Bojja Obulreddy, Kadapa District vs Govt. Of A.P. Hyderabad 3 Others
2023 Latest Caselaw 1360 AP

          HONOURABLE SRI JUSTICE M. GANGA RAO

                 Writ Petition No.8811 of 2008

ORDER:

The petitioner filed this writ petition seeking writ of

mandamus:

(a) to direct the 3rd respondent to approve the appointment of the petitioner;

(b) to direct the 2nd respondent to admit the petitioner grant-in-aid;

(c) to direct the 1st respondent to pass appropriate orders in ratifying the proposal sent by the 2nd respondent in the matter of appointment of the petitioner as Physical Director;

(d) to direct the respondents to pay the salary for the period functioned till such decision is taken by holding the action of the 1st respondent in not taking any steps or decision in the matter; and

(e) the action of the respondent Nos.1 to 4 in not paying the salary though similarly placed persons are being paid as bad, illegal, arbitrary, unconstitutional and violative of Constitution of India.

2. The petitioner claims that he belongs to OC Community. He

passed Masters Degree in Physical Education in the year 1996.

The 4th respondent college issued Advertisement dated 10.7.2003

calling for applications to fill up the single and solitary post of 2 MGR, J W.P.No.8811 of 2008

Physical Director (Aided post) duly prescribing qualifications. The

petitioner submitted his application in response to the

advertisement as he is fully eligible and qualified to be appointed

as Physical Director in the 4th respondent College. He was

selected by the duly constituted selection committee as per the

procedure and the 4th respondent college has given appointment

order dated 24.9.2003 and he joined duty on 24.9.2003. The 4th

respondent sent proposal to the 3rd respondent for approval of the

post of Physical Director through proceedings dated 29.9.2003.

Despite the petitioner's appointment was approved by the Board,

he was not being paid salary. Several other Physical Directors and

Librarians who are similarly situated to that of the petitioner were

appointed by the different private aided colleges across the State

even after appointment of the petitioner and all of them are getting

salaries, whereas the petitioner is being denied payment of

salaries, which is illegal and arbitrary.

3. This Court, on 16.09.2008 granted the following interim

order in WPMP.No.11680 of 2008:

"There shall be an interim direction to the 2nd respondent to consider releasing the salary of the petitioner from 24.09.2003 till date, as per his eligibility, and pass appropriate orders, as per law, within a period of three weeks from the date of receipt of a copy of this order, and communicate the same to the petitioner."

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                                                    W.P.No.8811 of 2008

4. The petitioner filed WPMP.No.13224 of 2012 seeking a

direction to the respondents to admit the petitioner into grant-in-

aid and pay salary on par with Sri P. Venugopal Reddy who is

similarly placed like the petitioner herein. This Court, by order

dated 17.9.2012, following the order passed in WP.No.3847 of

2008 dated 03.09.2012 directed the respondents 1 and 2 to admit

the petitioner to grant-in-aid and pay the salary at the minimum

of the pay with effect from 01.10.2012, subject to the result of the

writ petition.

5. The 2nd respondent filed counter stating that Act 2 of 1994

has been enacted to regulate the appointments and prohibit

irregular appointments in offices and establishments under the

control of State Government, Local Authorities, Corporations and

bodies established under law made by the State Legislature.

Further, orders have been issued in G.O.Ms.No.275 Finance &

Planning (FW:SMPC) Department dated 14.12.1995 stipulating no

post can be filled in the departments and offices in the State

Government whether full time or part-time, contingent or any

other category without getting clearance from the Government in

Finance Department. 63 posts of Physical Directors/Librarians in

Private Aided Junior Colleges in the State were filled up during the

ban period from 1996-2003 in violation of provisions of Act 2 of 4 MGR, J W.P.No.8811 of 2008

1994 and the orders issued in G.O.Ms.No.275 dated 14.12.1995

without getting prior approval from the Government and requested

the Government to cancel all the irregular appointments made

during the ban period i.e., 1996-2003 and directed to treat the

said appointments as contract appointments as they were made in

contravention of the orders issued by the Government.

Accordingly, a show cause notice was issued to all the 63 Physical

Directors and Librarians who were appointed irregularly,

including the petitioner through proceedings dated 12.01.2010.

Aggrieved by the show cause notice, the petitioner filed

W.P.No.2771 of 2010 before the High Court. The High Court in its

order in WPMP.No.3657 of 2010 suspended the show cause notice

and the petitioner is continuing in service. The 3rd respondent has

not approved the appointment of the petitioner in terms of

G.O.Ms.No.29 dated 05.02.1987. Prior permission has to be

obtained from the Government for filling up vacant posts in aided

Junior Colleges as per G.O.Ms.No.275 dated 14.12.1995 and in

this case, no permission has been obtained from the Government

and the appointments made during the ban period 19962003 are

prima facie irregular.

