Constitution Of India For The ... vs State Of Andhra Pradesh And ...
2022 Latest Caselaw 4405 AP

           HON'BLE DR. JUSTICE K. MANMADHA RAO

               WRIT PETITION No.15311 of 2020
ORDER :

This writ petition is filed under Article 226 of the

Constitution of India for the following relief:-

"to pass an order or direction more particularly in the nature of writ of mandamus declaring the G.O.Ms.No.25 School Education-IE Department and G.O.Ms.No.26 School Education-IE Department, dated 11.03.2016 as illegal and arbitrary and consequently direct the promotions of the petitioners as they are eligible for promotion prior to the issuance of the impugned G.Os and are entitled to be promoted as per the extant rules applicable as on their date of eligibility for promotion and to grant such other or further orders......."

2. Brief facts of the case are that the petitioners are

appointed as Physical Directors and working as such in

Physical Director Grade-II are the posts of Physical Directors in

School Education and are eligible for promotion to the post of

Physical Director in Government Junior Colleges which are

known as Physical Director in Government Junior College. As

per the G.O.Ms.No.79 Higher Education (IE.I) Department,

70% of the total vacancies of Physical Directors in Government

Junior Colleges shall be filled up by promotion from the

Physical Directors Grade-II of the School Education

Department. Out of the total number of vacancies, 70% are to

be filled up by promotion and 30% by direct recruitment,

which is in consonance with the Recruitment Rules issued

from time to time.

While things stood thus, the respondents sought to rely

upon an inapplicable judgment and deprived such benefit of

promotion and not considering the Grade-II physical Directors

for promotion by appointment by transfer to the post of

Physical Director of Government Junior College in accordance

with the A.P. Intermediate Education Subordinate Service

Rules issued vide G.O.Ms.No.79 Higher Education dated

25.11.2002 in O.A No.5866 of 2013 on the file of A.P

Administrative Tribunal, Hyderabad and the same was allowed

in terms of OA No.5298 of 2013 dated 15.3.2016, which reads

as under:

"Having regard to the factual circumstances pertaining in this case, the rules issued in G.O.Ms.No.79 Higher Education (IE.1) Department, dated 25.11.2002 are in existence and as such, the Applicants are eligible and entitled to be considered for appointment by transfer to the post of Physical Director in Government Junior Colleges and as such, the Respondents are directed to consider the cases of the Applicants for appointment by transfer to the post of Physical Director in Government Junior Colleges as per rule as per their eligibility and pass appropriate orders."

The said orders were confirmed by this Court as well as

the Hon'ble Supreme Court. This Court in its judgment held

that the Physical Education Director Grade-II are entitled for

promotion to Physical Director in Government Junior College.

This Court in WP No.35063 of 2017, held as under:

"It is ironical why the petitioners plead that the Rules notified under G.O.Ms.No.79 dated 25.11.2002 are contrary to the ratio laid down in Jagannadha Rao case, it is noticed from the record that while the judgment in Jagannadha Rao's case rendered on 17.11.2001, rules were notified on 25.11.2002 i..e, more than one year after the judgment was rendered by the Apex Court. Moreover, though more than 15 years had elapsed after the judgment in Jagannadha Rao case was rendered, the petitioners have not rescinded the Rules.

Similarly, to give effect toG.O.Ms.No.25 and

G.O.Ms.No.26 of even date of the issue, which was published

in an extraordinary issue of the A.P. Gazette dated 11.3.2016

whereby the rules are amended to the effect that the post of

Physical Director in government Junior Colleges shall be filled

up by direct recruitment 100% and the appointing authority is

the Joint Director, Intermediate Education. By virtue of the

aforesaid two G.Os which are impugned in the instant petition,

the Physical Directors Grade-II are made ineligible to be

promoted as Physical Director in Government Junior Colleges

of A.P. Challenging the said G.O.s, the present writ petition is

filed.

3. Counter affidavit is filed by the 2nd respondent while

denying all the allegations made in the petition contended that

the in the light of the law, as laid down by the Hon'ble

Supreme Court of India in V. Jagannatha Rao & Others vs.

State of Andhra Pradesh and others1, the posts of Junior

Lecturers in Higher Education department can be filled up by

employees from a lower cadre in the same unit of appointment

as defined under the Presidential order or by "transfer" from

another equivalent horizontal cadre organized under

Presidential order. In the present case, all the posts of School

Education Department were organized into local cadres vide

G.O.Ms.No.529, Education department, dated 14.05.1976

whereas the posts of Higher Education Department were

organized into separate local cadres vide orders issued in

Appeal (Civil_ 9643-9644 of 1995

G.O.Ms.No.572, Education Department, dated 24.05.1976.

Hence, the ratio laid down by the Apex Court in V.Jagannadha

Rao's case (supra) makes it impermissible to consider the local

cadres of School Education Department for appointment by

"transfer" to the part of Junior Lecturers in Higher Education

Department and the Rule - 3(8) of G.O.Ms.No.302, Education

Department, dated 30.12.1993, being repugnant to the

provisions of the Presidential Order, would not be valid to that

extent.

