THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION Nos.28138 and 28676 of 2010 Dated:25.08.2011 Between: The State of Andhra Pradesh, Rep.by its Principal Secretary to Government Higher Education (CE.I) Department, Secretariat, A.P., Hyderabad, And others. … Petition And Banada Upender Reddy, And others. ... Responde THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION Nos.28138 and 28676 of 2010 COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) These writ petitions are filed by the State and the Commissione Collegiate Education against interlocutory orders passed by the And Pradesh Administrative Tribunal in two different original applications, involving a similar point. This Court while admitting the writ petitions suspended the interlocu orders passed by the learned Tribunal. The contesting respondents/applica before the Tribunal have come forward with applications to vacate the ex p orders of the interim suspension. At that stage itself with the consent of Government Pleader and the Counsel for the respondents the matters are he and are being disposed of finally. By referring to the parties as they are arrayed in the original applica we would notice the fact of the matter in brief. In W.P.No.28138 of 2010 interlocutory order dated 05.10.2010 in O.A.No.5418 of 2010 w V.M.A.No.2399 of 2010 is challenged. The said original application was f by two Junior Lecturers. The first applicant is statedly postgraduate Chemistry and passed National Eligibility Test (NET) in 2009. He w appointed as Lecturer in Government Junior College in accordance with Andhra Pradesh Collegiate Educational Services Rules, 2007 (the Ru (promulgated vide G.O.Ms.No.47, dated 14.05.2007). The second applicant postgraduate in Mathematics and passed NET in 2002. He was appointed Junior Lecturer in accordance with the Rules. They claim that they are elig for appointment to the post of Lecturer in Degree College in terms of the Ru They filed the O.A alleging that the respondents are considering the unquali persons for the posts of Lecturers in Degree College ignoring the Governm instructions in Memo No.53975/Ser.D/2000-3, dated 09.01.2001. They a allege that the unqualified Junior Lecturers, respondent Nos.4 to 9, are be considered in accordance with Memo No.5668/CE-1-1/2009, da 24.06.2010. They prayed for invalidation of the Government Memo da 24.06.2010, and for a direction to the respondents to consider their cases promotion as per the Memo dated 09.01.2001. Considering their application interlocutory prayer, learned Tribunal passed the interim order directing respondents to consider the case of the candidates who are fully qualified b educationally and having minimum qualifying service as per the Rules thereafter consider the cases of the candidates who possess educatio qualifications, but not the minimum qualifying service. The learned Tribu also directed to consider the cases of Junior Lecturers, who do not possess required qualifications. In W.P.No.28676 of 2010 the sole applicant is a postgraduate Mathematics and also obtained M.Phil. She was appointed as a Junior Lect in 1998. She filed O.A.No.7358 of 2010 praying for a direction that sh entitled to be considered for appointment to the post of Lecturer in Deg College against the vacancies which arose prior to 01.06.2009 with reference to University Grants Commission (UGC) Regulations, 2009 amendment) and that she is entitled to be appointed in city category a qualified candidate in preference to her juniors. She also sought interim re Considering the same, learned Tribunal passed orders on 29.10.2010 direc the respondents to consider her case for appointment by transfer to the pos Lecturer in Government Degree Colleges for the vacancies that arose prio 11.07.2009 as a qualified candidate. This Court while admitting the matter granted interim suspension. sole applicant moved the application for vacating the interim order, and matter is being heard finally with the consent of the counsel for both sides. The Government Pleader for Services-I submits that the applicant O.A.No.5418 of 2010 joined as Junior Lecturers on 30.06.2008, that they do possess requisite qualified service of three years, and therefore the ord issued by the learned Tribunal are contrary to the Rules. He also points out the impugned order of the learned Tribunal is contrary to the directions iss by this Court in W.P.M.P.No.37324 