THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.10061 OF 2017,
WRIT PETITION NO.10200 OF 2017,
WRIT PETITION NO.10248 OF 2017,
WRIT PETITION NO.3622 OF 2019,
WRIT PETITION NO.3912 OF 2019,
WRIT PETITION NO.3934 OF 2019,
WRIT PETITION NO.3467 OF 2021,
WRIT PETITION NO.3604 OF 2021,
WRIT PETITION NO.3637 OF 2021,
WRIT PETITION NO.8004 OF 2021,
WRIT PETITION NO.8294 OF 2021,
WRIT PETITION NO.20307 OF 2022,
WRIT PETITION NO.21552 OF 2022
AND
WRIT PETITION NO.22326 OF 2022
COMMON ORDER
In W.P.Nos.10061, 10200 and 10248 of 2017, the petitioners are
seeking a Writ of Mandamus declaring Para 4 of G.O.Ms.No.17,
Finance (HRM-II) Department, dt.03.02.2017 as amended vide
G.O.Ms.No.18, Finance (HRM-II) Department, dt.03.02.2017 to the
extent of filling up of 2,487 upgraded posts of School Assistant
W.P.No.10061/2017 & batch
(Total 14 Cases)
2
(Languages) only from the existing Language Pandits, i.e., Categories 3
to 13 of Class-II of Rule 2 of A.P. (Telangana) School Educational
Subordinate Service Rules issued in G.O.Ms.No.12, School Education
(Services-II) Department, dt.23.01.2009, as illegal, irregular, arbitrary
and contrary to Rule 2 of the said Rules and in violation of the
Constitutional Provisions and consequently to set aside the same to the
same extent and direct the respondents to consider the case of the
petitioners (SGTs) for promotion to the posts of School Assistant (Telugu)/School Assistant (Hindi), as the case may be, as per Rule 2 of A.P. School Educational Subordinate Service Rules issued vide G.O.Ms.No.12 dt.23.01.2009 with all consequential benefits and to pass such other order or orders as this Court may deem fit and proper in the interest of justice.
2. In W.P.Nos.3622, 3912 and 3934 of 2019, the petitioners are seeking a Writ of Mandamus declaring the action of the respondents in taking steps to fill up the upgraded posts of School Assistants (Languages) and (Physical Education) with the existing Language Pandits and Physical Education Teachers alone pursuant to the orders issued in G.O.Ms.No.15, Finance (HRM.II) Department, dt.16.02.2019 W.P.No.10061/2017 & batch (Total 14 Cases) 3 and the consequential Government Memos dt.16.02.2019, 17.02.2019, 18.02.2019 and 20.02.2019 issued directing the DEOs to fill the upgraded posts of School Assistants (Languages) and School Assistants (Physical Education) by absorption of Language Pandits and Physical Education Teachers by ignoring the statutory rules issued in G.O.Ms.No.12 dt.23.01.2009, as illegal and arbitrary and consequently to direct the respondents not to fill up the said upgraded posts.
3. In W.P.Nos.3467, 3604, 3637, 8004 and 8294 of 2021, the petitioners are seeking a Writ of Mandamus declaring the action of the respondents in not filling up the vacancies of the School Assistants (Languages) and (Physical Education) existing as on 04.02.2021, i.e., prior to the amendment of Rule 2 of the A.P. School Educational Subordinate Service Rules issued in G.O.Rt.No.03 dt.05.02.2021, with the common seniority list of Secondary Grade Teachers (SGTs) and Language Pandits and other equivalent categories as required under unamended Rule 2 of the A.P. (Telangana) School Educational Subordinate Service Rules by applying the principle laid down by the Hon'ble Apex Court in the case of Y.V.Rangaiah and others Vs. W.P.No.10061/2017 & batch (Total 14 Cases) 4 J.Sreenivasa Rao and others 1, as illegal and arbitrary and consequently to declare the petitioners to be entitled to be promoted as per the pre- amended rules with all consequential benefits.
4. In W.P.Nos.20307, 21552 and 22326 of 2022, the petitioners are challenging G.O.Ms.No.110, Finance (HRM-II) Department, dt.05.10.2021 withdrawing the orders issued in G.O.Ms.No.17 and G.O.Ms.No.18 dt.03.02.2017 with respect to upgradation of certain posts of Language Pandits and Physical Education Teachers as School Assistants (Languages) and (Physical Education), as illegal and arbitrary and in violation of the law laid down by the Hon'ble Apex Court in the case of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra).
5. Brief facts leading to filing of the present Writ Petitions are that the petitioners are all working as Secondary Grade Teachers (SGTs). The SGTs, Language Pandits and Physical Education Teachers and School Assistants are all teachers governed by the A.P. School Educational Subordinate Service Rules issued in G.O.Ms.No.12 1 (1983) 3 SCC 284 W.P.No.10061/2017 & batch (Total 14 Cases) 5 dt.23.01.2009. As per Rule 2 of the said Rules, the methods of appointment to the posts of School Assistants, i.e., Categories 1 to 17 of Class-I are (i) by direct recruitment and (ii) by promotion from Categories 1 to 25 of Class-II. Thus, for the posts of School Assistants, i.e., Categories 1 to 17 of Class-I, the posts of Secondary Grade Teachers and Language Pandits, etc., Categories 1 to 25 of Class-II are all the feeder categories. While the same was the statutory position, the 1st respondent issued G.O.Ms.No.17, Finance (HRM-II) Department, dt.03.02.2017 upgrading 2,487 Language Pandit Posts to that of School Assistants (Language) and 1047 Physical Education Teacher posts as School Assistants (Physical Education) by suppressing 392 surplus vacant posts of SGTs. Further, on the same day i.e., 03.02.2017, G.O.Ms.No.18 was issued Amendment Order for absorption of Existing Language Pandits and Physical Education Teachers as School Assistants (Languages) and School Assistants (Physical Education Teachers) as per their seniority and eligibility in terms of G.O.Ms.Nos.11 and 12, School Education (Services-II) Department, dt.23.01.2009. Subsequently, vide G.O.Ms.No.15, Finance (HRM.II) Department, dt.16.02.2019, 6,143 posts of Language Pandits and 802 posts of Physical Education Teachers W.P.No.10061/2017 & batch (Total 14 Cases) 6 (PETs) were upgraded as School Assistants (Languages) and School Assistants (Physical Education). The Government and the Director of School Education have issued various Memos and proceedings dt.16.02.2019 to 20.02.2019 directing the District Educational Officers to fill up the said posts by absorption of Language Pandits and PETs. It is submitted that W.P.No.3744 of 2019 and batch were filed challenging the proceedings dt.20.02.2019 and a consequential direction was sought to consider the cases of the petitioners for promotion to the post of School Assistants (Languages) as per Rule 2 of the Telangana School Educational Subordinate Service Rules with all consequential benefits. Vide orders dt.13.03.2019, interim orders were granted suspending the impugned orders with a direction to list along with W.P.No.10061 of 2017.
