Allowed

K.Shiva Prasad, v. The State of Andhra Pradesh, rep by its Principal

Andhra Pradesh HC3 Dec 2024WP/29367/2016

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking absorption of three lecturers into aided vacancies in a private college. Relying on prior judgments and the principle against revisiting settled issues with new grounds, the court directed the government to permit absorption.

What did the court decide?

The petition was allowed and the 2nd respondent was directed to accord permission to absorb petitioners in aided vacancies within three months.

K.Shiva Prasad, Vs The State of… — Pension and Retirement Benefits | Andhra Pradesh HC (2024)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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(Special Original Jurisdiction)

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WEDNESDAY, THE FOURTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HON’BLE SMT JUSTICE V.SUJATHA WRIT PETITION NO: 29367 OF 2016

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Between:

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K.Shiva Prasad, S/o K.Yuvaraju, aged 44 years. Lecturer in Mathematics (Unaided), Osmania College, Kurnool, Kurnool District, A.P.,

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Sheik Obedulla Sheriff, S/o S.Jafar Sheriff, aged 43 years. Lecturer in Physics (unaided), Osmania College, Kurnool, Kurnool District, A.P.,

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N.Abid Ali, S/o Mohammed Ali, aged about 43 years. Lecturer in Zoology (unaided), Osmania College, Kurnool, Kurnool District, A.P.

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...PETITIONER(S)

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AND

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The State of Andhra Pradesh, rep by its Principal, Secretary to the Government of Andhra Pradesh, Higher Education Department, A.P.Secretariat, Saifabad, Hyderabad

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Commissioner & Director of Collegiate Education, (Government^of Andhra Pradesh) BRKR Bhavan, Opp Secretariat, Tank bund road, Hyderabad, Telangana.

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Osmania College, Kurnool, Kurnool District,, Rep by its Secretary & Correspondent.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an order or directions, more particularly,^one in the nature of writ of Mandamus,

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, ■>

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i. declaring the action of the respondents 1 and 2 in not permitting the 3rd respondent institution to absorb the petitioners 1 to 3 in the existing aided vacant posts of Lecturers in Mathematics, Physics and Zoology as illegal, arbitrary, discriminatory and unconstitutional;^and ii. consequently direct the respondents to accord permission to absorb the petitioners in the aided vacancies of Lecturers in Mathematics, Physics and Zoology in the 3rd respondent college, with all consequential benefits on par with the similarly situated persons, dehors the ban imposed in G.O.Ms.No.35 dated 27.3.2006.

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I.A. NO: 1 OF 2016(WPMP. NO: 36363 OF 2nifi)

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High Court may be pleased to direct the respondents 1 and 2 to consider the proposals sent- by the 3rd respondent dated 31.12.2015, where under the 3rd respondent sought permission to absorb the petitioners 1 to 3 into the existing aided vacancies of Lecturers in Mathematics, Physics and Zoology, without reference to the ban imposed under G.O.Ms.No.35 Higher Education CE.II Department dated 27.3.2006, pending disposal of the above writ petition.

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Counsel for the Petitioner(s):SRI N BHARAT BABU

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Counsel for the Respondents No.1,2: GP FOR HIGHER EDUCATION Counsel for the Respondent No.3: SRI K UMAPATHY

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The Court made the following: ORDER

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APHC010112692016

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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[3333]

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(Special Original Jurisdiction)

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WEDNESDAY ,THE FOURTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SMT JUSTICE V.SUJATHA

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WRIT PETITION NO: 29367/2016

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Between:

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K.shiva Prasad, and Others

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...PETITIONER(S)

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AND

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The State Of Andhra Pradesh Rep By Its Principal and Others

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...RESPONDENT(S)

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Counsel for the Petitioner(S):

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N BHARAT BABU

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Counsel for the Respondent(S):

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1.KUMAPATHY

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2..GP FOR HIGHER EDUCATION (AP)

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The Court made the following:

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ORDER:

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This Writ Petition is filed under Article 226 of the^Constitution of India

