THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.95 OF 2005 DATED FEBRUARY, 2010 BETWEEN Mrs.K.Mythili … Petitioner And The Principal Secretary to Government, School Education Department, Secretariat, Hyderabad. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.95 OF 2005 O R D E R The petitioner seeks a mandamus to the School Education Department of the State to regularize and absorb her services as a Hindi Pandit Grade-I in the aided post in Tagore’s Home New Era Institute Secondary School, Secunderabad, the fifth respondent, with effect from 01.11.1989 and to afford her all monetary benefits on par with a similarly situated Teacher, A.Hanumayamma. The petitioner was appointed as a Hindi Teacher in the fifth respondent School on 21.10.1971. The said School was admitted to grant-in-aid by the Government of Andhra Pradesh under G.O.Ms.No.176 dated 17.10.1989. As the petitioner was the senior most Hindi Teacher, the fifth respondent School proposed her name for absorption in the aided post of Hindi Pandit Grade-I. However, the said request was not acceded to on the ground that she did not possess the requisite qualification for the said post. Accordingly, the aided post was kept vacant. The petitioner acquired the requisite qualification thereafter, by passing the ‘Madhyama Visharada’ examination conducted by the Hindi Sahithya Sammelan, Allahabad, in the year 1993. She again sought regularization of her services in the aided post of Hindi Pandit Grade-I based on her newly acquired qualification. The District Educational Officer, Hyderabad, vide letter dated 11.12.1995 directed the absorption of the petitioner in the aided post with effect from the date of issue of the orders. Aggrieved by the denial of her past service, the petitioner appealed to the Director of School Education, Hyderabad, who, by proceedings dated 16.02.1999 altered the date of her absorption in the aided post by giving it effect from 20.01.1993, being the date of her acquisition of the requisite qualification. While so, the petitioner retired from service on 31.05.1998. Placing reliance on the favourable orders passed by the Government in favour of A.Hanumayamma, Telugu Pandit Grade-II in the fifth respondent School, who was identically situated on facts, the petitioner sought regularization and absorption of her services in the aided post with retrospective effect from 01.11.1989. The District Educational Officer, Hyderabad, acting upon the representation of the petitioner, addressed the Regional Joint Director of School Education, Hyderabad, in his letter dated 17.09.2002 setting out the facts, including the orders passed in the identical case of A.Hanumayamma, and requesting that necessary action be taken with regard to the absorption of the petitioner in the grant-in-aid post with effect from 01.11.1989 instead of 20.01.1993. Thereupon, the Commissioner and Director of School Education, Andhra Pradesh, Hyderabad, addressed the Secretary to the Government, Education Department, Government of Andhra Pradesh, Hyderabad, under letter dated 02.01.2003, forwarding the proposals of the Regional Joint Director of School Education, Hyderabad, in respect of the petitioner’s retrospective absorption in the aided post. Reference was made in the said letter to the case of A.Hanumayamma and the Government was requested to pass necessary orders. However, the Government under Memo dated 13.09.2003 rejected the proposal for retrospective absorption of the petitioner on the ground that she did not possess the requisite qualification on 17.10.1989, i.e., at the time of sanctioning of the aided Hindi Pandit Grade-I post. The same was communicated to the fifth respondent School by the District Educational Officer, Hyderabad, under proceedings dated 07.01.2004. Hence, this writ petition. Sri N.Raghavan, learned counsel for the petitioner, submitted that A.Hanumayamma, Telugu Teacher in the fifth respondent School, stood on an identical footing on facts as she was also appointed in the year 1971 and did not possess the requisite qualification when the aided post was sanctioned in the year 1989. She also acquired the requisite qualification only in the year 1993, but surprisingly, under G.O.Ms.No.48, Education (SE/PS) Department, dated 09.08.1999 the Government chose to exercise its power of exemption as regards the acquisition of the qualification and directed her absorption in the aided post with effect from 01.11.1989. It is stated that pursuant to the aforesaid orders, necessary consequential action was taken by the authorities and A.Hanumayamma was given all benefits basing on her retrospective absorption in the grant-in-aid post from 01.11.1989. The learned counsel therefore submitted that the arbitrariness and discrimination shown to the petitioner, who stood identically situated, offend the sacred principles of equality enshrined in Article 14 of the Constitution. In the counter filed on behalf of the School Education Department of the State, the District Educational Officer, Hyderabad, stated that the petitioner being an individual Teacher could not maintain the writ petition for redressal of her grievance in connection with grant-in-aid. It is stated that only the Correspondent of the fifth respondent School could espouse this cause and not an