Allowed

S. Fakruddin v. The Government of A.P.

Telangana HC29 Nov 2011WP/14861/2011

Case brief

AI extract

What is this about?

In three writ petitions, the Court allowed relief against the Government of A.P. rejecting claims for pension and grant-in-aid. The Court held that the Government ban on appointments could not apply retrospectively to selections made prior to the ban, directing respondents to reconsider claims on par with similar cases.

What did the court decide?

Respondents directed to consider petitioners' claims for admission into grant-in-aid and bestow equivalent benefits on par with D.Musal Reddy and P.Kasi Reddy cases after due notice.

S. Fakruddin Vs The Government of A.P. — Pension and Retirement Benefits | Telangana HC (2011)

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THE HONOURABLE SRI JUSTICE G.CHANDRAIAH

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WRIT PETITION NO:14861, 11844 & 16955 of 2011

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W.P.M.P.NO:26358 OF 2011 IN W.P.NO:16955 OF 2011 DATE:29.11.2.2011

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WP 14861 OF 2011 BETWEEN: S.FAKRUDDIN.

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…PETITIONER

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AND

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THE GOVERNMENT OF A.P. REP BY ITS PRINCIPAL SECRETARY, EDUCATION DEPT & OTHERS.

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…RESPONDENTS

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WP 16955 OF 2011 BETWEEN: Y.V.SHEELA REDDY

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…PETITIONER

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AND

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THE GOVERNMENT OF A.P. REP BY ITS PRINCIPAL SECRETARY, EDUCATION DEPT & OTHERS. …RESPONDENTS WP 11844 OF 2011 BETWEEN: Y.RUKMANGADA REDDY & OTHERS.

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…PETITIONERS

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AND

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THE GOVERNMENT OF A.P. REP BY ITS PRINCIPAL SECRETARY, EDUCATION DEPT & OTHERS.

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…RESPONDENTS

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THIS COURT MADE THE FOLLOWING:

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THE HONOURABLE SRI JUSTICE G.CHANDRAIAH

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WRIT PETITION NO:14861, 16955 & 11844 of 2011

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W.P.M.P.NO:26358 OF 2011 IN W.P.NO:16955 OF 2011

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COMMON ORDER:

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WRIT PETITION NO:14861 OF 2011

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The writ petition is filed by the petitioner seeking for a writ of mandamus to declare the action of the respondent in not granting the pension and pensionary benefits and other consequential benefits to him and also not paying the arrears of salary w.e.f 28.10.1994 on par with the similarly situated staff working in the 5^th respondent school and other schools basing on the High Level Committee recommendations in Lr.Rc.No:1452/D2-1/1994 dated 28.10.1994 as illegal, arbitrary and voilative of principles of natural justice as well as Articles 14,16 and 21 of the Constitution of India and consequently, to direct the respondents to release the arrears of salary, pension and pensionary benefits with all consequential benefits to him on par with the similarly situated staff working in the 5^th respondent school and other schools vide G.O.Ms.No:144, dated 1.10.2004 and Government Memo No:10090/PS1/A1/2008, dated 30.7.2009 and basing on the High Level Committee recommendations in Lr. Rc.No:1452/D2-1/1994, dated 28.10.1994.

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Heard the learned counsel for the petitioner and the learned G.P. for School Education.

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The case of the petitioner is that the 5^th respondent-school was

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originally established in the year 1979-80 as an Upper Primary School and subsequently, it was upgraded as High School in the year 1980 vide G.O.Rt.No:756, dated 29.5.1990. Basing on the said permission granted by the 1^st respondent, the 5^th respondent-Management appointed qualified staff both teaching and non teaching as per the Rules in force and the said action of the 5^th respondent was ratified and approved by the District Educational Officer, Kurnool vide proceedings Rc.No:10202/B2/1993, dated 16.5.1993 i.e., with effect from the date of his appointment in the unaided post as Junior Assistant on 12.6.1981. Ever since, he worked as Junior Assistant in the 5^th respondent school without any break till his retirement. The 5^th respondent-school and the petitioner put their efforts for admitting the appointment of the petitioner against the grant in aid existing in the 5^th respondent-school. But, the 1^st respondent rejected the case of the petitioner and others vide G.O.Ms.No:2, dated 11.1.2006 basing on the review of High Level Committee report of the 3^rd respondent on the ground that the general ban was imposed by the Government by memo dated 20.10.1984. Hence, the present writ petition is filed.

