Allowed

Smt. M. Sreedevi, v. The State of a.P., rep. by its Prl., Secretary

Telangana HC26 Feb 2010WP/9441/2005

Case brief

AI extract

What is this about?

The Court set aside an order refusing to regularize the petitioner's services in an aided post. It held that minority institutions need not seek prior permission for unaided posts, and discriminating against the petitioner while condoning identical lapses for others violated Article 14.

What did the court decide?

The impugned order refusing regularization was set aside. The respondents were directed to reconsider the case for absorption with effect from 09.12.1994 within two months.

Smt. M. Sreedevi, Vs The State of a.P., rep. by… — Education and Admissions | Telangana HC (2010)

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THE HON’BLE SRI JUSTICE SANJAY KUMAR

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WRIT PETITION NO.9441 OF 2005

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DATED FEBRUARY, 2010

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BETWEEN Smt.M.Sreedevi … Petitioner And The State of Andhra Pradesh Rep. by its Principal Secretary, Education Department, Secretariat, Hyderabad. And Others. … Respondents

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THE HON’BLE SRI JUSTICE SANJAY KUMAR

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WRIT PETITION NO.9441 OF 2005

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O R D E R

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The petitioner is a Junior Lecturer in Mathematics in Dr.B.R.Ambedkar Memorial Junior College, Tenali, Guntur District-the third respondent. She assails the order dated 12.05.2004 passed by the Director of Intermediate Education, Andhra Pradesh, Hyderabad, refusing to regularize her services in an aided post in the third respondent College. She seeks a further direction to the respondents to admit her to grant-in-aid with effect from 09.12.1994 with arrears of salary and other service benefits, including seniority.

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The third respondent College is a religious minority educational institution, recognized as such under the certificates issued by the Director of Intermediate Education, Andhra Pradesh, Hyderabad. Upon the recommendations of the Grant-in-aid Committee and the Director of Intermediate Education, Hyderabad, the Government of Andhra Pradesh admitted the third respondent College to grant-in-aid with effect from 16.04.1990 vide G.O.Ms.No.294, Education (C.E.II-2) Department, dated 27.08.1992. By the aforestated proceedings five Sections (MPC/BPC – 2 Sections and CEC/HEC – 3 Sections) with 26 teaching posts were admitted to aid. Two posts of Junior Lecturers in Mathematics were amongst the posts admitted to grant-in-aid. It is relevant to note that the Government was aware that the appointments made by the College in the teaching and non-teaching posts were in

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contravention of the rule of communal reservation and also the procedure of sponsorship of candidates by the Employment Exchange. The Government however, chose to condone the same as is evident from the G.O.

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D.Bala Bhaskara Rao and V.Mohana Sastry appointed by the third respondent College as Junior Lecturers in Mathematics were absorbed in the two aided posts covered by the above G.O.

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While so, the third respondent College issued a Notification in Newspapers on 05.05.1994 calling for applications from eligible candidates to fill up an unaided post of Junior Lecturer in Mathematics. It appears that six persons responded and eventually three out of the six applicants, including the petitioner, were interviewed by a Selection Committee on 09.06.1994. The Selection Committee constituted by the third respondent College consisted of the Secretary and Correspondent of the College, the Principal of the College, a Committee Member, a Management Representative and a subject expert. Pursuant to the aforestated selection, proceedings dated 15.06.1994 were issued by the third respondent College selecting and appointing the petitioner as a Junior Lecturer in Mathematics with effect from 15.06.1994, subject to the approval of the Board of Intermediate Education. She was also placed on a time scale.

