Allowed

Smt. Rabia Sultana v. The Correspondent

Telangana HC12 Apr 2010WP/19757/2005

Case brief

AI extract

What is this about?

This single-judge order allows a writ petition seeking promotion and grant-in-aid for a Junior Lecturer. The court held that since the selection and appointment process were completed with prior government approval before a subsequent ban policy came into force, the ban was inapplicable, and the petition was set aside for grant-in-aid inclusion.

What did the court decide?

Impugned memo dated 16.5.2005 set aside; Director directed to admit petitioner into grant-in-aid post within two months.

Smt. Rabia Sultana Vs The Correspondent — Pension and Retirement Benefits | Telangana HC (2010)

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THE HON’BLE SRI JUSTICE G.CHANDRAIAH

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W.P.NO.19757 OF 2005

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O R D E R

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Heard both the counsel.

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2. This writ petition is filed for a writ of Mandamus declaring the letter dated 25.7.2005 and memo no.Admn.1-B-3/330/2005 dated 16.5.2005, rejecting the promotional appointment of the petitioner as Junior Lecturer in Botany to grant-inaid, as illegal and arbitrary and consequently direct the respondents to continue the petitioner as Junior Lecturer in Botany after granting aid as per service rules.

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3. In the affidavit filed in support of the writ petition it is stated that the petitioner was appointed as School Assistant in the Agarwal Hindi School for Boys, Charkaman, Hyderabad under the Management of Agarwal Sikha Committee. The petitioner was a post graduate in M.Sc., and as per G.O.Ms.No.203 dated 18.6.1999, she is eligible to be promoted as Junior Lecturer in Botany. By proceedings in Rc.No.Admn.IB-3/330/04 dated 16.7.2004, the Director of Intermediate Education accorded permission to the 1^st respondent - the Correspondent, Durga Prasad Banwarilal Girls Junior College, Charkaman, Hyderabad, in terms of G.O.Ms.No.203 Education dated 18.6.1999, to fill up vacant posts of Junior Lecturer in Botany by way of promotion from the feeder categories under the same Management and the Regional Joint director of Intermediate Education, Zone – VII, was nominated as Government/Director of Intermediate Education’s nominee in the selection committee. The 1^st respondent was also instructed to complete the selection process within six months from the date of

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receipt of the proceedings dated 16.7.2004. Accordingly the selection process was initiated and the Departmental Promotion Committee was held on 12.8.2005 and the petitioner was selected for promotion to the post of Junior Lecturer in Botany. Accordingly, on 5.11.2004 the 1^st respondent addressed a letter to the 2^nd respondent with regard to the selection and approval of the petitioner in the selection committee held on 12.8.2004 and sought permission to include her name under grant-in-aid post to enable them to prepare the annual salary statement and submit the same for approval. The 2^nd respondent also addressed a letter on 20.12.2004 to the 1^st respondent to submit the complete specific proposal for admitting to grant in aid in respect of the promotion as Junior Lecturer in Botany. By proceedings in Rc.No.4830/E3-1/04-05-I dated 26.10.2004 the Secretary, Board of Intermediate Education, Andhra Pradesh approved the appointment of petitioner to the post of Junior Lecturer in Botany in the 1^st respondent college, who was promoted from the cadre of School Assistant. On 3.5.2005 the 1^st respondent addressed letter to the 2^nd respondent requesting for grant-in-aid from the office of Director of Intermediate Education, informing that the petitioner was promoted by the Departmental Promotion committee on 12.8.2004 by taking permission from Director of Intermediate Education and that he also approved the said appointment. The grievance of the petitioner is that the 2^nd respondent issued memo No.Admn.I-B3/330/2004 dated 16.5.2005 to the 1^st respondent stating that as per the policy decision taken by the Government in the High Level Committee meeting held on 8.0.2004, no permission will be granted to grant-in-aid against aided vacant posts in private aided junior colleges and that the management may raise the funds on their own and meet the salary expenditures of such persons if desired. The case of the petitioner is that the selection of the petitioner was made by the Departmental

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Promotion Committee on 12.8.2004, much prior to the policy decision taken by the Government on 8.10.2004 and, therefore rejection of permission for grant-in-aid, is illegal and consequently the intimation of the same to the petitioner by the 1^st respondent is also illegal. Hence the writ petition.

