THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.5189 OF 2006 DATED DECEMBER, 2010 BETWEEN P.Ramalinga Reddy … Petitioner And The Govt. of A.P., Rep. by its Principal Secretary, Department of Higher Education, Secretariat, Hyderabad. And Others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.5189 OF 2006 O R D E R By proceedings dated 02.12.2005, the Director of Collegiate Education, Andhra Pradesh, Hyderabad, communicated the decision of the Government of Andhra Pradesh in its Memo dated 11.11.2005, rejecting the request of the management of Sree Ankala Reddy Memorial Degree College, Allagadda, Kurnool District, third respondent, to admit the petitioner to the grant-in-aid post of Librarian in its service. Aggrieved thereby, the petitioner is before this Court. The third respondent College was established in the year 1981 and was admitted to grant-in-aid with effect from 16.04.1990 under G.O.Ms.No.170, Education (CE.II.2) Department, dated 12.07.1990. The third respondent College was allowed one aided post of Librarian along with various other posts. Pursuant to the permission granted by the authorities for filling up the aided posts under proceedings dated 18.10.1993, the third respondent College issued a notification for filling up various posts. The petitioner applied for the post of Lecturer in Library Science (Librarian) and was selected by the duly constituted Selection Committee, in accordance with G.O.Ms.No.12 dated 10.01.1992. He was appointed to the said post with effect from 12.11.1999. Though the petitioner was appointed against the aided post he was not granted the benefit thereof. In spite of the third respondent College submitting proposals in this regard under its letter dated 25.04.2001, the authorities concerned failed to take necessary action. He thereupon filed Writ Petition No.16887 of 2005 before this Court assailing the action of the Government of Andhra Pradesh in not considering his case for regularization as a Lecturer in Library Science in the third respondent College and sought a consequential direction to admit him to grant-in- aid with effect from 12.11.1999 with consequential benefits. The said writ petition was disposed of by order dated 08.08.2005 taking note of the fact that the petitioner was appointed as a Lecturer in the third respondent College after due process of selection and directing the Government of Andhra Pradesh to consider the College’s proposal forwarded by the Director of Collegiate Education, Andhra Pradesh, Hyderabad, and pass appropriate orders thereon in accordance with law. Pursuant to the said order, the Government issued the Memo dated 11.11.2005 rejecting the proposal for admitting the petitioner to grant-in-aid ostensibly in view of the general policy decision of the Government under Memo dated 17.12.1999 to the effect that no grant- in-aid post should be filled in future. The same was communicated to the petitioner under the impugned proceeding dated 02.12.2005 by the Director of Collegiate Education, Andhra Pradesh, Hyderabad. The petitioner’s main ground of attack against the authorities’ rejection of his case for admission to grant-in-aid is that he was subjected to discrimination. Instances were cited by him as to how others similarly situated were given the benefit of grant-in-aid but he was selectively denied on the ground of a so-called policy decision. Though the writ petition was filed as long back as in the year 2006, it was only after great persuasion that the respondent authorities condescended to file their counter on 25.11.2010. The petitioner immediately responded thereto by filing his reply affidavit dated 01.12.2010 supported by fresh material further demonstrating his contention with regard to the discrimination exhibited by the authorities. As this material was introduced by way of a reply affidavit, the matter was adjourned twice to enable the learned Assistant Government Pleader for Education appearing for the respondent authorities to verify the documents placed on record and clarify the position. However, the learned Assistant Government Pleader submitted that nothing further needed to be stated and that the matter may be decided on the basis of the material placed on record. Accordingly, this Court proceeds to do so. At the outset, it may be noticed that the respondent authorities in the earlier round of litigation in Writ Petition No.16887 of 2005 suffered the finding that the petitioner was appointed as a Lecturer in the third respondent College after due process of selection. This finding has attained finality as no appeal was preferred thereagainst. Further, the impugned proceedings dated 02.12.2005, reflecting the Government’s Memo dated 11.11.2005, do not insinuate that there was any irregularity in the petitioner’s appointment. On the other hand, it is stated therein that as per the orders issued in G.O.Ms.No.12 dated 10.01.1992, the Selection Committee selected the petitioner as a Librarian. It is therefore too late in the day for the respondent authorities to make lame attempts to discredit the petitioner’s very appointment on the ground that it suffered from any irregularity. The averments made in the counter to the effect that prior permission was not obtained from the competent authority before filling up the post and prior approval from the Commissioner of Collegiate Education, Andhra Pradesh, was not obtained before issuance of the appointment order, cannot therefore be countenanced. In