Allowed

Prl. Secy., Education Dept. and 2 Ors. v. C. Sithalakshmi and Ano.

Telangana HC27 Oct 2014WA/1261/2014

Case brief

AI extract

What is this about?

The High Court allowed this appeal dismissing a petition seeking teacher regularization backdated to 1994. The Court held that a teacher appointed without qualifications cannot bypass the 1997 regularization scheme, which commenced regularization only from 1 April 1997. The earlier Supreme Court precedent on illegal appointments did not support retrospective regularization from inception dates pri

What did the court decide?

Writ Appeal allowed; impugned order of Single Judge setting aside the lower appeal order on 24.04.2014 is set aside. Writ petition No.23504 of 2004 dismissed.

Prl. Secy., Education Dept. and 2 Ors. Vs… — Pension and Retirement Benefits | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE CHALLA KODANDA RAM

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WRIT APPEAL No.1261 of 2014

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JUDGMENT: (Per the Hon’ble Sri Justice L.Narasimha Reddy)

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This writ appeal is filed against the order, dated 24.04.2014 passed by the learned Single Judge in W.P.No.23504 of 2004 filed by the first respondent herein. The appellants herein are respondent Nos.1 to 3 in the writ petition. The second respondent herein is the fourth respondent in the writ petition.

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The first respondent was appointed as Telugu Pandit Grade II in the second respondent upper primary school on 16.06.1986. The qualification for the post is a degree with a subject in Telugu and a pass in B.Ed. The first respondent did not possess the minimum qualification as on the date of her appointment. It was only in the year 1992, she acquired it. The second respondent institution was admitted to grant in aid, through G.O.Ms.No.365, Education (PS-2) Department, dated 10.10.1994 with prospective effect. However, the G.O. did not specify that it proposes to admit any particular teacher against the posts that are admitted to grant in aid.

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The first respondent submitted a representation, dated 27.11.2000 to the appellants herein with a prayer to admit her against an aided vacancy, with effect from the date on which the institution itself was admitted to grant in aid. In a way, she claimed exemption under G.O.Ms.No.782, Education (H1) Department, dated 09.09.1982. Through order, dated 07.12.2000, the Regional Joint Director of School Education, informed that the case of the first respondent cannot be accepted since it is opposed to G.O.Ms.No.524, Education, dated 21.12.1988, and G.O.Ms.No.1, Education (PS-2), dated 01.01.1994. Aggrieved by the said order, the first respondent filed W.P.No.6883 of

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1996.

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During the pendency of the said writ petition, a substantial and general development has taken place concerning the entire Education Department. A batch of writ petitions has been filed before this Court by the private aided institutions and the employees working therein, for regularization of services, duly granting exemption from the requirement of obtaining prescribed qualifications. A Division Bench of this Court passed a common judgment in W.P.No.15921 of 1989 and batch, dated 31.12.1996, issuing directions to be followed in this behalf. It was directed that the Government shall constitute a high power committee to work out the modalities for regularisation of the services of the employees, who did not possess the prescribed qualifications. One of the important directions issued therein was that whenever the service of such an employee is to be regularised, it shall be with effect from 01.04.1997. In compliance with the judgment referred to above, the Government issued G.O.Ms.No.301, Education (PS) Department, dated 25.09.1997 constituting a committee, which in turn has prescribed the guidelines. Selections were undertaken throughout the State in accordance with that. The first respondent has also been extended the benefit of regularization through G.O.Ms.No.32, Education (PS-1) Department, dated 25.01.1999, with effect from 01.04.1997.

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Claiming that she is entitled to be regularized with effect from the date on which the institution was admitted to grain in aid, the first respondent filed W.P.No.23504 of 2004. The learned Single Judge allowed the writ petition through order, dated 24.04.2014. Hence, this Writ Appeal.

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Heard learned Government Pleader for School Education for the appellants and Sri M.V.Raja Ram, learned counsel for the first respondent.

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It is not in dispute that the first respondent did not hold the prescribed qualification, by the time she was appointed in 1986 as Telugu Pandit Grade II. It is also a matter of record that the second respondent institution itself was not admitted to grant in aid by that time. The first respondent acquired the qualification of B.Ed in the year 1992. However, the same cannot lead to regularization of her appointment as Telugu Pandit Grade II, which is otherwise irregular.

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Through proceedings, dated 24.03.1996, the third appellant informed that regularization of services of the first respondent is not feasible, by referring to the relevant G.Os. i.e., G.O.Ms.Nos.524 and 1. Even while the writ petition challenging the said proceedings was pending, the first respondent was extended the benefit of regularization through G.O.Ms.No.32.

