Andhra Pradesh High Court - Amravati
K Sirin Kavitha vs The State Of Ap on 10 January, 2024
1
THE HON'BLE SRI JUSTICE G.NARENDAR
AND
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
W.A. No. 341 of 2023
JUDGMENT:
- (per Hon'ble Sri Justice G.Narendar)
1) Heard Sri. V. Sai Kumar, learned Counsel for the
Respondent Nos. 1 and 2 and Sri. K.V. Raghuveer, learned
Government Pleader for Higher Education for the private
institution - Respondent No.3.
2) The parties are referred to by their nomenclature before
the learned Single Judge.
3) The Petitioner is the Appellant in this Intra-Court
Appeal being aggrieved by the Order of the learned Single
Judge, whereby the learned Single Judge was pleased to
dismiss the Writ Petition under which the Petitioner had
prayed for granting retrospective approval to his Order of
Appointment, that is from date 17.06.2002 in-stead of
14.11.2005 and for quashing the Memo No.
8441/CE/A2/2008, dated 13.10.2014, under which the
request for approval of appointment with retrospective effect
came to be rejected.
4) The facts are not in dispute. Some of the undisputed
facts, necessary for disposal of the Appeal, are as under:-
(i) The 3rd Respondent College was permitted to make
appointments to posts admitted to grant-in-aid. The
process of selection was preceded by compliance of the
requirements of the Statue in the form of publication of
the notification in the daily newspapers; formation of a
Select Committee in terms of Rules and conducting
viva-voce and the same resulting in the Committee
selecting the Petitioner to the post of "Lecturer in
Political Science" and one another person Smt K.
Madhavi as Lecturer in English language subject.
(ii) The appointment of the instant Petitioner came to be
questioned before the composite High Court, by one of
the teacher working in an un-aided post, by name, Smt.
Kelangi Indira Kumari, who admittedly was not
considered against the aided posts.
(iii) It is not in dispute that the said Smt. Kelangi
Indira Kumari preferred W.P. No. 7264 of 2002 and this
Court was pleased to issue interim directions
restraining the Respondents from filling up vacancies in
the aided posts. But, by that time, the selection of the
Petitioner had been completed and orders of
appointment had been issued by the 3rd Respondent
College. It is also an admitted fact that the orders of
appointments were issued to the Petitioner in
"anticipation of the approval" by the competent
authority and against a post that was vacant.
(iv) The fact remains that, despite the interim order,
the Petitioner continued to discharge duties in the aided
post as it was claimed that the process of appointment
had been completed much before this Court could issue
the restraint order. Further, there is no other material
to demonstrate that pursuant to the interim order the
Petitioner was dislodged or order of appointment was
revoked nor is there any material to suggest that the
Respondent-State had issued any directions to the 3rd
Respondent College to revoke the order of appointment.
(v) The fact remains that there was no approval of the
selection of the Petitioner, in terms of Sub-Rule 9 of
Rule 12 of Andhra Pradesh Educational Institutions
(Establishment, Recognition, Administration and
Control of Schools under Private Managements) Rules,
1993 [the 'Rules, 1993']. It is fairly admitted that the
approval came belatedly and the appointment having
been done in anticipation of the approval. The mandate
of Sub-Rule 9 of Rule 12 of the Rules, 1993, was not
strictly complied with.
(vi) It is in this background that the Petitioner had earlier
approached this Court in W.P. No. 12812 of 2008
questioning the endorsement, dated 16.04.2008,
rejecting her request for approval of her appointment
with retrospective effect i.e., from the date the
appointment came to be issued by the 3rd Respondent
College and admittedly without awaiting approval. This
Court taking note of the intervening litigation i.e., W.P.
No. 7264 of 2002 proceeded to pass the following
Order:-
"There would not have been any difficulty to agree in
principle that, no employee or an educational
institution can compel the State to provide for
financial assistance. But however, in an identical
situation and circumstances, the State Government
has accorded the benefit of approval with
retrospective effect in the case of Ms. K. Madhavi and
the same could not have been denied in the case of
the petitioner. It would have been a different matter if
the State Government has accorded to approve the
appointment of the writ petitioner also with effect
from 17.06.2002, but however, without any monetary
benefit, from that date, inasmuch as, the State
Government would not have made a provision for
payment of grant-in-aid with retrospective effect. In
the instant case, the petitioner is a member belonging
to Schedule Caste and she has also been selected
and appointed against a backlog vacancy meant for
Schedule Caste candidates in the same college.
Unless the services of the writ petitioner are admitted
to grant-in- aid, she will not be entitled to any other
benefits including terminal benefits. Therefore, the
State should have appropriately modulated the
proposal of the Director of Collegiate Education. If the
budgetary sanctions do not allow the State
Government any liberty or freedom to approve the
appointment with retrospective effect and also pay for
her services, they could have as well approved her
appointment with effect from 17.06.2002 confining
the monetary benefit with effect from 11.11.2005.
That would have helped in parity of treatment in
principle between the case of the writ petitioner and
Ms. K. Madhavi. A terse conclusion reached by the
Government in the impugned order sans any reason,
is therefore not justifiable and hence, I have no
hesitation to set aside the impugned order of the
State Government contained in their memo No
13263/CE.II-12006-2 dated 16.04.2008 and direct
the State Government to reconsider the issue and
pass appropriate orders within a maximum period of
three months from the date of receipt of this order
and communicate the same to the writ petitioner.
Writ petition stands disposed of with this order. No
costs."
