Dismissed

Andhra Pradesh Social Welfare Residential Education Institutions Society, v. the State of Ap

Andhra Pradesh HC17 Oct 2023WA/276/2020

Case brief

AI extract

What is this about?

Writ Appeal dismissed. The High Court held that eligibility conditions in a recruitment notification are not ambiguous in requiring regular posts and that judicial review cannot expand qualification scopes. The petitioner's adhoc teaching experience was sufficient to meet the notification's criteria as it did not explicitly demand a regular post.

What the court decided

AI extract

Andhra Pradesh Social Welfare… — Pension and Retirement Benefits | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVAT;1-fi

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TUESDAY, THE SEVENTEENTH DAY OF OCTOBERS ;; ' 4•~ TWO THOUSAND AND TWENTY THREE PRESENT I THE HON BLE SRI JUSTICE U.DURGA PRASAD AND

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THE HON'BLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA

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WRIT APPEAL NO: 276 OF 2020

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Writ Appeal under Clause 15 of the Letters Patent preferred the order W.P. No.1460 of 2020, Dt.29-01-2020 of the Hon'ble Judge of this Hon'ble Court and and pass on the file of the High Court.

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Between:

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Andhra Pradesh Social Welfare Residential Education Institutions Society, Rep. by its Secretary, H.No. 12-467-9, 1st Floor, Moksha Sal Plaza, Beside High Way Towers, Bypass Road, Tadepalli-522501, Guntur District.

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...Appellant

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AND

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The State of A.P., rep. by its Principal Secretary, Social Welfare Department, A.P.Secretariat Amaravathi, Velagapudi, Guntur District, Andhra Pradesh.

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Bhavani Rajasekhar, S/o Late B. Naga Subbaiah, aged 48 years, Occ: Working as Trained Graduate Teacher, (Phy.Sci), A.P. Balayogi Gurukulam, Sagileru Village, Pulliveedu Post, B. Koduru Mandal, Y. S. R. Kadapa District.

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...Respondents

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IA NO: 1 OF 2020

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to Suspend the Operation of the Order in WP.No.1460/2020 dated 29-01-2020 pending the Writ Appeal.

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Counsel for the Appellant: M/s ANITHA MESA (SC FOR APREIS TW SW BC)

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Counsel for the Respondents: ADVOCATE GENERAL

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GP FOR SOCIAL WELFARE

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Counsel for the Respondents: SRI C.PRAKASH REDDY

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The Court made the following: order

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HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

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AND

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HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

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Writ Appeal No.276 of 2020

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JUDGMENT: (Per Hon'ble Sri Justice U. Durga Prasad Rao)

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The State prefers this intra Court appeal Under Clause 15 of letters patent against the order dated 29.01.2020 in W.P No.1460/2020 passed by learned single Judge allowing the writ petition holding that the writ petitioner is entitled to be considered for the post of Principal Grade-II and directing the respondents to immediately consider the case of the petitioner for appointment as prayed for.

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The writ petitioner's case is that he was appointed as Residential Teacher in Physical Sciences (RIPS) on 14.06.2000 on contract basis and subsequently his services were regularized as Trained Graduate Teacher (TGT) w.e.f 01.10.2007 and his probation was declared on 30.09.2009. Though he was appointed as TGT, the respondents utilized his services as Junior Lecturer (JL) in Physics in A.P. Balayogi Gurukulams in Zone-1V from 01.01.2007 to 25.07.2009, and in BRAC Social Welfare Residential Junior College, Chinnatekur, Kurnool District from 26.07.2009 to 07.05.2010 and in A.P. Social Welfare Residential School / Junior College (Boys), Kanekal, Anantapur District from 08.05.2010 to

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22.06.20 16 and has been working in Balayogi Gurukulam, Sagileru, Kadapa District from 23.06.2016 till date of filing petition.

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(a) His further case is that pursuant to the notification No.1/2019, dated 14.02.2019 issued by the^2d respondent for appointment to the posts of District Coordinator(DCO)/Principal Grade-II/Trained Graduate Teacher(TGT)/Care Taker through direct recruitment in the institutions run by AP Social Welfare Residential Educational Institutions Society (APS WREIS), the writ petitioner having qualifications for the post of Principal, Grade-II, applied for the said post and appeared for the written examination and secured 50 marks with ID No.190023585 and was expecting to be selected as Principal, Grade-II. However, he was not considered for the said post and so he submitted representation dated 04.12.2019 to the respondent to which he received communication from the 2"d respondent informing that the petitioner has not fulfilled eligibility condition mentioned in the General Notification No.1/2019. The petitioner came to know that in the selected Principals' list uploaded on the official website of the 2"d respondent, the petitioner's name was shown at Serial No.120, against which, in the remarks columns, it was stated "not having required experience". The said mentioning is incorrect and the petitioner was unjustly eliminated by the 2°`i respondent.