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Though the third respondent College had been admitted to grant-in-aid under G.O.Ms.No.292 dated 27.08.1992, the same was in respect of only five Sections as mentioned supra. The third respondent College had five other Sections which had been started prior to 01.03.1985 but had not been sanctioned grant-in-aid, as they were commenced without prior permission. However, taking note of the representations made in this regard by the third respondent-College and also the Junior Lecturers working in these sections, the Government of Andhra Pradesh issued G.O.Ms.No.463, Education

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(C.E.III-1) Department, dated 09.12.1994, ratifying the action of the third respondent College in starting the five Sections without prior approval and admitting them to grant-in-aid along with the posts attached. The five Sections so admitted were:

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HEC + CEC	… One Section
MPC + BPC	… One Section
CEC	… One Section
HEC	… One Section
MEC	… One Section

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The G.O. further named some of the Junior Lecturers admitted to grantin-aid thereby: I.Ramesh Babu and B.Subrahmanyam – Junior Lecturers in English, G.Francis Kiran Kumar – Junior Lecturer in Telugu, Ch.Nancharaiah Rao – Junior Lecturer in Economics and Z.Paul Prasad – Junior Lecturer in Civics. As regards B.Jawahar Babu and Raja Sekhar, Junior Lecturers in Commerce and Sociology respectively, the Director of Intermediate Education was asked to submit necessary proposals for admitting them to grant-in-aid. Thereafter, by proceedings dated 17.12.1994, the Director of Intermediate Education gave effect to the admission of the above Lecturers, along with others, to grant-in-aid from the date of the G.O. viz., 09.12.1994. Under proceedings dated 01.05.1997, the Commissioner and Director of Intermediate Education, Andhra Pradesh, Hyderabad, informed the Secretary, Board of Intermediate Education, Andhra Pradesh, Hyderabad, that consequent to the sanction granted to the additional Sections under G.O.Ms.No.463 dated 09.12.1994, the work load required two more Junior Lecturers in Mathematics. D.Bala Bhaskara Rao and V.Mohana Sastry, being already covered by G.O.Ms.No.294 dated 27.08.1992, Mohd.Ayazuddin, who was appointed by the third respondent College as a Junior Lecturer in Mathematics prior to the petitioner and the petitioner, were available for absorption in the two posts which had been sanctioned grant-in-aid. Mohd.Ayazuddin was admitted to grantin-aid w.e.f. 09.12.1994 under the proceedings dated 07.03.1995 of the

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Director of Intermediate Education. A.P. Accordingly, the third respondent College represented to the authorities concerned to approve the absorption of the petitioner in the last aided post. There appears to have been copious exchange of correspondence in this regard between the third respondent College and the authorities. Eventually, by order dated 23.12.1997, the Commissioner and Secretary, Board of Intermediate Education, Andhra Pradesh, Hyderabad, informed the third respondent College that approval of the petitioner’s appointment as a Junior Lecturer in Mathematics was not granted as the College had not obtained prior permission from the Commissioner and Director of Intermediate Education before filling up the vacant post.

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Thereupon, the third respondent College submitted representation dated 26.03.1999 to the Director, Board of Intermediate Education pointing out that as a minority institution it was not required to take prior approval for making appointments to unaided posts and that it was only after the appointment of the petitioner to the post that the Sections and the post had been admitted to grant-in-aid under G.O.Ms.No.463 dated 09.12.1994. It was pointed out that in identical circumstances candidates who were appointed without prior approval had been absorbed in aided vacancies. The College accordingly requested the authorities to ratify her appointment and admit the petitioner to grant-in-aid. The petitioner also submitted a detailed representation in this regard. However, the authorities issued the impugned proceedings dated 12.05.2004 stating that the request for regularization of the services of the petitioner and her admission to grant-in-aid could not be considered as per rules. Hence, this writ petition.

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The petitioner, in her affidavit, asserted that she had been selected and appointed pursuant to a regular process of selection and that the rules did not require that prior approval of the authorities be

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obtained by a minority educational institution before it filled up an unaided post. She pointed out that it was only thereafter that the sections and the post were admitted to grant-in-aid and therefore, the approach of the respondent authorities, based on the misconception that it was a case of direct appointment to an aided post, is not correct. She further pointed out that others similarly situated were treated differently and cited the cases of 15 Junior Lecturers who were admitted to aid though they were initially appointed without prior approval of the competent authority. It is pointed out that the impugned proceedings dated 12.05.2004 do not detail the rules basing on which the authorities rejected her case. It is further stated that this unreasoned order, having grave civil consequences for the petitioner, was violative of the principles of natural justice.