5) From a reading of the above, it is apparent that the
learned Single Judge of this Court has not only appreciated
the recommendation of the Director of Collegiate Education,
dated 23.10.2006, but has also considered the case of
the co-employee who was part of the selection process and
was declared selected by the Selection Committee and whose
appointment also became the subject matter of another Writ
Petition and whose appointment was also in anticipation of
the approval and the competent authority was pleased to
grant approval with retrospective effect and hence the learned
Single Judge was pleased to set-aside the Order rejecting her
request and directed to reconsider afresh the request of the
Petitioner.
6) The fact that the said Madhavi and the Petitioner stand
on the same footing and the case of the said Madhavi has
been considered differently is also not in dispute.
7) In view of the above facts and circumstances, the short
question that arises for consideration by this Bench is,
whether the Petitioner is entitled for the relief of retrospective
approval of her appointment?
8) The dispute lies in a very narrow compass. As noted
above, there is no dispute to the selection of the Petitioner; be
it to her qualification or be it to her eligibility to hold the post
or be it with regard to the manner and method of selection.
In-fact, the challenge to her appointment came to be rejected
by this Court in W.P. No. 7264 of 2002 by its Order, dated
19.07.2005, and, thereafter, the approval came to be issued
on 14.11.2005. But, in the interregnum, the State has also
issued proceedings, dated 24.11.2004, retrospectively
recognizing the appointment of one K. Madhavi, which
request by the Petitioner has been rejected.
9) The facts clearly disclose that there was no impediment
for the State to refuse approval of the selection. It is also not
the case of the State that the Petitioner is not eligible or
process of selection is fraudulent nor is there any other legal
impediment which prevented the State from granting timely
approval for the selection. But the fact remains that the
provisions of Sub-Rule 9 of Rule 12 of the Rules, 1993,
mandates prior approval, which implies that the approval
must precede the issuance of the order of appointment. But,
in the case on hand, the approval has been delayed on
account of litigation initiated by third parties. The fact also
remains that the litigation was rejected and this Court has
given its seal of approval to the selection of the Petitioner and
it is pertinent to state that the order of appointment had also
been issued to the Petitioner.
10) In the above background, it is apparent that the delay
that has occasioned in the matter of granting approval, for
the selection of the Petitioner, appears to be attributable to
the reasons beyond the control of both the Respondents and
the Petitioner. But the facts remains that the Petitioner has
been discharging duties in the aided post from the date of her
appointment and the Respondents have not lifted a little
finger in protest. It is not the case of the Respondent-State
that they were not aware of the appointment of the Petitioner
to the aided post. It is an undeniable fact that the
Respondent-State was also a party to the litigation, namely
W.P. No. 7264 of 2002 and it not the case of the Respondent-
State that they had protested to the appointment or protested
to the Judgment or Order of this Court, which gave its seal of
approval to the appointment of the Petitioner.
11) The learned Government Pleader appearing for
Respondent No. 3 vehemently contended that the
appointment of the Petitioner being without the approval of
the official Respondents, no recognition can be granted to the
period preceding the date of approval.
12) We have given our anxious consideration to the various
contentions canvassed by the learned Counsels. An overview
of the unddisputed facts would reveal that primarily Sub-Rule
9 of Rule 12 of the Rules, 1993, places an embargo on the
educational agency in making appointment. In the peculiar
facts and circumstances of the case, the delay which occurred
in the appointment of the Petitioner can be attributable to the
official Respondents. In view of the post lying vacant the
unofficial respondent issued the appointment order, in
anticipation of the approval, which in the opinion of this court
would have a mere formality. But unfortunately litigation was
initiated by a third party in the form of W.P. No.7264 of 2002.
In all probability the Respondents were deterred by the
interim order granted therein. Yet the official respondent
being fully aware of the same, have not raised little finger in
protest. The observations rendered by the learned Single
Judge of this Court in W.P. No. 12812 of 2008 have also not
been assailed and have attained finality. It can also be stated,
without fear of contradiction, had all things remained normal,
the approval might have been fast tracked. Be that as it may,
the time-lag has been caused on account of intervention of an
order of this Court in the form of an interim direction
restraining filling up the post, though the fact remains that
the post had already been filled up by the 3rd Respondent
issuing an order of appointment and thereby placing the
Petitioner in the aided post.
13) As noted supra, there is no dispute raised by the official
Respondents with regard to the eligibility or the sanctity of
the process in selecting the Petitioner. But, for the bar, as
noted under Sub-Rule 9 of Rule 12 of the Rules, 1993, it can
also be safely stated that neither of the parties can be faulted
for the delay. In that view of the matter, this Court is of the
considered opinion that the case of the Petitioner requires to
be considered equitably, as the Petitioner was selected and
has rendered services in an aided post only. In that view of
the matter, equities would be balanced by directing the
services rendered by the Petitioner between 17.06.2002 and
14.11.2005 be taken into consideration by the official
Respondents for the purpose of seniority and for the purpose
of calculating pensionary benefits alone.
14) We do not deem it appropriate to grant any arrears of
pay, as the appointment appears to be in the teeth of Sub-
Rule 9 of Rule 12 of the Rules, 1993, which mandates that
the appointment can be made only after approval accorded by
the State. In that view, we deem it equitable to deny the
Petitioner arrears of salary and we deem it appropriate to
allow the Appeal in part.
15) Accordingly, the Appeal is allowed-in-part. The services
rendered by the Petitioner between 17.06.2002 i.e., the date
of her appointment and date on which she took charge, and
14.11.2005 are to be calculated for the purpose of seniority
and for the purpose of calculating pensionary benefits alone.
There shall be no order as to costs.
16) As a sequel, miscellaneous petitions, if any, pending
shall stand closed.
_________________
G.NARENDAR, J
_____________________
NYAPATHY VIJAY, J
Date: 10.01.2024
- Sm..
THE HON'BLE SRI JUSTICE G.NARENDAR
AND
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
Date: 10.01.2024
Sm.