of 2008 in W.P.No.28476 of 2008, and directions issued to consider for appointment by transfer of Junior Lecturer the posts of Lecturers in Degree Colleges by classifying them into th categories is unjustified. He has also taken us through the Rules and amendments made to the Rules in July 2008 and August 2010. Insofar as other writ petition is concerned, he would submit that the sole applicant is qualified for appointment by transfer to the post of Lecturer, and therefore, direction issued in O.A.No.7358 of 2010 to consider her case as if she qualified is erroneous. The Andhra Pradesh Collegiate Education Service is governed by Rules of same title. The post of Lecturers in Government College is include Category 2 in Class B. The qualifications and method of appointment are d with by Rule 8 and Annexure to the Rules. The method of appointment to post of Lecturer in Government Degree College is by direct recruitmen recruitment by transfer from Junior Lecturers in the relevant subject workin the Government Junior College. The qualifications for recruitment by tran are i) Good academic record with a minimum of 55% marks or an equiva grade of B in the 7 point scale with letter grades O, A, B, C, D, E & F at Master’s Degree level, obtained from the Universities recognized in India. candidate should have passed NET for Lecturers conducted by UGC, CSIR similar tests accredited by the UGC or State Level Eligibility Test (SL conducted by APPSC. As per note (4) to the Annexure, NET/SLET remain compulsory requirement for appointment as Lecturer. This is, however, rela in respect of the candidates who have M.Phil degree in the concerned subj for Under Graduate (UG) Level teaching, and in respect of the candidates w have Ph.D degree in the concerned subject, for both Post Graduate (PG) UG Level teaching. An amendment to the Rules was made vide notificatio G.O.Ms.No.123, dated 21.07.2008, adding note (6) after note (5) in Annexure to the Rules. The effect of the note is that notwithstanding anythin note (4), candidates possessing at least 55% marks at the PG leve equivalent grade of ‘B’ in the 7 point scale at Master Degree Level in relevant subject shall be considered for recruitment by transfer to the pos Lecturer, but they shall be given the State Pay Scales only. They are requ to acquire the additional higher qualifications like NET/SLET/M.Phil/Ph.D wi a period of five years, and only thereafter, they will be given UGC Pay Sca from the date of acquiring the additional higher qualifications. Yet again, Government made amendments by notification vide G.O.Ms.No.128, da 24.08.2010 substituting note (4). As per the newly inserted note (4), NET/SL shall remain the minimum eligibility condition for recruitment and appointmen Lecturers in Government Degree Colleges/Government Oriental Colleges. the candidates with Ph.D degree in compliance with the UGC (minim standards and procedure for award of Ph.D Degree) Regulations, 2009, s be exempted from the said requirements. The word “M.Phil” in note (6) w omitted. The conspectus of the Rules as amended by G.O.Ms.No.123, da 21.07.2008, and G.O.Ms.No.128, dated 24.08.2010, as on 31.08.2010 is follows. A Junior Lecturer working in Government Junior College is eligible recruitment by transfer to the post of Lecturers in Government Degree Coll only if he/she has i) Good academic record with a minimum of 55% marks o equivalent grade of B in 7 point scale at the Master’s Degree level obtai from the Universities recognized in India; ii) must have passed NET/SL However, this qualification is relaxed only in the case of candidates who h Ph.D degree and iii) must have put in three years of service in the categor Junior Lecturers. The Junior Lecturers with qualifying service, but with NET/SLET or Ph.D can also be considered for recruitment by transfer to post of Lecturers but they shall be given State Pay Scales and subjec acquiring the additional qualifications (NET/SLET/Ph.D) they shall be admi to UGC Pay Scales from the date of acquiring the additional qualifications. We have carefully perused the orders passed by the learned Tribu and considered the submissions made by the Government Pleader and Counsel appearing for the applicants/respondents. The rule position is v clear that the interim directions issued by the learned Tribunal would amoun issuing a direction contrary to the law and amounts to compelling respondents