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In a plurality of counters, the State authorities sought to justify their action. It is stated that the third respondent College did not take permission from the competent authority before permitting the petitioner to work in the aided post. The authorities stated that the petitioner, having been appointed in an unaided post could not seek absorption in an aided post, as the procedure prescribed for selection to an aided post was different.

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It is alleged that the selection of the petitioner even for the unaided post was violative of the norms as the third respondent College did not call for candidates from the Employment Exchange. Reference is made to G.O.Ms.No.526 dated 21.12.1988 in support of the plea that in the absence of a Government Representative in the Selection Committee, the petitioner could not assert any right to be admitted to grant-in-aid. Contrary to the proceedings dated 01.05.1997 issued by the Commissioner and Director of Intermediate Education, Hyderabad, stating that upon sanction of the additional sections in the third respondent College, two more Junior Lecturers in Maths were required, the authorities stated that only three Junior Lecturers in

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Maths were required at that time and it is only now that four Junior Lecturers in Maths are required. But as the Government had imposed a ban vide G.O.Ms.No.35 dated 27.03.2006, no steps can be taken to admit any person to grant-in-aid.

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With regard to the petitioner’s allegation that 15 Junior Lecturers similarly situated had been admitted to grant-in-aid, the authorities, except for stating that they had not been made parties to the writ petition, did not choose to elaborate on how they stood on a different footing from the petitioner warranting their disparate treatment.

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In response to the counter and additional counter, the petitioner filed rejoinders. Therein, she pointed out that the third respondent College was originally an unaided institution and by way of two separate orders in 1992 and 1994, the College (five Sections at a time) was admitted to grant-in-aid. She pointed out that 15 Junior Lecturers, who were appointed in the same manner as she was, had been admitted to aid but she alone was discriminated. She asserted that there was no Government Representative in the Selection Committees which interviewed the said 15 Lecturers. She further pointed out that under the rules, the presence of a Government Representative in the Selection Committee was required only when appointment was to be made to an aided post. However, as she and the other Junior Lecturers were originally appointed in unaided posts, the said requirement did not come into operation. She pointed out that the authorities were overlooking this crucial aspect and that her claim was for absorption in the aided post and not for appointment to the said post, as understood by the authorities.

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As regards sponsorship of candidates by the Employment Exchange, the petitioner pointed out that non-compliance with this requirement had been condoned in the case of others similarly situated as reflected in G.O.Ms.No.294 dated 27.08.1992. She placed reliance on the letter dated 01.05.1997 addressed by the

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Commissioner and Director of Intermediate Education to assert that there was sufficient workload warranting four aided posts of Junior Lecturers in Maths after the sanction of the additional Sections under G.O.Ms.No.463 dated 09.12.1994. She further stated that the two Junior Lecturers in Maths absorbed in the aided posts under G.O.Ms.No.294 dated 27.08.1992 were no longer working in the third respondent College and refuted the stand of the authorities that there was no workload earlier. With regard to the ban imposed in the year 2006, the petitioner stated that her claim dated back to the year 1994 and therefore the ban had no application to her case.

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Status quo ordered by this Court on 26.04.2005 was extended thereafter and made absolute on 14.09.2007, upon the dismissal of the vacate stay petition filed by the State authorities.

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Heard Sri Pratap Narayan Sanghi, learned counsel for the petitioner and the learned Government Pleader for Higher Education for the State authorities. The third respondent College remained unrepresented.