any event, it is not open to the respondent authorities to seek to supplement the reasons put forth in the impugned proceeding for rejection of the petitioner’s case by way of their counter [MOHINDER SINGH GILL V/s. CHIEF ELECTION COMMISSIONER[1]]. The reliance placed in the counter on G.O.Ms.No.127, Education (CEI) Department, dated 07.06.1993 is also misplaced as the said G.O. had no application on facts to the present case. As new reasons are sought to be put forth in the counter to justify the rejection of the petitioner’s case, he necessarily had to rebut them duly supported by material. This Court therefore does not propose to eschew such material from consideration merely because the authorities are unwilling to acknowledge the same. In so far as the crucial issue of discrimination is concerned, the petitioner specifically adverted to various instances of benefit being extended to others. The respondent authorities attempted to explain the same by stating that such persons were given benefit owing to the orders passed by this Court. It is further stated in the counter that the Government vide Memo dated 22.07.2002, informed the Commissioner of Collegiate Education, Andhra Pradesh, that his proposal for filling up the posts of Physical Directors and Librarians in Private Aided Degree Colleges/P.G.Colleges was rejected as the Government proposed to review the grant-in-aid policy. This was cited as a reason, only in the counter, for rejecting the request of the third respondent College concerning the petitioner. The authorities further tried to strike a high moral ground by stating that two wrongs would not make one right. Pertinent to note, they did not choose to explain as to what were the two wrongs committed by them. In his reply, the petitioner reiterated his attack on the charge of discrimination, duly supporting the same with material to demonstrate that none of the ‘policies’ put forth by the respondent authorities in their counter were implemented with any consistency. He reiterated that the authorities were making appointments selectively for reasons best known to them and that he could not be denied as others similarly situated and even those worse off than him were granted the benefit. A glance at the instances cited by the petitioner clearly demonstrates the veracity of his contention. G.O.Rt.No.160, Higher Education (CE.II.2) Department, dated 16.02.2001, was issued by the Government appointing and admitting to grant-in-aid one Dr.R.V.Anuradha as a Lecturer in English in Pragathi Mahavidyalaya Degree College, Hyderabad, though she was not even appointed as per the procedure prescribed in G.O.Ms.No.12 dated 10.01.1992. This case was not covered by any order from this Court. However, the Government deemed it fit to extend benefit to her notwithstanding its so-called ban orders under Government Memo dated 17.12.1999 and the violation of the prescribed procedure under G.O.Ms.No.12 dated 10.01.1992. There is no explanation forthcoming from the authorities as regards this case. G.O.Rt.No.359, Higher Education (IE.II) Department, dated 25.04.2005, was issued according permission for regularization of the services of one V.Naga Maheswara Reddy against a vacant aided post in RES Junior College, Mydukur, Kadapa District, in relaxation of the rules issued in G.O.Ms.No.12 dated 10.01.1992. The G.O. reads to the effect that the said order was passed in the light of the orders of this Court in Writ Petition No.12966 of 2004. A copy of the order dated 12.08.2004 passed in the said writ petition is placed on record and demonstrates that no positive direction was issued in the said case. The Government was only directed to consider the case of the petitioner therein for regularization of his service as a Junior Lecturer and to pass appropriate orders according to the rules. Relevant to note, a similar direction was passed earlier in the case of the petitioner also. This Court therefore finds it incomprehensible as to how a similar direction by this Court in two cases evoked altogether different responses. By G.O.Ms. No.360, Higher Education (IE.II) Department, dated 25.04.2005, the Government accorded permission for regularization of the services of one K.Sree Devi, Junior Lecturer in Commerce in S.V.B. Junior College, S.Mattam, Kadapa District, against an aided vacant post in relaxation of the rules issued in G.O.Ms.No.12 dated 10.01.1992. This regularization was also in relation to an order passed by this Court in Writ Petition No.13507 of 2004. The order dated 02.08.2004 passed in the said writ petition is placed on record and indicates that this Court, taking note of the fact that the representation of the petitioner was pending from more than ten months, directed the Government to pass appropriate orders thereon and communicate the same. Yet again, no positive direction, but the authorities were inspired. It may be noted that in both the above cases the prescribed procedure under G.O.Ms.No.12 dated 10.01.1992 had not been followed, requiring the relaxation of the rules contained in the said G.O. In spite of mere ‘consider’ orders from this Court, the Government swung into action, ignored its so-called ban orders in Memo dated 17.12.1999 and accommodated the persons concerned in aided posts. In spite of the petitioner having been selected and appointed as per due procedure and in spite of a similar ‘consider’ order from this Court, he was denied the same benefit ! The new contention put forth