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WRIT PETITION NO:16955 OF 2011

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The writ petition is filed by the petitioner seeking for a writ of mandamus to declare the action of the respondent in not admitting his post into grant in aid basing on the recommendation made by the High Level Committee vide Rc.No:1452/D2/94, dated 28.10.1994 on par with the similarly situated persons who are working in 5^th respondent school and whose posts were admitted into grant in aid, as illegal, arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India and consequently, to direct the respondents to release the entire arrears of salaries attached to his post including all consequential benefits with effect from the date of High Level Committee Recommendations.

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Heard the learned counsel for the petitioner and the learned G.P. for School Education.

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The case of the petitioner is that the 5^th respondent-school was originally established in the year 1979-80 as an Upper Primary School and subsequently, it was upgraded as High School in the year 1980 vide G.O.Rt.No:756, dated 29.5.1990. The Government issued Memo dated 27.5.1986 deciding to admit grant in aid to all schools which were opened after 1.4.1977 and the High Level Committee recommended certain schools for grant in aid vide letter dated 28.10.1994. The Director of School Education vide his proceedings in L.Dis.No:3336/D1-2/93, dated 6.4.1994 have ratified the creation of the posts including the post of the petitioner as Record Assistant. The petitioner was appointed on 12.6.1981 as Record Assistant in the 5^th respondent school in an unaided sanctioned post and his appointment was approved by the District Educational Officer, Kurnool by his proceedings in Rc.No:10202/B2/1993, dated 16.5.1994 with effect from the date of his appointment to the unaided post. Ever since, he has been working as Record Assistant in the 5^th respondent school without any break. But, the 1^st respondent rejected the case of the petitioner and others vide G.O.Ms.No:2, dated 11.1.2006 basing on the review of High Level Committee report of the 3^rd respondent on the ground that the general ban was imposed by the Government by memo dated 20.10.1984. Hence, the present writ petition is filed.

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WRIT PETITION NO:11844 OF 2011

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The writ petition is filed by the petitioners seeking for a writ of mandamus to declare the action of the respondents in not admitting their posts into grant in aid basing on the High Level Committee recommendations in Lr.Rc.No:1452/D2-1/1994 dated 28.10.1994 on par with the similarly situated persons who are working in 5^th respondent school and whose posts were admitted into grant in aid, as illegal, arbitrary and voilative of principles of natural justice as well as Articles 14,16 and 21 of the Constitution of India and consequently, to direct the respondents to release the arrears of salaries attached to their posts including all consequential benefits with effect from the date of their appointments.

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Heard the learned counsel for the petitioners and the learned G.P. for School Education.

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The case of the petitioners is that the 5^th respondent-school was originally established in the year 1979-80 as an Upper Primary School and subsequently, it was upgraded as High School in the year 1980 vide G.O.Rt.No:756, dated 29.5.1990. The Government issued Memo dated 27.5.1986 deciding to admit grant in aid to all schools which were opened after 1.4.1977 and the High Level Committee recommended certain schools for grant in aid vide letter dated 28.10.1994. The Director of School Education vide his proceedings in L.Dis.No:3336/D1-2/93, dated 6.4.1994 have ratified the creation of the posts including the post of the petitioners. The petitioners were appointed as S.G. Assistant (Social), School Assistant, S.G. Assistant respectively with roster point in 5^th respondent school and their posts were approved by the Regional Joint Director of School Education, Kadapa vide Rc.No:1061/B2/2001, dated 20.10.2002, Rc.No:1061?b2/2011, dated 29.3.2001 and Rc.No:4621/B2/2001, dated 19.1.2002 respectively. Ever since, they have been working in the respective posts in the 5^th respondent school without any break. But, the 1^st respondent rejected the case of the petitioner and others vide G.O.Ms.No:2, dated 11.1.2006 basing on the review of High Level Committee report of the 3^rd respondent on the ground that the general ban was imposed by the Government by memo dated 20.10.1984. Hence, the present writ petition is filed.