6. Further, on 05.02.2021, G.O.Rt.No.03 dt.05.02.2021 was issued amending Rule 2 of the A.P. School Educational Subordinate Service Rules issued in G.O.Ms.No.12 dt.23.01.2009, to the effect that the posts of SGTs were deleted from the feeder category for promotion to the posts of School Assistants (Languages) and School Assistants (Physical Education). Challenging the said G.O., W.P.No.8294 of 2021 and batch W.P.No.10061/2017 & batch (Total 14 Cases) 7 were filed on 31.03.2021 seeking a Writ of Mandamus declaring the action of the respondents in not filling up the vacancies of School Assistants (Languages) existing as on 04.02.2021, i.e., prior to the said amendment of Rule 2 of A.P. School Educational Subordinate Service Rules with common seniority of SGTs and Language Pandits as required under pre-amended Rule 2 of the A.P. School Educational Subordinate Service Rules and also seeking consequential directions to fill up the vacancies of School Assistants (Languages) existing prior to the said amendment in terms of the pre-amended Rules as per the law laid down by the Hon'ble Apex Court in the case of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra). It is submitted that subsequently, G.O.Ms.No.10, School Education (Ser.II) Department, dt.25.03.2021 was issued further amending Rule 2 of the School Educational Subordinate Service Rules in respect of filling up the posts of School Assistants (Physical Education) only from the post of PETs, deleting the SGTs from the feeder category of these posts too. W.P.No.8004 of 2021 was filed by the SGTs who were eligible for promotion as School Assistants (Physical Education) as per pre- amended Rule 2 of the A.P. School Educational Subordinate Service W.P.No.10061/2017 & batch (Total 14 Cases) 8 Rules and they sought for a consequential direction to fill up the vacant posts of School Assistants (Physical Education) existing as on 24.03.2021, i.e., prior to amendment issued in G.O.Ms.No.10 dt.25.03.2021 with all the eligible candidates including the SGTs. On 06.04.2021, interim orders were granted by this Court in W.P.No.8294 of 2021 directing the respondents not to entertain any promotions to the post of School Assistants (Languages), i.e., Telugu and Hindi.
7. Subsequently, G.O.Ms.No.110, dt.05.10.2021 was issued withdrawing the orders issued in G.O.Ms.No.17 and G.O.Ms.No.18 dt.03.02.2017 and G.O.Ms.No.15 dt.16.02.2019, whereunder 8,630 posts of Language Pandits and 1,849 posts of PETs were upgraded as School Assistants (Languages) and School Assistants (Physical Education) respectively and in the same G.O. in para 3, again the Government accorded sanction for upgradation of the said posts. Alleging that G.O.Ms.No.110 dt.05.10.2021 is issued only to avoid filling up the vacancies arising prior to amendment as per pre-existing Rule 2 of the A.P. School Educational Subordinate Service Rules, in terms of Rule 6 of State and Subordinate Service Rules and Rule 2 of G.O.Ms.No.12 dt.23.01.2009, W.P.No.20307 of 2022 and W.P.No.10061/2017 & batch (Total 14 Cases) 9 W.P.No.21552 of 2022 were filed seeking a consequential direction to fill up the upgraded posts of School Assistants (Physical Education) and School Assistants (Languages) in terms of the pre-amended Rules. At the time of admission, an undertaking was given by the Special Government Pleader that the said vacancies will not be filled up till the disposal of the batch of the Writ Petitions.
8. It is submitted that the respondents have filed counter affidavit and additional counter affidavit stating that the Government has decided to follow the ratio laid down by the Hon'ble Supreme Court in the case of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra) and effect the promotions to the vacancies which arose prior to amendment of the rules as per pre-amended Rules and also effect the promotions to the vacancies which have arisen subsequent to the amendment by applying the amended rules.
9. Further amendment in G.O.Ms.No.18, Finance (HRM-II) Department, dt.03.02.2017 was issued upgrading 2,487 posts of Language Pandits as School Assistant (Languages) and 1,047 Physical Education Teacher (PET) posts as School Assistants (Physical W.P.No.10061/2017 & batch (Total 14 Cases) 10 Education) in the State for absorption of the existing Language Pandits as per their seniority and eligibility as School Assistants (Languages) and existing Physical Education Teachers as School Assistants (Physical Education) in the upgraded posts of School Assistants. The consequence was that the posts of existing Language Pandits, which are Categories 3 to 13 of Class-II only, were made eligible for absorption against the said upgraded 2,487 posts of School Assistant (Languages) depriving the other categories of Secondary Grade Teachers (SGTs), i.e., Category 1 and Categories 14 to 25 of Class-II, who possessed the necessary qualification and were eligible to be promoted to the post of School Assistant (Languages) through the channel of promotion and were prevented from and deprived of getting promotion to the said post. According to the petitioners, this is nothing but taking away their accrued right of being considered for promotion to the post of School Assistants (Languages) and School Assistants (Physical Education), which was available to them under G.O.Ms.No.12 dt.23.01.2009. Hence, the executive orders issued in G.O.Ms.No.17 and G.O.Ms.No.18 both dt.03.02.2017 were challenged before this Court.