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4. The Joint Director of Intermediate Education filed counter affidavit on behalf of the 2^nd respondent. In the counter affidavit it is stated inter alia that even if the Board of Intermediate Education approve the appointment, the petitioner will not be admitted to grant-in-aid automatically. After the Board of Intermediate Education approves the selection of a person to a post, the management has to send the proposals in a form, to the Commissioner of Intermediate Education and if all the papers are in form, the same will be approved and then only the person will be admitted to grant-in-aid. In the present case, though the Board of Intermediate Education has approved the selection of the petitioner by order dated 26.10.2004, the management has sent the proposals only through letter dated 5.11.2004 i.e., after the ban is imposed. As per the decisions of this Hon’ble Court and Supreme Court, it is clear that the law prevailing as on the date of submission of the application will be applicable to them and as ban was in force from 8.10.2004 the case of the petitioner was rightly rejected through proceedings dated 16.5.2005. With these averments, the writ petition was sought to be dismissed.

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5. The learned counsel appearing for the petitioner reiterating the averments made in the writ affidavit further submitted that the petitioner was eligible to be promoted to the post of Junior Lecturer in Botany and the 1^st respondent has taken up the process of selection to the said post, only with the approval of the Director of Intermediate Education dated 16.7.2004 and as per the minutes of the Selection committee held on 12.8.2004 the petitioner was selected by the Departmental

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Promotion Committee, in which the Regional Joint Director of Intermediate Education was the nominee of the Government. The Secretary of the Board of Intermediate Education, Andhra Pradesh by proceedings dated 26.10.2004 also approved the appointment of the petitioner to the post of Junior Lecturer. The impugned order is issued on the ground that the policy decision is taken by the High Level Committee on 8.10.2004 not to admit any person to grant-in-aid against aided vacant posts in private aided junior colleges. He contended that the selection process is completed with approval of the competent authority on 12.8.2004, prior to the imposition of ban on 8.10.2004 and hence the rejection of the case of the petitioner, is illegal and arbitrary. He submitted that the ground taken by the respondent in the counter that the management sent proposals on 5.11.2004 after the imposition of ban and hence the case of the petitioner was not considered as ban was imposed on 8.10.2004, cannot be sustained, since the entire selection process with prior approval of the competent authority and the same was also completed even before the imposition of ban. Relying on the Division Bench judgment of this court in W.A.No.1578 of 2005 and batch dated 29.12.2006, he contended that ban imposed by the Government on the recruitment against existing vacancies, is not applicable to the cases in which permission had already been granted. With these submissions, he sought to set aside the impugned order and consequently direct the respondents to appoint the petitioner to the post of Junior Lecturer in Botany by admitting the post into grant-in-aid.

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6. On the other hand, the learned Government Pleader for Higher Education submitted that the Government has taken policy decision on 8.10.2004 in view of the financial constraint, not to admit to grant-in-aid against any aided vacant posts in private aided junior colleges and hence the rejection of the case of the petitioner

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may not be interfered. Hence, he sought to dismiss the writ petition.

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7. From the above averments and the material available on record it could be seen that there is there is no dispute that the petitioner was appointed as School Assistant in the Agarwal High School for Boys, Charkaman, Hyderabad under the management of Agarwal Sikh Committee and she acquired M.Sc., post graduation in Botany and became eligible for promotion to the post of Junior Lecturer in Botany. By proceedings in Rc.No.Admn.IB-3/330/04 dated 16.7.2004 the Director of Intermediate Education, Andhra Pradesh, Hyderabad accorded permission to the 1^st respondent to fill up the vacant post of Junior Lecturer in Botany. The said proceedings is extracted as under for ready reference:

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“PROCEEDINGS OF THE DIRECTOR OF INTERMEDIATE EDUCATION ANDHRA PRADESH, HYDERAAD.