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seeking the following relief;-

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■ to issue an order or directions, more particularly,^{oneinthenatureofwritof} Mandamus, i. declaring the action of the respondents^{1and2innotpermittingthe3rd} respondent institution to absorb the petitioners 1 to 3 in the existing aided vacant posts of Lecturers in Mathematics, Physics and Zoology, as illegal, arbitrary. discriminatory and unconstitutional; and II. consequently^{directtherespondents} to accord permission to absorb the petitioners in the^{aidedvacanciesofLecturers} in Mathematics, Physics and Zoology in the 3rd respondent college, with all consequential benefits on par with the similarly situated^{persons,dehorstheban} imposed in G.O.Ms.No.35 dated 27.3.2006, Hi. and pass ’

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2 nd 2. The 1 petitioner herein has completed M.Sc.(Mathematics), petitioner herein has completed M.Sc.(Physics) and the 3 rd petitioner has rd notification issued by the 3 completed M.Sc.(Zoology). In pursuance of a respondent calling for applications for appointment to the post of unaided lecturers in different subjects, the petitioners herein have applied for the same and accordingly, after completion of the selection^process,the petitioner was selected to the post of lecturer in Mathematics vide proceedings dated 04.10.1998; the 2^"^ petitioner was selected to the^{postoflecturerinPhysicsvide} dated 27.09.2004 and the 3'^^ petitioner was selected^tothepostof proceedings lecturer in Zoology vide proceedings dated 13,07.2005.^{Whiiethematterbeing} so, as ban was imposed for fresh recruitment in the^{State,severalinstitutions} sent proposals to the Government seeking permission to absorb unaided

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lecturers in the aided vacancies; after due consideration,^{theGovernmenthas} permitted to absorb such unaided lecturers in aided vacancies.

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In pursuance of which, one post of lecturer in mathematics, two posts of lecturer in Physics and three posts of lecturer in zoology remained as unoccupied aided vacancies in the 3'^^ respondent institution, as such the petitioners have submitted a representation on 03.12.2015 requesting to absorb them in the unoccupied aided vacancies. The said representation^wasforwarded to the 2'"'* respondent seeking permission to absorb the petitioners. As no action has been initiated till date, the present writ petition^isfiled.

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When the writ petition came up for admission on 31.08.2016, this Court has passed the following interim order in W.P.M.P.No.36363^of2016:

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“Respondent Nos.1 and 2 are directed to consider the proposal of respondent No. 3, dated 31.12.2015, and pass appropriate orders thereon in accordance with law, within a period of three months from the date of receipt of a copy of this order."

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Heard learned counsel for the petitioners, learned Government Pleader for Higher Education and Sri. K. Umapathy, learned counsel for respondent No.3.

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During the course of arguments, learned counsel for the petitioners has submitted that the petitioners are discharging their duties to the utmost satisfaction of their superiors and are fully eligible and qualified for absorption for

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the aided posts. However, the respondent authorities^{arenotpassinganyorders} with regard to absorption of petitioners into grant^{inaidposts.Further,learned} counsel for the petitioners, duly relying upon the^{orderpassedbythisCourtin} W.P.No.7789 of 2012 and batch has submitted that, under^{similarcircumstances,} vide order dated 20.12.2018, this Court has set-aside^theorder through which Commissioner and Directorate of Collegiate Education has rejected the absorption of candidates in aided posts and has directed^theState of Andhra Pradesh and Commissioner of Collegiate Education to^{absorbthepetitioners} therein in aided posts of lecturers with all consequential^{benefits;whichorder} was further confirmed in W.A.No.263 of 2019 (batch) vide order dated 31.07.2020 and the same was further confirmed in SLP(C).No.^13575of2020 vide order dated 25.11.2020, which order was further^confirmed in a review petition filed by the State of Andhra Pradesh vide^{ReviewPetition} (C) Diary No.31 of 2021 which was also dismissed by the Hon’ble^{SupremeCourton} 03.02.2021. He further contended that when the State itself had absorbed similarly situated persons like the petitioners into^{grantinaidpostsonitsown} and also pursuant to orders passed by this Court, the^{petitionerscannotbe} treated on a different footing and they should not^{bedeniedconsiderationfor} absorption in the grant in aid vacancies in the respective^{subjectsexistinginthe} respondent institution where the petitioners are working till date. Hence requested to allow the writ petition.