W.P.No.10061/2017 & batch (Total 14 Cases) 11
10. Since common issues are involved, all the cases have been clubbed and were heard together and are being disposed of by this common and consolidated order.
11. Sri T.Suryakaran Reddy, learned Senior Counsel appearing for Sri C.Sai Reddy, learned counsel for the petitioners in W.P.No.10200 of 2017, W.P.Nos.3467, 8004, 8294 of 2021 and W.P.Nos.20307, 21552 and 22326 of 2022 submitted that the executive orders in G.O.Ms.No.17 and G.O.Ms.No.18 both dt.03.02.2017 cannot override or prevail over the statutory rules in G.O.Ms.No.12, dt.23.01.2009 and therefore, the executive orders are non est in the eye of law. It is submitted that if the posts of School Assistants (Telugu)/(Hindi) are filled by promotion or by absorption of the existing Language Pandits only as provided in G.O.Ms.No.17 and G.O.Ms.No.18 dt.03.02.2017 with the Categories of 3 to 13 of Class-II of A.P. School Educational Subordinate Service Rules, the petitioners who belong to Category 1 and Categories 14 to 25 of Class-II will be deprived of their promotional rights as they lose their promotional channel to the post of School Assistant (Languages) and School Assistant (Physical Education) and thereby, they would be put to W.P.No.10061/2017 & batch (Total 14 Cases) 12 great hardship and irreparable loss. The learned Senior Counsel further submitted that when W.P.No.10200 of 2017 came up for admission, vide orders dt.24.03.2017, this Court in W.P.M.P.No.12640 of 2017 was pleased to grant interim direction not to fill up the posts of School Assistants (Languages) till recruitment rules are amended. W.P.No.10061 of 2017 and W.P.No.10248 of 2017 were also filed with similar prayer to declare Para 4 of G.O.Ms.No.17 dt.03.02.2017 as amended in G.O.Ms.No.18 dt.03.02.2017 to the extent of filling up of the upgraded posts only with the existing Language Pandits and Physical Education Teachers (PETs) by way of absorption to be in violation of Rule 2 of the Rules issued in G.O.Ms.No.12 dt.23.01.2009 and sought for a consequential direction to fill up the said upgraded posts as per pre-amended Rule 2 of the said Rules as the vacancies had arisen before the amendment of the Rules and efforts were made by the respondents to fill up the said vacancies. He referred to G.O.Ms.No.15, dt.26.01.2009 which provided for preparation of panels for promotions to the posts of School Assistants from the eligible feeder categories every year duly assessing the vacancies of the respective categories from 1st September to 31st August of succeeding year and that vide W.P.No.10061/2017 & batch (Total 14 Cases) 13 G.O.Ms.No.31 dt.23.06.2010, Rule 2 above was amended for issuance of schedule for promotions to the posts of School Assistants and Head Masters Grade-II from time to time and that the date to be reckoned for arrival of number of vacancies will also be issued by the Government as per schedule. Thus, according to the learned Senior counsel, the Government was required to prepare the panel for promotions from year to year and determine the vacancies for promotions and hence such vacancies were to be filled up as per the rules in force at the relevant point of time.
12. The learned Senior Counsel further submitted that only in order to deny the promotional avenue to the SGTs in respect of the posts of School Assistants (Languages) and School Assistants (Physical Education), the respondents have issued G.O.Rt.No.03 dt.05.02.2021 amending Rule 2 of the A.P. School Educational Subordinate Service Rules issued in G.O.Ms.No.12 dt.23.01.2009 and have issued G.O.Ms.No.10 dt.25.03.2021 further amending Rule 2 of the A.P. School Educational Subordinate Service Rules in respect of filling up of the posts of School Assistants (Physical Education) only from the posts of PETs deleting SGTs from feeder category posts. It is submitted that W.P.No.10061/2017 & batch (Total 14 Cases) 14 as held by the Hon'ble Supreme Court in the case of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra), the rules as existing on the date on which the vacancy has arisen, have to be considered and if the same is applied as stated by the respondents in their additional counter affidavit, 6,143 posts of Language Pandits and 802 posts of Physical Education Teachers (PETs) which have been upgraded as School Assistants (Languages) and School Assistants (Physical Education) respectively are liable to be filled up with the SGTs as well as the Language Pandits and Physical Education Teachers. He submitted that the vacancies that have arisen only after the amendment of rules can be filled up by the Language Pandits or PETs alone, as the case may be. He strongly relied upon the judgment of the Hon'ble Supreme Court in the case of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra). He also referred to the latest decision of the Hon'ble Supreme Court in the case of State of Himachal Pradesh and others Vs. Raj Kumar and others 2, wherein the decision of the Hon'ble Supreme Court in the case of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra) was considered and submitted 2 2022(8) Scale 678 W.P.No.10061/2017 & batch (Total 14 Cases) 15 that the decision of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra) has not been set aside but has only been distinguished in the said case and therefore it is still applicable.