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Hence, the writ petition.

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The respondents opposed the writ petition.

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As can be seen from the impugned order- in W.P.No.1460 of 2020, the respondents raised the contention that the experience of the petitioner cannot be considered for the post of Principal, Grade-II since he has not been promoted to the regular post of Junior Lecturer and he did not officiate as such. However, learned single Judge discarded the said contention on the observation that it was clear from the notification that only experience "as Junior Lecturer" was required but not working in the said post by virtue of a promotion and ultimately disposed of the writ petition with the direction to the 2"`r respondent to consider the candidature of the petitioner for the post of Principal, Grade-II, if there was any vacancy and if not in future vacancies.

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Hence, the appeal.

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Heard arguments of learned Advocate General (AG) for appellant and Sri C. Prakash Reddy, learned counsel for respondent/writ petitioner.

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While fulminating the order in W.P.No.1460 of 2020, learned AG vehemently argued that learned single Judge wholly misconceived the eligibility criteria fixed in the notification and erroneously held as if the candidate does not require to gain the stipulated experience from a regular post, for, the notification is silent on the condition that a candidate

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should hold regular post. Referring to the eligibility conditions for the post of Principal, Grade-II, he pointed out that the condition specifies that a candidate must have a total teaching experience of not less than 10 years which shall include 3 years of experience as PGT or JL in any Government / Government Aided School / Junior College. Emphasizing the condition of total teaching experience of not less than 10 years, learned AG would submit that a candidate who has completed 10 years of teaching service would obviously be in a regular post and in that context, he must have 3 years of experience out of 10 years as a regular PGT or JL in any Government / Government Aided School / Junior College. Learned AG would strenuously argue that holding a regular post of PGT or JL is intrinsic and implied when the eligibility conditions are holistically viewed. However, he would emphasize, the writ petitioner was only a TGT and he was not officiating^{either a regular PGT post or a} regular JL post during relevant period. His^{services wereutilizedas JL} on adhoc basis. Such need based utilization^{cannotbecountedfor} experience in a regular post. Therefore,^{the learnedsingle Judge, instead} of equalizing the teaching experience^{of thepetitionerinanadhocpost} with regular post, ought to have^{dismissedthewrit petition.Heplaced} reliance on Zahoor Ahmad Rather^{v.SheikhlmtiyazAhmad~to}

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' (2019) 2^{SCC 404 =2018 SCC Online SC2680}

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contend that the Courts under the power of judicial review shall not don the role of expanding the scope and ambit of qualifications prescribed for recruitment of a post which is essentially the power and authority of the State or other employer. So also the equivalence of a qualification is not a matter which may be determined in exercise of power of judicial review. He thus prayed to allow the appeal.

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Per contra, Sri C.Prakash Reddy, while supporting the impugned order argued that the candidature of the writ petitioner was unduly rejected by the respondents though he possessed the requisite qualifications. In expatiation, he would submit, eligibility conditions inter alia would only spell out that a candidate must have 10 years of teaching experience out of which he must have 3 years experience as PGT/JL in any Government / Government Aided School / Junior College without specifying that such experience of either 3 years or 10 years from "a regular post". The petitioner though was a TOT, however has had 10 years of experience as JL in the subject of Physics^{in A.P. Social Welfare} Residential School / Junior^{College(Boys),B.Mattam,Kadapa,YSR} District and three other^{residentialcolleges and} his services were utilized as JL by none other than^{the 2n~respondent} and therefore he is very^much qualified for the post of Principal, Grade-II. He would reiterate that in the notification, experience alone was mentioned rather the source of

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experience. Therefore, in the teeth of the notified conditions, he would submit, the present argument of the appellant does not hold water. He would submit that the appellant now cannot add the word "regular" at the relevant place in the notification. On the other hand, the notification should be understood as it stood by the relevant date of examination. He placed reliance on Bank of India vs. K. Mohandas 2 He thus prayed to dismiss the appeal.

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The point for consideration is whether there are merits in the appeal to allow?

