IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FIFTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.20051 of 1999 Between: Shaheen Fatima W/o Syed Abdul Masood H.No. 5-2-20/B, Near: Bus Stand, Sangareddy, Medak Dist ..... PETITIONER AND 1 The District Educational Officer Meadk District Sanagareddy 2 Secretary, Education Department , The State of Andhra Pradesh Secretariat Building , Hyderabad .....RESPONDENTS 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 pass orders, particularly one in the nature of Writ of Mandamus, decalaring the impugned order in Rc.No. 6973/B2/98, dt. 20/07/1996 and the Judgment of the Hon'ble AP. Administravie Tribunal in O.A.No. 6975/96, dt. 18/08/1999 as arbitrary, illegal and violative of Articles 14, 21 and 311 of the constituation of India, and the principles of natural justice and consquently set-aside the same, direct the respondents to give posting order by treating the period as compulosory wait period with all the beneifts and grant such other releif Counsel for the Petitioner:MR.KASAJAGANMOHAN REDDY Counsel for the Respondent No.: GP FOR SERVICES I The Court made the following: Form-NIC-OGS/WP{LOBIS} THE HON'BLE SRI JUSTICE V.ESWARAIAH & THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR WRIT PETITION No.20051 of 1999 ORDER: (per Hon’ble Sri Justice Vilas V.Afzulpurkar) The petitioner in this writ petition claims that she was working as Secondary Grade Teacher. She further claims that she was appointed as a Special Teacher temporarily on a fixed pay of Rs.398/- vide proceedings of the District Educational Officer, Medak District in Rc.No.20679/L/1983, dated 06.01.1984 in terms of the G.O.Ms.No.429 Education, dated 13.10.1983. As per the aforesaid proceedings, produced by the petitioner, the appointment of the petitioner is a tenure appointment. The petitioner has also produced further proceedings of the District Educational Officer, Medak, Sangareddy in Rc.No.L/394/1984-85(I), dated 21.02.1985, whereunder she was granted promotion to the regular post in the scale of Rs.530-850 with effect from 01.02.1985 and she was posted to Govt.P.S. Police Lines, BRD newly created post at Sangareddy. The petitioner submits that as she suffered from T.B and diabetes, and as such she went on medical leave from 19.07.1987 to 02.08.1987. Later the 1st respondent issued proceedings in Rc.No.B2/14656/90, dated 04.11.1991 stating that the petitioner is not entitled to grant leave under Rule 6 of A.P.Leave Rules and she would be deemed to have been discharged from duties with effect from the date of her absence. Again the petitioner went on medical leave from 12.12.1991 to 16.12.1991 and further extended the leave from time to time and on 23.05.1995 she approached the 1st respondent along with fitness certificate seeking posting orders. As no orders have been passed by the 1st respondent, she approached the Andhra Pradesh Administrative Tribunal, Hyderabad (hereinafter referred to as “the Tribunal”) in O.A.768/1996 and the said O.A. was disposed of on 12.02.1996 with a direction to the respondents to pass appropriate orders on the petitioner’s application dated 24.05.1995 for giving posting orders. Later, it appears that the 1st respondent herein issued proceedings dated 20.07.1996 wherein it was claimed that the appointment of the petitioner was temporary and she was deemed to have been discharged from service with effect from the date on which she went on leave. Subsequently the petitioner also filed a contempt case, details of which are not necessary for the present. In the aforesaid proceedings, the 1st respondent has claimed that the Deputy Inspector of Schools enquired in the village and submitted his report stating that the petitioner went on leave unauthorizedly and stayed at Dubai, and in view of that, the respondents have treated the petitioner as deemed to have been discharged from duty. Questioning the said stand of the respondents and challenging the proceedings dated 20.07.1996, the petitioner filed O.A.6975/1996 before the Tribunal, primarily contending that she has been discharged from service without any regular enquiry and as such she sought relief of Mandamus declaring that the proceedings of the District Educational Officer, Medak District, Sangareddy in Rc.No.6973/B2/88, dated 20.07.1996 and further proceedings dated 07.07.1995 and 20.08.1995 are illegal and consequently to quash the same and direct the respondents to issue posting orders to the petitioner as Secondary Grade Teacher. In the said O.A, the Educational Officer, Medak filed counter affidavit reiterating his stand that the petitioner was initially appointed temporarily under Rule-10(a)(i) of the A.P.State Subordinate Service Rules and she was not eligible for leave and as such she was discharged from service for going on leave unauthorisedly. The Tribunal considered the matter including the report of the Deputy Inspector of Schools wherein it is stated that the petitioner was absent from 11.12.1991 and that she left for Dubai where her husband is staying. Considering the aforesaid points of the matter, the Tribunal came to the conclusion that the appointment of the petitioner being only temporary Government servant and on account of her absence from November 1991 to 1995, she was rightly deemed to have discharged from service and the same was held justified and O.A. was dismissed. Questioning the aforesaid order, the present writ petition is filed. We