13. Learned Special Government Pleader appearing for the learned Advocate General, while relying upon the averments in the counter affidavit and also the additional counter affidavit filed by the respondents, submitted that it is within the powers of the Government to upgrade the posts of Language Pandits as School Assistants (Languages) and Physical Education Teachers as School Assistants (Physical Education) in the State and accordingly G.O.Ms.No.17 and G.O.Ms.No.18 both dt.03.02.2017 were issued for upgradation of 2,487 Language Pandits as School Assistants (Languages) and 1,047 Physical Education Teachers as School Assistants (Physical Education) in the State. It is submitted that when the same was challenged before this Court, an interim direction was given on 24.03.2017 and the Government, after careful consideration of the matter, decided to make certain amendments to the ad hoc Rules for Telangana School Educational Subordinate Service Rules for the posts of Teachers in Mandal Praja Parishad and Zilla Praja Parishad in Telangana and W.P.No.10061/2017 & batch (Total 14 Cases) 16 therefore, issued G.O.Rt.No.03, School Education, dt.05.02.2021 and G.O.Ms.No.10 dt.25.03.2021 amending Rule 2 in G.O.Ms.No.12 dt.23.01.2009 to the effect that SGTs were excluded from the feeder category to the posts of School Assistants (Languages) and School Assistants (Physical Education). It is submitted that in view of the said amendments, it was felt necessary to withdraw the upgradation orders issued vide G.O.Ms.No.17 and G.O.Ms.No.18 both dt.03.02.2017 and G.O.Ms.No.15 dt.16.02.2019 which were not given effect to earlier due to the Court orders and therefore, G.O.Ms.No.110, Finance (HRM-II) Department, dt.05.10.2021 was issued. It is submitted that recruitment rules were amended as per the direction of this Court dt.24.03.2017 in W.P.No.10061 of 2017. He thus supported G.O.Ms.No.110 dt.05.10.2021 and submitted that the Government has now given sanction for upgradation of 8,630 posts of Language Pandits as School Assistants (Languages) and 1,849 posts of Physical Education Teachers as School Assistants (Physical Education) in MPUPS/Zilla Parishad/Government Schools in the corresponding revised pay scales of 2020 duly suppressing 392 vacant posts of Secondary Grade Teachers. He therefore justified the action of the respondents. He further submitted W.P.No.10061/2017 & batch (Total 14 Cases) 17 that the decision of the Hon'ble Supreme Court in the case of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra) has been distinguished by the Hon'ble Supreme Court in the case of State of Himachal Pradesh and others Vs. Raj Kumar and others (2 supra), wherein while considering other decisions on the issue, the Hon'ble Supreme Court has held that the decision in the case of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra) is impliedly overruled in various decisions. He further relied upon the principle laid down in the said case to submit that the rights and obligations of a person serving the Union and States are to be considered from the issues governing the service, i.e., "rule in force" as on the date the consideration takes place. He therefore prayed for dismissal of the Writ Petitions.
14. Sri M.Surender Rao, learned Senior Counsel representing Sri Madiraju Srinivasa Rao, learned counsel for the unofficial respondents, i.e., Language Pandits, on the other hand, supported the orders of the authorities below and submitted that the vacancies have to be filled up as per the extant rules, i.e., the rules in force as on the date of consideration and not as per the pre-amended Rules when the vacancies W.P.No.10061/2017 & batch (Total 14 Cases) 18 have arisen. It is submitted that there is no vested right in SGTs to claim promotion against the posts of School Assistants (Languages). He submitted that the rights claimed by the petitioners are inchoate rights and therefore, they cannot be considered or enforced.
15. Smt. G. Uma Rani, learned counsel for the unofficial respondents in some of Writ Petitions, submitted that SGTs are required to teach primary Classes 1 to 5 and they have to necessarily have the qualification of intermediate and D.Ed., or graduation or B.Ed., whereas Language Pandits have to necessarily possess a degree and Pandit Training and that they are required to teach only at upper primary school or high school level. She submitted that it was in these circumstances that the posts of Language Pandits have been upgraded to School Assistants (Languages) vide G.O.Ms.No.17 and upgradation of Physical Education Teachers who are also teaching in Upper Primary Schools/High Schools as School Assistants (Physical Education) was made by issuing G.O.Ms.No.18. It is submitted that no new posts have been created but only existing posts of Language Pandits and Physical Education Teachers have been upgraded and therefore, the amendment of the Rule 2 of A.P. School Educational Subordinate Service Rules by W.P.No.10061/2017 & batch (Total 14 Cases) 19 the official respondents is justified and the filling up of the vacancies as per the existing rules is legal.
16. The learned Senior Counsel Mr. T.Suryakaran Reddy in rebuttal, pointed out that the Government of Andhra Pradesh had issued G.O.Ms.No.15 dt.05.02.2017 amending the Rules rendering the SGTs as ineligible for being promoted as School Assistants and aggrieved by the same, some of the SGTs approached the APAT (Andhra Pradesh Administrative Tribunal) in O.A.No.317 of 2017 seeking consideration of their cases for promotion as School Assistants in the vacancies that have arisen prior to the amendment of Rule 2 of the A.P. School Educational Subordinate Service Rules. The Tribunal, following the judgment of the Hon'ble Apex Court in the case of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra), allowed the O.A., against which the Language Pandits filed Writ Petitions before the High Court for the State of Telangana and Andhra Pradesh and the Division Bench of this Court, vide orders dt.23.10.2017, has confirmed the order of the Tribunal and in subsequent Writ Petitions in W.P.No.23283 of 2017 and W.P.No.73 of 2018, after considering the decision of the Hon'ble Supreme Court in the case of Deepak Agarwal v. State of W.P.No.10061/2017 & batch (Total 14 Cases) 20 UP. 3 and other cases which have distinguished the case of Y.V.Rangaiah (1 suspra), held that the judgement in the case of Y.V.Rangaiah (1 supra) is applied to the case as the Government of Andhra Pradesh has committed itself to making promotions to the posts of School Assistants on the first working day of every calendar month and that in terms of the schedule fixed by the Government itself, SGTs eligible to be promoted as on that date acquired a vested right which could not have been altered or modified by the subsequent amendment vide G.O.Ms.No.15 dt.05.02.2017 by the Government of Andhra Pradesh. He therefore seeks similar directions in these cases also.
