The Government Of Andhra Pradesh, vs Thota Mallikarjuna
2021 Latest Caselaw 3214 AP

    IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI


 HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
                                     &
            HON'BLE MR. JUSTICE NINALA JAYASURYA



               WRIT APPEAL Nos.480 & 482 of 2021
                        (Through Video-Conferencing)


                         W.A No.480 of 2021


The Government of Andhra Pradesh, rep., by its Principal
Secretary, School Education Department, A.P., Secretariat,
Hyderabad -500022 and others.
                                                              ..Appellants

             Versus

Thota Mallikarjuna, S/o Chinnavenkataiah,
Sri Bala Siva Girls High Schools (Aided)
Mydukur, Y.S.R. District and another.
                                                             ... Respondents

Counsel for the Appellants : GP for School Education

Counsel for respondent No.1 : Mr. P. Gangaiah Naidu, Sr. Counsel for Mr. G. Bala Rangaiah.

W.A No.482 of 2021

The Government of Andhra Pradesh, rep., by its Principal Secretary, School Education Department, A.P., Secretariat, Hyderabad -500022 and others.

..Appellants

Versus

M. Sujatha, W/o Late Sri Srinivasa Babu, Sri Bala Siva Girls High Schools (Aided) Mydukur, Y.S.R. District and others.

... Respondents

Counsel for the Appellants : GP for School Education

HCJ & NJS,J W.A.Nos.480 and 482 of 2021

Counsel for respondent Nos.1 & 2 : Mr. P. Gangaiah Naidu, Sr. Counsel for Mr. G. Bala Rangaiah.

Date of hearing               : 09.08.2021.

Date of Judgment              : 27.08.2021


                           COMMON JUDGMENT


(Arup Kumar Goswami, CJ)

Heard Mr. K.V. Raghuveer, learned Government Pleader for School

Education, appearing for the appellants. Also heard Mr. P. Gangaiah

Naidu, learned Senior Counsel representing Mr. G. Bala Rangaiah, learned

counsel appearing for the respondent No.1/writ petitioner in W.A.No.480

of 2021 and respondent Nos.1 and 2/writ petitioners in W.A.No.482 of

2021.

2. W.A.No.480 of 2021 is preferred against the judgment and order

dated 27.04.2012 passed by the learned single Judge in W.P.No.12790 of

2012 and W.A.No.482 of 2021 is preferred against the judgment and

order dated 24.04.2012 passed by the learned single Judge in

W.P.No.12056 of 2012.

3. Though the judgments in the above writ petitions were delivered

on two different dates, learned counsel for the parties submit that the

respondents (appellants herein) in the writ petitions are same and the

issue arising in both the writ petitions is also one and the same, and

therefore, both the writ appeals are heard together and are being

disposed of by this common judgment.

4. Learned Counsel for the parties had placed reliance on the

pleadings and materials in W.A.No.482 of 2021 and therefore, reference is

HCJ & NJS,J W.A.Nos.480 and 482 of 2021

made to the pleadings and material papers available in W.A.No.482 of

2021.

5. Respondent No.4 in both the writ petitions, namely, Sri Bala Siva

Girls High School (Aided) represented by its President/Correspondent,

Mydukur, YSR District, had issued paper notification dated 17.03.2002 in

the local newspapers calling for applications from the eligible candidates

for the unaided post of Secondary Grade Teacher (for short, 'the SGT')

and Grade II Hindi Pandit, meant for OC women and OC General,

respectively, as per roster. For the post of SGT, 10 candidates appeared

for selection and the 1st petitioner in W.P.No.12056 of 2012 was selected

as SGT on 11.09.2002 by the Staff Selection Committee, wherein nominee

of the Deputy District Educational Officer also participated, while for the

post of Grade II Hindi Pandit, the 2nd petitioner and five others appeared

before the selection committee and the 2nd petitioner was selected for the

said post. It is pleaded that the 4th respondent requested the 3rd

respondent to approve the selections made by the Selection Committee on

several times, but no action was taken. It is also pleaded that the 4th

respondent had been making representations to absorb the petitioners in

the aided vacancies of SGT and Grade II Hindi Pandit as there were

several vacant aided posts of SGT and Grade II Hindi Pandit and there are

many instances of absorption of unaided teachers in aided vacancies.

However, the petitioners were not absorbed.