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Before going into the merits of the case, it is to be noted that W.P.No:16955 of 2011 was dismissed on 28.6.2011 and on that, the petitioner has an application in W.P.M.P.No:26358 of 2011 seeking to set aside the order dated 28.6.2011 passed in W.P.No:16955 of 2011 and restore the writ petition to the original file.

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For the reasons stated in the affidavit filed in support of the application, W.P.M.P.26358 of 2011 is ordered and W.P.No:16955 of 2011 is directed to be restored to file and this writ petition is also taken up in view of the similar issue in all the present writ petitions.

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Since the issue involved in all the writ petitions is one and the same and the petitioners in all the writ petitions are working under one and the same educational institution, i.e., the 5^th respondent, they are being disposed of by a common order.

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It is the further case of the petitioners in all the writ petitions that in case of similarly situated persons, this Court has passed orders in the writ petitions filed by them directing to pass appropriate orders in pursuance of the proposals without reference to the ban imposed by the Government memo dated 20.10.2004 and against the said orders, Writ appeal No:1578 of 2005 and batch were filed by the 1^st respondent and the said writ appeals were dismissed on 29.12.2006. On that, the 1^st respondent carried the matter before the Supreme Court in S.L.P.(Civil) No:9541 of 2007 and batch and the said S.L.P was dismissed. Therefore, the action of the respondents in not approving the selections is illegal and arbitrary. Hence, the present writ petition is filed.

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In all these writ petition, no counter is filed on behalf of the respondents.

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While relying on the unreported judgments of this Court in W.P.No:21755 of 2005, dated10.2.2011 and W.P.No:19264 of 2006, dated 7.6.2011, the learned counsel for the petitioners would submit that in case of similarly situated persons, this Court allowed the writ petitions directing to consider their cases for grant in aid and therefore, the petitioners in all the present writ petitions are also entitled to the said benefit.

¶43

Now, it is relevant to go through the judgment of this Court passed in W.P.No:21755 of 2005, which was filed by Smt.G.Shakuntala seeking for a writ of mandamus to declare the action of the respondents in issuing Memo No:12080/COSE/A4/2004, dated 20.10.2004 contrary to the provisions laid down in the Act 1982 and G.O.Ms.No:2, Education (SEPS) Department dated 11.1.2005 by the 1^st respondent, as illegal, improper and contrary to the guidelines issued by this Court and the judgment of the Apex Court and set aside the same and consequently, to direct the respondents-1 and 4 to admit the post of the petitioner into grant in aid

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with effect from the date of recommendation made by the High Level Committee vide letter dated 28.10.1994 on par with the similarly situated persons who are working in the 3^rd respondent school with all consequential benefits.

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The said writ petition was allowed on 10.2.2011 observing thus: “Therefore, I am of the opinion that as the petitioner is qualified to hold the post of Telugu Pandit and her appointment was also approved and ratified and the said post was also recommended for admission into grant in aid as long back as on 28.10.1994 by the High Level Committee and such posts in various similarly situated schools were admitted to grant in aid, it cannot be said that the petitioner is not entitled for admission to grant in aid. Accordingly, the impugned order in so far as it rejects the case of the petitioner from being admitted to grant in aid is set aside and the writ petition is allowed directing the respondents to reconsider the case of the petitioner on par with the case of D.Musal Reddy and P.Kasi Reddy conferring similar benefits as was done under G.O.Ms.No:144 School Education (PS.I) Department dated 1.10.2004 and pass appropriate orders in accordance with law.

