Andhra Pradesh High Court - Amravati

B.Venugopal Rao And Anothers vs Prl.Secretary School Education ... on 15 June, 2022

          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.

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

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.

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

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

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."