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It is not in dispute that at the time the petitioner was appointed as a Junior Lecturer in Mathematics in the third respondent College on 15.06.1994, the post held by her was unaided. It was only thereafter that two additional Maths related Sections (MPC/BPC and MEC) were admitted to grant-in-aid under G.O.Ms.No.463 dated 09.12.1994 requiring two more Junior Lecturers in Maths. By that time, D.Bala Bhaskara Rao and V.Mohana Sastry, Junior Lecturers in Maths, were already admitted to grant-in-aid posts under G.O.Ms.No.294 dated 27.08.1992. Mohd. Ayazuddin was appointed as a Junior Lecturer in Mathematics on 16.02.1990 and was admitted to grant-in-aid with effect from 09.12.1994 under the proceedings dated 07.03.1995 of the Director of Intermediate Education, Andhra Pradesh. Therefore, only the petitioner was left to be absorbed in the last grant-in-aid post.

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The claim of the petitioner to such absorption is however denied by the authorities on various grounds. Firstly, it is pointed out that no prior permission was obtained from the competent authority before appointing the petitioner; secondly, the absence of a Government Representative in the Selection Committee is said to be fatal to her claim, thirdly, her very appointment is said to be irregular as the College did not call for candidates from the Employment Exchange. The authorities also sought to raise the ground that sufficient workload was not there at the relevant point of time and now, notwithstanding the availability of work, there was a ban which prohibited admission of any person to grant-in-aid.

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As regards the first ground, the authorities did not place any material before this Court to substantiate their plea that prior permission was an essential requisite for making appointments to even unaided posts. On the other hand, the petitioner relied upon various proceedings to demonstrate that such permission was not required. She referred to the proceeding of the Director of Intermediate Education in Rc.No.323/JC5-1/92 dated 20.02.1992 communicating a copy of G.O.Ms.No.12 dated 10.01.1992, wherein the Director of Intermediate Education informed the Correspondents of the aided Junior Colleges that before notification of vacancies they should obtain prior permission of the Director to fill up the posts along with certain information. The information so required pertains to only aided posts. By inference the petitioner would assert that no such requirement was obviously necessary in so far as unaided colleges and unaided posts are concerned. She also placed reliance on G.O.Ms.No.23, Minorities Welfare (M&R) Department, dated 10.03.1999 wherein it is stated under Clause-5 that Minority Educational Institutions were free to appoint candidates of their choice in unaided posts and under Clause6 it is stipulated that Minority Educational Institutions are not required to seek the approval of any Governmental authorities for appointments

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made in the non-aided posts.

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Though the above G.O. is subsequent in point of time to the petitioner’s appointment, nothing is brought on record to show that the legal environment was any different earlier, in so far as prior permission for making appointments to unaided posts is concerned. Further, the authorities have not demonstrated that in the case of the other Lecturers in the third respondent College admitted to grant-in-aid, such prior permission had been asked for and granted. In the absence of such material or evidence the attempt on the part of the respondent authorities to make out a requirement of prior permission from the competent authority for making appointment or admission to an unaided post, must necessarily fail.

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The second contention urged by the authorities is equally without substance. It is their case that the absence of a Government representative in the Selection Committee which interviewed the petitioner is fatal to her claim for admission to grant-in-aid. Reliance is placed in this regard on Clause 8(1) of G.O.Ms.No.526 dated 21.12.1988. Clause 8 deals with ‘Appointment of staff and disciplinary control’ and Clause 8(1) reads as under:

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“It is open for the educational agency to constitute Staff Selection Committee on the lines prescribed by the Government for other private educational institutions or to adopt Staff Selection Committee of their own choice with or without a Government representative, (however there shall be a subject expert), in the latter case the management will not be eligible for financial aid from the Government.”