17. Having regard to the rival contentions and the material on record, this Court finds that G.O.Ms.Nos.11 & 12 dt.23.01.2009 were issued making the A.P. School Educational Subordinate Service Rules (in short, "the Rules") and the posts of Teachers in Government Schools as well as in MPPs and ZPPs were governed by these Rules. Rule 2 of the Rules deals with the method of appointment and the posts of School Assistants (Subjects) and School Assistants (Languages) and School Assistants (Physical Education) were all required to be filled up by way of 3 (2011) 6 SCC 725 W.P.No.10061/2017 & batch (Total 14 Cases) 21 promotion from the feeder category of SGTs and other equivalent categories from Categories 1 to 25 of Class-II. For the sake of clarity and ready reference, pre-amended Rule 2 of the A.P. School Educational Subordinate Service Rules is reproduced hereunder:
"2. Method of Appointment and Appointing Authority: The service shall consist of the following classes and category of posts subject to other provisions in these rules, the method of appointment and appointing authority to the posts is as mentioned below:
Class Category Designation Method of Appointing
appointment authority
1 2 3 4 5
I 1 School Assistant i) By Direct District
(Mathematics) Recruitment, or Educational
2 School Assistant ii) By Promotion Officer
(Physical Science) from Categories 1
3 School Assistant to 25 of Class II, or
(Biological Science)
4 School Assistant
(Social Studies)
5 School Assistant
(English)
6 School Assistant
(Telugu)
7 School Assistant
(Hindi)
8 School Assistant
(Urdu)
9 School Assistant
(Kannada)
10 School Assistant
(Oriya)
11 School Assistant
(Marathi)
12 School Assistant
(Gujarathi)
W.P.No.10061/2017 & batch
(Total 14 Cases)
22
13 School Assistant
(Tamil)
14 School Assistant
(Bengali)
15 School Assistant
(Sanskrit)
16 School Assistant
(Arabic)
17 School Assistant
(Physical Education)
18 Headmaster of By promotion from
Primary School Category-I of
(LFL) Class-II
Class Cate- Designation Method of Appointing
gory appointment authority
1 2 3 4 5
II 1 Secondary Grade Teacher By Direct Recruitment District
Educational
Elementary Grade No future Recruitment Officer
2 Teacher/Higher Grade
Teacher
3 Language Pandit (Telugu) By Direct Recruitment
4 Language Pandit (Hindi) By Direct Recruitment
5 Language Pandit (Urdu) By Direct Recruitment
6 Language Pandit By Direct Recruitment
(Kannada)
7 Language Pandit (Oriya) By Direct Recruitment
8 Language Pandit By Direct Recruitment
(Marathi)
9 Language Pandit By Direct Recruitment
(Gujarati)
10 Language Pandit (Tamil) By Direct Recruitment
11 Language Pandit By Direct Recruitment
(Bengali)
12 Language Pandit By Direct Recruitment
(Sanskrit)
13 Language Pandit (Arabic) By Direct Recruitment
14 Physical Education By Direct Recruitment
Teacher
15 Art Teacher By Direct Recruitment
16 Drawing Teacher By Direct Recruitment
17 Music Teacher By Direct Recruitment
18 Weaving Teacher By Direct Recruitment
19 Dance Teacher By Direct Recruitment
20 Carpentry Teacher By Direct Recruitment
21 Textile, Printing, Tailoring By Direct Recruitment
Teacher
22 Sewing Teacher By Direct Recruitment
23 Sewing, Tailoring & By Direct Recruitment
W.P.No.10061/2017 & batch
(Total 14 Cases)
23
Needle work teacher
24 Drawing and Sewing By Direct Recruitment
Teacher
25 Agriculture Teacher By Direct Recruitment
Thus, it can be seen that the post of a School Assistant of any subject or language could be filled up by direct recruitment or also by promotion from Categories 1 to 25 of Class-II which includes Secondary Grade Teachers at Category 1 in Class-II, provided they possessed the necessary qualification. The qualifications for the said posts are also given in Rule 5. The relevant portion of Rule 5 is extracted as under:
"5. Qualifications:
(i) No person shall be eligible for appointment to the categories specified in Column (3) of the Table by the method specified in Column (2) unless he/she possesses the qualifications specified in the corresponding entry in Column (4) thereof.
(ii) The candidates who have passed SSC Examination in the concerned medium or with the concerned Language as First Language are eligible to apply to the posts in the concerned medium and the candidates who have passed the examination of Higher standards in the concerned language / medium are also eligible to apply to the posts in that medium.
(iii) Every teacher employed in Mandal Praja Parishad / Zilla Praja Parishad Schools for the deaf or blind shall, in W.P.No.10061/2017 & batch (Total 14 Cases) 24 addition to the qualifications prescribed in the table, possess a Government certificate of competency, Junior Diploma in teaching the blind or deaf, as the case may be or a higher qualification:
Provided that the Graduate and the non-graduate teachers who are blind or deaf and have undergone the training course in education for the blind or deaf and passed the examination shall be deemed to possess the qualifications prescribed for the post of teachers in the schools for the blind or deaf.
(iv) Government orders issued from time to time relating to the method of appointment and the authorities competent to make appointments shall be applicable.(v) .... .... .... .... .... .... .... ...."