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Learned counsel for 3^^^ respondent, while denying^{thecontentions} raised by learned counsel for the petitioners has contended that the managements of private educational institutions do not have any right to claim for Grant in Aid from Government, as such, the candidates employed by those managements of colleges also do not have any grant in aid and cannot compel the Government for Grant in Aid, as the Grant in Aid^to the Private Educational Institutions is not statutory under Section 46 of the A.P. Education Act, 1982. Learned counsel further averred that in the event of considering the request of the writ petitioners herein positively, the same would amount to perpetuating illegality. Hence requested to dismiss the writ petition.

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The facts of the writ petition are not in dispute. While relying upon the judgments relied upon by learned counsel for the petitioners (referred supra) a Hon’ble Division Bench of this Court has passed the following order in W.A.Nos.864 and 873 of 2021:

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““16. It is also significant to note that vide common order, dated 20.12.2018, W.P.No.7789 of 2012 & batch was allowed, while referring to similar orders of absorption of identically placed individuals. Paragraph Nos.20, 21 and 22 of the said^commonorder read as follows:

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“20. As rightly contended by the counsel for petitioners, when the State itself had absorbed similarly situated persons like the Writ Petitioners into grant in aid posts on its own and also pursuant to orders passed by this Court, it cannot be contended that petitioners have to be treated^ona different footing and they should be denied consideration for absorption in the grant in aid vacancies in the respective

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subjects existing in the private managements where the respective petitioners are working.

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Therefore, all these Writ Petitions are allowed. The orders rejecting absorption in aided posts passed by the Commissioner and Directorate of Collegiate Education, Andhra Pradesh in the case of the petitioners are set^aside; and the State of Andhra Pradesh and the Commissioner^of Collegiate Education are directed to absorb the petitionersⁱⁿ the aided posts of Lecturers in the respective private Managements with all consequential benefits.

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Accordingly, the Writ Petitions are allowed as^above.No order as to costs”

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As against the above orders, W.A.No.263 of 2019^& batch came to be preferred and a Division Bench vide order, dated 31.01.2020, dismissed the said Writ Appeals. The said orders passed by the Division Bench were carried to the Hon’ble^Apex Court by way of S.L.P.(C)No. 13575/2020 and the Hon’ble^Apex Court vide order, dated 25.11.2020, dismissed the said petition.^It is also not in controversy that the Review Petition^{filedvideDiary} No.31/2021 in the aforementioned S.L.P(C).No. 13775/2020^also came to be dismissed by the Hon’ble Apex Court vide^order,dated 03.02.2021. A copy of the said Review Petition filed^beforethe Hon’ble Apex Court is placed on record along with the^presentWrit Appeals as a material paper. In this context, it would^behighly essential and appropriate to extract Grounds R, S,^T&Wofthe Review Petition, which read as under:

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“R. BECAUSE the Hon’ble High Court erred in nothing that there is not law existing conferring such benefits^onthe employees of Private Educational Institutions. In fact, as early as on 03.11.1999, the Government issued a G.0.283 [Page 121 of SLP Paper-book], whereby all previous G.O.s, which provided a right of regularization / absorption to such employees were withdrawn once and for alL Consequently, no law of regulation exists that confers such a right upon such Lecturers.

