THE HON'BLE Dr.JUSTICE K. MANMADHA RAO
WRIT PETITION No.20816 and 24191 of 2017
COMMON ORDER:
Writ Petition No.20816 of 2017 is filed under Article 226 of the
Constitution of India, claiming the following relief:
".....Issue an order or direction more particularly one in the nature of
to declare the action of the Respondents as illegal, irregular and
violative of Article 14, 16 and 21 of the constitution of India in violation of Rule 12(8) of G.O.Ms.No.1, dated 01.01.1994 contrary to G.O.Ms.No.62 Education dated 31.01.2006 in not approving petitioners appointments made on 27.08.2003 and reported to duty on 28.08.2003 by issuing Writ of Mandamus and consequently direct the respondents to consider petitioners cases for approval of petitioners selection and appointments made as one Drawing Teacher and the Second Petitioner appointment made as Maths School Assistant in the 5th respondent Institution and pass such other orders."
Writ Petition No.24191 of 2017 is filed under Article 226 of the Constitution of India, claiming the following relief:
".....Issue an order or direction more particularly one in the nature of to declare the action of the Respondents as illegal, irregular and violative of Article 14, 16 and 21 of the constitution of India, in violation of Rule 12(8) of G.O.Ms.No.1, dated 01.01.1994 contrary to G.O.Ms.No.62 Education dated 31.01.2006 in not approving petitioners appointments as Music Teacher made on 27.08.2003 and reported to duty on 28.08.2003 by issuing Writ of Mandamus and consequently direct the respondents to consider petitioners cases for approval of their selection and appointment made as Music Teacher i.e School Assistant in the 5th respondent Institution and pass such other orders."
2. Since the facts and issue involved in both the writ petitions is one and the same, I find it expedient to decide both the matters by common order.
3. For the sake of convenience, W.P.No. 20816 of 2017 is taken as leading case.
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4. Heard the learned counsel for the petitioners and the learned counsel for the respondents.
5. The brief case of the petitioners in W.P.No. 20816 of 2017 is that the 2nd respondent issued proceedings vide R.C.No. 2455/B2- 3/2002, dated 09.09.2002 granted permission to the 5th respondent to fill up the vacant aided teaching posts. Accordingly, the 5th respondent issued notifications in News papers dated 10.03.2003 and another on 11.06.2003 calling for the applications from the eligible candidates. The selection was taken place on 27-8-2003 with the department nominee i.e. The Deputy Education Officer. The Management forwarded the entire selection process to the Competent Authority, but the 3rd respondent did not approve the selections and referred the matter to the 2nd respondent. Though the sections were made following the rules without any deviation yet the respondent did not approve the post on different grounds. The main ground is that the Government imposed ban by issuing a ban memo No.12080/COSE/A2/2004, dated 20.10.2004. In fact the permission was granted prior to the ban Memo and the petitioners were selected on 28.08.2003 much prior to the ban memo. A batch of writ petitions were filed questioning the ban memo dated 20.10.2004 and this Court allowed the same and also batch of writ appeals were filed. The Writ Appeal No.1578/2005 and batch passed orders by Division Bench this that the ban imposed under the memo dated 20.10.2004 on the recruitments against the existing vacancies is not applicable to the cases in which permission has already been granted by the District Educational Officer or Regional Joint Director and also held that the exercise of Rationalization under taken by the Departmental Authorities was violative of Rule 10(17) read with Rule 10(12) and the 3 norms prescribed by the Government vide G.O.Ms.No.103 dated 05.08.2003. Accordingly, the batch of writ petitions filed by the Government was dismissed. The Division Bench of this Court had not held that the selections which were permitted and made prior to 03.06.2003 alone were valid in view of the ban imposed as per the memo dated 20.10.2004. The 2nd respondent issued proceedings in R.C.No.2455/B2 3/2002 dated 09.09.2002 accorded permission to fill up the 5 vacant aided posts and a departmental nominee fixed the date as 27.08.2003 and the selection committee conducted a written test and an oral interview and the petitioners were selected which is evident from the copy of the minutes of the selection test held on 27.08.2003 at H.C.M. Junior College, Ongole. Since, the permission and selections took place long prior to the ban memo issued on 20.10.2004 and the respondents cannot reject the approval of the selected candidates on the ground of the ban.
6. While things thus stood, one Sri Mahalakshmi filed Writ petitions No.24050 of 2005 and 7551 of 2007 and same is allowed by this Court by directing the respondents to approve the selection and appoint her in the post of School Assistant (Maths).
7. Petitioner further contended that as per appointment orders the petitioners reported to duty on 28.08.2003 and they were continued up to 2006, but, due to financial problems and non- approval of their posts they could not get the aided salary and could not continue to work. Hence, the petitioners approached the respondents, but the respondents have not taken any action so far. Hence the inaction of the respondents questioned in the writ petition and requested to issue a direction as stated supra. 4
8. Per contra, the respondents filed counter by denying all material averments made in the writ affidavit and contending that the 5th respondent had issued appointment orders to the selected individuals without approval of the competent authority and the same had been admitted by the petitioners in their affidavit. So, the 3rd respondent had noticed some defects that the 5th respondent addressed to the District Employment officer on 21.03.2003 duly mentioning that the list is valid for 3 months from the date of issuance, but the Departmental Nominee has considered the said list after date of expiry and the selections were made and submitted a report dated 01.09.2004 to the 2nd respondent stating that the 4th respondent has not rectified the defects as made out by the 3rd respondent. The 2nd respondent issued instructions vide proceedings dated 08.04.2005 for approval of selection cannot be considered for the reasons submitted by the 3rd respondent and also stated that there is ban on filling up of posts in Private Aided Institutions.