Sub-Rule (v) of Rule 5 prescribed the qualifications for all the posts and a quick perusal of the same shows that
(i) School Assistants of various subjects must possess a Bachelor's Degree in the respective subject as a main subject or one of the three equal optional subjects and a B.Ed., degree with the concerned subject as a methodology subject;
W.P.No.10061/2017 & batch (Total 14 Cases) 25
(ii) School Assistants of the respective Languages also must possess a Bachelor's Degree of the said subject as a main subject or one of the three equal optional subjects or a P.G. Degree or an oriental title or its equivalent and B.Ed., in the respective language as methodology or Pandit training or its equivalent;
(iii) Secondary Grade Teacher:
the candidate must possess Intermediate Certificate issued by the Board of Intermediate Education, Andhra Pradesh and D.Ed., Certificate issued by the Director of Government Examinations, Andhra Pradesh or must possess a Bachelor's Degree and a B.Ed., Degree;
(iv) A Language Pandit must possess a Bachelor's Degree with respective language as main subject or one of the three equal optional subjects or a P.G. Degree or an oriental title or its equivalent and B.Ed., with respective language as methodology or pandits training or its equivalent. Thus, it can be noticed that the Language Pandits are required to W.P.No.10061/2017 & batch (Total 14 Cases) 26 possess a Bachelor's Degree with respective language, whereas the Secondary Grade Teachers and Physical Education Teachers are required to possess intermediate certificate and D.Ed./D.P.Ed., certificate as the minimum qualification;
(v) Physical Education Teachers:
He/she must possess intermediate certificate issued by the Board of Intermediate Education, Andhra Pradesh and an under graduate diploma in Physical Education or must possess a Bachelor's Degree and a B.P.Ed., Degree/UGDPED.
The Note under the said Rules also provides that the candidates with higher qualifications are also eligible for appointment by direct recruitment.
18. Thus, it is noticed that the qualifications prescribed for Language Pandits and Physical Education Teachers and Special Grade Teachers are not the same. As seen from G.O.Ms.No.144, Finance (HR.II) Department, dt.02.08.2016, there was a representation from the teachers W.P.No.10061/2017 & batch (Total 14 Cases) 27 working in High Schools as Language Pandits Grade-II and Physical Education Teachers working in Zilla Parishad / Government High Schools for upgradation of their posts to the cadre of School Assistants for parity with other subject teachers working in High Schools since as per the respective rules, the qualifications required for the post of School Assistants (Languages) and Language Pandits are same and both are working in Upper Primary Schools and High Schools. It was also submitted that there are no Secondary Grade Teacher cadre posts in the High School pattern and though the Language Pandits are equivalent to Second Grade Teachers, they are teaching in High Schools. Taking the same into consideration, the Government has accorded sanction for upgradation of 1,450 posts of Language Pandits Grade-II and 1,200 posts of Physical Education Teachers working in Zilla Parishad / Government High Schools as School Assistants in the pay scale of Rs.28940 - 78910 in case of High Schools having a strength of 200 students and above throughout the State in the first phase.
19. Thereafter, G.O.Ms.No.17, Finance (HRM-II) Department, dt.03.02.2017 was issued and the Government has accorded sanction for the upgradation of 2,487 Language Pandits as School Assistants W.P.No.10061/2017 & batch (Total 14 Cases) 28 (Languages) and also upgradation of 1,047 Physical Education Teacher (PET) posts as School Assistants (Physical Education) in the State by suppressing 392 surplus vacant posts of Secondary Grade Teachers.
20. Further, G.O.Ms.No.18, Finance (HRM-II) Department, dt.03.02.2017 was issued amending Para-4 of G.O.Ms.No.17 dt.03.02.2017 clarifying that the Government accorded sanction for the upgradation of 2,487 Language Pandits as School Assistants (Languages) by absorbing the existing Language Pandits as per their seniority and eligibility in terms of G.O.Ms.Nos.11 and 12, School Education (Services-II) Department, dt.23.01.2009 and also accorded sanction for the upgradation of 1,047 Physical Education Teacher (PET) posts as School Assistants (Physical Education) in the State by suppressing 392 surplus vacant posts of Secondary Grade Teachers.
21. These two G.Os., were challenged by the Secondary Grade Teachers alleging that they have been denied the opportunity of promotion for the posts of School Assistants (Languages) and School Assistants (Physical Education) and that without amendment of the rules, the vacancies cannot be filled up by only Language Pandits and W.P.No.10061/2017 & batch (Total 14 Cases) 29 Physical Education Teachers. It is also noticed that subsequently, vide G.O.Ms.No.15 dt.16.02.2019, the Government has accorded sanction for upgradation of 6,143 posts of Language Pandits as School Assistants (Languages) and 802 posts of Physical Education Teachers as School Assistants (Physical Education) in MPUPS/Zilla Parishad/Government Schools in the pay scale of 28940 - 78910 in the Revised Pay Scales, 2015. This was issued after taking into consideration the Memo of the School Education Department dt.16.02.2019. The Government had also taken steps to upgrade the Language Pandits and Physical Education Teachers as School Assistants (Languages) and School Assistants (Physical Education) in accordance with the said G.O. However, due to the interim direction granted by this Court, the entire process has been stayed. While granting interim order, there was an observation made by this Court that without amending the service rules, the respondents could not have issued executive orders for upgradation of the posts of Language Pandits as School Assistants (Languages) and the posts of Physical Education Teachers as School Assistants (Physical Education). Taking the same into consideration, the Government has issued G.O.Rt.No.03, School Education (Ser.II) Department, dt.05.02.2021 W.P.No.10061/2017 & batch (Total 14 Cases) 30 amending the service rules, i.e., in Rule 2 in the Table thereunder (Class-I) for the entries in Column (4) i.e., (Method of Appointment), against categories 1 to 17, the following entries are substituted, namely:-
(i) By Direct Recruitment; or
(ii) By Promotion -
a. from the respective categories 3 to 13 of Class-II to the respective categories 6 to 16 of Class - I and b. from the Categories 1, 2 and 14 to 25 of Class-II to the categories 1 to 5 and 17 of Class-I.
