IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NOS : 27670 and 28030 of 2008 Between: M.Khaseem Saheb, S/o. M.Nabi Saheb, R/o. A.Reddivaripalli, Amadagur Mandal, Anantapur District. ..... PETITIONER AND 1 The Government of Andhra Pradesh, Rep by its Principal Secretary to Government Education Department, Secretariat, Secretariat Buildings, Hyderabad. 2 The Director of School Education, Andhra Pradesh, Hyderabad. 3 The District Educational Officer, Anantapur Anantapur District. 4 The Mandal Educational Officer, Amadgur Mandal, Amadgur, Ananthapur Dsitrict. 5 P.Chandrasekhar, S/o. P.Anjaneyulu, R/o. H.No.1-1-101, Pakamvaristreet, Uravakonda, Anantapur District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to call for the records relating to the orders passed in O.A.No. 6727 of 2007 with VMA. NO.741/2007 Dated 18-11-2008 and orders passed in G.O.Rt.No.378 dated 30.05.2007 passed by the 1st respondent and consequently show cause notice of termination issued by the 4th respondent in R.C.NO.9961/A3/2003 dated 09-10-2007 and quash the same by issuing Writ of Certiorari as being illegal, arbitrary and contrry to Rule 17(a) (ii) of State and Subordinate Service Rules, 1996 and contrary to the provisions of Administrative Tribunal Act, 1985 and pass Counsel for the Petitioner:MR.M.GANGA RAO Counsel for the Respondent No.: GP FOR EDUCATION The Court made the following : ORDER: (Per Sri Justice GHULAM MOHAMMED) Since both the Writ Petitions are connected they can be disposed of by a common order. Both the Writ Petitions viz., Writ Petition Nos. 27670 of 2008 and 28030 of 2008 arise out of a common order dated 18.11.2008 passed by the A.P. Administrative Tribunal, Hyderabad in O.A.No. 6727 of 2007 with VMA.No. 741 of 2007 and O.A.No. 1546 of 2006, by virtue of which, the tribunal held that there are no reasons for declaring the G.O.Rt.No. 378 dated 30.5.2007 issued by the first respondent and consequential show- cause notice of termination issued by the third respondent in Rc.No. 9961/A3/2003 dated 9.10.2007 to the applicant- M. Khaseem Saheb, as illegal and dismissed the O.A.No. 6727 of 2007 by allowing VMA No. 741/2007 and allowed O.A.No. 1546 of 2006 filed by P. Chandra Sekhar and respondents 1 to 3 therein were directed to appoint the applicant-P. Chandra Sekhar as Secondary Grade Teacher (Telugu) within two weeks from the date of receipt of a copy of that order. O.A.No. 6727 of 2007 was filed to set aside G.O.Rt.No. 378 dated 30.5.2007 issued by the first respondent and consequential show-cause notice of termination issued by the third respondent dated 9.10.2007 by declaring the same as illegal, arbitrary and contrary to the Andhra Pradesh State and Subordinate Service Rules, 1966 (for brevity ‘the Rules”). Brief facts of the case are that the petitioner herein was appointed as Secondary Grade Teacher consequent to the selection by the District Selection Committee in DSC 2003 in the category of Physically Handicapped (Visually Handicapped) in open category and was given appointment order by the 3rd respondent vide proceedings dated 24.11.2005 posting him as S.G.T to MPPS A. Reddyvaripalli, Amadagur (Mandal), Ananthapur District under Rule 10(a)(i) of the Rules and he joined duty on 8.12.2005. It is stated that he has completed one year 11 months of service and his services are due to be regularized in the month of December, 2007 as he will be completing two years of service by that date. In the meanwhile, one P. Chandrasekhar-5th respondent, filed O.A.No. 1546 of 2006 to declare the action of respondents 1 to 3 therein in appointing the petitioner as Secondary Grade Teacher under Physically Handicapped (Visually Handicapped) quota in open category as he secured more marks and is more meritorious than the petitioner. The Tribunal issued notice to the respondents as well as to the petitioner who was also made a party as respondent No. 4 in the said O.A. According to the petitioner he belongs to BC(B) category and he secured 52.5 marks and got selected as Secondary Grade Teacher in the category of Physically Handicapped (VH). The first respondent issued G.O.Rt.No. 378 dated 30.5.2007 and also consequential show-cause notice of termination was passed by the 3rd respondent on 9.10.2007 only basing on the representation of one P. Chandrasekhar-5th respondent without any enquiry pending O.A.No. 1546 of 2006 before the Tribunal. According to the petitioner, the order was received by him on 23.10.2007 and he submitted a representation on 30.10.2007 to the 3rd respondent through proper channel requesting to permit him to submit a detailed explanation. According to the petitioner, the 5th respondent is having physical deformity in both PH(VH) and PH(OH) categories and applied for appointment to the post of School Assistant (Maths) and Secondary Grade Teacher in DSC 2003 and he was not selected to the post of School Assistant (Maths) as he got 38 marks and the last candidate selected there under OC(G) got 78 marks against the Secondary Grade Teacher (T/M) post 2 vacancies PH(VH) General Category and 3 vacancies PH(OH) General were notified in DSC 2003 in the category of PH (OHO(G), the last selected candidate got 73 marks. It is stated that the petitioner got 52.5 marks, where as 5th respondent got 53 marks and he was not considered for the post of SGT as the percentage of deformity in PH(VH) was not shown in the list of SGTs. According to the petitioner he is continuing as SGT and he has not committed any