9. It is further contended that the petitioners admitted that they have been appointed by the 5th respondent without any approval from the competent authority. Therefore it is very clear that the 5th respondent without any authority, illegally appointed the petitioners as against the aided vacancies without any approval from the competent authority in the year 2003 and it is an admitted fact that the petitioners worked till 2005 and no reasons putforth thereon. It is only after disposal of the W.P.No.24050 of 2005, dated 02.06.2017, this writ petition came to be filed. Assailing the said order the Government preferred Writ Appeal No.412 of 2018, which is pending.
10. It is further contended that the 3rd respondent passed orders dated 29.06.2004 rejected the selections made by the 5th 5 respondent as the same was done in contravention of the rules in vogue. The petitioners not challenged the same, as such it has become final and the W.P.No. 20769 of 2005 is disposed of in terms of Writ Appeal No. 1578 of 2006. As per the same the selection made prior to 03.06.2003 were permitted to continue. In the instant case, the selections have been made after 03.06.2003 i.e on 28.08.2003. Therefore, the petitioners have no right to agitate the same in the writ petition. Further the petitioners have left the 5th respondent school in the year 2005, after long lapse of 12 years, the present writ petition is filed as such this writ petition is misconceived and barred under law. Hence the writ petition is liable to be dismissed.
11. The petitioners filed reply affidavit by denying the material averments in the counter affidavit and contended that the defects pointed out by the respondents are all well answered in the Judgment of Mahalakshmi's case. The petitioners are continuing without any break. On 31.01.2019 the Management also issued a letter in respect of continuance of their service and also attended the spot valuation of Board of Intermediate Education for the March, 2019. Smt. Mahalakshmi aggrieved by the non approval of her post as B.Ed Assistant in Maths filed writ petitions and as per directions of this Court in W.P.No.24050 of 2005 and W.P.No. 7551 of 2007 her post was approved and she was getting aided salary. Therefore when the appointments were pending approval question of 12 years delay does not arise. Hence, the petitioners are also eligible for the same benefits as per W.P.No.24050 of 2005 and W.P.No.7551 of 2007. Therefore, the petitioners are entitled the relief as prayed for.
12. It is the contention of the respondents that the District Employment Exchange Officer sponsored the list of candidates on 6 21.03.2003 which was valid for 3 months only but the selection was held on 27.08.2003 and therefore, the selection was invalid. This argument has no legs to stand. The selection procedure had in fact commenced with issuance of press notification on 11.06.2003 by making paper publication in Telugu Newspaper Andhra Jyothi, pursuant to which, some candidates directly applied. Thus selection procedure was commenced within three (3) months after the list of the candidates was sent by the District Employment Exchange Officer. Of course, selection was held on 27.08.2003. However by virtue of the paper notification, apart from the candidates sponsored by the District Employment Exchange Officer on 21.03.2003, other candidates who responded to the paper notification also got an opportunity to participate in the selection procedure. Those candidates may include those who got registered their names with the employment exchange subsequent to 21.03.2003. Thus it can be said that the paper notification has served the purpose of disseminating the information of the notification. In its judgment dated 11.08.2014 in W.A.No.1129 of 2014, the Division Bench of this High Court has observed that with the introduction of other modes of publication, the role of employment exchanges has been reduced. It was held thus:
"Though employment exchange used to be the only source for sponsoring candidates few years ago, for all practical purposes, the registration with the employment exchange has become redundant, wherever the procedure provides for issuance of notification. Once a notification is issued, not only those who get themselves registered with the employment exchange, but also others can apply. No distinction exists in law on the basis of mere registration in the employment exchange. There are several precedents handed out by the Supreme Court, which are to the effect that the employment exchanges are no longer the exclusive sources for drawing the candidates for employment."
Thus in any view, the argument of the respondents has no force.
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13. The further argument of the respondents is that the petitioner has not been working in the HCM Junior College for Girls (HS), Ongole. It is thus argued that since the petitioners have not been working in HCM Junior College for Girls (HS), Ongole, their selection cannot be approved. The reply of the petitioner is that the petitioners have been working in the said school and since they filed the writ petitions, the authorities might not have shown their names in the attendance register. In my view, the contention of the respondents is untenable. When it is the contention of the respondents that the petitioners' selection cannot be approved due to some alleged lapses, they cannot turn-round and argue that petitioners were not attending the institution. Thus, the contentions raised by the respondents are devoid of merits.
14. In the result, the two Writ Petitions are allowed and the order of 3rd respondent in RC No.1515/A3/2003, dated 15.09.2005 rejecting the approval of the petitioners appointment as School Assistant is held arbitrary, illegal and violative of Articles 14 and 21 of the Constitution of India and consequently, respondents 1 to 4 are directed to approve the selection and appointment of the 1st petitioner as Drawing Teacher and 2nd petitioner as School Assistant (Maths) and also the petitioner in W.P.No.24191 of 2017 as Music Teacher i.e School Assistant in the 5th respondent institution w.e.f. 28.08.2003 with all the benefits attached to the post and issue suitable orders within four (04) weeks from the date of receipt of a copy of this order. No order as to costs.
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As a sequel, miscellaneous applications pending, if any, shall also stand closed.
___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 15.06.2022.
KK 9 THE HON'BLE Dr.JUSTICE K. MANMADHA RAO WRIT PETITION No.20816 and 24191 of 2017 Date: 15.06.2022.
KK