individual Teacher. Apart from assailing the maintainability of the writ petition on this ground, the Officer did not choose to address the issue on merits. Significant to note, the counter studiously steers clear of the favourable treatment of the case of A.Hanumayamma. No mention is made as to what prevailed over the authorities to exempt A.Hanumayamma in so far as the acquisition of qualification is concerned and what set her apart from the petitioner, who appears to be identically situated. The learned Government Pleader for School Education reiterated the stand adopted by his clients in their counter and asserted that the writ petition was not maintainable as it is for the educational institution concerned and not the individual Teacher to maintain a dispute with regard to grant-in-aid. This contention however does not hold water in the light of the law laid down by a Division Bench of this Court in Y.SIDDA REDDY V/s. GOVERNMENT OF ANDHRA PRADESH[1]. Therein, the Division Bench observed that as per the law laid down by the Supreme Court in so far as educational institutions which impart education to children below 14 years of age, the State owes a constitutional obligation to substantially reimburse the management of such Schools. In the light of this constitutional obligation, it is not open to the State authorities to assail the maintainability of the writ petition. All the more so, when the facts demonstrate the discriminatory treatment of two identically situated Teachers in the award of grant-in-aid. The contention of the learned Government Pleader in this regard is therefore liable to be rejected. G.O.Ms.No.48 dated 09.08.1999 demonstrates that A.Hanumayamma was appointed in the fifth respondent School in the year 1971, as was the petitioner, and she was not qualified at the time the post of Telugu Pandit Grade-II was sanctioned aid. She acquired the requisite qualification only in the year 1993, as was the case with the petitioner. She was absorbed in the aided post with effect from 20.04.1993, being the date that she acquired the requisite qualification. However, upon her appeals to the Government in this regard, the Government took note of the fact that the aided post was lying vacant from the date of its sanction. Pausing momentarily, the averment of the petitioner that the aided post of Hindi Pandit Grade-I was also left vacant as she, being the senior most Hindi Teacher, did not possess the qualification, has not been denied in the counter. Therefore, in the case of the petitioner also the aided post lay vacant. The G.O. further demonstrates that taking these aspects into consideration the Government granted exemption to A.Hanumayamma, in so far as acquisition of the qualification for the aided post is concerned, in terms of Government Memo No.591/Ser/V.1/93-7, Education, dated 02.07.1994 read with G.O.Ms.No.411, Education, dated 23.04.1982. Thereby, she was given retrospective absorption in the aided post from 01.11.1989. Neither the Government Memo dated 02.07.1994 nor G.O.Ms.No.411, dated 23.04.1982 have been placed before this Court but it appears that the import of those proceedings is to vest the Government with the authority and discretion to exempt an individual Teacher in so far as acquisition of qualification is concerned. There is no explanation forthcoming even now as to why the Government thought it fit to accord such exemption to A.Hanumayamma in exercise of the powers vested in it by the aforesaid Government Memo dated 02.07.1994 and G.O.Ms.No.411, dated 23.04.1982, when similar exemption was denied to the petitioner, who was identically situated on facts. The studied silence of the authorities in their counter as regards the discrimination alleged between the petitioner and A.Hanumayamma speaks volumes. The failure of the authorities to justify the contrary stands adopted by them in identical cases, in spite of specific allegations being levelled by the petitioner, attracts the doctrine of non-traverse and constitutes an implied admission. Thus, it has to be assumed that there are no valid reasons for treating the petitioner differently from A.Hanumayamma. The Memo dated 13.09.2003 issued by the Principal Secretary to the Government, School Education Department, Government of Andhra Pradesh is therefore found to be illegal and unsustainable on facts. There shall be a direction to respondents to reconsider the case of the petitioner in the light of the orders passed in favour of A.Hanumayamma under G.O.Ms.No.48, Education, dated 09.08.1999 and accord the petitioner a similar exemption in so far as acquisition of qualification is concerned by exercising powers under Government Memo No.591/Ser/V.1/93-7, Education, dated 02.07.1994 read with G.O.Ms.No.411, Education, dated 23.04.1982. The respondents shall pass necessary orders for absorption of the petitioner in the aided post with effect from 01.11.1989 on par with A.Hanumayamma and extend to her all consequential monetary benefits. This exercise shall be completed within two (2) months from the date of receipt of a copy of this order. The writ petition is accordingly allowed. In the circumstances of the case, there shall be no order as to costs. --------------------------- SANJAY KUMAR, J ______FEBRUARY, 2010 PGS [1] 2006 (1) ALT 354