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It has already been mentioned that G.O.Ms.No.32, regularising the services of various teachers including the first respondent, was issued as a part of the scheme framed by this Court, in its common judgment in the batch of writ petitions referred to above. G.O.Ms.No.301 was issued regularizing the services of hundreds of teachers through out the State who did not possess requisite qualification under the scheme. In the common judgment, their Lordships held as under:

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“The respondents concerned will extend the benefit of grant in aid for the posts held by these teachers, found suitable for continuance, with effect from 01.04.1997, provided they have been appointed against clear vacancies and sanctioned posts.”

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No provision is made for regularization of services from any date anterior to 01.04.1997. If the first respondent is of the view that she is entitled to regularization from any date anterior to 01.04.1997, she ought not to have availed the benefit of the exercise undertaken in pursuance of the common judgment of this Court. Once the

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regularization was made as a part of the exercise undertaken thereunder, she cannot carve out an exemption to herself. The learned counsel for the first respondent is unable to state that there exist any basis for directing regularization of the services of the first respondent from any date, anterior to 01.04.1997.

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Reliance is placed upon the judgment of the Supreme Court in State of Orissa vs. Mamata Mohanty^[1] . That was a case, in which, the Hon’ble Supreme Court dealt with the appointments of Lecturers in Colleges that are under the purview of the University Grants Commission. It was almost in exercise of discretion under Article 142 of the Constitution, that their Lordships directed as under:

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“In the facts and circumstances of the case, we feel that terminating the services of those who had been appointed illegal and/or withdrawing he benefits of grant-in-aid scheme of those who had not completed the deficiency in eligibility/educational qualification or withdrawing the benefit thereof from those who had been granted from the date prior to completing the deficiency, may not be desirable as a long period has elapsed. So far as the grant of UGC pay scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. In view of the above, the impugned judgment/order cannot be sustained in the eye of the law.”

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From the above, it is difficult to discern any principle of law, to the effect that whenever an institution is admitted to grant in aid, all the teachers working against the un-aided vacancies must be regularised with effect from the date of admission into grant in aid irrespective of the dates of absorption against aided vacancies. It does not need any separate exercise for regularisation, if the appointment of a teacher against un-aided post is made in accordance with the prescribed procedure and on holding prescribed qualifications. Once it is not in dispute that the first respondent did not hold the prescribed qualification as on the date of her appointment, she cannot claim the regularisation against that post, admitted to grant in aid, with effect from the date on which the institution was admitted to grant in aid.

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The learned Single Judge did not take these important aspects into account and has allowed the writ petition. It is curious to note that the direction was given to regularise the services of the first respondent from 01.08.1994 though the institution was not even admitted to grant in aid by that date. Even if that is to be treated as a clerical mistake, we are not satisfied on merits.

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The first respondent sought to draw comparison with another teacher, by name, Smt.V.Rajamani. It appears that the said teacher was appointed in the year 1982, and she has obtained the requisite qualification in the year 1979 i.e., much before her appointment and that the school in which she was working was obviously admitted to grant in aid by that time. That is not the case with the first respondent.

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It is brought to our notice that an interim order was passed in W.P.M.P.No.8424 of 1996 in W.P.No.6883 of 1996 directing the appellants to pay salary to the first respondent though her appointment was not regularized, nor approved against the grant in aid vacancy, and that under the threat of contempt, the arrears of salary were also paid. However, the first respondent has withdrawn the writ petition, once her services were regularized with effect from 01.04.1997. Strictly speaking, the amount paid in compliance with the interim order in W.P.No.6883 of 1996 deserves to be recovered. However, we direct that the appellants shall not recover the same but shall adjust the same in the terminal benefits of the first respondent. If it emerges that the terminal benefits are less than the amount so paid, the appellants shall not recover any amount from the first respondent.

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The Writ Appeal is accordingly allowed. The order under writ appeal, dated 24.04.2014, in W.P.No.23504 of 2004 is set aside and the writ petition is dismissed.

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Miscellaneous petitions, if any, shall stand closed. There shall

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be no order as to costs.

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_______________________ L.NARASIMHA REDDY, J.

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_____________________ CHALLA KODANDA RAM, J.

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27^th October, 2014 GHN

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[1] (2011) 3 SCC 436

Prl. Secy., Education Dept. and 2 Ors. v. C. Sithalakshmi and Ano.

Case brief

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Prl. Secy., Education Dept. and 2 Ors. v. C. Sithalakshmi and Ano.

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