It is further stated that the promotions shall be effected

only in the regular line. The promotion of Physical Director

Grade-II under the control of School Education Department as

Physical Director in the Department of Intermediate Education

is not in regular line. Hence the petitioners are not eligible for

promotion in terms of the orders of the Hon'ble Apex Court

stated supra. It is further stated that the Division Bench of

this Court in its interim order dated 27.03.2018 in I.A No.1 of

2018 in WP No.9975 of 2018 directed to effect promotion to the

post of Principals in Government Junior Colleges keeping in

mind the law laid down in M.Kesavulu Vs State of Andhra

Pradesh which was confirmed by the Hon'ble Apex Court and

made clear that, they shall not promote any candidate who

would not come within the zone of consideration in terms of

the aforesaid order. The said case is still pending before this

Court. Now, the petitioners herein are working in the School

Education is in one local cadre and Intermediate Education is

in another local cadre i.e., in Higher Education Department.

Hence considering promotions of School Assistants (PET) as

Physical Directors from one local cadre to another local cadre

is violation to Para 5(2)(c ) of Presidential Order and also as per

the interim order of Division Bench of this Court as stated

supra.

4. Counter affidavit is filed by the 3rd respondent while

denying all the allegations made in the petition contended that

in pursuance of status quo on Unified Service Rules granted by

this Court in W.P.No.32717 of 2017 & 32738 of 2017, no

promotions have been taken place in the department of school

education, except giving promotions up to the post of Head

Masters, which have been taken up in pursuance to the orders

passed by the Tribunal in O.A.No.2470 of 2018 as per their

seniority and eligibility in their parent unit only. Further, the

petitioners' contention is that they are eligible to be promoted

to 2016 even prior to issuance of impugned GOs and their

cases need to be considered as per law laid down by Hon'ble

Supreme Court in Y.V. Rangaiah judgment. In this regard,

this respondent has neither sent proposals nor made

recommendations for amendment of service rules. The entire

correspondence has taken place between the Government and

the 2nd respondent. Thus, the petitioners have not warranted

any grounds for the interference of this Court and hence

prayed to dismiss the writ petition.

5. Heard Mr. P. Bhaskar, learned counsel appearing for

the petitioners and learned Government Pleader for Education

and learned Government Pleader for Services-III appearing for

the respondents.

6. On hearing, this Court observed that the petitioners

are appointed as Physical Directors and working as such in

Physical Director Grade-II as per the table, which is notified at

page-19 of the material paper, it clearly indicates that the

petitioners are eligible to be promoted prior to 2016 i.e., even

prior to the G.O.Ms.No.25 and G.O.Ms.No.26, dated

11.03.2016 which are impugned in the present writ petition.

Therefore, the rules that are in vogue as on date of their

eligibility shall be considered as per the plethora of judgments

pronounced by the Hon'ble Supreme Court from time to time.

In the instant case the issuance of G.O.Ms.No.25 and

G.O.Ms.No.26, dated 11.03.2016 is malafide inasmuch as the

said G.Os were issued to nullify the judgments rendered by the

A.P. Administrative Tribunal as well as the High Courts and

also the Hon'ble Supreme Court. Further the rules being

framed under the Presidential Order, the amendments cannot

be brought in unless the Presidential Order is amended.

7. It is pertinent to mention here that the Physical

Directors Grade-II are the posts of Physical Directors in School

Education and are eligible for promotion to the post of Physical

Director in Government Junior Colleges which are known as

Physical Director in Government Junior College. As per

G.O.Ms.No.79 Higher Education (E.1) Department, dated

25.11.2002, 70% of the total vacancies of Physical Directors in

Government Junior Colleges shall be filled up by promotion

from the Physical Directors Grade-II of the School Education

Department. Out of the total number of vacancies, 70% are to

be filled up by promotion and 30% by direct recruitment,

which is in consonance with the Recruitment Rules issued

from time to time.

8. Having regard to the facts and circumstances of the

case, this Court deems fit to dispose of the writ petition while

setting aside the G.O.Ms.No.25 and G.O.Ms.No.26 School

Education (IE) dated 11.3.2016 issued by the 1st respondent.

9. Accordingly, the Writ Petition is disposed of setting

aside the G.O.Ms.No.25 and G.O.Ms.No.26 School Education

(IE) dated 11.3.2016 issued by the 1st respondent. The Rules

issued in G.O.Ms.No.79, dated 25.11.2002 are in existence and

as such, the petitioners are eligible for promotions prior to the

issuance of the impugned G.Os. and are entitled to be

promoted as per the extent rules applicable as on their date of

eligibility for promotion. Hence, the respondents are directed

to consider the case of the petitioners for promotion, as per

Rules and as per their eligibility and pass appropriate orders.

There shall be no order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date : 22-07-2022 Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

WRIT PETITION No.15311 of 2020

Date : 22.07.2022

Gvl