These amendments are also challenged by the petitioners in W.P.Nos.3467, 3604, 3637, 8004 and 8294 of 2021 before this Court.
22. It is therefore necessary to examine whether the vacancies which have arisen prior to the amendment of the Rules in the year 2021 are to be filled up in accordance with the decision of the Hon'ble Supreme Court in the case of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra). A Larger Bench of the Hon'ble Supreme Court in the case of State of Himachal Pradesh and others Vs. Raj Kumar and others (2 supra), while considering the case of the writ petitioners W.P.No.10061/2017 & batch (Total 14 Cases) 31 therein who were seeking promotion to the posts of Labour Officers by way of promotion as per old Rules which existed when the vacancies arose or as per the subsequent amended Rules, has distinguished the decision of Y.V.Rangaiah (1 supra). In the said case, the brief facts are that additional posts were sanctioned and thereafter, Rules came to be amended under the New Rules called the H.P. Labour and Employment Department, Labour Officers, Class-II (Gazetted) Ministerial Service R & P Rules, 2006 and recruitment to the post of Labour Officer was to be made by promotion as well as direct recruitment in the ratio of 75 per cent and 25 per cent respectively and the effect of New Rules coupled with the 7 new posts for Labour Officers is that, from out of the total number of 12 posts of Labour Officers, the promotional posts increased from 5 to 9 (being 75 per cent) and direct recruitment posts came to 3 (being 25 per cent). Immediately thereafter, the Government issued a Notification creating 12 Labour Zones in the State and in such background, the candidates approached the Administrative Tribunal of the State challenging the proposed action of the State Government in filling up 25 per cent of the posts of Labour Officers by direct recruitment. They contended that the vacancies arose in July, 2006, W.P.No.10061/2017 & batch (Total 14 Cases) 32 which is before the promulgation of the New Rules and therefore, all the vacancies must be filled up only by promotion. By its order dt.24.01.2007, the Tribunal directed the State Government to consider the grievance raised by the applicants as if it is a representation to it. The Government thereafter rejected the same on 27.06.2007. The matter has reached the Hon'ble Supreme Court and the Hon'ble Supreme Court after considering its various judgments both in consonance with its decision in the case of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra) and also distinguishing the same, has come to the conclusion that Y.V.Rangaiah's case (1 supra) must be seen in the context of its own facts, coupled with declarations therein that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of the rules which existed on the date on which they arose, and held that the decision in Y.V.Rangaiah's case (1 supra) is impliedly overruled. The Hon'ble Supreme Court further held that as there is no declaration of law to this effect, it continues to be cited as a precedent and the Court has distinguished it on some ground or the other and therefore, it was held that the decision in the case of Y.V.Rangaiah and others Vs. J.Sreenivasa Rao and others (1 supra) W.P.No.10061/2017 & batch (Total 14 Cases) 33 is impliedly overruled and that the rights and obligations of persons serving the Union and the States are to be sourced from the rules governing the services. For coming to this conclusion, the Hon'ble Supreme Court has considered the following decisions and the propositions laid down therein.
"36. A review of the fifteen cases that have distinguished Rangaiah would demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah. The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under:
1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah's case must be understood in the context of the rules involved therein.[58*] [58* Deepak Agarwal v. State of UP., (2011) 6 SCC 725, Para 26; Union of India v. Krishna Kumar, (2019) 4 SCC 319, Para 10.]
2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the "rule in force" as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates[59*].
W.P.No.10061/2017 & batch (Total 14 Cases) 34 [59* Deepak Agarwal v. State of UP., (2011) 6 SCC 725, Para 26; Union of India v. Krishna Kumar, (2019) 4 SCC 319, Para 10.]
3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government.[60*] There is no obligation for the Government to make appointments as per the old rules in the event of restructuring of the cadre is intended for efficient working of the unit.[61*] The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article
14.[62*] [60* K. Ramulu v. Suryaprakash Rao, (1997) 3 SCC 59, Paras 12 and 13; Shyam Chandra Das v. State of Orissa, (2003) 4 SCC 218, Para 9; State of Punjab v. Arun Kumar Aggarwal, (2007) 10 SCC 402, Para 38; Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, Para 28.] [61* G. Venkateshwara Rao v. Union of India, (1999) 8 SCC 455, Para 4.] [62* Rajasthan Public Service Commission v. Charan Ram, (1998) 4 SCC 202, Para 15; K. Ramulu v. Suryaprakash Rao, (1997) 3 SCC 59, Para 15.] W.P.No.10061/2017 & batch (Total 14 Cases) 35
4. The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately.[63*] [63* In Delhi Judicial Services Association v. Delhi High Court, (2001) 5 SCC 145, Para 5.]
5. When there is no statutory duty cast upon the State to consider appointments to vacancies that existed prior to the amendment, the State cannot be directed to consider the cases.[64*] [64* Deepak Agarwal v. State of U.P., (2011) 6 SCC 725, Para 25.]"
37.1 The above-referred observations made in the fifteen decisions that have distinguished Rangalah's case demonstrate that the wide principle enunciated therein is substantially watered-down. Almost all the decisions that distinguished Rangaiah hold that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of law that existed on the date when they arose. This only implies that decision in Rangaiah is confined to the facts of that case.