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Thus, as per the above provision, the option is given to the educational institution to include a Government representative in the Staff Selection Committee. However, an institution which exercises such an option and excludes a Government representative from the Committee would not be eligible for financial aid from the

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Government. Admittedly, the petitioner was selected and appointed in an unaided post and therefore it was open to the third respondent College to exclude a Government representative from the Selection Committee. It was only after her appointment that the Government took a decision to ratify the action of the third respondent College in starting the five additional Sections without sanction and further, to admit the posts connected therewith to grant-in-aid. This step was taken under G.O.Ms.No.463 dated 09.12.1994. Earlier thereto, five Sections in the third respondent College were admitted to grant-in-aid in the year 1992 along with 26 teaching posts attached therewith. It is not the case of the authorities that any of the appointees in the teaching posts in the third respondent College who were admitted to grant-in-aid were selected by Committees comprising a Government representative. On the other hand, the petitioner filed the minutes of the various selections undertaken by the third respondent College, clearly demonstrating that in none of the Selection Committees was a Government representative present. Relevant to note, even in the case of Mohd.Ayazuddin, the other Junior Lecturer in Maths, who was admitted to the aided post sanctioned in the year 1994, the Staff Selection Committee which interviewed him on 05.02.1990 did not comprise a Government representative. As rightly pointed out by Sri Pratap Narayan Sanghi, learned counsel, the petitioner’s claim is one for absorption in an aided post and not for appointment thereto. In the case of absorption of unaided post appointees in aided posts, as is evidenced from the Government’s own actions in respect of the other teachers in the third respondent College, the requirement of including a Government representative in the Staff Selection Committee was consistently overlooked. That being so, it is not open to the State to now press such an argument to deny the petitioner’s claim for absorption in the last aided post of Junior Lecturer in Maths. The consistency shown by the State in exercising its discretion in favour of others similarly situated mandates that it should not deviate in so far as the petitioner

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alone is concerned.

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The third contention advanced by the authorities is that the petitioner’s very appointment was irregular as the third respondent College did not conform to the norm of calling for candidates from the Employment Exchange. It is however to be noticed that under G.O.Ms.No.294 dated 27.08.1992, the Government being conscious of this lapse on the part of the third respondent College chose to condone the same and admitted 26 teaching posts to grant-in-aid. Similarly, in the case of the teachers who were admitted to grant-in-aid under G.O.Ms.No.463 dated 09.12.1994 it is not brought out that the norm of sponsorship of candidates by the Employment Exchange was complied with. In view of the consistent approach adopted by the State in not implementing this norm in so far as the third respondent College is concerned and in view of the categorical condonation of this lapse embodied in G.O.Ms.No.294 dated 27.08.1992, it is too late in the day for the authorities to bank upon this requirement to single out and attack the appointment of the petitioner alone at this stage.

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The stand of the authorities that there was no workload at that point of time warranting four aided posts of Junior Lecturers in Maths is contrary to the record. The fact remains that the Commissioner and Director of Intermediate Education himself opined that upon sanction of the additional sections in the third respondent College in 1994, the workload required two more Junior Lecturers in Mathematics.

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The authorities cannot therefore gauge in retrospect as to what was the workload in 1994 and act on their own unfounded perceptions in this regard so as to deny the petitioner’s claim. Further, as the authorities chose to overlook the petitioner’s case alone, though she was entitled to be treated on par with Mohd. Ayazuddin who was identically situated, it is not open to them to rely upon the ban imposed much later to refuse the petitioner’s claim.

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Thus, none of the reasons cited by the State authorities to justify their refusal to regularize the petitioner’s services and absorb her in the aided post, find favour with this Court.

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Though not urged in the pleadings, the issue of maintainability of the writ petition arose during the course of the hearing. The issue being whether the petitioner, an individual Teacher, could maintain the writ petition in connection with the dispute relating to sanction of grantin-aid. Reference in this regard was made to the case law on the point.