in the counter that Physical Directors and Librarians were not to be admitted after 22.07.2002 to grant-in-aid as the Government proposed to review its grant-in-aid policy, even if considered, is belied by the material placed on record along with the reply. Memo No.7721/IE.II/2/2004-1 dated 31.08.2004 issued by the Government of Andhra Pradesh indicates that one R.Swaroopa Roseline, Physical Director, was admitted to grant-in-aid with effect from 01.08.2002. Similar is the case with one K.Nageswara Reddy, who was appointed in the grant-in-aid post of a Physical Director in S.V.B. Junior College, Brahmamgarimattam, Kadapa, on 09.06.2003. Thus, the above material clearly indicates that the respondent authorities are adopting a subjective and capricious approach in dealing with cases pertaining to admission to grant-in-aid. Where it suits their purposes, violation of rules notwithstanding, a mere direction to consider is deemed sufficient to grant relief but in other cases, as in the case on hand, rejection ensues on one flimsy ground or the other. It may be noted that the respondent authorities left no stone unturned to defend their action in rejecting the petitioner’s case. So much so, that they sought to supplement the said rejection by thinking up new reasons in their counter. As stated earlier, such an endeavour cannot be countenanced. The impugned proceeding dated 02.12.2005, reflecting the Government’s Memo dated 11.11.2005, must stand alone and withstand scrutiny by this Court in isolation. The Memo dated 11.11.2005, to the extent relevant, reads as under: “3. The matter has been examined “de novo” in obedience with the orders of the Hon’ble High Court of Judicature, A.P., Hyderabad. Keeping in view of the general policy decision of the Government vide orders issued in the Govt., Memo. No.41209/CE.II.1/98-2, dt.17.12.1999 directing that no grant-in-aid post should be filed in future, Government have decided to reject the request of the Management of SARM Degree College, Allagadda, Kurnool for absorption of the petitioner to Grant-in-aid against the existing vacancy. 4. Accordingly, the request of the Management of S.A.R.M. Degree College, Allagadda for admission of Sri P.Ramalinga Reddy (unaided) Librarian into Grant-in-aid is hereby rejected.” Thus, the only reason cited by the Government for rejecting the petitioner’s case is the Government Memo dated 17.12.1999. The Government Memo dated 17.12.1999 reads to this effect: “The Government after careful examination of the proposal of the Commissioner and Director of Collegiate Education to fill up the vacant aided post in the Private Aided Colleges in the State, hereby reject the same since it is not possible to consider it favourably.” This Memo is said to embody a policy decision. Upon a plain reading of the Memo, this Court finds it difficult to accept this submission. There is no ‘considered’ opinion of the Government reflected in the said Memo to presuppose any policy emanating therefrom. In any event, as pointed out in the Memo dated 11.11.2005, the Government was of the opinion that keeping in view the policy decision issued in the earlier Memo, no grant-in-aid post should be filled in future. Perhaps the respondent authorities failed to notice that the petitioner was appointed on 12.11.1999, i.e. before the issuance of the Memo dated 17.12.1999. Therefore, the ground cited by the Government for rejecting his case does not stand to reason. The Memo, as rightly understood by the Government itself, is only prospective in nature. The petitioner having already been appointed to the post by the date of its issuance could therefore not be subjected to denial on its basis. Further, this Court, as stated supra, finds merit in the petitioner’s contention that the respondent authorities are adopting a pick and choose selective methodology to suit their own vested interests for admitting particular incumbents to grant-in-aid posts. This blatant arbitrariness falls foul of the principles of equality and fair play in action enshrined in Article 14 of the Constitution. The respondent authorities are bound to adopt a consistent stand while dealing with these cases and their discriminatory and purely subjective and whimsical handling of similarly situated cases clearly demonstrates that their functioning is not in accordance with the rule of law. The petitioner, having been appointed as per the prescribed procedure against an aided vacancy, cannot therefore be denied approval of his appointment by the respondent authorities given the facts and circumstances of the case. Ergo, the adamant attitude of the authorities in trying to deny the petitioner by clutching at straws, as is evident from their counter, requires to be condemned. The impugned proceedings dated 02.12.2005 and 11.11.2005 are accordingly set aside. There shall be a direction to regularize the petitioner’s services in the grant-in-aid post held by him from the date of his original appointment with all consequential benefits. The respondents shall give effect to the above direction within two (2) months from the date of receipt of a copy of this order. The Writ Petition is accordingly allowed with costs quantified at Rs.10,000/- (Rupees Ten Thousand) payable by respondents 1 and 2. ---------------------------- SANJAY KUMAR, J. _______ DECEMBER, 2010. PGS (PD) THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.5189 OF 2006 __________DECEMBER, 2010 [1] (1978) 1 SCC 405 = AIR 1978 SC 851