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Present: Sri Shashank Goel, I.A.S.,

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RC.No.Admn.IB-3/330/04 Date:16-7-2004

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Sub: Private Aided Junior Colleges – D.B. Girls Junior College, Hyderabad – Internal Promotion – Orders – Issued – Reg.

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Ref: 1. Lr.Rc.No.9B/6200/DB GJC/2004-05 dated 21-5-2004 from the Correspondent. 2. U.O.Note No.Admn-II-2/655/04 dated 9-6-2004.

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In the circumstances reported by the Correspondent, D.B. Girls Junior College, Charkaman, Hyderabad and in terms of G.O.Ms.No.203 Education dated 18-6-99, the Director of Intermediate Education is pleased to accord permission to fill up vacant post of Junior Lecturer in Botany by way of promotion from the feeder categories under same Management. The Regional Joint director of Intermediate Education, Zone-VII is nominated as Government/Director of Intermediate Education’s nominee in the selection committee.

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The Correspondent is instructed to complete the selection process within six months from the date of receipt of these proceedings. Any deviation of Rules in this regard will be viewed seriously.

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Acknowledge the receipt of these proceedings.

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(Orders of the Director is obtained in this regard)

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MOHIUDDIN AHMED FOR DIRECTOR OF INTERMEDIATE EDUCATION”

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8. Therefore, from the above proceedings it is clear that the Director of Intermediate Education, has accorded permission to fill up vacant post of Junior Lecturer in Botany in the 1^st respondent college by way of promotion from the feeder categories under the same management. As already noted above, the petitioner is in feeder category and is working under the same management and is qualified for being considered to the post of Junior Lecturer in Botany, as she has post graduation in M.Sc..

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9. Pursuant to the above proceedings of the Director of Intermediate Education, the 1^st respondent – College has started the selection process and the Departmental Promotion Committee in the selections held on 12.8.2004, selected the petitioner to the post of Junior Lecturer in Botany. To the said selection process, the Regional Joint Director, Intermediate Education, A.P. is the nominee of the Government. The copy of the Minutes of the Selection Committee held on 12.8.2004, is filed by the petitioner along with the material papers.

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10. The petitioner also placed before this court copy of the proceedings in Rc.No.4830/E3-1/04-05-I dated 26.10.2004 issued by the Secretary of Board of Intermediate Education, Andhra Pradesh, approving the appointment of the petitioner as Junior Lecturer in Botany. The said proceedings to the extent relevant is extracted as under for better appreciation:

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“Adverting to the subject under reference 2^nd cited, it is informed that the Secretary,

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Board of Intermediate Education, A.P., Hyderabad is pleased to approve the appointment of Smt. Rabiya Sultana M.Sc., (Botany) as junior lecturer in Botany in Durga Prasad Bonwarilal Girls Junior College, Charkaman, Hyderabad who was promoted from the cadre of School Assistant.”

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11. From the above proceedings it is clear that the appointment of the petitioner to the post of Junior Lecturer in Botany was approved by the Secretary, Board of Intermediate Education.

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12. Thereafter, the 1^st respondent – Management addressed a letter dated 5.11.2004 stating that the petitioner was selected as Junior Lecturer in Botany by the Selection Committee held on 12.8.2004 and that her appointment was approved as a Junior Lecturer in Botany from the cadre of School Assistant as per Board of Intermediate Education letter dated 16.7.2004 and requested to permit them to include her name under grant-in-aid post, to enable them to prepare the annual salary statement and submit it for approval.

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13. But by the impugned memo No.Admn.I-B-3/330/2004 dated 16.5.2005 the 2^nd respondent – Commissioner of Intermediate Education informed that as per the policy decision taken by the Government in High Level Committee meeting held on 8.10.2004, no person will be admitted to grant-in-aid against aided vacant posts in Private Aided Junior Colleges and that the management may raise the funds on their own and meet the salary expenditure of such persons if desired. Consequent to this letter, the 1^st respondent informed the petitioner by letter dated 27.5.2005 with regard to rejection of his appointment as Junior Lecturer in Botany to grant-in-aid.