to take action ignoring the statutory rules made by the Governm under the proviso to Article 309 of the Constitution of India which ha indisputably, the force of law. Prima facie, therefore, we are convinced that directions cannot be sustained, especially, when the applicants in O.A.No.5 of 2010 did not complete three years of qualifying service. Insofar as applicant in O.A.No.7358 of 2010 is concerned, our attention has been inv to the resolution of the UGC dated 27.09.2010 exempting from the requirem of NET for the purpose of appointment as Lecturer/Assistant Professor in c the candidates who obtained M.Phil degree on or before 10.07.2009. W note (4) to the Rules categorically declares that NET/SLET shall be m minimum eligibility condition for recruitment and appointment of Lecturer Government Degree Colleges, the applicant cannot claim any relaxat unless the resolution of UGC is read into the Rules by way of amendment o any clarification having force of law. Therefore, we are inclined to accept submission of the Government Pleader. The service law jurisprudence must necessarily comply with mandate of equality clause in Articles 14 and 16 of the Constitution of Indi any unqualified person is appointed even on temporary/adhoc basis igno the qualified persons as per the Rules, the same would be hit by Article 16. public servant can ever claim a right of appointment or promotion unless fulfils the eligibility criteria like age, educational qualifications, experience e in case of promotion and other conditions attached thereto. I n Prit Singh v S.K.Mangal[1], the Supreme Court quashed appointment of a person to the post of Principal on the ground that he did possess higher second class postgraduate qualification with 55% mark appointments are made to civil posts under the State without advertising only calling names from employment exchange, the same would not satisfy requirement of Article 16 (Telecom District Manager v Keshad Deb[2]). If unqualified and ineligible person is appointed ignoring those who are qualif it cannot answer the test of Articles 14 and 16 of the Constitution of In (J.P.Kulshrestha (Dr) v Allahabad Univesity[3]). If a candidate belongin OC category is appointed against a vacancy reserved for candidates belong to SC/ST, such appointment is void. The appointment of ineligible unqualified person to a civil post is not only irregular but also illegal wh cannot be cured. In such a case, the appointee does not acquire an enforcea right (Promod Kumar v UP Secondary Education Service Commission and an illegal appointment cannot be precedent for others to claim sim treatment because the purpose of Article 14 is to ensure equality and no negate it by perpetuating illegality (M.K.Bhatt v State of J&K[5]). Finally, the extra power of relaxation is not available de hors the Ru and the essential qualifications can never be relaxed (APPSC v B.Swapna The appointments to Government jobs made without following due process Rules for appointment, did not confer any right on the appointees, and theref no Court can direct their absorption, regularization or re-engagement. Any s direction would be contrary to the constitutional scheme (Secretary, State Karnataka v Uma Devi(3)[7]). There is no dispute that the applicants in O.A.No.5418 of 2010 h passed NET. As of now, they have also put in minimum three years of serv Therefore, there cannot be any objection at least for the purpose of conside their cases for recruitment by transfer to the post of Lecturer. Insofar as applicant in O.A.No.7358 of 2010 is concerned, she has completed minim three years qualification, but she has not passed NET. Her case has to considered for the post of Lecturer as per note (6) which was added amendment vide G.O.Ms.No.123, dated 21.07.2008. The Government Plea does not seriously dispute this position. In the result, for the above reasons, we are inclined to modify the ord passed by the learned Tribunal in both the O.As., directing the petitioner consider the cases of the applicants for the posts of Lecturers by recruitmen transfer in the manner indicated hereinabove. The Writ Petitions are disposed of accordingly. There shall be no o as to costs. _____________ (V.V.S.RAO ________________ (K.G.SHANKAR 25.08.2011 vs [1] 1993 Supp (1) SCC 714 [2] (2008) 8 SCC 402 [3] (1980) 3 SCC 418 [4] (2008( 7 SCC 153 [5] (2008) 9 SCC 24 [6] (2005) 4 SCC 154 [7] (2006) 4 SCC 1