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Point: We gave our anxious consideration to the above respective arguments. To decide the controversy and appreciate the validity of the order impugned, it is expedient to extract the qualifications prescribed for the post of Principal Grade-II in the General Recruitment Notification No.01/2019 issued by 2 respondent. The eligibility conditions are thus:

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V. ELIGIBILITYCONDITIONS:

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Academic Qualifications:

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a) District Coordinator:

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A Post Graduate Degree from any university recognized by University Grants Commission (UGC)

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Administrative experience of 3 years in State / Central Govt. Organizations

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b) Principal Grade-II:

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2 (2009) 5 5CC 313

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A Post Graduate Degree with 1^St class (with minimum 60% marks) from any university recognized by University Grants Commission (UGC)

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A B.Ed Degree from UGC/NCTE recognized University with minimum of 50% marks.

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A total teaching experience of not less than 10 years including

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a) 3 years of experience as PGT or JL in any Govt. / Govt. Aided school / Jr. College

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b) 3 years of administrative experience as Head Master! Principal of a High School or Jr. college funded by State / Central / Union Territory Government.

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Thus, a plain reading would show that the qualifications are

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broadly divided into two categories viz., (i) Academic or educational qualification and (ii) Teaching experience.

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(a) Academic or educational qualification is concerned, a candidate must hold a Post Graduate Degree with 1 St class (with minimum 60% marks) from any university recognized by University Grants Commission and he must possess a B.Ed. Degree from UGC / NCTE recognized university with minimum of 50% marks. This is with regard to the academic / educational qualification of a candidate.

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(b) Then the second category of qualification is^concerned; a candidate must have a total teaching^experience of not less than 10 years

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including

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(a) 3 years of experience as PGT or J.L. in any Government / Government Aided school / Junior College

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(or)

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(b) 3 years of administrative experience as Head Master / Principal of a High School or Jr. College funded by State / Central / Union Territory Government.

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Now coming to the petitioner, so far as academic / educational

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qualification is concerned, he possesses the same which is not in demur. Rather, his qualification relating to teaching experience is the bone of contention. Admittedly, the petitioner was appointed as residential teacher in Physical Sciences (RTPS) on 14.06.2000 on contract basis in the APSWR School administered by 2^nd respondent. Later, his service was regularized as Trained Graduate Teacher (TGT) w.e.f. 01.10.2007 and his probation was declared on 30.09.2009. Further, though he was appointed as TGT, the 2^"d respondent utilized his services as Junior Lecturer in Physics in A.P. Balayogi Gurkulams in Zone-1V from 01.01.2007 to 25.07.2009; as JL (Physics) in BRAC Social Welfare Residential Junior College, Chinnatekur, Kurnool District from 26.07.2009 to 07.05.2010; as JL Physics (TGT Physical science) in A.P. Social Welfare Residential School / Junior College (Boys), Kanekal, Anantapur District from 08.05.2010 to 22.06.2016; and as JL Physics (TGT Physical science) in Balayogi Gurukulam, Sagileru, Kadapa

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District from 23.06.2016 till 13.06.2019 as is evident from Service Certificate issued by the Principals of concerned colleges which are filed along with the writ petition. These facts were not disputed by the appellant / 2"' respondent. However, the contention of the appellant / 2"d respondent is that the writ petitioner has not officiated as Jr. Lecturer in the above institutions in a regular JL post.

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(a) So far as the constitution of the A.P. Social Welfare Residential Education Institutions Society is concerned, the appellant / 2"d respondent has admitted that the said APSWREI Society was constituted by virtue of G.O.Ms.No.245, Social Welfare (Q) Department dated 03.10.1986 as the State level society to supervise, control and manage the social welfare residential institutions in the State. The said Society was registered under the AP. Public Societies Registration Act and the management of the Society is vested in the Board of Governors with Hon'ble^Ministerfor Social Welfare as Chairman and Principal Secretary to the Government of Social Welfare Department as its Vice Chairman and other Government officials as members. Most importantly it is admitted by the^appellant/ 2"d respondent that it is an autonomous body which is fully funded by^the Government and it performs the functions as per the provisions^contained in the Memorandum of Association and Bye-Laws. It^isan instrumentality of the State within the meaning of^{Article12ofthe}

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Constitution of India. This vivid narration about the constitution, functions and financial status of the^2nd respondent Society would show that it is a Society fully funded by the State Government and functions with the aids granted by the Government.

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(b) All the above facts would cumulatively show that the petitioner has teaching experience for more than 10 years as an RTJL in Physics in the 2^nd respondent institute which is fully aided by the Government. Further, out of aforesaid 10 years, the petitioner has experience as Junior Lecturer for more than 3 years, inasmuch as, since inception his services were utilized as RTJL by the 2^nd respondent.