6. With the aforesaid factual matrix, the writ petitions came to be filed

praying for a direction to respondent Nos.1 to 3 (appellants herein) to

consider the request of respondent No.4-school for absorption of the writ

HCJ & NJS,J W.A.Nos.480 and 482 of 2021

petitioners in aided vacancies of SGT and Grade II Hindi Pandit

respectively.

7. The case of the sole petitioner in W.P.No.12790 of 2012 is similar

to the case of the petitioners in W.P.No.12056 of 2012, except that the

petitioner in W.P.No.12790 of 2012 was selected by the Staff Selection

Committee on 11.09.2002 for the post of Junior Assistant out of ten

candidates.

8. The learned single Judge relied on the judgment rendered in

W.P.No.5189 of 2006 (P. Ramalinga Reddy v. Govt. of A.P., rep.,

by its Principal Secretary, Department of Higher Education,

Hyderabad) and directed the respondents to regularize the services of

the petitioners in the aided posts held by them from the date of their

original appointment with all consequential benefits. In order to give

directions as noted hereinabove, the learned single Judge extracted the

following portion of P. Ramalinga Reddy (supra):

"..............the respondent authorities are adopting

a pick and choose selective methodology to suit their

own vested interests for admitting particular incumbents

to grant-in-aid posts. This blatant arbitrariness falls foul

of the principles of equality and fair play in action

enshrined in Article 14 of the Constitution. The

respondent authorities are bound to adopt a consistent

stand while dealing with these cases and their

discriminatory and purely subjective and whimsical

handling of similarly situated cases clearly demonstrates

that their functioning is not in accordance with the rule

HCJ & NJS,J W.A.Nos.480 and 482 of 2021

of law. The petitioner, having been appointed as per the

prescribed procedure against an aided vacancy, cannot,

therefore, be denied approval of his appointment by the

respondent authorities given the facts and

circumstances of the case. Ergo, the adamant attitude

of the authorities in trying to deny the petitioner by

clutching at straws, as is evident from their counter,

requires to be condemned."

9. The cause of action in P. Ramalinga Reddy (supra) was refusal

by the State Government of the request of the management of Sree

Ankala Reddy Memorial Degree College, Allagadda, Kurnool District, to

admit the writ petitioner therein to the grand-in-aid post of Librarian. In

P. Ramalinga Reddy (supra), it was also observed as follows:

"A glance at the instances cited by the petitioner

clearly demonstrates the veracity of his contention.

G.O.Rt.No.160, Higher Education (CE.II.2) Department,

dated 16.02.2001, was issued by the Government

appointing and admitting to grant-in-aid one

Dr.R.V.Anuradha as a Lecturer in English in Pragathi

Mahavidyalaya Degree College, Hyderabad, though she

was not even appointed as per the procedure

prescribed in G.O.Ms.No.12 dated 10.01.1992. This case

was not covered by any order from this Court. However,

the Government deemed it fit to extend benefit to her

notwithstanding its so-called ban orders under

Government Memo dated 17.12.1999 and the violation

of the prescribed procedure under G.O.Ms.No.12 dated

HCJ & NJS,J W.A.Nos.480 and 482 of 2021

10.01.1992. There is no explanation forthcoming from

the authorities as regards this case.

G.O.Rt.No.359, Higher Education (IE.II)

Department, dated 25.04.2005, was issued according

permission for regularization of the services of one

V.Naga Maheswara Reddy against a vacant aided post

in RES Junior College, Mydukur, Kadapa District, in

relaxation of the rules issued in G.O.Ms.No.12 dated

10.01.1992. The G.O. reads to the effect that the said

order was passed in the light of the orders of this Court

in Writ Petition No.12966 of 2004. A copy of the order

dated 12.08.2004 passed in the said writ petition is

placed on record and demonstrates that no positive

direction was issued in the said case. The Government

was only directed to consider the case of the petitioner

therein for regularization of his service as a Junior

Lecturer and to pass appropriate orders according to

the rules. Relevant to note, a similar direction was

passed earlier in the case of the petitioner also. This

Court therefore finds it incomprehensible as to how a

similar direction by this Court in two cases evoked

altogether different responses.

By G.O.Ms.No.360, Higher Education (IE.II)

Department, dated 25.04.2005, the Government

accorded permission for regularization of the services of

one K.Sree Devi, Junior Lecturer in Commerce in S.V.B.

