Gudala Vijaya Sree, Vijayawada vs Govt Of Ap., Higher Education., ...
2023 Latest Caselaw 1364 AP

          HONOURABLE SRI JUSTICE M. GANGA RAO

                 Writ Petition No.4574 of 2008

ORDER:

The petitioner filed this writ petition seeking writ of

mandamus:

(a) to direct the 2nd respondent to admit the petitioner

grant-in-aid;

(b) 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 Librarian;

(c) 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

(d) 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 she belongs to Backward Class

community. She passed Masters Degree in Library Science in the

year 1996. The 3rd respondent college issued Advertisement dated

17.4.2003 calling for applications for the post of Librarian (Aided 2 MGR, J W.P.No.4574 of 2008

post) duly prescribing qualifications. The petitioner submitted her

application in response to the advertisement as she is fully eligible

and qualified to be appointed as Librarian in the 3rd respondent

College. She was selected by the duly constituted selection

committee as per the procedure and the 3rd respondent college has

given appointment order dated 09.6.2003 and she joined duty on

09.6.2003. The 3rd respondent submitted a letter to the 2nd

respondent on 07.8.2003. The Intermediate Board approved her

appointment through proceedings dated 06.10.2003. 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 is pending. Despite approval of the petitioner's

appointment by the Board, she 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 30.10.2008 granted the following interim

order in WPMP.No.5950 of 2008:

                              3                           MGR, J
                                                    W.P.No.4574 of 2008

"There shall be an interim direction to the respondents 1 and 2 to consider releasing the salary of the petitioner from 09.06.2003 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."

4. In pursuance of the same, by proceedings Rc.No.Admn.I-

B/701/2008-1 dated 13.12.2008 and G.O.Rt.No.1187 dated

19.12.2008 the 2nd and 1st respondents have rejected the

petitioners claim for payment of salaries. The said orders were

challenged by way of amendment to the writ petition in

WPMP.No.9326 of 2009. The petitioner filed WPMP.No.9327 of

2009 seeking a positive direction to the respondents to pay the

salary from 09.6.2003 till date and continue to pay every month.

However, this Court, by order dated 08.10.2009 not inclined to

grant the directions as prayed for compelling the respondents to

perpetuate illegality and dismissed the said WPMP. Subsequently,

the petitioner filed WPMP.No.20844 of 2011 seeking a direction to

the 1st respondent to release the salary of the petitioner on par

with similarly placed persons. This Court, by order dated

17.9.2012 following the order passed ion WP.No.3847 of 2009

dated 03.09.2012 directed the pay the respondents 1 and 2 to

admit the petitioner to grant-in-aid and pay her at the minimum 4 MGR, J W.P.No.4574 of 2008

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

writ petition.

5. The 1st respondent filed counter stating that during the ban

period between 1996 to 2002 nearly 63 Physical Directors and

Librarians were appointed in various Private Aided Junior Colleges

in the State without clearance from Surplus Man Power Cell and

out of 63 persons, 58 persons were admitted into grant-in-aid by

the then Commissioner without consulting the Finance

Department or without permission from the Higher Education

Department. No orders were issued for appointment of Physical

Directors and Librarians by the Government. When the 2nd

respondent found that the appointment of some persons were

contrary to the instructions issued by the Government and

irregular and improper, a request was made to the Government for

cancellation of 58 Physical Directors and Librarians vide Letter

dated 04.4.2005.

6. Act 2 of 1994 came into force with effect from 25.11.1993

and G.O.Ms.No.35 Higher Education Department dated 27.3.2006

was issued imposing ban on filling up the vacant aided posts and

the posts which were made contrary to the said Act and GO

cannot be admitted to grant-in-aid. If the petitioner's case is 5 MGR, J W.P.No.4574 of 2008

admitted to grant-in-aid, then similarly situated persons will also

seek admission into grant-in-aid and there will be huge burden on

the State exchequer. The petitioner cannot cite the case of the 58

persons who were admitted into grant-in-aid by the then

Commissioner, without seeking approval from the Finance

Department as a precedent for getting admission to the grant-in-

aid as the same was irregular, improper and contrary to the

instructions of the Government.

7. Learned counsel for the petitioner contends that 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:

                              6                             MGR, J
                                                      W.P.No.4574 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.4574 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 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 she was

appointed on 09.6.2003, 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.4574 of 2008

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

her 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 herself 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 Librarian 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

14.04.2003 with prior permission of the 2nd respondent to fill up

the post of Librarian in the 3rd respondent college. But a perusal

of the advertisement filed along with the annexure - III at Page

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

women candidates only with less than 33 years of age as on

01.07.2003 for the aided posts of Librarian and Physical Director

(Un-reserved ) and also for the Aided post of Lecturer in English

belonging to S.T. Women or any SC category (Woman) with less 9 MGR, J W.P.No.4574 of 2008

than 38 years of age along with certificates relating to

qualifications, marks, experience to reach the Secretary,

Siddhartha Academy of General &Technical Education,

Vijayawada on or before 25.4.2003 with a copy sent to the

Secretary, Board of Intermediate Education, AP, Hyderabad". A

reading of the advertisement clearly shows that the post of

Librarian 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 10 MGR, J W.P.No.4574 of 2008

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."

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

09.06.2003. Even though the procedure is followed as

enumerated in G.O.Ms.No.12 for her selection and appointment of

the petitioner, but the 2nd respondent while permitting the 3rd

respondent to appoint the petitioner as Librarian he has not

obtained prior approval of the 1st respondent Government as per

G.O.Ms.No.275 dated 14.12.1995. The petitioner's further

contention that similarly situated persons to that of the petitioner 11 MGR, J W.P.No.4574 of 2008

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

CSR
                     12                   MGR, J
                                    W.P.No.4574 of 2008




      HON'BLE SRI JUSTICE M. GANGA RAO




            W.P.No.4574 OF 2008

              DT:        .03.2023




CSR