irregularity or illegality and he became over aged for any job opportunity and he got married and he begot two children who are dependent on him besides old aged parents. The first respondent filed counter affidavit stating that the applicant was appointed as SGT through DSC 2003 under the category of PH(VH) and posted to MPPS, A. Reddivaripalli, Amadagur Mandal vide proceedings dated 24.11.2005 of the District Educational Officer, Ananthapur, with a condition that the selection is purely temporary and liable to be terminated at any time without assigning any reason. It is also stated that P. Chandrasekhar-5th respondent submitted a representation stating that he has to be selected for the post of Secondary Grade Teacher in PH (VH) category in DSC 2003 in Ananthapur District as he got more marks i.e., 53 marks than the applicant-petitioner, who secured 52.5 marks. It is further stated that in the list of Secondary Grade Teacher Posts, the percentage of deformity in PH (OH) was shown as 50% against P. Chandrasekhar and in the list of School Assistant Post (Maths) the percentage of deformity in PH (VH) is shown as 40% against P. Chandrasekhar. As the percentage of deformity in PH (VH) of the 5th respondent was not shown in the list of Secondary Grade Teacher the petitioenr who got 52.5 marks was selected even though the said Chandrasekhar got 53 marks. It is stated that after examining the matter on the representation of the 5th respondent, the Government issued G.O.Rt.No. 378 dated 30.5.2007 directing the Director of School Education, Hyderabad to issue show cause notice to the then District Educational Officer, Anantapur, for committing irregularities in selection of teachers. It is stated that the 5th respondent is having physical deformity in both PH(OH) and PH(VH) categories and he applied for SA (Maths) and SGT posts in DSC 2003. He got 38 marks in SA (Maths) post and 53 marks in SGT post. In the category of SA(Maths) post, no posts were reserved for OP(VH) or PH(OH) categories and Sri P. Chandrasekhar was not selected under OC(G) for SA (Maths) post as he got only 38 marks and the last selected candidate under OC(G) for SA (Maths) post got 78 marks. Therefore, the applicant-petitioner was erroneously appointed though there was a PH category candidate with higher merit in the examination than the applicant and DEO directed to appoint 5th respondent, as SGT (TM) under PH (VH)(G) category after issuance of termination orders and after relieving the applicant-petitioner and accordingly, the Director of School Education, Hyderabad issued proceedings dated 21.6.2006. The Tribunal after going through the entire record held that there are no reasons for declaring the G.O.Rt.No. 378 dated 30.5.2007 issued by the first respondent and consequential show- cause notice of termination issued by the District Educational Officer-cum- Convener, District Selection Committee-2003 in Rc.No. 9961/A3/2003 dated 9.10.2007 to the applicant-petitioner as illegal and arbitrary and dismissed both the O.As allowing VMA with a direction to respondents 1 to 3 to appoint the applicant in O.A.No. 1546 of 2006 as Secondary Grade Teacher (Telugu), within two weeks from the date of receipt of a copy of the order. The learned counsel appearing for the petitioner contended that when once the petitioner is selected and appointed as Secondary Grade Teacher by the District Selection Committee in DSC 2003 in the category of Physically Handicapped (Visually Handicapped) in open category and was given appointment order vide proceedings dated 24.11.2005 by the District Educational Officer-cum-Convener, District Selection Committee- 2003, the Government ought not to have entertained the representation filed by one P. Chandrasekhar and ought not to have issued proceedings dated 21.6.2006 relieving the petitioner, which is impermissible under law. So also entertaining representations is impermissible under Section 19(4) of the Administrative Tribunals Act. On the other hand, the learned senior counsel Sri Gangaiahnaidu contended that because of the mistake committed by the District Education Officer-cum-Convener, District Selection Committee- 2003, Mr. P. Chandrasekhar cannot be penalized. Though he has filed O.A.No. 1546 of 2006, the Tribunal ordered notice before admission and in the meanwhile he made a representation to the Commissioner and Director of School Education, Government of Andhra Pradesh, Hyderbad and in turn he examined the matter and perused the record and made an endorsement on the application that he has got 40% of the disability in PH(VH) as decided by the Medical Board where as in the application by mistake he indicated the percentage of disability as 60%. Since Mr. P. Chandrasekhar secured more marks, the Government has realized the mistake and issued notice for committing the above irregularity and the Tribunal has rightly allowed the O.A and there is no prohibition to make a representation. When once the Tribunal has not admitted the O.A, the provisions of Section 19(4) of the Act are not applicable inasmuch as the O.A was not admitted but notice before admission was ordered. Section 19(4) of the Administrative Tribunal Act reads as under: “Where an application has been admitted by a Tribunal under sub-section (3), every proceeding under the relevant service rules as to redressal of grievances in relation to the subject matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules.” The learned Government Pleader has produced the