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Consequently, the writ petition is allowed, as stated above. No order as to costs.”

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Another judgment of this Court relied on by the learned counsel pertains to W.P.No:19264 of 2006 which was filed seeking for a writ of mandamus to declare the action of the respondents in issuing the impugned memo No:8059/PS-1/A1/2006, dated 27.5.2006 and its consequential proceedings of the 3^rd respondent in Rc.No:2870/B43/2005, dated 17.7.2006 contrary to the provisions laid down in the A.P. Grant in Aid Regulation Act 22 of 2008 as illegal, improper, contrary to the guidelines issued by this Court and the judgment of the Apex Court and to set aside the same and consequently, to direct the respondents to admit the post of the petitioners into grant in aid with effect from the date of recommendation made by the High Level Committee vide letter dated 28.10.1994 on par with the similarly situated schools.

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The said writ petition in W.P.19264 of 2006 was allowed on

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7.6.2011 observing thus:

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“For the aforesaid reasons and in view of the orders of this Court in W.P.No:21755 of 2005 dated 10.2.2011, the impugned orders rejecting the claim of the petitioners for admission into grant in aid are set aside. The writ petition is allowed directing the respondents to reconsider the case of the petitioners on par with the case of D.Musal Reddy and P.Kasi Reddy of Sri Vivekananda Gurukula Vidyalayam High School, Mahanandi, Kurnool District conferring similar benefits as was done in G.O.Ms.No:144, School Education (PS.I) Department, dated 1.10.2004, after due notice to the petitioners and pass appropriate orders in accordance with law. There shall be no order as to the costs.”

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Apart from that, while submitting that the administrative orders are prospective in nature and therefore, the orders of the Government imposing ban on the appointments, cannot be made applicable as retrospective in nature, the learned counsel for the petitioner relied on the judgment of the Apex Court reported in GOVERNMENT OF A.P. AND OTHERS VS. SRI SEVADAS VIDYAMANDIR HIGH SCHOOL AND OTHERS (^[1] ) wherein it is laid down thus:

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“Even the approval which was granted for filling up the vacant aided posts, had been granted after due scrutiny as to the requirements of the schools in question. Since it is well settled that administrative orders are prospective in nature, unless they are expressly or by necessary implication made to have retrospective effect.”

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The fact that remains undisputed is that the selections in question were made much prior to the orders of the Government, dated 20.10.2004 imposing ban on the appointments.

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In the light of the principles laid down by the Apex Court, the order of the Government imposing ban that has been passed subsequent to the approval of the selection of the candidates in question, cannot be made applicable as retrospective in nature.

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For the reasons stated in the foregoing paragraphs and in view of the principles laid down by the Apex Court in the judgment (Citation 1 supra) and in view of the judgments of this Court in W.P.No:19264 of

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2011, dated 7.6.2011 and W.P.No:21755 of 2011, dated 10.2.2011 I feel it just and proper to direct respondents to consider the claim of the petitioners in all the writ petitions for admission into grant in aid on par with the case of Sri D.Musal Reddy and P.Kasi Reddy of Sri Vivekananda Gurukula Vidyalayam High School, Mahanandi, Kurnool District conferring similar benefits as was done in G.O.Ms.No:144, School Education (PS.I) Department, dated 1.10.2004, after due notice to all the petitioners and pass appropriate orders in accordance with law.

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With the above direction, all the writ petitions are disposed of. There shall be no order as to the costs.

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__________________ Justice G.Chandraiah.

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Date:29.11.2011

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Gurc.

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THE HONOURABLE SRI JUSTICE G.CHANDRAIAH

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WRIT PETITION NO:14861, 11844 & 16955 of 2011

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W.P.M.P.NO:26358 OF 2011 IN W.P.NO:16955 OF 2011

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DATE:29.11.2011

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[1] (2011) 9 SUPREME COURT CASES 613

S. Fakruddin v. The Government of A.P.

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S. Fakruddin v. The Government of A.P.

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