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I n STATE OF ASSAM V/s. AJIT KUMAR SARMA^[1] , the Supreme Court, while dealing with conditions of grant-in-aid under non-statutory executive instructions, held that the same did not confer any right on the Teachers whereby they could seek a mandamus for enforcement of such instructions. Such is not the situation in our State. Grant-in-aid is governed by the Andhra Pradesh Education Act, 1982, the A.P. Private Educational Institutions Grant-in-Aid (Regulations) Act, 1988, and the A.P. Private Aided Educational Staff (Regulation of Pay) Act, 2000 and the statutory rules framed thereunder. Therefore, the observations of the Supreme Court in AJIT KUMAR SARMA, being in an altogether different milieu, have no application to the present case.

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I n KUMARI REGINA V/s. ST. ALOYSIUS HIGHER ELEMENTARY SCHOOL^[2] , the Supreme Court was again dealing with a case involving grant-in-aid sanctioned under administrative instructions which were not statutory in nature. Therefore, this Judgment also is of no avail.

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In CYRIL E. FERNANDES V/s. MYRIA LYDIA^[3] , the grant-inaid code under which the Teacher raised a claim was non-statutory in nature and accordingly, the Supreme Court observed that a Teacher was not directly concerned with the question as to whether such Code

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conferred on the management of the school an enforceable right against the Government, as the same was entirely a matter between the management and the Government. This case is equally distinguishable from the case on hand as the grant-in-aid Code under consideration therein was non-statutory in nature.

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The Judgment of the Supreme Court in TIKARAM V/s. MUNDIKOTA SHIKSHAN PRASARAK MANDAL^[4] is relevant. Therein, the Supreme Court was dealing with a situation where the Director of Education of the State had passed an order in connection with the disciplinary action taken against a teacher by a private Educational Institution under the non-statutory School Code. The High Court dismissed the writ petition filed by the employee on the ground that as a Teacher in a private school, he could not enforce the nonstatutory rules contained in the School Code. Disagreeing with the High Court, the Supreme Court observed that the grievance of the employee was against the quasi-judicial proceeding passed by the Director of Education, an Officer of the Government, though in a case arising under a non-statutory School Code and accordingly, held that the writ petition was maintainable under Article 226 of the Constitution.

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Sri Pratap Narayan Sanghi, learned counsel for the petitioner, placed reliance on GHULAM QADIR V/s. SPECIAL TRIBUNAL^[5] wherein the Supreme Court observed as hereunder:

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“38. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the

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development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hypertechnical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his having not the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi.”

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Admission/Absorption in an aided post vests the incumbent with entitlement and eligibility to aspire for beneficial Government schemes and pension. An adverse order in this regard therefore has serious civil consequences. A Lecturer subjected to such an order is a ‘person aggrieved’ for the purposes of Article 226 of the Constitution. It cannot therefore, be said that the petitioner does not have the locus to maintain the writ petition. The facts aforestated clearly establish a case of discrimination by the State authorities, whereby all the other Junior Lecturers in the third respondent College who were identically situated were treated differently from the petitioner. Having exercised their discretion consistently in all the other cases, it is not open to the State authorities to take a different stand only in the case of the petitioner. It is pertinent to note that by exercise of such discretion there was no violation of any binding Rule or Regulation. The authorities merely chose to condone the lapses so as to effect the retrospective absorption of the unaided Lecturers working in the third respondent College in aided posts. Harking back to such requirements only in the case of the petitioner, having overlooked or excused the same in the cases of all the other Junior Lecturers, offends the principles of equality and fair play in action embodied in Article 14 of the Constitution.

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The impugned order dated 12.05.2004 passed by the Director of

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Intermediate Education, Andhra Pradesh, Hyderabad, is therefore set aside. The respondents are hereby directed to reconsider the case of the petitioner for regularization of her services and for her absorption in the aided post of Junior Lecturer in Maths in the third respondent College with effect from 09.12.1994 on par with Mohd. Ayazuddin, the other Junior Lecturer in Maths, with all consequential benefits. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order.

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The writ petition is accordingly allowed, but in the circumstances, without any order as to costs.

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SANJAY KUMAR, J.

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______ FEBRUARY, 2010. PGS/VGSR

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