37.2 The decision in Deepak Agarwal (supra) is a complete departure from the principle in Rangaiah, in as much as the Court has held that a candidate has a right to be considered in the light of the existing rule. That is the rule in force on the date the consideration takes place. This enunciation is followed in many subsequent decisions including that of Union W.P.No.10061/2017 & batch (Total 14 Cases) 36 of India v. Krishna Kumar (supra). In fact, in Krishna Kumar Court held that there is only a "right to be considered for promotion in accordance with rules which prevail on the date on which consideration for promotion take place." 37.3 The consistent findings in these fifteen decisions that Rangaiah's case must be seen in the context of its own facts, coupled with the declarations therein that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of rules which existed on the date which they arose, compels us to conclude that the decision in Rangaiah is impliedly overruled. However, as there is no declaration of law to this effect, it continues to be cited as a precedent and this Court has been distinguishing it on some ground or the other, as we have indiçated hereinabove. For clarity and certainty, it is, therefore, necessary for us to hold;
(a) The statement in Y.V. Rangaiah v. J. Sreenivasa Rao that, "the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules", does not reflect the correct proposition of law governing services under the Union and the States under part XIV of the Constitution. It is hereby overruled.
(b) The rights and obligations of persons serving the Union and the States are to be sourced from the rules governing the services.
23. The latest decision of the Hon'ble Supreme Court in the case of State of Himachal Pradesh and others Vs. Raj Kumar and others (2 W.P.No.10061/2017 & batch (Total 14 Cases) 37 supra) has considered all the decisions which have distinguished the decision in the case of Y.V.Rangaiah and held that the principle laid down therein that the vacancies which occurred prior to the amended Rules would be governed by the old Rules and not by amended Rules, does not reflect the correct preposition of law and that it is overruled. What follows therefrom is that the rules in force as on the date of consideration for promotion would apply.
24. In the cases before this Court, the posts of School Assistants upgraded under G.O.Ms.No.17 and G.O.Ms.No.18, Finance (HRM-II) Department, both dt.03.02.2017 were intended to be filled up by promotion, but could not be filled up due to interim orders of this Court. The said G.Os., were withdrawn only vide G.O.Ms.No.110, Finance (HRM-II) Department, dt.05.10.2021 and restructured to be filled up as per the amended Rules vide G.O.Rt.No.03 dt.05.02.2021. Therefore, it is clear that the Government intended to fill up the vacancies of School Assistants including the upgraded posts of School Assistants (Languages) and School Assistants (Physical Education) and has arrived at the total number of vacancies in accordance with the Rules as provided in G.O.Ms.No.15, dt.26.01.2009 and has accordingly issued W.P.No.10061/2017 & batch (Total 14 Cases) 38 instructions to the respective DEOs for necessary action at their end. Therefore, it is clear that these vacancies were being considered for filling up and thus, the rules in force as on the date of issuance of the said G.Os. have to be considered as held by the Hon'ble Apex Court in the case of State of Himachal Pradesh and others Vs. Raj Kumar and others (2 supra). If the Government did not intend to fill up the vacancies, but the petitioners were seeking consideration of their cases for promotion to the vacancies in accordance with old Rules, the reliance of the learned Government Pleader on the above judgment would be relevant. But, since the vacancies were not filled up due to Court orders and not because the Government did not want to fill up the vacancies till the rules were amended, the contention of the learned Government Pleader that the vacancies have to be filled up as per amended Rules cannot be accepted. In the cases before this Court, the Government initiated steps to fill up the vacancies and only after this Court pointed out that they would have to be filled up as per Rules in force and not without amending the Rules, they have resorted to amendment of Rules and withdrawal of the vacancies and rescheduling the panel and vacancies. This Court is of the opinion that by issuance of W.P.No.10061/2017 & batch (Total 14 Cases) 39 G.O.Ms.Nos.17 and 18 both dt.03.02.2017 by upgrading the posts of Language Pandits and Physical Education Teachers to the posts of School Assistants (Languages) and School Assistants (Physical Education), the vacancies so arising have to be filled up as per the unamended Rule 2 of the A.P. (Telangana) School Educational Subordinate Service Rules at the relevant point of time and thus, all the eligible candidates including the SGTs acquired a vested right which could not be altered or modified to the detriment of their rights by subsequent amendments.
25. In view of the same, all the Writ Petitions filed by the Secondary Grade Teachers are accordingly allowed and the respective G.O.Ms.Nos.17 and 18 both dated 03.02.2017, G.O.Ms.No.15 dt.16.02.2019 and G.O.Ms.No.110 dt.05.10.2021 are upheld to the extent of vacancies upgraded thereunder and the portion of the said G.Os. in relation to exclusion of SGTs from the zone of consideration for the posts of School Assistants (Languages) and School Assistants (Physical Education) is set aside and the respondents i.e., Government of Telangana and other official respondents are directed to fill up the vacancies sought to be filled up prior to the amendment made in W.P.No.10061/2017 & batch (Total 14 Cases) 40 G.O.Rt.No.03 dt.05.02.2021 as per the unamended Rule 2 of the A.P. (Telangana) School Educational Subordinate Service Rules. No order as to costs.
26. Pending miscellaneous petitions, if any, in all these Writ Petitions including I.A.No.1 of 2018 in W.P.No.10061 of 2017; I.A.No.1 of 2018 in W.P.No.10200 of 2017; I.A.No.1 of 2018 in W.P.No.10248 of 2017; I.A.No.3 of 2019 and I.A.No.2 of 2022 in W.P.No.3912 of 2019; I.A.No.2 of 2019 and I.A.No.2 of 2022 in W.P.No.3934 of 2019; I.A.No.2 of 2021 in W.P.No.3467 of 2021; I.A.No.2 of 2021 in W.P.No.3604 of 2021; I.A.No.2 of 2021 and I.A.No.1 of 2022 in W.P.No.3637 of 2021; I.A.No.2 of 2022 in W.P.No.8004 of 2021; I.A.No.3 of 2021, I.A.No.4 of 2021, I.A.No.6 of 2021, I.A.No.7 of 2021 and I.A.No.2 of 2023 in W.P.No.8294 of 2021 shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 23.09.2023 Svv