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(c) Now the contention of the appellant/respondent is that the writ petitioner did not officiate in a regular post as a Post Graduate Teacher or as a Junior Lecturer and therefore he has not fulfilled the eligibility condition. As rightly observed by the learned single Judge, the^2nd respondent has not mentioned in the notification that the 3 years experience prescribed in Rule 3(a) applies only to regular post graduate teacher or Junior Lecturer. Therefore, at this point of time such a contention that the petitioner did not secure the required experience from out of a regular post does not hold water in the teeth of qualifying standards already set up in the notification. It is trite law that the rules of the game and the criteria of the selection cannot be altered by the

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authorities concerned in the middle or after the process of selection has commenced or after the game was played. It was so held in K. Manjusri v. State of A.P. and another3. It should be noted that subsequently a bench of 3 Judges in Tej Prakash Pathak v. Rajasthan High Court4, however doubted the correctness of K. Manjusri (supra 3) and made a reference to a larger bench for authoritative pronouncement and decision is awaited. Be that as it may, as the law stands today, this principle is applicable. Therefore, the appellant cannot change the conditions specified in the notification and argue that the writ petitioner has not gained 3 years teaching experience in a regular post. Such an argument militates against the notification.

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In Bank of India's case (supra 2) it was held that the true construction of a contract must depend upon .the import of the words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of the contract effect the true effect of the clear and unambiguous words usedⁱⁿ the contract. The intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract.

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s 2008 (3) SCC 512= MANU/SC/0295/2008 ° 2013(4) SCC 540=^{MANU/SC/0263/2013}

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In the light of above jurisprudence, we find no merits in the contention of the appellant. The decision in Zahoor Ahmad's case (supra 1) relied upon by learned AG is of no avail. In that case notification was issued by State of Jammu and Kashmir for among different posts, the post of Technician-Ill in the Power Development Department for which the prescribed qualification was Matric with ITT in relevant trade. The appellants who have higher qualification i.e., Diploma in Electrical Engineering and Diploma in Electronics and Communications also participated in the written test and interview but they were ultimately eliminated on the ground that they did not possess the prescribed qualification of Matric with ITT. They filed writ petitions and learned single Judge of High Court of Jammu and Kashmir allowed the writ petitions on the two grounds, firstly that the Board has changed the rule in the middle and secondly that the holder of a Diploma is presupposed to hold lower qualification of an ITT. The Division Bench however reversed the aforesaid judgment on the ground that the advertisement mandated an ITI in the relevant trade as a condition of eligibility and the Board has not granted any weightage to a higher qualification. The matter went upto Apex Court. The Apex Court in that context observed that in the absence of an enabling rule it would not be permissible to draw an inference that the higher qualification necessarily presupposes the acquisition of another

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albeit, lower qualification. The prescription of qualification for a post is a matter of recruitment policy and the State as the employer is entitled to prescribe the qualifications as a condition of eligibility and it is no part of the role or function of judicial review to expand upon the ambit of the prescribed qualifications. Similarly, equivalence of a qualification is not a matter which can be determined in exercise of the power of judicial review. Whether a particular qualification should or should not be regarded as equivalent is a matter of State as the recruiting authority to determine. The Apex Court ultimately agreed with the judgment of the Division bench of High Court of J&K.

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There is no demur with the principle laid down by the Hon'ble Apex Court. In the instant case learned single Judge has not made any attempt to equate the higher or lower qualifications of the writ petitioner with the qualifications prescribed in the notification. On the other hand, admittedly the writ petitioner worked for more than 10 years as RTJL in the appellant/2"d respondent institute which is administered with the funds of the State Government. Therefore, the question of equalizing his superior or inferior qualifications with the qualifications prescribed in the notification does not arise. On the other hand, learned single Judge only disagreed with the contention of the appellant/2 respondent that the 3 years teaching experience must necessarily be acquired from out of "a

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regular post" on the ground that such a stipulation was not there in the

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notification. So, on a conspectus of facts and law we do not find any

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merits in the writ appeal.

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Accordingly, the Writ Appeal is dismissed by confirming the order in W.P.No.1460/2020. No costs.

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As a sequel, interlocutory applications, pending if any, shall stand closed.

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SDI- E. KAMESWARA RAO DEPUTY REGISTRAR (- //TRUE COPY// SECTION OFFICER To, 1. One CC to M/s Anitha Mesa, (SC for APREIS TW SW BC)^[OPUC] 2. One CC to Sri C.Prakash Reddy, (SC for APREIS TW^{SW BC)[OPUC]} 3. Two CCs to GP for Social Welfare, High Court of Andhra^{Pradesh. [OUT]} 4. Two CD Copies RAM

HIGH COURT

DATED:17/10/2023

ORDER

WA.No.276 of 2020

DISMISSING THE WRIT APPEAL WITHOUT COSTS

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