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14. It is to be noticed that the entire selection process started with the permission of the Director of Intermediate Education, Andhra Pradesh by

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proceedings dated 16.7.2004 and pursuant to the same, the selection process was started and as the Selection Committee on 12.8.2004 selected the petitioner to the post of Junior Lecturer in Botany and the same was also approved by the Secretary of Board of Intermediate Education by proceedings dated 26.10.2004. As per the impugned memo dated 16.5.2005 the policy decision taken by the Government with regard to ban was in the High Level Committee meeting held on 8.10.2004 . Therefore, it is clear that the entire selection process with approval from the competent authorities was completed by 12.8.2004 i.e., much prior to the imposition of ban on 8.0.2004. Hence, the rejection of the case of the petitioner, cannot be sustained.

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15. The only ground taken in the counter affidavit is that the management sent proposals on 5.11.2004 after the imposition of ban. This ground cannot be sustained for the reason that the entire selection process was completed by 12.8.2004, on which date the Selection Committee selected the petitioner and the process of appointment by promotion was started with prior approval of the competent authority by proceedings dated 16.7.2004. After completion of the selection process on 12.8.2004, the Secretary of Board of Intermediate Education also approved the appointment of the petitioner on 26.10.2004 and thereafter the management sent proposals. The other averment made in the writ affidavit, which is not specifically denied is that the 2^nd respondent - Commissioner also addressed a letter on 20.12.2004 to the 1^st respondent to submit the complete specific proposal for admitting to grant in aid in respect of the promotion as Junior Lecturer in Botany. Hence, in these circumstances, the ground taken by the respondents in the counter affidavit cannot be sustained.

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16. At the cost of repetition it is to be noticed that the entire selection process

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was started after prior approval of the competent authority. Before the Division Bench of this court in W.A.Nos.1578 of 2005 and batch dated29.12.2006, the Government challenged the orders of the learned single judges, whereby they declared the ban imposed by the State Government vide memo no.1280/COSE/A2/2004-4 dated 20.10.2004 on the filling up of existing vacancies in the cadre of teachers, is not applicable to the recruitment process already initiated by the management of the private schools for filling up the vacant aides posts of teachers and directed the Government to allow the managements to complete the process of selection. The Division Bench while dismissing the appeals filed by the Government, held at page no.43 of the judgment as under:

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“If the decision contained in memo dated 20.10.2004 is read in the light of the above interpretation of the relevant rules, we do not have any hesitation to approve the view taken by the learned single Judges that the ban imposed on the recruitment against existing vacancies is not applicable to the cases in which permission had already been granted by the District Educational Officer or the Regional Joint Director. Such permission will have to be constructed as a specific authorization by the competent authority for the purpose of making recruitment against the existing post.”

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17. The above Division Bench in W.A.No.1578 of 2005 and batch, has relied on the earlier decision of the Division Bench of this court in MODERN HIGH SCHOOL, ZAMISTHANPUR, MUSHEERABAD, HYD. V. GOVERNMNT OF

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A.P .^[1] wherein similar issue had arisen for consideration. The subsequent Division Bench (2 supra) held as under:

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“6. Where the managements of Private Aided Institutions have already obtained permission from the competent authorities and filled up the vacant posts duly following the recruitment procedure, the competent authorities concerned shall approve such appointments forthwith and to issue necessary orders in the matter.”

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18. In view of the foregoing reasons, the impugned memo dated 16.5.2005

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issued by the 2^nd respondent and the consequent letter dated 27.5.2005 issued by the management to the petitioner, are set aside and the 2^nd respondent is directed to consider the case of the petitioner for appointment to the post of Junior Lecturer in Botany by admitting into grant-in-aid post, and pass appropriate orders in accordance with law within a period of two months from the date of receipt of a copy of this order.

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19. The writ petition is accordingly disposed of. No costs. AVS -----------------------------12—04—2010 [1] (2002)1 ALD 96(DB)

Smt. Rabia Sultana v. The Correspondent

Case brief

What is this about?

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Smt. Rabia Sultana v. The Correspondent

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