already been implemented in the State.

After hearing all the parties, the Bench found two glaring flaws in the Order passed by the Tribunal. Firstly, the Tribunal had held that the appointments made by way of GOMS 1207 were not related to the original notification issued in 2002, but for subsequently created posts. Secondly, the Tribunal held that the names of the petitioners did not find place in the new merit list prepared after passing of GOMs No. 1207 and thus they were not eligible for appointment.

The plain reading of the GO, the Bench noted, would reveal that the candidates were 'taken back' and not appointed for newly created posts; and that no notification was issued post 2002. Thus, it could be safely concluded that the first reasoning of the Tribunal was flawed.

Additionally, the Bench noted, that although a legislature is competent to pass an amendment/validation, with retrospective effect to remove the basis of challenge before the Court, but same cannot be done with the ulterior motive of circumventing the order of the Court.

"By taking an administrative decision and issuing G.O.Rt.No.1207, dated 09.10.2013, the specific direction of this Court in clause (d) of Para 60 in W.P.No.15107 of 2002 and batch was indirectly altered and tinkered with. The order of this Court was for terminating the services of such candidates, but despite terminating them, they were taken back from the back door through G.O.Rt.No.1207. G.O.Rt.No.1207 is not an outcome of any validation act whereby exercising the legislative power, the defects which became reason of dezcision in W.P.No.15107 of 2002 and batch were cured with retrospective effect. In absence thereof, administrative decision and issuance of G.O.Rt.No.1207 against the spirit of Court order cannot be countenanced," it said.

The Bench concluded that the GO under challenge could not go against the essence of the order rendered by the Supreme Court and directed the immediate termination of employees appointed under GOMs 1207.

The Court lastly directed that if petitioners are more meritorious than selected Candidates, they will have a preferential claim of appointment and will be entitled to notional benefits from the date of appointment.

"We are constrained to observe that by no stretch of imagination, re-engagement of terminated employees can be said to be a 'necessary evil'. If we assuage our judicial conscience and treat such action as 'necessary evil', it will look more and more necessary and less and less evil."

Case no.: WP 38060 of 2013 and batch along with WA 774 of 2022 and batch

Case title: G. Nagaraju vs State of AP

Counsel for petitioners: Sr. M. Surender Rao for VV Prabhakar Rao. Sr. T Suryakarqn Reddy for K. Sita Ram.

State of TS: Special Government Pleader, S. Rahul Reddy

State of AP: B Rajeshwari Reddy, GP

Unofficial Respondents: G. Vidyasagar, Sr.

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