have heard the learned counsel for the petitioner as well as the learned Government Pleader, appearing for the respondents. The learned counsel for the petitioner submits that no material is produced by the respondents either before the Tribunal or before this Court to show that the appointment of the petitioner was under Rule- 10(a)(i) of A.P.State Subordinate Service Rules. The learned counsel for the petitioner has also laid strong emphasis on the proceedings of the District Educational Officer, Medak, Sangareddy dated 21.02.1985, referred to above, whereunder the petitioner along with other women teachers were promoted to a regular post in the scale of Rs.530-850 with effect from 01.02.1985. It is stated that the aforesaid promotion was given to the petitioner and she was posted to the regular post, and as such it cannot be said that the petitioner was discharged or terminated from service without any enquiry. The learned Government Pleader, basing on the material available on record, submits that there were two long periods of unauthorized absence by the petitioner and there is no record to show her regular appointment to any post. As per Rule-6-A of A.P.Leave Rules, temporary employees are not entitled to avail leave and if he avails any leave unauthorisedly, he would be deemed to have been discharged from service, and in that view of the matter, the learned Government Pleader justifies the impugned order as well as the decision of the Tribunal. The learned Government Pleader has also placed before us the copies of the proceedings of the District Educational Officer bearing Rc.No.B2/14656/90, dated 04.11.1991 as well as the complaint given by the villagers of Angadipet to the District Educational Officer, Medak District at Sangareddy dated 30.12.1991 and further proceedings of the District Educational Officer in Rc.No.B2/736/91, dated 04.01.1992 that the petitioner is not attending duties from 13.12.1991 in the said village. The learned Government Pleader has also produced two other proceedings of the District Educational Officer, Medak dated 07.07.1995 and 25.08.1995 wherein the petitioner was informed that the earlier proceedings under which the services of the petitioner was deemed to have been discharged stand reiterated. We have considered the aforesaid submissions including the counter affidavit filed on behalf of the respondents in this writ petition. It is very noteworthy that even from the records produced by the respondents, no explanation is forthcoming regarding the proceedings of the District Educational Officer, Medak, Sangareddy dated 21.02.1985. The learned Government Pleader is unable to state as to how the petitioner was in regular post on promotion under the aforesaid proceedings. The claim of the respondents that the petitioner was temporarily appointed and as such, discharged from service on account of unauthorized absence appears to be inconsistent with the aforesaid proceedings dated 21.02.1985. Further, even from their part, the respondents have not shown any proceedings under which the petitioner services were discharged/terminated and admittedly no enquiry has been held. As contended by the petitioner, the order impugned passed by the Tribunal below also does not contain any discussion with regard to the aforesaid proceedings dated 21.02.1985 though a reference has been made thereto on behalf of the applicant before the Tribunal. The main question required to be decided in the present matter is regarding the status of the petitioner as to whether she was temporarily appointed teacher and/or whether she was regularly appointed teacher. If the petitioner is held to be temporary, the discharge order may be justified under Rule-6A, but otherwise on the basis of the proceedings of the District Educational Officer, Medak, Sangareddy dated 21.02.1985 referred to above, if she is held to be working in regular post, her discharge from service is not justified. In any case, she was in long periods of authorized absence in different spells running into several years each. She has not been working at least from the date of discharge and there are no interim orders in her favour even pending proceedings either before the Tribunal or before this Court for the last 13 years. Taking all these circumstances into account, without going into new factual aspects, which are not covered under the order impugned herein, we deem it appropriate to remit the O.A. for fresh consideration by the Tribunal below so as to answer the crucial questions which are referred to above, and thereafter, to pass appropriate decision in the overall facts and circumstances of the case. The Writ Petition is accordingly allowed. The impugned order of the Tribunal is set aside and the matter is remitted to the Tribunal below for fresh disposal, as stated supra. We also make it clear that either of the parties shall at liberty to place before the Tribunal any additional material, additional affidavits and additional counter affidavits so as to assist the Tribunal in adjudication of the dispute involved herein. Since the dispute involved herein is pending for long number of years, it would be desirable that the Tribunal considers the matter and dispose of the same as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order. No order as to costs. ___________________ V.ESWARAIAH,J ___________________________ VILAS V.AFZULPURKAR,J Dated:05.08.2009 Dsr Note: Furnish copy in one week. B/o Dsr