6. The Government issued G.O.Ms.No.35 Higher Education

(CE-II-1) Department dated 27.3.2006 imposing a general ban on 5 MGR, J W.P.No.8811 of 2008

filling up vacant aided posts in Private Aided Junior/Degree

Colleges and Polytechnics, through direct recruitment except in

respect of SC/ST backlog vacancies. It has also been decided by

the government to initiate disciplinary action against the

concerned Commissioner/Director/officials who were responsible

for these irregular appointments under Rule 24 (1) of APCS

(CC&A) Rules, 1991.

7. Learned counsel for the petitioner contends that the

petitioner was selected by the Committee and appointed by the 4th

respondent College and nearly 63 other Physical

Directors/Librarians who have been similarly approved were

selected for appointment in various colleges in the State.

However, in pursuance of the interim order, the petitioner is being

paid minimum salaries from 01.10.2012 onwards. When the

appointments of the 63 Physical Directors/Librarians in the

Private Aided Colleges sought to be cancelled, they approached the

common High Court of Andhra Pradesh. By virtue of the interim

order, they were continued and paid salaries. Finally, the batch of

Writ Petitions in W.P.Nos.2543 of 2010 and Batch were allowed by

High Court for the State of Telangana, by order dated 11.09.2019.

The operative portion reads thus:

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                                                      W.P.No.8811 of 2008

"Having considered the rival submissions made by the learned counsel on either side, this Court is of the view that the impugned show cause notices have been issued to the petitioners based on G.O.Ms.No.275 dated 14.12.1995, whereas the 2nd respondent has given permission to fill up the vacancies much prior to the issuance of G.O.Ms.No.275 dated 14.12.1995 i.e., 20.3.1995. Entire regular selection process was over before issuance of G.O.Ms.No.275 dated 14.12.1995. The contention of the respondents that the appointment of the petitioners is contrary to G.O.Ms.No.275 dated 14.12.1995 has no application to the cases on hand. Admittedly, G.O.Ms.No.275 dated 14.12.1995, has no application to the facts and circumstances of the case as the said G.O was issued after lapse of nine months from the date of giving permission by the 2nd respondent to the 4th respondent to fill up the said vacancies. It is also noticed that the impugned show cause notices were issued to the petitioners without taking into account G.O.Ms.No.75 dated 23.09.2002, wherein it was categorically held by the State Government that G.O.Ms.No.275 dated 14.12.1995has no application when it comes to appointment made in aided private educational institutions. Hence, all the writ petitions are liable to be allowed.

Accordingly, all the writ petitions are allowed and the impugned Memos dated 02.01.2010 and the impugned show cause notices dated 12.01.2010 are set aside. No costs."

The orders of the High Court were implemented after filing

Contempt Case, by issuing proceedings Rc.No.Admn.I/1055/2020

dated 08.02.2021 by the Commissioner of Intermediate Education,

Telangana State, Hyderabad and they were being continued and

paid salaries by admitting them into grant-in-aid posts. This

Court also following the said judgment allowed the several writ

petitions. One such writ petition is W.P.No.2485 of 2010. The 7 MGR, J W.P.No.8811 of 2008

learned counsel for the petitioner contends that the petitioner is

also similarly placed.

8. Learned Government Pleader for Higher Education

vehemently contended that the petitioner's case is not similar and

identical to that of the case of 63 persons who were appointed as

Physical Directors and Librarians in the Private Aided Junior

Colleges during the ban period 1996-2003 in violation of the

provisions of Act 2 of 1994 and G.O.Ms.No.275 dated 14.12.1995

without getting prior approval from the Government and

subsequently their appointment is sought to be cancelled by

issuing show cause notices. This Court interfered and granted

interim direction and by virtue of the interim order therein, they

were continued and now in pursuance of the interim order granted

in batch of writ petitions, they were continued and admitted into

grant-in-aid. The marked difference in this case is that the

appointment of the petitioner was made after to issuance of

G.O.Ms.No.275 dated 14.12.1995 as such, the orders granted in

other writ petitions are not applicable to the petitioner as he was

appointed on 24.9.2003, subsequent to issuance of

G.O.Ms.No.275 dated 14.12.1995 and ban imposed. Further,

provisions of G.O.Ms.No.75 are not applicable to the appointments

made in the Private Aided Junior Colleges and Degree Colleges 8 MGR, J W.P.No.8811 of 2008

and it is applicable only to the appointments made in schools and

his appointment is also not a special drive recruitment to the

backlog vacancies for SCs and STs as exempted from

G.O.Ms.No.35 dated 27.3.2006 and the exemption is only

prospective and the petitioner cannot compare himself with that of

the other persons and writ petition is devoid of merits and is liable

to be dismissed.

