HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE N.RAVI SHANKAR W.A.No.1726/2008 DT. 9-3-2011 1. The District Educational Officer, Kurnool and another. …Appellants V. 1. P.Bala Swamy Reddy and others. ..Respondents The Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE N. RAVI SHANKAR W.A.No.No.1726/2008 Judgment: (Per the Hon’ble Sri Justice A. Gopal Reddy) This appeal by the respondents 3 and 4 in the writ petition under Cl.15 of the Letters Patent is filed aggrieved by the orders of the learned single dt. 20-3-2007 passed in WPMP No.6976/2007 in WP No.19481/1999, whereunder the learned single Judge modified the orders passed by him in WP No.19481/1999 dt. 30-6-2005. For the sake of convenience, the parties herein will be hereinafter referred to as arrayed in the writ petition. The writ petitioner, who was selected by the Staff Selection Committee was appointed as Secondary Grade Teacher (Unaided) in the second respondent school ie., St. Joseph Upper Primary English Medium School, Nandyal, under the management of the first respondent. According to the petitioner, his appointment was approved by the third respondent, namely, District Educational Officer, Kurnool, and also by the fourth respondent, namely, Regional Director of School Education, Kadapa, on 22-4-1991. There are four schools running under the first respondent-management, namely, St. Joseph (Girls) High School, Nandyal; St. Joseph High School, Peddakottala; St. Joseph Upper Primary School, Nandyal and St. Joseph Elementary School, Peddakottala. They were under the first respondent-management prior to 1996. Further, by proceedings dt.31-8-1996 issued by the fourth respondent, all the schools under the one management in a district were treated as one unit. The first and second respondents have maintained a common seniority list of the teachers working in all the four schools. The petitioner is the senior most teacher eligible to be selected to the vacant post, for which the notification was issued on 1-7-1999. Since the respondents have not considered the name of the petitioner for absorption in the regular vacancy of Secondary Grade Teacher (Aided) in St. Joseph (Girls) High School, Nandyal (English Medium), the petitioner filed the above writ petition questioning the notification issued on 1-7-199 as illegal and for a consequential direction to the respondents to consider the case of the petitioner for absorption in the said post with effect from the date of the vacancy with all consequential benefits including monetary, seniority etc., A learned single Judge allowed WP No.19481/99 by order dt. 30- 6-2005 directing the second respondent to send the required proposals to the respondent Nos. 3 and 4 for considering the petitioner’s case for absorption against an aided vacancy that had arisen in St. Joseph (Girls) High School (English Medium) at Nandyal within a period of two months from the date of receipt of a copy of the order and further on such proposal being sent by the respondent Nos.1 and 2, the respondent Nos.3 and 4 would complete the process within a period of three months thereafter and communicate the same to the petitioner. Complaining about non-implementation of the orders dt. 30-6- 2005, the petitioner filed CC No.633/2006, and the same was closed granting liberty to the petitioner to file a clarification petition seeking further directions in respect of his absorption against any aided vacancy available in any other school holding as follows: “….. Now, the learned counsel appearing for the respondents states that though the proposals were sent by the Management, they could not be finalized for the reason that male teacher cannot be accommodated in a Girls High School unless and until he crosses fifty years of age, proceedings dt. 28-2-2007 of the Regional Joint Director of School Education, Kadapa showing the said fact has been filed. Admittedly, the petitioner is 43 years old. The learned counsel for the petitioner states that they never sought a specific direction for absorption of the petitioner against the vacancy that had arisen in St. Joseph Girls High School (English Medium), and the petitioner can very well be adjusted in any other School wherever there is aided vacancy. Unless and until such a clarification is sought by the petitioner in the writ petition, the above said proceedings dt.28-2-2007 cannot be said to be in disobedience of the orders passed by this Court”. On closure of the contempt case, petitioner filed WPMP No.6976/2007 seeking clarification of the order dt.30-6-2005 passed in WP No.19481/99. Accepting the reasons mentioned in the affidavit filed along with WPMP No.6976/2007, learned Judge by order dt. 20-3-2007, modified the order as under: “The writ petition is accordingly allowed. The