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S. BECAUSE the Hon’ble High Court erred in not nothing that, Andhra Pradesh Regulation of Appointments to Public SemHces and Rationalisation Of Staff Pattern And Pay Structure Act, 1994 categorically forbids such regularization. The said provision reads as under:

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“7. No person who is daily wage employee and no person who is appointed on a temporary basis under section^3and is continuing as such at the commencement of this Act^shall have or shall be deemed ever to have a right to claim

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for regularization of services on anr, whatsoever and the services of such shall be liable to be terminated at any time without any notice^and without assigning any reasons. ”

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The aforesaid Act is applicable to all services defined^as ‘Public Services’ under Section 2 (vi) (e) of the Act which reads as under:

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“(e) any other body established by the State Government or by a Society registered under any law relating to the registration or societies for the time being in force, and receiving funds from the State Government either fully or partly for its maintenance or any educational institution whether registered or not bu^receivina aid from .thf> Government. ”

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T. It is thus clear that there is a categorical bar to regularization. This aspect has not been considered by the Hon’ble Court. W. The Hon’ble High Court erred in not appreciating^that none of the previous judgments relied upon by the Hon’ble High Court have referred to (much less considered) the effect of G.O.Ms.No.283 dated 03.11.1999 [Page 121 of SLP Paper-book] whereby all previous Government’s Orders prescribing for regularization of Lecturers to Aided Posts were rescinded. As on date, there is no law, whatsoever, that confers any right upon the Lecturers, to claim regularization/absorption”.

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The fact remains that the respondents categorically^took all the objections in the earlier Writ Petitions, however, as mentioned supra, the Writ Petitions were allowed. In the present cases also the same grounds, which were taken in the Review Application filed before the Hon’ble Apex Court, as mentioned supra, are sought to be pressed into service by the respondents. It is not at all the case of the respondents that, in respect of the individuals whose services were already regularised by the Government, there were no such objections.

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Request for repeated adjudication of the issues, pertaining^to similarly situated persons on the ground that there are new grounds for denying the relief is not permissible. In the considered opinion of this Court, the same would create two different^sub- Clauses in one Class, which ultimately offends Article 14 of the Constitution of India. As mentioned supra, the objections now sought to be pressed into service were also available in the earlier

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cases and also in the cases where the Government on its own extended the benefit to the similarly situated persons. No plausible explanation is forthcoming as to why the present objections were overlooked and did not come in the way of the respondents,^while considering the similarly situated persons. In the considered view of this Court, if the contentions of the respondents are permitted and accepted, there cannot be finality for any issue and it may continue as a never ending issue which would eventually frustrate and defeat the very object of the adjudication and the concept offinality. The contention of the learned Government Pleader that,^intheevent of considering the request of the writ petitioners-appellants^herein positively, the same would amount to perpetuating illegality, in the considered opinion of this Court, cannot stand for judicial scrutiny, having regard to the earlier orders of this Court and the orders of the Hon’ble Apex Court, including the order in the Review Application (referred to supra), filed by the authorities, raising the same grounds. ”

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It can be understood from the aforesaid order that a request for the repeated adjudication of issues concerning similarly^{situatedindividuals,based} on new grounds for denying relief, is not permissible. Such an approach would effectively create two distinct sub-clauses within a single class, which ultimately violates Article 14 of the Constitution of India. As rightly pointed out by learned counsel for the petitioners, when the State itself has absorbed similarly situated individuals, such as the Writ Petitioners, into grant-in-aid posts both on its own and in compliance with orders from this Court, it cannot be argued that the petitioners should be treated differently. They should^{notbedeniedconsideration} for absorption into the grant-in-aid vacancies in the respective subjects at the 3 rd respondent institution where the petitioners are currently employed.

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In view of the aforesaid discussion and having regard^totheearlier orders of this Court and the orders of the Hon’ble Apex Court, this writ petition is allowed and the 2"^^ respondent is directed to accord permission to absorb the petitioners in the aided vacancies of lecturers in the respective subjects in the 3 rd respondent college with all consequential benefits. The said process shall be completed within a period of three (3) months from the date of receipt of a copy of this order. No costs.

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Consequently, miscellaneous applications, pending, if any, shall also stand closed.

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//TRUE COPY//

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SD/- B.PRASAD RAO assistant REGISTRAR SEC N OFFICER

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To,

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