Ch. Padmakar, R/O. Guntur vs Govt. Of A.P., Higher Education 2 ...
2023 Latest Caselaw 1361 AP

          HONOURABLE SRI JUSTICE M. GANGA RAO

                  Writ Petition No.3847 of 2008

ORDER:

The petitioner filed this writ petition seeking writ of

mandamus:

(a) 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;

(b) 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; and

(c) by holding the action of the respondent Nos.1 to 3 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 Scheduled Caste

community. He passed Masters Degree in Physical Education in

the year 1995. The 3rd respondent college issued Advertisement

dated 10.5.2002 calling for applications for the post of single and

solitary post of Physical Director (Aided post) duly prescribing

qualifications. The petitioner submitted his application in 2 MGR, J W.P.No.3847 of 2008

response to the advertisement as he is fully eligible and qualified

to be appointed as Physical Director in the 3rd respondent College.

He was selected by the duly constituted selection committee as per

the procedure and the 3rd respondent college has given

appointment order dated 16.7.2002 and he joined duty on

16.7.2002. The 3rd respondent submitted a letter to the 2nd

respondent on 19.7.2002. The Board of Intermediate Education

sought for some clarification from the Regional Inspection Officer

about the selection process. In turn, the Regional Inspection

Officer wrote back vide proceedings dated 23.4.2003 explaining

that 4 out of 6 selection committee members attended and

recommended for approval. The Intermediate Board approved his

appointment through proceedings dated 05.06.2003. In view of

approval by the 2nd respondent, the 3rd respondent sent proposal

to the 2nd respondent to admit the petitioner in grant-in-aid and

the same was accorded by the 2nd respondent with effect from

16.7.2002 from the date of joining in the college. Despite approval

of the petitioner's appointment by the Board and admitting grant-

in-aid, 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 3 MGR, J W.P.No.3847 of 2008

them are getting salaries, whereas the petitioner is being denied

payment of salaries, which is illegal and arbitrary.

3. This Court, on 25.2.2008 while issuing rule nisi admitted the

writ petition and granted the following interim order in

WPMP.No.5021 of 2008:

"There shall be an interim direction to the 2nd respondent to consider releasing the salary of the petitioner from 16.07.2002 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."

4. In pursuance of the same, by proceedings dated 13.4.2008

the 2nd respondent rejected the petitioners claim. The said order

is also under challenge by way of amendment to the writ petition.

5. The 2nd respondent filed counter on his behalf and on behalf

of the 1st respondent 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 that all

departments and offices in the State Government should 4 MGR, J W.P.No.3847 of 2008

necessarily send requisitions to the Government in the Finance

and Planning Department to fill every kind of post whether full

time or part-time, contingent or any other category and after

getting clearance from the government in Finance Department

such post can be filled and in the event of non availability of

suitable candidates, it would be the responsibility of the

government in Finance and Planning (FW) Department to issue

required requisitions to the A.P. Public Service Commission or to

the relevant recruitment Agency/Special Selection Board or to the

District Employment Exchange for sponsoring candidates to be

appointed. That being the rule position, 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 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.

6. The G.O.Ms.No.119 dated 22.03.1991 and G.O.Ms.No.12

dated 10.01.1992 relates to qualification and procedure to be

followed and constitution of Selection Committee for filling up the

vacancies in Junior and Degree Colleges in the State. Though the 5 MGR, J W.P.No.3847 of 2008

staffing pattern of the college is given by the Government while

admitting the college into grant-in-aid in the first instance, 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. In all these cases, no permission has been obtained

from Government. The Commissioner without getting prior

approval from the Government has given permission to the

management of Aided Junior College to fill up the vacant posts of

Librarians/Physical Directors during ban period, hence the

appointments made during the ban period 1996-2003 are

irregular. The Government issued G.O.Ms.No.35 Higher

Education (CE-II-1) Department dated 27.3.2006 imposing ban on

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. The petitioner filed W.P.M.P.No.13229 of 2012 to direct the

respondents to admit the petitioner into grant-in-aid and pay

salary on par with Sri P. Venugopal Reddy who is similarly placed 6 MGR, J W.P.No.3847 of 2008

like the petitioner, pending disposal of the Writ petition. The said

W.P.M.P was disposed of on 03.09.2012 holding that the petitioner

was selected by the duly constituted selection committee. The

District Vocational Educational Officer, Guntur was a nominee of

the government in the selection committee. The petitioner was

selected by the Committee and appointed by the 3rd 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:

"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 7 MGR, J W.P.No.3847 of 2008

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

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 8 MGR, J W.P.No.3847 of 2008

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 their

appointments were made after issuance of G.O.Ms.No.275 dated

14.12.1995 as such, the orders granted in other writ petitioners

are not applicable to the petitioner as he was appointed on

16.7.2002, subsequent to issuance of G.O.Ms.No.275 dated

14.12.1995 and ban imposed and subsequently, the 2nd

respondent contrary to the provisions of the Act 2 of 1994 and

G.O.Ms.No.75 dated 23.09.2002 admitted grant-in-aid without

seeking prior approval of the 1st respondent Government and the

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

made in the Junior Colleges and Degree Colleges and it is

applicable only to the appointments made in schools and his 9 MGR, J W.P.No.3847 of 2008

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 3rd respondent College issued Advertisement dated

10.05.2002 with prior permission of the 2nd respondent to fill up

the single and solitary post of Physical Director in the 3rd

respondent college. But a perusal of the advertisement filed along

with the annexure -V at Page No.25 of the writ affidavit reads that

"applications are invited for the post of Physical Director (Aided

Post). The minimum qualification for this post is M.P.E.D with

50% of aggregate marks. Applications should reach the

correspondent on or before 25.5.2002. One copy should sent to

D.V.E.O., Guntur". A reading of the advertisement clearly shows

that the post is not earmarked for any reserved candidates like 10 MGR, J W.P.No.3847 of 2008

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 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."

                                  11                              MGR, J
                                                          W.P.No.3847 of 2008

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

16.07.2002. 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 3rd 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

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 12 MGR, J W.P.No.3847 of 2008

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 appointed and 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

CSR
                     13                   MGR, J
                                    W.P.No.3847 of 2008


      HON'BLE SRI JUSTICE M. GANGA RAO




            W.P.No.3847 OF 2008

              DT:        .03.2023




CSR