9. The point that would arise for consideration is whether the

selection and appointment of the petitioner as Physical Director is

legal and valid?

10. Having carefully considered the facts and circumstances,

submission of the counsel and perused the record, this Court

found that the 4th respondent College issued Advertisement dated

10.07.2003 with prior permission of the 2nd respondent to fill up

the post of Physical Director in the 4th respondent college. But a

perusal of the advertisement filed along with the annexure - II at

Page No.13 of the writ affidavit reads that "applications are invited

from the eligible candidates for the following post as per process

R.C.No.Admn-1-2/49/2003 dated 25.3.2003 of the Commissioner,

Intermediate Education, A.P, Hyderabad. Physical Director - 1

post (Aided) Qualifications: Any Graduate with M.P.Ed course.

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                                                         W.P.No.8811 of 2008

The interested candidates may apply with Bio-data and the

application should reach the undersigned within 10 days from the

date of advertisement." A reading of the advertisement clearly

shows that the post of Physical Director is not earmarked for any

reserved candidates like SC, ST and BC and is not a special drive

to fill up the post of backlog vacancies. The said advertisement

was issued after coming into force of Act 2 of 1994 and

G.O.Ms.No.275 dated 14.12.1995. The exemption granted in

G.O.Ms.No.35 dated 27.3.2006 cannot be made applicable

retrospectively and it operates only prospectively. In G.O.Ms.No.75

dated 23.9.2002 it was made clear that G.O.Ms.No.275 dated

14.12.1995 has no application when it comes to appointments

made in aided private educational institutions. But the

appointment of the petitioner is prior to the said clarification. The

said GO is only applicable to the School Education Department as

contended by the learned Government Pleader but not to the

Junior Colleges. After the judgment dated 11.9.2019 passed in

W.P.No.2543 of 2010 by the High Court for the State of Telangana,

following the same, this Court also disposed of W.P.No.2485 of

2010 on 18.11.2019. The operative portion of the order reads

thus:

"Having regard to the reasons assigned in the said order, this Court does not propose to take a different view from the High 10 MGR, J W.P.No.8811 of 2008

Court for the State of Telangana in the above said order. In view of the above order, this Court deems it appropriate to allow the present writ petition also following the said order.

In view of the aforesaid reasons, the writ petition is allowed and the impugned memo, dated 02.01.2010 and consequently show causes, dated 12.01.2010 are hereby set aside."

In the said judgment, it is specifically held that appointment and

recruitment and permission and approval by the Commissioner

and Director of Intermediate Education was given much prior to

G.O.Ms.No.275 dated 14.12.1995 and that is the specific stand of

the petitioners therein and by approving the same, the writ

petitions were allowed and implemented. The facts and

circumstances in the present case are totally on a different

footing. In the present case, the petitioner was appointed on

24.09.2003. Even though the procedure is followed as

enumerated in G.O.Ms.No.12 for his selection and appointment,

but the 2nd respondent, while permitting the 4th respondent to

appoint the petitioner as Physical Director he has not obtained

prior approval of the 1st respondent Government as per

G.O.Ms.No.275 dated 14.12.1995. The contention of the learned

counsel for the petitioner is that in similar circumstances, the

Government has extended the benefit of admitting grant-in-aid to

Sri P. Venugopal Reddy, Physical Director, Sri Venugopal Swamy

Junior College, Nellore through G.O.Ms.No.11 dated 12.3.2012

and the petitioner is also entitled for the same relief. However, it 11 MGR, J W.P.No.8811 of 2008

is for the appropriate Government to extend the benefit of

admitting grant-in-aid in the case of the petitioner. Hence, the

benefit of G.O.Ms.No.11 dated 12.3.2012 could not be extended to

the petitioner and the said contention of the learned counsel for

the petitioner is unsustainable. The petitioner's further

contention that similarly situated persons to that of the petitioner

were admitted into grant-in-aid and the case of the petitioner is

denied. However, it is well settled law that Article 14 of the

Constitution of India enshrines only positive equality. Hence, the

contention of the counsel for the petitioner holds no water.

11. In view of the above discussion, this Writ Petition is found to

be devoid of merits and is liable to be dismissed and is accordingly

dismissed. No order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pending

shall stand closed.

                                                 _____________________
                                                   M. GANGA RAO, J


Date:      .03.2023

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                                    W.P.No.8811 of 2008


      HON'BLE SRI JUSTICE M. GANGA RAO




            W.P.No.8811 OF 2008

              DT:        .03.2023




CSR