Junior College, S.Mattam, Kadapa District, against an

HCJ & NJS,J W.A.Nos.480 and 482 of 2021

aided vacant post in relaxation of the rules issued in

G.O.Ms.No.12 dated 10.01.1992. This regularization was

also in relation to an order passed by this Court in Writ

Petition No.13507 of 2004. The order dated 02.08.2004

passed in the said writ petition is placed on record and

indicates that this Court, taking note of the fact that the

representation of the petitioner was pending from more

than ten months, directed the Government to pass

appropriate orders thereon and communicate the same.

Yet again, no positive direction, but the authorities were

inspired.

It may be noted that in both the above cases the

prescribed procedure under G.O.Ms.No.12 dated

10.01.1992 had not been followed, requiring the

relaxation of the rules contained in the said G.O. In

spite of mere 'consider' orders from this Court, the

Government swung into action, ignored its so-called ban

orders in Memo dated 17.12.1999 and accommodated

the persons concerned in aided posts. In spite of the

petitioner having been selected and appointed as per

due procedure and in spite of a similar 'consider' order

from this Court, he was denied the same benefit !

Thus, the above material clearly indicates that

the respondent authorities are adopting a subjective

and capricious approach in dealing with cases pertaining

to admission to grant-in-aid. Where it suits their

purposes, violation of rules notwithstanding, a mere

HCJ & NJS,J W.A.Nos.480 and 482 of 2021

direction to consider is deemed sufficient to grant relief

but in other cases, as in the case on hand, rejection

ensues on one flimsy ground or the other."

10. In the aforesaid instances, which were taken note of, it

appears that the writ petitioners therein were appointed by the

management of the institutions in the aided vacancies. A direction was

issued in the aforesaid case (P. Ramalinga Reddy) on the ground

that the petitioner therein had been appointed as per the prescribed

procedure against an aided vacancy. However, in the instant case, the

petitioners were appointed in unaided posts. Thus, the judgment relied

upon by the learned single Judge i.e., P. Ramalinga Reddy (supra),

is clearly distinguishable inasmuch as the petitioner therein was

appointed against an aided vacancy, whereas in the present case, the

writ petitioners were appointed against unaided vacancies.

11. The appellants herein had filed review petition against the order

in W.P.No.12056 of 2012 and the same was dismissed.

12. Mr. K.V. Raghuveer, learned Government Pleader for School

Education, submits that the appellants had been denied opportunity of

representing their case by filing a counter-affidavit. While

W.P.No.12056 of 2012 was filed on 23.04.2012, the same came to be

disposed of on the next day i.e., 24.04.2012, and that W.P.No.12790 of

2012 was filed on 26.04.2012 and on the next day i.e., on 27.04.2012,

the same came to be disposed of.

13. The aforesaid submissions are all factually correct though no

ground of denial of adequate opportunity to defend is taken.

HCJ & NJS,J W.A.Nos.480 and 482 of 2021

14. Though the petitioners in the affidavit stated that the State

Government in several similar cases considered absorption of unaided

teachers on the request of managements and issued orders, no specific

instances had been given. On the basis of mere statement of the

petitioners, the learned single Judge came to the conclusion that there

cannot be any doubt that the respondents had considered the cases of

similarly situated persons. Though in the appeal proceedings, some

documents have been filed by both the parties, we are of the

considered opinion that it will not be appropriate to record any finding

on the issues arising in the absence of a proper affidavit by the

appellants.

15. Accordingly, impugned judgments of the learned single Judge in

both the writ petitions are set aside. These matters are remanded to

the learned single Judge to re-consider and dispose of the same after

affording opportunity to the parties on record.

16. We permit the appellants to file affidavit on or before 20.09.2021

before the learned single Judge, failing which no further time may be

granted to file affidavit and the case may be proceeded with treating

the averments made in the writ affidavit as admitted facts.

17. Registry will list the writ petitions before the appropriate single

Judge having roster on 22.09.2021. We request the learned single

Judge to consider hearing of the writ petitions as expeditiously as

possible.

HCJ & NJS,J W.A.Nos.480 and 482 of 2021

18. With the above directions and observations, the Writ Appeals are

allowed setting aside the orders under appeal. No costs. Pending

miscellaneous petitions shall stand closed.

ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J

Nn