second respondent is directed to send the required proposals to respondent Nos.3 and 4 for considering the petitioner’s case for absorption against an aided vacancy in any school under the Respondent Management within a period of two months form the date of receipt of this order and on such proposals being sent, the respondents 3 and 4 would complete the process within a period of three months thereafter and communicate the same to the petitioner. If any proposals already sent, the same shall be considered by the respondents 3 and 4 as per law.” On passing orders on the clarification petition, the Regional Joint Director of School Education, Kadapa by his proceedings in RC No.5351(A3)/B2/99-1 dt. 03-1-2008 directed the District Educational Officer, Kurnool, to consider the case of the petitioner for absorption into Aided post as per the directions issued in WP No.19481/99 dt. 20-3-2007 and as per the proposals submitted by the Management to the District Educational Officer, Kurnool, keeping in view the rules in vogue and as per law duly consulting the Government Pleader, High Court , Hyderabad, and submit compliance report to the Director of School Education, Andhra Pradesh, Hyderabad. After passing the above order, the present writ appeal is filed on 19-3-2008, contending that in spite of compliance of the order dt. 30-6- 2005 giving liberty to file clarification petition seeking further direction in respect of petitioner’s absorption against any aided vacancy available in any other school is improper and not maintainable in law; and the impugned order passed amending the order dt. 30-6-2005 without considering the ban imposed by the Government in Memo No.12080/COSE/A2/2004-4 dt. 20-10-2004 is erroneous and without reviewing the earlier order, such amendment cannot be ordered, that too without giving an opportunity of hearing to the Department. The writ appeal is, admittedly, filed against the amendment order but not against the order passed in the contempt case. Therefore, it is not open for the appellants to question the correctness of the observation made while closing the contempt case. We have also noticed that “for being mentioned petition” was served on the Government Pleader’s office and was notified for hearing in the list printing the name of the Government Pleader. Therefore, the contention that amendment order is passed without giving an opportunity of hearing to the Department does not merit consideration. The only ground now remains to be seen is in view of the ban imposed by the Government, whether the order of absorption can be passed or not? A perusal of the Memo No.12080/COSE/A2/2004-4 dt. 20-10- 2004 issued by the Government of Andhra Pradesh (COSE) Department would disclose that Commissioner & Director of School Education was informed of replacement of the Point No.17 Minutes of the High Level Meeting as follows: “No new posts of Grant-in-Aid would be created and the existing vacancies will also not be filled up, except what has been specifically authorized since there is General Ban on recruitment except for the posts, for which permission was specially granted by the Government” From the above memo, it is clear that Government can grant permission for filing up of posts or for absorption and the ban is only applicable for creation of new posts of Grant-in-Aid and filling up of existing vacancies, except what has been specifically authorized. The petitioner’s case does not fall under either of the categories since the petitioner seeks absorption against an aided vacancy in any of the schools under the first respondent- management pursuant to the orders passed by this court, but in fact the said order was directed to be implemented by the Regional Joint Director of School Education, Kadapa in his proceedings dt. 3-1-2008, as referred to above. In view of the same, we do not find any merits in the contentions advanced by the learned counsel for the appellants and the judgment of the Supreme Court in JAYALAKSHMI COELHO V. OSWALD JOSEPH COELHO (2001) 4 SCC 181), on which much reliance is placed, is not applicable to the facts of the present case. Since there is a hurdle for implementing the rule nisi issued earlier by this court for absorption of the petitioner against an aided vacancy that had arisen in St.Joseph (Girls) High School (English Medium), Nandyal, the learned single Judge modified the order in order to advance cause of justice in exercise of inherent jurisdiction on the ground that the petitioner has not crossed the age of 50 years and there is no dispute about maintaining common seniority list for all the schools. The writ appeal fails and is accordingly dismissed. No costs. _______________ A. GOPAL REDDY, J _________________ N. RAVI SHANKAR,J Date: 9-3-2011 kmr