record wherein the application form of P. Chandrasekhar-5th respondent shows that he applied for the post of SGT (Telugu) and in the column indicated whether he is Physically Handicapped, he marked a tick to ‘Yes’ and whether he is Visually Handicapped again he marked a tick to ‘Yes’ and the certificates enclosed discloses that he has got 60% of disability in respect of visually handicapped and ultimately the same was referred to the medical board and medical board has verified it and made an endorsement that he is having 40% disability in visually handicapped and accordingly, the Director of School Education has perused the record and ultimately the Government passed the order. He further submitted that apart from that as the 5th respondent obtained 53 marks where as the petitioner obtained 52.5 marks, there are no reasons to entertain the Writ Petitions. Earlier when the matter came up for admission on 22.12.2008, notice before admission was ordered and while granting status-quo we directed the Government Pleader to find out as to whether there is any fall out in the vacancies with regard to D.S.C. 2003 of physically handicapped. Be that as it may, the point that arises for consideration is as to whether any jurisdictional error or any illegality is committed by the Tribunal so as to disqualify its finding. We have heard the learned counsel and perused the entire material on record. It is no doubt true that the petitioner was selected and appointed as Secondary Grade Teacher by the District Selection Committee in DSC 2003 in the category of Physically Handicapped (Visually Handicapped) in open category. It is also correct that the District Educational Officer –cum-Convener, District Selection Committee-2003, Anantapur District has given appointment order posting him as SGT toMPPS A. Reddyvaripally, Amadagur (Mandal) Anantapur District and he joined duty on 8.12.2005 and completed one year 11 months of service and his services are due to be regularized in the month of December 2007. It is also no doubt true that one P. Chandrasekhar filed O.A.No. 1546 of 2006 and the Tribunal issued notice to the respondents as well as the petitioner herein who was made a party to the proceedings in the said O.A. His grievance was that he got 53 marks in DSC 2003 and the percentage of deformity in PH(OH) was shown as 50% and in the list of School Assistant Post (Maths) the percentage of deformity in PH(VH) is shown as 40%. As the percentage of deformity in PH(VH) was not shown in the list of Secondary Grade Teacher, though the 5th respondent got more marks i.e., 53 marks he was not selected. It is also no doubt true that on the representation of the 5th respondent, the Government issued G.O.Rt. No. 378 dated 30.5.2007 directing the Director of School Education, Hyderabad to issue show cause notice to the then District Educational Officer, Anantapur for committing irregularities in selection of teachers. The 5th respondent is having physical deformity in both PH(OH) and PH(VH) categories and he applied for SA (Maths) and SGT Posts in DSC 2003 and he got 38 marks in SA (Maths) post and 53 marks in SGT post. As in the category of SA (Maths) post no posts were reserved for OP(VH) or PH(OH) categories Sri P. Chandrasekhar was not selected under OC(G) for SA(Maths) post as he got only 38 marks and the last selected candidate under OC(G) for SA (Maths) post got 78 marks. Therefore, the Director of School Education, Hyderabad realized the mistake committed and directed to appoint the 5th respondent, candidate of DSC 2003, Ananthapur District under PH(VH)(G) category as Secondary Grade Teacher (Telugu Medium) after issuing termination orders to the petitioner. Therefore, as regards the finding arrived at by the Tribunal, we do not find any jurisdictional error so as to warrant interference under certiorari jurisdiction. However, the petitioner cannot be penalized as there is no mistake committed by him and since he has completed one year 11 months of service and as his services are due to be regularized in the month of December 2007, we deem it appropriate to direct the respondents to consider the case of the petitioner for appointment if the vacancies made are converted into general category, as the learned Government Pleader represented that the proposals are sent by the District Educational Officer-cum-Convener, District Selection Committee-2003, Anantapur District to the Commissioner and Director of School Education, Government of Andhra Pradesh, Hyderabad for conversion of the vacancy to open category since for two recruitments there are no candidates available belonging to Physically Handicapped and Visually Handicapped (Women). This order does not be treated as precedent. Accordingly, both the Writ Petitions are disposed of. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ______________________________ B. SESHASAYANA REDDY, J Dt. 24.3.2008 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Government of Andhra Pradesh, Rep by its Principal Secretary to Government Education Department, Secretariat, Secretariat Buildings, Hyderabad. 2 The Director of School Education, Andhra Pradesh, Hyderabad. 3 The District Educational Officer, Anantapur Anantapur District. 4 The Mandal Educational Officer, Amadgur Mandal, Amadgur, Ananthapur Dsitrict. 5 P.Chandrasekhar, S/o. P.Anjaneyulu, R/o. H.No.1-1-101, Pakamvaristreet, Uravakonda, Anantapur District. 6. 2CC to G.P. for Services I, High Court of A.P., Hyderabad OUT 7. 2 CD copies